MUHAMMAD IMRAN Versus State
SADIQ MAHMUD KHURRAM, J.--- Muhammad Imran son of Gulzar (convict) was tried by the learned Additional Sessions Judge, Attock along with his co-accused namely Pervaiz son of Aurangzeb (since acquitted) in the case instituted upon the private complaint titled "Jameel Ahmed v. Muhammad Imran and another" (relating to FIR No. 23 of 2015 dated 18.02.2015 registered at Police Station Attock Khurd, District Attock) in respect of offences under sections 302, 376, 201 and 34, P.P.C. for committing the Qatl-i-Amd of Mst. Gulfarin daughter of Aitbar Khan (deceased). The learned trial court vide judgment dated 21.12.2017 (on the first page of the judgment the learned trial court has inadvertently mentioned the date of decision as 22.12.2017 whereas on the last page of the judgement the date of announcement of the same has been mentioned as 21.12.2017 and similarly in the order sheet it has been recorded that the judgment was passed and announced on 21.12.2017) convicted Muhammad Imran son of Gulzar (convict) and sentenced him as infra:
Muhammad Imran son of Gulzar:
(I) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Mst. Gulfarin daughter of Aitbar Khan (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.
(II) Rigorous imprisonment for five years under section 201, P.P.C. and directed to pay fine of Rs.50,000/- and in default thereof to further undergo Simple Imprisonment for five months.
Pervaiz son of Aurangzeb (since acquitted) the co-accused of the convict was however acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Imran son of Gulzar (convict) lodged Criminal Appeal No.33 of 2018 against his conviction and sentence. The learned trial court submitted Murder Reference No.04 of 2018 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Imran son of Gulzar. The complainant of the case filed Criminal Revision No. 07 of 2018 seeking enhancement of the amount of compensation under section 544-A, Cr.P.C. to be paid by the convict to the legal heirs of the deceased. We intend to dispose of the Criminal Appeal No.33 of 2018, Criminal Revision No. 07 of 2018 and Murder Reference No.04 of 2018 through this single judgment.
3. Precisely, the facts of the prosecution case as bought on record through the statement of Muhammad Jamil (PW-5), the complainant of the case, are as under:-
"I am resident of village Haji Shah and my other relative including my uncle and aunt also reside in the same Mohallah and village. The deceased of this case Mst. Gulfareen was born from the wedlock of my uncle Aitbar Khan and his wife Mst. Raftoon Bibi who also reside near my house. I know the accused Muhammad Imran and Pervaiz. They both are friends inter se. Pervaiz accused is the near relative of my aunt Mst. Raftoon Bibi PWs. Both Muhammad Imran and Pervaiz were engaged in the business of growing and selling vegetable and they used to come into the house of my uncle Aitbar Khan and Mst. Raftoon Bibi PWs. In the meanwhile Muhammad Imran develop illicit sexual relations with Mst. Gulfarin deceased and he used to call from his cell phone No.0343-5856191 on the mobile phone of the deceased having SIM No.0344-5139631. On 12.02.2015 at about 08.30 PM both the accused enticed away Mst. Gulfarin deceased for illicit purposes and Mst.Gulfarin while leaving her house also took gold ornaments weighing 03-Tolas and a cash of Rs.1,10,000/- along with her. On the same night at about 08.30 PM my Chachi Mst.Ijaz Bibi wife of Dilawar Khan PW also saw Muhammad Imran and Pervaiz accused near the house of Mst. Gulfarin. On the same day Gharib Nawaz and Israfeel PW also saw Mst.Gulfarin Bibi deceased going on the motorcycle along with Muhammad Imran accused. Gharib Nawaz and Israfeel PWs later on conveyed this fact to me as well as Meer Zaman son of Muhammad Ramzan PW.
As it was the matter of family honour, therefore, the occurrence was not reported to the police on the same day. However, I along with Muhammad Sheraz and Rehmat Khan PWs contacted the accused for the return of the deceased honourably. On this Muhammad Imran and Pervaiz accused both promised that they will return Mst. Gulfarin very soon but later on they did not fulfill their promise on which I reported the matter to the police on 18.02.2015 at police post Gondal Police Station Attock Khurd. However the police heard my grievance and got my signatures on a blank paper and told me that my report has been written with full facts against the accused on 18.02.2015. I lodged report on 18.2.2015 which is Exh. PB.
On 12.02.2015 Mst. Ijaz Bibi PW told me in presence of Aitbar Khan, the father and Mst. Raftoon Bibi, the mother to me that Mst. Gulfareen had told her that Imran accused had developed sexual relations with her and he had got her believed that their oral Nikah has been performed. Mst. Ijaz Bibi further told me that Mst. Gulfarin Bibi had also told her that when she felt that she has become pregnant she forced Muhammad Imran accused that he should bring the Nikah in writing and the Nikah should be registered by the Nikah Registrar. Mst. Ijaz Bibi further told that Mst. Gulfarin Bibi had told her that both the accused had made her believed that they will take her to Attock City and will register their Nikah with the Registrar. Mst. Ijaz Bibi further told me that on 12.02.2015 when she saw the accused and the deceased near the house of the deceased she thought that the accused had come to take Mst. Gulfarin to Attock for the registration of the nikah.
