ABDUL SAM! KHAN, J.---Through this appeal under section 410, Cr.P.C. the appellant has challenged the vires of the judgment dated 08.12.2009 handed down by the learned Additional Sessions Judge, Kharian wherein the appellant was convicted under section 302(b), P.P.C. and he was sentenced to undergo life imprisonment by the learned trial court. He was further ordered to pay an amount of Rs,10,00,000/- to the legal heirs of Abdul Rehman deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. is extended in favour of the appellant. The appellant has challenged his conviction and sentence before this Court through the instant appeal whereas the complainant has also filed Criminal Revision No, 1104 of 2009 for enhancing the punishment of the appellant from life imprisonment to capital sentence of death. I propose to decide both these matters together through this consolidated judgment.
2. According to the prosecution story set forth in the FIR the complainant is resident of New Addah Kharian and he is a retired personnel of Navy Force. On 12.08.2008 at about 8.45 pm when the complainant along with his son Abdul Rehman, his wife Mst. Khadeja Begum, Muhammad Yaqoob and Muhammad Rizwan were present at his home, he along with his son Abdul Rehman came out of street in response to knock at door. They saw that Kaleem Ullah and two unknown persons were standing in the street. Kaleem Ullah said to his son to go with them upon which Abdul Rehman took his motorcycle Honda 125 bearing Registration No, GTK-4082 of 2007 Model having black colour body from the home and after boarding Kaleem Ullah on it proceeded with them. The complainant waited for his son the whole night and on next date at about 8.30 a.m. he came to the house of Kaleem Ullah and asked him about his son. Kaleem Ullah replied that he son went away and he did not know about his son. Because in presence of the complainant Kaleem Ullah and two unknown persons took away son of the complainant on motorcycle, so he began search of his son. At about noon when they reached Model Town where some persons were gathered, he saw the deadbody of his son lying there smeared in blood. The deadbody was identified by the complainant and Muhammad Yaqoob. It is alleged in the FIR that Kaleem Ullah and two unknown persons have committed the murder of Abdul Rehman son of the complainant. On application moved by the complainant formal FIR No,370/08, dated 13.08.2008 has been registered at Police Station Sadar Kharian, District Gujrat in respect of an offence under section 302(b), P.P.C. read with section 34, P.P.C.
3. The prosecution in order to prove its case against the appellant examined as many as thirteen prosecution witnesses before the learned trial court. The last-seen evidence in this case has been furnished by Mst. Khadeja Begum, mother of the deceased (PW11) and Haji Sobat Ali, father of the deceased/complainant (PW12) whereas evidence with regard to extra-judicial confession has been furnished by Muhammad Ashraf (PW9) and Nazir Ahmad (PW10). The medical evidence in this case was furnished by Dr. Naveed Iqbal, Medical Officer, Tehsil Headquarter Hospital, Kharian who had conducted post-mortem examination on the dead body of deceased Abdul Rehman Muhammad Latif, SI/investigating officer has appeared as PW13 who had stated about various steps taken by him during the investigation of this case. Remaining evidence produced by the prosecution witnesses is more or less formal in nature.
4.In his statement recorded under section 342, Cr.P.C. the appellant had controverted the allegations leveled against him by the prosecution and he had also professed his innocence. He has neither opted to appear before the learned trial court to adduce evidence under section 340(2), Cr.P.C. on oath nor has he opted to produce defence evidence to prove his innocence.
5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above. Hence, this appeal before this Court.
6. Learned counsel for the appellant submits that the prosecution has miserably failed to prove the case against the appellant beyond any reasonable shadow of doubt by circumstantial evidence which is weak type of evidence. Learned Deputy Prosecutor General assisted by learned counsel for the complainant submits that the prosecution has proved the guilt of the appellant to the hilt.
Learned counsel for the complainant has also prayed for enhancing the sentence of life imprisonment inflicting upon the appellant to that of death penalty.
7. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance.
