' Zafar Iqbal alias Kodu (appellant) alongwith his co-accused namely Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi was tried by the learned Addl. Sessions Judge, Vehari in case FIR No, 604/2010, dated 20.10.2010, offence under Sections 302, 109 and 34, PPC, registered at Police Station Gaggo District Vehari for the murder of Muhammad Sarfraz (deceased) husband of the complainant. Vide judgment dated 22.09.2011 passed by the learned Addl. Sessions Judge, Vehari, Zafar Iqbal alias Kodu (appellant) has been convicted under Section 302(b), PPC and sentenced to imprisonment for life, with further direction to pay a compensation of Rs, 1,00,000/- (rupees one lakh only) to the legal heirs of the deceased under Section 544-A, Code of Criminal Procedure and in default whereof, to further' undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C. Was also extended to the appellant. Through the same judgment, co-accused, of the appellant namely Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi were acquitted of the charge by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or by the complainant. Assailing the above conviction and sentence, Zafar Iqbal alias Kodu (appellant) has filed the appeal in hand.
2. Precisely, facts of the case, as contained in the FIR (Exh.PF/1) registered on the statement (Exh.PF) of Mst. Razia Bibi, complainant (PW-7) are that she was resident of Chak No, 195/EB and a house lady. Two years prior to the occurrence, she contracted marriage with Muhammad Sarfraz and out of the said wedlock, they had a son namely Ali Raza aged about eight months. Husband of the complainant had plied a motorcycle rickshaw Bearing No, 2068-FSB from village to Gaggo Mandi Town to earn his livelihood. On 18.10.2010 at about 8.00 a.m. He went from the chak to Gaggo Mandi alongwith passengers but did not return till evening. The complainant became worried and contacted on telephone No, 0308-8738726 but the same was powered off. The complainant informed her family and her father Faiz Ahmad arrived from Sahiwal. Bagh Ali and Asghar Ali started search alongwith the complainant party. On getting information about having custody of rickshaw by the police, the complainant alongwith her companions went to the police station and identified the rickshaw. Thereafter, they went to the place from where the rickshaw was taken into possession by the police and they felt foul smell of dead body near the land of Muhammad Yousaf Gujjar situated in Chak No, 249/EB. They started search in sugarcane and maize crops and found the dead body lying on the middle line of said crops. The complainant identified the body as her husband Muhammad Sarfraz, who was having deep injuries on his neck and head. It was alleged that some unknown persons had committed this murder.
3. On 21.10.2010, the complainant moved an application (Ex.PJ) before the SHO Police Station Gaggo and implicated the appellant as well as his co-accused Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi (mother and sister of Muhammad Sarfraz deceased) with the allegation that on 20.10.2010, the appellant confessed before his co-accused about the murder of deceased. The complainant overheard the conversation of the appellant while standing behind the door, who was telling Naziran Bibi and Najma Bibi co-accused that on their direction, he had committed the murder of Sarfraz (deceased). As per contents of the application, the complainant called Bagh Ali, Asghar Ali and her father Faiz Ahmad who also heard the conversation wherein the appellant confessed that he took Sarfraz to his village on rickshaw on the pretext to leave him (appellant) to his house and from there, the appellant took him to katcha path and thereafter, to sugarcane crop on the pretext of gossip where the appellant asked Sarfraz to lit a cigarette and he (appellant) wanted to ease himself. The moment Sarfraz bowed down his head to light a cigarette, the appellant attacked on his neck with bugda which he had already hidden over there and the deceased died at the spot.
