Tariq Saleem Sheikh, J. This appeal under section 25 of the Anti-T errorism Act, 1997, is directed against judgment dated 12-09-2013 handed down by the learned Judge, Anti-T errorism Court-I, Gujranwala, in case FIR No. 101/2012 dated 13-03-2012 registered at Police Station Saddar , Gujrat, for offence s under sections 302, 324, 353, 186, 148, 149 PPC read with section 7 of the Anti-T errorism Act, 1997.
2. Brief facts of the case are that on 13-03-2012 at 07:10 p.m. when Complainant Sajid Nazeer/Inspector (PW-13) and his squad came to Khatala Phatak during the course of patrolling they saw six terrorists, who were riding three motorcycles, attack the contingent deployed at the bay with automatic weapons raising slogans of Allah-o-Akbar .
As a result of their indiscriminate firing, Muhammad Arshad 1481/HC, Seerat Abbas 2127/C, Qamar Ali 2389/C and Sibghat Azam 3223/C were killed at the spot while Ahmad Waqas 3958/C miraculously escaped. According to the Complainant, he had a good view of the accused in the light of an electric bulb lit at the site so he could identify them. On seeing the police patrol vehicle the terrorists sped away . It was later found that they had taken away official G3 Rifle No.13361 with three magazines having 60 live bullets and MP5 Rifle No. A96484 with a magazine having 20 live bullets carried by the deceased policemen. The Complainant drew the complaint Exh. PB/1 and sent it to the Police Station Saddar , Gujrat, through Riffat Iqbal 1119/C on the basis of which Irshad Ahmad SI/Duty Officer (PW -1) registered FIR No. 101/2012 Exh. P A at 08:30 p.m.
3. The case was investigated at various levels and eventually Shafique Ahmad (the Appellant) and Abdul Rehman were challaned. On 26-03-2013, the learned Judge, Anti-T errorism Court, framed charge against them to which they pleaded not guilty and claimed trial. The prosecution produced 25 witnesses to prove its case. After that the learned Judge recorded the statements of the accused under section 342 Cr.P.C. and confronted them with the incriminating material that was brought against them during the trial. They refuted it and professed innocence. They maintained that some unknown terrorists had attacked the police. Since it was a high profile case and the real culprits were not traceable, the Complainant and his colleagues falsely implicated them to show their efficiency . For this purpose they also fabricated evidenc e. A few days before 15-11-2012 the law enforcement agencies arrested some terrorists and seized illicit arms and ammunition from them. During investigation those outlaws provided information which led to the arrest of Muhammad Aslam (the Appellant' s Humzulf ) and recovery of explosives which they subsequently planted on the Appellant and Abdul Rehman.
4. The Appellant and his co-accused neither made statement on oath under section 340(2) Cr.P.C. nor examined any witnesses in their defence. However , they tendered some documents in evidence. Appellant Shafique Ahmad produced a certified copy of Daily Diary Register of Police Station Saddar , Gujrat, dated 15-11-2012 & 16-11-2012 (Exh.DH), attested copy of Daily Diary of Police Station Tanda, Gujrat, dated 15-11-2012 & 16-11-2012 (Exh.DJ) and attested copy of Daily Diary of Polic e Station Tanda dated 16-11-2012 & 17-11-2012 (Exh.DK). On the other hand, Abdul Rehman adduced copy of Daily Diary Register of Police Station Civil Lines, Gujrat, dated 15-11-2012 (Exh.DF) and attested copy of Daily Diary of Police Station Civil Lines dated 16-1 1-2012 & 17-1 1-2012 (Exh.DG).
5. On conclusion of the trial, vide impugned judgment dated 12-09-2013, the learned Judge acquitted Abdul Rehman but convicted and sentenced the Appellant as under: i) Convicted under section 21(I) of Anti-T errorism Act, 1997, read with section 302(b) PPC and sentenced to life imprisonment, on four counts with compensation in the sum of Rs.1,00,000/- to the legal heirs of each deceased and in default thereof to undergo simple imprisonment for a further period of six months on each default; ii) Convicted under section 7(a) of Anti-T errorism Act, 1997, read with section 21(I) of the said Act and sentenced to life imprisonment on four counts with fine of Rs.1,00,000/- on each count and in default thereof to undergo simple imprisonment for a period of six months for each default; and iii) Convicted under section 353 PPC read with section 21 (I) of Anti-T errorism Act, 1997, and sentenced to rigorous imprisonment for two years.
The sentences of imprisonment were ordered to run concurrently and benefit of section 382-B Cr.P.C. was given to the Appellant. Hence, this appeal.
