2013 PLP 2748 (YLR)

MALIK SHAHZAD AHMAD KHAN, J.

This judgment shall dispose of Criminal Appeal No.1026 of 2007 titled as "Nazer Abbas v. The State" preferred by appellant Nazer Abbas against his conviction and sentence and Murder Reference No.404 of 2007 titled as "The State v. Nazer Abbas" submitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Nazer Abbas appellant, as both these matters have arisen out of the same judgment dated 12-9-2007, passed by the learned Sessions Judge, Gujrat in case F.I.R. No.303 dated 9-6-2005, offence under section 302, P.P.C., registered at Police Station Saddar Khariyan District Gujrat, whereby, Nazer Abbas, appellant was convicted under section 302(b)/34, P.P.C. for committing the murders of Nasir and Arshad (deceased) and sentenced to death on two counts with the direction to pay Rs.3,00,000 (rupees three lac) as compensation to the legal heirs of each deceased namely, Nasir and Arshad as envisaged under section 544-A of the Code of Criminal Procedure and in default, thereof, to undergo simple imprisonment for six months on each count. The learned trial court, however, through the same judgment acquitted Shafaqat and Aamer, co-accused of the appellant. The complainant filed Criminal Appeal No.1379 of 2007 against their acquittal which was dismissed in limine by this Court vide order dated 1-4-2008.

2. The machinery of law was set in motion by Muhammad Anwar, Lumberdar (P.W.4) who moved an application (Exh.P.W.9/1-P.W.4/1), on the basis of which formal F.I.R. (Exh.P.W.9/1-1) was registered. Muhammad Anwar, Lumberdar (P.W.4), in the said application, stated that he was Lumberdar of the village Boriyanwala. On 9-6-2005, he was going to village Panjan Kasana in connection with some personal work. When at about 7-00 a.m, he reached near the Dera of one Sikandar situated in the area of Boriyanwali on the road leading from Boriyanwala to Panjan Kasana, he saw the dead bodies of two unknown young persons. There were bullet injuries on their heads and faces. He made announcements in nearby villages for identification of the dead bodies, upon which, many people came there but the said dead bodies could not be identified. It was further stated in the F.I.R. that some unknown accused persons committed the murder of above mentioned two unknown persons with firearms.

3. On 10-6-2005, Nazeer Ahmad (P.W.1) moved an application (Exh.P.W.1/1 = P.W.9/16) wherein, he stated that he was resident of village Panjan and was retired from Army. His (Nazeer Ahmad P.W.1's) maternal nephew Muhammad Arshad (deceased) was in Greece in connection with livelihood for the last five years who had come to Pakistan on five months leave. Muhammad Arshad accused (arrested and tried later), who too was in Greece was given Rs.9,00,000 (rupees nine lac) by Muhammad Arshad (deceased) which was to be given in the house of Muhammad Arshad (deceased) but Muhammad Arshad accused (arrested and tried later) did not give the same amount in the house of Muhammad Arshad (deceased). Muhammad Arshad (deceased), after coming back to Pakistan, demanded said amount from Muhammad Arshad, accused (arrested and tried later) who kept on promising to return the same. On 8-6-2005 at about 4-00 p.m., he (Nazeer Ahmad P.W.1) along with Muhammad Arshad (deceased), Bashir Ahmad (P.W.2), Muhammad Arshad (given up P.W.) was present in the house of his sister. Muhammad Arshad (arrested and tried later), Aamir (since acquitted), Nazer Abbas (appellant), Abu Zar (since P.O.) and Nasir (deceased) came there on a Hi-ace whose names were told to him (Nazeer Ahmad P.W.1) by Muhammad Arshad (deceased). They took dinner with them. He (Nazeer Ahmad P.W.1) also saw weapons in the vehicle. After the dinner, Muhammad Arshad (arrested and tried later) asked Muhammad Arshad (deceased) to accompany them to Khariyan to receive his amount and they will drop him back. When Muhammad Arshad (deceased) was going with them, he (Nazeer Ahmad P.W.1) asked him as to where he was going who told him that he was going to Khariyan and after receiving the amount, he will come back but when till the next morning Muhammad Arshad (deceased) did not return back, they started his search. They tried to contact with Muhammad Arshad (arrested and tried later) but failed. They read the news in the newspaper of 10-6-2005 that the police had found two dead bodies in the area of Boriyanwali, out of which, on the arm of one, Muhammad Arshad was embossed. He (Nazeer Ahmad P.W.1) along with Muhammad Arshad (given up P.W.) came to the police where they identified the clothes of Muhammad Arshad (deceased) and his friend Nasir (deceased). Muhammad Arshad (arrested and tried later) along with his companions Nazer Abbas (appellant), Aamir (since acquitted) and Abu Zar (since P.O) have committed the murder of Muhammad Arshad and Nasir (deceased) and threw their dead bodies in the area of Boriyanwali. The motive for the occurrence, as alleged by Nazeer Ahmad (P.W.1) in his application (Exh. P.W.1/1 = P.W. 9/16), was that Muhammad Arshad (deceased) used to demand his amount from Muhammad Arshad (arrested and tried later) whereas, Nasir (deceased) used to accompany Muhammad Arshad (deceased) and due to this grudge, the appellant along with his co-accused had committed the murder of Muhammad Arshad and Nasir (deceased).

