2012 P.Cr.R.

575
[Lahore]
Present: MANZOOR AHMAD MALIK and MALIK SHAHZAD AHMAD KHAN, JJ.
Muhammad Ashraf alias Kala and another
Versus
The State
Crl. Appeal No. 2085 of 2005 and Murder Reference No. 342 of 2006, decided on 28th
February, 2012.
CONCLUSION
(1) Dying declaration or the statement of a person without the test of cross-
examination is a weak kind of evidence and its credibility depends upon the
authenticity of the witnesses and the circumstances under which it was alleged to
have been made.
(a) Criminal Trial---
---Recoveries---Evidentiary value---The evidence of recovery is only of corroborative in
nature. (Para 14)
Ref. 2009 SCMR 436, PLD 2006 SC 538, 1971 SCMR 756, PLD 1995 SC 516, 2009
PSC Crl. (SC Pak) 133 and 2006 PSC Crl. (SC Pak) 627.
(b) Interpretation of fact---
---Law---Settled---When a fact is capable of two interpretations, possibilities, then one
favourable to the accused is to be accepted. (Para 11)
Ref. 1988 SCMR 857 and PLD 1994 SC 31.
(c) Dying declaration---
---Test of cross-examination---Validity---A dying declaration or the statement of a person
without the test of cross-examination is a weak kind of evidence and its credibility
depends upon the authenticity of the witnesses and the circumstances under which it
was alleged to have been made.
(Para 11)
Ref. PLD 2006 SC 255.
(d) Circumstantial evidence---
---Assessment parameters---Laid down---By now, it is settled that in such-like cases, the
chain link should be so inter-connected with each other that its one end touches the
dead-body while the other end goes around the neck of the accused and if any chain
link is missing then its benefit should be given to the accused.
(Para 8)
Ref. PLD 1966 SC 664, PLJ 1999 SC 1018, 1992 SCMR 1047, 1996 SCMR 188, 2008
SCMR 1103, 2011 SCMR 1127, 2009 SCMR 407, 2008 PSC Crl. (SC Pak) 573, 2011
PSC Crl. (SC Pak) 523 and 2009 PSC Crl. (SC Pak) 153.
MURDER TRIAL---(Circumstantial evidence)
(e) Criminal Procedure Code (V of 1898)---
---S. 410---Pakistan Penal Code, 1860, S. 302(b)---Charge of murder---Un-seen
occurrence---Circumstantial evidence consisted of (1) Wajtakkar, (2) Dying declaration,
(3) Motive (4), Extra-judicial confession and (5) Recovery of pistol---Analyses---Said
person was a very natural witness as it was he, who informed complainant that
deceased was injured by firing of some unknown but his evidence was withheld by
prosecution, therefore, presumption could be drawn against prosecution, and it was
presumed that had he been produced by prosecution, he would have not supported
prosecution version---Prosecution evidence of Wajtakkar was not worthy of reliance---
Alleged dying declaration was not made in presence of Doctor or any staff member of
mentioned hospitals---It was not recorded by any police official, therefore, alleged dying
declaration of deceased before said PWs who were real brothers of deceased could
hardly be termed as dying declaration---None of mentioned witnesses were neither
named in application nor they had been cited as witness in any of recovery weapon---
Their names were also not mentioned in MLR of the deceased---None of the said
witnesses had uttered a single word about dying declaration of deceased---Evidence of
prosecution in respect of dying declaration was not reliable---Said PW had not given
any reason for delay in making statement before police---Similarly, no date of alleged
extra-judicial confession was mentioned in statement of said PW before Court---It had
not been established by prosecution that said PW was holding any important post office,
or he was a person in authority, or he had any influence over complainant party to effect
a compromise between appellants and complainant---Prosecution evidence of extra-
judicial confession in instant case was not worthy of reliance---Motive as alleged by
prosecution had not been established in instant case---Evidence of recovery is only of
corroborative nature and conviction of appellants could not be sustained merely on
basis of recovery of pistol and positive report of FSL---Prosecution had failed to prove
its case against appellants beyond shadow of doubt---Benefit of doubt extended---
Criminal appeal allowed.
(Para 16)
Ref. 1992 SCMR 1047, 1996 SCMR 188, 2008 SCMR 1103, 2009 SCMR 407, 2011
SCMR 1127, PLD 1995 SC 516, 1971 SCMR 756, PLD 2006 SC t38, 2009 SCMR 436,
2009 SCMR 166, PLD 1994 SC 31, 1988 SCMR 857, PLD 2006 SC 256, PLD 1966 SC
664, PLJ 1999 SC 1018, 2006 SCMR 231, 2008 PSC Crl. (SC Pak) 942, 2011 PSC Crl.
(SC Pak) 523, 2009 PSC Crl. (SC Pak) 133, 2009 PSC Crl. (SC Pak), 153, 2008 PSC
Crl. (SC Pak.) 573 and 2006 PSC Crl. (SC Pak) 627.



  


 





 






[Circumstantial evidence in the shape of Wajtakkar, dying declaration, extra-judicial
confession and motive was disbelieved. Impugned conviction/sentence of death was set
aside].
For the Appellants: Shoaib Zafar, Advocate.
For the Complainant: Naseer-ud-Din Khan Nayyar, Advocate.
For the State: Chaudhry Muhammad Mustafa, Deputy Prosecutor-General.
Date of hearing: 28th February, 2012.
JUDGMENT
MALIK SHAHZAD AHMAD KHAN, J. --- This judgment shall dispose of
Criminal Appeal No. 2085 of 2005 (Muhammad Ashraf alias Kala and another Vs. The
State) and Murder Reference No. 342 of 2006, sent by the learned Trial Court, for
confirmation or otherwise, of the sentence of death awarded to Muhammad Ashraf alias
Kala and Tariq Mehmood alias Ghanti appellants, as both these matters have arisen out
of the same judgment dated 23.12.2005, passed by the learned Additional District
Judge, Sheikhupura, whereby, Muhammad Ashraf alias Kala and Tariq Mehmood alias
Ghanti appellants were convicted under Section 302(b) of PPC for committing the
murder of Muhammad Ramzan and were sentenced to death each with a direction to
pay the compensation amount of Rs. 1,00,000/- (Rupees one hundred thousand) each
to the legal heirs of deceased and in default thereof to suffer rigorous imprisonment for
six months each.
