PLJ 2024 Cr.C. (Note) 63
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan, J.
MUHAMMAD JAMIL--Appellant
versus
STATE and another--Respondents
Crl. A. No. 57-J & Crl. Rev. No. 292 of 2013, heard on 25.4.2017.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 364 & 302--Conviction and sentence--Challenge to--Last seen evidence--Extra-judicial confession--Motive--Recoveries--Medical evidence--Prosecution evidence of last seen and extra judicial confession and no” motive was alleged by prosecution in this case, appellant cannot be convicted merely on basis of recoveries which are only corroborative pieces of evidence--Medical evidence furnished by prosecution is concerned, it is by now well settled that medical evidence is a type of supporting evidence, which may confirm ocular account with regard to receipt of injury, nature of injury, kind of weapon used in occurrence but it would not identify assailant--As occurrence in instant case is unseen and witnesses of extrajudicial confession and last seen evidence have already been disbelieved, there is no need to discuss medical evidence of prosecution--The appellant was acquitted from charge u/S. 302, PPC, he has been convicted and sentenced for charge u/S. 364, PPC, on basis of same evidence, which was disbelieved in respect of charge of murder--The complainant has not filed any appeal against acquittal of appellant from charge u/S. 302, PPC and has only filed Criminal Revision for enhancement of fine and compensation amount, awarded by learned trial Court to appellant from Rs. 1,00,000/- to Rs. 5,00,000/---Court have considered all aspects of this case and have come to this irresistible conclusion that appellant was rightly acquitted by trial Court from charge u/S. 302, PPC while extending him benefit of doubt--However, appellant has wrongly been convicted and sentenced for charge u/S. 364, PPC because prosecution has failed to prove its case against appellant under abovementioned charge, beyond shadow of doubt--Held: It is by now well settled 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 truthfulness of prosecution story--Appeal accepted.
[Para 16, 17 18 & 19] E, F, G, H
1995 SCMR 1345, PLD 2009 SC 53, 2008 SCMR 1103 and
2009 SCMR 436.
Benefit of Doubt--
----It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches dead body and other to neck of accused--But if any link in chain is missing then its benefit must go to accused. [Para 11] A
1992 SCMR 1047, 1996 SCMR 188 & PLJ 1999 SC 1018.
Testimony of Witness--
----Last seen evidence--Even one or two days unexplained delay in recording statements of witnesses would be fatal and testimony of such witnesses could not be safely relied upon. [Para 13] B
2017 SCMR 486 and 1998 SCMR 570.
Last Seen Evidence--
----Belated statement of a witness recorded u/S. 161 of Cr.P.C. without offering any plausible explanation would reflect adversely on credibility of such witness and his statement shall be looked
with serious suspicion--Under circumstances, evidence of abovementioned witnesses of last seen is not worthy of reliance.
[Para 13 & 14] C
Extra Judicial Confession--
----It is by now well settled that evidence of extra judicial confession is a weak type of evidence, which can easily be procured, in order to strengthen prosecution case--The status of witness, before whom accused has made extrajudicial confession, is most relevant factor while considering evidence of extrajudicial confession. [Para 16] D
2006 SCMR 231.
Mr. Zafar Iqbal Mangan, Advocate for Appellant.
Mr. Nisar Ahmad Virk, Deputy District Public Prosecutor for State.
Mr. Faisal Mehboob Malik, Advocate for Complainant.
Date of hearing: 25.4.2017.
Judgment
This judgment shall dispose of Criminal Appeal No. 57-J of 2013, filed by Muhammad Jamil (appellant) against his conviction and sentence and Criminal Revision No. 292 of 2013, filed by Muhammad Sohail Akhtar (complainant) for enhancement of compensation amount, awarded by the learned trial Court to Muhammad Jamil (appellant) from Rs. 1,00,000/- to Rs. 5,00,000/- and for enhancement of the amount of fine. I propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 10.01.2013, passed by the learned Additional Sessions Judge, Faisalabad. Muhammad Jamil shall be hereinafter called as the appellant, whereas, Muhammad Sohail Akhtar shall be hereinafter called as the complainant.
