' MEHMOOD MAQBOOL BAJWA, J.---This judgment shall dispose of Criminal Appeal No,1815 of 2006 titled "HUSNAIN HAIDER SHAH V. THE STATE", Criminal Appeal No,1898 of 2006 titled "MUHAMMAD RAFIQUE V. THE STATE" and Murder Reference No,775 of 2006, sent by learned trial Court for confirmation or otherwise of death sentence awarded to Husnain Haider Shah (appellant) as they arise out of one and the same judgment dated 10-11-2006 recorded by learned Additional Sessions Judge, Gujrat, whereby after conclusion of trial in case F.I.R. No,229 of 2004, registered under section 302 read with section 34 of The Pakistan Penal Code, 1860, at Police Station Saddar, Gujrat, Husnain Haider Shah (appellant) was awarded sentence of death besides payment of compensation to the tune of Rs,1,00,000, Muhammad Rafique (co-appellant) and Qasim Shah (did not assail judgment by filing appeal) were awarded sentence of life imprisonment along with compensation of Rs,1,00,000 with extension of benefit under section 382B of The Code of Criminal Procedure, 1898.
2. Accusation contained in crime Report (Exh.PA) lodged by Muhammad Ilyas (P.W.1), brother of Ghulam Abbas (deceased) are that on 3-5-2004, he alongwith deceased, Mehdi Khan (P.W.2) and Ansar Mehdi (P.W.7) after participating in Mehfil-i-Milad in Gujrat were going back to their village on Ching Che rickshaw and at about 11-00 p.m. Were intercepted ahead of Imam Barga, Madina Syedan by two young persons, approximately 24-25 years old having middle height and pistols who signalled the deceased to stop rickshaw being driven by him who did not stop the same and one boy made fire on the right side of his chest who succumbed to the injuries at the spot.
3. Both the appellants and co-convict Qasim Shah were implicated by the complainant (P. W. 1) by making supplementary statement on 25-6-2004 which is (Exh. PB), making suspicion upon all three. On 5-7-2004, Hussnain Haider Shah (appellant), Muhammad Rafique and Qasim Shah were arrested and on 19-7-2004, Hussnain Haider Shah (appellant) got recovered .30-bore pistol (P-5) vide memo (Exh.PG). Since no crime-empty was recovered from the spot, therefore, the weapon of offence was sent to the Firearm Expert in order to know whether it is in working condition and as per report of Forensic Science Laboratory (Exh. PS) pistol .30-bore was found in working condition.
4. Dr. Muhammad Alam (P.W.6) conducted autopsy on the dead body on 4-5-2004 at 3-30 a.m.
And found following injuries: "(1) A firearm wound of entry 1 x 5 cm slaunting on the front of the right side of the chest just above the nipple.
(1-A) A firearm wound of exit 1.5 x 1.5 cm on the front of left side of chest, about six cm inferolateral to the left nipple.
(1-B) A firearm wound of entry .75 x .75 cm on the medial aspect of the left elbow".
' Probable time between injury and death was almost immediate and that elapsed between death and postmortem report was about four to five hours. Copy of postmortem Report is (Exh. PH), while pictorial diagrams are (Exh. PH-1 and Exh. PH-2).
5. In order to prove its case, prosecution produced as many as 10 witnesses.
6. The appellants and co-convict Qasim Shah in their respective statements under section 342 of The Code of Criminal Procedure, 1898, denied the whole incriminating material put to them.
' Pleading falsity of allegations, submitted, that they all were detained by Muhammad Nawaz, S.- I./I.O. (P.W.10) one month prior to their involvement and were subjected to torture who demanded illegal gratification for their release and their inability to pay the same resulted in their involvement.
However, neither they appeared as their witnesses nor led evidence in defence.
