PLJ 2021 Cr.C. (Note) 63
Judicial Confession--
----Judicial confession is concerned, it is established principle of law that the confession procured through torture has no legal value and subsequently if the same is retracted it further loses its string. Even otherwise there is chain of judgments on the subject that while taking into consideration the confessional statement of the accused, as an abundant caution for fair-play and justice.
[Para 20] B
1999 SCMR 2040, 2004 SCMR 477 and 2010 SCMR 55
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)/34--Anti-Terrorism Act, (XXVII of 1997), S. 7--Pakistan Penal Code, (XLV of 1860), Ss. 460/34, 392/34--Conviction and sentence--Challenge to--Qatl-i-amd--Judicial Confession--Motive of instant case is very remote--It is said that appellant was working as driver of a vehicle belonging to deceased family and on account of unavoidable circumstances he was thrown out of his job--Firstly prosecution had failed to substantiate motive either during course of investigation or during course of trial and secondly this could not lead to such a heinous offence when a person who is technically capable to earn his livelihood, he would have been driver anywhere against almost same salary/consideration, which he might have been enjoying from family of deceased--August Supreme Court of Pakistan has held that confessional statement if found consistent with other independent circumstances is trustworthy and can be based for conviction, which is quite contrary to facts of case in hand--It is bare perusal reveals that delay in recording confessional statement has been discussed therein, which is not matter in case in hand--Nevertheless it has been laid down that sole confessional statement can be made basis for conviction, however, it has also been held that it should be corroborated by medical evidence, recovery of crime weapon and occular testimony, which is straightway missing in instant case--Hence, when examined from every angle, case-law cited by counsel for complainant is quite distinguishable from facts of this particular case--Held: It is settled principle of law that prosecution has to stand on its own legs, whereas, defence has to show only glimpse--Moreover, prosecution cannot take any benefit of weakness of defence plea--Even if accused does not lead to prove plea of innocence but accused version receiving support to extent of being reasonably possible from prosecution evidence, accused is entitled to his acquittal--Further held: It goes without saying that whole prosecution case is based upon circumstantial evidence--It is settled principle of law that to base conviction on circumstantial evidence there should be interlinking chain of credible and cogent corroborative evidence available on record, which needless to mention is totally missing in this case--From above stated facts and circumstances, it is abundant clear that in this particular case prosecution version is burdened/loaded with major discrepancies, which create serious doubts in its authenticity--Prosecution version with regard to manner of approaching complainant and prosecution witnesses to house of deceased, medical evidence being at variance and manner of recoveries coupled with alleged judicial confession made by appellants, contradict each other on material points creating serious cracks in prosecution version--Prosecution has absolutely failed to bring on record any convincing material to establish that it were appellants who had committed occurrence--It is established principle of law that to extend benefit of doubt it is not necessary that there should be so many circumstances--If one circumstance is sufficient to discharge and bring suspicion in mind of Court that prosecution has faded up evidence to procure conviction then Court can come forward for rescue of accused persons--Moreover, it is golden principle of law that Court ought to let off 100 guilty but should not convict one innocent person on basis of suspicion--Appeal was accepted.
[Para 18, 22, 23, 24, 25 & 26] A, C, D, E, F, G, H, I, J & K
1991 SCMR 942, 1999 SCMR 1972, PLD 2006 SC 219, PLD 1958 SC 242, PLD 2002 SC 643, PLD 1970 SC 10, 1972 SCMR 15 and
1995 SCMR 1345.
M/s. Rai Bashir Ahmed and Asim Bukhari, Advocates for Appellants.
Mr. Tariq Javed, DDPP for State.
Mr. Rustam Khan Padhiar, Advocate for Complainant.
Date of hearing: 6.2.2014.
PLJ 2021 Cr.C. (Note) 63
[Lahore High Court, Lahore]
Present: Sayyed Mazahar Ali Akbar Naqvi and Miss Aalia Neelum, JJ.
versus
STATE--Respondent
Crl. A. No. 11 of 2008, and M.R. No. 1 of 2008/BHP, heard on 6.2.2014.
