2011 P Cr (PLP)

MUHAMMAD ANWAARUL HAQ, J.

Muhammad Idrees, appellant along with his co-accused Umme-i-Salma was tried in case F.I.R. No. 99, dated 11-3-2004, registered at Police Station Saddar, District Gujranwala for an offence under sections 302, 34, P.P.C. At conclusion of the trial, the learned trial Court vide its judgment dated 25-4-2005 while acquitting Umme-i-Salma co-accused has convicted Muhammad Idrees, appellant under section 302(b), P.P.C. and sentenced to "Death" for the Qatl-e-amd of Faikal Hassan. He was also directed to pay Rs.1,00,000 (rupees one lac only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to undergo simple imprisonment for six months.

2. Feeling aggrieved, Muhammad Idrees, appellant has challenged his conviction and sentence through Criminal Appeal No.296-J of 2005 whereas learned trial Court has transmitted the Murder Reference No.429 of 2005 for confirmation or otherwise the death sentence of the appellant. Both the matters being unified are disposed of through this single judgment.

3. Prosecution's story in brief un-folded in F.I.R. (Exh.PF) by Nazir Ahmad, complainant (P.W.7) is that about five years back, Muzamil Hussain son of the complainant was married with Mst. Umme-i-Salma and a son was born out of that wedlock namely Faikal Hassan. Four months prior to the occurrence, his son had divorced Mst. Umme-i-Salma and allowed Faikal Hassan, being minor, to live with her, Mst. Umme-i-Salma contracted her second marriage with Muhammad Idrees. On 10-3-2004 at about 7-00 p.m. complainant received information about the death of his grandson, he along with his wife and son-in-law Muhammad Imran went to the house of Idrees, situated at Jandiala Baghawala and found his grandson died. Idrees and his family members told him that Faikal Hassan has been died due to illness, but the complainant on checking found marks of injuries and blood oozing from his ears upon which he got registered the F.I.R.

4. After registration of the case, on 11-3-2004 Saifullah, S.I. (P. W.11) inspected the place of occurrence, prepared injury statement, inquest report and sent the dead body for autopsy, he sketched rough site-plan and also secured the blood through cotton from the place of occurrence. On 17-3-2004, he arrested Muhammad Idrees, appellant who while in police custody on 25-3-2004 led to the recovery of Danda (P-1).

5. Dr. Naveed Ahmed, (P.W.4) conducted post mortem examination on the dead body of Faikal Hassan and observed the following injuries on his person:-- (1) Contused swelling 4 x 2 c.m. on the lower part of right cheek. (2) Contused swelling 5 x 2 c.m. on the left cheek. (3) Contused swelling 1-1/2 x 1 c.m. on the upper lip and part of nose with blood stained nostrils and shakiness of central inciser teeth. (4) Swelling 12 x 10 c.m. on the. head front and middle part frontoprital region 6 c.m. from the right ear. (5) Swelling 6 x 6 c.m. on front of left foot with punctured marks over it. (6) Swelling 8 x 6 c.m. on the right foot front part. In his opinion the cause of death was cardio respiratory failure as a result of cessation of brain function due to haemorrhage (hemotoma) compressing the brain consequent upon injury No.4, caused by some blunt weapon. All the injuries were ante mortem in nature and were caused by blunt weapon. Probable time between injuries and death was within two hours and between death and post mortem, about 16 to 20 hours.

6. To substantiate the charge, prosecution had examined eleven witnesses in total, out of which, Dr. Naveed Ahmad, (P.W.4) provided medical evidence, Nazir Ahmad (P.W.7) got lodged the F.I.R. and appeared as complainant of this case, Bashir Ahmed (P.W.8) and Muhammad Sharif (PW.9) provided evidence of extra judicial confession. The remaining evidence produced by the prosecution was more or less formal in nature.

7. Appellant and his co-accused were examined under section 342, Cr.P.C. They denied the allegations and professed their innocence. While answering to question "Why this case against you and why the P.Ws. have deposed against you?" they replied as under:-- Muhammad Idrees "Muzzamil Hussain ex-husband of Umme-e-Salma used to take Faikal Hassan deceased to the house of the complainant and the death of Faikal Hassan deceased took place in the house or Nazir complainant. Muzzamil Hussain also wanted to re-marry Umme-e-Salma co-accused after the death of Faikal Hassan a false story was concocted to falsely implicate me in this case and the statement of accused Umme-e-Salma under section 342, Cr.P.C. clearly indicates that .she has succumbed to the pressure of complainant and she has introduced a new concocted story. The complainant and other P.Ws. who are inter se related and inimical towards me for the above mentioned reasons therefore, all the P.Ws, have falsely deposed against me so to get rid of me from the way of remarriage of Umme-e-Salma and Muzzamil Hussain and to black mail me." Mst. Umme-e-Salma: "My son Faikal'Hassan was murdered by Idrees accused present in court in my presence. He inflicted danda blows on his head, forehead and on his feet. He also inflicted danda blows on his mouth. I am innocent. I have not shared any intention with accused Idrees. Being the mother of Faikal aged two years I even cannot think about it. I was declared innocent by the police during investigation. He murdered Faikal due to the reason that he disliked Fiakal Hassan and I tried to hand over Faikal to his grandfather but he refused to give him to his grand-father."

