SHEHRAM SARWAR CH. J.---Muhammad Asif and Muhammad Abu Bakar (appellants) were tried by the learned Sessions Judge, Rajanpur in case FIR No,172 dated 13.07.2011, offence under Sections 302, 366-A, 376(ii), 379, 363, 201 and 34, P.P.C. registered at Police Station Saddar Rajanpur District Rajanpur for enticing away Mst.Sidra Bibi daughter of complainant, committing her rape as well as murder. Vide judgment dated 31.08.2013 passed by the learned Sessions Judge, Rajanpur, the appellants have been convicted and sentenced as under: - Under section 366-A read with section 34, P.P.C.: Imprisonment of ten years R.I each with fine of Rs,50,000/- (rupees fifty thousand only) each and in default whereof to further suffer simple imprisonment for two years each.
Under section 376(ii), P.P.C.: Imprisonment for life each.
Under section 302(b), P.P.C.
Imprisonment for life each with compensation under section 544-A, Cr.P.C. of Rs,2,00,000/- (rupees two lakh) each payable to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months each.
Under section 379, P.P.C.: Three years R.I. to Muhammad Asif (appellant).
All the sentences were ordered to run consecutively. Benefit of Section 382-B, Cr.P.C. was extended to both the appellants.
Assailing the above convictions and sentences, the appellants have filed the appeal in hand.
2. Precisely, facts of the case, as contained in the FIR (Ex.PE/1) registered on the written statement (Ex.PE) of Ghulam Mustafa, complainant (PW.12) are that he was a cultivator and set up a shop of grocery and vegetables in Basti Lakha. He had five daughters and a son, out of whom, one daughter was married. On 12.07.2011, his daughter Sidra Bibi aged about 13/14 years (unmarried) kept on working with him till 12.00 noon and went to home after taking mangoes. At about 2.00 p.m. the complainant proceeded to his house and found his daughter Sidra Bibi missing. He enquired about his daughter from the neighbourhood but she could not be found. The complainant along with his brother Manzoor Ahmad and Farooq Ahmad son of Manzoor Ahmad searched her in Basti Lakha and its surroundings but in vain. On the morning of 13.07.2011, Habib Ahmad son of Sher Muhammad informed him that a dead body of an unknown girl is lying in Sipi Nala near Pull Sadiq within the jurisdiction of Mauza Darkhast Haji Muhammad and the police took the dead-body to Police Station Rajanpur. Having received the information, the complainant along with Farooq Ahmad and Manzoor Ahmad went to DHQ Hospital, Rajanpur and identified the dead body of his daughter Sidra Bibi. She was wearing two gold rings which were missing. It was alleged in the FIR that some unknown accused committed her murder after abducting and committing rape with her. The complainant did not suspect anybody for the occurrence.
3. After completion of investigation, a report under Section 173, Code of Criminal Procedure was submitted. The appellants were summoned by the learned Sessions Judge, Rajanpur to face trial and charge under sections 302, 366-A, 376(ii), 379 and 34, P.P.C. was framed against them on 13.10.2011. After closure of prosecution evidence, statements of Muhammad Asif and Muhammad Abu Bakar, appellants under Section 342, Code of Criminal Procedure were recorded on 23.07.2013 and 25.07.2013, respectively, wherein they refuted all the allegations of the prosecution and professed their innocence. In answer to a question as to why the case against him and why the PWs had deposed against him, Muhammad Asif, appellant replied as under:-- "Infact it was blind murder. Muhammad Hussain, my father, remained in Saudi Arabia. He had been sending money from Saudi to Ghulam Mustafa complainant for purchasing a plot for him. At the return of my father Ghulam Mustafa complainant did not return the remaining amount to my father. My father also purchased the share of land of paternal aunt of Ghulam Mustafa namely Mst. Gammal Mai but Ghulam Mustafa complainant did not want to give the said land. These were the disputes between my father and complainant party. The complainant involved me in this blind murder case due to said grudge and disputes. The police connived with the complainant party just to get rid of the blind murder case and financial benefits by the complainant, so that they did major illegalities and irregularities during the investigation. I.O. wrote and fabricates the supplementary statements of complainant and in the light of that statements of other P.Ws. were also written on his own. All the P.Ws. are related inter se and the interested witnesses so they deposed falsely against me."
