' SALAHUDDIN PANH WAR, J.---Through instant appeal, appellant has challenged the judgment dated 27.12.2002, passed by learned IIIrd Additional Sessions Judge, Nawabshah, Sessions Case No.212/2000, whereby the appellant was convicted under section 302, P.P.C. And sentenced to undergo R.I for life and to pay Rs.150,000/- as compensation to the legal heirs of the deceased. In default of payment of compensation, he shall undergo R.I. For five years.
2. Relevant facts of the case as stated in FIR, in brief, are that about six months back complainant and his maternal uncle Bashir Ahmed shifted from Chak No.6 at land of Ch. Abdul Majeed for harap purpose. About two years back marriage of Mst. Parveen alias Gudi daughter of Saeed, sister-in- law of complainam, was arranged by him with Zulfiquar, son of his (complainant's) sister-in-law.
Said Mst. Gudi was fiancee of accused Abdul Hameed so he got annoyed due to this reason and used to issue threats to the complainant from time to time that he will teach him a lesson which will be remembered by him throughout his life. On 12.09.2000, at 11.00 a.m, cemplainant's minor son Shanwar Iqbal was playing near the sugarcane crop of Abdul Hameed while Abdul Hameed was available in the sugarcane crop with a sickle. Suddenly, Shanwar Iqbal who, despite search by complainant and his wife Bilqees, in the crops could not be found. At about 1.00 p.m. They enquired from the accused as Shanwar Iqbal was with him in the cultivation on whiqh accused remained silent and did not reply. Then the complainant continued searching his son, and went to his zamindar Ch. Abdul Majeed to whom he narrated the incident of missing of his son. Then he returned to his village where his wife Mst. Bilqees disclosed that dead body of their son Shanwar Iqbal is found in the sugarcane crop of accused Abdul Hameed which she found through Umar Brohi and Anwar Isai. Thereafter complainant and his wife came to the place where dead body of their son was lying. Complainant's father Allahditto also came there and they saw that there was cut marks of sickle on the neck of Shanwar Iqbal; bleeding; having marks on his face and his neck was broken. He was dead. Then he left his father Allahditto at the dead body of Shanwar Iqbal and in the way they met Ch. Abdul Majeed to whom he disclosed the above incident and went to lodge FIR along with Ch. Abdul Majeed alleging that accused has killed his son with sickle due to reason that his fiancee Mst. Parveen was got married by complainant with another person. In the way accused Abdul Hameed met complainant and his wife Bilqees and admitted to have killed their son.
3. At trial, prosecution has examined complainant Hidayat Ali, who produced the FIR as Ex.6A, Mst.
Bilqees W/o complainant at who produced her affidavit as Ex.7A, P.W. Anwar Bhatti at Ex-8, P.W.
Abdul Majeed Arain at Ex-12, Tapedar Muhammad Juman Ex-13, who produced sketch of vardat as Ex-13A, Dr. Yar Ali Jamali at Ex-15, who produced post-mortem report as Ex.15A, P.W. Shafi Muhammad, mashir of vardat, danistnama, arrest and recovery and produced mashirnamas of place of incident, danistnama, mashirnamas of arrest and search of body of accused, mashirnamas of recovery of sickle and mashirnamas of recovery of bloodstained shirt as Ex.16A to 16E and I.O. Inspector Ghulam Shabbir Sehar at Ex.17, who produced Chemical Examiner's report at Ex.17A and 17B, P.Ws Riaz, Wali Muhammad and Anwar vide statements Ex-9, 11 and Ex-14. Then statement of the accused was recorded under section 342 Cr.P.C. Wherein he pleaded his innocence and claimed to have been falsely implicated. He, however, did not examine himself on oath nor lead any evidence in defense.
