' HASNAT AHMAD KHAN, J.- Naeem Masih, the appellant, along with another, was tried by a learned Addl. Sessions Judge, Faisalabad, in case F.I.R. No,493/2004, dated 10-9-2004, registered at Police Station Dijkot, Faisalabad, for the offences under sections 302/34/379/411, P.P.C. After the conclusion of the trial, the said learned Judge found the appellant guilty of murdering Binyamin, and vide his judgment dated 7-6-2005, convicted and sentenced the appellant under section 302(b), P.P.C, to imprisonment for life as Tazir. The appellant was further directed to pay Rs,1,00,000 as compensation to the legal heirs of the deceased or in default of payment thereof, he was ordered to further undergo six months' S.-I. Benefit of section 382-B, Cr.P.C, was also given to the appellant.
However, the appellant was acquitted of the charge under sections 379/411, P.P.C.
2. Aggrieved by the judgment of the leamed trial Court, the appellant challenged his conviction and sentence through the appeal in hand.
3. Succinctly, the prosecution's story, as narrated by the complainant-Nazir Masih, through complaint (Exh. PC), which later on culminated into F.I.R. (Exh. PC/1) was/is to the effect that complainant's son Binyamin, along with his family, was putting in New Abadi on the back of Darbar Sufi Barkat Ali; about 7/8 days prior to the occurrence, Parveen Bibi, wife of the deceased, along with her son Nadeem, went to Chak No,346-GB, Toba Tek Singh; on 9/10-9-2004, at about 8-00 p.m., his (complainant's) son was asleep in his house; during his (Binyamin's) sleep, some unknown person murdered him after cutting his jugular vein and inflicting injury in his abdomen with a sharp-edged weapon, and threw the dead body inside the room from the courtyard and bolted the outer gate from the outside; on 10-9-2004, at 9-00 p.m., the complainant received an information that somebody had murdered Binyamin whereupon he (the complainant), along with Javed Masih and Rafiq Masih, reached the house of Binyamin (the deceased) and found the dead body of Binyamin lying inside the room. The motivating factor behind the occurrence, as stated by the complainant, was that the deceased after divorcing his first wife namely Mst. Farzana about six/seven years prior to the occurrence, had married Parveen Bibi, whereas, the said Farzana had solemnized second marriage with one Afzal Masih; Farzana had been demanding return of his kids namely Nadim, Sumera, Aamer and Kali etc. From Binyamin (the deceased); however, Binyamin (the deceased) was not ready to hand over the children to her. The complainant suspected that his son Binyamin had been murdered at the instance of his (complainant's) exdaughter-in-law and Afzal, her second husband. Initially the appellant was not named in the F.I.R, however, on 20-9- 2004, during investigation, the complainant named the present appellant as an accused.
4. After completing the investigation, the Investigating Officer found the appellant guilty and challaned him to face the trial.
5. During the trial, the prosecution in support of its case, produced as many as 12 witnesses, out of whom Aurangzeb, Draftsman, appeared as PW.1 and proved the site plans Exh.PA and PA/1 drafted by him; PW.3 Zahid Hussain, Constable, stated about the safe custody of parcels containing blood- stained earth and Churri. Dr. Pervaiz Akhtar, who had conducted the post-mortem on the person of the deceased, appeared as P.W.7. According to him he had found following injuries on the person of the deceased:--
(1) An incised wound 8 cm x 5 cm on the front of neck more on the right side of neck it cutting the skin muscle blood vessels oesphagus, larynx and trachea.
(2) An incised wound 2 cm x I cm on the front of abdomen, 4 1/2 cm above the umbilicus. Its depth not measurable.
(3) An abrasion 6 cm x 5 cm on the left side of the thigh dissection.
' In his opinion the cause of death in this case was haemorrhage and shock which was due to the injury Nos.1 and 2. Nazir Masih, complainant, appeared as P.W.B. Javed Masih, who appeared as P.W.9, proved the recovery of blood-stained earth Exh.PG, cycle (P.3). Vide Exh. PH, blood-stained Churri (P.4) vide Exh. PJ and "Taisa" (P.5_ vide Exh.PK. Pervaiz Masih, PW10, gave the detail of the extra-judicial confession which was allegedly made by the appellant before him. Sabir Masih appeared as PW.11 and stated that he had seen the appellant standing outside the house of Binyamin, the deceased, on the night of. Occurrence. Mehmood S.-I. Appeared as PW.12 and gave the detail of the investigation conducted by him.
