SARDAR AHMED NAEEM, J.---This judgment shall dispose of Criminal Appeal No.34-J of 2011 titled as "Muhammad Farooq v. The State and another" filed by Muhammad Farooq against his conviction and sentence and Murder Reference No.102 of 2011 titled as "The State v. Muhammad Farooq" submitted by the trial court for confirmation or otherwise of the sentence of death awarded to the appellant as both these matters have arisen out of judgment dated 09.02.2011 passed by learned Sessions Judge, Sargodha, in case FIR No.1007 dated 25.10.2009, under section 302, P.P.C., registered at Police Station Satellite Town Sargodha whereby the appellant was held guilty, convicted and sentenced as follows:- Under section 302(b), P.P.C. as Tazir and punished to death as tazir on three counts with compensation amounting to rupees two lacs on three counts to the legal heirs of Mst. Yasmin, Mst. Iqra and Mst. Insa deceased and this compensation will be recoverable as arrears of land revenue and in default of payment of compensation the convict will suffer further SI fof six months on three counts.
2. Brief facts of the case, as given by Muhammad Javed (PW.7) are that his sister Mst. Yasmin got married to appellant nine years ago and have two daughters including Mst. Iqra (07-years) and Mst. Insa (05-years). On the fateful day the complainant had gone to Chak No.46 North to attend the Chahlum ceremony but the appellant along with his wife could not reach. Thereafter, the complainant sent his sister, namely Jamila, who informed the complainant that Mst. Yasmin, Mst. Iqra and Mst. Insa were lying dead and their throats were cut.
The complainant got recorded FIR No.1007 dated 25.10.2009, under section 302, P.P.C. at Police Station Satellite Town, Sargodha against the unknown accused.
3. Shah Nawaz, Sub-Inspector (PW.10) chalked out the FIR Ex.P.F and then proceeded to place of occurrence.
He prepared the injury statements of Mst. Yasmin (Ex.P.L), Mst. Insa (Ex.PM) and Mst. Iqra (Ex.PN), respectively. The dead bodies of all the three deceased were dispatched to the mortuary through Fida Hussain, ASI. He visited the place of occurrence and took blood-stained earth from the points where the dead bodies were lying vide memo Ex.P.G (Mst. Yasmin), Ex.P.H (Mst. Iqra) and Ex.P.I (Mst. Insa) respectively. He took blood stained earth and made three different sealed parcels and recorded the statements of witnesses under section 161, Cr.P.C. On the same day Fida Hussain, ASI produced before him the post-mortem reports of the said three deceased along with their last worn clothes, three envelops and six phials. The details of the last worn clothes of the deceased are given hereunder:- Mst. Yasmin
(i) Shirt (P.1) (ii) Shalwar (P.2) (iii) Brazier (P.3)
All blood stained along with two sealed parcels and the sealed envelope.
Mst. Insa
(i) Shirt (P.4) (ii) Shalwar (P.5)
All blood stained along with two sealed parcels and the sealed envelope.
Mst. Iqra
(i) Shirt (P.6) (ii) Shalwar (P.7)
All blood stained along with two sealed parcel and the sealed envelope.
4. On the same day at 09:30 p.m. Mulazam Hussain and Yaqoob Masih appeared before him and informed that they saw the appellant on the night of occurrence hurriedly coming out from his house wearing blood stained clothes. He recorded the statements of Yaqoob Masih and Mulazam Hussain, the prosecution witnesses.
On 26.10.2009 he got prepared scaled site plan Ex.P.A and Ex.PA/I handed over to him on 28.11.2009. On 25.10.2009 he also drew un-scaled site plan of the place of occurrence (Ex.P.Q). He prepared inquest report of Iqra (Ex.P.R), Yasmin (Ex.P.S) and Insa (Ex.P.T).
On 29.10.2009 Gul Zaman and Saif ur Rehman, the prosecution witnesses appeared before him and apprised of the fact that the appellant confessed his guilt for committing murder of all the three deceased.
