MUHAMMAD TARIQ NADEEM, J. Syed Ali Akbar, appellant was tried by learned Additional Sessions Judge, Faisalabad in case FIR No.265 dated 25.03.2016 registered under section 302, P.P.C., at Police Station Gulberg,. Faisalabad for causing the murder of Riaz Ahmad and on conclusion of trial, vide judgment dated 25-07-2017, convicted the appellant under section 302(b), P.P.C. and sentenced him to death with direction to pay compensation under section 544-A, Cr.P.C. to the tune of Rs.200,000/- to the legal heirs of deceased, recoverable as arrears of land revenue, in default thereof to further undergo 06-months S.I.
2. Syed Ali Akbar, appellant has challenged his conviction and sentence through Criminal Appeal No.73389 of 2017, whereas learned trial court has submitted Reference under section 374, Cr.P.C. for confirmation or otherwise of the death penalty awarded to Syed Ali Akbar convict, numbered as Murder Reference No.534 of 2017. As both .these matters are outcome of same judgment, we propose to decide these matters through this single judgment.
3. The prosecution story set forth in FIR (Ex.PA/1), chalked out on the written complaint (Ex.PA/2) of Osama Riaz, complainant (PW.9) is that he was resident of House No.P-104, Street No.14, Block-B, Model Town, Faisalabad. That on 24-03-2016 at about 04:00 p.m. his father Riaz Ahmad (since deceased) left his house and went out. When he did not come back till late night, they tried to establish contact on his cell phone but the cell phone was not responding despite the phone was on. They were worried and in that situation the night passed. On 25-03-2016 at about 05:40 a.m. when he (PW.9) after performing his Fajar prayer came out of Jamia Masjid Sohnari, Model Town-B along with his paternal uncle Muhammad Fayyaz and brother Huzaifa Riaz, they found Riaz Ahmad (deceased) fallen on the ground, on the right side of the door of mosque. The blood was oozing from the backside of his head, from his ears as well as below the right side of ribs. They made a call to Rescue 1122 and shifted him to the Allied Hospital in injured condition where his death was confirmed. His father was murdered by some unknown accused persons due to some unknown reason. Hence, the FIR.
4. It is pertinent to mention here that after the registration of FIR, the complainant also got recorded his supplementary statement on 04-04-2016 wherein he nominated Syed Ali Akbar, appellant as an accused in this case with the allegation that he (appellant) committed the murder of his father.
After completion of investigation, report under section 173, Cr.P.C. was prepared and submitted before the learned trial court.
5. On indictment, Syed Ali Akbar (appellant) pleaded not guilty and claimed trial.
6. The prosecution, in order to prove its case, examined thirteen witnesses before learned trial court i.e. Muhammad Shahbaz, ASI (PW.1), Muhammad Jamil Babar, 3931/HC (PW.2), Doctor Ijaz Hussain (PW.3), Waqar Ahmad 3701/HC (PW.4), Aurangzaib, draftsman (PW.5),Muhammad Saleem (PW.7), ,Muhammad Fayyaz (PW.6) and Mst. Kausar Shaheen (PW.8) being, witnesses of last seen evidence, Osama Riaz, complainant (PW.9), Waseem Afzal (PW.10) and Muhammad Abu Bakar (PW.11) being witnesses of circumstantial evidence and evidence of extra judicial confession.
Zulqarnain, SI, Investigating Officer (PW.12), and Abdul Majeed, Inspector, second Investigating Officer (PW 13). The prosecution gave up Huzaifa Riaz and Shah Jahan, PWs being unnecessary and after tendering in evidence certain documents i.e. copy of FIR (Ex.PA/1), copy of complaint (Ex.PA/2), copy of postmortem examination report (Ex. PB), copy of injury statement etc. (Ex.PC), copy of death report (Ex.D), memo. of possession of postmortem report etc. (Ex.PE), copy of mobile phone data (Ex.PF), recovery memo. of mobile phone data (Ex.PG), recovery memo. of motorcycle (Ex.PJ), recovery memo. of churn etc. (Ex.PK), identification memo. regarding amount and mobiles phones (Ex.PK/1), recovery memo. of blood stain cotton (Ex.PL), copy of site plans (Ex.PM. Ex.PN and Ex.PH) and report of Punjab Forensic Science Agency (Ex.PP), closed its evidence.
