' ZUBDA-TUL-HUSSAIN, J.---Criminal Appeals Nos.27-J of 2006, 5-J of 2007 and Murder Reference No,3 of 2006/BWP have arisen out of the judgment dated 6-4-2006, passed, by the learned Judge, Anti-Terrorism Court, Bahawalpur, whereby as a result of the trial of the appellant in case F.I.R. No, 401 of 2002, dated 14-10-2002, registered under section 302, P.P.C., section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 7 of the Anti-Terrorism Act, 1997, at Police Station, City Ahmad pur East, District Bahawalpur, he was convicted and sentenced in the following terms:
1. Under section 302(b), P.P.C. He was awarded death sentence along with a fine of Rs,100,000 and in default whereof he was to further undergo 6 months' S.I.
2. Under section 7-A of the Anti-Terrorism Act, 1997 he was awarded death sentence with a fine of Rs,100,000 and in case of failing to pay the fine was to further undergo 6 months' S.I.
2. On 14-10-2002, the dead body of the deceased victim, namely, Mst. Haneefan Bibi, was found lying in the cotton field situated in Muaza `Wahi-Qadir-Dina'. P.W.14, Muhammad Yousaf informed the police about the presence of the dead-body in the field. The police reached the spot and escorted the dead body to Civil Hospital, Ahmedpur East. The dead body was identified to be of Mst Haneefan Bibi by Muhammad Imran Akhtar, P.W.10 who had reached hospital along with other witnesses. Thereafter on the report of said Muhammad Imran Akhtar, P.W.10 the above said criminal case F.I.R. Was registered wherein he stated that he along with his wife and mother-in-law, namely, Mst. Haneefan Bibi, who was a widow, had been living in Chak No,119/DNB Shumali. His late father- in-law left behind in his estate some houses in Ahmedpur East which he had rented out to different-tenants. On the morning of 11-10-2002, Mst.. Haneefan Bibi went to Ahmedpur East to collect rent from the tenants. When till night she did not return they got anxious. Next day the complainant along with Muhammad Ibrahim and Shaukat Ali reached Ahmedpur East to search out Mst. Haneefan Bibi. They met Abdul Majeed Khokhar and Shafqat Ali Langhra and enquired from them about Mst. Haneefan. Bibi. Both the tenants told the complainant that she had not come to them. On this they contacted other relatives at Ahmedpur East but she was not found anywhere.
On 14-10-2002 when they had come to Ahmedpur East in connection with search of Mst. Haneefan Bibi, they came to know that some unidentified dead body had been brought to Civil Hospital at Ahmedpur East. They rushed to hospital where they identified the dead body of Mst. Haneefan Bibi.
They found a `Dupatta' tied around the neck of the dead body which lead to the conclusion that she was murdered by strangulation.
3. The appellant was in police custody in another case F.I.R. No,55 of 2003, registered at the same police station, and during investigation he made disclosure that he had also committed murder of Mst. Haneefan Bibi after committing Zina with her. He had also allegedly made confessional statement before Muhammad Ibrahim and Inayat, P.Ws. His confessional statement was also recorded under section 164 Cr.P.C. Before the Ilaqa Magistrate. So he was involved in the present case as well. On 23-2-2003 the appellant got recovered a `shikanja' (a trap made of rubber) the use of which rendered the women physically helpless and they were not able to resist the commission of `Zina' by the appellant.
4. After the completion of the investigation the appellant was sent up to face the trial wherein he pleaded not guilty to the charge framed against him and was thus tried for the offences alleged against him.
5. Before proceeding further it may be relevant and of interest to mention that the appellant has been posed by the police as a serial killer driven by sexual lust. He was thus tried in seven cases under various F.I.Rs,, including the present one. Except for the F.I.R. Already referred to above, the rest of the circumstances of the .Cases regarding oral evidence, the recoveries, the medical evidence and the circumstantial evidence, including the confession .Of the appellant are identical in all these cases.
