Well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence-

 PLJ 2021 Cr.C. (Lahore) 299 (DB)

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-e-amd--Dishonest improvements--Extra-judicial confession--There is absolutely no plausible or convincing reason for aforesaid delay in reporting matter to police which casts serious doubt about veracity of prosecution story--Prosecution case made dishonest improvements, he was confronted with his previous statement and improvements were brought on record--Even otherwise last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case--No evidence qua abduction of deceased by appellant was produced by prosecution during trial and even appellant was not convicted in said charge meaning thereby story narrated by complainant qua abduction of deceased at hands of appellant has been disbelieved by trial Court--Most important and natural purpose of making extra-judicial confession is to seek help from third person and same is usually sought from an influential person who had some authority/power in society but in case in hand witnesses of extrajudicial confession are ordinary women rather they were close relatives of deceased--Furthermore, extrajudicial confession is always considered a weak type of evidence and it is procured at any time during investigation when there is no direct evidence available to prosecution--Moreover, legal worth of extra judicial confession too is almost equal to naught, keeping in view natural course of events, human behaviours, conduct and probabilities, in ordinary course--Extra judicial 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, therefore, in our view this piece of evidence is entirely insufficient to maintain conviction on such a charge, more so, when it is badly tainted one and appears to be job of investigating officers who normally indulge in such like police chicanery--How Chemical Examiner could give an opinion about presence of human blood on it--Moreover, alleged recovery of bicycle at instance of appellant is of no avail to prosecution because it was an ordinary bicycle, easily available in market--Medical evidence produced by prosecution was not of much avail to prosecution because murder in issue had remained unwitnessed and, thus, medical evidence could not point an accusing finger towards appellant implicated in this case--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--Appeal was allowed.   [Pp. 303, 305, 306 & 307] A, B, C, D, E, F & G

Benefit of doubt--

----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story.        [P. 307] H

1995 SCMR 127, PLJ 2008 SC 687, PLD 2018 SC 813, 2011 SCMR 1233, 2015 SCMR 155, 2016 SCMR 267, 2016 SCMR 1144, 2015 SCMR 840 and 2016 SCMR 1605.

Mr. Amin Ashraf Khan and Ms. Nighat Saeed Mughal, Advocates for Appellants.

Mr. Tariq Javed, Addl. Prosecutor General for State.

Ch. Hashim Hayat, Advocate for Complainant.

Date of hearing: 11.11.2020.

 PLJ 2021 Cr.C. (Lahore) 299 (DB)
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
KASHIF--Appellant
versus
STATE--Respondent
Crl. A. No. 506-J of 2018 & M.R. No. 70 of 2017, heard on 11.11.2020.

Judgment

Shehram Sarwar Ch., J.--Kashif (appellant) was tried by the learned Addl. Sessions Judge, Chichawatni in case FIR No. 15 dated 08.01.2015, offence under Section 364, PPC (Sections 302 and 377, PPC were added later on), registered at Police Station Kassowal District Sahiwal for the murder of Ghulam Abbas son of the complainant. Vide judgment dated 28.03.2017 passed by the learned Addl. Sessions Judge, Chichawatni, Kashif (appellant) has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 70 of 2017 for confirmation or otherwise of the sentence of death of Kashif (appellant), 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.

2. Prosecution story, as set out in the FIR (Exh.PA/2) registered on the statement (Ex.PA) of Muhammad Rasheed, complainant (PW.l) is on 05.01.2015 at about 2:00 p.m. he alongwith Muhammad Riaz and Qasim Ali were talking while sitting in his house. His son Ghulam Abbas aged about 14/15 years, the student of 9th class was also sitting alongwith them. Kashif, who having friendship with Ghulam Abbas as well as visiting terms came to his house and took Ghulam Abbas with him with the pretext for playing. Ghulam Abbas did not return till evening whereupon complainant and other PWs got worried and started search of Ghulam Abbas. When the complainant and other PWs reached outside the village, Nazir Ahmad and Muhammad Arshad met them and told that some time ago they had seen Ghulam Abbas in the company of Kashif while going towards his land on bicycle whereupon the complainant and other PWs went to Kashif who after sufficient procrastination admitted the abduction of Ghulam Abbas and promised to return him. Kashif used to make promise for return of Ghualm Abbas till today but now he had refused.

3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Kashif (appellant) was summoned by the learned Addl. Sessions Judge, Chichawatni to face the trial. Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against him on 21.03.2015, to which he pleaded not guilty and claimed trial. Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 20.03.2017, wherein he refuted all the prosecution allegations levelled against him and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference.

4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of about three days in reporting the matter to the, police without there being any satisfactory explanation; that there is no direct evidence against the appellant; that it was an unseen incident; that alleged extrajudicial confession of Kashif (appellant) qua abduction of Ghulam Abbas (deceased) before Muhammad Rasheed, complainant (PW.l) and Riaz (PW.9) is of no avail to the prosecution because it was a weak type of evidence; that evidence of last seen furnished by Muhammad Arshad (PW.10) does not connect the appellant with the commission of crime; that alleged recoveries of bicycle and hatchet at the instance of appellant are inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.

5. On the other hand, learned Addl. Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that the complainant's side had no enmity against the appellant for his false implication in this case; that prosecution evidence in the form of last seen, extrajudicial confession, medical evidence and recoveries is available on the record which connects the appellant with the commission of crime; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.

6. We have heard arguments of learned counsel for the parties as well as learned Law Officer for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.

