' MUHAMMAD JEHANGIR ARSHAD, J.---Appellant Faisal Nafees through. Criminal Appeal No,67/L of 20.09 and appellant Imran Shehzad alias Manan through Jail Criminal Appeal No,2/L of 2011 have challenged the judgment dated. 21-5-2009 delivered by learned Additional Sessions Judge, Kharian, District Gujrat whereby they were convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C. And sentenced to death each with fine of Rs,100,000 (Rupees on lac only) each in default thereof ' to further undergo one year's S.I. Each. They were further convicted under section 302(b), P.P.C. And sentenced to death with compensation of Rs,10,00,000 (Rupees ten lac only) each, payable to the legal heirs of the deceased under .Section 544-A, Cr.P.C. Or in default thereof to further undergo 6 months' S.I. Each.. They were also convicted under section 377, P.P.C. And sentenced to imprisonment for life each with fine of Rs,100,000 (Rupees one lac only) each in default thereof to further undergo one year S.I. Each. They were further convicted under section 201, P.P.C. And sentenced to 7 years' R.I. Each with fine of Rs,100,000 (Rupees one lac only) each or in default thereof to further undergo S.I. For 1 year each. All the sentences of imprisonment were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
' Appellant Muhammad Adeel, was tried separately under Juvenile Justice System Ordinance. He through Criminal Appeal No,104/1_, of 2009 has challenged the judgment dated 21-5-2009 passed by the learned Additional Sessions Judge, Kharian, District Gujrat whereby he was convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C. And sentenced to 25 years' imprisonment with fine of Rs,100,000 (Rupees one lac only) in default thereof to further undergo one year's S.I. He was further convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with compensation of R.10,00,000 (Rupees ten lac only), payable to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in, default thereof to further undergo 6 months' S.I. He was also convicted under section 377, P,P.C. And sentenced to imprisonment for life with fine of Rs,100,000 (Rupees one lac only) in default thereof to further undergo one year's S.I. He was further convicted under section 201, P.P.C. And sentenced to 7 years'
R.I. With fine of Rs,100,000 (Rupees one lac only) or in default thereof to further undergo S.I. For 1 year. All the sentences were ordered to run concurrently with benefit of 382-B, Cr . P. C . The Additional Sessions Judge, Kharian, District Gujrat has sent a Murder Reference, which was registered in this Court as Criminal Murder Reference No,4/L of 2010 for confirmation or otherwise of death sentence awarded to Faisal Nafees and Imran Shahzad alias Manan by the learned trial.
Court.
' All the above mentioned matters are being disposed of by this single judgment as the same arise out of the same crime report and impugned judgment.
2. Brief facts of the case are that complainant Muhammad Nazir got registered F.I.R. No,10 of 2006 (Exh.EE/I) at Police Station, City Lala Musa on 20-1-2006 wherein he stated that on 14-1-2006 at about 3/4.00 p.m.His son Nasir Majeed having camera and mobile phone (Sony Ericson K-500) left his house. When he did not return till late night, his search ensued. At about 9-00 p.m. Zahid Latif, son-in-law of the complainant made call on mobile phone of Nasir Majeed which was received but no voice was heard, however, voices of barking dogs and falling of shutter were heard. Then at about 9-45 p.m. The said Zahid Latif again made call which was heard. Then at about 9-45 p.m.
The said Zahid Latif again made call which was attended by Nasir Majeed who informed that he was near Model School, Main Bazar where he came to get syllabus from his friend and would return back soon. In the meanwhile, the complainant's son Amir also made call to Nasir Majeed who gave the same reply but he did not return home. The complainant further stated that he came to know that on 14-1-2006 at about 3-30 p.m. Nasir Majeed got motorcycle on rent from Ghaossia Rent a Motorcycle and returned the same after one hour whereafter he remained playing billiards. On further query Faqir Hussain alias Padoo informed that at about 8-30 p.m. He saw Nasir Majeed with his two friends (out of home one was Furqan) in Polee Wali Gali. Thereafter calls were made on mobile phone of Nasir Majeed but his mobile phone was off. The complainant further stated that he had suspicion that someone had abducted his son with intention to commit sodomy with him,
3. Consequent upon the F. I. R. Investigation ensued. During investigation, all the accused were found guilty of the offence and were sent up to face trial.