7. After completion of prosecution evidence, learned trial court went on to record the statement of the appellant as required under section 342, Cr.P.C. wherein he controverted the allegations levelled by the prosecution against him and professed his innocence. While answering to a question, "Why this case against you and why the PWs have deposed against you?, the appellant replied as under:-- "PW are related inter se and deposed against me falsely with mala fide intention to support false prosecution version. I has purchased 7th floor of the building owned by the deceased. The complainant and other family members of the deceased were not happy on the said transaction.
The deceased sustained injury in the road accident in front of the mosque. The driver of the vehicle could not be traced. The complainant with mala fide intention to grab my said 7th floor which I had purchased from the deceased falsely involved me in this case. The complainant party had given colour of murder to the road accident. I am poor person whereas the complainant party is rich and influential persons. They used their influence on police as such, real facts could not be brought on the surface and record... "
The appellant did not opt to make statement under section 340(2), Cr.P.C. to disprove the allegations levelled against him and did not produce any witness in his defence.
8. Upon culmination of trial, the learned trial court found the case against Syed Ali Akbar, appellant to have been proved beyond any reasonable doubt, thus, convicted and sentenced him as Mentioned and detailed in Paragraph No.1 above, hence, this appeal and -connected murder reference before this Court.
9. Learned counsel for the appellant contended that the impugned judgment is against the law and facts of this case, which resulted into grave miscarriage of justice; that the prosecution story is nothing but cock and bull story, which has been engineered by the son of . Muhammad Riaz Ahmad, deceased; that the appellant has been falsely roped in this case due to erratic guess work and malicious intention of alleged witnesses of last seen evidence; that not an iota of tangible evidence is available against the appellant to connect him with the commission of crime, even no direct evidence is available against him and the prosecution case is entirely based on circumstantial evidence, which is admittedly the weakest type of evidence; that the evidence of last seen was maneuvered and the witnesses so produced are not reliable or believable; more so evidence of extra judicial confession is also very weak type of evidence and cannot be relied upon and the same could not have been used against him; that medical evidence is merely a supportive circumstance, which cannot take the place of substantive evidence; that the recoveries at the instance of the appellant and the report of the Punjab Forensic Science Agency are hardly of any consequence being the embroidery of main allegation, which could not be proved by the prosecution, through some concrete evidence; that even the motive subsequently introduced by the prosecution was not successfully proved. Further submits that the prosecution has badly failed to bring home the guilt of the appellant beyond any shadow of doubt but learned trial court ignored all the fallacies of the prosecution case with surprising ease; that the impugned judgment has been passed by the learned trial court without application of judicious mind, which is unsustainable from all corners, hence, prays that the instant appeal may be accepted and the appellant may be acquitted of the charge levelled against him.
10. Conversely learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and inter alia maintains that though no direct evidence is available against the appellant yet the prosecution has proved its case through circumstantial evidence, the chain of which is complete in all respects and has well-connected the appellant with the commission of brutal and ruthless murder of an innocent person; that the prosecution witnesses had no enmity. malice or mala fide against the appellant to falsely implicate him in a case involving capital punishment; that the prosecution version is corroborated by the medical evidence, recoveries at the instance of the appellant and positive report of the Punjab Forensic Science Agency. Lasly, submits that the prosecution has proved its case against the appellant beyond any shadow of doubt, hence, his appeal may be dismissed and murder reference be answered in affirmative.
11. We have heard the learned counsel for the parties, have given anxious consideration to their arguments and have also scanned the record with their able assistance.
12. In the present case, the fact and circumstances of the case suggest that the alleged occurrence had not been witnessed by anyone, however, in order to prove its case, the prosecution has heavily relied upon the circumstantial evidence, which is normally considered as a weak type of evidence.
It is well settled by now that in such like cases, prosecution is required to link each circumstance to the other in a manner that it must form a complete, continuous and unbroken chain of circumstances, firmly connecting the accused with the alleged offence and if any link is missing then obviously benefit is to be given to the accused. Reliance is placed on the esteemed judgments of the Hon'ble of Supreme Court of Pakistan reported as "Muhammad Hussain v. The State" (2011 SCMR 1127) and "Nasir Javed and another v. The State" (2016 SCMR 1144).
13. In an attempt to prove the accusation against the appellant and to form a complete chain of circumstances, the prosecution has relied upon the evidence of last seen, extra-judicial confession, medical evidence, record of the CDR and lastly motive.
