' Through this judgment I shall dispose of Criminal Appeal No,26 of 1993 and Criminal Revision No,28 of 1993 as both arise out of the same judgment.
2. Hag- Nawaz, appellant has filed this appeal against the judgment dated 31-3-1993 passed by learned Additional Sessions Judge, Rahim Yar Khan, whereby, he was convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life. He was also directed to pay Rs,25,000 as compensation, in default whereof to further undergo S.I. For six months.
3. The prosecution story as 'appearing from the testimony of Habib Ahmad Shah, complainant (P.W.4), is that Altaf Hussain Shah deceased was his brother. On 28-10-1989 at about 5-00 a.m.
Deceased asked him that he alongwith his brother, Ijaz Hussain Shah and Asghar Hussain Shah should accompany him to the cotton fields. He told the deceased that he should proceed to the field and that he alongwith his 'brother Ijaz Hussain Shah and Asghar Hussain Shah would follow him soon. The deceased proceeded to the cotton fields and thereafter complainant, Ijaz Hussain Shah and Asghar Hussain Shah too proceeded towards cotton fields. Altaf Hussain Shah deceased was going about two acres ahead of them and on their way they heard fire report whereupon complainant, Ijaz Hussain Shah and Asghar Hussain Shah rushed towards Altaf Hussain Shah and when they reached the spot they found him lying dead on the ground. He had received fire-arm injury, as a result of which, he died. At that time complainant saw Muhammad Hussain son of Wali Muhammad and Raees Mullan, caste Chachar standing in front of Dera of Yaqub Shah, accused and he called Muhammad Hussain and Raees Mullan to come to them but they declined, therefore, he left Ijaz Hussain Shah and Asghar Hussain Shah with the dead body and proceeded to the police station. He met Nazir Ahmad S.-I./S.H.O. And he produced before him application, Exh.P.A. For registration of case which is signed by him. On his statement case was registered. After 5/6 months of the occurrence he joined investigation of this case and in his presence Yaqub Shah accused while in police custody led to the recovery of ring P.1, wrist-watch P.2, torch P.3 and keys P.5/1 to P.5/8, which were buried under the ground and the same were taken into possession vide memo.
Exh.P.C., signed by him. All these articles belonged to Altaf Hussain Shah, deceased.
4. P.W.13, Nazir Ahmad S.-I./ S.H.O. Is the Investigating Officer in this case. He stated that on 28-10- 1989 complainant produced before him application, Exh.P.A. When he was present at Bus Stand, Khanpur and he sent the same to the police station for formal registration of a case. On the same day he inspected the spot, prepared injury statement Exh.P.E. And inquest report Exh.P.F. He also took into possession blood-stained earth from the place of occurrence vide memo. Exh.P.G. The Investigating Officer sent dead-body to the mortuary for post-mortem examination. After post- mortem examination, Allah Ditta constable produced before him last worn clothes of deceased, Lungi P.6, shirt P.7, Chadar P.8 all blood-stained and the same were taken into possession. He recorded statements of P.Ws. And got prepared site plan, Exh.P.B. From Manzoor Ahmad Patwari.
Thereafter investigation was transferred to Muhammad Hassan, Inspector, C.I.A. After completion of investigation Haq Nawaz, Muhammad Yaqub Shah, Muhammad Ayub Shah, Muhammad Ishaq Shah and Mehboob Shah were challaned.
5. The accused appeared before trial Court and charge under sections 302/148/ 149, P.P.C. Was framed against them to which they pleaded not guilty and claimed trial, therefore, prosecution evidence was recorded. Prosecution examined 13 witnesses in all to prove its case.
6. P.W.1, Abdul Sattar, A.S.-I. Stated that on 28-10-1989 he received complaint, Exh.P.A. And recorded formal F.I.R., Exh.P.A./1. On the same day Nazir Ahmad, S.-I./S.H.O. Handed over to him one sealed parcel said to contain bloodstained earth for safe custody in "Malkhana' which he kept there and on 5-11-1989 he delivered the same to Allah Ditta, constable for onward transmission to the Office of Chemical Examiner intact. Allah Ditta, constable P.W.2 took parcel to the Office of Chemical Examiner. P.W.3 Manzoor Ahmad, Patwari prepared site plans Exh.P.B. And Exh.P.B./1.