4. The appellant was arrested in this case on 14-7-2005 by Muhammad Nawaz, Inspector (P.W.9). On 28-7-2005, Nazer Abbas (appellant), while in police custody, after disclosure, got recovered Kalashnikov, which was taken into possession vide recovery memo Exh. P.W. 9/17 = Exh. P.W. 2/1). After completion of investigation, the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused (since acquitted) on 28-6-2006, to which they pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution produced nine witnesses, during the trial. Nazeer Ahmad (P.W.1), Bashir Ahmad (P W.2) and Muhammad Sadiq (P.W.3) are the witnesses of last seen. Bashir Ahmad (P.W.2) and Muhammad Sadiq (P.W.3) are also the witnesses of extra-judicial confession. The medical evidence was furnished by Dr. Farooq Ahmad (P.W.7) who conducted the postmortem examination on the dead bodies of deceased persons. Muhammad Nawaz, Inspector (P.W.9) and Muhammad Tanveer, Inspector (CW-1) are the Investigating Officers of the case. Muhammad Anwar (P.W.4) is the complainant of the F.I.R. Sajjad Anwar, S.-I. (P.W. 5), Zafar Iqbal 1378/C (P.W.6) and Azhar Iqbal, Patwari (P.W. 8) are the formal witnesses. The prosecution also produced documentary evidence in the shape of application for registration of case (Exh.P.W.1/1 = Exh.P.W.9/16), recovery memo of last worn clothes of Arshad deceased (Exh.P.W.1/2=Exh.P.W.9/14), recovery memo of Kalashnikov (Exh.P.W.2/1=Exh.P.W.9/17), copy of statement of Muhammad Sadiq P.W.3: (Exh.P.W.3/1), recovery memo of last worn clothes of Nasir deceased (Exh.P.W.3/2=Exh.P.W.9/15), copy of statement of Muhammad Anwar P.W.4 (Exh.P.W.4/1=Exh.P.W.9/1), recovery memo of crime empties (Exh.P.W.5/1 = Exh.P.W.9/3), recovery memo of blood-stained earth (Exh.P.W.5/2 = Exh.P.W.9/2), recovery memo of last worn clothes of deceased persons (Exh.P.W.6/1=Exh.P.W.9/10 and Exh.P.W.6/2=Exh.P.W.9/11), postmortem report along with pictorial diagram (Exh.P.W.7/1 and Exh.P.W.7/2), postmortem report (Exh.P.W.7/3), scaled site plan, in duplicate, of the place of occurrence (Exh. P.W. 8/1 and Exh.P.W.8/2), F.I.R. (Exh.P.W.9/1-1), injury statements of the deceased persons (Exh.P.W.9/4 & Exh.P.W.9/5), inquest reports of the deceased persons (Exh.P.W.9/6 and Exh.P.W.9/7), applications for postmortem examinations of the dead bodies (Exh.P.W.9/8 and Exh.P.W.9/9), rough site plan of the place of occurrence (Exh.P.W.9/9-1), receipts of handing over the dead bodies to Edhi, Gujrat (Exh.P.W.9/12 & Exh.P.W.9/13), copy of Fard Shanakhat Parchaat (Exh.P.W.9/14), copy of Fard Shanakhaat of Nasir deceased (Exh.P.W.9/15), rough site plan of the place of recovery of Kalashnikov (Exh.P.W.9/18), application of one Muhammad Asif (Exh.P.W.9/19), report of the Forensic Science Laboratory (Exh.PP/l) and closed its evidence. The statements of the appellant and his co-accused (since acquitted) under section 342 of the Code of Criminal Procedure, were recorded on 8-9-2007. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P.Ws. have deposed against you?", the appellant replied as under:-- "My reply to Questions Nos.2 and 3 may be taken as my reply to this question. There was no direct evidence in this case. Tanveer Ahmed Inspector CW.1 and Muhammad Nawaz P.W.9 both have admitted that they could not collect any evidence from which it could be inferred that deceased persons were seen in the company of any of the accused including myself or they had seen me or my co-accused committing murder or that anybody had seen myself or my co-accused throwing dead-bodies on the places from where these were recovered. When I was under illegal confinement of Wazirabad police, Muhammad Afzal A.S.-I. who was real brother of Nasir deceased was posted at Wazirabad. He was also instrumental to my false involvement in this case. The real assailants remained unknown as could be seen from site plan prepared by P.W.8 Patwari Exh.P.W.8/1. Since the real assailants were not traced out by the police, they showed their undue efficiency and got me falsely involved in this case." The replies of the appellant to questions Nos.2 and 3 are as under:-- Question No.2 "It is all incorrect. I was taken as suspect by Wazirabad Police in theft of buffaloes. I was kept in illegal confinement and was given merciless beating. My sister Sajida Parveen filed petition under section 491, Cr.P.C. before the learned Sessions Judge, Gujranwala whereupon learned Sessions Judge took drastic action. Wazirabad police in order to cover up their mischief, joined hand with Muhammad Nawaz Inspector (at the relevant time Sub-Inspector), who appeared before the learned Sessions Judge, Gujranwala on 22-6-2005 and brought me to Thana. He also kept me in illegal confinement till 14-7-2005, wherefrom my misfortune started." Question No.3. "It is all incorrect. I have already explained in reply to question No.2 that I was taken as suspect by Wazirabad police where I was kept under illegal confinement. My sister had moved application under section 491 Cr.P.C. before the learned Sessions Judge, Gujranwala. I was recovered from the illegal confinement of Wazirabad police. Wazirabad police then to cover up their mischief and to save themselves from the clutches of law, called Muhammad Nawaz S.-I. (I.O. of this case) who then brought me on 22-6-2005 and kept me in illegal confinement till 14-7-2005 when my arrest was shown. On the last date of my remand i.e. 28-7-2005, false recovery of kalashnikov PY was planted upon me. Empties recovered from the spot were sent to the Forensic Science Lab. after I was sent to judicial lock up. I am innocent in this case. My co-accused Muhammad Arshad and Abu Zar are still P.Os. In fact one of them Muhammad Arshad has been arrested in the recent past." The appellant did not opt to make statement on oath as provided under section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against him, however, he produced copy of petition filed under section 491 of the Code of Criminal Procedure (Exh.D-1) and order dated 22-6-2005 passed by the learned Sessions Judge, Gujranwala (Exh.D-2) in his defence.