6. The learned counsel for the Appellant contended that the prosecution had failed to prove the charge. The Appellant was not among the terrorists who attacked the police contingent on 13-03-2012. Further , he neither abetted nor aided or harboured them. The learned trial court had not appreciated the evidence properly which had caused serious miscarriage of justice. He argued that the prosecution case was based on the Appellant's extra- judicial confession which strained credulity . Even otherwise, it was a weak type of evidence and the recoveries relied upon for corroboration were them selves tainted. Lastly , the learned trial court had acquitted co-accused Abdul Rehman which the State had not challenged. The Appellant could not be convicted on the same evidence.
The learned counsel prayed that this appeal be accepted.
7. The learned Deputy Prosecutor Gener al controverted the above contentions. He contended that the Appellant belonged to a Jehadi organization and was involved in attacks on the Pakistan Army , police and the civilians. They also perpetrated terrorism at the Khatala Phatak Check Post in which four policemen were killed. He argued that on 08-11-2012 the Appellant made extra-judicial confession to this effect before Muhammad Azam (PW-16) and Muhammad Azam (PW-17) which was duly proved at the trial. Recovery of MP-5 rifle bearing No.A96484 and articles P-22 to P-36 corroborated his aforementioned confession and reinforced the prosecution case. The learned Law Of ficer prayed that the Appellant's appeal be dismissed and his conviction and sentence be upheld.
8. We have heard the learned counsel and examined the available record.
9. On 13-03-2012 at 7:10 p.m. a band of terrorists attacked the Khatala Phatak Check Post, Ghazi Chak, within the remit of Police Station Saddar , Gujrat, killing four officials Muhammad Arshad 1481/HC, Seerat Abbas 2127/C, Qamar Ali 2389/C and Sibghat Azam 3223/C. The fifth, Ahmad Waqas 3958/C (PW-15), escaped unhurt. The prosecution examined 25 witnesses to prove its case. Complainant Sajid Nazeer/Inspector (PW-13), Abid Hussain/ASI (PW-14) and Ahmad Waqas 3958/C (PW-15) furnished the ocular account. Dr. Falak Sher (PW-12) provided medical evidence. Muhammad Azam (PW-16) and Muhammad Aslam (PW-17) testified that the Appellant confessed his guilt before them. Saeed Ahmad/Inspector (PW-20), Muhammad Ashraf, Technician, Bomb Disposal Squad (PW-21), and Javed Iqbal/Inspector (PW-22) deposed about recovery of police MP-5 Rifle and explosives from the Appellant while Umar Hayat/SI (PW-24) and Syed Hasnat Hussain (PW-25) testified that they recovered Jehadi literature (articles P-28 to P-36) from him.
10. Complainant Sajid Nazeer/Inspector (PW-13) and Abid Hussain/ASI (PW-14) deposed that on 13.03.2012 they were patrolling on official vehicle and about to cross the Khatala Phatak when the terrorists attacked the check post. According to them, the incident took place at 7:10 p.m. On the other hand, Ahmad Waqas 3958/C (PW-15) stated the time as 6:15 p.m. and adde d that Sajid Nazeer/Inspector came at 7:23 p.m. This is a material contradiction which cannot be ignored. It indicates that PWs Sajid Nazeer and Abid Hussain came at the spot after the occurrence.
11. The evidence of Ahmad Waqas (PW-15) is also of little help for the prosecution . He testified that he was saved because when the terrorists attacked he was not with the deceased police officials and had gone to drink water .
This raises a question as to whether he had a good look at the assailants and could identify them. His testimony is absolutely silent on this point. Importantly , in his examination-in-chief he did not say that the Appellant was among them.
12. It is significant that FIR No.101/2012 Exh.P A was registered against unknown accused. Further , neither the complaint Exh.PB/1 nor the FIR, supra , describe the features of any of the assailants. On 13-11-2012 Complainant Sajid Nazeer/Inspector (PW-13) nominate d the Appellant in this case through a supplementary statement without disclosing the source of his information or the circumstances which made him suspect that he was involved. Even during the trial he did not say anything about it. The following excerpt from his examination-in-chief is relevant: "On 13-11-2012, I got recorded my supplementary statement to Investigating Officer and I nominated accused Shafique son of Nazeer and Abdul Rehman son of Shafique present before the court, on my own sources. I came to know through my hidden sources that both the present accused persons had got committed the offence through accused namely Abdul Wahab alias Kamran, Imran, Ans of Kasur and Asif of Gujranwala. It was also known that Abdul Wahab etc. accused persons beside the present occurrence had also committed the offence of attack on Army at Chenab Bridge Gujrat and attack on Kamra Air Base."