On 01.11.2009 at about 12:30 p.m., he arrested the accused. He led the police party to the place of occurrence and got recovered 'Churn' P.8, secured vide memo (Ex.P.J). The un-scaled site plan of the place of recovery was Ex. P. U. Thereafter, the appellant got recovered his blood stained Shirt (P-9) secured vide memo (Ex.P.K) from the office situated at University Road, Sargodha. The un-scaled site plan was Ex.P.V.
Dr. Naureen (PW.3) held autopsy, on 25.10.2009 at 06:00 p.m. She observed one incised wound of 16 x 10 cm on front of the neck of Mst. Yasmin. In her opinion the cause of death was damage to main blood vessels, trachea and excessive blood loss leading to cardiopulmonary arrest.
The injury was ante-mortem and sufficient to cause death in ordinary course of nature. The time elapsed between injuries and death was within five to ten minutes and between death and postmortem was within five hours.
5. After the postmortem examination she handed over police paper, postmortem report, sample of stomach, liver, spleen, two sealed bottles to Fida ASI. Ex.P.B was the correct carbon copy of her postmortem report and Ex.PB/1 and Ex.P.B/2 were pictorial diagram prepared and signed by the witness.
6. She conducted the postmortem of Mst. Insa on the same day and observed an incised wound of 8 x 6 cm on front of neck.
In her opinion the cause of death was damage to main blood vessels, trachea, vertebral, spinal cord, leading to excessive blood loss and cardiopulmonary arrest.
The injury was ante-mortem and was sufficient to cause death in ordinary course of nature. She sent sample of stomach, liver, and spleen to Chemical Examiner for detection of any poison. The time elapsed between injuries and death was within five to ten minutes and between death and postmortem was within six hours. After postmortem, police papers along with postmortem report, samples of stomach, liver, spleen, two sealed bottles were handed over to Fida Hussain ASI. Ex.P.0 was the correct carbon copy of postmortem report whereas Ex.P.C/1 and Ex.P.C/2 was the pictorial diagram.
On the same day at 07:30 p.m. she also conducted the postmortem examination of Iqra and found an incised wound extending across the middle of front of neck about 12 x 6 cm. margins.
The cause of death, in her opinion was damage to main blood vessels, trachea, vertebral, leading to excessive blood loss and cardiopulmonary arrest. The samples of stomach, liver and spleen were sent to chemical examiner for detection of poison. The injury was ante-mortem and was sufficient to cause death in ordinary course of nature. The time between injuries and death was within five to ten minutes and between death and postmortem was within seven hours. After the postmortem examination she handed over dead body, police paper, postmortem report, sample of stomach, liver, spleen and two sealed bottles to Fida Hussain, ASI. Ex.P.D was the correct carbon copy of the postmortem report and Ex.P.D/1 and Ex.P.D/2 were the pictorial diagram.
7. In his statement recorded under section, 342, Cr.P.C. the appellant pleaded false implication and that it was a blind murder. He neither appeared as his own witness under section 340(2), Cr.P.C. nor produced some evidence in defence.
8. Learned counsel for the appellant contends that there was no direct evidence in this case; that nobody was nominated being accused in the FIR; that the statements of Mulazam Hussain (PW.9) cannot be relied upon as he could not plausibly explain his presence at the spot and the story narrated by him of coming out the appellant from his own house in blood-stained clothes during the odd hours of the night was not probable; that he admitted during cross-examination that from 12:30 a.m. till the following day, he did not apprise anybody regarding the above said facts which clearly reflects about the intrinsic worth of his evidence; that there was also no reason for the appellant to make such a confession before Saif ur Rehman (PW.8) as he was neither a close confident of the appellant nor a person authorized socially or officially and had no status to permit the appellant to make such a confession before him and that, this extra judicial confession was not corroborated by any independent piece of evidence. Learned counsel further added that the occurrence was not witnessed by anybody; that the whole case rests upon the circumstantial evidence; that circumstantial evidence always considered a weak type of evidence; that the conviction on such type of evidence cannot be maintained; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and that he was not named in the FIR as an accused; that there was no incriminating material to connect him with the commission of crime and that the case of prosecution was replete with doubts and benefit of doubt was inherent right of the accused. Learned counsel placed reliance on "Akhtar All and others v. The State" (2008 SCMR 6), "Ahmed v. The State" (2008 SCMR 119), "Zafar lqbal and others v. The State" (2006 SCMR 463) and "Wazir Muhammad and another v. The State" (2005 SCMR 277).
