SADIQ MAHMUD KHURRAM, J. Mohsin Abbas son of Muhammad Anwar (convict) was tried by the learned Additional Sessions Judge, Rawalpindi along with Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain (since acquitted), the co-accused of Mohsin Abbas (convict), in case FIR No. 279 of 2015 dated 04.12.2015 registered at Police Station Kallar Syedan, District Rawalpindi in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Imran Qurban son of Qurban Ali (deceased). The learned trial court vide judgment dated 28.11.2017 convicted Mohsin Abbas son of. Muhammad Anwar (convict) and sentenced him as infra: Mohsin Abbas son of Muhammad Anwar: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Imran Qurban son of Qurban Ali (deceased) and directed to pay Rs.200,000/- 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 simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead.
Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of Mohsin Abbas (convict) was however acquitted by the learned trial court.
2. Feeling aggrieved, Mohsin Abbas son of Muhammad Anwar (convict) lodged Criminal Appeal No.1094 of 2017 against his conviction and sentence. The learned trial court submitted Murder Reference No.101 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Mohsin Abbas son of Muhammad Anwar. The complainant of the FIR namely Qurban Ali filed Criminal Appeal No. 43 of 2018 seeking to set-aside the acquittal recorded of Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co- accused of Mohsin Abbas (appellant).We intend to dispose of the Criminal Appeal No.1094 of 2017, Criminal Appeal No. 43 of 2018 and Murder Reference No.101 of 2017 through this single judgment.
3. Precisely, the facts' of the prosecution case as disclosed in the statement of Qurban Ali son of Sawar Khan (PW-9) are as under:- "Stated that on 3.12.2015, at about 7.00 p.m. I was present in my house at Sahib Dhamyal village along with other family members. Meanwhile, some body called my son Imran Qurban deceased on cell No. 0303-5308839 and asked him to come to Shah Bag. Then my son Imran Qurban told me and went to Shah Bagh on his motorcycle 125 bearing No.R1R/3902 black color. We slept and awoke on the next morning but found that Imran Qurban had not returned to house. I then made calls upon cell phone of my deceased son. Despite rings, no body received the calls. At 9.00 a.m.
Asad son of Manzoor ul Haq, resident of our village, came to our house and told me that lmran Qurban has been murdered by someone and his dead body is lying in fields near Shah Bagh. 1 along 'with Ehsan ul Haq and Naeem then proceeded to Shah Bagh where several persons were gathered. The dead body of my deceased son Imran was lying in the fields and several firearm injuries were present upon his body. His mobile phone was lying near him. Then police reached at the spot and I recorded my statement EX. PM before the police which bears my signatures EX.PM/2. The dead body was then shifted to hospital for post mortem.
On 4.12.2015, 1 recorded my supplementary statement before the police wherein I mentioned seats of the injuries/wounds on the body of my deceased son Imran Qurban. I also received dead body of deceased son after post mortem examination vide receipt EX. PW. Investigating Officer also recorded my statement.
On 18.12.2015, I made my supplementary statement before the police wherein I nominated accused Mohsin Abbas and Muhammad Ali Ramzani present in the court and I also mentioned Cell Phone numbers of accused Mohsin Abbas 0301-2934498 and that of accused Muhammad Ali Ramzani 0303-5023248 as last call on cell number of my deceased son 0303-5308839 was made by Mohsin Abbas accused present in the court and asked my son to come out of the house.
Investigating Officer also recorded my statement.
On 14.1.2016, I along with Ehsan ul Haq joined the investigation in the Police Station before the Investigating Officer where accused Muhammad Ali Ramzani was being interrogated in our presence. Accused Muhammad. Ali Ramzani present in the court made disclosure that he along with his co-accused Mohsin Abbas present accused had committed the murder of deceased Imran Qurban through firearm and further that he could lead to the recovery of Pistol 30 bore. On this, accused led the police party and the PWs to Tareel graveyard near Shah Bagh and got recovered Pistol 30 bore P-18 from Tareel graveyard after removing slabs of stones which was wrapped in blue colour shopper on his own pointation and produced the same before the Investigating Officer who took the same into police possession vide recovery memo EX. PT. attested by me and Ehsan ul Haq. Investigating Officer also recorded my statement."
