MANZOOR AHMAD MALIK, C.J.---Qasim Ali (appellant) was tried by the learned Addl. Sessions Judge, Lahore in case FIR No,104 dated 12.02.2009 offence under section 302, P.P.C. Registered at Police Station Harbanspura District Lahore for the murder of Mst. Azra Bano (deceased) wife of the complainant. Vide judgment dated 28.08.2012 passed by the learned Addl. Sessions Judge, Lahore, the appellant has been convicted under section 302(b), P.P.C. And sentenced to imprisonment for life, with a direction to pay fine of Rs,2,00,000/- (rupees two lakh only) and if same is recovered, 1/2 of it was ordered to be handed over to the legal heirs of the deceased and in default whereof to further undergo three months' S.I. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant. Assailing the above conviction and sentence, Qasim Ali (appellant) has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.PB/2), registered on the written application (Ex.PB) moved by Abdul Rauf, complainant (PW.4) is that he was resident of Chaman Park, Street No,3. On the day of occurrence i.e, 12.02.2009 at 6.30 a.m. (morning), as usual the complainant went on his job and his wife namely Mst. Azra Bano was alone at home. The complainant was an employee of Pakistan Railway and at 5.30 p.m. Came back to his house after performing duty. The complainant had second key of the house and entered the house by opening the door. He found the dead body of his wife Mst. Azra Bano, smeared with blood. There were marks of injuries on the body and belly of the deceased. The complainant alleged in the FIR that some unknown accused had committed brutal murder of his wife.
3. On the same day, the complainant got recorded his supplementary statement wherein he alleged that on 12.02.2009, he got registered FIR No,104/2009 under section 302, P.P.C. For the murder of his wife Mst. Azra Bano against unknown accused as he was perplexed at that time, whereas brother of the complainant namely Muhammad Tufail son of Ghulam Nabi and Ali Raza son of Muhammad Tufail saw Qasim (appellant) on the same day at 12.00 noon while coming out of the house of complainant in perplexed condition and he (appellant) after closing his general store, which was taken on rent from the complainant, went away hurriedly. It was also alleged in the supplementary statement that the appellant used to visit the house of complainant and 4/5 days prior to the occurrence, the appellant demanded Rs,20,000/- from the complainant and his wife as loan but they refused, whereupon the appellant showed his resentment and said that they had not made a good gesture by not giving him amount. The complainant further alleged that he had firm belief that because of that grudge, Qasim Ali (appellant) had committed the murder of his wife Mst. Azra Bano (deceased).
4. The appellant was indicted by the learned trial court under section 302, P.P.C. And after conclusion of the trial, he was convicted and sentenced as mentioned in para 1 supra. Hence this appeal.
5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the alleged incident, as per relevant column of the FIR, took place on 12.02.2009 at about 5.30 p.m. But according to Muhammad Tufail (PW.2) and Ali Raza (PW.3), they saw the appellant while coming out of the house of complainant on the same day at 12.00 noon whereas the matter was reported to the police on the same evening at 7.00 p.m. i.e, after the delay of one and a half hours from the occurrence (as per FIR) and seven hours after seeing by the said PWs despite the fact that the distance between the place of occurrence and the police station is just four kilometers; that the postmortem examination on the dead body of the deceased was conducted on the next day of the occurrence i.e, 13.02.2009 at 12.00 noon and Dr. Farhat Sultana (PW.17) stated in cross-examination that the autopsy was not conducted on the same day when dead body was received due to non-receipt of police papers; that the appellant was not named in the FIR in any context whatsoever and he was implicated in this case subsequently on the basis of supplementary statement (Ex.PB/1) of the complainant recorded on the same day i.e, 12.02.2009 but there is no mention of supplementary statement in the inquest report (Ex.PF); that the name of the appellant is also not mentioned in the scaled site plan (Ex.PC and Ex.PC/1), got prepared on 14.02.2009; that the supplementary statement was typed on computer which suggests that the same was prepared after due deliberations and consultations; that even in the supplementary statement, the complainant stated that he had firm belief that the appellant had committed the murder of his wife and thereafter, no evidence as to under what consideration the appellant was involved, was collected by the police to connect the appellant with the commission of alleged crime; that as per FIR, the complainant is not an eye-witness of the murder of Mst. Azra Bano (deceased) as after performing his duty, he came back and himself opened the door with second/double key; that the complainant based his supplementary statement on the information allegedly imparted to him by Muhammad Tufail (PW.2) and Ali Raza (PW.3), who allegedly.Saw the appellant while coming out of the house of complainant in perplexed condition; that the conduct of both these witnesses i.e, Muhammad Tufail (PW.2) and Ali Raza (PW.3) is not probable because of the reason that when they saw the appellant coming out of the house of complainant hurriedly and he (appellant) went away after closing his shop, they did not ask him any question or bothered to capture him as they themselves admitted during their cross-examination that at that time the appellant neither held any chhurri nor his clothes were blood stained; that Muhammad Tufail (PW.2) and Ali Raza (PW.3), are closely related to the complainant, as they are his real brother and paternal nephew, respectively, therefore, their evidence cannot be relied upon. So far as extra-judicial confession allegedly made by the appellant before Iftikhar Ahmad (PW.5) and Muhammad Shakeel (PW.6) is concerned, learned counsel contends that though they have stated that the appellant confessed his guilt that as Mst.
