Sadiq Mahmud Khurram, J.--The appellant namely ,- Muhammad Razzaq alias Abdul Razzaq son of Muhamm ad Ishaq was tried by the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan in case FIR No. 616 of 2013 dated 28.11.2013 registered at Police Station Chowk Azam District Layyah in respect of offences under Sections 302, 364-A, 365-A, PPC and under Section 7 of the Anti-T errorism Act, 1997 for committing the Qatl-i-Amd of Muhammad Umar (deceased) after kidnapping him for ransom. The learned trial Court vide judgment dated 07.11.2015 convicted Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq (convitot) and sentenced him as infra: Muhammad Razzaq alias Abdul Razzaa son of Muhammad Ishaq: i). Death under Section 302, PPC as Tazir for committing Qatl-i-Amd of Muhammad Umar son, of Altaf Hussain (deceased) and directed to pay Rs. 500,000/- as compensation under Section 544-A, Cr.P.C., to the legal heirs of the deceased in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Death under Section 365-A, PPC and forfeiture of all moveable and immoveable properties of the appellant iii) Death under section under Section 7 of the Anti-terrorism Act, 1997.
The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq (convict) lodged Criminal Appeal No. 600 of 2015 against his conviction and sentences. The learned trial Court submitted Reference under Section 374, Cr.P.C. read with Section 30(2) of Anti-T errorism Act, 1997, which has been numbered as Capital Sentence Reference No. 6 of 2015, for confirmation or otherwise of the death sentences passed against the appellant. We intend to dispose of the Criminal Appeal No. 644 of 2015 and Capital Sentence Reference No. 6 of 2015 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Altaf Hussain son of Ghulam Muhammad (PW-1) are as under: "On 24.11.2013, I was present at my home when my son Muhammad Umar aged 06 years, went out side the home for playing at about 12-15 noon but did not came back. We went out from the home at 12-30 PM to search him with Muhammad Naseeb and Aslam but he could not trace out. After the lapse of four days, my son Muhammad Umar did not trace out. Then I reported the matter to police on 28.11.2013 about the missing of my son Muhammad Umar and presented the complaint Ex.PA which bears my signature and my cell No. 0344-3687306. On 29.11.2013 I received a call from a unknown person making by No. 0307-7027413 on my cell phone, at about noon time, who stated that his son Muhammad Umar is with me into live and he demanded Rs. 20 lac for the return of my son Muhammad Umar . I made request to him for the return of my son and told to him that I am a poor person and not in position to fulfill his demand, then he cut off his call.
On 30.11.2013, Zafar Iqbal Gujjar came to me at morning time on missing of my son and told me that he witnessed his son Muhammad Umartn the company of Abdul Razzaq accused (present before the Court) on 24.11.2013 near Madrassah situated in Al Rahim town Chak No. 138/TDA, when Abdul Razzaq accused was taking away Muhammad Umar , he (Zafar Iqbal) asked from Abdul Razzaq, where he is going with Muhammad Umar , therefore, Abdul Razzaq accused replied to Zafar Iqbal that he is going with Muhammad Umar towards Mandi for serving "Maltas". Then Zafar Iqbal stated to meet hat he left for Faisal Abad on the said date. I accompanied with Zafar Iqbal and proceeded towards the police station to get record his statement as he stated to me, where the police recorded our statements. On 05.12.2013, again I received a telephone call on my cell phone from the same number as I stated above and the call maker was demanding Rs. 15 lac from me for the return of Muhammad Umar . After besieging, the call maker agreed with me on Rs. 03 lac for the return of Muhammad Umar and the call maker warn that if inform to the police then his son would be murdered and thrown into jungle. The call maker asked me to come at western side of Dhori Addah, Peer Jaggi for the delivery of amount Rs. 03 lac. Where a sack/gatto of cement was lying and I was directed to lay the amount into the said sack and leave the place.
Therefore, I called Riaz and Sadiq and informed them about the call maker who advised me to make the payment to the call maker and save his son. I asked them to company with me. We came at the car stand chowk Azam where we got a car on rent against Rs. 2000/- and proceeded towards western side of Dhori Addah, led towards a Kacha path, meanwhile the call maker remained intact with me telephonically . The call maker directed me to put the amount into a sack lying near a Pulli. 1 alighted from the car, put the amount Rs. 03 lac into the sack as per direction of call maker , then we left the place on the call of unknown person, reached at Dhori Addah where I received a call from the unknow (sic) call maker who asked me to come back at the said place where the amount was put into sack, to take Muhammad Umar . So, we rushed back on the said place on the same car but Muhammad Umar was not found there. Where we spent half and hour there to search Muhammad Umar , meanwhile the darkness prevailed and we came back at home. I informed the police in this regard on the following day i.e. 06.12.2013 alongwith Sadiq and Riaz.
