2002 PLP 316 (YLR)

2. The facts in brief as narrated by Shafaqat Tahira complainant are that she alongwith her daughter Sadaf and son Shoaib arrived at Daska Bus Stop at 6-30 p.m. on 21-12-1997 from Sialkot and then started for their house on foot and as they reached on the bridge of Ganda Nullah, she heard the report of fire and the shriek raised by her son Shoaib and then saw that her son Shoaib was lying on the ground with a bullet injury under his left arm-pit and then Shoaib after few moments breathed his last. Matter was reported to the police.

3. After the receipt of information about the occurrence the local police completed all the necessary proceedings. Then Tahir Majeed, S.-I. visited the spot. He prepared the injury statement of Shoaib Tariq vide memo. Exh.P.J and inquest report Exh. PK. He took the blood-stained earth from the spot vide memo. Exh.P.E. Last worn clothes were also received by him which he took into possession vide memo. Exh.P.B on 24-2-1998 the investigation of the case was transferred to S.H.O., Police Station Daska Sadar namely Tahir Mehmood who recorded the statements of Tariq Rashid, Shafqat Tahira and Arif Rasheed P. Ws. who nominated all the three appellants i.e. Rehmat Ali, Asif Mehmood and Naseer Ahmad. On 30-3-1998 he arrested Rehmat Ali accused and on 2-4-1998 he arrested Asif Mehmood. On 13-4-1998 Rehmat Ali appellant while in Police custody got recovered a pistol P.6 vide memo Exh. P.F. He arrested Naseer Ahmad accused on b-5-1998, thereafter investigation of the case was transferred to DSP, CIA, Sialkot namely Mehmood-ul-Hassan who joined all the three appellants in the investigation and found them guilty. Ultimately challan of the case was prepared and was submitted for trial.

4. The prosecution in order to prove its ease has produced as many as 22 P.Ws. including Investigation Officers, Doctor, eye witnesses and other formal witnesses. After tendering in evidence, report of Chemical Examiner Exh.P.H, report of Serologist Exh.P.O and report of Fire-arm Expert Exh.P.Q. learned S.P.P closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 3-12, Cr.P.C. in which they pleaded not guilty.

5. Learned counsel for the appellants in support of this appeal have submitted that occurrence in this case had taken place on 21-12-1997 at 6-30 p.m. but the eye -witnesses namely Muhammad Aslant and Muhammad Saleem appeared before the police on 11-3-1998 respectively, that the eye-witnesses came to the scene three months enter the occurrence. They submit that names the eye-witnesses were not mentioned in the F.I.R. nor in any Zimni written by any Investigating Officer on 11-3-1998. Add that in fact they were concocted witnesses and they had not come forward at proper time that no reliance can be placed on such type of witnesses. Ch. Muhammad Anwar Bhinder, Advocate for the appellants submits that they at the most can be termed as chance witnesses. One of them Aslam lives ill Chak No. 135, Faisalabad and the other witness namely Muhammad Saleem P.W. 13 as resident of village Gojra and he was Naib court in Lahore. He had not lodged any report in Roznamcha about his leave and also about his departure or arrival as he was a police constable. He even did not inform the police in time. He remained mum for three months and thereafter he became the eye witness. Incidentaly he reached at the Adda and became an eye-witness. He is chance fitness and not a natural witness in this case. His presence is highly doubtful at the spot. Although eye-witness account was there as Muhammad Hussain, Muhammad Mushtaq and Shabbir who used to run business at the spot and had appeared before the Investigation Officer namely Mahmood-ul -Hassan, DSP, P.W. 22 but they were not cited by the prosecution with mala fide intention, that eye-witnesses specially Muhammad Saleem P.W. 13 had stated in his statement at page 57 of the paper book that he knew the accused only from the faces but did not know their names and neither he had told their names. P.W. 14 Muhammad Aslam the other eye-witness of this case has stated at page 68 of the paper book that he knew the accused for the last 2/3 months prior to the occurrence and saw them for the first time in the police lock-up one month after the occurrence and that he did not know the other particulars of the accused/appellants i.e. parentage, caste and their residential addresses, that no Identification Parade had held in this case. Muhammad Aslam had stated that he had told the names of the appellants to Shafqat Tahira complainant on the day of occurrence but in fact the names of the appellants did not come on the police record till 11th March, 1998. Learned counsel for the appellants submits that no reliance can be placed on the testimony of these witnesses. Learned counsel further submits that as far as extra judicial confession is concerned, it is a very weak type of evidence and the same cannot be used for conviction or maintaining the sentence. He submits that Khan Muhammad P. W . had admitted that Azhar Qayyum P. W . before whom confession was made, was closely related to the complainant, that extra judicial confession should have been made voluntarily and truly, that process of extra judicial confession is most unnatural, that the three appellants had made the extra-judicial confession before three witnesses of extra judicial confession namely Azhar Qayyum, Khan Muhammad and Muhammad Akbar P. Ws. separately on different dates, that their statements are full of improvements, that these are full of concoction. Learned counsel submits that in fact no ease is made out against the appellant and the appellants are entitled to acquittal. To support his arguments he has relied upon PLJ 1996 Cr1.LJ. 1364, 1995 SCMR 188, 1992 CMR 398, 1979 SCMR 214, 1971 and 850, NLR 1989 Crl. Cases 292, 1984 SCMR 930, 975 Crl.LJ 1304 and PLD 1960 SC 223.

