Abdul Sami Khan, J:- Yasir Ali appellant alongwith Muhammad Imran co-accused was tried by learned Additional Sessions Judge, Sambrial District Sialkot in case FIR No.197/1 1 dated 04.03.201 1 under section 302 PPC, registered at Police Station Sambrial, District Sialkot and on completion of trial, the learned trial court proceeded to acquit Muhammad Imran co- accused vide judgment dated 09.02.2012 and through the same judgment Yasir Ali appellant was convicted and sentenced as under:- Under section 302(b) PPC to death with direction to pay compensation under section 544-A Cr.P.C. to the tune of Rs.500,000/- to the legal heirs of Kashif Bilal deceased and in default thereof to further undergo six months S.I.
2. Yasir Ali appellant has challenged his conviction and sentence through Criminal Appeal No.31 1 of 2012; the learned trial court has submitted Reference under section 374 Cr.P.C. for confirmation or otherwise of the death penalty awarded to Yasir Ali appellant, which has been numbered as Murder Reference No.117 of 2012, whereas the complainant has filed Criminal Appeal No.412 of 2012 against the acquittal of Muhammad Imran respondent. We propose to decide all these matters through this single judgment.
3. The prosecution story set forth in FIR (Ex.P A/1) is that Zafar Iqbal son of Ahmad Din, caste Arain, was a resident of Dera Araiyan Majra Khurd and was cultivator . On 22.02.201 1 in the evening time, his son Kashif Bilal aged about 19/20 years went out of his house and was seen by another son of the complainant namely Waqas Ahmad as well as brother of the complainant namely Munawar Hussain at the tube-well of one Amjad while setting with Yasir Ali. On receipt of a mobile call, Kashif Bilal went towards Majra Kalan and did not return. The complainant kept on searching his son and ultimately on 04.03.201 1, one Yaqoob Shah told him that dead body of a boy was lying in a room of "dera" of Muhammad Afzal Taili in village Majra Kalan. The complainant alongwith his brother Munawar Hussain went to the said dera and identified the dead body of his son Kashif Bilal and then reported the matter to the police by leveling allegation of murder through firearm against unknown accused.
4. The FIR in this case was registered on 04.03.201 1 and after registration of FIR, investigation of the case was entrusted to Nasarullah Khan S.I. During investigation, complainant got recorded supplem entary statement implicating Yasir Ali appellant alongwith Muhammad Imran co-accused (since acquitted) in the instant case . After completion of investigation, report under section 173 Cr.P.C. was submitted before the court, wherein, after observing legal formalities as provided in the Criminal Procedure Code, 1898, the learned trial court framed charge against the accused, to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case against the accused, examined sixteen witnesses before the learned trial court. Zafar Iqbal (PW-10) is the complainant of this case; Waqas Ahmad (PW-11) and Munawar Hussain (PW- 12) furnished evidence of last seen, while Muhammad Abbas (PW-13) and Rehmat Ali (PW-14) are the witnesses of extrajudicial confession. Medical evidence has been furnished by Dr.Muhammad Javed (PW-2) who conducted postmortem examination on the dead body of Kashif Bilal deceased. Nasarullah Khan S.I. appeared before the learned trial court as PW- 16 and stated about various steps taken by him during the course of investigation. The remaining prosecution witnesses are formal in nature. After tendering in evidence the reports of Chemical Examiner (Ex.PU and Ex.PV), reports of Serologist (Ex.PS and Ex.PT) and the report of Forensic Science Laboratory (Ex.PW), the prosecution closed its evidence.
5. After completion of prosecution evidence, the learned trial court went on to record the statements of Yasir Ali appellant and Muhammad Imran co-accused as required under section 342 Cr.P.C. wherein they controverted the allegations leveled by the prosecution agains t them and professed innocence. They did not opt to make statements on oath under section 340(2) Cr.P.C. to disprove the allegations leveled against them and also did not produce any witness in their defence.
6. Upon culmination of trial, learned trial court found the case against Yasir Ali appellant to have been proved beyond any reasonable doubt, thus, convicted and sentenced him as mentioned and detailed in paragraph No.1 above, while Muhammad Imran co-accused was acquitted by the learned trial court by extending benefit of doubt in his favour , hence, these appeals and connected murder reference before this Court.
