' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No.1391 of 2007 titled as "Farooq Ahmad v. The State" and Murder Reference No.516 of 2007 titled as "The State v.
Farooq Ahmad" as both these matters have arisen out of the same case i.e. F.I.R. No.333 dated 15- 11-2005, offence under section 302, P.P.C., registered at Police Station Kallur Kot District Bhakkar.
2. Farooq Ahmad, appellant filed Criminal Appeal No.1391 of 2007 against the judgment dated 8-9- 2007 whereby, he was convicted by the learned Additional Sessions Judge, Kallur Kot under section 302(b), P.P.C. And sentenced as under:-- "45. I therefore, accordingly convict Farooq Ahmad son of Ahmad Nawaz Awan by caste resident of Awanawala Janubi, Tehsil Kallur Kot District Bhakkar, accused and sentenced him to death under section 302(b), P.P.C. For the murder of Abdul Waheed deceased; subject to confirmation of this sentence by the Hon'ble Lahore High Court, Lahore. He shall be hanged by his neck till his death. 1 also direct him to pay Rs.One lac as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. And in default of which he will have to undergo one year's S.I. The accused is given the benefit of 382-B, Cr.P.C."
' The learned trial Court has sent Murder Reference No.516 of 2007 for confirmation or otherwise of the sentence of death awarded to Farooq Ahrnad (convict) as required under section 374 of the Code of Criminal Procedure.
3. Brief facts, of the case are that on the statement of Noor Hussain complainant (P.W.13), F.I.R.
(Exh.PC) was registered at Police Station Kallur Kot, District Bhakkar wherein the complainant stated that he is cultivator. His son Ahmad Saeed was in Army who, during the days of occurrence, was posted at Muzaffarabad. On the day of occurrence, at about 2-00 p.m., his son Ahmad Saeed made a phone call at the PCO of Abdul Wahid son of Muhammad Abdullah and left the message that he will talk to his elder brother Abdul Waheed at 9-00 p.m. At about 8-30 p.m., his son Abdul Waheed went to the PCO of Abdul Wahid, his nephew to bring mobile phone so that he may talk (to his brother) at home. The PCO was at a distance of 2/3 furlongs. At about 9-00 p.m. He (complainant) went out of his house to answer the call of nature and in the meanwhile he heard the report of fire shot coming from the southern side. He went towards the side of firing. Meanwhile, Faiz Ahmad son of Muhammad Hassan, his brother-in-law (Sala) and Muhammad Rafique son of Abdul Haleem caste Awan residents of Deh also came there and when they reached at "Kachaa" road at a distance of about one furlong from the house of the complainant, they saw, in the moonlight Abdul Waheed, smeared with blood, was lying there. They saw that there was a wound of firearm on his forehead and he succumbed to the said injury, at the spot. The complainant further mentioned in the F.I.R. That some unknown person, because of some unknown reasons, had murdered his son Abdul Waheed.
4. On 16-11-2005, the complainant made his supplementary statement (Exh.PC/1) wherein, he stated that he could not mention in the F.I.R., the name of Farooq son of Ahmad Nawaz accused. He further stated that on the day of occurrence when he reached at the spot, Ghulam Abbas, his brother and Muhammad Aslam son of Abdul Latif told him that they were coming from Zamaywala to Awanawala and on the way they had seen Farooq son of Ahmad Nawaz (appellant) after the occurrence. It was also alleged in the said statement that Farooq (appellant) had committed the murder of Abdul Waheed (deceased). The motive, as given by the complainant in his supplementary statement, was that three years prior to the occurrence, Faiz Ahmad (P.W.8), father-in-law of Abdul Waheed (deceased) purchased a piece of land from Rab Nawaz, real paternal uncle of Farooq (appellant) but later wanted to take back that land. A few days prior to the occurrence, a quarrel took place between the parties. Abdul Waheed (deceased) and Faiz Ahmad (P.W.8) gave beatings to Farooq accused who kept this grudge in his mind and committed the murder of Abdul Waheed (deceased).
