Tariq Saleem Sheikh,J:- This appeal is directed against judgment dated 11-4-2009 passed by the learned Additional Sessions Judge, Multan, in case FIR No.379/2006 dated 15-8-2006 registered at Police Station Basti Malook, District Multan, for an of fence under Section 302 PPC.
2. Brief facts of the case are that on 15-8-2006 Complainant Abdul Hayee (PW-5) made a complaint Ex.PE to Zafar-ud-Din Shah/S.I (PW-12) at Ada Chak No.7-F where he was present along with other police officials for surveillance of suspected criminals. He stated that on 14-8-2006 he was at home when at about 10:00/1 1:00 a.m.
Muhammad Nadeem and Zahoor Ahmad came there and asked for Complainant' s brother Khurshid Ahmad alias Shana as they wanted to take him out with them for the 14th August celebrations. Khurshid Ahmad went with them.
At about 05:00 p.m. Muhammad Nadeem aforesaid again came to the Complain ant and asked whereabouts of Khurshid Ahmad. The Complainant expressed his ignorance and told him that he ought to have known about him because he went with him and Zahoor Ahmad in the morning. Muhammad Nadeem told the Complainant that they were together at the lands of Syed Naqi Shah where Khurshid Ahmad had taken liquor . Zahoor Ahmad left earlier and when Muhammad Nadeem also got up Khurshid Ahmad asked him to convey a message to his girlfriend Mst.
Shamshad Bibi to visit him. Muhammad Nadeem conveyed his message to the lady but she could not come as she was busy. According to Muhammad Nadeem, when he returned to the land of Syed Naqi Shah after some time Khurshid was not there. The Complainant further stated that he along with Nasir Hussain (PW-3) and PW Muhammad Sher (given up) and others searched for Khurshid Ahmad but they could not trace him. On 15-8-2006 at about 05:00 a.m. Khurshid Ahmad' s dead body was found in the fields. The Complainant said that some unknown persons had murdered his brother and requested that FIR be registered against them. Zafar-ud-Din/S.I (PW-12) sent the complaint Ex.PE to the police station through Mehmood-ul-Hassan 2810/C whereupon FIR No.379/2006 Ex.PE/2 was registered. On 9-9-2006 Muhammad Ashfaq (PW-4) and Muhammad Aslam (PW 6) came to the Complainant and told him that Appellant Mumtaz Hussain and Muhammad Ramzan (the acquitted co- accused) had approached them and confessed that they had committed Qatl-i Amd of Khurshid Ahmad. On 10-9- 2006 the Complainant and the said PWs went to the police station where Zafar-ud-Din/S.I (PW 12) recorded their statements under Section 161 Cr .P.C.
3. Zafar-ud-Din/S.I (PW-12) investigated this case. On 13-10-2006 he arrested the Appellant. According to him, on 26-10-2006, while in police custody he got recovered blood-stained Ustra (razor) P-4 from the courtyard of his house. During the investigation the Appellant was found guilty of the alleged offence. Report under Section 173 Cr.P.C. was submitted accordingly .
4. The learned Additional Sessions Judge indicted the Appellant and Muhammad Ramzan. Both of them denied the charge and claimed trial. In order to prove its case the prosecution examined 12 witnesses. Complainant Abdul Hayee got his statement recorded as PW-5. Muhammad Ashfaq (PW-4) and Muhammad Aslam (PW-6) deposed with respect to the extra judicial confession of the Appellant and Muhammad Ramzan. Muhammad Ashfaq (PW-4) also witnessed the recovery of Ustra P-
4. The medical evidence was furnished by Dr. Liaquat Mehmood Khan (PW-8). The Investigation Officer, Zafar-ud- Din/S.I (PW-12), gave the details of the investigation and the evidence he collected in this case. Remaining witnesses were formal in nature. The learned Prosecutor gave up PWs Muhamma d Iqbal, Muhammad Shahid and Khadim Hussain 1438/HC being unnecessary . On 8-4-2009, he closed the prosecu tion evidence after tendering the reports of the Chemical Examiner Ex.PR and Ex.PS and that of the Report of Serologist Ex.PT .