13. The prosecution next counts on the extra-judicial confession of the Appellant. Muhammad Azam (PW-16) and Muhammad Aslam (PW-17) deposed that on 08-11-2012 the Appellant came to them, confessed that he was among those who targeted the place at Khatala Phatak and requested for pardon. According to them, he also admitted that he was actively involved in planning attacks on the Pakistan Army . PW Muhammad Azam was the father of Sibghat Azam/C deceased while PW Muhammad Aslam was the brother of Muhammad Arshad/C deceased.
14. Wharton's Criminal Evidence states: "The proof of every crime consists of: (1) proof that the crime charged has been committed by someone; and (2) proof that the defendant is the perpetrator of the crime. The first element is the body of the crime, or corpus delicti ; the second is the proof of the defendant 's connection with the crime, i.e., his guilty participation. It is practically universally held that the corpus delicti of a crime cannot be proved by an extra-judicial confession standing alone.
Thus a verdict of guilty and a subsequent conviction cannot be sustained upon an extra-judicial confession only.
Stated conversely , the rule is that an extra-judicial confession of the accused must be corroborated by independent proof of the corpus delicti of the crime."
15. The Supreme Court of India has considered the question of evidentiary value of extra-judicial confession in a number of cases. In Mulk Raj v . The State of U.P (AIR 1959 SC 902) it held: "An extra-judicial confession, if voluntary , can be relied upon by the court alongwith other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is true that the court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the court should not accept the evidence, if not the actual word s but the substance were given.
If the rule is inflexible that the courts should insist only on the exact words, more often as not, this kind of evidence, sometimes most reliable and, useful, will have to be excluded; for, except perhaps in the case of a person of good memory , many witnesses cannot repeat the exact words of the accused. It is for the court having regard to the1 credibility of the witness, his capacity to understand the language in which the accused made the confession, to accept the evidence or not. In this case, the confession made by the appellant was not a complicated one and the witnesses stated without any conflict practically the exact words used by the appellant and also how they understood the words. In the circumstances, if the evidence of the witnesses is acceptable, there is no reason why the extra-judicial confession made by the accused could not be acted upon."
16. In Narayan Singh and others v . State of M.P . (AIR 1985 SC 1678) the Indian Supreme Court held: "It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak about such a confession."
17. In Sahadevan & Anr. v. State of Tamil Nadu (AIR 2012 SC 2435) the Supreme Court thoroughly analyzed various judgments on the issue and formulated the following principles: "(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law ."
18. The jurisprudence in Pakistan is well settled that extra judicial confession should be received with utmost caution because it can be effortlessly procured and easily concocted. The Federal Court laid this dictum in Ahmad v. The Crown (PLD 1951 FC 107) and Abdul Latif v. Crown (PLD 1952 FC 113) which was subsequently affirmed by the Hon'ble Supreme Court of Pakistan in a number of cases. In Sajid Mumtaz and others v.
Basharat and others ( 2006 SCMR 231 ) it held: "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 Officer 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."
19. More recently , in Mst. Asia Bibi v . The State and others ( PLD 2019 SC 64 ) the apex Court observed: "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 )."
20. The courts in our country apply the following principles while appraising the evidence of extra-judicial confession: 2
(i) Extra-judicial confession is normally considered as a weak piece of evidence as it can be easily procured whenever direct evidence is not available.
(ii) An extra-judicial confession is not a direct evidence. It can be used against an accused only when it comes from unimpeachable sources. Further , it must be corroborated in material particulars through trustworthy evidence.
(iii) Since extra-judicial confession is a weak type of evidence, conviction on capital charge cannot be recorded in its basis alone.
(iv) There are three essentials to believe an extra-judicial confession: firstly , that the extra-judicial confession was in fact made; secondly , that it was made voluntarily and, thirdly , that it was truly made.
(v) In criminal cases great responsibility rests upon the courts to determine if the confession is voluntary and true or is lacking within the scope of either term "voluntary" and "true". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority , it would be treated as not voluntary .
(vi) The extra-judicial confession must be received with utmost caution. The court should enquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the back of a human conduct. Why a person guilty of offence entailing capital punishment should at all confers. There could be a few motivating factors like: (a) to boast off, (b) to venti late the suffocating conscience, and (c) to seek help when actually trappe d by investigation. Where the accused had been fully trapped during the investigation, what is the nature and gravity of the offence involved, what is the relationship of the accused with the person before whom confession is made.
