Sardar Muhammad Sarfraz Doear, J. David Masih alias Faisal son of Hameed Sarwar, Imran son of Muhammad Nawaz, Asmat Ali Shah son of Hazer Ali (since acquitted) and Jahangir son of Munir Ahmed (since acquitted) were tried by learned Additional Sessions Judge, Toba Tek Singh, in case FIR No.185/2008, dated 08.9.2008, in the offences under Sections 302, 392, 412 PPC, Police Station Chtiana, District Toba Tek Singh for committing Qatl-i-Amd of complainant's brother Riasat Ali. The learned trial court, vide judgment dated 03.11.2010, convicted David Masih alias Faisal and Imran and sentenced infra:- David Masih alias Faisal: i) Death under Section 302 (b) read with 34 PPC as Ta'azir for committing Qatl-i-amd of Riasat Ali deceased and to pay compensation to the tune of Rs.100,000/-, to the legal heirs of deceased Riasat Ali under Section 544-A Cr.P.C, and in default thereof, to further undergo four months S.I. The convict was ordered to be hanged by his neck till he is dead. ii) Nine years' RI under Section 392 PPC, and to pay fine to the tune of Rs.50,000/-, and in default thereof, to further undergo two months S.I. iii) Five years' RI under Section 412 PPC, and to pay fine to the tune of Rs.10,000/-, and in default thereof, to further undergo one month S.I.
Imran: i) Imprisonment for Life under Section 302 (b) read with Section 34 PPC, and to pay compensation to the tune of Rs.100,000/-, as compensation under Section 544-A Cr.P.C, to be paid to the legal heirs of deceased, and in default thereof, to further undergo four months S.1. ii) Nine years' RI under Section 392 PPC, and to pay fine to the tune of Rs.50,000/-, and in default thereof, to further undergo two months S.I. iii) Five years' RI under Section 412 PPC, and to pay fine to the tune of Rs.10,000/-, and in default thereof, to further undergo one month S.I.
These sentences were ordered to run concurrently with the benefit of section 382-B of Cr.P.C. All the remaining accused were acquitted of the charges bestowing them benefit of doubt.
2. Feeling aggrieved, David Masih alias Faisal (convict) has lodged Criminal Appeal No.402-3 of 2010 and Imran (convict) has filed Criminal Appeal No.2743 of 2010 against their convictions and sentences. The State has also approached this Court with Murder Reference No.595 of 2010 seeking confirmation of death sentence awarded to appellant David Masih alias Faisal. We intend to dispose of all the above said matters through this single judgment.
3. Precisely, the prosecution case as set forth in the complaint (Exh.PH) lodged by Sajjad complainant (PW-10), on the basis whereof formal FIR (Exh.PH/1) was recorded, is that he is resident of Mohallah Kausarabad Pir Mehl and is taxi driver; that his brother Riasat All was also taxi driver; that they both used their owned white coloured car bearing registration No.MNV-921 Model 1998 `Toyota Corolla god' as taxi car; that Riasat Ali used to drive the taxi car in the night, whereas; the complainant Sajjad in day shift; that on 7.9.2008, at about 11:00 PM, the complainant found Riasat Ali present at Taxi Stand Pir Mahal along with two unknown persons when he was returning after Travi Prayer; that the said unknown persons had gone with Riasat Ali in his taxi car; that complainant's paternal uncle (chacha) Sh. Muhammad Arshad (given up PW) was also along with him; that on the next morning, the said Riasat Ali did not turn up home, whereupon; complainant along with his paternal uncle Sh. Muhammad Arshad (given up PW) reached the taxi stand where Amjad Ali taxi driver met them and informed that some unknown persons had murdered Riasat Ali, and also took their taxi car along with them, and his dead body was lying on the road side situated in Chak No.339/GB; that they reached at the place of occurrence where dead body was present; that they found that there was firearm injury on the head of the deceased; that unknown accused also robbed the cash amount and mobile phone of the deceased.
