SARDAR MUHAMMAD SARFRAZ DOGAR, J.---A robbery of different ornaments had allegedly been committed in the house of Mst. Kalsoom Bibi (deceased) at about 9.30 A.M. on 18.05.2013 in the area of Mauza Sadwal Kalan within the territorial jurisdiction of Police Station Karkali Tehsil Kharian District Gujrat and during the said robbery Mst. Kalsoom Bibi was stabbed to death. The culprit committed the alleged offences had remained unknown and FIR No. 91/13 had been lodged in respect of that incident by Muhammad Afzal complainant (PW8) at the above mentioned Police Station during the same day at 10.20 A.M. The present appellant, namely, Muhammad Imran had subsequently been implicated in this case through a supplementary statement (Ex. DC) made by the complainant Muhammad Afzal (PW8) on the same day at 4.00 p.m. and after a regular trial held by the learned Additional Sessions Judge, Kharian District Gujrat, vide judgment dated 28.04.2015, Muhammad Imran appellant was convicted and sentenced as under:-- Under Section 302(b), P.P.C, Life imprisonment by way of Ta'zir for committing murder of Kalsoom Bibi along with direction to pay Rs. 1,00,000/- to the legal heirs of the deceased by way of compensation as contemplated in section 544-A, Cr. P. C. and in case of non-payment of compensation amount to further undergo three months' S.I.
Under Section 392, P.P.C., Ten years' R.I. along with fine of Rs. 50,000/- and in case of default in payment of fine to further undergo S.I. for one month.
Under Section 411, P.P.C., Three years' R.I. along with fine of Rs. 10,000/- and in case of default in payment of fine to further undergo S.I. for 15 days.
2. Being aggrieved by the above-said conviction and sentence, the appellant has preferred the above titled criminal appeal which is being disposed of through this judgment.
3. I have thrashed out the entire evidence with the eminent assistance of learned counsel for the parties. After scanning the prosecution evidence it appears that this case, so to speak, hinges on circumstantial evidence. What tempts the court to believe this type of evidence is the maxim that men may lie but the circumstances don't. I do not nor can I doubt and dispute its century old well tested wisdom. I rather use it as a touch stone for assessing and evaluating the evidentiary worth of the circumstantial evidence. It enables me to reason unknown from the known if the circumstances are reported fairly and faithfully. Deduction about the guilt of the accused could well be drawn from the circumstances as are well authenticated. But where the circumstances so reported are tinkered and tampered with, or contrived and conjured up, they cannot be accepted without careful land critical analysis.
In case of circumstantial evidence like instant one the chain of evidence should be in a geometrical progression touching from one side to the dead body whereas from the other side it should touch to the neck of the accused in the shape of evidence of wajtakkar, supplementary statement made by the complainant, extra judicial confession, recovery of churri and blood stained clothes of the deceased as well as the appellant and if one ring (ingredient) of chain is missing then whole evidence would be discarded and prosecution case would fall on the ground.
In cases of circumstantial evidence, there were chances of procuring and fabricating evidence, therefore, Courts were required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself, about its intrinsic worth and reliability, also ensuring that no dishonesty was committed during the course of collecting such evidence by the investigators and where there were apparent indications of designs on part of the investigating agency in the preparation of a case resting on circumstantial evidence, the court must be on its guard against tile trap of being deliberately misled into a false inference. Reliance is placed on "Hashim Qasim and another v. The State" (2017 SCMR 986).
4. The occurrence in the present case113. according to the prosecution had taken place at 9.30 a.m. on 18.05.2013 within the area of Sadwal Kalan Tehsil Kharian District Gujrat whereas the matter was claimed to be reported by Muhammad Afzal complainant (PW8) through written complaint (Ex. PD) recorded by Mukhtar Ahmad, S.I. (PW11) at the place of occurrence on the same day at 10.00 a.m. on the basis of which formal FIR (Ex. PD/1) was drafted by Mushtaq Ahmad, S.I. (PW6) under section 302, P.P.C. the same day at 10.20 a.m. Although FIR in the present case had been registered with promptitude but it does not provide any corroboration to the extent of involvement of the appellant in the present case as name of the accused had not been mentioned therein. Hence, the FIR cannot be used as a corroborative piece of evidence against the appellant and the prosecution evidence has to be seen with utmost care and caution.
5. It is not disputed that Muhammad Afzal complainant (PW8) was not an eyewitness of the alleged occurrence as at the relevant time he was present at his shop at Sadwal Kalan and according to the complainant he had received an information about the murder of his sister-in- law whereafter he along with his brother Ghulam Abbas and Muhammad Akbar had gone to the house of the deceased and saw that doors of the house were open and blood stained dead body of Mst. Kalsoom Bibi was lying in a room at floor, she was murdered with a sharp edge weapon and there were other marks of violence present on her dead body. Besides that her gold bangles, locket, ear ring and necklace were missing. The jewelry was partially artificial and partially gold. Khadim Ilussain called the police. Police came at the place of occurrence and after inspecting the spot, sent the dead body to THQ Hospital for postmortem.
