1. ' Muhammad Imtiaz son of Muhammad Yousaf appellant was tried by the learned Additional Sessions Judge, Bhalwal under section 302, P.P.C. In case F.I.R. No,104, dated 7-9-1995 registered at Police Station Minai, Tehsil Bhalwal or commission of murder of Nazar Muhammad and was convicted vide impugned judgment, dated 29-4-1998 and sentenced to imprisonment for life under section 302(b), P.P.C. And was fined Rs,20,000 and in default of payment of fine he was ordered to further undergo 2 years' R.I.
2. ' Brief facts of the prosecution case narrated in the FIR. Exh.P.D. Lodged by Muhammad Saleem complainant P.W.5. Are that Nazar Muhammad father of the complainant during the night between 6/7-9-1995 slept at his Saw Machine in Mohallah Eid Gah Miani .Is usual after taking his supper. Next morning when he did not return home, the complainant along with his mother Sakina Bibi went to the Saw Machine with breakfast at 8 a.m. And found his father lying on a cot wrapped in a warm cloth (Chadder). They removed the Chaddar and found Nazar Muhammad lying dead. The blood had oozed out from his nose and ear. The mouth of the deceased was tied with cloth. On their hue and cry the people of the locality were attracted at the spot and present F.I.R. Was recorded by the S.H.O./S.-I. Amjad Hussain P.W.9 at the Police Station.
3. ' Amjad Hussain P.W.9 after registration of the case arrived at the place of occurrence and took the dead body into possession, prepared the injury statement vide memo. Exh.P.G. And inquest report vide memo. Exh.P.H. And despatched the dead body for conducting the post-mortem examination in the company of Sikandar Hayat, F.C. P.W.4. He took into possession blood-stained pieces of bedding where deceased was lying vide recovery memo. Exh.P.E. On 25-9-1995 he arrested the appellant who while in police custody' led to the recovery of axe P.5. Which was taken into possession vide memo. Exh.P.F. He recorded the statements of the witnesses, completed the investigation and challaned the accused.
4. ' The accused denied the allegation and claimed trial.
5. ' During the trial prosecution examined as many as 9 witnesses to prove the guilt of the accused.
6. Dr. Muhammad Javed Akhtar P.W.1 conducted the post-mortem examination on the dead body of Nazar Muhammad on 7-9-1995 and found the following injuries:----
(1) A lacerated wound bone exposed measuring 4 x 1.5 c.m. Located on the left side of the head on posterior aspect just posterior to the left ear.
(2) A contused swelling measuring 11 x 12 c.m. Located on the left side of the head.
(3) A lacerated wound on the pinna of left ear measuring 4 c.m. Long. Portion of pinna was removed.
(4) A cloth was tightly tied between the upper and lower jaws of mouth. The knot of cloth was present on the posterior aspect of the neck.
7. ' In his opinion the cause of death was exphisyia, resulting from tying of cloth between the jaws of mouth tightly, which resulted in ganggering leading to exphysia.
8. ' Muhammad Saleem complainant was examined as P.W.5. He supported the version of the F.I.R.
9. Muhammad Sharif P.W.6 was examined as P.W.6. He was real brother of the deceased who had identified the dead body at the time of post-mortem examination. He also attested the recovery memo. Of axe P.5. Got recovered from the accused vide memo. Exh.P.F. Noor Muhammad was examined as P.W.7. He is witness of extrajudicial confession. According to him the accused/appellant about 2 years ago at 4 p.m. When he alongwith Muhammad Bashir P.W. Were sitting at his saw machine at Malakwal, came there and made extra-judicial confession before them by stating that he had committed the murder of his father-in-law Nazar Muhammad with an axe at the deceased's saw machine when he was asleep, because the deceased had been committing excess with his sister Shahnaz Bibi. It was further stated by this witness that the accused requested them to ask Muhammad Sharif for condoning the accused. He reported this fact to the police next morning. Muhammad Yousaf was examined as P.W.8 who stated that he was going to village mosque to offer his morning prayer and he had seen the accused coming out of saw machine of the deceased, holding an axe in his hand. This witness furttier stated that since he knew the accused being son-in-law of the deceased, Nazar Muhammad, therefore, he did not enquire anything from him. Amjad Hussain, S.-I. Was examined as P.W.9. He had investigated the case, arrested the accused, effected the recovery, completed the investigation and challaned the accused.
