ALI ZIA BAJWA, J.---Munir Ahmad alias Muna son of Muhammad Umar, caste Kotani Lashari, resident of Mouza Chak Jarwar, Tehsil and District Dera Ghazi Khan, appellant, through the instant appeal has assailed his conviction and sentence recorded by the learned Additional Sessions Judge, 4Dera Ghazi Khan, vide judgment dated 26.08.2019 in case FIR No.181/2015, dated 28.06.2015, offence wider sections 302, 392, 34, of Pakistan Penal Code 1860 (`P.P.C.'), registered with Police Station Kala, Dera Ghazi Khan; in following terms:- Under sections 302(b)/34, P.P.C., for committing Qatl-i-Amd of Muhammad Shahzad sentenced to death as Ta'zir with direction to pay Rs.4,00,000/- as compensation to legal heirs of the deceased as provided under section 544-A(2), Cr.P.C. to be recovered as arrears of land revenue and in case of default in payment thereof, to undergo S.I. for six months.
Under sections 394/34, P.P.C., sentenced to undergo imprisonment for life (R.I.) with fine of Rs.2,00,000/- and in case of default in payment thereof, to further undergo S.I. for six months.
2. Learned trial court forwarded Murder Reference No.119/2019 for confirmation of sentence of death inflicted upon Munir Hussain alias Muna/convict in terms of section 374 of Code of Criminal Procedure 1898 (`Cr.P.C.'). Both, the appeal preferred by the appellant and reference sent by learned trial court, are being decided through this consolidated judgment.
3. The prosecution case structured upon the story as narrated in the FIR (Exh.PB) lodged on the statement (Exh.PB/1) of Ghulam Fareed son of Hafiz Allah Wassaya, caste Jut Jhujhar, resident of Mouza Maqsooda Jhujhar, Tehsil and District Dera Ghazi Khan (PW-6) is that on 28.06.2015 at 10:30 a.m. son of the complainant namely Muhammad Shehzad, while riding on his motorcycle HONDA CG-125 bearing registration No.3860/DGN Model-2013, proceeded to Shah Saddar Din for shopping of clothes. The complainant along with Muhammad Ramzan son of Allah Wassaya and Muhammad Zafar son of Abdul Kareem also followed him on another motorcycle. When they reached near Mehboob Morr, Indus Highway at some distance near Link-Road Baig Chowk, they saw that four unknown accused persons by encircling son of the complainant, were attempting to snatch the above-said motorcycle from him. On seeing the complainant and other PWs, son of the complainant offered resistance to said accused persons and during the scuffle, a fire shot made by one of the accused hit at the head of Muhammad Shehzad, who died at the spot whereas the accused after taking above-said motorcycle, made good their escape.
4. On receipt of information regarding the occurrence, Abdul Ghaffar, S.I. (PW:11) along with other police officials reached at the place of occurrence where he corded statement of the complainant (Exh.PB/1) and transmitted it to Police Station for registration of formal FIR. Thereafter Investigating Officer prepared injury statement (Exh.PK/3), drafted inquest report (Exh.PK/4) and dispatched the dead body to mortuary through Mukhtiar Hussain 41/C (PW-5). From the spot, Investigating Officer collected one crime empty of pistol .30-bore (P-8) vide recovery memo Exh.PJ. He also secured blood stained earth (Exh.PH) and prepared rough site plan of the place of occurrence (Exh.PL). After postmortem examination, last worn clothes of the deceased i.e. qameez (P-1) and shalwar (P-2) were produced before the Investigating Officer, which were secured vide recovery memo Exh.PC.
Thereafter investigation was entrusted to Ghulam Akbar, S.I. (PW-13) and on his direction and pointing out of the PWs, Muhammad Munir Patwari (PW-1) prepared scaled site plan of the place of occurrence (Exh.PA). On 20.03.2017, complainant through supplementary statement nominated the appellant in this case. Subsequently investigation was entrusted to Munir Ahmed, S.I. (PW-12), who on 20.10.2017 arrested the appellant along with Muhammad Mujahid accused (since P.0). On 02.11.2017 brother of the appellant produced motorcycle CD-70 bearing registration No.7748/DGL (P-3) allegedly used by the appellant during the occurrence, which was taken into possession vide recovery memo Exh.PD. During the course of interrogation, in pursuance of his disclosure, on 03.11.2017, appellant led to the recovery of pistol .30-bore (P-4) along with three live bullets (P-5/1- 3), which were taken into possession vide recovery memo Exh.PE. Investigating Officer deposited the case property with Moharrir Malkhana for safe custody. On 22.12.2017, Investigating Officer arrested Fiaz alias Fazla co-accused (since P.O.) who during the course interrogation in pursuance of disclosure on 04.01.2018 led to the recovery of pistol .30-bore (P-7) along with four live bullets (P- 8/1-4) and snatched motorcycle bearing registration No.3860/DGM (P-6), which were taken into possession vide recovery memo Exh.PG. During course of investigation, having found the appellant and his co-accused guilty, Investigating Officer submitted report under section 173, Cr.P.C. by placing their names in column No.3.