5. The appellant was arrested on 13-2-2007 by Muhammad Asghar, Inspector/ S.H.O. (P.W.14). On 18-2-2007, Farooq Ahmad appellant while in police custody, led the police to the north corner of his house and allegedly got recovered pistol (P-1) along with six live bullets (P-2/1-6). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 10-5-2007, to which he pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution examined as many as eighteen witnesses. Noor Hussain, complainant (P.W.13), Faiz Ahmad (P. W:8) found the dead body of Abdul Waheed after hearing the report of fire shot. Muhammad Aslam (P.W.10) and Ghulam Abbas (P.W.11) are the witnesses of Waj Takar. Khadim Hussain (P.W.15) and Rana Khushi Muhammad (P.W.16) are the witnesses of extra judicial confession made by Farooq Ahmad appellant. Muhammad Yaqoob, 450/HC (P.W.6) is the recovery witness of pistol (P-1) along with six live bullets (P-2/1-6). Dr. Khizer Hayat (P.W.7) conducted the postmortem examination on the dead body of Abdul Waheed deceased.
' Muhammad Amin Khan S. I. (P.W.18), Muhammad Ramzan S.I.
(P.W.9), Mani Khan S.I. (P.W.17) and Muhammad Asghar, Inspector/S.H.O. (PW-14) conducted the investigation of the case at different stages whereas, the remaining witnesses are formal in nature.
The learned Deputy District Public Prosecutor, gave up Mulazim Hussain A.S.-I. And Muhammad Rafique P.W. Vide his statement dated 6-7-2007 as being unnecessary. He also gave up Muhammad Yaqoob and Muhammad Rafique as being unnecessary vide his statement dated 20- 7-2007. The prosecution produced documentary evidence in the shape of Warrant of arrest and report thereon Exh. PA and Exh.PA/1 respectively, proclamation regarding the appellant and report thereon Exh.PB and Exh.PB/I respectively, F.I.R. Exh. PC, supple-mentary statement of Noor Hussain complainant (P.W.13) Exh.PC/1, scaled site plan Exh. PD, recovery memo regarding pistol (P-1) along with live bullets (P-2/1-6) Exh. PE, postmortem examination report Exh.PF, Inquest Report Exh.PH, recovery memo regarding bloodstained earth Exh.PJ, recovery memo regarding last worn clothes of the deceased Exh.PK, application for obtaining warrant of arrest and order Exh. PM and Exh.PM/1 respectively. Thereafter, the learned Deputy District Public Prosecutor, vide his statement dated 20- 7-2007, after tendering in evidence the report of Chemical Examiner (Exh PO) and that of Serologist (Exh PP), closed the prosecution evidence. After that, on the same day i.e. 20-7-2007, the statement of the appellant was recorded under section 342 of the Code of Criminal Procedure. To a question as to why the case against you and why the prosecution witnesses have deposed against you, the appellant replied as under:- "The case against me is false. So far as P.Ws are concerned they are relative of the deceased so they are interested in my conviction. All the P.Ws are chance witnesses and are inimical to me."
' To another question as to whether he has anything else to say?, the appellant replied as under:-- "I am innocent. I was student of B.A when the F.I.R. Of this case was registered against me. My father was suffering from Cancer disease and was admitted in Mayo Hospital Lahore at that time and any educated and sensible person cannot commit murder when his father is on death bed in the hospital. Nobody witnessed the occurrence. As it was a blind murder. Complainant party tried his best to trace the real culprits but when they failed to do so. They nominated me in this blind murder case later on malafidely."
' The appellant did not opt to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 340(2) of the Code of Criminal Procedure, however, he produced Provisional Result Intimation of Secondary School Examination Annual, 2002 as Exh.DG in his defence. He also produced coy of statement of Mushtaq Ahmad Exh.DA, copy of statement of Muhammad Akram Exh.DB, copy of statement of Muhammad Aslam Exh.DC, copy of statement of Ghulam Abbas Exh.DD and copy of statement of Rana Khushi Muhammad Exh.DF.