5. After the prosecution was through with its evidence the learned trial Court recorded statement of the Appellant under Section 342 Cr.P.C. and confronted him with the incriminating material that was brought against him during the trial. The Appellant refuted the same and professed innocence. He claimed that there was not an iota of evidence against him and the Complainant had falsely implicated him in this case. The Appellant neither got his statement recorded on oath under Section 340(2) Cr .P.C. nor produced any evidence in his defence.
6. On conclusion of the trial, vide judgment dated 11-4-2009, the learned Additional Sessions Judge acquitted co- accused Muhammad Ramzan. However , he convicted the Appellant under Section 302(b) PPC and sentenced him to imprisonment for life and to pay Rs.100,000/- by way of compensation to the legal heirs of Khurshid Ahmad deceased in terms of Section 544-A Cr.P.C. He also ordered that in the event of non-payment of compensation he shall undergo simple imprisonment for a further period of six months. Benefit of Section 382-B Cr.P.C. was extended to him. The Appellant has challenged his conviction and sentence before this Court.
7. In support of this appeal the learned counsel for the Appellant contended that the prosecution had failed to prove its case against the Appellant. There was a gross misreading/non reading of record by the learned trial Court which had caused serious miscarriage of justice. He argued that, firstly , it was a blind murder . The Appellant was not nominated in the FIR and the prosecution had failed to produce any tangible evidence which could connect him with the offence. Secondly , the extra-judicial confession attributed to the Appellant was a joint confession and was thus inadmissible. Thirdly , Ustra P-4 was not recovered from the Appellant and the police had foisted the same on him. Lastly , recovery of Ustra P-4 was merely a corroborative piece of evidence and in the absence of other reliable incriminating evidence it could not be used to record a conviction against the Appellant on a capital charge. He prayed that this appeal may be accepted and the Appellant may be acquitted.
8. On the other hand, the learned Assistant Prosecutor General assisted by the learned counsel for the Complainant controverted the aforementi oned contentions and supported the impugned judgment. He prayed that this appeal may be dismissed and the conviction and sentence of the Appellant be upheld.
9. I have heard the learned counsel and have examined the record with their able assistance.
10. Admittedly , it was an unseen occurrence. Complainant Abdul Hayee (PW-5) deposed that on 14-8-2006 Nadeem and Zahoor came to his house and took his brother Khurshid Ahmad alias Shana with them. On 15-8- 2006 at about Fajarwela his dead body was found in the fields. Police were informed. They came there, took the corpse into their possession and sent it for post mortem. There is nothing in the statement of PW Abdul Hayee or even in his complaint Ex.PE to suggest that the Appellant was also accompanying Nadeem and Zahoor when they took along Khurshid Ahmad. Therefore, for all practical and legal purposes Khurshid Ahmad deceased was last seen in the company of Nadeem and Zahoor. Surprisingly , they are not the accused in this case and are not being called upon to explain his disappearance (and subsequent murder). The Appellant is charged with his Qatl-i-Amd .
11. The prosecution case against the Appellant rests on his extra-judicial confession, recovery of the weapon of offence ( Ustra P-4) and medical evidence. I take up the extra-judicial confession first.
12. Muhammad Ashfaq (PW-4) deposed that on 8-9-2006 the Appellant and Muhammad Ramzan (since acquitted) came to see him in his house at Qasba Marhal. Muhammad Aslam (PW-6) was also with him. He stated that both the accused made a confession before them that they had murdered Khurshid Ahmad. On 14-8-2006 when they went to the Appellant' s house they found it chained from inside. They opened it by "some means" and found Khurshid Ahmad deceased committing Zina with Appellant' s wife Mst. Nasreen. The said Mst. Nasreen managed to flee but they apprehended Khurshid on the spot. Ramzan locked his arms while the Appellant cut his throat with an Ustra that he had with him at that time. Subsequently , they also cut his lips, ear and nose and then threw the dead body in the field at 03:00/04:00 a.m. the following day. PW Muhammad Ashfaq further stated that the Appellant and Ramzan asked him to help settle the matter with the complainant party . On 9-9-2006 they informed Complainant Abdul Hayee about the extra-judicial confession of the Appellant and Ramzan and he took them to the police station where the Investigation Officer recorded their statements under Section 161 Cr.P.C. Muhammad Aslam (PW-6) testified that on 8-9-2006 the Appellant and Ramzan made an extra-judicial confession when he was with PW Muhammad Ashfaq though he did not give the details which he had mentioned in his statement. Complainant Abdul Hayee confirmed that PWs Muhammad Ashfaq and Muhammad Aslam came to him on 9-9-2006 to inform him about the aforesaid confessions and then he took them to the Investigation Of ficer.
