' The appellant Muhammad Sahir alias Natt, son of Yara aged 25 years has filed this appeal through jail against the judgment of the learned Additional Sessions Judge, Gujranwala, dated 21- 5-1987 by which the appellant was sentenced to imprisonment for life and a fine of Rs,4,000, in case of default, was to undergo a sentence of two years' R.I. For having committed the murder of Nasir Masih son of Boota Masih aged 6 years.
2. Before dealing with the prosecution version, it is pertinent to mention that the first information report was recorded by Ijaz Hussain Moharrar Constable (P.W.2) on 1-11-1985 on the complaint of Muhammad Boota (P.W.8), father of the deceased Nasir Masih. A complaint was recorded as Exh.P.B. This information was given by the said complainant. On the basis of information he gathered from Sabir son of Yara, the present accused and Muhammad Tufail son of Hussain who communicated to him that they had seen Nasir Masih in the company of Murid, Bashir, Aziz sons of Sharif and Diwan son of Haidria all Mirasi by caste, residents of Doghach Chaungi, Police Station North Saddar Cantt. Lahore, who were taking away the deceased minor with them from Deh towards Bhudda Goraya. It was reported in the F.I.R. That he made a demand from the aforementioned persons for the return of his son but they refused to do SO.
3. During the investigation, the aforesaid accused were found innocent and the incriminating material came to the notice of the Investigator who recorded the statements of Muhammad Shafi P.W.6 and Riasat Ali P.W.7 on 17-11-1985. The appellant was arrested on 18-11-1985.
4. On 20-11-1985, the appellant led to the recovery of last worn clothes of the deceased, Kurta Exh.P.1 and Shalwar Exh.P.2 (blood-stained) from the paddy fields of Mehr son of Fazal Hussain of village Buddha Goraya which were taken into possession vide recovery memo. Exh.P.C. The recovery was attested by Riasat Ali, P.W.7, Muhammad P.W.6 and Boota P.W.B. The appellant is said to have led to the recovery of a pair of rings golden Exh.P.3/1-2 and a silver Hassi Exh.P.4 from house of the appellant in Dehr Virk village which were taken in possession by the recovery memo. Exh.P.D. The said recovery was also witnessed by Riasat Ali, Muhammad Shafi and Boota P.Ws. On the same day, the appellant is alleged to have led the recovery of his Kurta Exh.P.5 and Chaddar Exh.P.6 from underneath of his bed from his house in the presence of the aforesaid witnesses. The same were taken into possession vide recovery memo. Exh.P.E. And were made into sealed parcel.
5. A site plan was prepared by the Patwari on 1-12-1985 in which the place of recovery of the last worn clothes of Nasir deceased were shown by the Patwari on the same day and notes were inserted with the red ink by the investigator on 2-12-1985.
6. The prosecution in order to prove their case examined as many as ten witnesses. The appellant was examined under section 342, Cr.P.C. Who pleaded not guilty wherein he denied having committed the offence of murder of Nasir Masih, of having taken away Nasir Masih and having made extra-judicial confession. The accused also denied the recoveries. The reply of the appellant is reproduced as follows:- "Actually Boota father of the child had filed a complaint against Munir and others who were from his in-laws and I was witness to that occurrence. However, during the course of investigation, the accused and the complainant compromised and had patched up because his in-laws had agreed to send back the estranged wife of Boota back to his house but I insisted upon the fact of their involvement in the disappearance of Nasir Masih. On account of my insistence, they have dragged me in this case."
7. This jail appeal has been argued by Mr. Aftab Hussain Sherazi, Advocate with a lot of labour and industry. He brought out all the aspects of the case with clarity. The record has also been perused with his help.
8. The appellant contended that it was a false case of substitution, that the evidence was discrepant, untrustworthy, that the judgment of the trial Court was based upon material which did not warrant conviction at all.
9. The prosecution has banked upon the following evidence:-
(i) Extra-judicial confession.
(ii) Last seen.
(iii) Recovery of blood-stained clothes of the accused and the clothes of the deceased from the paddy field, and
(iv) recovery of pair rings and silver Hassi of the deceased, from the residential house of the appellant.
10. I would examine these evidences one by one. P.W.6 and P.W.7 (Muhammad Shafi and Riasat Ali) have given the evidence in support of extrajudicial confession. P.W.7 did not support the prosecution version and was so declared hostile. P.W.6 Muhammad Shafi is a very strange witness.