6. The arrest of the petitioner in all the said cases was shown to have been effected on 14-2-2003.
In the extra-judicial confession made by him before Muhammad Ibrahim and Inayat, residents of Chak No,111/DNB, Yazman, the appellant, as has been stated by Muhammad Ibrahim as P.W.4, told him in confidence in presence of Ch. Inayat that he had committed `Zina' with a number of women and also committed murder of all of them. It is also in the statement of Muhammad Ibrahim that the appellant gave him all the details of his ill-deeds and requested for his help. The appellant allegedly made the confession as the people had seen him committing `Zina' with an insane lady and for that reason a sense of guilt had prevailed upon him. Pursuant to this confession Muhammad Ibrahim and Ch. Inayat took the appellant to the police on 14-2-2003. This was followed by the alleged judicial confession of the appellant before the Civil Judge/Judicial Magistrate, Section 30, Ahmedpur East on 15-2-2003. In his statement under section 164 Cr.P.C. The appellant stated the similar facts as already confessed by him before Muhammad Ibrahm and Ch. Inayat. It was on the basis of this statement under section 164, Cr.P.C. That the appellant was involved in various cases including the present one.
7. In addition to the evidence of confession mentioned above, there is the statement of P.W.14, Muhammad Yousaf, who stated that on 11-10-2002 he had seen Mst. Hanifan Bibi in the company of the appellant on his bicycle. At that time he was not acquainted with the appellant and could only define his features. He, however, stated that subsequently about 2-3 days prior to 19-1-2003 he again saw the appellant on the shrine of Hazrat Baha-ud-Din Zakaria at Multan and at that time having identified the appellant enquired his name and other particulars from him. He stated that he had narrated these facts to the Investigating office during the investigation.
8. The evidence of Muhammad Yousaf, P.W.14 could not be relied upon primarily for the reason that the circumstances stated by him regarding the identification of the accused appellant were not confidence-inspiring. He had seen Mst. Hanifan Bibi deceased allegedly in the company of the appellant on the day of occurrence but it took long time for him to disclose this fact. At the second occasion when he again met the, appellant and astonishingly could also recognize him, he enquired from the appellant his particulars but knowing the factum of murder of Mst. Hanifa Bibi he still let him go. He did not immediately take any steps for apprehending the accused or to take such measures that he could be arrested by the police for the murder of Mst. Hanifan Bibi. He allegedly saw him for the first time on 11-10-2002 but was able to recognize him months after in Multan and then after the lapse of about 21 months at the time of evidence in the Court. At least first sight of the appellant was so causal that in ordinary course it would be impossible to retain the features in the memory or to recollect his identity months after. Moreover, this only formulates circumstantial evidence which needs very strong corroboration.
9. The remaining prosecution evidence is based upon the extrajudicial confession of the appellant reported by Muhammad Ibrahim and Ch. Inayat. Out of them Muhammad Ibrahim appeared as P.W.4 while Ch. Inayat was given up by the prosecution. The extra-judicial confession as well as the statement under section 164, Cr.P.C. Both have been supplemented by the prosecution through medical evidence consisting of the inquest reports and post-mortem reports. The prosecution has also relied upon various recoveries from the appellant to corroborate the allegation against him.
10. Primarily the whole case revolves around and depends upon the confessions both judicial and extra-judicial allegedly made by the appellant. But as would be seen in paras. Nos.20 and 21 the appellant was already in police custody on the date of which the extra-judicial confession is alleged to be. Thus, the extra-judicial confession is nothing but a heap of lies. It is also not only strange and unusual but also highly unnatural that the extra-judicial confession and the judicial confession under section 164, Cr.P.C. Are not only identical on major events but also seem to be verbatim copy of each other. There is no doubt that both these statements 'relate to the same events and as such the similarity could have occurred in them but nothing could justify their being similar in words and lines also. Muhammad Ibrahim, P.W.4 is an illiterate person and same is the position of the appellant. The mode and the method in which they have recorded the statements respectively as P.W.4 during the trial and as an accused before the learned judicial. Magistrate is neither convincing nor natural.
11. Besides, the evidence of extra-judicial confession is also not confidence-inspiring. It is well- settled that the extra-judicial confession is a weak type of evidence, As laid down in Zia-ur- Rehman v. The State 2001 SCM R 1405 and Wazir Muhammad and another v. The State 2005 SCM R 277, in the absence of very strong corroborative circumstantial evidence conviction cannot be maintained merely on extra-judicial confession. In the instant case there is no convincing evidence that the A appellant had a genuine or compelling reason to confess his guilt before Muhammad Ibrahm and Ch. Inayat. It is not always necessary that the extra-judicial confession may be made to a person having some recognition in the society but at the same time there need to be sufficient reason or explanation as to why the guilty person should approach a man to whom he is making the confession. Muhammad Ibrahim, nor the prosecution by any other evidence, has shown that the appellant had any reason to repose his confidence in Muhammad Ibrahim or Ch. Inayat. The latter was rather alien to him. Muhammad Ibrahim has also simply stated that he was acquainted to the appellant. It is also not shown on record as to how Muhammad Ibrahim could be of help to the appellant.
