' MUHAMMAD MUNIR KHAN, J.--This Petition for Leave to Appeal directed against the judgment of acquittal passed by Lahore High Court, Lahore on 14-3-1995 arises from the facts that Khizar Hayat deceased left his house on his motorcycle Exh.P 12 for his General Store Shop situate in village Islam More but did not return home in the evening. On 15-12-1990, early morning, Ghulam Abbas son of Sultan not produced informed Sarfraz Khan complainant, maternal uncle of the deceased to have seen the dead body of Khizar Hayat lying at Khokhara More. At this the complainant along with Muhammad Afzal P.W.6, Mumtaz P.W. Not produced went to Khokhara More and found dead body of Khizar Hayat there. Motorcycle of the deceased was not found lying there. After visiting the spot, Sarfraz Khan lodged report at Police Station Shorekot, District Jhang on 1542-1990 at 8-00 a.m.
Which was recorded by Munir All Shah, Inspector P.W.16.
2. Dr. Muhammad Riaz Khan P.W.1 conducted post-mortem examination on the dead body of the deceased on 15-12-1990 at 12-05 noon and found seven fire-arm wounds of entrance on and near the neck of the deceased. In his opinion, cause of death was shock and hemorrhage resulting from the injuries found on the dead body. The death occurred immediately and time between death and post-mortem examination was between 12 to 24 hours. Zafar Iqbal and Muhammad Iqbal respondents were arrested by the Police on 1-1-1991. At the time of arrest Carbine P9, 2 live cartridges P20/1-2, Motorcycle P12, Golden Ring P 13 and Wrist Watch P14 were, seized from possession of Muhammad Iqbal. Purse P15, a small Card P16, Identity Card of Khizar Hayat P17, Demand Notice P.18 and Gun P.21 along with three live cartridges P.22/1-3 were recovered from the possession of Zafar Iqbal respondent by Munir All Shah Inspector P.W.16 in presence of Amir Ahmed P.W.15.
3. To prove its case, prosecution produced sixteen witnesses in all. There is no direct evidence of the murder of the deceased in this case. The prosecution relied on extra-judicial confession allegedly made by the respondents before Syed Muhammad Haider Shah P.W.9 and Munshi Manzoor Hussain P.W. (not produced). Syed Muhammad Haider Shah P.W.9 stated that he was present at his Dera with Munshi Manzoor Hussain P.W. When Zafar Iqbal and Muhammad Iqbal respondents came there and confessed to have killed Khizar Hayat deceased and removed his motorcycle P.12, Wrist Watch, Golden Ring, Purge containing cash and identity card. Hag Nawaz Goldsmith P.W.10 and Zaffar Abbas P.W.14 brother of the deceased identified the motorcycle, golden ring, purse, wrist-watch and other articles recovered from the accused as belonging to the deceased. Zaffar Abbas P.W. 14 further stated that the deceased was wearing golden ring P.13 and watch P.14 when he left his house on 14-12-1990 for his shop. Muhammad Rafique P.W.12 was produced to prove the deceased having been last seen with the respondents accused. He stated that the respondents had come to his shop at 7-15 p.m. Muhammad Iqbal wanted him to give change of Rs,100 which he had refused. In the meantime, Khizar Hayat deceased came there on his motorcycle. Muhammad Iqbal asked him that the headlight of their motorcycle ' was not in working order and that he should accompany them to pull Bahgar whereupon Khizar Hayat asked them to follow him. On the following day he heard about the murder of Khizar Hayat.
Amir Ahmed P.W.15 and Munir All Shah P.W.16 have supported the incriminating recoveries from the respondents. The rest of the evidence is of formal nature.
