ALI ZIA BAJWA, J.---Allah Ditta son of Muhammad Shafi, caste Parhar Labana, resident of Chak No.55/A, Liaquatpur, District Rahim Yar Khan (`appellant') being involved in case FIR No.27/2016, dated 31.03.2016, registered under Sections 302 and 34 of Pakistan Penal Code, 1860 (`P.P.C.') at Police Station Derawar, District Bahawalpur was tried by the learned Additional Sessions Judge, Bahawalpur, who vide judgment dated 29.05.2017 convicted and sentenced him in the following terms:- Under Section 302(b), P.P.C., sentenced to undergo imprisonment for life on two counts for committing Qatl-i-Amd of Mst. Bashiran Bibi and Mst. Mehreen Bibi deceased with the direction to pay Rs.3,00,000/- as compensation on two counts to the legal heirs of the deceased as provided under Section 544-A, Cr.P.C. and in case of default thereof, to further undergo S. I. for six months on each default. Both the sentences inflicted upon the appellant were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended in his favour. The appellant has assailed his conviction and sentence by preferring the instant appeal.
Factual Matrix
2. The brief facts of the prosecution case as narrated by Malook Ahmad complainant (PW-1) in his written application (Exh.PA), on the basis of which formal FIR (Exh.PA/1) was lodged, are that his sister got married with the appellant 26/27 years ago as a result of exchange marriage (Watta Satta) and out of that wedlock, four sons and six daughters were born. That the appellant and his sister used to quarrel with each other on domestic issues. That on 30.03.2016, at 9:00 a.m. the appellant, his sister Bashiran Bibi (deceased) along with their three daughters namely Shalo aged six years, Samina aged four years and Mehreen aged three years (deceased) while riding on donkey-cart in presence of Ghulam Qadir and Hazoor Bakhsh (PW-5) went towards Chak No.183/DNB for fetching grass for the cattle. Thereafter, when only Shalo and Samina returned with donkey-cart, they felt worried and went in their search, but Mst. Bashiran Bibi and Mehreen could not be found. On 31.03.2016, at 2:15 p.m. his brother namely Moaj Ali telephonically informed him that swollen dead body of Mst. Bashiran Bibi oozing foul smell was lying in cluster of acacia trees near Abbasia canal, whereupon he along with witnesses reached there. Complainant had strong suspicion that his sister was murdered by the appellant along with his two unknown accused persons through strangulation.
Proceedings before Investigating Agency
3. Irshad Haider Bukhari Inspector (PW-15) on receipt of information about presence of a dead body reached at the spot, where the complainant presented before him written application (Exh.PA). He dispatched that application to police station for registration of FIR (first information report). He recorded statements of witnesses under Section 161, Cr.P.C., inspected the dead body, prepared her injury statement (Exh.PH), inquest report (Exh.PJ) and sent the dead body through Shafqat Hussain 1562/C to THQ Hospital Yazman for postmortem examination. He also prepared rough site plan of place of occurrence (Exh.PN). After postmortem examination, he took into possession last worn clothes of deceased Mst. Bashiran Bibi vide recovery memo. (Exh.PE).
Subsequently, the complainant got recorded his supplementary statement on 14.04.2016 to the effect that he came to know that on 02.04.2016, the officials of Rescue-1122 after picking up dead body of a girl from Abbasia canal handed over the. same to Incharge Police Post Tallaywala, who after getting conducted her postmortem buried her. On that information, the complainant and witnesses met Liaquat Ali Sub-Inspector (PW-14) of aforesaid police post and identified snaps and last worn clothes as that of his maternal niece Mehreen Bibi deceased. In the said supplementary statement, he also implicated another accused namely Muhammad Khan. In this regard, I.O. recorded statement of Liaquat Ali Sub-Inspector under Section 161, Cr.P.C. and took into possession her last worn clothes vide recovery memo. (Exh.PC).
On 20.04.2016, the I.O. recorded statements of witnesses namely Muhammad Siddique and Ghulam Nabi. Appellant was arrested on 22.04.2016 and on 26.04.2016 in pursuance of his disclosure got recovered Chadar (weapon of offence), which was taken into possession vide recovery memo.
