TAHIR JAVED Versus THE STATE

CH. EJAZ YOUSAF, J.--- These appeals by way of leave are directed against the judgment dated 3- 5-2005 passed by a learned Single Bench of the. Lahore High Court, Lahore, whereby appeal filed by the convicts/accused persons against their convictions and sentences recorded by the Additional Sessions Judge, Gujranwala, was dismissed.

2.Facts of the case, in brief, are that on 13-9-2001 at 10-00 a.m. Written report Ex-PA was lodged by one Rana Muhammad Sarwar with Police Station Gakhar Mandi, District Gujranwala, wherein it was alleged that on 12-9-2001 at about 3-00 p.m. The complainant was present at his Dera, when Rana Farooq Ahmad along with appellant Tahir Javed came there on a bicycle and took his son, namely, Rafaqat Ali with them towards Ojla Pul. Since his son did not come back at night, therefore, in the morning on the next day he enquired from Rana Farooq Ahmad about the whereabouts of his son but he showed ignorance. On the same day Muhammad Mushtaq disclosed to him that he, i,e, said Muhammad Mushtaq had seen Rana Farooq, Rafaqat Ali (deceased) and Muhammad Tahir, appellant, on a bicycle going towards Ojla Pul. It was further stated in the complaint that on the same day at ,about 10-00 a.m. Dead body of his son was recovered from the bank of canal in the condition that he was slaughtered and had also a deep inside wound -in the abdomen. It was mentioned in the complaint that his son was murdered by unknown persons. On the stated allegations formal F.I.R. Bearing No,295 was registered, at the said Police Station, under section 302/34 PPC and investigation was carried out in pursuance thereof. On the completion of investigation, accused persons, four in number, were challaned to the Court for trial. The accused persons denied the charge and pleaded innocence. At the trial, the prosecution in order to prove the charge and substantiate the allegation levelled against the accused persons produced 15 witnesses in all, whereafter the accused persons were examined under section 342, Cr.P.C. In their above statements all the accused persons except Muhammad Arif pleaded that they, were falsely implicated in the case. Muhammad Arif in his statement, however, in reply to question No,14 stated that in fact Ghulam Yaseen and Farooq, had committed murder of the deceased and he, i,e, Muhammad Arif was left behind as he had stayed back in order to answer the call of nature. He pleaded that he had not snatched anything from the deceased. The accused persons however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of section 340(2) Cr.P.C. After hearing arguments of the learned counsel for the parties the learned trial Court convicted all the four accused persons including the appellants under section 302(b)/34 PPC and sentenced them to life imprisonment each with the direction to pay a sum of Rs,One lac, each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B Cr.P.C. Was, however, not extended to the convicts/accused persons. Judgment of the trial Court was assailed before the High Court by way of Criminal Appeal No,339/J of 2002, which was dismissed vide the impugned judgment, hence these appeals.

3.It would be pertinent to mention here that convict Muhammad Arif, during pendency of the appeal was acquitted of the charge as a result of compromise between him and the complainant party, whereas Rana Farooq Ahmed did not opt to appeal.

4.Mr. S.M. Nazim, learned counsel for the appellant Tahir Javed has contended that in the F.I.R. Neither any of the accused persons were nominated nor any suspicion was shown against them, nor it was alleged that they had had any motive to commit murder of the deceased. It is further his case that extra-judicial confession was not true. Even otherwise the confession allegedly made by all the accused persons jointly was not admissible in evidence; that evidence of recoveries of daggers, especially at the instance of appellant Tahir Javed, was of no help because it was got effected from the canal bank which is a public thoroughfare and that evidence of last seen too, was not believable because if the deceased was seen in the company of the accused persons in the night of occurrence by the witnesses, then there was no justification for not disclosing it to the complainant party by the witnesses at the very outset, particularly when as per P.Ws.12 and 13 accused persons were available in the village and had asked for grant of pardon and he submitted that since important links in the chain of circumstantial evidence were missing, therefore, the appellants could not have been convicted for the offence.