4. The learned trial Court on receipt of the report under section 173, Cr.P.C. Framed charge against accused Faisal Nafees, Imran Shahzad, Muhammad Adeel and Azhar Hussain Shah on 30-3-2007 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 344, P.P.C., under section 377 read with section 34, P.P.C., under section 302, P.P.C. Read with section 34, P.P.C. And under section 201 read with section 34, P.P.C. The accused did not plead guilty and claimed trial. Appellant Muhammad Adeel was also tried separately under Juvenile Justice System Ordinance under the above noted sections of law and was accordingly convicted and sentenced as mentioned above through separate judgment dated 21-5-2009. He was also convicted under section 201 read with section 34, P.P.C.
5. The prosecution in order to prove its case produced 15 witnesses at the trial. The prosecution also produced the following documentary evidence:--
(i) Copy of F.I.R. Exh.PF.
(ii) Medico-legal Report of aeccused/ appellants Exh.PA to Exh.PC.
(iii) Application for registration of case Exh.PE.
(iv) Post Mortem report of deceased Nasir Majeed Exh:PF.
(v) Recovery memo of Camera Exh.PL.
(vi) Report of Forensic Science Laboratory Exh.PU.
' As the oral evidence of the P.Ws. Has already been noted in detail by the learned trial Court in the impugned judgment, therefore, the same need not to be reproduced in this judgment, in order to avoid repetition.
6. The learned trial Court after close of the prosecution evidence recorded statements of the accused Faisal Nafees, Imran Shahzad and Azhar Hussain. In reply to question, "Why this case against you and why the P.Ws have deposed against you?
' The accused Faisal Nafees stated as follows:-- "I am innocent and have been falsely involved in this case. All the P.Ws. Are inter se related.
Previously a relative of the complainant party namely Malik Mazhar Iqbal resident of Lalamusa was murdered and a case F.I.R. 100, dated 16-4-2004 under sections 302/109/34, P. P.0 . Police Station City, Lalamusa was registefed on the statement of Amjad Ali Malik resident of Lalamusa, falsely involving .Me, my brother and my father. We have been acquitted of the charge. Mazhar Iqbal deceased of that case and Amjad Ali complainant of that case are closely related, to the complainant of this case and same are Malik brothery. In view of this animosity, I have been falsely involved in this case. So all the P.Ws. Being relatives of Mazhar Iqbal, the deceased of F.I.R. No,100 of 2004 are inimical to me, hence I have been falsely involved in this case and the P.Ws. Deposed against me due tothis enmity".
' The accused Muhammad Adeel replied as. Under:-- "I am innocent in this case and have been falsely involved. I am juvenile and so declared by the medical board. Police and P.Ws. Have concocted false evidence against me previously a murder case has been taken place in which Malik Mazhar was murdered and some members of my family had been appearing in defence of the accused, due to that grudge, I have been made scape goat."
' The accused Imran Shah deposed as follows:-- "I am innocent and have been falsely involved in this case. All the P.Ws. Are inter se related. I have been falsely involved in this case and the P.Ws. Deposed against me".
7. The learned trial Court, after completing requirements of the trial, convicted and sentenced the appellant as mentioned in opening paragraph of this judgment. Hence, this appeal.
8. Mr. Abdul Sadiq Chaudhry, learned counsel for appellant Faisal Nafees has raised the following points in support, of his appeal:--
(i) The appellants were not nominated by name in the F.I.R.
(ii) There is delay in lodging the, F.I.R. Because the occurrence took place on 14-1-2006 while the F.I.R. Was registered on 20-1-2006.
(iii) There is no report before- the F.I.R. Which was recorded on 20-1-2006.
(iv) The case against the accused persons is based on circumstantial evidence, extra-judicial confession and last seen, which are weakest type of evidence and creates reasonable doubts.