14. According to the prosecution story on 24-03-2016 at 04:00 p.m., Muhammad Riaz Ahmad, father of the complainant went out from his house and did not return till whole night; Whereas on 25-03- 2016 at about 05:40 a.m. after the Fajjar prayer, the complainant along with Muhammad Fiaz Ahmad (PW.6) (maternal uncle of the complainant] and Muhammad Huzaifa Riaz (brother of the complainant) found his father in injured condition on the right side of door of mosque, who was taken to the Allied Hospital and the Hospital authorities declared his death. Matter was reported to the police on the same day at 07:40 a.m. within a period of two hours but we have noted that according to the post-mortem report (Ex.PB) death occurred on 25.03.2016 at 07:00 a.m. whereas autopsy on the dead body of Muhammad Riaz Ahmad, deceased was conducted on 25-03-2016 at 02:30 p.m. i.e. with the delay of 71/2 hours after the death. Keeping in view this material discrepancy arising out from the prosecution case, an adverse inference to the prosecution's case can be drawn that the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently, otherwise there was no justification for not dispatching the dead body to the mortuary and providing police papers with such delay. The incidents reported in almost similar kinds have not been endorsed by the Hon'ble Apex Court of the country. Reliance in this regard is placed upon the cases titled as "Irshad Ahmad v. The State (2011 SCMR 1190) "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068), "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192) "Muhammad Yasin and another v. The State through P.G. Punjab and others" (2020 SCMR 1237) and "Khalid Mehmood and anotherv. The State and others" (2021 SCMR 810).
15. We have further noted that on 04.04.2016, Osama Riaz, complainant (PW.9) got recorded his supplementary statement to the Investigating Officer that Mst. Kausar Shaheen and Muhammad Fiaz Ahmed told him that they were present in the house of complainant on '24-03-2016 at about 04:00 p.m. when Ali Akbar, appellant came there and took Muhammad Riaz Ahmad (deceased) along with him, thereafter, complainant's father did not return to home. Subsequently, on 25-03- 2016, he was found in injured condition near the door of mosque. It is noteworthy that the supra mentioned Muhammad Fiaz (PW.6) is witness mentioned in the FIR; whereas Mst. Kausar Shaheen (PW.8) is a mother of Osama Riaz, complainant (PW.9) and widow of Muhammad Riaz Ahmad (deceased). It the supra 'mentioned PWs witnessed Muhammad Riaz. Ahmad (deceased) going from his house in the company of Syed Ali Akbar, appellant then why they had not disclosed this fact to Osama Riaz, complainant (PW.9) before registration of FIR as well as to the Investigating Officer on 25-03-2016. Both the PWs are closely related with each other and also related to Muhammad Riaz Ahmad, deceased. They are C interested witnesses and due to their unnatural conduct they cannot be termed as truthful witnesses. For the reasons, their evidence is not worthy of reliance, therefore, we discard the same. Guidance can be sought from the case of "Zaheer Sadiq v. Muhammad Ijaz" (2017 SCMR 2007).
16. So far as the supplementary statements of Muhammad Fiaz Ahmad (PW.6) and Osama Riaz, complainant (PW.9) are concerned, the Courts have always deprecated such kind of statements, which are made with the purpose to strengthen the case of the prosecution at the behest of the police officials or some other ulterior motives to get the suspect convicted by hook or crook.
Nomination through supplementary statements have always been deprecated and disliked by the Hon'ble Supreme Court and has never been appreciated for the same being afterthought. Here, we would like to refer to the cases of "Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others" (PLD 2016 SC 951) and "Akhtar Ali and others v. The State" (2008 SCMR 6).
17. As far as the first significant piece of evidence in this case i.e. evidence of last seen is concerned, the same came out from the mouth of Waseem Afzal (PW.10) and. Muhammad Abu Bakkar '(PW.11).
Waseem Afzal (PW.10) during his court statement stated that on 24-03-2016, he along with his family went to the house of his relative situated in Model Town B-Block. As per routine, he stayed there due to night fall. At about Fajjar prayer time, he went on the roof top of the building from where he saw that accused All Akbar was hurriedly going to his flat from the roof of his uncle Muhammad Riaz Ahmad (deceased) and the accused was having a large bamboo in his hand after a while he came down the stairs and went outside where he saw that many people were gathered there and Muhammad Riaz Ahmad (deceased)- was lying on the ground in injured condition after falling from the roof.