(Exh.PO). He also prepared memo. of pointation of alleged place of occurrence (Exh.PP) on the pointation of the appellant. On 27.04.2016, on the pointation of prosecution witnesses, Saeed Akhtar (PW.9) prepared scaled site plan of place of occurrence (Exh:PF and Exh:PF/1) and in this respect his statement under section 161, Cr.P.C. was also recorded by the I.O. During the course of investigation, the appellant was found involved in the commission of crime, therefore, his name was placed in column No.3 of the report prepared under Section 173, Cr.P.C. and same was submitted before the learned trial court through prosecution for trial.
Proceedings before the Trial court
4. After submission of report under section 173, Cr.P.C., learned trial Court formally indicted the appellant on 02.09.2016, to which he pleaded not guilty and claimed trial. Prosecution, in order to establish its case against the appellant, produced as many as 17 (seventeen) prosecution witnesses.
5. The prosecution examined the complainant as PW-1 and his brother Moaj Ali as PW-2.
Muhammad Siddique (PW-3) and Ghulam Nabi (PW-4) are the witnesses before whom the appellant allegedly made extra judicial confession. Hazoor Bakhsh (PW-5) is the witness of last seen. Khalil Ahmad (PW-13) saw the appellant while throwing a girl aged 4/5 years in Canal. Zahoor Ahmad ASI (PW-6) drafted formal FIR (Exh.PA/1). Saeed Akhtar (PW-9) prepared scaled site plan of place of occurrence. Medical evidence in this case has been furnished by Dr. Tehreema Khan (PW- 11) and Dr. Sana Faisal (PW-17). Liaquat Ali Sub-Inspector (PW-14) completed proceedings under Section 174, Cr.P.C. after recovery of dead body of a girl, which was identified as the dead body of Mehreen deceased. Irshad Haider Bukhari Inspector (PW-15) is the Investigating Officer of this case.
Statements of rest of the prosecution witnesses are, more or less, formal in nature.
6. After completion of the prosecution evidence, statement of the appellant as envisaged under Section 342, Cr.P.C. was recorded by the learned trial court wherein he maintained his innocence and pleaded false implication in the case. Neither the appellant produced any evidence in his defence nor opted to appear as his own witness on oath as required under Section 340(2), Cr.P.C.
Upon completion of trial, the learned trial court found case against the appellant to have been proved beyond reasonable doubt, thus, convicted and sentenced him as mentioned and detailed above.
7. Arguments heard, record perused.
Evidence before this Court
8. In this unfortunate occurrence, Mst. Bashiran Bibi sister of the complainant along with her minor daughter namely Mst. Mehreen Bibi were allegedly murdered by the appellant. Prosecution case mainly hinges upon evidence of Khalil (PW.13) who saw the appellant throwing a girl aged 4/5 years in Canal as well as Circumstantial evidence consisting of last seen evidence, recovery of dead bodies, pointation of place of occurrence, extra judicial confession allegedly made by the appellant before the witnesses, medical evidence, recovery of Chadar and motive. I would like to weigh the evidence available on the record to determine whether it is sufficient enough to hold the appellant guilty.
Evidence of Throwing the Deceased Mehreen in Canal
9. Crime was reported to police in this case on 31.03.2016 at 9 p.m. and FIR was registered on the complaint of Malook Ahmed (PW.1), who is real brother of deceased Bashiran Bibi. The first piece of evidence which needs to be considered is deposition of Khalil Ahmed (PW.13) who stated as under: "Stated that on 30.3.2016 at about 12.00 noon I was going on bank of a Canal and at that time I saw Allah Ditta accused throwing a girl into the canal. The girl was aged about 04/5 years who was wearing black colour shirt and blue colour Shalwar. At that time Abid Hussain PW was also with me.
We were on a Motorcycle. Seeing this, we became perplexed and went away."
According to crime report on 30.03.2016 appellant took Bashiran Bibi, Shalu aged 6 years, Samina 4 years and Mehreen 3 years with him on a donkey cart for fetching grass. Shalu and Samina came back with donkey cart without appellant, deceased Bashiran Bibi and her daughter Mehreen.
