ROOH-UL-AMIN KHAN, J.--- Through this single judgment, we propose to dispose of instant Criminal Appeal No,57-P/2013, Criminal Appeal No, 58-P/ 2013 and Murder Reference No,2/2013 as all the three matters are the outcome of one and the same judgment dated 15.01.2013 passed by the learned Judge Anti-Terrorism Court, Mardan vide which the appellants namely Kabir Shah and Zahid were convicted under sections 6(c)/7 ATA read with sections 376/34, P.P.C. And section 302(b)/34, P.P.C. And sentenced to death on two counts and to pay a compensation of Rs,1,00,000/- each to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. The brief facts of the prosecution case are that on 04.9.2012 at 1500 hours, the Complainant Raham Zeb reported the matter to the local police in the casualty of Mardan Medical Complex to the effect that his daughter Mst. Shabnam was the student of Class-II reading in Girls Primary School, Hashtnagro Killi, On 03.9.2012 she had gone to the school as usual but did not return till evening. The complainant searched for her. He was present in his house when received information that the dead body of her daughter was lying in the maize crop of Mohammad Yar. He along with other inmates of the house and neighbours came there and found the dead body of his daughter.
He did not know as to why his daughter was done to death. The report of the complainant was initially recorded in Daily Diary No,34. However, on 05.9.2012 the complainant charged the present appellants for the murder of his daughter.
3. After completion of usual investigation, complete challan was submitted against the appellants.
They were formally charged to which they did not plead guilty and claimed trial. In order to establish the guilt of the appellants, the prosecution examined 17 P.Ws. The appellants were also examined under section 342, Cr.P.C. However, they neither appeared as their own witnesses on oath nor produced any evidence in their defence. After hearing the arguments; the learned trial Court convicted and sentenced the appellants as mentioned above vide judgment dated 15.01.2013.
4. The learned counsel for the appellants contended that the appellants are innocent and have been falsely implicated in the case; that the last seen evidence produced by the prosecution is doubtful; that the confessional statements of the appellants are the result of torture by the police as the appellants remained in custody of the police and more so, these statements are the verbatim copy of statements of the appellants recorded under section 161, Cr.P.C; that the medical evidence does not support the prosecution story and it is an unseen occurrence but the learned trial Court failed to appreciate these aspects of the case and wrongly convicted and sentenced the appellants.
5. Conversely, the learned State counsel assisted by the learned counsel for the complainant supported the impugned judgment and vehemently refuted the arguments of learned counsel for the appellants on almost the same reasons which prevailed with the learned trial Court while passing the impugned judgment.
6. We have given our anxious consideration to the arguments of learned counsel for the parties and perused the record with their able assistance.
7. The prosecution case mainly hinges on circumstantial evidence in shape of the last seen evidence of Ghani ur Rehman (PW-14), Haider Zaman (PW-15), medical evidence, confessional statements of the appellants and statement of complainant Raham Zeb (PW-17).
8. Before going to dilate upon the above referred circumstantial evidence, we are fully conscious of the principle that if the case is based on circumstantial evidence, the prosecution must ensure that the circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established. The circumstances must be unerringly point towards the guilt of the accused and when taken cumulatively, should form a chain so complete that it must demonstrate in all probabilities that the crime was committed by the accused. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such to show that within all human probability the act must have been done by the accused. In case titled, "Sheikh Muhammad Amjad v. State" (PLD 2003 SC 704), the august Supreme Court while dealing with circumstantial evidence, has held that:-- "According to the standard of proof required to convict a person on circumstantial evidence the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive, nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
9. Keeping in view the above principle and dicta of august Supreme Court of Pakistan, first of all, we would take the statement of complainant Raham Zeb (PW-17). Admittedly, he is not the eyewitness of the occurrence but charged the appellants on the second day of the report i,e, 05.9.2012, after due satisfaction. He has not disclosed the source of information and his satisfaction while recording his statement before the Court. As per his statement, on the fateful day his daughter, deceased Shabnam did not return home from school thus he searched for her in surrounding area as well as in the houses of his relative but in-vain. On the next day of occurrence he was informed about the corpus lying in the field of one Maroof Khan, therefrom it was recovered and shifted to hospital for postmortem examination, where he initially reported the matter to local police, which was reduced into writing and incorporated in the Daily dairy. The entire statement of this PW is silent about the source and medium of information conveyed to him regarding the lying of dead body in the maize crop. He has admitted in unequivocal terms that many people, including one Abidullah, Said Wali Shah and Bhutto were present on the spot, when the dead body was recovered, but none of them has been cited as witness, nor produced in support of recovery of corpus. So much so no body from the neighbour or relative have come forward to record his statement to support the story advanced by the prosecution. The prosecution has also not bothered to examine a single witness from the locality, most particularly from relative, where the complainant had made search for his daughter Shabnam. The facts narrated by the complainant are based on hearsay and that too from undisclosed sources, which hardly be based for capital punishment, like death sentence. All the above observed defects, shortcoming and discrepancies in the statement of complainant would led one to an ultimate and irresistible conclusion that neither the occurrence has taken place nor the dead body of Shabnam has been recovered in the mode and manner as described by the prosecution.