Judgment
Sayyed Mazhar Ali Akbar Naqvi, J.--Muhammad Afzal son of Javed Akhtar, caste Arain, resident of Chak No. 55/DB, Tehsil Yazman, District Bahwalpur, Shabbir Ahmed son of Basheer Ahmed, caste Arain, resident of Nazir Abad Colony, Bahawalpur and Imran Javed son of Muhammad Haneef, caste Arain, resident of Nazir Abad Colony, Bahawalpur, appellants, were involved in case FIR No. 42, dated 11-2-2005, offence under Sections 302, 34, P.P.C., read with Sections 6/7 of the Anti-Terrorism Act, 1997, registered at Police Station Civil Lines, Bahawalpur and were tried by Mr. Muhammad Islam, learned Judge, Anti-Terrorism Court, Bahawalpur. The learned trial Court seized with the matter in terms of judgment dated
24-7-2008 convicted and sentenced the appellants as under:--
(i) Under Section 302(b)/34, P.P.C., all the appellants were sentenced to death on five counts with direction to pay Rs. 2,00,000 each as compensation to the legal heirs of the deceased and in case of default in payment thereof they were directed to undergo S.I. for six months.
(ii) Under Section 7 of the Anti-Terrorism Act, 1997 read with Section 34, P.P.C., the appellants were sentenced to death on five counts with fine of Rs.1,00,000 each and in case of default in payment thereof, to undergo S.I. for six months each.
(iii) Under Section 460/34, P.P.C., the appellants were sentenced to undergo imprisonment for life.
(iv) Under Section 392/34, P.P.C., the appellants were sentenced to undergo R.I. for ten years each with fine of Rs.50,000 each and in case of default in payment thereof, all of them were directed to undergo S.I. for six months.
(v) Under Section 411, P.P.C., Imran Javed appellant was sentenced to undergo R.I. for three years.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellants have assailed the same through filing Crl. Appeal No. 11 of 2008 while the learned trial Court has forwarded Murder Reference No. 1 of 2008/BHP for confirmation of death sentence inflicted upon Muhammad Afzal, Shabbir Ahmed and Imran Javed/convicts in terms of Section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial Court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as contained in the FIR (Exh.PM) lodged on the statement of Muhammad Irshad son of Sardar Ali, caste Arain, resident of Chak No. 40/DNB (P.W.8) is that he was a retired army personnel. On 11-2-2005 at 2:00 p.m. the complainant along with Muhammad Boota Tariq son of Ch. Muhammad Din, caste Arain, resident of Chak No. 42/DNB (P.W.10) Mamoon of the complainant, in connection with some domestic affairs, visited Bahwalpur City and thereafter, they went towards the house of Zubaida, sister of the complainant, whose husband had gone to Saudi Arabia for earning livelihood, situated at Nazeer Abad Colony. On the way, Muhammad Riaz (P.W.9), elder brother of behnvai of the complainant also met, who accompanied them and when about 2:45 p.m. all of them reached the house, they saw that outer door of the house was closed. On this the complainant along with other visited the house of Muhammad Hanif brother of Mukhtar Ahmed Behnvai of the complainant and asked about Zubaida on which they overheard the noise of a female child weeping inside the house. While scaling over the wall, the complainant went inside the house and saw that the door of the residential room was closed while its keys were lying there inside Veranda. After taking the keys, the complainant gave it to Muhammad Boota Tariq, who along with Muhammad Riaz after unlocking the outer door came inside and in their presence, the complainant opened the door of the room and saw that on one cot dead body of Mst. Zubaida was lying smeared with blood and on other cot dead bodies of Khurram Mukthar (bhanja of the complainant) while on another cot Iram Mukhtar and Kirn Mukhtar (bhanjies of the complainant) were lying dead and in between the cots dead body of Iqra Mukhtar was lying and around their necks string was tied, who were murdered by unknown accused persons. Sana Mukhtar, minor bhanji of the complainant aged 2 years was found alive, who was weeping. After leaving Muhammad Boota Tariq and Muhammad Riaz, to safeguard the dead bodies, the complainant visited the Police Station, where he met with Khawar Zaman Lodhi, Inspector/SHO (P.W.16) and made his statement, which was reduced into writing in the shape of FIR.
