Khalid Mahmood Malik, J.-This judgment shall dispose of above titled Murder Reference No, 60/2011, Criminal Appeals Bearing No, 470/2011 & 471/2011 as all have emanated out of the same judgment dated 18.11.2011.
2. These criminal appeals are directed against judgment dated 18.11.2011, passed by learned Addl.
Sessions Judge, Haroonabad, whereby appellants Abid Hussain s/o Sher Muhammad, Muhammad Abid s/o Abdul Sattar and Muhammad Javed s/o Abdul Sattar were convicted in case FIR No, 281/2011, dated 21.06.2011, under Sections 302/34, PPC, registered at Police Station Faqir Wali, Haroonabad and sentenced in the following manner:--
(i) U/S. 302(b). PPC "Abid s/o Sher Muhammad is sentenced to death as Tazir. He will pay Rs, 1,00,000/- as compensation to legal heirs of Shahid Zia, in default thereof, he will suffer six (6) months S.I.
Whereas accused Muhammad Abid and Muhammad Javed are sentenced to imprisonment for life each, they will pay Rs, 1,00,000/- each to, legal heirs of deceased, in default thereof, they will suffer - six(6) months S.I.".
3. Murder Reference No, 60/2011 has been sent by the learned trial Court seeking confirmation of death sentence or otherwise awarded to appellant Abid s/o Sher Muhammad.
4. The facts of the case as narrated by Farkhanda, complainant (PW-4) in her statement before trial Court and same statement is hereby reproduced for narration of the facts:-- "My deceased husband Shahid Zia was lumberdar/Sarbrah of the village. Our agricultural land is situated near canal of Chak No, 124/6-R. Abid Hussain and Javed sons of Abdul Sattar and Abid s/o Sher Muhammad were private servants of my husband who were working in the land. During intervening night of 20/21.6.2011 it was turn of water of us from 6.30 p.m. To 5.50 a.m. My husband alongwith above-said private servants started irrigation our land and came to house at 8.00 p.m.
Leaving servants on land and again at 11.00 p.m. Went to the land to watch his servants. At about 2.30 a.m. Abid Hussain s/o Sher Muhammad came to house of my husband's elder brother Zahid Qamar and told him that someone had committed the murder of my husband Shahid Zia. Elder brother of my husband informed me about it. I in the company of my elder son Asad Shahid and Zahid Qamar elder brother of my husband went to our land and saw that my deceased husband was lying on a cot and there was a sign of wound on his temporal region and he also noticed abrasion on his neck and a wound on the little and ring finger of his right hand. Receiving information about the occurrence, Naeem Nasir and Farooq Iqbal PWs also reached there. Abid Hussain s/o Sher Muhammad accused told us that he alongwith his companions mentioned above was irrigating land at a distance of 3 acres from the cot of the deceased when a car came from Faqir Wali side and the driver of the car stopped his car near the cot of my deceased husband and after 20/25 minutes the driver took his car towards Fortabbas side. He further told us that after that they came the cot of the deceased and saw that Khais/Chadar was on the person of my husband and he was lying dead. I moved application Ex:PB against four unknown culprits which bears my signature.
' On 25.6.2011 Zahid Qamar elder brother of my husband in the company of Nazar Hussain PW came to my house and told me that accused Abid Hussain, Muhammad Abid and Muhammad Javed present before Court, have confessed before them that they have committed the murder of my husband. I in the company of Nazar Hussain and Zahid Qamar went to police station and submitted another application Ex:PB/1 nominating the present accused as culprits which also bear my signature."
