' Abdul Sami Khan, J.--Through this appeal under Section 410, Cr.P.C. Muhammad Arshad and Muhammad Latif appellants have assailed the judgment dated 26.08.2010 handed down by the learned Additional Sessions Judge, Toba Tek Singh through which both the appellants were convicted under Section 302(b), PPC for Qatal-e-Amd of Waseem Ahmad deceased and were sentenced to death. They were also ordered to pay compensation of Rs. 200,000/-(Rupees two hundred thousand only) each to the legal heirs of the deceased under Section 544-A, Cr.P.C. In case of non-payment thereof they were ordered to further undergo simple imprisonment for six months each. The appellants have filed the instant appeal against their convictions and sentences whereas the learned trial Court has sent a Reference under Section 374, Cr.P.C. For confirmation or otherwise of death sentences passed against the, appellants which has been numbered as Murder Reference No. 485 of 2010. We propose to decide all these matters together through this single judgment.
2. According to the case of prosecution as mentioned in the FIR (Ex.PD/1) the complainant is resident of Chak No. 324/G.B. Tehsil and District Toba Tek Singh. His son Waseem Ahmad, aged 25 years left his, house on 14.01.2009 at about 6.30 p.m. After taking meal and he was seen by Abdul Khaliq as well as Muhammad Habib in the company of an unknown person at Square No. 49, Killa No. 4 on a metaled road leading from Chak No. 324/G.B. To Chak No. 323/G.B. Thereafter son of the complainant did not return home upon which the complainant made several calls on his mobile phone No. 03467298924 but his phone remained off on all occasions. The complainant-began search of his son of his own but in vain so he reported the matter to the local police. On 28.1.2009 at "about 9.00 a.m. The complainant was informed by Muhammad Akhtar and Mehmood. Bashir about the deadbody of his son in a well within the area of Chak No. 324/G.B. At Square No. 49, Killa No. 16 because they both have seen the same in the well after smelling foul/stinking odour when they were passing through the well of the tube-well. Upon receiving information the complainant alongwith Ishtiaq Waheed reached at the spot. The complainant has stated in the FIR that somebody has killed his son after abduction. A formal FIR No. 14/09, dated 28.01.2009 for offences under Sections 364/302 "PPC was registered at, Police Station Chitiana, District Toba Tek Singh on the application moved by the complainant.
3. The investigation in this case was conducted by Muhammad Aslam Khan, SI (PW-11) who brought out the dead body of the deceased from the well; prepared injury statement-Ex.PJ of the deadbody prepared inquest report Ex.PB; prepared rough site-plan Ex.PK; recorded the statements of PWs; recorded the supplementary statement of the complainant on 01.02.2009 wherein he nominated the appellants; he, recorded the statements of Muhammad Shabbir and Iftikhar regarding extra- judicial confession of appellants on 04.02.2009; on 23.02.2009 got prepared scaled site-plan from the concerned Imtiaz Ahmad, Patwari (PW-2) which is Ex. PC; arrested the appellants in this case on 02.03.2009; on 05.03.2009 recovered mobile phone P8 from Muhammad Arshad appellant vide recovery memo. Ex.PF; also recovered SIM P9 from Muhammad Latif vide recovery memo. Ex.PG on 08.03.2009; found the appellants guilty and submitted challan against them in the learned trial Court. Charge was framed against the appellants on 19.05.2009.
4. The prosecution in order to prove its case against the appellants examined as many as eleven witnesses before the learned trial Court. Last seen evidence was furnished by Abdul Khaliq (PW-6) whereas evidence of extra-judicial confession was furnished by Muhammad Iftikhar (PW-7). Ishtiaq Waheed (PW-8) appeared before the learned trial Court and stated about his supplementary statement wherein he had nominated the appellants alongwith complainant Nazir and Mehmood.
The medical evidence in this case was furnished by Dr. Muhammad Javed, Medical Officer, RHO 316, Chutiana (PW-1) who conducted the post-mortem examination on the dead body of deceased Waseem Ahmad on 28.01.2009 and found following injury on the person of deceased: -- "1. Leceration wound the neck width 3.5 cm muscle rapture and hyoid bone fractured."
According to the opinion of the Doctor cause of death in this case asphyxia due to strangulation under Injury No. 1 which is sufficient to cause death in ordinary course of nature. Injury was ante- mortem.