2. Brief facts of the case as given by Muhammad Awais (PW.2) in his Fard
Biyan (Ex.PA) on the basis of which formal F.I.R. (Ex.PA/1) was chalked out, are that on
16.1.2004, at 21.30 hours (9.30 p.m.), Riaz, Cabin Man informed him (Muhammad
Awais) (PW.2) that a person named, Muhammad Ramzan, was lying near the West
Cabin FRQD in serious injured condition, who had received fire-arm injury by some one.
The injured Muhammad Ramzan was employee of Pakistan Railway. The police was
informed, who visited the spot and recorded the statement of Muhammad Awais
(PW.2). The appellants were not named in the F.I.R. (Ex.PA/1), as the same was
lodged against unknown accused. They were implicated in this case on the basis of the
statements of the brothers of deceased namely, Nazir Ahmad (PW.1) and Sultan
Ahmad (PW.3). Sultan Ahmad (PW.3) in his statement (Ex.DB) has stated that on the
day of occurrence i.e. 16.1.2004, at about 8.30 p.m., he and Muhammad Ramzan
(deceased), after performing their duties alighted from the train at Farooqabad Railway
Station. His bicycle was lying in the Railway quarters, whereas, the bicycle of the
deceased Muhammad Ramzan was lying in the cabin of Railway Station. He has further
stated that after taking their bicycles, they used to reassemble at „Phatek‟ No. 47. On
the day of occurrence, he was waiting for his brother Muhammad Ramzan at the
specified place. After sometime, a white coloured car bearing registration No. 706 came
from cabin side and went towards the soaling side, after crossing Railway „Phatek‟ No.
47. He has further stated that the said car was being driven by Tariq Mehmood
(appellant), who was accompanied by Muhammad Ashraf (appellant). After sometime,
he (Sultan Ahmad (PW.3)) went to the cabin to know the situation as to why his brother
Muhammad Ramzan (deceased) had not yet come. When he reached near the cabin,
he heard the hue and cry of his brother Muhammad Ramzan (deceased). He has further
stated that he started weeping, when Riaz came at the spot and consoled him. After a
short-while, his brother Nazir Ahmad (PW.1) and one Yousaf reached at the spot.
According to the said witness, Muhammad Ramzan (deceased) was shifted to the Civil
Hospital, Sheikhupura in a car for his medical treatment. On the way, Muhammad
Ramzan (deceased) stated that he was fired upon and injured by Muhammad Ashraf
appellant, whereas, Tariq Mehmood co-accused caught hold of him.
Motive for the occurrence, as stated by the prosecution, was that a quarrel took
place between Asif, younger brother of the appellant Ashraf alias Kala, and the son of
the deceased namely, Adnan, about 2/3 months prior to the occurrence. A compromise
was affected between the parties. However, the accused Ashraf and Tariq nourished
the said grudge and thereafter they committed the murder of Muhammad Ramzan
(deceased).
3. The appellant Muhammad Ashraf alias Kala was arrested in this case on
8.2.2004 by Muhammad Bakhsh, S.I. (PW.15). During the course of investigation, on
8.2.2004, a pistol (P4) alongwith magazine, was taken into possession through recovery
memo. (Exh.PE) on the pointation of the appellant Muhammad Ashraf alias Kala,
whereas, on 12.12.2004, the appellant Tariq Mehmood alias Ghanti was arrested and
car bearing registration No. 706/FDB was secured from his possession vide recovery
memo. (Ex.PN). After completion of investigation, the challan was prepared and
submitted before the Trial Court. The learned Trial Court, after observing all legal
formalities, as envisaged under the Code of Criminal Procedure, 1898, framed a charge
against Muhammad Ashraf alias Kala and Tariq Mehmood alias Ghanti appellants on
21.6.2004 under Sections 302/324/34 of PPC, to which they pleaded not guilty and
claimed trial.
4. In order to prove its case, the prosecution produced fifteen witnesses,
during the trial.
The medical evidence was furnished by Dr. Muhammad Afzal (PW.10) and Dr.
Humayun Siddique (PW.11), as well as, Dr. Muhammad Ashraf Javed (PW.12).
Muhammad Awais, Assistant Station-Master (PW.2) is the complainant of this case,
Muhammad Riaz, Draftsman (PW.7), Iqbal Ahmad (PW.8), Muhammad Kashif (PW.13),
Muhammad Latif (PW.14), are the formal witnesses. Nazir Ahmad (PW.1) and Sultan
Ahmad (PW.3) are the witnesses of Wajtakkar, motive and dying declaration of the
deceased Muhammad Ramzan. Zulfiqar Ali, Head Constable (PW.4) is a witness of
blood-stained earth and empty cartridges. Muhammad Akram (PW.5) is a witness of
conspiracy. Abdul Majeed (PW.6) is the recovery witness of pistol of 30 bore (P.4).
Khurshid Ahmad (PW.9) is the witness of extra-judicial confession, whereas,
Muhammad Bakhsh (PW.15) is the Investigating Officer of this case. Before closing its
case, the prosecution also produced documentary evidence in the shape of complaint
(Ex.PA), F.I.R. (Ex.PA/1), blood-stained earth (Ex.PB), empty cartridge (Ex.PC),
Chadar/shoes, etc. (Ex.PD), pistol 30 bore (Ex.PE), post-mortem report (Ex.PG), death
report (Ex.PH), application from police to doctor and report (Ex.PJ), application to M.S.
