IRFAN ALI Versus THE STATE

This judgment will dispose of Criminal Appeal No.414 of 2001 filed by Irfan Ali appellant who was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with further direction to pay Rs.1,00,000 as compensation, in default thereof to undergo R.I. for six months by learned Sessions Judge, Toba Tek Singh vide judgment, dated 10‑2‑2001.

Criminal Revision No.189 of 2001 filed by Ali Ahmad, complainant for enhancement of sentence of convict appellant shall also be disposed of through this single judgment.

2. Occurrence in this case had taken place at 6/7 a.m. on 19‑7‑1997 within the Revenue Estate of Chak No.401/JB at a distance of 25 kilometres from Police Station Chutiana, District Toba Tek Singh while the matter was reported by Ali Ahmad through written complaint Exh.P.E. at 10‑10 a.m. on the same day and the formal F.I.R. Exh.P.E./1 was recorded by Muhammad Sharif, Head Constable.

3. Briefly stated the facts of the case are that at 6/7 a.m. on 19‑7‑1999 Khalid Mehmood younger brother of Ali Ahmad, complainant went to Courts at Toba to attend a date. He did not turn up till evening and it was presumed by the complainant that Khalid Mehmood might have gone to Gojra to his in‑laws. On 20‑7‑1997, the complainant went to Gojra but there his brother was not present. Upon this, the complainant alongwith Muhammad Siddique, and Aqeel Arshad started search of Khalid Mehmood. During the search, because of low water in the canal a handle of the cycle was seen. The cycle was taken out and it was the same cycle on which Khalid Mehmood had gone to Gojra. The complainant suspected that his brother Khalid Mehmood had been murdered and cycle thrown in the canal. The complainant continued search of the deceased and it was on 22‑7‑2002 at about 9 a.m. that dead body of Khalid Mehmood was found lying on the wall of canal. There were three fire‑arm injuries on the person of the deceased. Suspicion was shown by the complainant that his brother was murdered by Irfan and Sultan etc.

4. Investigation of the case was taken over by Asghar Ali, S.‑I. (P.W.13). He proceeded to the place of occurrence where the dead body was lying, prepared injury statement Exh.P.B., inquest report Exh.P.C., prepared the rough site plan Exh.P.K. and took into possession the cycle P.6 vide memo. Exh.P.N. The investigation of the case was transferred to Riaz Hussain, S.‑I. (P.W.14). This witness on 15‑8‑1997 recorded the statements of Muhammad Sadiq and Muhammad Iqbal, the witnesses of extra‑judicial confession. The investigation was finalized by Muhammad Amin, Inspector (P.W.15). He on 31‑8‑1997 arrested Irfan who while in custody on 3‑9‑1997 got recovered pistol P.4 which was secured vide memo. Exh.P.J. Sultan accused was declared innocent but both Irfan and Sultan were challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 15 witnesses in all. Then the learned A.D.A. tendered in evidence report of the Forensic Science Laboratory Exh.P.L. and closed the prosecution case. After that statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence. After conclusion of the trial; Sultan was acquitted while Irfan was convicted and sentenced as stated above.

6. Learned counsel for the appellant after having read the prosecution evidence submits, that nobody was named in the F.I.R., it was an un-witnessed occurrence, except extra‑judicial confession, there is no other evidence on record to connect the appellant with the commission of the crime and that admittedly litigation was pending between the parties. Further submits that so far as recovery of pistol is concerned, the pistol ‑was licensed one and that the report of the Fire‑arms Expert is to the effect that it was only in working condition. Adds that no independent witness was produced by the prosecution. Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case against the appellant.

7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant who has tiled Criminal Revision No.189 of 2001 submits that the witnesses of extra‑judicial confession have named the appellant and they had no enmity whatsoever to falsely implicate the appellant. Further submits that a pistol was recovered on the pointation of the appellant and that motive was also attributed to Irfan appellant. Both the learned counsel submit that the prosecution has proved its case against the appellant to its hilt.

8. I have heard learned counsel for the parties and have bone through the record. So far as extra‑judicial confession is concerned, it was furnished by Iqbal Hussain and Muhammad Sadiq, P.Ws.11 and 12 respectively. Both these witnesses are closely related to the deceased.

The conduct of both these‑witnesses is most unnatural because at the time of making alleged confession by the accused, they neither apprehended them nor produced before the police rather statements of these witnesses were recorded by the Investigating Officer after 15/20 days when the confession was allegedly made by the accused on 25‑8‑1997. In the case of Khubaib Ahmad v. The State 1992 SCMR 398, it was ruled by their Lordships of the Honourable Supreme Court that extra‑judicial confession is no evidence in a case punishable with death as 'Qisas. Similarly, in Manzooran v. State 1989 MLD 832, the extra‑judicial confession was considered to be a weak type of evidence.

The pistol recovered on the pointation of the appellant was his licensed one. No crime‑empty was recovered from the spot. The report of the Fire‑arms Expert is to the effect that the pistol was in working condition. There is not an iota of evidence apart from the so‑called extra‑judicial confession to connect the appellant with the commission of crime. In a case of capital punishment, conviction cannot be based on the type of evidence which is available in the instant case. I am thus of the considered opinion that the prosecution has miserably failed to prove its case against the appellant rather it is a case of no evidence. Resultantly, this appeal is accepted, conviction and sentence recorded against the appellant by the trial Court is set aside, he is in jail and shall be released forthwith, if not required to be detained in any other case.

Criminal Revision No.189 of 2001 filed by the complainant is dismissed.

N.H.Q./I‑164/L Appeal accepted.