MANZOOR AHMAD MALIK, J.---Ishtiaq Masih alias Bobi (appellant) was tried by the learned Additional Sessions Judge, Faisalabad in case FIR No,1351 dated 1-12-2007, offence under sections 302 and 377, P.P.C. Registered at Police Station Nishatabad District Faisalabad for the commission of unnatural offence with Sheroon Masih (deceased) son of the complainant and his murder.
' Vide judgment dated 6-11-2008 passed by the learned Additional Sessions Judge, Faisalabad, the appellant has been convicted and sentenced as under:-- "(31) I hereby convict the accused Ishtiaq Masih son of Sundas Masih under section 377, P.P.C. For committing sodomy against the deceased prior to his murder and sentence him to 10 years' R.I.
With fine of Rs,20,000 and in default thereof the accused will also undergo 2 months' S.I.
(32) As far as murder of the accused is concerned, I hereby convict the accused under section 302(b), P.P.C. As far as quantum of sentence is concerned, no direct evidence is available against the accused. The accused is being convicted due to last seen, extra judicial confession and recovery, so in the given circumstance, I am of the view that case for mitigating is made out and the accused is sentenced for life imprisonment along with fine of Rs,1 lac under section 544-A, Cr.P.C. And in default thereof the accused will further suffer six months. Both the sentences shall run concurrently. The accused is given the benefit of section 382-B, Cr.P.C...."
Assailing the above convictions and sentences, Ishtiaq Masih (appellant) has filed the appeal in hand.
2. Precisely, the prosecution story as set out in the FIR (Exh.PA/1) registered on the written application (Exh.PA) of Rehmat Masih, complainant (P.W.5) is that he was resident of Chak No,8/J.B.
Abadi Mehboob Town and a labourer. On 23-11-2007 at noon time, the complainant along with his son namely Irfan Masih alias Sohni and his paternal nephew (bhatija) Saleem Masih son of Ismail Masih was present in his house. Ishtiaq Masih alias Bobi son of Sundas Masih (appellant), caste Christian, resident of Mehboob Town came to their house and called Sohni son of the complainant.
Sheroon Masih son of Inman Masih, paternal son of the complainant aged about 5/6 years went out and within their view, proceeded along with Ishtiaq Masih alias Bobi (appellant) to his house.
Since Ishtiaq alias Bobi (appellant) used to visit the house of complainant, therefore, the child (paternal son of complainant) had been playing with him. When the child did not return home after a long delay, the complainant party started his search and asked from Bobi (appellant) who showed his ignorance. The complainant party searched the child in other vicinities but could not succeed. After a week on 1-12-2007, the complainant along with his paternal nephew namely Saleem Masih, Imran and Irfan alias Sohni sons of the complainant went to the house of Ishtiaq alias Bobi (appellant) and asked about Sheroon child, who firstly gave wrong statements and then told that he after committing sodomy with Sheroon, murdered him and hid his dead body in the room of an abandoned ehata of Mehboob Town. The complainant party reached there and found a plastic bag containing dead body of Sheroon child.
3. Javed Tariq, S.I. (P.W.7) was posted at Police Station Nishatabad District Faisalabad. On 1-12-2007, the complainant produced an application (Exh.PA) before him. He recorded police proceedings thereon and sent the same to police station through Allah Wassia constable for registration of formal FIR (Exh.PA/1). On the same day, investigation of this case was entrusted to Muhammad Hussain, S.I. (P.W.10). He perused the police file and proceeded to the spot where he inspected the dead body of Sheroon Masih (deceased). He prepared injury statement (Exh.PF), inquest report (Exh.PG) and handed over the dead body to Muhammad Nawaz No,4796/C (P.W.11) for autopsy.
Then the I.O. Prepared rough site plan (Exh.PJ) of the place of occurrence. He also secured plastic sack (P.2) during the inspection of dead body which was taken into possession vide recovery memo. (Exh.PB). On 2-12-2007, Muhammad Nawaz Constable (P.W.11) produced last worn clothes of the deceased viz shirt (P.3) and pant (P.4), which were taken into possession vide recovery memo (Exh.PK). Muhammad Nawaz Constable also produced one sealed phial which was taken into possession vide recovery memo (Exh.PM). On 3-12-2007 he summoned Aurangzeb Draftsman (P.W.8), who took rough notes of the place of occurrence. On 4-12-2007, the I.O. Arrested Ishtiaq Masih alias Bobi (appellant). On 5-12-2007, Aurangzeb Draftsman (P.W.8) prepared scaled site plan (Exh.PD and Exh.PD/1). On 10-12-2007 Ishtiaq Masih (appellant) got recovered chhurri (P.1) which was taken into possession vide recovery memo (Exh.PC). On 11-12-2007 Ishtiaq Masih (appellant) was sent to judicial lock. Thereafter, the investigating officer got prepared the report under section 173, Code of Criminal Procedure and submitted the same in the court of competent jurisdiction.
