1. SADAQAT ALI KHAN, J. --- <i>This single judgment shall dispose of Criminal Appeal No, 649 of 2013 filed by Qaiser Abbas and Ali Raza appellants (against their convictions), Criminal Revision No, 648 of 2013 filed by Syed Riaz Hussain Shah (complainant) against Ali Raza respondent (for enhancement of his sentence), and. M.R. No, 162 of 2013 sent by learned Trial Court for confirmation of death sentence of appellant Qaiser Abbas or otherwise as all the above-stated matters have arisen out of same judgment dated 25.4.2013 passed learned Additional Sessions Judge. Matakwal ac..ordinq to which the appellants were convicte4 and sentenced as under:-- "a) Qaiser Abbas was convicted under Section 302(b). P.P.C. and sentenced to death along with compensation Rs, 1.00,00C/ payable to the legal heirs of the deceased under Section 544-A, Cr.P.C. which shall be recovered as arrear of land revenue and in default thereof further undergo 6 months' SI. Ali Raza was convicted under section 302(b)/34. P.P.C. and sentenced to imprisonments for life (S I.) . along with compensations Rs, 1,00,000/-payable to the legal heirs of the deceased, under Section 544-A. Cr.P.C. which shall be recovered, as arrear of land revenue and in default thereof further undergo 6-months' S. I.
2. The accused. Ali Raza was given benefit of Section 382-B. Cr.P.C. </i> While, their co-accused namely Haider Abbas, Barkat Shah. Dildar Hussain Shah, Zille Hasnain and Mst. Rashida Bibi were acquitted in private complaint under Sections 302/109/34, P.P.C. arising out of case F.I.R. No, 675, dated 14.12.2011 'under Sections 302/201/147/149, P.P.C. Police Station Malakwal, District Mandi Baha-ud-Din.
3. 2.The facts of the case have been stated by Syed Riaz Hussain Shah complainant PW-12 in his statement before the Trial Court. which is hereby reproduced for narration of the facts:--- <i> "Stated that I am resident of Kot Sultan, Pind Dadan Khan. My son namely Ali Fraz aged 30 years was married to Rashida Bibi daughter Baker Shah. Said Rashida was school teacher in Malakwal.
4. Five months prior to the occurrence said Rashida Bibi came to her parents due to some differences with her husband. On 06.12.2011 at about 02:00 p.m. Rashida, accused informed her husband about the death of her father. My son All Fraz proceeded to Malakwal. I contacted my son telephonic ally on his mobile No, 0346-6565883 at 06/07 p.m. in presence of Ali Abbas and Sajjad Hussain and Waji-ul-Hassan who told as he was with his in laws in their house and would come-back after "Khatani-e-QuI". I again contacted him 07.12.2011 at 08:00 a.m. but his telephone was powered off.
5. Then I contacted accused Tasawar who replied that Ali Fraz had left by 04:00 a.m. Then I contacted Rashida accused who replied that Ali Fraz after hewing breakfast had proceeded back to find Dadan Khan by 08:30 a.m. I contacted again and Maryam sister-in-law of my deceased son picked up the phone and replied that he had proceeded back by 08:00 a.m. Occasionally. I remained in contact with the in-laws of my deceased son, but they all spook to my satisfaction that All Fraz had gone back my brother Ali Abbas, Waji-ul-Hassan and Salad visited the house of accused persons on 08.12.2011. i. enquired from the accused person and Zille Hasina accused replied that they had already told that Ali Fraz had proceeded back home and their attitude was harsh. Sher Abbas alongwith another persons resident of Badshahpur had come to Mohallah Kanianwala. Malakwal to attend Majlis and were going towards Imam Bargah and when they reached near house of accused persons, they heard that Rashida Bibi accused and Zille Hasnain accused were talking with each other that. "we would seek divorce from Ali Fraz'. but they again spoke that, we would violate our family customs in case of divorce and luckily Ali Fraz had come to us, we would murder him and would throw his body into the river". We came to know on 14.12.2011 that dead-body of All Fraz was lying in river Jhelum near Chak Nizam bridge. 1 aiongwith Raja Nadim and Ali Abbas identified the dead-body of my son Ali Fraz. t moved complaint Ex.P.K bearing my signature Exh.PK/1 for registration of formal F.1.R. to police station. Tasawar Abbas and Ali Raza made exta-judicial confession in the office of Raja Mushtaq to the effect that they had murdered their bother-in- law and thrown his dead-body into the river. On 14.12.2011 I identified shoes P.1 and P.2 of deceased and I also signed the Ex.P.L. The police did not conduct fair investigation. Feeling aggrieved from the unfair investigation I filed private complaint Ex.P.M which bears my signature as Ex. P.M/1. On 14.12. 2C 1, I received the dead-body of deceased Ali Fraz put my signature on Exh.P.N." </i>
3. After filing of private complaint. learned Trial Court recorded the cursory evidence produced by the complainant and thereafter summoned the appellants and their co-accused mentioned above to face the trial.