4. The complainant (PW-10) was on way to police station to report the matter when he met with Muhammad Aslam Khan SI (PW12) at bus-stand Chak No.30/GB and submitted written complaint (Exh.PH) and after completion of police karwai sent the same to the police station through Imran 1037/C, whereupon formal FIR (Exh.PH/1) was chalked out by Muharnmd Aleem A.S.I. (PW-5).
Thereafter, investigation came up before Muhammad Aslam Khan (PW-12) who visited the spot, where the dead body of deceased Riasat Ali was lying, inspected the dead body, prepared injury statement (Ehx.PE) and inquest report (Exh.PF). He sent the dead body for autopsy. He collected blood stained earth and small pieces of blood stained stones from the spot and taken into possession vide recovery memo (Exh.PI). He prepared un-scaled site plan (Exh.PN). He recorded the statements of Amjad and Arshad P.Ws. Under Section 161 Cr.P.C. On the spot. Muhammad Latif (PW- 1) prepared scaled site plan of place of occurrence (Exh.PA and Exh.PA/1) on 13.9.2008, which were handed over to the Investigating Officer by him. On 20.10.2009, he recorded the statements of Muhammad Sajjad, Muhammad Ashraf Khan and Muhammad Siddique Piara (P.Ws.) under Section 161 Cr.P.C. Wherein they nominated the accused David Masih, Jahangir, Muhammad Ameen and Muhammad Akmal. At that time said accused were already in police custody in another case at Police Station Sahianwala, District Faisalabad. The custody of the appellant-David Masih was got transferred on 10.12.2008 by the order of Judicial Magistrate Faisalabad in this case.
During investigation on 19.11.2008, David Masih appellant got recovered gold ring (P-6), which was taken into possession vide recovery memo (Exh.PK) and on the same day he deposited the gold ring (P-6) with the Moharrar of the Malkhana. On 24.11.2008, David Masih appellant got recovered an unlicensed pistol 30 bore (P-4) and two bullets (P-5/1-2), which were taken into possession vide recovery memo (Exh.PJ). On 26.11.2008, David Masih was produced before the Illaqa Magistrate where he made confessional statement. The complainant exonerated Akmal and Ameen accused before Judicial magistrate, so, they were got discharged.
On 19.12.2008, he arrested Imran accused and on 29.12.2008 Imran accused got recovered mobile phone Nokia (P-7) from his residential house, which was taken into possession vide recovery memo (Exh.PL). On 19.1.2009, he obtained non-bailable warrants of arrest of accused Badshah Khan (since P.O.). On 30.1.2009 Asmat Ali Shah was under his custody, when some unknown persons brought stupni of the car at the police station and gave it to Asmat All Shah accused. He took the same into his possession vide recovery memo (Exh.PM). He has also deposited the stupni to Moharrar of the Police Station Chutiana.
During investigation, he found the accused David Masih, Imran and Jahangir guilty and submitted report under Section 173 Cr.P.C. By placing their names in column No.3 of the report. Later on, accused Asmat Ali Shah was found involved in the case to the extent of receiving amount of Rs.5,000/- as commission for the sale of snatched car.
5. After submission of the challan in the court, accused were formally charge sheeted under sections 392, 302, 412, 34 PPC to which they did not plead guilty and claimed to be tried.
6. Prosecution has produced as many as 13 witnesses to prove its case. Muhammad Amjad (PW-7), Sajjad complainant (PW10) and Muhammad Siddique Piyara (PW-11) have furnished ocular account. Muhammad Sabir (PW-8) and Muhammad Akhtar Umer (PW19) were recovery witnesses.
Mr. Amad ud Din Civil Judge/Judicail Magistrate 1st Class Okara (PW-13) has furnished evidence with regard to recording judicial confession of appellant David Masih.
