ABDUL HAMEED BALOCH, J.---This criminal appeal has been directed against the judgment dated 30th October , 2014 (impugned judgment), passed by learned Additional Sessions Judge Lasbella at Hub (trial court), whereby the appellant was convicted under section 302(b), Pakistan Penal Code and sentenced to death on two counts and liable to pay an amount of Rs. 200,000/- (Rupees two hundred thousand) each as compensation to the legal heirs of deceased Sikandar son of Khair Muhammad and Qadir Bakhsh son of Saleh Muhammad under section 544-A, Criminal Procedure Code (Cr .P.C.) and in default thereof to further suf fer two years rigorous imprisonment.
2. Succinct facts of the case are-that on 2nd February , 2012, FIR No. 01 of 2012, was lodged with Levies Station Dump District Lasbella, under sections 302, 34, P.P.C., on the written report (Ex: P/1-A) of complainant Khair Muhammad (PW-1), alleging therein that on 31st January , 2012 the complainant has submitted report about missing of his son Sikandar and his friend Qadir Bakhsh, on which Tehsildar went to Torani Goth and found blood marks on the side of Kariasani Nala near road side. It was alleged that from that day search was in progress and today both the dead bodies were recovered from Hub River . It was further alleged that the complainant has believed that Qadir Bakhsh son of Muhammad Illyas Torani, resident of Torani Goth and others have committed murder of his son Sikandar and Qadir Bakhsh by making firing and their dead bodies were thrown in the bushes near River . On this report FIR (Ex: P/9-A) was registered.
3. After registration of FIR the investigation of the case was entrusted to PW-9 Muhammad Ayub Tehsildar who proceeded to the place of occurrence, secure the dead bodies of deceased, prepared sketch map Ex: P/9-B, inquest reports under section 174, Cr.P.C. Ex: P/9-C and Ex: P/9-D, secured blood stained clothes of deceased Qadir Bakhsh through Ex: P/5-A and Sikandar through Ex: P/6-A. The Investigating Officer arrested appellant/convict, co-convict Imam Bakhs h and acquitted accused Muhammad Hashim. On disclosure of appellant (Ex: P/2-A) the Investigating Officer recovered pistol and four empties and were taken into possession through recovery memo Ex: P/2-C and Ex: P/2-D. The I0 also secured blood stained earth, dry grass and stone from the place of occurrence through memo Ex: P/7-A and Ex: P/7-B. On disclosure of appellant motorcycles of deceased, and spade were recovered and taken into possession through memos Ex: P/4-A to Ex: P/4-C. During investigation the I0 also obtained Medico Legal Certificates of deceased through Ex: P/3-A- and Ex: P/3-B. During investigation the appellant also got recorded his confessional statement under section 164, Cr .P.C. vide Ex: P/8-A to Ex: P/8-D.
4. On completion of investigation incomplete challan Ex: P/9-I was submitted. Whereafter , on obtaining of FSL report of blood stained earth and clothes vide Ex: P/9-J, report of Fire Arms Expert vide Ex: P/9-K complete challan vide Ex: P/9-L was submitted. After fulfilling the requisite formalities charge was framed and read over to the accused persons to which they did not plead guilty and claimed trial. The prosecution in order to substantiate the charge produced following witnesses: PW-1 Khair Muhammad is complainant of the case, who produced Fard-e-Biyan As Ex: P/1-A; PW-2 Muhammad Ismail Levies Constable, who produced disclosure memo of appellant Qadir Bakhsh as Ex: P/2- A, site sketch as Ex: P/2-B, recovery mem o of pistol as Ex: P19-C, four empties as Art: P/4 to Art: P/7, TT pistol 30 Bore as Art: P/9, magazine along with cartridges as Art: P/10 to Art: P/1 1, tested empty as Art: P/12; PW-3 Dr. Abdul Ghani Medico Legal Officer, who produced death certificates of deceased Qadir Bakhsh and Sikandar as Ex: P/3-A and Ex: P/3-B; PW-4 Abdul Razzaq Levies Constable produced recovery memo of super power motorcycle of deceased Ex: P/4- A, recovery memo. of Honda motorcycle of appellant/convict Ex: P/4-B, spade Ex: P/4-C. The motorcycles and spade were produced as Art: P/14 to Art: P/15; PW-5 Muhammad Bakhsh Constable produced memo of blood stained shirt of deceased Qadir Bakhsh as Ex: P/5- A, inspection of dead body as Ex: P/5-B and blood stained shirt as. Art: P/17.