According to statement of Khalil (PW.13) he saw the appellant throwing a girl in canal (allegedly Mehreen) on 30.03.2016, when he was going with Abid Hussain. Abid Hussain is son of Moaj Ali (PW.2), nephew of deceased Bashiran Bibi and cousin of deceased Mehreen. It is very astonishing that such episode of throwing a girl in canal is not mentioned in the crime report because it is an admitted fact that Abid Hussain lives with his father. Relevant part of statement of Mouj Ali (PW.2) has been reproduced hereinafter: "Abid Hussain PW is my son. He is a married man. He is residing with me. He has been married in the house of his uncle in Chak No.10. Abid Hussain is a labourer. On the day of the occurrence, was present in my house. Hazoor Baldish PW was also present with me in my house. At that time Abid Hussain was not present in my house who had gone for his labour in the morning. He went for labour with Khalil in a forest. My son Abid Hussain and Khalil used to work on daily wages."
Aforementioned part of the statement of Mouj Ali transpires that Abid Hussain used to live with him at the time of occurrence and work as daily wager with Khalil PW. It is astonishing that he did not recognize his cousin Mehreen Bibi allegedly thrown in the canal by his Uncle (appellant). It also becomes highly doubtful that despite of seeing appellant throwing deceased Mehreen in Canal, he did not stop and try to rescue her. Prosecution has no justification that why such fact is not mentioned in the crime report despite same being registered on the following day i.e. 31-03-2016 at late hours, especially when he is living with his father, who was actively searching for his sister Bashiran Bibi along with other prosecution witnesses including complainant. Aforementioned circumstances make the evidence of Khalil (PW.13) highly doubtful and unreliable. It is gathered from the facts and circumstances of the case that such evidence was concocted at a belated stage in order to strengthen the prosecution case and it gets support from cross-examination of PW-15/Investigating Officer, who deposed as under: - "Before 14.4.2016 none of the PWs stated before me about the colour of clothes of Mehreen Bibi deceased. Likewise, before 14.4.2016 no one told me that Mehreen Bibi had been thrown in a canal.........Prior to 16.04.2016 Abid and Khalil PWs did not join the investigation."
Rest of the evidence available on the record is circumstantial and it goes without saying that in cases where no direct evidence is available, an accused person cannot be found guilty unless all reasonable hypothesis, which are consistent with his innocence, have been excluded.
Circumstantial evidence should be of such an unimpeachable character that it must be incompatible with the innocence of accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.[1] It would be appropriate to further assess whether a compact chain of circumstantial evidence is available in this case.
Evidence of Last Seen
10. First comes the evidence of last seen relied upon by the prosecution to ensure the conviction of appellant. Admittedly complainant of this case is not the witness of deceased having last seen alive in the company of appellant. Evidence of last seen was furnished by Hazoor Baksh (PW.5) who stated that: "On 30.3.2016 L and Ghulam Qadir were present in the house of Allah Ditta accused at 09.00 'clock, Allah Ditta accused along with Mst. Bashiran and their daughters Mehreen, Shaloo and Samina were going to Chak No.183/DNB for cutting grass on a donkey-cart. At the evening time, Samina and Shaloo came back on the donkey-cart but Allah Ditta accused, Mst. Bashiran and Mehreen did not return. We entertained doubt and informed Malook, Mauj Ali and Bakhat Ali whereupon we went for search of Allah Ditta, Mst. Bashiran Bibi and Mehreen."
It would be advantageous to elaborate the concept of 'last seen' and principles governing such evidence to determine the evidentiary value of statement of PW.5. Revered Supreme Court of Pakistan elaborated the concept of last seen in Muhammad Abid[2]the following words: "The theory of last seen together is one where two persons are 'seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death." The last seen theory comes into play where the time-gap between the point of time when the deceased was last seen alive in the company of accused and when the deceased is found dead is so small that possibility of any person other than the accused being the culprit of the crime becomes impossible. Evidence of last seen is considered a weak type of evidence which is not sufficient to sustain punishment in cases pertaining to capital punishment without corroboration from other circumstantial evidence available on the record. Concept of last seen and relevance of close proximity of time and place was elaboratively elucidated by the prestigious Supreme Court of Pakistan in Ahmed Omer Sheikh[3]in the following terms: "Last seen" evidence is merely a circumstantial evidence, and that too a weak type of evidence, which alone cannot sustain the weight of a capital punishment, and would require other independent corroborative evidence to effect conviction. In a case of murder, where the prosecution case rests on "last seen" evidence, then corroboration would be required from other circumstantial evidence; each piece of such evidence would have to be proved to complete the chain, stemming from the accused being "last seen" with the deceased, leading to his death. To achieve this, the prosecution has to prove that the death of the deceased took place in close proximity to the time and place,' where the accused was "last seen" with the deceased. Thus, the evidentiary value of the "last seen" evidence of an accused with the deceased will depend upon the facts and circumstances of each case, and for a court to reach a conclusion of guilt of the accused, such circumstances must not only be proved, but must also be found to be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt."