7. Learned counsel for the appellant, in support of this appeal, contends that in fact, it was a night time unseen occurrence and there is no eye-witness of the same; that in this case, the F.I.R. Was got registered by Noor Hussain, father of the deceased but no one was named therein as accused; that the appellant was implicated subsequently through supplementary statement of the complainant, which as per prosecution case, was recorded on the night of occurrence and the complainant based his supplementary statement on the information imparted to him by two persons namely, Muhammad Aslam son of Abdul Latif (P.W.10) and Ghulam Abbas son of Ahmad (P.W.11) and both these persons, in their statements before the learned trial Court, have stated that they were coming from Zamaywala on motorbike and saw the accused having a pistol in his hand who on their asking told that he had killed Abdul Waheed but they have not stated the place where they saw the accused nor they have stated that thereafter, they went to the place where the dead body was lying so their statements are improbable because had there been said incident, the normal course for them was to immediately inform the father of the deceased who was either present there or had gone to the police station; that similarly, the statements of two other persons namely, Faiz Ahmad (P.W.8) and Muhammad Rafique son of Abdul Haleem (given up P.W.) are not material as in the F.I.R., it is simply mentioned that when Noor Hussain complainant (P.W.13), after hearing the report of fire shot reached the place where the dead body was lying, these two persons also came there; that said Muhammad Rafique did not appear before the learned trial Court as a witness and Faiz Ahmad (P.W.8) has stated that shortly after the occurrence, Muhammad Aslam (P.W.10) and Ghularn Abbas (P.W.11) met him and told him that they had seen the appellant after the occurrence with a pistol in his hand; that the stance of Faiz Ahmad (P.W.8) is not in line with the supplementary statement of the complainant as in the said supplementary statement, the complainant (Noor Hussain) has not stated that the appellant was seen while having pistol in his hand; that in the F.I.R., the complainant has categorically stated that he has no enmity with anybody but in the supplementary statement, he has introduced a motive and in support thereof, he has not produced any evidence before the learned trial Court and the learned trial Court has disbelieved the same; that there was no occasion for the appellant to make extra judicial confession before Khadim Hussain (P.W.15) and Rana Khushi Muhammad (P.W.16) as at that time, he was already named in this case through the supplementary statement of the complainant, (Noor Hussain) and the narrations of the alleged extra judicial confession by above said two witnesses do not appeal to the common sense; that even otherwise, there was no reason or occasion for the appellant to make such confession; that the alleged recovery of pistol (P-1) along with live six bullets (P-2/1-6), at the instance of the appellant, is not helpful to the prosecution as admittedly no empty was recovered from the spot and there is no report of the Forensic Science Laboratory in this behalf; that the appellant cannot be convicted merely because of alleged abscondance as same has not been proved in accordance with law, thus this appeal be accepted and the appellant be acquitted from the charge.
8. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that had there been any enmity of the complainant with the appellant, he (appellant) could have easily been named in the F.I.R. By the complainant but he (complainant) implicated him (appellant) through his supplementary statement recorded on 16-11-2005 when Muhammad Aslam (P.W.10) and Ghulam Abbas (P.W.11) informed him that they had seen the appellant while having a pistol in his hand on the road when they were coming from Zamaywala on motorbike; that the appellant made an extra judicial confession before Khadim Hussain (P.W.15) and Rana Khushi Muhammad (P.W.16) who are totally independent witnesses and one of them namely, Khadim Hussain is even related to the appellant; that the statements of Muhammad Aslam (P.W.10) and Ghulam Abbas (P.W.11) have also been recorded by the learned trial Court and they both have stated that about one year and eight months back when they were coming from Zamaywala on motorbike, they had seen the appellant while having a pistol in his hand, who on their asking told them that he has murdered Abdul Waheed; that thereafter, the pistol (P-1) along with six live bullets (P-2/1-6) was also recovered on the pointation of the appellant; that Faiz Ahmad (P.W.8), Ghulam Abbas (P.W.11) and Khadim Hussain (P.W.15) are related to the appellant; that the appellant remained a proclaimed offender for about fourteen months and his abscondance is proved through the statements of Muhammad Ishfaq 41/C (P.W.3). And Mani Khan, S.I. (P.W.17); that the motive has also beet proved as it has not been seriously contested by the appellant; that there is no mitigation in this case, therefore, the appeal of the appellant be dismissed.
9. We have heard the arguments of learned counsel for the appellant, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant and gone through the record with their able assistance.
10. The occurrence, in this case, took place on 15-11-2005 at about 9-00 p,m. On "Kachaa" road of village Awanawala situated within the area of Police Station Kallur Kot District Bhakkar. The matter was reported to the police by Noor Hussain complainant (P-W-13) on the, same night at about 11- 30 p.m. The distance between the place of occurrence and the police station is 12/13 kilometers.
