JUDGMENT SHAHID HAMEED DAR, J. Through this judgment we intend to dispose of Criminal Appeal No. 955 of 2005 filed by Shahadat Ali the appellant-accused.
2. We, through the same judgment, intend to dispose of Murder Reference No.503 of 2005, as well, sent by the learned trial Court, under section 374, Cr.P.C, for confirmation of the death sentence of the appellant.
3. Shahadat Ali, appellant-accused along with his co-accused Amanat Ali, Sana Ullah, Ghulam Sarwar and Imdad Ullah (since acquitted) was tried in the Court of learned Addl. Sessions Judge, Hafizabad for an offence under sections 302, 201, 148, 149 of the P.P.C. For causing murder of Ihsan Ullah, brother of the complainant. The occurrence took place on 3-1-2004 at 3/4 p.m in the area of Ali Pur Road near Kandar Seem Nullah, Police Station, City Hafiz Abad. The statement got recorded by Muhammad Zaman, complainant, P.W.8 formed the basis for the registration of formal F.I.R. Exh.
PJ. The complainant being dissatisfied by the investigation filed private complaint Exh.PC, so, the learned trial Court conducted proceedings in the complaint case. The appellant 'along with his co- accused was charged under sections, 302, 201, 148, 149, 364, P.P.C. They pleaded not guilty and claimed a trial.
4. The prosecution story narrated by Muhammad Zaman P.W.8 in his statement (F.I.R. Exh.PJ) is that he was resident of village Chak Kharal, his brother Ihsan Ullah alias Shana (deceased) dealt in milk who, went to Hafiz Abad on his Motorcycle GAD 6869 Yamaha, at about 3/4-00 p.m. On 3-1-2004 to sell milk but did not return to his house till it was evening; Muhammad Zaman complainant with Mazhar Iqbal P.W. (not produced) reached City Hafiz Abad while searching for his brother Ihsan Ullah alias Shana (deceased) where Mubashir Ahmad (P.W.12) who was getting his tractor repaired at Ali Pur Road, told them that he had seen Shahadat All (appellant), Amanat Ali, Sanaullah and Ghulam Sarwar, joined by four unknown accused, all armed with firearms, take Ihsan Ullah away from All Pur Road, city Hafiz Abad; when complainant and his companions returned to their village, Messrs Ghulam Rasul P.W.11 and Muhammad Arif P.W. (not produced) told them that they had witnessed Ihsan Ullah in the company of Shahadat (appellant) etc. On a bridge, moving towards Do-Aba Rice Mills and Shahadat etc. Had told them that they were taking Ihsan Ullah to Thatha Kharan for the verification of some fact; Ihsan Ullah (deceased) did not come back so the complainant and his companions contacted the abductors but they despite having made certain promises, did not release Ihsan Ullah; the complainant and others continued search for the abducted soul and finally found his dead body wrapped in a sheet of cloth on the embankment of Bhoon Kalan Canal, near a bridge which was identified by the complainant (P.W.8), Khizar Hayat P.W. (not produced) and Ghulam Sabir (P.W.2); he left the said P.Ws. Alongside the dead body and himself left for the Police Station City Hafizabad; the motive behind the occurrence was that Ihsan Ullah (deceased) had illicit relations with Mst. Noor Safia, sister-in-law of Shahadat All (appellant) and wished to mary her; Shahadat Ali (appellant) etc. Had received a sizeable amount of money from Ihsan Ullah for this purpose and for the same reason they had murdered Ihsan Ullah and thrown his dead body in the canal.
5. The complainant (P.W.8) recorded his statement Exh.PJ before Sajjad Hussain S.-I., (CW-1) at 3- 45 p.m. On 14-1-2004 at Police Station City Hafiz Abad for registration of formal F.I.R. (Exh.PJ) No.503 of 2005, dated 14-1-2004, under sections 302, 148,149, P.P.C.