2. Muhammad Jamil (appellant) was tried in case F.I.R. No. 225 dated 29.04.2010, registered at Police Station Sahianwala, District Faisalabad in respect of offences under Sections 302/364, PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 10.01.2013, has convicted and sentenced the appellant as under:
Under Section 364, PPC to imprisonment for life. He was also ordered to pay Rs. 1,00,000/- (rupees one hundred thousand only) to the legal heirs of Mst. Saadia Dildar (deceased) as compensation under Section 544-A of Cr.P.C. and in default thereof to suffer simple imprisonment for six months.
The appellant was also ordered to pay Rs. 1,00,000/- as fine.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
The appellant, however, was acquitted from the charge under Section 302, PPC, vide the abovementioned judgment.
3. Brief facts of the case as given by the Complainant Muhammad Sohail Akhtar (P.W.2) in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PA/1) was chalked out, are that he (complainant) was resident of Chak No. 113-J.B and was a cultivator by profession. On 11.03.2013, the sister of the complainant Mst. Saadia Dildar (deceased) went to the Haveli for putting fodder to the cattle but she did not return back. The complainant (PW-2) started searching Mst. Saadia Dildar (deceased) and during the search Muhammad Idrees (PW since given up) and Abdul Latif (PW-3) met the complainant and told him that in the morning time, when they were going on the road of the village, they saw Muhammad Jamil etc, while taking Mst. Saadia Dildar (deceased), on two motorcycles. After that the complainant along with Muhammad Ibrahim (PW-4) contacted parents of Muhammad Jamil (appellant), who promised to return the sister of the complainant namely Mst. Saadia Dildar (deceased) but they did not fulfil their promise, therefore, criminal proceedings be initiated against the accused.
Initially the FIR was lodged under Section 365-B, PPC but later on, on 29.04.2016, offence under Section 365-B, PPC was deleted and offences under Sections 302/364, PPC were added by the police, on the recovery of dead body of Mst. Saadia Dildar (deceased) from Jacobabad, Sindh.
4. The appellant Muhammad Jamil was arrested in this case on 25.05.2010 by Muhammad Azam ASI (PW-8). On 01.06.2010, Muhammad Jamil (appellant) led to the recovery of Purse (P2) artificial Kara (P3), artificial ring (P4), hairclip (P5), one lady suit, i.e. shalwar, gameez and dupata (P6/1-3) and Rs. 7000/- (P7/1-7), which were taken into possession vide recovery memo. (Ex.PB). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 04.01.2011, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced eight witnesses during the trial. Muhammad Sohail Akhtar (PW-2) is the complainant of the case. Abdul Latif (PW-3) is the witness of last seen evidence, whereas, Muhammad Ibrahim (PW-4) is the witness of extrajudicial confession.
The medical evidence was furnished by Dr. FarheenPathan WMO, Civil Hospital, Jacobabad, Sindh Province (PW-7).
Ashfaq Ahmad (PW-5) is the witness of the recovery of Purse (P2), artificial Kara (P3), artificial ring (P4), hairclip (P5), one lady suit, i.e., shalwar, qameez and dupata (P6/1-3) and Rs. 7000/- (P7/1-7) from Muhammad Jamil (appellant).
Muhammad Nawaz SI (PW-6) and Muhammad Azam ASI (PW-8) are the Investigating Officer of this case, whereas Muhammad Aslam ASI (PW-1), chalked out the FIR (Ex.PA/1) on the receipt of complaint (Ex.PA).