There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence furnished by the prosecution to eliminate every possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that possibility of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused person. But prosecution remains under the burden to eliminate all the probabilities that deceased could meet another person than deceased in the intervening period i.e. time between last seen alive and death. In Muhammad Abid supra in paragraph No. 6 of the judgment factors need to be considered while relying upon the evidence of last seen were articulated as infra: "The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires I. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime 4. no possibility of third person interference 5. motive. 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime."
The Supreme Court of India in the M. V. Mahesh[4]` observed the principle of close proximity as under:-- "3. ........Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that Beena had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth."
In order to rely upon evidence of last seen prosecution has to prove both proximity between the time when deceased was last seen alive in the company of accused and time of death and of distance between the place where deceased was seen alive with accused and place where his corpse was found afterwards. Reliance can be placed on Sarafraz Khan[5] wherein it was held by the apex Court while discarding the evidence of last seen: "Last seen" evidence was of no consequence as neither the distance between the place of murder and the place where the witness had seen the deceased last with the accused was known, nor the exact duration between the murder and the time when deceased was last seen with the accused was known, and said circumstances of "last seen", therefore, had failed to exclude all hypothesis of innocence of accused"
11. Next crucial question is whether the evidence of last seen is within the remit of Proximity of time between deceased Bashiran Bibi and her daughter Mehreen were last seen alive with appellant and their death. According to the prosecution theory of case, deceased Bashiran Bibi was seen alive with the appellant on 30-03-2016 at 9:00 a.m. and her dead body was recovered on 31-03- 2016 around 2 p.m. According to Dr. Tehreema Khan (PW.11) corpse of Bashiran Bibi was shifted to hospital on 31-03-2016 at 10 p.m. and autopsy was conducted on 01-04-2016 at 9 a.m. after approximately 49 hours of deceased Bashiran Bibi last seen alive in the company of appellant.
According to autopsy report (Ex:PG), what doctor observed has been reproduced hereinafter: External examination It was a deadbody of a female aged about 40 to 45 years, with length 05 feet 03 inches, lying supine on post mortem table, eyes were closed and there was froth coming from both nostrils. Post mortem stainings could not be observed due to skin purification, rigor mortis was absent and body purification was present, whole face was swollen and purified, patecheal haemorrhages could not be observed due to purification. Deceased was wearing Ferozi silk, embroyded shirt and plane Ferozi Shalwar. Both having mud on it and no blood was present. Examination of neck No ligature mark was present around the neck and no ligature mark could be identified on neck and no other marks of violence could be identified on neck due to advance stage of putrefaction. On dissection of neck, underlying tissues were found healthy apparently.
INJURIES "It was a deadbody of a middle-aged female, lying on mortuary table with tongue protuded from mouth and clentehed between teeth, eyes closed, hands semi-flexed, arm semi proned with clothes wearing as mentioned above. Whole body was swollen and purified, skin all over body changed to brown/black colour and pealing off from many places of body and there was also blister formation all over the body. No marks of violence could be identified due to purification."
CRANIUM AND SPINAL CORD Scalp, Membranes, brain and " spinal cord were putrified. Skull and vertebrae were apparently healthy.
THORAX.
Pleurae, right and left lungs, pericardium, heart and blood vessels were purified. Hyoid bone and larynx were taken to rule out any ante-mortem injury. Walls, sternum (manubrium, body, Xiphisternum) Cartilages and ribs were apparently healthy, ABDOMEN All parts of the abdomen were putrified.
Organs of Generation.
Skin pealed off due to advance stage of putrification. Uterus was enlarged upto 12-13 week size.
Baby was present in uterus.