6. Learned DDA gave up Rafiq Masih, Younis Masih and Allah Ditta, PWs, as being unnecessary and Samuel Masih being dead. After tendering into evidence the reports of Chemical Examiner regarding blood-stained earth (Exh.PM) and Churri (Exh. PQ) and those of Serolgist (Exh. PN & Exh.PR), learned DDA closed the prosecution evidence.
7. The appellant made his statement under section 342 Cr.P.C. While responding to question No,7, Nadeem Masih-appellant stated as under:- "It is an unseen occurrence and admittedly complainant came into knowledge about the murder of his On with the delay of 19/20 hours and complaint Exh. PC was lodged showing suspicion against Farzana ex-wife of deceased Binyamin and Afzal her second husband. Binyamin deceased was having four children from the wed-lock of Farzana and the children were in the custody of Binyamin deceased at the time of his murder and after that complainant taken into custody said children. Binyamin deceased and Farzana ex-wife of deceased Binyamin were in conflicted with each other on the custody of minors and matter was bargained between complainant, Farzana and Afzal. Resultantly, Farzana gave up her claim about the minor and complainant with the connivance of Investigating Officer S.-I. Mehmodo Ahmad got declared innocent to Farzana and Afzal without recording any independent evidence."
2. After that second episode of drama was started and complainant thrown a wide net on innocent persons including myself and my co-accused Yasir and concocted a false evidence of wajtaker and extra judicial confession at belated stage. No one had seen me and my co-accused around the place of occurrence in the night of occurrence as we did not go there in any connection.
Moreover, I and my co-accused have not made any extra judicial confession before P.Ws. And nothing was recovered from my possession and on my pointation. All the recovery were planted upon me and my co-accused with the connivance of complainant party just to strengthen the prosecution story. Statements of P.Ws. Are full of contradiction and they have negated their own case in the evidence. Binyamin deceased contracted second marriage with my sister Mst. Parveen against the consent of complainant and after the death of Binyamin complainant having apprehension that my sister will claim the property of deceased being legal heirs of deceased and due to this I was falsely implicated in this case. P.Ws. Are inter se related to each other and they have deposed falsely against ourselves."
' The appellant neither appeared as his own witness under section 340(2), Cr.P.C., nor did he produce any evidence in his defence.
8. Up6n the conclusion of the trial, learned trial Court, while acquitting Yasir co-accused, convicted and sentenced the appellant as mentioned above.
9. In support of this appeal, learned counsel for the appellant has contended that it was an un- witnessed occurrence; that the prosecution has tried to prove its case by producing witnesses of extra-judicial confession and evidence of "wajtaker"; that the extra-judicial confession is always treated as weakest type of evidence and conviction cannot be based on such type of evidence without independent corroboration which is lacking in this case; that the appellant had no reason to make extrajudicial confession before the witnesses, who admittedly are not persons of authority; that the story put forth by Sabir Masih, P.W.11, regarding his meeting with the appellant in front of the house of the deceased at the odd hours of the night, is neither believable nor plausible; that insofar as recovery of bloodstained Chhuri is concerned, in the peculiar circumstances the same is not believable; that initially the appellant was not involved in this case even as a suspect of the murder of Binyamin (the deceased) but he was implicated in the case afterwards on the basis of the statement, made by the complainant, during investigation on 20-9-2004.
10. Conversely, the learned Deputy Prosecutor-General has defended the impugned judgment by submitting that there is sufficient material available on the record to shore up the conviction of the appellant; that Sabir Masih, P.W.11, who furnished the evidence of "Wajtaker" is an independent witness inasmuch he has no relationship with the complainant or the deceased; that the attending circumstances, including the recovery of blood-stained Churri from the appellant, fully saddles him with the alleged crime; that the appellant failed to produce any witness in support of his defence plea during the trial and that the substitution of real culprit, that too in a murder case, is a rare phenomenon.
11. I have heard the respective learned counsel for the parties and gone through the entire evidence, oral as well as documentary, with their able assistance. While doing the said exercise, I have noted that the prosecution's case mainly hinges upon circumstantial evidence in the shape of extra judicial confession of the appellant, evidence of "wajtaker" and recovery of blood stained Churri at the instance of the appellant.