9. Conversely, the learned DPG assisted by the learned counsel for the complainant submitted that the prosecution has proved its case against the appellant beyond the reasonable doubt; that Mulazam Hussain (PW.9) had seen the appellant coming out of his house in a perplexed condition and that appellant could not offer any reasonable/ plausible explanation; that there was no enmity between the complainant and the appellant; that the appellant could have been named by the complainant in the FIR even on the basis of suspicion which shows lack of any mala fide; that the extra judicial confession made by the appellant was voluntary in nature: that the prosecution case consists of evidence of Wajtakkar, extra judicial confession made by the appellant before PW.8, medical evidence and the recovery; that the prosecution has proved its case against the appellant with cogent/ convincing evidence and beyond any shadow of doubt, thus, the appeal deserves dismissal.
10. We have heard the learned counsel for the parties, given anxious consideration to their arguments and gone through the record with their valuable assistance.
11. It is settled by now that a person is deemed innocent unless he proved to be guilty through strong and admissible evidence and generally in criminal law, the charge is proved either through direct or circumstantial evidence. In a case of direct evidence, the reliability depends upon the probative value of the evidence through the settled principle and in cases of circumstantial evidence the basic consideration is that the offence allegedly, committed by a person must be incompatible with any reasonable hypothesis of innocence of that person.
Therefore, in cases of circumstantial evidence, the standard of adjudging the criminality of an act may not be different but each circumstance must be linked with other and if there is no break in link of circumstances, there can be no difficulty to reach at a definite conclusion. The fundamental principle of universal application in the cases depending on circumstantial evidence is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The circumstantial evidence may some time be conclusive but it always needs narrow examination to exclude any possibility of fabrication and to exclude coexisting circumstances which would weaken or destroy the inference of guilt. In a case having indication of designs in the preparation of a case resting on circumstantial evidence, the Court must be on its guard against the possibility of being misled into a false inference. Therefore, the essential principle applicable to the scrutiny of proof adduced if not followed in drawing an inference in such cases, the same would result in failure of justice. To prove a case through circumstantial evidence four essentials are required:- i. Circumstances from which conclusion is to be drawn should be fully established; ii.All facts should be consistent with hypothesis; iii. Circumstances should be of a conclusive nature; a iv. Circumstances should lead to a moral certainty and actually exclude every hypothesis but one proposed to be proved.
