' MANZOOR AHMAD MALIK, J.---This single judgment shall dispose of Criminal Appeal No,307 of 2008 titled "Zaheer Ahmad and others v. The State" filed by Zaheer Ahmad, Nadeem Raza, Asim Basheer and Zain-ul-Abideen appellants against their conviction and sentence and Criminal Revision No,128 of 2008 titled "Syed Abid Hussain Shah v. Zaheer Ahmad and others" filed by the complainant for enhancement of sentence awarded to Zaheer Ahmad, Nadeem Raza, Asim Bashir and Zain-ul- Abidin, respondents Nos.1 to 4, as both these matters have arisen out of the same judgment dated 30-9-2008 passed by the learned Additional Sessions Judge Jhelum in case F.I.R. No,344 of 2006 dated 25-8-2006 offence under sections 302/34, P.P.C. Registered at Police Station Dina, District Jhelum.
2. Zaheer Ahmad, Nadeem Raza, Asim Basheer and Zain-ul-Abideen appellants have filed Criminal Appeal No,307 of 2008 against their conviction and sentence awarded to them by the learned Additional Sessions Judge Jhelum vide judgment dated 30-9-2008 whereby the appellants were convicted under section 302(b) read with section 34, P.P.C. And sentenced to imprisonment for life with a further direction to pay compensation of Rs.1,00,000 (rupees one lac only) each as provided under section, 544-A Code of Criminal Procedure to the legal heirs of the deceased and in default whereof the appellants were to undergo simple imprisonment for further six months. The appellants were, however, extended benefit of section 382-B, Code of Criminal Procedure.
3. Brief facts of the case as disclosed by the complainant (P.W.7) in his complaint (Exh.P.A) are that on 23-8-2006 Imran Hussain Shah (deceased) went to see his ailing cousin on a Car No,7317/AJKA driven by one Muhammad Yaqoob to village "Pind Rajwal" and on way back, Imran Hussain Shah deceased alighted in the village "Jasrota" in the house of his Mamoon Barkat Hussain Shah but thereafter on 25-8-2006 Syed Manzoor Hussain Shah his Chachazad informed about a dead-body lying near Darbar Shah Jand, therefore, he reached there at 8-00 a.m. And identified it as Imran Hussain Shah (deceased). Thereafter the complainant moved another application (Exh.P.E) nominating all the appellants stating therein that he had come to know about the motive through Mst. Safia Jabeen (P.W.2) and had information by Syed Abid Hussain Shah (P.W.7) about involvement of all the accused in the commission of offence.
4. After registration of the F.I.R. Investigation was conducted by Nazar Muhammad S.-I (P.W.10) who took all the necessary procedural steps and having found all the appellants to be involved challaned them in the case. Charge was framed against them on 10-1-2007 to which they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution has produced as many as eleven witnesses. Syed Waseem Abbas (P.W.1) identified the dead-body of the deceased in DHQ Hospital Jhelum. He also furnished the evidence of extra-judicial confession. Mst. Safia Jabeen (P.W.2) narrated the motive part of the occurrence. Ghulam Rasool A.S.-I (P.W.3) received complaint Exh.PA and on the basis thereof drafted the F.I.R. Exh.PA/1. Dr. Anjum Riaz Medical Officer (P.W.4) conducted postmortem examination on the dead-body of the deceased. Syed Zain Hussain Shah (P.W.5) furnished evidence to the effect that deceased was lastly seen at the outer door of the house of Zain-ul- Abideen appellant. Syed Saji Hussain (P.W.6) is witness of the recovery of stones P1/1-2. Syed Abid Hussain Shah (P.W.7) is the complainant of case who entered into the witness box to support the story narrated in the F.I.R. (Exh.PA/1) and application/ supplementary statement (Exh.PE) ljaz Ahmad (P.W.8) was Moharrar who kept the last worn clothes of the deceased in the Malkhana Nazar Muhammad S.-I. (P.W.10) investigated the case and while appearing in. The witness box he narrated different steps taken during the investigation. Akhtar Nakash (P.W.11) prepared site plan of the place of occurrence Nadeem Hussain Shah P.W. Was given up being unnecessary by the learned DDA on 17-2-2007 similarly Syed Wajid Hussain, Syed Arif Hussain and Syed Bashir Hussain P. Ws. Were given up being unnecessary by the DDA on 3-3-2007. The prosecution evidence was concluded on 5-7-2008 whereas the appellants were examined under section 342, Code of Criminal Procedure on 5-7-2007. They did not opt to depose on oath as required under section 340(2) Code of Criminal Procedure nor did they produce any evidence in their defence. After conclusion of the trial, learned trial Court convicted and sentenced the appellants as detailed above.
