Abdul Sami Khan, J: Through this appeal under section 410 Cr.P.C. Muhammad Jamil appellant has assailed the judgment dated 28.05.2009 passed by learned Additional Sessions Judge Kamalia District Toba Tek Singh in case FIR No.609/2007 dated 06.12.2007, under sections 302, 377 PPC, Police Station Pir Mahal, whereby the appellant was convicted under Section 302(b) PPC and was sentenced to undergo imprisonment for life alongwith compensation under section 544-A Cr.P.C. to the tune of Rs.100,000/- to be paid by him to the legal heirs of Hamza Ilyas deceased or in default thereof to further undergo six months S.I. He was also convicted under section 377 PPC and was sentenced to undergo imprisonment for life alongwith fine of Rs.50,000/- in default thereof to further undergo six months S.I. Both the sentences were ordered to run concurrently and the benefit of section 382-B Cr .P.C. was also extended to the appellant.
2. The prosecution story set forth in FIR (Ex.PH/1) is reproduced below:- "Muhammad Ilyas, father of Hamza Ilyas deceased victim, was resident of Chak No.720/G.B. and was running the shop of electrician at Adda Wahgi. On 05.12.2007, he went to his shop as per routine while his wife and children were present in the house. At about 05:00 p.m. when he came back to his house, his wife told him that his son Hamza Ilyas aged 4 years was with her at about 04:30 p.m. when she went to fetch milk from the dera and when she was returning from the dera, Hamza Ilyas was playing there. She asked him to accompany her but he insisted to play there. After sometime, Hamza Ilyas did not come back to his house, therefore, they started searching him but in vain. They also made announcements through loudspeaker of mosque. On 06.12.2007, they again started searching Hamza Ilyas alongwith Muhammad Aslam and Muhammad Ramzan and found his dead body in the sugarcane crop of Muhammad Altaf Hussain.
3. The FIR in this case was registered on the next day of occurrence i.e. 06.12.2007 and after registration of FIR, investigation of the case was entrusted to Khalid Jamil S.I. During the course of investigation, the complainant got recorded his supplementary statement implicating Muhammad Jamil appellant in the instant case. After completion of the investigation, the report under section 173 Cr.P.C. was submitted before the Court, wherein, after observing legal formalities as provided in the Criminal Procedure Code, 1898, the learned trial court framed charge against the appellant, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case against the appellant examined thirteen witnesses before the learned trial Court. Muhammad Ilyas (PW-11) is the complainant of this case and he also deposed regarding extrajudicial confession, Muhamma d Shabbir (PW-7) alongwith Salam Din (PW-8) are the witnesses of last seen, while Muhammad Abbas (PW-9) and Muha mmad Ashraf (PW-10) are the witnesses of extrajudicial confession. Medical evidence has been furnished by Dr.Muhammad Azam Athar Gill (PW-5), who conducted postmortem examination on the dead body of Hamza Ilyas deceased. Khalid Jamil S.I. appeared before the learned trial Court as PW-12 and stated about various steps taken by him during the course of investigation. The remaining prosecution witnesses are formal in nature.
4. After completion of the prosecution evidence, the learned trial Court went on to record the statement of appellant as required under section 342 Cr.P.C. wherein he controverted the allegations leveled against him by the prosecution and professed his innocence. He did not opt to make statement on oath under section 340(2) Cr.P.C. to disprove the allegations leveled against him, however , produced Ex.DA to Ex.DJ in his defence.
5. Upon culmination of trial, learned trial Court found the case against the appellant to have been proved beyond any reasonable doubt, thus, convicted and sentenced him as mentioned and detailed in paragraph No.1 above. Hence, the instant appeal before this Court.
6. Learned counsel for the appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt, hence, the appellant deserves clean acquittal. On the other hand, learned Deputy Prosecutor General contended that the prosecution has amply proved the case against the appellant beyond any reasonable doubt, the impugned judgment does not call for any interference by this Court, so the conviction and sentences of the appellant be maintained and his appeal be dismissed.
7. I have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance. As per FIR (Ex.PH/1), the occur rence took place on 05.12.2007 at evening time and the matter was reported to the police by Muhammad Ilyas complainant (PW-11) by way of recording his statement under section 154 Cr.P.C. (Ex.PH) before Khalid Jamil S.I. (PW-12) on the next day i.e. 06.12.2007 at 02:15 p.m. in consequence of which FIR (Ex.PH/1) was lodged at Police Station Pir Mahal, District Toba Tek Singh at 02:45 p.m. The place of occurrence is at a distance of about twelve kilometers from the police station. There is a delay of more than twenty hours in reporting the matter to the police, but even then the appellant is not named therein as the culprit of the occurrence and in this eventuality , FIR (Ex.PH/1) does not render any sort of corroboration to the case of the prosecution.