(v) Only, one person namely Babar has been produced as witness of last seen, who is an employee of the brother-in-law of the complainant and not a man of character as there are other criminal cases registered against him.
(vi) In the F.I.R., he nominated Furqan and unknown person who were disclosed by Faqir Hussain as last seen witness. Babar Hussain, witness of last seen has been introduced through, the supplementary statement. Babar Hussain knew the incident on 14th January, 2006 but in spite of being close relative, he disclosed the same to the' complainant on 20th January, 2006. Although a notice for reward was also published in the Press in thel rneantitne.
(vii) The defence had already taken the plea that they were falsely implicated because of enmity, political rivalry and efficiency of police.
(viii) The occurrence is unseen.
(ix) Neither any anal swa bs were taken nor sent to the Chemical Examiner.
(x) Last worn clothes lost the evidentiary' value because they were neither blood-stained nor semen stained and there were no other related marks of the occurrence.
(xi) The recoveries of the belongings of the deceased are fabricated.
(xii) No recovery was effected from any of the accused.
(xiii) All the recoveries were planted by the I.O. In order to strengthen the prosecution case and requirements of section 103, Cr.P.C. Were not fulfilled.
(xiv) The statement of the complainant cannot be considered at all and it has no evidentiary value because the complainant had not seen the occurrence and his statement is based on hearsay evidence.
(xv) The accused are not connected with the commission of offence of sodomy. The story of sodomy was introduced just to, put weight in the case. Xvi) All the witnesses are closely related and they had grudge against the accused and falsely deposed against the accused persons.
(xvii) No empty was recovered from the place of occurrence and no matching report was obtained.
(xviii) Recovery of pistol was planted.
(xix) The extra-judicial confession and last seen evidence is not confidence inspiring and the prosecution has failed to prove its case beyond shadow of doubt.
9. Mian Abdul Qayum Anjum, learned counsel for appellant Muhammad Adeel adopted the arguments advanced by Mr. Abdul Sadiq Chaudhry, learned counsel for appellant Faisal Nafees. In addition he stated that there is no recovery from Muhammad Adeel, appellant. He relied on the following judgments on the point of extra-judicial confession:--
(1) 1996 SCMR 188 Sarfraz Khan v. The State and 2 others
(2) 2002 SCMR 441 Mehrban v. Muhammad Ramzan and another
(3) 2010 SCMR 495 Bashir Ahmad v. Fida Hussain and 4 others
(4) 2008 PCr.LJ 958 Muhammad Shafique alias Chuma and others v. State
(5) 2003 SCMR 1070 Muhammad Kamran and another v. The State
10. On the other hand, Sutlan Haider Ali, learned counsel for the complainant has made the following submissions:-- ' There is no previous enmity between the parties. The complainant initially lodged the F.I.R. Against one Furkan and one unknown person.
(ii) Although the accused were not nominated in the F.I.R. Yet the complainant has nominated the appellants in his supplementary statement.
(iii) P.W.11 Malik Zulfiqar Ahmed was the witness of extra-judicial confession.
(iv) It is an admitted fact that occurrence took place at the Haveli of Faisal Nafees accused but dead body of deceased was recovered from the garbage in room of fodder .Cutting machine owned by one Khalid per Exh.PT.
(v) The camera, pistol and last worn cloths of deceased were recovered on the pointation of Faisal Nafees from his residential house which was in his exclusive knowledge.
(vi) Mobile phone was recovered from Imran Shahzad alias Manan on his pointation which was also in his exclusive lcnowledge/possession.
(vii) Medical evidence fully corroborated ocular/circumstantial evidence.
(viii)Although it was unseen occurrence but in the light of circumstantial evidence as well as medical evidence same is fully proved against the appellants.
11. Mian Muhammad Awais Mazhar, D.P.-G. Appearing for the State has made the following submissions:--
(i) There is no enmity between the complainant and the accused persons. If there was any enmity, then the accused, persons would have been nominated in the complaint Exh.PE.