7. Dr. Muhammad Javed Iqbal, Medical Officer, RHC, Chak No.316/GB (Chutiana), (PW-4) conducted post mortem examination on the dead body of Riasat Ali (deceased) on 8.9.2008 and observed following injuries on his body:- INJURIES
1. A fire arm entrance wound .6 cm x .6 cm back and left side of the head
2. A fire arm exit wound .7 cm x .9 cm right side of the head.
3. An abrasion 1 cm x 1 cm back of the right leg.
4. An abrasion 1 cm x .5 cm back of the left knee joint.
OPINION The medical officer was of the opinion that cause of death is rupture of brain, which is vital organ of the body and was sufficient to cause death in ordinary course of life, however, pieces of heart, lung, liver and stomach were taken, sealed and sent to Chemical Examiner, Govt. Of Punjab Lahore for detection of poison probable duration between injuries and death was about 1 to 2 hours and between death and post mortem examination was 8 to 10 hours.
8. Rest of the witnesses are of formal nature, therefore, there is no need to be discussed. Learned DDPP given up PW Ashraf Ali Khan being won over and Muhammad Arshad being un-necessary vide his statement dated 13.7.2010. Learned DDPP tendered in evidence report of the Chemical Examiner Exh.PP and of Serologist Exh.PQ and closed the prosecution evidence.
9. At the conclusion of prosecution evidence, learned trial court recorded the statement under section 342 Cr.P.C. Of the appellants as well as of all the acquitted accused whereby they denied each and every piece of prosecution evidence while pleading their innocence. However, in reply to question with regard to judicial confession, David Masih alias Faisal convict/appellant stated as under:- "My confession was recorded on Oath which is illegal and unlawfuL It cannot be given the status of confession as held by Hon 'ble Higher Courts of Pakistan. Such citation would be tendered before Hon,ble court at the time of arguments. In cross examination learned Judicial Magistrate conceded that it was exculpatory statement by me in concocting my co-accused Imran only. Muhammad Aslam Khan SI has brought me before the said JM in custody an after the said confession I was air handed over to him. Thus I was terrified that he would torture again as he has done so during my physical remand. No such question was posed by JM to me whether I was tortured by the Investigating Officer before making my confession according to his wishes. I was not asked that after recording my confession I would not be handed over to Muhammad Aslam SI and it was done so by said Judicial Magistrate.
I was under custody with Nishat abad police Faisalabad where from I was got transferred on 10-12- 2008 by the order of JM FSD who granted one day physical remand. Thereafter on the following day further physical remand was obtained from JM T.T.Singh. My fourteen remand was terminated on 24-10-2008 but was kept in illegal confinement even thereafter on 25-10-2008 and 26-10-2008. I was produced before the Judicial Magistrate on 26-10-2008 to record my confession which was recorded on Oath. There was no sanctity attached to such confession. It was a confession under compulsion, tortured by the Investigating Officer and under Oath."
In reply to the question "Why this case against you and why the PWs deposed against you" David Masih alias Faisal convict/appellant simply stated as under:- It was an unseen occurrence and the culprits could not be traced. The local police particularly SHO and Investigating Officer of this case were under enormous pressure from the higher police officer to trace the culprits or face the music. I and my co-accused were made scapegoat in this case.
In reply to the question "Why this case against you and why the PWs deposed against you" Imran convict/appellant stated as under:- "The 10 of the case Muhammad Aslam Khan SI apprehended me from general bus stand Pir Mohal on 12-12-2008, My arrest was fictitiously shown on 14-12-2008. An altercation took place between me and Muhammad Aslam SI at bus stand Pir Mohal, he abused me but I did not pocket his insult and gave him slaps. Being infuriated from such insult said Muhammad Aslam Khan SI became vindictive and had roped in this case falsely."
10. All the accused, however, neither produced any defence evidence nor opted to make any statement on oath in terms of Section 340 (2) Cr.P.C.
