' MALIK SHAHZAD AHMAD KHAN, J.---Ishtiaq alias Shaiti and Irfan alias Sian appellants were tried in case F.I.R. No,359 of 2006, dated 6-8-2006, registered at Police Station Cantt., District Sialkot in respect of offences under sections 302/393/109/34, P.P.C. After conclusion of the trial, learned trial court vide its judgment dated 24-12-2008 has convicted and sentenced both the appellants as under:-- ' Ishtaiq alias Shaiti and Irfan alias Sian ' Under section 302(b)/34, P.P.C. To 'Death' as Ta'zir to each appellant for committing Qatl-e-Amd of Muhammad Tanveer Ahmad deceased. They were also ordered to pay Rs,2,00,000 (rupees two hundred thousand only) each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to suffer simple imprisonment for six months each.
' Under section 393 of P.P.C. To 7 years' R.I. Each with a fine of Rs,50,000 each or in default of payment of fine to suffer simple imprisonment for one year each.
2. Feeling aggrieved, Ishtaiq alias Shaiti appellant has challenged his conviction and sentence through Criminal Appeal No, 1484 of 2008 and Irfan alias Sian appellant has challenged his conviction and sentence through Criminal Appeal No,7-J of 2009, whereas, the learned trial Court has transmitted Murder Reference No, 25 of 2009 for confirmation or otherwise of the 'Death' sentences of Ishtaiq alias Shaiti and Irfan alias Sian appellants. We propose to dispose of all these matters by this single judgment as these have arisen out of the same judgment dated 24-12-2008 passed by the learned Additional Sessions Judge, Sialkot.
3. Brief facts of the case as given by the complainant, namely, Imran Nazir (P.W.3) through written application Exh. PE/ 1 on the basis of which formal F.I.R. Exh. PF was chalked out are that on 6-8- 2006 at about 10-30 p.m. (night) he (complainant) and his brother Muhammad Tanveer Ahmad (deceased) were returning home from their jobs. Muhammad Tanvir Ahmad (deceased) was riding on a motorcycle bearing Registration No,STK/1468, while he (complainant) was on his bicycle. On their way some unknown accused persons were standing near the "Khaal" of the government motor of Rakh Murakiwal' who tried to stop Muhammad Tanveer Ahmad (deceased) and when he did not stop, they fired at him. The complainant, when reached near his brother, he had already fallen on the ground and then he died at the spot. He (complainant) raised hue and cry but no one was nearby at that time and he could not do anything as he was alone.
4. The appellants were not named in the F.I.R. However, they along with Usman accused (since P.O.) were implicated on the basis of second written application of the complainant Exh. PC which was statedly moved on the same night, i,e, on 6-8-2006. The complainant in his said application stated that on the same night he had earlier moved an application but he could not nominate the accused persons as he was perturbed due to the murder of his brother. He further stated that he identified Irfan alias Sian and. Ishtaiq alias Shaiti (appellants), in the light of motorcycle who were armed with .30 bore pistols at the time of occurrence. He (complainant) further stated that the accused persons (appellants) tried to stop Muhammad Tanveer Ahmad (deceased) but he did not stop, whereupon, Ishtiaq alias Shaiti (appellant) stepped forward and intercepted the motorcycle of Muhammad Tanveer Ahmad (deceased) who identified the accused persons in the light of his motorcycle. Muhammad Tanveer Ahmad (deceased) asked them (appellants) that they had been committing dacoities, whereupon, Ishtiaq alias Shaiti (appellant) caught hold of Muhammad Tanveer Ahmad (deceased) and Irfan alias Sian (appellant) made a fire shot with his pistol on Muhammad Tanveer Ahmad (deceased) who fell down from his motorcycle. The accused persons (appellants), thereafter, fled away from the spot towards 'rare Khana'. The complainant further stated in his second application Exh. PC that his brother Muhammad Sabir (P.W.4) and Muhammad Aslam (given up P.W.), later on told him that they were going towards Sialkot City and they stopped on seeing the dacoits and had witnessed the occurrence. They further stated that they identified Irfan alias Sian and Ishtiaq alias Shaiti (appellants) in the light of their motorcycle when they were fleeing away towards 'rore Khana' and they also chased the accused persons but they succeeded to flee away due to the darkness of night. The complainant further stated in his second application Exh. PC that Muhammad Yagoob (P.W. Not produced) told him that he was taking tea at `Adda' (bus stop) of Murakiwal where he overheard Muhammad Usman accused (since P.O.) who, was talking to someone on his mobile phone and was saying that he had checked the police barricade and there was nothing to worry about, therefore, they should complete their job without any fear. It was further alleged by the complainant that Usman accused (since P.O.) got Muhammad Tanveer Ahmad (deceased) murdered by the above mentioned accused persons for the purpose of dacoity. The complainant further stated in his second application Exh. PC that Muhammad Shabir (P.W.6) also told him that at about 11-00 p.m. He was going towards Gondal road to take a walk after offering a Jinaza prayer and when he reached near the ground of boys High School he noticed that two persons were coming while running from the side of 'rare Khana' and when they crossed the road he identified them in the light of torch as Irfan alias Sian and Ishtiaq alias Shaiti (appellants) who were armed .With .30 bore pistols.
