MALIK SHAHZAD AHMAD KHAN, J.---Saif Ullah, Muhammad Alam alias Goga and Hafiz Tanveer Ahmad appellants were tried in case FIR No, 371, dated 11-12-2006, registered at Police Station Kakrali, District Gujrat in respect of offences under section 302, P.P.C. (section 34 of P.P.C. Added at the time of framing of the charge). After conclusion of the trial, the learned trial Court vide its judgment dated 6-1-2009 has convicted and sentenced the appellants as under:-- Saif Ullah, Muhammad Alam alias Goga and Hafiz Tanveer Under section 302(b)/34, P.P.C. To 'Death' sentence to each appellant for committing Qatl-i-amd of Intizar Ahmad deceased. They were also ordered to pay Rs, 10,00,000 (rupees ten hundred thousand only) each as compensation under section 544-A of Cr.P.C. And in default thereof to suffer simple imprisonment for six months each.
2. Feeling aggrieved, the appellants have challenged their convictions and sentences through Criminal Appeal No, 30 of 2009, whereas, the learned trial Court has transmitted Murder Reference No,23 of 2009 for confirmation or otherwise of the Death sentences of Saif Ullah, Muhammad Alam alias Goga and Hafiz Tanveer appellants. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 6-1-2009 passed by the learned Additional Sessions Judge, Kharian, District Gujrat.
3. Brief facts of the case as given by the complainant, namely, Riaz Ahmad (P.W.9) in his Ward Biayan' (Exh.PH) on the basis of which the formal FIR (Exh.PH/1) was chalked out, are that he (complainant) was resident of 'Bhadhar' and cultivator by profession. He (complainant) and his younger brother Intizar Ahmad were living in one and the same house. On 11-12-2006, at about 5-00 a.m., Intizar Ahmad (deceased) as per his routine was going to the mosque 'Qureshian' to offer his morning prayer. As soon as Intizar Ahmad (deceased) reached at the corner of the house of one Dr. Muhammad Aslam in the street which was a thoroughfare, unknown persons opened fire shots for murderous assault at Intizar Ahmad, which hit on different parts of his body. On hearing the report of firing, he (complainant) reached at the spot along with other relatives and found that Intizar Ahmad had expired. The deadbody of Intizar Ahmad (deceased) was lying in the street and unknown assailants had already decamped from the spot. It was further alleged by the complainant that the cause of murder was not known to him and that as and when he would get the knowledge of the said cause, he would inform the police about the same.
The complainant Riaz Ahmad (PW9) is not an eye-witness of the occurrence and he did not name any person as accused in his 'Fard Biayan' Exh.PH on the basis of which the formal FIR (Exh.PH/1) was registered. However, on the same day, (11-12-2006), at evening time, he got recorded his supplementary statement Exh.PJ wherein he implicated the appellants on the basis of information imparted to him by Bashir Ahmad (given up P.W.) and Liaqat Ali (P.W.8). The complainant stated in the above mentioned supplementary statement Exh. PJ that on 11-12-2006 at 6-00 p.m. He (complainant) was sitting at Tateh Khawani' of his deceased brother Intizar Ahmad, where Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) came to him and told that on that day (11-12-2006) at 5-00 a.m. They had seen Saif Ullah appellant armed with Kalashnikov, Hafiz Tanveer Ahmad appellant armed with .12 bore pump action and Muhammad Alam alias Goga armed with .12 bore pump action, while running in the street. The complainant further stated in his above mentioned supplementary statement Exh.PJ that he was sure that his brother Intizar Ahmad was murdered by the appellants because Muhammad Alam alias Goga and Hafiz Tanveer Ahmad (appellants) used to bring women of bad character to the Dera of Saif Ullah appellant where they used to commit illicit inter course with them and against this, Intizar Ahmad deceased complained to Saif Ullah appellant and due to this grudge, the appellants committed the murder of Intizar Ahmad deceased.
4. The appellants namely Saif Ullah and Muhammad Alam alias. Goga were arrested on 24-1-2007 by Sajjad Anwar, SI (P.W.18), whereas, Hafiz Tanveer Ahmad was arrested in this case on 17-10-2007.