11. It is argued by learned counsel for the appellants that the ocular account produced by the prosecution admits material inconsistencies; that the PWs are interested witnesses inter-se related as well as related to the deceased; that the PWs namely Sajjad (PW-10) and Muhammad Arshad (given up) are chance witnesses on the dimension of last seen evidence and their testimonies lack intrinsic value and inherent worth, therefore, cannot be safely relied upon; that no independent private witness from the locality was produced by the prosecution to prove the charge; that the alleged recovery of pistol 30 bore from the appellant David Masih is false, fabricated and planted upon him and was also not referred to the Forensic Science Laboratory; that no empty of pistol 30 bore was recovered by the investigating officer from the place of occurrence, therefore, the recovery of alleged weapon of offence from David Masih appellant is inconsequential failing to furnish any corroboration to the prosecution version; that it was an unseen occurrence and there was no corroboration with regard to the extra judicial confession for the purposes of entangled the appellants with the commission of alleged offences; that the complainant and P.Ws have not supported the prosecution case; that there are material contradictions in the statements of the witnesses; that the prosecution had failed to produce any independent, cogent, unimpeachable and entrenched evidence against the appellants, and the learned trial Court has not applied its judicious mind while convicting the appellants. Further argued that the confessional statement made by the appellant David Masih has not been corroborated by any independent evidence, even otherwise, the modus operandi of the confessional statement recorded by the learned Judicial Magistrate, was not in line with the judgment laid down by the Hon'ble Supreme Court of Pakistan, which vitiate all the proceedings of the confessional statement; that the confessional statement was made under coercion, and specific question which was required to be put for checking the value of the truthfulness of the confession was not properly put on the appellant David Masih; that the confession made before the learned Judicial Magistrate is also illegal because it was admittedly recorded on oath and the custody of the accused on the that day was also unauthorized as 14 days physical remand had already lapsed; that the said confession of the appellant David is of exculpatory nature so is inadmissible in evidence; that David Masih accused is not acquainted with Muhammad Siddique Payara (PW-11), therefore, the question of making of extra judicial confession before such witness does not arise; that the prosecution has not been able to prove the charge against the appellants beyond any shadow of doubt, therefore, the appellants are entitled to acquittal.
12. Contrariwise, learned Deputy Prosecutor General for the State assisted by the learned counsel for the complainant has defended the impugned judgment by arguing that prosecution has proved its case; that the prosecution witnesses remained stuck with their statements, that as per Article 43 of the Qanun-e-Shahadat Order, 1984, the confessional statement which was made by the appellant David Masih before the learned Judicial Magistrate is the conclusive proof of the commission of the offence; that the prosecution case mainly rests on the extra judicial confession made by David Masih before Muhammad Siddique Payara (PW-11) a local politician figure; that the last seen evidence is also there to corroborate the evidence; that the medical evidence is in line with the ocular account; that the element of common object is there in commission of crime.
Further argued that the testimonies of prosecution witnesses are in line and corroborative to each other on the vital ingredients of the case; that minor and immaterial inconsistencies in the testimonies of eye-witnesses are ignorable and do not affect the merits of the prosecution case; that medical evidence fully corroborates the prosecution case without any material discrepancies; that single firearm injury to the deceased is specifically attributed to David Masih appellant causing death of Riasat Ali; that the prosecution has brought the guilt home to the accused through reliable ocular account supported by medical evidence, therefore, the learned trial court has rightly convicted David Masih and sentenced him to capital punishment of death in accordance with law which does not call for any interference by this Court; that the learned trial court has rightly convicted and sentenced lmran but has fallen in grave error while acquitting the remaining accused actively participated in the occurrence and vicariously liable for the commission of willful murder of Riasat Ali (deceased); that the appeals lodged by the appellant against their convictions and sentences having no merit deserve dismissal.
13. We have heard the learned counsel for the parties as well as the learned Deputy Prosecutor General for the State and carefully gone through the record.
14. Admittedly this is an unseen occurrence. There is no direct evidence with the prosecution and there is no eyewitness of the alleged snatching of car and commission of murder of Riasat Ali.
Prosecution has based its case on circumstantial evidence on the dimensions of last seen, extra judicial confession, judicial confession and recovery.