7. Learned counsel for the appellants contended that appellants have been falsely implicated in the case. Submitted that it was an unwitnessed occurrence, occurred at night and the case was registered against un known accused but no identification test was conducted. Argued, that appellants were implicated by way of supplementary statement made by complainant on 25-6- 2004 on the basis of suspicion. Further submitted that evidence of extra-judicial confession coming from the mouth of the witnesses, Mehdi Khan and Ansar Mehdi (P.W.2 & P.W.7) was coined to implicate the appellants falsely which even otherwise does not inspire confidence. Referring to the statements of both the witnesses, it was submitted that there is joint extra-judicial confession, having no sanctity and as such same cannot be believed. Making reference to the factum of recovery of .30-bore pistol from Husnain Haider Shah (appellant), it was submitted that same cannot provide corroboration in view of report of Firearm Expert (Exh.PS) just suggesting that weapon of offence was found in working condition.
8. On the other hand, learned Deputy Prosecutor-General though admitted that appellants were not named in the F.I.R. But contended that complainant after occurrence remained on search to identify the assailants and after getting reliable information implicated them by way of supplementary statement. Submitted, that evidence of Mehdi Khan and Ansar Mehdi (P.W.2 & P.W.7)is sufficient to prove extra-judicial confession on the part of the appellants whose credibility could not be shaken in cross-examination. Referring to the statement of Ansar Mehdi (P.W.7), it was contended that the witness is lambardar of village and as such evidence of making of confession before him being person in authority is natural and probable. Making reference to the defence, it was contended that no reason was assigned by the appellants for their false implication.
9. Both the appellants and co-convict were not implicated in the F.I.R. Occurrence took place on 3- 5-2004 at about 11-00 p.m., while all three were implicated by way of supplementary statement made by complainant on 25-6-2004 after delay of about one month and twenty two days of the occurrence. Perusal of the contents of supplementary statement are nowhere suggestive of source of information of complainant, whereby suspicion was made upon them.
' Supplementary statement cannot be equated as F.I.R. At the most, it can be termed and treated as statement under section 161 of The Code of Criminal Procedure, 1898. The supplementary statement and that too without disclosing source of information got no legal value and sanctity.
Reliance is placed, upon "FALAK SHER alias SHERU V. THE STATE" (1995 SCMR 1350), "NOOR MUHAMMAD V. THE STATE" (2008 SCMR 1556), "ANEES-UR-REHMAN and another V. THE STATE" (PLD 2002 Lahore 110) and "MUHAMMAD ASHRAF V. THE STATE" (2000 MLD 1625).
10. It is further to be noted that in the F.I.R., two persons were named as assailants but in the supplementary statement, while increasing the number of the accused, three persons were nominated. Increase of number of assailants in the supplementary statement by itself is sufficient to suggest that either the occurrence did not happen in the stated manner and fashion or the complainant and the witnesses did not see the occurrence.
11. Since occurrence was committed by un-known persons, therefore, holding of identification test was 'essential as held in "FARMAN ALI V. THE STATE" (1997 SCMR 971) and "STATE through Advocate- General, Sindh, Karachi V. FARMAN HUSSAIN and others" (PLD 1995 SC 1). Admittedly, no such identification test was held.
12. Pursuant to above, the implication of appellants by way of supplementary statement though banked upon with vehemence cannot advance the plea of prosecution to prove the culpability of appellants.
13. Joint extra-judicial confession is another type of evidence which was relied upon by prosecution to prove guilt of the appellant. In order to prove this aspect of the case prosecution produced Mehdi Khan land Ansar Mehdi (P.W.2 & P.W.7).
' Relevant portion of statement of Mehdi Khan (P.W.2) is reproduced for ready reference: "On 2-7-2004, all the accused present in the court namely Muhammad Rafique, Hussnain Haider and Qasim Shah came to our village and confess before us that they have committed the murder of Ghulam Abbas deceased. All the accused requested for pardon. At that time Ansar Mehdi and Ilyas (PWs) were present with me".
