1996SCMR1588 (PLP)

MUHAMMAD ILYAS, J.

The appeal in hand has been filed by the appellant, Muhammad Yasin with leave of this Court. He was convicted by the Sessions Judge, Islamabad, under section 302 of the Pakistan Penal Code, and sentenced to death. He was also punished with fine. On appeal, a Division Bench of the Lahore High Court, Rawalpindi Bench, upheld his conviction but altered his death sentence to imprisonment for life. He has, therefore, preferred the present appeal against the judgment of the learned Division Bench.

2. Allegations against the appellant are that he killed Atta Muhammad Minhas, Deputy Chief Accountant in the Oil and Gas Development Corporation, in corroboration with Mst. Amina Taqdees (P.W.1) who was wife of the deceased at the time of his murder, in the house of the deceased, by firing at him with a pistol on 9th May, 1986, at about midnight. Mst. Amina Taqdees was also proceeded against alongwith the appellant but in 1989, that is, after nearly three years of the occurrence, she became an approver and made statement saddling the appellant with the responsibility of the murder of her husband. Besides, her statement as an approver, there are the statements of two witnesses, namely, Sheikh Ashiq Ali (P.W.6) and Muhammad Ejaz Khan (P.W.7) to the effect that the appellant confessed; his guilt before them. The appellant's conviction is mainly based on the statement of the approver, namely, Mst. Amina Taqdees and the extra-judicial confession alleged to have been made by the appellant before Sheikh Ashiq Ali and Muhammad Ejaz Khan.

3. According to the approver, the appellant had illicit relations with the wife of his brother whose family lived together with the family of the deceased and, therefore, he (deceased) cared little for her (his own wife) although she (approver) had issues from him (deceased). This created bad blood between the deceased and the approver, which led to the beating of the approver by the deceased. The appellant was a taxi driver and used to take the children of the deceased to school and bring them back. He had the photographs of the approver with him. The deceased asked him to return the photographs but he did not do so. The deceased, therefore, gave him beating. The statement of the approver reveals that as she and the appellant were both annoyed with the deceased, they conspired to take his life. The approver on the night of occurrence, therefore, kept the door of the house open and in this way enabled the appellant to come into the house and kill her husband.

4. The appellant denied the allegations leveled against him. His plea was that the approver, Mst. Amina Taqdees had illicit relations with Muhammad Shafi, Inspector of Police, and that it was the said Muhammad Shafi who had made arrangement for elimination of the deceased and got the appellant falsely involved in this case.

5. Leave to appeal was granted to the appellant by this Court "to consider: (i) whether the testimony of Mst. Amina Taqdees approver was satisfactorily corroborated by the extra judicial confessions furnished by Ch. Ashiq Ali and Muhammad Ejaz P.Ws.; and (ii) whether the medical evidence in this case lent satisfactory corroboration to the approver's testimony".

6. We have carefully gone through the statement of the approver, Mst. Amina Taqdees but have not been impressed thereby. She talked of illicit connections of the deceased with the wife of his brother when they lived together with the deceased and his family. She also made a mention of some objectionable meetings between the deceased and his brother's wife. The brother of the deceased or his wife or any of other person has not made statement supporting the allegation of the approver against her husband in this regard. We are also unable to persuade ourselves to believe that the deceased would be having the aforesaid meetings with his brother's wife in the same house, which was lived in by his family and that of his brother. We have also noticed that the approver made number of material improvements on the statement made by her before the police. It is also a matter of surprise that she thought of becoming an approver after about three years of the occurrence. The pistol which was alleged to have been used in the occurrence and recovered at the instance of the appellant did not match with the empties alleged to have been found at the .spot. Also, no blood had fallen at the place where, in the words of C the approver, her husband had been fired at According to Sheikh Ashiq Ali, before whom the appellant had allegedly confessed his guilt, the appellant had told him that he had illicit relations with the wife of the deceased but this was denied by her. The statement of the approver is also belied by the medical evidence inasmuch as according to her statement, three fires were shot by the appellant to kill the deceased but the post-mortem examination report (Exh. PR) shows that there were injuries of only two shots. on his person. The injuries found on his dead body have been described as follows:-- (1) A wound of entry 1c.m. x 1c.m., burning and blackening is positive on the right lower chest 2c.m., 6c.m. in midline. Corresponding hole in the vest marked and signed. (2) Wound of exit 1 c.m. x 1 c.m. midline between epigastrium and umblicus near the midline. _ (3) Wound of entry 1 c.m. x 1 c.m. near the anterior inferior leiace spine. Burning and tattooing positive. (4) Contused swelling right lateral, aspect of right thigh.

7. Keeping all these factors in view and looking at the general tenor of the statement of the approver, we feel that the approver has not made a truthful statement and has thrown the whole blame on the appellant with a view to saving her skin or that of somebody else.

8. In regard to Sheikh Ashiq Ali and Muhammad Ejaz Khan, before whom the extra judicial confession was allegedly made by the appellant, we have already noted the contradiction in the statement of Sheikh Ashiq Ali and that of the approver with regard to her (approver's) illicit relations with-the appellant. It was also admitted by Sheikh Ashiq Ali that he was involved in a criminal case relating to currency. Moreover, he is facing trial in another criminal case. Muhammad Ejaz Khan admitted that he was involved in case of bribery but was acquitted.. It was stated by Sheikh Ashiq Ali as well as Muhammad Ejaz Khan that they were sitting together at the shop of the former when the appellant made the extra judicial confession. Strangely enough, while it was stated by Sheikh Ashiq Ali that the appellant had, inter alia, stated that he had illicit relations with the approver, Muhammad Ejaz Khan did not say so. Sheikh Ashiq Ali is a shopkeeper while Muhammad Ejaz Khan is .a Clerk in the Cantonment Board, Rawalpindi. As they were not persons in authority, there was hardly any sense in the making of extra judicial confession by the appellant before them. This being the position, we feel that their statements are of little avail to the prosecution.

9. As for the medical evidence, it has been pointed out earlier that it contradicts the statement of the approver with regard to the number of shots fired by the assailants. Thus, instead of corroborating the approver's statement, the medical evidence belies that statement.

10. We have already noted that the conviction of the appellant is mainly based on the statement of the approver and the statements regarding extra judicial confession made by the aforesaid two witnesses. We feel that the evidence in this behalf does not prove the guilt of the appellant beyond the shadow of any reasonable doubt. We find nothing else on the record to substantiate the capital charge levelled against the appellant. It is a matter of surprise that no one appeared before us today, on behalf of the State to defend the conviction of the appellant. In the circumstances, we are constrained to allow benefit of doubt to the appellant and acquit him of the charge of murder. He shall be set at liberty forthwith if not required in any other case.

11. Before parting with this case, we would like to express our regrets that the murder of an officer of a well-known autonomous body is going unpunished. We feel that it is partially, if not wholly, due to the mishandling of the case by the prosecution for reasons best known to it. Non-appearance of any one before us, today, on behalf of the State, is also, to say the least, very unfortunate.

12. A copy of this judgment will, therefore, be sent to the Inspector General of Police, Islamabad and the Advocate-General, Punjab, each for taking such action as they may deem fit. N.H.Q./M-3264/S Appeal accepted.