15. On the plea of last seen prosecution has examined Sajjad-complainant (PW-10), who is real brother of Riasat All deceased. He has deposed that on 07.9.2008, he along with his uncle Muhammad Arshad (given up PW) was coming back after offering Traveeh prayer. When they reached near taxi car stand Pir Mahal, they observed that his taxi car was being plied by Riasat Ali deceased, one unknown person was sitting on the front side beside Riasat Ali and the other unknown person occupied the rear seat. The taxi car passed from near them and went away. On next day, Muhammad Amjad All imparted information to them that some unknown persons have snatched their taxi car and also murdered his brother Riasat Ali Cross-examination upon Sajjad- complainant (PW-10), however, rendered his testimony highly doubtful. While facing cross- examination, he (PW-10) deposed that he had mentioned in the complaint (Exh.PH) that one of accused was sitting on front seat and other on the rear seat. We have noticed that the Sajjad- complainant (PW-10) has not mentioned this fact in his complaint (Exh.PH). This material contradiction render his testimony highly doubtful and not worthy of any credence. It is, therefore, obvious that the plea of the last seen advanced by the prosecution is an afterthought and a concocted version which cannot be believed. Reliance is made upon Mst. Reshman Bibi Vs. Sheerin Khan and others (1997 SC1V1R 1416). Last seen evidence being a circumstantial evidence was a weak type of evidence and must be corroborated through independent, confidence inspiring and unimpeachable evidence, but in this case, the prosecution has given up the other witness of last seen namely Muhammad Arshad being unnecessary for the reasons best known to them and as such the prosecution withheld the best available evidence, therefore, adverse inference under Article 129(g) of Qanoon-e-Shahadat Order, 1984, to the effect that he would not have supported the prosecution case can fairly be drawn against the prosecution. Guidance is sought from Muhammad Rafique and others v. The State and others (2010 SCM R 385) and Lal Khan v. The State (2006 SCM R 1846).
16. Prosecution's other dimension of extra judicial confession is placed in the evidence with the help of testimonies of Muhammad Siddique Payara (PW-11) and Muhammad Ashraf Khan (PW-given up being won over). (PW-11) deposed that on 01.10.2008 when he along with Muhammad Ashraf Khan was present in his baithak, appellant David Masih, who was not acquainted with him, came there.
Appellant (David Masih) wanted to talk to him (PW-11) in seclusion. David Masih-appellant confessed before them that on the night between 7th and 81h of September 2008 after Isha prayer time/Traveeh time they went to car stand at Pir Mehal in order to snatch a car from some one. One or two cars were stationed there. One of the car No.921/MNY Toyota 2-D was stationed there. They contacted it's driver Riasat Ali and the fair was settled as Rs.400/-. The patrol/Diesel of Rs.300/- was given to him by them. From Ghousia Chowk the taxi car was taken on Pir Mahal Shortkot Road and they passed the bus stand of Chak No. 330/GB and were proceedings towards Chak No.309/GB which was their destination. His companion Imran was sitting in the taxi car behind Riasat Ali. He had 30 bore pistol with him who directed Riasat Ali deceased to stop his taxi car, who obliged him and stopped the car and got down from the car. Riasat All deceased caught hold Imran deceased. He was sitting on the front seat and he descendedfrom the car, tried to rescue Riasat Ali from Imran accused and he took the pistol from Imran accused. In the meantime Riasat AU caught his other arm. He aimed at the head of Riasat Ali and fired the pistol at him which hit on his head and he fell down. He occupied the driver seat in the taxi car and Imran accused occupied the seat besides him. He took the car to the workshop of Asmat Shah accused and stationed the car there. On the followincg_kyi he along with Asmat Shah, Imran,Kamran and Jahangir accused went towards Mardan."
We have also noticed that (PW-11) failed to apprehend the appellant at the time of alleged extra judicial confession despite the fact that appellant (David Mashi) allegedly had come alone to make confession before them (PW-11 and Muhammad Ashraf Khan) and the said witness (PW-11), was present in his baithak along with Muhammad Ashraf. It is also on the record that both the said P.Ws. Failed to report the extra judicial confession of the appellant to the complainant immediately on 01.10.2008 when appellant allegedly made such confession before them despite the fact that the house of the complainant is situated just 1-K.M. Away from his (PW-11) residence. It is also important to note that David Masih (appellant) admittedly was not acquainted with said witness, therefore, there is no reason to believe that David Masih has made extra judicial confession before said witness. It is also noteworthy that plea of extra judicial confession was revealed to the Investigating Officer by the complainant as well as said P.Ws. On 02.10.2009 after one day. No plausible reason is given for such inordinate delay with regard to report to the Investigatinj Officer.