Considering the time, place of the occurrence and the distance between the police station and the place of occurrence, we are of the view that there was no delay in reporting the matter to the police.
11. It is evident from the perusal of the record that the occurrence was unseen which took place in the darkness of night. The prosecution case is based on the circumstantial evidence, therefore, utmost care and caution is required for reaching at the just decision of the case. By now, it is well- settled that in such like cases, the chain link should be so inter-connected with each other that its one end touches the dead body while the other end goes around the neck of the accused 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 Hon'ble Apex Court of the country reported as "THE STATE v. MANZOOR AHMAD" (PLD 1966 Supreme Court 664), "ASADULLAH and another v. STATE and another" (1999 SCM R 1034), "CH. BARKAT ALI v. MAJOR KARAM ELAHI ZIA and another" (1992 SCM R 1047), "SARFRAZ KHAN v. THE STATE and 2 others" (1996 SCM R 188), "ALTAF HUSSAIN v. FAKHAR HUSSAIN and antoher" (2008 SCM R 1103), "IBRAHIM and others v. THE STATE" (2009 SCM R 407) and "MUHAMMAD HUSSAIN v.' THE STATE" (2011 SCM R 1127).
12. Keeping in view the parameters, laid down in the above-mentioned judgments, we will discuss each part of the prosecution evidence, separately.
13. The prosecution case is based on the evidence of Wajj Takar, extra judicial confession, recovery of pistol (P-1) along with six live bullets (P-2/1-6) on the pointation of the appellant which were taken into possession vide recovery memo Exh.PE, medical evidence and the evidence of motive.
14. The complainant Noor Hussain (P.W.13) alleged in the F.I.R. That on the night of occurrence i.e. 15- 11-2005 at about 9-00 p.m., he went out of his house in order to answer the call of nature. In the meanwhile, he heard the report of fire shot coming from the southern side. On hearing the report of fire shot, he proceeded towards the spot. In the meanwhile, Faiz Ahmad (P.W.8) and Muhammad Rafique (given up P.W.) also joined him and when they all reached at the "Kachaa" road at a distance of one furlong from the house of the complainant, they saw, in the moonlight, that son of the complainant namely, Abdul Waheed was lying on the ground in an injured condition. There was a firearm injury on the forehead of Abdul Waheed who succumbed to the said injury at the spot.
The F.I.R. Was lodged against unknown accused and no motive for the murder of Abdul Waheed was mentioned in it. The complainant named the appellant in his supplementary statement (Exh- PC/1) recorded on 16-11-2005 wherein, he stated that he forgot to me..Tion in the F.I.R., the name of Farooq son of Ahmad Nawaz and when he reached at the spot, his brother Ghulam Abbas (P.W.11) and Muhammad Aslam (P.W.10) told him that they were coming from village Zamaywala towards village Awanawala and they saw Farooq Ahrnad appellant, after the occurrence. It was further stated that Abdul Waheed was murdered by Farooq appellant with his pistol. The motive was also mentioned in the above mentioned supplementary statement (Exh.PC/1) that Abdul Waheed deceased was married with the daughter of Faiz Ahmad (P.W.8). The said Faiz Ahmad purchased some land from paternal uncle of the appellant namely, Rab Nawaz. The appellant wanted to get the above mentioned land back due to which, few days earlier, a quarrel took place between the deceased and the appellant. Farooq (appellant) committed the murder, of Abdul Waheed on account of the above mentioned grudge.
' We have noted that although the' complainant claimed, in his supplementary statement (Exh.PC/1) that when he reached at the spot, he was informed by his brother Ghul am Abbas (P.W.11) and Muhammad Aslam (P.W.10) that they had seen Farooq Ahmad (appellant) after the occurrence but the names of above mentioned witnesses are not mentioned in the F.I.R. It was not mentioned in the supplementary statement of the complainant (Exh.PC/1) that he was informed by the above mentioned witnesses about Farooq Ahmad appellant when he came back to the spot after lodging the F.I.R. But at the time of recording of evidence before the learned trial Court, it was claimed by the prosecution witnesses that the complainant was informed about the name of the appellant when he came back after reporting the matter to the police. Muhammad Aslam (P.W.10) has stated, in his evidence, that he along with Ghulam Abbas (P.W.11) saw the appellant at about 9- 00 p.m. While holding a pistol in his hand, who on their asking told that he had killed Abdul Waheed.
