' Rai Muhammad Aslam Javaid, Advocate had lodged the F.I.R., dated 11-12-1987 at 12-30 (noon) in the shape of complaint before Khalid Mukhtar S I. (P.W.) for the murder of his brother Asghar Ali vide Exh.P.A. And formal F.I.R. Exh.P.A/1 was registered at Police Station Garh, District Faisalabad on the same day at 12-30 (noon);
2. Facts in brief as narrated by the complainant are that the complainant was sitting at his Tubewell along with his brother Asghar Ali in the presence of Haji Liaqat Ali, Bahawalsher Lamberdar and Naik Muhammad when Ramzan along with three unknown persons whose description:, have not been given in the F.I.R., came there. They all were armed with 12 bore guns.
They asked his brother Asghar Ali to accompany them in order to hunt wild boars. Asghar Ali deceased also took away the licenced gun of the complainant and they went on a Tractor bearing registration No,FDK-4539. After one hour the complainant also went towards his house situated in Chak No,621--G.B. On 11-12-1987 at 10 a.m. Complainant came to his Tube well and asked his tenant Yousaf whether Asghar Ali had returned or not. Yousaf replied in negative. Complainant went out to search out his brother Asghar Ali and after reaching near river Ravi he saw dead body of his brother Asghar Ali. The Tractor was also standing near the dead body. It was further stated that neither his licenced gun was present there nor any person was there. Complainant stated that his brother was killed by the above said four accused persons for unknown reasons. Complainant further stated that he along with P.Ws. Could identify the accused if they were brought before him.
It may also be noted here that appellants were tried by the learned Additional Sessions Judge, Faisalabad who vide his judgment, dated 10-9-1990 awarded life imprisonment to each of them with a fine of Rs,5,000 each or in default one year R.I. They were also directed to pay Rs,5,000 each to the legal heirs of the deceased as compensation under section 544-A Cr.P.C. Or in default six months' R.I. Hence this appeal. This appeal came up for hearing on many dates. Meanwhile the sentences of the appellants were suspended by this Court on 18-5-1995 and 5-7-1995. Two of the appellants namely Mukhtar and Ghafoor are present in Court and are being represented by Mr. Shah Ahmad Baloch, Advocate while Ramzan and Sultan are absent. This Court has issued bailable warrants as also non-bailable warrants of their arrest against them but they remained un served as their whereabouts were not known. On the last date of hearing Mr. S.D. Qureshi, Advocate was appointed to defend Ramzan and Sultan appellants at State expense because they were not appearing before this Court deliberately. Ramzan appellant was arrested on 16-12-1987 and Sultan and Abdul Ghafoor were arrested on 17-12-1987 while Mukhtar appellant was arrested on 5-6-1988.
3. Prosecution in order to prove its case has produced as many as 22 P.Ws. Including Doctor, Investigating Officer and other Prevants persons. Learned D.D.A. After tendering report of Chemical Examiner Exh.P.A.A., report of Serologist Exh.P.BB and report of Fire-Arms Expert Exh.P.CC closed the prosecution evidence. It may also be noted here that identification parade of Abdul Ghafoor, Mukhtar and Sultan was also held. Sultan had made a judicial confession before the learned Magistrate on 17-2-1988 and on 24-2-1988 Abdul Ghafoor and Sultan were identified by the complainant, Haji Liagat Ali, Naik Muhammad and Bahawal Sher. This identification parade was held by Ali Ausat Shah, Investigating Officer. While Mukhtar appellant was identified by the P.Ws. On 5-6-1988. Then there is evidence of extra-judicial confession which was furnished by Balia P.W.17, then there is evidence of recovery of guns on the pointaton of two of the appellants namely Ghafoor and Ramzan. As far as Mukhtar is concerned, on two different dates he got two 12 bore guns recovered. Sultan appellant also got recovered 12 bore gun P.11. There is also evidence of last seen as the prosetaaion states. It was furnished by P. W.12 in whose presence Ramzan and three unknown persons took away his brother Asghar Ali who was killed later on. Then there is evidence of P.W.16 Mumtaz Hussain, who has identified all the four accused on 1-12-1987 at 4 a.m. In the light of Tractor. It may also be noted here that the deceased was not with them at that time.
4. Mr. Shah Ahmad Baloch, Advocate, who is representing Mukhtar and Ghafoor appellants, submits that they were not named in the F.I.R., that their descriptions were also not given in the F.I.R. He submits that complainant in this case is an Advocate and he has falsely implicated the appellants in this case. He further submits that neither before the police nor before the learned trial Court he had furnished any motive that why the appellants have committed the murder of the deceased.
