' MUHAMMAD TARIQ ABBASI, J. --- This single judgment shall decide the above-captioned Murder Reference as well as the appeals, as all are outcome of single judgment dated 28.8.2008, passed by the learned Additional Sessions Judge, Sangla Hill, District Nankana Sahib, whereby in a private complaint, filed by Mst. Rabia Bibi (hereinafter referred to as the complainant), Muhammad Munawar Hussain, Sajida Parveen and Washfa Noreen (hereinafter referred to as the appellants) have been convicted and sentenced in the following terms:- Muhammad Munawar Hussain ' Under Section 302(b), P. P. C. To death, with compensation of Rs, 1,00,000/-, payable to the legal heirs of deceased Arshad Mehmood, in default to further undergo simple imprisonment for six months.
Salida Parveen and Washfa Noreen ' Under Section 302, P.P.C. To imprisonment for life, each with compensation of Rs, 50,000/- each, payable to the legal heirs of the deceased, failing which to further undergo simple imprisonment for six months each, with benefit of Section 382-8, Cr. P. C.
2. The facts as narrated in the F.I.R. (Ex.PB) are that one Sultan Ahmad had got lodged F.I.R. No, 200, dated 9.7.2005 under Sections 302/109/34, P.P.C. At Police Station Sadar Sangla Hill, District Nankana Sahib, with the contention that his son Arshad Mehmood (deceased), alongwith his family members was residing in village Dugree, whereas he with his family was settled at Mohalla Abbas Park, Street No, 3, Faisalabad; on 8.7.2005, he, to meet his son Arshad Mehmood; came at Village Dugree; during the night between 8/9.7.2005 at about 1.00 a.m., when he, his son Arshad Mehmood deceased, daughter-in-law (Bahu) Sajida Bibi and grand-children were sleeping in Courtyard of the house, four unknown armed persons, while scaling the wall, attracted there and on gun-point got awakened him, his daughter-in-law and grand-children and threatened them to remain silent, otherwise, will be shot; his son Arshad Mehmood was still sleeping and an unknown armed person stood by him, whereas the other three took them (complainant party) in a room and confined them, with the contention that they would kill Arshad Mehmood; thereafter suddenly report of fire was heard and the accused while scaling over the wall, fled away; due to fear, they remained silent and at about 4.00 a.m., raised alarm, which attracted Abdul Wahid Numberdar and Amjad Ali PWs, who brought them out of the room and all saw that Arshad Mehmood was dead due to firing.
3. Thereafter, Rabia Bibi, daughter of Arshad Mehmood deceased came forward, with a private complaint against the appellants, on the grounds that there were illicit relations between Washfa Noreen and Muhammad Munawar Hussain appellants and both wanted to marry, for which Sajida Parveen appellant was also agreed, but the deceased was not inclined, due to which he for several times had abstained Sajida Parveen and Washfa Noreen appellants; on 8.7.2005, the above- named appellants called Muhammad Munawar Hussain appellant, in their house, for murder of Arshad Mehmood deceased, so that he may not come in the way and all may lead peaceful life; all decided to administer the sleeping tablets to the deceased and then murder him; consequently Muhammad Munawar Hussain appellant supplied the said tablets to the other appellants and when the complainant abstained them, they threatened her to keep silent, otherwise would be killed; the lady appellants got the children asleep in a room and at about 11.00 p.m., Muhammad Munawar Hussain appellant came there and all had been talking in the Courtyard; after about 1/2 hour, the lady appellants tied the arms and legs of Arshad Mehmood deceased with a cot and all the appellants came in a room, where Washfa Noreen appellant handed over a pistol to Muhammad Munawar Hussain appellant and asked him to lock the room from outside and then shot the above-named deceased; the lady appellants started watching from the window and after about two minutes, Muhammad Munawar Hussain appellant came at the window and told that bullet was missed, whereupon Washfa Noreen appellant again loaded a bullet in the pistol and handed over it to the above-named male appellant, with direction that fire should be made while placing the pistol at the head and while going, arms and legs of Arshad Mehmood should be untied; accordingly Muhammad Munawar Hussain appellant while shooting at Arshad Mehmood and telling to the lady appellants, went away; at the morning lady appellant started hue and cry and the people came there and brought them out of the room; the said appellants threatened the complainant that if she would tell the incident to anyone, would be dealt with in the same manner; Sajida Parveen appellant, for recovery of the complainant, filed writ petition in the Lahore High Court, but dismissed, which encouraged the complainant and she narrated all the facts to her paternal grand-parents and aunt (Phuphi) and the Police was also approached, but of no consequence, hence the complainant was forced to file the complaint.