He further stated during his cross-examination that the police arrived at the place of occurrence at about 12-15/12-30 a.m. (night). The names of the above mentioned witnesses of Waj Takar are also not mentioned by the police in the column of brief history of the case of Inquest Report (Exh.PH).
Similarly, the story of Waj Takar was also not mentioned in the above mentioned report which was prepared by the police after spot inspection. Moreover, the names and the points showing the presence of the above mentioned witnesses of Waj Takar were not mentioned in the rough site plan (Exh.PN), as well as, in the scaled site plan (Exh.PD). The evidence of the 'witnesses of Waj Takar namely, Muhammad Aslam (P.W.10) and Ghulam Abbas (P.W.11) does not appeal to our minds because it is not probable that when the accused had taken precautionary measures to conceal his crime and identity and selected the darkness of night to commit the offence, then there was no' need for him to show his pistol to the above mentioned witnesses of Waj Takar and to tell them that he had committed the murder of Abdul Waheed deceased. Ghulam Abbas (P.W.11) is real brother of the complainant but in spite of the fact that he was allegedly told by the appellant that he had committed the murder of his nephew, the said witness did not proceed to the police station in order to report the incident to the police or to inform the complainant. We are, of the considered view that the prosecution evidence of Waj Takkar is result of an afterthought.
15. Khadim Hussain (P. W.15) and Rana Khushi Muhammad (P.W.16) are the witnesses of the extra judicial confession of the appellant. Both the above mentioned witnesses have stated that on 9-2- 2007, the appellant came to the Dera of Khadim Hussain (P.W.15) and made an extrajudicial confession before them regarding the murder of Abdul Waheed deceased. Khadim Hussain (P.W.15) has admitted in his cross-examination that he was not a lumberdar or councillor of the village. He is cultivator by profession. It has not been established by the prosecution that he was holding any important post/office, or he was a person in authority to effect compromise between the appellant and the complainant. Rana Khushi Muhammad (P.W.16) is also a cultivator by profession. He is resident of village Rakh Ghulaman whereas, the appellant Farooq Ahmad is resident of village Awanawala Khadim Hussain (P.W.15) has stated, in his examination-inchief, that Rana Khushi Muhammad (P.W.16) was present at his Dera as he came to purchase a buffalo. It does not appeal to the mind of a prudent person that the appellant will make an extra-judicial confession before Rana Khushi Muhammad (P.W.16) who was an irrelevant person for him.
' The evidentiary value of the extrajudicial-confession (joint or otherwise) came up for consideration before the August Supreme Court of Pakistan in the case reported as "SAJID MUMTAZ AND OTHERS V. BASHARAT AND OTHERS" (2006 SCM R 231), wherein, at page 238, the Apex Court of Pakistan has been pleased to lay emphasis as under:- "17 This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions starting from Ahmad vs. 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 witnesses before whom extrajudicial 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 confessions have almost become 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. 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 the witnesses with the maker of confession and what, above all, is the position or authority held by the witness". (emphasis supplied)
' The above view has been reiterated in the case reported as TAHIR JAVED v. THE. STATE (2009 SCM R 166), wherein, at page 170, the August Supreme Court of Pakistan, has been pleased to observe as under:- "10. ...It may be noted here that since extra-judicial, confession is easy to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra-judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:-
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCM R 231, (2) Ziaul Rehman v. The State 2001 SCM R 1405, (3) Tayyab Hussain Shah v. The State 2000 SCM R 683, (4) Sarfraz Khan v. The State and others 1996 SCM R 188."
' In light of the above discu'ssion, we are of the view that the prosecution, evidence of extra- judicial-confession in the instant case is also not worthy of reliance.
16. The prosecution has produced the evidence of recovery of pistol (P-1) along with six live bullets (P-2/1-6) on the pointation of the appellant through recovery witnesses namely, Muhammad Yaqoob 450/HC (P.W.6) and Muhammad Asghar D Inspector/S.H.O. (P.W.14). In this case, no empty was recovered from the place of occurrence and there is no report of the Forensic Science Laboratory. Therefore, the above mentioned evidence of recovery of pistol (P-1) along with live bullets (P-2/1-6) is of no avail to the prosecution. Even otherwise, the evidence of recovery is only of corroborative in nature and conviction of the appellant cannot be sustained merely on the basis of above mentioned recovery.
