SARDAR AKBAR ALI, J:- Muhammad Dilawar and Mst. Hina (appellants) were tried by the learned Additional Sessions Judge, Sargodha in a case FIR No.676 of 2019, dated 16.11.2019, offence under Sections 302/201/34 PPC, registered with Police Station Jhaal Chakian, District Sargodha. The learned trial Court vide impugned judgment dated 02.12.2021 convicted the appellants in terms of Section 302(b) PPC and sentenced them to death each for committing the Qatl-i-Amd of Muhammad Munir (deceased). The appellants were also held liable for the payment of compensations as required under Section 544-A Cr.P.C. to the tune of Rs.10,00,000/- (ten lacs only) each to the legal heirs of deceased. The appellants were also convicted under Section 201 PPC and sentenced them to seven years Rigorous Imprisonment each and to pay fine of Rs.25,000/- each and in default whereof to further undergo simple imprisonment for six months each. They were extended the benefit of Section 382-B Cr.P.C.
2. Assailing the above-mentioned conviction and sentence, appellants Muhammad Dilawar and Hina have filed the appeal in hand whereas the learned trial Court has sent Murder Reference No.223 of 2021 for confirmation or otherwise of the appellants' sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
3. Prosecution story, as congregated from the FIR (Exh.PJ) registered on the written application (Exh.PL) submitted by Muhammad Zaheer /complainant (PW-8) before Razzaq Ahmad, ASI (PW- 05) on 16.11.2019 is to the effect that he was resident of Street No.8, Mohallah Siddique Abad, Sargodha. The marriage of his brother Muhammad Munir (deceased) was solemnized with appellant Hina Bibi on 27.07.2019. Hina had illicit relations with appellant Dilawar and his brother Muhammad Munir (deceased) used to forbade both of them but they did not take any heed. On 01.11.2019, there was marriage ceremony of brother of Dilawar and Hina accompanied his deceased husband to attend the wedding ceremony at Fatima Jinnah Colony but Muhammad Munir deceased did not come back till-date. The deceased was searched but he was not traced. He further stated that the appellants along with 2/3 unknown persons had committed the murder of his deceased brother.
Motive behind the occurrence was that Hina Bibi had illicit relations with Dilawar for which the deceased forbidden Hina Bibi but she did not restrain herself and ultimately, the appellants along with 2/3 unknown persons committed the murder of his deceased bother.
4. Muhammad Yar, SI (PW-11) conducted the investigation in this case. On 16.11.2019, he received police file of instant case for investigation through Zaheer Abbas 1745/C (given up). Complainant and his brother Muhammad Khalil (PW-09) were also accompanied with Zaheer Abbas 1745/C.
After that he proceeded to the place of occurrence, where he prepared rough site plan (Ex.PP) on the pointing out of the complainant and PWs and added offence u/s 201 PPC in the instant case. He also recorded statement of Gulsher Khan 470/DFC (PW-6) who escorted the dead body of the deceased to the DHQ, Hospital, Sargodha for postmortem examination on 03.11.2019. On 22.11.2019, he recorded the statement of Naeem Hussain Bhatti, Naib Qasid Municipal Corporation, Sargodha (given up) regarding burial of dead body of the deceased. On 25.11.2019, draftsman handed over to him three copies of scaled site plan (Ex.PM) & (Ex.PM/1). On 05.12.2019, he arrested appellant Hina and on her pointing out, he prepared identification memo of place of occurrence (Ex.PC) attested by Sikandar Hayat 1011/C (PW-03) and Nadia Batool 1716/LC (given up). He produced appellant Hina before the Court of learned Area Magistrate where she got recorded her statement u/s 164 of Cr.P.C. On 08.12.2019 he recorded statements of Muhammad Khalil (PW-09) and Haider Ali (given up) u/s 161 of Cr.P.C regarding extra-judicial confession of appellant Muhammad Dilawar. On 10.12.2019, he arrested appellant Muhammad Dilawar who on 13.12.2019, upon his disclosure and pointing out, led to the place of recovery and got recovered pistol .30-bore P-4 weapon of offence along with purse P-5, watch P-6 and ring P-7 belonging to the deceased from the baithak of his house. He took into possession above said articles through recovery memo (Ex.PL) attested by Gulsher Khan 470/DFC (PW-06) and Ghulam Baho 342/C (given up).
