KH. MUHAMMAD SHARIF, J. - This judgment will dispose of Criminal Appeal No. 302 of 2001 filed by Babar Hussain, who faced trial in case F.I.R. No. 196, registered at Police Station Bhara Kahu, Islamabad, on 14.12.1999, for offence under Section 302, P.P.C.., before learned Additional Sessions Judge, Islamabad, who after concluding the trial, vide his judgement dated 27.09.2001 convicted the appellant under Section 302(b), P.P.C, and sentenced him to DEATH with compensation of Rs.
T,00,000/- or in default six months' S.I.
2. Murder Reference No. 864 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R., which was registered on the written application of Sakhawat Hossain complainant/PW.13, who was resident of Tehsil Gujjar, District Rawalpindi, are that Mehmood Ahmad- deceased (brother of the complainant) left the house on 20.9.1999 for Rawalpindi but did not return. The complainant lodged report with Police Station Jatli, Gujjar Khan, in that regard. The complaint had been searching his brother but in vain, It is also mentioned in the F.I.R, that Mehmood Ahmad had intimacy with Babar Hussain. The complainant party inquired from Babar Hussain about Mehmood Ahmad but he did not tell anything. However, he told the complainant party that during said period he was employed at Swabi Gadoon and his attendance could be checked from there. The complainant party checked the attendance of Babar Hussain from Gadoon but the same was not marked there. On 13.12.1999 at about 6/7:00 p.m. Babar Hussain confessed before the complainant party that he had murdered Mahmood Ahmad in Chathar Park, Islamabad, on 23.9.1999 by strangulating him and had concealed his dead-body near the said park. Hence the matter was reported to the police.
4. After . Registration of formal F.I.R., the investigation of the case was taken over by Abdul Rashid, inspector/PW.14. After his arrest Babar Hussain led to recovery of human body in the shape of bones which was buried in the jungle near Chathar Park, which was taken into possession vide memo. Ex.PE. He-also took into possession a wrist watch P.1 vide memo. Ex.PF. After completion of investigation, the accused was sent up to face trial.
5. At the trial, the prosecution in order to prove its case produced 15 witnesses in all. The accused in his statements recorded under Section 342, Cr.P.C, pleased his innocence and false implication. He did not appear as witness under Section 340(2), Cr.P.C. After conclusion of trial, the learned Trial Court convicted and sentenced the appellant as stated above.
6. learned counsellor the appellant in support of this appeal submits that the F.I.R, was recorded three months after the missing of the deceased; that there is no mention in the F.I.R, that both the, deceased and the appellant came together fn the house of the father of the deceased namely Muhammad Yousuf; that Muhammad Yousuf admitted that Azad and come to his house before lodging report by his son; that as far as Muhammad Asghar/PW.9, who had met both the deceased and the appellant at Faizabad Bus Stand on 23.9.1999, is. Concerned, he is a close associate of the complainant party and his statement was recorded even on 17.1.2000, i.e. After one month and three days of lodging of F.I.R.; that according to the prosecution case, the deceased son Of the complainant was last seen on 23.9.1999, where after he vanished away. The learned counsel submits that Faizabad is at a distance of 10/12 miles from Bhara Kahu and is at distance of 9/10 kilometers from Yark Park. He submits that there is approxmity of the time and that of the place, which are necessary in case of last seen; that the prosecution failed to prove that the death took place on 23.9.1999, so it cannot be said that the last seen was not . Only with ap proximity of time but also ap proximity of place. He submits ' that most important point in this case is whether the bones which were allegedly recovered on the pointation of the appellant were identified to be that of the deceased or of any body else; that the identification of these being that of the deceased has not been prosecution and that being so, the case falls on the ground; that neither cause of death nor the age of the bones has been given by the doctor; that no piece of cloth was found on those bones.