5.In Cr.A.No,771 of 2006 Mr. Javed Aziz Sindhu, Advocate Supreme Court was appointed as counsel on State expense but today he is not present, therefore in his place Hafiz S.A. Rehman, learned Senior Advocate Supreme Court, is appointed as counsel. He, while adopting the arguments of the learned counsel for the appellant Tahir Javed, added that since extra-judicial confession was made jointly by all the accused persons, therefore it was not admissible in evidence; that the evidence of recoveries i,e, wrist watch and a diary allegedly made at the instance of appellapt Ghulam Yaseen, were of no help to the prosecution as it has not come on record that the recovered articles actually belonged to the deceased. He pleaded that though it was alleged that appellant Hafiz Ghulam Yaseen had suspicion that the deceased had illicit relations with his wife but the alleged motive was also not proved. He added that since the evidence furnished by the prosecution was scanty and shaky and important links in the chain of circumstantial evidence were missing, therefore, the appellant could not have been convicted for the offence.

6.Mian Asif Mumtaz, learned Deputy Prosecutor General, Punjab, on the other hand while controverting the contentions raised by the learned counsel for the appellants submitted that F.I.R. Was lodged promptly and it was correctly mentioned therein that two of the accused persons, namely, Rana Farooq and Tahir Javed had taken away the deceased; that the deceased was seen in the company of accused persons at Ojla Pul in the evening; that the prosecution witnesses were independent and that they had no motive or enmity to falsely implicate the accused persons in the offence; that extra-judicial confession, recoveries of daggers as well as the articles belonging to the deceased from the possession of the accused persons and other circumstantial evidence including the evidence of last seen was sufficient to bring home charge against the appellants.

7.We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, with their assistance, minutely.

8.In the instant case the occurrence is unseen. The prosecution case rests on the evidence of extra-judicial confession furnished by P.W.12 Muhammad Nazir and P.W.13 Zafar Iqbal, the last seen evidence furnished by P.W.8 Muhammad Mushtaq, P.W.9 Nasir Mahmood and P.W.10 Riasat Ali the evidence of recovery of daggers at the instance of appellant Tahir Javed and acquitted accused Muhammad Arif, and the recovery of articles belonging to the deceased i,e, watch and note book, from the possession of Ghulam Yaseen and recovery of purse along with a sum of Rs,500 at the instance of Rana Farooq, and the medical evidence.

9.In order to determine evidentiary value of these pieces of evidence, we would like to take the same one by one.

10.So far the evidence of extra-judicial confession is concerned, it has been challenged mainly on the ground that the confession being joint by all the four accused persons was not admissible in evidence, but we are afraid the contention on its face is devoid of force because both P.Ws.12 and 13 have stated that though all the accused persons came to the Wahla Rice Mills near Ojla Pul and asked P.W.12 Muhammad Nazir to get them pardoned from the complainant yet, both the P.Ws., are unanimous on the point that it was only Ghulam Yaseen, who had confessed to commit ,murder of the deceased and rest of the accused persons uttered not a single word, hence by no stretch of imagination, it could have been concluded that it was a joint confession by all the accused persons. In the circumstances the concession made by Ghulam Yaseen, in our view, would not bind the other accused persons and it would be effective against Ghulam Yasin only. 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 over all 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:---

In the instant case, the evidence of extra-judicial confession suffers from patent infirmities inasmu ch as though it has come on record that P.W.12 was a councillor and was Chairman of Local Zakat and Ushar Committee and could have been termed as a man of authority yet, according to his statement, extra-judicial confession was made by the accused persons in presence of a number of other persons including Zafar, Javed and Ansar which appears to be quite improbable because confession of such a heinous offence like murder is not normally made in the public. Had Hafiz Ghulam Yaseen or the other accused persons taken said Muhammad Nazir aside and sought help from him then it could have been thought that the prosecution version was true but it does not.Appeal to reason that in presence of so many persons the accused had confessed their guilt. There is yet, another improbability in the prosecution version qua the confession. It is stated by both P.Ws.12 and 13 that accused persons had confessed their guilt before them on 19-9-2001, but it has come on record that all the accused persons were arrested on 25-9-2001 after six days. Sequence of the events suggests that had the accused persons confessed their guilt, then both the witnesses would have certainly apprised the complainant party about the same and in such an eventuality the accused persons would have been certainly apprehended much earlier than 25-9-2001, particularly when, as per prosecution version, they were neither at large nor missing and were present in the village. Further the extra- judicial confession does not find corroboration from any independent source inasmuch as in pursuance of the confession even the place of occurrence i,e, where the deceased was allegedly murdered, was not pointed out by any of the accused persons. Hence, in the absence of any corroboratory evidence, in our view, it was not safe for the trial. Court to rely on the evidence of extra-judicial confession.