According to the prosecution case, on 26-1-2007, the appellant Muhammad Alam alias Goga led to the recovery of gun pump action (P-7) and three live cartridges P-8/1-3, which were taken into possession through memo Exh.PE. Likewise, on 27-1-2007, the appellant Saif Ullah led to the recovery of Kalashnikov (P-9) and ten live cartridges P-10/1-10, which were taken into possession through memo. Exh.PF, whereas, on 1-10-2007, the appellant Hafiz Tanveer Ahmad led to the recovery of gun .12 bore Pump action (P-1), which was taken into possession through memo. Exh.PN.
After completion of investigation, the challan was prepared and submitted before the court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants namely Saif Ullah and Muhammad Alam alias Goga on 12-7-2007. After the arrest of Hafiz Tanveer Ahmad appellant amended charge was framed against all the appellants on 12-1-2008, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced 18 witnesses, during the trial. Riaz Ahmad (P.W.9) is the complainant of the case. Liaqat Ali (P.W.8) is the witness of waj-takkar, whereas, Bashir Ahmad (P.W.5) and Muhammad Sarwar (P.W.6) are the witnesses of extra judicial confession. Rafique Ahmad (P.W.4) is the witness of motive incident.
The medical evidence was furnished by Dr. Nasir Mumtaz (P.W .2).
Muhammad Sarwar (P.W.6) is also witness of the recovery of gun pump action P-7 and three live cartridges P-8/1-3 and Kalashnikov P-9 along with ten live bullets P-10/1-10, which were recovered on the pointation of Muhammad Alam alias Goga and Saif Ullah appellants through memo. Exh.PE and Exh.PF, respectively. Khurram Shahzad 945/C (P.W.15) and Faiz Ahmad, ASI (P.W.16) are witnesses of the recovery of gun .12 bore pump action P-11, which was recovered on the pointation of Hafiz Tanveer Ahmad appellant through memo Exh.PN. Muhammad Arif, Inspector (P.W.14) and Sajjad Anwar, SI (P.W.18) are the Investigating Officers of the case.
Muhammad Iqbal 34/C (P.W.1), Muhammad Iqbal (P.W.3), Muhammad Azeem 926/C (P.W.7), Abdul Rehman 606/MHC (P.W.10), Akhtar Naqash Draftsman (P.W.11), Tasawar Ali, SI (P.W.12), Muhammad Khalid 227/C (P.W.13), Muhammad Arif, SI (P.W.14), Amjad Hussain 1298/C (P.W.17), are the formal witnesses. The prosecution produced documentary evidence in the shape of post mortem report of the deceased Exh.PA, pictorial diagram Exh.PA/1, memo of possession of blood stained earth Exh.PB, memo. Of possession of empty bullets Exh.PC, memo. Of possession of last worn clothes of the deceased Exh.PD, memo. Of possession of gun .12 bore pump action Exh.PE, copy of rough site plan of the place of recovery of gun .12 bore Exh.PE/1, memo. Of possession of Kalashnikov from Saif Ullah appellant Exh.PF, copy of rough site plan of the place of recovery of Kalashnikov Exh.PF, memo. Of possession of gun .12 bore pump action from appellant Exh.PG, copy of rough site plan of place of recovery of .12 bore gun pump action Exh.PG/1, statement of Riaz Ahmad complainant Exh.PH, FIR Exh.PH/1, copy of supplementary statement given by the complainant Riaz Ahmad complainant Exh.PJ, scaled site plan of the place of occurrence in duplicate Exh.PK and Exh.PK/1, warrant of arrest of Hafiz Tanveer Ahmad appellant Exh.PL and report Exh.PL/1, application by the I.O. To summon the appellant Hafiz Tanveer Ahmad confined in District Jail, Gujrat and order Exh.PM, memo of possession of gun .12 bore pump action from Tanvir Ahmad appellant Exh.PN, injury statement of the deceased Exh.PQ, application for conducting post mortem examination of the deceased Exh.PR, inquest report Exh.PS, rough site plan of the place of occurrence Exh.PT, warrant of arrest of Hafiz Tanveer Exh.PU and report Exh. PU/1, application for issuance of warrant of arrest and order Exh.PV, application for proclamation under section 87 of Cr.P.C. Exh.PX, bailable warrants of arrest of Hafiz Tanveer appellant (Exh.CW-1/A), report on the said warrants (Exh.CW-1/B), proclamation against Hafiz Tanveer appellant (Exh.CW-2/A), report on the said proclamation (Exh.CW-2/B), report of chemical examiner Exh.PY, report of serologist Exh.PZ, reports of Forensic Science Laboratory Exh.PAA and Exh.PBB and closed its 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 have responded as under:-- Saif Ullah "This case which has been got registered at the instance of Riaz Ahmad complainant is baseless, false and foisted. The fact of the matter is that Lt. Gen. Mukhtar Ahmad is my staunch enemy and a close relative of the complainant. Similarly Shafqat S.P. Is inimically disposed towards me because in various Union Council Elections and for the election of Provincial Assembly, his close relative contested those elections and I vehemently opposed them. Lt. Gen. Mukhtar aforementioned had land dispute with me and he wanted to take forcible possession of some parcel of my land, to which I opposed tooth and nail and so both Shafqat S.P. And Lt. Gen. Mukhtar aforementioned joined hands and head together and wanted to wreak vengeance from me. Both