4. After registration of the case, the Investigating Officer along with the complainant and other police officials rushed towards the place of occurrence and found dead bodies of Mst. Zubaida, Khurram Mukhtar, Kiran Mukhtar, Irum Mukhtar and Iqra Mukhtar and examined them. He prepared injury statement of Mst. Zubaida (Exh.PA/ 2), her inquest report (Exh.PA/3), injury statement of Irum Mukhtar (Exh.PB/3), her inquest report (Exh.PB/2), injury statement of Mst. Kirn Mukhtar (Exh.PC/3) and her inquest report (Exh.PC/2), injury statement of Mst. Iqra Mukhtar (Exh.PD/3) and her inquest report (Exh.PD/2), injury statement of Khurram Mukhtar (Exh.PE/2) and his inquest report (Exh.PE/3) and handed over the dead bodies to Muhammad Ayyaz 1690/C for escorting to mortuary for post-mortem examination. Thereafter, the Investigating Officer inspected the place of occurrence and secured quilt (P-25), Gadda/Mattress (P-26), Khais (P-27), red sheet (P-28) and pillow's cover (P-29), all bloodstained and took into possession vide recovery memo. Exh.PN. The Investigating Officer also secured blood through cotton beneath the cot of Mst. Zubaida and made into sealed parcel vide recovery memo. Exh.PQ. He further secured a small diary (P-30), a notebook (P-31) and Identity Card of Ghulam Shabbir (P-32) and took into possession vide recovery memo. Exh.PR. At the same time, the Investigating Officer collected nylon (P-33) from the spot and secured vide recovery memo. Exh.PS. From the kitchen the Investigating Officer collected a piece of sweet (Ras Gulla) and made into sealed parcel vide recovery memo. Exh.PU. He further secured two butts of cigarettes (P-34/1-2) one of Embassy Filter and the other of Wills Filter and made into sealed parcel vide recovery memo. Exh.PT. At the same time the Investigating Officer secured shirt bloodstained (P-35) of Mst. Zubaida from bathroom and made into sealed parcel vide recovery memo. Exh.PV. All the recovery memos were signed by the witnesses and the Investigating Officer also recorded their statements in this regard in terms of section 161, Cr.P.C. Besides above, he prepared rough site plan of the place of occurrence (Exh.PGG).
After the post-mortem examination on 12-2-2005, Ayyaz constable handed over last worn clothes of Mst. Zubaida viz. Woolen Chadhar (P-1), qameez (P-2), shalwar (P-3), underwear (P-4), a piece of cloth (P-5) another piece of white cloth (P-6), a pooni (P-7), all bloodstained to the Investigating Officer which he took into possession vide recovery memo. Exh.PG. Similarly last worn clothes of Khurram Mukhtar shalwar (P-8), qameez (P-9), jersey high-neck (P-10), two pieces of cloth (P-11/1-2) and a frock (P-12) were secured vide recovery memo. Exh.PH. Last worn clothes of Mst. Kirn Mukhtar frock (P-13), pajama (P-14), jersey (P-15), string nylon (P-16) were secured vide recovery memo. Exh.PJ while last worn clothes of Mst. Irum Mukhtar qameez (P17), shalwar (P-18), paranda (P-19) and dupatta (P-20) were taken into possession vide recovery memo. Exh.PK. Finally last worn clothes of Mst. Iqra Mukhtar jersey (P-21), pajama (P-22), frock (P-23) and two pieces of string (P-24/1-2) were produced before the Investigating Officer, which he secured vide recovery memo. Exh.PL.
On 12-2-2005, the Investigating Officer had recorded supplementary statements of the complainant and Javed Iqbal. Similarly, on 15-2-2005, Mukhtar Ahmed, husband of Mst. Zubaida deceased appeared before the Investigating Officer and he recorded his statement in terms of Section 161, Cr.P.C.
On 20-2-2005, the Investigating Officer arrested the appellants. Muhammad Afzal appellant after making disclosure led the police party towards Hanif Autos situated at Bus Adda and got recovered his shalwar (P-36), qameez (P-37) and a safa (P-38), all bloodstained, which were secured vide recovery memo. Exh.PK. Thereafter, the appellant further led to the recovery of chhuri (P-39), which the Investigating Officer took into possession vide recovery memo. Exh.PY. He also prepared rough site plan of the place of recovery. Thereafter, Imran Javed appellant after making disclosure led to the recovery of mobile phone NOKIA-3310 (P-40), a pair of tops/ear rings made of gold (P-41/1-2) and a golden ring (P-42) lying under a plank of Sewing Machine, which were secured vide recovery memo. Exh.PZ. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PZ/1). On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned and also recorded the statements of the prosecution witnesses in terms of Section 161, Cr.P.C.
On 21-2-2005, the accused were produced before the learned Illaqa Magistrate, Bahawalpur; where they got recorded their statements in terms of Section 164, Cr.P.C.
5. After conclusion of investigation, the Investigating Officer prepared report under Section 173, Cr.P.C. and sent the same to the Court of competent jurisdiction. Firstly the appellants were charge sheeted on 22-10-2005, subsequently on 18-1-2006 and thereafter fresh amended charge was framed on 21-2-2006 to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as sixteen (16) prosecution witnesses.