4. Learned counsel for the appellant, inter alia, contends that this is a case of last seen evidence, but no evidence that before missing the deceased was last seen with accused; statements made by the complainant in FIR and his wife Mst. Bilqees in her 161, Cr.P.C. Have been contradicted by them while examining before the trial Court; the extra judicial confession of the accused is a weak type evidence, which can easily be procured in absence of direct evidence; such extra judicial confession has no value in the eye of law; there are many contradictions in the evidence of complainant and other P.Ws; the recovery of bloodstained sickle, made from an open place after 27 hours, is not reliable; the alleged place of incident is not the actual place of incident because in view of medical evidence neck of the deceased was blackish due to touch of hot object, but at the alleged place of incident no Sign of fire was seen; the/motive as pleaded by the complainant in FIR has not been proved or established through convincing evidence; medical evidence is in conflict with the prosecution case; complainant in FIR stated that he himself saw his minor son while playing near the sugarcane crop of accused, but in his evidence before trial Court he deposed that he came to know about the incident through his wife when he came to his house; prosecution case is full of contradictions; the appellant is entitled to be acquitted of the charge. In support of her contention, learned counsel for the appellant has placed reliance on 2006 SCM R 231, 1996 SCM R 188, 2005 SCM R 277, 2010 P.Cr.LJ 1750 (FSC), 2009 PCr.LJ 894 (FSC), 2002 SCM R 441, 2010 PCr.LJ 1730 Lahore, 2010 YLR 914 Lahore, PLD 2008 SC 298, 2013 YLR 2734, 2012 M LD 466, 2009 SCM R 120 and 2008 SCM R 1064. She further contends that as per jail-roll dated 30.01.2015, appellant has served out substantive'sentence i.e. 14 years 04 months and 23 days, he has earned remission of 09 years and 08 days; further she contends that while serving out the sentence the appellant has lost his vision about 09 years back and since then he suffering from such ailment, as opined by the Medical Board.
5. Learned A.P.G. Contends that there is sufficient evidence against the appellant, therefore, impugned judgment is in accordance with law.
6. The entire edifice/structure of the prosecution case is founded on the following pieces of circumstantial evidence:-
(i) The last seen evidence given by PW complainant Hidayat Ali;
(ii) The recovery of blood stained sickle;
(iii) The extra judicial confession made before complainant Hidyat Ali and his wife Mst. Bilqees; AND
(iv) The medical evidence;
7. First, I will take up the last seen evidence provided by the complainant Hidayat Ali, who was examined at Ex-6 as P.W1. It would be conducive to refer his examination-in-chief, which reads as under:- "This incident took place on 09.12.2001. On the day of incident at about 11.30 AM, I was working at the land, my son Shanwar Iqbal was playing near the sugarcane crop. The sugarcane belong(s) to accused Abdul Hameed. Abdul Hameed was available in his sugarcane crop. My son iuddenly disappeared. I myself and my wife Bikees searched our son but could not trace him out, therefore, we asked about our son from Abdul Hameed but he remained silent and could not give any satisfactory reply. I then came to inform our nakmard Abdul Majeed at Nawabshah town. When I came back from Nawabshah town my wife informed me that she had gone to Umar Brohi and Anwar Esai for help in search of our son. With their help dead body of our son Shanwar lqbal was found out from the sugarcane crop of Abdul Hameed. I then went along with my wife to the sugarcane crop and found the dead body of our son lying with injuries on his neck and his neck was having cut marks. My father Allahditta, Umar Brohi and Anwar Esai were also present. I then along with my wife went to Abdul Hameed and asked him as to why he had inurdered our son to which he replied that he has murdered Shanwar lqbal and threatened us to do whatever we like.
Then I proceeded to lodge report and on the way Abdul Majeed met me, to whom I narrated the story. Abdul Majeed asked me as to why Abdul Hameed had murdered my son to whom I told that a fiancee of accused Abdul Hameed namely Gudi alias Parveen was married with Zulfiqar son of my brother-in-law, on account of which Abdul Hameed was annoyed, and used to issue threats of teaching us a lesson. I then lodged report at P.S. I produce FIR as Ex-6A. It is same, correct and bears my LTI. Accused Abdul Hameed present in court is same. I had shown place of occurrence to police."
The above examination-in-chief of the complainant makes it clear that the complainant does not claim to have seen the accused near the deceased nor the accused was seen taking away the deceased (child) but he (accused) was seen in his own land which, otherwise, is quite natural.