6. The dead body of the deceased was shifted to the DHQ, Hospital Hafizabad, where Dr Syed Nusrat Sherazi, P.W.5 conducted its postmortem examination at 9-30 p.m. On 14-1-2004, vide postmortem examination report Exh.PD (pictorial diagram Exh.PD/1) and found following injuries:-- "Fire arm wound of entry 3/4 x 3/4 c.m into DNP on back of left side of abdomen upper part 11 c.m toward left from midline of back edges were inverted and margins were blackened with exit wound 1 c.m. x 1 c.m on front of right side of abdomen. Lower most part on pubic region 2 c.m towards right from midline edges were everted".
The cause of death, as recorded by the Medical Officer, was the excessive haemorrhage and shock due to Injury No.1 which was caused by firearm.
The probable time, elapsed between injury and death was worked out by the Medical Officer as about 15 to 30 minutes and between death and postmortem as about 10 days.
7. After registration of the F.I.R., Exh.PJ, Syed Sajjad Hussain, S.-I/I.O., CW-1 proceeded to Lower Chenab Canal near Bhoon Kalan where he found the deadbody of deceased Ihsan Ullah lying on the bank of the canal; he took the same into custody and prepared inquest report Exh.PK, injury statement Exh.PL, drafted an application Exh.PM for postmortem examination of the dead body and dispatched it to the mortuary under the escort of Naseem Akhtar P.W. (not produced) and Muhammad Aslam (P.W.1) for autopsy; he inspected the place of occurrence, prepared the visual site plan Exh.PN, recorded the statements of the witnesses under section 161, Cr.P.C. And secured the blood-stained clothes of the deceased on the same day, after the necropsy, Qameez P-1, Shaiwar P-2, Pajama P-3, Sweater P-4, Jacket P-5 and Chadar P-6 vide recovery memo. Exh.PA, attested by Muhammad Aslam, 215/C (P.W.1), Ghulam Sabir (P.W.2), Khizar Hayat P.W. (not produced) and Waseem Akhtar 242/C P.W. (not produced); he got prepared scaled site plan, Exh.PE and Exh.PE/1 in duplicate qua the place of recovery of the dead body and another site plan Exh. Of and Exh of/1 qua the place of murder of the deceased, through Naseer Ahmad Patwari, P.W. 6 in the scale of 1 inch equal to 20 feet; he arrested Shahadat Ali appellant on 5-2-2004 from a place, near Old Vegetable Market, Alipur Road Hafizabad and obtained his physical remand; the appellant, pursuant to his disclosure on 13-2-2004, led to the recovery of a pistol.30 bore P-8 from his residential house vide memo Exh.PG, attested by Muhammad Banaras P.W.7 and Muhammad Riaz, P.W. (not produced); The I.O. Prepared the site plan Exh.PG/1, of the place of recovery of the above said article; he also took into possession, vide recovery memo. Exh.PB, a motorcycle Yamaha GAC 6968 from canal Gogera Branch on 13-2-2004, courtesy the disclosure and pointeoness of Shahadat Ali, appellant, attested by Muhammad Inayat P.W. (not produced) and Mustansar (P.W.3); he also prepared a site plan Exh.PH/1 in this regard; on the same day, Shahadat Ali (appellant) in police custody pointed out to a place where he had murdered Ihsan Ullah (deceased), the I.O. Prepared "Fard Nishan Dahl" Exh.PH in this respect, attested by Muhammad Banaras (P.W.7) and Muhammad Riaz P.W. (not produced); he also prepared a site plan without scale Exh.PH/1 qua the said fact; he got conducted test identification parade of accused Imdad Ullah (since acquitted) on 21-2-2004 under the supervision of Syed Shahbaz Hussain Naqvi, Special Judicial Magistrate, P.W.10; on completion of investigation, he challaned accused Shahadat Ali (appellant), Imdad Ullah (since acquitted) and placed the names of the other accused in Column No.2 of the challan, being innocent.
8. As pointed out earlier, the complainant being not satisfied with the investigation of the challan case, preferred a private complaint Exh.PC, which was taken up first by the learned trial Court for the trial of the accused.
