1. BASHIR A. MUJAHID, J.--- Nazir Ahmad alias Jeera alias King, Irshad Ali and Tariq Ali have challenged judgment dated 21-11-1997 passed by learned Additional Sessions Judge, Gojra, whereby for causing death of Imtiaz Tariq, Nazir Ahmad alias Jeera appellant was convicted under section 302(b), P.P.C. and sentenced to death while Tariq Ali was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. He was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Irshad Ali appellant was convicted under section 302 (c), P.P.C. and sentenced to 10 years' R.I. and a tine of Rs,50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. as compensation.
2. The brief facts of the prosecution case are that Muhammad Ibrahim son of Abdur Rehman P.W.12 got registered F.I.R. No,115 (Exh.P.K.) at Police Station City Gojra on 19-3-1995 at 2-30 p.m. with Muhammad Nawaz Khan,' S.-I. P.W.14, alleging that during the night between 18/19-3-1995. at about 9-45 p.m. Tariq son of Niamat and Rafaqat son of Muhammad Sharif residents of New Plot Gojra came to his house and called Imftiaz Tariq deceased. The complainant came out of the house in response to the bell from Tariq Ali and Rafaqat Ali to enquire about but in the . meantime Imtiaz Tariq, his son came out of the house and accompanied them on his bicycle. During this period Mukhtar Ahmad brother of the complainant P.W..13 also came out of the house. The family members went to sleep and in the morning they found that Imtaiz Tariq: had not returned home, on which the complainant alongwith Tariq Javed, Sarfraz Tariq, Mukhtar Ahmad went out in search of his son. During this course, an information was received that a dead body of some person is lying in Square No,12. They went there and found Imtiaz Tariq murdered by fire-arm injuries.
3. The motive for the occurrence alleged by the complainant was that Nazir Ahmad alias Jeera appellant had dispute over some -amount he had to pay to the deceased.
4. Muhammad Nawaz Khan, S.-I. P.W. 14 after registration of F.I.R. arrived at the place of occurrence and took dead body of Imtiaz Tariq into possession and prepared the injury statement through memo. Exh.P.A and inquiry report Exh.P.B and dispatched the same for post-mortem examination through Tanvir Hussain, FC. He also took into possession blood-stained earth from the spot through memo. Exh.P.L. He prepared the site plan of the place of occurrence. After .post-mortem examination last-worn clothes of the deceased were produced through memo. Exh.P.F On 26-9- 1995, he arrested Nazir Ahmad alias Jeera, Tariq Javed and Irshad accused. On 29-3-1995, Nazir Ahmad appellant while in police custody led to the recovery of pistol P.4 which was 'taken into possession through memo. Exh.P.H. On the same day, Irshad Ali accused led to the recovery of his blood-stained clothes Qameez P.5 and: Shalwar P.6 which were taken into possession through memo. Exh.P.I and Tariq Javed led to the recovery of bicycle P.7 of deceased which was taken into possession through memo. Exh. P.K. He completed the investigation and submitted the challan.
5. The trial Court framed the charge which was denied by the accused and they claimed trial.
6. During the trial the prosecution examined as many as 14 witnesses to prove the guilt of the accused.
7. The medical evidence was furnished by Dr. Muhammad Aslam, P.W.1, who on 19-3-1995 conducted the post-mortem examination on the dead body of Imtiaz Tariq and found the following injuries:---
(1) Lacerated wound of entrance 1 x 05 c.m. inverted edges, on outer and front of right elbow, there was exit wound which had everted edges, 1 x 1.5 c.m. on the back of right elbow, probe was passing through entry and exit, there was corresponding holes on Qameez.
(2) Lacerated wound of entrance 0.5 x 0.5 c.m. with inverted edges on the front of right shoulder, with exit wound 1 x 0.5 c.m. with everted edges 5 c.m. towards median plane on the front of right shoulder. Probe was passing entrance and exit. Clothes bore corresponding hole.
(3) Lacerated wound of entrance 0.5 x 0.5 t.m. with inverted edges on front and right side of the chest with exist wound 1 x 1 c.m. with everted edges on the right and outer surface of abdomen on its upper part. The clothes bore corresponding hole.