UPPER AND LOWER LIMB No associated findings.
It is an admitted position that advanced signs of putrefaction were observed by Dr. Tehreema Khan (PW.11) who carried out the autopsy of the dead body of Bashiran Bibi. Doctor found the dead body as highly decomposed and had reached an advanced stage of putrefaction. It would not be out of place to discuss putrefaction and its different stages. When a person dies various postmortem changes take place in his body, which consist of pallor mortis, algor mortis, rigor mortis, putrefaction or decomposition and skeletonization. It would be of utmost importance to see what is putrefaction, when it starts and when it reaches to its advanced stage.
Petrification has been defined in recognized book by HWV COX Medical Jurisprudence and Toxicology 7th Edition by PC Dikshit in the following words: "After death, two processes begin which lead to breakdown of the body tissues. The first is autolysis and the second is bacterial putrefaction. Both these processes are commonly included under the terms 'putrefaction' or "decomposition"."
Modi in his celebrated book 'Medical Jurisprudence and Toxicology' 24th Edition Page 345 elaborates putrefaction: "Putrefaction is a certain sign of death. it is a slow process and consists of softening and liquefaction brought about by the digestive action of enzymes, released after death from tissue cells."
Putrefaction consists of many stages and entire process may be modified very markedly by a number of factors which includes temperature, humidity, amount of fluid in the body and the place in which body has been lying since death, therefore, no time scale can be set down for this process.
[6]Tylor[7] writes, while explaining the variation of time in process of putrefaction, that the period of time that the internal temperature of the body remains above 70 F is clearly of paramount importance. Any factor which delays the cooling of the body will therefore hasten putrefaction process. He pointed out following factors which effect the process of putrefaction: "Since the essential processes of putrefaction are dependent upon the presence of organisms and their ferments, any factors which tend to accelerate or retard the multiplication or spread of these organisms will influence the process of putrefaction. Certain factors justify more detailed attention:
1. The temperature of the air to which the body is exposed;
2. The presence of moisture;
3. Presence of clothing;
4. Influence of access of air and of light;
5. The state of the body and cause of death;
6. Immersion in water;
7. Burial in earth."
For further elaboration of aforementioned factors See TYLOR'S Principles and Practice of Medical of Jurisprudence, Pages 148-155.
12. It was observed by the medical expert that in thorax area pleurae, right and left lungs, pericardium, heart and blood vessels were putrefied. It is also stated by the medical officer that whole abdomen of deceased was also putrefied. The abdomen contains many vital organs including stomach, small intestine, large intestine, liver, spleen, gallbladder, pancreas, uterus, kidneys and many blood vessels. Duration of putrefaction of different organs has been provided by different experts on the subject as under: Modi, broadly, classifies internal human organs into two groups, according to putrefactive effects on each organ, those which putrefy soon and those which putrefy late. The relevant portion of his Book "Text Book of Medical Jurisprudence and Toxicology 24th Edition" on Page. 348 has been reproduced as infra: "The rate of putrefaction in the internal organs varies greatly owing to the differences in their structure as regards the muscular and fibrous tissue firmness, density and moisture. The following table shows the order in which the internal organs usually putrefy."
Those which Putrefy Seen Those which Putrefy Late
(a) Larynx and trachea (b)Brain of infants
(c) Stomach
(d) Spleen
(e) Omentum and mesentery
(f) Liver
(h) Gravid uterus(i) Oesophagus
(j) Diaphragm
(k) Heart
(j) Lungs
(k) Kidney
(l) Bladder
(m) Blood vessels
(n) Uterus
(o) Prostate Dr. C.K. Parikh in his book on Medical Jurisprudence[8], has provided the time of putrefaction of different organs as under: "The organs in the first group putrefy in 24-48 hours while those in the second group in 2 to 3 weeks.
Early Putrefaction:
(1) Larynx and trachea (2) Brain and infants (3) Stomach (4) Intestines (5) Spleen (6) Omentum and mesentery (7) Liver (8) Adult brain.
Late Putrefaction:
(9) Heart (10) Lungs (11) Kidneys (12) Bladders (13) Oesophagus (14) Pancreas (15) Diaphragm (16)
Blood Vessels (17) Prostate, testis (18) Non-gravid uterus, ovaries.
