MUHAMMAD IRSHAD Versus State
SADIQ MAHMUD KHURRAM, J.--- The appellant namely Muhammad Irshad son of Gulzar Ahmad was tried by the learned Additional Sessions Judge, Faisalabad in case FIR No. 1478 of 2009 dated 27.10.2009 registered at Police Station Nishat Abad, District Faisalabad in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Muhammad Sajid son of Niamat Ali (deceased). The learned trial court vide judgment dated 31.01.2017 convicted Muhammad Irshad son of Gulzar Ahmad (convict) and sentenced him as infra:
Muhammad Irshad son of Gulzar Ahmad:
Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Sajid son of Niamat Ali (deceased" and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Muhammad Irshad son of Gulzar Ahmad (convict) lodged Criminal Appeal No.273 of 2017 against his conviction and sentence. The learned trial court submitted Murder Reference No.61 of 2017 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Irshad son of Gulzar Ahmad . We intend to dispose of the Criminal Appeal No.273 of 2017 and Murder Reference No.61 of 2017 through this single judgment.
3. Precisely, the facts of the prosecution case are that the deceased namely Muhammad Sajid son of Niamat Ali used to work as a mechanic at Modern Weaving Factory Sargodha Road, Faisalabad and did not return home since the evening of 24.10.2009, and on inquiry from the factory it was revealed that he had left the said factory at 2.00 p.m. on 24.10.2009. The witnesses started the search of the deceased and on 27.10.2009 came to know that the deceased used to work with the appellant and when the witnesses reached the rented premises of the appellant they found the dead body of the deceased present inside the room, which had been put in a sac. The matter was reported to the police by Muhammad Sohail (PW-12) through written application (Exh.PG) on 27.10.2009. During the course of investigation two witnesses namely Akbar Ali (PW-10) and Muhammad Abbas (PW-11) got recorded their statements under section 161 Code of Criminal Procedure, 1898 that on 01.5.2011 the appellant came to their house and confessed to have murdered the deceased.
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Muhammad Irshad son of Gulzar Ahmad was sent to face trial. The learned trial court framed the charge against the accused on 15.01.2013, to which the appellant pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got recorded statements of as many as fourteen witnesses. Muhammad Sohail (PW-12) stated the facts of his written application (Exh.PG) and further stated that on 25.05.2012 the appellant led to the recovery of "Churri" P-6. Akbar Ali (PW-10) and Muhammad Abbas (PW-11) got recorded their statements that on 01.5.2011 the appellant came to their house and confessed to have murdered the deceased. Irshad Ahmad 1026/C (PW-2) stated that on 27.10.2009 he escorted the dead body of the deceased for postmortem examination and also handed over the last worn clothes of the deceased to the Investigating Officer. He further stated that on 23.12.2009 he was entrusted to the warrants of arrest (Exh.PE) of the appellant and on 14.01.2010 he was entrusted the proclamation (Exh.PF). Asmat Ali 1766/HC (PW-3) stated that on 27.10.2009 he recorded the formal FIR (Exh.PG/1). Hamayoun Akhtar 418/HC (PW-4) stated that on 28.10.2009 the Investigating Officer handed over to him two sealed parcels which on 11.11.2009 he handed over to Maqbool Ahmad 2510/C (PW-5) for their onward transmission to the office of Chemical Examiner for the Punjab, Lahore. Aurangzeb, draftsman (PW-6) prepared the scaled site plan of the place of occurrence (Exh.PH). Muhammad Naeem Zia, SI (PW-7) stated that on 27.10.2019 Muhammad Sohail complainant (PW-12) presented him the written application (Exh.PG) for the registration of FIR Tariq Mehmood (PW-9) identified the dead body of the deceased at the time of postmortem examination. Muhammad Saleem 4202/HC (PW-14) stated that on 25.05.2012, he received a sealed parcel said to contain Churri which on 30.05.2012 he handed over to Maqbool Ahmad 510/C (PW-5) for its onward transmission to the office of Chemical Examiner for the Punjab, Lahore. Riaz Ahmad, SI (PW-8) investigated the case from 27.10.2009 till 30.10.2010 and narrated the facts of his investigation in his statement before the learned trial court. Muhammad Riaz, SI (PW-13) investigated the case from 11.03.2012 till 26.05.2012, arrested the appellant on 17.05.2012 and narrated the facts of his investigation in his statement before the learned trial court.