7. P.W.4, Habib Ahmad Shah is the complainant in this case and what he stated in his examination- in-chief has already been noticed above. During cross-examination he admitted that case was firstly investigated by Nazir Ahmad, S.-I. He admitted that there was enmity between them and Haq Nawaz, accused on account of dispute of land. A pre-emption suit filed by Haq Nawaz accused against them was still pending in Civil Court. P.W.5, Mahmood Shah made statement regarding extrajudicial confession made by Yaqub Shah, accused. P.W.6, Jamshed Ahmad made Statement regarding extra-judicial confession about Mahboob Shah. P.W.7, Dr. Makhdoom Bisharat Hussain Shah, had conducted post-mortem examination on the dead body of deceased. P.W.8, Muhammad Hussain stated that he heard report of fire, whereupon he ran towards the place of occurrence. He saw five accused (Haq Nawaz, Muhammad Yaqub Shah, Muhammad Ayyub Shah, Muhammad Ishaq Shah and Mahboob Shah) and Haq Nawaz was holding a pistol in his hand while remaining four co-accused were standing near dead body of Altaf Hussain Shah. The accused threatened them with dire consequences. They kept silent because accused had been extending threats to them but after five months it came to their notice that all the accused had been arrested and that they had confessed their guilt before police, therefore, he appeared before the police and made his statement. His statement was not believed by the learned trial Court. Even otherwise, as mentioned above, he made statement after 5 months of the occurrence, therefore, the same has no value. P.W.9, Asghar Hussain Shah stated that deceased, Altaf Hussain Shah was his sister's son. About 1-3/4 years back at about 4-45 a.m. He awakened his brother Ijaz Hussain Shah and Habib Shah and the witness and asked them to accompany him. He alongwith Ijaz Hussain Shah and Habib Shah followed Altaf Hussain Shah. They heard report of fire and stopped for a while but they could not detect as to from which side fire was made. However, when they reached at a distance of about 2-1/2 acres they found the dead body of Altaf Hussain Shah lying there near the Basti of Yaqub Shah with the fire-arm injury on his person. They found that Muhammad Hussain and Mullan Pathan were standing at a distance of one acre from the dead body and they called them but they did not come to them .And went away. He asked Habib Shah to make report to the police whereas he (P.W.) and Ijaz Shah remained with the dead body. He joined the investigation and in his presence Investigating Officer collected blood-stained earth from the place of occurrence.
' The witness stated that five months after the occurrence accused, Haq Nawaz came to him at his `Dera' and made extrajudicial confession before him that on the night of occurrence he alongwith Muhammad Yaqub, Muhammad Ayyub, Muhammad Ishaq and Mahboob Shah, co-accused committed the murder of Altaf Hussain Shah by firing at him with a pistol. He narrated before him that it was he (Haq Nawaz) who fired at Altaf Hussain Shah as a result of which he died whereas his co-accused caught hold of the deceased. The accused also stated that he alongwith his four co- accused had made a plan to commit murder of Altaf Hussain Shah. He also stated that he nourished grudge against deceased because his daughter was engaged with younger brother of deceased but deceased got this engagement cancelled. The accused also stated that he had a dispute with Altaf Hussain Shah regarding a plot and that Muhammad Yaqub, co-accused had abducted Mst. Sughran but she was restored on the intervention of deceased. He stated that accused requested him to effect compromise between him and complainant party and he took him to Lambardar (Haji Ghulam Qadir Shah) at his `Dera' and asked him to narrate all the incident before Haji Ghulam Qadir Shah. He repeated his confessional statement before Lambardar and requested him (Lambardar) to effect compromise but Lambardar refused to help the accused in this regard. During cross-examination he stated that he or Ghulam Qadir P.W. Had not tried to apprehend the accused although they were in a position to apprehend him. P.W. 10, Haji Ghulam Qadir, reiterated the story narrated by P.W.9 in his examination-in-chief. Duringcross- examination he stated that Altaf Hussain Shah deceased was husband of his sister. He had not promised the accused for getting him pardoned from the complainant prior to confessional statement before him. He disclosed before police about the confessional statement of accused on its next day but he did not tell earlier as Habib Shah complainant was not available on the day whet he made confessional statement.
8. P.W.l1, Abdul Hamid joined the investigation and in his presence accused, Haq Nawaz led to the recovery of pistol P.10 alongwith empty cartridge P.11 which was in the chamber and the same were taken into possession vide memo. Exh.P.J. Signed by him. P.W.12, Dur Muhammad is also recovery witness of pistol and empty cartridge. P.W.13, Nazir Ahmad, S.-I./ S.H.O. Is Investigating Officer and what he stated in examination-in-chief has already been noticed above. During cross- examination he stated that he had investigated this case for about 1-1/2 months but complainant did not produce Mullan and Muhammad Hussain before him. He admitted that during said period all relatives of deceased including Abdul Qadir Shah, Ghulam Qadir Shah and others had been joining the investigation. During his investigation, the occurrence proved to be a blind murder and no body came forward to state anything against the present accused. He stated that accused were neither suspected nor involved in this murder case, throughout his investigation. Thereafter prosecution produced report of Chemical Examiner, Exh.P.K., report of Serologist, Exh.P.L. And that of Forensic Science Laboratory Exh.P.M. And closed its case.