the aforementioned officers imported their various relatives from different villages and they prepared false circumstantial evidence. All the P. Ws. Of this are close kith and kin inter se and they after conniving with Riaz Ahmad and the police fabricated a false version and they got this case registered against me which is totally false. This is a case trumpeted up by enemies. I am innocent and I had no reason whatsoever to commit the murder of Intizar deceased. This was totally an unwitnessed occurrence. The names of none of the accused figure in the FIR and late in the day both the officers mentioned above convened together and made Riaz Ahmad complainant as a tool in their hands in order to satisfy the grudge and ill will, which they bore against me. The complainant and most of the other witnesses, they themselves took up themselves to be a panacea for all the ailment of the prosecution and have fabricated a case of circumstantial evidence against me. The complainant of this case contested an election for the Naib Nazim of the U. C. Bhadar and in that elections I opposed him tooth and nail and when he was defeated in that elections I jubilated and resorted fireworks and this fact also rankled in his eye like a thorn and he in order to satisfy his ill will and grudge installed himself as a complainant of this case. The case is completely false and coined by me against my adversaries."
Muhammad Alam alias Goga and Hafiz Tanveer "The complainant of this case namely Riaz Ahmad contested elections for the seat of Naib Nazim of Union Council of Bhadar and I jubilated resorted to fire works in front of his house. His rival for that seat was a friend of mine and so I rejoiced at his success and this fact ranked in the eye of complainant like a thorn. He had a fight with me also, in which I picked and slapped him. So he subsequently involved me in this case after due deliberations and consultation with Let. Gen. Mukhtar and S.P. Shafqat."
Neither the appellants made statements under section 340(2), Cr.P.C. Nor they produced any evidence in their defence. The learned trial Court vide its judgment dated 6-1-2009, found the appellants guilty and convicted and sentenced them as mentioned and detailed above.
6. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that the appellants were not named in the FIR which was registered by the brother of the deceased and the complainant simply stated in the FIR that his brother has been murdered by some unknown accused; that the complainant subsequently got recorded his supplementary statement regarding the incident which carries no value in the eye of law; that the complainant was informed by Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) that they had seen the appellants after the occurrence running in the street while holding firearm weapons in their hands but the said Bashir Ahmad was not produced in the witness box and statement of Liaqat Ali (P.W.8) carries no value because he stated that at the relevant time, he along with Bashir Ahmad came out of the house of one Tanveer Ahmad in order to proceed to Rawalpindi in connection with an urgent piece of work but he has not been able to give any rational answer in his cross-examination about the nature of their work at Rawalpindi and moreover, he is a chance witness; that so far as the motive is concerned, complainant did not state anything in the FIR and he stated regarding the motive in his supplementary statement which was to the effect that Hafiz Tanvir Ahmad and Muhammad Alam alias Goga (appellants) used to bring women of easy virtue at the Dera of Saif Ullah (appellant) and the appellants used to commit adultery with them and that against this the deceased complained to Saif Ullah appellant but no such motive was mentioned in the FIR, therefore, no reliance can be placed in this respect; that the evidence of extra judicial confession allegedly made by the appellants before the witnesses carries no value, for the reason, there was no reason with the appellants to make such confession before the witnesses; that it is the case of Bashir Ahmad (P.W.5) that he was present in the house when Saif Ullah appellant had confessed his guilt that he along with Muhammad Alam alias Goga appellant and Tanveer Ahmad appellant had committed the murder of Intizar Ahmad, deceased but had this appellant confessed his guilt in the house of Bashir Ahmad (P.W.5) he could easily have overpowered him as his other family members were also present in his house; that so far as recovery of fire arm weapons at the instance of the appellants and positive reports of FSL are concerned, learned counsel for the appellants contends that it is a corroborative piece of evidence and relevant only if the primary evidence inspires confidence and merely on the basis of recovery and positive reports of Forensic Science Laboratory, conviction of the appellants cannot be sustained; that the prosecution miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellants may be acquitted from the charges.
8. Learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant, opposes this appeal on the grounds that bona fide of the complainant is clear from the fact that he did not nominate anybody in the FIR and had he any enmity with the appellants he could have easily implicated them in the FIR; that the complainant got recorded his supplementary statement on the same day when he got information from Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.), thus, this evidence clearly connected the appellants with the commission of crime; that the evidence of motive has been produced through Rafiq Ahmad (P.W.4) who 'had no enmity with the appellants to falsely implicate them in the case; that the prosecution case is further supported by the evidence of extra judicial confession and none of the witnesses has any enmity with any of the appellants; that ocular account gets support from the medical evidence as there are eleven firearm injuries on the person of the deceased; that one of the appellants namely Hafiz Tanveer remained fugitive from law for a considerable period and his abscondence has been proved through the statement of Muhammad Khalid (P.W.13); that the prosecution case is further corroborated by the evidence of recovery of Kalashnikov P-9 which was recovered on the pointation of Saif Ullah appellant, the recovery of gun pump action P7 which was recovered on the pointation of Muhammad Alam alias Goga appellant and recovery of gun .12 bore from the possession of Hafiz Tanveer Ahmad appellant; that the prosecution case is further corroborated by the positive report of Forensic Science Laboratory (Exh.PAA); that there is no mitigating circumstance in this case; that the sentences of death were rightly awarded to the appellants and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
9. 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.
10. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the apex Court of the country reported as 'Ch. Barkat Ali v. Major Karam Elahi Zia and another' (1992 SCMR 1047), 'Sarfraz Khan v. The State'
(1996 SCMR 188) and 'Asadullah and another v. The State' (1999 SCMR 1034). In the case of Ch. Barkat Ali (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:-- '...Law relating to circumstantial evidence 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). 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.'
In the case of Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192, held 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.'
Further reliance in this context is placed on the case of `Altaf Hussain v. Fakhar Hussain and another' (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court 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.'
Keeping in view the parameters, laid down in the above-mentioned judgments, we will discuss each part of the prosecution evidence, separately.
11. The prosecution case is based on the following pieces of evidence:--
(i) Wajtakkar; evidence.
(ii) Evidence about extra judicial confession of Saif Ullah and Muhammad Alam alias Goga appellants.
(iii) Motive.
(iv) Medical evidence
(v) Recoveries
12. (i) `Wajtakkar' evidence.
As mentioned earlier, the occurrence in this case was unseen which took place in the month of December, i,e, 11-12-2006 at 5-00 a.m. In village "Bhadhar". The complainant Riaz Ahmad (P.W.9) is not an eye-witness of the occurrence and he did not name any accused in his `Fard Biayan' Exh.PH on the basis of which the formal FIR Exh.PH/1 was registered. However, on the evening of 11-12-2006 he got recorded his supplementary statement Exh.PJ wherein he implicated the appellants on the basis of information imparted to him by Bashir Ahmad (given up P.W.) and Liaqat Ali (P.W.8). The complainant stated in the above mentioned supplementary statement Exh.PJ that on 11-12-2006 at 6-00 p.m. He was sitting at Tateh Khawani' of his deceased brother Intizar Ahmad, when Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) came to him and told that on that day (11-12-2006) at 5- 00 a.m. They had seen Saif Ullah appellant armed with Kalashnikov, Hafiz Tanveer Ahmad appellant armed with .12 bore pump action and Muhammad Alam alias Goga appellant armed with .12 bore pump action, while running in the street. The complainant further stated in his supplementary statement Exh. PJ that his brother Intizar Ahmad was murdered by the appellants because Muhammad Alam alias Goga and Hafiz Tanveer Ahmad (appellants) used to bring women of bad character to the Dera of Saif Ullah appellant where they used to commit illicit inter course with them and Intizar Ahmad deceased complained to Saif Ullah appellant and due to this grudge the appellants committed the murder of Intizar Ahmad deceased.