4. In the above-mentioned private complaint, the appellants were summoned, whereafter pre-trial proceedings were carried on and formal charge against them was framed on 27.6.2006, to which they pleaded not guilty and claimed the trial, hence the prosecution witnesses were summoned and recorded. The prosecution had got examined as many as 12 witnesses. The gist of evidence led by the material witnesses was as under:- ' PW-4 Rabia Bibi complainant had narrated almost the same facts as were stated by her in the above-mentioned private complaint.
' PW-5 Mushtaq and PW-6 Shaista Parveen had stated about extra judicial confession allegedly made by the above-named lady accused/appellants before them.
' PW-11 Muhammad Saeed, Inspector had conducted the investigation, during which carried on the proceedings fully narrated in his statement.
(iv) PW-12 Dr. Muhammad Naseer Ahmad Kahloon had conducted post-mortem examination of the dead-body of Arshad Mehmood deceased and prepared the report (Ex.PK and PK/1). During the said examination, a fire-arm injury at the head of the deceased was noticed, which was anti- mortem in nature and sufficient to cause death.
5. After examination of the prosecution witness, the case was got closed by the complainant, whereafter statements of the appellants as provided under Section 342, Cr.P.C. Were recorded, during which questions emerging out of prosecution evidence were put to them and they denied almost all such questions, while pleading their innocence and false involvement in the case, with mala fide. The appellants did not opt to lead any evidence in their defence or make statements under Section 340(2), Cr.P.C. On completion of the proceedings, the learned Trial Court had pronounced the impugned judgment, in the above-mentioned terms. Consequently, the matters in hand.
6. The learned counsel for the appellants has argued that the appellants have falsely been involved, with ma/a fide, after due deliberation and consultation, despite the fact that they have not committed the alleged occurrence; the true facts of the occurrence were those, which were narrated by Sultan Ahmad, father of the deceased in the F.I.R. (Ex.PB); the complainant after registration of the F.I.R. And proceedings by the Police remained satisfied, for a considerable time, when she came forward, with the above-mentioned unacceptable story, which even during trial could not be substituted, hence the charge against the appellants was not at all proved, but the learned Trial Court had erred in not considering the same and passing the impugned judgment, on the basis of false presumptions and assumptions.
7. On the other hand, the learned Deputy Prosecutor General has vehemently opposed the appeals, on the grounds that the findings of the learned Trial Court, which resulted into the impugned judgment being result of correct appreciation and evaluation of the material available on the record, should not be disturbed.
8. We have heard the arguments of both the sides and have perused the record.
9. In this case, initially, the matter was reported to the Police by Sultan Ahmad, father of the deceased, with the above-mentioned contention, during which presence or availability of Rabia Bibi (present complainant) or Washfa Noreen (appellant) was not at all shown or alleged anywhere. The father of the complainant had alleged the death of his son by unknown accused.
The story narrated by him was also not plausible, because despite murder of his son at 1.00 a.m., he remained satisfied till 4.00 a.m., when he and other family members raised alarm, which attracted Amjad Ali and Abdul Wahid PWs at the spot, but during whole of the trial, they never came forward.
The other version was described by Rabia Bibi (present complainant), whereby she had narrated almost a different story, during which she did not show presence or availability of Sultan Ahmad (complainant of the F.I.R.) anywhere, rather had shown her presence at the spot and witnessing the alleged occurrence. It is pertinent to mention here that during the proceedings by the Police, Rabia Bibi complainant never appeared anywhere and as stated above, she for the first time had come into picture after about ten months of the alleged occurrence. It is very strange that father of the deceased did not implicate or nominate any of the accused, but Mst. Rabia Bibi complainant had implicated her real mother and sister. The said complainant, in the complaint had stated about a window, in the house from where the lady appellants had been witnessing the occurrence and talking with male appellant, but as per the scaled site plan (Ex.PC & Ex.PC/1) prepared by Khalid Mehmood (PW-10) at the spot, there was no window. As per the complainant, the fire was made while placing the pistol at the head of the deceased, but, during post-mortem examination, no sign of close range firing was observed. According to the complainant, the deceased was tied by a rope with the cot, but neither any rope, nor any cot was recovered or taken into possession. The complainant during cross-examination had admitted that the house of occurrence was located in a populated area, but erroneously during the occurrence alleged by her or thereafter, nobody had attracted as name of none was given in the complaint. It is settled law that to believe or disbelieve a witness all depends upon the intrinsic value of his statement. It is not the person but the statement of that person which is to be seen and adjudged by the Court. In this regard reliance may be made to the case of Abid All and 2 others v. The State (2011 SCM R 208), wherein, the Hon'ble Supreme Court of Pakistan, has observed as under:- "21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above-board and very respectable in society if gives a statement, which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.
