' DR. FIDA MUHAMMAD KHAN, J.---The appellant Hamid Nadeem, was convicted on account of commission of qatl-e-amd of Muhammad Arif, under section 302(b), P.P.C. By Additional Sessions Judge, Taunsa Sharif D. G. Khan vide his judgment dated 9-4-2002. He was also directed to pay compensation of Rs,.50,000 to the legal heirs of - deceased under section 544-A, Cr.P.C. Failing which he was to undergo six months S.I. Tahir Shehzad and Suleman Haider, co-accused, were also convicted under section 302(b), P.P.C. And sentenced to life imprisonment. They were also directed to pay an amount of Rs,.50,000 as compensation to the legal heirs of Muhammad Arif deceased, under section 544-A, Cr.P.C., failing which they were to undergo S.I. For six months. All the three afore-mentioned accused were further convicted under section 377, P.P.C. And sentenced to undergo five years' R.I. Each and to pay a fine of Rs,.5,000 each or in default thereof to further undergo S.I. For six months. All the sentences of imprisonment were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. Was also extended to them.
2. All of them filed appeals before Federal Shariat Court against their conviction and sentences. A Criminal Revision was also filed by complainant Dur Muhammad, against Suleman Haider and Tahir Shehzad, seeking enhancement of their sentences. Federal Shariat Court allowed the appeal of suleman Haider and Tahir .Shehzad and dismissed the Revision Petition filed by complainant Dur Muhammad. However, Federal Shariat Court while maintaining the conviction of Hamid Nadeem, converted his death sentence into life imprisonment and answered the murder reference. In negative.
3. While Hamid Nadeem preferred Jail Shariat Petition seeking leave of the Court, Dur Muhammad complainant also filed a Petition for leave to appeal against the said judgment of Federal Shariat Court.
4. This Court heard the Petition of complainant challenging the acquittal order passed by Federal Shariat Court qua the other two acquitted respondent-accused on 23-4-2010 but, after hearing 'learned counsel for the petitioner, dismissed the said petition and refused to grant leave. However, on the same day, leave was granted to Hamid Nadeem. The said leave-granting order reads asunder:- "Learned counsel for the petitioner contends that it is a blind murder and the pieces of evidence, consisting of extra judicial confession before the relative of the deceased and the recoveries are not confidence inspiring, to prove a case against the petitioner beyond reasonable doubt and particularly when the evidence of the prosecution qua the other two co-accused has been disbelieved by the Courts.
2. Points raised require consideration. Leave to appeal is accordingly granted."
5. Briefly stated facts of the prosecution case as unfolded from the statement of Dur Muhammad complainant in the F.I.R. Lodged on 1-7-2001 at Police Station Taunsa sharif', District D.G. Khan. Are to the effect that on 30-6-2001 when he closed his hotel and came to his residence at about maghrib prayers, he found his son Muhammad. Arif, aged about 13/14 years, student of 7th class, missing. He inquired about hint from his other family members. They told him that he had gone out front his house at Assar time but had not returned so far. Since Muhammad Arif used to go to the house of his relatives to watch television, they presumed that he might have gone over there. However when he did. Not return till next morning, he got worried and started out search on 1-7-2001. In the meanwhile he heard announcement front loud speaker of the Mosque regarding an Unidentified dead-body of a boy lying in DHQ Hospital Taunsa Sharif. He rushed over there and identified the dead-body to be that of his missing son Muhammad Arif who had -been murdered with fire-arm.
The police who had already reached there recorded: his statement, Exh.PB, and accordingly registered formal under section 302, P.P.C., on the same day. He did not nominate any one as an accused Or even as suspect in the F.I.R:.-
6. The case was investigated by Raft. Ullah Niazi, SHO/1.0 (P.W.15). He collected blood-stained earth- from the place where from the dead-body had been recovered. He also found two crime empties of .30 bore pistol and took the same into possession vide recovery memo Exh.PM. He prepared the injury statement, inquest report and got conducted post mortem examination of the dead-body.
He also took into possession last worn clothes of the deceased, his chappal and wrist watch. He prepared the site plan and recorded the statements of the P.Ws. Under section 161, Cr.P.C.
7. On the basis of statements made by P.W .10 Muhammad Safdar Sherani on 3-7-2001 who disclosed about extra judicial confession as made by Hamid Nadeem, Tahir Shehzad and Suleman Haider before him, he arrested them in this case on 4-7-2001 and, after necessary investigation, challaned them to face trial.
8. At the trial, the prosecution produced 15 witnesses. The appellant Hamid Nadeem also made statement under section 342, Cr.P.C. And stated as mentioned hereinunder:-- "Private P.Ws. Are closely related with each other. To prove a blind murder, they made false statements against me and on the asking of police and on suspicion, private P.Ws. Deposed against me. Police and other official P.Ws. Deposed against me as they were to stand in favour of prosecution in discharge of their duties."
9. After hearing the learned counsel for the parties, Federal Shariat Court maintained his conviction but altered his sentence as mentioned hereinabove.
10. We have heard the learned counsel for the appellant as well as for the State and have thoroughly perused the record with their assistance.