Further, in his cross-examination, complainant has deposed that he was ploughing the land and his son was playing near the sugarcane crop of accused and accused was available at that time, when he was cutting the grass. An act of cutting grass with sickle by an owner (accused) in his own agricultural land is also a quite natural hence cannot be taken to raise any adverse inference against such person, particularly when such an act is not alleged to be out of routine. I must add that seeing one doing his routine works without being seen in company of deceased cannot be legally taken to draw an adverse inference which is necessary to raise a structure of 'criminal charge', entirely resting on IA 'circumstantial evidence'.
Further he (complainant) has deposed that: "I came to know about the incident at about 11.30 AM when I came to house, my wife informed me about misplacement of our son. We left in search of our son at about 11.30 AM. We did not search our son inside the sugarcane crop'. The dead body of my son was traced out at about 4.30 PM.
The admission of the complainant to the effect of 'not searching the missing child inside the sugarcane crops' should have been taken as a circumstance that complainant party, at the first, did not doubt the involvement of the appellant/accused in missing of the child (deceased).
8. In view of the above evidence, leaving behind much to be debated upon, I can safely hold that through the evidence of above witness, the complainant Hidayat, the prosecution never succeeded in establishing the 'last seen' which, in most general sense, in criminal administration of justice, gives a 'sense/impression of having seen the deceased last in company of the accused' but in the instant matter the prosecution never .Proved such an important aspect, hence the structure of the case crumbles down.
9. Be as it may, a case, resting on circumstantial evidence, to conclude in conviction should qualify the test, as laid down in the cases of Fazal Elahi v. The Crown (PLD 1953 FC 214), Muhammad Fayya z v. The State (PLD 1984. SC 455), MD Nazir Hossain Sarkar v. The State (1969 SCM R 388). In the case of Fazal Elahi Khan Hon'ble Mr. Justice Abdul Rasheed, Chief Justice, while speaking for the Full Bench consisting of Mr. Justice A.S.M. Akram and Justice A.R. ,Cornelius (late) laid own principle of extra ordinary caustion for guidance of the courts to be followed while recording conviction on the basis of circumstantial evidence. The relevant para is reproduced below:- "In cases which like the present rest entirely on circumstantial evidence, it is of the utmost importance that such a circumstance should be ascertained with minute care, before, any conclusion or inference adverse to the accused person is drawn.
In the ordinary case, this Court is content to accept findings of fact reached in the High Court. The present case, however, rests on nothing but circumstantial evidence, i.e. Evidence relating directly to a number of minor facts, which facts, the prosecution regarded as sufficient, in the total absence of direct evidence, to sustain an inference that Fazal Elahi murdered Jamal Din. It may be conceded that "a concurrence of well-authenticated circumstance composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords' (Paley).
Nevertheless, where the direct evidence relates only to minor facts, and consequently, the case rests wholly on circumstantial evidence, it is necessary to remember that 'processes of inference and deduction are essentially involved, frequently of a delicate and perplexing, character, liable to numerous causes of fallacy" (Wills on Circumstantial Evidence). This danger points the need for caution in accepting proof regarding any one of the purpose of drawing inferences therefrom. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, is apt to create specious appearance, which is calculated to lead to fallacious inference. Hence the necessity of accepting, as the basis of inferences, only such circumstances as are "well-authenticated". Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."
By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its nose fits in the neck of the accused and the other end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge. To strengthen my view point, it would be pertinent to refer para-10 and 11 of the case. Of Muhammad Mukhtiar v. State (2010 PCr.LJ 1750), which read as under:- "10. The case of the prosecution depends upon the concatenation of three events: (a) the factum of the deceased having been last seen with the accused which is sought to be established through the evidence of Manzoor Ahmed P.W.9; (b) the element of extra-judicial confession having been made by the accused before two witnesses Iftikhar Ahmed P.W.10 and Ahmed Hayat P.W.11 in one sitting and (c) the production of the confessing accused before the police by the same set pf two witnesses of the extra judicial confession.
11. In other words this is a case which depends solely upon circumstantial evidence. The principles of appreciation of evidence applicable in cases depending entirely on circumstantial evidence have been enumerated in the case of Mohabbat v. The State reported as 1990 PCr.LJ 73 which for the sake of reference may be enumerated as follows:--
(i) Circumstances from which the conclusions are drawn should be fully established.
(ii) The facts must be consistent with the hypothesis.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv) The circumstances should, to a moral certainty, actually exclude every hypothesis, but the one proposed to be proved."