(4) Lacerated wound of entrance 0.5 x 0.5 c.m. with inverted edges on the top of right shoulder with exit wound 1 x 1 c.m. with everted edges 5 c.m. below the axilla of left side of chest with corresponding hole on chest.
(5) Lacerrated wound of entrance 0.5 x 0.5 c.m on left and front of chest, margins were inverted with exist wound 1 x 1 c.m. margins everted on left and front of chest. Clothes bore corresponding holes.
(6) Lacerated wound of entrance 0.5 x 0.5 c.m. with inverted margins on the outer and front of left arm with exit wound 1 x 1 c.m. on the hack of left arm, 16 c.m. from top of left shoulder. There was corresponding hole on clothes.
(7) Grazing wound 4 x 1.5 c.m. muscle deep, tail was towards the back on the right side of abdomen.
(8) Multiple abrasions each measuring 2 x 2 c.m. on front of chest.
8. The ocular account was furnished by Abdur Rashid P.W.7 who was witness of motive of the occurrence stated that Imtiaz and Nazir Ahmad accused had a quarrel with Imtiaz Tariq in his presence where Mukhtar Ahmad P.W. was also present and were separated by the P.W. Nazir Ahmad P.W.8 was the witness of `Wajtaker' who stated that on the day of occurrence at 10-15 p.m. he heard the fire shots and went outside to ease himself but he did not come across the accused persons in Court. He was declared hostile and was cross-examined by the prosecution. Rehmat Ali was examined as P.W.9 who stated that on the day of occurrence at 10 p.m. he was coming from Chak No,10/GB and when he reached near the octroi post New Plot Gojra, he met four persons out of them one was Nazir Ahmad alias Jeera, other was Imtiaz Tariq and he did not know the other two persons. On the following day, he learnt that Imtiaz Tariq has been murdered. He was also declared hostile by the ADA prosecution and was cross-examined. Muhammad Rafiq P.W.10 and Barkat Ali P.W.11 were the witnesses of extra-judicial confession made by the accused before them, but they did not support the prosecution story and were also declared hostile. Muhammad Ibrahim complainant was examined as P.W.12. He supported the version of the F.I.R. and narrated the motive for the occurrence. He had also attested the recovery memo. Exh.P.L whereby bloodstained earth was taken into possession from the spot. Mukhtar Ahmad, brother of the complainant was examined as P.W.13. He supported the complainant by stating that Irshad and Tariq Ali accused called Imtiaz Tariq deceased out of the house and in his presence and of Muhammad Ibrahim, the deceased accompanied the said accused. He further stated that 2/3 days before the occurrence altercation had taken place between Nazir Ahmad accused with deceased over money dispute. He had also identified the dead body at 'the time of post-mortem examination and attested the recovery memos: Exh.P.H whereby Nazir accused led to the recovery of pistol P.4 and Exh.P.I Irshad accused to his blood-stained clothes and Exh.P.J. whereby Tariq accused led to the recovery of bicycle of Imtiaz Tariq deceased. The remaining witnesses are of formal nature and need not to be discussed.
9. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exhs.
10. P. P.P and that of Serologist Exh.P.Q.
11. The statements of the accused were recorded under section 342, Cr.P.0 They denied the allegations and claimed their innocence and false involvement.
12. The trial culminated into conviction or the appellants/accused as mentioned above.
13. Nazir Ahmad alias Jeera accused has challenged his conviction and sentence through Criminal Appeal No,752 of 1997 while Tariq Ali alias Tariq Javed has filed Criminal Appeal No,752 of 1997. against his conviction and sentence. Irshad Ali has filed Criminal Appeal No,761 of 1997 for the same relief. The trial Court has sent up Murder Reference No,301 of 1997 for confirmation of death sentence of Nazir Ahmad under section 374, Cr.P.O All the matters are being decided by this judgment.
14. Learned counsel for the appellant Nazir Ahmad had led the arguments on behalf Of the appellant and while for the other appellants have assisted him. It has been argued that the case of the prosecution is based on circumstantial evidence which according to law is very weak type of evidence and there is no corroboration to the prosecution story from any independent Source; that the recoveries have been planted and are of no evidentiary value: that it was an unseen night occurrence and the appellants have been falsely implicated: that the prosecution has failed to prove its case and the appellants are entitled for acquittal.
