RAJA MUHAMMAD KHURSHID, J.--- Appellant Shafaqat Ali alias Fatta was tried along with Muhammad Amjad on the charge under section 302/34, P.P.C. For the murder of Ghulam Hussain aged about 35 years president of Chak No.321/JB, 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 wed-- lock. That on 18-8-1991 at about 6-30 a.m. Ghulam Nabi 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 Dewan and Headman 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 evidence was available as the occurrence remained unseen. However, the accused namely Shafaqat Ali i.e.. Appellant and Amjad i.e. Acquitted accused were found linked with the occurrence on the basis of last-seen evidence given by Asghar Ali P.W.6 and extra-judicial confession made by both the accused before Muhammad Iqbal P.W.13 and Muhammad Ashraf, P.W.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.s and 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. Exh.P.J.
3. The case 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), P.P.C. And sentenced him to death as Tazir. The appellant was also directed to pay compensation of Rs.20,000 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 the aforesaid 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. Criminal Revision No. 178 of 1992 was filed by Ghulam Rasool complainant for enhancement of compensation whereas another Criminal Revision No.539 of 1992 was filed against the acquittal of Muhammad Amjad accused.
6. We propose to dispose of the above matters 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 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 Ballistic Expert together. The possibility of manufacturing this evidence could not be ruled out particularly when the gun was found with a broken butt without trigger 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 P.W.13 i.e. Muhammad Iqbal and P.W.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 P.W.13 stated that according to accused persons, they had made a programmed 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 Ali 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 P.W.13. Muhammad Ashraf (P.W.11) deposed that Shafaqat Ali confessed before them that they had committed the 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 unseen. Besides that both the witnesses were strangers to the place of occurrence as they resided in a Chak which was 1 /5 miles away 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 act fairly. In response, learned counsel for the complainant 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 tainted evidence relating to extra judicial confession, being itself a 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 mainstay of the prosecution case rests upon the evidence given by Muhammad Iqbal P.W.13 and Muhammad Ashraf P.W.11 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 voluntary-ness 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 confession 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, misuse of words A or infirmity of memory. It is, therefore, said that such confessions must be proved by evidence of very high and unimpeachable character and should be relied upon only when evidence in its support is invulnerable. These confessions would be unreliable 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 untrustworthy.
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 relative of the parties in order to earn a false label of independent witnesses. Secondly, there 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 went to solicit the help of witnesses and thus made confession.
14. The statement of P. W .14 shows that Shafaqat 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 P.Ws. 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 story 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 C Ashraf was not verified by Investigating Officer, though it should have been earnestly undertaken in order to strengthen 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 revolves around the alleged illicit relations between the accused/appellant and the daughter of Sadiq and the Investigating Officer should have 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 also unreliable.
15. Now we come to the last-seen evidence consisting of Asghar Ali P.W.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 17-8-1991. He inquired from the deceased, who was his uncle, as to where he was going to which he replied that he along with accused were going for a stroll.
Thereafter, he preceded to Lahore along with 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 traveled to Lahore in a wagon. Both of them returned to Chak No.321/JB after 3 or 4 days after the burial of the deceased. He is not only related in close degree of the deceased, but is also a chance witness. The matching of gun and empties is also not free from doubt.
Muhammad Ashraf, Constable P.W.7 stated during cross-examination that on 21-8-1991 at about 7- 30 a.m. Ghulam Askari, Moharrir Head Constable handed over to him both the sealed parcels containing blood-stained earth and .12 bore empty cartridge respectively. He got a docket and started for Lahore at 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 28-8-1991. He denied a suggestion that he stayed at Toba 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 .12 bore shot-gun and .12 bore cartridge, which he kept in Malkhana in a safe custody. He handed over both those articles to Zahid Hussain, 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 .12 bore empty cartridge at 2 p.m. And had reached Faisalabad at 5 p.m. And of Lahore at 9 p.m. On 21-8-1991. But according to Ghulam Askari (P.W.8) the sealed parcels of .12 bore shot-gun and 12 bore empty cartridge were given to him by Ghulam Abbas Inspector at evening time on 21-8-1991. If it is so, then the crime-empty and gun remained with the police till at least evening time on 21-8-1991 and were not sent to expert by then. Ghulam Askari P.W.B further stated in cross-examination that at 6 p.m. He had shown the presence, of Muhammad Ashraf Constable P.W.7 at Police Station on that day. The extract from the Roznamcha Exh.D.B. Was admitted to be correct. Thus, Muhammad Ashraf Constable (P.W.7) is belied by the documentary evidence that he had left the police station at 2 p.m. Alongwith the parcels containing .12 bore empty cartridge. Since the shot-gun and the cartridge were with the police, therefore, possibility of manoeuvring the matching of the two cannot be ruled out. Similarly pointation of place of murder by witnesses is also against the provisions 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.W.10. He is close relative of the deceased and according to him the gun was recovered from a Tharr i.e. Heap of chaff along with two live cartridges P.8/1 and 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 Sequare No.38 on the electric line leading from Chak No.321/JB 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 P.W.15 also contradicted Muhammad Ahmad alias Bhutta P.W.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 false evidence in the shape of injury on his person. In this respect, a reference to the evidence of Doctor Muhammad Khalid, P.W.11 will be relevant. He stated that he had examined Shafaqat Ali son of Abdul Ghani on 25-8-1991 at 11 a.m. And found the following injuries on his person:--
(i) A healing lacerated wound 0.5 c. In. x 0.2 c. In. Covered with scab on the back of right hand at the base of right thumb.
(ii) A healing lacerated wound 1 c.m. x 0.5 c.m. Covered with scab on the right palm, 2 c.m. From the base of right thumb.
Both the injuries were simple in nature having caused with blunt weapon within 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 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.215 of 1992 is accordingly decided. The death sentence of Shafaqat Ali alias Fatta is not confirmed.
20. The Criminal Revision No.479 of 1992 for enhancement of compensation and Criminal Revision No.439 of 1992 against acquittal of Muhammad Amjad accused are accordingly dismissed in limine.