In Muhammad Abid[9] while dealing with a case of advanced putrefaction of dead body it was observed by the prestigious Supreme Court of Pakistan that although time of changes varies considerably with temperature and the medium in which the body lies but advanced stage of putrefaction starts within five to ten days. Relevant extract of the judgment has been reproduced hereunder for reference: "The advance stage of putrefaction as described in Post Mortem report begins five to ten days or more."
The physical signs observed on the dead body were such as to suggest decomposition well beyond the point of time of last seen as alleged by the prosecution and discovery of the corpse.
The physical state in which the dead body was found by the medical examiner is inconsistent with the last seen evidence theory i.e. 49 hours before the autopsy. Time of death of deceased Bashiran Bibi is much earlier than what was alleged by the prosecution witnesses of last seen.
13. Furthermore, as per prosecution version, the appellant committed murder of Mst. Bashiran Bibi through strangulation and in this respect, PW-2 and Hazoor Bakhsh (PW-5) deposed that when dead body of Mst. Bashiran Bibi was recovered, they noticed ligature mark around her neck, but Dr. Tehreema Khan (PW-11) who conducted postmortem of the said deceased deposed as under: "No ligature mark was present around the neck and no ligature mark could be identified on neck and no other marks of violence could be identified on neck due to advance stage of putrification (sic). On dissection of neck, underlying tissues were found healthy."
"I am not able to give exact cause of death of the deceased as the body was putrified"(sic).
All what has been discussed above clearly negates the prosecution theory of last seen, hence, such piece of evidence is not believable and cannot be relied upon to uphold the conviction of appellant.
14. The prosecution version qua the recovery of dead body of other deceased namely Mehreen Bibi aged three years is also not free from doubts. Complainant while submitting application (Exh.PB) alleged that her dead body was recovered by officials of Rescue-1122 from Abbasia canal within the area of Mouza Wahid Bakhsh Sial, which was got buried after postmortem and carrying out the proceedings under Section 174, Cr.P.C. by Liaquat Ali Sub-Inspector (PW-14). Admittedly, Mst.
Mehreen Bibi was three years old, however, Dr. Sana Faisal (PW-17), who carried out postmortem examination of said deceased, mentioned her age as seven years in her postmortem report, whereas on her vaginal examination, it was observed that her hymen was torn, hence, in the given circumstances, it is not believable at all that a father subjected his real daughter to rape, which even otherwise is not the case of the prosecution. It is also an admitted position that no official of Rescue-1122 was examined by the prosecution to prove the factum of recovery of dead body of Mehreen deceased. Moreover, prosecution could not prove that the dead body of unknown girl aged 7 years as observed by the doctor at the time of conducting autopsy, was of Mehreen who in all eventualities was about 3 years of age being younger sister of Samina aged 4 years.
Extra Judicial Confession
15. Another piece of evidence which the prosecution relied upon is extra judicial confession of the appellant allegedly made before Muhammad Siddique (PW-3) and Ghulam Nabi (PW-4). Both the PWs failed to describe the actual date, when the appellant approached them. It is not borne out from the record that both the witnesses were influential persons or elders of the complainant party, hence, in absence of any such characteristics, the approaching of the appellant to said witnesses seeking forgiveness from the complainant party is not appealable to man of prudent mind. Had the appellant actually approached PW-3, then why he did not produce him before complainant or at least before Bakhat Ali real brother of the complainant, whose house was adjacent to his residence. Both the PWs candidly admitted during cross-examination that they did not make any effort to apprehend the appellant at that time. Moreover, PW-15/Investigating Officer during cross- examination deposed that prior to 20.04.2016 both the PWs did not join the investigation, which leads to an inference that such evidence was fabricated at a belated stage and cannot be relied upon to sustain the conviction of appellant.
Prestigious Supreme Court in Wajeeh-ul-Hassan[10] observed that evidence of extra-judicial confession is universally regarded as inherently weak evidence which does not present a brighter picture of prosecution case. As evidence of extra judicial confession is a weak type of evidence, which can easily be crafted to strengthen the weak prosecution case, therefore, courts must consider it with abundant caution before relying upon it. In an elaborative judgment of honorable Supreme Court of Pakistan, rendered in Asia Bibi[11] the nature and characteristics of extra judicial confession were explained as infra: "In this regard it is to be noted that this Court has repeatedly held that evidence of extrajudicial 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."
