JUDGMENT JUDGMENT R.M.KHURSHID, J.--- Appellant Shafaqat Ali alias Fatta was tried alongwith Muhammad Amjad on the charge under Section 302/34 PPC for the murder of Ghulam Hussain aged about 35 years resident of Chak No. 32! .I.B. District Toba Tek Singh. The report about the .Occurrence was lodged by the brother of the deceased namely Ghulam Rasool complainant. It was.-contended'. In the report that the deceased was running grocery shop in the chak. His marriage was solemnized with Mst. Rifat Bibi about ten years prior to the occurrence but no child was born out of the wedlock.
That on 18.8.1991 at about 6/30 A.M. Ghulam Nain informed the complainant that the dead body of the deceased was lying in the sugarcane situated at a distance of one square from the 'Abadi' of Chak. Complainant accompanied by his brother Bashir Ahmad, his father Muhammad Dew an and Head man of village proceeded towards the place of occurrence and found that the deceased was shot dead with two fire shots, one on the right side of the neck and the other on the right upper arm. Complainant further deposed that the deceased had no enmity with any body and that the deceased had gone to the chak for watching television after closing his shop.
2. The police -investigated the case on the lines that no direct ocular ev idence was available as the occurrence remained un-seen. However, the accused namely Shafaqat Ali i.e. Appellant and Ajmad i.e. Acquitted accused were found linked with the occurrence on the basis of last seen evidence given by Asghar Ali PW-6 and extra-judicial confession made by both the accused before Muhammad Iqbal PW-13 and Muhammad Ashraf, PW-14 respectively. Prosecution also relied upon the other circumstantial evidence such as the injury found on the person of the appellant-accused, the recovery of pair of shoes P-5 & 6 and recovery of empties P- 9 from the spot which was found wedded with the gun P-7 recovered from the appellant's possession vide memo. Ex.PJ.
3. The ease was tried by Hafiz Akbar Chughtai, learned Additional Sessions Judge, Toba Tek Singh, who vide his judgment dated 27.6.1992 convicted Shafaqat Ali alias Fatta under Section 302(b) PPC and sentenced him to death, as Tazir. The appellant was also directed to pay compensation of Rs.20.(KK)/- to the heirs of the deceased. In default, the appellant-accused was further sentenced to six months' R.I. The case against the co-accused Muhammad Amjad was not proved, the learned trial judge, therefore, acquitted afore said accused after giving him the benefit of doubt.
4. A reference was made to this Court under section 374 Cr.P.C, for the confirmation of the death sentence awarded to Shafaqat Ali.
5. Crl.R.No.479/1992 was filed by Ghulam Rasool complainant for enhancement of compensation whereas another Crl.R.No. 539/1992 was filed against the acquittal of Muhammad Amjad-accused.
6. We propose to dispose of the above matter vide this judgment.
7. The learned counsel for the appellant contended that the case against , the appellant was highly doubtful because no body had seen the occurrence. The evidence consisting of extra-judicial confession was not only interested but was always considered to be a very weak evidence till it was supported by unimpeachable piece of evidence. It was urged that there was none to support such evidence and as such the case of the prosecution remained highly doubtful. The recovery of the shoes also did not link appellant with the occurrence as the evidence was not only interested but procured by complainant to the police. The matching of the crime empty with the gun recovered from the appellant was also of no significance because both of them were sent to the Ballisic Expert together. The possibility of manufacturing this evidence could not be ruled out particularly when gun was found with a broken butt without triger guard and barrel having been separated from its butt. It was not, therefore, possible to determine that such type of gun could be used to make effective fire to kill a person.
