' Appellants Iftikhar, Sharafat Ali and Niaz Ahmad were tried in case F.I.R. No,46 of 1999, dated 28-2- 1999, registered at Police Station Kacha Khoh under sections 392, 302 and 34, P.P.C. With the allegation of committing Qatl-i-Amd of Zulfiqar son of Muhammad Bakhsh during commission of robbery by using fire-arms in furtherance of their common intention. Peer Akhtar Hussain Bodla, Special Judge, Court No,II (Anti-Terrorism), Multan acquitted them from the charge under section 392, P.P.C. But convicted under section 302(b), P.P.C. Read with section 34, P.P.C. Sentenced to life imprisonment as Ta'zir each and also fine of Rs,10,000 each in default of payment of fine six months'
R.I. Benefit of section 382, Cr.P.C. Was extended to the accused through impugned judgment, dated 23-9-1999 against which they instituted the instant appeal.
2. Brief facts of the case are that on 28-2-1999, at 12-30 p.m., Haqnawaz P.W.9 reported at the Police Station Kacha Khoh that his brother Zulfiqar deceased had gone to Banjari on his Motorcycle No,2345 LD to meet his friend Abdul Rehman. At 8-30 p.m. He was coming on his motorcycle and reached Pull Nehr Mailsi link. Complainant alongwith his brother Muhammad Aslam, uncle Sher Muhammad and one Muhammad Arshad were sitting at his Behni where they heard the fire reports and alarm of his brother Zulfiqar as "Hall Dhohai". He alongwith his brother and uncle Sher Muhammad went to the place where the alarm was coming. When they reached the spot they saw Zulfiqar in pool of blood and motorcycle lying near him. He saw two unknown persons running from the spot in the moonlit night towards north. They followed them but the accused fled away.
Complainant came back at the spot, took his injured brother to Civil Hospital, Kacha Khoh, where he succumbed to the injuries. On the report of P.W.9, aforesaid case was registered against the unknown persons.
3. Javed Iqbal, S.-I., P.W.14 after registration of case proceeded to the Civil Hospital, Kacha Khoh, examined the dead body, prepared inquest report Exh.P.A./2 and statement of injuries Exh.P.A./3.
Dead body was identified by Ahmad Khan and Ashiq Hussain P.Ws. Which was handed over to Tanweer Ahmad/C. P.W.2 for post-mortem examination. After post-mortem examination P.W.2 produced last-worn clothes of deceased, handed over to him by Medical Officer alongwith post- mortem report and other articles i,e, a sealed phial containing two metallic pieces recovered from the dead body of deceased during post-mortem examination. Investigating Officer inspected the place of occurrence, recorded the statement of 9 P.Ws. Took into possession motorcycle of deceased P.6 vide memo. Exh.P.F., secured the blood-stained earth from the place of 'occurrence, put it into sealed parcel and took into possession vide recovery memo. Exh.P.G. He also secured crime-empty of .30 bore pistol, P.5 vide recovery memo. Exh.P.E. And made it into sealed parcel.
Last-worn clothes of deceased were taken into possession vide recovery memo. Exh . P.B.
4. During investigation it transpired that Atta Ullah Khan, P.W.5 and Muhammad Yasin P.W.7 had gone to look after the Mogha as they had to water their land on its turn for Square No,4, when they reached Killa No,25, situated in Chak No,25-A/10-R, they found three persons namely Sharafat Ali, Niaz Ahmad and Iftikhar alias Kali having fire-arms with them. They passed near them in suspicious condition. In the morning Atta Ullah P.W. When heard that Zulfiqar has been killed, he went to Allah Ditta, who is a shareholder of toll tax of Sharafat Ali accused. He informed Allah Ditta that he found Sharafat Ali, Niaz Ahmad and Iftikhar Ahmad alias Kali, in suspicious' condition at night. He requested Allah Ditta to inquire from Sharafat Ali if he had taken part in the murder of Zulfiqar. In his presence, Sharafat Ali accused took Allah Ditta aside and told him that he alongwith his co- accused Iftikhar and Niaz Ahmad in order to snatch motorcycle from Zulfiqar killed him. Accused requested Allah Ditta to extend help to him in this matter.
