' JUSTICE JAVED IQBAL (MEMBER).--- These appeals, with leave of the Court, are directed against the judgment, dated 22-9-1997 passed by learned Federal Shariat Court of Pakistan whereby the criminal appeals preferred on behalf of appellants have been dismissed and judgment, dated 4- 3-1991 passed by learned Additional Sessions Judge whereby appellant namely Wazir Muhammad was convicted under section 302/34, P.P.C. And sentenced. To death with fine of Rs,10,000 and in default of payment of fine to suffer further rigorous imprisonment for two years with direction to pay Rs,20,000 as compensation to the legal heirs of the deceased while Muhammad Ameer was convicted under section 302/34, P.P.C. And sentenced to undergo life imprisonment with fine of Rs,10,000 and in case of default to suffer two years R.I. With direction to pay Rs,20,000 as compensation to the legal heirs of the deceased, has been kept intact. In view of common questions of law and facts arising out the same judgment, the above captioned appeals are being disposed of by this judgment.
2. Leave to appeal was granted by means of order, dated 20-10-1998. Which is reproduced herein below to appreciate the factual and legal aspects of the matter:--- "Wazir Muhammad and Muhammad Ameer convicts have assailed in two separate Jail Petitions the judgment, dated 22-9-1997 of the learned Judges of the Federal Shariat Court whereby their appeals were dismissed and the judgment, dated 4-3-1991 of the learned Additional Sessions Judge, Rawalpindi, convicting the petitioners and their co-accused Abdul Hussain under section 302/34, P.P.C. And sentencing Wazir Muhammad petitioner in J.P. No,20(S) of 1997 to death and a fine of Rs,10,000 or in default to suffer 2 years R.I. And directing him to pay Rs,20,000 as compensation and Muhammad Ameer petitioner in J.P. No,21(S) of 1997 and Abdul Hussain to life imprisonment with a fine of Rs,10,000 each or in default to undergo R.I. For 2 years each and directing them to pay Rs,20,000 each as compensation was maintained. Two of the learned Judges of the Federal Shariat Court (Mr. Justice Abdul Waheed Siddiqui and Mr. Justice Dr. Fida Muhammad Khan) have confirmed the death sentence of Wazir Muhammad petitioner in J.P.
20(S)11997 and other sentences awarded-to him and to Muhammad Ameer, petitioner in J.P.
21(S)/1997 and their co-accused Abdul Hussain, while the third learned Judge of the Federal Shariat Court seized of the matter (Mr. Justice Muhammad Khiyar) in his separate opinion has recorded the conclusion that the prosecution has not been able to prove the charge against the petitioners and their co-convict Abdul Hussain beyond reasonable doubt as required by law and as such the appellants (petitioners herein and their co-convict Abdul Hussain) are entitled to be acquitted.
(2) The prosecution has placed reliance on the circumstantial evidence in the form of extra- judicial confession of Wazir Muhammad petitioner before Muhammad Ashiq P.W.2 and Abdul Hussain co-accused (appellant before the Federal Shariat Court) before Gul Hussain Shah (P.W.15), pointation of place of occurrence, recovery from Wazir Muhammad of registration book of Car No,RIP-5154, insurance certificate, wagon ticket for three seats, two Afghan national identity cards by the S.H.O., Police Station, Sangjani, identification of clothes of the deceased by his father Malik Abdur Rehman (P.W.1), his testimony of disappearance of deceased, medical evidence and absconsion of Muhammad Ameer and Abdul Hussain.
(3) We have gone through both the impugned judgments i,e, the opinion recorded by two learned Judges of the Federal Shariat Court, and the opinion recorded by the third learned Judge of the.
Federal Shariat Court and are of the view that reappraisal of the material on record is necessary for safe administration of justice in criminal cases so as to determine whether circumstantial evidence relied upon by the prosecution A established beyond reasonable doubt the charge against the petitioners and their co-convict Abdul Hussain, and that the circumstances, noticed in the judgment/opinion, have been proved in accordance with law and if so, whether on the basis of established circumstances no conclusion other than the guilt of the accused/petitioners can possibly be drawn. Leave to appeal is, therefore, granted to examine these questions.