5. In his statement recorded under Section 342, Cr.P.C. Muhammad Latif appellant had controverted the allegations leveled against him by the prosecution and he had also professed his innocence. In response to a question that "why this case against you and why the PWs deposed against you" the appellant stated as under: "It was blind murder. There is no evidence with the prosecution regarding missing of Waseem Ahmad deceased from 14.1.2009. Initially prosecution version is that on 14.01.2009 deceased Waseem deceased was seeing with one unknown person by the PWs Abdul Khaliq and Muhammad Habib. Later on in order to involve me and my co-accused in this false case due to the reason that we are the poor "Moeen" of the village. Deceased Waseem Ahmad was a man, of bad character. Deceased and his father Nazir Ahmad had enmity with so many people of the village. I and my family opposed complainant party who is the landlord of the village in every election. All the prosecution story is based on surmises and conjectures. It is in prosecution evidence that I was arrested on 15.1.09 and some other boys of the village were arrested by the police on 15.1.09 in this case and on 28.1.09 moved application Ex.PD against one unknown person for abduction and murder of Waseem Ahmad deceased. According to complainant's evidence and his nephew Ishitaq Waheed I was arrested on 15.1.09 but the story of extra judicial confession made before lftikhar Ahmad and Muhammad Shabbir PWs on 3.2.09 is impossible and there is no evidence against me and my co-accused for abduction and murder of Waseem Ahmad deceased. The complainant provided sim to the I.O. And he planted upon me while sitting at the PS. I have no concern with the commission of murder of deceased Waseem Ahmad. During prosecution evidence especially complainant took different stands. It was admitted by the complainant Nazir Ahmad that he moved application to Hon'ble Chief Justice of Supreme Court of Pakistan and I.G.
Punjab and the PM of Pakistan and CM Punjab regarding the arrest of real murderer of Waseem Ahmad deceased against Muhammad Naseer s/o A.I and Maqbool etc. Even after submission of report u/s 173, Cr.P.C. In this Court the complainant moved such application upon which investigation was conducted by DPO and SDPO in this regard. All the PWs have deposed against me with mala fide and close relation with the complainant.
PW Ishtiaq Waheed used to came in our Mohallah in order to commit zina with the females of Moeens, I and my brother Nadeem forbidden him upon which he got registered a false Case No. 227 dated 19.10.2000 u/S. 18 of Zina (Enforcement of Hadood) Ordinance, 1979 at PS Chutiana .Against my brother Nadeem and he was acquitted by learned ASJ on 16.3.2002. I produce the judgment as Ex.DC and statement of Muhammad Yar 1.0 of that case as Ex.DD."
' Muhammad Arshad appellant neither recorded his statement under Section 340(2), Cr.P.C. In disproof of allegation leveled against him by the prosecution nor he produced any document in his defence. Muhammad Latif has also deposed in the same line in his statement recorded under Section 342, Cr.P.C. By the learned trial Court.
6. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellants as mentioned in Paragraph No. 1 of this judgment.
7. Learned counsel for the appellants contends that the judgment is against law and facts of the case. The material available on record does not justify the conviction and sentence awarded to the appellants and the same is not maintainable in the eyes of the law. It was an unseen occurrence and the FIR in this case has been lodged with a delay of fourteen days in which the appellants were not named. The appellants have been involved by the complainant and Ishtiaq Waheed (PW-8) through supplementary statements which have got no value in the eyes of law. The last seen evidence furnished by Abdul Khaliq (PW-6). Has not been corroborated through any independent source. Even Muhammad Habib has not been produced by the prosecution to furnish the evidence of last-seen in this case. Likewise, the evidence of extra-judicial confession furnished by Muhammad Iftikhar (PW-7) has not been corroborated by any witness as Muhammad Shabbir, his companion with whom he was gossiping when the appellants alleged to have made extra-judicial confession before him has not been produced during trial to adduce evidence During the investigation the complainant used to take divergent stands which later on proved false. The recovered SIM (P-9) was not in the name of deceased Wasim Ahmad so recovery in this case is inconsequential. No test-identification parade has been held in this case so as to positively connect the appellants with the commission of alleged offence. The appellants have been roped in this case at a belated stage with ulterior motives. The statements of the prosecution witnesses are full of contradictions and discrepancies which are fatal to the prosecution's case. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. The learned counsel prays for acquittal of the appellants from the charge.
8. On the other hand learned Deputy Prosecutor-General assisted by learned counsel for the complainant has vehemently opposed the contentions of the learned counsel for the appellants and contends that the appellants were nominated by the complainant and Ishtiaq Waheed (PW- 8) in supplementary statements as and when they found clue of their involvements. The parties have no previous enmity so the possibility of false implication of the appellants in this case or their substitution in lieu of real culprits is out of question and it cannot be imagined that one can involve an innocent person in such a heinous offence by leaving the real culprit. The recovery of mobile phone and SIM of the deceased from the appellants are available on record to connect them with the commission of offence. The prosecution witnesses are consistent on each and every material point. The minor discrepancies have cropped up in the case with the passage of time and that are not fatal to the prosecution case. The prosecution has proved its case against the appellants beyond any shadow of doubt, thus, the.Appeal filed by the appellants he dismissed.