9. The appellant and his co-accused denied the charge, pleaded not guilty and claimed a trial.
10. In support of its case, the prosecution produced 12 P.Ws. And one C.W. P.W.3., Mustansar attested the recovery memo Exh.PB of motorcycle P-7, two drums, got recovered by the appellant. P.W.4 Muhammad Ali 13/C deposited the sealed parcel of pistol in the office of Forensic Science Laboratory, Lahore on 5-3-2004. P.W.6 Naseer Ahmad Patwari draftsman prepared site plans in duplicate Exh.PE, Exh.PE/1 qua the place of recovery of the dead body and Exh.Of, Exh.Of/1 qua the place of murder of the deceased. PW-7 Muhammad Banaras attested a memo Exh.G qua pistol.30 bore-P-8, recovered at the instance of Shahadat Ali, appellant on 13-2-2004; he also attested memo Exh.PH, showing the place of murder of the deceased; this PW also attested the recovery memo Exh.PJ and Exh.PJ/1 qua motorcycle and drums, recovered at the instance of Shahadat Ali, appellant. P.W.8 Muhammad Zaman is the complainant of this case. P.W.9 Gulzar Ahmad 52/LHC kept pistol.30 bore in Malkhana and despatched it to the office of Forensic Science Laboratory, Lahore through Muhammad Ali, 13/C, P.W.4. P.W. 10 Syed Muhammad Shahbaz Hussain Naqvi, Special Judicial Magistrate supervised the test identification parade of accused Imdad Ullah on 21- 2-2004. P.W.11 Ghulam Rasool is a witness of the last seen evidence. P.W.12 Mubashir Ahmad is also a witness of the last seen evidence. CW-1 Syed Sajjad Hussain S.-I. Conducted the investigation of this case. Rest of the prosecution evidence more or less, is formal in nature.
11. The learned Public Prosecutor tendered the report of Forensic Science Laboratory, Lahore Exh.PR in evidence and closed the prosecution case.
12. The learned trial Court thereafter, asked the accused-appellant to make statement under section 342, Cr.P.C. Who, denied all the prosecution charges against him and professed his innocence while recording his reply to a question, " Why this case against you and why the P.Ws.
Have deposed against you," in the following words:-- "P.Ws. Are inter se related with deceased and inimical towards me. As just one day before the registration of this case a Report No.12 dated 13-1-2004 Police Station City Hafizabad was got registered by the complainant Muhammad Zaman regarding the fact that the deceased Ihsan Ullah of this case is missing since 3-1-2004 after the silence of ten days with the intention to get a proclamation in the newspaper. After the recovery of dead body of Ihsan Ullah deceased I was involved in a false case due to suspicion. The prosecution story is totally false, fabricated and afterthought one"
13. After perusing the material on the record, the learned trial Court convicted and sentenced the appellant, vide judgment dated 13-4-2005 as under:-- Under Section 302(b), P.P.C. Death, with order to pay Rs.50,000, as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C, in default thereof to under six months' S.I.
Under Section 364, P.P.C. Five years' R.I with fine of Rs.20,000, in default thereof to undergo three months' S.I.
Under Section 201, P.P.C. Two years' R.I.
The co-accused of the appellant, Amanat Ali, Sana Ullah, Ghulam Sarwar and Imdad Ullah, however, were acquitted by the leaned trial Court through the same judgment.
14. The appellants' learned counsel contends that Ihsan Ullah deceased had been done to death by some unknown assailants at some unknown time for some unknown reason and on finding the dead body of the deceased, Muhammad Zaman, complainant, 'PW-8, having colluded with his co- witnesses has cooked up a false version and implicated the appellant-accused in the instant case malafidely and malevolently; the prosecution has miserably failed to prove its case against the appellant beyond a reasonable doubt and the learned trial Court has passed the impugned judgment merely on conjectures and surmises; the evidence of last seen is unnatural, unbelievable, discrepant and full of contradictions which is liable to be rejected and brushed aside; the motive set up by the prosecution has gone unestablished not only during investigation but also during the course of the trial which has further driven the prosecution case to a complete mystery; the P.Ws. Have rendered speculative statements while groping in the dark and have badly failed to bring around any cogent, plausible and credible piece of evidence against the appellant; the learned trial Court has erred in law while passing the impugned judgment which suffers from non- reading and misreading of the evidence, available on the record, hence, it may not be sustained.
15. On the basis of the said contention, the learned counsel for the appellant has prayed for the acquittal of the appellant by adding that the case against the appellant is virtually a case of no evidence and the learned trial Court has committed a patent illegality in convicting/sentencing the appellant-accused.