7. Learned counsel for the appellant submitted that the prosecution has miserably failed to prove the guilt of the appellant to the hilt, hence, he deserves clean acquittal. On the other hand, learned Deputy Prosecutor General contended that the prosecution has amply proved its case against the appellant beyond the shadow of any doubt, the impugned judgment does not call for any interference by this Court, so the conviction and sentences of the appellant be maintained and his appeal be dismissed.
8. We have heard the learned counsel for the parties, have given anxious consideration to their arguments and have also scanned the record with their able assistance. Perusal of FIR (Ex.P A/1) shows that the occurrence took place on 22.02.201 1 at evening time when Kashif Bilal deceased went missing. Zafar Iqbal complainant, who is the father of said Kashif Bilal deceased, did not inform the police about the absence of his son for ten days and ultimately on 04.03.201 1 when the dead body of the deceased was found lying in a room of "dera" owned by one Muhammad Afzal Taili, the matter was reported to the police by Zafar Iqbal complainant (PW-10) by way of recording his statement under section 154 Cr.P.C.
(Ex.P A) before Nasarullah Khan S.I. (PW-16) in consequence of which FIR (Ex.P A/1) was lodged at Police Station Sambrial, District Sialkot at 06:50 p.m. The place of occurrence is at a distance of about ten kilometers from the police station. There is a delay of ten days in reporting the matter to the police and the complainant has not advanced any plausible justification as to why he kept mum for such a considerable span of time and did not inform the police about missing of his son. In FIR (Ex.P A/1), Zafar Iqbal complainant has specifically mentioned that his son has been murdered by some unknown accused and in this view of the eventuality FIR (Ex.P A/1) does not render any sort of corroborat ion to the case of the prosecution.
The appellant was implicated by the complainant through supplementary statement allegedly got recorded by him on 04.03.201 1 wherein he showed suspicion about involvement of the appellant and his co-accused Muhammad Imran in the commission of murder of his son Kashif Bilal. It is still an unanswered question as if the supplementary statement was got recorded by the complainant immediately after registration of FIR, which was lodged with the delay of ten days, then what was the reason for not straightway nominating the appellant in FIR (Ex.P A/1). It, therefore, appears to us that the ante-dated supplementary statement was got recorded by the complainant at a belated stage, which otherwise has no legal and evidentiary value in the eyes of law .
9. The case of the prosecution against the appellant hinges upon circumstantial evidence comprising last seen, extrajudicial confession and recovery of rifle 30 bore allegedly effected from the appellant. So we would like to discuss the prosecution evidence one by one and firstly we take the evidence of last seen. The prosecution has examined Waqas Ahmad (PW-11) and Munawar Hussain (PW12) to prove that on the day of occurrence at evening time, Kashif Bilal deceased was seen by them in the company of Yasir Ali appellant. It has straightway been observed by us that according to the story of FIR (Ex.P A/1) allegedly the dece ased was seen sitting at a tubewell alongwit h the appellant and he (deceased) went towards Majra Kalan after receipt of a mobile call. This fact, alone, is sufficient to demolish the evidence of last seen. If this is not enough, it is an admitted fact that Waqas Ahmad (PW-11) and Munawar Hussain (PW-12) are real brother and paternal uncle of Kashif Bilal deceased, who went missing on 22.02.201 1, but both these witnesses never tried to inquire from the appellant about the deceased for a considerable period of 10 days. They even did not get record their statements under section 161 Cr.P.C. before the investigating officer immediately after registration of FIR and the same were recorded on 05.03.201 1. Waqas Ahmad (PW-11) and Munawar Hussain (PW-12) did not furnish any explanation as to why they kept mum for such a long period of eleven days and had not informed the complainant or the investigating officer in time. In the backdrop of such an eventuality , the statements of Waqas Ahmad (PW-11) and Munawar Hussain (PW-12) are not worthy of reliance and it can safely be concluded that the evidence of last seen has been manufactured falsely just to entangle the appellant in this case.
