2020 PLP 111 (YLRN)

MUHAMMAD WAHEED KHAN, J.

This judgment shall dispose of Criminal Appeal No.425-J of 2016/BWP filed by appellant (against his conviction and sentence) and M. R. No. 61 of 2016/BWP forwarded by the learned trial Court for confirmation of death sentence awarded to appellant or otherwise. As both these matters have arisen out of the same judgment dated 05.09.2016 passed by the learned Addl. Sessions Judge, Chishtian in case FIR No.571 dated 08.08.2013 registered under sections 302/ 380/411/201/34, P.P.C. at Police Station City, Tehsil Chishtian, District Bahawal-nagar, whereby appellant was convicted and sentenced as under;-- Under section 302(b), P.P.C. awarded death sentence as Ta'zir on two counts. He was also directed to pay compensation of Rs.2,00,000/- each to the legal heirs of both the deceased Nizam Din and Mst. Gaman Bibi under section 544-A, Cr.P.C. and in its default, he was ordered to suffer six months simple imprisonment.

2. Brief facts as narrated by the complainant Saeed Ahmad, while lodging the FIR are as under;-- "That he is resident of Chak No.273/EB Burewala, his father Nizam Din along with his step mother Mst. Gaman Bibi resides at Street No.04 Nasir Abad and runs a grocery shop; that on 07.08.2013 he along with his younger brother Muhammad Mazhar and son Muhammad Fayyaz came to house of his parents to meet them, he along with his brother and son slept on the roof top whereas his parents slept on their cots in the courtyard; that at about 3/4:00 a.m. (night) he woke up on hearing noise and saw two unknown identifiable persons present in the compound of their house with hatchets, one of them to his father and other to his mother were giving hatchet blows; that he woke up his brother and son who also witnessed the occurrence and on their noise assailants fled away with their hatchets; that first informant and P. Ws. came down stairs and attended their parents who had succumbed to the injuries."

3. Dr. Zubair Ahmad Medical Officer, who conducted the medical examination of deceased Nizam Din on 08.08.2013 at about 9.15 a.m. appeared as PW-1 and found five injuries on person of the deceased and opined that probable time which elapsed between injuries and death was within five minutes and between death and postmortem examination was within eight hours. Whereas Dr. Qurat ul Ain WMO, who conducted postmortem of deceased Mst. Gaman Bibi on 08.08.2013 appeared as PW-11 and found five injuries on person of the deceased and opined that probable time which elapsed between injuries and death was within five minutes and between death and postmortem examination was within eight hours.

4. After registration of the case, investigation was carried out by the police. Accused Muhammad Nadeem was subsequently implicated and on completion of the investigation, report under section 173, Cr.P.C. was submitted before the learned trial Court. Thereafter, learned trial Court after observing codal formalities, framed charge against appellant, which was denied by him, hence, trial commenced.

5. In order to prove its case, prosecution produced as many as fifteen witnesses. Ocular account was furnished by the complainant Saeed Ahmad and Muhammad Fayyaz (eye-witness), who appeared as PW-6 and PW-7 respectively. Whereas witnesses of extra judicial confession i.e. Muhammad Arif and Muhammad Akram appeared as PW-8 and PW-9 respectively. Mehmood Ahmad S.I., Muhammad Iqbal A.S.I. and Akbar Ali S.I., all of them conducted investigation of the case, appeared as PW-13 to PW-15 respectively, whereas remaining PWs were of formal in nature. Thereafter, prosecution closed its evidence by producing certain documentary evidence.

6. After recording the prosecution evidence, appellant was examined under section 342, Cr.P.C., wherein he denied all the allegations levelled against him. He neither opted to appear as his own witness under section 340(2), Cr.P.C., nor produced any evidence in his defence.

7. Learned trial Court after appraisal of the prosecution evidence convicted and sentenced the appellant in the above mentioned terms, hence, this appeal and Murder Reference.