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 Mohsin Abbas son of Muhammad Anwar along with Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 15.02.2016, 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 fourteen witnesses. Muhammad Sohail (PW-12) stated the facts as reproduced in paragraph No.3 of the judgment Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) stated that on 22.12.2015 at about 7.00 p.m Mohsin Abbas son of Muhammad Anwar, the appellant and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted), confessed to have murdered the deceased and both the witnesses told the said fact to Qurban Ali (PW-9), the complainant of the FIR. Jamil Shah 4330/C (PW-2) stated that on 04.12.2015, the Investigating Officer handed over to him two sealed parcels said to contain blood stained earth and empties and he was also handed over the last worn clothes of the deceased, motorcycle of the deceased and mobile phones by the Investigating Officer Jamil Shah 4330/C (PW-2) further stated that on 31.12.2015, he handed over the two sealed parcels said to contain blood stained earth and empties to Abdul Majeed, SI (PW-13) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Jamil Shah 4330/C (PW-2) further stated that on 05.01.2016, the Investigating Officer of the case, handed over to him a mobile phone, a SIM card and Rs.250/- recovered from Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted and on the same day the Investigating Officer handed over to him a mobile phone, a SIM card and Rs. 300/-recovered from Mohsin Abbas (appellant). Jamil Shah 4330/C (PW-2) further stated that on 14.01.2016, the Investigating Officer handed over to him two sealed parcels said to contain pistols which on 20.01.2016 he handed over the two sealed parcels said to pistols to Abdul Majeed, SI (PW-13) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Naeem Akbar, 6157/C (PW-3) stated that on 05.01.2016 a mobile phone, a SIM card and Rs.250/- were recovered from Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain the co-accused of the appellant (since acquitted) and on the same day a mobile phone, a SIM card and Rs. 300/- were recovered from Mohsin Abbas (appellant). Muhammad Naeem (PW-4) stated that on 04.12.2015, the Investigating Officer took into possession blood stained earth and empties from the place of occurrence and he further stated that during the search of the dead body of the deceased a mobile phone (P-6), two SIM cards (P-7 and P-8), white coloured shirt (P-9) and motorcycle (P-10) of the deceased were also recovered. Qazi Nayar Iqbal, patwari (PW-5) prepared the site plan of the place of occurrence (Exh.PK). Saboor Khawar 7084/C (PW-6) stated that on 03.01.2016 he collected Call Data Record relating to the phone numbers of the deceased, Mohsin Abbas son of Muhammad Anwar (appellant ) and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted) which was taken into possession by the Investigating Officer through recovery memo (Exh. PL/1-52) and on 05.01.2016 the Investigating Officer arrested Mohsin' Abbas son of Muhammad Anwar (appellant) and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted). Muhammad Ashraf (PW-7) stated that on 14.01.2016, Mohsin Abbas son of Muhammad Anwar (appellant) led to the recovery of pistol 30 bore (P-9). Zahid Raza, (PW-10) stated that on 06.01.2016 Mohsin Abbas son of Muhammad Anwar (appellant) and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted) pointed out the place of murder of the deceased. Abdul Majeed, SI (PW-8) investigated the case from 04.12.2015 till 26.01.2016, arrested the appellant on 05.01.2016 and narrated the facts of his investigation in his statement before the learned trial court.