9. We have heard the learned counsel for the parties at length and have given our anxious consideration to their arguments and have also scanned the record with their able assistance.
10. It has been observed by us that allegedly the occurrence in this case took place on 14.01.2009 at 7:00 p.m. When Waseem Ahmad deceased was lastly seen by Abdul Khaliq (PW-6) and Muhammad Habib (given up PW) with an un-known person while going towards Chak No. 323-GB but surprisingly the matter was not reported to the police by the complainant till 28.01.2009. The dead body of the deceased was seen by Muhammad Akthar (PW-9) and Mahmood Bashir (given up PW) in a well of tubewell situated in Killa No. 16 Square No. 49 on 28.01.2009 at.9:00 a.m. And thereafter the complainant informed the police about the occurrence through written complaint (Exh.PD) and formal FIR No. 14/09 (Exh.PD/1) dated 28.01.2009 under Sections 302, 364, PPC Police Station. Chuttiana was chalked out in this case. Admittedly nobody is named in the FIR inasmuch as the description of unknown person alongwith whom the deceased Waseem Ahmad was lastly seen by the above-mentioned PWs while going towards Chak No. 323-GB is not mentioned by the complainant and the PWs in their statements receded before the investigating officer under Section 161, Cr.P.C. The appellants have been nominated in this case by the complainant through supplementary statement recorded on 1.2.2009 with a delay of fourteen days. The case of the prosecution hinges upon circumstantial evidence comprising last seen, extra-judicial confession and recovery of mobile phone P8 and SIM P9 allegedly effected from the appellants. So we would like to discuss the prosecution evidence one by one.
11. Firstly we would like to discuss the last seen evidence in this case, According to the prosecution version Abdul Khaliq (PW-6) and Muhammad Habib (given up PW) had seen the deceased Waseem Ahmad going towards Chak No. 323-GB alongwith an un-known person on 14.1.2009 at 7:00 p.m. A bare perusal of statement of PW-6 reveals that he has neither named the accused nor he has even mentioned the description of the accused in his statement recorded under Section 161, Cr.P.C. And also before the learned trial Court. Admittedly no identification parade has been conducted in this case which is a mandatory provision in such like cases when the accused is not named in the FIR by the complainant and the PWs. It has been observed, by this Court that another witness of last seen evidence i.e. Muhammad Habib who has allegedly seen the deceased going alongwith an un-known person towards Chak No. 323-GB on 14.01.2009 at 7:00 p.m. Has not been produced by the prosecution so there is no corroboration of the statement of PW-6 in this case and an adverse inference can be drawn that had he been produced he would not have supported the prosecution version. Admittedly the actual time of murder is not known to anybody and has not been brought on record by prosecution. So we have come to a definite conclusion that the last seen evidence produced by the prosecution, through the statement of Abdul Kimliq (PW-6) is not worthy of credence and cannot be believed and is of no help to the prosecution. Reliance can easily be placed upon 1972 SCM R 15 wherein, it has been observed by the Hon'ble Supreme Court of Pakistan as under: "If the extra-judicial confessions are disbelieved and the recoveries are not connected with the crime in question, then it is clear that in a case of this nature where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant."
' The same view has been endorsed by the Honorable Supreme Court of Pakistan in the case reported as PLD 1978 SC 21, which is reproduced here under: "On the whole the evidence of the deceased having been last seen alive in the company of the accused was regarded as a weak type of circumstantial evidence to base a conviction on it."
