GHULAM SARWAR/SHEIKH, J.--- Instant appeal has arisen from judgment dated 14.4.1993 passed by learned Additional Sessions Judge. Sheikhupura. Whereby he convicted Maqbool Ahmad alias Koola appellant under section 302 PPC and sentenced him to imprisonment for life with fine of Rs.
50.000/- and in default there-of to undergo R.I. For two years for intentionally committing murder of Rehmat Ali alias Piyar Ali as also under Section 201 PPC and sentenced him to seven years' R.I. And a fine of Rs. 25.000/-. In default where-of to suffer six months' R.I. For causing disappearance of evidence of his offence, while, his co-accused Mst. Naziran Bibi was acquitted of the charge. It was further directed that amount of fine, if recovered and realized, shall-be paid in toto 'legal heirs of deceased. However, benefit of provisions of Section 382-B Cr.P.C, was extended to him.
2. Put shortly, facts of prosecution case, as reflected and gleaned out of F.I.R. Ex.PF/1 are that about three years prior to occurrence; Rehmat Ali alias Piyar Ali. Real brother of Fazal Din complainant, was arrested in a case of cutting/chopping hand of Mtaqbool Ahmad alias Koola appellant and ultimately acquitted' in consequence of compromise and thereafter they developed ;cordial relations and cultivated friendship. About one month prior to report. Muhammad Yousaf PW6, son of Muhammad Bakhsh and Bashir Ahmad (given up PW.1 son of Muhammad Din saw Rehmat .Mi deceased in the company of Maqbool Ahmad. Alias Koola proceeding toward his house.
Subsequently, latter was arrested in murder case of Imam Din. On 26.9.1991. During the course of its investigation, he reportedly made a disclosure and confession in presence of Muhammad Latif and serval others that he alongwith his were Mst. Naziran Bibi had committed murder of Rehmat Ali alias Piyar Ali in vengeance and hurried his deadbody in the compound of their house, from where, deadbody. Rather skeleton of said Rehmat Ali alias Piyar Ali deceased was allegedly recovered on their pointation.
3. At the trial, prosecution examined as many as nine witnesses in support of its case. Rehmat Ali alias Piyar Ali deceased was lastly seen in the company of Maqbool Ahmad alias Koola by PW. 3 Muhammad Yousaf while Fazal Din PW.6 lodged complaint Ex.PF. Autopsy on dead body (skeleton) of Rehmat Mi alias Piyar Mi son of Chiragh Din was conducted by Dr. Naseer Ahmad PW.4. Dr. Muhammad Riaz PW.
9. Found various bones of male human being indicating him as 20/25 years old: Muhammad Ashraf PW.8. Inspector. Police Lines Sheikhupura is the Investigating Officer of this case. Rest of witnesses are formal in nature.
4. When examined under Section 342 Cr.P.C, the appellant not only refuted the motive and repudiated the confession, but also, denied the recovery attributed to him and even involvement in the occurrence. He explained that actually prior to present occurrence his hand had been chopped of by Gujjar family and the matter was reported to police, but main, accused were let of and Rehmat Mi alias Piyar Ali was involved. However, he continued to pursue his case, but, was involved in the murder case of Imam Din. No evidence, in defence, was led.
5. Upon appraisal and appreciation of evidence on record, learned trial Court came to the conclusion that the appellant Maqbool Ahmad alias Koola had committed intentional murder of Rehmat Mi alias Piyar Ali in vengeance, caused disappearance of evidence by burying dead body in his house and thus convicted and sentenced him as stated above. b. Re-iterating the points, grounds and factors urged in memorandum of appeal, learned counsel for the appellant has streneously argued that circumstantial evidence does not inspire confidence inasmuch as necessary links are missing to connect the appellant with the commission of the crime. As such, his conviction has been assailed on the pleas that the same is neither warranted by data and material available on record nor in consonance with law.
7. Conversely, impugned conviction and sentence hate beenn acclaimed to be correct and in conformity with prescribed notions of law in all respects by learned counsel representing the State.
8. However, verdict, is, apparently replete with legal infirmities on various counts. Seemingly motive, confession, recoveries and last seen ev idence afforded the basis of conviction now sought to be impeached and set at naught.
9. Evidence attributed and ascribed to the appellant with regard to "motive" is not only totally irrelevant, but also, indicates that there was absolutely no reason for such an enmity as enemies of the appellant were, in fact. Gujjars. Who. Had involved him in crime and whom the appellant had been implicating in a series of cases, It is also borne out therefrom that police supported the Gujjars; against the appellant, who had to resort to a private complaint against them. Undoubtedly.