The prosecution also produced documentary evidence in the shape of complaint (Ex.PA), FIR (Ex.PA/1), memo. of possession of Purse (P2), artificial Kara (P3), artificial ring (P4), hairclip (P5), one lady suit, i.e., shalwar, qameez and dupata (P6/1-3) and Rs. 7000/- (P7/1-7), recovered on the pointation of the appellant Muhammad Jamil (Ex.PB), site-plan of the place of recovery of the dead body of Mst. Saadia (Ex.PC), complaint with regard to FIR No. 32/2010, registered at Police Station Jacobabad (Ex.PD), memo. of possession with regard to FIR No. 32/2010, post-mortem Report No. 406/25.03.2010, complaint of FIR No. 32/2010, registered at P.S City Jacobabad and recovery memo. of last worn clothes of the deceased (Ex.PE), injury statement of the deceased Mst. Saadia Dildar (Ex.PF), inquest report (Ex.PG), report of Muhammad Nawaz SI (Ex.PH), receipt with regard to handing over the dead body to the complainant (Ex.PJ), post-mortem report of the deceased Mst. Sadia Dildar (Ex.PK), report of Chemical Examiner, Government of Sindh (Ex.PL), site-plan of the place of recovery of different articles belonging to the deceased (Ex.PM), rough site-plan of the place of occurrence (Ex.PN) and closed the prosecution evidence.
In addition to the aforementioned documents, application of the complainant (Mark-A), order dated 11.05.2010, passed by learned Additional Sessions Judge, Jacobabad (Mark-B), copy of Rupat No. 10 dated 16.05.2010 (Mark-C), statement of Muhammad Ibrahim PW-4 (Mark-D), statement of Abdul Latif PW-4 (Mark-E), statement of Muhammad Idress, since given up (Mark-F), statement of Mst. Habib Fatima, mother of the deceased (Mark-G), statement of Mst. Shahzadia Dildar, sister of the deceased (Mark-H), statement of Mumtaz Ahmad, brother of the deceased (Mark-J), statement of Mst. Nazia Dildar, sister of the deceased (Mark-K), statement of Mst. Aasiya Dildar, sister of the deceased (Mark-L), Provisional Certificate of the deceased, issued by Principal Government Girls Higher Secondary School 115 J-B, District Faisalabad (Mark-M), Mark Sheet with regard to passing of Intermediate Examination, 2008 by the deceased (Mark-N), list of legal heirs of the deceased, prepared by the Secretary Union Council No. 171 (Mark-O), list of legal heirs of the deceased, prepared by the Lumberdar (Mark-P), copy of Fird Jama Bandi for the years 2004-05 (Mark-Q), copy of birth certificate of the deceased (Mark-R), copy of death certificate of Haji Dildar Ahmad (Mark-S) and Order of learned Sessions Judge, Jacobabad dated 20.05.2010 (Mark-T) were also produced by the prosecution.
6. The statement of the appellant under Section 342 of Cr.P.C. was recorded, wherein he refuted the allegations levelled against him and professed his innocence. While answering to a question that ‘Why this case against you and why the PWs have deposed against you” the appellant replied as under:
“I am innocent. I never abducted Saadia Dildar nor I committed her murder. Prosecution implicated me falsely in this case mere on basis of suspicion. In fact Saadia Dildar deceased went went away of her own with some unknown person. P.Ws are interested witnesses, they have falsely deposed against me. Unknown persons committed the murder of Mst. Saadia Dildar. It was blind murder”
The appellant Muhammad Jamil opted not to make statement on oath as envisaged under Section 340(2), Cr.P.C. or to produce evidence in his defence.
