1. BASHIR A. MUJAHID, J.----Muhammad Abdullah son of Muhammad Noor and Zafar Iqbal and Muhammad Khan have challenged judgment dated 30-6-1997 passed by learned Additional Sessions Judge, Talagang whereby they were convicted under section 302/34, P.P.C. For committing murder of Muhammad Shafiq. Muhammad Abdullah was sentenced to death while Zafar Iqbal was sentenced to imprisonment for life. They were also ordered to pay compensation of Rs.1,00,000 each under section 544-A, Cr.P.C. To the legal heirs of the deceased, failing which they had to undergo six months' S.I. Zafar Iqbal was extended benefit of section 382-B, Cr.P.C.
2. The brief facts of the prosecution case are that F.I.R. No.91 Exh.PG was got recorded by Allah Ditta, P.W.7 at Police Station, Lawa, District Chakwal at 10-00 a. m. On 18-10-1994 alleging therein that during the night 17/18-10-1994 he was sleeping in his house along with his were and children. His son Shafiq (deceased) was sleeping in a separate room. In the morning before leaving the house he went to the room of Shafiq to ask him to offer his Fajr prayers but he was not present. He thought that Shafiq might had gone to offer prayers or to ease himself. He got worried. Thereafter, he learnt that a dead body was lying in 'Nala Dhudhar', on which he alongwith Noor Muhammad, P.W.3 and Muhammad Din went to said Nala and found the dead body of Shafiq lying with fire-arm injuries on different parts of his body. F.I.R. Was recorded on the written application of Allah Ditta P.
3. W.7 by Muhammad Safdar, P.W.10.
4. Muhammad Safdar, A.S.-I., P.W.10, after registration of case arrived at the place of occurrence, took the dead body into possession and prepared the injury statement through memo. Exh.PC and inquest report Exh.PE and despatched the dead body for post-mortem examination through Abdul Qadoos, F.C., P.W.2 and he secured blood--stained earth and blood-stained stone from the place of occurrence through memo. Exh.PI and Exh.PH respectively. He also took into possession a magazine of pistol 30 bore and two live cartridges P.7/1-2 and pistol 30-bore through memo. Exh.PJ from the spot. He also recorded the supplementary statement of the complainant and statements of the prosecution witnesses under section 161, Cr.P.C. On the next day i.e. 19-10-1994, Abdul Qadoos, P.W.2 produced last-worn clothes of the deceased before the Investigating Officer, which were taken into possession through memo. Exh.PB. He got the site plan prepared through Resham Khan Patwari, P.W.5. He arrested Zafar Iqbal accused on 31-10-1994 and sent him in judicial lock-up.
5. Thereafter the investigation was transferred to Raja Munawar Hussain, D.S.P., P.W.11, who arrested Muhammad Abdullah accused on 27-2-1995 and obtained his physical remand on 28-2-1995 and got his confessional statement Exh. PK recorded under section 164, Cr.P.C. On 6-3-1995 through Rai Javed Ahmad, Resident Magistrate P.W.8 and directed the S.H.O. To submit challan. Thereafter the investigation was also conducted from Range Crime.
6. After completion of the investigation challan was submitted. The trial Court framed the charge which was denied by the appellants/accused and they claimed trial. During the trial the prosecution examined as many as 11 witnesses to prove the guilt of the accused.
7. The medical evidence was furnished by Dr. Tariq Pervez, P.W. 4, who on 19-10-1994 at 8-00 a.m.
8. Conducted the post-mortem examination on the dead body of Muhammad Shafiq and found the following injuries on his person:-- (1)A fire-arm entry wound .8 x .8 c.m. With blackening on anterior left chest, 3 c.m. Right to nipple and 5 c.m. From sternum going deep. Corresponding hole present on shirt.
(2) A fire-arm exit wound 1 x 1 c.m. On left upper anterior chest 4 c.m. Above and outer to nipple and 12 c.m. From arm pit going deep. Corresponding cut present on chest.
(3) A fire-arm entry wound 1 x 1 c.m. With blackening on anterior right chest 5 c.m. From sternum and 8 c.m. Below clavicle, corresponding hole present on Qameez. Wound going deep.