PW-6 Qadir Dina Constable produced memo of blood stained shirt 'of deceased Sikandar as Ex: P/6-A, seizure memo of dead body Ex: P/6-B, receipt of handing over of dead body Ex: P/6-C and blood stained shirt as Art: P/19.
PW-7 Muhammad Saleh produced recovery memo of blood stained dry grass as Ex: P/7-A, blood stained stone as Ex: P/7-B and produced the same as Art: P/23 and Art: P/26.
PW-8 Dost Muhammad Mandokhail, Judicial Magistrate testified and produced the statement of accused Qadir Bakhsh recorded under section 164, Cr.P.C. as Ex: P/8-A to Ex: P/8-D, certificate Ex: P/8-E, envelope Ex: P/8-F , letter Ex: P/8-G, and PW-9 Muhammad Ayub Tehsildar (Investigating Officer) produced FIR as Ex: P/9-A, site sketch as Ex: P/9-B, inquest report of deceased Qadir Bakhsh as. Ex: P/9-C and Ex: P/9-D, inquest report of deceased Sikandar as Ex: P/9-E and Ex: P/9-F , receipts of dead bodies of Qadir Bakhsh and Sikandar as Ex: P/9-G and Ex: P/9-H, incomplete challan as Ex: P/9-1, analysis report of blood stained earth, grass, stone as Ex: P/9-J, report of Fire Arms Expert as Ex: P/9-K and complete challan as Ex: P/9-L.
5. On conclusion of prosecution evidence the statements of appellant and co-convict Imam Bakhsh and acquitted accused Muhammad Hashim were recorded under section 342, Cr.P.C. Co-convict Imam Bakhsh and acquitted accused Muhammad Hashim neither recorded their statements on oath as envisaged under section 340(2), Cr.P.C., nor produced any witness in their defence. However , the appellant opted to record his statement on oath under section 340(2), Cr.P.C. On conclusion of trial, the learned trial court convicted the appellant in the terms as mentioned above, while convicted accused Imam Bakhsh under section 201, P.P.C. and sentenced him to suffer seven years rigorous imprisonment and to pay fine of Rs.100,000/- (Rupees one Hundred thousand) and in default to further undergo one year simple imprisonment, whereas acquitted accused Muhammad Hashim.
6. Suffice to add here that since the appellant was awarded death sentence, as such the State filed Murder Reference for confirmation of death sentence awarded to the convict Qadir Bakhsh.
7. The learned counsel for the appellant/ convict Mr. Ahsan Rafiq Rana Advocate at the very outset contended that the occurrence is tin-witnessed. The complainant of the case is not an ocular witness. He made dishonest improvements; as such his testimony lost its credential value. The prosecution had sent the alleged crime weapon and empties together to the Expert for analysis belatedly; as such the report lost is evidentiary value. The case of the prosecution is based on circumstantial evidence but the chain is broken. The 164, Cr.P.C. statement of appellant was recoded after thirteen days without any plausible explanation, even the statement was recorded after next day of completion of judicial remand. The appellant was arrested on 5th February , 2012, whereafter produced to Judicial Magistrate on 6th February , 2012 by the Investigating Officer for remand. The Judicial Magistrate remanded the appellant/convict till 17th February , 2012, while the statement of appellant/convict under section 164, Cr.P.C. was recorded by PW-8 on 18th February , 2012, which is sheer violation of law. The appellant/convict was under illegal custody when produced for recording 164, Cr. P.C. statement. In the last the learned counsel prayed for acquittal of the appellant/convict.
8. On the other hand the learned Additional Prosecutor General strongly opposed the contention of learned counsel for the appellant/convict. He stated that the prosecution has proved its case through reliable evidence. The statement of appellant under section 164, Cr.P.C. is voluntary and truthful. The conviction could be based on circumstantial evidence. On disclosure of appellant crime weapon and empties were secured from the place of occurrence. The report is positive. In such circumstances the trial court has rightly convicted the appellant. The appellant had committed cold blooded murder of two innocent persons, as such does not deserve for any leniency .