12. The second piece of evidence relied upon by the prosecution is the extra-judicial confession against the appellants adduced by Muhammad Iftikhar (PW-7) before the learned trial Court. A bare perusal of his statement shows that on 03.02.2009 he was sitting with Muhammad Shabbir (given up PW) in his baithak on cot when both, the appellants approached him and confessed their guilt turn by turn that they have murdered Waseem Ahmad deceased on 14.01.2009 at evening time. It has been observed by us that till 03.02.2009 the appellants were not known to anybody that they have committed the murder and it does not appeal to a prudent mind that why they have confessed their guilt before PW-7. There was no reason for the accused to confess their guilt before PWs as the accused were not traceable at that time. Even otherwise, the prosecution has produced only one PW Muhammad Iftikhar to prove the extra-judicial confession as admittedly the other. PW Muhammad Shabbir who was present with Muhammad Iftikhar (PW-7) when both the appellants confessed their guilt has been given up by the prosecution. So there is no corroboration of the statement of PW-7 in this case. Admittedly PW-7 is closely related to the deceased as well as to the complainant and there is no evidence on record to show that at the time of extrajudicial confession both the appellants were armed with lethal weapons and in that eventuality why they were not apprehended by the PWs is a question which has not been answered by the prosecution in this case. The conduct showed by these witnesses is quite unnatural and cannot be believed at all. It seems that evidence of extra-judicial confession has been manufactured by the prosecution at a belated stage just to strengthen the case agamst the appellants especially after recovery of dead body of the deceased. Even otherwise, extra-judicial confession is always considered to be a weak type of evidence and conviction could not be awarded on the basis of such evidence unless the same was corroborated by a strong piece of evidence which is very much lacking in this case.
So we have come to a definite conclusion that prosecution has failed to prove extra-judicial confession of appellants in this case. Reliance can easily be placed upon 2003 SCM R 1385 wherein it has been observed by the Hon'ble Supreme Court of Pakistan as under: "Extra-judicial confession was a very weak type of evidence and conviction could not be awarded on the basis of such evidence unless the same was corroborated by a strong piece of evidence-- Neither the dead bodies of the two deceased minors nor any other incriminating piece of evidence was recovered by the police during the investigation at the behest of the accused--Dead bodies were in fact found and recovered prior to the arrest of the accused."
13. Besides the above discussed evidence against the appellants, the prosecution has also relied upon recovery of cell phone P8 (Exh.PF) allegedly effected from appellant Muhammad Arshad and SIM P9 (Exh.PG) allegedly recovered from appellant Muhammad Latif during investigation. It has been observed by us that admittedly the description of the mobile set P8 or its make/company has not been mentioned by the prosecution before its recovery. The FIR is also silent in this regard and none of the prosecution witness has mentioned description of the mobile set in their statements under Section 161, Cr.P.C. Before the police especially before its recovery Moreover, the prosecution has failed to prove the ownership of the Mobile SIM P9 as it has not been brought on record that the SIM which was allegedly recovered from Muhammad Latif appellant was in the name of deceased Waseem Ahmad. No data of SIM has been collected by the investigating officer during investigation from mobile phone Company to prove that in fact mobile SIM P9 belonged to the deceased. It does not appeal to a prudent mind that why the SIM which was of no use to Muhammad Latif appellant has been kept by him for so many days as natural tendency of the accused is always to get rid of such evidence. Merely preparation of identification memo. Of Mobile Phone is no ground to believe the recovery without any cogent evidence, hence the recovery in this case is of no help to the prosecution and is disbelieved by us.
14. The medical evidence had been adduced in this case by Dr. Muhammad Javed Iqbal, then posted as Medical Officer RHC 316 Chutiana (PW-1). We may observe here that the post-mortem examination report only describes the number and locale of injuries sustained by the deceased during the occurrence, time that elapsed between injuries and death and that of death and post- mortem and weapon of offence used during the occurrence. It cannot disclose the name of the accused in any manner whatsoever that who has inflicted the injuries to the deceased person.
Even otherwise it is only a supportive piece of evidence and is of no help to the prosecution and cannot be used against the appellants.
15. Law is quite settled on the point that in criminal case, the chain of circumstances should be so strong and complete that one end touches the toe of the deceased and the other end should encircle a dense grip around the neck of the accused. A slight discontinuity in the chain of circumstance would definitely make the chain loose and also breaks the geometrical progression.
Reliance can easily be placed upon 2008 SCM R 1103 in which it has been held by the Honorable Supreme Court of Pakistan as under: "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."
It is also settled law that not many circumstances creating doubt in the prosecution story are required but only one circumstance creating doubt in the prosecution story is enough to acquit the accussed. It is also golden principle of criminal jurisprudence that it is better to acquit ten guilty, persons than to convict a single innocent person.
16. The upshot of our discussion made above is that the prosecution has failed to prove its case against the appellants beyond any reasonable shadow of doubt as the prosecution case is full of doubts and cannot be believed. Therefore, Criminal Appeal No. 2115 of 2010 filed by Muhammad Arshad and Muhammad Latif appellants is allowed and they are acquitted of the charge by extending benefit of doubt to them. They shall be released from the jail forthwith, if not required to be detained in connection with any other case.
17. Murder Reference No. 485 of 2010 is answered in the negative and the death sentence passed by the learned trial Court against Muhammad Arshad and Muhammad Latif appellants is not confirmed.