7. The learned trial Court vide its judgment dated 10.01.2013 found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
8. It is contended by learned counsel for the appellant that the case of the prosecution hinges on circumstantial evidence but the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; that there was inordinate delay of about one month and eighteen days in lodging the FIR, which created doubt regarding the truthfulness of the prosecution story; that the dead body of Mst. Saadia Dildar was not recovered on the pointation of the appellant; that the evidence of last seen, produced by Abdul Latif (PW-3) is not worthy of reliance because no time or place of lastly seen the deceased in the company of the appellant has been mentioned by the aforementioned witness; that the evidence of Muhammad Ibrahim (PW-4) with regard to extra judicial confession of the appellant is also not trustworthy because the said witness has stated that the appellant made extra judicial confession before him on 30.01.2010 at 9.00/10.00 a.m, whereas the complainant Muhammad Sohail Akhtar (PW-2) has categorically stated during his cross-examination that the appellant was arrested on 29.04.2010 at 6.30 p.m, from the factory of Muhammad Ibrahim (PW-4); that the prosecution has not alleged any motive against the appellant; that the appellant has been acquitted from the charge under Section 302, PPC but he has wrongly been convicted and sentenced under Section 364, PPC, on the basis of same evidence, which has been disbelieved by the learned trial Court to the extent of charge of murder; that the alleged recoveries of Purse (P2), artificial Kara (P3), artificial ring (P4), hairclip (P5), one lady suit, i.e., shalwar, qameez and dupata (P6/1-3) and Rs. 7000/- (P7/1-7) on the pointation of the appellant is of no avail to the prosecution because the said recoveries were never got identified by the complainant Muhammad Sohail Akhtar (PW-2) to establish that the same belonged to Mst. Saadia Dildar (deceased); that the impugned judgment is result of misreading and non-reading of evidence therefore, the same may be set-aside and the appellant may be acquitted from the charge.
9. Learned Deputy District Public Prosecutor assisted by learned counsel for the complainant, opposes this appeal on the grounds that prosecution has fully proved its case against the appellant beyond the shadow of any doubt; that mere delay in reporting the matter to the police in such like cases is inconsequential because people in our society do not rush towards the police station due to the embarrassment, they face in the society; that the case of the prosecution against the appellant has fully been established by the evidence of last seen, produced through Abdul Latif (PW-3); that the prosecution case against the appellant is further corroborated by the evidence of extra judicial confession made by the appellant before Muhammad Ibrahim (PW-4); that the abovementioned witnesses of last seen evidence and extra judicial confession of the appellant have absolutely no enmity with the appellant to falsely implicate him in this case; that the prosecution case is further corroborated by the recoveries of Purse (P2), artificial Kara (P3), artificial ring (P4), hairclip (P5), one lady suit, i.e., shalwar, qameez and dupata (P6/1-3) and Rs. 7000/- (P7/1-7), belonging to the deceased, on the pointation of the appellant; that substitution in such like cases is a rare phenomena; that there is no substance in this appeal, therefore, the same may be dismissed and the compensation awarded against the appellant by
the learned trial Court may be enhanced from Rs. 1,00,000/- to
Rs. 5,00,000/- while accepting Criminal Revision No. 292 of 2013, filed by Muhammad Sohail Akhtar (complainant).
10. I have heard the arguments of learned counsel for the parties, as well as, learned Deputy District Public Prosecutor and have also gone through the evidence available on the record with their able assistance.
11. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as ‘Ch. Barkat Ali vs. Major Karam Elahi Zia and antoher’ (1992 SCMR 1047), ‘Sarfraz Khan vs. The State (1996 SCMR 188) and ‘Asadullah and another vs. The State’ (PLJ 1999 SC 1018). In the case of ‘Ch. Barkat Ali (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:
“…Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See ‘Siraj vs. The Crown’ (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused.”
In the case of ‘Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192, held as under:-
“7….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.”
Further reliance in this context is placed on the case of ‘Altaf Hussain vs. Fakhar Hussain and another (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon’ble Supreme Court as under:
“7….Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain.”
Keeping in view the parameters, laid down in the above- mentioned judgments, I will discuss each part of the prosecution evidence, separately.
12. The prosecution case is based on the following pieces of evidence:-
(i) Last seen evidence.
(ii) Evidence about extrajudicial confession of Muhammad Jamil (appellant).
(iii) Motive.
(iv) Recoveries.
(v) Medical evidence.
13. (i) Last seen evidence.