5. After registration of the case, investigation started and on completion of investigation, challan was submitted before the learned trial. Court and learned trial Court, after observing legal formalities, framed the charge against the appellants to which they pleaded not guilty and claimed trial. The prosecution evidence was summoned. In support of its version, prosecution, examined Safdar Hussain 94/C (PW1), Saraj Munir (PW-2), Binyamin 1303/C (PW-3), Farkhanda, complainant (PW-4), Zahid Qamar (PW-5), Nazar Hussain (PW-6), Dr. Muhammad Anwar M.0 THQ Hospital Haroonabad (PW-7), Ehsan-ulHaq, Patwari Halqa (PW-8),, Abbas Ali S.I (PW-9), Farooq Ahmad (PW-10), Ali Akbar 521/C (PW-11), Obaid-ur-Rehman (PW-12), Majid Iqbal S.I (PW-13) and Amjad Ali 611/HC (PW-14). Learned Prosecutor after tendering report of Chemical Examiner regarding Kassi (Ex:PP), report of Serologist (Ex:PP/1), report of Chemical Examiner regarding blood stained earth (Ex:PQ), report of Chemical Examiner regarding shoes (Ex:PR), report of Serologist regarding shoes and earth Ex:PQ-1 and closed prosecution evidence. Thereafter the appellants/convicts were examined under Section 342, Cr.P.C. And the entire evidence produced by the prosecution has put to them in shape of questions, which they termed as incorrect. In reply to a question that why this case against them and why PWs have deposed against them, the appellants replied as under:-- ' "Complainant as well as PWs falsely implicated us in this case as they are related inter-se."
' In reply to a question that have you anything else to say, appellants unanimously replied that they are innocent. In-fact it was a blind murder. No one had witnessed the occurrence of murder: Deceased was having enmity with different people of the locality. Some unknown culprits had committed murder of deceased due to their personal grudge. They have no motive to commit his murder as they (Muhammad Abid & Muhammad Javed) were not his servant whereas Abid Hussain was his obedient servant. Police could not arrest real culprits as it was blind murder and falsely involved them to show efficiency. The appellants opted not to produce defence evidence and not to make their statements under Section 340(2), Cr.P.C.
6. It has been argued by learned counsel for appellants that there is no direct evidence in instant case to connect appellants with the alleged murder occurrence; that police in-collusion with the complainant party created false evidence of last seen and extra judicial confession made by appellants; that there are material contradictions in the statements of PWs; that fake recoveries have been planted against appellants; that learned trial Court did not appreciate the evidence in its true perspective; that prosecution has failed to prove its case against appellants beyond any shadow of doubt. Lastly, he prayed that conviction and sentence awarded by learned trial Court may be set-aside.
7. Conversely, learned D.P.G assisted by learned counsel for complainant has maintained that prosecution has been succeeded in proving the guilt of appellants through cogent and confidence inspiring evidence in shape of circumstantial evidence i.e, last seen evidence, extra judicial confession and recovery of weapon of offence i.e, Kassi, mobile phone, torch light and "Safa" of deceased; that PWs have no previous enmity with appellants/accused; that appellants/accused have taken specific plea that unknown persons had committed murder of deceased Shahid Zia but they have failed to discharge the onus as they have not produced any defence evidence.
8. We have heard arguments of learned counsel for parties and with their able assistance scanned the evidence available on record,
9. The prosecution case is chiefly based on extra judicial confession, last seen evidence, recoveries and medical evidence. Unfortunately the occurrence in this case was unseen. Initially, nobody was named or suspected in FIR but subsequently, appellants/accused were nominated as culprits in the application Ex:PB/1 moved by complainant with the allegation that on 25.6.2011 Zahid Qamar elder brother of her husband in the company of Nazar Hussain(PW-6) came to her house and told that accused Abid Hussain, Muhammad Abid and Muhammad Javed have confessed before them that they have committed murder of her husband. It is the case of prosecution that on 25.6.2011, appellants Abid Hussain, Muhammad Abid and Muhammad Javed have made extra judicial confession before Zahid Qamar (PW-5) and Nazar Hussain (PW-6). Zahid Qamar (PW-5) deposed that on 25.6.2011 Nazar Hussain PW was present in his "Baithak" when all the accused present before the Court came there and they started weeping and on his. Asking Abid Hussain -s/o Sher Muhammad told them that he alongwith his co-accused had committed the murder of his brother Shahid Zia. Narrating the detail of occurrence Abid told them that Shahid Zia used to snub him and there was also a dispute between him and deceased over the wages and due to this grudge finding an opportunity when deceased was sleeping on his cot present at Square No 105 on the corner of Kilas No 9 & 12 near the water channel launched murderous assault upon him with Kassi hitting the neck of the deceased and he also received injury, on his ear. He further told that deceased had passed away immediately. He further told that after committing the murder of Shahid Zia he with the help of co-accused namely Abid Hussain and Javed shifted cot of the deceased at Square No, 105 Kila No, 5 near a constructed room/Dera. Remaining two accused also stated on the same line. Nazar Hussain (PW-6) deposed in the same lines as depicted by Zahid Qamar (PW-5). From their statements, it appears that all the appellants/accused made alleged extra judicial confession jointly. Unfortunately occurrence had taken place on 21.6.2011 at 1/1.30 a.m.