5. The appellants were arrested in this case on 10-11-2006 by Muhammad Javed, S.-I. (P.W.12) and during the course of their physical remand on 24-11-2006, the appellant Ishtiaq Ahmad alias Shaiti led to the recovery of pistol (F-6), which was taken into possession through memo Exh. PR. Likewise, on the same day, appellant Irfan alias Sian also led to the recovery of pistol (P4), which was taken into possession vide recovery memo Exh. PQ. 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 the charge against the appellants on 22-2-2007, to which they pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution produced twelve witnesses, during the trial, Imran Nazir (P.W.3) and Muhammad Sabir (P.W.4) are the witnesses of ocular account.
' The medical evidence was furnished by Dr. Abdul Jabar (P.W.2) who on 15-11-2006 medically examined Usman accused (since P.O.) and found no fresh injury on his person and Dr. Muhammad Farooq (P.W.10) who on 7-8-2006 conducted the post mortem examination on the deadbody of Muhammad Tanveer Ahmad (deceased) and found three firearm injuries on his person.
' Abdul Qayyum (P.W.7) and Abdul Rasheed (P.W.8) are the witnesses of extra judicial confession of both the appellants and their co-accused Usman (since P.O.).
' Muhammad Younis, Inspector (P.W.11) and Muhammad Javed, S.-I. (P.W.12) are the investigating officer of the case. Muhammad Shabir (P.W.6) is the witness of waj-takkar.
' Mirza Tahir Tasleem draftsman (P.W.1), Anwar Farooq, Inspector (P.W.5), and Bashir Ahmad 848/C (P.W.9) are the formal witnesses. The prosecution has also produced documentary evidence in the shape of scaled site plan in duplicate of the place of occurrence (Exh.PA) and (Exh.PA/ 1), copy of Medico-legal Report of Usman Ali accused (since P.O.) (Exh.PB), copy of second application of the complainant to the S.H.O. (Exh.PC), memo of possession of blood-stained earth and motorcycle bearing Registration No, 1468/STK (Exh.PD), copy of first application to the S.H.O. By the complainant (Exh.PE/1), F.I.R. (Exh.PF), memo of possession of last worn clothes of the deceased qameez (P-1), shalwar (P-2) along with one sealed box containing led bullet (Exh.PG), copy of post mortem report (Exh.PH), pictorial diagram (Exh.PH/ 1), copy of injury statement (Exh.PJ), copy of site plan without scale of the place of occurrence (Exh.PK), copy of application for post mortem examination of the deceased (Exh.PL), copy of death report (Exh.PM), copy of application for medical examination of Usman Ali accused (Since P.O.) (Exh.PN), memo of possession of pistol .30 bore along with three cartridges from Usman Ali accused (since P.O.) (Exh.PP), copy of site plan without scale of the place of recovery of pistol .30 bore (Exh.PP/1); memo of possession of pistol .30 bore (P-4) along with four cartridges from Irfan alias Sian (appellant) (Exh.PQ), copy of site plan without scale of the place of recovery of pistol P-4 (Exh.PQ/ 1), memo of possession of pistol .30 bore (P-6) along with two cartridges from Ishtiaq alias Shaiti (appellant) (Exh.PR), copy of site plan without scale of the place of recovery of pistol P-6 (Exh.PR/ 1), memo of possession of motorcycle bearing Registration No,5267/STG (Exh.PS), report of Chemical Examiner (Exh.PT), report of Serologist (Exh.PT/1), report of FSL (Exh.PU) and closed the prosecution evidence.
