1997 P Cr (PLP)

MUHAMMAD ASIF JAN, J.

Muhammad Akram appellant aged about 20 years, was convicted under section 302 of the Pakistan Penal Code and sentenced to death. Besides, a fine of Rs.10,000 was imposed upon Muhammad Akram appellant, which was to be paid as compensation to the legal heirs of the deceased. In case of default in the payment of fine, a further period of 6 months' simple imprisonment was awarded, vide judgment/order of Mr. Muhammad Aslam Sumra; Additional Sessions Judge, Layyah, dated the 29th of June, 1991. Co-accused Qaiser Abbas was convicted under section 201, of the Pakistan Penal Code and sentenced to 6 months' R.I. for assisting Muhammad Akram appellant in causing the evidence to disappear by throwing the dead body of Fazal Hussain deceased in a deserted well,

2. The trial Court has referred this matter to this Court for confirmation of the sentence of death awarded to Muhammad Akram appellant by way of Murder Reference No,315 of 1991. Muhammad Akram appellant has appealed against his conviction and sentence by way of Criminal Appeal No. 193 of 1991, By this judgment/order we propose to decide these matters together.

3. The occurrence took place on the 2nd February, 1989 at about 8 a.m. In village Marhanwali, which is about 12 miles from Police Station Karor of District Layyah,

4. The matter was reported on the 9th of February, 1989 at 4-30 p.m. near Samtia More by complainant Muhammad Ali Shah (P.W.6), a brother of Fazal Hussain Shah deceased and his statement Exh. P.A. was recorded by S.I. Manzoor Ahmad (P.W.10).

5. The formal F.I.R. (Exh.P.A./1) was drawn on the same day at 5-30 p.m. by A.S.-I. Niaz Muhammad (P.W.1) at Police Station Karor Pakka under section 302/201/34, P.P.C.

6. There are no eye-witnesses of the occurrence, which is admittedly unwitnessed.

7. According to the prosecution, Fazal Hussain Shah deceased, brother of complainant Muhammad Ali Shah (P.W.6) left home' on the 2nd of February, 1989 at about 7-30 p.m. in order to purchase a cow from Muhammad Akram appellant and was carrying Rs.5,

100. Thereafter, Fazal Hussain Shah deceased did not return home. The complainant kept looking for the deceased for a few days, but in vain. Then a meeting of elders (Panchhait) was held and Muhammad Akram appellant was summoned and he was asked to explain because Fazal Hussain Shah ' deceased was last seen with him on the 2nd of February, '1989 at his tube-well which he had taken on lease. After considerable hesitation, Muhammad Akram appellant admitted that Fazal Hussain Shah deceased came to him on the fateful day to purchase a cow and was carrying cash and that in lust for money, he murdered Fazal Hussain Shah deceased by inflicting a hatchet blow on his head and also slit open his neck. Thereafter, he disposed of the dead body with the help of co-accused Qaisar Abbas by throwing it in a deserted well. Co-accused Qaisar Abbas was summoned who confirmed the narration of events given by Muhammad Akram appellant, admitted his guilt and said that they should both be handed over to the police. Accordingly, they were handed over to S.-I. Manzoor Ahmad (P.W.10), who was asked to register a case and proceed with the investigation.

8. Dr. Habib Ullah (P.W.7) was posted at the D.H.Q. Hospital of Layyah on the 10th of - February, 1989, where he performed the post-mortem examination on the dead body of Fazal Hussain Shah and found the following Injuries on his person:-- (1) An incised wound with clean cut edges 23 c.m. x 1-1/2 c.m. x skull deep also brain matter deep. Cut fracture of skull wounds visible, brain matter coming out from the side of fracture also corresponding fracture of other wounds along the line of injuries visible; said injury starting from the left side of route of nose going upward first vertically then obliquely to right side of top of head, (2) An incised wound edges clean cut 20 c.m. x 3 c.m. x going deep on front of neck as well as lateral side of neck more on right side transverse in direction. Slopping upward with excessive cutting and damage of underlying structures, (3) An incised wound with clean cut edges 3 c.m. x I c.m. x going deep on left side of base of neck 4 c.m. away from injury No.2 on left side, (4) Multiple abrasions on left side of upper margin of shoulder left and left clavicle area. (5) An incised wound 2 c.m. x 1-1/2 c.m, x skull deep on the front of head 4 c.m. above hair margin of head on front side. In the opinion of the doctor, all injuries were ante-mortem caused by sharp-edged weapon. Injuries Nos. 1 and 2 were dangerous and fatal for life. Injuries Nos.3, 4 and 5 were simple in nature. Injuries Nos. l and 2 were sufficient to cause death individually and collectively in ordinary course of nature. Probable time that elapsed between injuries and death was within few minutes arid between death and post-mortem 48 hours to 10 days.