Mayo Hospital and report (Ex.PI & PK), medico-legal report (Ex.PL), sealed envelope
(Ex.PM), personal search (Ex.PN) and (Ex.PO), possession of car (Ex.PQ), report of
chemical examiner (Ex.PS), report of Serologist (Ex.PT), and report of FSL (Ex.PU).
The statements of both the appellants under Section 342 of Cr.P.C. were
recorded. They refuted the allegations levelled against them and professed their
innocence. While answering to a question “Why this case against you and why the PWs
have deposed against you” the appellant Muhammad Ashraf alias Kala replied as
under:--
“I had no motive whatsoever to commit the murder of the deceased. The
occurrence is shrouded in mystery. Some unknown persons injured the
deceased. Riaz Cabin Man has been withdrawn by the prosecution who could
disclose the real circumstances. The injured was taken by the police to the
hospital and was unconscious throughout and was not able to utter a single
word. Sultan and Nazir Ahmad PWs out of malice and all to all have fabricated
the evidence of so-called statement of the deceased, Wajtakkar, the evidence of
motive and extra-judicial confession after many days of the occurrence.”
The appellant Tariq Mehmood alias Ghanti also denied the allegations of the
prosecution levelled against him and claimed his innocence, in his statement recorded
under Section 342 of Cr.P.C. In answer to the question, why this case against you and
why the PWs have deposed against you, the appellant Muhammad Asghar replied as
under:--
“I had no motive whatsoever to commit the murder of the deceased. The
occurrence is shrouded in mystery. Some unknown persons injured the
deceased. It is night murder case, Riaz, Cabin Man has been withdrawn by the
prosecution who could disclose the real circumstances. The injured was taken by
the police to the hospital and was unconscious throughout and was not able to
utter a single word. Sultan and Nazir Ahmad PWs out of malice and all to all have
fabricated the evidence of so-called statement of the deceased, Wajtakkar, the
evidence of motive and extra-judicial confession after many days of the
occurrence.”
Neither the appellants made statements under Section 340(2) of Cr.P.C. nor they
produced any evidence in their defence. The trial culminated into conviction and
sentence of the appellant as mentioned earlier.
5. The learned counsel for the appellants, in support of this appeal, contends
that in fact it was an unseen occurrence, which took place at around 9.30 p.m., in winter
season, and no source of light is mentioned in the F.I.R. (Ex.PA/1); that the statement of
the complainant is based on the information provided by Riaz, Cabin Man of Railway
Station, Farooqabad, but the said Riaz did not appear before the learned Trial Court;
that the prosecution case is based on circumstantial evidence; that it is the case of
Nazir Ahmad (PW.1) that the information regarding the death of Muhammad Ramzan
was provided by one Munir Ahmad to his wife, but neither the said Munir Ahmad nor the
wife of Nazir Ahmad (PW.1) appeared before the learned Trial Court; that so far as the
dying declaration of Muhammad Ramzan (deceased), allegedly made before Nazir
Ahmad (PW.1) and Sultan Ahmad (PW.3) is concerned, the learned counsel for the
appellants contends that Muhammad Ramzan (deceased) was not even in a position to
speak, because of the injuries sustained by him were on his neck, and this fact is
confirmed by Dr. Muhammad Afzal (PW.10) and Dr. Humayun Siddique (PW.11); that
the statements of Nazir Ahmad (PW.1) and Sultan Ahmad (PW.3) are belied from the
other circumstances of the case, as their statements were recorded on 17.1.2004 and
21.1.2004, respectively, but the inquest report (Ex.PH), which was prepared on
18.1.2004 contains the same facts as are mentioned in the F.I.R. (Ex.PA/1) in the
column of „Mukhtasir Halat Muqadima‟ (brief history of the case) and even the site-plan
(Ex.PF), which was prepared by Muhammad Riaz, Draftsman (PW.7) on 23.1.2004,
does not contain the name of any of the appellants; that it is the case of Nazir Ahmad
(PW.1) and Sultan Ahmad (PW.3) that the deceased Muhammad Ramzan informed
them that it was Muhammad Ashraf alias Kala appellant, who fired at him and Tariq
Mahmood alias Ghanti appellant took him into his „Japha‟, but their statements are
belied from the documentary evidence, produced by the prosecution itself, as the
deceased Muhammad Ramzan was firstly taken in an injured condition to the DHQ
Hospital, Sheikhupura, wherefrom he was referred to Mayo Hospital, Lahore, and he
was medically examined by Dr. Humayun Siddique (PW.11), who prepared his
operation notes (Ex.PK), but in the said MLR (Ex.PL), all the material columns such as,
name of the relative of the injured, time of examination etc., have been left blank. So far
as the evidence of Wajtakkar furnished by Sultan Ahmad (PW.3) is concerned, the
learned counsel for the appellants contends that the same is not confidence inspiring,
because at the relevant time of incident, both the appellants were allegedly present in a
white coloured car, which was allegedly driven by Tariq Mahmood appellant, but he has
not stated anything that any of the appellants was carrying anything in his hand and
moreover the place of alleged Wajtakkar is far away from the place of occurrence and
even otherwise in the foggy night of winter season, it was not possible to identify the
appellants; that so far as the evidence of extra-judicial confession is concerned, the
learned counsel for the appellants contends that there is nothing on the record to show
that what prompted the appellants for making confession before Khurshid Ahmad
(PW.9), as he was not having any social status. Moreover, his statement was recorded
on 11.1.2005, i.e. after the arrest of the appellants in this case, and he has himself
admitted that his statement was recorded by the police after 25/26 days of the
occurrence. As far as the recovery of pistol (P.4), allegedly recovered at the instance of
the appellant Muhammad Ashraf alias Kala and positive report of FSL (Ex.PU) are
concerened, the learned counsel for the appellants contends that the same is not
helpful for prosecution, as it has come on the record through the statement of Zulfiqar
Ali, Head Constable (PW.4), that he took crime empty and deposited the same in the
office of FSL on 9.2.2004, whereas, it is the case of the prosecution that the appellant
Muhammad Ashraf alias Kala was arrested on 8.2.2004 by Muhammad Bakhsh, S.I.