To the above question, Muhammad Abu Bakar appellant replied as under:-- "It was a blind murder and an un-witnessed occurrence, factually our land and the land of complainant and his brother Manzoor Ahmad PW are irrigated from the same moga of Dhundhi Qutab Canal. Dispute arose between us and the complainant on account of irrigation of water to the land, so I maltreated the complainant and his brother Manzoor Ahmad P.W. They, therefore, nourished a grudge against me. Complainant was not sure about the culprits so I.O. on his asking get DNA test one Ehsan Ahmad including me and Asif accused and the result of DNA test did not support the prosecution version. I am innocent. I was involved due to aforementioned enmity as well as to grab the money in league with the police. P.Ws. are kith and kin as well as to the deceased. They are inimical towards and are interested to involve me in this case falsely. All the pieces of circumstantial evidence was created by the Investigating officer to support the prosecution false version."
The appellants neither opted to appear as their own witnesses, in disproof of the allegations levelled against them, as provided under section 340(2), Code of Criminal Procedure nor did they produce any evidence in their defence. However, after conclusion of the trial, learned trial court convicted and sentenced the appellants as detailed above. Hence this appeal.
4. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that there is no admissible evidence against the appellants; that the appellants are not nominated in the FIR (Exh.PE/1); that there is no eye-witness account in this case; that extra judicial confession allegedly made by the appellants before Ghulam Mustafa complainant (PW.12) and Manzoor Ahmad (PW.13) cannot be used against the appellants because the same is weak type of evidence and cannot be relied upon for maintaining the conviction of the appellants; that evidence of wajtakkar produced by Abdul Hameed (PW.11) does not advance the case of prosecution; that medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i,e, ocular account inspires confidence which is not the situation in this case; that the alleged recoveries of a pair of softi shoes (P.5/1-2), a pair of ear rings (P.6/1-2) and motorcycle at the instance of appellants are inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes this appeal on the grounds that though the appellants are 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 appellants could have straightaway been nominated in the FIR; that the complainant's side had no enmity against the appellants for their false implication in this case; that the evidence in the form of extra- judicial confession and wajtakkar is available on the record which connects the appellants with the commission of crime; that complainant's version about the murder of Sidra Bibi after committing rape with her at the hands of appellants is fully supported by medical evidence and corroborated by the recoveries of motorcycle and a pair of ear rings at the instance of Muhammad Asif (appellant) as well as a pair of softi shoes at the instance of Muhammad Abu Bakar; that the prosecution has successfully brought home guilt against the appellants beyond any shadow of doubt and there is no merit in this appeal.
6. I have heard learned counsel for the parties as well as the learned Deputy District Public Prosecutor for the State and gone through the record with their able assistance.
7. The case in hand is one of circumstantial evidence. It has been held in a number of cases by the Hon'ble Supreme Court of Pakistan that circumstantial evidence in unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of the chain is missing this would entitle the accused to be acquitted by giving him the benefit of doubt. Reliance is placed upon "Altaf Hussain v. Fakhar Hussain and another" (2008 SCM R 1103) "Muhammad Hussain v. The State" (2011 SCM R 1127), "Ibrahim and others v. The State" (2009 SCM R 407) and "Sh. Muhammad Amjad v. The State" (PLD 2003 Supreme Court 704). In the case of Altaf Hussain (supra), the august Supreme Court of Pakistan, at page 1105, 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." In the case of Muhammad Hussain (supra), the august Supreme Court of Pakistan, at page 1133, observed as under:-- "16. Admittedly, it is a case of circumstantial evidence, therefore, as rule of prudence, it is required that each piece of circumstantial evidence shall be supported by independent corroboration, which shall, by itself, be sufficient to establish the guilt. However, each circumstance shall be so connected with each other that it shall make one complete chain, without there any broken link..."
Keeping in view the guidelines given by the Hon'ble Supreme Court of Pakistan, I would discuss the evidence, produced by the prosecution in this case.