7. Learned counsel submits that as far as extrajudicial confession is concerned, the complainant as well as Parvez have admitted that till the date of registration of F.I.R., there was no proof with them about the involvement of the appellant in this case; that it is most unnatural when there was no evidence why the appellant would make extrajudicial confession; that although it was stated by Muhammad Yousuf that his son had lodged a report at Police Station Jatli but the said report was never produced before the Trial Court; that no report from Godown Mills whether Babar appellant used to work was produced before the police or the Trial Court The learned counsel submits that Pervez Khan/PW.12 and Sakhawat Hussain/PW. 13 stated that they had gone with the appellant to the Textile Mills at Godown in order to check his attendance but his attendance was not marked in the attendance register and they came back alongwith the appellant happily from Sawabi and then ,took the appellant to Police Station Jatli, The learned counsel submits that in fact, the appellant was not arrested like that but he was arrested from his house. Further submits that in fact, the story of Pervez Khan and Sakhawat that after coming outside the Mills, the appellant told them that he had murdered the deceased but strangely enough they did not take any action against him; that this was Pot the case in the F.I.R, that the appellant had made confession at Godown but this story was concocted before the Trial Court, otherwise it was a retracted extra- judicial confession. The learned counsel submits that the story of the prosecution regarding wearing of the wrist watch of the deceased by the appellant while going from Rawalpindi to Godown; then to Rawalpindi and from there to Jatil and ultimately to Bhara Kahu where the S.H.O, removed the said watch and this recovery has been discarded by the Trial Court. The learned counsel submits that as far as the letters of the appellant addressed to the brothers of the deceased' are concerned, those should have been mentioned in the F.I.R, and should' have been produced before the police immediately thereafter; that the envelopes of both letters are not there; that these letters were produced eleven days after the arrest of the accused. The learned counsel urges that in fact, these letters were got prepared from the appellant during his custody with the police; that no comparison has been made as far as receipt of money order is concerned; that on one receipt there is no stamp of the Post Office and on the other receipt there is a stamp but within that the date has been written with a pen; that nothing has been said about any motive either before the police or before the Trial Court; that the last seen evidence Is always considered to be weak type of evidence and cannot be. Relied upon. Places reliance on Umaid Ali v. The State (PLJ 1978 Cr.C. (B.J.) 145) and Muhammad Ali and 2 others v. The State (NLR 1988 Criminal 230) to contend that one piece of tainted evidence cannot corroborate the other piece; and that in the present case each and every piece of evidence was manufactured after registration of F.I.R.
8. Learned Assistant Advocate-General submits that no doubt there is no direct evidence; the case is based entirely on circumstantial evidence and basic requirement in such like cases is that the facts should be consistent, quite natural, conclusive in nature and should be established. Submits that the letters addressed by the appellant to the brother of the deceased have been proved on record and the report of the handwriting expert is positive in nature, In this respect he has referred to Ex.PD/3 at page 83 of the Paper Book. Further submits that execution of documents has not been denied by the appellant in his statement recorded under Section 342, Cr.P.C., that onus lies on the appellant to prove that those were got written by the appellant when he was in custody with the police, as enjoined by Article 119 of the Qanun-e-Shahadat Order, 1984. Submits that he prosecution has proved its case ^against the appellant beyond doubt. Supports the judgment passed by the learned Trial Court.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record of the case.