9. We have heard learned counsel for the appellant and .learned Additional Prosecutor General and have also gone through the record with extensive assistance rendered by the learned counsel and learned APG. The prosecution has produced nine witnesses in order to substantiate the charge against the accused. On careful perusal it revealed that case of the prosecution revolved around the statement of appellant under section 164, Cr.P.C. recover of alleged crime weapon, casing, motorcycle on pointation of appellant, positive report of FSL of blood stained earth, stone and report of Fire Arms Expert. The record depicts that FIR Ex: P/9-A was registered on the basis of Fard-e-Biyan Ex: P/1-A dated 2nd February , 2012, wherein the complainant alleged that he reported missing of his son and his friend Sikanda r to Levies Station on 31st January , 2012 , but no record of referred report is available. It appears from Ex: P/1-A that the complainant along with Tehsildar (Investigating Officer PW-9) found the dead bodies of deceased, then PW-9 prepared site map Ex; P/9-B, but during trial PW-1 recorded his statement wherein he alleged that the dead bodies of deceased were recovered on pointation of appellant/ convict on 2nd February , 2012. Such contention of complainant has not been supported by the prosecution. The record reveals that the appellant along with Imam Bakhsh and Muhammad Hashim were arrested on 5th February , 2012.
PW-1 has intentionally made dishonest improvement. The august Court repeated ly held that the improvement in the statement of a witness casts serious doubt in regard of its authenticity . When a witness has A made improvement to strengthen the case of prosecution, if found to be deliberate and dishonest, the same would cause serious doubt on his veracity . Reliance is placed on the case of Jehan Bahadur v. The State 2013 YLR (Peshawar)
2772, wherein it was held: ........The rule for safe administration of justice is that improvement made by eye-witness in order to strengthen the prosecution case, lose their credibility and evidentiary value and when a witness made contradictory . statement or improvement changing his version in order to in line his testimony with the prosecution story , if found to be deliberate and dishonest, would cause serious doubt on his veracity . Reliance is placed on the case Farman Ahmed v. Muhammad Inayat and others reported in 2007 SCMR 1825 , wherein it has been held that improvements once found to be deliberate and dishonest would cast serious doubts on veracity of such witness. In the present case, the complainant has made deliberate and dishonest improvements in his statement to strengthen the prosecution case; therefore, his statement loses its credibility and evidentiary value."
10.. The record reveals that the complainant is not an ocular witness. The complainant has nominated the appellant/convict in Ex: P/1-A, but failed to disclose the source who had disclosed the name of appellant to him.
The disclosure of name of the appellant became mystery .
11. Dr. Abdul Ghani appeared in the trial court as PW-3 and produced death certificates of deceased Qadir Bakhsh and Sikandar as Ex: P/3-A and Ex: P/3-B respectively , wherein he stated that the deceased were brought by Tehsildar Dureji on 2nd February , 2012 at 7:15 p.m. While PW-9 the Investigating Officer stated that on call PW-3 reached at the spot meaning thereby that the dead bodies of the deceased were not brought to hospital. Even the medical reports only confirmed injuries on the body of the deceased, which is supp ortive piece of evidence and not corroborative piece of evidence. Reliance is placed on the case of Sajjan Solangi v. The State 2019 SCMR 872. It was held: "4. The medical evidence at the most could be a supporting evidence to the ocular account and by itself cannot identify the assailant--------"
12. Another aspect 'of the case is the disclosure of appellant on the basis of which recovery of alleged crime weapon and casing on the pointation of appellant after seven days of his arrest was made. The prosecution has made an attempt to make us believe that the recovery of alleged TT pistol .30 bore has been made voluntarily . The appellant was arrested on 5th February , 2012, while on 12th February , 2012 the recovery of alleged crime weapon; casing and motorcycles of deceased and appellant were made. The record transpires that the prosecution discovered the dead bodies on 2nd February , 2012, but failed to recover the motorcycle of the deceased and alleged crime weapon from the place where the dead bodies were earlier recovered. As per prosecution record the alleged recovery of crime weapon and casing were made on disclosure and pointation of the appellant from an open place which was not in exclusive possession of the appellant and every one have access to the place of recovery . Conviction on the basis of such recovery is unsafe. Reliance is placed on the reported case of this court titled Abdul Manan v . The State 2017 PCr .LJ 1 198 wherein it was held: "13. In the case of principal accused Abdul Manan, we find that he was convicted by the trial court on the evidence of discovery of T. T pistol from his house. As, it has discussed earlier that the prosecution has produced two disclosures of accused Abdul Manan, first recorded on 18.3.2012, which was not followed by any recovery/discovery , and second recorded on 25.3.2012 which was followed by recovery of IT pistol from his house.