5. All the three accused were arrested and interrogated. From Iftikhar .12 bore gun P.7 alongwith two live cartridges P.8/1-2 was recovered at the time of his arrest, Sharafat accused led to recovery of .30 bore pistol P.12 alongwith 4 live cartridges P.13/1-4, whereas Niaz Ahmad got recovered revolver .32 bore P.9 alongwith three live bullets P.10/1-3 and an empty P.11 which were taken into possession vide recovery memo. Exhs.P.H., P.J. And P.I. Respectively. The weapons and the empties were sent to the Forensic Science Laboratory for comparison. Investigating Officer found the accused guilty, consequently they were challaned under sections 392 and 302/34, P.P.C. For committing robbery and Qatl-i-Amd of Zulfiqar deceased. The accused pleaded not guilty and claimed trial.
6. Prosecution produced 14 witnesses to prove its case against the accused P.W.1 Dr. Nadeem Ahmad Khan, Medical Officer on 28-2-1999, conducted post-mortem examination on' the dead body of Zulfiqar son of Muhammad Bakhsh and during autopsy he observed as under:-- "The dead body was identified by Sher Muhammad and Muhammad Ilyas. The deceased was a man of 38 years. His eyes and mouth were closed, rigor mortis and post-mortem staining was not present. The dead body was clad in clothes. There were holes corresponding to the injuries in the clothes, which were blood-stained.
Injuries
(1) A fire-arm wound of entry with inverted margins measuring 1.25 c.m. x 1 c.m. x going deep. On the front of the right chest in mid clavicular line 5.5. c.m. Above and medial to right nipple. No burning and charring present.
(2) A fire-arm wound of . Entry with inverted margins measuring 1.5 c.m. x 1.5 c.m. Going deep on the front of right chest 0.5 c.m. Above the injury No,1. There was no charring.
' Scalp, skull and vertebrae were not opened. Thorax walls, ribs and cartridges --- 4th rib on the right side of the front fractured. Two holes on the right side as mentioned earlier were present. A metallic piece removed. Right pleuras, ruptured and full of blood. Right lung ruptured while laryas, tracheae, left lung pericardium and heart and blood vessels were normal. Abdominal peritoneum full of blood. A metallic piece was recovered from peritoneam cavity. Diaphragm ruptured on the right side. Stomach and its contents normal and small amount of semi-digested food present.
Large intestines were normal, and contained faecal matter. Liver ruptured, bladder, normal and empty, while abdominal wall, mouth, pharynx and oesophagus, pancreas, small, intestines and their contents, spleen, both kidneys and organs of generation external and internal were normal, 4th rib on the front of right side fractured as already mentioned.
' The P.W. Opined, after conducting the post-mortem examination that (1) death was caused by injuries Nos.1 and 2 causing hemorrhagic shock which in ordinary course of life was sufficient to cause death. All the injuries were anti-mortem and were caused by fire-arm weapon. The P.W. Also opined that probable time that elapsed between injury and death within half an hour while, between death and post-mortem within two hours. The P.W. After post-mortem examination handed oyer the dead body, last-worn clothes, alongwith police papers, post-mortem report, one sealed phial containing two metallic pieces to the police official. Exh.P.A. Was the post-mortem report which was in his handwriting and bore his signatures while Exh.P.A./1 was the diagram which was also in his hand and bore his signatures.
' The P.W. Also signed on the inquest report Exh.P.2 and injury statement Exh . P. A. /3. "
7. P.W.2 Tanveer Hussain/C escorted the dead body to the Rural Health Centre, Kacha Khoh. After autopsy Medical Officer handed over dead body, police papers, postmortems report and the last- worn clothes of the deceased comprising of one shirt P.1, one vest P.2 one Shalwar P.3 and one Safa P.4 alongwith a sealed phial which he produced before the Investigating Officer, who took them into custody vide recovery memo. Exh.P.B. The recovery memo. Was attested by Sher Muhammad and Ilyas P.Ws.
8. P.W.4 Muhammad Ilyas identified the dead body of Zulfiqar at the time of post-mortem examination. He is also witness of recovery memo. Exh.P.B. Sher Muhammad and other recovery witnesses were given up.