5. The learned trial court after submission of report under Section 173 Cr.P.C. summoned the appellants to face trial. When charge sheeted, the appellants pleaded not guilty and claimed to be tried, whereupon, the prosecution examined 12 P.Ws. Muhammad Zaheer /complainant (PW-8) and Muhammad Khalil (PW-9), deposed about ocular account, Muhammad Khalil (PW-9) is also the witness of extra judicial confessional statement allegedly made by the appellant Dilawar before him and Haider Ali (given up PW). Mr. Hasnat Aslam Gondal (PW-10) is the witness who recorded confessional statement of appellant Hina under section 164 Cr.P.C. Dr. Muhammad Rizwan Ashraf (PW-04) on 03.11.2019 at 08:00 p.m. conducted postmortem examination of deceased Muhammad Munir and observed as under: EXTERNAL EXAMINATION This was dead body of a young male lying flat on mortuary table. Eyes and mouth were burnt. Rigor mortis was fully developed.
EXAMINATION OF CLOTHES The dead body was wearing half white burnt shalwar.
EXAMINATION OF NECK.
No ligature mark seen and second decree burn.
DESCRIPTION OF INJURIES.
Approximately 60% of body was burnt and putrefied. Left side of abdomen was burst and abdominal contents were protruding out.
CRANIUM & SPINAL CORD: Scalp and skull were burnt while rest membranes and brain were healthy. First vertebrae and spinal cord were healthy.
THORAX: Left side of chest was completely burnt (Third degree was burnt). Pleurae. Larynx and trachea, left lung, pericardium and heart, blood vessels all were burnt. The right lung was healthy.
ABDOMEN: Left side of abdominal walls, peritoneum, mouth, pharynx and esophagus were burnt. Diaphragm was ruptured. Stomach and its contents were partially burnt. Pancreas, spleen and organs of generations were burnt while both kidneys and liver were healthy.
UPPER LOWER LIMBS.
Both upper limbs were healthy. Left lower limb was burnt.
In his opinion after receiving report of PFSA, Lahore the cause of death was due to massive burn.
Burn leading to asphyxia cardiopulmonary arrest and death.
Probable time that elapsed between burn and death was not assessed and between death and postmortem about 10 to 12 hours.
Muhammad Yar SI (PW-11) appeared in the dock to give details of his investigation, whereas, the remaining witnesses were formal in nature. On closure of the prosecution case, the appellants were examined under section 342 Cr.P.C. who refuted the prosecution evidence. However, they neither opted to produce any evidence in their defence nor to appear in the witness box as required by section 340(2) Cr.P.C. and the trial ended in the terms as detailed in opening paragraph of this judgment.
6. We have considered the submissions of learned counsel for the appellant as well as learned Assistant Deputy District Prosecutor and have gone through the evidence brought on record with their able assistance.
7. The prosecution case, against the appellants, hinges upon circumstantial evidence and it is imperative to see whether the chain link of different pieces of circumstantial evidence produced by the prosecution during trial is wholesome. The prosecution, in order to bring home guilt of the appellants, relied on ocular account, alleged judicial confession of appellant Hina recorded by Mr. Hasnat Aslam Gondal, Judicial Magistrate Sargodha on 05th December.2019, extrajudicial confession of appellant Dilawar before Muhammad Khalil (PW-09) and Haider Ali PW (Given up) motive, medical evidence, recovery of pistol as well as purse, watch and ring at the instance of appellant Muhammad Dilawar.
8. Muhammad Zaheer/ complainant (PW-8) submitted written complainant (ExhPL) before the police on the basis of which FIR (Exh.PJ) was chalked out stating therein that on 01.11.2019, his brother Muhammad Munir (deceased) in the company of his wife went to attend the marriage ceremony of appellant Dilawar's brother but he did not come back home till 16.11.2018 even they searched for him but in vain. We have noted that concerted effort was not made by the complainant side to report the matter to the police in time. The occurrence took place on 01.11.2019 whereas the matter was reported to the police on 16.11.2019 i.e. after the lapse of 16th day of missing of his brother. Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain vs. The State" (2019 SCMR 274), "Abdul Ghafoor vs. The State" (2022 SCMR 1527), "Pervaiz Khan and another vs. The State" (2022 SCMR 393) and "Abdul Qadeer vs. The State" (2024 SCMR 1146).
9. Undisputedly, it was an unseen incident and there was no direct evidence against the appellants. No one had seen the appellants while killing the deceased namely Muhammad Munir.
The role played by the appellants in the incident in issue had neither been mentioned in the FIR nor disclosed before the learned trial Court through any solid or convincing evidence. It has also never been disclosed or alleged by the prosecution in the FIR as to under what circumstances, the deceased had been done to death and it remained shrouded in mystery.
