Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No, 04/2008 (Mst.
Rasoolan Bibi vs. The State) and Murder Reference No, 839/05 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as both these matters arise out of the same judgment dated 24.10.2005 passed by the learned Additional Sessions Judge, Gujranwala, whereby, appellant was convicted for the murder of Arslan under Section 302(b) PPC and sentenced to death with a further direction to pay a compensation of Rs, 1,00,000/- as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased in default whereof to further undergo SI for six months.
2. Brief facts of the case, as given by PW-8 Muhammad Ashraf (complainant) in the FIR(Exh.PA) are that complainant's chachazad Rafaqat Ali was married to the appellant about three years ago; that the said Rafaqat had no issue from his first wife Bushra; that both the said wives of Rafaqat Ali used to quarrel with each other. According to the complainant, an altercation took place between them few days ago but the matter was patched up with the intervention of Bushra's Behnoi Muhammad Boota who was son of the complainant but the appellant extended threat to teach a lesson to Boota for favouring Bushra. It has been mentioned by the complainant in the FIR that on 4.6.2005, Boota's son Arslan, aged four years, was playing in the street and the appellant enticed him away which was witnessed by Muhammad Iftikhar and Naseer Ahmad. It has further been mentioned in the FIR that the efforts were made for the search of Arslan. The complainant also stated in the FIR that at about 5.00 p.m., he was informed by a passerby that a dead body was brought out from Upper Chanab Canal at Pul Pipliwala, upon which, the complainant and others went there and found there dead body of Arslan. The motive stated in the FIR was that his son Boota used to favour his "Sali" Bushra which bore a grudge in the mind, of the appellant who had thrown Boota's son Arslan into the canal which led to his death.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused as required under Section 265-C of the Code of Criminal Procedure, charge was framed to which appellant pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 10 witnesses during the trial. The appellant/accused was examined under Section 342 Cr.P.C. She neither produced any evidence in defence nor opted to depose on. Oath as required under Section 340(2) Cr.P.C. However, the learned trial Court convicted and sentenced the appellant as detailed above.
5. Learned counsel for the appellant contends that admittedly it is an un-witnessed occurrence; that there is no direct evidence against the appellant to connect her with the commission of the offence; that the prosecution case is based on the circumstantial evidence which consists of last seen, motive and extra-judicial confession; that the motive has not been proved by the prosecution as the most natural and relevant witness of the motive, namely, Bushra has not been produced; that as per prosecution, appellant had an altercation with the said Bushra Bibi, a "sokan" of the appellant but the said Bushra was not examined during the course of investigation and even she did not appear before the Court; that so much so father of the deceased boy, namely, Boota neither joined the investigation nor appeared before the Court; that complainant of the case is not the witness of the occurrence who is grand-father of the deceased boy Arslan; that as per FIR, the deceased boy was lastly seen in the company of the appellant by Muhammad Iftikhar and Naseer Ahmad amongst whom Naseer was given up while another person with the name of Anwar Ali was produced in Court although his name does not find mention in the FIR; that no reliance can be placed on the statements of both these witnesses because both have stated different times having seen the deceased in the company of the appellant; that as per PW-5 Muhammad Iftikhar, he had seen the deceased boy Arslan in the company of the appellant at 9.30 a.m. whereas according. to PW-6 Anwar Ali, he had seen the deceased in appellant's company at about 10.00/10.30 a.m. which does not appeal to common sense and that PW-5 Muhammad Iftikhar has admitted in the cross-examination that he used to go to his work at about 7.00/7.30 a.m. and, according to the said PW, as the fateful day was Friday, therefore, he did not go to his job but his said stand is rebutted by the calendar because the day of occurrence (04.06.2005) was Saturday.
Learned counsel further contends that as far as extra judicial confession of the appellant before PW-7 Muhammad Afzal is concerned, the said witness is not related to the complainant and as such there was no occasion for the appellant and her husband to go to him to make such a confession. According to the learned counsel, there was no evidence about pointation of the place of occurrence by the appellant where deceased boy Arslan was thrown by her in the canal as alleged by the prosecution and that the evidence of last seen, being a weak type of evidence, cannot corroborate the other tainted pieces of evidence.