Rehmat Ali alias Piyar Ali was acquitted in consequence of compromise entered into between him and the appellant. As such there was hardly any occasion for the appellant to cause death of a person, with whom, he had developed visiting terms.
10. As enunciated in Maqbool Ahmad Vs. The State (1992 S.C.M.R. 2279) satisfactory motive always plays an important part in any case dependent entirely on circumstantial evidence, In were thereof circumstantial evidence plays the role of marrow which, strengthens and activates bones, while, flesh like motive, gives visible shape to human body and when both are missing only skeleton, is left behind as in the present case.
11. It is trite law and there can be no cavil with the proposition that confessions are made before friends and not foes. Who. Have already prepared a simmering cauldron for a person in shape of a murder case. Surrounding circumstances at the time of making confession are of vital importance.
No sane person ensnares himself by making abrupt and candour admission especially before man in authority because he is never oblivious of consequences of such stupidity. He craves for back doors to escape and not abyss to fall into. Story concocted to tailor confession does not ring true, by any stretch of imagination, rather, it negates human psychology, hence, no prosecution edifice could be erected thereupon. Rather a wall of sand evolved thereon is bound to crumble down like house of cards.
12. Another feature relates to the recovery' of dead body from the house of the appellant. Evidence in this context is most uninspiring. Also it does not find support from entries in the inquest report, rather, the same belie the recovery and mode adopted for the same.
13. Dr. Muhammad Naseer Ahmad, who conducted post-mortem on the dead body rather skeleton of Rehmat Ali alias Piyar Ali observed to the effect that it was a deadbody of a person whose age, sex and identification was not possible as the body was in such condition that there was no skin or muscles on the whole of it. As a necessary' corollary, identification of skeleton and supposition of that skeleton of dead body of Rehmat Ali alias Piyar Ali cannot be taken to be free from any doubt.
Rather the same is wrapped in mist. Such recovery cannot lend support to the prosecution version and was wrongly taken to be so.
14. As regards last seen evidence, following illuminating observations made in Karamat Hussain v.
The State (1972 S.C.M.R. 15) put the matter at rest:- "If the extra-judicial confession is disbelieved, and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely' weak nature, no conviction can be based merely on .The evidence of the fact that the deceased as last seen together with the appellant. In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstance should be such as cannot be explained away on any hypothesis other than the guilt of the accused. In the present case, this test is by no means satisfied. The circumstances by themselves are neither sufficient to bring home the guilt to the accused nor are they of such a nature as to cany conviction."
15. Guiding principle expounded in Rehman's alias Rehmat, alias Waryam alias Badshah v. The State (PLD 1977 SC 515) is in these words:- "On a balance of the decided cases it appears that the circumstances .Of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of time when they were last seen together and the time when the deceased was killed. Only then will the accused by called upon to give an explanation of the demise of the person, who, was last seen alive in his company."
16. There is yet another aspect of the matter. In circumstantial evidence it is necessary that the prosecution's role of collecting the evidence against the accused should be free from doubt and suspicion. In this case there are several reasons to doubt the role of Investigating-Agency, In the first instance, motive -theory adopted by the prosecution is far-fetched, irrelevant and repudiates the case of the prosecution instead of supporting it. Secondly. FIR Ex.PF/1. Was recorded after recovery, which is rendered as inadmissible when measured by yardstick of evidence.
17. On the subject of dependability of investigation it has been observed in Fatal Elahi alias Sajawal.
The Crown (PLD 1953 FC 214):- ''where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."
18. On examination of entire evidence and material brought on record, I find that motive is completely irrelevant and even non-existent. Investigation was designedly hostile to the appellant and the circumstantial evidence is impeachable on many scores as indicated above. The requirement and standard of proof in such case is undoubtedly that every link has to be proved by cogent and convincing evidence. In the instant case, same is not only lacking, but also, chain is broken from its every inception. No conviction either under Section 302 PPC or under Section 201 PPC could be based on such sketchy evidence and the same is un-sustainable in law and open to grave exceptions.
19. Upshot of above discussion is that appeal succeeds, conviction and sentence on both counts are set aside and the appellant is acquitted of the charge levelled against him.
20. He shall be released forthwith, if not required to be detained in any other case.