10. Undeniably, there is no direct evidence against the appellants as far as murder of the deceased is concerned and the case in hand is one of circumstantial evidence. It has been held in a number of cases by the Hon'ble Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of the chain is missing this would entitle the accused to be acquitted by giving him the benefit of doubt. Reliance is placed upon the case law reported as Imran alias Dullay vs. The State" (2015 SCMR 155), "Azeem Khan vs. Mujahid Khan"
(2016 SCMR 274) and "Hashim Qasim and another versus The State" (2017 SCMR 986).
11. The case of the prosecution is based on the following pieces of evidence:- Ocular Account:
12. Ocular account in this case was furnished by Muhammad Zaheer/ complainant (PW-8) and Muhammad Khalil (PW-9) who are real brothers inter se as well as to the deceased. The complainant in his examination-in-chief stated that: "On 16.11.2019, I along with my brother Muhammad Khalil went to the police station where Moharrar of police station showed us the photographs of dead body to whom I and my brother Muhammad Khalil identified the photographs that those were of my deceased brother Muhammad Munir. I.O. prepared the identification memo which was attested by me and Muhammad Khalil, PW." He further stated that: "We went to Jinnah Colony where we came to know that on the intervening night of 1/2.11.2019 Mst.
Hina Bibi and Muhammad Dilawar accused along with 2/3 unknown accused persons took my deceased brother Muhammad Munir to canal situated in Chak No.71/NB, Sargodha. Dilawar accused made a straight fire with pistol 30 bore which hit on head of my deceased brother Muhammad Munir. The accused concealed the dead body of my deceased brother in garbage and put on fire that garbage due to which dead body of my deceased brother became unidentified."
Muhammad Khalil (PW-9) in his examination-in-chief also made his statement regarding the aforementioned facts in line with the aforementioned statement of the complainant (PW-8).
Muhammad Zaheer/ complainant (PW-8) in his cross-examination admitted that he moved application for registration of FIR after 16 days of missing of his deceased brother. He further admitted that name of witnesses is not mentioned in the application for registration of case. Most important part of his cross-examination is reproduced hereunder: "I cannot tell the names of persons who met us at Jinnah Colony when we visited Jinnah Colony in search of my brother Muhammad Munir. It is correct that my brother Muhammad Khalil is also not eyewitness of murder of my deceased brother Muhammad Munir."
Likewise Muhammad Khalil (PW-09) in his cross-examination admitted that his brother Muhammad Zaheer complainant moved application for registration of FIR after 16 days of missing of his deceased brother. He also admitted that he is not eyewitness of the occurrence. He made very important admission, the relevant portion of his statement is reproduced hereunder: "I cannot tell the names of persons who met us at Jinnah Colony when we visited Jinnah Colony in search of my brother Muhammad Munir."
13. From the perusal of above quoted statements of these witnesses we are constrained to draw an inference that admittedly, both the above said PWs and the deceased were real brothers and the testimony of the PWs is just hearsay and not supported by any independent piece of evidence.
They were not eyewitnesses of the occurrence and even failed to produce any witness of the occurrence. They categorically admitted that they visited Jinnah Colony where they were informed that the occurrence has been committed by the appellants and they also admitted that they cannot tell the names of persons who met them at Jinnah Colony and informed them about the occurrence. Thus, there is no reason to consider the ocular account of the prosecution witnesses, therefore, this piece of evidence of the prosecution witnesses is not worthy reliance and is disbelieved. verification of place of occurrence on the pointing out of the appellants.
14. Gulsher No.470/DFC (PW-6) stated about the recovery of dead body. He in his cross- examination stated that in Rappat (Exh.DA), it was recorded that a dead body of unknown person was found lying in the ditch in the heap of the garbage along with the bank of canal drain in a burnt condition. He also recorded in the rappat that dead body was apparently seems to be of an addict who had caught fire himself and died about which he informed the police station through telephone. On having this information, Muhammad Yar, SI/I.O. (PW-11) visited the place where the dead body was lying; the team of PFSA also arrived there and the I.O. also made the photographs of unknown dead body. It is very strange that the dead body of the deceased was recovered by the police on 03.11.2019 and on the same day it's post mortem was got conducted and Muhammad Zaheer/ complainant (PW-8) and Muhammad Khalil (PW-9) came to know about the death of the deceased on 16.11.2019, when they visited the police station and identified Muhammad Munir deceased through photographs available in police record. Thereafter on the same day, the complainant got written the complaint (Exh.PL) on the basis of which FIR (Exh.PJ) was registered.