' The statements of the appellants under section 342, Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you" the appellants replied as under:-- ' Ishtiaq alias Shaiti "In fact initially the case in hand was got registered by complainant P.W.3 against unknown assailants through his written application Exh.PE/1 but later on with his due deliberation and legal consultation having in league with local police upon the direction of I.O. Has falsely implicated us on the mere suspicion and therefore in support his false assertions he and all the P.Ws. Falsely deposed against us"
' The appellant Irfan alias Sian adopted the same statement as made by Ishtiaq alias Shaiti appellant.
7. Neither the appellants made statement under section 340(2), Cr.P.C. Nor they produced any evidence in their defence. The learned trial Court vide its judgment dated 24-12-2008 found the appellants guilty, convicted and sentenced them as mentioned and detailed above.
8. Learned counsel for the appellants, in support of the above mentioned appeals, contend that the appellants have falsely been implicated in this case; that the complainant did not name any person as accused in the F.I.R. And even has not given any description of the assailants but while appearing before the learned trial court he has admitted in his cross-examination that he knew the appellants previously; that the F.I.R. Was lodged in this case on the basis of written application Exh.
PE/1 submitted by the complainant in which he stated that he was alone at the time of occurrence and, thereafter, the complainant submitted another application Exh.PC wherein he stated that he was confused at the time of moving his first application Exh.PE/1 and in fact he identified the appellants in the light of motorcycle who were armed with pistols .30 bore and his brother Muhammad Sabir (P.W.4) and Muhammad Aslam (given up P.W.) also witnessed the occurrence, thus, the prosecution story is not reliable; that no reliance can be placed on the witnesses of extra judicial confession namely Abdul Qayyum (P.W.7) and Abdul Rasheed (P.W.8) because there was no occasion for the appellants to make extra-judicial confession before the said witnesses and moreover it is a joint confession, and no details of the confession were disclosed by the above mentioned witnesses; that prosecution evidence of Waj-Takkar is not reliable, as the torch with the help of which the witnesses identified the appellants has not been produced before the I.O.; that version of the complainant that he had made application Exh. PC immediately after his first application Exh.PE/1 is belied from the fact that in the relevant column of Inquest Report, the same facts stood mentioned which were contained in the F.I.R. And that in the site plan the names of the witnesses and the accused persons-are not mentioned; that recoveries of pistols at the pointation of the appellants are not material because of the fact that the report of Forensic Science Laboratory is only to the effect that the said pistols are in working order; that so far as the convictions of the appellants under section 393 of P.P.C. Is concerned, there is no allegation against the appellants that they snatched anything from the deceased and even the motorcycle of the deceased was lying at the spot as per prosecution's own case; that the prosecution miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, the above mentioned appeals be accepted and the appellants may be acquitted from the charges.
9. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes these appeals on the grounds that the occurrence in this case took place on 6-8-2006 at 10-30 p.m., whereas, the matter was promptly reported to the police on the same night, i,e, on 6-8-2006 at 10-45 p.m. And even the F.I.R. Was also registered on the same night at 11-15 p.m. And there is no delay in reporting the matter to the police if all the material available on the record is taken into consideration; that in order to prove its case, the natural eyewitnesses' account has been furnished by the prosecution, which inspires confidence and despite lengthy cross-examination, the defence could not shake the evidence of the prosecution eye-witnesses; that there could not be any reason to falsely implicate the appellants in this case; that the ocular account is fully supported by the medical evidence, which fact is evident from the post mortem report of the deceased Exh. PH; that ocular account has further been corroborated by the evidence of witnesses of extra-judicial confession namely Abdul Qayyum (P.W.7) and Abdul Rashid (P.W.8); that prosecution case is further corroborated by recoveries of pistols (P-4 and P5) on the pointation of the appellants and positive reports of the Forensic Science Laboratory; that there is no mitigating circumstance in this case; that the sentences of death and imprisonments for seven years each were rightly awarded to the appellants and the same may be maintained. Hence, appeals of the appellants may be dismissed and murder reference be answered in the affirmative.