6. The prosecution got examined Dr. Muhammad Naeem (PW.-1), who on 27.10.2000 was posted as Incharge postmortem Unit at PMC, Faisalabad and on the same day conducted the postmortem examination of the dead body of Muhammad Sajid son of Niamat Ali. Dr. Muhammad Naeem (PW.-1) observed as under:-
"INJURIES.
1. An incised wound 12x5 cm into scalp and muscle deep and skull was intact, on back of right side of head, lower part extending from right ear upto midline of back of the head and neck, 5 cm above base of neck and 14 cm from top of head.
2. An incised wound 25x5 cm cutting, muscles, 2nd cervical vertiberea (sic), trachea, Oesophogus and both carotid vessels, present on front of neck and back of neck, head was almost separate at the level of 2nd cervical vertebrae from the base of neck, only a tag of skin was present on left side of neck, 2 cm above base of neck and 16 cm below top of head.
..
OPINION
Death was occurred in this case due to haemorrhagic shock, caused by injury No.2 inflicted by sharp Edge means and was sufficient to cause death in ordinary course of nature. Injury No.1 was also inflicted by sharp edge means and both injuries were ante mortem. However, opinion regarding poison/intoxication will be given after receiving reports from Chemical Examiner, government of Punjab Lahore.
Probable time that was elapsed between injury and death was immediate and between death and post mortem was about 2 to 3 days."
7. On 26.05.2016 the learned ADPP gave up prosecution witnesses namely Mozammal Hussain and Sultan Mehmood as being unnecessary and on 24.11.2016 the learned ADPP gave up prosecution witness namely Abdul Jabbar as being unnecessary. On 24.11.2016 the learned ADPP closed the prosecution evidence after tendering the report of Chemical Examiner for the Punjab, Lahore (Exh.PQ) regarding blood, report of serologist (Exh.PR), report of Punjab Forensic Science Agency, Lahore (Exh.PS) regarding Churri and the report of Chemical Examiner for the Punjab, Lahore (Exh.PT) regarding detection of any poison.
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Irshad son of Gulzar Ahmad under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellant replied that he was innocent and had been falsely involved in the case due to suspicion. The appellant namely Muhammad Irshad son of Gulzar Ahmad opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned trial court convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. The learned counsel for the appellant submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.
11. On the other hand, learned Additional Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsel further argued that the deceased murdered by the appellant. They further argued that the recoveries from the appellant also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant, learned Additional Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully.
13. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent that in the instant matter ocular evidence is not available. It is worth to add here that general principle is that conviction cannot be based on any other type of evidence, howsoever, convincing it may be, unless direct or substantive evidence is available because the guilt cannot be based on high probabilities, but circumstantial evidence, which is also known as indirect evidence is an exception to above principle. The requirement of proof in such cases, basing on circumstantial evidence only, is that every link has to be proved by good and convincing evidence. Above all, it is to be established on record that every piece of circumstantial evidence fits in with another piece of such evidence in the chain and corroborates each other. Admittedly it was a blind murder and no direct evidence/eye-witness is available with the prosecution to prove that it was none else but the appellant who had committed the murder of deceased. From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the extra-judicial confession, recovery of incriminating material i.e. recovery of dead body from the rented premises of the appellant and recovery of Churri. Firstly, we shall deliberate upon the evidence of extra-judicial confession. The prosecution has examined Akbar Ali (PW-10) and Muhammad Abbas (PW-11) to prove the extra-judicial confession allegedly made by the appellant in this case who got recorded their statements that on 01.5.2011 the appellant came to the house of Muhammad Abbas (PW-11) and confessed to have murdered the deceased. One finds it hard to understand as to why the appellant would make his breast clean when apparently he was under no compulsion to oblige the prosecution which was clueless about the circumstances leading to the death of the deceased. The occurrence had taken place in the year 2009 and already a period of more than two years and seven months had lapsed prior to the making of the said confession by the appellant. The alleged extra judicial confession is so detailed and comprehensive that it covers almost every aspect of the prosecution case; it is in fact an encyclopedia of the prosecution case. A man under the stress of compunction of his conscious is not supposed to give such minute details that too on the assurance of help. Admittedly, both Akbar Ali (PW-10) and Muhammad Abbas (PW-11) admitted in their cross-examination that they did not possess any influential portfolio