4. After completion of investigation of this case, report under Section 173, Code of Criminal Procedure was submitted before the learned trial Court. The appellant and his co-accused namely Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi were summoned by the learned trial Court to face the trial and charge under Sections 302, 109 and 34, PPC was framed against them. After conclusion of the trial, the appellant was convicted and sentenced as mentioned in Para 1 supra whereas his co-accused were acquitted of the charge and no appeal against their acquittal has been filed either by the State or by the complainant as confirmed by the learned DDPP. 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, as per FIR, the occurrence qua missing Muhammad Sarfraz took place on 18.10.2010 whereas the matter was reported to the police on 20.10.2010 i,e, two days after the incident without there being any satisfactory explanation; that there is no eye- witness account in this case; that Zafar Iqbal alias Kodu (appellant) is not nominated in the FIR (Exh.PF/1); that there is no admissible evidence against the appellant; that extrajudicial confession allegedly made by Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi before the complainant's party wherein they stated that they got murdered Muhammad Sarfraz through Zafar Iqbal alias Kodu cannot be used against the appellant because the same is weak type of evidence and cannot be relied upon for maintaining the conviction of the appellant; that story of Mst. Razia Bibi complainant (PW-7) disclosed by her in the application (Exh.PJ) which was to the effect that she alongwith other PWs heard the conversation between Zafar Iqbal alias Kodu and Mst. Naziran Bibi alias Jiran Bibi as well as Najma Bibi about the murder of Muhammad Sarfraz is improbable and does not appeal to a prudent mind; that Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi were also indicted in this case with the specific allegation that they got committed the murder of Muhammad Sarfraz through the appellant and thereafter both these ladies made extrajudicial confession before complainant's party but they have been acquitted from this case and no appeal against their acquittal was filed either by the complainant or by the State; that the prosecution evidence which has been disbelieved to the extent of Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi (co-accused of the appellant since acquitted) cannot be believed against the appellant without there being any independent and strong corroboration which is very much lacking in this case; that prosecution has failed to substantiate motive against the appellant; that recovery of bugdha (P.4) allegedly effected at the instance of the appellant does not advance the case of prosecution because the alleged occurrence took place on 18.10.2010, the appellant was arrested on 31.11.2010 who allegedly got recovered bugdha (P.4) on 03.11.2010 i,e, about sixteen days after the occurrence, the same was received in the office of Chemical Examiner on 24.11.2010 i,e, about twenty one day of its recovery and as such there was remote possibility, of blood being present on the bugdha that the recovery of alleged bugdha was effected from a maize crop which was not the ownership of the appellant; 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. Notice was issued to the complainant but none is present on her behalf, therefore, I am proceeding with the case after hearing arguments of learned Deputy District Public Prosecutor for the State.
7. On the other hand, learned Deputy District Public Prosecutor opposes this appeal on the grounds that though the appellant is not nominated in the FIR but at the same time this sole circumstance goes a long way to establish bona fide of the complainant because had there been any malice on the part of the complainant, the appellant could have straightaway been nominated in the FIR; that Razia Bibi complainant (PW-7) has clearly mentioned in the application (Exh.PJ) that she alongwith Faiz Ahmad (PW-8) and Bagh Ali (PW-9) had overheard the conversation between Zafar Iqbal alias Kodu (appellant) and Mst. Naziran Bibi alias Jiran Bibi as well as Najma Bibi wherein the appellant confessed about the commission of murder of Muhammad Sarfraz (deceased); that complainant's version about the murder, of Muhammad Sarfraz at the hands of appellant is fully supported by medical evidence corroborated by the recovery of bugdha (P.4) at the instance of the appellant; that motive has also been proved against the appellant; that case against the appellant is entirely different from that of his acquitted co-accused as nothing was recovered from them and moreover recovery of bugdha (P.4) was effected at the instance of the appellant that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.
8. I have heard learned counsel for the appellant as well as the learned Deputy District Public Prosecutor for the State and gone through the record with their able assistance.
9. The incident qua missing of Muhammad Sarfraz (deceased), as per contents of FIR (Exh.PF/1), allegedly took place on 18.10.2010. As per contents of application (Exh.PJ) the complainant alongwith other PWs came to know about the murder of Muhammad Sarfraz by the hands of Zafar Iqbal alias Kodu (appellant) on 20.10.2010 whereas the matter was reported to the police on 21.10.2010. This inordinate delay in reporting the matter to the police casts serious doubt regarding the veracity of prosecution story.
10. It is the case of prosecution that on 21.10.2010 complainant moved an application (Ex.PJ) before the SHO Police Station Gaggo and implicated the appellant as well as his co-accused Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi (mother and sister of Muhammad Sarfraz deceased) with the allegation that on 20.10.2010, the appellant confessed before his co-accused about the murder of deceased. The complainant overheard the conversation of the appellant while standing behind the door, who was telling Naziran Bibi and Najma Bibi co-accused that on their direction, he had committed the murder of Sarfraz (deceased). As per contents of the application, the complainant called Bagh Ali, Asghar Ali and her father Faiz Ahmad who also heard the conversation wherein the appellant confessed that he took Sarfraz to his village on rickshaw on the pretext to leave him (appellant) to his house and from there, the appellant took him to katcha path and thereafter, to sugarcane crop on the pretext of gossip where the appellant asked Sarfraz to lit a cigarette and he (appellant) wanted to ease himself. The moment Sarfraz bowed down his head to lit a cigarette, the appellant attacked on his neck with bugdha and the deceased died at the spot. The story of prosecution qua hearing the conversation between the appellant and his acquitted co-accused about the murder of Muhammad Sarfraz (deceased) is improbable and does not appeal to prudent mind. Moreover, the appellant is not nominated in the FIR (Exh.PF/1). There is no direct evidence against the appellant which could justify his conviction on a capital charge.