10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
11. The occurrence in this case took place on 6-8-2006 at night time (10-30 p.m.). The place of occurrence is situated at a road near Rakh Muraki Wal' situated at a distance of six kilometers from Police Station Cantt., District Sialkot. Imran Nazir complainant (P.W.3) first moved a written application Exh. PE/1 on the basis of which formal F.I.R. Exh. PF was registered, wherein he stated that on the night of occurrence he (complainant) and his brother Muhammad Tanveer Ahmad (deceased) were going back to their house after their duty. Imran Nazir complainant (P.W.3) further stated that Muhammad Tanveer Ahmad (deceased) was on a motorcycle bearing Registration No,STK 1468, whereas, he (complainant) was on his bicycle and when they reached near the Khaal of government motor of Rakh Muraki Wal' there unknown accused persons were present who tried to stop Muhammad Tanveer Ahmad (deceased) but when he did not stop, they fired at him who fell down and when the complainant reached near his brother he found that he (Muhammad Tanveer Ahmad deceased) had already died. Imran Nazir complainant further stated in his first written application Exh.PE/1 that he was alone, therefore, he could not do anything at the time of occurrence. We have noted that neither the appellants were named in the F.I.R. Nor any description of the accused persons were mentioned in it. Even the number of assailants was not mentioned in the F.I.R. The appellants along with Muhammad Usman accused (since P.O.) were implicated in this case in the second application Exh. PC of Imran Nazir complainant (P.W.4) which was statedly moved on the night of occurrence (6-8-2006). The detail of the prosecution story which was mentioned in the second application of Imran Nazir complainant Exh. PC has already been given in Paragraph No, 4 of this judgment and there is no need to repeat the same. However, the gist of the prosecution case as set forth in the second application Exh.PC of the complainant is that the complainant could not name the appellants in his first written application Exh.PE/1, because he was perturbed due to the murder of his brother. He further stated that Muhammad Tanveer Ahmad (deceased) was stopped by the appellants on the night of occurrence and as Muhammad Tanveer Ahmad (deceased) identified the appellants in the light of his motorcycle and he told the appellants that they were committing dacoities, therefore, Ishtiaq alias Shaiti caught hold of Muhammad Tanveer Ahmad (deceased) and Irfan alias Sian appellant made a fire shot with his pistol due to which Muhammad Tanveer Ahmad (deceased) fell down from his motorcycle and, thereafter, both the appellants fled away from the spot towards rore Khana' . The complainant further mentioned in second application Exh. PC that he was later on, informed by Muhammad Sabir (P.W.4) and Muhammad Aslam (given up P.W.) that they had also witnessed the occurrence and they identified the 4 appellants in the light of their motorcycle. The said P.Ws., also chased the appellants but the appellants A succeeded to flee away due to the darkness of night. Muhammad Yaqoob (P.W. Not produced) also told Imran Nazir complainant (P.W.3) that he was taking tea at Adda (bus stop) of Takh Muraki Wal' where he overheard Muhammad Usman accused (since P.O.) who was talking to someone on his mobile phone and was saying that he had already checked the police barricades and there was nothing to worry about, therefore, they should finish their job without any fear. Later on he (Muhammad Yaqoob P.W. Not produced) came to know that the dacoits had committed the murder of some person and on this information he reached at the place of occurrence and found that Muhammad Tanveer Ahmad (deceased) was lying dead on the spot, thus. He informed the above mentioned facts to the complainant. It was further stated by Imran Nazir complainant (P.W.3) in his sccond application Exh. PC that Muhammad Shabir (P.W.6) also told him that at about 11-00 p.m. He was going towards Gondal road to take a walk after offering Jinaza prayer and when he reached near the ground of boys high school, he saw two unknown persons who were coming while running from the side of `rare Khana' side and he identified them in the torch light, as Irfan alias Sian and Ishtiaq alias Shaiti (appellants). As mentioned earlier, the appellants were not named in the first written application of the complainant Exh.PE/1 and in