8. It would not be out of place to mention here that Muhammad Ilyas complainant got recorded his supplementary statement on the third day of occurrence i.e. 07.12.2007, wherein he showed suspicion about the involvement of Muhammad Jamil appellant in the instant case. Besides Muhammad Jamil appellant, he also implicated Waqas Ali, Qurban Ali, Muhammad Baqar , Bagga one after the other . On 11.01.2008, Muhammad Ilyas complainant got recorded another supplementary statement, wherein he formally nominated Muhammad Jamil appellant as the culprit of the offence. Now coming to the prosecution evidence, it has been observed that the prosecution has tried to establish its case against the appellant through the statements of the witnesses of last seen namely Muhammad Shabbir (PW-7) and Salam Din (PW-8), witnesses of extrajudicial confession namely Muhammad Abbas (PW-9), Muhammad Ashraf (PW-10) and Muhammad Ilyas complainant and the medical evidence furnished by Dr.Muhammad Azam Athar Gill (PW-5). I first discuss the last seen evidence. The prosecution has examined Muhammad Shabbir (PW-7) and Salam Din (PW-8) to prove that on the day of occurrence at about 05:00 p.m. Hamza Ilyas deceased was seen by them in the compa ny of Muhammad Jamil appellant.
During their statements before the learned trial Court as PW-7 and PW-8, both these witnesses maintained that they had seen Hamza Ilyas deceased child in the company of appellant near sugarcane field on 05.12.2007, whereas they came to know about his murder on 10.01.2008 and on 11.01.2008, they joined the investigation and got recorded their statements under section 161 Cr.P.C. This is very strange claim of the witnesses of last seen as it would not appeal to any man of prudent mind especially under the circumstan ces when they as well as the complainant and the appellant reside in the same village and also when the investigation was being conducted by Khalid Jamil S.I. (PW-12) at a wider range by joining number of people from the vicinity , the witne sses of last seen were not even aware of such an unfortunate incident for a considerable period of thirty five days. Muhammad Shabbir (PW-7) and Salam Din (PW-8) did not furnish any explanation as to why they had kept mum for such a long period of one month and five days and had not informed the complainant or the investigating officer in time. In the backdrop of such an eventuality , the statements of Muhammad Shabbir (PW-7) and Salam Din (PW -8) in respect of last-seen evidence lost reliability to put a worthy reliance upon the same.
9. So far as the evidence of extrajudicial confession is concerned, the statements of Muhammad Abbas (PW-9), Muhammad Ashraf (PW-10) and Muhammad Ilyas complainant (PW-11) are relevant in this regard. According to these witnesses, they were present in "panchait" convened in the village on 10.01.2008, where Muhammad Jamil appellant confessed his guilt in their presence, but astonishingly none of them as well as the members of "panchait" tried to apprehend the appellant. Muhammad Abbas (PW-9) is the real paternal uncle of the deceased child, whereas Muhammad Ilyas complainant (PW-11) is his real father and there is no explanation on record as to why they did not attempt to capture the appellant at the time of his alleged extrajudicial confession and even did not report the factum of alleged extrajudicial confession to the police on 10.01.2008. Even otherwise, the appellant had already joined the investigation of the instant case immediately after the supplementary statement of Muhammad Ilyas complainant (PW-11) dated 07.12.2007, he recorded his first version before the investigating officer, wherein he pleaded innocence and showed willingness for his D.N.A. test. In these eventualities, the story introduced by Muhammad Abbas (PW9), Muhammad Ashraf (PW-10) and Muhammad Ilyas complainant (PW-11) about extrajudicial confession of the appellant seems improbable. Even otherwise, extrajudicial confession is a very weak type of evidence and the same obviously needs impartial/strong corroboration from other independent sources which is missing in this case. The evidentiary value of the extrajudicial confession came up for consideration before Hon'ble Supreme Court of Pakistan in the case of "Sajid Mumtaz and others Vs. Basharat and others"
(2006 SCMR 231 ), wherein, at page 238, the Apex Court of Pakistan observed as under: - "17. ......This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions staring 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 confession cannot but be true". As, an extrajudicial 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 entailing capital punishment should at all confes s. 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 Cour t, 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 regre t that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. 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".
To fortify the above view, I have moved my attention to the case of "Tahir Javed versus The State" (2009 SCMR 166) wherein, at page 170, the August Supreme Court of Pakistan was 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 Ahmad v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extrajudicial 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 ."
Keeping in view the guidelines given by Hon'ble Supreme Court of Pakistan in the above mentioned judgments, I palpably discard the evidence of extrajudicial confession manufactured by the prosecution to strengthen its case.