It was stated by. PW-4 Hafeezullah that T. T pistol was produced by the accused from his bed, he also stated that other inmates of house are also residing there. It is astonishing to note that the accused Abdul Manan was arrested on 18.3.2012, when after his disclosure, he was brought to the place of occurrence for pointation only. Again on 25.3.2012 he was brought to his house adjacent to the house of the deceased, when he recovered the T. T pistol.
The question arises that police did not search the house of the accused on 18.3. 2012 and till 25.3.2012, the T.T. pistol was lying on his bed which was not removed by any other inmate of the house; that the accused was at large from 28.2.2012 and he too did not remove the T.T pistol, which was subsequently recovered on his pointation from his bed.
The discovery of any fact on the information of the accused in custody of police is admissible under Article 40 of the Order 1984, which reads as under:
40. How much information received from accused may be proved. When any fact is deposed to as discover ed 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.
The perusal of above Article reveals that it is founded on the principle if the stateme nt or information of the accused amounts to confession or otherwise, is supported by the discovery of a fact, it may be presumed to be true and not to have been extracted. It comes into operation only (i) if and when certain facts are deposed to as discovered in consequences of information received from accused persons in police custody; and (ii) if the information relates distinctly to the fact discovered. However in any case such information either oral or recorded by the police is required to be proved by the prosecution through evidence. No doubt, the information permitted to be admitted in prosecution through evidence. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered. but the information to get admissibility need not to be so truncated as to make it insensible and incomprehensible. The extent of information admitted should be consistent with unde rstandability . Mere statement that the accused led the police and the witnesses to the place where he concealed the article is not indicative of the information given. Thus, in order to apply Article 40 of the Order 1984, the prosecution must establish that information given by the accused led to discovery of some fact deposed by him and the discovery must be of some fact, which the police had not previously known and it was first time derived from the information given by accused. It is also imperative to note that the recovery of article cannot be termed as discovery , when it was not recovered from any hidden place and if in normal course, the investigation officer/agency was able to see it and take its possession, without any statement of the accused for pointing it out, Reference in this behalf is invited to Mst. Askar Jan v. Muhammad Daud (2010 SCMR 1604 ).
In view of above discussion, the recovery of TT pistol, which was not hidden in any secret place, but from room of a jointly owned house, on .pointation of the accused is not free from doubt."
13. As per prosecution the recovery of alleged crime weapon and casing were made from the place of occurrence on the pointation of appellant on 12th February , 2012. PW-9 prepared recovery memo Ex: P/2-A. The prosecution dispatched the crime weapon and casing to Fire Arms Unit Karachi for analysis which was received on 14th May, 2012, meaning thereby that more than two months the alleged crime weapon and casing were kept in Levies Station without any plausible E reason. It appears from perusal of the record that the alleged weapon and casing were sent together to Fire Arms Expert. Although casing/empty shell matched with the weapon, but the same evidence lost its significance. The prosecution has not recorded the statement of police official in whose custody the alleged weapon and casing were kept. It is bounded duty of the prosecution to act according to law. It has no liberty to act on his whim and in capricious manner . Reliance is placed on the cases of Asad Rehmat v. The State 2019 SCMR 1156, Hashim Qasim v. The State 2017 SCMR 986, Muhammad Saleem v. Shabbir Ahmed 2016 SCMR 1605 , Ali Sher v. The State 2008 SCMR 707, Mushtaq v. The State PLO 2008 SC I. Mere recovery of weapon/empties from place of occurrence on pointation of the accused alone was not sufficient for conviction.
Reliance is placed on the case of Hayatullah v . The State 2018 SCMR 2092 .
14. The record depicts that prosecution has secured blood stained shirt of the deceased, blood stained earth and stone and same were dispatched to Chemical Examiner to the Government of Sindh, Karachi.