(4) An abrasion 1 x 1 c.m. On upper right chest, 3 c.m. Above and outer to injury No.3.
(5) A .8 x .8 c.m. Fire-arm entry wound on left scapular region in the middle, 11 c.m. Below middle of top of shoulder going deep, corresponding hole present on shirt.
(6) A 2 x 2 c.m. Lacerated wound bone deep on right mastoid process of skull.
(7) A cartilege cut in middle of right pinna.
(8) A large 11 x 5 c.m. Swelling on right temple.
(9) A 3 x 1 c.m. Bone deep lacerated wound on right parietal area of skull, 8 c.m. Above ear.
(10) A 1 x 1 c.m. Bone deep lacerated wound on right parietal area of skull, 1 c.m. Above injury No.9.
(11) Four small skin deep stab wounds on right back of skull 3 c.m. Behind ear.
(12) 1 x 1 c.m. Bone deep lacerated wound on right side of back of skull, 12 cm. Behind ear.
(13) A 2 x 1 c.m. Bone deep lacerated wound, 2 c. m. Below injury No. 12.
(14) 1 x 1 abrasion on back of lower part of right index finger bone visible broken.
(15) Multiple small abrasion on back of right middle finger
(16) Small multiple abrasion on back of middle and little finger of left hand.
9. The ocular account was furnished by Allah Ditta, P.W.7. He supported the version of the F.I.R. He also attested the recovery memo. Exhs.PI and PL He stated that upon his return from the police station his son Muhammad Idrees, P.W.6 told him that Zafar Iqbal took away Muhammad Shafiq, deceased about mid-night and he got the supplementary statement recorded with the Investigating Officer at the spot. Noor Muhammad, P.W.3 identified the dead body at the time of post-mortem examination. Muhammad Idrees, P.W.6 was real brother of the deceased and son of the complainant. He stated that during the night between 17/18---10-1994 he was sleeping in a room of his paternal grand-mother as she had gone to village Dharal to see her relative. At mid--night he heard somebody is talking with Muhammad Shafiq, on which he peeped through the window and saw Zafar Iqbal asking his brother to accompany him in connection with some work and Shafiq, deceased went with him. His statement was recorded by the police at the spot and he also informed his father about last. Seen of deceased in the company of Zafar Iqbal accused. Rai Javed Ahmad, Resident Magistrate P.W.8 had recorded the confessional statement Exh.PK of Muhammad Abdullah accused under section 164, Cr.P.C. Produced before him by Raja Munawar, D.S.P. He proved the said statement got recorded in his presence and proved that statement was in his handwriting and signed by him. Muhammad Anayat, P.W.9 was Moharrar of Police Station, Lawa and kept the sealed parcel in safe custody of Police Maalkhana. Muhammad Safdar, P.W.10 and Raja Munawar Hussain, D.S.P., P.W.11 had investigated the case as discussed above.
10. The prosecution evidence was closed by tendering in evidence report of Serologist Exh.PM and that of Chemical Examiner Exh.PN.
11. The statement of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Muhammad Abdullah in reply to Question No. 11 stated as under:-- "The evidence of witnesses is due to relationship with the deceased and also suspicious of this murder and due to my relationship with Zafar Iqbal who was the class-fellow of Muhammad Shafique deceased.
12. While Zafar Iqbal to the same Question No. 12 replied as under:-- "The evidence of the witnesses is due to relationship with the deceased and also suspicious of this murder against me because the deceased was my class---fellow."
13. Muhammad Abdullah, accused appeared in his defence as D.W.1 and stated that he was innocent and D.S.P. Kept him in illegal custody for 1-1/2 months and caused physical torture and produced him before the Magistrate and handed over a written statement to be produced before the Magistrate and the statement under section 164-Cr.P.C. Was not voluntary and of his free will and he has been falsely implicated.
14. The trial culminated into conviction of the appellant as mentioned above. The appellants have filed Criminal Appeal No. 107 of 1997 challenging their conviction and sentence. The complainant has filed Criminal Revision No.91 of 1997 for enhancement of sentence of Zafar Iqbal, accused. While the trial Court has sent up Murder Reference No.147 of 1997 for confirmation of death sentence of Muhammad Abdullah accused under section 374, Cr.P.C. All the matters are outcome of the same judgment, therefore, are being decided by this judgment.