On 23.1.2014, I alongwith Riaz and Sadiq went to the police station to peruse my case where Abdul Razzaq accused was stated to be arrested in this case. He was brought out from the police lock up for interrogation and he made disclosure that he could point out the place where Muhammad Umar was murdered after his abduction by him. Therefore, we alongwith police and accused Abdul Razzaq proceeded towards Macho jungle, on official vehicle. Abdul Razzaq accused asked to stop the vehicle near a canal alighted from the official vehicle and led towards jungle. Reached inside the jungle. The accused Abdul Razzaq was de-cuf fed and he pointed out the place which was consist of Sarkandas and a skull of child, shirt and black high neck were found there and the same were took into possession by the police. I identified the shirt and black high neck of my son Muhammad Umar . Police recorded my statements and the statements of PWs in this regard. Then we came back at police station.
On 16.12.2013, Naseeb and Safdar came at my home and informed that Abdul Razzaq accused came to them on 15.12.2013 and confessed before them that he had murdered Muhammad Umar s/o Altaf after his abduction, and Abdul Razzaq accused made request to them to get pardon from Altaf Hussain, having good relation of your with Altaf Hussain and further asked to them for the return of amount received from Altaf Hussain. Then, we proceeded towards police station to inform the police regarding the information furnished by Naseeb and Safdar .
On 27.1.2014, 1 alongwith my wife went to FSL Lahore for DNA test in the compan y of police to match the DNA of skull of my son, as recovered on the pointation of Abdul Razzaq accused and we reached at Lahore on 28.01.2014 where our samples for DNA test were taken there. On 30.01.2014, the police recorded our statements under Section 161, Cr .P.C."
4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant namely Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq was sent to face trial. The learned trial Court framed the charge against the accused on 02.07.2014, to which the appellant pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got recorded statements of as many as sixteen witnesses. Altaf Hussain (PW-1) stated as narrated in the paragraph three of this judgment. Zafar Iqbal (PW-2) appeared as witness of last seen evidence and also as a witness of recovery of the mobile phone of the complainant (Exh.P1).
Muhammad Riaz Hussain, (PW-3) stated that on 05.12.2013 he accompanied the complainant Altaf Hussain, (PW- 1) when the said Altaf Hussain paid the ransom amount and on 23.01.2014 witnessed the recovery of skull, shirt and high neck of the deceased and on 27.01.2014 witnessed the recovery of. Rs. 2,50,000/- from the appellant.
Muhammad Naseeb (PW-4) and Muhammad Safdar (PW-5) gave evidence regarding the alleged extra-judicial confession of the appellant. Muhammad Bashir , ASI (PW-6) recorded the formal FIR (Exh.P A/1), Muhammad Safdar , SI (PW-7) escorted the parents of the deceased to Punjab Forensic Science Agency , Lahore for DNA analysis. Nazar Abbas, Halqa Patwari (PW-8) prepared the scaled site plan (Exh.PE). Muhammad Faisal Javed 143/QRF (PW-9) witnesses the recovery of Call Data Record consisting of twenty seven pages (Exh.P6/1-27).
Faisal Anwar .299/C (PW-10) took the skull and last worn cloth of the deceased to the THQ Hospital. Siddiq Akbar , 903/C (PW-11) stated that he took two sealed parcels to the office of Punjab Forensic Science Agency , Lahore.
Inam-ul-Haq, ASI, Incharge Crime Scene (PW-12) gave evidence regarding the Call Data Record. Muhammad Nasrullah, ASI (PW-15) stated that on 23.01.2014, he received two sealed parcels said to contain skull which he handed over. to Siddique Akbar 903/C (PW-11) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Manzoor Ahmad, Inspector (PW-14) investigated the case from 1.12.2013 till 11.02.2014 and detailed the facts of his investigation in his statement before the learned trial Court. Aziz Ahmad, SI (PW-16) investigated the case from 28.11.2013 till 30.11.2013 and detailed the facts of his investigation in his statement before the learned trial Court. The learned trial Court also examined two witnesses as Court Witnesses. Tanvir Ali, CW-1 stated that he could not provide any Call Data Record for the period of 23.11.2013 to 29.11.2013 and of 15.12.2013 as the same was not available. Muhammad Ahmad, Zonal Manager , Mobilink (CW-2) stated that he could not provide any Call Data Record.
6. The prosecution got examined Dr. Muhammad Yousaf (PW-13), who on 23.01.20.14 was posted as Senior Medical Officer at THQ Hospital, Chowk Azam and on the same day packed the_ skull of the deceased and handed over the same to the police. No post-mortem examination was conducted in this case as only a skull was recovered.
7. On 29.10.2014 the learned Deputy Prosecutor General gave up prosecution witnesses namely Muhammad Aslam and Mst. Razia Per een being unnecessary , on 04.12.2014 gave up prosecution witness namely Sadiq Ali being unnecessary and on 21.01.2015 gave up prosecution witnesses namely Allah Bakhsh, Inspector CTD and Sadaqat Ali/C being unnecessary . On 16.02.2015 the learned Deputy Prosecutor General closed the prosecution evidence after tendering the report of Punjab Forensic Science. Agency , Lahore (Exh.PN).
8. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq under Section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellant replied that he was innocent and had been falsely involved in the case due to suspicion. The appellant further stated that he had not committed the occurrence and had been involved in the case at the behest of Zafar Iqbal (PW-2). and Muhammad Riaz (PW-3) who had a dispute over a house with his father . The appellant namely Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq opted not to get himself examined under Section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Judge Anti-T errorism Court, Dera Ghazi Khan convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that, whole case is fabricated and false. The learned counsel for the appellant submitt ed that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.