(ii) The complainant stated that he had not nominated Fuman in his first application. However in the subsequent application, he had cited Babar, who had last seen the deceased in the company of the appellants.
(iii) All the three appellants appeared before Malik Zulfiqar Ahmad P. W.11 on 9-2-2006 and stated that they had committed sodomy and then murdered Nasir Majeed and they gave detail of the occurrence.
(iv) Faisal Arif, the other witness of extra-judicial confession could not be produced as he was out of country at that time.
(v) Substitution is a rare phenomenon. All the accused were nominated in supplementary statement.
(vi) The reports of the accused regarding potency test are positive.
(vii) The dead body was identified by P. W.8: Malik Muhammad Waheed.
(viii)The accused persons were arrested on 14-2-2006 and subsequently on their disclosures recoveries of shirt Pl, trouser. P2, wallet P3, card P4, pair of shoes P5, mobile phone P6, camera P7 and pistol P8 were effected which were attested by the witnesses.
(ix) There was enmity between the accused and Malik Zulfiqar Ahmad P.W.11, before whom the accused made extra-judicial confession.
(x) There is no violation of the provisions of section 103, Cr.P.C., which, otherwise was not required when the recoveries were made on the pointation of the accused.
(xi) The accused made extra-judicial confession before Malik Zulfiqar Ahmad, P.W.11 on 9-2-2006 at 11-30 p.m. And in the morning at 9-00 a.m. He along with the complainant went to police station for registration of the case but the concerned police officers were not available.
(xii) The prosecution has fully proved its case beyond shadow of reasonable doubt.
(xiii) Finally, he vehemently supported the impugned judgment and pleaded that the appeals filed by the appellants may be dismissed.
12. We have heard the learned counsel for the appellant as well as the learned counsel for the complainant and the learned Deputy Prosecutor-General in addition to examining/evaluating the record minutely.
13. The prosecution has mainly based its case on:--
(i) The last seen evidence.
(ii) Extra-Judicial Confession.
(iii) Recove-ies.
14. On last seen evidence, the prosecution has produced Babar Hussain P.W.10, which we have examined minutely but not convinced that his evidence could be considered as legal or trustworthy for the following reasons:--
(i) In cross-examination, he has admitted that he saw the deceased in the company of accused/ appellants on 14-1-2006 at about 800 p.m. But strangely enough, he did not convey the same either to the complainant or the police till 20-1-2006 that too after recording of the F.I.R.
(ii) The reasons furnished by him to this effect are also highly improbable, to quote Babar Hussain P.W.10 "Volunteered that my mother-in-law had fallen ill and so I had to go to Lahore to see her being in serious condition. I did not produce any documentary or oral evidence to substantiate my employment in the said store or about the illness of my mother-in-law or about my visit to Lahore.
It is incorrect to suggest that neither my mother-in-law was sick, serious nor she was admitted anywhere and nor I went to Lahore during those days. It is incorrect to suggest that in fact I am cleverly making an effort to fill up the gap in between 15 January to 20 January about my not making any statement to the police. I do not know that the news and advertisement were published in local newspaper about the missing of Nasir Majeed along with the announcement of reward to the informer having any knowledge about the missing child. Volunteered, that I had gone to Lahore in connection with sickness of my mother-in-law and then her sudden demise, I came back after attending the Qul prayer on 19 January of my mother-in-law nor did I produce any oral evidence before the police. It is incorrect to suggest that I am deposing falsely to substantiate my presence at Lahore".
It is strange that despite having knowledge of seeing deceased in the company of accused on the night of 14-1-2006 he could not spare few moments to convey the said information either to the police or to the complainant.
(iii) Further his statement also reveals that this witness had a dubious past and had also been in the employment of Police Department as constable and was dismissed from service. He at the time of occurrence was in the employment of Malik Sarwar brother-in-law (Saala), of complainant and "mamoo" of the deceased, hence his evidence is neither confidence inspiring nor is free from doubt, rather the same was concocted to fill in the gap.