8. So far as evidence of Wajtakkar produced by Abdul Hameed (PW.11) is concerned, the same is of no avail to the prosecution because the said PW while appearing before the learned trial Court stated in his examination-in-chief that on 12.07.2011 at 3:00 p.m. he along with Muhammad Ramzan (PW since given up) was standing at Chowk Zahrani where they saw Muhammad Asif and Muhammad Abu Bakar (appellants) while going on a motorcycle towards Sipi Nala along with a sack of jute and at that time they were in perplexed condition whereupon he along with his other PW suspected that there was a dead-body of Sidra Bibi in the said sack and the same is being thrown in the Sipi Nala by the appellants but the said PW stated in his cross-examination that he informed the complainant about seeing of the appellants at Chowk Zohrani on 14.07.2011. There is no plausible explanation on the record as to why the he remained mum for two days and did not 'inform the complainant. Undisputedly Abdul Hameed (PW.11) was the close relative of the complainant and his silence about the incident for a long time casts serious doubt about the veracity of prosecution story. Moreover, the story made by Abdul Hameed (PW.11) about seeing the appellants in perplexed condition and thereafter informing the complainant seems to be false because if the said PW informed the complainant well in time definitely he (complainant) would have implicated the appellants in the instant case prior to 17.07.2011.
9. So far as extrajudicial confession allegedly made by the appellants before Ghulam Mustafa complainant (PW.12) and Manzoor Ahmad (PW.13) 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 the appellants to make such confession before the complainant's party because at that time, there was no strong evidence against appellants regarding their involvement in this crime. Even otherwise, extra-judicial confession is always considered a weak type of evidence. Moreover, the legal worth of the extra judicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course.
Needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source, therefore, in my view this piece of evidence is entirely insufficient to maintain conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the Investigating Officers who normally indulge in such like police chicanery. Reliance is placed on case laws titled as "Hamid Nadeem v. The State" (2011 SCM R 1233), "Imran alias Dully and another v. The State and others" (2015 SCM R 155) and "Muhammad Nawaz and others v. The State and others" (2016 SCM R 267).
10. The alleged recovery of a pair of softi shoes (P.5/1-2), belonging to the deceased, at the instance of Muhammad Abu Bakar (appellant) is inconsequential because the same were ordinary shoes and easily available in the market. Similarly the alleged recovery of a pair of ear rings (P.6/1-2), belonging to the deceased, at the instance of Muhammad Asif (appellant) does not advance the case of prosecution because the complainant's side did not produce any evidence with regard to the ownership of the said ear rings. Moreover, no receipt qua the purchase of said ear rings by the goldsmith has been produced during the course of investigation. Likewise, the alleged recovery of motorcycle at the instance of Muhammad Asif (appellant) is not of much help to the prosecution because Muhammad Asif (appellant) was not the owner of the said motorcycle rather the same was allegedly obtained by him on rent from one Muhammad Ramzan (PW.6) but the prosecution has not produced the registration book of the said motorcycle to prove as to who was the owner of the said motorcycle.
11. The medical evidence does not support the prosecution case because it was the case of prosecution that the appellants committed the murder of Sidra Bibi after committing rape with her but DNA report is in the negative. Lady Dr Tahira Ahsan (PW.5) who conducted postmortem examination on the dead-body of deceased while appearing before the learned trial Court in her cross-examination stated as under:-- "As per report of DNA test dated 09.2.12 Ex DB containing two pages, blood samples of parents of the deceased and the accused persons did not generate any DNA profile, therefore, no comparison could be made. In the light of the report of DNA test, I cannot say that the accused persons had committed sexual intercourse with the deceased victim. It is also mentioned in the report referred to above that blood sample of accused Ehsan Raza son Ahmad Bux was also obtained for DNA purposes. Report of chemical examiner Ex PD does not specify a person who committed rape/sexual intercourse with the deceased/ victim."
Moreover, the medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i,e, ocular account inspires confidence which is not the situation in this case.
12. Sequel of the above discussion is that the prosecution case is doubtful in nature and the appellants are 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."
13. For the foregoing reasons, this appeal is allowed. Convictions and sentences awarded to the appellants vide judgment dated 31.08.2013 passed by the learned Sessions Judge, Ranjanpur are hereby set aside. They are acquitted of the charges levelled against them while extending them benefit of doubt. Muhammad Asif and Muhammad Abu Bakar (appellants) are in jail. They be released forthwith if not required to be detained in any other case.