' MANZOOR AHMAD MALIK, J.-- This judgment shall dispose of Criminal Appeal No,1333 of 2005 (Naveed Abbas v. The State) and Murder Reference No:445 of 2005 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellant, as both these matters have arisen out of the same judgment dated 28-6-2005 passed by the learned Additional Sessions Judge, Sargodha, whereby, appellant was convicted for the murder of Mst.Somera Bibi (deceased), a minor daughter of the complainant, under section 302(b), P.P.C. And sentenced to death with a further direction to pay a compensation of Rs,100,000 to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo S.I. For six months. However, benefit of doubt was extended to four co-accused of the appellant namely, Muhammad Aslam, Muhammad Noor, Tariq alias Toni and-Mst:Niaz Bibi and they were acquitted from the charge of murder of Mst.Somera Bibi.
2. Brief facts of the case, as given by P.W.3. Abdul Sattar (complainant) in the F.I.R. (Exh.PC) are that on 19-3-2004, her minor daughter Mst.Somera Bibi (deceased) was missing and her search started. At about 2-30 p.m., Muhammad Ashfaq and Saleem Akhtar met the complainant and apprised him that at about 2-00 p.m. They had seen her said minor daughter while entering into the house of Noor Muhammad. Thereafter, the complainant contacted him but he denied the said factum. According to the complainant, during the search of his said daughter, on 24-3-2004, when he along with Muhammad Ramzan and Muhammad Imran reached near the Haveli Choorianwali of one Sharafat Ali, they felt smell of a dead human body. On search they found that the head of a child was visible but the remaining body was covered by mud, who, on further search, was found to be the daughter of the complainant whose half throat was cut coupled with other injuries on her body. In the F.I.R., the complainant showed suspicibn on Muhammad Aslam, Noor Muhammad, Muhammad Tariq alias Toni and Niaz Bibi. The motive, as per F.I.R., was that 15/20 days prior to the occurrence, a raid was conducted by the police and alcohol was taken into possession. The complainant etc. Apprehended one Liaqat Ali Baloch and handed him over to the police, who was slipping away from the spot, upon which, the above stated four accused persons abused the complainant while coming in front of his house and also extended threats of abduction of his daughters and their consequent killing. As per complainant, due to the said grudge, the above stated accused persons have killed his daughter.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellant 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 8 witnesses during the trial. The appellant was examined under section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. In answer to question "why this case against you and why the P.Ws. Have deposed against you", the appellant replied as under:- "Due to media pressure, the police made us scape goat as police failed to investigate and arrest actual culprits of committing rape with deceased prior to her murder. No such allegation has been levelled against me."
' However, the learned trial Court convicted and sentenced the appellant as detailed above.
5. Learned, counsel for the appellant contends that the appellant has falsely been implicated in this case; that it is an unseen and un-witnessed occurrence; that the appellant was not named in the F.I.R. And his name was introduced after his so-called extra-judicial confession before P.W.5. Gul Sher which is a very weak type of evidence; that according to the prosecution, the complainant's deceased child was allegedly abducted on 19-3-2004 at 2-00 p.m. Whereas the case was registered on 24-3-2004 after the recovery of her dead body; that no reason for the delay in reporting the matter to the police has come on record; that according to the evidence furnished by P .W.4 Muhammad Saleem Akhtar, it were Mst.Niaz Bibi and Tariq alias Toni who had abducted complainant's daughter and took her to the house of Noor Muhammad, father of the appellant, but the said two co-accused of the appellant i.e, Mst.Niaz Bibi and Tariq alias Toni have already been acquitted by the learned trial Court; that neither the state nor the complainant has filed any appeal against their acquittal; that the recovery witnesses of the dead body of the deceased, namely, Ramzan and Imran did not appear in Court; that it was only the complainant who made statement regarding recovery of dead body of her daughter Mst.Somera Bibi (deceased); that the case against the appellant is based nn extra judicial confession , furnished by P.W.5. Gul Sher according to whom on 28-3-2004, the appellant (along with his co-accused Muhammad Tariq alias Toni) came to his Baithak where the appellant confessed to have killed complainant's daughter by stating that 4/5 days prior to the registration of the case, his (appellant)'s mother Mst.Niaz Bibi and Muhammad Tariq alias Toni took Mst.Somerra to their house while she was playing outside her house and confined her in the house of Muhammad Aslam for about 4/5 days and then killed her; that the deceased was killed on 23rd or 24th March, 2004 which belies the extra judicial confession allegedly made by the appellant because according to P.W.7. Lady Dr.Robina Shaheen Khan, who conducted postmortem examination on the body of deceased on 24-3-2004, the probable time between her death and postmortem examination was about four/five days which means that the deceased was done to death either on 19th or 20th March, 2004.