6. The prosecution got examined Dr. Muhammad Mazahir Alam (PW.-1), who on 04.12.2015 was posted as Medical Officer at THQ, Hospital Kallar Syedan and on the same day conducted the postmortem examination of the dead body of Imran Qurban son of Qurban Ali (deceased ). Dr. Muhammad Mazahir Alam (PW.-1) observed as under:- "Examination of Neck Healthy and intact. Description of injuries. i Entry wound measuring 0.5 x 0.5 cm, 4 cm medial to left nipple at same level. ii Exit of wound No.1, 0.5x0.5cm back of chest mid point at the level of T-11 and T-12 iii. Entry wound measuring 0.5x0.5 cm on right side 4 cm lateral and 01 cm below the level of umbilicus. iv Exit wound of wound No.3 is 0.5x0.5 cm in right lumber region 5 cm right to mid line. v Entry wound 0.8x0.5cm with burning of 02cm x lcm in left iliac fossa 10 cm away from umbilicus. vi Exit wound of No.5 is measuring 4x3cm supra public region on right side. vii. Entry wound measuring 1.5xlcm with burns 5 cm below inguinal ligament on right thigh. viii. Exit wound of No.7 measuring 1.5cm x 1.5 cm, 6 cm lateral and 1.5 cm below the level of wound No.7 on right thigh. ix Entry wound measuring 1.5 x 1.5cm on lateral aspect of left thigh,14cm from left knee joint. x. Exit wound of No.9 measuring 1.5x1.5cm in front of left thigh,17 cm from knee joint. xi Entry wound 1.5 x 1.5 cm approximately in middle of lower leg Right leg. xii Exit wound of No.11 measuring 4x2.5cm with fracture of Tibia/fibula on right lower leg on medial side.
Opinion.
In my opinion death occurred due to cardio-pulmonary arrest caused by extensive hemorrhage.
Both internal and external leading to irreversible hypo volumic shock. Injuries are inflicted by firearm weapon and ante-mortem in nature and sufficient to cause death in ordinary course of nature. Probable time of death between injuries and death was within minutes. Probable time between death and postmortem was 10 to 18 hours approximately".
7. On 07.08.2017 the learned ADPP gave up prosecution witness namely Khurram Nawaz as being unnecessary, on 25.10.2017, the learned ADPP gave up prosecution witnesses namely Ehsan ul Haq, Ch. Muhammad Waseem and Muhammad Khan on 31.10.2017 the learned ADPP gave up prosecution witnesses namely Mehrban Khan as being unnecessary and Asad as being won over and on 06.11.2017 the learned ADPP gave up prosecution witness namely Ghulam Abbas 7317/C as being untraceable. On 08.11.2017, the learned ADPP closed the prosecution evidence after tendering the report of the Punjab Forensic Science Agency, Lahore (Exh.PY) regarding the analysis of the pistol recovered from the appellant Mohsin Abbas and the empties recovered and the report of Punjab Forensic Science Agency, Lahore (Exh.PZ) regarding the analysis of the blood stained earth.
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Mohsin Abbas son of Muhammad Anwar 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 namely Mohsin Abbas son of Muhammad Anwar opted to get himself examined under section 340(2)
Cr.P.C.and got examined Muhammad Hafeez (DW-1), Atif Ali (DW-2) and Mazhar Hussain (DW-3) in his defence.
9. On the conclusion of the trial, the learned trial court 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 fore the appellant submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible an reevant evidence. The earned 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 Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased was murdered by the appellant who had confessed to the said crime before the witnesses. The learned Deputy Prosecutor General further argued that the recoveries from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case.
Lastly, The learned Deputy Prosecutor General prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.
13. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent that in the instant 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 known as indirect evidence, is an exception to above principle. The requirement of proof in such cases, based on circumstantial evidence only, is that every link has to be proved by good and convincing evidence. 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.