' Statement of Ansar Mehdi (P.W.7) is verbatim copy of the statement of Mehdi Khan (P.W.2).
Relevant portion of cross-examination of Mehdi Khan (P.W.2) which demolishes the superstructure of the case of the prosecution advantageously is also reproduced:-- "Present accused persons Husnain Shah, Qasim Shah and Muhammad Rafique did not come to me nor they confessed before me about the killing of Ghulam Abbas. It is also correct that present accused did not request for pardon from me".
14. Though Ansar Mehdi (P.W.7) denied the suggestions in cross-examination that appellants did not approach them for confession but in view of the obliging replies given in cross-examination by Mehdi Khan (P.W.2), how evidence of extra-judicial confession would advance the plea of prosecution.
15. Three-fold test is to be satisfied in order to use "extra-judicial confession" for recording conviction. Firstly, that in fact it was made; secondly, that it was voluntarily made and lastly that it was truly made. Admittedly, extra-judicial confession is a weak type of evidence which can easily be procured when direct evidence is not available and as such in order to rely upon such type of evidence, degree of high care and caution is required.
16. Similar proposition was moot point before the Honourable Supreme Court of Pakistan in "SAJID MUMTAZ and others V. BASHARAT and others" (2006 SCMR 231) and it was held at pages 238 and 239 as follow:-- "17. Last but not the least are the extra judicial confessions of all the accused, out of whom those of Basharat and Mst. Naghma are joint one. This requires somewhat detailed discussion. This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra judicial confessions starting from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown, it was observed that in this country (as a whole) extrajudicial 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 sued 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 entitling 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 offence 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 once pressure on mind and conscience is another aspect of the same psyche. One gives vent to once feelings and one removes catharses 'only before a strong and close confident. In the instant case the position of 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".
17. There is another aspect which has to be kept in view while believing or otherwise of extra-judicial confession. Providing rule of care and caution, the learned Division Bench of this Court has held in "MUHAMMAD ALAM V. THE STATE" (PLD 1960 (W.P) Lahore 71) at page 76 as under:-- "10. Now, the detail of the talk which took place between the accused and Noor Muhammad given by the witnesses and reproduced above are highly discrepant. It only shows how unsafe it is to base any body's conviction on an oral confession because human memory being such, no human being can be expected to recall exactly what was stated to him by the accused person and unless the precise words are there, the conviction based on such confession would be hazardous in the extreme".
' Similar yardstick was highlighted by another learned Division Bench of this Court in "ANSAR ALI V.
THE STATE" (1968 PCr.LJ 632).
' The Honourable Supreme Court in the case of "MUHAMMAD MANSHA KAUSAR V. MUHAMMAD ASGHAR and others" (2003 SCMR 477) ruled out extrajudicial confession from consideration being joint and vague.
18. When evidence of both the witnesses (P.W.2 & P.W.7) is examined on the touchstone and yardstick, referred to, it becomes crystal clear that evidence of both the witnesses which even otherwise is contradictory in nature cannot be relied upon to prove this aspect of the case. Replies given in cross-examination by Mehdi Khan (P.W.2) and reproduced earlier are sufficient to rule out the veracity and voluntariness of extra-judicial confession. Nothing was disclosed by the witnesses, whicn prompted the appellants to make confession before them. Statements of both the witnesses are also silent to suggest closeness of the appellants with them. Even otherwise, confession made by appellants is vague and sketchy as precise words were not disclosed. Lastly, it is joint extrajudicial confession which is inadmissible in evidence.
19. Viewed, from whichever angle, no implicit reliance can be placed upon the evidence of joint extra-judicial confession.
20. Evidence of recovery of weapon of offence on the pointation of Husnain Haider Shah (appellant) on 19-7-2004 vide memo (Exh.PG) also cannot advance plea of prosecution because no crime empty was recovered from the spot and Report of Forensic Science Laboratory (Exh.PS) just suggest working condition of weapon. Even otherwise, evidence of recovery is a corroborative piece of evidence and in the absence of any evidence, direct or indirect to prove culpability of appellants same would not provide ground for conviction.