(iv) The statement of P.W.10 becomes, more doubtful when read with the original application Exh.PE, submitted by the complainant on 20-1-2006 in which the complainant stated that he was informed by one Faqir Hussain that he had seen the deceased in the company of his two friends one named Furqan sort of Irfan.
' Further, from the statement of the complainant, it has transpired that he not only denied the nomination of Furqan as accused but also stated that the present appellants were nominated as accused on the disclosure of Babar Hussain P.W.10. The complainant while appearing as P. W.12 stated as "I do not know any person namely Faqeer Hussain alias Puddo resident of Mohallah Eidgah Road. I had not written the name of any Faqeer Hussain alias Puddo in my application Exh. PE. No person namely Faqeer Hussain alias Puddo is a P. W. Nor he was investigated by the police. I do not know any Furqan son of Irfan resident of behind Model School Lalamuso. I had not given the name of Furqan son of Irfan in my application Exh.PE."
15. The above noted part of the statement of the complainant not only renders statement of P.W.10 as doubtful but also leads us to conclude that the complainant introduced Babar Hussain P.W.10 later on to furnish last seen evidence through this PW, in order to strengthen his case. We are, therefore, not inclined to either rely upon the evidence of last seen as provided by P.W.10 Babar Hussain nor convinced to hold that the prosecution succeeded in proving the fact that deceased was lastly seen by P.W.10 Babar Hussain, therefore, the finding of the learned trial Court by placing reliance on the evidence of Babar. Hussain P.W.10 cannot be upheld/sustained. We are further strengthened in our view that originally complainant in his application dated 20-1-2006 also stated that along with Babar Hussain P.W.10 one Malik Shahid Iqbal also told him that they had seen the deceased in the company of appellants in the night between 14 and 15-1-2006 but Malik Shahid Iqbal was not produced in the evidence, rather he was given up for some unknown reason and as such, we do not consider it safe to rely upon the solitary statement of Babar Hussain P.W.10.
16. Secondly, the prosecution has based its case on the evidence of Malik Zulfiqar Ahmad P.W.11 before whom the appellants allegedly made extra-judicial confession about their involvement in the "Crime. However, learned counsel for the appellants vehemently and rightly so contested the statement of this P.W. By arguing that though the extra-judicial confession made by all the appellants before this P.W. Allegedly on 9-2-2606 at about 11-30 p.m. Night in the presence of one Faisal Arif and further the witness despite his being "mamoo" of the deceased not only let appellants go scot-free but also did not convey the same either to the police or to the complainant throughout the night, rather the same was reported to the complainant on the next day i.e, 10-2- 2006 and then made his statement Exh.DB to the police, although as per his own statement he had got PTCL telephone connection as well as mobile phones. The relevant portion of the statement made by witness before the Court as P.W.1 Malik Zulfiqar Ahmad is reproduced below:-- "The accused arrived at 11 p.m. And remained about half an hour. Faisal Arif P. W. Is also any Bhanga and resident of Mohallah Eidgah Road, Lalamusa had come to me at about 5/5-30 p.m.
And remained condoling the deceased and remained talking - other matters. During this period no :other person not related to me did not visit my house. During the period when accused persons are alleged by me to be present in my house I did not inform police, complainant, or any other influential persons. Volunteered I made my statement to the police early in the morning. It is incorrect that my volunteered portion is false. Faisal Arif P. W. Stayed in my house during that night. It is incorrect that Faisal Arif P.W. Did not get to his house because of the fear of the accused, volunteered even previously, Faisal Arif P.W. Used to reside with me sometime. Faisal Arif P. W. Is serving somewhere some times in Gujrat and some times in Lalamusa at the shops of Ticky toffee and books. He does not have his own regular business. After the accused persons left my house, I went to my bed for sleeping at about 12/12-30 midnight and then I got up at about 7/8 a.m. Next morning, volunteered usually I get up at 7/8 a.m. Then I came to my dera as the people started coming for condolence to me uptill evening. Along with Malik Majeed complainant had gone to the P.S. At 9 a.m. But S.H.O. Was not available there, then I along with Malik Majeed P. W. Went to P.S. At about 8 p.m. I did not narrate the arrival of accused persons at Fateh Khawani. Syed Munawar Shah was our I.O. On 9-2-2006. I made my statement before Munawar Shah, S.I. On. 10-2-2006".