Muhammad Irshad (P.W.8) is the complainant of the case while his stance was supported through the statements of Riaz Ahmed (P.W.9) and Muhammad Boota (P.W.10). Syed Gul Hassan Shah Patwari had prepared scaled site plan (Exh.PF and Exh.PF/1) of the place of occurrence. The accused had got recorded their statements in terms of Section 164, Cr.P.C. before Muhammad Tariq Javed, learned Magistrate (P.W.15) while Khawar Zaman Lodhi, DSP (P.W.16) besides recording of FIR had also investigated the case.
Dr. Tabussam Jabeen Durrani (P.W.1), on 11-2-2005, had conducted post-mortem examination upon the dead body of Mst. Zubaida deceased and found following injury on her person:--
"Injury No. 1
There was an incised wound measuring 2.5 cm x 1 cm x blind deep on left upper chest just lateral to midline of mediasternum. Peritoneum was cut on dissection of chest. Pericardium was cut, a clotted blood was present in pericardial cavity. Ascending aorta was cut at the origin. Somewhat semi-digested food was present in stomach."
After conducting the post-mortem examination, the doctor opined as under:
"After thorough external and internal post-mortem examination, I am of the opinion that Injury No. 1 causing shock leading to coma and death is sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and caused by sharp edged weapon. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney were taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion regarding poisoning will be given after receiving report.
Probable time that elapsed between injury and death was within five minutes and between death and post-mortem was more than 18 hours and less than 36 hours."
On the same day at 11:55 p.m., the doctor had further conduced post-mortem examination upon the dead body of Mst. Irum and found following injury on her person:
"There was brownish black pressure impact abrasion irregular measuring 4 cm x 3 cm on lateral aspect of left middle neck. On dissection of injury clotted blood present on underlying muscles. A clotted blood present on left cornu of hyoid bone which was fractured."
After conducting the post-mortem examination, the doctor rendered the following opinion:
"After thorough external and internal post-mortem examination, I am of the opinion that Injury No. 1 causing compression of neck leading to acute insufficiency of circulation of oxygen leading to asphyxia, coma and death was sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and as a result of strangulation. Sample of perineal swabs along with piece of shalwar taken, sealed and sent to Chemical Examiner, Lahore for detection of semen along DNA typing. Final opinion regarding sexual assault if any will be given after receiving report. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion regarding poisoning will be given after receiving report.
Probable time that elapsed between injury and death was within 15 minutes and between death and post-mortem was more than 18 hours and less than 36 hours."
On 12-2-2005 at 1:00 a.m. (night), the doctor also conducted post-mortem examination upon the dead body of Mst. Kirn Mukhtar and observed as under:-
"There was ligature mark on whole upper neck with yellow ligature of nylon. Subconjuctival petechial haemorrhages in both eyes. Face suffused on cutting of rope a ligature mark was present on whole upper neck, brownish in colour. On dissection of neck deep bruising present in underlying muscles. Hyoid bone was fractured. No visible mark of violence except described above."
After conducting the post-mortem examination, the doctor opined as under:
"After thorough external and internal post-mortem examination, I am of the opinion that Injury No. 1 causing compression of neck leading to asphyxia, coma and death was sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and caused by strangulation with the rope. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion regarding poisoning will be given after receiving report.
Probable time that elapsed between injury and death was within 15 minutes and between death and post-mortem was more than 18 hours and less than 36 hours."
Further on 12-2-2005 at 1:50 a.m. P.W.1 also conducted post-mortem examination upon the dead body of Iqra Mukhtar and observed as under:
"There was ligature mark on neck with yellow ligature of nylone around the neck. Face was suffused. On cutting of ligature i.e. rope a ligature mark was present on upper whole neck brownish in colour. On dissection of neck deep bruising present in under lying muscles. Hyoid bone was fractured. No other visible mark of violence except described above."
After conducting the post-mortem examination, the doctor opined as under:
"After thorough external and internal post-mortem examination, I am of the opinion that Injury No. 1 causing compression of neck leading to asphyxia, coma and death was sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and caused by strangulation with the rope. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion regarding poisoning will be given after receiving report.
Probable time that elapsed between injury and death was within 15 minutes and between death and post-mortem was more than 18 hours and less than 36 hours."
It is pertinent to mention here that the visceras taken out of all the dead bodies were sent to the office of Chemical Examiner and as per respective reports, in all the cases it was opined that morphine was detected in the visceras. However, quantitative estimation was not possible.
On 12-2-2005 at 2:40 a.m. Dr. Rao Muhammad Javed Akhtar (P.W.2) had conducted post-mortem examination upon the dead body of Khurram Mukhtar and observed following injury on his person:
"There was a brownish coloured ligature mark present with a depressed bed in the ligature mark. On the dissection of the ligature mark bruising was present in the underlying muscles and sub-cutaneous tissue. Hyoid bone was fractured."