4. When examined under section 342, Cr.P.C., the respondents denied all incriminating circumstances and raised plea of false implication. They neither produced any witness in defence nor gave evidence on oath in disproof of charge against them. The trial Court, vide its judgment dated 6-6-1991 convicted the respondents under section 302/34, P.P.C. Zafar Iqbal was sentenced to death and Muhammad Iqbal to imprisonment for life. They were also sentenced to a fine of Rs,10000 each or in default four years' R.I. Each. They were also directed to pay a sum of Rs,10,000 each as compensation to be paid to the legal heirs of deceased or in default thereof six months' S.I.
Both the accused were also convicted under sections 392, P.P.C. And 404, P.P.C. And sentenced to fourteen years' R.I. Each, a fine of Rs,10,000 each or in default four years' R.I. Each under section 392, P.P.C. And three years' R.I. Each and a fine of Rs,2,000 each or in default three months' S.I. Each under section 404, P.P.C. On appeal filed by them, Lahore High Court, vide impugned judgment has acquitted them of the charges.
5. Learned counsel for the petitioner contended that the prosecution has successfully brought home guilt of the respondents through circumstantial evidence; that the accused respondents had confessed the commission of murder by them before Syed Muhammad Haider Shah P.W.19 who is an independent witness; that the deceased was last seen in company of the respondents by Muhammad Rafique P.W.12 having no enmity with the respondents; that the recovery of the articles of the deceased from the respondent satisfactorily connected them with the murder of the deceased; and that the reasons given by the High Court for acquitting the respondents are neither sound nor cogent.
6. We have considered the submissions made by the learned counsel for the petitioner carefully but we do not agree with him. We find that the High Court after having applied its conscious mind disbelieve all the categories of evidence relied upon by the prosecution, such as extra judicial confession, last seen, and alleged incriminating recoveries made from the respondents and rightly so. The extra-judicial confession is a weak type of evidence which can easily be procured whenever direct evidence of the crime is not available. So, while placing reliance on it, the Courts have emphasized the use of utmost care and caution. A three-fold proof is required to make extra- judicial confession the basis of conviction: ' Firstly, that in fact it was made; ' Secondly, that it was voluntarily made; and ' Thirdly, that it was truly made. .
' In the instant case, Syed Ghulam Haider Shah P.W.9 the witness of extrajudicial confession has stated that the accused were not previously known to him and after making confession, they had slipped away from his Dera where they had made the extra judicial confession. So, there are circumstances appearing from the case which tend to show that such a confession was unlikely to be made and had not, in fact been made. Syed Ghulam Haider Shah was not previously known to them and by that time no one else knew that the accused had committed the crime. We fail to understand as to what had compelled the accused to approach him and make extra-judicial confession of murder before him, more particularly when he was not in a position to help Them in the matter. . The story of the prosecution that the accused had voluntarily come to the Dera of the witness, made confession of the murder of the deceased and then slipped away therefrom runs counter to the natural probabilities and will tend to show that the confession was in fact not made before the witness. The other witness of the extra-judicial confession has been given up.
7. Adverting to the circumstantial evidence of 'last seen', it is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence. In the instant case, 'last seen' evidence is of no consequence in that, the distance between place of murder and the place where Muhammad Rafique had seen the deceased last with the respondents is not known. The exact duration between the murder and the time when deceased was seen last with respondents is not known. So, this circumstance of last seen fails to exclude all hypothesis of innocence of the respondents. In the F.I.R., it has not been stated that at the time when the deceased left his house on 14-12-1990, he was wearing golden ring and wrist- watch or he was carrying any purse. It is also strange that at the time of their arrest which took place after sixteen days of the occurrence, the respondents were still carrying the stolen articles intact with them. Furthermore, the considerations warranting interference in appeals against acquittal and in appeals against conviction are quite different. The Supreme Court shall not interfere unless the grounds on which the High Court had acquitted the accused were not supportable from evidence on record, or the judgment of acquittal is perverse and reasons therefor are artificial and ridiculous. In the instant case, the grounds of acquittal of respondents are supportable from evidence on record and the reasons given by the High Court are neither artificial nor ridiculous.
8. Consequently, leave to Appeal is refused and the petition is dismissed. .
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