17. It is significant to observe that Malik Majeed complainant in his statement as P.W.12 got recorded before the learned trial Court neither uttered a single word about the confessional statement made by. The appellants before Malik Zulfiqar Ahmad P.W.11. Nor this witness even showed any knowledge about such statement. Further, Faisal Arif, in whose presence appellant, allegedly made extra-judicial confession has not been produced to support P.W.11. All the above noted facts when put together nor only render the alleged extra-judicial confession highly improbable but also doubtful. Learned counsel for the appellants on the question of the legal validity and probative value of extra-judicial confession has placed reliance on the following judgments:--
(i) Sarfraz Khan v. The State and 2 others 1996 SCMR 188
(ii) Mehrban v. Muhammad Ramzan and another 2002 SCMR 441.
(iii) Bashir Ahinad v. Fida Hussain and 3 others 2010 SCMR 495.
(iv) Muhammad Kamran and another v. The State 2003 SCMR 1070.
18. In the above noted case-law, it was consistently held "extra-judicial confession is a weak type of evidence which can easily be procured whenever direct evidence of crime is not available and the courts, therefore, while placing reliance on it have emphasized the use of utmost care and caution"- It was also held in these authorities "a three fold proof is required to make the extra-judicial confession the basis of conviction; firstly that in fact it was made, secondly that it was voluntarily made, and thirdly that it was truly made" .
' The statement of P.W.11 when examined in the light of above noted authorities cannot be considered.As an admissible evidence at all.
19. In the above noted facts, circumstances and after appraisal of evidence Of Malik Zulfiqar Ahmad. P.W.11 specially when the same was not supported by any independent evidence and the P.W.11 being the "mamoo" of the deceased having personal interest in the matter and further non- production of Faisal Arif allegedly present when the so-called extrajudicial confessions, 'were made by the appellants, the fact that P.W.11 after getting the information about confession of the appellants remained silent for a considerable period of time, we feel that it would be highly unsafe to accept such evidence specially when all the appellants in their statement under section 342, Cr.P.C. Specially denied having made such extra-judicial confession. Further in the question No,5 regarding extra-judicial confession the name of P.W.11 before whom such statements were allegedly made have neither been mentioned nor put to the appellants. We are, therefore, not inclined to place any reliance on the extra-judicial confession, far maintaining the conviction of the appellants. Resultantly, the evidence in the form of extra-judicial confession produced by the prosecution and accepted by the learned trial Court in the impugned judgment is liable to be set aside.
20. Third reliance of the prosecution is on the recoveries made from the appellants. Articles mentioned in the F.I.R. Were allegedly recovered either by or at the instance of the appellants.
These articles were Camera, Mobile Phone and Pistol. In order to prove these recoveries, the prosecution has produced recovery memos. Exh.PH, Exh.PJ, Exh.PK, Exh.PL and Exh.PK except Camera. The description of several articles was specially not mentioned in the F.I.R. , however, the recovery of Camera does give some clue but on the basis of said recovery alone, an unseen murder cannot be held to have been proved beyond reasonable doubt. The statement of P.W.9 Malik Noman Mudassar who is the witness of several recovery memos is nothing except that the accused made certain disclosure leading to the recovery of the clothes of deceased T-Shirt P1, Patloon P2, wallet P3, identity card P4, pair of shoes P5/1-2 mobile phone P6, camera P7 and .30- bore Pistol P8 along with this witness. The recovery memos were also attested by one Zahid Latif as witness, who was not produced and given up without disclosing any reason. These recoveries on the basis of disclosure allegedly made by the appellants being weak type of evidence cannot be accepted blind foldedly having been made after so many days whereas neither the cot on which the deceased was put to death nor blood-stained earth underneath the cot has been produced to strengthen the evidence of recoveries. Even no empty has been produced nor recovered pistol was got matched from the Forensic Science Laboratory whereas the only report of Forensic Science Laboratory, Punjab Lahore available on the record as Exh.PU contained the following opinion made by the examiner of Fire Arms; Forensic Science. Laboratory, Lahore "The examination of the case has revealed that the Pistol of .30-bore body signed is in working order and fires semi automatically in its present condition" .