5. After submission of challan, learned trial court formally indicted the appellant and his co- accused (since P.Os), to which they pleaded not guilty and claimed trial. Prosecution, in order to establish its case produced as many as thirteen (13) prosecution witnesses.
Ocular account of the prosecution case consists of the statements of Ghulam Fareed, complainant (PW-6) and Muhammad Ramzan (PW-7). Before Muhammad Ibrahim (PW-8) and PW-6 and PW-7, father of the appellant namely Muhammad Umer admitted the guilt of appellant. Investigation of this case was conducted by Abdul Ghaffar, S.I. (PW-11), Munir Ahmed, S.I. (PW-12) and Ghulam Akbar S.I. (PW-13). Dr. Muhammad Junaid Asghar (PW-9) conducted postmortem examination over the dead body of deceased Muhammad Shehzad. Remaining witnesses, more or less, are formal in nature.
6. After completion of prosecution evidence, statement of the appellant as required under section 342, Cr.P.C. was recorded by the learned trial court in which he maintained his innocence and pleaded false implication in the case. Upon completion of the trial, learned trial court found the case against the appellant to have been proved beyond shadow of reasonable doubt and, thus, convicted and sentenced him as mentioned and detailed above.
7. Arguments heard, record perused.
8. Prosecution case mainly hinges upon ocular account regarding involvement of appellant, disclosure made by father of appellant, medical evidence, recovery of motor-cycle allegedly used in occurrence and recovery of Pistol allegedly used by the appellant during the occurrence. We will re-appraise and re-analyze the above pieces of prosecution evidence one by one, so as to assess whether learned trial court was justified to hold that case against appellant is proved beyond shadow of reasonable doubt and he was rightly convicted and sentenced.
Ocular account and disclosure of Father of appellant
9. As far as ocular account of prosecution regarding involvement of appellant is concerned, same has been advanced through the statements of Ghulam Fareed (PW-6) and Muhammad Ramzan (PW-7). Perusal of the record reveals that assailants were neither named in the crime report nor their facial features, ages and physiques were mentioned therein and it was also not contended by the complainant and prosecution witnesses that they can identify the assailants. Whole prosecution story against the appellant rests upon the alleged disclosure by the father of appellant before the complainant and prosecution witnesses that his son committed the occurrence in question with the help of other co-accused. Although prosecution side has termed it as 'extra- judicial confession' on behalf of appellant but in my opinion, this alleged information rendered by father of appellant cannot be termed as 'Extra-Judicial Confession' because confession or extra- judicial confession as the case may be, is always made by the accused himself and not by any other person on his behalf. Extra-judicial confession has been explained by Chief Justice M. Monir in his acclaimed book on Law of Evidence[1], as under: "Extra-Judicial confessions are those which are made by the party elsewhere than before a magistrate or court. Extra judicial confessions are generally those that are made by a party to or before a private individual which includes a Magistrate who is not especially empowered to record confessions under section 164 of the Code of Criminal Procedure or a Magistrate so empowered but receiving the confession at a stage when section 164, Cr. P. C. does not apply."
The rudimentary component of an extra judicial confession is that it should be made by accused himself, therefore, when such disclosure was not made by the appellant himself, his father's statement cannot be termed as extra-judicial confession on his behalf and at the most same may be considered as an information provided by him regarding alleged culprits of instant occurrence.
Further, perusal of statements of complainant Ghulam Fareed PW.6, Muhammad Ramzan (PW.7) and Muhammad Ibrahim (PW.8) transpire that their statements are not corroborating each other's stance regarding alleged information by father of appellant. Complainant Ghulam Farid in his statement as PW.6 stated that on 19.03.2017, he along with Yasin and Muhammad Ramzan were sitting near their Drawing Room (Baithak), when Muhammad Umer, father of appellant, came their and admitted that his son along with his co-accused committed this occurrence and beseeched to pardon him and C also promised to pay compensation to the legal heirs of deceased.
Surprisingly, Muhammad Ramzan (PW.7) has not stated that on. 19.03.2017 complainant was also present with him because in his statement he has stated that on 19.03.2017, he along with Yasin was sitting near his Drawing Room (Baithak) when father of appellant came there. This sole fact has shattered the credibility of whole episode allegedly occurred on 19.03.2017 regarding disclosure of appellant's father and is sufficient to belie the story of prosecution regarding involvement of appellant.
