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---S. 302--Murder--Extra-judicial confession at best a weak piece of evidence--Conviction could not be based upon such confession unless corroborated in material particulars.
---S. 302--Murder--Extra-judicial confession--Witnesses to extra judicial confession deposing different motive narrated to them by accused--Such witnesses failing to explain why in absence of previous acquaintance accused had chosen them to unload burden on his mind- Evidence of extra-judicial confession excluded from consideration in circumstances.
---S. 302--Murder--Last seen evidence--Appreciation of--Recovery evidence and extra-judicial confession unreliable--Remaining evidence of last seen if accepted, held, would not sufficiently connect accused with an offence punishable; under S. 302, P.P.C.--Accused given benefit of doubt and acquitted.
Mian M. Zafar Yasin for Appellant.
Zafar Mahmood Anjum for the State.
Date of hearing: 28th February, 1982.
This criminal appeal arises from the judgment of the learned Sessions Judge, Muzaffargarh, whereby he, on 4-10-1972, convicted Mushtaq Ahmad, aged 23 years, under section 302, P.P.C. for causing the death of Falak Sher and sentenced him to imprisonment for life.
2. The occurrence took place on or about 13-7-1971 in the area of Mauza Khairewala of Police Station Chaubara. F.I.R. Exh.P.A. was lodged by Haq Nawaz Lambardar '(P.W.10) at 4-30 p.m. on 14-7-1971 and the same was recorded by Nafis-ud-Din, Sub-Inspector (P.W.13).
It is alleged that the deceased had illicit relations with the wife of the appellant. This motivated the murder of Falak Sher.
3. The facts leading up to the prosecution of the appellant, in brief, are that Ahmad Mukhtar (P.W.9) found dead body of Falak Sher in a jungle of village Khairewala. He accordingly informed Haq Nawaz Lambardar P.W., who reported the matter to the Police Station on 14-7-1971.
During the investigation the police collected the evidence of extra-judicial confession and other circumstantial evidence and challaned the appellant.
4. In order to prove its case the prosecution examined as many as witnesses.
P.W.1 Dr. Muhammad Saeed conducted the post-mortem examination on the dead body of the deceased on 14-7-1971 and found the following injuries on his person:
(1) Incised wound 6" x 2" x cutting the spinal cord on the right lateral aspect of the neck.
(2) Incised wound 4" x 11" x joining the depth of injury No.l.
(3) Incised wound 4" x 11" x cutting the lower jaw on the right side of face extending down to the neck.
(4) Incised wound 4 x 1" x cutting the underlying bone on the face starting from just above right eye-brow expending down to the mouth.
(5) Incised wound 4 " x 2" x cutting the bone on the top of right shoulder.
(6) Incised wound 3" x 1" x bone deep on the right parietal region of the head.
(7) Incised wound 2" x 11" x cutting the bone superficially on the left parietal region of the head.
(8) Incised wound 1 " x 1/2" x cutting through the joint on the front of root of right little finger.
(9) Incised wound 1" x 1/2" x cutting through the joint on the front of root of left thumb.
In his opinion the death was due to shock and haemorrhage as a result of injuries to the spinal cord and right carotid vessels due to injuries Nos.l and 2. Each of the injuries was sufficient to cause death in the ordinary course of nature. The time between the injuries and death was a few minutes and between death and post-mortem was 18 to 48 hours.
P.W.2 Sher Zaman.Patwari. He prepared the site plan-on' the pointation of the witness.
P.W.3. Muhammad Akram F.C. He escorted the dead body to the mortuary.
P.W.4. Abdul Rashid H.C. He kept the parcels intact in the Malkhana.
P.W..5. Ghulam Haider F.C. He took away the parcels to the Chemical Examiner Lahore.
P.W.6 Abdul Majid. He is the witness of the motive and last
P.W.7 and 8 Jindwadda and Salarah are the witnesses of the last seen.
P.W.9 Ahmad Mukhtar. He found the dead body in the jungle.
P.W.10. Haq Nawaz Lambardar. He lodged the F.I.R.