10. Insofar as medical evidence is concerned, the dead body of Hamza Ilyas was recovered from the sugarcane on 06.12.2007 and on the same day, Dr. Muhammad Azam Athar (PW-5) conducted its postmortem examination who opined that the deceased was subjected to sodomy and the cause of his death was smotherin g by hands on nose and mouth or clothes or plastic bag which was sufficient to cause death in ordinary course of nature due to asphyxia and respiratory failure. The prosecution had also relied upon report of Chemical Examiner according to which the anal swabs of the deceased were stained with semen. Howeve r, there is no report of DNA on the file so as to positively connect the appellant with the occurrence. I would like to observe here that although medical evidence is in conformity with the prosecution case to the extent of commission of sodomy and the manner in which Hamza Ilyas deceased was murdered, but it alone would not be sufficient to connect the appellant with the commission of offence. Reliance can be placed on the case of "Muhammad Tasaweer versus Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another versus The State" (2009 SCMR 1410 ) and "Altaf Hussain versus Fakhar Hussain and another" (2008 SCMR 1103). In the absence of trustworthy and confidence inspiring evidence of last seen and extrajudicial confession, medical evidence does not bear any significance.
11. The circumstantial evidence provided by the prosecution against the appellant has already been discarded in discussion made in preceding paragraph. In criminal case, the chain of circumstances should be so strong and solid that one circumstance should start right from the toe of the deceased and the same should encircle a dense grip around the neck of the accused on the other end. A slight break in the chain of circumstances would definitely make the grip of chain loose and also breaks the geometrical progression of the chain especially when the same has been built up on the basis of feeble or shaky evidence. In this regard, guidance has been sought from the cases of "Asadullah and another versus State and another" (PLJ 1999 SC 1018) and "Ch. Barkat Ali versus Major Karam Elahi Zia and antoher" (1992 SCMR 1047 ), wherein, Hon'ble Supreme Court of Pakistan has been pleased to observe as under:- "9. ...Law relating to circumstantial evidence is that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See "Siraj v. The Crown" PLD 1956 FC 123. The prosecution evidence in this case was of the deceased last seen with the accused and from the latter was recove red a handle of the hatchet blood stained and he was absent from the forest after the murder . The learned Federal Court held that the evidence was not sufficient and the accused was acquitted. In the case of "Karamat Hussain v. The State " 1972 SCMR 15 it was laid down that "In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused."
The same view has been rendered by Hon'b le Supreme Court of Pakistan in case of "Sarfraz Khan versus The State and 2 others" reported as ( 1996 SCMR 188 ), wherein it has been observed as under:- "7. ...it is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence..."
Guidance can also be sought from the case of "Altaf Hussain versus Fakhar Hussain and another" reported as (2008 SCMR 1103) wherein, at page 1 105, Hon'ble Supreme Court has held as under:- "7. Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain."
12. From the contents of FIR it is crystal clear that it was a brutal, yet blind murder of an innocent child aged about 4 years, who was first subjected to sodomy and then he was murdered and his dead body was thrown in the sugarcane field.
According to the prosecution' s own case the dead body of the deceased had allegedly recovered by the complainant and the appellant had not been associated in recovery of dead body from sugarcane field. It is evident from record that the relationship of appellant' s family never remained cordial with the complainant party . Muhammad Abbas (PW-9) and Muhammad Ilyas complainant (PW-11) are maternal uncles of Muhammad Jamil appellant and are real brothers of his mother Mst. Shahida Parveen, who admittedly contracted marriage with Abdul Salam, father of the appellant, against the consent and wishes of her parents. Similarly it is also admitted by Muhammad Abbas (PW-9) that prior to the present occurrence, Muhammad Ilyas complainant (PW-11) leveled allegation of theft of 6 tola gold ornaments against Mst. Shahida Parveen. There is also no denial of the fact that Muhammad Ilyas complainant (PW-11) on 07.01.2008 submitted application against the appellant, his parents and sister that they had murdered Hamza Ilyas deceased at the abetment of Javed, brother of the appellant. Apart from the above, the defence has also brought on record the fact that as many as eight persons including PW-8 Salam Din (witness of last seen) and PW-9 Muhammad Abbas (witness of extrajudicial confession) sworn their affidavits (Mark-A to MarkF), wherein they stated that Abdul Salam, father of present appellant, has admitted his guilt for the murder of Hamza Ilyas deceased by making confession in the "panchait". It is settled law that not many circumstances creating doubt in the prosecution story are required but only one circumstance creating doubt in the prosecution story is enough to acquit the accused, whereas the instant case is replete with number of circumstances which have created serious doubt about the prosecution story . Reliance can be placed on the case of "Tariq Pervez versus The State" ( 1995 SCMR 1345 ), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "5. ...The concept of benefit of doubt to 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, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
It is also universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favou r of the accused not as a matter of grace, but of right. In "Ayub Masih vs. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Prophet (PBUH) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court of our country 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 vs. 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".
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram versus The State" ( 2009 SCMR 230 ) observed as under:- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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 SCMR 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".
13. The upshot of our discussion made above is that the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. This appeal is, therefore, allowed and the appellant is acquitted of the charge by extending benefit of doubt to him. He is on bail, his surety stands discharged from the liability of surety bonds.