(PW.15); that there is no evidence that the crime empty was deposited in the
„Malkhana‟, as the relevant column of register No. 19 was blank; that even otherwise,
this evidence is only of corroborative in nature, and it is relevant and material if the other
prosecution evidence is accepted; that there is no evidence to prove the motive as
alleged by the prosecution, therefore, this appeal may be accepted and the appellants
may be acquitted from the charges.
6. Conversely, the learned Deputy Prosecutor-General, for the State,
assisted by the learned counsel for the complainant opposes this appeal on the grounds
that had there been any enmity or malice on the part of the complainant and the other
witnesses, the appellants could have easily been named in the F.I.R. (Ex.PA/1), as they
are closely related to the deceased (Muhammad Ramzan), Nazir Ahmad (PW.1) and
Sultan Ahmad (PW.3) and it has also come on the record that the deceased
Muhammad Ramzan was helping the appellant Muhammad Ashraf alias Kala, because
he was a pious man; that the prosecution has fully proved its case on the basis of
evidence available on the record. So far as the dying declaration of Muhammad
Ramzan (deceased) is concerned, the learned counsel for the complainant contends
that the injured Muhammad Ramzan, received fire-arm injury on his neck and as such,
was expected to describe all the details of the incident, however, he has categorically
stated before Nazir Ahmad (PW.1) and Sultan Ahmad (PW.3) that it was the appellant
Muhammad Ashraf alias Kala, who caused fire-arm injury, which hit at his neck,
whereas, the other appellant Tariq Mahmood alias Ghanti took him in his „Japha‟; tha
both Nazir Ahmad (PW.1) and Sultan Ahmad (PW.3) are truthful witnesses, and they
did not exaggerate their statements; that it has also come on the record through the
statement of Muhammad Latif, Head Constable (PW.14) that Nazir Ahmad (PW.1) and
Sultan Ahamd (PW.3) came at the spot and took the deceased Muhammad Ramzan to
DHQ Hospital, Sheikhupura in an injured condition; that the dying declaration of
Muhammad Ramzan (deceased) made before Nazir Ahmad (PW.1) and Sultan Ahmad
(PW.3) is also corroborated by the evidence of Wajtakkar furnished by Sultan Ahmad
(PW.3) and evidence of extra-judicial confession provided by Khurshid Ahmad (PW.9),
who is an independent witness; that the recovery of weapon of offence i.e. pistol (P.4)
from appellant Muhammad Ashraf alias Kala and positive report of FSL (Ex.PU) fully
connect the appellant namely Muhammad Ashraf alias Kala with the commission of
crime. As far as motive is concerned, the learned counsel for the complainant contends
that it has duly been proved through the statements of Nazir Ahmad (PW.1) and Sultan
Ahmad (PW.3), therefore, appeal of the appellants may be dismissed and murder
reference be answered in the affirmative.
7. We have heard the arguments of the learned counsel for the appellants,
and the learned counsel for the complainant, as well as, learned Deputy Prosecutor-
General, and have also gone through the evidence available on the record, with their
able assistance.
8. The occurrence in this case as per F.I.R. (Ex.PA/1) took place on
16.1.2004, at 21.30 p.m., at West Cabin, Railway Station, Farooqabad. The matter was
reported to the police through application (Ex.PA) on the same day at 11.00 p.m.,
whereas, the formal F.I.R. (Ex.PA/1) was chalked out on 17.1.2004, at 8.20 p.m., by
Muhammad Latif (PW.14). The Police Station, Railway Police, Farooqabad, District
Sheikhupura, was situated at a distance of 87 kilometers from the place of occurrence.
Admittedly, there is no eye-witness of this incident and the prosecution case is based on
circumstantial evidence, which consists of (1) Wajtakkar, (2) dying declaration, (3)
motive, (4) extra-judicial confession, and (5) recovery of pistol (P.4) allegedly from the
possession of Muhammad Ashrafr alias Kala appellant, and positive report of FSL
(Ex.PU).
Since the prosecution case is based on the circumstantial evidence, therefore,
utmost care and caution is required for reaching at the just decision of the case. By
now, it is settled that in such-like cases, the chain link should be so inter-connected with
each other that its one end touches the dead-body while the other end goes around the
neck of the accused and if any chain link is missing then its benefit should be given to
the accused. In this regard, guidance has been sought from the judgments of the
learned apex Court of the country reported as The State Vs. Manzoor Ahmad (PLD
1966 Supreme Court 664), Asadullah and another Vs. State and another (PLJ 1999 SC
1018), Ch. Barkat Ali Vs. Major Karam Elahi Zia and another (1992 SCMR 1047),
Sarfraz Khan Vs. The State (1996 SCMR 188), Altaf Hussain Vs. Fakhar Hussain and
another (2008 SCMR 1103), Ibrahim and others Vs. The State (2009 SCMR 407) and
Muhammad Hussain Vs. The State (2011 SCMR 1127).
9. Keeping in view the parameters, laid down in the above-mentioned
judgments, we will discuss each part of the prosecution evidence, separately.
(1) WAJTAKKAR
10. The evidence of Wajtakkar has been furnished by Sultan Ahmad (PW.3).
The said witness is real brother of Muhammad Ramzan (deceased). According to his
statement, on the day of occurrence i.e. 16.1.2004, at about 8.30 p.m., he and
Muhammad Ramzan (deceased), after performing their duties alighted from the train at
Farooqabad Railway Station. His bicycle was lying in the Railway quarters, whereas,
the bicycle of the deceased Muhammad Ramzan was lying in the cabin of Railway
Station. He has further stated that after taking their bicycles, they used to reassemble at
„Phatek‟ No. 47. On the day of occurrence, he was waiting for his brother Muhammad
Ramzan at the specified place. After sometime, a white coloured car bearing
registration No. 706 came from cabin side and went towards the soaling side, after
crossing Railway „Phatek‟ No. 47. He has next stated that the said car was being driven
by Tariq Mehmood appellant, who was accompanied by Muhammad Ashraf appellant.