10. ' The prosecution evidence was closed after tendering in evidence the report of Chemical Examiner Exhs. P.H. And P.I and that of Serologist Exh.P.J.
11. ' Towards the end of the trial the accused was examined under section 342, Cr.P.C. He denied the charge and claimed his innocence and false implication due to family dispute with Muhammad .Saleem complainant.
12. ' The trial culminated into conviction of the appellant as mentioned above. He has challenged his conviction and sentence through Criminal Appeal No,377 of 1998 while complainant Muhammad Saleem has filed Criminal Revision No,427 of 1998 for enhancement of sentence. Both these matters are the outcome of one and the same judgment, therefore, these arc being decided by this single judgment.
13. Learned counsel for the appellant has argued that the prosecution case rests on circumstantial evidence i,e, extra-judicial confession allegedly made by appellant before Noor Muhammad P.W.7 who is closely related to the deceased and statement of Muhammad Yousaf P.W.8 who saw the accused/appellant coming out of saw machine at the time of morning prayer following the fateful night. He admitted in his cross-examination that he was pupil of Nazar Muhammad. Both these witnesses arc interested but their statements have not been corroborated from any other independent source. Mere evidence of extra-judicial confession itself is not sufficient to base conviction as the same can be procured easily. The motive alleged by the prosecution has not been proved during the trial; that P.W.7 Noor Muhammad was not person in authority to help the accused for grant of pardon. Therefore, the evidence of these witnesses cannot be relied upon to maintain the conviction. There are clear contradictions between the ocular account and the medical evidence.
14. ' Conversely the appeal has been opposed by the State Counsel who has supported the impugned judgment.
15. ' Heard. Record perused.
16. ' The occurrence took place during the night 6/7-9-1995 but the appellant was arrested on 25-9- 1995. Muhammad Yousaf P.W.8 stated that he saw the appellant coming out of saw machine of the deceased armed with axe early in the morning when he was going to offer his morning (Fajar) prayer but he never disclosed this fact to anyone else during this period. Amjad Hussain. S.-I./I.O.
17. Has admitted that during the investigation prior to the arrest of the appellant he had interrogated many other persons of the locality as the deceased was known to be of bad character and suspicion was shown about many others for commission of his murder. The statement of Muhammad Yousaf who kept mum for a period of more than two weeks, is not believable. Had he seen the appellant as alleged by him he would have disclosed this fact to the Police Officer on the very first day when Investigation Officer arrived at the place of occurrence. The other star witness of this case is Noor Muhammad P.W.7 who claims that the appellant had confessed his guilt before him and Muhammad Bashir P.W. (not examinclj by the prosecution witness during the trial). Noor Muhammad admittedly was not a person in authority and could not help the appellant in any manner and there was no compelling reasons for the appellant to confess his guilt before this witness. He is brother-in-law of Muhammad Sharif, P.W. Who is real brother of the deceased. The Police Station was very near to his saw machine where the alleged confession was made by the appellant, he never tried to apprehend the accused why he let him go away till his arrest on 25-9- 1995. The Hon'ble Supreme Court has held in 1996 SCM R 188 (Sarwar Khan v. State) that extrajudicial confession is a weak type of evidence which can easily be procured when every direct evidence of the crime is not available and the Court while placing reliance on it must use utmost care and caution.
18. After going through the evidence of Noor Muhammad, P.W.7 it does not appear confidence- inspiring and trustworthy, therefore, motive of the occurrence narrated by this witness is also not believable. Shehnaz Bibi was wife of the complainant and he would have been equally annoyed with the deceased. Mere recovery of axe is not sufficient to connect the appellant with the alleged crime of murder.
19. ' After appraisal of the entire evidence I am of the considered view that the prosecution has failed to establish its case against the appellant beyond shadow of doubt and the benefit of doubt is to be extended in favour of the appellant. Resultantly, this appeal is allowed. The conviction and sentence of the appellant is set aside. He is on bail. His surety bonds are discharged.
20. ' Criminal Revision filed by the complainant is dismissed having no force.
21. Appeal allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.