Admittedly, it was unseen occurrence. The prosecution case against the appellant is based on circumstantial evidence comprising upon
(i) Wajtakkar offered by Mulazam Hussain (PW.9) and extra judicial confession made by the appellant before Saif-ur-Rehman (PW.8) and Gul Zaman (given up PW). The instant case is entirely based on the circumstantial evidence, therefore, the utmost care and caution is required for reaching at a just conclusion. As mentioned above the appellant was not nominated in the FIR, however, the evidence of Wajtakkar offered by Mulazam Hussain (PW. 9) revealed that he was coming along with Yaqoob Masih from his duty at 12:30 at night and saw the appellant wearing white coloured blood stained Shalwar Kameez while coming out of his own house and sitting in a car hurriedly. On the next morning this witness went to his job/ work and observed that so many people have gathered there, and, once again, upon his return from his duty, saw the police officials standing there in connection with the incident and then he informed the Investigating Officer about the fact that he saw the accused/appellant hurriedly going away. No explanation was offered by the prosecution as to why the witness kept mum for about 24 hours, in particular, when early in the morning so many people had gathered there 'and he did not inquire from any of them as to what had happened. The behavior of this witness is questionable. He did not enquire/ ask anyone the purpose of that gathering and on the other hand nobody was inquired by the witness about the purpose of their gathering. He made no effort whatsoever throughout the day to describe the story to anybody. Another aspect of the matter cannot be lost sight of that the complainant was informed about the occurrence by Noor Masih and one Qureshi and that they both were coming back from "Qanchi Mor" after relieving a bus bound for Faisalabad and then they both saw the appellant coming out of his house at 12:00 a.m. (at night). If it is believed that the complainant was told about the disappearance/ departure of the appellant in blood stained clothes at odd hours, then the complainant should have apprised the Investigating Officer of this fact but FIR is silent about this aspect of the matter which suggests either the complainant was not informed by the said Noor Masih or Qureshi or the witnesses were planted after about 24 hours of the occurrence. Wajtakkar alone is not a piece of strong evidence and the weak piece of evidence cannot corroborate another enervated evidence. Weak evidence cannot become the basis of conviction. To sustain conviction the evidence must be unimpeachable. Best possible evidence must be produced by the prosecution. In un-witnessed occurrences strong circumstantial evidence may successfully implicate an accused person but the evidence of Wajtakkar produced by the prosecution, in the instant case, is neither confidence inspiring nor reliable.
12. The next piece of incriminating evidence produced by the prosecution was extra judicial confession made by the appellant on 29.10.2009 at about 07/07:15 p.m. before Gul Zaman (given up PW) and Saif ur Rehman (PW.8). He described that the appellant came to them and apprised of the fact that he had slaughtered his wife and daughters as he intended to contract second marriage. He requested to resolve the matter amicably and by way of compromise. The appellant was asked to stay there but he slipped away as Saif-ur-Rehman went out on a pretext to ask the legal heirs of the deceased. The occurrence in this case took place on 25.10.2009 and after four days of the occurrence, the F appellant professed his guilt before Saif-ur-Rehman (PW.8) who is not authoritative socially or officially. He was neither a close confident nor friend having some common habits and that there was no convincing reason that the appellant had gone on to Saif-ur-Rehman to ventilate his suffocating conscience. He had admitted that he informed the complainant party about the confession of the appellant on the same very night. If it was so, why the complainant kept mum and why the witnesses made no effort to apprehend/arrest the appellant as he was alone and Saif-ur-Rehman was sitting in his Baithak along with Gul Zaman. The question of placing reliance on extra judicial confession came up for consideration before the Hon'ble Supreme of Pakistan in case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), wherein, at page 238, the apex Court of Pakistan held as under:- "This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra judicial-confession starting from Ahmad v. The Crown (PLD 1951 FC 103-107) upto the latest. Extra-Judicial confession has always been taken with a pinch of salt. In Ahmad v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, 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 the confession cannot but be true."
As, the extra-judicial-confession is not a direct evidence, thus it needs corroboration from available material.
Therefore, in the circumstances of this case, no reliance can be placed on the evidence of Wajtakkar/extra judicial confession produced by the prosecution, which even, otherwise is not corroborated by any other independent piece of evidence.
So far as, recovery of Churri' at the instance of the appellant is concerned that does not connect the appellant with the commission of crime even it is accepted as correct and the medical evidence only confirms the ocular evidence with regard to seat/ nature of injuries, weapon used in the instant case but cannot link the accused with the commission of crime, therefore, existence of injuries on the person of all the three deceased to of no avail to the prosecution. Respectful reliance, in this regard can be placed on "Ghulam Mustafa and another v.
State" (2009 SCMR 916).
13. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of any reasonable doubt, therefore, we accept Criminal Appeal No.34-J of 2011 filed by Muhammad Farooq (appellant), set aside his conviction and sentences recorded by the learned trial court and acquit him from the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith if not required in any other case.
13. Murder Reference No.102 of 2011 is answered in the NEGATIVE and the sentence of death of Muhammad Farooq (convict) is .NOT CONFIRMED.