10. This fact is also nullified from the fact that in his statement Muhammad Ramzan (PW.7) categorically stated that in the month of February 2016, when he along with Yasin, was sitting near his Drawing Room (Baithak), grandfather of Javed co-accused came there and told him that instant occurrence was committed by his grandson along with co-accused namely Munir (present appellant), Mujahid and Fayyaz. Astonishingly, said PWs did not report the matter to the local police or complainant, waited for more than a year and it was only after the disclosure of father of appellant that he was nominated in the instant occurrence. It is narrated by Ghulam Akbar S.I./I.O. that, on 22.02,2016, complainant submitted an affidavit before him nominating co-accused Javed by contending that grandfather and uncle of said co-accused had admitted before PW.7 and PW.8 that instant occurrence was committed by Muhammad Javed accused along with his three unknown accused persons. Perusal of record further reveals that it was alleged by PW.13 Ghulam Akbar SI/IO that on 25.06.2016, he was informed by some body that Javed co-accused used to live with Faiz alias Fazla, Munir Ahmad alias Munna and Mujahid, having bad repute. His statement suggests that the appellant was nominated by the complainant side upon the asking of I.O. Further, it also does not attract to a prudent mind that family members of all the alleged accused persons would admit their guilt on two different occasions, one in year 2016 and second in year 2017, before same two PWs i.e. Muhammad Ramzan and Yasin and at the same place i.e. near their drawing room (Baithak), therefore, this whole episode looks like concoction and postscript. All these facts and circumstances, material discrepancies in the statements of prosecution witnesses regarding alleged disclosure of guilt of appellant and his co-accused by their family members and nomination of appellant in the instant case seems highly skeptical.
11. There is another crucial aspect of the case which cannot be overlooked. First Information Report was registered against the four unknown accused persons without citing their descriptions. No identification parade was held in this case which is a must in such like cases to establish the identity of unknown accused. Identifying the accused standing in the dock is not satisfactory and desirable. Identity of the accused could not be proved and said aspect of the case-proved a clincher to demolish the prosecution case. It is a trite law that where the accused are mentioned as unknown in the crime report, their identification parade must be conducted to establish their identity.[2] Medical evidence
12. As far as medical evidence in this case is concerned, although it confirmed the version of the prosecution regarding receiving of firearm injury by the deceased, weapon used, time of death of deceased but admittedly in the crime report no specific role was ascribed to the appellant. Further, while making statement during the course of trial, the complainant, in categorical terms, stated that it was Fayyaz alias Fazla co-accused (since P.0), who made a bullet shot upon the deceased.
As no injury was attributed to the appellant, medical evidence qua the role of appellant is inconsequential. Even otherwise, medical evidence neither itself proves involvement of an accused in the commission of an offence nor establishes his culpability. It is confirmatory in nature and may confirm the ocular evidence with regard to the seat of injury, nature of injury, kind of weapon used in the occurrence and duration between injury and death etc., but such evidence cannot connect the accused with the commission of crime. Where ocular evidence is not worthy of reliance, medical evidence is of no avail to prosecution case.[3] Recoveries
13. As far as recovery of motorcycle allegedly used in the instant occurrence is concerned, perusal of record establishes that said motorcycle was not got recovered by the appellant himself in pursuance of any disclosure made by him rather it is alleged by the complainant that said motorcycle bearing No.7748/DGL CD/70 Honda made, was produced by the brother of appellant namely Tanveer by contending that said motorcycle was used by the appellant during the occurrence, thus such recovery is nullity in the eye of law having no probative value. Article 40 of Qanun-e-Shahadat Order, 1984 (QSO) deals with such kind of recoveries. Though Article 39, QSO provides that confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall not be proved against such person but Article 40, QSO provides an exception to this rule. Before proceeding further, it will be advantageous to have a bird eye view of Article 40, QSO reproduced infra: "40. How much of information received from accused may be proved.--When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Rational behind this rule, provided under Article 40, QSO, is based on the principle that if a disclosure is made by the accused while in police custody, and same is substantiated by discovery of any subsequent fact pursuant to such disclosure made by that accused, truthfulness of such statement/disclosure would be established to the extent of such discovery. Recovery or discovery of any such fact or object should be pursuant to a disclosure made by an accused, while under custody of police and not by any other person on his behalf. This view is fortified by the decision of august Supreme Court in Mst. Askar Jan and others case[4], wherein august Court of this country, after exhaustively discussing scope of Article 40 QSO, 1984 (QSO) held that: "9. ...A perusal of above Article reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order. Secondly, it is founded on the principle that if the statement or information of the accused amounts to confession or otherwise is supported by the discovery of a fact it may be presumed to be true and not to have been extracted. It comes into operation only (i) if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody; and (ii) if the information relates distinctly to the fact discovered."