After sometime, he (Sultan Ahmad (PW.3) went to the cabin to know the situation as to
why his brother Muhammad Ramzan (deceased) had not yet come. When he reached
near the cabin, he heard the hue and cry of his brother Muhammad Ramzan
(deceased). He has further stated that he started weeping, when Riaz came at the spot
and consoled him. After a short while, his brother Nazir Ahmad (PW.1) and Yousaf
reached at the spot. According to the said witness, Muhammad Ramzan (deceased)
was shifted to the Civil Hospital, Sheikhupura in a car for his medical treatment. On the
way, Muhammad Ramzan (deceased) stated before them that he was shot by
Muhammad Ashraf appellant, whereas, Tariq Mehmood co-accused caught hold of him.
Sultan Ahmad (PW.3), who is real brother of Muhammad Ramzan (deceased), is the
sole witness of Wajtakkar. The occurrence in this case took place on 16.1.2004 at 21.30
p.m. (9.30 p.m.), whereas, the matter was reported to the police through application
(Ex.PA), at 23.00 (11.00 p.m.), but neither the name of Sultan Ahmad (PW.3) nor the
name of any accused is mentioned in it, rather it is mentioned in application (Ex.PA) that
Muhammad Ramzan (deceased) was injured at the hands of some unknown accused.
Sultan Ahmad (PW.3) has claimed that Riaz, Cabin Man came at the spot, when he was
already present near his brother Muhammad Ramzan (deceased). Had he been present
at the spot, then the application (Ex.PA) should have been moved on his behalf, or at
least his name and the name of accused should have been mentioned in it. His
statement to the police (Ex.DB) was recorded on 21.1.2004 i.e. five days after the
occurrence. No explanation whatsoever for the above-mentioned delay has been given
in his statement (Ex.DB). Moreover, the presence of this witness has not been shown in
the site-plan (Ex.PF), which was prepared by Muhammad Riaz (PW.7) on 23.1.2004, on
the pointation of the complainant and the prosecution witnesses. Similarly, the name of
any accused has also not been mentioned in the above-mentioned documentary
evidence of the prosecution. All the recovery memos., i.e., recovery memo. of blood-
stained earth (Ex.PB), recovery memo. of empty (Ex.PC), and recovery memo. of
chadar/shoes, etc. (Ex.PD), are attested by Muhammad Ashraf, Constable, Police Post,
Railway Police, Farooqabad, Riaz Ahmad, Cabin Man of Railway Station, Farooqabad,
and Muhammad Awais, Station Master, Railway Station, Farooqabad. Neither Sultan
Ahmad (PW.3) nor Nazir Ahmad (PW.1) has been cited as a witness in the above-
mentioned recovery memos. The name of Sultan Ahmad (PW.3) or Nazir Ahmad
(PW.1) has not been mentioned in the relevant column of medico-legal report (Ex.PL) of
Muhammad Ramzan (deceased). The column of name of the relative or friend, who had
brought Muhammad Ramzan (deceased) to the Hospital has been left blank in the
above-mentioned document, which indicates that Sultan Ahmad (PW.3) or Nazir Ahmad
(PW.1) were not present at the time of occurrence, and that‟s why, their names were not
mentioned in the above-mentioned documents. Similarly, in the column of „Mukhtasir
Halat Muqadima‟ (brief history of the case), of the inquest report (Ex.PH), the names of
Sultan Ahmad (PW.3) and Nazir Ahmad (PW.1) were not mentioned in any context.
Moreover, it is mentioned in the said document (Ex.PH) that Muhammad Ramzan
(deceased) was injured by some unknown accused. The inquest report (Ex.PH) was
prepared on 18.1.2004, and the names of above-mentioned prosecution witnesses have
not been mentioned in it. According to the evidence of Sultan Ahmad (PW.3), he
reached at the spot before the arrival of Riaz, Cabin Man of Railway Station,
Farooqabad, but said Riaz was never produced before the learned Trial Court to
corroborate the said version of Sultan Ahmad (PW.3). It is the case of the prosecution
that said Riaz provided the information of death of Muhammad Ramzan to the
complainant Muhammad Awais (PW.2), who reported the matter to the police thereafter.
The said Riaz was a very natural witness as it was he, who informed the complainant
that Muhammad Ramzan was injured by the firing of some unknown, but his evidence
was withheld by the prosecution, therefore, presumption as envisaged under Article
129(g) of the Qanun-e-Shahadat Order, 1984, can be drawn against the prosecution,
and it is presumed that had he been produced by the prosecution, he would have not
supported the prosecution version put-forth by Sultan Ahmad (PW.3). In the light of
above discussion, the prosecution evidence of „Wajtakkar‟ is not worthy of reliance.
 (2) DYING DECLARATION AND MEDICAL EVIDENCE
11. This evidence of dying declaration has been produced through Nazir
Ahmad (PW.1) and Sultan Ahmad (PW.3). The evidence of Wajtakkar produced by
Sultan Ahmad (PW.3) has already been discussed earlier. Nazir Ahmad (PW.1) is also
real brother of Muhammad Ramzan (deceased). He has stated before the learned Trial
Court that on 16.1.2004, he was present at his „Dera‟, where he got the information that
Muhammad Ramzan (deceased) has been injured and thereafter, reached at the place
of occurrence and took Muhammad Ramzan (deceased) in an injured condition to DHQ
Hospital, Sheikhupura. The Doctor referred Muhammad Ramzan (deceased) to Mayo
Hospital, Lahore, and on the way from Sheikhupura to Mayo Hospital, Lahore,
Muhammad Ramzan stated that he received injury due to the fire shot of Muhammad
Ashraf alias Kala appellant, whereas he was taken into „Japha‟ by Tariq co-accused.