12. The learned APG has contended that the confessional statement under section 164, Cr.P.C. Itself would be a source of corroboration to the extra-judicial confession. This argument, however, is not tenable mainly for the reason that the conformity by words and lines etc. In the two statements renders the both unnatural. For other reasons to be discussed later the statement of the appellant under section 164, Cr.P.C. Is not acceptable as a valid confession. That being so the same could not be treated as a corroboration of the statement of Muhammad Ibrahim. It is also noteworthy that the alleged confession of the appellant before Muhammad Ibrahim was not made soon after or within a reasonable time of the alleged occurrence. Almost all the offences alleged against the appellant were committed within a span of few months generally in October and November, 2002.
The appellant allegedly also confessed that he had been committing similar crimes even in undivided India. It thus also remains a mystery as to how and why all the offences including the present one in which the appellant was sent up for trial were committed only in October/November 2002. In between 1947 and the year 2002 no such offence is alleged to have been committed by the appellant. All these circumstances patently belie or at least have shaken the credibility of the extra-judicial confession of the appellant before Muhammad Ibrahim, P.W.4. The position of the confessional statement under section 164, Cr.P.C. Also is not much different. It is rather pertinent to note that the appellant was already in police custody when his statement under section 164, Cr.P.C.
Was recorded.
13. Where the evidence consists of extra-judicial confession as well as the confession under section 164, Cr.P.C., one of them may be used for corroborating the other but the statement to be used as corroboration must stand the test of judicial scrutiny. On this touchstone, as already discussed,' none of the two confessions qualifies as a valid piece of corroboration for the other. In our view one alleged confession in this case when clubbed with the other, only enhances the volume of the evidence without adding to its quality or its spirit.
14. A statement recorded under section 164, Cr.P.C. Shall not invariably be invalidated or inadmissible if recorded during the period when a person is in police custody, yet such confessions have often been held to be involuntary when accused was kept in police custody. The minimum that is required in such a case is that such confession must be duly corroborated by some relevant evidence and circumstances of the case, especially when as per version of the appellant he was in police custody for so many days prior to his formal arrest. In case the statement of the appellant has to be considered it should, in the absence of very convincing reasons, be taken in totality. The statement of the appellant simply consists of the narration of the events in which he committed offence alleged against him. It does not consist of any such part which may have to be shifted from the other for the determination of the truth. It has to be disbelieved or has to be relied upon as a whole. Thus if the accused was already in police custody for, a number of days the veracity of the confession by itself would become doubtful. Such confession would thus be inadmissible under the law.
15. There is still another aspect of the matter. The appellant has not adhered to the alleged confessional statement. He retracted from the same as soon as he had an independent opportunity before the learned trial Court. He denied the charge and also retracted from the confession.
16. The retracted confession all the more needs very strong corroborative evidence. It was held in Muhammad Hanif v. The State 1995 PCr.LJ 985 that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction on its strength alone. The statements under section 164, Cr.P.C. Have never been taken by the courts as a gospel truth. The courts have to look into and have always been demanding for evidence before convicting the accused for a capital punishment notwithstanding that the accused had confessed the guilt. Reliance in this behalf can be placed on Nadir Hussain v. The Crown 1969 SCM R 442.
17. Where the extra-judicial confession or even the confession under section 164, Cr.P.C. Is inherently defective or incompetent, the corroborative evidence of howsoever high quality cannot inject vigour or life in such confession. The reason is more than obvious. The corroborative evidence is.
Required to supplement the strength of the circumstantial evidence and to make a complete link between various events comprising the circumstantial evidence. The corroborative evidence is not and cannot be a substitute for the facts which are to be established by any direct or circumstantial evidence. Direct and circumstantial evidence has to stand on its own legs and the corroborative evidence shall only be supplementing or adding to its credibility. Thus where the evidence- or the confession itself suffers from inherent infirmity, it cannot be accepted or relied upon to bring home the guilt of an accused because corroborative evidence is never a substitute of the primary evidence.
18. This is where the evidence in this case lacks quality needed to prove the guilt of the accused. As already stated the extra-judicial confession is not worthy of independent reliance nor the statement under section 164, Cr.P.C. Is by itself enough to establish the charge against the accused.