at that time to have any influence to beg pardon for the appellant from the complainant. They also admitted in their cross-examination that they did not try to apprehend the appellant at the time of making extra-judicial confession in spite of the fact that he was allegedly present in their company all alone in a room. Both the witnesses Akbar Ali (PW-10) and Muhammad Abbas (PW-11) stated that the appellant promised to return after a week and they were so na ve that they believed him and let him leave. This peculiar fact speaks volumes of false statements adduced by Akbar Ali (PW-10) and Muhammad Abbas (PW-11) and also shows their unnatural conduct and the same is otherwise contrary to the human behaviour. To make confession in order to give outlet to ones burden on mind and conscience is possible, however one does this only before a strong and close confidant. In the instant case, the position of the witnesses Akbar Ali (PW-10) and Muhammad Abbas (PW-11), before whom the alleged extra-judicial confession was made, was such that they barely knew the accused before the alleged confession and both Akbar Ali (PW-10) and Muhammad Abbas (PW-11) were neither close confidants of the accused in any manner or 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 reason to reject the statements of Akbar Ali (PW-10) and Muhammad Abbas (PW-11) is that according to these witnesses the appellant had allegedly confessed to his guilt before them on 01.05.2012, however, the said fact was not reported to the complainant namely Muhammad Sohail (PW-12) or indeed the Investigating Officer of the case till 11.05.2012. Akbar Ali (PW-10) admitted during cross-examination as under :-
"From 01.05.2012 to 11.05.2012 I did not inform to the police and complainant."
Similarly, Muhammad Abbas (PW-11) also admitted during cross-examination as under:-
"When accused came to us and made confession, we became frightened and did not inform the police then and there.
We did not inform the police even after departure of the accused."
Had the appellant confessed his guilt before the witnesses then it would have been only natural for them to report the same to the complainant namely Muhammad Sohail (PW-12) , who was their Mohallaydar and related to Muhammad Abbas (PW-11) or indeed to the Investigating Officer of the case. The failure of the prosecution witnesses namely Akbar Ali (PW-10) and Muhammad Abbas (PW-11) to report the matter of the alleged confession of the appellant is indicative of the fact that no such confession was ever made by the appellant. An overwhelming analysis of the prosecution evidence with regard to extra-judicial confession gives an implied impression to this Court that the prosecution has manufactured the said extra-judicial confession in this case to strengthen the case against the appellant after taking legal advice in this regard. In these eventualities, the story introduced by Akbar Ali (PW-10) and Muhammad Abbas (PW-11) about extra-judicial confession of the appellant seems improbable. Even otherwise, extra-judicial confession is a very weak type of evidence and the same obviously needs impartial/strong corroboration from other independent sources which is missing in this case. The evidentiary value of the extra judicial confession came up for consideration before august Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan observed as under:-
"17. .This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra judicial confessions staring from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra judicial confession has always been taken with a pinch of salt. In Ahmed v. 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 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 sued 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 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 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 witnesses 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.
21. 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 ..
22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions 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 confessions. Such confessions by now, have become the signs 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".
In the case of "Mst. Asia Bibi v. The State and others" (PLD 2019 Supreme Court 64) wherein, the august Supreme Court of Pakistan was pleased to observe as under:-
"In this regard it is to be noted that this Court has repeatedly held that evidence of extra judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placing reliance on such a confession. It is always looked at with doubt and suspicion due to the ease with which it may be concocted. The legal worth of the extra judicial confession is almost equal to naught, keeping in view the natural course of events, human behaviour, conduct and probabilities, in ordinary course. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration. Reliance in this behalf may be made to the cases of Nasir Javaid v. State (2016 SCMR 1144), Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), Imran alias Dully v. The State (2015 SCMR 155), Hamid Nadeem v. The State (2011 SCMR 1233), Muhammad Aslam v. Sabir Hussain (2009 SCMR 985), Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231), Ziaul Rehman v. The State (2000 SCMR 528) and Sarfraz Khan v. The State and 2 others (1996 SCMR 188)."