10. Next piece of evidence, relied upon by the prosecution is the last seen evidence furnished by Ghani ur Rehman (PW-14) and Haider Zaman (PW-15). According to Ghani ur Rehman (PW-14), on 03.9.2012, he along with Dawood was present in the street when accused Kabir Shah and Wahid came there. They were offered tea by Dawood but the accused told him that their another colleague, namely, Zahid is waiting for them in the Khat, therefore, he (Dawood) may bring tea there. Accordingly he along with Dawood took the tea to Khat where all the three accused were present. They served tea to the accused and thereafter returned and the tea pots were brought back by the daughter of Dawood from the accused. Haider Zaman (PW-15) stated that on the day of occurrence at `digar-vela he along with Khurshid was present on the bank of canal, when appellant Zahid came and sat there. After about 30 minutes of his arrival, accused. Kabir Shah and Wahid also came there. They took a short swim in the canal and thereafter went away. At evening time, they came to know about missing of daughter of one Raham Zeb. Dawood who offered and brought tea for the accused was the best witness, who was not even examined by the prosecution.
He was the person who could have narrated the actual facts. The best piece of evidence available with prosecution, if not produced without any plausible explanation, and was withheld, then it would be fair to presume that had the same been produced in the case; it would have not supported the prosecution case. It is the requirement of "best evidence rule" that the best evidence of which the case in its nature is susceptible should always be presented. Perusal of statements of both the above referred prosecution witnesses would divulge that their evidence are restricted to the extent of only presence of accused at khat and canal. Both of them have not uttered a single word about presence of deceased with the accused. As per prosecution case, the crime has been committed at 12-30/1-00 PM, while the above referred witnesses have met and seen the accused after 4-30 PM in the field of one Maroof. For believing last seen evidence it was required that deceased should be seen in the company of the accused by the prosecution. Witnesses some short time before happening of the incident, which is missing in the case in hand, thus the testimony of the above referred two witnesses cannot be termed as last seen evidence. In any case, the last seen evidence is a weakest type of evidence unless corroborated .By other strong pieces of evidence. It is difficult to award punishment on capital charge, only on the basis of evidence of last seen, unless the last sighting of the deceased with an accused has a close proximity with the death of the deceased so as to rule out any possibility of intervention of any other person during the intervening period. It is well settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable character is required. It is golden principle of criminal justice that finding of guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced' to naught.
11. An unattested copy of attendance register from the Girls Primary School Jhary has been brought on record by the prosecution, but it has not legally been proved. The Headmistress of the school or class teacher has not been examined to prove the attendance of deceased; her school leaving; whereabouts after school leaving and staying up to 4-30 PM after school closing time. Even no student of the class has been examined to show that in fact on the day of occurrence; the deceased had attended the school. According to the prosecution evidence, during the days of occurrence the school closing time was 12-30 PM, therefrom it can be easily inferred that the deceased might have left the school before 1-00 PM, but on the other hand the occurrence has taken place in early evening houRs, After leaving the school, how the deceased remained in the field is a mystery and enigma which create serious doubts in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit the prosecution story and entitle the accused for acquittal. It is well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case rather any reasonable doubt arising out of the prosecution ,evidence, pricking the judicial mind is sufficient for acquittal of the accused. In case titled, "Tariq Pervaz v. The State" (1995 SCM R 1345) the august Supreme Court was pleased to rule that for giving the benefit of doubt, it is not necessary that there should be many circumstances, creating doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, the accused would be entitled to the benefit of doubt not as a matter of grace or concession but as a matter of right. The same principle was reiterated by the apex Court in case titled, "Muhammad Akram v. The State" (2009 SCM R 230) and it was observed that it is an axiomatic principle of law that in case of doubt, the benefit thereof must go in favour of the accused as a matter of right and not of grace.