6. 4 Learned Tnai Court after observing legal formalities provided under the Criminal Procedure Code framed the charge or 11 12.2012 against the appellants/convicts along with their co-accused (since acquitted) under Section 302/201/109/148/149. P.P.C. to which they pleaded not guilty and prosecution evidence was summoned.
7. 5.Prosecution produced Raja Nadim PW-1. Syed Waji-ul-Hassan PW-2, Rap Mushtaq Ahmad .PW-3.
8. Najamul-Hassan PW-4, Shabbir Abbas Gonda! PW-5. Muhammad Arshad PW-6, Muhammad Akram. ASI PW-7. Khalid Pervaiz 124/C PW-8, Muhammad Afsar 54/LHC PW9. Gulzar Ahmad Star PW-10, Dr. Muhammad Ilyas PW-11. Syed Riaz Hussain Shah (complainant) PW-12 and Mehdi Khan.
9. S.I. CW-1, whereas PWs namely Sajjad Hussain. Ali Abbas, Muhammad Aslam. Tanveer Ahmad and Muhammad Imran were given up by the prosecution being unnecessary and after tendering documentary evidence i,e, Ex.PA to Ex.PVV closed the prosecution evidence.
10. 6.Medical evidence has been furnished by Dr. Muhammad .lIyas PW-11, who conducted post- mortem examination on the dead-body of Syed Ali Fraz son of Syed Riaz Hussain Shah (complainant) and observed as under-- <i>"Description of injuries.
11. 1.Right eyes swollen (Protrusion). Lipper and lower lid, and bluish blackish blue coloration 2.Right cheek swollen and over its skin operated putrefied, facia seen.
12. 3.7 x 3 cm. abrasion on right shin mid area 4.Swelling back of ear on neck. Right side underlying muscles and blood vessels were contused, clotted, serum mixed blood from mouth and nose seen.
13. CRANIUM AND SPINAL CORD: All intact and healthy. THORAX.
14. 1.5 cm gap 1 cm. below hyoid bone in trachea antro lateral side (damaged). Rest were intact and healthy.
15. ABDOMEN: Mouth closed, lips swolle. clotted and seres blood coming out around seen. Blood clat in pharynx and layrenx. Rest were intact and healthy.
16. UPPER AND LOWER UMTS: Right shin scratched as described already. Rest were intact and healthy.
17. SPECIMENS SENT FOR EXPERT OPINION TO: Chemical Examiner liver, spleen, lungs, stomach, small and large intestines for detection of poison and heart for Histopathology.
18. Probable duration between injuries and death "immediately" and between death and post-mortem was 3 to 8 days.
19. Stitched dead-body, worn clothes, sealed bottles containing visrea bottles containing edges right and left hand of dead-body, two sealed envelopes and two x-ray films were handed over to Khalid Pervaiz 124/C.
20. Vide report No, 2378/PV. dated 14.4.2012 Chemical Examiner office tranquilizer belonging to Benzodiazepine group detected in viscera. Vide Reference 403 FH. dated 19.7.2012 Lab. No, 1388/2011 dated 21.12.2011 Histological examination of Section of Heart reveals patent coronary arteries the mayo cardium is unremarkable.
21. OPINION: In my opinion cause of death was asphyxia due to throttling."</i> 7.On the other hand, statements of the appellants were recorded under Section 342, Cr.P.C., who refuted the allegations so leveled against them. They neither opted to appear as a witness under Section 340(2), Cr.P.C. nor produced any oral defense evidence. However. they produced document Exh.DA to Exh.DC and in reply to question "why this case against you and why the PWs deposed against you'?" Qaiser Abbas appellant replied as under:-- <i>"All the PWs are closely related inter se. Deceased was known patient of epilepsy (Mirgi) and was disappointed personality who committed suicide on the bank of River Jhelum in the area of Chak Nizam. District Sargodha and on recovery of dead-body of deceased in connivance of police of P S Malakwal by concocting a false and fabricated story on the basis of suspicion I have been falsely roped in this false case."</i> Likewise, in reply to question "why this case against you and why the PWs deposed against you?" Ali Raza appellant replied as under.-- <i>"All the PWs are closely, related inter se. Deceased was known patient of epilepsy (Mirgi) and was disappointed personality who committed suicide on the bank of river Jhelum in the area of Chak Nizam District Sargodha and on recovery of dead-body of deceased in connivance of police of P S. Maiakwal by concocting a false and fabricated story on the basis of Suspicion I have been falsely roped, in this false case." </i>
8. After conclusion of the trial, learned Trial Court while acquitting co-accused namely Haider 1.
22. 2.