13. Courts are always cautious in placing reliance on extra-judicial confession of an accused person while deciding criminal cases. This is essentially because they can be easily procured. It has been rightly observed that "when the Investigation Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now have become the sign of incompetent investigation". The question as to what is the evidentiary value of an extra-judicial confession and how far it can be relied upon for recording a conviction against an accused has been considered by the Hon'ble Supreme Court of Pakistan in a number of cases. Some of the illuminating judgmen ts in this regard include: "Ahmad v. The Crown " (PLD 1951 FC 107), "Sarfraz Khan v. The State and 2 others " (1996 SCMR 188), "Sarfraz Khan v. The State, etc" (NLR 1996 Criminal 114), "Tayyab Hussain Shah v. The State " (2000 SCMR 683), "Ziaul Rehman v. The State " (2001 SCMR 1405 ), "Sh. Muhammad Amjad v. The State " (PLD 2003 SC 704), "Rasab Khan v. The State " (2004 SCJ 160), "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), "Muhammad Pervez and others v. The State and others " (2007 SCMR 670), "Tahir Javed v. The State " (2009 SCMR 166) and "Azeem Khan and another v. Mujahid Khan and others " (2016 SCMR 274 ).
14. The principles set out in the aforementioned judgments may be enumerated as under:
(i) Extra-judicial confession is normally considered as a weak piece of evidence as it can be easily procured whenever direct evidence is not available.
(ii) An extra-judicial confession is not a direct evidence. It can be used against an accused only when it comes from unimpeachable sources. Further, it must be corroborated in material particulars through trustworthy evidence.
(iii) Since extra-judicial confession is a weak type of evidence, conviction on capital charge cannot be recorded in its basis alone.
(iv) There are four essentials to believe an extra-judicial confession: firstly , that the extra-judicial confession was in fact made; secondly , that it was made voluntarily; thirdly , that it was truly made, and fourthly , that the motivating force behind it was proved.
(v) In criminal cases great responsibility rests upon the courts to determine if the confession is voluntary and true or is lacking within the scope of either term "voluntary" and "true". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority , it would be treated as not voluntary .
(vi) The extra-judicial confession must be received with utmost caution. The court should enquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true. It is but a natural[1] 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 back of a human conduct. Why a person guilty of offence entailing capital punishment should at all confers. There could be a few motivating factors like: (a) to boast off, (b) to venti late the suffocating conscience, and (c) to seek help when actually trappe d by investigation. Where the accused had been fully trapped during the investigation, what is the nature and gravity of the offence involved, what is the relationship of the accused with the person before whom confession is made.
(vii) The status of the person before whom the extra judicial confession is made must be kept in view. A person may make confession before a third person to seek help from him. Help is sought when a person is sufficiently trapped and he feels that the other person is in a position socially or otherwise to provide him some relief. Extra-judicial confession of murder made by accused to witnesses who were neither respectable persons of locality nor enjoyed such a commanding position so as to have an access or influence on the police or the relatives of the deceased to get pardon for accused. In such situation, what prompted the accused to confess his guilt voluntarily without any duress, coercion or inducement leaves room for consideration.
(viii) Evidence of witnesses before whom accused made extra-judicial confession would not be worth reliance when witnesses exhibited unnatural and inhuman conduct after accused had made confession to them.
