' SARDAR TARIQ MASOOD, J.---Mst. Allah Wasai, petitioner seeks grant of Special Leave to Appeal against the judgment dated 30-4-2007 passed by the learned Additional Sessions Judge, Multan, whereby the learned trial Court acquitted respondent Manzoor Hussain, Zahid Hussain and Muhammad Rauf in complaint case titled "Mst. Allah Wasai v. Manzoor Hussain under section 302/34, P.P.C. Police Station Qutab Pur. Multan, ' Mst. Allah Wasai, petitioner/mother of the deceased Nazim Hussain who lodged F.I.R. No,198 of 2006 while submitting application on 28-6-2006 narrated that on 13-6-2006 at 8-00 a.m., she was informed by Shaukat Hussain that the dead-body of her son was hanging in the garden of Altaf Hussain. She went there along with Bashir Ahmad and Allah Ditta and saw that the dead-body was put in a trolley and number of people and the police was present there. She further stated that Manzoor Hussain respondent had a quarrel with the deceased and had threatened to murder the deceased Nazim Hussain and she is sure that respondents have committed the murder of her son and then hanged him with the tree.
2. After conducting the investigation the police found all the respondents innocent and being, dissatisfied by the conduct of the police she filed a private complaint on 22-8-2006 for which the respondents have been summoned and thereafter charged on 31-1-2007. In all the prosecution produced eight witnesses, whereas Safdar Hussain was examined as C. W.1 during the trial.
3. In the complaint, prosecution case mainly rested upon two sets of evidence. One is the last seen and the other is the extra judicial confession.
' Regarding the last seen evidence, the prosecution produced one witness namely Shabbir Ahmad son of Naseer Ahmad as P.W.S. According to him he told the complainant on 13-6-2006 that at about 12-00 mid night he was present out side the hotel of one Aslam. At that time the deceased Nazim Hussain and Rauf respondent passed from there and on his inquiry Nazim Hussain told that Zahid Hussain had called him and he would come back after some time. Said Shabbir Ahmad son of Naseer Ahmad was summoned in the complaint as P.W.S. ' The other limb of evidence produced by the petitioner is the extra-judicial concession before Muhammad Aslam son of Allah Ditta P.W.6 and Muhammad Saleem son of Muhammad Amin, P.W.7. According to them on 29-6-2008 they were bringing sand on a Rahri towards Qasim Bela from Chah Rait Wala and met Manzoor Hussain who made confession before them that he along with Zahid Hussain and Muhammad Rauf had murdered Nazim Hussain deceased. He (Manzoor Hussain) accused asked them to get effected a compromise with the L.Rs of the deceased.
4. I have gone through the record minutely.
5. The learned Additional Sessions Judge while acquitting the respondents had discussed the evidence of last seen and extra judicial confession because the prosecution mainly rested upon the said evidence.
' So far as the evidence of last seen is concerned, Shabbir Ahmad who is the maternal cousin of the deceased had seen the deceased in the company of Rauf respondent at 12-00 mid night and further told that on 13-6-2006 he appraised the complainant regarding the factum of last seen evidence. The F.I.R. Was lodged on 28-6-2006 almost 15 days after the occurrence, but, surprisingly there is no mention in the said F.I.R. That Shabbir Ahmad had ever seen the deceased in the company of Rauf respondent nor it is mentioned that Shabbir Ahmad had ever told the complainant regarding the factum of last seen evidence. If this evidence was available to the complainant or the witnesses this fact must have been mentioned in the F.I.R. Which was recorded after 15 days of the occurrence on the written application of the complainant. This fact by itself indicated that evidence of last seen was concocted much after the registration of the case and then instant private complaint was filed.
So far as the evidence of extra-judicial confession is concerned, P.W.6 Muhammad Aslam and P.W.7 Muhammad Saleem are the first cousins of the deceased and it does not appeal to a prudent mind that an accused will make confession even before such a close relatives of the deceased and that too on the way when they both were bringing sand from one place to the another. There is hardly any occasion for Manzoor Hussain accused to make such extra-judicial confession while standing on the way. Even the conduct of the said witnesses who are closely related to the deceased is also not above board as they did not try to apprehended Manzoor Hussain who was allegedly making confession before them regarding commission of the murder of their near one.
The Superior Courts observed that whenever prosecution had no ocular account such type of pieces of evidence i.e, last seen evidence and evidence of extra-judicial confession can always be concocted because it is easy to fabricate such type of evidence, especially, at the time of filing the private complaint and for the first time last seen evidence and the evidence of extra-judicial confession was introduced because the private complaint was lodged after due consultation and pre-meditation.
Further, it has been held in the case report in 1996 SCM R 188 that extra-judicial concession is a weak type of evidence which can easily be procured whenever direct evidence of the crime is not available and the Courts, therefore while placing reliance on it have emphasized the use of utmost care and caution.
Motivating factors for a person guilty of offence entailing capital punishment to make a confession generally are (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation from a third parson who is authoritative, socially or officially--- Extra-judicial concession have also almost become a norm when the prosecution cannot otherwise succeed. It is the settled principle of law that one tainted piece of evidence cannot corroborate the other tainted evidence. Reliance is placed on 2006 SCM R 231.
6. Learned counsel for the petitioner contended that the Investigation conducted by the Investigating Officer is not binding upon the Court and is irrelevant.
No doubt the opinion of the Investigating Officer has no binding force upon the Court but such opinion cannot be thrown in the air altogether and while deciding the case said opinion can be taken into consideration if the same is based upon solid data/evidence. During, the investigation of the case, both the accused persons were declared innocent and nothing was recovered from them.
7. It was always observed by the Apex Court that if there can be a contradictory view of reappraisal of evidence by the Court, hearing acquittal appeal, that would not be sufficient to justify any interference with the acquittal judgment. It is laid down by the apex Court in PLD 1997 SC 408, "that an acquittal appeal stands on a different footing than an appeal against the conviction. In acquittal appeals, the Superior Courts generally do not interfere with unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on re- appraisal of the evidence by the Court hearing the acquittal appeal simpliciter would not be sufficient to justify interference with the acquittal judgment." Reference was made to 1995 SCMR 535 and 1991 SCM R 2220.
It has further been observed by the Hon'ble Supreme Court of the Country in the case of Munawar Shah v. Liaquat Hussain and others (2002 SCM R 713) regarding appeal against acquittal that, "the ordinary scope of petition or appeal against acquittal of accused is considerably narrow and limited---On the examination of the order of acquittal as a whole credence should be accorded to the findings of the subordinate Court whereby the accused had been exonerated from the charge of commission of the crime. It is the established principle of law that obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of the accused is attached to the order of acquittal."
It was further observed by the apex Court in Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCM R 477 "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction of misreading/non-reading of evidence...Law requires that a judgment of acquittal shall not be disturbed even though second opinion may reasonably be possible".
8. The 'last seen evidence for basing conviction thereon as circumstantial evidence must be incompatible with innocence of the accused and should be accepted with great care and caution and be scrutinized minutely for reaching a conclusion that no plausible conclusion can be drawn therefrom excepting guilt of the accused. Reliance can he placed on 1997 SCM R 1416.
9. The judgment of the learned ASJ is well reasoning and does not call for any interference by this Court. Having thus examined all aspects of the matter, mentioned above. I find that it could not be said that the acquittal recorded by the learned ASJ proceeds on reasons which are perverse or whimsical. Resultantly, finding no merit in this petition, I dismiss the same and refuse grant of special leave to appeal to the petitioner.