7. Salient features of the prosecution case are as under:-

(a)      This incident qua abduction of Ghulam Abbas son of complainant allegedly took place on 05.01.2015 and as per prosecution's own case the appellant allegedly confessed about the abduction of Ghulam Abbas on the same day before the complainant's party but surprisingly the matter qua the abduction of Ghulam Abbas was reported to the police on 08.01.2015 i.e. about three days after the abduction of above said deceased. The distance between police station and the place of occurrence was eleven miles. There is absolutely no plausible or convincing reason for the aforesaid delay in reporting the matter to the police which casts serious doubt about the veracity of prosecution story. Reliance may be placed on case law titled as "Mehmood Ahmed and three others vs. The State and another" (1995 SCMR 127).

(b)      The evidence of last seen was furnished by Muhammad Arshad (PW.10). It was the claim of said PW that on 5.1.2015 at about 3:30 p.m. he alongwiith Nazir Ahmad PW was standing outside the village Abadi in Square No. 43 Killa No. 15 where they saw Ghulam Abbas in the company of Kashif (appellant) while going towards the land of appellant on bicycle. The story of last seen cooked by the prosecution is improbable and does not appeal to a prudent mind because if Muhammad Arshad (P W. 10) had seen the deceased in the company of the appellant on 5.1.2015 and the said PW stated the said fact to the complainant without wasting any time then as to why the matter was not reported to the police on the same day. Moreover, the said PW while appearing before the learned trial Court in order to strengthen the prosecution case made dishonest improvements, he was confronted with his previous statement and the improvements were brought on record. Even otherwise last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. Reliance is placed on case law titled as "Altaf Hussain vs. Fakhar Hussain and another" (PLJ 2008 SC 687). Moreover, the Hon'ble Supreme Court of Pakistan in its recent judgment titled as "Muhammad Aibid vs. The State and' another" (PLD 2018 Supreme Court 813) has given an exhaustive view about the theory of last seen which is reproduced as under:-

          "5. ... The theory of last seen together is one where two persons are 'seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.

          6. The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. Proximity of the crime scene. 3. Small time gap between the sighting and crime 4. No possibility of third person interference 5. Motive. 6. Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectively between the accused and the crime."

(c)      Evidence of the alleged extrajudicial confession qua abduction of Ghulam Abbas made by Kashif (appellant) before Muhammad Rasheed, complainant (PW.1) and Muhammad Arshad (PW.10) cannot be used against the said appellant because it does not appeal to a prudent mind as to what prompted the said appellant to confess his guilt before the above said PWs because at that time, there was no evidence against him regarding his involvement in this crime. Moreover; no evidence qua abduction of deceased by the appellant was produced by the prosecution during the trial and even the appellant was not convicted in the said charge meaning thereby the story narrated by the complainant qua abduction of deceased at the hands of appellant has been disbelieved by the learned trial Court. The most important and natural purpose of making extra-judicial confession is to seek help from the third person and the same is usually sought from an influential person who had some authority/power in the society but in the case in hand the witnesses of extrajudicial confession are ordinary women rather they were the close relatives of the deceased. Furthermore, extrajudicial confession is always considered a weak type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extra judicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course. Needless to remark that extra judicial 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, therefore, in our view this piece of evidence is entirely insufficient to maintain conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who normally indulge in such like police chicanery. Reliance is placed on case laws titled as "Hamid Nadeem versus The State" (2011 SCMR 1233), "Imran alias Dully and another versus The State and others" (2015 SCMR 155), "Muhammad Nawaz and others versus The State and others" (2016 SCMR 267) and "Nasir Javaid and another vs. The State" (2016 SCMR 1144).

(d)      Admittedly, no one had seen Kashif (appellant) while killing the deceased. Moreover, the above said appellant was not produced before the learned Area Magistrate soon after his arrest for recording his judicial confession. Furthermore, the role played by the appellant in the incident in issue had not been disclosed or alleged by the prosecution through independent evidence as to under what circumstances the deceased had been done to death. As far as alleged recovery of dead-body of Ghulam Abbas (deceased) on pointing out of the appellant is concerned the same is of no avail to the prosecution because before the learned trial Court it was the case of complainant that the appellant got recovered the dead-body of deceased from his own land but no proof of ownership of Killa No. 8 square No. 49, from where the dead-body of deceased was recovered, was produced by the prosecution during the trial. Moreover, Zahid Ali Naksha Navees (PW.4) has stated in his cross examination that "I have not gone through the revenue record regarding verification of ownership of killa No. 08 in Square No. 49. It is correct that similarly I have not gone through revenue record of killa No. 09,07,03 of square No. 49." Even otherwise mere recovery of dead-body alone will not be sufficient to sustain the conviction of the appellant.

(e)      So far as alleged recovery of hatchet at the instance of Kashif (appellant) is concerned the same is immaterial because of the reason that there is no mention in the statements of both the recovery witnesses namely Riaz (PW.9) and Noor Samad S.I. (PW.12) that the hatchet was stained with blood or not. Reliance may be placed on the case reported as "Irfan Ali vs. The State" (2015 SCMR 840), wherein it was held by the Hon'ble Supreme Court of Pakistan that full description of the dagger has been given but blood stains on it were omitted, therefore, when blood was not found on it, how the Chemical Examiner could give an opinion about the presence of human blood on it. Moreover, alleged recovery of bicycle at the instance of appellant is of no avail to the prosecution because it was an ordinary bicycle, easily available in the market.

(f)       The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" (2016 SCMR 1605).

8. So far as version of the appellant taken by him in his statement recorded under Section 342, Code of Criminal Procedure, is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the defence version.

9. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is placed on case law  titled as "Muhammad Akram versus The State" (2009 SCMR 230).

10. For the foregoing reasons, the appeal in hand filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 28.03.2017 passed by the learned Addl. Sessions Judge, Chicnawatni are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Kashif (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.

11. Murder Reference No. 70 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Kashif (convict) is NOT CONFIRMED.

(A.A.K.)          Appeal allowed