16. Conversely the learned Addl: Prosecutor-General has submitted that the prosecution had succeeded in establishing its case against the appellant beyond reasonable doubt and thus his conviction and sentence recorded by the learned trial Court does not warrant any interference by this court; the last seen evidence, rendered by P.W.11 and P.W.12 is well supported by the medical evidence and other allied evidence which plainly connects the appellant-accused with the murder of Ihsan Ullah, deceased; the witnesses of last seen evidence, the recovery evidence qua ' motorcycle P-7 and pistol P-8 is reliable and trustworthy which makes the impugned judgment a sustainable dossier; the circumstantial evidence presented by the prosecution in this case is of highest calibre and credence which leads to only one irresistible conclusion that the impugned judgment is sustainable by all means; the motive stands established so there is no mitigation in the instant case which could be resolved in favour of the appellant; lastly contends that the impugned judgment does not suffer from non-reading or misreading of prosecution evidence nor it has been passed in an arbitrary, perverse or implausible manner, hence, it does not call for interference by this court.
17. We find, after having heard the learned counsel for the parties and gone through the record, that the prosecution case against the appellant-accused hinges at the circumstantial evidence furnished by P.W.8,.P.W.11 and P.W.12, the medical evidence presented by P.W.5, besides, the evidence of motive presented by P.W.B.
18. As far as, the motivating factor behind the occurrence is concerned we have noticed that according to the prosecution, the apple of discord between the parties was a circumstance, relating to alleged illicit relationship of Mst. Noor Safia, the sister-in-law of the appellant with the deceased besides, Ihsan Ullah deceased also intended to mary her and in this perspective Shahadat Ali appellant- accused etc. Had swindled him massively. The accused including the appellant, committed his murder, so as to avoid their liability of getting him married with Mst. Noor Safia. Muhammad Zaman, PW-8 is the only witness who has deposed about the said factum in his testimony without seeking corroboration from any source. The alleged motive can be bifurcated in two ways, one pertaining to the alleged illicit liaison of the deceased with Mst. Noor Safia and the other relating to squeezing of sizeable amount of money from the deceased by the appellant- accused and others. Mst. Noor Safia was the sister-in- law of the appellant-accused and the real sister of Sana Ullah and Ghulam Sarwar (both since acquitted). The prosecution was required to produce evidence so as to prove the motive against the appellant but they neither succeeded in substantiating the former part of the raison d'etre nor they could establish the latter through any evidence. The under discussion lady kept herself away from the investigation process and did not opt to appear as a prosecution witness during trial either. None joined the investigation or bothered to appear before the trial Court to depose about the factum of illicit liaison between the said lady and the deceased. The complainant, P.W.8 just beat about the bush while stating about the motive and simply kept on harping the same string that both of them had immoral nexus, inter se, without hinting at the source to prove the same. Likewise, the contention of the complainant P.W.8 that the appellant-accused and his acquitted co-accused had cheated and deprived Ihsan Ullah deceased of a huge amount of money, in the name of Mst. Noor Safia, has not received corroboration from any source. When, where, how, under what circumstances, what amount of money and in whose presence the appellant-accused or his acquitted co-accused had blackmailed the deceased or received money from him, continuously remains shrouded in mystery. Ihsan Ullah deceased was a married man who was not enjoying good matrimonial life with his were and their relations had become bitter and sour resulting into desertion of his were about 1-1/2 year prior to the occurrence but it had not ended in separation or divorce to his were who lived with her brother, on the day of occurrence. The complainant happens to be the sole witness of the above said motive who could not help out himself of the liability, he was supposed to discharge to establish the same. The deceased was a milk trader who had been murdered on the fateful day in mysterious circumstances, after having been abducted or deceitfully taken away by someone, 11 days prior to his murder. The complainant got lodged Rappat No.12 Exh.DA (which could not be found on the record but it finds mention in the testimony of Syed Sajjad Hussain S.- I./I.O., CW-1) on 13-1-2004 i.e. One day prior to the lodgment of F.I.R., wherein, he did not allude to the above said motive or refer to it in any manner. In this eventuality, the motive becomes more and more vague and A blurred. The contention of P.W.8 qua the motive set up by him, is hardly believable and acceptable which has a badly gone unestablished and unproven.