' Learned counsel for the appellant has drawn our attention to the statement of P.W.6. Muhammad Sarwar before whom the other acquitted co-accused of the appellant made confessional statement to the effect that the deceased was detained for about four days prior to her murder; that even statement of the said P.W. Is contrary to the opinion of the doctor because observations made by the said lady doctor indicates that the dead body of the deceased was in the state of purification; that in this situation, the extra-judicial confession cannot be relied upon especially in the case of a capital punishment. According to the learned counsel, the extra-judicial confession allegedly made by the appellant cannot be relied upon.
' So far as recovery of Chhuri (P3) allegedly taken into possession by the police at the instance of the appellant on 8-4-2004 as Exh.PD is concerned, learned counsel contends that there is nothing on the record that it was blood stained at the time of its recovery though the witnesses, before the Court have stated that it was blood stained. But in the absence of any report of the Serologist or Chemical Examiner it cannot be said that the same was blood-stained. Even otherwise, according to the learned counsel, the said Chhurri was of an ordinary make and not of special kind, so, it cannot connect the appellant with the alleged commission of the offence.
' As far as motive part is concerned, learned counsel contends that it can be considered for false implication of the appellant in this case.
' It has lastly been contended by the learned counsel for the appellant that it is the duty of the prosecution to prove its case against the appellant beyond any shadow of doubt. But, in this case, as there is no sufficient evidence to connect the appellant with such a heinous offence, therefore, the golden rule of criminal dispensation of justice shall prevail and the appellant is entitled to acquittal especially. When on the basis of similar kitid of evidence, appellant's four co-accused, namely, Muhammad Aslam, Muhammad Noor, Tariq alias Toni and Mst.Niaz Bibi, have already been acquitted by the learned trial Court and no appeal against their acquittal has been preferred either by the State or the complainant.
6. On the other hand, the learned Additional Prosecutor-General for the State, while opposing this appeal, contends that it is a case in which the appellant has been convicted and sentenced after a thorough investigation and regular trial; that the appellant was not named in the F.I.R. Which shows that there was no ill will on the part, of the complainant to falsely implicate him; that he was arrayed as an accused aver he had made a confessional statement to have killed the deceased before P.W.5. Gul Sher; that the appellant got recovered the weapon of offence i.e, Chhurri which further supports his extra judicial confession; that the prosecution case finds further support from the medical evidence furnished by P.W.7. Lady Dr.Robina Shaheen Khan because the time given by her coincides with the time of occurrence; that, even otherwise, in such like cases substitution is a rare phenomenon; that as the appellant has committed a heinous offence, therefore, he is not entitled to any leniency; that the motive furnished in the F.I.R. Is sufficient to commit the offence; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the sentence awarded to the appellant by the learned trial Court may be maintained.
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 counsel for the parties.
8. Occurrence in this case took place on 19-3-2004 at about 2-00, the matter was reported to the police by P.W.3. Abdul Sattar (complainant) at about 2-00 p.m. On 24-3-2004, the formal F.I.R. Was registered on the same day at the same time while the distance between the place of occurrence and the Police Station was about 1/2 kilometer.
9. This is an unfortunate occurrence in which Mst.Somera Bibi (deceased), a minor daughter of the complainant, was done to death in a cruel and brutal manner.