11. On the other hand, learned Additional Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.
Learned counsels further argued that the deceased was kidnapped for ransom and then murdered by the appellant. They further argued that the recoveries from the appellant also corroborated the ocular account .They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real of fender with the innocent in this case. Lastly , they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant, learned Additional Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully .
13. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent that in the insta nt matter ocular evidence is not available. It is worth to add here that general principle is that conviction cannot be based on any other type of evidence , howsoever , convincing it may be, unless direct or substantive evidence is available because the guilt cannot be based on high probabilities, but circumstantial evidence, which is also knowns indirect evidence is an exce ption to above principle. The requirement of proof in such cases, basing on circumstantial evidence only, is that every link has to be proved by good and convincing evidence. Broadly speaking the circumstantial evidence is based on last seen, extra-judicial confession, recovery of incriminating material i.e. recovery of dead body at instance of accused, recovery of articles belonging to deceased and recovery of ransom amount. Above all, it is to be established on record that every piece of circumstantial evidence fits in with another piece of such evidence in the chain and corroborates each other .
14. Admittedly it was a blind murder and no direct evidence/eye-witness, is available with the prosecution to prove that it was none else but the appellant who had committed the murder of deceas ed. 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 , recovery of skull of the deceased on the pointing of the appella nt, the Call Data Record and the recovery of the ransom amount received by the appellant. Firstly , we shall deliberate upon the last-seen evidence adduced by Zafar Iqbal (PW-2). Accord ing to the said witness namely Zafar Iqbal (PW-2) he had seen the deceased Muhammad Umar in the company of the appellant on 24.11.2013. This witness despite the fact of having seen deceased Muhammad Umar in the company of the appellant on 24.11.2013, however , did not report the said matter either to the father of the deceased namely Altaf Hussain (PW-1) or to the police. It was only on 30.11.2013 that he appeared before the Investigating/Of ficer and got recorded his statement that he had seen the deceased near a Mosque situated in Rahim Town. No reasonable explanation was offered by this witness for not reporting the matter either to the father of the deceased Namely Altaf Hussain (PW-1) or to the police for seven days despite the fact that the FIR had also been registered regarding the kidnapping of the deceas ed on 28.11.2013. This witness namely Zafar Iqbal (PW-2) claimed that as he had proceeded to Faisalabad on 24.11.2013 and returned on 30.11.2013,therefore, he did not report the matter earlier . This claim of Zafar Iqbal (PW-2) is totally against the record of the investigation as according to Aziz Ahmad, SI (PW-16), the Investigating Officer of the case, the said witness namely Zafar Iqbal (PW-2) had joined the investigation of the ease on 28.11.2013 at the house of the complainant namely Altaf Hussain (PW-1). The said statement of Aziz Ahmad, SI (PW-16), the Investigating Officer of the case, totally exposes the bogus and sham claim of Zafar Iqbal (PW-2) that he had indeed seen the deceased in the company of the appellant on 24.11.2013 at Chowk Azam. His position becomes more dubious on account of his departure to Faisalabad immediately after his having seen the deceased in the company of appellant on a sojourn for which there is given no explanation. Zafar Iqbal (PW-2) has not even made an attempt to explain as to why he had to immediately leave for Faisalabad after having seen the deceased in the company of the appellant. It is settled that delay in making a statem ent under Section 161, Cr.P.C., if not reasonably explained, dilutes its evidentiary value. Moreover , this witness was also a witness of agreement executed between the father of the appellant and Muhammad Sufyan, Muhammad Irfan, Shahbaz and Allah Ditta for handing over the possession of the house of the father of the complainant to their purchasers on 25.01.2014. During cross-examination Zafar Iqbal (PW-2) admitted as under: "It is correct that the father of accused namely Muhammad Ishaq sold out his property measuring 08 Marlas to Muhammad Sufiyan, Muhdmmad Irfan, Shahbaz and Allah Ditta through Mutation No. 1143 dated 18.01.2014 (Ex.DA) and I am attested witness of Ex.DA. It is correct that an agreement was executed between father of accused and the above named purchasers for handing over the possession of houses to purchasers against amount Rs. 2,50,000/- on 25.1.2014, and I was the marginal witness of said agreement."