Admittedly, the dead body of the deceased was buried under the supervision of the police. Further no effort was made by the prosecution for identification of the dead body in any manner whatsoever. The whole story of the complainant and the PWs is here say and no solid and concrete evidence has been brought on the record regarding identification of the dead body whether it was that of Muhammad Munir (deceased) or someone else to connect the appellant with the commission of offence.
15. Muhammad Yar, SI (PW-11) in his examination-in-chief stated that on 05.12.2019, he arrested appellant Hina and on her pointing out, he prepared identification memo of place of occurrence (Exh.PC) attested by Sikandar Hayat 1011/HC (PW-03) and Nadia Batool/1716/HC (given up) and also recorded the statements of these PWs. He further stated that on 10.12.2019, he arrested appellant Muhammad Dilawar who led the police party to the place of occurrence and pointed out the place where he along with appellant Hina committed the offence. Thereafter he prepared identification memo of place of occurrence (Exh.PD) attested by Sikandar Hayat 1011/C (PW-03).
After perusing the record, we are of the view that this piece of evidence is not helpful to the prosecution, as nothing was recovered on the pointing out of the appellants from the alleged place of occurrence, therefore, this piece of evidence cannot be made basis for conviction of the appellants which does not come within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984. Reliance in this regard is placed upon the case reported as "Zafar Ali Abbasi and another vs. Zafar Ali Abbasi and others" (2024 SCMR 1773).
Extrajudicial Confession:
16. So far as the evidence of extrajudicial confession of appellant Dilawar furnished by Muhammad Khalil (PW.9) is concerned, he in his examination-in-chief stated that: "On 07.12.2019 at about 04:30 p.m, I alongwith Haider Ali were present in our house. In the meanwhile, Muhammad Dilawar accused present in the court came there and told us that on the intervening night of 1/2 -11-2019, he along with accused Mst. Hina Bibi took Muhammad Munir deceased to cricket ground where they sat for some time. Thereafter, I told to Muhammad Munir deceased that my name is Dilawar and I took Hina Bibi away from your wedlock. Upon which Muhammad Munir deceased started quarreling with me and I had pistol with me at that time. On seeing the pistol, Muhammad Munir started running. I along with Mst. Hina Bibi chased him.
Muhammad Munir fell down. I fired with pistol hitting Muhammad Munir on his head. Thereafter I and Mst. Hina Bibi concealed the dead body in the garbage. Now Mst. Hina accused has been arrested. I felt sorry for that murder get pardon from me and my brother. On 08.12.2019 I went to police station and my statement was received in this regard by the I.O."
17. The testimony of said PW regarding extrajudicial confession allegedly made by the appellant Dilawar before him and Haider Ali (given up PW) is not reliable because no reason was assigned by him as to why the appellant Dilawar approached him to make such confession as he did not seek any help from him. Moreover, he had not informed the police soon after the extrajudicial confession of appellant Dilawar. Even he did not try to apprehend appellant Dilawar who came to meet him alone with empty handed at the relevant time whereas the above-mentioned prosecution witnesses were two in numbers. We have further noted that both the above-mentioned prosecution witnesses of extra-judicial confession were not enjoying any status or authority in the society which could have promoted the appellant Dilawar to make such extra-judicial confession before them. They were not in a position to get pardon for the appellant from the complainant. It is another important fact is that another witness of extrajudicial confession Haider Ali has been given up by the prosecution, so the sole testimony of Muhammad Khalil (PW.9.) to prove the factum of extra-judicial confession of appellant Dilawar without any independent corroboration cannot be relied upon and, thus, is brushed it aside from consideration. The extrajudicial confession is always considered a weak type of evidence and can be procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extrajudicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviors, conduct and probabilities, in ordinary course. Needless to remark that extrajudicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source. After thorough scrutiny of the above evidence, we have arrived with no doubt in our mind that the confessional statement is untrue, which has contradicted the circumstantial evidence on material facts so furnished by the other prosecution witnesses, thus it would be unsafe to place reliance upon such confessional statement, particularly in a case of capital charge without strong, independent and unimpeachable corroborative piece of evidence. Reliance in this regard is placed upon the cases reported as "Mst. Asia Bibi vs. The State and others" (PLD 2019 SC 64) and "Wajeeh-ul-Hassan vs. The State" (2019 SCMR 1994)
Retracted Confession of appellant Hina:
18. Another important piece of evidence remained in the field is judicial confession allegedly made by Hina confessing the murder of her husband, Muhammad Munir (deceased) by her and appellant Dilawar whereas the learned trial Court while convicting and sentencing both the appellants mainly emphasized on the judicial confession of Hina recorded on 05.12.2019 under Section 164 Cr.P.C. before Mr. Hasnat Aslam Gondal, Judicial Magistrate, Sargodha (PW10) but admittedly the said judicial confession had been retracted by appellant Hina before the learned trial Court and in absence of any independent corroboration such retracted judicial confession could not be suffice all by itself for recording or upholding the appellant's convictions. To hold conviction or acquittal of the appellants, two questions arise:
(i) Whether the confessional statement of appellant Hina confessing murder of her husband was recorded by the Judicial Magistrate after observing mandatory pre-cautions enunciated by the Hon'ble Supreme Court of Pakistan and keeping in view the High Court Rules and Orders laying down a binding procedure for taking required precautions and observing the requirements of the provisions of section 364 read with section 164 Cr.P.C.?