8. The learned counsel for the State as well as complainant stated that extra-judicial confession was a good evidence in the eye of law and could be acted upon safely if there was no doubt about its trustworthiness. In the instant case, the accused voluntarily approached PW-13 i.e. Muhammad Iqbal and PW-14 Muhammad Ashraf and clearly confessed before them that they had murdered Ghulam Hussain. Both the accused requested them to get a compromise effected between the parties after getting pardon from the aggrieved party. While stating the episode of confession PW- 13 stated that according to accused persons, they had made a programme with Ghulam Hussain deceased to meet at railway station. The deceased reached there in accordance with the programme. From there, the deceased was taken to a nearby field via railway track. Shafaqat Ali appellant confessed before the witnesses that he had fired a shot at the deceased and then repeated the same. Amjad accused confessed that he remained with Shafaqat Ali accused throughout and did not allow deceased to escape from the place of occurrence. The motive about the murder was stated by Shafaqat Aik accused that he had relations with the daughter of Sadiq Ali Arain and the deceased used to restrain him from keeping the illicit relations. For that reason he shot him dead. It was urged that this witness was 70 years old and was not expected to tell a lie.
The other witness Muhammad Ashraf was about 60 years of age and as such would not normally involve the accused in a false case. His statement was also in line with the statement of Muhammad Iqbal PW-13. Muhammad Ashraf (PW-14) deposed that Shafaqat Ali confessed before them that they had committed them murder of Ghulam Rasool resident of Chak No.321 J.B.
9. The learned counsel for the appellant assailed the testimony of both these witnesses with great force on the ground that the confession made before them had no value because it was made jointly and that there was no occasion that the accused will go to them for making a confession when the murder was admittedly un-seen. Besides that both the witnesses were strangers to. The place of occurrence as they resided in a Chak which was 4/5 miles from the chak of the accused.
Lastly both the witnesses were inter se related and more closely to the complainant side, though they claimed relationship with the accused persons also but that fact remained unsubstantiated.
10. The learned counsel for the appellant further contended that circumstantial evidence was not worthy of credence because it was collected after deliberation and conscious efforts by the Investigating Agency which also did not att fairly. In response, learned counsel for the complaint contended that evidence relating to extra-judicial confession was supported by recovery of shoes of the deceased, the crime empty and the matching of the gun recovered from the appellant. It was, therefore, urged that the prosecution was successful to prove its case against both the accused.
11. The learned counsel for the appellant further contended that the recoveries in this case were cooked up and had no intrinsic value so as to support a tainted evidence relating to extra-judicial confession, being itself as tainted piece of evidence.
12. We have considered the arguments addressed by the learned counsel from both sides. It is to be seen if the prosecution has been successful to prove its case. The main-stay of the prosecution case rests upon the evidence given by Muhammad Iqbal PW-13 and Muhammad Ashraf PW-14, before whom the appellant and his acquitted accused had made confession. It is well-settled law that the prescribed formalities which aid in ascertainment of the voluntariness of the confession being not available in respect of extra-judicial confession, such confessions have necessarily to be given not that much of weight which is accorded to judicial confession. The extra-judicial confessions are nevertheless admissible in evidence and if the material on record could lead to the conclusion that it had been made voluntarily and was true, its probative value would be the same as that of the one recorded under Section 164 Cr.P.C. However, as a matter of caution and prudence courts would require special material evidence which connects accused to the crime in- question apart from such confession. Such confessions are viewed with extra care and caution to exclude the possibility of some mistake, malice of the witnesses concerned, mis-use of words or infirmity of memory, It is, therefore, said that such confessions must be proved by evidence of very high and un-impeachable character and should be relied upon only when evidence in its support is invulnerable. These confessions would be un-reliable when the words of the maker were not reproduced accurately and it would be hazardous to act upon them unless those words were reproduced by the witnesses correctly. The main thing to see is that extra-judicial confession comes from a reliable source and is in no way contradictory, discrepant and un-trust worthy.
13. In the light of the above observations, the extra-judicial confession made by accused in this case shall have to be examined, it is clear that both the witnesses claim to be related to the parties as well. However, during the cross- examination they could only show their relationship with the complainant side, It is. Thus obvious that such type of witnesses cannot be believed when they try to show themselves as relataive of the parties in order to earn a false label of independent witnesses. Secondly, (here was no reason with the accused persons to go to make confession of blind murder before the persons who were residing in another village. There is nothing on record to show that the accused apprehended danger of arrest by police, so they want to solicit the help-of witnesses and thus made confession.
