2018 PLP 64 (YLRN)

TURIQ SALEEM SHEIKH, J.

This judgment shall decide State Appeal bearing Crl. Appeal No.897/2016 which has been preferred against judgment dated 28.11.2004 delivered by the Additional Sessions Jude, Multan (the "Impugned Judgment"), in case FIR No. 24/2011 dated 15.01.2011 which was registered at P.S. Cantt., Multan, under sections 302/ 363/376/377/34, P.P.C.. The learned Additional Sessions Judge has acquitted the Respondents through the Impugned Judgment.

2. Brief facts of the case are that Muhammad Farooq (PW-7), the Complainant, who works as a mason, got his statement (Ex-PH/1) recorded with the police according to which on 14.01.2011, at about 08:30 p.m., his daughter named Hina (aged 9/10 years) went out of the house saying that she would be back in a short while. When she did not return after 15/20 minutes, the Complainant went to his neighbours to look for her but he could not find her. He then searched her in the streets and in the surrounding areas but without fruition. On 15.01.2011, at about 03:00 p.m., he learnt that there was a suspicious jute sack lying in a nearby under-construction house and people had gathered there. When that sack was opened, dead body of his daughter Hina was found in it. A pink trouser was tied around the neck of the deceased. Thereupon, FIR No. 24/2011 (Ex.PH), ibid, was registered against unknown persons. Post-mortem reort (Exh.PF) subsequently revealed that Hina deceased was raped and sodemized before she was murdered.

3. The following day, i.e. on 16.01.2011, the Complainant got recorded his supplementary statement (Ex.PJ) with the police in which he nominated Respondents Ameer Alam and Muhammad Bilal as accused persons.

4. The Respondents were challaned and indicted. They were tried by the learned Additional Sessions Judge, Multan. During the trial, prosecution produced 10 PWs to prove its case. These included Abid 1500-C (PW-1), Ashiq Ali 1829-C (PW-2), Muhammad Shall 682-C (PW-3), Mukhtar Ahmed (PW-4), Lady Doctor Tasneem Kausar Malik (PW-5), Zulfiqar Ali ASI (PW-6), Complainant Muhammad Farooq (PW-7), Draftsman Irfan Hayat (PW-8), Dr. Tariq Nawaz Babar (PW-9) and Ghulam Qadir S.I. (PW-10), who was the Investigating Officer of this case. PW-5 Lady Doctor Tasneem Kausar is the Medical Officer who conducted the post-mortem of the deceased while PW-9 Dr. Tariq Nawaz Babar determined whether the Respondents were potent or not. Learned ADPP gave up PWs Zahoor 1188-C and Kamran as unnecessary.

5. The prosecution also produced recovery memo of trouser/chadar and shoes of deceased as Exs. PA and PB, recovery memo of clothes of accused Bilal and Ameer Alam as Exs. PC and PD, recovery memo. of clothes of deceased as Ex. PE, Post-mortem Report as Ex. PF, report of the Chemical Examiner as Ex.PG, copy of the FIR as Ex. PH, original complaint as Ex. PH/1, supplementary statement of complainant as Ex. PJ, site plan with scale as Exs. PK, and PL, medical report of Respondent Bilal as Ex. PM and that of Respondent Ameer Alam as Ex. PN, report of place of dead body and the Inquest Report as Exs. PP and PQ respectively, site plan without scale of the place of occurrence as Ex.PS, site plans of the place of recoveries as Exs. PT and PU, DNA test report as Exs. PV and PV/1. Prosecution have also produced in the Court Shalwar P 1 , chadar and shoes of deceased as P2 & P3, clothes of accused Bilal as P7 to P8/1-4, clothes of Respondent Ameer Alam as P9 and P10.

6. The Respondents recorded their statements under section 342, Cr.P.C. wherein they denied their involvement in the occurrence and averred that they had been implicated at the instance of certain local politicians who were inimical towards them. The Respondents neither opted to record their statements under section 340(2), Cr. P.C. in disproof of the charge levelled against them nor produced any evidence in their defence.

7. On the conclusion of the trial, the learned Additional Sessions Judge, Multan, vide judgment dated 28.11.2004, acquitted both the Respondents holding that the prosecution had failed to prove its case against them beyond shadow of doubt. As already stated hereinabove, the State had assailed this judgment in the present appeal. The Complainant has not filed any separate appeal against the Impugned Judgment.

8. We have heard the learned Deputy Prosecutor General (the "DPG") at length and have gone through the Impugned Judgment. The learned DPG has not been able to point out any legal infirmity in the Impugned Judgment. Admittedly, this was not a case of direct evidence. The prosecution tried to prove its case through circumstantial and the alleged extra-judicial confessions of the Respondents.

9. For circumstantial evidence the prosecution produced PW-7 Muhammad Farooq (Complainant) who implicated the Respondents in the case through his supplementary statement Ex.PJ which was recorded on 16.01.2011. In his deposition PW-7 could not bring forth any incriminating fact against the Respondents. All he had to say was that the Respondents re lingering around his house on the day of occurrence and subsequently absented from their residences. It is a settled law that circumstantial evidence should be relied upon with extreme care and caution. The criteria to believe the circumstantial evidence was laid down by the august Supreme Court of Pakistan in the case reported as "The State v. Manzoor Ahmed" (PLD 1966 SC 664) wherein it was observed as under:- "In a case resting wholly on circumstantial evidence the Court must remember that the 'processes of inference and deduction are essentially involved--frequently of a delicate and perplexing character--liable to numerous causes of fallacy.' Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances, those circumstances must be found to be incompatible with the innocence of the accused and 'incapable of explanation upon any other reasonable hypothesis than that of his guilt.' The circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre-conceived notions. But once the circumstances have been found to be so established. they may well furnish a better basis for decision than any other kind of evidence."