(ii) Whether retracted confession of Hina is corroborated by independent evidence of reliable nature, can be made basis for conviction on a capital charge but it must be subject to the above cardinal principles?
19. Now answering to question No.(i), we are conscious of the fact that it is trite law that for accepting a confession, two essential requirements must be fulfilled i.e. that the confession was made voluntarily, it was based on true account of facts, leading to the crime and the same was proved at the trial. We have skimmed the questionnaire (Exh.PN), confessional statement as well as have minutely scrutinized the testimony of appellant Hina, who got recorded her confessional statement before the Recording Magistrate (PW-10).
20. We would like to refer to the mandatory pre-cautions enunciated by the Hon'ble Supreme Court of Pakistan reported in the cases of "Azeem Khan and another vs. Mujahid Khan and others"
(2016 SCMR 274) and "Hashim Qasim and another vs. The State" (2017 SCMR 986) which are reproduced as under:-
(i) Fear in the mind of accused intruded by the police requires to be removed by sending the police officials including Naib Court and other staff from the Court room.
(ii) Accused is well in senses to understand the consequences of his confessional statement and must be made to understand that he is before the Judicial Magistrate.
(iii) Sufficient time for reflection is to be provided after administration of first and then second warning with interval.
(iv) The maker of a confession must be assured that in case of recording as well as non-recording of a confessional statement, he shall not be handed over to the police.
(v) The requisite question as incorporated in the form issued as per High Court Rules and Orders should be put to the maker and answers given by him shall be recorded in his own words.
(vi) The confession of the accused must be handed down by the Magistrate himself unless there are compelling circumstances not allowing the Recording Magistrate to do so; but such compulsion must be disclosed in a special note.
(vii) Confessional statement must not contradict the case setup by prosecution witnesses on material particulars of the case and also should not be inconsistent with other confession, if there are more than one maker.
(viii) If the maker only understands his mother language and confession is recorded is another language same shall be explained to the accused, which he fully understands with clear stance of Recording Magistrate that he is well-versed with the language in which confession was made, and word by word translated as provided under Section 364 of The Code. The required certificate must be given by the Magistrate about the proceedings under his seal and signature.
(ix) After completion of recording of the confessional statement accused shall not be sent to judicial custody through police official including Naib Court wearing police uniform.
After perusal of the evidence with regard to the confessional statement, we have found material illegalities and irregularities in the process of recording confessional statement of the appellant Hina, questioning the voluntariness of the confessional statement, more particularly with regard to the truthfulness of her confession for being innocent rather contrary to the other circumstantial evidence. As per statement of Mr. Hasnat Aslam Gondal, Judicial Magistrate (PW.10), on 5th December, 2019, Muhammad Yar, SI (PW-11) produced before him appellant Hina, for recording her confessional statement vide application (Ex.PN), where-after complying with all codal formalities, he recorded the confessional statement. In cross-examination he admitted that on the application of I.O. he recorded statement of accused Hina u/s 164 Cr.P.C. and said application was not made by Hina accused. He admitted that on the date of recording of statement of accused Hina he had not sent accused Hina to Dar-ul-Aman. He also admitted that in his report questions No.1 to 5 were mentioned in English language and that there was no such question about qualification of accused Hina. He also admitted that dictation of order dated 05.12.2019 was dictated to Stenographer who drafted the said order. He further explained that the time given to accused for thinking was 15 minutes. Muhammad Yar, SI (PW-11) in his examination-inchief stated that after recording the statement of Hina, he sent her to Judicial lock up by the orders of Area Magistrate.