We have noted that both the above mentioned witnesses of Wajtakkar namely Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) were not the residents of village `Bhadhar' where this occurrence took place. Liaqat Ali (P.W.8) is resident of a different village, i,e, village Sidh, where as, Bashir Ahmad (given up P.W.) was resident of village Kotla. In order to establish their presence at the spot, at the time of occurrence which took place in the darkness of night, i,e, on 11-12-2006 at 5-00 a.m., Liaqat Ali (P.W.8) stated that Bashir Ahmad (given up P.W.) was his `Khalu' and his daughter Mst.
Sajida Parveen was married to one Tanveer Ahmad resident of village Badhar'. He further stated that Bashir Ahmad (given up P.W.) came to the house of his daughter at village `Bhadhar' and he also summoned him (Liaqat All P.W.8) to village `Bhadhar' as he (Bashir Ahmad given up P.W.) had to go to Rawalpindi due to some piece of work, therefore, he (Liaqat All P.W.8) went to Bhadhar' and stayed there in the house of Tanveer Ahmad for the night and on 11-12-2006 at 5-00 a.m. He saw the appellants while armed with different weapons running in the street. Liaqat Ali (P.W.8) is `mamoonzad' (maternal cousin) of the deceased Riaz Ahmad and this fact was brought on the record during the cross-examination of the complainant Riaz Ahmad. He claimed that after the occurrence he saw the appellants near the house of one Sher All Butt. It was so mentioned in the FIR that the occurrence took place near the house of one Dr. Muhammad Aslam. Liaqat Ali (P.W.8) has further stated during his cross-examination that the house of above mentioned Dr. Muhammad Aslam and Sher Ali Butt are located in a street and the distance between the said two houses was 60 Karams. The relevant part of the statement of Liaqat Ali (P.W.8) at page No, 61 of the Paper-book reads as under:-- "Dr. Aslam is also known to me. The distance between the house of Sher Ali Butt and Dr. Muhammad Aslam is 60 Karams. The house of Dr. Aslam is towards the west of the house of Sher Ali Butt. All these houses are located in a street. There are about 15/20 houses lying in the street where the house of Sher Ali is located. The house of Saif Ullah accused lies towards north west of the house of Sher Ali Butt at a distance of about 15/20 Karams." It is evident from the perusal of the above mentioned portion of the statement of Liaqat Ali (P.W.8) that the house of Dr. Muhammad Aslam where the occurrence took place and the house of Sher Ali Butt where he saw the appellants after the occurrence is situated in a street and the distance between the house was only 60 Karams (330 feet). The conduct of Liaqat Ali (P.W.8), who is `mamoonzad' (maternal cousin) of the deceased, is highly un-natural because had he been present at the spot he would have heard the report of fire shots. This witness did not bother to go to the spot to see as to what had happened over there rather he stated that he along with Bashir Ahmad (given up P.W.) went to Rawalpindi and they came back in the evening. He has not given any reason of his visit to Rawalpindi and simply stated that Bashir Ahmad (given up P.VV.) asked to accompany him as he was going for an urgent piece of work over there. However, during his cross-examination he stated that Bashir Ahmad (given up P.W.) did not inform him the purpose of his visit to Rawalpindi. He further stated that he did not disclose to police any purpose of his visit to Rawalpindi and the name of the persons to whom they visited on that day. As mentioned earlier, Liaqat Ali (P.W.8) is not resident of village Thadhar' and he gave the reason for his presence at the spot at the relevant time that it was Bashir Ahmad (given up P.W.) who called him on the preceding night of occurrence to village `13hadhar' but prosecution did not produce the above mentioned Bashir Ahmad in order to establish the reason given by Liaqat Ali (P.W.8) for his presence at the spot on the fateful night. As the above mentioned witness was not the resident of the village of occurrence, he could not give any plausible explanation of his presence at the spot at the time of occurrence (5-00 a.m. In the month of December) and as he also could not reasonably explain his silence from 5-00 a.m.
(morning) to 6-00 p.m. (evening) after allegedly witnessing the appellants after the incident, therefore, it is not safe to rely upon the evidence of Waj-takkar furnished by Liaqat Ali (P.W.8).
13. (ii) Evidence of Extrajudicial Confession.