6. Learned counsel for the appellants, in support of this appeal, contends that so far as motive of the case is concerned it was disclosed on 26-8-2008 at the Police. Station at 11-30 a.m. According to Mst. Safia Jabeen (P.W.2) whereas Nazar Muhammad S.-I. Investigating Officer (P.W.10) stated that he was present in the village on 26-8-2008 and Mst. Safia Jabeen was also there and she made a statement at 7-30 a.m. That statement of Mst. Safia Jabeen is inadmissible in evidence as she has based her statement on the information provided to her by Mst. Nadia Kiran who Was neither produced before the court nor joined in the investigation and in this respect learned counsel has relied upon "Khurshid Ahmad versus Kabool Ahmad and others" (PLD 1964 (W.P)
Karachi 356). Learned counsel further contends that even otherwise statement of P.W.2 does not appear to be plausible because had there been any information with Mst. Nadia Kiran, she could have directly conveyed it to the deceased as it is the case of the prosecution that deceased had relations with Mst. Nadia Kiran; that the F.I.R. Was lodged on 25-8-2006 at 11-45 a.m. Whereas the dead-body was seen by the complainant at 8-00 a.m. At a distance of just one furlong from his residence and in this situation had P.W.2 any information about the motive, she could have conveyed it to the complainant who is her real father and it could easily be incorporated in the F.I.R.
That as far as the last seen evidence is concerned the prosecution has produced Syed Zain Hussain Shah as P.W.5 who is real nephew of complainant and resident of Muftian which is 30-Miles away from the place where he allegedly saw the deceased in the company of the appellants and the witness has not given any plausible explanation for his presence at the place; that this statement, even if accepted, is in direct conflict with the statement of P.W.2, that she had been informed by Mst. Nadia Kiran that there was a danger to life of the deceased and on her information mother of the deceased had sent him to Muftian, 30-Miles away from his house because had the deceased received the information that there was danger to his life at the hands of the appellants he would not have come to the house of the appellants and that too on a telephonic call; that according to the P.W.5 he passed this information to the Investigating Officer on 26-8-2006 at the Police Station whereas according to the Investigating Officer he recorded statement of P.W.5 in the village when he was there; that as far as extra-judicial confession is concerned the prosecution has produced P.W.1 in this respect but his statement cannot be relied for the reason that he is close relative of the complainant and has no relationship with the accused and there was no reason for the appellants to that it is the case of the prosecution that the appellants were produced before the Police by P.W.1 on 4-9-2006 whereas another prosecution witness i,e, (P.W.9) namely Farhat Iqbal a Councillor has stated that all the appellants were arrested on 26-8-2006 though this witness was subsequently declared hostile by the prosecution; that the so called extrajudicial confession was a joint confession, which is inadmissible in evidence; that as far as recovery of stones is concerned it has no evidentiary value for the reasons (a) those were not blood stained; (b) those were ordinary stones which were taken into possession from the place of occurrence by the Investigating Officer ten days after the registration of the F.I.R. Whereas the Investigating Officer had already inspected the place of occurrence and there is no mention of those stones in the site plan (Exh. PG).
7. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the omplainant opposes this appeal on the grounds that had the complainant any malice towards the appellant he could easily implicate them in the F.I.R. But it was not done and true facts were disclosed in their true perspective and sequence; that the prosecution witnesses have no enmity or malice towards the appellants and even no such malice was suggested to them during their cross-examination; that the prosecution has produced natural and confidence inspiring evidence which fully proved the guilt of the appellants; that though all the appellants went together for making the confession, but they confessed their guilt one by one that presence of P.W. 5 who is a witness of last seen is very natural and it has not been disputed by the defence side; that extra- judicial confession is in line with the medical evidence because the deceased received nine injuries on his person; that there may be contradictions in the statements of prosecution witnesses but those are not material specially in a case of circumstantial evidence.
8. I have heard learned counsel for the appellant, learned Deputy Prosecutor-General as well as the learned counsel for the complainant and examined the relevant record with their able assistance.
9. Admittedly no person was nominated as an accused in the F.I.R. Exh.PA/1, which was recorded on 25-8-2006 on the statement of Syed Abid Hussain Shah (P.W.7) father of the deceased, however, on 26-8--2006 another application (Exh.PE) was submitted by the complainant wherein the appellants were named. The appellants were named on the basis of information furnished to him by Arif Hussain Shah and Syed Zain Hussain Shah. During the course of investigation, evidence of motive, last seen, extra-judicial confession and recovery of stones was collected by the prosecution.
10. First of all, I would like to discuss the motive part of the story. The movie mentioned in the supplementary statement Exh.P.E is that Mst. Nadia Kiran sister of Zain-ul-Abideen appellant had illicit relations with the deceased. It is further mentioned in the application that Mst. Safia Jabeen (P.W.2) was informed by said Nadia Kiran 20 days prior to the occurrence that her relatives have come to know about relations of the deceased with her and therefore the deceased be sent elsewhere. Mst.Safia Jabeen had appeared as P.W.2 and deposed this fact that Mst. Nadia Kiran had informed her that the appellants have come to know about her relations with the deceased and they may cause damage to him. According to P.W.2 she imparted this information to her mother who sent the deceased to Muftian. Now the first question is whether the statement of P.W.2 is admissible in evidence as it has vehemently been argued by learned counsel for the appellants that statement of P.W.2 is based on hearsay evidence and the same is inadmissible. Admittedly Mst. Safia Jabeen had made a statement on the basis of B information allegedly conveyed to her by Mst. Nadia Kiran. Said Mst. Nadia Kiran never appeared before the Court and even she did not join the investigation, therefore, evidence furnished by P.W.2 is hearsay. Moreover, even it is accepted as admissible B evidence it is not reliable for the reasons, firstly that had Mst. Nadia Kiran any information she could have easily conveyed it to the deceased herself as according to the prosecution both of them had relations and they were residing in the same village and secondly according to the prosecution on receipt of this information by the mother of the deceased she sent him (deceased) away to Muftian which is thirty miles away from the village of the appellants and the deceased and in such situation presence of the deceased at the door of Zain-ul-Abideen appellant does not appear probable and that too on a telephonic call of the appellant.
11. Next piece of prosecution evidence is of last seen. Syed Zain Hussain Shah (P.W.5) claims that on 24-8-2006 he saw the deceased outside the house of the appellants and on his asking the deceased told him that he has come after receiving a telephonic call from Zain-ul-Abideen appellant as he had some urgent piece of work. This witness is not resident of the place where he saw the deceased with the appellants. He is resident of Muftian, which is thirty miles away from the village Bara Garan. He has not offered any plausible ' explanation for his presence near the house of Zain-ul-Abideen appellant. According to P.W.5 he along with Syed Arif Hussain Shah went to village Bara Garan as said Arif Hussain Shah wanted to give some money to his father-in-law namely Syed Abid Hussain. Said Arif Hussain Shah, however, did not enter into the witness box and was given up being unnecessary by the DDA on 3-3-2007, therefore, evidence of P.W.5 alio cannot be relied for maintaining conviction of the appellants.