(4) As there are three convicts and these are two petitions by two convicts, office is directed to check from record and from Abdul Hussain through the Jail authorities whether he (the third convict, Abdul Hussain) has also challenged his conviction and sentence before this Court and if not, he may be asked to file a petition through Jail Authorities, which petition shall be fixed, if filed, along with the appeals arising out of these two petitions, so that question of guilt or otherwise of all the three convicts could be examined simultaneously."
3. It is mainly contended by Sardar Muhammad Ghazi, learned Advocate Supreme Court on behalf of appellants that the evidence which has come on record has not been appreciated in its true perspective rather misconstrued and misinterpreted which resulted in serious miscarriage of justice. It is urged with vehemence that no conviction could not have been awarded on the basis of extra-judicial confession which is always considered a weak type of evidence in the absence of any corroboratory or supporting material which is also lacking in this case. It. Is next contended that no direct evidence is available on the basis whereof the appellants could be convicted with the alleged murder and on the basis of circumstantial evidence which is inconsistent, vague and sketchy and on the basis whereof the question of conviction does not arise. It is argued that the recovery of registration book pertaining to the taxi of deceased could not be substantiated by any cogent and concrete evidence. It is also argued emphatically that no iota of evidence is available inferring that the murder was committed by the appellants.
4. Mr. Ainul Hach learned Advocate Supreme Court appeared on behalf of State and controverted the view point as canvassed by Sardar Muhammad Ghazi, learned Advocate Supreme Court and supported the judgment impugned for, the reasons enumerated therein with further submission that conviction could have been awarded on the basis of extra-judicial confession duly supported by factum of recovery as according to him the appellant has failed to explain that how and under which circumstances he got the registration book pertaining to the taxi of deceased.
5. We have carefully examined the respective contentions in the light of record of the case and perused the judgments impugned (majority view) as well as the dissenting judgment passed by learned Single Judge. We have thrashed out the entire evidence with the eminent assistance of learned counsel for the parties. A careful scrutiny of the entire record would reveal that no direct evidence has come on record inferring that the deceased was done to death by the appellant Wazir Muhammad. The entire prosecution case revolves around the extra-judicial confession made by the appellant before Muhammad Ashiq (P.W.2) which is reproduced herein below for ready reference:--- "On 28-11-1988, I was present at Police Station, Sangjani. In my presence, during the investigation Wazir accused present in Court disclosed that near about 2 months prior he along with Amir "Mussali" and Raja Abdul Hussain booked a taxi Car No,5154 RIP from Rawalpindi to Fateh Jang.
When they reached Fateh Jang road some distance ahead of Tarnol, they forcibly deboarded taxi driver from taxi and after tying driver near the Railway Line they thrown him to the grass and proceeded back towards Peshawar. (Objected by defence counsel u/a 39 the statement of witness is inadmissible as it is an extra judicial confession being recorded in police custody). The accused further disclosed that 20/25 days back they hired a taxi from bus stand Pirwadahi and after snatching the said taxi from the driver they were going to Peshawar while passing near Hassanabdal an accident took place and he sustained injuries.
' Later on the accused present in Court led to the place where they snatched taxi from Iftikhar deceased. He also pointed the place where the deceased Iftikhar was thrown by the accused. The Investigating Officer prepared the memo. Of pointation which was attested by me and Muhammad Akram, which is Exh.P.B."