the F.I.R. Exh.PF. Neither any description nor the number of assailants was mentioned in it. Imran Nazir complainant (P.W.3) did not claim in the F.I.R. Exh.PF that he identified the assailants at the time of occurrence in the light of motorcycle. Even otherwise he himself stated in the F.I.R. That on the night of occurrence Muhammad Tanveer Ahmad (deceased) proceeded on his Motorcycle No, STK 1468, whereas, he (complainant) proceeded on his bicycle, towards their house after performing their duties. The distance between Imran Nazir complainant (P.W.3) and Muhammad Tanveer Ahmad (deceased) has been mentioned as 50 feet in the site plan Exh.PA. As the complainant was on his bicycle, therefore, identification of the appellants in the light of motorcycle which was driven by his brother Muhammad Tanveer Ahmad (deceased) who was at a considerable distance was not probable. We have noted that Imran Nazir complainant (P.W.3) while appearing before the court has admitted during his cross-examination that both the accused (appellants) were previously known to him, as well as, to his brother Muhammad Sabir (P.W.4) and Muhammad Aslam (given up P.W.). It is strange to note that in spite of the fact that the appellants were known to the complainant and his brother Muhammad Sabir (P.W.4), but even then this fact was not mentioned in the F.I.R. That the accused persons were known to the complainant party either by theire names or by their faces. It has been claimed by the prosecution that the occurrence was also witnessed by Muhammad Sabir (P.W.4) and Muhammad Aslam (given up P.W.). Imran Nazir complainant (P.W.3) has stated during his cross-examination that Muhammad Sabir (P.W.4) and Muhammad Aslam (given up P.W.) were also present at the time of occurrence at a distance of 10/20 feet but their names or their presence was not mentioned in the F.I.R. Imran Nazir complainant (P.W.3) further stated during his cross-examination that he pointed out the positions of P.Ws. Muhammad Sabir P.W.4 and Muhammad Aslam (given up P.W.) at the place of occurrence not only to the I.O. But also to the draftsman and both the P.Ws. Were also present while the rough site plan of the place of occurrence Exh. PK was prepared by the I.O. And also at the time of preparation of scaled site plan Exh.PA by the draftsman. He further stated that the above mentioned P.Ws. Have also stated and pointed out their positions at the place of occurrence to the I.O. And the draftsman but we have noted that the presence of the above mentioned eye-witnesses namely Muhammad Sabir (P.W.4) and Muhammad Aslam (given up P.W.) has neither been mentioned in the rough site plan Exh. PK nor in the scaled site plan Exh. PA which was prepared on 10-8-2006, i,e, four days after the occurrence. As mentioned earlier, according to the statement of Imran Nazir complainant (P.W.3) both the above mentioned eye- witnesses (Muhammad Sabir P.W.4 and Muhammad Aslam given up P.W.) stated that they were also present at the spot at the time of occurrence and they stated and pointed out their positions at the place of occurrence to the I.O. But we have noted that in the column of brief history of the case' of Inquest Report Exh. PM prepared by the I.O. Muhammad Younis, Inspector (P.W.11) neither the names or presence of said witnesses nor the names or descriptions of the appellants has been mentioned rather the same story about the unknown accused persons which was mentioned in the written application of Imran Nazir complainant Exh.PE/1 was mentioned in it. In order to cover the above mentioned lacunae in the prosecution case, the complainant while appearing before the court has stated that his thumb-impressions were taken on white blank papers by the police but we have noted that he did not mention this fact in his second application Exh.PC that his thumb-impressions were taken by the police on blank papers. Moreover, he admitted that he did not move any application against the police. He did not file any private complaint with the allegation that in fact he did not move application Exh.PE/1. It is evident that the complainant made this excuse before the court that his thumb-impressions was taken by the police on blank papers in order to cover the weaknesses of the prosecution case. Muhammad Sabir (P.W.4) is brother of Muhammad Tanveer Ahmad (deceased). He is a chance witness. He could not justify his presence at the time of occurrence at the spot at the odd hours of night (10-30 p.m.).