Admittedly, Recording Magistrate (PW.10) had provided only one opportunity with a single warning for reflection whereas she was to be provided full assurance that in case she is not guilty or was not making a confession voluntarily in that case, she would not be handed over back to police but no such assurance was provided by Judicial Magistrate (PW-10) as depicts in questionnaire (Exh.PN). Thereafter sufficient time for reflection was to be given to the appellant after the first warning was administered. After the expiry of that, Recording Magistrate had to administer the second warning and accused was to be ensured that now she was in the safe hands but in the instant case no second warning was issued to the appellant assuring her that she is safe hands.
Furthermore, all police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Courtroom and beyond the view of accused but in the instant case, the Recording Magistrate directed in the terms that all the un-concerned have to leave the Courtroom. The Recording Magistrate also admitted in his report that questions No.1 to 5 were mentioned in English language and there was no such question about qualification of accused Hina. It was mandatory for the Recording Magistrate that the question were to be put in the language of the accused Hina either in Urdu or Punjabi but no such note of the Recording Magistrate is available on record. After giving a certificate as required under section 364 Cr.P.C. under his seal and signatures, the accused was to be sent to jail on judicial remand and during this process at no occasion she was not to be handed over to any police official/ officer whether he was Naib Court wearing police uniform or any other police official/ officer but in the instant case, the Investigating Officer (PW-10) admitted in his examination-in-chief before the learned trial Court that after recording the statement under Section 164 Cr.P.C. he sent Hina to judicial lock up under of orders of the Area Magistrate whereas the report of the Recording Magistrate is silent about the fact that after recording her statement under Section 164 Cr.P.C. what order was passed by him for further handing over the custody of the appellant.
21. In the instant case, the Recording Magistrate did not observe least precautions, required under the law. The statement of the appellant Hina was recorded grossly violating the relevant law. The Recording Magistrate after recording the confessional statement of the appellant Hina on oath, handed over her to the same police officer, who had produced her in the Court.
22. In our considered view, the confession of the appellant Hina for the above reasons is of no legal worth, to be relied upon and is excluded from consideration, more so, when she was retracted at the trial, confession of this nature, which was retracted by the appellant, cannot mutually corroborate each other on the principal that one tainted evidence cannot corroborate the other tainted piece of evidence.
23. Now answering to question No.(ii), while adverting to the confessional statement made by the appellant Hina with reference to its truthfulness and same being not inconsistent with the available circumstantial evidence, after analysis, we have found the confessional statement to be absolutely untrue and inconsistent to the other circumstantial evidence as well as is clashing with the story as set up by prosecution witnesses on material particulars of the cases. Gulsher, DFC (PW-06), in his cross-examination admitted that he informed the police telephonically that a dead body of an unknown person was found in the ditch "khatan" along with the bank of canal drain in a burnt condition lying in the heap of the garbage which was an abandoned place away from the population and from the perusal of scaled site plan (Exh.PM/1), it clearly depicts that the place of occurrence where the dead body of the deceased found was an abundant place without no population in the surrounding areas whereas appellant Hina in her judicial confessional statement recorded under section 164 Cr.P.C. stated otherwise in the following manner:
24. This judicial confessional statement of appellant Hina shows that first episode of the occurrence took place in the cricket ground where both, the deceased and appellant Dilawar along with one Ramzan drunk liquor in presence of appellant Hina and when appellant Dilawar assured Muhammad Munir deceased that he is Dilawar who earlier enticed away his wife and when the deceased tried to escape while running then Dilawar appellant also chased the deceased while holding pistol in his hand and asked the deceased to sit in the ditch and when the deceased sat there, appellant Dilawar made a fire shot with his pistol which hit the deceased on his head. As per prosecution's own case the occurrence took place in an abandoned area alongside the canal, road and railway track away to the population area whereas as per statement of appellant Hina in her statement recorded under section 164 Cr.P.C. the occurrence took place in the cricket ground which does not fall anywhere in the surroundings of the place of occurrence. Furthermore, in the postmortem report, there is no evidence of having fire arm injury on the head of the deceased which negates the version of the appellant of causing fire arm injury to the deceased with pistol by appellant Dilawar. In view of the above, it manifests that the alleged judicial confessional statement purported to be of the appellant Hine besides being involuntary, untrue and unbelievable, has also not been recorded in accordance with the law and is not supported by any independent piece of evidence put forth by the prosecution, thus is of no help to the prosecution, which deserves to be excluded from consideration. Reliance in this regard is placed upon the cases reported as "Muhammad Ashraf vs. The State" (2016 SCMR 1617), "Azeem Khan and another vs. Mujahid Khan and others" (2016 SCMR 274), "Hashim Qasim and another vs. The State" (2017 SCMR 986), "Shaukat Ali vs. The State and others" (PLD 2019 Supreme Court 577), "Muhammad Ismail and others vs. The State" (2017 SCMR 898), "Khalid Mahmood vs. The State and 2 others (2022 YLR 522) and "Khadim Hussain Hussain and others vs. The State and others" (2024 YLR 2247).