Keeping in view the guidelines given by august Supreme Court of Pakistan in the above mentioned judgments, we palpably discard the evidence of extra-judicial confession manufactured by the prosecution to strengthen its case. This part of the evidence is nothing but a tailored story, which was arranged with the help of the Investigating Agency thus, it is of no legal worth and being absolutely unreliable is excluded from consideration.
14. The learned Additional Prosecutor General and the learned counsel for the complainant have vehemently argued that the dead body of the deceased namely Muhammad Sajid son of Niamat Ali was recovered on 27.10.2009 from the rented premises of the appellant, hence proving his guilt. It is an accepted fact that the appellant did not lead to the recovery of the dead body rather the complainant Muhammad Sohail (PW-12) on his own reached at the place of the presence of the dead body and the same was taken into possession by the Investigating Officer. During the course of investigation as well as the trial, the prosecution failed miserably to prove that the room from where the dead body was recovered had been rented by the appellant and was under his use. No documentary evidence is available on record to prove the factum of the appellant having rented the premises from where the dead body was recovered. Muhammad Riaz, SI (PW-13), the Investigating Officer of the case, during cross-examination admitted that he did not collect any evidence to prove the appellant had rented the premises from where the dead body was recovered and stated as under:-
"I did not join in investigation the owner of the house/place of recovery of dead body as since the recovery of dead body, that house was blocked. I do not know the residence of the owner of the said house."
Similarly, the other Investigating Officer of the case namely Riaz Ahmad, SI (PW-8) , who had taken into possession the dead body of the deceased on 27.10.2009 also admitted during cross-examination as under:-
"I also did not join into investigation the landlord of the said house and also did not collect the rent agreement. I did not take into possession any other household articles belonging to the accused lying in the room".
The above mentioned portion of cross-examination clearly establishes the fact that the prosecution has miserably failed to establish that the room from where the dead body of the deceased was recovered was rented by the appellant. The august Supreme Court of Pakistan in the case of Khurram v. The State and others (2019 SCMR 1317) rejected the evidence of the landlord of the place from where the dead body was recovered on the ground that he had not joined the investigation of the case and held as under:-
"The dead body was recovered from a premises, statedly owned by Ghaffar Ahmed, CW-1; on motion dated 25.10.2012 by the State, he was summoned for 13.11.2012 to establish that the house was rented to the accused and that it was the same place wherefrom the dead body was recovered; exercise was taken in the midst of the trial. While a Court has ample power to send for witnesses for just decision of the case, nonetheless, power of this amplitude must be exercised with circumspection without disturbing the adversarial balance of the trial. There was no statement of the witness recorded during the investigation; no proof of ownership or tenancy as admitted by the witness. Such a sudden move and reliance thereon to the detriment of an accused, cannot be viewed as conscionable."
15. Learned Additional Prosecutor General has also relied upon the recovery of Churn (P-6) made from the appellant. Regarding the recovery of the Churri (P6) from the appellant Muhammad Irshad, the same cannot be relied upon as the fact remains that the occurrence in the instant case had taken place on 24.10.2009, whereas the alleged recovery had been affected on 25.05.2012 and the said Churri (P6) was deposited in the office of Punjab Forensic Science Agency, Lahore on 05.10.2012 i.e. after nearly three years of the occurrence. The report of Punjab Forensic Science Agency, Lahore (Ex.PS) regarding forensic serological examination of the above mentioned Churri (P6) showing the presence of human blood on the said Churri (P6) is dated 25.02.2013, which means that the said article was examined for the presence of human blood and the report of Punjab Forensic Science Agency, Lahore (Exh.PS) was prepared after three years of the occurrence. During such a long period the blood available on the Churri (P6), if any, would have disintegrated. It is not possible to believe that the blood had not disintegrated by then and therefore the said recovery of the Churri (P6) cannot be used as incriminating evidence against the appellant. The august Supreme Court of Pakistan in the case of "Faisal Mehmood v. The State" (2016 SCMR 2138) has held as under:-
"The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks."