On 18.02.2015 when I reported the matter to the police all the PWs including Meer Zaman, Gharib Nawaz, Israfeel, Aitbar Khan and Mst. Ijaz Bibi got recorded their statements to the I.O. but as the accused are financially and politically strong and they were in league with the Investigating Officer of this case he did not record their statement correctly and chalked out a case under section 365-B, P.P.C. It also came to the notice of the I.O. that there was conversation of Mst. Gulfarin with Imran accused and Pervaiz with Mst. Gulfarin at the cell phone of Pervaiz having SIM No. 0323-5702838 from 01.12.2014 to 12.12.2014, there were 21-conversations of Muhammad Imran with the deceased and there were seven conversations in between Mst. Gulfarin and Pervaiz accused and the I.O. took all this mobile data into his possession.
On 18.02.2015, when the report was lodged by me with the police on the same day at about 09.00 PM Imran and Pervaiz accused went to the house of Meer Zaman, my Chachazad, son of Ramzan PW and Muhammad Imran accused told Meer Zaman PW in presence of Muhammad Pervaiz accused that he had developed illicit sexual relations with Mst. Gulfarin about 2-1/2 years back and he used to commit zina with Mst. Gulfarin and he also told Meer Zaman that he made Mst. Gulfarin to believe that she is his legally wedded wife. He further told that when Mst. Gulfarin asked her to get register the Nikah, he started avoiding her because Muhammad Pervaiz accused had also developed sexual relations with Mst. Gulfarin. On this Mst. Gulfarin told gave her a threat that if he will not get register his Nikah and will not publicized his marriage with her she will lodged a report against him for committing zina with her. Muhammad Imran further told Meer Zaman PW that after the threat of Mst. Gulfarin he along with Pervaiz hatched a conspiracy that they will entice and take away Mst. Gulfarin with them on the pretext of solemnizing written Nikah and whereafter they will murder her. Muhammad Imran accused further confessed before Meer Zaman PW that on 12.02.2015, he along with Pervaiz went to the house of Mst. Gulfarin deceased where Mst. Ijaz Bibi PW had also seen them near the house of Mst. Gulfarin. He further confessed that thereafter Pervaiz accused according to the plan firstly went to the Ghazi Brotha Canal in the area of village Gondal and thereafter he took Mst. Gulfarin on his motorcycle and on the way on the motorcycle they were seen by Israfeel and Gharib Nawaz PW. He further confessed that he took Mst. Gulfarin deceased to the Ghazi Brotha Canal where Pervaiz was also present and they snatched the golden ornaments and the cash which she had brought from the house of her parents. Thereafter he further confessed that they both had thrown Mst. Gulfarin in the Ghazi Brotha Canal. He also told Meer Zaman that there after they both sold the ornaments and divided the amount of the ornaments and the cash in between them equally. He further confessed that as he and Pervaiz were under debt they paid their debt with the money. Thereafter Pervaiz also confessed the entire version of Muhammad Imran accused. Muhammad Imran requested Meer Zaman that as he was elder of the brotheri so he should got patch up the murder with the parents of the deceased and that they will make good their loss. He further told Meer Zaman that they have committed the murder of Mst. Gulfarin because she had given them a threat of the registration of a case against them. Meer Zaman thereafter came to me and I took Meer Zaman to the I.O. where Meer Zaman narrated the entire story to the I.O. who reduce his statement into writing but later on when the record of the case was produced before the court on the hearing of the bail application of Pervaiz accused it transpired that the I.O. in league with the accused did not make this statement the part of the file.
On. 05.03.2015, at about 8.45 A.M. the dead body of Mst. Gulfarin was noticed by security Inspector Habib-ur-Rehman in intake area Ghazi Brotha Lake who informed me and I and Muhammad Ikhlaq identified the dead body of Mst. Gulfarin informed the police who came there and after fulfilling the formalities got conducted the postmortem examination of the deceased from DHQ Hospital, Attock.
On 19.02.2015, both the accused were arrested together. They were interrogated but both the accused continuously confessed their guilt before the police. The police did not get recorded their statements from any Magistrate and knowing fully well that any confessional statement of any accused before the police is inadmissible they made the evidence of their confession in presence of Rehmat Khan son of Asim Khan and Muhammad Sheraz son of Ramzan. This was done so only because that the police was informed and was aware that the confessional statement of any accused and disclosure before the police cannot be used against them in the court.
Despite the fact that on 18.02.2015, the evidence of murder had come before the I.O. but he did not add Sec.302 till 23.02.2015.