The occurrence in this case took place on 11.03.2010 at 8.00 a.m but the FIR was lodged on 29.04.2010 at 6.15 p.m and as such there is a delay of about one month and eighteen days in reporting the matter to the police, which has created doubt regarding the truthfulness of the story of the prosecution. Evidence of last seen was produced by the prosecution through Abdul Latif (PW-3). In his statement, recorded by the learned trial Court, the said witness has not given any time or place of lastly seen the deceased in the company of Muhammad Jamil (appellant). Abdul Latif (PW-3) only mentioned the date ie., 11.03.2010, when he had seen the deceased in the company of Muhammad Jamil (appellant). He did not report the matter to the police for a period of one month and eighteen days and he appeared before the police for the first time on 29.04.2010, when his statement under Section 161, Cr.P.C. was recorded by the police. The long silence of the above-mentioned witness in making his statement before the police has further created dent in the statement of the said witness. The Hon’ble Supreme Court of Pakistan in the case of ‘Muhammad Asif vs The State’ (2017 SCMR 486) was pleased to observe that even one or two days unexplained delay in recording the statements of witnesses would be fatal and testimony of such witnesses could not be safely relied upon. Similarly, in the case of ‘Muhammad Khan vs Maula Bakhsh and another’ (1998 SCMR 570), the apex Court of the country held that belated statement of a witness recorded under Section 161 of Cr.P.C. without offering any plausible explanation would reflect adversely on the credibility of such witness and his statement shall be looked with serious suspicion. Under the circumstances, the evidence of abovementioned witnesses of last seen is not worthy of reliance.
14. (ii) Evidence of Extrajudicial Confession.
Evidence regarding the extrajudicial confession of the appellant was produced by the prosecution through Muhammad Ibrahim (PW-4). The said witness has stated that on 30.04.2010, he was present in his Bathick, where Muhammad Usman and Ghulam Ahmad (PWs since given up) were also sitting and in the meanwhile, Muhammad Jamil (appellant) came there and made extra judicial confessional regarding the murder of Mst. Saadia Dildar (deceased). During his cross-examination, the said witness stated that the appellant came to his Bathick at 9.00/10.00 a.m on 30.04.2010. The evidence of Muhammad Ibrahim (PW-4) is contradicted by the evidence of the complainant Muhammad Sohail Akhtar (PW-2), who categorically stated during his cross-examination that Muhammad Jamil (appellant) was arrested on 29.04.2010 at 6.30 p.m, from the factory of Muhammad Ibrahim (PW- 4). If the appellant was arrested on 29.04.2010 at 6.30 p.m, then there was no occasion for him to make extra judicial confession before Muhammad Ibrahim (PW-4), on 30.04.2010 at 9.00/10.00 a.m. I have also noted that Muhammad Ibrahim (PW-4) stated that on 30.04.2010, Muhammad Usman and Ghulam Ahmad (PWs since given up) were also present in his Bathick, when Muhammad Jamil (appellant) came there and made extra judicial confession. The said witness is Mohalladar and from the brotherhood of the complainant as admitted by the complainant Muhammad Sohail Akhtar (PW-2), during his cross-examination but Inspite of the fact that Muhammad Ibrahim (PW-4) and two members of the complainant party namely Muhammad Usman and Ghulam Ahmad (PWs since given up) were present at the time of making of alleged extra judicial confession of the appellant but the said witnesses did not try to apprehend the appellant at the relevant time. It is by now well settled that the evidence of extra judicial confession is a weak type of evidence, which can easily be procured, in order to strengthen the prosecution case. The status of the witness, before whom the accused has made extrajudicial confession, is the most relevant factor while considering the evidence of extrajudicial confession. Admittedly Muhammad Ibrahim (PW-4) is cultivator by profession and he was not enjoying any high post in the society or the status of a person in authority. There is nothing on the record that as to what had prompted the appellant to make extrajudicial confession before the said witness. The evidentiary value of the extra- judicial-confession (joint or otherwise) came up for consideration before the August Supreme Court of Pakistan in the case reported as ‘Sajid Mumtaz and others vs. Basharat and others’ (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan has been pleased to lay emphasis as under:
“17. This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra-judicial-confession starting from Ahmad vs. The Crown (PLD 1961 FC 103- 107) upto the latest. Extra-judicial-confession has always been taken with a pinch of salt. In Ahmad vs. The Crown, it was observed that in this country (as a whole) extra-judicial- confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial- confession, the Court must inquire into all material points and surrounding circumstances to ‘satisfy’ itself fully that the confession cannot but be true’. As, an extra-judicial-confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.