6. A careful scrutiny of the deposition of Muhammad Ashiq (P.W.2) would reveal that extra-judicial confession was made by the appellant when he was being investigated by the police at Police Station, Sangjani and as such it cannot be considered being in violation of the provisions as contained in Article 39 of the Qanun-e-Shahadat Order, B 1984. Another reason for disbelieving the statement of Muhammad Ashiq (P.W.2) that he is a "regular visitor" of police station who used to visit police station, according to his own statement, frequently and thus can safely be termed as a "stock witness". Besides that the appellant had never admitted the murder of taxi driver but on the contrary he had stated that "when they reached Fateh Jang road some distance ahead of Tarnol, they forcibly deboarded taxi driver from taxi and after tying driver near the Railway Line they thrown him to the grass and proceeded back towards Peshawar". There is no cavil with the proposition that the extra-judicial confession is a very weak type of evidence and no conviction could have been awarded without having strong corroboration which aspect of the matter hardly needs any comments because the statement of Muhammad Ashiq (P.W.2) itself is not worthy of credence and once it is disbelieved no corroboration could be sought from his statement and question of corroboration becomes immaterial. For the sake of argument if it is admitted that recovery of registration book has been proved then the question would be whether this exclusive factor would be sufficient to award capital punishment" The answer would surely be in negative.
The other part of extra-judicial confession is that appellant was found in an injured condition in a taxi which was never produced by the police indicating that prosecution story was true. It is worth mentioning here that Muhammad Zaman, S.H.O. Police Station, Sangjani (P.W.14) to whom the investigation of case got lodged vide F.I.R. No,49, dated 25-10-1988 was assigned qua Suzuki Car No,CH/1110 took its possession from Police Station, Hassan Abdal on 27-10-1988 along with other documents but record is absolutely silent that what happened to the said case and no information worth the name has been given regarding Suzuki Car No,CH/1110 which depicts manipulation. As mentioned hereinabove the said Suzuki Car was never produced showing that it was in fact got recovered from the appellant. It is to be noted that no medical evidence could be produced showing that appellant remained hospitalized as a result of some accident during which the recovery of alleged registration book has been shown.
7. As mentioned hereinabove no direct evidence is available against the appellants and now the question would be as to whether conviction could have been awarded on the basis of circumstantial evidence or otherwise? Before examining the said aspect of the matter it is to be noted that significance, admissibility and import of circumstantial evidence was examined for the first time in case titled Tahura v. Emperor AIR 1931 Cal. 11, in the year 1931 and the following principles were formulated which still hold the field:---
(a) The circumstances from which an inference adverse to the accused is sought to be drawn must be proved beyond all reasonable doubt and must be clearly con with the fact sought to be inferred therefrom.
(b) In order to justify an inference of guilt, the circumstances from which such in inference is sought to be drawn must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than that of his guilt.
(c) No conviction could have been awarded unless these principles are clearly established.
' The said view also finds support from the following case:--- ' Bir Bahadur v. State AIR 1956 Assam 15: 6 Assam 428: 1956 Cr.L.J 41; Emperor v. Naibullah AIR 1942 Cal. 524: 43 Cr.LJ 860; In re Kanakasabai, AIR 1940 Mad. 1: 41 Cr.LJ 369; Shewram v. Emperor AIR 1939 Sind 209: ILR (1940) Kar. 249, 41 Cr.L.J. 28: Gahar Sheikh v. Emperor, AIR 1947 Cal.
345.
8. The question of circumstantial evidence and award of conviction has also been examined by this Court on different occasions in various cases and the judicial consensus seems to be that "the fundamental principle of universal application in cases dependent on circumstantial evidence, is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt". Zahid Hussain v. Crown (SC) 1969 SCM R 388, Muhammad Nazir v. Mst. Sairan PLD 1970 SC 56, Fazal Elahi v. Crown (PC) PLD 1953 214, Azim v. The State PLD 1965 SC 44. We are conscious of the fact that circumstantial evidence could be relied upon "where either the direct evidence was not forthcoming or had not been found satisfactory".
Muhammad Arshad v. The State 1992 SCM R 1187, State v. Habib-ur- Rehman PLD 1983 SC 286, Muhammad Aslam v. Muhammad Zafar PLD 1992 SC 1.
9. The case in hand when examined in the light of criterion as mentioned herein above it can be inferred safely that no convincing, forthright or reliable circumstantial evidence has come on record on the basis whereof the appellant could have been convicted and sentenced under section 302, P.P.C. The prosecution has failed miserably to substantiate the accusation by producing any cogent and concrete evidence. The appeals are resultantly accepted and the appellants namely Wazir Muhammad and Muhammad Ameer are acquitted of the charge. They shall be released forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.