P.W.11. Haji Muhammad and Baroo P.W. 12 are the witnesses of the alleged extra-judicial confession.
P.W.13. Nafis-ud-Din S. I. He is the Investigating Officer. He arrested; the accused on 19-7-1971 who got recovered hatchet P.3 vide memo. EXh.P.D. attested by Haq Nawaz and Haji Muhammad P'Ws. He also recovered on 19-7-1971 his shirt P.4 and Dhoti P.5 from his residential house which were taken into possession, vide memo Exh.P.E. attested by the same witnesses.
DEFENCE CASE
5. The accused when examined under section 342, Cr. P.C. denied all the incriminating circumstances and stated that the case against him was on account of enmity and that he was falsely involved at the instance of Abdul Majid (P.W.6). He did not lead any evidence in defence.
6. The above statement of facts makes it very much clear that the prosecution has relied upon the motive supported by Abdul Majid (P.W.6); last seen evidence by Jindwadda and Salarah P.Ws. the evidence of recovery of blood-stained hatchet P.3 supported by Haq Nawaz, Haji Muhammad, Baroo and the Investigating Officer P.Ws. and lastly, the extra-judicial confession supported by Haq Nawaz, Haji Muhammad and Baroo (P.Ws. 10, 11 and 12).
7. Learned counsel for the appellant contended that the evidence collected by the police is insufficient to exclude the hypothesis, of the innocence of the appellant inasmuch as the extra-judicial confession is not reliable and the remaining evidence, even if accepted, at its face value is not sufficient to connect the appellant with the commission of an offence punishable under section 302, P.P.C.
8. Learned counsel for the State has vehemently, defended the judgment of the trial Court. He states that the circumstantial evidence collected by the police is sufficient to bring home the guilt to the appellant. He argues that the witnesses are independent and they stand supported by the attending circumstances.
9. There is no ocular evidence to connect the appellant with the commission of the crime and the case hinges upon the circumstantial evidence and the alleged extra-judicial confession. The extra-judicial confession is the main pillar of the prosecution case; whereas the A remaining evidence can be- used to corroborate the same. Keeping in mind that the evidence of extra-judicial confession is at best a weak piece of evidence and the conviction cannot be based on it unless the same is corroborated in material particulars.
I, proceed to evaluate the prosecution case and take up the extra-judicial confession first. Haq Nawaz P.W. is a Lambardar. He lodged the F.I.R. and remained associated with the police during the investigation and, as such, can safely be termed as person in authority. It appears from the evidence of Haq Nawaz, Haji Muhammad and Baroo P.Ws. that Haq Nawaz had promised the accused /appellant to help him, as such, the extra-judicial confession being hit by section 24 of the Evidence Act is inadmissible in evidence and cannot be taken into consideration. Moreover,. the evideikce of the three witnesses of the alleged extra-judicial confession is discrepant e.g. Malik Haq Nawaz stated that the appellant had stated before them that he had killed the deceased because the deceased had illicit relations with his wife and he could not tolerate; whereas Baroo P.W. stated that the appellant did not give any reason why he killed Falak Sher deceased. Similarly, Haji Muhammad P.W. stated that he did not tell the committing Court that the accused had told us that the deceased had illicit relations with his wife that is why he killed him. I further find that these witnesses have made contradictions from their earlier statements with which they have been duly confronted. The witnesses B have failed to explain as to why the appellant, who was not previously acquainted with them, had chosen them for unloading the burden on his mind. For all these reasons, I am inclined to exclude from consideration the evidence of extra-judicial confession.
The evidence of recovery has been disbelieved by the trial Court in para. 13 of its judgment and rightly so. The remaining evidence of last seen even if accepted at its face value is not sufficient to connect the appellant with the commission of an offence punishable under section 302, P.P.C. In the circumstances of the instant case, C it does not exclude the hypothesis of the innocence of the appellant.
10. The upshot of the discussion is that the prosecution has failed to prove its case beyond reasonable doubts against the appellant. He is given the benefit of doubt and acquitted. The appeal is accepted.
The appellant is on bail. His bail bond shall stand discharged.
S.A. Appeal accepted.
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