While concluding his submissions learned counsel contends that it is a case of circumstantial evidence and chain link is missing in the prosecution evidence to connect the appellant with the commission of the offence, therefore, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, so, benefit of doubt may be extended to the appellant and that, in the afore-referred circumstances, appellant is entitled to acquittal. He has placed reliance on Altaf Hussain vs. Fakhar Hussain and another (2008 SCM R 1103).
6. Conversely, the learned Deputy Prosecutor General for the State, while vehemently opposing this, appeal, contends that the prosecution has proved its case against the appellant beyond any shadow of doubt to maintain her conviction on a capital charge which consists of motive, last seen and extra-judicial confession; that the PWs had no enmity with the appellant to falsely depose against her during the trial; that, even otherwise, in such like cases substitution is a rare phenomenon; that the chain link is not missing in the prosecution case, as contended by the learned counsel for the appellant and the appeal in hand is liable to be dismissed.
7. We have heard learned counsel for the parties at, length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. Occurrence in this case took place on 4.6.2005, the matter, was reported to the police by PW-8 Muhammad Ashraf (complainant) at about 6.00 p.m. at Pul Pipliwala, Gujranwala, the formal FIR was registered on. the same day at about 6.30 p.m. while the distance between the place of occurrence and the Police Station was about three kilometers. The complainant in this case is the real grandfather of the deceased boy Arslan.
9. It is a case of circumstantial evidence which consists of last seen, extra judicial confession and motive.
10. As far as evidence of last seen is concerned, according to PW-5 Muhammad Iftikhar and PW-6 Anwar Ali, both of them, on the day of occurrence, had seen the deceased boy, Arslan in the company of the appellant. It is pertinent to mention here that in the FIR, names of PW-5 Muhammad Iftikhar and one Naseer Ahmad were mentioned, the Naseer Ahmad was given up and PW-6 Anwar Ali was introduced as a witness of the last seen. But we have noted that the testimony furnished by both these PWs, qua" the time, regarding having seen the deceased boy Arslan in the company of the appellant, is not the same. According to PW-5 Muhammad Iftikhar, he had seen the boy in the company of the appellant on 4.6.2005 at about 9.30 a.m. while the time of having seen the deceased boy Arslan in the company of the appellant by PW-6 Anwar Ali was 10.00/10.30 a.m. which is different from the time given by PW-5 Muhammad Iftikhar. PW-5 stated that he used to go to his work at about 7.00/7.30 a.m. and, according to the said PW, the fateful day was a Friday, therefore, he did not go to his job but his said stand is rebutted by the calendar because the day of occurrence (4.6.2005) was Saturday. The evidence of PW-8 Muhammad Ashraf (complainant) is almost hearsay in nature and does not advance prosecution's case, so, there is no need to comment on his statement.
11. The next piece of evidence is the extra-judicial confession furnished by PW-7 Muhammad Afzal.
According to him, the appellant had come to him alongwith her husband and admitted to have killed the deceased boy Arslan by throwing him into the canal and begged pardon for the said sin.