Azra Bano (deceased) refused to give him loan and on her refusal, finding her alone in the house, he (appellant) committed her murder but there was no reason or occasion for the appellant to make such confession before these two witnesses as none of them had any position/status in the society prompting the appellant to make such a confession before them and they have stated in their examination-in-chief that they run the business of plastic raw material and vegetable, respectively and moreover, it has not been disclosed as to what influence they had over the complainant in order to get pardon for the appellant; that a vague motive has been set up by the prosecution in the supplementary statement that 4/5 days prior to the occurrence, the appellant had demanded Rs,20,000/- (rupees twenty thousand only) from the complainant and his wife as loan, which they refused and the appellant showed his anger on its refusal; that there is difference of loan amount as in the supplementary statement the complainant alleged Rs,20,000/- (rupees twenty thousand only) whereas before the learned trial court, the loan amount was stated as Rs .25,000/- (rupees twenty five thousand only) and moreover, no witness was produced before the learned trial court in whose presence the appellant demanded the loan amount; that the medical evidence is a supportive piece of evidence and relevant only if the primary evidence i.e, ocular account inspires confidence, which is not the situation in this case. As far as recovery of chhurri (P.3) allegedly effected at the instance of the appellant is concerned, learned counsel contends that the same is not of much help to the prosecution as Muhammad Ali, 1.0. (PW.15) admitted during his cross-examination that the recovered chhurri was not stained with blood and further stated that according to the statements of witnesses, same was also not blood stained; that the alleged abscondence of the appellant has not been proved in accordance with law as the same has not specifically been put to the appellant during his statement recorded under section 342, Cr.P.C.; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
6. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the complainant has no enmity with the appellant to falsely implicate him in this case; that though the appellant is not named in the FIR but he was implicated through supplementary statement of Abdul Rauf, complainant (PW.4) recorded on the same day i.e, 12.02.2009; that thereafter the prosecution produced two witnesses namely Muhammad Tufail (PW.2) and Ali Raza (PW.3) who saw the appellant while coming out of the house of complainant hurriedly but they did not bother his activities as he used to visit the house of complainant being his tenant; that the prosecution also produced two witnesses namely Iftikhar Ahmad (PW.5) and Muhammad Shakeel (PW.6) before whom the appellant made extrajudicial confession; that a specific motive has been set out by the complainant in the supplementary statement which is to the effect that the appellant demanded loan amount from the complainant and his wife, which they refused and the appellant has also admitted before Iftikhar Ahmad (PW.5) and Muhammad Shakeel (PW.6) that he had demanded the loan from the wife of complainant; that during investigation, the appellant got recovered chhurri (P.3) which fully connects him with the commission of crime; that the abscondence of the appellant has been proved through the statement of Muhammad Ali, I.O. (PW.15) who got issued warrants of arrest and proclamation against the appellant; that the case of prosecution is fully supported by the medical evidence; that it is a case of single accused and substitution in such like cases is a rare phenomenon; that mere because of close relationship of Muhammad Tufail (PW.2) and Ali Raza (PW.3) with the complainant, their evidence cannot be discarded; that if all these pieces of evidence are taken into consideration, then irresistible conclusion would be that it was the appellant who had committed the murder.