Recoveries:
25. So far as the alleged recovery of pistol .30, wrist watch, wallet and ring of deceased from the possession of appellant is concerned, he was arrested on 10.12.2019 and thereafter on 13.12.2019 at 12:00, the appellant in presence of Muhammad Yar, SI (PW-10) and Gulsher No.470/DFC (PW-06) on his disclosure and pointing out got recovered weapon of offence pistol .30 bore P-4, Wallet P-5, wrist watch P-6 and wring P-7 of the deceased from his house.
26. As regards recovery of crime weapon on the led of appellant Dilawar, we have observed that according to the prosecution case the appellant Dilawar had succeeded in fleeing away from the place of occurrence along with crime weapon and then on his arrest he was said to have got recovered the crime weapon i.e. .30 bore pistol from the baithak of his house. Firstly, it is not believable that an accused having committed a serious crime like murder and successfully managing escape along with crime weapon, would keep it safe for its subsequent recovery and use against him as evidence, After the arrest of appellant on 10.12.2019 the crime weapon i.e. pistol .30 bore was shown recovered on his lead, and the PFSA report (Ex.PV) has been received wherein it has been opined that item P-1 pistol was examined and found to be in mechanical operating condition. Thus, the report of PFSA (Ex.PV) is inconsequential.
Such recovery is also in clear violation of section 103 of Code of Criminal Procedure, 1898. Therefore, the evidence of such recovery cannot be used as incriminating evidence against the accused/appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary role of evidence. The Supreme Court of Pakistan in the case reported as "MUHAMMAD ISMAIL and others versus The STATE" (2017 SCMR 989), held:- "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."
Even otherwise, it was highly unsafe to rely on the evidence of recovery, which even otherwise was a corroborative piece of evidence and relevant only when the primary evidence i.e. ocular account inspired confidence, whereas in the present case, the ocular account was doubtful. Reliance is placed upon case titled Muhammad Hassan and another Vs. The State and others (2024 SCMR 1427).
27. Now coming to the factum of recovery of Wallet P-5, wrist watch P-6 and wring P-7, Muhammad Zaheer (PW-08) in his examination-in-chief stated that: "On 16.12.2019 I along with Muhammad Khalil PW went to P.S. Jhal Chakian. I.O. showed us wrist watch, wallet and ring where we identified all the said articles of our deceased brother Muhammad Munir. Police also told us that all those articles were recovered from possession of Muhammad Dilawar accused. I.O. prepared the identification recovery which was attested by me and Muhammad Khalil, PW."
Whereas in his cross-examination admitted that: "It is correct that wallet, wrist watch and ring are easily available from the market. I have not mentioned the specification for identification of the articles which were identified by me as owned by Muhammad Munir deceased."
Muhammad Khalil (PW-09) in his examination stated that: "I.O. On 06.12.2019 I along with Muhammad Zaheer complainant went to P.S. Jhal Chakian. IO showed us wrist watch, wallet and ring where we identified all the said articles of our deceased brother Muhammad Munir. Police told us that all these articles were recovered from possession of Muhammad Dilawar accused."
It is an admitted fact that both the PWs are not witnesses of the recovery, even otherwise, as stated above, the recovery of aforesaid articles was effected on the pointing out of appellant Dilawar from Baithak of his house which is accessible to every inmate of the house and as per statement of Muhammad Zaheer (PW-08), such like articles are easily available in the market, coupled with the fact that there is clear violation of section 103 Cr.P.C. as both the recovery witnesses were police officials and no private person from the locality was associated in the recovery proceedings.