6. The appellant was convoluted in the instant case through supplementary statement (Ex. DC) made by the complainant on the basis of information provided to him by Mazhar Iqbal (PW 10) and Zulfiqar Ali (not produced) when he was present in his house after burials of Mst. Kalsoom Bibi (deceased), who told him that they were coming towards village on their motorcycle and they saw Muhammad Imran appellant while coming from village. He was carrying a blood stained knife (churri) and he was worried while his clothes were also stained with blood. When Mazhar Iqbal called him, he escaped from there.
7. Though according to the complainant Muhammad Afzal (PW8) the application (Ex. DC) was moved on the same day at 4.00 p.m. wherein he nominated the appellant Muhammad Imran on the asking of Mazhar Iqbal and Zulfiqar Ali yet it cannot be considered as a gospel truth as the said application did not find mention any time of its submission. He also claimed that funeral prayer of the deceased was performed after Maghrab prayer while on the contrary, Ghulam Abbas (PW9) during the cross-examination stated that funeral prayer of Kalsoom Bibi was performed at about 9.00/10.00 p.m. It is also significant to point out here that admittedly,., two other persons, namely, Shahid and Bile were also got arrested in the instant case during the course of investigation but they were got released subsequently from police custody which casts doubt qua the implication of the appellant through said supplementary statement made by the complainant as if the complainant actually moved the said supplementary statement on the said date at 4.00 p.m. and he was assured about the culpability of the appellant in the instant case then there was no need to associate the other two persons. Even otherwise, the abovementioned supplementary statement was not put to the appellant in his statement recorded under section 342, Cr.P.C. It is by now well settled law that any incriminating piece of evidence which has not been put to the accused in his statement recorded under the abovementioned provision of law cannot be used against him.
Reliance is placed on "Muhammad Siddique v. The State" (2018 SCMR 71) and "Imtiaz alias Taj v. The State and others" (2018 SCMR 344).
8. The linchpin of this case is evidence of wajtakkar adduced by Mazhar Iqbal (PW10), who claimed to have seen the appellant Muhammad Imran with blood stained clothes and a knife (churri) in his hand on 18.5.2013 at about 10.00 a.m. when he along with Zulfiqar Ali was coming from Chak Sikandar Towards Village Sadwal on a motorcycle and on seeing them the appellant concealed him in the dib (large bush around the Nalla). They came to Sadwal and informed Muhammad Afzal complainant. Admittedly, Mazhar Iqbal (PW-10) was not resident of same village where the incident had taken place and even he had failed to disclose the purpose of coming along with Zulfiqar Ali to village Sadwal from village Sikandar. The story of going to village Sadwal is thus nothing but a lie to lend crutches to another lie. On the one hand, he claimed that he informed the complainant as well as the police about the occurrence and the police was already present at the place of occurrence when they reached there. But on the other hand, surprisingly neither the complainant nominated the appellant as an accused nor the police took any step in this regard as the documents pertaining to the said date including un-scaled or scaled site E plan of place of wajtakkar was prepared by the Investigating Officer to substantiate the factum of wajtakkar. I have no hesitation in holding that wajtakkar evidence of Mazhar Iqbal (PW-10) was nothing but an attempt on the part of the prosecution to bolster up its case against the appellant. From the above facts and circumstances, I have no hesitation in holding that Mazhar Iqbal (PW 10) had narrated cooked up story and same having found no corroboration from any independent source, thus, testimony of this witness with all his deftness and dexterity does not inspire confidence.
9. The other next important piece of evidence is extra judicial confession allegedly made by 'the appellant before Mazhar Iqbal (PW10) and Zulfiqar Ali (not produced). Evidence of this type because of its being concocted 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. There is no cavil with the proposition that the extra judicial confession is a very weak type of evidence and no conviction could have been awarded without having strong corroboration which aspect of the matter hardly needs any comments because the statement of Mazhar Iqbal (PW 10) is not worthy of credence G and once it is disbelieved no corroboration could be sought from his statement and question of corroboration becomes . immaterial. The extra- judicial confession made by the appellant before Mazhar Iqbal (PW10) is reproduced hereinbelow for ready reference:-- "xxx On 19.05.2013, at about 9.00 pm I along with Zulfiqar Ali were present in our house village Dhumma Malka. The accused Imran. came at our house and told us that he went to the house of Kalsoom Bibi in order to commit theft but Kalsoom Bibi (who was maternal aunt of accused) abused him upon which he committed murder of Kalsoom Bibi. The accused requested us that want compromised with the legal heirs of Kalsoom Bibi. 1 also provide that information to the 10."
10. There is another intriguing aspect of the matter that the extra judicial confession was made on 19.5.2013 at about 9.00 p.m., in the house of Mazhar Iqbal (PW10), whereas, the complainant Muhammad Afzal (PW8) had already nominated the accused upon the information provided to him by said Mazhar Iqbal (PW10) and Zulfiqar Ali (not produced) on J 18.5.2013, therefore, question qua the making of extra judicial confession by the appellant before the above-said witnesses does not arise at all as he had already been nominated as an accused. Thus, it is hold that the so called extra judicial confession is not worthy of reliance and cannot be taken even as corroborative of the charge.