Admittedly, Muhammad Ramzan (deceased) received fire-arm injuries on his neck. The
prosecution produced medical evidence through three prosecution witnesses namely,
Dr. Muhammad Afzal (PW.10), Dr. Humayun Siddique (PW.11), and Dr. Muhammad
Ashraf Javed (PW.12). The statements of the above-mentioned witnesses regarding the
condition of injured Muhammad Ramzan (deceased) for making a dying declaration, are
contradictory. Dr. Muhammad Ashraf Javed (PW.12) has stated during his cross-
examination that the injured Muhammad Ramzan was in a position to utter each and
every word from his mouth. He volunteered that he asked the injured person of his
problem, who replied that first of all his pain trouble be removed. This witness has
noticed only one injury on the person of Muhammad Ramzan (deceased), whereas,
according to the statements of Dr. Muhammad Afzal (PW.10) and Dr. Humayun
Siddique (PW.11), where were three injuries (two entry and one exit) on the person of
Muhammad Ramzan (deceased). In the MLR (Ex.PL), all the material columns such as
name of the relative of the injured, time of examination, have been left blank by the
above-mentioned witness (Dr. Muhammad Ashraf Javed (PW.12). Dr. Humayun
Siddique (PW.11) has stated during his cross-examination that when the larynx is
injured due to odema of larynx and when the tracheostomy, it is not possible to produce
understandable voice with ease. Dr. Muhammad Afzal (PW.10), who conducted the
post-mortem examination on the dead-body of Muhammad Ramzan (deceased) has
stated, during his cross-examination, that it is not possible to produce any
understandable human voice when the left internal juggler vein and trachea and the
major blood vessels of the neck were damaged and blood clots were also present in the
neck.
In this case, regarding the condition of Muhammad Ramzan (deceased), the
most important evidence is that of Muhammad Latif, Head Constable (PW.14). Fard
Biyan (Ex.PA) was prepared by this prosecution witness. His name is also mentioned in
column No. 2 of the F.I.R. (Ex.PA/1). He has stated that on 14.1.2004, he was posted
as Incharge Railway Police Post, Farooqabad. On 16.1.2004, when he received
information that Muhammad Ramzan (deceased) received a fire-arm injury and was
lying near the Railway Cabin, he reached at the spot. According to his statement, the
Station Master sent the complaint (Ex.PA). He recorded Karvaee police on it. He
reached at DHQ Hospital, Sheikhupura, and wrote an application (Ex.PJ) for recording
the statement of injured Muhammad Ramzan, but the Doctor gave his opinion on it that
the patient (Muhammad Ramzan deceased) was not fit for statement. The application
(Ex.PJ) is also available on the record. Muhammad Latif, Head Constable (PW.14) has
been produced by the prosecution itself. He was not declared hostile by the
prosecution.
This is an admitted fact that the statement of the deceased Muhammad Ramzan
was not recorded either in DHQ Hospital, Sheikhupura, or in Mayo Hospital, Lahore.
The alleged dying declaration was not made in the presence of the Doctor or any staff
member of the above-mentioned hospitals. It was not recorded by any police official,
therefore, the alleged dying declaration of Muhammad Ramzan (deceased) before the
prosecution witnesses Nazir Ahmad (PW.1) and Sultan Ahmad (PW.3), who are real
brothers of the deceased could hardly be termed as dying declaration. It is by now a
well-settled law that a dying declaration or the statement of a person without the test of
cross-examination is a weak kind of evidence and its credibility depends upon the
authenticity of the witnesses and the circumstances under which it was alleged to have
been made. Reference in this context may be made to the case of Mst. Zahida Bibi Vs.
The State (PLD 2006 Supreme Court 255), wherein at page 262, the Hon‟ble Supreme
Court of Pakistan has held as under:--
“This is an admitted fact that the statement of the deceased was not recorded by
the Sub-Inspector of police in hospital in presence of the doctor and further
neither any member of the hospital staff was associated at the time of recording
the statement nor it was got verified by any official of the hospital that the
statement was actually made by the deceased. Be that as it may, the status of
such a statement would be hardly a statement under Section 161, Cr.P.C. and
not a dying declaration of the deceased. This may be seen that the dying
declaration or a statement of a person without the test of cross-examination is a
weak kind of evidence and its credibility certainly depends upon the authenticity
of the record and the circumstances under which it is recorded, therefore,
believing or disbelieving the evidence of dying declaration is a matter of judgment
but it is dangerous to accept such statement without careful scrutiny of the
evidence and the surrounding circumstances, to draw a correct conclusion
regarding its truthfulness. The rule of criminal administration of justice is that the
dying declaration like the statement of an interested witness requires close
scrutiny and is not to be believed merely for the reason that dying person is not
expected to tell lie. This is a matter of common knowledge that in such
circumstances in preference to any other person, a doctor is most trustworthy
and reliable person for a patient to depose confidence in him with the expectation
of sympathy and better treatment to disclose the true facts.”
According to the above-mentioned prosecution evidence, there are two
possibilities about the condition of the deceased Muhammad Ramzan to make dying
declaration. It is by now a well-settled law that when a fact is capable for two
interpretations/possibilities, then one favourable to the accused is to be accepted.
Reference in this context may be made to the case of Muhammad Sultan Vs.
Muhammad Aslam and another (1988 SCMR 857) and Ghulam Hussain alias Hussain
Bakhsh Vs. The State and another (PLD 1994 Supreme Court 31). Even otherwise, the
presence of Nazir Ahmad (PW.1) and Sultan Ahmad (PW.3) at the time of occurrence,
or soon thereafter has not been established in this case, because as discussed earlier,
none of the above-mentioned witnesses are either named in the application (Ex.PA),
nor they have been cited as witnesses in any of the recovery memos. i.e. (Ex.PB),
(Ex.PC), and (Ex.PD). Their names were also not mentioned in the medico-legal report
(Ex.PL) of Muhammad Ramzan (deceased). The said deceased Muhammad Ramzan
was medically examined during his life-time by Dr. Humayun Siddique (PW.11) and Dr.