11.After taking out from consideration the evidence of extrajudicial confession, we are left with the evidence-of recoveries and the last seen. So far as the recovery of daggers is concerned, admittedly it was effected at the instance of appellant Tahir Javed and acquitted accused Arif. Since Arif accused was acquitted at the appellate stage as a result of compromise therefore dagger recovered on his pointation is of no help to the prosecution. So far the recovery of dagger froth the appellant is concerned though as per Investigating Officer i,e, P.W.15, recovery of dagger was effected on 27-9-2001 vide recovery memo. Exh.P.E. And it was dispatched to the Laboratory on 4-9-2001 yet, it reached in the Laboratory on 8-10-2001. Report dated 15-10-2001 of the Chemical Examiner is explicit in this regard. No explanation whatsoever was offered at the trial as to why, the dagger dispatched on 4th September, 2001 reached in the Laboratory on 8th October, 2001 after a period of one month and four days, hence evidentiary value of the Chemical Examiner's report was greatly marred. Further, as per report in question the blood scrapings taken out from the dagger were sent to the Serologist for determination of origin of blood but no such report was tendered in evidence, hence it could not have been concluded that the dagger was stained with human blood. In the circumstances, the evidence of the recovery of dagger too, was of no use for the prosecution.

12.Taking the next piece of evidence, i,e, the last seen, it may be pointed out here that it has two parts, firstly, when as per the complainant, the deceased was taken away by Rana Farooq and Tahir Javed and secondly when the deceased was seen by P.Ws.8, 9 and 10 in the company of the accused persons at the bank of canal near Ojla Pul in the night on 12-9-2001. According to P.W.8 all the accused persons were known to him earlier. P.W.8 had, at the trial, stated that on 12-9-2001 at 3-30 p.m., he was going from Pul Ojla to Roop Chand and saw Hafiz Ghulam Yaseen and Arif accused sitting near Pul Ojla and when he reached at Sangowali Bangla he saw Rafaqat deceased, Farooq and Tahir, on a bicycle going towards Pul Ojla. Both P.Ws.9 and 10 have stated that on 12-9-2001 they were present on bus stop as they were going to Kharian to meet Ibrahim, Head Clerk. Bus of Kohistan Company came there, out of which Rafaqat Ali, Muhammad Farooq, Tahir Javed and Qari Ghulam Yaseen, who all were previously known to them, deboarded. On the inquiry made, Rafaqat deceased told that they were going to village. They went to Kharian and returned on the next morning. On deboarding at Ojla Pul they saw crowd/rush of people who were saying that Rafaqat had been murdered. The dead body of deceased was lying on the bank of canal. Both the afore-named witnesses stated, at the trial, that on coming to know about death of deceased Rafaqat they rushed to the complainant's house and told him that they had seen Rafaqat deceased in the company of the accused persons, in the previous night. They further stated that it was talk of the town that Rafaqat was murdered by the accused persons. Statements of above witnesses indicate that by 11 or 12 O'clock on 13-9-2001 the complainant gained knowledge about the factum of deceased being seen in the company of accused persons at night because as per P.Ws.9 and 10 they returned to Ojla Pul at 10-00 a.m., and thereafter straightaway went to the complainant's house. Despite that no attempt was made by the complainant to inform the police regarding involvement of the appellants in the case. The omission so made in our view, was fatal towards the prosecution case.

13.Upshot of the above discussion is that the occurrence has not taken place in the manner as stated by the prosecution. In this case there is room for doubt benefit whereof must go to the appellants. We, therefore, are inclined to allow these appeals. Order accordingly.

Consequently, the impugned judgments dated 21-11-2002 passed by learned Additional Sessions Judge, Gujranwala, as well as of the Lahore High Court, Lahore, dated 3-5-2005 are set aside and the appellants, namely, Tahir Javed son of Muhammad Maalik and Hafiz Ghulam Yaseen son of Maulvi Shah Muhammad are acquitted of the charges. They shall be released forthwith if not required in any other case. These are the reasons of our short order of even date announced in open Court.