21. Medical evidence though also banked upon would hardly provide any corroboration because according to the contents of F.I.R. (Exh. PA) only one shot was fired by one boy but perusal of postmortem report (Exh.PH) suggests three injuries. Injuries No,1 and 1-B are entry wound while injury No,1-A is exit wound. Contents of F.I.R. Are totally silent how injury No,1-B was sustained by the deceased on the medial aspect of the left elbow.
22. Epitome of above discussion is that prosecution failed to produce convincing, corroborative and confidence-inspiring evidence to prove guilt of both the appellants beyond shadow of doubt and as such benefit of doubt has to be extended not as a matter of grace and concession but as a matter of right and as such, while extending same, Criminal Appeals Nos.1815 and 1898 of 2006 are accepted and while setting aside the judgment recording conviction and awarding sentence to both the appellants, they are acquitted of the charge. They be released forth with if not required in any other case.
23. Death sentence awarded to Husnain Haider Shah is not confirmed and Murder Reference No,775 of 2006 is accordingly answered in the Negative.
24. As observed earlier, besides appellants, conviction was also recorded against Qasim Shah, who unfortunately did not question his conviction and sentence due to circumstances not known and available on record.
' His case is at par with both the appellants. He was not nominated in the F.I.R. And was implicated by way of supplementary statement due to suspicion with appellants. Evidence of joint extrajudicial confession attributing to all making confession has been disbelieved by us. Nothing was recovered from him during the course of investigation.
25. We have given our anxious consideration to this aspect and are of the view that it is our duty to impart justice and also extend benefit of doubt in favour of Qasim Shah whose case is at par with the acquitted appellants.
26. Question which has to be resolved by us is whether non-filing of appeal by the said convict by itself would be a barrier to allow him relief to which he is otherwise entitled on legal as well as factual premises.
27. In our serious consideration, relief can be granted to Qasim Shah (convict) while exercising Suo Motu revisional powers under section 439 of The Code of Criminal Procedure, 1898.
' Use of expression "or which otherwise comes to its knowledge, the High Court may, in its discretion" in section 439(1) of The Code of Criminal Procedure, 1898, cast duty upon this Court to exercise corrective jurisdiction as jurisdiction under this section is not a power only but requires the High Court while exercising revisional jurisdiction to correct. Miscarriages of justice, arising from misconception of law and facts, irregularity of procedure casting undesired hardship to individuals.
Reliance is placed upon "Dr. WAQAR HUSSAIN V. THE STATE" (2000 SCMR 735).
28. We are not mindful of the catch contained in section 439 (5) of The Code of Criminal Procedure, 1898, clearly debarring the remedy of revision petition, where under the "Code" an appeal lies but no appeal is preferred. However, this prohibition cannot oust the Suo Motu jurisdiction of this Court due to use of words or which otherwise come to its knowledge" in section 439(1) of The Code of Criminal Procedure, 1898, and use of expression "No proceedings by way of revision shall be entertained at the instance of the party who could have appealed" used in section 439(5) of The Code, clearly suggests that embargo has been put upon the party and not upon Court. While exercising revisional jurisdiction, this Court can exercise any of the powers conferred on the court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338 of The Code of Criminal Procedure, 1898, as authorized by section 439(1) of The Code.
29. In similar circumstances, the learned Division Bench of this Court in the case of "GAUHARA V. THE STATE" (1968 PCr.LJ 1118) granted benefit of doubt to Ramman, Palhu, Khan Bahadur and Sadiq also convicted but did not file appeal, recorded acquittal, while exercising powers under section 439 of The Code of Criminal Procedure, 1898.