(vii) The status of the person before whom the extra judicial confession is made must be kept in view. A person may make confession before a third person to seek help from him. Help is sought when a person is sufficiently trapped and he feels that the other person is in a position socially or otherwise to provide him some relief. Extra-judicial confession of murder made by accused to witnesses who were neither respectable persons of locality nor enjoyed such a commanding position so as to have an access or influence on the police or the relatives of the deceased to get pardon for accused. In such situation, what prompted the accused to confess his guilt voluntarily without any duress, coercion or inducement leaves room for consideration.
(viii) Evidence of witnesses before whom accused made extra-judicial confession would not be worth reliance when witnesses exhibited unnatural and inhuman conduct after accused had made confession to them.
(ix) The Court should also look at the time lag between the occurrence and the confession and determine whether the confession was at all necessary .
(x) Joint confession cannot be used against either of them.
(xi) Extra-judicial confession made by the accused when he is in the custody of the police is inadmissible in evidence. Article 38 of the Qanun-e-Shahadat Order , 1984 (the "QSO"), lays down that a confession made to a police officer shall not be proved against a person accused of any offence. The object of this rule is to discourage a police officer from extorting confession for showing efficiency by securing convictions. Under this Article a confession made to a police officer is to be ignored even if it was made in the immediate presence of a Magistrate, as the Article 38 is independent and is not controlled by Article 39.
(xii) Article 39 of the QSO deals with confessions which are made not to police officers but to persons other than police officers i.e. to a fellow prisoner , a doctor or a visitor and makes such confes sions inadmissible, if they were made while the accused was in the custody of police of ficer. Articles 38 and 39 lay down dif ferent rules.
(xiii) As per Article 40 of the QSO, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the Appellant, under Article 40 ibid, relating to incriminatory articles is admissible.3 4 5 6 7 8 9 10 11 12 13 14 15
21. At this point it is necessary to refer to Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53) wherein the Hon'ble Supreme Court laid down that - "(i) An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession.
A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the of fence alleged to be confessed.
"(ii) An admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. These considerations, however , do not apply when the question is whether statement party inculpatory and partly exculpatory should be used against the maker thereof. In his case, even if the statement does not amount to a confession in the full sense of the term, it could still be used as an admission against him."
The above statement of law was approvingly cited in Ch. Muhammad Yaqoob and others v. The State and others ( 1992 SCMR 1983 ).
22. In the instant case, it is observed, there was no palpable reason for the Appellant to make an extra-judicial confession before PWs Muhammad Azam and Muhammad Aslam.
There is no evidence that he approached them to ventilate his suffocating conscience or was in a morass and needed their help.
23. The conduct of the witness before whom the extra judicial confession is also a relevant factor for determining its credibility . In the instant case it was unnatural. They did not make any effort to apprehend the Appellant and let him leave. More importantly , if the Appellant confessed his guilt on 8-11-2012 as alleged and the same day PWs informed the police, why was the Complainant not aware of it on 13-11-2012 when he made his supplementary statement.
24. The prosecution heavily relies on the various recoveries made from the Appellant for corroboration of its case.
The first is MP-5 Rifle No.A96484 which was snatched from the deceased police officials at the time of attack. The said rifle was a vital piece of evidence but was not produced at the trial. The prosecution only examined Saeed Ahmad/Inspector (PW-20), Muhammad Ashraf (PW-21) and Javed Iqbal/Inspector (PW-22) in whose presence that rifle was recovered and Ahmad Waqas 3958/C (PW-15) who identified it and signed Identification Memo Exh. PV in respect thereof. Their evidence is of little consequence.
25. According to the prosecution, on 15-11-2012 a huge quantity of explosives was recovered from the Appellant in two instances. These, inter alia, included suicide jackets, rifles, detonators, IEDs, dry batteries, timers, remote control devices, explosive substance weighing 75 kgs and hand grenades. We are afraid, this evidence cannot be used against the Appellant in the present case for a number of reasons: first, the said explosives were recovered during investigation of FIR No.398/2012 registered at P.S. Saddar Gujrat and FIR No.255/2012 of P.S. Tanda.
Secondly , these were not produced during the trial of the instant case. Only the Recovery Memo Exh. PLL was exhibited. Thirdly , the Appellant was not indicted in respect thereof. And lastly , he was not confronted with the said recovery when his statement under section 342 Cr.P.C. was recorded. It is trite that examination of an accused under section 342 Cr.P.C. is not a formality but a legal requirement whose primary purpose is to apprise him of all the incriminating material that has been brought against him during the trial and provide him an opportunity to explain his position with respect to it. In Muhammad Shah v. The State (2010 SCMR 1009 ) the Hon'ble Supreme Court of Pakistan held that if a piece of evidence is not put to the accused as aforesaid, it cannot be used against him. This view was reiterated in Qaddan and others v. The State (2017 SCMR 148), Muhammad Saddique v.