(ix) The Court should also look at the time lag between the occurrence and the confession and determine whether the confession was at all necessary .
(x) Joint confession cannot be used against either of them.
(xi) Extra-judicial confession made by the accused when he is in the custody of the police is inadmissible in evidence. Article 38 of the Qanoon-e-Sha hadat Order , 1984 (the "QSO" ), lays down that a confession made to a police officer shall not be proved against a person accused of any offence. The rule embodied in above Article is for the reason that a police officer shall not be encouraged to extort confession for showing efficiency by securing convictions. Under this Article a confessi on made to a police officer is to be ignored even if it was made in the immediate presence of a Magistrate, as the Article 38 is independent and is not controlled by Article 39.
(xii) Article 39 of the QSO deals with confess ions which are made not to police officers but to persons other than police officers i.e. to a fellow prisoner , a doctor or a visitor and makes such confes sions inadmissible, if they were made while the accused was in the custody of police of ficer. Articles 38 and 39 lay down dif ferent rules.
(xiii) As per Article 40 of the QSO when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the Appellant, under Article 40 ibid, relating to incriminatory articles is admissible.
15. In "Rehmat Ullah v. The State " (2005 Cr.LJ 939), this Court further held that the person before whom extra - judicial confession is made must reproduce the exact words in which it was made. In the absence of date, time, place, motive and details of incident, extra-judicial confession would have no credence.
16. If we go through the depositions of Muhammad Asghar (PW-4) and Muhammad Aslam (PW-6) and read between ths lines, it will not be difficult to hold that it was all a cock and bull story. Muhammad Ashraf was a small cultivator in the village. Similarly, Muhammad Aslam was employed with a landlord on a salary of Rs.3000/- per month. There was no reason for the Appellant to make an extra-judicial confession before them, particularly when there was no motivating factor therefor. The falsity of their testimonies is also evinced from their conduct.
Accordingly to them, the Appellant made the alleged confession before them on 8-9-2006 while they got their statements under Section 161 Cr.P.C. recorded with the Investigation Officer on 10 9-2006. They did not advance any plausible explanation for this delay. They also lied to the Court that they made statement to the Investigation Officer on 9-9-2006. Zafar-ud-Din/S.I (PW-12) categorically stated that he recorded their statements on 10-9- 2006. In a nub, from whatever angle we examine, their depositions do not inspire confidence. Even otherwise, since it was a joint extra judicial confession by the Appellant and Ramzan, his acquitted co-accused, it is not admissible.
17. The prosecution relies on the recovery of Ustra P-4 to incriminate the Appellant. I am afraid, the alleged recovery does not advance its case inasmuch as it was made in violation of Section 103 Cr.P.C. It is settled law that one tainted piece of evidence cannot corroborate another tainted piece of evidence. Reliance is respectfully placed on "Azeem Khan and another v . Mujahid Khan and others " (2016 SCMR 274 ).
18. Dr. Liaquat Mahmood Khan (PW-8) conducted autopsy on the dead body of Khurshid Ahmad deceased. He found that the throat of the deceased was cut by a sharp-edged weapon. Besides, there were an abrasion on the right elbow joint and on the right side of abdomen. Lips and nose were also cut and facial bone was exposed. He opined that cutting of throat was the cause of death of the deceased as it led to damage of major blood vessels of neck leading to hemorrhage and shock which were sufficient to cause death in ordinary course. Post-mortem Report is Ex.PO. The testimony of Dr. Liaquat Mahmood Khan does not advance the prosecution case because medical evidence is only confirmatory in nature and does not identify the culprits. Reliance is placed on "Hashim Qasim and another v . The State " (2017 SCMR 986 ).
19. On a thorough reappraisal of the material available on the record I have found it to be a case of no evidence.
Therefore, the conviction and sentence handed down by the learned trial Court to the Appellant cannot be sustained. This appeal is allowed and the impugned judgment is set aside. The Appellant is acquitted of the charge. During the pendency of this appeal his sentence was suspended by this Court and he was released on bail vide order dated 21-9-201 1. His sureties are discharged.
1. These are mostly reproduced verbatim.