Therefore, in order to invoke Article 40 QSO firstly there must be disclosure of an accused in police custody and secondly such disclosure leads to discovery of a new fact which was in exclusive knowledge of that accused. In Bodh Raj alias Bodha and others case[5], Indian Supreme Court categorically held that any such recovery would be admissible in evidence only when same is discovered pursuant to the disclosure made by an accused person in police custody. Similarly, in Sahadevan and another case[6], Indian Supreme Court reiterated the essential conditions to make any such recovery during the investigation, admissible under Article 40 (Section 27 of Indian Evidence Act) in following words: "In the case of State of Rajasthan v. Bhup Singh [(1997) 10 SCC 675], this Court observed the following as the -conditions prescribed in Section 27 of the Indian Evidence Act, 1872 for unwrapping the cover of ban against admissibility of statement of accused to police (1) a fact should have been discovered in consequence of the information received from the accused; (2) he should have been accused of an offence; (3) he should have been in the custody of a police officer when he supplied the information; (4) the fact so discovered should have been deposed to by the witness. The Court observed that if these conditions are satisfied, that part of the information given by the accused which led to such recovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence."
14. This Article should be construed as favorably to the accused as possible because of the reason that it provides an exception to the general rule regarding inadmissibility of statement of an accused made while in police custody. Perusal of the record transpires that neither appellant made any disclosure regarding usage of this motorcycle during the occurrence nor this motorcycle was recovered pursuant to any such disclosure rather this fact/information came from the mouth of his brother, hence this piece of evidence is not admissible under Article 40, QSO.
Moreover, neither the details qua the model, colour and registration number of motorbike used by the accused person were provided in crime report nor in the statements of the prosecution witnesses, hence, prosecution hardly can take any benefit out of such recovery.
15. Last piece of evidence relied upon by the prosecution to substantiate its allegation against the appellant is recovery of pistol .30 bore, which was allegedly got recovered by the appellant on 03- 11-2017. Admittedly no firearm injury or shot is attributed to the present appellant as bullet shot which hit at the head of deceases and proved fatal was attributed to co-accused Fayyaz alias Fazla. Further, Report of PFSA (Exh.PS) is also in favor of appellant because it is concluded by the Ballistic expert in its opinion that because of the difference in individual characteristics the cartridge case could not have been fired from the pistol allegedly recovered on the pointing out of appellant. So this piece of evidence is also of no avail to the prosecution to prove its case against the appellant. Even otherwise, mere recovery of crime weapon is of no avail to the prosecution if ocular account is not up to the mark to connect the appellant with the occurrence. Respectful reliance is placed upon the decision of august Court of Pakistan in Muhammad Akram case[7].
16. All the above narrated facts and circumstances when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has failed to bring on record any convincing and reliable evidence/material to prove that it was the appellant, who committed the alleged crime. It is one of the most established propositions of law that a single circumstance creating reasonable doubt is sufficient for acquittal of accused. Numerous dents and doubts are not required in prosecution case for extending benefit of doubt. If a single reasonable doubt is available in prosecution case, accused would be entitled to have benefit of such doubt, not as a matter of grace and concession but as a matter of right.[8]
17. In consequence of the aforementioned discussion, while allowing Crl. Appeal No.898/2019, the conviction and sentence recorded by the learned trial Court vide judgment dated 26.08.2019 is set aside and the appellant is acquitted of the charge, while extending him benefit of doubt. He is directed to be released forthwith if not required in any other case.
18. Murder Reference No.119/2019 forwarded by the learned trial court in terms of Section 374, Cr.P.C. for confirmation of death sentence inflicted upon the convict is answered in negative. Death sentence is not confirmed.
1. Law of Evidence by Chief Justice M. Monir, Volume 1, 78th edition, published by Universal Law Publishing Co. at page 429.
[2]Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.
[3]Naveed Asghar v. The State (PLD 2021 SC 600), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Aslam v. Sabir Hussain (2009 SCMR 985) and Muhammad Sharif and another v. The State (1997 SCMR 866)
4. Mst. Askar Jan and others v. Muhammad Daud and others (2010 SCMR 1604)
[5]5 Bodh Raj alias Bodha and others v. State of Jammu And Kashmir (2002) 8 SCC 45 [6]6 Sahadevan and another v. State of Tamil Nadu (2012) 6 SCC 403
7. Muhammad Akram v. The State (2012 SCMR 440)
8. Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar and another v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State and others (PLD 2019 SC 64), Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), Gul Dast khan v. The State (2009 SCMR 431) and Daniel Body (Muslim name Saifullah) and another v. The State (1992 SCMR 196.)