6. On the other hand learned counsel for the complainant Sh. Muhammad Yaqub, Senior Advocate from Sialkot, Sardar Khurram Latif Khan Khosa and learned State Counsel Malik Muhammad Aslam, submit hat the local police was dishonest from the cry start. The police was partial one anti tad recorded the statement of the complainant and the eye-witnesses in a mutilated form and or that reason they before appearing before the police, had appeared before the Magistrate to get their statements recorded under section 164, Cr.P.C. that the complainant had been making protest against the police officials and specially against Tahir Majeed, A.S.-I., P.W.17 and ultimately the investigation was transferred to Mahmood-ul -Hassan, D.S.P who was examined as P.W.

22. He has also relied upon PLD 1969 Lahore 114, relevant portion is at page 124(c). Adds hat eye-witnesses in this case are trustworthy as they had no ill-will and enmity against the Appellants, that Muhammad Saleem eye witness had stated before the trial Court thx. Hundred of the eye-witnesses were present at the spot, therefore, he did not bother to appear before the police on the day of occurrence. Learned counsel submits that Shafqat Tahira P.W. had stated that she was given the names of the accused by Muhammad Saleem eye-witness on the day of occurrence and she had told the same to the police but the police did not write the same, that there are no discrepancies and if there are any, those are immaterial. Add that no Identification Parade was required in the instant case, that occurrence had taken place at such a place that must have been definitely noticed by the persons present there, that extra-judicial confession is natural one, that the appellant had made extra-judicial confession before three witnesses separately .is these witnesses were known. to the complainant. Though, Khan Muhammad P.W. is related to the complainant but other are independent and natural witnesses, that F.I.R. is an only information which was lodged before the police at 7-30 p.m. on 21-12-1997 while the occurrence had taken place at 6-30 p.m. that Mst. Shafqat Tahira complainant had stated that deceased was 40 feet ahead of her, that according to the site plan the place of occurrence is a very busy place, that Muhammad Akbar P.W./witness of extra-judicial confession had stated that Naseer appellant was his tenant, Khan Muhammad P.W. 10 is Lamberdar of the village while Azhar Qayyum P.W. 11 was a Counciller and that they had no enmity with the appellants, neither they are decoy or stock witnesses. They have also relied upon PLD 1996 SC 305, 1968 SCMR 2669 and 1999 SCMR 2302. They all submit that prosecution has proved its case against the appellants beyond any shadow of doubt.