9. Muhammad Ibrahim Tahir, Patwari appeared as P.W.3. He prepared the site plans Exh.P.C., Exh.P.C./1 and Exh.P.C./2.
10. Atta Ullah Khan P.W.5 stated that he and Muhammad Ramzan were present in Square No,4 as they had the Wara Bandi of canal water for the said square. He alongwith Yasin P.W. Went to look after Moghaat 9-30 p.m., when they reached Killa No,25 of Square No,26 of Chak No,25-A/10-R they saw Iftikhar Ali armed with .12 bore gun, Sharafat Ali armed with pistol and Niaz Ahmad armed with revolver who passed near them in suspicious condition. In the morning he heard that Zulfiqar was shot dead. He went to Mehr Allah Ditta, a partner of toll-tax and Sharafat Ali accused and informed him that he had found Sharafat Ali, Niaz Ahmad and Iftikhar in a suspicious condition at night and asked Allah Ditta to inquire from Sharafat Ali as to why he was accompanied by Iftikhar and Niaz Ahmad and further to inquire if he had taken part in the commission of murder of Zulfiqar. Accused Sharafat Ali first avoided to tell the truth but on further insistence of Allah Ditta P.W.6, he took them aside and confessed that he alongwith his co-accused Iftikhar and Niaz Ahmad in order to snatch motorcycle had murdered Zulfiqar. Sharafat Ali accused requested Allah Ditta to come forward and extend his help to save him.
11. Allah Ditta P.W.6 corroborated the statement of P.W.5 and deposed that he is shareholder for the collection of toll-tax alongwith Sharafat Ali for the financial year 1998-99. Attaullah P.W.5 came to him on 1-3-1999 and told that previous night he had seen Sharafat Ali accused alongwith Niaz and Iftikhar in suspicious condition roaming where he was present to irrigate his agricultural land through canal water. He further deposed that P.W.5 told him that he had seen the three accused persons in the Court and out of them Iftikhar was carrying a gun. Atta Ullah Niazi suggested him that Sharafat Ali accused is his shareholder in the business of collecting toll-tax, therefore, he should ask him about the purpose of his movement in the said area at night time in suspected manner. When he asked Sharafat Ali on the proposed lines he firstly tried to avoid the reply but subsequently requested him to help in the matter and then disclosed that Zulfiqar was murdered to snatch his motorcycle by all the three accused. Sharafat Ali confessed that he and Niaz Ahmad had fired at deceased with pistol. Statement of P.W.6 was recorded by the police under section 161, Cr.P.C. Regarding extra-judicial confession of Sharafat Ali made before him and Atta Ullah P.W.5 on 1-3-1999 i,e, next day of the occurrence.
12. Muhammad Yasin, P.W.7 is servant of P.W.S. He was present alongwith him at 10-00 p.m. On 28- 2-1999, when he went alongwith Atta Ullah in the field for irrigation of their land from canal water.
He saw Sharafat Ali; Niaz Ahmad and Iftikhar roaming in suspicious condition, while Iftikhar was carrying .12 bore gun. He disclosed this fact at the arrival of the police at the place of occurrence on the next day.
13. Muhammad Irshad P.W.8 deposed that he was present on his Dera at about 8-30 p.m., when he heard two fire reports and on reaching the place of occurrence he. Saw Zulfiqar lying injured in a pool of blood. He further deposed that he saw two persons running towards south. On the next day, i,e, 1-3-1999, police arrived at the spot and in his presence blood-stained earth was collected, put into a sealed parcel and secured vide memo. Exh.P.B. Signed by him alongwith Muhammad Aslam.
Crime-empty of .30 bore pistol was also collected from the place of occurrence and sealed into parcel taken into possession vide memo. Exh.P.E. Which was signed by him and Muhammad Aslam.
Motorcycle of the deceased was taken into possession in his presence vide recovery memo. Exh.P.F.
14. Haqnawaz P.W.9 is complainant and brother of the deceased. He reiterated the version set up in the F.I.R. Exh.P.G. Lodged by him on 28-2-1999 and signed in token of its correctness.
15. Muhammad Akram P.W.10 is a recovery witness of gun P.7 and the cartridges from the possession of Iftikhar vide recovery memo. Exh. P . H.
16. Muhammad Ashiq P.W.12 is recovery witness of revolver P.9 and the bullets P.10/1-3 alongwith an empty P.11 effected from Niaz Ahmad accused which were taken into possession vide recovery memo. Exh.P.I. This recovery was made on 18-3-1999 and on the same day Sharafat Ali accused while in police custody got recovered .30 bore pistol P.12 alongwith 4 live bullets P.13/1-4 from an iron box lying in his residential room, which was taken into police custody vide recovery memo.
Exh.P.U. And attested by him and by Haji Ahmad Khan. He further deposed that the accused led to the place of occurrence to the police party and pointed out that place of occurrence and admitted their guilt. Haji Ahmad Khan P.W. Was also with him on 19-3-1999. The Investigating Officer prepared memo. Fard Shanakhat of the place of occurrence vide Exh.P.K., which was signed by him and Haji Ahmad Khan.