8. The alleged occurrence of taking away complainant's son had taken place on 12.08.2008 at about 8.45 p.m. whereas the same had been reported to the police by Sobat Ali complainant (PW12) at 3.30 p.m. through Fard Bayan on 13.08.2008 and FIR was lodged at about 3.50 p.m. I have carefully gone through the contents of complaint made by the complainant for registration of case (Ex. PF), the contents of FIR (Ex. PF/1), Inquest report (Ex.PK) and Post-mortem Examination Report (Ex. PD) and found that the exact time of committing murder of deceased Abdul Rehman has not been mentioned anywhere in the above said documents. According to the prosecution case the dead body was recovered from Mohri Road, Model Town, Kharian at midday on 13.08.2008 and Muhammad Latif, SI/investigating officer (PW13) during cross-examination has admitted that Mohri Road is a busy place but astonishingly nobody has noted any sound of firing at the spot nor anybody has seen the culprit/appellant snatching motorcycle or throwing his dead body at the place from where the same has allegedly been recovered. To find out the time of death of deceased from medical evidence I have particularly noted that in Post-mortem Examination Report (Ex.PD) the time of Post-mortem is written as 9.15 p.m. on 13.08.2008 and in his statement Dr. Naveed Iqbal, Medical Officer (PW4) has categorically stated the time between death and the postmortem examination is 21 hours, if this time is taken, then the deceased had been done to death round-about 12.15 am on 13.08.2008 (intervening night between 12/13.08.2008). According to his stance Haji Sobat Ali (PW12) met with the appellant at 8.00 am on 13.08.2008 and he did not even express his suspicion on him for committing murder of deceased with him last night. The complainant has expressed his suspicion with regard to committing murder of deceased on the appellant as and when he reached at the place where the dead body of the deceased was lying.
All the above narrated facts leads an inference to the mind of this Court that the prosecution witnesses while appearing in the witness box deliberately concealed the exact time of death of the deceased to cover the delay in lodging the FIR and conducting Post-mortem Examination of the deceased in this case. Even the doctor (PW4) in his cross-examination has showed his inability to bring on record the time at which the dead body of the deceased was brought to the hospital.
Thus, it can safely be concluded that the FIR has not been registered at a time mentioned therein rather time has been consumed to consult and deliberate the matter and entry has been stopped in the police diary in this regard.
9. Admittedly it was a blind murder and no direct evidence/eyewitness is available with the prosecution to prove that it was none else but the appellant who had committed the murder of deceased. From the evidence of the prosecution available on record, it is clear that the case of the prosecution hinges upon last seen evidence, extra-judicial confession and recovery of weapon of offence. Now I shall first discuss the last-seen evidence adduced by Mst. Khadeja Begum, mother of the deceased (PW11) and Haji Sobat Ali, father of the deceased/complainant (PW12). According to the contents of complaint (Ex.PF) only the complainant and deceased went outside the house in the street and admittedly Mst. Khadeja Begum (PW11) did not accompany with them, so she herself had not seen the appellant taking away his deceased son with him on motorcycle Honda 125. All that she has stated before the learned trial court is hearsay evidence, the evidentiary value of- which is nothing but zero because she had got recorded her statement on the asking of complainant (PW12) otherwise, as stated above, she herself had not seen his son going with the appellant. Therefore, her statement is not worthy enough to be believed upon the same. Now the only witness of last-seen evidence remained in field is Haji Sobat Ali, complainant (PW12).