7. We have heard the learned counsel or the parties and have gone through the record available on the file with them assistance for three days. In the instant case occurrence had taken place on 21-12-1997 at 6-30 p.m. at Lari Adda Daska near Ganda Nullah. Matter was reported to the police in Civil Hospital, Daska at 7-30 p.m. Formal F.I.R was registered on the same day which is Exh.P.H/1 at 7-45 p.m. The distance between the place of occurrence and the police Station was k.m. from the place of occurrence. The deceased in this case is Shoaib Tariq, F.I.R. in this case was lodged by Mst. Shafqat Tahira. None of the accused person was named in the F.I.R. and no description of any accused was also given in the F.I.R. It was stated that the deceased was killed by some unknown persons. In the F.I.R. only Shafqat Tahira complainant, her daughter Sadaf Tariq (not produced) and Muhammad Shoaib Tariq deceased were mentioned. Neither any accused nor any P.W. was mentioned in the F.I.R., no identification Parade was held in this case, that the two so-called eye-witnesses i.e. P.W. 13 and P.W. 14 respectively appeared before the police for the first time on 11-3-1998 after three months with a long inordinate delay without any proper or natural explanation. First of all these two eye-witnesses met Tariq Rashid P.W. 9, father of the deceased and husband of the complainant on 9- 10-3-1998 and appeared before the police on 11-3-1998 and before that there was nothing against accused on record, that present appellants were involved in any way in this case. Muhammad Aslant P.W. is resident of Chak No. 134, District Faisalabad and Muhammad Saleem who was Naib Court to the Magistrate Cantt, Lahore, was resident of village Gojra, 10/12 miles away from the place of occurrence. Place of occurrence was a very busy place and it was situated at Lari Adda and there were many shops near the place of occurrence. There was also a wagon stand. None from those shopkeepers was mentioned in the F.I.R. Even the Khokha/shop of Naseer who was termed as an accused person this case and was running a shop of fruit, is not mentioned in the site plan. Had they seen the occurrence, they could have informed the police. Muhammad Saleem who was the Naib Court had stated that he had come from Lahore but he had not obtained any station leave. He did not inform the police being a police official about the occurrence to the concerned Police Station Le, Police Station Sadar, Daska which was situated at a distance of 1/2 k.m. from the place of occurrence. He even did not narrate this incident to the Magistrate to whom he was attached as Nail Court, nor he told this occurrence to any police officials at Lahore. He remained mum for full three months, how any reliance can be placed on him in a case in which one person has been awarded death sentence while two others have been awarded life imprisonment and 10 years' R.I. each respectively. His conduct is most unnatural one. He seems to be a cooked up witness. His presence at the spot is highly doubtful. His statement cannot be used against the appellants due to the abovesaid reasons. As far as Muhammad Adam is concerned, as mentioned above he is resident of Faisalabad. His statement was also recorded three months after the occurrence and no Identification Parade was held in this case. Muhammad Saleem P.W. had admitted at page 57 of the paper book that he knew the appellants from their faces but did not know their names and other particulars and neither he told their names. Muhammad Saleem P. W.14, Naib Court had stated at page 59 of the paper book that he knew the accused for the last 2/3 months and he saw the accused one month after the occurrence in police lock-up, although the accused persons were arrested in March, April and May, 1998 while the occurrence had taken place on 21-12-1997. He also stated before the trial Court that he did not give other particulars of the accused persons to the Investigating Officer Muhammad Saleem P.W. had stated that Aslam P.W. had told the names of the accused/appellants to Shafqat Tahira, complainant but tile names of the accused are not mentioned in the F.I.R. The F.I.R. was read over to the complainant at the time of its registration and according to Karvai police she signed/thumb-marked the same in token of its correctness. She had stated that F.I.R. was obtained by her husband one month after the occurrence. Even if this position for the sake of argument is accepted, why she or her husband did not lodge any report or application with the higher Police Officers, that though, she had named the accused persons before the police hut the names of the accused persons were not mentioned by the Investigating Officer, Tahira Majeed A.S.-I. in the F.I.R. No inquiry in this regard was conducted by any police officers against Tahira Majeed A.S.-I. Neither he was dismissed from service or suspended by the higher police officers because in our considered view this portion of the statement of Shafqat Tahira before the trial Court was a concocted one. This Court and the Hon'ble Supreme Court had held in different pronouncements that delay in recording the statement of eye-witness even for one day, 5 days, 7 days same was held to ire of no consequence and such statement cannot be relied upon. In this regard PLD 1965 (W.P.) Karachi 76, PLD 1960 (W.P.) Karachi 697; PLD 1960 Supreme Court (P.K.) 223 and PLD 1968 Lahore 49 are relevant on this point. In the instant case were is delay of 3 months on behalf of the eye-witnesses, when they first time appeared before the Investigating Officer, Even the Inductor or driver of the wagon from whose wagon Muhammad Aslam and Muhammad Asleem P.Ws./eye-witnesses had allegedly en the occurrence were neither cited nor produced by the prosecution.