' He simply stated that he at the relevant time was going along with his chachazad Muhammad Aslam (given up P.W.) to Sialkot City but he has given no reason whatsoever for going to Sialkot city at the odd hours of night. As mentioned earlier, his name is neither. Mentioned in the F.I.R. Nor in the rough site plan Exh.PK or the scaled site plan Exh.PA or in the Inquest Report Exh. PM. We are, therefore, of the view that presence of eye-witnesses at the time of occurrence is highly doubtful.
12. The prosecution has also produced the evidence of waj-takkar through Muhammad Shabir (P.W.6). He claimed that he identified both the appellants on the night of occurrence in the light of his torch when they were coming while running from the side of `core Khana', while armed with pistols and after some time he noticed that some people were gathered at the place of occurrence and when he reached at the spot, he saw that Muhammad Tanveer Ahmad (deceased) was lying dead. This witness is `Tayazad' (paternal cousin) of the deceased. Although he claimed that he identified the appellants in the torch light but no torch has been taken into possession by the I.O., with the help of which, he identified the appellants. He has stated during his cross-examination that police reached after about five minutes of his arrival at the spot. Even the I.O. Muhammad Yonis, Inspector (P.W.11) has stated during his cross-examination that all the P.Ws. Including Muhammad Shabir (P.W.6) were also present at the spot when he reached over there but we have noted that name of this witness is also neither given in the F.I.R. Nor in the first written application of the complainant Exh.PE/1 or in the rough site plan of the place of occurrence Exh.PK or in the scaled site plan of the place of occurrence Exh.PA or even in the Inquest Report Exh.PM.
In view of the above, evidence of waj-takkar produced by Muhammad Shabir (P.W.6) is not worthy of reliance.
13. The prosecution has also produced the evidence qua extra-judicial confession of the appellants and their co-accused. Muhammad Usman (since P.O.) through the statements of Abdul Qayyum (P.W.7) and Abdul Rasheed (P.W.8). Abdul Qayyum (P.W.7) is closely related to Muhammad Tanveer Ahmad (deceased) as his younger brother Abdul Rauf is father-in-law of Muhammad Tanveer Ahmad (deceased) and this fact was brought on the record during his cross-examination.
Similarly Abdul Rasheed (P.W.8) is also from the brotherhood of the deceased as admitted by him during his cross-examination. It is evident from the perusal of their statements that the alleged extrajudicial confession was jointly made by the appellants which carries no value in the eye of law.
No detail about the role of the accused persons or reason of the commission of offence has been mentioned in the evidence qua alleged extra-judicial confession of the appellants and it was simply stated by the above mentioned witnesses that on 11-11-2006, all the three accused persons namely Irfan alias Sian and Ishtiaq alias Shaiti (appellants) and Muhammad Usman. Accused (since P.O.) along with one Muhammad Riaz went to the house of Abdul Qayyum (P.W.7) and confessed their guilt. We have also noted that Abdul Qayyum (P.W.7) is a farmer by profession. He was not a man in authority. There was no reason with the appellants to go to the house of Abdul Qayyum (P.W.7) and confess their guilt before him and Abdul Rasheed (P.W.8). It is by now well- settled law that evidence of extra-judicial confession is a weak type of evidence which is easily procurable. The evidentiary value of the extra-judicial-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 Courts (Federal Court) have elaborately laid down the law regarding extra-judicial-confession starting from Ahmad v. The Crown (PLD 1961 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-judicialconfession 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,
18. It has been further held that the status of the person before whom the extra-judicial-confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witness before whom extra judicial confession is made is such that they ate 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.