' In the case of "MUHAMMAD AFZAL alias ABDULLAH and others v. THE STATE and others" (2009 SCM R 436), the Hon'ble Supreme Court of Pakistan at pages 443 and 444 has held as under:- "12. After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be."
' Similarly, in the case of "ABDUL MATEEN v. SAHIB KHAN and others" (PLD 2006 Supreme Court 538), at page 543, the following dictum was laid down by the Hon'ble Supreme Court of Pakistan:- "4....It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the recovery as law laid down by this Court in Saifullah's case 1985 SCM R 410".
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "MUHAMMAD YAQUB v. THE STATE" (1971 SCM R 756), and "NEK MUHAMMAD and another v. THE STATE" (PLD 1995 Supreme Court 516).
17. Now coming to the motive part of the prosecution case, it is noted that no motive was mentioned in the F.I.R. And it was simply stated in the F.I.R. (Exh.PC) that Abdul Waheed deceased was murdered by some unknown accused due to some unknown reasons. It was specifically mentioned in the F.I.R. That the complainant had no enmity with anyone. The motive was introduced through the supplementary statement of the complainant (Exh.PC/1) which was recorded on 16-11-2005. According to the prosecution case, about three years prior to the occurrence, Faiz Ahmad (P.W.8), father-in-law of Abdul Waheed deceased purchased land from paternal uncle of the appellant namely, Rab Nawaz. The accused wanted to take back that land for which Faiz Ahmad (P.W.8) was not ready and due to the said reason, few days prior to the present occurrence, a quarrel took place between the appellant and the deceased. In order to prove the above mentioned motive, the prosecution did not produce any mutation, sale deed or any other document to establish that any land was, in fact, purchased by Faiz Ahmad (P.W.8), which was the bone of contention between the parties. According to the prosecution case, it was Faiz Ahmad (P.W.8) who was not ready to return the above mentioned land to the appellant. So as per prosecution's own case, the appellant had grudge against Faiz Ahmad (P.W.8) and not against Abdul Waheed deceased. The learned trial Court has also disbelieved the motive evidence of the prosecution. We are, therefore, of the view that the prosecution has failed to prove the motive as alleged against appellant.
18. As far as medical evidence is concerned, by now it is settled law that it can only establish the kind of weapon used in the occurrence, the seat of the injury, the time elapsed between injury and death and the time elapsed between death and postmortem examination and does not tell about the accused. The medical evidence can never be a primary source of evidence for the crime itself but it is only a corroborative piece of evidence.
19. It has been argued on behalf of the prosecution that the appellant remained a proclaimed offender for about fourteen months which has corroborated the prosecution case. The said argument of the prosecution is misconceived. It is, by now, well-settled law that abscondance per se is not sufficient .To prove the guilt of an accused, in absence of any other direct or strong circumstantial evidence against the accused. Reference in this context may be made to the case of "BARKAT ALI v. MUHAMMAD ASIF and others" (2007 SCM R 1812) wherein, at page 1816, the august Supreme Court of Pakistan was pleased to observe as under:-- "5...It is also a settled law that mere abscondence does not prove guilty mind. See Amanullah's case PLD 1976 SC 629. It is also a settled law that abscondence alone is not enough for conviction when sufficient evidence connecting the accused is not forthcoming. See Abdus Sattar's case 1974 PCr.LJ 208, Sardaran's case 1974 PCr.LJ Note 95 at p.60 and Hayat Bakhsh's case PLD 1981 SC 265..."
' The aforementioned view was reiterated by the Hon'ble Supreme Court of Pakistan in the cases of "ROHTAS - KHAN v. THE STATE" (2010 SCM R 566) and "TAHIR KHAN v. STATE" (2011 SCM R 646).
20. For the foregoing reasons, we hold that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt. Therefore, while extending the benefit of doubt to the appellant, the Criminal Appeal No.1391 of 2007 is allowed, conviction and sentence awarded to the appellant vide judgment dated 8-9-2007 passed by the learned trial Court is set aside and the appellant is acquitted from the charge. He is in custody, he be released forthwith if not required to be detained in any other case.
21. Murder Reference No.516 of 2007 is answered in the NEGATIVE and the sentence of death awarded to Farooq Ahmad (convict) is NOT CONFIRMED.