21. The above noted opinion is absolutely irrelevant with regard to the question of use of the said pistol in the commission of offence, therefore, we hold that the alleged recoveries alone are not sufficient to connect the appellants with the commission of offence, hence cannot be relied upon.
22. So far as the commission of offence of sodomy with the deceased is concerned, the same is not proved at all. The only material evidence on this question is the extra-judicial confession of all the appellants through P.W.11. But Dr. Muhammad Tanveer, P.W.7 in his cross-examination admitted as below:-- "I had not taken anal swabs from the dead body nor had sent the same to the Office of Chemical Examiner for determination of semens. I have not given any opinion in post mortem report that sodomy had been committed upon the deceased".
As we have already disbelieved the statement of P.W.11 as well extra-judicial confession, we, therefore, have no option particularly in the light of above noted statement of P.W.7, to hold that prosecution has failed to prove the offence of commission of sodomy with the deceased, hence, the charge under section 377 read with section 34, P.P.C. Is not proved at all.
23. As far as the arguments of the learned counsel for the complainant that as the appellants have not attributed any mala fide or their false involvement or substitution to the prosecution, therefore, they were rightly found guilty of the offence, is concerned, we are afraid that the said plea of the prosecution cannot be given any weightage. It is an established principle of law that prosecution must prove the guilt of the accused without any ,shadow of doubt. Admittedly, this was an unseen occurrence, which remained further shrouded in mystery by the circumstances. The F.I.R. Having been got recorded without specifically naming the appellants after six days of occurrence and it was on the basis of supplementary statement of the complainant on the basis of some information having been received by him from Babar Hussain P.W.10, that the appellants were nominated. It was the duty of the prosecution to have proved the involvement of the appellants in the commission of offence beyond reasonable doubt. Even the validity of supplementary statement Exh.PE/2 after the registration of F.I.R., in view of judgments of the Superior Courts, 1994 SCMR 1350 and PLD 2002 Lahore 110 (D.B), has no legal value.
24. Though the prosecution has produced many witnesses in order to prove its case but the Hon'ble Apex Court in its judgment reported in 2011 SCMR 1978 has held:-- "In criminal law the quantity of evidence is not relevant but the quality of evidence has to be seen" it means that in order to establish the guilt of the accused the prosecution must produce only relevant and admissible evidence and the conviction too to be made on the basis ,of such evidence only".
25. The upshot of above discussion and observations is that the prosecution has failed to prove the guilt of the appellants/accused beyond reasonable shadow of doubt and we have no option but to extend the benefit of doubt to the appellants/accused which is not a grace but a right as held by the apex Court in 2012 SCMR 440.
26. For the foregoing reasons, all these appeals i.e, Criminal Appeal No,67/L of 2009 filed by appellant Faisal Nafees, Criminal Appeal No,104/L of 2009 filed by appellant Muhammad Adeel and Jail Criminal Appeal No,2/L of 2011 filed by appellant Imran Shahzad alias Manan are allowed. The convictions recorded and sentences awarded to the appellants by the learned Additional Sessions Judge, Kharian, District Gujrat vide judgment dated 21-5-2009 in Sessions Case No,17 of 2006, Sessions Trial No,347 of 2006 and judgment dated 21-5-2009 in Sessions Case No,1 of 2007 and Sessions Trial No,13 of 2007 respectively are set aside. All the appellants are acquitted of the charges by extending them benefit of doubt. They be released immediately, if not required in any other case.
27. Resultantly, Murder Reference No,4/1. Of 2010 sent by the learned Additional Sessions Judge, Kharian, District Gujrat is answered in negative and not confirmed.