During investigation Muhammad Imran accused got recovered the motorcycle on which he had taken the deceased to Ghazi Brotha Canal and also produced the Dopatta of the deceased which had remained with him at the time when they had pushed the deceased in the canal, I along with Mst. Shaheen Bibi PW identified the Dopatta of deceased and the police also prepared memo identification Exh. P= attested by me, on 01.3.2015. Thereafter I was constrained to file the complaint which is Exh. PC which has been drafted on my instructions and the same bears my signatures."
4. The appellant and his co-accused namely Pervez son of Aurangzeb (since acquitted),were summoned to face trial in the case instituted upon the private complaint titled "Jameel Ahmed v. Muhammad Imran and another" (relating to FIR No. 23 of 2015 dated 18.02.2015 registered at Police Station Attock Khurd, District Attock) in respect of offences under sections 302, 376, 201 and 34, P.P.C. for committing the Qatl-i-Amd of Mst. Gulfarin daughter of Aitbar Khan (deceased). The learned trial court framed the charge against the accused on 12.07.2016, to which the appellant pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got statements of as many as six witnesses recorded. Ghareeb Nawaz (PW-1) stated that on 12.02.2015 at about 9.00/9.30 p.m. he saw the appellant with Gulfarin Bibi (deceased), riding on a motorcycle, going towards Attock. Mst. Ijaz Bibi (PW-2) stated that on 12.02.2015 at about 8.30 pm she saw the appellant and Pervaiz (since acquitted) standing in front of the house of Aitbar Khan, father of the deceased and further stated that on 08.02.2015 the deceased had disclosed to her that she had become pregnant due to her relationship with the appellant and had planned to go to Attock to get married on 12.02.2015. Meer Zaman (PW-3) stated that on 18.02.2015 the appellant and Pervaiz (since acquitted) came to his house and confessed their guilt. Rehmat Khan (PW-4) stated that on 23.02.2015 the appellant pointed out the place where he and Pervaiz (since acquitted) had thrown the deceased in the Ghazi Brotha Canal Muhammad Jamil (PW-5) stated as has been reproduced in the paragraph 03 of this judgment. Mst. Raftoon Bibi (PW-6) stated that the appellant had developed sexual relations with the deceased, got her pregnant and thereafter on 12.02.2015 took the deceased to Attock for contracting marriage.
6. The learned trial court also examined as many as eleven witnesses as court witnesses. Muhammad Khan S.I. (CW-3) recorded the formal FIR (Exh. CW-3/A) on 18.02.2015. Naveed Zeeshan 331/HC (CW-4) stated that on 26.02.2015 the appellant led to the recovery of the motorcycle (Exh. CW-4/1). Faisal Naseem Patwari (CW-5) prepared the site plan of the place of occurrence. Muhammad Mushtaq 892/C (CW-6) stated that on 19.02.2015 the appellant was arrested and from his personal search mobile phone, two SIM cards and Rs.250/- were recovered. Muhammad Mushtaq 892/C (CW-6) further stated that on 02.03.2015 he took two sealed parcels to the office of Punjab Forensic Science Agency, Lahore. Dawood 111/C (CW-7) stated that on 26.02.2015 he handed over the mobile data of the phone numbers (Exh.CW-7/P-1 to P-20). Sher Khan A.S.I. (CW-8) stated that on 28.02.2015 he received two sealed envelopes for safe custody and on 02.03.2015 he handed over the same to Muhammad Mushtaq 892/C (CW-6) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore and on 05.03.2015 he received four sealed envelopes, three Jars, Dopatta and a motorcycle for safe custody and on 11.03.2015 he handed over the three jars and four envelopes to Wajid Khan Constable. Bashir Ahmad Awan, draftsman (CW-9) stated that the he prepared the scaled site plan (Exh.CW-9/ 1-2) of the place of occurrence. Muhammad Irfan 1989/C (CW-11) stated that on 27.02.2015 the appellant led to the recovery of Dopatta (Exh.CW-7/11) of the deceased and on 05.03.2015 the witness escorted the dead body of the deceased to the hospital for its post mortem examination. Muhammad Naeem S.I. (CW-10) investigated the case from 18.02.2015 till 29.03.2015, arrested the appellant on 19.02.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
7. The learned trial court also examined Dr. Fozia Karim (CW-2), who on 05.03.2015 was posted as Woman Medical Officer at DHQ hospital Attock and on the same day conducted the postmortem examination of the dead body of Mst. Gulfarin daughter of Aitbar Khan (deceased). Dr. Fozia Karim (CW-2), on examining the dead body of Mst. Gulfarin daughter of Aitbar Khan (deceased) observed as under:
"On external examination I found that it was a dead body of an average built female, putrefied, skin peeled and loose, eyes closed, mouth opened, tongue between teeth, skin pale, hair separated from the head with black colour present on the dead body, dried leaves were present on the hair, rigor mortis was present, abdomen distended. Nails were present, face swollen at the time of examination. Clothes were not present on the body. Golden ear rings were present in both the ears. Four bangles of gold colour were also found in her right arm. Chest was bruised on the front side. There was a swelling present on the right side of the fore-head above the right eye approximately 4. CM x 5. CM in diameter.