After conducting the post-mortem examination, the doctor opined in the following terms:
"After thorough external and internal post-mortem examination, I was of the opinion that Injury No. 1 causing compression of neck, mouth and nose leading to acute asphyxia leading to coma and death was sufficient to cause death in ordinary course of life. Injury was ante mortem in nature and caused by strangulation. Samples of stomach with contents, small and large intestines pieces, piece of liver, spleen and kidney taken, preserved in saturated saline and sent to Chemical Examiner, Government of Punjab, Lahore for detection of any poison/sedative along with quantitative and qualitative analysis if any. Final opinion/regarding poisoning will be given after receiving report.
Probable time that elapsed between injury and death was within 15 minutes and between death and post-mortem was more than 18 hours and less than 36 hours."
In this case too, as per report of Chemical Examiner, morphine was detected in the visceras.
Statements of rest of the prosecution witnesses are formal in nature.
6. On 3-8-2006 learned Public Prosecutor gave up Javed Iqbal and Ayyaz Ahmed, P.Ws., being unnecessary. Further vide his statement recorded on 16-4-2008, besides giving up Riaz Ahmed, Abdul Majeed and Muhammad Ismail, P.Ws., being won over, learned Public Prosecutor after tendering in evidence the report of Chemical Examiner No. 634/B, dated 22-2-2005 (Exh.PHH), report No. 853/B dated 15-3-2005, (Exh.PJJ) report No. 258/PV dated 6-4-2005 (Exh.PKK) and reports of Serologist No. 1962/Sero, dated 27-9-2005 (Exh.PLL) and report No. 775/Sero dated 9-5-2007 (Exh.PMM), closed the prosecution evidence.
7. The appellants/convicts were also examined under Section 342, Cr.P.C.; wherein they opted to produce defence evidence, however, they opted not to appear as their own witnesses in terms of section 340(2), Cr.P.C. in disproof of the allegations levelled against them in the prosecution evidence. While replying to the question why this case against him and why the P.Ws. deposed against him, Shabbir Ahmed appellant made the following deposition:
"P.Ws. Waheed Akhtar and Muhammad Dawood are related inter se and with deceased. They were inimical towards me that is why they have deposed falsely against me."
Muhammad Afzal, appellant, while replying to this particular question replied as under:
"P.Ws. Wahid and Dawood are inimical towards me being our political rivals. They are related inter se and with deceased, that is why they have deposed against me."
While replying to this specific question Imran Javed, appellant, made the following deposition:
"P.Ws. are related inter se and with deceased. They are interested witnesses. No independent witness was produced against me."
8. Learned trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt against the appellants resulting into their conviction in the afore stated terms.
9. Learned counsel for the appellants while addressing the Court submitted that admittedly it was an unseen occurrence and even no exact time of occurrence was mentioned in the crime report. Learned counsel forcefully argued that the appellant was resident of 80-KMs away from the place of occurrence and there is nothing on record for the purpose of proceedings to the house of his sister. He contended that even the statement of the complainant is belied by the deposition of the Investigating Officer (P.W.16) according to whom the police was informed about the occurrence by the tenants of the house of deceased sister of the complainant. It was urged that the medical evidence is in conflict with the prosecution version as the doctor had opined that duration in the death and post-mortem examination was ranging from 18-36 hours. Moreover, morphine was also detected in the visceras taken out from all the dead bodies. Learned counsel emphasized that the presence of the prosecution witnesses of last seen viz. Muhammad Akhtar (P.W.11) and Muhammad Javed (P.W.12), is doubtful. Regarding confessional statements recorded by the appellants in terms of Section 164, Cr.P.C., learned counsel while drawing attention of the Court towards an application (Exh.DF) urged that the same was moved by mother of one of the appellants before the Magistrate on 17-2-2005 and thereafter while adopting 3rd degree matters the Investigating Officer raised pressure on the appellants, therefore, the alleged confessional statements recorded on 20-2-2005 cannot be termed as voluntary and this also do not coincide with other circumstances. Regarding recovery of articles affected from the appellants, learned counsel urged that it has come in the statement of Khawar Zaman Lodhi, DSP/Investigating Officer that at the time of spot inspection the doors of the Almirahs, boxes, suit case were not broken, therefore, the alleged recovery is of least importance. In this backdrop, learned counsel urged, in absence of any interlinking evidence, the learned trial Court was not justified in recording conviction/ sentence against the appellants. Learned counsel for the appellants, in support of his contentions, referred the dictum of law laid down in the cases of Fazal Mahmood alias Pappu v. The State (1999 SCMR 2040), Wilayat Ali v. The State and another (2004 SCMR 477), Majeed v. The State (2010 SCMR 55).