19. Insofar as the evidence of last seen is concerned Ghulam Rasul P.W.11 and Mubashir Ahmad P.W.12 have testified that they had seen Ihsan Ullah deceased in the company of Shahadat Ali, appellant-accused, Imanat Ali, Ghulam Sarwar, Sana Ullah and four other unknown persons, one of them identified by them as Imdad Ullah accused (all since acquitted) on 3-1-2004. Ghulam Rasul P.W.11 testified that he along with Muhammad Arif P.W. (not produced) had witnessed the deceased in the company of above said accused near Dooaba Rice Mills, close to a bridge, where they had a dialogue with them and they learnt thereby that the armed accused were taking him somewhere with them for some verification. This P.W. Identified one of the four unknown accused as Imdad Ullah in a test identification parade on 21-2-2004, held inside Central Jail Gujranwala. Mubashir Ahmad P.W.12 deposed about witnessing Ihsan Ullah deceased in the company of Shahadat Ali appellant-accused and his acquitted co-accused Amanat Ali, Ghulam Sarwar, Sana Ullah and four unknown persons, one out of them being Imdad Ullah, about 11 days prior to finding of his dead body. Both of them happen to be the close relation to the deceased and the complainant. Ghulam Rasul P.W.11 is the paternal cousin (chachazad) and Mubashir Ahmad, P.W.12 is the maternal cousin (Mamoonzad) of the complainant. Both of them allegedly saw Ihsan Ullah deceased in the company of a group of armed persons but they did not disclose it to the complainant who one day prior to the lodgment of F.I.R. (Exh.PJ), lodged Rappat No.12 at Police Station City Hafiz Abad, about his lost brother with the contention that his brother Ihsan Ullah alias Shana who had carried milk to city Hafiz Abad had not returned home and despite their hectic efforts they had been unable to trace or locate him. Had P.W.11 and P.W.12 seen the deceased in the company of aforesaid group of armed criminals, they must have had their eyebrows raised and informed the complainant immediately, without loss of any time. The lodgment of Rappat No.12 by the complainant on 13-1- 2004 about the lost brother without mentioning the event of "last seen" is a crucial circumstance which clearly reflects upon the version of P.W.11 and P.W.12 of having seen the deceased in the company of the appellant-accused and his acquitted co-accused. The silence for 11 days observed by the aforesaid witnesses is fatal not only for their statements but also for the prosecution case as a whole. P.W.11 has failed to establish the purpose of his presence near Doabba Rice Mills on 3-1-2004 at the relevant time of allegedly viewing the deceased in the company of the appellant-accused and others. He has admitted in his testimony that his village was at a distance of about 11/12 Km from the said rice mills and that he had no business or residence near the place where he had allegedly witnessed the deceased and the appellant- accused together. He has also deposed that he did not inform the police about the facts of this case, although he went to the police station along with Muhammad Zaman, complainant P.W.8 4/5 times between 3-1-2004 to 14-1-2004. Mubashir Ahmad P.W.12 also did not behave differently and he too admitted that he did not inform the police regarding this occurrence. According to his version, the place of his viewing the deceased and the accused together was at a distance of about 7/8 miles from his village. He has however, recorded an interesting answer that the complainant P.W.8 and Mazhar Iqbal P.W. (not produced) met him the same day when he last saw the deceased in the company of the accused, and disclosed to them the above said fact. This is a mere gossip on his part and does not contain any truth in it for the reason that the complainant P.W.8 would have been the last person to withhold such an important evidence and lodge a report with the police on -13-1-2004 by simply complaining about the disappearance of his brother without fixing liability on any. P.W.12 has recorded another ridiculous answer by stating that he had seen the deceased and the accused moving on a motorcycle. Both P.W.11 and P.W.12 have mentioned about nine armed men including the appellant-accused, some nominated and some unknown, to have abducted the deceased but to see them all sitting on a motorcycle was a far- fetched idea, having no relevance to truth and reality. Both the witnesses P.W.11 and P.W.12 have frankly admitted' in their statements that they had not shown the place of last seen to the police during investigation nor they produced any independent person in support of their contentions.