I have seen the report of Punjab Forensic Science Agency, Lahore according to which the report to the extent of seminal and vaginal swabs is negative. However, the apparent cause of death of deceased was drowning in the water."
The learned trial court also examined Dr. Rashid Khan (CW-1) who stated that the appellant and Pervaiz (since acquitted) both were potent enough to perform sexual intercourse.
8. On 15.12.2017 the complainant gave up the witness namely Israfeel, Muhammad Sheraz, Aitbar Khan, Mst. Shaheen Bibi and Muhammad Ikhlaq as being unnecessary and closed the evidence of the complainant.
9. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Imran son of Gulzar under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Imran son of Gulzar opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
10. On the conclusion of the trial, the learned Additional Sessions Judge, Attock convicted and sentenced the appellant as referred to above.
11. 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.
12. On the other hand, learned Deputy 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. They further argued that the deceased was murdered by the appellant who had confessed to the said crime before the witnesses. They further argued that the recoveries from the appellant also corroborated the statements of the witnesses. 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, the learned Deputy Prosecutor General and learned counsel for the complainant prayed for the rejection of appeal.
13. We have heard the learned counsel for the appellant, the learned counsel for the complainant/respondent No.2, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.
14. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent to mention here that in the instant matter ocular evidence is not available. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge, (1938) 2 Lewin 227) where he said:
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
Sir Alfred Wills in his book "An Essay on the Principles of Circumstantial Evidence" (pages 173 to 190 of the Fifth American, from the Fourth London Edition published in 1872) lays down the following rules specially to be observed in the case of circumstantial evidence:
"RULE 1.---The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum.
RULE 2.---The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability
RULE 3.---In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits .
RULE 4.---In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
RULE 5.---If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted."
Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof.
15. From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the extra-judicial confession, the evidence of the deceased being last seen in the company of the appellant, recovery of incriminating material i.e. the recovery of the motorcycle (CW-4/1) and the Dopatta (CW-7/11) and the Call Data Record. Firstly, we shall deliberate upon the evidence of extra-judicial confession. Muhammad Jamil (PW-5), in his statement before the learned trial court, stated that Mir Zaman (PW-3) had told him regarding the confession of the appellant and his co-accused Pervaiz (since acquitted) and went on to narrate the whole conversation of Mir Zaman (PW-3) with him and the accused, despite the fact that admittedly the appellant had not made any such confession to Muhammad Jamil (PW-5) himself. In this manner the portion of the statement of Muhammad Jamil (PW-5), whereby he reproduced the confession of the appellant made to Mir Zaman (PW-3), cannot be read in evidence being irrelevant and inadmissible. The prosecution got Mir Zaman (PW-3) examined to prove the extra-judicial confession allegedly made by the appellant in this case. Mir Zaman (PW-3) stated that on 18.02.2015 at about 9.00 p.m. Muhammad Imran son of Gulzar, the appellant, and Pervaiz, the co-accused of the appellant (since acquitted) came to his house 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 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. Moreover, according to the witness namely Mir Zaman (PW-3), Muhammad Imran son of Gulzar, the appellant, requested him to arrange pardon for him from the legal heirs of the deceased. Admittedly, Mir Zaman (PW-3) did not possess any influential portfolio at that time to have any influence to beg pardon for the appellant from the complainant. Moreover, Mir Zaman (PW-3) admittedly did not try to apprehend the appellant at the time of making or even after the said extra-judicial confession in spite of the fact that he was allegedly present in his company, of his own volition, in his house. Mir Zaman (PW-3) was so na ve that he let the appellant leave his house without making any effort to apprehend him. Mir Zaman (PW-3) claimed to be a close relative of Aitbar Khan, the father of the deceased, however despite the said claimed close relationship, Mir Zaman (PW-3) did not react at all to the confessional statement of the appellant and calmly saw him leaving his house, without even moving an inch. Mir Zaman (PW-3) has not mentioned in his statement that the accused had some weapon when he visited him at his house to confess his guilt about the murder of Mst. Gulfarin (deceased) which could have precluded the said witness from apprehending the appellant. This conduct of Mir Zaman (PW-3) was not natural in the circumstances. These peculiar facts speak volumes regarding the lack of veracity in the statement adduced by Mir Zaman (PW-3) and also shows his unusual behavior and the same was even otherwise contrary to the normal human behaviour. To make confession in order to give outlet to one's 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 witness Mir Zaman (PW-3), before whom the alleged extra-judicial confession was made was such that he barely knew the accused before the alleged confession and Mir Zaman (PW-3) was neither a close confidant of the accused in any manner or said to be sharing any habit or association with the accused. Furthermore, Mir Zaman (PW-3) also admittedly was neither a councilor nor holding any position of importance which could have entailed in him the capacity to procure a compromise for the appellant and any such