15. Conversely, the appeals have been opposed by the learned counsel for the State.
16. Heard. Record perused.
17. Muhammad Ibrahim P.W.12, complainant real brother of Mukhtar Ahmad P.W.13 implicated two persons namely Tariq son of Niamat and Rafaqat Ali son of Muhammad .Siddiq who took Imtiaz Tariq deceased from his house. Their statements cannot be termed as evidence of last seen of the deceased in the company of the accused Nazir Ahmad and Irshad were not nominated by him as accompanying their co-accused. Rehmat Ali P.W.9 has stated that he had seen Nazir Ahmad accused and Imtiaz deceased alongwith two other persons on which, he was declared hostile.
18. Rehmat Ali P.W.9 was witness of last seen evidence who has not implicated Tariq. It is settled law that in case of circumstantial evidence no link in the chain should be missing and all the circumstances must lead to the guilt of the accused as laid down by the Honourable Supreme Court in case reported as Ali Khan v. The State (1999 SCM R 955) and the circumstantial evidence must be wholly incompatible with the innocence of the accused as held in case reported as PLD 1984 SC 445; titled Fayyaz Ahmad v. The State and .1992 SCM R 1047, and conviction can only be passed on circumstantial evidence when it excludes all hypothesis of innocence of the accused. In the instant case Rehmat Ali who implicated only Nazir Ahmad appellant was declared hostile.
19. Likewise, Muhammad Rafiq P.W.10 and Barkat Ali P.W.11 who were introduced by the prosecution to depose against the accused for their extra-judicial confession before them also failed to support the prosecution story and were declared hostile. The evidence of last seen regarding the altercation about the motive between Imtiaz Tariq deceased and Nazir Ahmad accused was brought on record by Abdur Rashid P.W.7 and Mukhtar Ahmad P W.13, but the matter was neither , reported to the police nor Nazir Ahmad accused accompanied the other accused to P.W.11 lmtiaz deceased from his house. No detail of document was given which shows that motive as alleged by the prosecution was not substantiated. Nazir Ahmad P.W.8 was also introduced by the prosecution to depose against the accused as an witness of 'Wajtaker' but he also did not support the prosecution story and was declared hostile. He nominated only Nazir Ahmad. The prosecution has attempted to corroborate the evidence of last seen from the recovery of the incriminating articles effected at the instance of the accused/appellants. The pistol P.4 allegedly got recovered by Nazir Ahmad appellant was from the same field wherefrom the dead body was taken into possession. It is admitted by Muhammad Nawaz Khan P.W. 14 Investigating Officer. That many persons had gathered at the spot before his arrival, then it is very strange that the pistol lying near the dead body was not found on the day when the dead body, was taken into possession and its recovery has been shown on 29-3-1995. The recovery of pistol is also immaterial and of no consequence as no empty was taken into possession from the spot and sent to Forensic 'Science Laboratory for the comparison, therefore, the recovery of pistol cannot corroborate the prosecution case. The recovery of bicycle from Tariq accused does not connect him with the murder of Imtiaz as he was not seen with the deceased by Rehmat Ali P.W. The bicycle was also recovered from an open field while it is also in exclusive possession of Tariq accused. Irshad accused has been led to the recovery of his own blood-stained clothes from the field. How and where he changed his blood- stained clothes and concealed the clothes again in the field is not clear from the prosecution evidence. The prosecution has not brought on record any evidence the how and from whom the complainant received information about the dead body lying in a field. The Investigation Officer admitted in his cross-examination that he had not examined, any person who has furnished this information to the complainant. It is also settled law that one weak type of evidence cannot corroborate other weak piece of evidence, as held by Honourable Supreme Court in case reported as Zia-ur-Rehman v. State (2001 SCM R 1605).
20. After reappraisal of entire evidence brought on record, we feel that the prosecution has failed to establish case against the appellants beyond shadow of doubt and benefit of doubt, is to be extended in favour of the appellants/accused. They are acquitted of the charge by allowing their appeals. Their conviction and sentence is set aside. Death sentence of Nazir Ahmad accused is not confirmed. Appellants Nazir Ahmad and Tariq are directed to be released from the jail if not required to be detained in any other case. Irshad Ahmad is on bail; he and his sureties are absolved of the surety bonds.
21. Murder Reference is answered in the negative.