The import of the above mentioned portion of cross-examination is much as it is beyond human understanding that why Zafar Iqbal (PW-2) became a witness of two contracts executed on 18.01.2014 and 25.01.2014 wherein one of the parties was father of the appellant, against whose son he had appeared as a witness before the police in the investigation of the case on 30.11.2013. The appellant was arrested in the case on 17.01.2014 whereas the above mentioned contracts were being executed on 18.01.2014 and 25.01.2014. This mien of Zafar Iqbal (PW-2) is opposed to common course of human conduct and hence we are concluding, as provided under Article 129 of the Qanun-e-Shahadat Order , 1984, that the statement of Zafar Iqbal (PW-2), being opposed to common course of human conduct, is not worthy of any reliance. Furthermore, according to his own stance, Zafar Iqbal (PW-2) had not shown any suspicion upon the appellant when he had allegedly seen him with the deceased. Zafar Iqbal (PW- 2) was the resident of Chak No. 336/TDA, the same chak of which the complainant namely Altaf Hussain (PW-1) was resident of Altaf Hussain (PW-1) during his cross-examination stated that the inhabitants of Chak No. 336/TDA were in knowledge of the disappearance of his son and in this scenario the failure of Zafar Iqbal (PW-2) to report the matter of seeing the deceased in the company of the appellant further points towards, the hollowness of the said claim. Another aspect of the case is that Zafar Iqbal (PW-2) had allegedly seen the deceased in the company of the appellant at Rahim Town near a mosque whereas the skull of the deceased was recovered from Machu Jungle, eight five karams from the bank of the canal as per the statement of Altaf Hussain (PW-1). The place where from the skull of the deceased was recovered, according to the prosecution and advanced stage of putrefaction bring evidence of last seen short of proximity in terms of the time and the space which is sine qua non for acceptance of last seen evidence. Last seen together is a weak type of circumstantial evidence, which cannot be readily believed unless it was corroborated through unimpeachable source, and it should be close to the time and place of murder to exclude possibility of innocence. Pre-requisites for believing last seen evidence are that proximity of time and nearness of the place of occurrence Interpreting these two principles, it is required that deceased shall be seen in the company of the accused by the witnesses some short time before happening of the incident and the place of murder may not be far away from the place of lastly seen by the P.Ws. to the deceased in the company of the accused. In this case, these two elements are missing. It is settled law that the last seen evidence can have legal worth only if the deceased is seen in the company of the accused quite close to the time of his death so as to exclude any possibility of the deceased coming in contact with anybody else before the death.
The time of death of the deceased, if any, had not been H established in this case and, thus, the last-seen evidence provided by this witness was not of much legal value. Reliance is placed on the case of Sadi Ahmad and another vs. The State (2019 SCMR 1220 ) wherein the august Supreme Court of Pakistan has held as under: "We are not much impressed by the evide nce of last seen for being outside the bounds of proximity in terms of time and space, besides otherwise being far from confidence inspiring".
Reliance is also placed on the case of Muhammad Abid vs. The State and another (PLD 2018 Supreme 'Court 813) wherein the august Supreme Court of Pakistan has enunciated the following principle: "The theory of last seen together is one where two persons are `seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder . There must be evidence to link the accused with the murder of his companion, such as incrimi nating facts as recovery , strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.
6. The foundation of the "last seen togeth er" theory is based on principles of proba bility and cause and connection and requires 1. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime 4. no possibility of third person interference 5. motive. 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime."
Hence, in view of the above discussion, the last seen evidence furnished by Zafar Iqbal (PW-2) is not confidence inspiring, therefore, the same cannot be relied upon. The last-seen evidence furnished by Zafar Iqbal (PW-2) is not only self-contradictory but the same is also inconsistent with the statement of the Investigating Officer. Such type of evidence is not suf ficient to be believed to record conviction of the appellant.
15. Apart from last-seen evidence the case of the prosecution also hinges upon evidence of extra-judicial confession. The prosecution has examined Muhammad Naseeb (PW-4) and Muhammad Safdar (PW-5) to prove the extra-judicial confession allegedly made by the appellant in this case. Coming to the extra judicial confession allegedly made by the appellant before Muhammad Naseeb (PW-4) and Muhammad Safdar (PW-5), one finds it hard to understand as to why the appe llant would make his breast clean when apparently he was under no compulsion to oblige the prosecution which was clueless about the circumstances leading to the death of the deceased. The alleged extra judicial confession is so detailed and comprehensive that it covers almost every aspect of the prosecution case; it is in fact an encyclopedia of the prosecution case. A man under the stress of compunction of his conscious is not supposed to give such minute details that too on the assurance of help.
Admittedly , both Muhammad Naseeb (PW-4) and Muhammad Safdar (PW-5) admitted in their cross-examination that they did not possess any influential portfolio at that time to have any influence to beg pardon for the appellant from the complainant. They also admitted in their cross-examination that they did not try to apprehend the appellant at the time of making extra-judicial confession in spite of the fact that he was allegedly present in their company all alone in a room. Both the witnesses failed to explain as to how the appellant was able to leave their company after allegedly admitting his guilt especially when admittedly Muhammad Safdar (PW-5) had remained with the appellant at the time when Muhammad Naseeb had gone out of the room to call the compla inant Altaf Hussain (PW-1). This peculiar fact speaks volume of false statements adduced by Muhammad Naseeb (PW-4) and Muhammad Safdar (PW-5) and also shows their unnatural conduct and the same is otherwise contrary to the human behaviour . To make confession in order to give outlet to ones burden on mind and conscience is possible, however one does this only before a strong and close confidant. In the instant case the position of the witness Muhammad Safdar (PW-5), before whom the alleged extra-judicial confession was made, was such that he even did not know the accused before the alleged confession and neither Muhammad Naseeb (PW-4) was a close confidant of the accused in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration. Muhammad Safdar (PW-5) admitted in his cross- examination as under: "Abdul Razzaq accused present before the Court was not known to me prior to 15.12.2013."