10. As against above, learned DDPP assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellants with the submissions that nevertheless the appellants were not named in the crime report, however, after their arrest on 20-2-2005, at their own, the appellants made voluntary statements in terms of Section 164, Cr.P.C. before the learned Magistrate, hence they are fully linked with the instant case. Learned counsel for the complainant submitted that from the spot CNIC of Shabbir appellant was recovered from which the accused were traced and subsequently during the course of investigation stolen articles and diary were also recovered on their pointing out, which fully establish their link with the commission of offence. Regarding medical evidence, learned counsel for the complainant urged that the same is in line with the prosecution version. Learned counsel emphasized that Riaz Ahmed (P.W.9) was equally related to the deceased, as well as, the accused party, therefore, he was having no reason to falsely depose against the appellants and even no suggestion was put to him that he made false deposition. It was finally argued that in view of cogent and confidence inspiring evidence led by the prosecution, while attending each and every aspect of the case, the learned trial Court rightly passed conviction against the appellants. The learned DDPP, as well as, learned counsel for the complainant, in these circumstances prayed for dismissal of the appeal filed by the appellants. In support of his contentions learned counsel for the appellants placed reliance on the dictum of law laid down in the cases of Nabi Bakhsh and another v. The State and another (1999 SCMR 1972), Muhammad Gul and others v. The State (1991 SCMR 942), Muhammad Amin v. The State (PLD 2006 Supreme Court 219).
11. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned DDPP.
12. Before recording our observations with regard to authenticity of the prosecution version it is manifest to note that admittedly it was a gruesome occurrence, which resulted into death of five innocent persons in a very brutal/ reckless manner. No doubt the occurrence had taken place in a brutal manner and there can be hardly any justification for the barbarism shown by the accused while committing such a heinous crime but at the same time to equilibrium the situation and to scrutinize the whole evidence available on the record while weighing the same on the judicial parlance, this Court is under bounden duty to evaluate all the facts and circumstances in order to arrive at the conclusion whether conviction can be maintained in the instant occurrence in the given scenario.
13. In order to evaluate the evidence available on the record first of all this Court has to see the time of occurrence, place of occurrence, mode and manner of occurrence and while juxtaposing the same with the evidence led by the prosecution consisting of statements of the complainant, as well as, Riaz Ahmed (P.W.9) and Muhammad Boota (P.W.10), medical evidence, recovery of stolen articles, motive, judicial confession and last seen.
In the instant case the delay in lodging the FIR is very alarming, which aspect itself requires its detailed scrutiny. There is no second cavil to this proposition that according to the prosecution own case, the occurrence had taken place 'Shab Gazishta' whereas the matter was reported to the police on the following day i.e. 11-2-2005 at 4:00 p.m. By estimation of facts and circumstances brought forth on the record, it is established that atleast 20 hours were consumed in reporting the matter to the police. This aspect of the case could be ignored in the mind of a prudent man if the occurrence would have taken place at some deserted place, however, as far as the case in hand is concerned, it is an admitted fact that the occurrence had taken place inside a house when its upper portion was occupied by tenants. It is very astonishing that in a populated area where the houses are surrounded by the inhabitants, no one could get even a glimpse of such a huge occurrence till the arrival of the complainant Muhammad Irshad (P.W.8) who had come to the house of his sister on the following day in the evening hours after covering a distance of 80-KMs without assigning any cogent reason for his arrival. It means that the arrival of the complainant and the prosecution witnesses at the place of occurrence was as per chance.
14. Another important aspect of the case which cannot be ignored is that both the prosecution witnesses, who accompanied the complainant are residents of distant place away from the place of occurrence and when they approached the house of deceased sister of the complainant and the fact of their overhearing the voice/shriek of a child coming from inside the house, soon after, is something extraordinary. Resultantly they entered into the home by scaling over the walls of neighbours and as such the prosecution version was unearthed.