23. 3.Haider Abbas Mst. Rashida Bibi Barkat Shah Dilder Hussain Zille Hasnain Qaiser Abbas Ali Raze (These 5 accused have been acquitted by the Trial Court through the impugned judgment. and PSLA No, 122/2013 filed] by the complainant against their acquittal has been dismissed today (28.11.2016) by this Court as having not been pressed).
24. (Appellants)Abbas, Barkat Shah, Dildar Hussain Shah. Zille Hasnain and Mst. Rashida Bibi convicted the appellants with above-said sentences. Hence this appeal.
9. Learned counsel for the appellants has contended that:--- <i>(i)the judgment of the Trial Court dated 25.4.2013 is against law and facts on the file and is liable to be set aside: (ii)That the prosecution -has failed to prove its case against the appellants/convicts as there are many major discrepancies in the statements of the PWs and the learned Trial Court has convicted the appellants on the basis of surmises and conjectures; (iii)It is contended that the impugned judgment of the Trial Court is not maintainable in the eyes of law; (iv)Lastly submitted that instant appeal may be accepted and the judgment of the Trial Court dated 25.4.2013 may kindly be set aside and appellants/convicts may be acquitted.</i>
10. On the other hand, learned DDPP assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:-- (i)<i> the prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the appeal.
(ii) Learned counsel for the complainant while arguing in Criminal Revision No, 648/2013 filed by Syed Riaz Hussain Shah (complainant) for enhancement of sentence of All Raza appellant has submitted that the prosecution has proved its case beyond shadow of doubt against All Raza respondent No, but learned Trial Court without any valid reason awarded lesser punishment to him, who deserves to be awarded maximum punishment provided by law. </i> 11.We have heard the learned counsel for the appellants as well as learned DDPP assisted by learned counsel for the complainant and perused the record.
25. 12.The detail of prosecution case has already been given in para-2 of this judgment therefore there is no need to repeat the same to avoid the duplication and repetition.
26. 13.According to the occurrence took place on 07 12.2011 at 8.00 a.m. (date of missing of Syed Ali Fraz Shah deceased), whereas F.I.R. was registered on 14.12.2011 at 12:15 p.m. on the written application Exh.PK moved by Syed Riaz Hussain Shah complainant PW-12. real father of Syed Ali Fraz -Shah deceased. Dead-body was recovered, from River Jhelum underneath Railway Pull on 14.12.2011 at 11.00 a.m. during search made by the complainant party. The prosecution has introduced following accused in this case:--- 14.No person from the prosecution claims to be the eye-witness of the occurrence, rather case of the prosecution is based on circumstantial evidence. which is categorized as under:--
(i) <i><b ><u> Evidence of extra-judicial confession furnished by Raja Mushtaq Ahmad PW-3</b><i> </u> 15.Raja Mushtaq Ahmad. PW-3 has stated in his statement (examination-in-chief) that on 15.12.2011, Najamul-Hassan PW-4 was sitting with him in his house situated in Village Malakwal, meanwhile, Qaiser Abbas appellant came there and made confession regarding murder of Syed Ali Fraz deceased. He further stated that Ali Raza appellant had also come in his house and made confession regarding murder of Syed Ali Fraz deceased on the same day. Najamul-Hassan PW-4 has supported his evidence. Admittedly both the appellants have not been arrested by Raja Mushtaq Ahmad PW-3 and Najam-ul-Hassan PW-4 at the time of making of extra-judicial confession, rather these two PWs made their statements before the .1.0. on 16.12.2011 regarding extra-judicial confession of both the appellants with unexplained delay of about one day, which itself creates doubt. Even otherwise extra-judicial confession is a weak type of evidence and same can be procured, at any time during the .investigation when direct evidence is not available with the prosecution However it could be taken as corroborative piece of evidence if it rings true and then finds support from other evidence of unimpeachable character, which is missing in the present case. Reliance is placed on case titled Nasir Javaid and another v. The State (2016 SCM R 1144) in which Hon'ble Supreme Court of Pakistan has observed at page 1150 as under:--- " 11 .<i> Next is the evidence of extra judicialconfession. Evidence of this type because of its being connected easily is always looked at with doubt and suspicion. It could be taken as corroborative of the charge if it, in the first instance rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration. Extra judicial confessions of the appellants when examined in this light neither ring true nor agree with truth nor fit in with the surrounding circumstances of the case.</i>
(ii) <i><b ></u>Last seen evidence furnished by Muhammad Arshad PW-6. </i></b ></u>
16. Muhammad Arshad PW-6 stated in his statement (examination-in-chief) that on 8.12.2011 at about 2 p.m. he alongwith Muhammad Aslam (given-up PW) came to TMA Office Malakwal to see Mushtaq. Sub-Engineer who offered and served meal as well as tea. Thereafter, they were coming back to their house and when they reached near Chak Nizam at about 8:30 p.m. where Qaiser Abbas and All Raza appellants were sitting, while Syed All Fraz deceased was lying on the ground.