status, which in turn could have struck the appellant as being such that Mir Zaman (PW-3) could procure a compromise for him. Both the possibilities of confessing the crime, for the purpose of boasting and ventilating, in the circumstances are excluded from consideration. Furthermore, the Investigating Officer of the case during the investigation did not visit the place where the appellant had allegedly confessed his guilt to Mir Zaman (PW-3). Additionally, we have also noted that according to the claim of Mir Zaman (PW-3) both the appellant and his co-accused Pervaiz (since acquitted) had confessed to having murdered Mst. Gulfarin. It was proved on record that Mir Zaman (PW-3) improved his statement with regard to the confession of Pervaiz, the co-accused of the petitioner (since acquitted). Muhammad Naeem S.I. (CW-10), the Investigating Officer of the case, admitted during cross-examination that Mir Zaman (PW-3) had not stated anything regarding the confession being made by Pervaiz, the co-accused of the petitioner (since acquitted). Mir Zaman (PW-3) made blatant and dishonest improvements in his previous statement which are sufficient to impeach his credit. The said improvements were made with regard not only to the alleged confession made by Pervaiz, the co-accused of the petitioner (since acquitted) but also with regard to the fact that as to whether the appellant had alone visited Mir Zaman (PW-3) on 18.02.2015 to confess his guilt or that the appellant was accompanied by Pervaiz, his co-accused (since acquitted) on 18.02.2015. The august Supreme Court of Pakistan in the cases of "Muhammad Ashraf v. State" (2012 SCMR 419), "Muhammad Mansha v. The State" (2018 SCMR 772) and Muhammad Arif v. The State (2019 SCMR 631) took a serious notice of the improvements introduced by witnesses and rejected their evidence. After an overwhelming analysis of the prosecution evidence with regard to extra-judicial confession, we have come to the conclusion 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 Mir Zaman (PW-3) about the 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 and 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 extrajudicial 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.
16. The prosecution also led evidence to prove that the deceased was last seen in the company of the appellant. In order to prove the said fact the prosecution examined Mst. Ijaz Bibi (PW-2) who stated that on 12.02.2015 at about 8.30 pm she saw the appellant and Pervaiz (since acquitted) standing in front of the house of Aitbar Khan, father of the deceased. This witness impeached her credit by making improvements in her previous statement and the said improvements was brought on record. Muhammad Naeem S.I. (CW-10), the Investigating Officer of the case, admitted during cross-examination as under:-
"It is correct that in her statement Ijaz Bibi did not state that she had seen accused Pervaiz with Imran on 12.02.2015."
The said improvements made by Mst. Ijaz Bibi (PW-2) were substantial and were made with regard to crucial aspects of the prosecution evidence. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under:-
"151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
By improving her previous statement, Mst. Ijaz Bibi (PW-2) impeached her own credit. The august Supreme Court of Pakistan in the cases of "Muhammad Ashraf v. State" (2012 SCMR 419), "Muhammad Mansha v. The State" (2018 SCMR 772) and Muhammad Arif v. The State (2019 SCMR 631) took a serious notice of the improvements introduced by witnesses and rejected their evidence. Additionally, this witness, despite the fact of having seen deceased in the company of the appellant on 12.02.2015, however, did not report the said matter to the police. It was only on 18.02.2015 that she appeared before the Investigating Officer and got recorded her statement that she had seen the deceased with the appellant. No reasonable explanation was offered by this witness for not reporting the matter to the police for as many as six days. It is settled that delay in making a statement under section 161, Cr.P.C, if not reasonably explained, dilutes its evidentiary value. The prosecution also got examined Ghareeb Nawaz (PW-1) to prove that the deceased was last seen in the company of the appellant. Ghareeb Nawaz (PW-1) stated that on 12.02.2015 at about 9.00/9.30 p.m. he saw the appellant with Gulfarin Bibi (deceased), riding on a motorcycle, going towards Attock. Ghareeb Nawaz (PW-1), despite the fact of having seen deceased in the company of the appellant on 12.02.2015, however, did not report the said matter to the police. It was only on 18.02.2015 that he appeared before the Investigating Officer and got recorded his account that he had seen the deceased with the appellant. No reasonable explanation was offered by this witness for not reporting the matter to the police for as many as six days when according to his own admission he was also related to Mst. Gulfarin (deceased). It is settled that delay in making a statement under section 161, Cr.P.C., if not reasonably elucidated, weakens its evidentiary value. Furthermore, it was claimed by Ghareeb Nawaz (PW-1) that he on 12.02.2015 had told Aitbar Khan, father of the deceased, that he had seen the appellant along with Mst. Gulfarin (deceased) riding on a motorcycle on the same day, however when the written application (Exh. PB) for the registration of FIR was submitted on 18.02.2015 it had not been recorded that Ghareeb Nawaz (PW-1) on 12.02.2015 had seen the appellant along with Mst. Gulfarin (deceased) riding on a motorcycle. This omission in naming Ghareeb Nawaz (PW-1) as a witness in the written application (Exh. PB) establishes the fact that Ghareeb Nawaz (PW-1) deposed falsely and his statement was untruthful and acquired. The prosecution also got recorded the statement of Mst. Raftoon Bibi (PW-6) who stated that on 12.02.2015 the appellant took away her daughter namely Mst. Gulfarin (deceased) and subsequently murdered her. This witness during cross-examination admitted that she had not seen the appellant and the deceased going together. Mst. Raftoon Bibi stated as under:-
"I have not seen Imran and Gulfarin Bibi while going together."