11. It transpires that admittedly there is no ocular evidence in this case as none of the witnesses either saw commission of sodomy upon Muhammad Arif deceased nor witnessed his murder by the appellant Hamid Nadeem. The whole case of prosecution is' based on circumstantial evidence containing extra judicial confession, recovery of blood-stained clothes of the appellant, recovery of weapon of crime at pointation of the appellant, post mortem report of the deceased and positive report of the Chemical Examiner about the anal swabs of the deceased. So far as this unfortunate occurrence is concerned, it has actually taken place. The dead body of his deceased son was identified by his father, the complainant, who had nominated none as suspect or accused in the F.I.R. However subsequently on the basis of statement, made by P.W.10 Muhammad Safdar Sherani, regarding the extra judicial confession by the appellant and his acquitted co-accused, the appellant along with two other co-accused was arrested and challaned. Thus the whole case hinges upon the testimony of P.W.10 and subsequent recoveries of pistol and blood-stained clothes of the appellant. The deposition of P.W.10, however, does not inspire confidence for several reasons, summed up below. Here, it may be pertinent to mention that the testimony of P.W.3 Khalid Mahmood, real nephew of the complainant, cannot be termed as the last seen evidence as he happened to see only three "accused" on a thoroughfare but without the deceased. His belated statement (Exh.DB) before the police and that too with several Major discrepancies highlighted in the cross-examination is worthy - of no credence and does not inspire confidence.
12. According to P.W.10 Muhammad Safdar Shemn, the appellant and his co-accused made extra judicial confessions about the offences of sodomy and murder of Muhammad Arif deceased in the presence of Ghulam Farid. The available record contains, no reason why the appellant (and his co- accused) opted, on the third day of occurrence, to make extra judicial confession about such heinous offences when they were neither nominated' in the F.I.R. Nor even suspected. The appellant, in circumstances, had no reason to go to P.W.10 and make confession while there was neither any social nor any legal pressure on him'to seek any help. The alleged confession was made in presence of Ghulam Farid in the morning at about 10 a.m. But P.W.10 made report to the police in this respect after Maghrib prayers, despite the fact that police station was just 110 yards away from his clinic. Both P.W.10 and Ghulam Farid are related to the complainant. While P.W.10 is "remotely" related, Ghulam Farid is real "Khalu" of deceased and thus "Hamzulf" of complainant. None of them even tried to detain the appellant to hand him over to the police available at such a short distance.
Instead, as admitted by him, he made them believe that he will try to help them and asked them to leave the clinic immediately and go back. The matter was not reported during the whole day to the complainant as well. He also did not disclose it to anyone else. The whole family of deceased was highly shocked but they both let the accused get scot free till next day when they were arrested.
Moreover the said "Khalu" of deceased did not support the prosecution case and was given up as "won over". P.W.10 was a Homeopathic practitioner and does not apparently hold any such position of authority to attract the accused and provide any assistance or rescue to them. He admitted that this was the first time when.Any accused had sought his help.
13. We are well-conscious of the fact that conviction can be based on extra judicial confession when it is corroborated by other reliable evidence. However, extra judicial confession being regarded as a weak type of evidence by itself, utmost care and caution has to be exercised in placing reliance on such confession. Recovery of crime weapon and blood-stained clothes of appellant could have supported the prosecution case but in the instant case that 'too are not beyond doubt as would be clear from the subsequent discussion.
14. Regarding the recoveries, it transpires that two crime empties of .30 bore, pistols were recovered by P.W.15 from the place of occurrence on 1-7-2001 and handed over by him to the Moharrir on the same day: After arrest of the accused/appellant on 4-7-2001, his physical remand was obtained and on 8-7-2001, a pistol .30 bore was recovered, on pointation, from his house and it was handed over to the Moharrir of the Police Station for onward transmission to the Forensic Science Laboratory for comparison and report. Whereas it is evident from deposition of P.W.9 Fazalur Rahman that on 3-7-2001, Abdul Hameed (P.W.5) Moharrir handed over to him a parcel said to contain two crime empties of .30 bore pistol and he deposited the same in the office of the FSL Lahore, he does not mention the exact date when did he deposit that over there. His statement in this respect was recorded on 20-7-2001. He admitted that he took the said crime empties through docket Exh.DD but there was no mention in the docket that it was taken by him to Lahore. He was suggested that he made a false statement. He was confronted with his statement where it was not so recorded. So the exact date of dispatch of crime empties is doubtful. It is highly pertinent and shocking to mention here that, in his examination-in-chief, P.W .5 Abdul Hameed does not make any reference, whatsoever, to the parcel of crime empties to have been handed over by him to P.W.9. He makes a mention in cross-examination by volunteering that the two crime empties along with the weapon were sent to FSL but it was not mentioned in his statement under section 161, Cr.P.C. He also admitted that no explanation of delay in sending the pistol etc. To FSL has been recorded in the police file. It is thus also questionable wherefrom did P.W.9 obtain parcel of the crime empties and on which date.
15. The crime weapon (pistol) which was recovered from the applicant on 8-7-2001 was handed over to P.W.13 Kaleemullah Constable which he deposited in the office of FSL on 16-7-2001 and, strangely, that too with five live bullets for reasons best known to him. As stated above, the delay and safe custody has also not been explained. Report of FSL, in circumstances, loses sanctity especially in a case, with a capital charge, where abundant precaution is urgently required for safe administration of justice.
16. Regarding recovery of clothes of appellant, allegedly stained with blood of the deceased, it suffices to mention that the same were not matched with the blood of deceased. No positive report regarding that is available on record.
17. In view of the above, we have come to the irresistible conclusion that the case of prosecution is highly doubtful and the appellant is entitled to get the benefit thereof. Therefore, we allow this appeal, 'set aside conviction and sentences of the appellant and acquit him of the charge. He shall be released forthwith if not wanted in any other case.