12. Next piece of evidence is the confessional statements of the appellants recorded by Ijaz-ul-Haq Awan, Judicial Magistrate, Thakht Bhai who appeared as PW-7. Both the appellants in their confessional statements have contradicted each other regarding timings of occurrence. Appellant Zahid stated that at about 01 P.M. He along with his brother Wahid and friend Kabir Shah were taking bath in canal when they planned to go to Khat in the fields of Haji Maroof for cooking `chhalia' thus they reached there. In the meanwhile Dawood, their co-villager brought tea for them.
Kabir Shah and Wahid took tea and thereafter they saw deceased Shabnam coming alone, upon which they became in nasty mood for committing Zina with her. Kabir Shah appellant took her towards sugarcane crop and subjected her to Zina and thereafter he and accused Wahid committed Zina with her turn by turn. On the following morning, appellant. Zahid accompanied Kabir Shah to the fields, where Kabir Shah removed the dead body of deceased from the scene of offence and placed it in a nearby maize crop. Appellant Kabir Shah recorded similar confessional statement with the addition that accused Wahid tied legs of the deceased and he lugged her mouth with clay and then throttled her due to which she died. He also stated that it was 1.30/2 PM.
The timings given by both the appellants are contradictory to each other. Appellant Zahid has not disclosed the manner in which deceased was done to death. The statements of Gani ur Rehman (PW-14) , Haider Zaman (PW-15) and alleged confessional statement run contrary to each otheRs, According to above mentioned PWs, the occurrence has taken place after 4-00 or 4-30 hrs while as per alleged confession the accused have committed the offence at 1-30/ 2-00 PM. Besides, the appellants have been arrested.On 5-9 2012, viz on the day when they were charged by the complainant. Since then they have remained in police custody and their confessions were recorded on 8-9-2012, hence, the element of torture and threat during their physical remand on the part of the police cannot be excluded from the consideration. From confessional statement of the appellants it is manifest that the same has been recorded on a printed form/ questionnaire, wherein, the questions have been put to the appellants in English and their reply have also been recorded in the same language. Any confession recorded by a Magistrate in question form would be mere a formality and it must be presumed that the questions have actually been not put to the accused. It is further evident from the confessional statement of the accused that only 30 minutes time has been given to the accused for thinking over and making confession, which is too short, in view of the numerous judgments of august Supreme Court of Pakistan. It has also borne from the record that during the crucial days the inhabitants of area had lodged a serious protest in the locality and they were demanding for the immediate arrest of the real culprits. Even, the learned trial court while parting with the impugned judgment has observed that as the accused could not engage an independent counsel for themselves, because nobody from the Bar was ready to defend the case of accused. Ultimately, one Iftikharuddin Khan, advocate, Mardan voluntarily took the responsibility to conduct the case of accused. The above situation clearly indicates that after the occurrence, due to furious attitude of the inhabitants of the locality, the local police and administration was under duress and pressure.
13. The confessional statement is also retracted by the appellants during the trial. During statement under section 342, Cr.P.C., the accused appellants while replying the question about confessional statement stated in the following words:-- "It is incorrect. I was not produced before the Magistrate and in fact the 1.0. Obtained my thumb impression/signature on the blank paper and the alleged confession was fabricated one which was a verbatim copy of the 161, Cr.P.C. Statement written by the 1.0. According to his own will in order to strengthen the prosecution case. The alleged confession was written by the Magistrate with the collusion of the police high-ups. "
Retracted confession cannot be based a ground for conviction of the accused person unless the same is corroborated by strong corroborative pieces of evidence.
14. The medical evidence does not I support the prosecution story. According to the opinion of lady doctor (PW-2), the cause of death was asphyxia with strangulation and it was a case of sexual assault. She clarified during cross-examination that sexual assault is different from sexual intercourse. During arguments our attention was drawn towards the postmortem report conducted by lady Doctor Shahrukh WMO, Mardan Medical Complex, Mardan. In remarks column of the autopsy report certain additions have been made with a ballpoint of different ink. During examination before the trial court she admitted the writing with a different colour of ink but explained it in the following manner.