According to his own stance the deceased with his own free will had gone with the appellant and the complainant had not shown any suspicion upon him. Even when he allegedly met him in the next morning even then he has not shown any suspicion on the appellant. According to the FIR the complainant (PW12) had nominated the appellant in the FIR on 13.08.2008 and after a passage of one month and eleven days till 24.09.2008 Muhammad Latif, SI/investigating officer (PW13) had not arrested the appellant and according to record the appellant had not gone underground, meaning thereby that till the arrest of the appellant nobody was sure that the appellant had committed the murder of deceased. During his cross-examination the complainant (PW12) categorically stated that they have informed the police about the occurrence at night time between 12.08.2008 and 13.08.2008 whereas during his cross-examination the investigating officer (PW13) categorically stated that prior to application Ex. PF on the basis of which the FIR was lodged no other application was presented before him by the complainant at Police Station. Thus, the improvement made by the complainant (PW12) with regard to information about missing of his son has been denied by the prosecution own witness. Thus, the last-seen evidence furnished by mother and father of the deceased is not only contradictory to each other but the same is also contradictory with the statement of investigating officer. Such type of evidence is not sufficient to be believed to record conviction of appellant in this murder case. Even otherwise law is quite settled on the point that last-seen evidence is weak type of evidence which needs strong corroboration from independent corner but this fact is missing in this case.
10. Apart from last-seen evidence the case of the prosecution also hinges upon evidence of extra- judicial confession. The prosecution has examined Muhammad Ashraf (PW9) and Muhammad Nazir (PW10) to prove the extra-judicial confession allegedly made by the appellant in this case.
Admittedly, Muhammad Ashraf (PW9) is bother-in-law of the complainant and brother of Mst.
Khadeja Begum, mother of the deceased (PW11), so he is interested witness and he also admitted in his cross-examination that he did not possess any influential portfolio at that time to have any influence to beg pardon for the appellant from the complainant. He also admitted in his cross- examination that he did not try to apprehend the appellant at the time of making extra-judicial confession in spite of the fact that he has allegedly murdered his nephew (Bhanja) this peculiar fact speaks volume of false statement adduced by Muhammad Ashraf (PW9) and also shows his unnatural conduct and the same is otherwise contrary to the human behaviour. Similarly, Muhammad Nazir (PW10) is also relative to the complainant and he too is an interested witness. He also did not possess any valuable portfolio to get pardoned the appellant from the complainant.
An overwhelming analysis of the prosecution evidence with regard to extra-judicial confession gives an implied impression to this Court that the prosecution has manufactured extra-judicial confession in this case to strengthen the case against the appellant after taking legal advice in this regard.
11. So far as recovery of pistol .30 bore (P11) which has been taken into possession by the investigating officer vide recovery memo Ex. P11 is concerned, admittedly the appellant has been arrested in this case on 24.09.2008 and pistol has allegedly been recovered from him on 06.10.2008 on 12th day of his remand whereas the empty of pistol 30 bore has been taken into possession by the investigating officer with other articles on 13.08.2008. Admittedly only pistol has been sent to the office of Forensic Science Laboratory and no empty has been sent, therefore, there is no report of matching of crime-empty with recovered pistol (P11). The report of Forensic Science Laboratory is only to the extent of working condition of pistol allegedly, recovered from the appellant. Thus, the recovery effected in this case does not provide any support to the other pieces of evidence.
12. Before closing my discussion into the matter, I may observe here that law is quite settled on the point that to prove the case through circumstantial evidence in criminal case, the chain of circumstances should be so strong or solid that one end should start right from the toe of the deceased and the same should encircle a dense grip around the neck of the accused on the other side. 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. It is also settled law that not many circumstances creating doubt in the prosecution case are required but only one circumstance creating doubt in the prosecution case is enough to acquit the accused. Reliance can easily be placed upon 2009 SCM R 230 wherein the Hon'ble Supreme Court has held as under:- "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
Similar view was affirmed in the cases of Tariq Pervez v. The State (1995 SCM R 1345) and Muhammad Akram v. The State (2009 SCM R 320). It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person.
13. The upshot of my discussion made above is that clouds of doubts are looming large in this case rendering the same to be based on polluted evidence of interested witnesses who have been called at belated stage to create evidence just to strengthen the case of prosecution. Thus, the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. Criminal Appeal No, 07 of 2010 is, therefore, allowed and the appellant is acquitted of the charge by extending benefit of doubt to him. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
14.In sequel to my discussion made in preceding paragraph Criminal Revision No, 1104 of 2009 filed by the complainant to enhance the sentence passed against the appellant by the learned trial court from life to death is hereby dismissed.