(night). As per prosecution Abid Hussain and Javed accused were the employee of Shahid Zia (deceased): Abid Hussain appellant/accused informed about the occurrence to Zahid Qamar, brother of deceased. Accused persons had participated in "Namaz- e-Janaza" and "Qul" ceremony of deceased. These facts have admitted by Zahid Qamar (PW-5) and Nazar Hussain (PW-6) in their cross-examination. PWs are close relatives of the deceased and complainant. They did not try to apprehend the accused persons after their confession. Both the PWs alongwith complainant went to Police Station. Met. Farkhanda, complainant (PW-4) moved an application (Ex:PB/1) with regard to alleged extra judicial confession and nominated the appellants/accused as culprits. In cross-examination, she stated that Ex:PB/1 was written at Police Station by the police official but she did not know his name. She further admitted that her signature. On second application (Ex:PB/1) was obtained on blank paper and writing of Ex:PB/1 was made later on. The prosecution has not adduced any evidence to show that appellants/accused were motivated by any particular event which compelled them to go and make confession. It is held by the Apex Court in various judgments that extra judicial confession is weak type of evidence and such like confession can easily be procured whenever direct evidence of crime is not available and now it is well settled law that until and unless extra judicial confession is not corroborated by any other independent piece of evidence, no reliance'can be placed on it coupled with the fact that joint extra judicial confession is inadmissible in evidence. Therefore, it would not be safe to maintain conviction of appellants on the basis of such type evidence. Reliance is placed upon cases titled "Sajid Mumtaz and others versus Basharat and others" (2006 SCM R 231), "Sarfraz Khan vs. State and 2 others" (1996 SCM R 188); "Nizam-ud-Din versus The State" (2010. P Cr. L.J 1730). And "Imran alias Dully and another versus The State and others" (2015 SCM R 155).
10. To prove last seen evidence, prosecution examined Obaidur-Rehman (PW-12), who deposed that during night between 20/21.6.2011, they were going to Faqir wan from Yatim Wala on their Dala.
When they reached near Jadugar Morh where and of Shahid Zia Lumberdar is situated and there is a water tap on road side. They stopped their vehicle as it needed water. They saw that Abid Hussain, Muhammad Abid and Muhammad Javed accused present in Court were carrying a cot and were corning from road side from trees of euclipts. Upon their query, they told that Shahid Zia is ill, they offered them the conveyance but they said that they have already arranged one. On 21.6.2011, they told this fact to widow of Shahid Zia in her house. She sent her son Asad with them to police station. In cross-examination, he stated that they did not see Shahid Zia lying on the cot, however, accused themselves told them about the presence of the deceased on the cot. Said Asad s/o complainant has not cited as a witness in this case while Mst. Farkhanda, complainant, (PW-4) did not utter a single word about last seen evidence which was allegedly told by Obaid-ur- Rehman (PW-12) to her. Obaid-ur-Rehman (PW-12) was not resident of the area where the occurrence took place.. His explanation about his presence at the place of occurrence at night time is not plausible. Thus the story of last seen furnished by Obaid-urRehman (PW-12) does not inspire confidence.
11. As per prosecution, on 14.7.2011, while in police custody Abid Hussain s/o Sher Muhammad made disclosure and got recovered blood stained "Kassi" P-3 from Square No, 104, Kila No, 17 in a deserted room which was taken into possession by Investigating Officer vide recovery memo. Ex:PC. On the same day Muhammad Javed s/o Abdul Sattar accused got recovered mobile phone (P-4) belonging to deceased from a room of his residential house lying in an iron Petti/box, which was taken into possession by Investigating Officer, vide recovery memo. Ex:PD. To prove these recoveries, prosecution had examined Zahid Qamar (PW-5) and Majjad Iqbal S.I/Investigating Officer (PW-13). As far as recovery of blood stained "Kassi" is concerned, it was allegedly recovered from deserted room situated in Square No, 104, -Kila No, 17 and is an accessible to everyone.