8. In support of the instant appeal learned counsel for the appellant submit that the prosecution has failed to prove its case against the appellant beyond reasonable doubt; that presence of complainant Saeed Ahmad and Muhammad Fayyaz, who are real son and grandson of the deceased Nizam Din, at the crime scene is highly improbable and cannot be comprehended at any stretch of imagination; that the entire story of the prosecution revolves around the statement of the complainant and two other witnesses namely, Mohammed Arif (PW-8) and Mohammad Akram (PW-9) before whom the appellant had allegedly confessed his guilt; that even when the accused was traced out, no test identification parade was held; that the alleged occurrence as stated in the FIR took place on 08.08.2013 at 3/4:00 a.m. and the complainant along with other eye-witness had allegedly seen two persons while inflicting injuries on persons of both the deceased but neither any source of light has been mentioned in the FIR nor description of any of the assailant has been incorporated therein; that Saeed Ahmed complainant (PW-6) has improved his version while giving the evidence before the learned trial court and also dishonestly omitted certain points, so under the circumstances, his testimony is not worth reliance; that the evidence of other PWs who deposed about the extra judicial confession allegedly made by the appellant is also highly doubtful and the same cannot be relied upon to maintain the conviction of the appellant; that the hatchet allegedly recovered from the possession of the appellant is of no help to the prosecution as the same was recovered after two and half months from the date of occurrence and it was shown to be stained with human blood, which story is also unbelievable, as presence of blood on the crime article after such delay is impossible. Lastly submits that by accepting the instant appeal, the appellant be acquitted of the charge.

9. On the other hand, learned Deputy Prosecutor General strongly controverted the arguments advanced by the learned counsel for the appellant and submits that the prosecution has ably proved its case beyond shadow of reasonable doubt; that the appellant had confessed his guilt before two witnesses, namely, Mohammed Arif (PW-8) and Mohammad Akram (PW-9), who are the friends of the complainant Saeed Ahmed (PW-6); that the complainant had also identified the present appellant as one of the accused, who had committed the gruesome act of killing two persons; that the medical evidence also fully supports the version of the prosecution and the recovery of bloodstained hatchet provides ample corroboration to the ocular version and since the prosecution has proved its case up to the hilt against the appellant, hence; instant appeal may be dismissed.

10. We have heard the arguments of learned counsel for the parties and have perused the record with their assistance.

11. In order to substantiate its case, the prosecution has relied upon the statements of Saeed Ahmad complainant (PW-6) and Muhammad Fayyaz (PW-7), who claimed themselves to be the eye-witnesses of the alleged occurrence, the statements of two other PWs, namely, Mohammed Arif (PW-8) and Mohammad Akram (PW-9), who are the witnesses of extra judicial confession made by the appellant, the medical evidence and the evidence of recovery of bloodstained hatchet from the possession of the appellant.

12. As far as the statement of the complainant is concerned, although he is real son of one of the deceased, namely, Nizam Din but admittedly he lived in Burewala, District Vehari, whereas the alleged occurrence took place in Mohalla Nasirabad situated within the territorial jurisdiction of Police Station City Chishtian District Bahawalnagar and his residence is almost about 200 km away from the place of occurrence and no specific reason had been given by him in the FIR to visit the house of his father and step mother on the fateful day and it is just stated by him that he was present in the house of the deceased in order to see his father. While narrating the incident he stated in the FIR that on the fateful night he along with his brother Muhammad Mazhar (not produced) and his son Muhammad Fayyaz came to see his deceased father Nizam Din, who was running a grocery shop and lived in Mohalla Nasirabad. At night, they all went to sleep on rooftop, whereas Nizam Din and his wife Mst. Gaman Bibi were sleeping in the compound of the house. On 07.08.2013 at about 3/4:00 a.m., they heard noise and saw that two unknown persons were giving hatchet blows to his father and his step mother, when they attended to Nizam Din and Mst. Gaman Bibi, both had succumbed to the injuries and accused persons managed to flee away. Whereas, while deposing before the learned trial Court, complainant (PW-6) improved his version regarding the availability of light by stating therein that at the place of occurrence there was a light of bulb. In FIR two unknown persons have been assigned the roles of causing hatchet blows to the deceased persons, i.e. one accused was causing hatchet blows to Nizam Din deceased and the other accused was causing hatchet blows to Gaman Bibi deceased. However, while deposing before the Court the complainant has shifted the whole responsibility for causing the murder of both the deceased upon the shoulder of the present appellant. This stance of the complainant is not only dishonest improvement rather it is somersault from his previous stance which he took during the course of investigation. At one place in examination-in-chief the complainant deposed "accused Nadeem present in the Court is the accused who gave hatchet blows to the deceased persons and other person was accused Rafique son of Gulzar (since not arrested) who is step father of accused Nadeem". At the end he deposed "during investigation other person Muhammad Rafique nominated accused gave 'safai' about his innocence, therefore, I did not proceed against him". These portions of the statement of the complainant are contradictories to each other. The said Rafiq was step father of the appellant but admittedly he had neither been arrested by the police nor associated during the course of investigation. Furthermore, in cross-examination the complainant stated that appellant Nadeem is known to him for about 20/25 years as he used to take tuition from his deceased father. So, the question arises if the complainant had witnessed the occurrence he would have definitely nominated the appellant in the FIR as he was previously known to him but in the FIR two unknown accused are mentioned. From the above discussed statement of the complainant it can safely be concluded that he was not available at the place of occurrence at the relevant time. Moreover, these improvements or omissions on part of the eye-witnesses could be categorized as dishonest improvement. It is settled law by now that when an eye-witness improved his version dishonestly, to strengthen the prosecution case, such portion of his statement is to be discarded out of consideration. The testimony of such witness cannot be safely relied upon to maintain the conviction and sentence of the accused persons. Reliance in this regard may be placed on the cases of "Muhammad Arif v. The State" (2019 SCMR 631), "Abdul Jabbar and another v. The State" (2019 SCMR 129) and "Muhammad Mansha v. The State" (2018 SCMR 772).