15. Learned counsel for the appellants has argued that-the only evidence against Zafar Iqbal appellant is of last seen by Muhammad Idrees, P.W.6 who is real brother of the deceased and son of the complainant and this fact has not been mentioned in the F.I.R. And has been disclosed in supplementary statement of the complainant recorded by the Investigating Officer and conviction cannot be maintained merely evidence of last seen.
16. As far as the case of Muhammad Abdullah appellant is concerned, his judicial confession was not recorded after observing the legal formalities by the Magistrate. The same was recorded admittedly after more than seven days. He remained in police custody which cannot be relied upon, therefore, the appellants be acquitted of the charge.
17. Conversely, the appeal has been opposed by learned counsel for the complainant and for the State and they supported the impugned judgment. Learned counsel for the complainant has pressed his revision petition for enhancement of sentence of Zafar Iqbal.
18. Heard. Record.
19. None of the appellants were nominated in the F.I.R. It has been admitted by the Investigating Officer that apart from both the appellants other persons were also interrogated in the case. The case of the prosecution is based on circumstantial evidence which can only be made basis for conviction when it excludes all hypothesis of innocence of the accused and no link in the chain is found missing as held in Ch. Barkat Ali v. Major Karam Elahi Zia (1992 SCM R 1047); Muhammad Fayyaz v.
20. The State (PLD 1984 SC 445) and Ali Khan v. The State (1999 SCM R 955). The evidence against Zafar Iqbal is only statement of Muhammad Idrees, P.W.6, who is real brother of the deceased and son of the complainant. He stated that during the night he had seen that Zafar Iqbal, appellant took away Muhammad Shafique deceased but this fact has not been mentioned in the F.I.R. And no sufficient explanation has been furnished for not informing the complainant before he went to the police station for getting the F.I.R. Recorded, and as per law declared by Hon'ble Supreme Court in a case Ghulam Mustafa v. The State (PLD 1991 SC 718), the last seem evidence cannot be considered enough to sustain conviction on murder charge when the witness had some connection with the deceased and independent corroboration is required to rely upon such evidence, but in the instant case no corroboration against Zafar Iqbal appellant is available on the record to the statement of Muhammad Idrees, P.W.6. The last seen evidence has been declared weak type of circumstantial evidence to base conviction by the Hon'ble Supreme Court in case Naqeeb Ullah v. The State (PLD 1978 SC 21). Therefore, we find that no sufficient evidence is available on record to maintain the conviction on the murder charge.
21. As far case of Muhammad Abdullah appellant is concerned, the only evidence against him is his judicial confession Exh.PK made before Rai Javed Ahmad, Resident, Magistrate P.W.8, which was admittedly recorded on 6-3-1995. Raja Munawar Hussain, D. S. P. P. W.11 has admitted that Muhammad Abdullah was arrested on 27-2-1995 and the confessional statement was recorded after seven days of the arrest of Muhammad Abdullah appellant. No satisfactory explanation has been furnished for delayed recording of confessional statement and the accused was also not told that he would not be sent in the police custody by the Magistrate. The confession recorded after 5 days of arrest was not relied upon in case Azeem Shah v. The State (PLJ 1987 Quetta 96) and in case Liaqat Bahadur v. The State (PLD 1987 FSC 43), the judicial confession was also considered doubtful when the accused was not produced before the Magistrate soon after his arrest and the conviction cannot be based on retracted confession alone as held by Hon'ble Supreme Court in case Abdul Latif v. The State (PLD 1999 SC 264).
22. Keeping in view all the circumstances of the instant case and re--appraisal of evidence, we are convinced that the prosecution has failed to establish its case, against the appellants beyond shadow of doubt and by extending benefit of doubt they are acquitted of the charge by accepting their Criminal Appeal No. 107' of 1997 and setting aside their conviction and sentence. Death sentence of Muhammad Abdullah, appellant is not confirmed.
23. Murder Reference is answered in the negative.
24. Criminal Revision No.91 of 1997 filed by the complainant is dismissed having no force.