8. Appellant did not opt to make any statement under section 340(2), Cr.P.C., and did not produce any evidence in his defence. However Umme-i-Salma made her statement under oath as contemplated under section 340(2), Cr.P.C., almost the same she made under section 342, Cr.P.C. The learned trial Court vide its judgment dated 25-4-2005 while acquitting Mst. Umme-i-Salma co-accused, found Muhammad Idrees appellant guilty and convicted and sentenced him as mentioned above.

9. Learned counsel for the appellant contends that it is a case in which there is no eyewitness of the occurrence and the whole prosecution case is based on circumstantial evidence; that the prosecution evidence is based on the extra-judicial confession of the appellant; that while appearing in the Court both the witnesses of extra-judicial confession admitted that they never made any statement during investigation and their statements were recorded one year after the occurrence; that 'recovery of danda on the pointation of the appellant is of no value because the said danda was not found blood stained; that the medical evidence only indicates the presence of certain injuries on the person of the deceased and the doctor has admitted that such injuries could be the result of falling on ground; that the co-accused of the appellant Umm-i-Salma has stated that the appellant has committed this offence, but as she herself is an accused, as such her. statement cannot be used against the appellant; that no motive for commission of murder has come on record; that the statement of the co-accused recorded under section 340(2), Cr.P.C: is not sufficient for the conviction of the appellant.

10. On the other hand, learned Additional Prosecutor-General states that the deceased was done to death in the house of the appellant; that the presence of injuries on the person of deceased corroborated by extra judicial confession of the appellant provides full strength to the suspicion of the complainant; that during the investigation the appellant was found fully involved in this case and he is not entitled to any leniency.

11. We have heard the arguments from both the sides and have perused the record, carefully.

12. Case of the prosecution rests upon evidence of extra judicial confession, exculpatory statement of the co-accused of the appellant Mst. Umme-i-Salma, recovery of a Danda at the instance of the appellant and medical evidence.

13. As far as extra judicial confession of the appellant is concerned, it is of least importance when both the witnesses of extra judicial confession P.W.8 Bashir Ahmad and P.W.9 Muhammad Sharif categorically stated that police did not record their statements during the investigation under section 161, Cr.P.C. It is well settled that evidence of a witness whose statement has not been recorded during the investigation is not worth reliance. We may refer here 1996 MLD 1311 and 1995 PCr.LJ

248. Even otherwise, it is well-established principle of Criminal Jurisprudence that extra judicial confession is a weak type of evidence and it must receive strong corroboration from other reliable evidence. For ready reference we respectfully refer the case of Tahir Javed v. The State (2009 SCMR 166), and Zafar Iqbal and others v. The State (2006 SCMR 463).

14. As far as statement of Umme-i-Salma co-accused of the petitioner is concerned that is just an exculpatory statement and cannot be made basis for the conviction of the appellant and even is of little value against its maker. It is not permitted under the law to treat the statement of the co-accused, as evidence against other accused. For ready reference we respectfully refer the case of State v. Asfandyar Wali and 2 others (1982 SCMR 321).

15. Medical evidence by itself is not an evidence to reflect who is responsible for causing injuries to the deceased and it can only be used to the extent of corroboration of ocular account if any or to corroborate any other strong circumstance. Evidence of P.W.7 complainant is just based upon suspicion and suspicion however strong cannot take place of an evidence to be "used for the conviction of the accused.

16. As far as recovery of Danda is concerned, admittedly the Danda was not blood stained and it was never sent to the Chemical Examiner for tracing of any bloodstains on the same.

17. In the case of circumstantial evidence it is well settled principle that all the circumstances constituting a chain should create a combined effect towards the guilt of an accused and it should be established beyond any shadow of doubt without missing of any link whatsoever. Finding of guilt must rest on unimpeachable evidence. It is also a well-settled standard of appreciation of evidence that many dents in a criminal case are not necessary and a single doubt in a prudent mind is sufficient to extend the benefit of doubt to the accused. In this respect we very respectfully refer the case of Muhammad Akrain v. The State (2009 SCMR 230) in which Hon'ble Supreme Court of Pakistan emphasized as under: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

18. It is a fundamental principle of Criminal Jurisprudence that a tainted piece of evidence cannot corroborate another tainted piece of evidence. Surmises, conjectures, presumptions and assumptions cannot take place of trustworthy, cogent and reliable evidence in criminal cases, especially in the cases of capital sentence.

19. Prosecution has miserably failed to prove the case against the appellant and there is no legal, convincing or trustworthy evidence connecting the appellant with the crime alleged against him. We therefore, allow Criminal Appeal No.296-J of 2005, set aside the conviction and sentence of Muhammad Idrees, appellant and acquit him of the charge. He be set at liberty forthwith, if not required to be detained in any other case.

20. Murder Reference (M.R. No. 429 of 2005) is answered in negative and death sentence of the appellant Muhammad Idrees is not confirmed. H.B.T./M-603/L Appeal allowed.