Another reason to reject the statements of Muhammad Naseeb (PW-4) and Muhammad Safdar (PW-5) is that according to these witnesses the appellant had allegedly confessed to his guilt before them on 15.12.2013 and disclosed the place of murder to the said witnesses, however no effort was made to discover the remains of the deceased either by the said witnesses, or the complainant Altaf Hussain (PW-1) or indeed the Investigating Officer of the case. Had the appellant confessed his guilt before the witnesses then it would have been only natural for them to make efforts to recover the remains of the deceased. The failure of the prosecution witnesses in this matter is indicative of the fact that no such confession was ever made by the appellant. 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 the said extra-judicial confession in this case to strengthen the case against the appellant after taking legal advice in this regard. In these eventualities, the story introduced by Muhammad Naseeb (PW-4) and Muhammad Safdar (PW-5) about extra judicial confession of the appellant seems L improbable. Even otherwise, extrajudicial confession is a very weak type of evidence and the same obviously needs impartial/strong corroboration from other independent sources which is missing in this case. The evidentiary value of the extrajudicial confession came up for consideration before august Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan observed as under: "17. This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra- judicial confessions staring from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown , it was observed that in this country (as a whole) extra-"judicial confession must be received with utmost caution. Furth er, it was observed from time to time, that before acting upon a retracted extra judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that confession cannot but be true". As, an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.
18. It has been further held that the status of the person before whom the extra judicial confession is made must be kept in view, that joint confession cannot be sued against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.
19. It is but a natural 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 background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witnesses before whom extra judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
21. Another most important and natural purpose of making extra-judicial confession is to seek help from a third person. Help is sought firstly , when a person is sufficiently trapped and secondly , from one who is authoritative, socially or officially ..........
22. As observed by the Federal Court, we would reiterate especially referring to this part of the country , that extra- judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather , it may be observed with concern as well as with regret that when the Investigating Office r fails to properly investigate the case, he resorts to padding and concoctions like extra judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess; what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesse s with the maker of confession and what, above all is the position or authority held by the witness."
In the case of "Mst. Asia Bibi v. The State and others" (PLD 2019 Supreme Court 64) wherein, the august Supreme Court of Pakistan was pleased to observe as under: "In this regard it is to be noted that this Court has repeatedly held that evidence of extra judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placin g reliance on such a confession.
It is always looked at with doubt and suspicion due to the ease with which it may be concocted. The legal worth of the extra judicial confession is almost equal to naught, keeping in view the natural course of events, human behaviour , conduct and probabilities, in ordinary course. 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. Reliance in this behalf may be made to the cases of Nasir Javaid v. State (2016 SCMR 1144), Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), Imran alias Dully v. The State (2015 SCMR 155), Hamid Nadeem v. The State (2011 SCMR 1233 ), Muhammad Aslam v. Sabir Hussain (2009 SCMR 985), Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231), Ziaul Rehman v. The State (2000 SCMR 528) and Sarfraz Khan v. The State and 2 others (1996 SCMR 188 )."
Keeping in view the guidelines given by august Supreme Court of Pakistan in the above mentioned judgments, we palpably discard the evidence of extrajudicial confession manufactured by the prosecution to strengthen its case.
This part of the evidence is nothing but a tailored story , which was arranged with the help of the Investigating Agency thus, it is of no legal worth and being absolutely unreliable is excluded from consideration.
16. The recovery of skull shirt (Exh.P3) and high neck (Exh,P4) of the deceased is also liable to be discarded.
There are irreconcilable contradictions in the statements of the prosecution witne sses who appeared before the learned trial Court in order to prove the factum of the said recoveries. The father of the deceased, namely , Altaf Hussain (PW-1) witnessed the same, who was naturally a highly interested witness. When Altaf Hussain (PW-1) appeared before the learned trial Court he stated that on 23.01.2014 he alongwith the witnesses namely Muhammad Riaz Hussain (PW-3) and Sadiq Ali (given up) reached the police station at about 7.50/8.00 a.m and the skull , shirt (Exh.P3) and high neck (Bxh.P4) of the deceased were recovered at about 11/11.15 a.m and he alongwith the witnesses namely Muhammad Riaz Hussain (PW-3) and Sadiq Ali (given up) reached back at the police station at about 11.45/12.00 noon . In contrast to this statement of Altaf Hussain (PW-1), Muhammad Riaz Hussain (PW-3) in his cross-examination stated that they reached at the place of recovery on 23.12.2013 at 8.30/9.00 a.m., and remained present there for 40-45 minutes. Muhammad Riaz Hussain (PW-3) in his cross- examination stated as under: "On 23.12.2013 , I was present at my factory where complainant and Sadiq PW came there. We reached at police station at about 7/7-30 AM. We reached at the place of recovery as disclosed by the accused at about 8-30/9-00 AM. We remained at the said place at about 40/45 minutes. Then we came back at police station after covering the distance of 20/25 KMs. The skull was lying near Sarkandas and shirt, high-neck were also lying within the circle of 01/2 feet. During this, other police officials on an other official vehicle reached at the said place after 20/25 minutes who took the skull, high neck and shirt, wearing the gloves. My statement was recorded at police station."