17. Aman Ullah Khan P.W.13, H.C. Stated that on 1-3-1999, Javed Iqbal S.-I. Handed him over one sealed parcel containing blood-stained earth and the other one parcel containing empty of .30 bore pistol, same were kept in Maal Khana in safe custody. On 19-3-1999, he dispatched through Liaqat Ali/C for their onward transmission to the office of the Chemical Examiner and Forensic Science Laboratory. The parcels so far remained in his custody remained intact.
18. He further deposed that on 24-3-1999, he also handed over to Liaqat Ali/C P.W.11 two sealed parcels one containing revolver .3; bore and pistol .30 bore for their onward transmission to the office of Forensic Science Laboratory. Said parcels were handed over to him by Javed Iqbal, S.-I.
And remained intact and were not tampered with by anyone.
19. Liaqat Ali/C P.W.11 also deposed similarly that on 19-3-1999, Aman Ullah P.W.13 handed over one sealed parcel containing bloodstained earth and the second containing an empty of pistol .30 bore for their onward transmission to the office of Chemical Examiner and Forensic Science Laboratory respectively, which he submitted in the said offices. He also took revolver .32 bore and the pistol .30 bore to the office of Forensic Science Laboratory after they were handed over to him by Aman Ullah P.W.13 on 24-3-1999.
20. Javed Iqbal, S.-I. Investigated this case and appeared as P.W.14. He stated that on 28-2-1999 at 10-30 p.m. Haq Nawaz complainant got his statement recorded which was converted into F.I.R.
Exh.P.G. Same was read over to him and signed by him as token of its correctness. The detail of the investigation conducted by him has been narrated in preceding paras. Therefore, I do not feel it necessary to reproduce the same again.
21. D.D.A. Gave up Muhammad Aslam, Sher Muhammad, Haji Ahmad Khan and Ghulam Jaffar P.Ws.
As unnecessary and tendered in evidence report of Chemical Examiner Exh.P.O., bacteriologist as Exh.P.P. And that of Forensic Science Laboratory as Exh.P.Q. And closed the case.
22. Statements of the accused under section 342, Cr.P.C. Were recorded, wherein they denied the prosecution evidence and pleaded their innocence. They asserted that they had been falsely implicated due to enmity with P. Ws. They also took up the plea that the deceased was a man of bad reputation and was done to death by some unknown persons. The police in connivance with the complainant party wrongly substituted them for the actual culprits of the case, who were not traced out. None of the accused wished to make statement on oath in disproof of the allegations made against them as required under section 340(2), Cr.P.C. Niaz Ahmad accused, however, produced Haider Hussain, S.-I. As D.W.1 and submitted certified copy of School Leaving Certificate of Sharafat Ali accused as Exh.D.E. And certified copy of Warabandi of Mogha No,5300/L of Chak Nos.25, 25-A, 28 and 107/10-R, Tehsil Khanewal as Exh.D.F. And closed the defence evidence.
23. Learned trial Judge relied upon the extra-judicial confession of Sharafat Ali appellant before Atta Ullah P.W.5 and Allah Ditta P.W.6, recoveries and report of Forensic Science Laboratory, convicted all the appellants under section 302(b)134, P.P.C., however, they were acquitted of the charge under section 392, P.P.C.
24. Mr. Tariq Zulfiqar Ahmad Chaudhry, learned counsel for the appellants contends that prosecution miserably failed to prove case against the accused. Atta Ullah P.W.5 had no business to be near the place of occurrence at 9-30 p.m. As his turn of water was to commence after many hours and evidence of P.W.5 and P.W.7 of having seen the accused near the place of occurrence at the relevant time is unbelievable. He had relied upon Warabandi to establish that the turn of water of the appellant was to commence late at night. Similarly the alleged extra-judicial confession made by Sharafat Ali accused before Allah Ditta P.W.6 in presence of Atta Ullah P.W.5 is not corroborated by any other independent evidence and as such is not sufficient to convict the appellant. Evidence of Extra-judicial confession is weak in nature and conviction is not maintainable on the basis of such evidence.
25. Ch. Faqir Muhammad, Advocate for the complainant, on the other hand, submits that Attaullah (P.W.5), Allah Ditta (P.W.6) and Muhammad Yasin (P.W.7) are independent witnesses, they had no relation with the deceased. Their evidence is reliable and sufficient in support of the charge. He has further submitted that empty recovered from the spot matched with the pistol of Sharafat Ali appellant. His extrajudicial confession is corroborated by the recovery of pistol and matching of the recovered empty. Case against Sharafat Ali is proved beyond any reasonable doubt and as such the co-accused are liable under section 34, P.P.C.