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 deceased. From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the extra-judicial confession, recovery of incriminating material i.e. recovery of pistol (P-9) and the Call Data Record. Firstly, we shall deliberate upon the evidence of extra-judicial confession. The prosecution has examined Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) to prove the extra-judicial confession allegedly made by the appellant in this case who got recorded their statements and stated that on 22.12.2015 at about 7.00 p.m. Mohsin Abbas son of Muhammad Anwar, the appellant and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted),came to the shop of Zaheer Nawaz (PW-11) and confessed to have murdered the deceased and both the witnesses told the said fact to Qurban Ali (PW-9), the complainant of the FIR. One finds it hard to understand as to why the appellant 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 deceased namely Imran Qurban son of Qurban Ali had been missing from his house since 03.12.2015, his body was recovered on 04.12.2015 and the FIR (Exh.PM/1) had been registered on 04.12.2015 against unknown persons. 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. Moreover, according to the witnesses namely Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12), Mohsin Abbas son of Muhammad Anwar, the appellant and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the appellant (since acquitted) requested them to arrange pardon for them from the legal heirs of the deceased. Admittedly, both Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) 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 the said extra-judicial confession in spite of the fact that he was allegedly present in their company of his own volition, in a shop. Both the witnesses Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) were so nave that they let the appellant leave the shop without making any effort to apprehend him or his co-accused. Imran Qurban (deceased ) happened to be related to both the witnesses Zaheer Nawaz (PW-11) and Muhammad Tariq (PW- 12) but they did not react at all to the confessional statements of the appellant and his co-accused and calmly saw them leaving, without even moving an inch. Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) have not mentioned in their statements that the accused had some weapon when they visited them to confess their guilt about the murder of Imran Qurban (deceased) which could have precluded the said witnesses from apprehending the appellant and his co-accused. This conduct of Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) was not natural in the circumstances. These peculiar facts speak volumes regarding the lack of veracity in the statements adduced by Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) and also shows their unusual behavior and the same was otherwise contrary to the normal 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 witnesses Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) before whom the alleged extra-judicial confession was made, was such that they barely knew the accused before the alleged confession and both Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) were neither close confidants of the accused in any manner or said to be sharing any habit or association with the accused. Both the possibilities of confessing the crime for the purpose of boasting and ventilating in the circumstances are excluded from consideration. Another reason to reject the statements of Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) is that according to these witnesses, after the alleged confession of the appellant and his co-accused, they both told the said fact to the complainant of the case namely Qurban Ali on the same day. Muhammad Tariq (PW- 12) during cross-examination stated that they told the fact of the confession of the appellant before them to Qurban Ali (PW-9), the complainant of the FIR, within one hour of making of the same. However, we have gone through the statement of Qurban Ali (PW-9) the complainant of the FIR and the father of the deceased and find no mention in his statement that both the said witnesses namely Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) ever told him regarding the said confession of the accused on 22.12.2015. We have reproduced the statement of Qurban Ali (PW-9) in paragraph No.2 of the judgment and a perusal of the same reveals that he did not vouch for the statements of both the said witnesses namely Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12). Even during the cross-examination , Qurban Ali (PW-9) never stated that he was told about the confession of the appellant and his co-accused by the witnesses namely Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) on 22.12.2015 or even thereafter. Contrary to what was stated by Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12), Qurban Ali (PW-9), during cross- examination had a different story to tell and stated as under:- "The accused were identified/traced by their mobile data and then they confessed their guilt before the police.
The accused confessed their guilt before the police on 14.01.2016 at 10.00 a.m. at police station.
An overwhelming analysis of the prosecution evidence with regard to extra-judicial confession we have come to the conclusion 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 Zaheer Nawaz (PW-11) and Muhammad Tariq (PW-12) about the extra-judicial confession of the appellant seems improbable. Even otherwise, extra-judicial 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 extra-judicial 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. 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 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 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 witnesses 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 placing 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 extra-judicial 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.
14. The learned Deputy Prosecutor General has vehemently argued that the disclosure of the accused made at the time of the recovery of the pistol 30-bore (P-9) 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 accused 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 40 of the Qanun-e-Shahadat Order, 1984 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 22.12.2015, the dead body had already been recovered on 04.12.2015, whereas the said recovery of pistol 30-bore (P-9) was effected on 14.01.2016. No new information was made available to the prosecution on 14.01.2016 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 pistol 30-bore (P-9) cannot be read in evidence and would remain inadmissible.
Similarly, the statements of the witnesses that on 06.01.2016 Mohsin Abbas son of Muhammad Anwar (appellant) and Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co- accused of the appellant (since acquitted), pointed out the place of murder of the deceased is also not relevant as no new fact was discovered in consequence of that said pointing out and already the place of occurrence was in knowledge of the witnesses since 04.12.2015. The august Supreme Court of Pakistan in the case of Fazal Subhan and another v. The State and others (2019 SCMR 1027) has enunciated the following principle:-- "Memo of pointing out of place of occurrence cannot be equated with disclosure within the contemplation Article 40 of the Qanun-e-Shahadat Order, 1984."