9. The last-worn clothes of Fazal Hussain Shah deceased were taken into possession by the Investigating Officer on the. 10th of February, 1989 vide recovery memorandum Exh. P.B. which was witnessed by Mulazam Hussain (not produced), Ghulam Shabbir (not produced) and Muhammad Ali Shah (P.W.6). The currency notes worth Rs.5,100-were taken into possession by the Investigating. Officer on the 11th of February, 1989 from the shop of the appellant vide recovery memorandum Exh. P.D., which was witnessed by Manzoor Hussain Shah (not produced) and Ghulam Sarwar Shah (P.W.4). The National Identity Card of Fatal Hussain Shah deceased was also recovered by the Investigating Officer from the shop of the appellant vide recovery memorandum. Exh. P.E. on the 11th of February, 1989. The recovery memorandum was signed by Manzoor Hussain Shah (not produced) and Ghulam Sarwar: Shah (P.W.4). The dead body of Fazal Hussain Shah deceased was retrieved from a deserted well by the Investigating Officer on the 9th of February, 1989 and taken into possession vide recovery memorandum Exh. P.O. in the presence of Ghulam Sher Shah (not produced), Bahawal alias Ballay (riot produced), Muhammad Ali Shah (P.W.6) and Ghulam Qasim (P.W.8): One large piece of cloth known in common parlances as a Lokar was recovered by the Investigating Officer on the 9th of February, 1989 vide recovery memorandum Exh. P.I in the presence of Ghulam Qasim (P.W.8), Ghulam Shabbir Shah (not produced) and Rab Nawaz (P.W.9). Some bricks were also taken into possession by the Investigating Officer on the 9th 'of February; 1989 vide recovery memorandum Exh. P.K. in the presence of Ghulam Shabbir Shah (not produced), Ghulam Qasim (P. W.8) and Mulazam Hussain Shah. (not produced). Blood-stained earth was taken into possession by the Investigating Officer on the 9th of February, 1989 vide recovery memorandum Exh. P.L. from the place of occurrence: in the presence of. Ghulam Shabbir Shah (not produced) and Ghulam Qasim (P.W.8). Yet another piece of cloth, presumably the cover of bicycle saddle was taken into possession by the Investigating Officer on the 9th of February,. .1989 vide recovery, memorandum Exh. P.M. in the presence of 6hulam Qasim (P.W.8) and Ghulam Shabbir Shah (not produced). One blood-stained rubber tube was taken into possession by the Investigating Officer on the 9th of February, 1989 vide recovery memorandum Exh. P.N. in the presence of the same witnesses. One knife was taken into possession by the Investigating Officer on the 11th of February, 1989 vide recovery memorandum Exh. P.O. from the shop of the appellant in the presence of Ghulam Qasim (P.W.8) and Rab Nawaz (P.W.9). One hatchet (Panchhait) was taken into possession by the Investigating Officer on the 11th of February, 1989 vide recovery memorandum Exh. P.P. in the presence of Manzoor Hussain Shah (not produced) and Rab Nawaz (P.W.9). The clothes of the appellant were also taken into possession by the Investigating Officer on the 11th of February, 1989 vide recovery memorandum Exh. P.V. in the presence of the same witnesses. The clothes of co-accused Qaisar Abbas which he was still wearing on the 11th of February, 1989, were taken off from the person of co-accused Qaisar Abbas by the Investigating Officer on the 11th of February, 1989 and were taken into possession vide recovery memorandum Exh. P.V. in the presence of Manzoor Hussain (not produced) and Rab Nawaz (P.W.9).

10. The accused persons pleaded total denial and false implication due to enmity. Conviction in this case is based essentially and primarily upon the so -called confession said to have been made by the accused persons, corroborated by the various items that were recovered and taken into possession.

11. The appellant as well as the co-accused denied having made any confession whatsoever and claimed that the occurrence was an unwitnessed occurrence.

12. The prosecution would have us believe that Muhammad Akram appellant as well as co-accused Qaisar Abbas were both cold-blooded murderers devoid of any human feelings or emotions. It is the case of the prosecution that Fazal Hussain Shah deceased went to purchase a cow from Muhammad Akram appellant and was, therefore, carrying Rs.5,100 in cash. But Muhammad Akram appellant instead of selling a cow chose to murder Fazal Hussain Shah deceased by inflicting hatchet blows upon his head and also by cutting his throat with a knife. Surprisingly and suddenly this cold-blooded murderer alongwith his accomplice walked into a meeting of elders (Panchhait) and made a clean breast of it all by confessing their guilt. Not only that: The prosecution would further have us believe that Muhammad Akram appellant as also co-accused Qaisat Abbas suddenly decided to become the main architects of their own conviction and sentence, as if they were not only keen but actually eager to pick up the noose of the prosecution and put it round their own necks. No normal, sane person would do this unless of-course he wants to commit suicide. The case of the prosecution sounds like fiction rather than facts and we find it difficult to maintain a conviction involving capital punishment on such fiction.

13. The so-called confession which is essentially the basis of the conviction is totally denied by the appellant as also' co-accused Qaisar Abbas. As held by their Lordships of the Supreme Court in the case of The State v. Minhun alias Gul Hassan reported in PLD 1964 SC 813, a confession retracted or unretracted, judicial or extra judicial can legally be taken into consideration against the maker thereof. However, the weight and evidenciary value of a confession is a different matter altogether from admissibility. In order to be made the basis of a conviction, the confession must not only be voluntary but must be true. In the instant case we have serious - doubts about the truthfulness of the so-called confession and are not prepared to base a conviction upon such a confession which at any rate was never made by either the appellant or his co-accused: The same view was again taken by their Lordships of the Supreme Court in the case of Rehmat alias Rhaman v. The State reported in PLD 1977 SC 515 and the principle was again reiterated by the Supreme Court of Pakistan in the case of The State v. Muhammad Naseer reported in 1993 SCMR 1822. 14, The recoveries of the weapons of offence, I.e. the knife and the hatchet are not only highly doubtful but also totally discrepant and do not inspire confidence and, therefore, do not corroborate the so-called confession.

15. We are inclined to believe that this was indeed an unwitnessed occurrence. At any rate, the prosecution has not been able to prove its case against Muhammad Akram appellant and co-accused Qaisar Abbas beyond reasonable doubt. Therefore, according to the age old established principle of the administration of criminal justice, we grant the benefit of doubt to Muhammad Akram appellant as well as co-accused Qaisar Abbas and acquit them. Their conviction and sentence is hereby set aside. Criminal Appeal No.193 of 1991 is accepted and the Murder Reference No.315 of 1991 is answered accordingly. The death sentence is not confirmed. N.H.Q./M-225/L Appeal accepted.