Their statements are marked with unbelievable notes which make their testimonies increasingly unreliable. Their relationship with the deceased is a crucial element which must have driven both of them to rush to the complainant, after having allegedly seen their paternal/ maternal cousin in the company of some outlawed, armed with arsenal, so as to save his life but by having not done so, they have given a clear message that their belated statements were afterthought and a result of deliberations/concoctions. They have failed to answer any explanation as to the period of their taciturnity, which has given a fatal blow to the prosecution case.
20. The evidence of last seen in this case, is a circumstance where-about the knowledge of the complainant is of second hand nature/ as the persons/P.Ws. Who had allegedly seen the deceased moving in the company of the said accused were supposed to disclose the same to the complainant immediately but they did not pass on such information to him when they had an ample chance to do so, which might have saved the life of the deceased. Even otherwise, it cannot be said that such piece of evidence, in this case, can be treated as last seen evidence because the prosecution evidence is silent about the fact as to after how many hours or days the abductee was disposed of or that the place where they all were seen in the company of each other, was near the place wherefrom the dead body of the deceased was found. Last seen together is a weak type of circumstantial evidence, which cannot be readily believed unless it was corroborated through unimpeachable source, and it should be close to the time and place of murder to exclude possibility of innocence. Strong motive and proximity of time of last seen coupled with evidence of incriminating recoveries are the essential ingredients for believing such an evidence.
The possibility of the deceased having separated from the appellant-accused and others soon afterwards cannot be excluded altogether. Therefore, the evidence of last seen is not trustworthy or believable in this case. I am fortified in this regard while making reliance upon 2000 SCM R 1784, PLD 1991 SC 718, 1980 PCr.LJ 164 and 1988 PCr.LJ 722.
21. As far as medical evidence is concerned, it has been furnished by Dr Syed Nusrat Abbas Sherazi, P.W.5 who performed autopsy on the dead body of Ihsan Ullah deceased at 9-30 p.m. On 14-1.2004 vide postmortem examination report Exh.PD with pictorial diagrams Exh.PD/1 which showed two firearm injuries (one entry and one exit), the entry wound (Injury. No.1) being on the back of left side of abdomen of the dead body. The cause of death recorded by the Medical Officer was the excessive haemorrhage and shock due to Injury No.1. The probable time, as noticed by the Medical Officer, between injuries and death was "15 to 30 minutes" and between death and postmortem was about 10 days. The medical evidence can only tell the number of injuries, the weapon used for such injuries, the nature of injuries and other allied/ancillary details but it cannot identify the author of the said injuries, hence, the medical evidence, in this case, is not of much significance and relevance.
22. Insofar as the evidence of recovery of a pistol.30 bore P-8 is concerned, it has been furnished by Muhammad Banaras P.W.7 and Syed Sajjad Hussain S. -I./I.O., CW-1, who had recorded the arrest of the appellant-accused on 5-2-2004. According to the evidence of the aforesaid P.Ws., the appellant-accused had made a disclosure, while in police custody on 13-2-2004 and pursuant thereto, he led to the recovery of the aforesaid article vide recovery memo Exh.PG, attested by P.W.8 and Muhammad Riaz P.W. (not produced). According to the contents of the report Exh.PR, released by the office of Forensic Science Laboratory, Lahore, the pistol.3Q bore was in working order and fired semi automatically in its present condition. As CW-1/I.O. Failed to collect any 'crime empty from the place of occurrence, hence, the recovery of the weapon P-8 and the report of Forensic Science Laboratory, Lahore do not mean much to the prosecution case.
The recovery of a motorcycle P-7 along with two drums has been shown against the appellant- accused vide memo. Exh.PB, attested by Mustansar P.W.3 and Muhammad Inayat P.W. (not produced). P.W.3 has deposed that he joined the investigation of this case after one month and ten days of the occurrence along with Muhammad Inayat P.W. And in their presence Shahadat Ali, appellant-accused made a disclosure and then led to the recovery of the aforesaid articles, from Gadah Pully near Old Canal. The above articles lay on the bed of the canal in shallow water. This particular evidence hardly strengthens the prosecution case as E according to this P.W., the place of recovery was an open place which was accessible to all and sundry. This place was not in the exclusive possession of the appellant. Whom the above said motorcycle belonged to, is a question, still unresolved. No documentary or oral evidence qua identification of the same has been produced by the prosecution. This piece of evidence like rest of the prosecution evidence, does not fortify the case of the prosecution in any manner so, it is brushed aside being irrelevant.