15. The learned Deputy Prosecutor General has also relied upon the recovery of the pistol 30 bore (P-9) made from the appellant. Regarding the recovery of the pistol 30 bore (P-9) from the appellant namely Mohsin Abbas, the same cannot be relied upon as the fact remains that Investigating Officer of the case did not join any witness of the locality during the recovery of the said pistol 30-bore (P-9) from the appellant which was in clear violation of section 103 of the Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. Muhammad Ashraf (PW-7), the witness, in whose presence the alleged recovery of pistol 30-bore (P-9) was made, was related to the complainant as his uncle.
Muhammad Ashraf (PW-7) further admitted that his house was situated at a distance of four kilometers from the place of recovery. Muhammad Ashraf (PW-7) further admitted that the Investigating Officer did not ask any person resident of the area surrounding the place of recovery despite the fact that many of them had gathered there at the said time. The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others v. The State" (2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard."
16. The prosecution has also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilt of the appellant.
According to the statement of Qurban Ali (PW-9), his son received a call of someone and then left his house. During the investigation of the case or before the learned trial court Qurban Ali (PW-9) failed to produce any recording of the of the call which his son had received on his cell phone from the said unknown caller. No voice record or its transcript has been brought on record. During cross- examination Qurban Ali (PW-9) stated as under:- "My deceased son left the house on 03.12.2015 at 7.00 p.m. I have no knowledge that who had made telephonic call to him at that time."
This portion of cross-examination clearly establishes that the appellant was not identified as being the caller of the call received by the deceased. It is also a fact that the mobile phone (P-6), two SIM cards (P-7 and P-8), white coloured shirt (P-9) and motorcycle (P-10) of the deceased were recovered on 04.12.2015. According to Qurban Ali (PW-9) when he reached at the place where the dead body of his son was present, the above mentioned articles including the mobile phone (P-6) were also lying near the dead body. Qurban Ali (PW-9), prior to the registration of the FIR, was in the possession of the mobile phone (P-6) and should have mentioned the number from which the deceased had received the last call while getting the FIR recorded. Furthermore, neither Qurban Ali (PW-9) had heard the conversation between the deceased and the caller nor the deceased had told Qurban Ali (PW-9) regarding the identity of the maker of the call received by the deceased prior to leaving his house. Additionally, the Investigating Officer of the case, already had taken into possession the said mobile phone (P-6) belonging to the deceased on 04.12.2015, however, no statement was recorded of any witness till 18.12.2015 that the data retrieved from the said mobile phone (P-6) reflected that the appellant had called the deceased from his phone number asking the deceased to come out of the house. This delay is indicative of the bereft nature of the statement made by Qurban Ali (PW-9) on 18.12.2015 before the Investigating Officer of the case, that the appellant had called his son out from the home. In this manner, there is no reliable evidence available on record to prove that it was the appellant who had made the last call to the deceased. It is also stressed again that in absence of any voice call data or record, simply the production of the Call Data Record without the disclosure of the detail of the conversation is not relevant to prove any fact supporting the prosecution case against the appellant. Considering the above mentioned facts in the given circumstances discussed 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 v. 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."
17. The plea of the learned Deputy 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 v. The State (PLD 1991 SC 447).
18. In view of the above we are of the considered opinion that the 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 v. 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 oil 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 v. 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."
19. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Mohsin Abbas son of Muhammad Anwar (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 v. 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 person be convicted". Reliance in this behalf can be made upon the cases 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 v. 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 of 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 the 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."
20. For what has been discussed above, Criminal Appeal No.1094 of 2017 lodged by Mohsin Abbas son of Muhammad Anwar (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 28.11.2017 are hereby set-aside. The appellant namely Mohsin Abbas son of Muhammad Anwar is ordered to be acquitted. Mohsin Abbas son of Muhammad Anwar (appellant) is directed to be released forthwith if not required in any other case.
21. Pursuant to the discussion made and conclusions arrived at above, the Criminal Appeal No. 43 of 2018 seeking to set-aside the acquittal recorded of Muhammad Ali Ramzani alias Jhoolay Lal son of Mazhar Hussain, the co-accused of the Appellant (since acquitted) is hereby dismissed.
22. Murder Reference is answered in Negative and the death sentence of Mohsin Abbas son of Muhammad Anwar is Not Confirmed.