In the instant case, the prosecution, even, failed to establish the very required ingredient i.e. 'last seen'. Further, the place of recovery of the dead body is not such a place which could qualify the term to be a 'place' in absolute and exclusive possession of the accused/appellant D rather happened to be an 'agricultural land' where one can easily enter. Thus, it was a matter of record that neither the appellant/accused was last seen in company of the deceased nor the alleged place of recovery of dead body was such a place, having absolute and exclusive control of the appellant/accused. Let me add that where these two important links fail to hold each other in a case, entirely, rests on circumstantial evidence but this aspect was entirely ignored by learned trial court while convicting the appellant.
One must keep in mind that 'a link' in a case of circumstantial evidence means all piece(s) of evidence/material which the prosecution relies. In cases, entirely resting upon 'circumstantial evidences' the 'motive' is also ,one of, the link of the straight chain which the prosecution must lay before insisting conviction in such like case, if it has so been relied by prosecution while marshalling its case. In the instant case, the motive of the case, was also not established by the prosecution although it was specifically pleaded as the 'only reason for the accused to commit the alleged offence'. Thus, the failure of the prosecution in this respect should have been considered in favour of the appellant/accused by the trial Court.
10. As regard the recovery, the perusal of the record would speak for itself that the recovery of sickle has been from an open place which was also not claimed to be in exclusive and absolute control of the accused, hence recovery from such place too, cannot be termed to be of a worth to work as a 'link' to straighten the chain which, otherwise, had many missing links.
11. The record would show that it is quite illogical and unbelievable that if the appellant had attempted to conceal himself while murdering and throwing dead body then what made him to admit guilt before complainant and his wife. Further, it has also been an admission on part of the complainant that when he and his wife first enquired from appellant/accused about the child he didn't reply, therefore, claim of the complainant that just after lapse of few hours the appellant/accused admitted about committing the offence. This seems to be not in line with normal behaviour of one. Even otherwise, it is needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source which is lacking in the instant case, therefore, in my view, this piece of evidence is entirely insufficient to carry conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who normally indulge in such like police chicanery.
12. As regard the medical evidence, it would suffice to say that medical evidence could, at the best, describe the nature of injuries and kind of weapon and not the culprit. Therefore, 'medical evidence, in absence of other strong corroboration, is of no help for prosecution.
13. It is worth to add here that a strong chain of events must exist and the hypothesis should not be capable of being explained away on any premise other than the guilt of the accused, particularly, in the cases of capital punishment. A mere suspicion, however, strong it may be, cannot take the place of evidence. Being so, it cannot hold the conviction by standing alone in isolation. Further, it is settled principle of law that if a single doubt is created in the prosecution case such benefit shall go in favour of accused.
14. In view of above, I am of the opinion that prosecution story is not appealable to a prudent mind and prosecution has failed to prove its case beyond any reasonable doubt.
15. While parting, I feel myself compelled to say that the term 'justice' shall not stand defined unless at the end of the day 'truth is not found' because justice is not meant to follow the dotted line(s) of prosecution or defence but is the name of 'finding the truth'. Court(s) can never swipe off a tear, fell from an eye of a victim and similarly nor it can bring a single moment of liberty back for which an accused otherwise was entitled. The Court is hoped and believed to hold the scale of justice strongly without being influenced with sorrow of victim or heinousness of an 'allegation'. The 'conviction', no doubt, is one of the two scales of Criminal Administration of Justice but it shall never over-weigh the scale of acquittal (benefit of doubt) unless all reasons of law and judicial logics deny the acquittal because whole structure of Criminal Administration of Justice revolves round its golden principle i.e. 'benefit of doubt'. Needless to add that till determination of guilt an accused continues with presumption of his 'being innocent'. The 'benefit of doubt' fulfills its meaning only when it is kept in mind that it is better to acquit ten guilty in place of convicting an innocent. This principle so also guidelines, so set by Apex Court in deciding such like case(s) seems to have not been properly appreciated by trial court while convicting the appellant although all court(s) must stick with principle(s) of law whenever to write a criminal judgment.
16. Above are the reasons of short order dated 11.02.2015, whereby the appeal was allowed; impugned judgment was set aside and the appellant was directed to be released forthwith if not required in any other case.