7. I have heard arguments of learned counsel for the parties to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
8. The salient features of this case are as under:-
(a) This unfortunate incident, wherein Mst. Azra Bano wife of the complainant lost her life, as per relevant column of the FIR (Ex.PB/2), took place on 12.02.2009 at 5:30 p.m. In the house of complainant situated within the jurisdiction of Police Station Harbanspura District Lahore whereas according to Muhammad Tufail (PW.2) and Ali Raza (PW.3), they saw the appellant while coming out of the house of complainant on the same day at 12.00 noon. The matter was reported to the Police through the application (Ex.PB) moved by Abdul Rauf, complainant (PW.4) on the same evening at 7:00 p.m. i.e, one and a half hours after the occurrence (as per FIR) and after seven hours of seeing the appellant by the said PWs, whereas the distance between the place of occurrence and the police station was just four kilometers. Even the postmortem examination on the dead body of the deceased was conducted on the next day i.e, 13.02.2009 at 12:00 'noon i.e, about 181/2 hours after the occurrence (as per FIR) and 24 hours after coming out of the appellant allegedly from the house of complainant. Dr. Farhat Sultana (PW.17), who conducted postmortem examination on the dead body of the deceased stated in her cross-examination that the autopsy was not conducted on the same day when the dead body was received (as per record, it was received on 12.02.2009 at 9.15 p.m.), due to non-receipt of police papers. Therefore, I am of the considered view that this delay in conducting the postmortem examination could not be explained at the trial which casts serious doubts on the veracity of the prosecution case.
(b) Admittedly, the appellant was not named in the FIR in any context whatsoever and he was implicated in this case subsequently on the basis of supplementary statement (Ex.PB/1) of the complainant recorded on the same day i.e, 12.02.2009 but there is no mention of supplementary statement in the inquest report (Ex.PF). The name of the appellant is also not mentioned in the scaled site plan (Ex.PC and Ex.PC/1), got prepared on 16.02.2009. It has been noted that the supplementary statement was typed on computer which suggests that the same was prepared after due deliberations and consultations. Even in the supplementary statement, the complainant stated that he had firm belief that the appellant had committed the murder of his wife and thereafter, no evidence as to under what consideration the appellant was involved, was collected by the police to connect the appellant with the commission of alleged crime.
(c) So far as the testimony of Abdul Rauf, complainant (PW.4) is concerned, he is not an eyewitness of the occurrence as in the FIR, his case was that when he came back from his job, he himself opened the door of his house with second/double key and found the dead body of his wife smeared with blood. As far as Muhammad Tufail (PW.2) and Ali Raza (PW.3) are concerned, it is their case that they saw the appellant while coming out of the house of complainant in perplexed condition. The conduct of both these witnesses does not seem to be probable because when they saw the appellant coming out of the house of complainant hurriedly and going away after closing his shop, they did not ask him any question or bothered to capture him as it is not their case that the appellant was armed with any weapon. Even no blood stains were seen on the clothes of appellant at the time of coming out of the house of complainant as Muhammad Tufail (PW.2) and Ali Raza (PW.3) stated before the learned trial court during their cross-examination that at that time the appellant neither held any chhurri nor his clothes were blood stained. Even both the said PWs did not bother to go inside the house of complainant in order to see as if anything has happened. Therefore, the evidence of both these witnesses does not advance the case of prosecution.
(d) It is the case of the prosecution that the appellant confessed his guilt before Iftikhar Ahmad (PW.5) and Muhammad Shakeel (PW.6). Extra-judicial confession is always considered a weak type of evidence. The question of evidentiary value of the extrajudicial confession came up for consideration before the August Supreme Court of Pakistan in the case reported as "Sajid Mumtaz and others v. Basharat and others" (2006 SCM R 231), wherein, at page 238, the Apex Court of Pakistan has been pleased to lay emphasis as under:- "17. ...This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions starting from Ahmad v. The Crown PLD 1951 FC 103-107 upto the latest. Extra-judicial confession has always been taken with a pinch of salt. In Ahmad v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to 'satisfy itself fully that the confession cannot but be true'. As, an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.
18. It has been further held that the status of the person before whom the extra-judicial confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witnesses before whom extra-judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
21. Another most important and natural purpose of making extra-judicial confession is to seek help from a third person. Help is sought firstly, when a person is sufficiently trapped and secondly, from one who is authoritative, socially or officially...