10. The F.I.R. In this case was got lodged by P.W.3. Abdul Sattar (complainant) in which four co- accused of the appellant, namely, Muhammad Aslam, Muhammad Noor, Tariq alias Toni and Mst.Niaz Bibi were named upon who complainant showed suspicion of having killed his daughter.
11. 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 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, 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 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 continuous chain that its one end touches the dead body ad 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 v. Fakhar Hussain and another (2008 SCM R 1103).
12. Admittedly, the appellant was not named in the F.I.R. His name was brought on the surface by P.W.S. Gul Sher, according to whom, the appellant along with his acquitted co-accused Muhammad Tariq alias Toni came to him on 28-3-2004 at about 9-30 p.m. And confessed to have killed the minor daughter of the deceased after her abduction and confinement for about 4/5 days in the house of Muhammad Aslam, another acquitted co-accused of the appellant. It is pertinent to mention here that against the remaining three acquitted co-accused of the appellant, namely, Muhammad Aslam, Muhammad Noor and Mst.Niaz B Bibi, the evidence of extra judicial confession was furnished by P.W.6. Muhammad Sarwar while the evidence of last seen was furnished by P.W.4.
Muhammad Saleem Akhtar according to whom, he along with Muhammad Ishfaq (not produced) had lastly seen the minor daughter of the deceased in the company of Mst.Niaz Bibi and Tariq alias Toni who were carrying her to the house of Noor Muhammad (appellant's father). All the above mentioned four co-accused of the appellant, namely, Muhammad Aslam, Muhammad Noor, Tariq alias Toni and Mst.Niaz Bibi have already earned acquitted from the learned trial Court and no appeal against their acquittal has either been file& by the complainant or the State.
13. The prosecution case mainly rests upon the extra-judicial confession allegedly made by the appellant before P.W.S. Gul Sher. According to him, the appellant along with his acquitted co- accused Muhammad Tariq alias Toni came to his Baithak on 28-3-2004 and confessed before him that Muhammad Aslam and Muhammad Tariq alias Toni caught hold of Mst.Sumera Bibi (deceased) whereas Mst.Niaz Bibi kept on standing in the door while appellant cut her throat with a Chhurri.
14. We have noted that the extra-judicial confession, allegedly made by the appellant before P.W.S. Gul Sher, does not fit in with the medical evidence because as per extra judicial confession made by the appellant, the deceased was abducted four/five days prior to the registration of the case and was confined in the house of Muhammad Aslam for about 4/5 days whereafter she was killed which means that she was killed on 23rd or 24th March, 2004 as the F.I.R. Was lodged on 24-3-2004.
According to P.W.7. Lady Dr.Robina Shaheen Khan, who conducted postmortem examination on the body of deceased on 24-3-2004, the probable time between her death and postmortem examination was about four/five days which means that Mst.Somera Bibi died on 19th or 20th March, 2004. It is settled law that until and unless the extra-judicial confession is not corroborated by any other independent piece of evidence, no reliance can be placed on it. Even otherwise, extra judicial confession is a weak type of evidence. PW5 Gul Sher has not stated anything regarding his social status or influence over the family of the deceased which could prompt the appellant to confess his guilt before him. 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, 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 was pleased to observe as under:-- "(17) This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra-judicial confession starting from Ahmad v. The Crown (PLD 1951 FC 103-107) upto the latest. Extra-judicial-confession has always been taken with a pinch of salt. In Ahmad 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 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 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 extrajudicial 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 signs of incompetent investigation. 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 witnesses".(emphasis supplied)
' Therefore, in the circumstances of the case, no reliance can be placed on the extra judicial confession allegedly made by the appellant before P.W.5. Gul Sher.
15. As far as recovery of Chhurri (P3) at the instance of the appellant, which was taken into possession vide memo Exh.PD, is concerned, as there is no report of the Chemical Examiner or the Serologist to show that it was blood stained, therefore, the same is of no avail to the prosecution.
Even otherwise, it was an ordinary Chhurri.
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 v. 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. After having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, the sentence awarded to the appellant cannot be maintained. Resultantly, this appeal is allowed, the impugned judgment is set aside, the appellant is acquitted from the charge of murder of Mst. Somera (deceased). He 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.