4. The appellant was summoned by the learned Additional Sessions Judge, Faisalabad to face the trial. Copies of relevant documents were provided to him as required under section 265-C, Code of Criminal Procedure. Formal charge under sections 302 and 377, P.P.C. Was framed against the appellant on 24-6-2008, to which he pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined eleven witnesses, in all. Learned Deputy District Public Prosecutor gave up P. Ws. Irfan Masih, Imran Masih, Aftab Masih and Mukhtar Masih being unnecessary and closed the case of prosecution vide statement dated 16-10-2008. Statement of the appellant, under section 342, Code of Criminal Procedure was recorded on 20-10-2008, where in he refuted all the allegations of the prosecution. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, Ishtiaq Masih alias Bobi(appellant) stated as under:-- "I am innocent. It was a blind murder. I never went to the house of complainant to meet Irfan alias Soni nor I have any concern with him. The deceased was done to death by some unknown person or persons and I have been involved in this case merely on suspicion. Neither the witnesses contacted me nor I made any confession about the murder of Sheroon Masih. Similarly, I did not go with them to point out the place of dead body. I had been made accused as an escape goat. It was in the knowledge of the I.O. That the occurrence had been committed by unknown person or persons but he just to show his performance to his high-ups and to please the complainant party, booked me in this case, otherwise I have no concern whatsoever with the commission of this offence."
The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor produced any evidence in his defence. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence this appeal.
5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of eight days in reporting the matter to the police as the incident allegedly took place on 23-11-2007 whereas the FIR was lodged on 1-12-2007 without any satisfactory explanation; that there is much difference of age between the appellant and the deceased and it is not understandable as to why the deceased accompanied the appellant in presence of his elders and they did not stop the deceased; that there is no rapot on the file of the case about informing the police prior to the registration of FIR and as per own admission of the complainant during his cross-examination, he did not show any suspicion on anybody before the police; that the complainant further stated during his cross-examination that he went to the house of the appellant but did not complain to the parents of the appellant; that there is contradiction between the statements of Rehmat Masih, complainant (P.W.5) and Saleem Masih (P.W.6) because the complainant stated during his cross-examination that he opened the bag and pulled out the dead body whereas Saleem Masih (P.W.6) stated during his cross- examination that the police pulled out the dead body from the bag; that the complainant made material improvements before the learned trial court during his cross-examination to strengthen the prosecution case. So far as the extra-judicial confession allegedly made by the appellant is concerned, learned counsel contends that the same carries no value because there was no reason for the appellant to make such confession because at that time, there was no evidence against the appellant regarding his involvement in this crime and none of the witnesses of extra-judicial confession enjoyed any social status/authority prompting the appellant to make such a confession before them; that the recovery of dead body of the deceased was not effected at the instance of the appellant rather it was recovered from a deserted ehata of Mehboob Town on 1-12- 2007, prior to the registration of the case and even as per statement of the complainant during his cross-examination, the dead body was recovered from an ehata consisting of two portions, one owned by Pervaiz Masih (P.W.3) and the other by Padri Saleem. So far as recovery of chhurri (P1) allegedly at the instance of the appellant is concerned, learned counsel contends that the same is inconsequential as the chhurri (P1) was not stained with blood and as such, no report of Chemical Examiner and Serologist is available on the record as far as this recovery is concerned; that the medical evidence is a supportive piece of evidence and relevant only if the primary evidence i,e, ocular account inspires confidence which is not the situation in this case; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
6. The complainant, present in Court, states that because of financial constraints, he is not in a position to engage a learned counsel and would be satisfied with the arguments of learned Deputy District Public Prosecutor.
7. On the other hand, learned Deputy Prosecutor General, assisted by the complainant, vehemently opposes this appeal on the grounds that the complainant has no enmity with the appellant to falsely implicate him in this case; that the complainant reasonably explained the delay in his application (Exh.PA) that they kept on searching the deceased in different areas and further explained before the learned trial court that on the next day i,e, 24-11-2007, they reported the matter to the police at Police Post Mirranwala Bangla about the missing of the deceased; that moreover, the delay in such like cases is not material; that the appellant made extra-judicial confession before Rehmat Ali, complainant (P.W.5), Saleem Masih (P.W.6), Imran Masih (given up P.W.) and Irfan Masih alias Sohni (given up P.W.) about the commission of offence; that the recovery of dead-body as well as chhurri (P1) was effected at the instance of the appellant; that the appellant was found involved during the course of investigation; that the case of prosecution is fully supported by the medical evidence; that if all these pieces of evidence are taken into consideration, then irresistible conclusion would be that it was the appellant who committed the occurrence.
8. I have heard arguments of learned counsel for the petitioner as well as learned Deputy District Public Prosecutor to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
9. Important points involved in this case are as under:-
(a) It is case of the prosecution that on 23-11-2007 at noon time, the complainant along with his son namely Irfan Masih alias Sohni (given up) and paternal nephew (bhatija) Saleem Masih (P.W.6) was present in his house when Ishtiaq Masih alias Bobi (appellant) came to their house and called Sohni son of the complainant. Sheroon Masih (deceased) went out and within their view, proceeded along with Ishtiaq Masih alias Bobi (appellant) to his house. As per police record, the age of the appellant was 22/23 years at the time of occurrence whereas the deceased was aged about 5/6 years. It is not understandable as to why the deceased accompanied the appellant and he was not stopped by his elders, who were present in the house at that time.