18. It has been further held that the status of the person before whom the extra-judicial- confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule of prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation.
Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confident as well as the one who shares close secrets. To make. Confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witness before whom extra judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
Another most important and natural purpose of making extra-judicial-confession is to seek help from a third person. Help is sought, firstly, when a person is sufficiently trapped and, secondly, from one who is authoritative, socially or officially.
As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial-confession have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial-confession. Such confessions by now have become the sings of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all, is the position or authority held by the witness”. (emphasis supplied)
The above view has been reiterated in the case reported as Tahir Javed VS. The State (2009 SCMR 166), wherein, at page 170, the August Supreme Court of Pakistan, has been pleased to observe as under:-
“It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time, therefore, normally, it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra- judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:-
(1) Sajid Mumtaz and others vs. Basharat and others 2006 SCMR 231, (2) Zia-ul-Rehman v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683, and (4) Sarfraz Khan v. The State and others (1996 SCMR 188)”.
Keeping in view the guidelines given by the Hon’ble Supreme Court of Pakistan in the above mentioned judgments 1 am of the considered view that the evidence of extra judicial confession furnished by Muhammad Ibrahim (PW-4) is not trustworthy.
15. (iii) Motive.
No motive whatsoever was alleged by the complainant or any other prosecution witness for the murder of Mst. Saadia Dildar (deceased), at the hands of Muhammad Jamil (appellant) and as such no motive was proved in this case.
16. (iv) Recoveries.
As per prosecution case on 01.06.2010, Muhammad Jamil (appellant) made disclosure and led to the recovery of Purse (P2), artificial Kara (P3), artificial ring (P4), hairclip (P5), one lady suit, i.e., shalwar, gameez and dupata (P6/1-3) and Rs. 7000/- (P7/1-7), belonging to the deceased, vide recovery memo. (Ex.PB). I have noted that aforementioned recovered articles were never got identified by the complainant Muhammad Sohail Akhtar (PW-2) to establish that the said articles belonged to Mst. Saadia Dildar (deceased). It is also noteworthy that the occurrence in this case took place on 11.03.2010 and the FIR (Ex.PA/1) was lodged on 29.04.2010, whereas the dead body of Mst. Saadia Dildar (deceased) was exhumated and identified by the complainant party on 21.05.2010, while the aforementioned articles were allegedly got recovered by Muhammad Jamil (appellant) on 01.06.2010. It does not appeal to the common sense that as to why the appellant would keep the abovementioned articles with him after the occurrence for a period of about two months and twenty days from the occurrence and for a period of more than one month from the registration of the FIR because the said articles like artificial jewelry and a ladies suit, were of no use to the appellant. In the case of Section ‘Muhammad Sajjad vs The State’ (2009 SCMR 1248), at page 1254, the apex Court gave the following findings in respect of the prosecution evidence qua the recovery of silver ring of the deceased and photocopy of the I.D card of the complainant from the accused:
“……. Secondly there was no occasion for the accused to remove the Identity Card of the complainant and the silver ring of the deceased as both these articles could easily implicate him. Undeniably, it was an ordinary ring of not much worth to be stolen. As far as identity Card of the complainant is concerned it was of no use to the accused. Anyone with a head on his shoulders would not keep these articles intact till his arrest so as to produce those to the Investigating Officer ……”
The complainant did not mention in the FIR or in his any supplementary statement, any specific denomination, numbers or identification marks on the currency notes, which were carried by the deceased and recovered on the pointation of Muhammad Jamil (appellant), therefore, mere recovery of currency notes of Rs. 7000/- P7(1-7) on the pointation of the appellant by itself is not sufficient to connect him with the alleged offence.