' Another most important and natural purpose of making extra-judicialconfession 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.
' As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial-confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial-confession. Such confessions by now have become the signs of incompetent investigation. 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 TAVED V. THE STATE (2009 SCM R 166), wherein; at page 170, the learned August Supreme Court of Pakistan, has been pleased to observe as under:-- "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, and (4) Sarfraz Khan v. The State and others (1996 SCM R 188)".
In light of the above discussion, as any independent corroboration of the alleged extra judicial confession of the appellants is very much missing in this case, therefore, we are of the view that the prosecution. Evidence qua the alleged extra-judicialconfession of the appellants in the instant case is also not worthy of reliance.
14. The prosecution has also produced the evidence qua recovery of pistol P-4 from Wan alias Sian appellant and recovery of pistol P-6 from Ishtiaq Ahmad alias Shaiti appellant but we have noted that there is no Forensic Science Laboratory report regarding the pistols allegedly recovered from the possession of Ishtiaq Ahmad alias Shaiti appellant, whereas, the report of Forensic Science Laboratory report regarding pistol P-4 allegedly recovered on the pointation of lrfan alias Sian appellant is only about the working order of said pistol. We are, therefore, of the view that in the absence of wedding report of any empty with the pistols P-4 and P-6, the prosecution evidence qua above mentioned recoveries is of no avail to the prosecution.
15. No motive whatsoever was mentioned in the F.I.R. However, as per second application of the complainant Exh. PC, as well as, according to the statements of prosecution witnesses before the trial court, the motive behind the occurrence was that the appellants committed the murder of Muhammad Tanveer Ahmad (deceased) for the purpose of dacoity. We have noted that no allegation of looting or even attempt to loot any article was either levelled in the first written application of Imran Nazir complainant Exh.PE/1 or in his second written application Exh. PC or in the statements of prosecution witnesses before the trial court. Although two mobile phone sets were recovered during the physical remand of Irfan alias Sian appellant and one mobile phone set was recovered from Muhammad Usman accused (since P.O.) but none of the prosecution witnesses have claimed that the said mobile phone sets were looted during the occurrence or the same belonged to the deceased. Even the motorcycle of the deceased was not taken away by the accused persons and the same was recovered from the place of occurrence by the I.O. Through recovery memo Exh. PD. According to the statement of Muhammad Shabbir (P.W.6) the appellants were seen by him as they were coming while running from the side of 'Tore khana'. It does not appeal to common sense that if the appellants had committed the murder of Muhammad Tanveer Ahmad (deceased) for the sake of dacoity then what compelled them to flee away from the spot by foot while running, instead of taking away the motorcycle of the deceased and fleeing from the spot on the said motorcycle.
16. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt. It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created doubt about the prosecution case. In `Tariq Pervez v. The State' (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe 'as under:-- "5 The concept of benefit of doubt of an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, the accused will be entitled to the benefit not as a matter, of grace and concession but as a matter of right."
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCM R 230), at page 236, observed as under:- "13 . It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of 'Tariq Pervez v. The State' (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt 'not as a matter of grace and concession but as a matter of right."
17. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants namely, Irfan alias Sian, and Ishtiaq alias Shaiti, beyond the shadow of doubt, therefore, by extending the benefit of doubt, we accept the above mentioned appeals (Criminal Appeals No, 1484 of 2008 and 07-J of 2009), and set aside the convictions and sentences awarded to the appellants, namely, Irfan alias Sian, and Ishtiaq alias Shaitin. The appellants Irfan alias Sian, and Ishtiaq alias Shaiti are in jail. They shall be released forthwith if not required to be detained in any other case.
18. Death sentences awarded to the appellants Irfan alias Sian, and Ishtiaq alias Shaiti are not CONFIRMED and Murder Reference is answered in the NEGATIVE.
19. However, before parting with this judgment, we may observe here that the observations made in this judgment shall not influence the learned trial Court during the trial of the absconding accused namely, Muhammad Usman (since P.O.) and his case shall be decided on its own merits on the basis of the evidence to be adduced during the trial of the said accused.