As is apparent this witness namely Muhammad Riaz Hussain (PW-3) changed the date of recovery of the skull, shirt (Exh.P3) and high neck (Exh.P4) of the deceased from 23.01.2014 (as mentioned in examination in chief) to 23.12.2013 . This contradiction in the month and year of the date of recovery which has crept up into the case of the prosecution is all the more significant keeping in view that the claim of the witnesses was that the appellant had confessed to his guilt on 15.12.2013. There does exist a possibility that date of the arrest of the appellant has wrongly mentioned and he was arrested prior to 17.01.2014 as suggested by Manzoor Ahmad, Inspector (PW-14).
The Investigating Officer namely Manzoor Ahmad, Inspector (PW-14) had an another story to tell and in his cross- examination he stated that the witnesses came to the police station on 23.01.2014 at 12/1.00 noon and they left the police station towards the place of recovery at 2/2.30 p.m and returned to the police station at 5/6.00 p.m.
Furthermore, Faisal Anwar 299/C (PW-10) stated that the skull which was taken into possession from the spot was put in a shopping bag alongwith the last worn clothes. These contradictions between the witnesses by themselves create sufficient doubt in the prosecution case. The abductee was killed probably on the day he was abducted i.e 24.11.2013 while the piece of skull was recovered on 23.01.2014 from a jungle. According to the well-known medico-legal jurist, Rai Bahadur Jaising P. Modi such like destruction of entire body of human being, even of young person, is not possible within two months because some of visceras made of tough tissues and full skeleton of human body remains intact. This opinion of the jurist is based on practical experience in many cases of this nature, instances of which are given by him in the Chapter "STAGES OF PUTREF ACTION OR DE-COMPOSITION OF BODY". In this case, only skull was recovered and not full skeleton of human body , which by itself is unbelievable, being against the well established and universally recognized juristic view on the subject. Thus, the possibility that the body of the person, whether dead or alive was torn into pieces by beasts or dogs etc. In any case, the recovery of only the skull bone of the deceased after two months is entirely doubtful in light of the view expressed by Rai Bahadur Jaising P. Modi in his book A Textbook of Medical Jurisprudence and Toxicology . Same is the view of other renowned Jurists on the subject. Reliance in this respect is placed on the case of Azeem Khan and another vs. Mujahid Hussain and others (PLJ 2016 SC 123). With regard to the recovery of the shirt (Exh.P3) and high neck (Exh.P4) of the deceased, suffice is to observe that during the course of investigation and prior to the recovery of the shirt (Exh.P3) and high neck (Exh.P4) of the deceased, Altaf Hussa in (PW-1) or for that matter any other that witness, had never mentioned that the deceased at the time of his disap pearance was wearing the said particulars clothes. There were no spec ial markings or any other distinguishab le feature to ascertain that the recovered shirt (Exh.P3) and high neck (Exh.P4) indeed belonged to the deceased. As observed above, Faisal Anwar 299/C (PW-10) stated that the skull which was taken into possession from the spot was put in a shopping bag alongwith the last worn clothes and at the time of taking the same into possession, no sealed parcel was prepared to vouch for their safe custody . We are constrained to observe that the recovery of shirt (Exh.P3) and high neck (Exh. P4) is inconsequential and does not further the case of the prosecution in any manner . The learned Additional Prosecutor General and the learned counsel for the complainant have vehemently argued that the statement of the accused made at the time of the recovery of the above mention ed articles was admissible and relevant and amounted to confession of guilt under the provisions of Article 40 of the Qanun-e-Shahadat Order , 1984. The discovery of any fact on the information of the accused in custody of Police is admissible under Article 40 of the Qanun-e-Shahadat Order , 1984 (hereinafter referred to as ` the Order' ), which reads as under: "40. How much of information received from discussed may be proved . When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer , so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
A perusal of above Article reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order . It comes into operation only if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody . Thus, in order to apply Article 40 of the Order , the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source. According to the prosecution case itself the appellant had already made a confession of his guilt before the witnesses on 15.12.2013 whereas the said recoveries were effected on 23.01.2014. No new informatio n was made available to the prosecution on 23.01.2014 as all the details of the occurrence were already in knowledge of the prosecution by virtue of the alleged extra-judicial confession of the appellant. Hence, the alleged statement of the appellant made in police custody at the time of recovery of the above mentioned articles cannot be read in evidence and would remain inadmissible.