15. It is also amazing that as per prosecution version when the complainant entered into the house, he found the keys lying in the compound and after getting those keys the residential rooms were opened and they found the injured child along with dead bodies. Subsequent to that the dead bodies were evacuated to the mortuary, however, as per post-mortem examination reports it reveals that the time in between the injuries and post-mortem examination was ranging from 18-36 hours. This aspect when taken into consideration and scrutinized on the touchstone of medical jurisprudence, the time of occurrence will further be extended contrary to the prosecution. This Court also cannot lose sight of the fact that at the time of post-mortem examination visceras taken from the dead bodies were sent to the office of Chemical Examiner and as per respective reports of the quarter concerned, those contained morphine. This fact finds further support that a piece of sweet (Rus Gulla) was also recovered from the kitchen coupled with the fact that there were certain articles recovered belonging to Zubaida deceased lying in the bath room. The whole facts and circumstances when read conjointly the possibility cannot be ruled out that the occurrence was committed by someone who was welcomed in the house with whom the time was consumed and subsequent to that due to one reason or the other instant occurrence had taken place.
16. As far as identity of the appellants is concerned as per prosecution version that commenced from recovery of the I.D. Card of Shabbir Ahmed appellant, which was found available in the compound. This material, which led to the arrest of the appellants, is not substantiated from the evidence of Khawar Zaman Lodhi, DSP (P.W.16)/Investigating Officer, who while appearing in the witness box stated that he was informed by the tenants of Zubaida deceased regarding the occurrence. Relevant portion of the statement of the Investigating Officer reads as under:
"During my investigation Maqsood Ahmed and Irshad tenants disclosed that due to non-availability of water in the upper-storey, they firstly went to the adjacent of house of Muhammad Hanif (father of Imran accused) and then scaled over the wall of the house of Mst. Zubaida in order to start the Motor Pump, but found the room locked and then after finding the keys in the Veranda they had unlocked the door and found the dead bodies lying there."
While analyzing the prosecution version upon this touchstone, it clearly repudiates the prosecution version at length and likewise at the same time it appeals to reason very vigorously as compared to the other view advanced by the prosecution through the statements of the complainant and other prosecution witnesses, which otherwise seems an afterthought.
17. Recovery of certain articles from the appellants also becomes doubtful due to the reason that while appearing in the witness box Khawar Zaman Lodhi, DSP/ Investigating Officer straightway admitted that:
"While inspecting the place of occurrence I had taken site inspection notes. In site inspection note it is no where mention to have taken notice about the opening of any Almirah, Suit-Case, Box, PETTI, Brief-case etc at the spot."
The above portion of statement of the Investigating Officer itself nullifies the factum of alleged recovery from the accused during the course of investigation.
18. Motive of the instant case is very remote. It is said that Imran appellant was working as driver of a vehicle belonging to the deceased family and on account of unavoidable circumstances he was thrown out of his job. Firstly the prosecution had failed to substantiate the motive either during the course of investigation or during the course of trial and secondly this could not lead to such a heinous offence when a person who is technically capable to earn his livelihood, he would have been driver anywhere against almost the same salary/consideration, which he might have been enjoying from the family of the deceased.
19. In this backdrop the most reliable piece of evidence introduced by the prosecution according to its own whims, which still remains in field is judicial confession. It is an established fact that mother of one of the appellants Imran Javed moved an application after arrest of her son according to contents of Exh.DF when Imran Javed and Shabbir Ahemd appellants were taken into custody by the Investigating Officer much earlier to the arrest shown during the course of investigation. The Magistrate (P.W.15) not only entertained that application rather an express order was also passed in that application. Subsequently they were subjected to torture committed by the Investigating Officer which too is supplemented by the medical evidence. So much so it is very alarming that mother and sister of the appellants were forced to go to the police station by using 3rd degree methods. When all these aspects are read together and assessed while touching upon the parlance of judicial accuman, it is not beyond comprehension that possibility cannot be ruled out that the judicial confession was procured while using 3rd degree.
20. As far as the legality of the judicial confession is concerned, it is established principle of law that the confession procured through torture has no legal value and subsequently if the same is retracted it further loses its string. Even otherwise there is chain of judgments on the subject that while taking into consideration the confessional statement of the accused, as an abundant caution for fair-play and justice in view of guidelines enunciated in the cases of Fazal Mahmood alias Pappu v. The State (1999 SCMR 2040), Wilayat Ali v. The State and another (2004 SCMR 477), Majeed v. The State (2010 SCMR 55), the Court must be satisfied whether the same finds corroboration from other independent circumstances floating on the record.
21. Before concluding we are also adamant to comment upon the prosecution version of last seen coming from the statements of Waheed Akhtar (P.W.11) and Muhammad Javed (P.W.12). Admittedly both the prosecution witnesses of last seen hail from a place 30-KMs away from Bahawalpur. Moreover, neither they could explain the purpose for which they had visited Bahawalpur; thereby bringing on record the medical slips issued by the doctor or other material nor the story disclosed qua their waking up and witnessing the accused at the relevant time appeals to reason particularly when the medical evidence is at variance on this score.