13. Another aspect of the case is that the instant FIR had been lodged against two unknown accused persons and later on the present appellant along with his step father Rafique was nominated by the complainant, by giving an application to the SHO concerned, wherein it had been stated that Muhammad Nadeem present appellant had confessed his guilt before his two friends, namely, Muhammad Arif (PW-8) and Muhammad Akram (PW-9). After going through the contents of above said application, which is available on record, we find that no date and time is mentioned on it and it cannot be assessed that how many days after the occurrence, the complainant had moved that application to the SHO concerned and nominated the accused persons including the present appellant.

14. As far as evidence of extra judicial confession allegedly made by the appellant, the prosecution has produced two witnesses, namely, Muhammad Arif (PW-8) and Muhammad Akram (PW-9). According to Muhammad Arif (PW-8), appellant confessed his guilt before them on 10.08.2013 at about 4:00 p.m. at his dera when he was present there along with Muhammad Akram (PW-9). This story introduced by the said PW also seems to be suspicious as both the PWs had not tried to apprehend the accused after he confessed his guilt before them and according to them, they had told about extra judicial confession of the accused to the complainant on the same day, but strange enough, the complainant took the PWs to police station on 12.08.2013 after the delay of further two days. Even otherwise evidence of extra judicial confession is a weak type of evidence and it is settled proposition of law that the same could not be relied upon unless it is corroborated by any independent evidence having its intrinsic worth and other circumstances of the case, which could also fit in within the probability of the case.

15. As far as the medical evidence is concerned, it only establishes the nature and seats of injuries and the weapon used to inflict the same but in any way it does not connect the culpability of the accused. Reliance in this regard may be placed on the judgment passed by the august Supreme Court of Pakistan in case of "Muhammad Saleem v. Shabbir Ahmed and others" (2016 SCMR 1605).

16. The other piece of evidence on which the prosecution has relied upon is the recovery of blood stained hatchet from the possession of the appellant. The alleged occurrence took place on 08.08.2013 and after arrest of the appellant, the weapon of offence i.e. hatchet was allegedly got recovered from him on 30.10.2013, after a delay of more than two and half months and astonishingly the same contained human blood according to the report of Punjab Forensic Science Agency (Ex.PM). It was also not likely that the blood would not disintegrate meanwhile. So under the circumstances, we find that the recovery of blood stained hatchet remained inconsequential in all eventualities and it hardly provides any corroboration to the ocular version. Reliance in this regard may be placed on the case of "Muhammad Jamil v. Muhammad Akram and others" (2009 SCMR 120).

17. There is no cavil to the proposition that the prosecution is supposed to prove its case against the accused beyond reasonable shadow of doubt and if any reasonable doubt arises from the prosecution story, the same shall be resolved in favour of the accused but in the instant case, we find that the prosecution story is replete with number of doubts, so while relying upon the judgments passed by the august Supreme Court of Pakistan in cases of "Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), "Munir Ahmad and another v. The State and others" (2019 SCMR 79), "Muhammad Akram v. The State" (2009 SCMR 230), "Ayub Masih v. The State" (PLD 2002 SC 1048) and "Tariq Pervez v. The State" (1995 SCMR 1345), we reach to an irresistible conclusion that the prosecution remained unable to prove its case against the appellant according to the dictates of law.

18. For the reasons discussed supra, we think that conviction should not be allowed to stand. We, therefore, allow this appeal, set aside the conviction and sentence imposed on the appellant by the learned trial Court and he is acquitted of the charge by extending him benefit of doubt. He is in jail, so, he be released forthwith if not required in any other case. Resultantly, Murder Reference No.61 of 2016 is answered in NEGATIVE and death sentence of the appellant Muhammad Nadeem is NOT CONFIRMED. JK/M-99/L Appeal allowed.