He himself was proceeded against under section 109 of the Code of Criminal Procedure, had been challaned in a number of cases under the allegation of theft. He admitted that he had gone to police station because he was summoned by the investigator. The said witness also attested the recoveries. The investigation took a new turn on the basis of the statement of this witness which was recorded on 17-11-1985 when the investigation was being conducted in respect of the complaint of the complainant in relation to different set of accused. The statement of this witness does not inspire confidence. The evidence of last seen comprises of P.W.4 Liaqat Ali and Mst.
Naziran Bibi P.W.5. It is significant that the deceased disappeared on 23-10-1985. The complainant got the case registered on the basis of information of last seen on 1-11-1985. Liaqat Ali as well as Naziran Bibi P.Ws. Did not inform the police in respect of having seen the deceased on 23-10-1985.
Their statements were only recorded after 17-11-1985 when the investigation took a new turn on the statements of Muhammad Shafi and Riasat Ali. It can be safely concluded that this evidence was created to the new needs of prosecution. Liaqat Ali is a very strange witness. He admitted that he was a narcotic addict. He had been taking Bhang since three years, that he neither informed the complainant nor any other person of the village in respect of having seen the deceased in the company of the appellant. Similarly, Mst. Naziran also acknowledged that she did inform the wife of Boota after 7/8 days of the occurrence but had not brought it to the notice of the police. It is surprising that the wife of Boota complainant had not been produced, before the Court. The evidence of Mst. Naziran and Liaqat Ali are, therefore, of no help to the prosecution to link the appellant with the commission of offence.
11. As far as the recovery is concerned, it is a corroborative evidence. If the evidence of extra-judicial confession and last seen is disbelieved, recoveries alone could not prove the guilt of the appellant.
It was held in Basant Singh v. Emperor AIR 1927 Lah. 541 which is as follows:- "The accused was one of two persons in whose company the deceased was last seen alive, subsequent to his disappearance, the accused led the police to the place where the deceased was buried. It was held that though 'gave suspicion' attached to the accused the circumstances were not sufficient to establish his guilt because of the possibility that the deceased may have been murdered by another person. There were three accused persons in the case out of whom two had been acquitted by the trial Judge."
' In Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515, it was observed:- "Circumstantial evidence -- Last seen evidence -- Circumstances of deceased having been last seen in company of accused -- Not by itself sufficient to sustain charge of murder -- Evidence further required to link accused with murder of his companion, e.g., incriminating recoveries at accused's instance, a strong motive or proximity of time when both last seen together and time of murder -- Accused required to explain demise of his companion only when such requirements fulfilled."
It is a settled principle of administration of criminal justice that extrajudicial confession is at the best a weak type of evidence and had to be looked with care and caution. Great care is to be taken in placing reliance upon this piece of evidence which requires the three-fold proof; firstly it was made, secondly it was voluntarily made and thirdly it was true and all the circumstances were sufficient to exclude the hypothesis of innocence of the accused and lead to only one conclusion that the appellant has no one else committed the crime. In a number of cases the evidential value of the extra-judicial confession had been examined by the superior Courts of Pakistan. In Shaukat Masih v. The State 1984 P Cr. L J 2511 it was held:- "S. 164-- Extra-judicial confession, evidentiary value of extra-judicial confession, held always regarded a weakest type of evidence requiring strong independent corroboration -- (confession)."
' In Ali Muhammad v. The State 1985 P Cr. L J 1216 it was held:- "Extra-judicial confession is at the best a weak type of evidence and utmost care and caution is to be exercised in placing reliance on this piece of evidence which requires three-fold proof, firstly that, in fact it was made; secondly, that it was voluntarily made; thirdly, it was true and that the circumstantial evidence should be strong enough to exclude all the hypothesis of the innocence of the accused and should lead to one and only one conclusion that the appellant and none else has committed the crime."
The result is that the prosecution evidence in respect of extra-judicial confession, last seen and recoveries is disbelieved because of the fact that it bristles with discrepancies and falsity on the face of it. The prosecution, therefore, has failed to establish the case against the appellant. I, therefore, accept the appeal, set aside the judgment of the learned Additional Sessions Judge, dated 21-5-1987 and acquit the appellant of the charge of having murdered Nasir Masih. The appellant/convict shall be released forthwith if he is not needed in any other case.