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 concoctions like extra-judicial confession. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker .Of confession and what, above all, is the position or authority held by the witness". (emphasis supplied)
The above view has been reiterated in the case reported as "Tahir Javed v. The State" (2009 SCM R 166), wherein, at page 170, the August Supreme Court of Pakistan, has been pleased to observe as under:- "10. ...It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra-judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:-
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCM R 231, (2) Ziaul Rehman v. The State 2001 SCM R 1405, (3) Tayyab Hussain Shah v. The State 2000 SCM R 683, (4) Sarfraz Khan v. The State and others 1996 SCM R 188."
Iftikhar Ahmad (PW.5) and Muhammad Shakeel (PW.6) have stated in examination-in-chief that the appellant met them per chance and told them that he was worried as Mst. Azra Bano (deceased) refused to give him Rs,20,000/- as loan and on her refusal, finding her alone in the house committed her murder and since the murder of Mst. Azra Bano, he could not sleep. The appellant requested that the complainant is familiar to them, PW.5 and PW.6 should seek a pardon for him. In the above scenario, when the statements of Iftikhar Ahmad (PW.5) and Muhammad Shakeel (PW.6) are examined, it can safely be concluded that the same are not reliable because there was no reason or occasion for the appellant to make such a confession before these two witnesses as none of them had any position/status in the society prompting the appellant to make such a confession before them as they have stated in their examinationin-chief that they run the business of plastic raw material and selling vegetable, respectively and moreover, it has not been disclosed as to what influence they had over the complainant in order to get pardon for the appellant. Muhammad Shakeel (PW.6) in his cross-examination, on a court question, has replied as under:- "I am neither councilor nor Nazim of the area. I am also not Lumberdar of said locality. I had never been the Head of the Punjchayat any where in the locality. No one ever approached to me for help in any case from Police Station in different case of civil as well as criminal natures."
In light of the above discussion, I am of the view that the evidence of extra-judicial confession in the instant case is not worthy of reliance.
(e) No motive has been alleged in the FIR and thereafter a vague motive has been set up by the complainant in the supplementary statement to the effect that 4/5 days prior to the occurrence, the appellant had demanded Rs,20,000/- (rupees twenty thousand only) from the complainant and his wife, which they refused and the appellant showed his anger on their refusal. There is difference of loan amount as in the supplementary statement, the complainant alleged Rs,20,000/- (rupees twenty thousand only) whereas before the learned trial court, the loan amount was stated as Rs,25,000/- (rupees twenty five thousand only). Moreover, no witness was produced before the learned trial court in whose presence the appellant demanded the loan amount.
Therefore, I am of the view that the prosecution has not been able to prove the motive.
(f) So far as the medical evidence is concerned, it is well established law that it is, at the most, a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of the injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailant. Reliance is placed on "Ata'Muhammad and another v. The State" (1995 SCM R 599). Moreover, it is relevant only if the other evidence inspires confidence which is not the situation in this case.
(g) As far as recovery of chhurri (P.3) allegedly effected at the instance of the appellant which was taken into possession vide recovery memo (Ex.PE) is concerned, the same is not of much help to the prosecution as Muhammad Ali, 1.0. (PW.15) stated during his cross-examination that the recovered chhurri was not stained with blood and further stated that according to the statements of witnesses as well, same was not blood stained.
(h) So far as the alleged abscondence of the appellant is concerned, the same has not specifically been put to the appellant during his statement under section 342, Cr.P.C. It is well settled by now that a piece of evidence which has not been put to an accused in his statement under section 342, Cr.P.C. Cannot be used against him. Moreover, recovery of chhurri and abscondence are merely corroborative pieces of evidence and conviction cannot be based solely on these pieces of evidence.
9. For the above said reasons, the case of prosecution to the extent of Qasim Ali (appellant) is doubtful in nature, therefore, the appellant is entitled to the benefit of doubt not as a matter of grace but as of right. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
10. For the foregoing reasons, the appeal in hand is allowed, conviction and sentence awarded to Qasim Ali (appellant) vide judgment dated 28.08.2012 passed by the learned Additional Sessions Judge, Lahore are set aside and the appellant is acquitted of the charge of murder of Mst. Azra Bano (deceased) while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.