10. So far as the evidence of extrajudicial confession is concerned, the statements of Muhammad Abbas (PW-13) and Rehmat Ali (PW-14) are relevant in this regard. A careful perusal of the statements of Muhammad Abbas (PW-13) and Rehmat Ali (PW-14) shows that Muhammad Abbas (PW-13) is close relative of Zafar Iqbal complainant (PW-10), while Rehmat Ali (PW-14) is stranger to the compl ainant party as well as the appellant. Accord ing to these witnesses, Rehmat Ali (PW-14) was present in the house of Muhammad Abbas (PW-13) when the door of the house was knocked. Muhammad Abbas (PW-13) opened the door and saw Yasir Ali appellant and Muhammad Imran co-accused (since acquitted); they were made to sit in the house on a cot and they allegedly made extrajudicial confession before Muhammad Abbas (PW-13) and Rehmat Ali (PW-14). In this regard, it is quite astonishing to note here that none of Muhammad Abbas (PW-13) and Rehmat Ali (PW14) as well as other inmates of the house tried to apprehend the appellant and his co-accused and they even did not raise any alarm about the presence of culprits in the house. It is yet another astonishing fact that according to Muhammad Abbas (PW-13) and Rehmat Ali (PW-14), the appellant made extrajudici al confession on 12.03.201 1 and peacefully left the house, but both these witnesses did not approach the complainant or the investigating officer to inform about alleged extrajudicial confession of the appellant. In these eventualities, the story introduced by Muhammad Abbas (PW-13) and Rehmat Ali (PW-14) about extrajudicial confession of the appellant seems improbable. Even otherwise, extrajudicial confession is a very weak type of evidence and the same obviously needs impartial/strong corroboration from other independent sources which is missing in this case. The evidentiary value of the extrajudicial confession came up for consideration before Hon'ble Supreme Court of Pakistan in the case of "Sajid Mumtaz and others Vs. Basharat and others"
(2006 SCMR 231 ), wherein, at page 238, the Apex Court of Pakistan observed as under: - "17. ......This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions staring from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra-judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown, it was observed that in this country (as a whole) extrajudicial confession must be received with utmost caution. Further , it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that confession cannot but be true". As, an extrajudicial 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 sued 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 confes s. 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 Cour t, 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 regre t that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. 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".
To fortify the above view, we have moved our attention to the case of "Tahir Javed versus The State" (2009 SCMR 166) wherein, at page 170, the August Supreme Court of Pakistan was 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 Ahmad 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 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405 , (3)
Tayyab Hussain Shah v . The State 2000 SCMR 683 , (4) Sarfraz Khan v . The State and others 1996 SCMR 188 ."
Keeping in view the guidelines given by Hon'ble Supreme Court of Pakistan in afore-referred judgments, we palpably discard the evidence of extrajudicial confession manufactured by the prosecution to strengthen its case.
11. Insofar as medical evidence is concerned, the dead body of Kashif Bilal was recovered from the room of dera of one Muhammad Afzal Taili on 04.03.201 1 and on the next day i.e. 05.03.201 1, Dr. Muhammad Javed (PW-2) conducted postmortem examination on the dead body of the deceased. During postmortem examin ation, PW-2 observed four injuries on front of head, upper part of anterior abdominal wall, front of left shoulder and left lateral side of abdomen. As per opinion of the doctor (PW-2), injury on front of the head was caused by blunt means while the remaining injuries were caused by sharp edge weapon. Apparently the medical evidence does not support the prosecution case, according to which the appellant used firearm to commit murder of Kashif Bilal deceased whereas no firearm injury was observed by the doctor during postmortem examination on the dead body of the deceased which clearly shows that there is material contradiction between the prosecution version and the medical evidence. Even otherwise, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of the injuries, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the offence . Reference in this respect may be made to the case of "Muhammad Tasaweer versus Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another versus The State" (2009 SCMR 1410 ) and "Altaf Hussain versus Fakhar Hussain and another" (2008 SCMR 1103). In the absence of trustworthy and confidence inspiring evidence of last seen and extrajudicial confession, medical evidence does not bear any significance.