12. Firstly, I take up the extra-judicial confession. According to Parvez Masih, P.W.10, on 13-9-2004, while he, along with Samuel, was sitting in the house of the complainant, Bashir Masih (given up P.W.) and Sabir Masih (P.W.11) came there and stated that on 10-9-2004 they had been going to Hasilpur and when they reached near Binyamin's (the deceased's) house at 3-00 a.m. They saw that Yasir (acquitted co-accused) and the appellant were locking the door of the Binyamin's (the deceased's) house and on their (the P.W's) query, the appellant and his acquitted co-accused replied that they had come there in connection with some personal affair while Binyamin had gone to his father's house some time ago. Upon the said information, Parvez Masih, P. W.10, along with Samuel, allegedly went to the house of Naeem Masih (present appellant), where he (the appellant) after some hesitation confessed to his guilt. Normally in cases of blind murders or other crimes accused approaches the witnesses to make extrajudicial confession due to the pricking of their conscience or some other circumstances, but in this case, strangely enough, according to the prosecution, the witnesses themselves approached the accused-appellant who statedly confessed to his guilt. The said version appears to be economical with truth. Further, the witnesses of extra-judicial confession were admittedly no men of authority, therefore, the confession of his guilt by the appellant before such like people does not sound to reason. More interestingly, after making confession of his guilt, neither the said witnesses tried to apprehend the appellant nor did they report it to the police immediately rather they waited for the next day when they made their statements under section 161, Cr.P.C. Before the Investigating Officer. In this view of the matter, I feel no hesitation to hold that the story of alleged extra-judicial confession of A his guilt by the appellant before Parvez Masih (P. W.10) and Samuel Masih (given up P.W. Being dead) is not believable.
13. As far as motive for the crime as set up by the prosecution during the investigation is concerned, that has already been disbelieved, therefore, no reliance can be placed on the said piece of evidence.
14. Insofar as the evidence of "wajtaker" is concerned, suffice it to observe that the presence of Sabir Masih (P.W.11) in front of the house of Binyamin (the deceased) at such add hours of night is not believable inasmuch as the said witness failed to advance any reason for his presence in front of the house of deceased at such late time in the night. It is also interesting to note that though the F.I.R. In this case was lodged with an inordinate delay of about 20 hours yet the witness of "wajtaker" failed to bring the said important incident to the knowledge of the complainant who while lodging the F.I.R. Suspected other people as murderers. The witnesses of "wajtaker" evidence kept mum for three days before telling the said story to the complainant. Last but not the least, the uncorroborated statement of Sabir, P.W.11, has already been disbelieved by the learned trial Court by advancing cogent reasons. Therefore, the said piece of evidence, obviously, is useless for the prosecution.
15. Now coming to the alleged recovery of bloodstained Churri, I find that allegedly Churri was recovered after 23 days of the occurrence on the pointing out of the appellant and that too lying under the bundle of chaff but, surprisingly enough, still bloodstained. Normally, after expiry of few days the blood, present on an article, disintegrate/fade away but in the case in hand the blood remained intact on the Churri, allegedly recovered from the appellant, even after expiry of 23 days of the occurrence as claimed by the prosecution. Even otherwise, it is not believable that the accused, who admittedly was not seen committing the crime, would keep the bloodstained Churri intact to produce the same before Investigating Officer as souvenir. I find that all the components/items of prosecution evidence are tainted pieces of evidence. It is an established law that one tainted piece of evidence cannot corroborate another tainted piece of evidence.
15-A. In short, I conclude that the entire prosecution case rests on the circumstantial evidence, which can only be relied for awarding or maintaining conviction when it excludes all hypothesis of innocence of the accuse. It is an established law that for awarding conviction, the circumstantial evidence must be incompatible with any reasonable hypothesis of the innocence of the accused and no link in the chain should be broken. If any case-law is required on the subject, reference can be made to the cases reported as Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCM R 1047, Abdul Sattar v. State 1999 PCr.LJ 764 and Ali Khan v. The State 1999 SCM R 955. It is another cardinal principle of Criminal Jurisprudence that for giving benefit of doubt to an accused is not necessary that there should be many circumstances creating doubt. If there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit of doubt not as a matter of grace or concession but as a matter of right.
16. In view of the above discussion, I hold that the prosecution has miserably failed to prove its case against the appellant inasmuch as the pre-requisites to base the conviction upon circumstantial evidence, upon which the prosecution's case hinges, are missing. Consequently, I accept the appeal, resultantly the conviction and sentence recorded against the appellant by the trial Court is set aside and he is acquitted of the charge. He be released from jail if not required in any other case.