There is no evidence of extra judicial confession against Hafiz Tanveer Ahmad appellant. However, the prosecution has produced the evidence of extra judicial confession against Saif Ullah appellant through Tanveer Ahmad appellant. However, the prosecution has produced the. There is no evidence of extra judicial confession against Hafiz the Bashir Ahmad (P.W.5) and against Muhammad Alam alias Goga appellant through Muhammad Sarwar (P.W.6). We have noted that Saif Ullah appellant is resident of village Thadhar', whereas, Bashir Ahmad (P.W.5) is resident of Chak Sikandar. Bashir Ahmad (P.W.5) is a `Zimindar' by profession and he was not enjoying any office of authority. He has stated during his cross-examination that there were two lumberdars of his village Chak Sikandar. It does not appeal to common sense that as to why the appellant had gone to him (Bashir Ahmad P.W.5) and made an extra judicial confession before him when the said P.W. Was neither resident of his village nor. Holding any office of authority. The other witness produced by the prosecution to prove the extra judicial confession of Muhammad Alam alias Goga is Muhammad Sarwar (P.W.6). Muhammad Alam alias Goga appellant is resident of village Aikya, whereas, Muhammad Sarwar (P.W.6) is resident of village "Ropairy". Muhammad Sarwar (P.W.6) is closely related to the deceased because he has himself stated in his examination-in-chief that the deceased of this case was Bhanja' of his wife. He was a retired DEO. Even this witness was not enjoying any office of authority at the time of alleged extra judicial confession of Muhammad Alam alias Goga appellant. As mentioned earlier he is close relative of the deceased and he is also witness of the recovery of .12 bore pump action P-7 which was allegedly recovered on the pointation of the appellant Muhammad Alam alias Goga which shows that he is an interested witness of the prosecution. Even otherwise it is not understandable that as to why Muhammad Alam alias Goga appellant who is resident of village Aikya would go all the way to another village, i,e, "Ropairy" to make extra judicial confession before Muhammad Sarwar (P.W.6). He was not holding any office of authority. It is by now settled law that the evidence of extra judicial confession is a weak type of evidence. 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 SCMR 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 extrajudicial-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-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 of 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 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.
Another most important and natural purpose of making extrajudicial-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.
As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra judicial confession 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), where in, at page 170, the august Supreme Court of Pakistan, has been pleased to observe as under:-- "It may be noted here that since extrajudicial 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 and (4) Sarfraz Khan v. The State and others (1996 SCMR 188)".
Keeping in view the guidelines given by the Hon'ble Supreme Court of Pakistan in the above mentioned judgments we are of the considered view that the evidence of extra judicial confession furnished by Bashir Ahmad (P.W.5) and Muhammad Sarwar (P.W.6) is not trustworthy.
14. (iii) Motive.
No motive was mentioned by the complainant Riaz Ahmad (P.W.9) in his 'Fard Biyan' Exh.PH, on the basis of which the formal FIR (Exh.PH/1) was registered. The complainant, however, introduced the motive part of the prosecution story through his supplementary statement Exh.PJ wherein he stated that Muhammad Alam alias Goga and Hafiz Tanveer Ahmad appellants used to bring the women of bad character to the Dera of Saif Ullah appellant where they all used to commit illicit inter course with them. Intizar Ahmad deceased complained to Saif Ullah appellant and due to this grudge, the appellants committed the murder of Intizar Ahmad (deceased). The complainant Riaz Ahmad has stated during his cross-examination that he does not know the name of the women who were brought by the accused persons for adultery at the Dera of Saif Ullah appellant. He further stated that the deceased never told him about the said women as he was younger to him at 8th place and he (deceased) felt shy and was afraid of him. The prosecution, however, produced evidence qua motive through Rafiq Ahmad (P.W.4). The name of this witness was neither mentioned in the FIR Exh.PH/1 nor in the supplementary statement of the complainant Exh.PJ which was recorded after more than 13 hours of the occurrence, although the above mentioned story of motive was narrated in the above mentioned supplementary statement of the complainant Exh.PJ.
The motive occurrence allegedly took place in village Thadhar' but Rafiq Ahmad (P.W.4) is not resident of the said village and he is resident of village Sidh. In order to show his presence in village Bhadhar' to witness the motive incident, he stated that on 10-12-2006 he came to village Bhadhari to see his sister Mst. Bashir Fatima who was married to Umar Hayat (given up P.W.). He further stated that on that day he -expressed his desire of purchasing bricks to his brother-in-law Umar Hayat. The said witness instead of going to purchase bricks at the brick kiln went to the Dera of Saif Ullah appellant who was statedly owner of a brick kiln, where he witnessed the altercation between the appellants and Intizar Ahmad deceased on bringing the women of ill repute to the Dera of Saif Ullah appellant. Although this witness made this excuse that the purpose of his visit to village Thadhar' and the Dera of Saif Ullah appellant was to purchase bricks but he did not produce any receipt regarding the purchase of bricks from the brick kiln of Saif Ullah appellant or from any other brick kiln. He has further stated during his cross-examination that his statement was recorded by the police at 6-00 p.m. In village Thadhar' on 11-12-2006 but as mentioned earlier his name did not find mention in, the supplementary statement of the complainant Exh.PJ which was also recorded on 11-12-2006 after 6-00 p.m. Because the complainant stated in his supplementary statement (Exh.PJ) that he was informed about the appellants by Liaqat Ali (P.W.8) and Bashir Ahmad (given up P.W.) at 6-00 p.m. On 11-12-2006 which means that his above mentioned statement (Exh.PJ) was recorded after 6-00 p.m. On 11-12-2006.