9. The accused were examined under section 342, Cr.P.C. Wherein they denied the allegations levelled against them by the prosecution and pleaded their innocence. After hearing the parties, learned trial Court acquitted Muhammad Yaqub Shah, Muhammad Ayyub Shah, Muhammad Ishaq Shah and Mahboob Shah whereas Haq Nawaz was convicted and sentenced as stated above. Now Haq Nawaz has filed Appeal No,26 of 1993 against his conviction whereas Habib Ahmad Shah has filed Criminal Revision No,28 of 1993 for enhancement of sentence of the appellant.
10. I have heard the arguments and perused the record.
11. As per F.I.R., prosecution case is that on 28-10-1989 at about 5-00 a.m. Deceased (Altaf Hussain Shah), Habib Ahmad Shah (complainant), Ijaz Hussain Shah and Asghar Hussain Shah were going towards their cotton fields. The deceased was ahead of others. At that time some body fired, at him as a result of which, he died. During investigation it was found that Haq Nawaz (appellant), Muhammad Yaqub Shah, Muhammad Ayyub Shah, Muhammad Ishaq Shah and Mehboob Shah (since acquitted) had killed Altaf Hussain Shah, deceased. However, Muharr' Yaqub Shah, Muhammad Ayyub Shah, Muhammad Ishaq Shah and Mehboob Shah were acquitted by learned trial Court whereas Haq Nawaz was convicted and sentenced to suffer imprisonment for life.
12. According to prosecution case Haq Nawaz, accused made extra-judicial confession before P.W.9 and P. W.10 that he fired at Altaf Hussain Shah deceased with his pistol, as a result of which, he died and that Muhammad Yaqub, Muhammad Ayyub, Muhammad Ishaq and Mahboob Shah were also with him at the relevant time, and they caught hold of the deceased. P.W.9, Asghar Hussain Shah is real maternal uncle of deceased whereas Haji Ghulam Qadir (P.W.10) is brother-in- law of deceased. As such they are closely related to the deceased. However, they had neither apprehended Haq Nawaz nor produced him before police. As such their conduct is most unnatural, therefore, evidence of extra-judicial confession cannot be relied upon.
13. Admittedly, parties were inimically disposed towards each other before the occurrence. The complainant admitted that Haq Nawaz had filed pre-emption suit against them which was pending even at the time of occurrence. According to prosecution case accused made confession about five months after the occurrence. There is no reason that why accused opted to make extra- judicial confession only before close relatives of deceased especially when there was enmity between the parties. P.W.10, Ghulam Qadir Shah stated that he had not extended promise to accused for pardon from the complainant prior to making confessional statement before him. So the prosecution story does not sound to be natural.
14. P.W.8, Muhammad Hussain made statement that he had witnessed the occurrence but he appeared before police after five months of the occurrence and Iris statement was not believed even by learned trial Court. It shows that prosecution has concocted a story to falsely implicate the accused in this case. This makes prosecution story doubtful.
15. As per prosecution case pistol P.10 was recovered at the instance of Haq Nawaz, accused. At the time of recovery, empty cartridge (P.11) was also found in the chamber of said pistol. However, according to report of Forensic Science Laboratory (Exh.P.M.) nothing could be opined as to whether crime empty had been fired from pistol or not. So recovery of pistol has no value.
16. As mentioned above the prosecution has produced only evidence of extra-judicial confession against Haq Nawaz accused/appellant. The evidence of extra-judicial confession is always considered to be a weak evidence as the same can be easily procured. Reliance can be placed on the case of Sarfraz Khan v. State and 2 others 1996 SCM R 188. Even otherwise, P.W.9 and P.W.10 are closely related to the deceased. The prosecution seeks corroboration from medical evidence to support confession. However, it cannot be a reliable corroboration because it was available when extra-judicial confession was made. Reliance can be placed on the case of Dosa v. The State PLJ 1975 Cr.C. (Lahore)
55. In these circumstances, I find that statements of P.Ws. 9 and 10 are not convincing and confidence-inspiring and the same cannot be believed. As stated earlier, prosecution has produced only evidence of extra judicial-confession against the accused/appellant.
17. Admittedly none had witnessed the occurrence. The Investigating Officer (P.W.13), Nazir Ahmad stated that he found it to be a blind murder. Prosecution examined Muhammad Hussain as P.W.8 and he stated that he had witnessed the occurrence. It shows that prosecution has tried to falsely implicate the accused. It is pertinent to note that statements of material witnesses were recorded by Muhammad Hassan, Inspector (Investigating Officer) and he arrested the accused and completed investigation but he was not examined by prosecution as P.W. It too makes prosecution story doubtful. So it is clear that prosecution has miserably failed to prove its case against Haq Nawaz, accused/appellant.
18. The upshot of the above discussion is that appeal brought by Haq Nawaz is accepted, impugned judgment is set aside and he is accordingly acquitted of the charge preferred against him by the prosecution. He is on bail and is discharged of his bail bonds. As appeal has been accepted, the Criminal Revision No,28 of 1993 brought by complainant has become infructuous.