Pointation of alleged place of Occurrence
16. According to Investigating Officer (PW.13) on 26.04.2016 appellant pointed out the place of occurrence and memo. of pointation (Exh:PP) was also prepared by him which was attested by Mouj Ali (PW.2) and Bakht Ali (given up PW). Mouj Ali (PW.2) didn't utter a single word qua that pointation or attestation of any such memo. of pointation. Even otherwise, such pointation of place of occurrence, where dead body was allegedly left by the appellant, is of no avail to prosecution case as it was already in knowledge of investigation agency. In a similar situation in Hayatullah[12] revered Supreme Court of Pakistan observed as infra: "Likewise, the place of occurrence and the place where dead-body was thrown while dragging it from the said place, was already in the knowledge of the police and such pointing out of the place after said disclosure is worthless, irrelevant and inadmissible as the said place was already in the knowledge of the police and a site plan of the same place had already been prepared on 11.02.2006."
The pointation of the place of alleged occurrence cannot be considered as discovery of new fact as envisaged under Article 40 of the Qanun-e-Shahadat, 1984, because same is hit by Articles 38 and 39 of the same statute as the place of occurrence was already known and inspected by the investigation officer. Such pointation is of no avail to prosecution and being inadmissible cannot be considered against the appellant.
Recovery of Chaddar
17. As per statement of PW-15/ Investigating Officer, on 26.04.2016, the appellant in pursuance of his disclosure led to the recovery of Chadar/weapon of offence, which was taken into possession vide recovery memo. (Exh.PO attested by Mouj Ali (PW-2) and Bakhat Ali. It is an admitted position that one of the marginal witnesses of Exh.PO i.e. PW-2 did not utter a single word about such recovery on the pointing out of the appellant rather stated in his examination-in-chief that a knife was recovered on the pointation of appellant. Hence, such recovery remained un-corroborated and the same is of no avail to the prosecution. Recovery, even otherwise, is considered a corroborative piece of evidence and solely cannot be made basis for conviction of an accused.
Motive
18. As per complainant (PW-1), his sister Mst. Bashiran Bibi was married to the appellant 26/27 years prior to the occurrence and out of that wedlock, ten children were born. As per stance of the complainant, the relations between the spouses were not cordial, rather more often quarrel took place between them on domestic issues. In order to prove such fact/motive, the prosecution has miserably failed to lead any evidence. It transpires from evidence of witnesses that some of the children of the appellant were major, but they did not make any complaint regarding rash attitude of the appellant with them or with their deceased mother during investigation. For ready reference, relevant extracts of cross-examination of PW-15/Investigating Officer are reproduced hereinbelow: - "None of the children of Allah Ditta accused appeared and stated before me about ill-treatment of Allah Ditta accused with them and his deceased wife."
In the aforementioned circumstances I have no reluctance to hold that prosecution could not prove motive by furnishing cogent, persuasive and plausible evidence.
Effect of withholding the most natural witnesses
19. As per prosecution theory on 30.03.2016 appellant took Bashiran Bibi, Shalu aged 6 years, Samina 4 years and Mehreen 3 years with him on a donkey cart for fetching grass. Shalu and Samina came back with donkey cart without appellant, deceased Bashiran Bibi and their daughter Mehreen. Neither daughters of the appellant Shalu and Samina were investigated nor were they produced before the trial court, which shall have its own adverse legal consequences. Both these girls were most natural and important witnesses in this case but their evidence was withheld by the prosecution, which by all means leads to adverse inference under Article 129(g) Qanun-e- Shahadat, 1984 that had they been produced they would have not supported the prosecution case.
As far as their capacity to appear as witness is concerned, it was the trial court to determine the competence of those girls as witnesses after applying the 'Rationality test' as elucidated in Raja Khurram Ali Khan[13] by the prestigious Supreme Court of Pakistan. Not producing the most natural witnesses before the trial court also proved detrimental to the prosecution case.