Muhammad Ashraf Javed (PW.12). None of the above-mentioned witnesses have
uttered a single word about the dying declaration of Muhammad Ramzan (deceased).
Therefore, we are of the view that the evidence of prosecution in respect of dying
declaration is not reliable.
(3) EXTRA-JUDICIAL CONFESSION
12. Khurshid Ahmad (PW.9) is a witness of alleged extra-judicial confession.
He has stated before the learned Trial Court that after some days of the murder of
Muhammad Ramzan (deceased), the appellant Muhammad Ashraf alias Kala came to
his „Dera‟ and told him that he was much worried, because the police had conducted a
raid at his house. The appellant allegedly further told him that he (Muhammad Ashraf
appellant) and his co-accused Tariq alias Ghanti had committed the murder of
Muhammad Ramzan (deceased) after due consultation. Khurshid Ahmad (PW.9) in his
statement (Ex.DF) has not given the date or time of the alleged extra-judicial
confession. He has simply stated that after some days of the murder of Muhammad
Ramzan (deceased), the extra-judicial confession was made before him by Muhammad
Ashraf alias Kala appellant. The occurrence in his case took place on 16.1.2004,
whereas, statement (Ex.DF) of Khurshid Ahmad was recorded by the police on
11.2.2004. This witness has given no plausible explanation for such a long silence. He
has not given any reason for the delay in making his statement before the police.
Similarly, no date of alleged extra-judicial confession was mentioned in his statement
before the Court. He is a cultivator by profession. It has not been established by the
prosecution that he was holding any important post/office, or he was a person in
authority, or he had any influence over the complainant party to affect a compromise
between the appellants and the complainant.
The evidentiary value of the extra-judicial confession (joint or otherwise) came up
for consideration before the august Supreme Court of Pakistan in the case reported as
Sajid Mumtaz and others Vs. Basharat and others (2006 SCMR 231) wherein, at page
238, the apex Court of Pakistan has been pleased to lay emphasis as under:--
“17. ……….This Court and its predecessor Courts (Federal Court) have
elaborately laid down the law regarding extra-judicial confession starting
from Ahmad Vs. The Crown (PLD 1961 FC 103-107) upto the latest.
Extra-judicial confession has always been taken with a pinch of salt. In
Ahmad Vs. The Crown, it was observed that in this country (as a whole)
extra-judicial confession must be received with utmost caution. Further, it
 was observed from time to time, that before acting upon a retracted extra-
judicial confession, the Court must inquire into all material points and
surrounding circumstances to „satisfy‟ itself fully that the confession cannot
but be „true‟. As, an extra-judicial confession is not a direct evidence, it
must be corroborated in material particulars before being made the basis
of conviction.
18. It has been further held that the status of the person before whom the
extra-judicial confession is made must be kept in view, that joint
confession cannot be used against either of them and that it is always a
weak type of evidence which can easily be procured whenever direct
evidence is not available. Exercise of utmost care and caution has always
been the rule of prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should
at all confess. No doubt the phenomenon of confession is not altogether
unknown but being a human conduct, it had to be visualized, appreciated
and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all
confess. There could be a few motivating factors like: (i) to boast off, (ii) to
ventilate the suffocating conscience and (iii) to seek help when actually
trapped by investigation. Boasting off is very rare in such-like heinous
offences where fear dominates and is always done before an extreme
confident as well as the one who shares close secrets. To make
confession in order to give vent to ones pressure on mind and conscience
is another aspect of the same psyche. One gives vent to ones feelings
and one removes catharses only before a strong and close confident. In
the instant case the position of the witness before whom extra-judicial
confession is made is such that they are neither the close confident of the
accused nor in any manner said to be sharing any habit or association
with the accused. Both the possibilities of boasting and ventilating in the
circumstances are excluded from consideration.
Another most important and natural purpose of making extra-judicial confession
is to seek help from a third person. Help is sought, firstly, when a person is sufficiently
tapped and, secondly, from one who is authoritative, socially or officially.
As observed by Federal Court, we would reiterate especially referring to this part
of the country, that extra-judicial confession have almost become a norm when the
prosecution cannot otherwise succeed. Rather, it may be observed with concern as well
as with regret that when the Investigating Officer fails to padding and concoctions like
extra-judicial confession. Such confessions by now have become the sings of
incompetent investigation. A judicial mind, before relaying upon such weak type of
evidence, capable of being effortlessly procured must ask a few questions like why the
accused should at all confess, what is the time lag between the occurrence and the
confession, whether the accused had been fully trapped during investigation before
making the confession, what is the nature and gravity of the offence involved, what is
the relationship or friendship of the witnesses with the maker of confession and what,
above all, is the position or authority held by the witness.” (emphasis supplied)
The above view has been reiterated in the case reported as Tahir Javed Vs. The State
(2009 SCMR 166), wherein, at page 170, the learned august Supreme Court of
Pakistan, has been pleased to observe as under:--
“It may be noted here that since extra-judicial confession is easy to procure as it
can be cultivated at any time, therefore, normally, it is considered as a weak
piece of evidence and Court would expect sufficient and reliable corroboration for
such type of evidence. The extra-judicial confession therefore must be
considered with overall context of the prosecution case and the evidence on
record. Right from the case of Ahmed v. The Crown (PLD 1951 FC 107) it has
been time and again laid down by this Court that extra-judicial confession can be
used against the accused only when it comes from unimpeachable sources and
trustworthy evidence is available to corroborate it. Reference in this regard may
usefully be made to the following reported judgments:--
(1) Sajid Mumtaz and others Vs. Basharat and others (2006 SCMR 231), (2)
Ziaul Rehman v. The State (2001 SCMR 1405), (3) Tayyab Hussain Shah
v. The State (2000 SCMR 683, and (4) Sarfraz Khan v. The State and
others (1996 SCMR 188).”