12. As far as the recovery of alleged weapon of offence is concerned, a pistol 30 bore (P7) is shown to have been recovered from the appellant vide memo Ex.PK and the prosecution has also placed on the file positive report of the Forensic Science Laboratory (Ex.PW) showing that the pistol .30 bore (P7) matched with the empty collected by the investigating officer from the place of occurrence. In this regard it is quite strange to observe here that not even a single firearm injury was found on the dead body of deceased Kashif Bilal rather he was done to death with the help of blunt and sharp edge weapons, as such the recovery of pistol .30 bore and report of Forensic Scien ce Laboratory does not render any help to the case of the prosecution.
13. There is yet another astonishing aspect of the case that the prosecution let off the owner of dera where in a room the dead body of the deceased was found lying. He was never joined in the investigation as an accused or a witness and there is no explanation as to under what circumstances the dead body of the deceased was lying in the room of dera owned by Muhammad Afzal Taili. This is a materia l lacuna in the prosecution case. Furthermore, the case of the prosecution is completely based on circumstantial evidence as there is no direct evidence to connect the appellant with the commission of offence. It is settled law that in criminal case, the chain of circumstances should be so strong and solid that one circumstance should start right from the toe of the deceased and the same should encirc le a dense grip around the neck of the accused on the other end. A slight break in the chain of circumstances would definitely make the grip of chain loose and also breaks the geometrical progression of the chain especially when the same has been built up on the basis of feeble or shaky evidence. In this regard, guidance has been sought from the cases of "Asadullah and another versus State and another" (PLJ 1999 SC 1018) and "Ch. Barka t Ali versus Major Karam Elahi Zia and antoher" (1992 SCMR 1047 ), wherein, Hon'ble Supreme Court of Pakistan has been pleased to observe as under:- "9. ...Law relating to circumstantial evidence is that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See "Siraj v. The Crown" PLD 1956 FC 123. The prosecution evidence in this case was of the deceased last seen with the accused and from the latter was recove red a handle of the hatchet blood stained and he was absent from the forest after the murder . The learned Federal Court held that the evidence was not sufficient and the accused was acquitted. In the case of "Karamat Hussain v. The State " 1972 SCMR 15 it was laid down that "In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused."
The same view has been rendered by Hon'b le Supreme Court of Pakistan in case of "Sarfraz Khan versus The State and 2 others" reported as ( 1996 SCMR 188 ), wherein it has been observed as under:- "7. ...it is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence..."
Guidance can also be sought from the case of "Altaf Hussain versus Fakhar Hussain and another" reported as (2008 SCMR 1103) wherein, at page 1 105, Hon'ble Supreme Court has held as under:- "7. 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."
14. From the contents of FIR it is crystal clear that it was a blind murder of a young man of just 19/20 years. It is settled law that mere heinousness of offence is no ground to convict an accused in the absence of trustworthy and confidence inspiring evidence. We have already discussed in detail and discarded the circumstantial evidence produced by the prosecution against the appellant. It is 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 accused, whereas the instant case is replete with number of circumstances which have created serious doubt about the prosecution story .
Reliance can be placed on the case of "Tariq Pervez versus The State" (1995 SCMR 1345 ), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "5. ...The concept of benefit of doubt to an accused person is deep-rooted in our country . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
It is also universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favou r of the accused not as a matter of grace, but of right. In "Ayub Masih vs. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Prophet (PBUH) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent" , and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court of our country 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 vs. 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".
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram versus The State" ( 2009 SCMR 230 ) observed as under:- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345 ) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
15. The upshot of our discussion made above is that the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. Thus, Criminal Appeal No.31 1 of 2012 is allowed and Yasir Ali appellant is acquitted of the charge by extending benefit of doubt to him. He is in jail, be released forthwith if not required in any other case. Murder Reference is answered in negative and the sentence of death awarded by the learned trial court to the appellant is not confirmed.
16. For the reasons recorded in the preceding paragraphs, criminal appeal No.412 of 2012 filed by Zafar Iqbal appellant (complainant) against the acquittal of Muhammad Imran respondent is hereby dismissed.