Yardstick to accept Circumstantial Evidence
20. It would not be out of place to observe that in cases of circumstantial evidence, there must be chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. After a detailed and exhaustive analysis of catena of Judgments[14] of apex Court, I am persuaded to observe that in a case of circumstantial evidence in order to sustain the conviction following conditions must be fulfilled: (i) The facts and circumstances from which an inference of guilt is pursued to be drawn, must be established through cogent and convincing evidence of unimpeachable character.
(ii) Those circumstances should be of a conclusive nature having propensity accurately pointing towards the guilt of the accused.
(iii) The entire evidence available on the record when taken cumulatively, should be in form of a chain, which is compact enough to establish that there is no escape from the conclusion that within all probabilities the crime was authored by the accused and none else. It should also be incapable of explanation on any other hypothesis than that of the guilt of the accused by excluding all the hypothesis of his innocence.
Suspicion, however strong, is not the substitute for. proof. There is elongated distinction between "may be true" and "must be true" and the prosecution is under a bounden duty to travel all the way to prove its case beyond reasonable doubt. Circumstantial evidence in present case does not meet the yardstick and standard as expounded by the apex Court, therefore, same does not warrant the conviction of the appellant.
CONCLUSION
21. All the above narrated facts and circumstances, when evaluated on judicial parlance, reflect that the prosecution unquestionably failed to bring on record any convincing/reliable evidence/material to establish that it was the appellant, who committed the alleged occurrence.
It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one circumstance is sufficient to bring suspicion in the mind of the Court and to acquit an accused, not as a matter of grace, but as of right. Respectful reliance in this regard can be placed on the ratio decidendi of the cases of Tariq Pervez v. The State (1995 SCMR 1345), Riaz Masih alias Mithoo v. The State (1995 SCMR 1730), and Muhammad Akram v. The State (2009 SCMR 230). Respectful reliance can also be placed on verdict rendered by prestigious Supreme Court of Pakistan in Najaf Ali Shah[15] wherein it was held as infra: "It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner"
22. In view of all the facts and circumstances as discussed above, this Court is fully convinced that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and learned trial court was not justified to convict the appellant, therefore, while allowing Crl. Appeal No.298-J/2017, conviction and sentence recorded by the learned trial Court are set aside and the appellant is acquitted of the charge, while extending him benefit of doubt. The appellant is directed to be released forthwith if not required in any other criminal case.
1. Sher Muhammad v. R. PLD 1954 Lahore 710; Zahid Hussain v. Crown. (SC) 1969 SCMR 388 and Muhammad Nazir v. Mst. Sairan PLD 1970 SC 56.
2. Muhammad Abid v. The State PLD 2018 SC 813
3. The State v. Ahmed Omer Sheikh 2021 SCMR 873
4. State of Karnataka v. M.V. Mahesh, SCMR (2003) 3 SCC 353
5. Sarfraz Khan v. The State 1996 SCMR 188
6. HWV COX Medical Jurisprudence and Toxicology 7th Edition by PC Dikshit HWV COX Medical Jurisprudence and Toxicology 7th Edition by PC Dikshit
7. TALOR'S Principles and Practice of Medical of Jurisprudence, Page. 148
8. Parkikb's Textbook of Medical Juris-prudence Forensic Medicine and Toxicology, 15th Edition, published by CBS Publishers and Distributors, at Page-164
9. Muhammad Abid v. The State PLD 2018 SC 813
10. Wajeeh-ul-Hassan v. The State 2019 SCMR 1994
11. Asia Bibi v. The State PLD 2019 SC 64
12. Hayatullah v. State 2018 SCMR 2092
13. Raja Khurram Ali Khan v. Tayya ba Bibi PLD 2020 SC 146
14. Naveed Asghar v. The State PLD 2021 SC 600, The State v. Omer Ahmed Sheikh 2021 SCMR 873, Nasir Jawed v. The State 2016 SCMR 1144, Wazir Muhammad v. The State 2005 SCMR 277, Sarafraz Khan v. The State 1996 SCMR 188, Talib Hussain v. The State 1995 SCMR 1538, Barkat Ali v. Kaleem Elahi Zia 1992 SCMR 1047, Rasool Bux v. District Magistrate and Tribunal 1970 PCr.LJ Supreme Court 198 and Allah Ditta v. The State PLD 1958 SC 290.
15. Najaf Ali Shah v. The State 2021 SCMR 736