JUDGMENT KH. MUHAMMAD SHARIF, J.- This judgment shall dispose of Crl. Appeal No. 1604/04 and Crl. Revision No. 981/04, as they arise out of the same judgment dated 27.9.2004 passed by the learned Additional Sessions Judge- II, Bhakkar, whereby, after having tried the appellants, convicted them under Section 302(b)/34, PPC and sentenced to imprisonment for-life each with a further direction to pay a compensation of Rs. 25,000/- each as provided under Section 544-A, Cr.P.C, in default whereof to further undergo six months SI each. Benefit of Section 382- B, Cr.P.C, was extended to the appellants. However, benefit of doubt was extended to Muhammad Khan, Misar Khan and Muhammad Ashraf and they were acquitted from the case, but, neither the State nor the complainant assailed their acquittal.
2. Brief facts, of the case, as explained by Arsala Khan (PW-.15) complainant in the F.I.R, are that on 22.10.2003 at about 8.00 p.m. He was present in his house, his deceased brother Nawaz told him that he was going towards his in-laws, in the morning of 23.10.2003 Muhammad Amin told him about the presence of dead-body of the said Nawaz in the dry water-course near the field of Amir Qaim , Luberdar, he alongwith Shah Nawaz, Makhan, his brothers and Amir went there and found his dead-body smeared with blood and hence the case was registered. During investigation, the Investigating Officer visited the place of occurrence, found signs of scuffle, took into possession blood-stained earth, pieces of broken bangles, a pair of shoe of Nawaz deceased, on 24.10.2003 he recorded statements of Nawaz Khan and Sher Khan PWs qua last seen, PWs Karam Dad and Khan Zaman are the persons before whom, according to them, the appellants allegedly confessed their guilt to kill the deceased whereafter both the appellants were formally arrested on 29.10.2003, appellant Noor Jehan led to the recovery ot .30 bore pistol, bloodstained clothes and bangles, while appellant Nasreen led to the recovery of knife, weapon of offence blood-stained, wearing clothes blood-stained and bangles. The three acquitted accused were implicated in the case through supplementary statements of Khan Muhammad, Muhammad Ashraf and Misar Khan.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced seventeen prosecution witnesses during the trial.
4. Leamed counsel for the appellants in support of this appeal submits that the appellants are not named in the F.I.R., there is no eye-witness in this case, extra-judicial confession is a joint one which is inadmissible in evidence, conduct of the eye-witnesses is not unnatural, PW Dhingana Khan who had taken the molds of foot print did not state before the learned Trial Court that the same were of the appellants, PW.12 Makhan Khan, a witness of recovery of knife from appellant Nasreen, was duly confronted with his statement before the police where the said factum was not mentioned, motive was disbelieved by the learned Trial Court, there is no fire-arm injury on the person of the deceased, so, recovery of .30 bore pistol has no consequence and later on it was stated that the said pistol belonged to the deceased, there is no evidence to the voluntary nature of the extra- judicial confession which is belied by the other circumstances, the acquittal of the three accused was neither challenged by. The State nor the complainant; that the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court.
5. On the other hand, learned counsel for the complainant, who had also filed revision petition, submits that there was no mala fide on the part of the prosecution to falsely depose against the appellants, foot prints of the appellants were identified in the identification parade, report of the blood-stained knife is positive in nature, Noor Jehan appellant got recovered the pistol and broken bangles, from the spot broken bangles were also recovered; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that this appeal is liable to be dismissed Learned counsel for the State, while adopting arguments of the learned counsel for the complainant, adds that there is no evidence against the appellants.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsels for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. It is a case of circumstantial evidence. In all there were five accused persons in this case amongst whom three, namely, Khan Muhammad, Misar Khan and Muhammad Ashraf were acquitted from the case. Neither the State nor the complainant assailed their acquittal. Allegation against them was that they had caught hold of the deceased while Nasreen gave knife blows on his person and had facilitated the offence in question.
8. It would not be out of place to mention here that if the three above-mentioned persons on the basis of- same set of evidence have been acquitted from the case then how this Court can believe the evidence of the same witnesses against the present appellants. Both the appellants are females. There is no fire-arm injury on the person of the deceased and qua .30 bore pistol allegedly recovered from Noor Jehan appellant, padding was made by the Investigating Officer that the same belonged to the deceased but surprisingly no proof was given in that Recorde. Even there is no mention in the F.I.R, whether the deceased had taken the said pistol with him at the time of leaving the house. If the deceased had a pistol with him then there was nothing to stop him from its use against the assailants to save his life.
9. Now this Court would like to take up the evidence of extra-judicial confession which was furnished by PW13 Karam Dad, a first cousin of the deceased and Khan Zaman who was given up. It is a joint one. According to PW.13 both the ladies came there, confessed their guilt before them, but their conduct is unnatural that the females were not apprehended especially when the said ladies were not armed with any weapon and the confession was made before two male persons.