10. According to the prosecution case, the deceased was taken by the appellant on 20:9.1999. The F.I.R, was recorded on 14.12.1999 on the statement of Sakhawat Hussain brother of the deceased, It is not disputed by either side that this is a case of circumstantial evidence, resting on the statements of Muhammad Yousuf/PW.5, father of the deceased, who stated that Babar and the deceased went together from his house on 20.9.1999. His statement was recorded on 23.12.1999, i.e. After thirteen days of the registration of the F.I.R. Then there is evidence of Muhammad Azad/PW.6, who stated that he had seen the deceased and the appellant on 20.9.1999 together at a distance of two furlongs from the house of the complainant. His statement was recorded on 17.12.1999. The evidence of these two PWs cannot be called as evidence of last seen. There is no proximity Of time and that of place. The evidence of last seen consists of the statement of Muhammad. Asghar/PW.9, who stated that he had seen the deceased and the appellant on 23.9.1999 at. Faizabad Bus Stop and on his inquiry they told him that they were going to Chattar Park. This witness is a friend of the complainant party. Mazhar, brother of the complainant and. The deceased, and this witness both had been serving in the Army in one Unit. He did not disclose this fact immediately after registration of F.I.R, and his statement was recorded on 17.1.2000, i.e. After about four months of the occurrence and after one month and three days of the registration of F.I.R. Now remain in the field the statements of Pervez Khan/PW.12 and Sakhawat Hussain/PW.13, before who extra-judicial confession, was made by the appellant. f They stated that when they put suspicion on the appellant, he stated that he used to work in a Textile' Mills at Godown Swabi and that his presence was marked in the attendance register of that mills. They both alongwith the appellant went to the said mills and saw the attendance register but he was not marked present there. According to their statements before the learned Trial Court, the appellant admitted to have killed the deceased but they did not raise hue and cry; not informed the police as also the Manager of the Mills that the appellant was a killer of the deceased. They further stated that they came from Swabi happily and then they took the appellant to Police Station Jatli and then to Police Station Bhara Kahu where the I.O. Removed the wrist watch from the wrist of the appellant and took the same into possession. We disbelieve this recovery and rightly so the same has been disbelieved by the Trial Court. Moreover, the extra-judicial Confession has always been treated as a very weak type of evidence, especially when there was no evidence whatsoever against the appellant till 13.12.1999 why he would make extrajudicial confession to involve himself in this case. There is a recent judgment of the Hon'ble Supreme Court of Pakistan reported as 2006 SCM R 231 (Sajid Mumtaz and others v. Basharat and others) wherein elaborate reasons have been given for accepting and not accepting the extra- judicial confession. The precedents cited by the learned counsel for the appellant are also applicable to the facts and circumstances of the instant case. Thus, we rule out the extra-judicial confession.
11. AS far as the letters are concerned the same were not mentioned in the F.I.R., though received prior to the present occurrence. The reasons or the defence taken by the appellant before the Trial Court is that those were got written from him by the police by putting pressure on him after his arrest. The learned Assistant' Advocate-General submits that as per the provisions of Article t19 of the Qanun-e-Shahadat Order, 1984, the onus lies on the appellant to prove that the said letters were got written after his arrest, In reply to this argument we may state that if the said letters had been, in possession of the complainant party before lodging the F.I.R., the same could have been mentioned in the F.I.R. Furthermore, the father who received money order did not inform his son about the receipt of money order of Rs. 2000/-. The onus lies on the prosecution to prove this case as it is a matter of death and life of a person.
12. So far as recovery of four bones is concerned, the some were not even sealed into a parcel. This fact by itself would bring us to the conclusion that these bones were not of the deceased. Even his father and brothers have not identified any of the bones by stating that these belonged to the deceased. They did not identify the bones by special mark nor any clothes were found around the bones to identify that the same were worn by the deceased. Even Dr. Tasaddaq Hussain/PW.10, who examined the bones, was not sure about the age of the person whose bones were recovered.
Moreover, PW.10 has also not given the case of death nor the duration as to when the death took place.
13. There is yet another very important point and that is that no motive whatsoever for killing the deceased was. Brought on record either during the . Course of investigation or during the course of trial.
14. The upshot of the whole discussion is that we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellant beyond doubt. While granting benefit of doubt to the appellant, we accept this appeal and set aside the conviction and sentence of the appellant. He is acquitted of all the charges. He shall be released forthwith if not required in any other case. The death sentence is NOT confirmed. The Murder Reference is answered in the negative.
15. For the same .Reasons Criminal Revision No. 145 of 2001 filed by the complainant seeking enhancement of compensation is hereby dismissed.