8. It may also be noted here that Asif Mehmood appellant is resident of Sambarial, Naseer Mehmood appellant is resident of Daska and Rehmat Ali is resident of Galotian and the occurrence had been taken place at Adda Ganda Nullah, Daska Road.

9. After appraising the evidence minutely and cautiously, we are of the considered opinion that both these eye witnesses namely Muhammad Aslam and Muhammad Saleem are cooked up witnesses and they were not present at the spot and their statements were fabricated later on. They were even produced by the complainant party before the Magistrate to get their statements recorded under section 164, Cr.P.C. Even that Magistrate was not produced by the prosecution before the trial Court and their statements are full of improvements and contradictions. No reliance can be placed on their testimony. We may also observe here that we are conscious of the facts that a young boy has been murdered but we are also conscious that no innocent person should be sent to gallows unless the prosecution proves its case beyond any shadow of doubt as held by this Court and the Hon'ble Supreme Court of Pakistan.

10. Now we take up the evidence of the witnesses of extra judicial confession namely Khan Muhammad, Muhammad Akbar and Azhar Qayuum examined as P.W. 10, P.W.11 and P.W. 12 respectively. Extra judicial confession as held by this Court, is a very weak type of evidence. It was held in PLD 1971 Lahore 850 titled as Ghulam Muhammad v. The State. It is a weak type of evidence. After closely scrutinizing the same the conviction of the appellant cannot be maintained on this evidence. Khan Muhammad P.W. has admitted that Azhar Qayyum was closely related to the complainant. The story of the prosecution that these three appellants went to these three P.Ws. separately on separate dates to make extra judicial confession. Rehmat Ali appellant who is resident of willage Glotian goes to Khan Muhammad who is resident of Mitranwali, Naseer Mehmood appellant who is resident of Mohallah Daswanda Singh, Street No. 1, Daska City, District Sialkot goes to Muhammad Akbar P.W. 11 who is resident of Thatha Lakhi, District Sialkot while Asif Mehmood appellant who is resident of Sambrial, Road, Subaidar Bazar, Daska, goes to village Gojrah, Tehsil Daska to make confession before Azhar Qayyum. If they had admitted their guilt before these P. Ws. separately then why none of them apprehended the accused and took them to the police. Khan Muhammad P.W. had stated that Azhar Qayyum was closely related to the complainant. In our view, statements of these P.Ws. even extra-judicial confession were not truthful and it was not made voluntarily and i.e. also after three months then the question arises that when there was no evidence against the appellants of any sort about the murder of the deceased, why they would make extra-judicial confession before these P. Ws. Even otherwise these witnesses have made lot of improvements in their statements before the trial Court and those were duly confronted. Conviction cannot be maintained on such type of weak evidence. We even disbelieve the statement of this so called evidence of extra judicial confession.

11. Now we are left with the recovery of pistol on the pointation of Rehmat Ali appellant. It cannot advance the prosecution case because no crime empty was recovered from the spot.

12. After analyzing critically the prosecution evidence, submissions made by the learned counsel for the parties, we are of the considered opinion that prosecution has miserably failed to prove its case against the appellants. In this view of the matter the appeals filed by the appellants are accepted and conviction and sentence awarded to them is set aside and they are acquitted of the charge. Murder Reference is replied in the negative and the death sentence awarded to Rehmat Ali appellant is not confirmed. The appellants be released forthwith if they are not required in any other case. The appeals filed against acquittal and for enhancement of sentence are dismissed. Death sentence awarded to Rehmat Ali appellant by the learned trial Court is not confirmed. H.B.T./R-128/L Appeal accepted.