10. Furthermore, for the safe administration of justice it should be ensured that all the events leading to the crime are fully linked with each other and form a continuous chain. If any link in this chain is missing, its benefit must go to the accused. Reliance is placed on "Advocate-General Government of East Pakistan v. Majid alias Abdul Majid" (1970 SCMR 12), "Ch. Barkat Ali v. Major Karam Elahi Zia and another" (1992 SCMR 1047), "Sarfraz Khan v. State" (1996 SCMR 188), "Talib Hussain v. The State" (NLR 1996 SCJ 196), "Asadullah and another v. The State" (1999 SCMR 1034) and "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103).

11. Insofar as the instant case is concerned, there is hardly any circumstantial evidence to connect the Respondents with the above-noted crime. There is no evidence even to the effect that anyone had seen Hina deceased in the company of the respondents. Similarly, there is no evidence except the solitary statement of PW-7 that the respondents were wandering near his house on the day of occurrence.

12. In order to prove extra-judicial confessions of the respondents, the prosecution produced PW-7 Muhammad Farooq, PW-10 Ghulam Qadir SI (who is the Investigation Officer of the case) and PW-4 Mukhtar Ahmed. There are material contradictions in the statements of PW-7 and PW-4 which the learned Additional Sessions Judge has discussed in Paragraph-15 of the Impugned Judgment. The learned Deputy Prosecutor General has failed to point out any misreading/non-reading of evidence on the part of the learned trial Court on this score. Even otherwise, it is by now a settled law that extra-judicial confession is a weak type of evidence and Courts should be careful in relying on it for convicting an accused person unless it is corroborated by other credible evidence. The Apex Court discussed the evidentiary value of judicial confession in case reported as "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231) as follows: "17 This Court and its predecessor courts (Federal Court) have elaborately laid down the law relating extra-judicial confessions starting from Ahmad v. The Crown (PLD 1951 FC 103-107) upto 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) extrajudicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extrajudicial confession, the court must inquire into all material facts and surrounding circumstances to 'satisfy itself fully that the confession cannot but be true'. As an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before made the basis of conviction."

13. The above view was reiterated in "Tahir laved v. The State" (2009 SCMR 166) as under: "It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time, therefore, normally, it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra-judicial confession, therefore, must be considered with overall context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this court that extra-judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may be made to the following reported judgments: (i) Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231), (ii) Ziaul Rehman v. The State (2001 SCMR 1405), (iii) Tayyab Hussain Shah v. The State (2000 SCMR 683) and (iv) Sarfraz v. The State and others (1996 SCMR 188)"

14. As adumbrated above, case against the Respondents triggered from Ex.PJ, the supplementary statement of PW-7. Again, the question arises as to what is the evidentiary value of such statement under the law and whether it can be used against the Respondents and, if so, to what extent. In "Falak Sher alias Sheri v. The State" (1995 SCMR 1350), the august Supreme Court of Pakistan held that any statement or further statement of the first informant recorded during investigation by the police would neither be equated with FIR nor read as a part of it. It ruled: "

18. The learned counsel for the State insisted that in supplementary statement recorded by S.I. Muhammad Ayub on same day the complainant had disclosed name of the appellant. The supplementary statement of the complainant be read as part of the FIR. The contention is devoid of force. It may be observed that FIR is the document which is entered into 154, Cr.P.C. Book maintained at the police station at the complaint of informant. It brings the law into motion. The police under section 156 Cr.P.C. starts investigation of the case. "

19. Any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it. "

20. It is, therefore, established that name of the appellant does not appear in the FIR. It In respect of the statement of complainant Muhammad Yasin recorded before the Court stating that he had named appellant Falak Sher along with three accused in the FIR it may be observed that it is totally belied by the I.O. Muhammad Ayub. It is an improvement made by the complainant. Statement of the complainant involving of appellant Falak Sher in the case is obviously false and no reliance can be placed thereon. Because of improvement the other eye-witnesses have also named the appellant in the case. Their evidence in respect of the appellant is also not true. This aspect of case was neither attended to either by the trial Court or the Federal Shariat Court."

15. The dictum laid down in the above-mentioned case has been followed by a Division Bench of this Court in the case of "Anees-ur-Rehman and another v. The State." (PLD 2002 Lah. 110). Again, in "Khalid Javed v. The State" (2003 SCMR 1419), the august Supreme Court said: "As far as supplementary statement of a complainant is concerned its value is not more than a statement under section 161 Cr.P.C. ... Delay in recording supplementary statement would be an important factor which is likely to give rise to an inference that recorded version contained in it was introduced by the prosecution after deliberation and if it is so it will already affect the prosecution case."

16. The principles laid down in the cases of Falak Sher alias Sheru and Khalid Javed, ibid, were reiterated by the august Supreme Court in "Noor Muhammad v. The State" (2008 SCMR 1556). In the instant case, the learned trial Court has categorically held in Paragraph-18 of the Impugned Judgment that the PWs improved their statement during the trial. It further held that the PWs did not corroborate each other on material aspects and even grossly contradicted each other. We confronted the learned DPG with these findings of the learned trial Court but he was unable to rebut them. Evaluating the supplementary statement of the Complainant Ex.PJ in the light of these findings of the learned trial Court and the principles enunciated in the above-mentioned case law, we hold that it is of no avail to the prosecution.

18. For the reasons stated, above, this appeal is hereby dismissed in limine. JK/S-39/L Appeal dismissed.