Furthermore, the said crucial factum was neither disclosed before the police or the complainant on the same day and both of them i.e. PW.13 Karam Dad and Khan Zaman straightaway went to their house which conduct is unnatural, against the normal human conduct, repellent to common sense and is against the thoughts of a man of normal prudence, so, on this short ground the said evidence of extra-judicial confession furnished by PW.13 is disbelieved because the same is not worthy of any credence and cannot be used against the appellants. The question of placing reliance on extra-judicial confession of the accused persons, joint or otherwise came up for consideration before the August Supreme Court of Pakistan in the case of Sajid Mumtaz and others v. Basharat and others (2006 SGMR 231), wherein, at page 238, while maintaining acquittal of the accused persons in a murder case who were convicted on the basis of joint extra-judicial confession, the Apex Court of Pakistan observed as under:-- "17............ This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra-judicial confession starting from Ahmad v. The Crown (PLD 1951 FC 103- 107) up to the latest. Extra-judicial confession has always been taken with a pinch of salt, In Ahmad v. 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 extrajudicial 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 extrajudicial 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 consequenced 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 (Hi) 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.
21. 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 trapped and, secondly, from one who is authoritative, socially or officially......................
22. As observed by the 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 properly investigate the case, he resorts to padding and concoctions like extra-judicial confession. Such confessions by now have become the signs of incompetent investigation. A judicial mind, before relying 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 witnesses with the maker of confession and what, above all, is the position or authority held by the witness." (emphasis supplied)
10. The August Supreme Court of Pakistan in the case of Zafar Iqbal and others v. The State (2006 SCM R 463) acquitted the accused persons convicted on the basis of joint extra-judicial confession, after having placed reliance on the cases of The State v. Kamal Khan alias Maloo and another (1993 SCM R 1378) and Wazir Muhammad and another v. The State (2005 SCM R 277).
11. As far as question of taking of mold by the foot tracker is concerned, Dhingana Khan (PW.8) never stated in whole of his statement that they belonged to the appellants, so, it has no consequence on the merits of the case.
12. So far as recovery of knife is concerned, PW.12 Makhan Khan, a witness of recovery of knife from appellant Nasreen, was duly confronted with his statement before the police where the said factum was not mentioned, so, the same is also disbelieved by this Court and is ..Excluded from the evidence.
13. It is pertinent to mention here that broken bangles and the blood-stained clothes of the deceased were never sent to the Chemical Examiner or the Serologist to know whether those were clothed with human blood, so, the said recovery is inconsequential and this piece of evidence cannot be used against the appellants.
14. As this case hinges on the circumstantial evidence, therefore, utmost care and caution has been adopted to reach at a just decision of the case, it is settled by now that in such like cases every chain should be linked with each other and if any chain link is missing then the benefit of the same should go to the accused, In the case in hand, after having excluded the evidence of extra- judicial confession and evidence of recovery, this Court is of the irresistible conclusion that no case is made out against the appellants, In this regard, this Court has sought guidance from the judgments of the Apex Court of the country reported in Karamat Hussain v. The State (1972 SCM R 15), Ch. Barkat Ali v. Major Karam Elahi Zia and another (1992 SCM R 1047), Sarfraz Khan v The State (1996 SCM R 188) and Asadullah and another v. State (PLJ 1999 SC 1018). In the case of Ch. Barkat Ali (slipra), the August Supreme Court of Pakistan, at page 1055, quoted as under:-- ".... Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See 'Siraj v. The Crown (PLD 1956 FC 123) ...... In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused."
In the case of Sarfraz Khan (supra), the August Supreme Court of Pakistan, at page 192, held as under:-- "7. It is well-settled that circumstantial evidence should be so inter-connected that it forms such continuous chain that its one end touches the dead-body and other neck of the accused there by excluding all the hypothesis of his innocence....."
In the case of Asadullah (supra), the Apex Court held as under:-- "Sections 302/34, PPC-Offence of-Conviction and sentence for-Challenge to-Circumstantial evidence-In a case resting wholly on circumstantial evidence Court must remember that "processes of inference and deduction are essentially involved frequently of a delicate and perplexing character liable to numerous causes of fallacy"-Mere suspicion will not be sufficient to justify conviction-Before guilt of accused can be inferred merely from inculpatory circumstances, those circumstances must be found to be incompatible with innocence of accused and "incapable-of explanation upon any other reasonable hypothesis than that of his guilt"- Circumstances sought to be relied upon must have been established beyond all doubt-But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured upon by pre-conceived notions- -But once circumstances have been found to be so established, they may well furnish a better basis for decision than any other kind of evidence-Judged upon touchstone of criteria as laid down in PLD.
1966 SC 664 Supreme Court is not prepared to believe that prosecution has proved its case beyond any shadow of doubt-Resultantly, this appeal is accepted, and conviction and sentence of appellants is set aside."
15. After having sifted grain from the chaff and after having applied Independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellants on the basis of circumstantial evidence cannot be maintained because the same has not come through unimpeachable sources, is untrustworthy, unreliable and cannot stand the test of judicial scrutiny. Resultantly, while following the dictum laid down by the Apex Court of country in the judgments quoted to above, this 'appeal is allowed, the impugned judgment is set aside and the appellants are acquitted from the case. They are on bail by this Court, so, shall be discharged from their bail/surety bonds. For afore referred reasons, Crl. Revision No. 981/04 has no merit which is hereby dismissed.