The other witness of extra judicial confession has been given up by the prosecution being won over.
In the attending circumstances, the sole statement of Muhammad Siddique Piyara (PW-11) is not sufficient to rove the .Lea of extra *udicial confession of posecution In order to prove the extra judicial confession prosecution is bound to establish following essential ingredients:- i) Firstly that the extra judicial confession is in fact made; ii) Secondly that the confession is voluntarily made; iii) Thirdly that it is truly made; and iv) Fourthly that the motivating force behind is proved.
Testimony of sole witness (PW-11) on the dimension of extra judicial confession fails to establish the above mentioned four ingredients to prove the extra judicial confession of the appellant David Masih. It is variously held by the Hon'ble Apex Court that plea of extra judicial confession must be proved by the witnesses of unimpeachable character. Above noted inherent defects in the testimony of the (P.W11) made the extra judicial confession doubt full and fatal for the prosecution case, therefore, make it crystal clear that the same is fabricated and cannot be believed at all.
Reliance is made upon Wazir Muhammad and another Vs. The State (2005 SCM R 277).
The question of placing reliance on extra judicial confession of the accused person came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCM R 231), wherein it was held that:- This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions staring from "Ahmad 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 "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 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-- .....22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoction like extrajudicial confession. Such confessions, by now, have become the signs of incompetent investigation "It is further held that the status of the person before whom the extrajudicial confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by the Court. 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.
It is admitted position that extra judicial confession was made by appellant David Masih on 1.10.2008 whereas the occurrence took place in the night between 7/8-09.2008. Therefore, we found no reason to believe the extra judicial confession which was made by the PW-11 without any reasonable justification, especially when the David Masih appellant was not known to the PW-11 and having no relation for which they come forward to make statement of extra judicial confession.
This thing does not appeal to a man of common prudence to make the extra judicial confession to an unknown person without any reason. It was blind murder and there was no witness of that occurrence. No direct evidence was available in the case and prosecution case hinged on the circumstantial evidence. Utmost care and caution was required for reaching at a just decision in the case. Every circumstance should be linked with each other and it should form such a continuous chain. Cases relied upon "Saif Ullah and 2 others v. The State" (2015 P.Cr.L.J 820).
Comparative analysis of statement under Section 161 Cr.P.C. And evidence advanced by Muhammad Siddique Piayra (PW11) before the learned trial Court transpires that he has made number of improvements in his version. During cross examination according to P.Ws. Extra judicial confession brought forward by the witnesses was got confronted which make the extra judicial confession doubt full, PW-11 deposed that I had mentioned in my statement before the police Exh.DC that David Mashi confessed before us that "he along with his other companion had formed a group in order to snatch the cars from different person and that we had been snatching the cars at Jhang"(confronted with Exh.DC where it was not so recorded ) I had mentioned in my statement before police Exh.DC that David Masih has further confessed that "we contacted it's driver Riasat Ali (deceased) and fare was settled was Rs.400/. The petrol/diesel of Rs.300/- was filled in it where the remaining Rs.100/- given to him by us". (Confronted with Exh.DC where it is not so recorded ).
Further stated that I had mentioned in my statement before the police Exh.DC that David Masih has confessed before us that "Jahangir accused accompanied the other accused from Faisalabad to Mardan , stopped at CNG station pump there, contacted Badshah Khan and transaction of firstly Rs.5,000/- and than Rs.3500/-was made" (confronted with Exh.DC where it is not so recorded). I had mentioned in my statement before police Exh.DC that David Masih confess that at the time of occurrence Imran accused was sitting on the rear sit of taxi car (confronted with Exh.DC where it is not so recorded). I had mentioned in my statement before police Exh.DC that David Masih had confessed that Imran accused was having pistol 30 bore and he asked Riasat Ali (deceased) to stop the taxi car (confronted with Exh.DC where it is not so recorded). I had mentioned in my statement before the police Exh.DC that he had taken pistol from Imran accused and in the mean time Riasat Ali deceased caught his other arm (confronted with Exh.DC where it is not so recorded).