Furthermore, Mst. Raftoon Bibi (PW-6) further admitted during cross-examination that till her appearance before the learned trial court on 08.12.2017 she had not got recorded her statement before any forum. In this manner, Mst. Raftoon Bibi (PW-6) admitted that she never reported the matter of seeing the appellant leaving with the deceased to anyone till her appearance before the learned trial court. Moreover, as mentioned above, she herself had never seen the appellant leave with the deceased and in this manner her evidence is of no relevance. Mst. Raftoon Bibi (PW-6) also admitted that her house was located on the main street of the village and had only one entrance gate. Mst. Raftoon Bibi (PW-6) further stated that the residents of her house could always see anybody entering the house through the main gate. In this manner, the departure of Mst. Gulfarin (deceased) could not have gone unnoticed and the failure of the witnesses to report the said absence of Mst. Gulfarin (deceased) for as many as six days proves that the witnesses failed to establish the alleged fact that the deceased was seen by them in the company of the appellant leaving from her house on a motorcycle. Another aspect of the case is that both Ghareeb Nawaz (PW-1) and Mst. Ijaz Bibi (PW-2) had allegedly seen the deceased in the company of the appellant near the house of Aitbar Khan (given up witness) situated in the village Haji Shah whereas the dead body of the deceased was recovered from the intake area of Ghazi Brotha Canal. The place from where the dead body of the deceased was recovered and where the witnesses had allegedly last seen the appellant in the company of the deceased, according to the prosecution evidence, bring evidence of last seen short of proximity in terms of the time and the space which is a sine qua non for acceptance of the last seen evidence. Last seen together is a weak type of circumstantial evidence, which cannot be readily believed unless it was corroborated through unimpeachable source, and it should be close to the time and place of murder to exclude possibility of innocence. Pre-requisites for believing last seen evidence are that proximity of time and nearness of the place of occurrence. Interpreting these two principles, it is required that deceased shall be seen in the company of the accused by the witnesses some short time before happening of the incident and the place of murder may not be far away from the place of lastly seeing the deceased in the company of the accused by the prosecution witnesses. In this case these two elements are missing. It is settled law that the last seen evidence can have legal worth only if the deceased is seen in the company of the accused quite close to the time of his death so as to exclude any possibility of the deceased coming in contact with anybody else before his death. Reliance is placed on the case of Sadi Ahmad and another v. The State (2019 SCMR 1220) wherein the august Supreme Court of Pakistan has held as under:-
"We are not much impressed by the evidence of last seen for being outside the bounds of proximity in terms of time and space, besides otherwise being far from confidence inspiring".
Reliance is also placed on the case of Muhammad Abid v. The State and another (PLD 2018 Supreme Court 813) wherein the august Supreme Court of Pakistan has enunciated the following principle:-
"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 connectivity between the accused and the crime."
Hence, in view of the above discussion, the last seen evidence furnished by Ghareeb Nawaz (PW-1) and Mst. Ijaz Bibi (PW-2) is not confidence inspiring, therefore, the same cannot be relied upon.
17. We have also noted that Aitbar Khan (given up witness), the father of the deceased, despite the knowledge of the leaving of the deceased with the appellant on 12.02.2017, did not report the incident to the police and it was Muhammad Jamil (PW-5) who reported the matter to the police on 18.02.2015 and also lodged the private complaint. Aitbar Khan (given up witness), the father of the deceased did not even appear as a witness to support the prosecution case before the learned trial court. The apathy shown by Aitbar Khan (given up witness), the father of the deceased is quite revealing and Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus believe the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that had Aitbar Khan (given up witness), the father of the deceased appeared before the learned trial court he would not have supported the prosecution case. Similarly, Mst. Raftoon Bibi (PW-6) also admitted that she never made any statement before any forum regarding the enticement of the deceased by the appellant. It was only Muhammad Jamil (PW-5) who reported the matter to the police on 18.02.2015, however he too did not explain the delay in reporting the matter to the police. Muhammad Jamil (PW-5) tried to explain the said delay by stating that he contacted the appellant for the return of Mst. Gulfarin (deceased), however admitted during cross-examination that he had not met the accused person between 12.02.2015 to 18.02.2015. He also admitted that he had never seen the appellant with the deceased. There is no explanation for the said delay in reporting the matter to the police. The delay is conspicuous by its magnitude. We are convinced in our minds that the prosecution witnesses failed to prove the facts necessary to establish the guilt of the appellant.