11. Apart from the above, Zulfiqar Ali (not produced) who was accompanied with said Mazhar Iqbal (PW 10) at the time when he was coming from Chak Sikandar towards Sadwal on a motorcycle and at the time when the appellant Muhammad Imran made extra judicial confession before said Mazhar Iqbal (PW10) and Zulfiqar Ali and sought compromised with the legal heirs of Mst. Kalsoom Bibi deceased). Admittedly, Zulfiqar Ali wad maternal uncle of Mst. Kalsoom Bibi (deceased) and was an important witness but he was not produced at the trial. The note appearing on the relevant page with regard to not producing him as PW is that he is un-necessary. In my considered opinion he could provide the first degree of evidence of reliable nature,, thus, adverse inference can be drawn that because he was not supporting the prosecution case so set up, therefore, he was dropped at the trial. In this way, the best evidence, independent in nature, was withheld from the court for obvious reasons. Guidance is sought from the case law cited as "Haq Nawaz v. The State"
(2018 SCMR' 21) and "Muhammad Asif v. The State" (2017 SCMR 486)..
12. From the perusal of medical evidence it reflected that as many as 16 stab wounds were found on the person of the deceased but surprisingly no person from the locality attracted to the house of the deceased despite raising of hue and cry by the deceased and in-spite of the fact that it was a day light occurrence and the house of the deceased was situated in the middle of the village, which also casts serious doubt on the veracity of the prosecution story. There is yet another aspect of the matter that according to the prosecution the occurrence had taken place at 9,30 a.m. whereas, according to the complainant he along with Ghulam Abbas and Muhammad Akbar reached at the place of occurrence at about 9.00 a.m. and the police had been informed about the incident at 9.30 a.m. but all these facts do not coincide with the inquest report (Ex. PK), wherein surprisingly in column No. 3, the time of death of the deceased becoming known was recorded as 9.45 a.m. and according to Mukhtar Ahmad, (PW11), they reached at village Sadwal at about 9.45 a.m. Reliance is placed on Arshad Khan v. The State" (2017 SCMR 564).
13. The last piece of evidence consists of recoveries. This evidence at its best can - be taken as corroborative rather than evidence of the charge. The reason is that it, per se, does not name or nominate any accused, nor does not prove or point to his guilt. It simply supplements the other evidence on the record, if it, in its own rights, inspires confidence. Having thus analyzed, it is most probable to conceive that an accused person who is allegedly involved for commission of capital charge would try to destroy the crime weapon at the first available opportunity instead of keeping the same into safe custody for a long period so that police after arrest may use the same as evidence against him Though the certain jewelry has been statedly recovered on the pointation of the appellant but it is very strange that if the same has been looted for the purpose of having some monetary benefit then it should have been in the knowledge of the appellant who was relative of the deceased that it was artificial jewelry. Even otherwise, in the application Ex. PB, there is no mention of wrist watch of the deceased and as to whether the deceased was wearing gold or artificial jewelry. Though the application (Ex. DC) was moved by the complainant on the same day at 4.00 p.m. but in the said application it was not mentioned that artificial jewelry of the deceased was missing. Similar is the position with regard to blood-stained clothes allegedly recovered from the possession of the appellant. Furthermore, in the absence of the evidence that the bloodstained clothes matched with the blood group of deceased Mst. Kalsoom Bibi it would not be in the interest of justice to connect the appellant with the commission of the offence. Even otherwise, no report of Serologist is available on the record, albei the blood with the help of cotton from the place of murder of deceased and her bloodstained garments have been taken into possession by the I.O. during investigation. According to Mukhtar Ahmad, S.I. (PW11) he did not send the last worn clothes of deceased and the blood stained clothes of the appellant to the Office of Chemical Examiner for forensic analysis. Unless the blood stained earth or cotton and blood stained clothes of the victim are not sent with the same for opinion of serologist to the effect that it was human blood on the crime weapons and was of the same group which was available on the clothes of the victim and the blood stained earth/cotton, such inconclusive opinion cannot be used as a piece of corroboratory evidence. Reliance is placed on "Muhammad Asif v. The State" (2017 SCMR 486).
14. It thus follows that none of the pieces of evidence discussed above, either individually or collectively, is compatible with the guilt of the appellant nor is it incapable of explanation on any other reasonable hypothesis than that of the guilt of the appellant. It would not thus be safe to maintain the finding of conviction of the appellant on this evidence.
15. What has been discussed above, its sequel is that in the present case no convincing, forthright orreliable circumstantial evidence has come on record on the basis whereof the appellant could have been convicted and sentenced rather there are more than one factors, illustrated above which cast a dark shadow of doubt on the veracity of prosecution case. Prosecution case is fraught with doubts; that a prudent mind would not decline to entertain being illusory or imaginary and as such the appellant is entitled to benefit thereof; consequently, instant appeal is allowed, the appellant is acquitted of the charge imputed against him by extending benefit of doubt. He is in jail, directed to be released from jail by the jailer, in a trice, if not required in any other case.