I had mentioned in my statement before police Exh.DC that David Masih accused had further confessed that he had aimed with pistol at the head of Riasat Ali deceased and shot at his head (confronted with Exh.DC where it is not so recorded), It is settled that the improvements made by the PWs in the Court cast serious doubt about the veracity of the witnesses and the same is not worthy of reliance. Guidance is sought from Muhammad Saleem v. Muhammad Azan and another (2011 SCM R 474) and Syed Saeed Muhammad Shah v. The State (1993 SCM R 550).
17. Adverting to the judicial confession of the appellant-David Masih alias Faisal, we have observed that this was retracted by the appellant-David Masih. In order to act upon a judicial confession, it must be shown to be voluntary and true and in addition, when an accused retracts from the judicial confession, there should be general corroboration. The appellant-David Masih was produced before Mr. Amad-ud-Din Civil Judge/Judicial Magistrate 1st Class Toba Tek Singh (PW- 13) on 25.11.2008 on the 14th day of physical remand as (alleged by the Investigating Officer PW-12).
From the police record it reveals that custody of the appellant-David Masih was with Nishatabad Police Faisalabad from where the custody of the appellant was got transferred on 10.12.2008 by the order of Judicial Magistrate Faisalabad and one day physical remand was granted. On 11.12.2008, physical remand of the appellant-David Masih was obtained by the Investigating Officer (PW-I 2) from the learned Judicial Magistrate Toba Tek Singh, which was expired on 24.10.2008. So, the physical custody of the appellant-David Masih with police after 24.10.2008 was illegal.
On perusal of confessional statement (Exh.PO/11 it reveals that the appellant had not been told that nothing would be done to him by the police authorities even if he did not made any confessional statement nor the (Pw-13) has given a certificate stating the reasons for his satisfaction as he believe that this confession was voluntarily made as required by subsection (3) of Section 164, of the Code of Criminal Procedure. Hence, the element of torture and threat during his (appellant- David Masih) physical remand on the part of the police cannot be excluded in the circumstances.
There is no evidence to corroborate the retracted judicial confession either with regard to the commission of the crime or with regard to the identity of the accused as the complainant (PW-10) admitted that, "after three/four days I came to know about David Masih accused, he was denier in Ghousia Chowk Fir Mehal and I had already information about him that he used to snatch the cars. I visited his Mohallah once or twice after this occurrence. I informed Aslam Khan S.I./1.0 of this case that I had suspicion against David Masih accused. Aslam Khan S.I. Conducted raids at the house of David Masih accused at my instance but he was not apprehended."
The above deposition of the complainant revealed that complainant was not affirm that the appellant-David Masih was one of the passengers who were seen by him on 07.9.2008 in the taxi car of the deceased-Riasat Ali. Exh.PO also suggest that the complainant (PW-10) with regard to the complicity of the criminal convicts was not sure as he (P W-10)exonerated Muhammad Akmal and Muhammad Ameen on 25.11.2008. The recoveries of a gold ring (P-6) and pistol 30 bore could not be guilt-pointing circumstances. There is no independent evidence which would even remotely corroborate the retracted judicial confession in any manner. The retracted judicial confession cannot be said to have been corroborated by the so-called extra judicial confession by the same person, which was brought on the record by PW-11 but same was confronted with Exh.DC.
Corroboration should be made from independent and reliable source, which is missing in the instant case.
18. Insofar as the alleged recovery of gold ring (P-6) and 30 bore pistol (13-4) on the pointation of David Masih-appellant and recovery of mobile phone Nokia (P-7) on the pointation of Imran appellant are concerned, the same are of no avail to the prosecution because PW-10 Sajjad deposed that, I had mentioned in my application for registration of case (Exh.PH) that gold ring of deceased Riasat Ali was removed and stolen by the accused (confronted with Exh.PH where it is not so recorded). PW-12 Investigating Officer admitted that, "It is correct that receipt Mark "A" does not bear any date of purchase. It is correct that said receipt does not bear any signature or stamp of the goldsmith."