Similarly, Muhammad Abu Bakkar (PW. 11) has narrated that on 25-03-2016, he went to street No.14 Model Town B-Block to see his friend, who was not available there, so he was coming back to his home. At about 02:15 a.m. when he was coming down from the stairs, he saw that Ali Akbar, appellant was holding/supporting Muhammad Riaz Ahmad and was taking him upstairs. Both the supra mentioned PWs are nephews of Muhammad Riaz Ahmad, deceased. According to Waseem Afzal (PW.10) he met police on 07-04-2016 for the first time when appellant came to the house of Abu Bakar. After attending funeral prayer and till 06-04-2016, he had no contact with the complainant but what to say about his testimony, as said witness during his cross-examination destructively stated that he joined investigation on the first day when FIR was registered. Similarly, Muhammad Abu Bakar (PW.11) did not inform the evidence of last seen to the complainant till 07.04.2016. So the question arises that if they had seen Muhammad Riaz Ahmad, deceased in the company of Syed Ali Akbar, appellant on 25-03-2016 then why they had not disclosed this fact to the complainant and remained mum till 07.04.2016. Even they have not been able to give any plausible reasoning qua their presence at the place of occurrence at the relevant time . In view of above, we are of the considered view that had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the learned trial court, they would have immediately informed the police much earlier. These self-negating and contradictory statements of these witnesses reflect that they are not truthful, rather they are deposing an afterthought, fabricated and concocted story just to create incriminating evidence to strengthen the case of un- witnessed occurrence against the appellant. Even, it is well settled by now that last seen evidence is always considered to be week type of evidence, unless corroborated by some other independent evidence. In this respect, the reference can be made to the cases of "Muhammad Abid v. The State" (PLD 2018 SC 813) and "Fayya z Ahmad v. The State" (2017 SCMR 2026).
18. Next is the evidence of extra-judicial confession allegedly made by Syed Ali Akbar, appellant before 'Waseem Afzal (PW.10) and Muhammad Abu Bakkar (PW.11). According to Waseem Afzal (PW.10), on 07-04-2016, he along with Muhammad Abu Bakar (PW.11) was sitting at his house situated in Model Town A-Block, at about 03:00 p.m., Syed All Akbar, appellant came there and started weeping and said that he had to pay some amount to Muhammad Riaz Ahmad, deceased, who was demanding amount in lump-sum but he could not pay him the full amount, therefore, firstly, he tied up the hands of Muhammad Riaz Ahmad with a rope and then after cutting the tied rope with a Churri threw him down from the top of the building. After throwing, Muhammad Riaz Ahmad (deceased) stuck with a Chappar. He took a bamboo and pushed Muhammad Riaz Ahmad from the said Chappar down to the ground with Bamboo resulting into his death. Similarly, Muhammad Abu Bakar (PW.11) narrated the same facts as deposed by Waseem Afzal (PW.10). The deposition of the aforementioned witnesses of extra-judicial confession when examined reveal that firstly the place chosen by the appellant for such purpose was not at all suitable. Secondly, why the appellant had made extra-judicial confession before such persons who having some authority was expected to do him more harm than good. Both the PWs are nephews of Muhammad Riaz Ahmad (deceased). Waseem Afzal (PW.10) has described in his cross- examination that they did not tried to apprehend Ali Akbar, appellant nor raise any hue and cry, volunteer stated that they were frightened. Same was the reply of Muhammad Abu Bakkar (PW.11).
We have noted that according to the prosecution story when Syed Ali Akbar, appellant made extra-judicial confession before the supra mentioned PWs, he was empty handed then what was the reasoning, they could not have overpowered him. The aforementioned facts certainly raise serious doubt about the veracity of the witnesses and their testimonies are not upto the mark to place any reliance upon it. In such circumstances, we have no option except to hold that the evidence of extra-judicial confession made by Syed Ali Akbar, appellant regarding the incident was fabricated in order to create some circumstantial evidence in this unwitnessed tragedy. In the given circumstances, the evidence of extrajudicial confession does not hear any credibility and that cannot be permitted to render any sort of help to the case of the prosecution. Even otherwise, the evidentiary value of extra judicial confession has been declared a weak type of evidence by august Supreme Court of Pakistan in plethora of judgments including in cases titled as Iniran alias Dully and another v. The State and others (2015 SCMR 155), "Azeem Khan- and another y.
Mujahid Khan and others" (2016 SCMR 274). "Mst. Asia Bibi v. The State and others" (PLD 2019 Supreme Court 64) and "Wajeeh-Ul-Hassan v. The State" (2019 SCMR 1994) and "Gul Muhammad and another v. The State through Prosecutor-General Balochistan" (2021 SCMR 381).
19. Adverting to the medical evidence which is in the shape of statement of Doctor Ijaz (PW.3), who conducted autopsy on the dead body of Muhammad Riaz Ahmad, deceased vide 1 PMR (Exh.PB).