17. The next piece evidence to be consid ered .by us is the positive result (Exh.PN ) of the DNA test as conducted by the Punjab Forensic Science Agency , Lahore. Dr. Muhammad Yousaf, (PW-13) stated that on 23.01.2014 police brought a human skull and requested for sending the same to the Punjab Forensic Science Agency , Lahore for the purpose of identification and he packed the skull in a parcel. Dr. Muhammad Yousaf (PW-13) admitted in his cross- examination that the skull in question produced before him was not in a sealed parcel. He further admitted in his cross-examination that he had not observ ed whether the last worn clothes of the deceased were stained with mud, sand, blood or any foreign particles or whether the said clothes were torn or otherwise. A perusal of the recovery memo. (Exh.PC) prepared with regard to the recovery of skull, shirt (Exh,P3) and high neck (Exh.P4) would reveal that only a remaining portion of skull (Khopree he bachee hui haddee ) was taken into possession and not the whole skull. The perusal of the scaled site plan of the place of recovery (Exh.PE) also clearly mentions at Point No 1 that only the remaining portion of the skull bone (Khopree ke bachee hui haddee ) was recovered. However , the report of Punjab Forensic Science Agenc y, Lahore (Exh.PN) reveals that a whole skull was received at the same and in addition thereto, teeth were also received in the sealed parcel which, at no occasion was the case of the prosecution. Furthermore Muhammad Nasrullah, ASI (PW-15) stated that on 23.01.2014, he received two sealed parcels said to contain skull which he handed over to Siddique Akbar 903/C (PW-11) for their onward, transmission to the office of Punjab Forensic Science Agency , Lahore, however , only one parcel was received at the Punjab Forensic Science Agency , Lahore. Thus, these serious conflicts are of such a nature, which could not be reconciled altogether , either by the learned counsel for the complainant or by the Additional Prosecutor General. This fact by itself creates sufficient doubts and on this score, the report of Punjab Forensic Science Agency , Lahore (Exh.PN) regarding forensic DNA Analysis and parentage testing is of no legal worth. The august Supreme Court of Pakistan has observed in the case of Azeem Khan and another vs. Mwahitl Hussain and others (PLJ 2016 SC 123) that the report of Punjab Forensic Science Agency , Lahore with regard to DNA analysis cannot be implicitly relied upon and has held as under: "In the recent past many scandals in USA, UK and other countries have surfaced where desired DNA test reports were procured by the investigative by contaminating the samples. Such contamination has also been reported in some cases while the samples remained in the laboratories. Many inquires were held on this issue and stringent law has been made by many States to prevent the contamination of samples outside and inside the laboratories.
Proper procedure has been laid down for securing and carefully putting into parcel the suspected materials to co- relate with the samples of the parents to establish paternity or maternity . Similarly , stringent check and procedure has been provided to avoid and prevent cross contamination of the two samples because if both come in contact with each others then, it will give false positive appearance and the expert is thus misled. It has also been discovered that credentials of many expe rts, claiming possessed of higher qualifica tion in this particular field, were found fake and they were thus, removed from service. The DNA Wikipedia on web is an unrebutted testimony to these facts.
28. In any case, it is an expert opinion and even if it is admitted into the evidence and relied upon, would in no manner be sufficient to connect the necks of the appellants, with the commission of the crime when the bulk of other evidence has been held by us unbelievable thus, no reliance can be placed on it to award a capital sentence.
Moreover , to ensure fair-play and transparency , the samples in the laboratories from the parents should have been taken in the presence of some independent authority like a Magistrate and also the recovered samples from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices and the transition of the samples to the laboratory should have also been made in a safe and secure manner . But all these safeguards were kept aside."
18. Another piece of evidence relied upon by the prosecution to prove the guilty of the appellant is the recovery of Rs. 2,50,000/- from his possession which he had received as ransom money from Altaf Hussain (PW-1). The recovery of Rs. 2,50,000/- was witnessed by Muhammad Riaz Hussain, (PW-3) which were taken into possession through recovery memo. (Exh.PD). A perusal of the said recovery memo. (Exh.PD) reveals that the currency notes which were got recovered were 250 notes in the denomination of Rs. 1000/-, totaling Rs. 250,000/-. However , during the course of trial two note is of denomination of Rs. 5000/- (Exh.P5/1-2) and 240 currency notes of Rs.
1000/- were produced before the learned trial Court. This clearly establishes that; the said recovery proceedings were totally fake and do not further the prosecution case in any manner . Furthermore it appears that no arrangements were made before the ransom money was to be paid, whether on payment of the ransom amount the abductee, namely Muhammad Umar , was to be released or how his release was to be effected. That at the time of payment even no inquiry was made with regard to the welfare and whereabouts of the abductee which is very odd and puzzling and confuses the human mind that how a prudent man, who is making payment of money can without any arrangement of any sort make the payment of huge amount in absence of any assurance of the release of abductee on making of payment.