As far as pistol (P-4) is concerned, in absence of recovery of crime empty from place of occurrence, the alleged recovery of pistol (P-4) is immaterial. As far as recovery of Mobile Phone (P-7) is concerned same is also immaterial as Muhammad Aslam Khan S.I. Investigating Officer (Pw-12) during cross-examination deposed that, "It is correct that no detail of mobile phone is mentioned in Exh.PH by the complainant. It is correct that complainant did not produce any proof with regard to the ownership of the mobile phone mentioned in Exh.PH. It is correct that I had not prepared any identification memo with regard to the mobile phone mentioned in Exh.PH."
The recoveries are inconsequential and of no avail to the prosecution.
19. This is an unseen occurrence. Prosecution's case hinges upon circumstantial evidence.
Prosecution in this case has failed to establish its pleas of last seen, extra judicial confession, judicial confession and recovery with the help of any reliable confidence inspiring ocular account. It is an established principle of law that circumstantial evidence should be like a chain whose one end should point to accused and the other. To the deceased. The cardinal principle of criminal jurisprudence regarding circumstantial evidence has been explained in plethora of case law on the subject. Here we respectfully refer the case of Sarfaraz Khan Vs. The State (1996 SCM R 188), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "It is well settled that circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches the dead and other neck of the accused thereby excluding all the hypothesis of his innocence."
On the touchstone of the golden principle referred above, the prosecution evidence on the dimension of recovery and of last-seen, as discussed above, do not inspire confidence and on the face of it prosecution evidence being discrepant is not worth reliance. It has been held by the Honourable Supreme Court of Pakistan time and again that one tainted piece of evidence cannot furnish any corroboration to another tainted piece of evidence. We respectfully rely upon the case of Khalid Javed and another vs. The State (2003 SCM R 1419) wherein the Hon'ble Supreme Court of Pakistan has held as under: - "Similarly no independent corroboration is available on record to believe his evidence in view of the fact that the evidence of P. W. Naveed Anwar Naveed and Matoloob Ahmad Waseem has already been discarded, therefore, in view of principle that a tainted piece of evidence cannot furnish corroboration to another piece of tainted evidence as it has been held in Ali Akhtar Hussain v. The State (1972 SCM R 40) and Muhammad Ilyas and another v. The State (1993 SCM R 1602). His statement is also rejected."
In this case, circumstantial evidence has failed to bring the guilt home to the accused beyond any shadow of doubt. Certainly, conviction based upon unreliable ocular account on the dimensions of last seen, extra judicial confession, judicial confession and recovery cannot sustain in the eye of law. Convictions and sentences awarded to the appellants by the learned trial Court through the impugned judgment being perverse and based on misappreciation of evidence are, therefore, liable to set aside.
20. The upshot of the above discussion is that the prosecution had badly failed to bring home charge against the appellants beyond any reasonable doubt, therefore, in the interest of safe administration of criminal justice, Criminal Appeal No.2743 of 2010 filed by Imran appellant and Criminal Appeal No.402-J of 2010 filed by David Masih appellant are acceptoin toto. The sentence awarded by the learned Additional Sessions Judge, Toba Tek Singh, vide judgment dated 03.11.2010 is set aside and the appellants are acquitted of the charge. The appellant-David Masih is ordered to be released forthwith, if not required in any other case. The Murder Reference No.595 of 2010 is answered in the negative and sentence of death awarded to David Masih alias Faisal son of Hameed Sarwar, caste Christian resident of Shadman Colony, Pir mahal, Tehsil Kamalia District Toba Tek Singh is not confirmed. The appellant-Imran son of Muhammad Nawaz caste Janjua resident of Waqas Colony, Amjad Chowk, Jhang is on bail as his sentence was suspended by this Court vide order dated 29.4.2013. The surety bonds furnished by the appellant-Imran shall stand discharged.