18. The prosecution has also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilt of the appellant. Dawood 111/C (CW-7) stated that on 26.02.2015 and 20.03.2015 he handed over the mobile data of the phone numbers (Exh.CW-7/P-1 to P-20) of mobile numbers under the use of the deceased as well as the appellant. According to Dawood 111/C (CW-7) he handed over the Call Data Record of mobile number 03435856191 under the use of the appellant (Exh.CW-7/P-1 to P-5) and the Call Data Record of mobile number 0344 5169631 under the use of the deceased (Exh.CW-7/P-6 to P-9) to the Investigating Officer on 26.02.2015. Dawood 111/C (CW-7) further he handed over the Call Data Record (Exh.CW-7/P-12 to P-20) of mobile number 0323 5702838 under the use of the co-accused of the appellant namely Pervaiz (since acquitted) to the Investigating Officer on 20.03.2015. No voice record or its transcript has been brought on record. It is also stressed again that in absence of any voice call data or record, simply the production of the Call Data Record without the disclosure of the details of the conversations is not relevant to prove any fact supporting the prosecution case against the appellant. Considering the above mentioned facts in the given circumstances discussed above, doubt is created in the prosecution case, the benefit of which cannot be denied to the appellant. Reliance is placed on the case of "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274), wherein, it has been held as under:-
"The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wall (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner."
19. The learned Deputy Prosecutor General has vehemently argued that the statements of the accused, in police custody, made at the time of the recovery of the motorcycle (CW-4/1) on 26.02.2015 and Dopatta of the deceased (CW-7/11) on 27.02.2015 were admissible and relevant and amounted to confessions 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 40 of the Qanun-e-Shahadat Order, 1984 reveals firstly that it serves as a proviso to Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984. 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 Qanun-e-Shahadat Order, 1984, 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 18.02.2015, whereas the said recovery of motorcycle (Exh.CW-4/1) was effected on 26.02.2015. No new information was made available to the prosecution on 26.02.2015 as a consequence of the proceedings conducted on the said date 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. Similarly, the recovery of Dopatta (Exh.CW-7/11) was made on 27.02.2015. As mentioned above, no new information was made available to the prosecution on 27.02.2015 as a consequence of the proceedings conducted on the said dates 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 statements of the appellant made in police custody at the time of the recovery of the motorcycle (CW-4/1) on 26.02.2015 and Dopatta of the deceased (CW-7/11) on 27.02.201-5 cannot be read in evidence and would remain inadmissible.
20. The learned Deputy Prosecutor General has also relied upon the document (CW-10/D) and the statement of Rehmat Khan (PW-4) and Muhammad Naeem S.I. (CW-10) that on 23.02.2015 the appellant pointed out the place of murder of the deceased. The statements of the witnesses that on 23.02.2015 the appellant pointed out the place of murder of the deceased are not relevant as no new fact was discovered in consequence of that said pointing out and already the place of occurrence was in knowledge of the witnesses since 18.02.2015. The august Supreme Court of Pakistan in the case of "Fazal Subhan and another v. The State and others" (2019 SCMR 1027) has enunciated the following principle:-
"Memo of pointing out of place of occurrence cannot be equated with disclosure within the contemplation Article 40 of the Qanun-e-Shahadat Order, 1984."
21. The learned Deputy Prosecutor General has also relied upon the recoveries of the motorcycle (CW-4/1) on 26.02.2015 and Dopatta of the deceased (CW-7/11) on 27.02.2015 from the appellant namely Muhammad Imran, however the same cannot be relied upon as the fact remains that Investigating Officer of the case did not join any witness of the locality during the recoveries of the motorcycle (CW-4/1) on 26.02.2015 and Dopatta (CW-7/11) of the deceased on 27.02.2015 from the appellant which was in clear violation of section 103 of the Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The Investigating Officer did not ask any person resident of the area surrounding the places of recoveries of the of the motorcycle (CW-4/1) on 26.02.2015 and the Dopatta (CW-7/11) of the deceased on 27.02.2015 to witness the same. The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others v. The State" (2017 SCMR 898) at page 901 has held as under:-
"For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard"
Moreover, despite the fact that the claim of the witnesses was that the recovery of the motorcycle (CW-4/1) was made on 26.02.2015 and the recovery of the Dopatta of the deceased (CW-7/11) was made on 27.02.2015, however Sher Khan A.S.I. (CW-8) stated that it was on 05.03.2015 that Naeem Khan S.I. (CW-10) the Investigating Officer of the case, handed over to him the said recovered motorcycle (CW-4/1) and the Dopatta of the deceased (CW-7/11) for keeping in the Malkhana. There is no explanation as to why the said recovered motorcycle (CW-4/1) and the Dopatta of the deceased (CW-7/11) were handed over to Sher Khan A.S.I. (CW-8), the Moharrar of the police station, for safe custody on 05.03.2015 when they had been recovered much earlier on 26.02.2015 and 27.02.2015 respectively. Due to this reason no reliance can be placed upon the recovery of the motorcycle (CW-4/1) and the Dopatta of the deceased (CW-7/11) and prosecution witnesses miserably failed to prove that the appellant led to the recovery of said articles.