'The front line of my opinion is shown to be of different ball point for the reason that one ballpoint was ended and this fact was not mentioned by me in my opinion. It. Is correct that the first line of my opinion and time between injuries and death and postmortem is of the same ballpoint and similar is the position of my signature and date. It is incorrect to suggest that my opinion about sexual assault on the dead body as well as the remaining opinion about the seminal stains mentioned by me in the P.M report at the instance of police later on.
' PW-12 Muhammad Akbar Khan S.I. Has conducted investigation in the case. During his statement before the trial court he produced an application submitted before the doctor for ascertaining the commission of sexual intercourse with the deceased. In the cross-examination, he negated statement of the lady doctor and admitted the fact that initially the factum of zina was not mentioned in the postmortem report, therefore, he submitted an application Ex:PW12/6 for asking her opinion which was furnished by the lady doctor on 15.9.2012. It is pertinent to mention here that the autopsy of the dead of the deceased was conducted on 04.9.2012 while the opinion regarding sexual assault was furnished on 15.9.2012, which shows that the lady doctor has made an endeavor to deceive the court with her dishonest statement. Such an unexpected, deliberate dishonesty on the part of lady doctor and investigation officer would cause serious doubt in their veracity. The statement of lady doctor further negates the confessional statements of the appellants that they committed Zina with the deceased and if it is presumed that assault was made 'by the appellants, then signs of violence must have been available on the body of the deceased. Moreover, during cross-examination, the lady doctor admitted it correct that:- "If we took the maximum time of 8 hours as mentioned by me between the death and postmortem of the deceased then the death of the deceased occurred at 7.20 AM".
Postmortem on the dead body of the deceased was conducted on 04.9.2012 at .03.20 PM whereas the occurrence has taken place on 03.9.2012. The statement of lady doctor clearly negates the alleged confessional statements of the appellants and denotes that the occurrence has not taken place in the mode and manner alleged by the prosecution. It is settled law that solitary judicial confession, if made basis for conviction, must be relied upon in toto without any pick and choose.
The learned trial Judge has relied upon the confessional statements of the appellants but failed to take into account that these were not corroborated by the statement of lady doctor and the statements of Ghani ur. Rehman and Haider Zaman who were examined to furnish last seen evidence.
15. In so far the pointing out the place of occurrence by the accuse is concerned, it is hardly of any consequence to the prosecution as the place of occurrence had already been visited by the investigation officer, in presence of complainant, and after alleged pointing nothing incriminating has been recovered from the place of occurrence.
16. The learned Trial Court has convicted appellant on the basis of circumstantial evidence. It is established principle of law, that all pieces of the circumstantial evidence must be so interconnected as a chain that one end of it be at the dead body of the deceased and the other around the neck of the accused. If any chain of the circumstantial evidence I broken, the whole prosecution case falls to the ground. In the instant case, all pieces of circumstantial evidence are so weak and scattered that no piece connects the other, rather, the case is based on no legal evidence or evidence of no legal consequence.
17. Finally, we might stress, even at the risk of repetition, that the genesis and origin of the present occurrence appears to be shrouded in deep mystery. Thus, in view of the inherent improbabilities, serious omissions and infirmities as Well as other circumstances, pointed by us, we are of the firm view that the prosecution has failed to prove the.Guilt of accused through cogent, coherent and confidence inspiring evidence of unimpeachable character. Rather the prosecution evidence is shaky and scanty and full of doubts which cannot be made basis for conviction.
18. For what has been discussed above, we are of the firm view that the learned trial Judge has failed to appreciate the evidence brought on record in true perspective and erred in law by convicting and sentencing the appellants.
19. Resultantly, we allow this Criminal Appeals Nos.57-P/2013 and 58-P/2013, set aside the judgment of conviction and sentence dated 15.01.2013 recorded by learned Judge, Anti-Terrorism Court, Mardan and acquit both the appellants of the charges leveled against them. They shall be released forthwith from Jail if not required in any other case.
20. The Murder Reference is answered in the negative.
' Above are the detailed reasons ror our short order of the even date.