Prosecution has failed to establish that the said deserted room was exclusively in possession of Abid Hussain s/o Sher Muhammad. No independent witness has been cited from the locality. As far as mobile phone (P-4) allegedly recovered on the pointation of Muhammad Javed accused is concerned, it is common in nature and is easily available in market. There is nothing on record that alleged mobile phone was in the name of deceased. No proof of ownership was produced by the prosecution. Mere production of mobile phone does not mean that mobile phone (P-4) was owned by deceased. Same is the position of recovery of electric torch (Ex:P8). All these facts indicate thafalleged recovers are not above board and free of doubt.
12. So far as medical evidence is concerned, it is corroborative piece of evidence which makes the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used for causing such injury, but it cannot connect the accused with the commission of crime, up- till and until there is some other evidence, therefore, the medical evidence in this case is of no avail to prosecution. In this regard, reference may be made to the case reported as "Ohulant Muetafa and other vs. State" (PM 2010 SC 522).
13. Learned D.P.G vehemently argued that PWs have no previous enmity with the appellants/accused. Appellants/accused have taken specific plea that some unknown persons came on a car and committed murder of Shahid Zia (deceased) but none from the accused/appellants' side have appeared under Section 340(2), Cr.P.C. And did not produce any defence evidence. Thus appellants/accused have failed to discharge their defence taken by them.
These arguments have no force as the prosecution is bound. To prove its case beyond any shadow of doubt against the accused. In case titled "Azhar Iqbal versus The State" (2013 SCM R 383) the Apex Supreme Court of Pakistan held that the law is quite settled by now that if the prosecution fails to prove its case against an accused person, then the accused person is to be acquitted even if he had taken specific plea in his defence. No doubt PWs have no previous enmity with the accused/appellants but mere absence of enmity of the witnesses with the accused would not stamp their statements with truth. Reliance is placed upon case law titled "Muhammad Iqbal vs. Abid Hussain alias Mithu and 6 others" (1994 SCM R 1928).
14. Now it is an established principle of law that circumstantial evidence is a weak type of evidence and conviction can be based on such evidence only if the same is duly corroborative by such evidence which maintain a complete chain of circumstances directly relatable to each-other.
When any link in the chain is missing in case of a circumstantial evidence, it would not be safe to record conviction. Reliance in this respect is placed upon case titled "Munawar Shah vs. Liaquat Hussain and others"' (2002 SCM R 713) and "Sh. Muhammad Amjad vs. The State" (PLD 2003 SC 704).
The prosecution has failed to establish aforementioned principles in this case.
15. The nutshell of the above discussion is that the prosecution case is not free of doubts, benefit of doubt must accrue in favour of accused as the Hon'ble Supreme Court of Pakistan has held in case titled "Muhammad Khan and another vs. State" (PLJ 2000 SC 1041) that it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused. Moreover it is cordial principle of criminal jurisprudence that a single instance caused a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case law titled as "Muhammad Akram versus The State" {2009 SCM R 230). Reliance is also placed upon the case titled "Tariq Pervaiz vs. The State" (1995 SCM R 1345).
16. In the light of above discussed facts, we are of the view that prosecution has failed to prove its case against appellants beyond any shadow of doubt. Therefore, we accept instant criminal appeals and set aside convictions and sentences of appellants Muhammad Abid s/o Abdul Sattar, Muhammad Javed s/o Abdul Sattar and Abid Hussain s/o Sher Muhammad, awarded by learned trial Court vide impugned judgment dated 18.11.2011 and acquit them of the charge by extending them the benefit of doubt. Appellant Abid Hussain s/o Sher Muhammad is directed to be released forthwith, if not required in any other 'case. Whereas appellants Muhammad Abid s/o Abdul Sattar and Muhammad Javed s/o Abdul Sattar are on bail, therefore their sureties are discharged from the liabilities of their bail bonds. The death sentence awarded to the appellant Abid Hussain s/o Sher Muhammad is not confirmed. Murder Reference No, 60/2011 is answered in negative.