14. The statement of PW-14 shows that Shafqat Ali made confession before both the witnesses at the same time when his co-accused Muhammad Amjad was also present. This joint confession is not recognized by law nor it would inspire confidence about its truthfulness. The conduct of the aforesaid PWs was also doubtful qua the accused persons. Had the accused actually appeared before them and made disclosure about the murder, they would have detained them for handing over to the police. But this was not done, which shows that the store of extra- judicial confession was concocted later on to link accused with occurrence through the fertile mind of Investigating Officer. The story of motive given by the accused before Muhammad Iqbal and Muhammad Ashraf was not verified by Investigating Officer, thought is should have been earnestly undertaken in order to strength then the chain of circumstances against the accused. The Investigating Officer stated in cross-examination that since Muhammad Sadiq Arain was not concerned, therefore, he had not examined him nor had showed him as a P.W. It is a strange argument. The story of motive revolve around the alleged illicit relations between the accused/appellant and the daughter of Sadiq and the Investigating Officer should be verified this fact in order to strengthen the motive, but he did nothing towards it. We are, therefore, of the view that with a doubtful motive, the whole story of extra-judicial confession in this case is not only weak but un-reliable.
15. Now we come to the last seen evidence consisiting of Asghar Ali PW- 6. He is in Army service, and had come to his village 4 or 5 days prior to the occurrence. He saw the deceased in the company of both the accused at 8 P.M. on 17.8.10__ . He inquired from the deceased, who was his uncle, as to where he was cuing to which he replied that he alongwith accused were going for a stroll. Thereafter, he proceeded to Lahore alongwith his other uncle Muhammad Amin at 3 A.M. And returned from Lahore on 21.8.1991. On his return he learnt about the murder of the deceased. This witness appears to be a chance witness because he is not normally residing in the village but had come from Army on leave. Though he had gone towards railway station but he and his uncle Muhammad Amin travelled to Lahore in a wagon. Both of them returned to chak No.321 J.B. After 3 or 4 days after the burial of-the deceased. He is not only related in close degree to the deceased, but is also a chance witness. The matching of gun and empties is also not free from doubt.
Muhammad Ashraf, Constable PW-7 stated during cross- examination that on 24.8.1991 at about 7.30 A.M. Ghulam Askari, Muharrir-Head Constable handed over to him both the sealed parcels containing blood-stained earth anti l2 bore empty cartridge respectively. He got a docket and started for Lahore tit 2 P.M. Reached Faisalabad at 5 P.M. And Lahore at 9 P.M. On the same day. He allegedly remained there, up to 26.8.1991 and started from Lahore on 27.8,1991 and reached Toba Tek Singh on 2878.1991. He denied a suggestion that he stayed at Tuba Tek Singh during the day and night between.24/25-8-1991. He was. However, belied by Ghulam at evening time Inspector Ghulam Ali gave him a sealed parcel of l2 bore shot gun and l2 bore empty cartridge which he kept in malkhana in a safe custody. He handed over both those articles to Zahid Hassan Constable on 27.8.1991 for taking to the office of Forensic Science Laboratory Lahore. He also added during the cross-examination that on 21.8.1991 at 9.30 P.M. Ghulam Abbas Inspector handed over to him a shot gun for safe custody. If we read statements of these two witnesses together then according to Muhammad Ashraf he had left with the parcel containing l2 bore empty cartridge at 2 P.M. And had reached Faisalabad at 5 P.M. And at Lahore at 9 P.M. On 21.8.1991. But according to Ghulam Askari (PW-8) the sealed parcels of l2 bore shot gun and 12 bore empty cartridge were ''given to him by Ghulam Abbas Inspector at evening time on 24.8.1991. If it is so, then the crime empty and gun remained with the police till at least evening time on 24.8.1991 and were not sent to expert by them.