' Again, another learned Division Bench of this Court in "INAYAT ULLAH KHAN V. THE STATE" (1994 PCr.LJ 858) granted benefit of doubt to the convict who did not prefer appeal while exercising Suo Motu revisional powers under section 439 of The Code of Criminal Procedure, 1898.
30. Matter can be examined from another angle as well. After examining the provisions of section 561-A of The Code of Criminal Procedure, 1898, we are convinced that premium can also be granted to the said convict who failed to assail the judgment of conviction against him by filing appeal.
' Powers under the provision of law referred to can be exercised to prevent abuse of process of court or otherwise to secure the ends of justice.
' Scope of section 561-A of The Code of Criminal Procedure, 1898, can be summarized as under:--
(a) The said provision should not be understood to provide an additional or alternative remedy;
(b) The powers can be used to make departure from the normal course prescribed by law only and only in exceptional circumstances of extraordinary nature and,
(c) To avoid grave injustice.
' The said powers cannot be used when the powers have been expressly taken by any law.
' The jurisdiction is extra-ordinary in nature and is designed to do substantial justice.
' Keeping in view facts of the case, there can be no two opinions that omission to exercise jurisdiction will cause grave injustice to the convict i,e, Qasim Shah.
' In the similar circumstances, the learned Division Bench of this Court in the case of "MUHAMMAD RAFIQUE alias SAHIB V. THE STATE" (2000 YLR 2068) granted premium of acquittal to Muhammad Arshad (convict) who did not file appeal against his conviction while exercising powers under section 561-A of The Code of Criminal Procedure, 1898.
31. Article 203 of The Constitution of the Islamic Republic of Pakistan, 1973, gives supervisory jurisdiction to this Court over all subordinates courts to it. The control and supervision is not only with reference to administrative matters but also with regard to correction of decisions. See: "Mst.
GAMAN V.TAJ DIN" (PLD 1968 Lahore 987), "Mst. FARIDA PARWIN V. QADEERUDDIN AHMAD SIDDIQUI"
(PLD 1971 Karachi 118), "MUHAMMAD SIDDIQ V. SYED ALI SHAN and another" (PLD 1976 Lahore 293) and "MORIO GOTH WELFARE ASSOCIATEION V. MUHAMMAD BACHAL and 6 others" (1985 Civil Law Cases 1680).
32. Keeping in view the mandate of Article 2-A of The Constitution of the Islamic Republic of Pakistan, 1973 and Islamic concept of administration of justice we are of the view that we can interfere in the judgment impugned to the extent of Qasim Shah (convict), recording his acquittal as well
33. Similar moot point was before learned Division Bench of erstwhile West Pakistan High Court (Karachi Bench) in "TALIB HUSSAIN and another v. THE STATE" (PLD 1958 (W.P) Karachi 383), whereby benefit of judgment of acquittal 'was also extended in favour of Waryam who did not file appeal.
34. In the case of "GHULAM NABI SHAH V. THE CROWN" (1969 SCMR 629), the Honourable Supreme Court of Pakistan also held that conviction of Khudadino for abetment cannot be sustained who did not file appeal but leaving the matter open regarding interference in such like cases recommendation was made to Provincial Government for remittance of sentence of said convict.
35. Again matter came up for adjudication before Apex Court in the cases of "AMIN ALI and another V. THE STATE" (2011 SCMR 323) and "SHABBIR AHMED V. THE STATE" (2011 SCMR 1142). Benefit of judgment of acquittal was also extended in favour of convicts who not question their conviction and sentence by filing appeal.
36. Pursuant to above discussion and respectfully following the dictum laid down referred to, we are of the considered view that benefit of the judgment recording acquittal in favour of Husnain Haider Shah and Muhammad Rafique (appellants) has to be extended in favour of Qasim Shah (convict) to whom sentence of life was awarded besides payment of compensation and as such while extending benefit of doubt, Qasim Shah (convict) is also acquitted of the charge who shall be released forthwith if not required in any other case.