The learned Additional Prosecutor General and the learned counsel for the complainant have vehemently argued that the statement of the accused made at the time of the recovery of the Churri (P-6) was admissible and relevant and amounted to confession of guilt under the provisions of Article 40 of the Qanun-e-Shahadat Order, 1984. The discovery of any fact on the information of the accused in custody of Police is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order'), which reads as under:-
"40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved".
A perusal of above Article reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order. It comes into operation only if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody. Thus, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source. According to the prosecution case itself the appellant had already made a confession of his guilt before the witnesses on 01.05.2012 whereas the said recovery was effected on 25.05.2012 and the dead body had already been recovered on 27.10.2009. No new information was made available to the prosecution on 25.05.2012 as all the details of the occurrence were already in knowledge of the prosecution by virtue of the alleged extra-judicial confession of the appellant. Hence, the alleged statement of the appellant made in police custody at the time of recovery of the Churri (P-6) cannot be read in evidence and would remain inadmissible.
16. Learned Additional Prosecutor General has also laid much premium on the abscondence of the appellant as proof of his guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. The august Supreme Court of Pakistan has held in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373) that abscondence is only a suspicious circumstance. In the case of Muhammad Sadiq v. Najeeb Ali (1995 SCMR 1632) the august Supreme Court of Pakistan observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State (1999 SCMR 1220) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State (1999 SCMR 304) it was observed by the august Supreme Court of Pakistan that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali (1992 SCMR 814), Pir Badshah v. State (1985 SCMR 2070) and Amir Gul v. State (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone. Reliance is also placed on the cases of "Muhammad Farooq and another v. The State" (2006 SCMR 1707) and "Nizam Khan and 2 others v. The State" (1984 SCMR 1092) and Rohtas Khan v. The State (2010 SCMR 566).
17. The plea of the learned counsel for the complainant and the learned Additional Prosecutor General that because the complainant party was having no enmity to falsely implicate the appellant in such a heinous crime thus, the evidence adduced should be believed, is entirely misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of Waqar Zaheer v. The State (PLD 1991 SC 447).
18. In view of the above we are of the considered opinion that had the self negating and contradictory statements of the witnesses reflect that the witnesses are not truthful and they are supporting the afterthought, fabricated and concocted story meant to create incriminating evidence to strengthen the case of unwitnessed occurrence against the appellant. The august Supreme Court of Pakistan in the case of Imran alias Dully and another v. The State and others (2015 SCMR 155) at page 164 has held as under:-
"By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge."
To carry a conviction on a capital charge it is essential that the courts should deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon and very minute and narrow examination of the same is necessary to secure the ends of justice. It is imperative for the prosecution to provide all links in chain, where one end of the same touches the dead body and the other, neck of the accused. The present case is of such a nature that many links are missing in the chain. It would not be wrong to observe that in this particular case, it can be said that there is no link, what to talk about a chain. The august Supreme Court of Pakistan in the case of Fiaz Ahmad v. The State (2017 SCMR 2026) has observed at page 2030 as under:-
"It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same."
19. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Irshad son of Gulzar Ahmad (appellant), in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle:
"Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Muhammad Akram v. The State" (2009 SCMR 230) in which it has been observed in paragraph No. 13 of page 236 as infra:
"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. For what has been discussed above, Criminal Appeal No.273 of 2017 lodged by Muhammad Irshad son of Gulzar Ahmad (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 31.01.2017 are hereby set-aside. Muhammad Irshad son of Gulzar Ahmad is ordered to be acquitted. Muhammad Irshad son of Gulzar Ahmad (appellant) is directed to be released forthwith if not required in any other case.
21. Murder Reference is answered in Negative and the death sentence of Muhammad Irshad son of Gulzar Ahmad is Not Confirmed.
JK/M-106/L Appeal accepted.