Ghulam Askari PW-8 further stated in cross-examination that at 6 P.M. He had shown the presence of Muhammad Ashraf Constable PW-7 at police station on that day. The extract from the Roznamcha Ex.DB was admitted to be correct. Thus Muhammad Ashraf Constable /(PW-7) is belied by the documentary evidence that he had left the police station at 2 P.M. Alongwith the parcels containing l2 bore empty cartridge. Since the shot gun and the cartridge were with the police, therefore, possibility of maneuvering the matching of the two cannot be ruled out. Similarly pointation of place of murder by witnesses is also against the provision of Article 40 of the Qanoon-e-Shahadat which provides that only such pointation would be admissible if in pursuance to that something has been recovered. This evidence of pointation of the place of murder by accused was not of any legal value. The recovery of gun P-7 was seen by Muhammad Ahmad P-1 PW-K). He is close relative of the deceased and according to him the gun was recovered from a tharr.i.e. Heap of chaff alongwith two live cartridges P-8/1 & 2 and an empty was also found in the chamber of the gun. The statement of this witness is not reliable, because he is related to the deceased and secondly he contradicted Investigating Officer by saying that poles installed in Killa No. 11 of square No.38 on the electric line leading from Chak No.321 J.B. To Devi Daspura. He also added that there was no crop in the killa nor there was any ' Dhari', Dera or house at that place. The accused allegedly got Recovered gun and cartridges while his both hands were handcuffed. The Investigating Officer while appearing as PW-15 also contradicted Muhammad Ahmad alias Bhutta PW-10 by saying that any electric pole was installed in killa No. 11 of square No.38.
16. A few words about the statement of the accused. He contended that recoveries were planted upon him and that he was falsely implicated by police at the instance of the complainant by putting up false witnesses of extra-judicial confession and recoveries. He also contended that he was arrested on 19.8.1991, but his arrest was shown on 24.8.1991. He was allegedly tortured by Ghulam Abbas Inspector and after lapse of time he was got medically examined to create a false evidence in the shape of injury on his person, In this respect, a reference to the evidence of Doctor Muhammad Khalid, PW-11 will be relevant. He stated that he had examined Shafaqat Ali son of Abdul Ghani on 25.8.1991 at 11:00 A.M. And found the following injuries on his person :-
(i) A healing lacerated wound 0.5 cm x 0.2 cm covered with scab on the back of right hand at the base of right thumb.
(ii) A healing lacerated wound 1 cm x 0.5 cm covered with scab on the right palm, 2 cm from the base of right thumb.
Both the injuries were simple in nature having caused with blunt weapon within a duration of approximately one week. The doctor also admitted during the cross- examination that those injuries could be caused by physical torture. It is thus obvious that origin of those injuries has not been explained and according to Doctor those could be the result of torture. As such, these will not provide any corroboration to the prosecution case. Rather these go in support of accused that he was tortured by police.
17. It follows from above that one of accused namely Muhammad Amjad was acquitted by the learned trial Court on the basis of same evidence which was relied upon to convict the appellant.
The evidence relating to extra-judicial confession could not be dividedly used against one accused for his acquittal and against the other for his conviction. Likewise the recoveries effected from the appellant-accused are also not trustworthy so as to distinguish his case from the acquitted accused.
18. In view of the above discussions, we come to an irresistible conclusion that the prosecution has failed to establish its case against the accused beyond any reasonable doubt. We accordingly accept the appeal and acquit the appellant- accused after giving him the benefit of doubt.
19. The Murder Reference No. 245 of 1992 is accordingly decided. The death sentence of shafaqat Ali alias Fatta is not confirmed.
20. The Crl. Rev. No.479 of 1992 for enhancement of compensation and Crl. Rev. No.439 of 1992 against acquittal of Muhammad Amjad accused are accordingly dismissed in limine.