Record is also silent and it did not appeal to a prudent mind that as to why the accused would keep such articles of the deceased with him for a period of more than one month after the occurrence. Said recovery in the circumstances could not be used against the appellant. Reliance is placed upon the case reported as "Muhammad Sajjad vs. The State" (2009 SCMR 1248).
Medical Evidence:
28. As far as the medical evidence is concerned, Dr. Muhammad Rizwan Ashraf, Medical Officer, DHQ, Teaching Hospital, Sargodha, who had conducted postmortem examination on the dead body of an unknown person aged about 20 to 25 years on 03.11.2019 at 08:00 p.m. observed that approximately 60% of the dread body was burnt and putrefied and further observed that unnatural death of the deceased was caused by massive burn and he found no fire arm injury on the dead body of the deceased which fact negates the story of the prosecution that appellant Dilawar made a fire shot on the head of Muhammad Munir deceased. It is noteworthy that as per judicial confession of appellant Hina, appellant Dilawar made a fire shot with his pistol which hit the deceased on his head but the doctor during postmortem examination has not observed any fire arm injury on the dead body of the deceased. In any case the medical evidence is a mere an opinion of an expert and is confirmatory in nature and not corroboratory except those observations of the medico-legal officer, which were based on physical examination, which served as a corroboratory piece of evidence and that at the best would confirm the ocular account with regard to the seat and nature of injury, kind of weapon used in the occurrence, but could not identify the accused and thus the medical evidence is also of no help to the prosecution for connecting the appellants with the commission of the offence. Reliance in this context is placed on the cases of "Iftikhar Hussain alias Kharoo v. The State" (2024 SCMR 1427) and "Muhammad Hassan and another vs. The State and others" (2024 SCMR 1449).
Motive:
29. Motive behind the occurrence was that appellant Hina had developed illicit relations with appellant Dilawar whereas Muhammad Munir, deceased used to forbade his wife appellant Hina but she did not mend his ways and ultimately, both the appellants along with 2/3 unknown persons committed the murder of the deceased. Admittedly, the motive part of incident is based on oral assertions and no solid evidence in that regard was produced by the prosecution during the trial.
There is a haunting silence with regard to the minutiae of motive alleged. No place of motive incident has been mentioned by any of the prosecution witnesses. The PWs had not claimed that they were present at the time of occurrence of motive incident. No independent witness was produced by the prosecution to prove the motive as alleged. Moreover, it is an admitted rule of appreciation of evidence that motive is only supportive piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. We are therefore, of the view that the prosecution has failed to prove the motive part of the occurrence. Reliance is placed upon the case reported as "Muhammad Riaz and others vs. The State and others" (2024 SCMR 1839).
30. So far as the defence plea taken by the appellants in their statements under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature and the prosecution has failed to prove the guilt against the appellants as well, therefore, there is no need to discuss the same which is exculpatory in nature.
31. To sum up the above findings, it is noted that the prosecution has miserably failed to prove, ocular account, extra-judicial confession of appellant Dilawar, judicial confessional statement of the appellant Hina recorded under section 164 Cr.P.C; medical evidence; there are contradictions and improvements in the statements of the PWs; the occurrence is blind and unseen; recovery is ineffective and is of no consequence; the motive behind the occurrence is far from being proved and almost non-existent, and the lack of any cogent and reliable evidence adduced by the prosecution are all strong circumstance which create a serious dent in the prosecution's case.
Thus, the veracity of the testimony of the PWs would surely fall short of credence to saddle capital punishment upon the present appellants. Reliance is placed on Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068).
32. For what has been discussed above, we have no doubt to hold that here in this case the prosecution has miserably failed to establish the charge against the accused/appellants beyond any shadow of doubt. In the cases of "Muhammad Nawaz and another vs. The State and others"
(2024 SCMR 1731) & Rehmatullah and 2 others vs. The State" (2024 SCMR 1782), the Supreme Court of Pakistan has held that for giving benefit of doubt to an accused a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit, whereas, in present case numerous doubts have crept into the evidence making whole edifice of prosecution unreliable. Thus, the prosecution has squarely failed to bring home the guilt against the accused/appellants.
33. Consequently, Crl. Appeal No. 77117 of 2021 is allowed, impugned judgment of conviction & sentence is set-aide and the accused/ appellants Muhammad Dilawar and Hina are acquitted of the charges against them. They shall be released forthwith if not required to be detained in any other case. The case property, if any, be disposed of in accordance with law, and record of the learned trial Court be sent back immediately.
34. Murder Reference No.223 of 2021 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Dilawar and Hina (appellants) is NOT CONFIRMED.