Under the circumstances the aforementioned alleged recoveries from the possession of Muhammad Jamil (appellant) are highly doubtful and unreliable. Moreover, there is no need to discuss the evidence qua recoveries because I have already disbelieved the prosecution evidence of last seen and extra judicial confession and no motive was alleged by the prosecution in this case, therefore, the appellant cannot be convicted merely on the basis of above mentioned recoveries which are only corroborative pieces of evidence. Reference in this respect may be made to the case of ‘Muhammad Afzal alias Abdullah and others vs. The State and others’ (2009 SCMR 436), the Hon’ble Supreme Court of Pakistan at pages 443 and 444 has held as under:
“After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be.”
Similarly in the case of ‘Abdul Mateen vs. Sahib Khan and others’ (PLD 2006 Supreme Court 538), at page 543, the following dictum was laid down by the Hon’ble Supreme Court of Pakistan:
“It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the recovery as law laid down by this Court in Saifullah’s case 1985 SCMR 410.”
Similar view was taken by the Hon’ble Supreme Court of Pakistan in the case of ‘Muhammad Yaqub vs. The State’ (1971 SCMR 756), and ‘Nek Muhammad and another vs. The State’ (PLD 1995 Supreme Court 516).
17. (iv) Medical Evidence.
Insofar as the medical evidence furnished by the prosecution is concerned, it is by now well settled that medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of ‘Muhammad Tasaweer versus Hafiz Zulkarnain and 2 others’ (PLD 2009 SC 53). ‘Altaf Hussain versus Fakhar Hussain and another’ (2008 SCMR 1103) and ‘Mursal Kazmi alias Qamar Shah and another versus The State’ (2009 SCMR 1410). As the occurrence in the instant case is unseen and the witnesses of extrajudicial confession and last seen evidence have already been disbelieved, therefore, there is no need to discuss the medical evidence of the prosecution.
18. The appellant was acquitted from the charge under Section 302, PPC, however, he has been convicted and sentenced for the charge under Section 364, PPC, on the basis of same evidence, whichh was disbelieved in respect of the charge of murder. The complainant has not filed any appeal against the acquittal of Muhammad Jamil (appellant) from the charge under Section 302, PPC and has only filed Criminal Revision No. 292 of 2013 for enhancement of fine and compensation amount, awarded by the learned trial Court to Muhammad Jamil (appellant) from Rs. 1,00,000/- to Rs. 5,00,000/-. 1 have considered all the aspects of this case and have come to this irresistible conclusion that the appellant Muhammad Jamil was rightly acquitted by the learned trial Court from the charge under Section 302, PPC while extending him the benefit of doubt. However, Muhammad Jamil (appellant) has wrongly been convicted and sentenced for the charge under Section 364, PPC because the prosecution has failed to prove its case against the appellant under the abovementioned charge, beyond the shadow of doubt.
19. It is by now well settled 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 truthfulness of the prosecution story. In ‘Tariq Pervez versus The State’ (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-
“5. …….. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”
The Hon’ble Supreme Court of Pakistan while reiterating the same principle in the case of ‘Muhammad Akram versus The State’ (2009 SCMR 230), at page 236, observed as under:
“13. …….. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
20. In the light of above discussion, I accept Criminal Appeal No. 57-J of 2013 filed by Muhammad Jamil (appellant), set aside his conviction and sentence recorded by the learned Additional Sessions Judge, Faisalabad vide impugned judgment dated 10.01.2013 and acquit him of the charge under Section 364, PPC by extending him the benefit of doubt. Muhammad Jamil (appellant) is in custody, he be released forthwith, if not required in any other case.
21. As the prosecution has miserably failed to prove the charges against the appellant Muhammad Jamil therefore, Criminal Revision No. 292 of 2010, filed by Muhammad Sohail Akhtar complainant for enhancement of compensation amount, awarded by the learned trial Court to Muhammad Jamil (appellant) from Rs. 1,00,000/- to Rs. 5,00,000/-, stands dismissed.
(A.A.K.) Appeal accepted
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