26. Learned State Counsel has supported the impugned judgment. .
27. Heard. Record perused.
28. Prosecution evidence consists of extra-judicial confession, recoveries and motive. Motorcycle of the deceased was found lying near the dead body of the deceased. The prosecution story as disclosed by the complainant is that Zulfiqar was murdered to snatch motorcycle from him.
Accused killed Zulfiqar and there was no obstruction in their way to take away his motorcycle.
Leaving his motorcycle at the place of occurrence after killing him shows that the accused have not killed him for the motorcycle. This part of the prosecution version was disbelieved by the trial Court also. I am not persuaded to believe that the deceased was killed for robbery of his motorcycle.
29. Sharafat Ali appellant confessed his guilt in presence of P.W.5 and P.W.6 on next day of occurrence. He was partner in collection of tool-tax with P.W.6. Atta Ullah P.W.5 when informed P.W.6 that he had seen the accused at night in suspicious condition alongwith his co-accused near the place of occurrence. Allah Ditta inquired from the accused if he has killed Zulfiqar deceased, he firstly avoided but subsequently took Allah Ditta and Atta Ullah aside and confessed the guilt. He told them that he had fired one shot on the deceased while the other shot was fired by Niaz. He requested Allah Ditta to extend his support to save him from the consequences of the crime. Allah Ditta and Sharafat Ali are partners in business and he requested him for help expecting a positive role to save him. P.W.5 was also present at the time of extra-judicial confession made by the aforesaid appellant before P.W.6. The occurrence took place during the night of 28th of February, 1999 and next morning accused made the extra-judicial confession P.W.5 and P.W.6 are not hostile C towards Sharafat Ali. They are not related to deceased even and being independent witnesses, their evidence inspires confidence. The contention of the learned defence counsel that P.Ws.5 and 7 were not expected to be in their land at the fateful time as their turn of water was to start after many hours, does not carry much force. It is normal routine that the landowners visit Khals (URDU TEXT) and Moghaas earlier than the turn of their water, therefore, going of said P.Ws. Namely Atta Ullah and Muhammad Yaseen slightly earlier than their turn of water does not belie their statements. Evidence of extra-judicial confession is a weak one but if it is corroborated by other independent sources same can be relied upon.
30. One empty of .30 bore pistol was found at the spot which was taken into possession on 1-3-1999 and sent to Forensic Science Laboratory on 19-3-1999. It remained in the safe custody in Mal Khana as the Constable who had to take it to the Forensic Science Laboratory was on leave for some days. The pistol was recovered from Sharafat Ali on 19-3-1999. It remained in Mal Khana till 24-3- 1999. Both the weapons and empty were separately sent to Laboratory for comparison purposes.
Pistol recovered from Sharafat Ali appellant matched with the empty recovered from the spot.
Recovery of empty, pistol and its matching with the weapon and medical evidence corroborates the extra-judicial confession by the aforesaid appellant. The extra-judicial confession is corroborated by the aforesaid recoveries of weapon and empty and its matching with the weapon clearly prove the case against Sharafat Ali accused. Prosecution successfully proved the case against him beyond any shadow of doubt and as such his conviction is maintained. The appeal to the extent of Sharafat Ali is dismissed.
31. There is no evidence of extra-judicial confession against Niaz Ahmad and Iftikhar appellants.
Extra-judicial confession of their co-accused Sharafat Ali cannot be used against them without corroboration from independent sources. Gun recovered from Iftikhar is of no consequence as no empty of .12 bore gun was found at the spot. He is not named in the F.I.R. There is no other evidence against him except that of Atta Ullah P.W.5 and Muhammad Yasin P.W.7 that they were seen in suspicious condition near the place of occurrence during fateful night. Recovery of .32 bore revolver from Niaz Ahmad does not connect him with the offence. No *empty of .32 bore revolver was found at the place of occurrence. Mere recovery of revolver having a fired empty in its chamber without any positive report from Forensic Science Laboratory to connect him with the commission of offence is not sufficient to prove case against him. He has not made any extra- judicial confession before any P.W. Evidence of P.Ws.5 and 7 without corroboration from any other source cannot be safely relied upon to convict these two appellants. Prosecution has miserably failed to prove case against Iftikhar and Niaz appellants. Their implication is not free from doubt, they are extended the benefit of doubt and acquitted of the charge.
31. Resultantly, appellants Niaz Ahmad and Iftikhar are acquitted, whereas conviction of Sharafat Ali is maintained and his appeal is dismissed.