He further submits that medical evidence is in conflict with ocular account. He also submits that except the gun allegedly recovered from Ghafoor none of the crime empty recovered from the spot was matched with the guns allegedly recovered from Ramzan, Sultan and Mukhtar. That the gun which was allegedly taken away by the deceased was never recovered by the Police. He further submits that as far as the judicial confession of Sultan appellant is concerned that is on oath and it is not admissible in evidence. He also submits that identification parade of Mukhtar appellant was held about 6-1/2 months after the occurrence and it is not possible for a person to identify a person to whom he had seen only for 2 or 3 minutes, while identification parade of other appellants took place 2-1/2 months after the occurrence and it is not possible for the P.Ws. To identify them because they were not known to each other prior to the occurrence. Learned counsel for the appellants has also attacked that extra-judicial confession of the appellants before Balia P.W.17 and his uncle Wali Muhammad has no value in the eyes of law. Learned counsel for the appellants submits that there was no reason on the part of the appellant to make confession before Balia as he was neither Lumberdar nor any person of authority. He submits that in fact it was an unwitnessed occurrence and appellants have been falsely implicated in this case by Rai Muhammad Aslam Javaid, Advocate, complainant.
5. Learned counsel for Ramzan and Sultan submits that Ramzan had no family or friendly relations with the complainant. It is not believable that Ramzan who is labourer by profession and theif by conduct, whose conduct is known to the complainant, would ask deceased for boars hunting and deceased without any hesitation would accompany them in the dark of night. There is no evidence on record of Muhammad Yousaf who is full time domestic servant and had heard the noise of gun fire. He has also adopted the arguments of the learned counsel for Mukhtar and Ghafoor appellants.
6. On the other hand learned counsel for the State submits that there is no earthly reason for the complainant and his witnesses to falsely implicate the appellants in this case, in all the three investigations the appellants have been found guilty. He submits that there is evidence of last seen and extra-judicial confession of the appellant, that crime weapon has also been recovered and report of Fire-Arm Expert is positive. He submits that prosecution has proved its case beyond any shadow of doubt and he supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties and also have gone through the record available on the file. In the F.I.R. Only name of lhmzan appellant is mentioned. Neither the names of other co- appellants were stated by complainant nor their descriptions were .Given in the F.I.R., even no motive whatsoever was given in the F.I.R. It may also be noted here that even the complainant who is real brother of Asghar Alt, did not furnish any motive during the course of investigation of this case or before the trial Court. It may also be noted here that it was stated that licenced gun of the complainant was also taken away by the deceased himself and the same was never recovered from the spot or from any of the appellant. As far as the judicial confession made by Sultan is concerned, that was made on oath and it was not admissible under the law and so it cannot be read for conviction of the appellants. As far as extra-judicial confession is concerned, that was only made before Balia, P.W.17 and his uncle Wali Muhammad (not produced) then in cross- examination he had stated that all the appellants remained there and at one and the same time made extra judicial confession before him and his uncle Wali was also present. The relevant lines of his statement in cross-examination are reproduced below for the just decision of the case.
"All the four accused persons had started talking with me together and all the accused had confessed their guilt together at one and the same time."
As Balia P.W.17 was not a lumberdar, nor he was councilor or a man of authority before whom confession was made, it was not admissible in evidence. Moreover, according to him all the accused were empty-handed. Baia could not have any help to the appellants then why they would make extrajudicial confession before him. He was related to the complainant party. Extra-Judicial Confession is also termed as a very weak type of evidence. In cases which are punishable with capital punishment, evidence must come from an unimpeachable source and the same must be of very high quality so that it leads to the only conclusion that it was the accused who had committed the murder of The deceased. In this view of the matter, I do not 'believe the extra- judicial confession furnished by the prosecution. There is no eye-witness in this case.
According to the prosecution case the deceased was taken by the appellants at 5 p.m. On 10-12- 1987, post-mortem examination was conducted on 12-12-1987, at 9-15 a.m. I have gone through the postmortem report, the column of time and death is empty as Doctor has written nothing therein, that no time was given about the death of the deceased Asghar Ali, except the date 11-12-1987 is mentioned. According to the prosecution from all the four appellants, guns very recovered but there is only of fire arm Injury. No body had seen any of the appellant casuing injury. There is only confessional statement of Ramzan in which he had stated that who had caused the injury but this fact gets no support from the report of Fire-Arm Expert because according to that report the crime empties recovered from the the spot were compared with the test empties of 12 bore and it was found that C.2 was fired from the shotgun allegedly recovered D from Ghafoor's gun i,e, G.
2. The other three crime empties were never matched with guns of any of the appellant. As far as identification parade is concerned, the identification of two of the appellants was held after 6/7 months after the occurrence. Even the descriptions of the accused were not given in the F.I.R. I think it is impossible for a person to keep in his mind the description of a person to whom he had seen only for 2/3 minutes at time of the occurrence and after a long period of 6/7 months he will be unable to identify him. After having heard the learned counsel for the parties and also going through the record available on file, I am of the opinion that the prosecution has miserably failed to prove its case against the appellants. There are many dents in the prosecution case. In this view of the matter, this appeal is accepted while granting benefit of doubt to the appellants. The conviction and sentence awarded to the appellants by the learned trial Court are hereby set aside.
The appellants are on bail, they are discharged from their bail bonds.