The State ( 2018 SCMR 71 ) and Imtiaz alias T aj v. The State and others ( 2018 SCMR 344 ).
26. The prosecution endeavoured to prove that the Appellant belonged to a Jehadi organization to buttress its case. Umar Hayat/SI (PW-24) and Syed Hasnat Hussain (PW-25) deposed that on 01-12-2012 he led to recovery of Jehadi literature which was seized vide Recovery Memo Exh. PMM. It included Eeqaz (magazine) P-28, Takweet-ul-Eman (magazine) P-29, six letter pads P-30/1-6, Al-Hermain (magazine) P-31, four DVDs (without stickers) P-32/1-4, Ameer-ul-Momineen (pamphlet) P-33, Miras-ul-Unbia (pamphlet) P-34, Sharoot-ul-T auheed (pamphlet) P-35 and written material P-36 /1-3. During cross-examination PW Umar Hayat admitted that on 15-11- 2012 i.e. a fortnight earlier , they visited the Appellant's house. It is intriguing why the said literature was not recovered that day. More importantly , his name is not written on any of the articles P-28 to P-36. The learned trial court has held that this recovery is doubtful. W e have no reason to dif fer with it.
27. Admittedly , the above-mentioned recoveries were made from the jurisdiction of another police station. During trial the Appellant and his co-accused adduced documents Exh. DG to DK which show that the Investigating Officer did not make entry in the Roznamcha of the concerned police station before undertaking proceedings. Relying upon Amin Ali and another v. The State (2011 SCMR 323) the learned counsel for the Appellant contended that this omission rendered the entire exerci se dubious. We do not think it is necessary to address this contention because we have discarded the alleged recoveries on other grounds.
28. Dr. Falak Sher (PW-12) conducted postmortem examination of all the four deceased. In the instant case, since we have disbelieved the ocular account, the extra-judicial confession and the recoveries, medical evidence is not of much avail to the prosecution. In Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103) the Hon'ble Supreme Court of Pakistan held: "It is also settled law that medical eviden ce may confirm the ocular evidence with regard to the seat of the injury , nature of the injury , kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime."
The above view was reaffirmed in Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549 ), Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Muhammad Aslam v. Sabir Hussain and others (2009 SCMR 985), Muhammad Saleem v. Shabbir Ahmed and others (2016 SCMR 1605 ) and Hashim Qasim and another v . The State ( 2017 SCMR 986 ).
29. In criminal cases the burden of proof is on the prosecution and it is obligated to prove the charge against the accused. In Woolmington v . The Director of Public Prosecutions, [1935] AC 462, the House of Lords held: "Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt ... If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner , as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosec ution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
30. In Rabindra Kumar Dey v. State of Orissa (AIR 1977 SC 170) the Supreme Court of India ruled that the following three principles of criminal jurisprudence are well settled: "(1) The onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case.
(2) That in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty .
(3) The onus of prosecution never shifts."
31. In Paramjeet Singh alias Pamma v. State of Uttarakhand (AIR 2011 SC 200) the Supreme Court of India held that "in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the court that its case has been proved beyond reasonable doubt." Similarly , in The State v. Muhammad Shafique alias Pappo and another (PLD 2004 SC 39) the Supreme Court of Pakistan held that seriousness of charge cannot absolve the prosecution of its duty to prove its case. Again, in Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274) it ruled that "nature of crime should not detract the court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion."
32. In the instant case, on reappraisal of evidence we have come to an ineluctable conclusion that the prosecution has failed to establish the charge against the Appellant. Hence, we allow this appeal and acquit him. The impugned judgment dated 12-09-2013 passed by the learned Judge, Anti-T errorism Court-I, Gujranwala, is set aside. The Appellant shall be released forthwith if not required to be detained in some other case. Wharton's Criminal Evidence, 12th Ed., V ol. 2, section 393, p. 130 See Mumtaz Hussain v . The State and another ( 2019 MLD 625 ) Sarfraz Khan v . The State and 2 others ( 1996 SCMR 188 ) Tahir Javed v . The State ( 2009 SCMR 166 ) Rasab Khan v. The State (2003 SCMR 1385 ) and Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274 ) See note 3 Sh. Muhammad Amjad v . The State ( PLD 2003 SC 704 ) Sajid Mumtaz and others v . Basharat and others ( 2006 SCMR 231 ) See note 8 Rasab Khan v . The State ( 2003 SCMR 1385 ) See note 8 See note 8 See note 7 See note 7 See note 7