11. So far as extrajudicial confession allegedly made by Naziran Bibi alias Jiran and Najma Bibi co- accused of the appellant before complainant's party is concerned, I may observe here that it is not reliable for the reason that it was a joint confession. I have noted that there was no occasion for Naziran Bibi alias Jiran and Najma Bibi co-accused of the appellant to make such confession before the complainant's party because at that time, there was no evidence against Naziran Bibi alias Jiran Bibi and Najma Bibi co-accused of the appellant regarding their involvement in this crime. Even otherwise, extrajudicial 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 us. 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 u. 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 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-iudicial 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 extrajudicial 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 extrajudicial 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 Jawed vs. 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."
' In light of the above discussion, I am of the view that the evidence of extrajudicial confession in the instant case is not worthy of reliance. Moreover, the story of prosecution qua the extrajudicial confession allegedly made by Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi (accused since acquitted) has already been disbelieved by the learned trial Court.
12. Motive as set out in the application (Exh.PJ) moved by Mst. Razia Bibi complainant was to the effect that Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi mother and sister of the deceased were of bad characters. Muhammad Sarfraz (deceased) had forbidden them from doing so and due to the said reason Muhammad Sarfraz (deceased) had beaten both these ladies one day prior to the occurrence. Due to the said grudge Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi got committed the murder of Muhammad Sarfraz through Zafar Iqbal alias Kodu (appellant). The prosecution has not produced any evidence qua motive against the appellant. Motive was specifically attributed to Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi who have been acquitted from this case, therefore, prosecution has failed to substantiate motive against the appellant.
13. So far as the alleged recovery of bugdha (P.4) at the instance of Zafar Iqbal alias Kodu (appellant) and positive report of Chemical Examiner (Exh.PS) are concerned, I may observe that occurrence took place on 18.10.2010, the appellant was arrested on 31.10.2010 who allegedly got recovered bugdha (P.4) on 03.11.2010 i,e, about sixteen days after the occurrence, the same was received in the office of Chemical Examiner on 24.11.2010 i,e, about twenty one days of its recovery, therefore, it was unlikely that the blood on the bugdha (P.4) would not disintegrate during the above mentioned period. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Jamil vs. Muhammad Akram and others" (20 09 SCMR 120) has held as under: "... It is borne out from the record that the alleged recovery of blood-stained Chhuri has effected after about one month of the occurrence from an open plot which was not in exclusive possession of the respondent and was accessible to all. It was also not likely that the blood would not disintegrate meanwhile. So the reasons advanced by the learned Judge in Chambers are not arbitrary or fanciful for not believing the recovery..."
' Therefore, I am of the view that it is not safe to rely on the recovery of bugdha (P.4) and positive report of Chemical Examiner.
14. So far as the medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of 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 versus The State" (1995 SCM R 599).
15. There is another aspect of the case. Two co-accused namely Mst. Naziran Bibi alias Jiran Bibi and Najma Bibi were also implicated alongwith the appellant with the allegation that both these accused made extrajudicial confession before the complainant's party about the murder of Muhammad Sarfraz (deceased) by the hands of Zafar Iqbal alias Kodu (appellant). They were tried alongwith the appellant but acquitted by the learned trial Court and no appeal against their acquittal was filed, therefore, the prosecution evidence which has been disbelieved to the extent to acquitted co-accused of the appellant cannot be used against him for maintaining his conviction on a capital charge without there being any independent and strong corroboration, which is very much lacking in this case. I am mindful of the fact that though the principle of falsus in uno falsus in omnibus is not applicable in criminal cases and for the safe administration of justice the Courts are required to sift grain from the chaff but viewing from all angles there is only chaff and no grain, as no corroboration can be sought from the evidence of motive, medical and the alleged recovery bugdha (P.4) which was allegedly effected from the appellant at the time of his arrest because of the reasons recorded in preceding paragraphs, therefore, the prosecution case to the extent of the appellant is doubtful in nature.
16. Sequel of the above discussion is that 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. In "Ayub Masih versus 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."
17. For the foregoing reasons, this appeal is allowed.
' Conviction and sentence awarded to the appellant vide judgment dated 22.09.2011 passed by the learned Additional Sessions Judge, Vehari is hereby set aside. He is acquitted of the charge levelled against him while extending him benefit of doubt. Zafar Iqbal alias Kodu (appellant) is present in the Court on bail. His surety stand discharged from the liability of bail bond.