The prosecution had collected the report from FSL and produced the same as Ex: P/9-J, which is positive. Mere sending of blood stained material to Chemical Examiner would not serve the purpose of prosecution unless the report indicate that it was human blood and was of the same group. Reliance is placed on the case of Muhammad Ash v . The State 2017 SCMR 486 . It was held by their lordship: "19. We have noticed that the Punjab Police invariably indulge in such a practice which is highly improper because unless the blood stained earth or cotton and blood stained clothes of the victim are not sent with the same for opinion of serologist to the effect that it was human blood on the crime weapons and was of the same group which was available on the clothes of the victim and the blood stained earth/cotton such inconclusive opinion cannot be used as a piece of corroboratory evidence. Therefore, copy of this judgment be sent to the Prosecutor General, Punjab, and Chief Incharge of Investiga tion, Punjab Provincial Police to issue instructions to the investigating agencies in this regard."
15. So far as recovery of motorbikes of deceased and appellant on pointation of appellant is concerned, the prosecution cannot take benefit of such recovery . The prosecution has to establish the ownership of motorbikes through evidence. The prosecution has failed to collect any evidence to prove that the motorcycle was belonged to deceased. Mere bald assertion of prosecution cannot be accepted without proof.
16. As regard 164, Cr.P.C. statement of appellant recorded on 18th February , 2012 by PW-8 Judicial Magistrate Dost Muhammad Mandokhail is concerned, the same has been retracted at the trial. It might be right that retracted confession, if corroborated by independent evidence of reliable nature, can be made basis for conviction. The perusal of record reveals that the confessional statement was recorded after thirteen (13) days of arrest of the appellant. It is an established principle that if judicial confession is recorded with undue delay the same shall have no legal consequence. Reliance is placed on the reported judgment of this court titled Mahmood Ahmed v. The State 2012 YLR 2314 . The Honorable Supreme Court of Pakistan in case Muhammad Ismail v. The State 2017 SCMR 898 held: "----------The only other piece of evidence remaining in the field was a judicial confession allegedly made by Muhammad lqrar, Khalid Hussain and Shakir Ali appellants before a Magistrate under section 164, Cr.P.C. but admittedly the said judicial confession had been retracted by the appellants before the trial court and in the absence of any independent corroboration such retracted judicial confession could not suffice all by itself for recording or upholding the appellants' Convictions.--- "
17. Rule of prudence requires that conviction could not be based on retracted judicial confession without corroboration by independent and cogent evidence. Reliance is placed on the case of Mah Gul v. The State 2009 SCMR 4 , wherein it was held: "----------the belated retracted confessiona l statement of the appellant and the evidence of recoveries only which being purely of corroboratory in nature, in our view, are not capable to bring home charge against the appellant in the absence of direct evidence-------"
18. Though conviction could be based on circumstantial evidence if the same is corroborated by other piece of evidence which maintain complete chain of circumstances directly relatable to each other and J when any link in the chain is missing in the case of circumstantial evidence. it is not safe to uphold conviction. Reliance is placed on Nasir Javed v. The State 2016 SCMR 1144. It is an established fact that a tainted piece of evidence could not corroborate another tainted piece of evidence, as held in the reported judgment of this court titled Muhammad Ali v.
The State 2005 PCr .LJ 830.
19. It is well settled principle of law that it is the prosecution which has to prove its case on its own leg and cannot take benefit from the weaknesses of defence. There remain no cavil to the proposition that if there is a single circumstance which create reasonable doubt in the prosecution case the benefit of the same goes to the accused.
Even as per saying of the Holy Prophet (P.B.U.H.) the mistake in releasing a criminal is better the punishing an innocent person. The Hon'ble Supreme Court held in case of Ayub Masih v . The State PLD 2002 SC 1048 .
" It will not be out of place to mention here that the rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (p. b. u. h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
The rule of benefit of doubt which is described as a golden rule is essentially as rule of prudence which cannot be ignored while dispensing justice in accordance with the law. It is based on maxim "it is better than ten guilty persons be acquitted rather the one innocent person be convicted."
Thus in view of above discussion it can be concluded that the prosecution case is based on surmises and conjectures. Consequently Jail Appeal bearing No. 57 of 2014 is accepted. The impugned judgment dated 30th October , 2014 passed by Additional Sessions Judge,' Labella at Hub in case FIR No. 01 of 2012 Levies Station Dureji, District Lasbella, under sections 302, 34, P.P.C. is set aside and by extendin g benefit of doubt the appellant Qadir Bakhsh son of Muhammad Illyas is acquitted of the charge. The appellant is in custody be released forthwith if not required in any other case.
Resultantly the Murder Reference filed by the State for confirmation of death sentence is answered in negative.