19. The prosecution has also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilty of the appellant. Accord ing to the statement of Altaf Hussain (PW-1) on 05.12.2013 he settled an amount of Rs. 300000/- to be paid as ransom for the return of his son and he was asked by the caller to come at the western side of Dhoori Adda , Peer Jaggi for the delivery of the said amount and put the same in a sack lying there. Altaf Hussain (PW-1) further stated that he alongwith Muhammad Riaz Hussain (PW-3) and Sadiq Ali (given up) proceeded to Dhoori Adda and he, Altaf Hussain (PW-1) got out of the car and put the money in the back and told about the same to the police on the next day. While making the statement before the learned trial Court the said witness Altaf Hussain (PW-1) pointedly stated that he had received a call from an unknown person and did not name the appellant as being the said person. It is also an admitted art of the prosecution case that Altaf Hussain (PW-1) never identified the appellant as being the one who had received the ransom amount. The said portion of the statement Altaf Hussain (PW -1) is being reproduced as under: "On 05.12.2013, again I received a telephone call on my cell phone from the same number as I stated above and the call maker was demanding Rs. 15 lac from me for the return of Muhammad Umar . After besieging, the call maker agreed with me on Rs. 03 lac for the return of Muhammad Umar and the call maker warn that if inform to the police then his son would be murdered and thrown into jungle. The call maker asked me to come at western side of Dhori Addah, Peer Jaggi for the delivery of amount Rs. 03 lac. Where a sack Igatto of cement was lying and I was directed to lay the amount into the said sack and leave the place. Therefore, I called Riaz and Sadiq and informed them about the call maker who advised me to make the payment to the call maker and save his son. I asked them to company with me. We came at the car stand chowk Azam where we got a car on rent against Rs. 2000/- and proceeded towards western side of Dhori Addah, led towards a Kacha path, meanwhile the call maker remained intact with me telephonically . The call maker directed me to put the amount into a sack lying near a Pulli. I alighted from the car, put the amount Rs. 03 lac into the sack as per direction of call maker , then we left the said place on the call of unknown person, reached at Dhori Addah where I received a call from the unknow (sic) call maker who asked me to come back at the said place where the amount was put into sack, to take Muhammad Umar ."
The said call maker was never identified as being the appellant. The failure on part of the witness to identify the appellant as being the maker of the calls before the learned trial Court is fatal. Moreover , during the investigation of the case or before the learned trial Court Altaf Hussain (PW-1) failed to produce any recording of the numerous calls he had received on his cell phone from the said unknown caller . No voice record or its transcript has been brought on record. Additionally the number 0307-7027413, from which the complainant namely Altaf Hussain (PW- 1) had received a call demanding ransom for the release of his son was proved not to be owned by the appellant.
According to Inam-ul-Haq ASP Incharge Crime Scene (PW-12) the said number 0307-7027413 was in the name of one Shahid son of Muhammad Iqbal resident of Sheikhupura. The said Shahid son of Muhammad Iqbal resident of Sheikhupura was never made to join the investigation of the case nor appeared before the learned trial Court. As mentioned above, Altaf Hussain (PW-1) who received the calls did not identify the appellant as to be the maker of the same. Furthermore, the learned trial Court also examined two witnesses as Court Witnesses namely Tanvir Ali, (CW-1), Area Sales Head of the Telenor company Regional Office, Multan who stated that he could not provide any Call Data Record for the period of 23.11.2013 to 29.11.2013 and of 15.12.2013 relating to Mobile numbers 0344- 3687306, No. 0346-2296893 and 0344-8555990 as the same was not available . Similarly , Muhammad Ahmad, Zonal Manager , Mobilink (CW-2) stated that he could not provide any Call Data Record of the Mobile No. 0302- 6767991. Considering the above mentioned facts in the given circumstances discu ssed above, doubt is created in the prosecution case, the benefit of which cannot be denied to the appellant. Reliance is placed on the case of "Azeem Khan and another Vs. Mujahid Khan and others" ( 2016 SCMR 274 ), wherein, it has been held as under: "The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given, by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it.
Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter , this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner ."
20. The plea of the learned counsel for the complainant and the learned Additional Prosecutor General that because the complainant party was having no enmity to falsely implicate the appellant in such a heinous crime thus, the evidence adduced should be believed, is entirely misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or-innocence of an accused person. Even evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of Waqar Zaheer vs. The State (1991 PSC 281).
21. In view of the above we are of the considered opinion that had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the learned trial Court then these contradictions would not have cropped up in their testimony . These self negating and contradictory statements of the witnesses reflect that the witnesses are not truthful and they are supporting the afterthought, fabricated and concocted story meant to create incriminating evidence to strengthen the case of unwitnessed occurrence against the appellant.
The august Supreme Court of Pakistan in the case of Imran alias Dully and another vs. The State and others (2015 SCMR 155 ) at page 164 has held as under: "By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body . Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and, that too on a capital charge."
To carry a conviction on a capital charge it is essential that the Courts should deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon and very minute and narrow examination of the same is necessary to secure the ends of justice. It is imperative for the prosecution to provide all links in chain, where one end of the same touches the dead body and the other , neck of the accused. The present case is of such a nature that many links are missing in the chain. It would not-be wrong to observe that in this particular case, it can be said that there is no link, what to talk about a chain. The august Supreme Court of Pakistan in the case of Fiaz Ahmad vs. The State (2017 SCMR 2026 ) has observed at page 2030 as under: "It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however , if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same."
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq (appellant), in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha vs. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent perso n be convicted". Reliance in this behalf can be made upon the eases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State (2009 SCMR 230 ) and Muhammad Zaman v . The State (2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Muhammad Akram vs. The State" (2009 SCMR 230 ) in which it has been observed in paragraph No. 13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter o) right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 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 this 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."
23. For what has been discussed above, Criminal Appeal No. 600 of 2015 lodge d by Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment dated 7.11.2015 is hereby set-aside.
Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq (appellant) is directed to be released forthwith if not required in any other case.
24. Capital Sentence Reference is answered in Negative and the death sentence of Muhammad Razzaq alias Abdul Razzaq son of Muhammad Ishaq is Not Confirmed