22. We have also noted that the medical evidence produced by the prosecution also was contrary to the statements of the witnesses. According to Mir Zaman (PW-3), the appellant had confessed that he had murdered the deceased for the reason that she had become pregnant and was forcing the appellant to marry her. Mst. Ijaz Bibi (PW-2) stated that on 08.02.2015 the deceased had disclosed to her that she had become pregnant due to her relationship with the appellant and had planned to go to Attock to get married on 12.02.2015. Mst. Raftoon Bibi (PW-6), the mother of the deceased had also claimed that the deceased was pregnant with the child of the appellant. Muhammad Jamil (PW-5) also stated that the deceased was pregnant with the child of the appellant. Contrary to the statements of the above mentioned witnesses, Dr. Fozia Karim (CW-2), on examining the dead body of Mst. Gulfarin daughter of Aitbar Khan (deceased) did not opine that the deceased was pregnant. Dr. Fozia Karim (CW-2) also observed that the organs of generation were healthy and did not find any dead foetus inside the womb of the deceased. Differing with the claim of the prosecution witnesses Dr. Fozia Karim (CW-2) declared as under:-
"In abdominal cavity, all the organs including walls, peritoneum, mouth, pharynx and esophagus, diaphragm, stomach and its contents, pancreas, small and large intestines, liver, spleen, both the kidneys, urinary bladder along with the organs of generation were healthy. The organs of generation were healthy and the abdominal cavity was cold. In upper and lower limbs nothing abnormal was detected.
..
Samples from the uterus along with three vulvo vaginal swabs were taken and were sent to histopathology and DNA and for the detection of poison, if any to Chemical Examiner.
I have seen the report of Punjab Forensic Science Agency, Lahore according to which the report to the extent of seminal and vaginal swabs is negative."
In this manner, the prosecution witnesses were contradicted by the statement of Dr. Fozia Karim (CW-2). The deceased was not found to be with any child as opposed to what was alleged by Mir Zaman (PW-3), Mst. Ijaz Bibi (PW-2), Mst. Raftoon Bibi (PW-6) and Muhammad Jamil (PW-5).
23. The plea of the learned Deputy 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 the 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 (1991 PSC 281). It is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly, mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In that event the justice would be casualty.
24. We have already mentioned that along with the appellant, his co-accused namely Pervaiz (since acquitted) was also tried by the learned trial court. The learned trial court acquitted Pervaiz the co-accused of the appellant. The acquittal of Pervaiz the co-accused of the appellant, has attained finality as no appeal against his acquittal is pending. The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view sterns from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles:-
"The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.
.
Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids.
.
.
21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury."
Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. Mir Zaman (PW-3) stated that on 18.02.2015 at about 9.00 p.m. Muhammad Imran son of Gulzar, the appellant, and Pervaiz, the co-accused of the appellant (since acquitted) came to his house and confessed to have murdered the deceased, however this witness has been disbelieved by the learned trial court with regard to his statement that Pervaiz, the co-accused of the appellant (since acquitted) also confessed his guilt on 18.02.2015. Similarly, Mst. Ijaz Bibi (PW-2) stated that on 12.02.2015 at about 8.30 pm she saw the appellant and Pervaiz (since acquitted) standing in front of the house of Aitbar Khan, father of the deceased and she has also been disbelieved by the learned trial court with regard her allegation against Pervaiz, the co-accused of the appellant (since acquitted). We find no reason to believe their statements with regard to the appellant in absence of any reason to do so. This lying on part of the witnesses with regard to Pervaiz (since acquitted) has vitiated our trust in them. We are thus satisfied that the evidence of the said witnesses has no worth and is to be rejected outright.
25. In view of the above we are of the considered opinion that 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."
26. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Imran son of Gulzar (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."
27. For what has been discussed above, Criminal Appeal No.33 of 2018 lodged by Muhammad Imran son of Gulzar (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 21.12.2017 are hereby set-aside. The appellant namely Muhammad Imran son of Gulzar is ordered to be acquitted. Muhammad Imran son of Gulzar (appellant) is directed to be released forthwith if not required in any other case.
28. Pursuant to the discussion made and conclusions arrived at above, Criminal Revision No. 7 of 2018, seeking enhancement of the amount of compensation under section 544-A, Cr.P.C. to be paid by the convict to the lehgal heirs of the deceased, is hereby dismissed.
29. Murder Reference is answered in Negative and the death sentence of Muhammad Imran son of Gulzar is Not Confirmed.
JK/M-175/L Order accordingly.