(b) This unfortunate incident, wherein Sheroon Masih (deceased) paternal son of the complainant was done to death, as per FIR (Exh.PA/1), took place on 23-11-2007 in Chak No,8/JB within the jurisdiction of Police Station Nishatabad District Faisalabad. The matter was reported to the police by Rehmat Masih, complainant (P.W.5) on 1-12-2007 i,e, after eight days of the occurrence. It has been noted that the distance between the Police Station and place of occurrence is eight kilometers. There is no satisfactory explanation as to why the matter was not reported to the police earlier. In this regard, following portion of cross-examination of the complainant is relevant and the same is reproduced here under:-- "On the next day, on 24-11-2007, we reported the matter to the police about the missing of the deceased to the police post Mirranwala Bangla. At that time we did not raise any suspicion against anybody before the police...."
Though there is no rappat on the file of the case about informing the police prior to the registration of FIR but the complainant has stated before the learned trial Court during his cross examination that he did not show any suspicion on anybody before the police. The complainant further stated during his cross-examination that he went to the house of the appellant but did not complain to the parents of the appellant. Therefore, this inordinate delay in reporting the crime to the police casts serious doubt about the veracity of prosecution case.
(c) There is also contradiction between the statements of Rehmat Masih, complainant (P.W.5) and Saleem Masih (P.W.6) as the complainant stated during his cross-examination that he opened the bag and pulled out the dead body whereas it is in the statement of Saleem Masih (P.W.6) during his cross-examination that the police pulled out the dead body from the bag. Moreover, the complainant made material improvements before the learned trial Court during his cross- examination to strengthen the prosecution case, which are reproduced here under:- "...At the time of recording Exh.PA I informed the police that I already got lodged a Rapt at above said police post on 24-11-2007. Confronted with Exh.PA where it is not so recorded..."
"...The police again came at the place of occurrence at 8-00 p:m. At the first visit of the police, the accused was handed over by us to the police. I narrated the story of confession and the accompany of the accused towards place of recovery to the police confronted with Exh.PA where it is not so recorded."
(d) So far as extra-judicial confession allegedly made by the appellant before Rehmat Ali, complainant (P.W.5), Saleem Masih (P.W.6), Imran Masih (given up P.W.) and Irfan Masih alias Sohni (given up P.W.) is concerned, it may be observed here that there was no occasion for the appellant to make such confession before these witnesses because at that time, there was no evidence against the appellant regarding his involvement in this crime and none of the witnesses of extra- judicial confession enjoyed any social status/authority prompting the appellant to make such a confession before them. Even otherwise, extrajudicial confession is always considered a weak type of evidence. The question of evidentiary value of the extra-judicial confession 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 SCMR 231), where in, 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 v. 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 consequence upon purely in the background of a human conduct.
(2) 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 extra-judicial 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 extra-judicial 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 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 Javed v. The State" (2009 SCMR 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 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683, (4) Sarfraz Khan v. The State and others 1996 SCMR 188."
In light of the above discussion, I am of the view that the evidence of extra-judicial confession in the instant case is not worthy of reliance.
(e) It has also been noted that the recovery of dead body of the deceased was not effected at the instance of the appellant rather it was recovered from a deserted ehata of Mehboob Town on 1-12- 2007, prior to the registration of the case. The said place of recovery was never owned by the appellant and as per statement of the complainant during his cross-examination, the said ehata consisted of two portions, one owned by Pervaiz Masih (P.W.3) and the other, by Padri Saleem.
(f) So far as recovery of chhurri (P1) allegedly at the instance of the appellant is concerned, the same is not helpful for the prosecution because the chhurri (P1) was not stained with blood and as such, no report of Chemical Examiner and Serologist is available on the record.
(g) So far as the medical evidence is concerned, it is well established law that it is, at the most, a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of the injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailant. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599). Even otherwise, it is relevant only if the primary evidence i,e, ocular account inspires confidence, which is not the situation in this case.
10. From the above discussion, I feel no hesitation to observe that the prosecution has not been able to prove its case against Ishtiaq Masih alias Bobi (appellant) through confidence inspiring and straightforward ocular account and the case of prosecution is doubtful in nature, therefore, the appellant is entitled to the benefit of doubt not as a matter of grace but as of right. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble apex Court has been pleased to observe as under:-- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
11. For the foregoing reasons, the appeal in hand is allowed, convictions and sentences awarded to Ishtiaq Masih alias Bobi (appellant) vide judgment dated 6-11-2008 passed by the learned Additional Sessions Judge, Faisalabad are set aside and the appellant is acquitted of the charge of commission of sodomy and murder of Sheroon Masih (deceased) while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.