22. As a rule of criminal prudence, prosecution evidence is not tested on the basis of quantity but quality of the evidence. It is not that who is giving the evidence and making statement; what is relevant is what statement has been given. It is not the person but the statement of that person which is to be seen and adjudged."
10. Recovery of a pistol at the instance of Muhammad Munawar Hussain (appellant) had been alleged and as per the report of the Forensic Science Laboratory, Lahore, the said weapon was in working condition, but as no empty from the spot was collected, or sent for comparison with the weapon, hence the said recovery and report has become inconsequential.
11. PW-5 Mushtaq and PW-6 Shaista Parveen, remained satisfied and never joined into the investigation and for the first time appeared in the Court on 12.9.2006 i,e, after about 01 year and 02 months of the alleged occurrence. Their statements being made with the above-mentioned alarming and un-explained delay should not be given any weight. It is pertinent to mention here that Sultan Ahmad, complainant of the F.I.R. During whole of the trial, did not come forward and make any statement in the Court. The evidence of extra-judicial confession furnished by the above-named PWs could not be believed, for the reasons, firstly, why the appellants have made such a confession before said PWs as there is no evidence on the record regarding their social status or influence over the bereaved family, secondly, from the narration of facts given by both these PWs in their statements, the alleged extra-judicial confession made by the appellants, appears to be of joint nature. Apart from above, they are related inter se and are also related to the complainant party, so, their statements cannot be relied upon without independent corroboration, which is very much lacking in this case. Extra-judicial confession is always considered a weak type of evidence. The evidentiary value of extra-judicial confession (joint or otherwise) came up for consideration before the Hon'ble Supreme Court of Pakistan in the cases of "Sajid Mumtaz and others v. Basharat and others" (2006 SCM R 231) and "Tahir Javed v. The State" (2009 SCM R 166). The relevant portion of the case of Tahir Javed (Supra) reads 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 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 SCM R 231, (2) Ziaul Rehman v. The State 2001 SCM R 1405, (3) Tayyab Hussain Shah v. The State 2000 SCM R 683, (4) Sarfraz Khan v. The State and others 1996 SCM R 188.
12. All the above-mentioned facts and circumstances, lead us to the conclusion that the charge against the appellants could not be proved and established, as per the prescribed criteria. It is well-settled principle of law that if a simple circumstance creates reasonable doubt in a prudent mind, about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right. Reliance in this respect may be placed on the case "Tariq Pervaiz v. The State" (1995 SCM R 1345). This view has further been fortified in the case of "Ayub Masih v. The State"
(PLD 2002 SC 1048), whereby it has been directed that while dealing with a criminal case, the golden principle of law "it is better that then guilty persons be acquitted, rather than one innocent person be convicted" should always be kept in mind. Relevant portion of the case of Ayub Masih (supra) reads as under:--- "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 than ten guilty persons be acquitted rather than one innocent person be convicted."
13. Resultantly, the above-captioned Criminal Appeals No, 167-J/2009 and 446-J/2014 are accepted, impugned judgment is set aside and the appellants namely Sajida Perveen, Washfa Noreen and Muhammad Munawar Hussain are acquitted of the charge, while extending them the benefit of doubt. Muhammad Munawar Hussain appellant is in judicial custody, hence be released forthwith, if not required to be detained in any other criminal matter, whereas Mst. Sajida Perveen and Washfa Noreen appellants are on bail, through suspension of their sentence, hence their bail bonds are discharged. As a consequence, the Murder Reference No, 456/2009 is answered in negative and death sentence of Muhammad Munawar Hussain is not confirmed. Criminal .