12. As far as extra-judicial confession which was allegedly made by all the appellants before P.W.1 is concerned; it is now settled proposition of law that extrajudicial confession is always considered to be weak type of evidence. This evidence can easily be procured in the absence of direct evidence, therefore, utmost care and caution is required before placing any reliance on such type of evidence. For basing a conviction on the extra-judicial confession, the prosecution must prove that the extra-judicial confession was actually made that it was made voluntarily and truly. Another important factor, in this context is the social status and character of the person before whom such confession is made as obviously the accused who makes D such a confession, expects favour from such a person otherwise there could hardly be any need or reason for making extra judicial confession. For placing reliance on such type of evidence following three factors are very important:--
(i) Social status of the person before whom the extra-judicial confession is made;
(ii) Character of such person;
(iii) His influence over the family of the deceased.
13. The question of placing reliance on extra-judicial confession of the accused persons, came up for consideration before the august Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCM R 231), wherein, at, page 238, the apex Court of Pakistan observed as under:-- "17....This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions staring from Ahmed 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 Ahmed 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 extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that 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 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 consequented 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 (iii) 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 witnesses before whom extrajudicial 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 confessions 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 confessions. 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 the witnesses with the maker of confession and what, above all is the position or authority held by the witness".
14. In the instant case P.W.1 (Syed Waseem Abbas) did not have such a status or position in the society, which could prompt the appellants to make a confession before him. Moreover from the statement of P.W.1 it is clear that for making the alleged confession all the appellants went together. The said witness is the real nephew of the complainant and has no relationship with appellants. Therefore, considering the statement of P.W.1 in the light of the judgment of Hon'ble Supreme Court of Pakistan "Sajid Mumtaz and others v. Basharat and others" (2006 SCM R 231) it does not appeal to reason that the appellants would make a confession before the witness who had no sympathy with them and rather he is closely related to the deceased and the complainant and moreover when P.W.1 was sitting in the house of the complainant and the appellants called him E from there to make such confession therefore, in such circumstances, no reliance can be placed on the statement of this witness.
15. As far as recovery of stones is concerned, suffice it to say that those were ordinary stones, which were easily available in the area where the occurrence took place and moreover they were not blood-stained. The Investigating Officer F recovered these stones ten days after the occurrence whereas he had already visited the place of occurrence at the time of, inspection of the place of occurrence and preparation of the site plan.
16. In a case of circumstantial evidence utmost care and caution is required for reaching at a just decision. It is settled by now that in such-like cases every chain should be linked with each other and it should form such a continuous chain that its one end touches the dead-body and other end should touch the neck of the accused. But if chain is missing then its benefit must go to the accused. In this regard guidance has been sought from the judgments of the apex Court of the country reported in "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" 1999 SCM R 1034. In the case of Ch. Barkat Ali (supra), the august Supreme Court of Pakistan at page 1055, held 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 a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence...."
' To support this view, further reliance is placed on the case of "Altaf Hussain v. Fakhar Hussain and another" (2008 SCM R 1103) wherein at page 1105 it was held by the Hon'ble Supreme Court as under:-- "7 Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain."
17. For all what has been discussed above, the prosecution case is not free from doubt and the appellants are entitled to the benefit of doubts not as matter of grace but as a matter of right in view of the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Akram v. The State" (2009 SCM R 230). Therefore, this appeal is allowed conviction and sentence awarded to the appellants by the learned Additional Sessions Judge Jhelum is hereby set aside. The appellants are acquitted from the charges. They are in jail. They be released forthwith if not required to be detained in any other case.
18. Since the appellants have been acquitted of the charges levelled against them, therefore, there is no question of enhancement of their sentence, resultantly Criminal Revision No,128 of 2008 stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.