In light of the above discussion, we are of the view that the prosecution evidence
of extra-judicial confession in the instant case is also not worthy of reliance.
(4) MOTIVE
13. Nazir Ahmad (PW.1) and Sultan Ahmad (PW.3) have given the evidence
of motive. It was alleged by the above-mentioned witnesses that motive behind the
occurrence was that about 2/3 months prior to the occurrence, a quarrel took place
between Asif, the younger brother of appellant Muhammad Ashraf alias Kala and Adnan
the son of Muhammad Ramzan (deceased).
There is nothing on the record to establish that the matter was reported to the
police or any other authority regarding the alleged quarrel, which took place between
the above-mentioned Asif and Adnan. No reason of the alleged quarrel has been given
by Nazir Ahmad (PW.1), or Sultan Ahmad (PW.3). According to the above-mentioned
witnesses, the quarrel allegedly took place 2/3 months prior to the occurrence and a
compromise was also affected after the said quarrel. Therefore in the circumstances,
we are of the view that the motive, as alleged by the prosecution, has not been
established in this case.
(5) RECOVERY
14. According to the prosecution case, pistol (P.4) was recovered at the
instance of Muhammad Ashraf alias Kala appellant during his physical remand. The
appellant Muhammad Ashraf alias Kala was arrested in this case on 8.4.2004, and
pistol (P.4) was recovered from his possession on 16.2.2004. The report of FSL (Ex.PU)
is positive. Although, Muhammad Latif, Head Constable (PW.14) has stated before the
learned Trial Court that he handed over the parcel containing empty to Muhammad
Kashif, Constable (PW.13) on 8.2.2004, for its onward transmission to the office of FSL,
Lahore, but his statement is not helpful to the appellant, because Muhammad Kashir,
Constable (PW.13) has stated before the learned Trial Court that the parcel of empty
cartridge was handed over to him, and he deposited the same in the office of FSL,
Lahore, on 1.2.2004. Similarly, it is evident from the report of FSL (Ex.PU) that the
empty was received in the office of FSL on 1.2.2004, whereas, the parcel of pistol (P.4)
was received on 17.2.2004. Therefore, the above objection regarding the delay in
sending the empty to the office of FSL, after the arrest of the appellant Muhammad
Ashraf alias Kala, is of no avail to the appellant. Anyhow, the evidence of recovery is
only of corroborative in nature and conviction of the appellants cannot be sustained
merely on the basis of recovery of pistol (P.4) and positive report of FSL (Ex.PU).
In the case of Muhammad Afzal alias Abdullah and others Vs. The State and
others (2009 SCMR 436), the Hon‟ble Supreme Court of Pakistan at pages 443 and 444
has held as under:--
“After taking out from consideration the ocular evidence, the evidence of
identification and the medical evidence, we are left with the evidence of
recoveries only, which being purely corroboratory in nature, in our view, alone is
not capable to bring home charge against the appellant in the absence of any
direct evidence because it is well-settled that unless direct or substantive
evidence is available conviction cannot be recorded on the basis of any other
type of evidence howsoever, convincing it may be.”
Similarly, in the case of Abdul Mateen Vs. Sahib Khan and others (PLD 2006 Supreme
Court 538), at page 543, the following dictum was laid down by the Hon‟ble Supreme
Court of Pakistan:--
“It is a settled law that, even if recovery is believed, it is only corroborative. When
there is no evidence on record to be relied upon, then there is nothing which can
be corroborated by the recovery as law laid down by this Court in Saifullah’s case
(1985 SCMR 410).”
Similar view was taken by the Hon‟ble Supreme Court of Pakistan in the case of
Muhammad Yaqub Vs. The State (1971 SCMR 756), and Nek Muhammad and another
Vs. The State (PLD 1995 Supreme Court 516).
15. The prosecution also produced another circumstantial evidence against
the appellants in the shape of Muhammad Akram (PW.5), who has stated that five days
prior to the murder of Muhammad Ramzan (deceased), he was coming from his „Dera‟
and when he reached „Such Khand‟, Ashraf and Tariq appellants while armed with
„sotas‟ were sitting and stated before him that they wanted to murder Muhammad
Ramzan (deceased). He forbade them but they insisted for killing Muhammad Ramzan
(deceased). His statement before the police (Ex.DC) is available on the record. He has
nowhere mentioned in his statement before the police (Ex.DC) that the appellants told
him that they wanted to commit the murder of Muhammad Ramzan (deceased).
Although this witness has claimed that five days prior to the occurrence, he came to
know about the intention of the appellants, but he never informed the police regarding
the plan of the appellants till the date of occurrence. The occurrence in this case took
place on 16.1.2004, whereas, he appeared before the police for the first time and made
his statement (Ex.DC) on 27.1.2004. No reason has been given by this witness as to
why the appellants have told him regarding their intention to kill Muhammad Ramzan
(deceased). In the light of above discussion, we are of the view that the evidence of
Muhammad Akram (PW.5) is not reliable and trustworthy.
16. We have already disbelieved the circumstantial evidence of the
prosecution, which was produced in the shape of Wajtakkar, dying declaration, extra-
judicial confession, and motive, therefore, we are of the view that the prosecution has
failed to prove its case against the appellants namely, Muhammad Ashraf alias Kala,
and Tariq Mehmood alias Ghanti, beyond the shadow of doubt, therefore, by extending
the benefit of doubt, we accept this appeal, and set aside the conviction and sentence
awarded to the appellants, namely, Muhammad Ashraf alias Kala and Tariq Mehmood
alias Ghanti. The appellants Muhammad Ashraf alias Kala and Tariq Mehmood alias
Ghanti are in jail. They shall be released forthwith if not required to be detained in any
other case.
Death sentence awarded to the appellants Muhammad Ashraf alias Kala and
Tariq Mehmood alias Ghanti is not CONFIRMED and Murder Reference is answered in
the NEGATIVE.
Criminal appeal allowed.