27. On asking they replied that their brother-in-law was sick and they were taking him for treatment to Pind Dadan Khan. Later on, they came to know about the murder of Syed Ali Fraz deceased. They further stated that their statements were recorded on 4.1.2012. According to the prosecution story, Muhammad Arshad PW-6 had seen Syed Ali Fraz deceased in the company of Qaiser Abbas and All Raza appellants on 8.12.2011 at 8.30 p.m. near Chak Nizam, whereas F.I.R. was registered on 14.12.2011, but he did not disclose this fact before the complainant, rather on 4.1.2012, with unexplained delay of about 26 days, he appeared before the I.O. and disclosed this fact before him, which creates doubt. The law is settled by now that if the statement of a witness was recorded with unexplained delay, his credibility is shattered. Reliance is placed on case titled Muhammad Khan v.
28. Maula Bakhsh and another (1998 SCM R 570) in which Hon'ble Supreme Court of Pakistan has observed at page 575 as under-- <i>"it is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr. P. C. is recorded with delay without offering any plausible explanation.</i>
17. Even otherwise, last seen evidence is a weak type of evidence and same is procured at any time during the investigation whenever direct evidence is not available to prosecution. Reliance is placed on case titled Altaf Hussain v. Fakhar Hussain and another (PLJ 2008 SC 687) in which Hon'ble Supreme Court of Pakistan has observed as page 689 as under--- <i>"It is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. This piece of evidence has been disbelieved by the Trial Court as well as learned High Court and rightly so. So far as circumstantial evidence is concerned it does not lead to the conclusion in any manner that the respondent had any hand in the affair and caused the murder in question. Needless to emphasis that all the nieces 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." </i> 18.Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime". Reiiance is placed on case titled Altaf Hussain v. Fakhar Hussain and another" (PIA 2008 SC 687) in which Hon'ble Supreme Court of Pakistan has observed at page 689 as under -- <i>It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. </i> 19.Learned DDPP submits the appellants were arrested, but nothing was recovered from them during interrogation.
29. 20.Learned counsel for the complainant, further, could not .point out any admissible legal incriminating evidence against the appellants, 21.Considering above, we are of the view that one tainted piece of evidence could not corroborate another piece of tainted evident because if this is allowed to be done then very necessity of corroboration would be frustrated. Reliance is placed on case titled <b>"Mursal Kazmi - alias Qamar Shah and another v. The State (2009 SCM R 1410)</b> in which Hon'ble Supreme Court of Pakistan has observed at page 1417 as under:-- <i>"it is well-settled that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this allowed to be done then very necessity of corroboration would be frustrated." </i> 22.In view of the above discussion, case of the prosecution is not free from doubt. It is settled by now that for giving benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt the prudent mind about the guilt of the accused, then the accused would be entitled for the same not as a matter of grace and concession but as of right. Reliance is placed on case titled "Muhammad Akram v. The State" (2009 SCM R 230) in which Hon'ble Supreme Court of Pakistan has observed at page 236 as under:--- <i>`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 SCM R 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." </i> 23.For the foregoing reasons, Criminal Appeal No, 649 of 2013 filed by Qaiser Abbas and Ali Raza appellants is accepted and, convictions and sentences of the appellants awarded by learned Trial Court through impugned judgment are set aside and the appellants Qaiser Abbas and All Raza are ordered to be acquitted of the charge n private complaint under Section 302/109/34, P.P.C. arising out of case F.I.R. No, 675. dated 14.12.2011 under Section 302/201/147/149, P.P.C. Police Station Malakwal, District Mandi Baha-ud-Din. They are directed to be released forthwith if not required in any other case. M R. No, 162 of 2013 is answered in <u><b >NEGATIVE </u></b >and death sentence of Qaiser Abbas appellant is <u><b >NOT CONFIRMED. </u></b > 24.So far as Criminal Revision No, 648/2013 file by the complainant against Ali Reza appellant for enhancement of his sentence is concerned, in view of the above decision, the same has become