No other trustworthy director, indirect evidence is available against the appellant, which could be supported by the medical evidence. It is well settled by now that the medical evidence may confirm the ocular account with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injury but it cannot connect the accused with the commission of crime. We are fortified with the judgments passed by the Hon'ble Supreme Court of Pakistan reported as "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327) and "Sajjan Solangi v. The State" (2019 SCMR 872).
20. As far as recovery of mobile phone data (Ex.PF) is concerned, which simply depicts the number of caller as well of recipient, location, duration of call and not more than this, even there is no evidence that what was the conversation made between the caller and recipient. It is well settled by now that CDR is not conclusive proof of involvement of accused in the commission of crime.
Reliance is placed upon the case titled as "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 trail that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trail, 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 phones 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"
21. So far as the recovery of motorcycle vide seizure memo. (Ex.PJ) is concerned, no registration number, colour, its company name has been described in the FIR, nor in the supplementary statement of the PWs. In this way, recovery of motorcycle at the pointation of Syed Ali Akbar, appellant is inconsequential and not helpful to the prosecution case. We fortify our view from the dictum laid down in the case titled as "Naveed Asghar v. The State and another" (PLD 2021 SC 600).
22. With regard to the recovery of Churri and Danda vide seizure memo. (Ex.PK), recovery of amount Rs. 77000/-and cell -phones through recovery memo. (Ex.PK/1) are concerned., none amongst these articles connects the appellant with the commission of offence because it is not the case of prosecution that an amount of Rs.77000/- or cell phones were in the possession of Muhammad Riaz Ahmad, deceased when he left his home. Likewise, it is not the prosecution case that Chnrri or Danda were used by the appellant to commit the murder of the deceased; whereas, the evidence qua last seen had already been disbelieved by us due to the reasons mentioned earlier. In that backdrop, supra mentioned recoveries at the pointation of appellant are highly doubtful and not believable. Reliance is placed upon the case law titled as "Ghulam Akbar and another v. The State" (2008 SCMR 1064).
23. Now the only piece of evidence left with the prosecution is the evidence of motive. It is noteworthy that in the FIR (Ex.PA/1) no motive has been described by the prosecution. However, subsequently, the prosecution witnesses while making the improvements introduced motive part that on 21-04-2016 Syed All Akbar, appellant disclosed before Muhammad Piaz Ahmad (PW.6) and one Huzaifa Riaz son of the deceased (given up PW) that he owed Rs.280000/- to Muhammad Riaz Ahmad, deceased, who had repeatedly demanded return of said amount which he was unable to pay back that is why he committed his murder. We have noted that no date, time and place of receiving of Rs.280000/- from Muhammad Riaz Ahmad, deceased by Syed Ali Akbar, appellant has been mentioned nor any witness had been produced in this respect before whom the said amount was handed over to the appellant. No documentary proof has been produced by the prosecution to establish that the above-mentioned amount was outstanding against the appellant. No substantial piece of evidence has been led by the prosecution to prove the motive part of the occurrence. In this way, the prosecution has miserably failed to prove the motive part of the occurrence. Although, the prosecution is not under obligation to establish the motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused.
Reliance is placed upon the cases reported as "Muhammad Ilyas and another v. Ameer Ali and another" (2020 SCMR 305), "Liaqat Ali and another v. The State and others" (2021 SCMR 780), "Najaf Ali Shah v. The State" (2021 . SCMR 736) and Khalid Mehmood and others v. The State and others" (2021 SCMR 810).
24. It is also well established principle of law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In case of "Muhammad Akram v. The State" (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under- - "13....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".
Similar view was reiterated in the case of "Muhammad Imran v. The State" (2020 SCMR 857).
25. As discussed above, there is no direct evidence in this case against the appellant and prosecution case rested upon circumstantial evidence and in such like case every circumstance would link each other and it should form such .a continuous chain that its one end touches the dead body and the other encircles the neck of accused. But if any link of chain is missing, its benefit must be given to the accused. In this regard guidance is sought from the judgment of apex court of the country in the case of "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court of Pakistan as under: - "7 Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of accused. Failure of one link will destroy the entire chain."
So having guidance from the supra referred esteemed judgments when we have a glance over the complete evidence of the instant case, we find so many links missing from the chain of prosecution evidence.
26. For the foregoing reasons, Criminal Appeal No.73389 of 2017 is accepted and Syed Ali Akbar, appellant is acquitted of the charge by extending benefit of doubt to him. He is in jail, be released forthwith if not required in any other case.
27. Murder Reference is answered in negative and the sentence of death awarded by the learned trial court to the appellant is not confirmed.