But we have noted that this witness is neither related to the complainant nor enjoyed a status which could persuade the appellant to make such a confession before him. Even otherwise, there is no corroboration to this piece of evidence which is always considered to be a weak type of evidence. It is repellent to common sense that the appellant, alongwith her husband, would go to this witness for making an extra-judicial confession. Even this witness has not stated anything regarding his social status or influence over the family of the deceased, therefore, no reliance can be placed on the testimony of this witness. 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 Vs. Basharat and others (2006 SCM R 231), wherein, at Page 238, while maintaining acquittal of the accused persons in a murder case, who were convicted on the basis of extra judicial confession, the Apex Court of Pakistan observed as under:- "17. This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra-judicialconfession staring from Ahmad us. The Crown (PLD 1951 FC 103-107) upto the latest. Extra-judicial-confession has always been taken with a pinch of salt. In Ahmad vs. 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 the confession cannot but be true. As an extra-judicial 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 of 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 witness before whom extra judicial 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 confession 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 confession. Such confessions by now have become the sings 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 witnesses with the make of confession and what, above all, is the position or authority held by the witness".(emphasis supplied)
12.Apart from above, we have noted that no witness was either produced before the Investigating Officer during the course of investigation or before the Court to depose about having seen the appellant while throwing the deceased boy Arslan into the canal, therefore, as the recovery of the dead body of the deceased was not at the instance or pointation of the appellant, therefore, the said recovery is of no avail to the prosecution.
13.The motive stated by PW-8 Muhammad Ashraf (complainant), who was paternal grand-father of deceased boy Arslan and father of Boota, in the FIR was that there were two wives of his paternal cousin Rafaqat, named, Bushra (first wife), who was issueless, arid Rasoolan Bibi appellant (second wife), having children, but, both these wives of Rafaqat used to quarrel with each other and his son Boota showed favour to Bushra who was his "Sali", which bore a grudge in the mind of Rasoolan Bibi (appellant) and because of that reason she had thrown Boota's son Arslan into the canal which led to his death and thus committed murder of the said boy. We have noted that neither the said Bushra nor Boota, who, in our view, were the natural witnesses of the motive part of the prosecution story, joined the investigation nor were produced in Court, therefore, in our view, the prosecution has failed to prove the motive.
14.The appellant, while appearing before the Court and making her statement under Section 342 Cr.P.C., in answer to question "why this case against you and why the PWs have deposed against you", she has stated as under:-- "I am single parent of my son from first husband. I am also mother of a daughter aged only one year. I could not commit such a heinous offence. My children are being neglected. Complainant and PWs are relatives of Bushra, first wife of my husband Rafaqat, who had grudge against me. The instant case was, therefore, prepared out of grudge. Bushra was issueless, therefore, Rafaqat contracted second marriage with me. Bushra and her relatives made planning to remove me from their way and thus involved me falsely in' this case. Arslan minor himself had slipped into the canal accidentally while playing. PWs deposed against me falsely due to the above grudge."
15.In view of our observations expressed in the preceding paragraphs of this judgment, we are not inclined to believe the evidence of last seen, extra-judicial confession and motive. In such like circumstances false implication of the appellant in the case cannot be ruled out.
16.Analysis of the evidence produced by the prosecution has led this Court to a conclusion that the prosecution case is not free from doubts. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram vs. The State (2009 SCM R 230), wherein, at Page 236, the Hon'ble Supreme Court of Pakistan, held as under:-- "13. The nutshell of the whole discussion is that the prosecution case is not free from, doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq.
Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right", (emphasis supplied)
17.As this case hinges on the circumstantial evidence, therefore, utmost care and caution has to be adopted to reach at a just decision of the case. It is settled by now that in such like cases every chain should be linked with each other and if any chain link is missing then its benefit should be given 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 vs. Major Karam Elahi Zia and another (1992 SCM R 1047), Sarfraz Khan vs. The State (1996 SCM R 188) and Asadullah and another vs. State (PLJ 1999 SC 1018). In the case of Ch. Barkat Ali (supra), the August Supreme Court of Pakistan, at Page 1055, quoted 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 vs. 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 continuous chain that its one end touches the dead body and other neck of the accused there by excluding all the hypothesis of his innocence"
To support our view, further reliance is placed on the case of Altaf Hussain vs. Fakhar Hussain and another (2008 SCM R 1103).
18. In the afore-referred circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to sustain conviction. Therefore, this appeal is allowed, the impugned judgment of conviction is set-aside and the appellant is acquitted from the charges levelled against her. She is behind the bars and shall be released forthwith if not required to be detained in any other case.
Murder Reference is answered in the Negative and sentence of death is Not Confirmed.