19. The evidence of the movie-maker for the video of the confessional statement of the appellant is also of no use as it was recorded while the appellant was in police custody and the circumstances do not show that it was independent, voluntary and of such quality that it could be accepted in spite of the fact that the accused was at that time in actual police custody.
20. Above all there is another farcical situation which shows how the police maneuvered the extra- judicial confession. This also would be indirectly causing aspersion on all the aspects of the case including the veracity of the statement under section 164, Cr.P.C. The case of the prosecution is that the accused was arrested on 14-2-2003 and prior to it the appellant had confessed his guilt before Muhammad Ibrahim and Inayat, P.Ws on 13-2-2003. The version of the appellant has throughout been that he was arrested by the police almost 5-6 days prior to the alleged statement under section 164, Cr.P.C. On the record of the learned trial Court various press clippings/newspapers are available wherein the police tried to publicize its efficiency for digging out blind murders/rape cases and in that context it showed that it had arrested the appellant as a serial killer. Even the DPO, Bahawalpur tried to take the credit through a press conference which was published in the daily national newspapers on 15-2-2003 and 18-2-2003.
21. It, however, either failed to take the notice or just ignored it that in the Daily newspaper "Khabrain" and "Jang" dated 11-2-2003 a news was prominently flashed showing that the appellant had been arrested as a serial killer. These newspapers are available on the record of the learned trial Court as Mark-A and Mark-B. Besides unmarked and uninhibited newspapers, photocopies of the newspaper clippings are also available on the record, appropriate notice whereof has also been taken by us. These clearly belie the whole police version. The appellant was already in police custody when the extra-judicial confession dated 13-2-2003 before Muhammad Ibrahim and Inayat was concocted. Similarly this also has direct bearing on the credibility of the statement under section 164, Cr.P.C. Which was recorded on 15-2-2003. While the appellant was in police custody since 9-10-2-2003 the confinement of the appellant in the police custody for such a long time prior to the confession under section 164, Cr.P.C. By itself is sufficient to destroy the prosecution case established with reference to this statement because such statement could not be termed as voluntary and with the free consent. This has rather totally supported the version of the appellant pleaded in his defence.
22. On the above touchstone we do not find the extra-judicial confession and the confession under section 164, Cr.P.C. Worthy of reliance of recording sentence of conviction against the appellant.
After excluding these confessional statements no evidence remains available against the appellant. The medical evidence and the evidence of recoveries would not be of any help for the simple reason that the former does not speak of any sexual offence against the deceased lady whereas the recoveries are improbable because these articles could not have been retained or preserved in due course by the time of the alleged recoveries.
23. The question of motive is also of special significance in this case. There is no doubt that ordinarily the weakness or insufficiency of motive or even absence of motive in murder cases cannot be considered as a circumstance to justify the acquittal or mitigation of sentence. But where motive would be the only reason for committing the murder and in the absence of such motive there would have been no possibility of murder at all the complexion of the proposition would be absolutely changed. It is so plain situation that the reasoning needs no illustration. Even otherwise it is well-settled that the motive once set, it is imperative for the prosecution to prove such motive in failure whereof adverse inference be drawn and the prosecution has to suffer the consequences instead of the defence. Reliance in this behalf may be placed on the case of Muhammad Ahmad and Hakim Ali respectively reported as PLD 1995 SC 590 and 1971 SCM R 432.
24. It is an admitted position that in this case the basis of the whole prosecution version is that the appellant used to trap the old ladies for `Zinc" and then after commission of `Zina-bil-jabe used to kill them. It was the sole alleged motive, but during the trial the allegation of `Zina' was not established and the charge in this behalf was answered in the negative. Now, when the basic charge has not been proved, the alleged confession cannot be relied upon without very strong evidence which could have a direct bearing on the charge of murder. Such evidence not being available the sentence of conviction could not be recorded in this case against the appellant.
25. For what has been discussed above, we are of the considered opinion that the prosecution had failed to establish its case against the appellant beyond any shadow of doubt. Thus extending the benefit of doubt he is acquitted of the charge and he shall be released immediately if not required to be detained in any other case. Accordingly, both the Criminal Appeals No,27-J of 2006 and Cr.A.
5-J/07 stand accepted. The death sentence is not confirmed and the Murder Reference No,3 of 2006/BWP is answered in the Negative.