23. It has been alleged by the complainant P.W.8 in F.I.R. Exh.PJ that he had contacted the appellant-accused and his acquitted aides for the repatriation of Ihsan Ullah deceased but they despite having made promises did not return him and lingered on the matter on one pretext or the other. This piece of evidence in fact shows an effort on the part of the complainant to fabricate the evidence of extra judicial confession. We are afraid, he has miserably failed to do so. Nothing has been said by him as to when, where and how, he contacted the accused party to seek the return of his lost brother nor he could hint at the name of any person, in whose presence he had approached the appellant-accused and others for having his brother Ihsan Ullah deceased returned to him. Did the complainant meet the appellant-accused or any of the acquitted co- accused before reporting the matter to the police, is a hidden fact. Was it the appellant-accused alone or the other acquitted co-accused who had allegedly kept the complainant P.W.8 at by is yet another riddle to be resolved by the prosecution. The evidence of extra judicial confession is the weakest type of evidence which is very easy to proc e or fabricate in absence of any direct evidence. The vague insinuation by the complainant, in this regard is inconsequential for the prosecution case as the complainant has badly failed to build the structure of the prosecution case on a baseless and unfounded piece of evidence, called extra judicial confession.
24. It has been vociferously argued by the learned Addl: Prosecutor-General that the appellant- accused, after having been arrested had made certain disclosures about the place of murder of the deceased during investigation and pursuant to it he on 13-2-2004 led the police party, headed by CW-1 Syed Sajjad Hussain S. -I./I.O., to the embankment of Seem Nullah and pointed to a place by contending that it was the place where he had shot at and murdered Ihsan Ullah deceased, whereupon, the I.O. Prepared"Fard Nishan Dahi" Exh.PH, attested by Muhammad Banaras, P.W.7 and Muhammad Riaz P.W. (not produced). The aforesaid evidence and preparation of a memo mean nothing except that the admission of guilt has been fabricated by the prosecution which is barred by Qanun-e-Shahadat as the admission of guilt of an accused before a Police Officer of the rank, how high so ever, is illegal and inadmissible in evidence. Nothing could be discovered or recovered from the aforesaid prosecution evidence except that a confessional statement of the appellant- accused came into being which cannot be given any weight at all. The same stands rejected.
25. As we have an overall look upon the prosecution case, we find it a case of no evidence. Each and every bit of the prosecution evidence has lost its relevance once we reached the conclusion that the evidence of the last seen had been fabricated upon finding the dead body of the deceased and even, prior to it the credentials of the prosecution witnesses were dubious. The circumstantial evidence in the form, as we find in the instant case, could only become relevant if the prosecution had succeeded in building a continuous chain, one end of which made a noose around the neck of the accused and the other end touched the dead body, excluding all the hypotheses of his innocence but here in this case, the situation is vice versa and there exists no probability of the conviction of the appellant-accused, hence, the impugned judgment in respect of the appellant, cannot be sustained. Even otherwise, the same evidence has been disbelieved and rejected by the learned trial Court while recording acquittal of the co-accused of the appellant. There is hardly any distinguishing circumstance, which could segregate the case of the appellant accused from that of his acquitted co-accused. The impugned judgment has been passed merely on conjectures and surmises which cannot be maintained.
26. For the foregoing reasons, the prosecution, as we conclude, has failed to prove its case against Shahadat Ali, the appellant-accused beyond any shadow of doubt, hence, we allow the Criminal Appeal No.955 of 2005 and set aside the impugned judgment, passed by the learned trial court.
Shahadat Ali, appellant, is acquitted of all the charges and he would be released forthwith, if not required in any other criminal case.
27. The Murder Reference No.503 of 2005 is answered in the negative.