22. Now we take up the case-law cited by learned counsel for the complainant. In the case of Muhammad Gul and others v. The State (1991 SCMR 942), the august Supreme Court of Pakistan has held that the confessional statement if found consistent with the other independent circumstances is trustworthy and can be based for conviction, which is quite contrary to the facts of the case in hand. As far as the guidelines enunciated in the case of Nabi Bakhsh and another v. The State and another (1999 SCMR 1972), are concerned, its bare perusal reveals that delay in recording confessional statement has been discussed therein, which is not the matter in the case in hand. Similarly, in the case of Muhammad Amin v. The State (PLD 2006 Supreme Court 219), nevertheless it has been laid down that sole confessional statement can be made basis for conviction, however, it has also been held that it should be corroborated by medical evidence, recovery of crime weapon and occular testimony, which is straightway missing in the instant case. Hence, when examined from every angle, the case-law cited by learned counsel for the complainant is quite distinguishable from the facts of this particular case.
23. While scrutinizing the material available on record we have noticed that at the time of recording their statements in terms of section 342, Cr.P.C. the accused had not taken any specific plea qua their false implication in the instant case, however, it is settled principle of law that the prosecution has to stand on its own legs, whereas, the defence has to show only glimpse. Moreover, the prosecution cannot take any benefit of weakness of defence plea. In the case of Shamir alias Shamla v. The State (PLD 1958 Supreme Court 242), it has been held that even if the accused does not lead to prove plea of innocence but accused version receiving support to the extent of being reasonably possible from prosecution evidence, accused is entitled to his acquittal. Moreover, in its ratio decidendi in the case of Shera Masih and another v. The State (PLD 2002 Supreme Court 643) the august Supreme Court of Pakistan had held as under:
"---- Defence plea of the accused even if is not supported by any evidence direct or circumstantial and is discarded being improbable, still it will not be a circumstance to prove the guilt of an accused and the prosecution has to establish its case by standing on its own legs."
24. It goes without saying that the whole prosecution case is based upon circumstantial evidence. It is settled principle of law that to base conviction on circumstantial evidence there should be interlinking chain of credible and cogent corroborative evidence available on the record, which needless to mention is totally missing in this case. Respectful reliance in this regard is placed on the dictum of law of the august Supreme Court of Pakistan in the case of Karamat Hussain v. The State (1972 SCMR 15).
25. Moreover, in absence of incriminating, corroborative/ independent evidence, the whole prosecution case seems to be hinging upon conjectures and surmises creating serious doubts about its authenticity as such it cannot be taken as a proof to bring home guilt of the accused in the case of capital charge. In the case of Muhammad Luqman v. The State (PLD 1970 Supreme Court 10) the august Supreme Court of Pakistan had held as under:
"... It may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from the evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught."
26. From the above stated facts and circumstances, it is abundant clear that in this particular case the prosecution version is burdened/loaded with major discrepancies, which create serious doubts in its authenticity. The prosecution version with regard to manner of approaching the complainant and the prosecution witnesses to the house of the deceased, the medical evidence being at variance and the manner of recoveries coupled with the alleged judicial confession made by the appellants, contradict each other on material points creating serious cracks in the prosecution version. The prosecution has absolutely failed to bring on record any convincing material to establish that it were the appellants who had committed the occurrence. It is established principle of law that to extend benefit of doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Tariq Pervez v. The State (1995 SCMR 1345); wherein it has been held as under:
"---Art. 4--Benefit of doubt, grant of--For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts--If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
Moreover, it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly salutary principle of benefit of doubt is extended in favour of the appellants, hence CRL. APPEAL No. 11/2008/BHP FILED BY MUHAMMAD AFZAL, SHABBIR AHMED AND IMRAN JAVED, APPELLANTS IS ACCEPTED IN TOTO as a result whereof conviction and sentence recorded by the learned
trial Court vide judgment dated 24-7-2008 is set aside and the appellants are ordered to be acquitted of the charge in case FIR No. 42, dated 11-2-2005, offence under Sections 302, 34, P.P.C., read with sections 6/7 of the Anti-Terrorism Act, 1997, registered at Police Station Civil Lines, Bahawalpur, and they are directed to be released forthwith if not required in any other case.
27. Murder Reference No. 1-ATA/2008 forwarded by the learned trial Court for confirmation of sentence of death inflicted upon the convicts fails, which is answered in NEGATIVE.
Death sentence is NOT CONFIRMED.
(A.A.K.) Appeal accepted
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