In the light of above discussion, we are of the view that the motive as alleged by the prosecution has not been proved in this case.
15. (iv) Medical Evidence.
Insofar as the medical evidence furnished by the prosecution is concerned, it is by now well settled law that medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of 'Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others' (PLD 2009 SC 53), 'Altaf Hussain v. Fakhar Hussain and another' (2008 SCMR 1103) and 'Mursal Kazmi alias Qamar Shah and another v. The State' (2009 SCMR 1410). As the occurrence in the instant case is unseen and no detail regarding the manner in which the occurrence was committed was mentioned by the witnesses of extra judicial confession, therefore, there is no need to discuss the medical evidence of the prosecution.
16. (v) Recoveries of the weapons of offence.
The prosecution has also produced the evidence of recoveries qua Kalashnikov P-9, which was allegedly recovered on the pointation of Saif Ullah appellant, gun .12 bore pump action P-7 at the instance of Muhammad Alam alias Goga appellant and gun pump action P-11 from Hafiz Tanveer Ahmad appellant. So far as recovery of gun pump action P-11 from Hafiz Tanveer Ahmad appellant is concerned, there is no report of Forensic Science Laboratory qua gun pump action P-11 recovered from the possession of Hafiz Tanveer Ahmad appellant. So far as the alleged recoveries of Kalashnikov P-9 and gun .12 bore pump action P-7 from the possession of Saif Ullah and Muhammad Alam alias Goga appellant's respectively and positive report of Forensic Science Laboratory (Ex.PAA) is concerned, there is no need to discuss the said evidence because we have already disbelieved the prosecution evidence of waj-takkar, extra judicial confession and motive, therefore, the said appellants cannot be convicted merely on the basis of above mentioned recoveries which are only corroborative pieces of evidence. Reference in this respect may be made to the case of 'Muhammad Afzal alias Abdullah and others v. The State and others' (2009 SCMR 436), the Hon'ble Supreme Court of Pakistan at pages 443 and 444 has held as under:--- "After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be."
Similarly in the case of 'Abdul Mateen v Sahib Khan and others' (PLD 2006 Supreme Court 538), at page 543, the following dictum was laid down by the Hon'ble Supreme Court of Pakistan:- "It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the recovery as law laid down by this Court in Saifullah's case 1985 SCMR 410."
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Muhammad Yaqub v. The State' (1971 SCMR 756) and 'Nek Muhammad and another v. The State' (PLD 1995 Supreme Court 516).
16. Similarly Hafiz Tanveer Ahmad appellant cannot be convicted, merely on the basis of evidence about his abscondence, in absence of any reliable direct or circumstantial evidence.
17. We have considered all the aspects 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. L give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created doubt about the prosecution story. In `Tariq Pervez v. The State' (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe 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.'
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case 'Muhammad Akram v. The State' (2009 SCMR 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 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."
18. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, we accept the Criminal Appeal No,30 of 2009 filed by sail Ullah, Muhammad Alam alias Goga and Hafiz Tanveer Ahmad appellants, set aside their convictions and sentences recorded by the learned Additional Sessions Judge Kharian vide judgment dated 6-1-2009 and acquit them of the charges by extending them the benefit of doubt. Saif Ullah and Muhammad Alam alias Gaga appellants are in custody, they be released forthwith if not required in any other case. Hafiz Tanveer Ahmad is on bail, his bail bonds and sureties shall stand discharged.
Murder Reference No,23 of 2009 is answered in the NEGATIVE and the sentences of death of Saif Ullah, Muhammad Alam alias Goga and Hafiz Tanveer Ahmad (convicts) are NOT CONFIRMED.