6. The learned trial court vide its judgment dated 12-9-2007, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.

7. Learned counsel for the appellant, in support of this appeal, contends that it is a case of circumstantial evidence and there is no circumstance which could connect the appellant with the commission of crime; that the occurrence was unseen as none is named as accused and witness in the F.I.R. (Exh.P.W.9/1-1) which was got registered by Muhammad Anwar, Lumberdar (P.W.4); that even the postmortem examination was conducted, on 9-6-2005 and as per postmortem reports, the names of the deceased persons were unknown and thereafter, an application was submitted by Nazeer Ahmad (P.W.1) nominating the appellant and others but in his cross-examination, he has admitted that said application was submitted 3/4 days after the murders and his version in the said application (Exh.P.W.1/1=Exh.P.W.9/16) and before the learned trial court is altogether different; that in the statement of the complainant recorded by the learned trial court, certain persons were shown present at the time when Muhammad Arshad (deceased) was allegedly taken by the appellant and his co-accused along with Nasir (deceased) but their names were not mentioned in the application (Exh.P.W.1/1 =Exh.P.W.9/16); that moreover, there was no motive against the appellant as conceded by Nazeer Ahmad (P.W.1) that there was no 'Lain Dain' between Muhammad Arshad (deceased) and the appellant; that the P.Ws. made dishonest improvements in their statements while appearing before the learned trial court and they were duly confronted with their previous statements and the improvements made by them were brought on the record; that there is no evidence in this case that the dead bodies which were found lying at the road leading to Panjan Kasana from Boriyanwala, noticed by the complainant Muhammad Anwar (P.W.4) were that of Muhammad Arshad (deceased) and Nasir (deceased) as no body identified the same and it is the case of Nazeer Ahmad (P.W.1) and Muhammad Sadiq (P.W.3) that they identified the clothes of Muhammad Arshad (deceased) and Nasir (deceased); that so far as the identification of dead bodies is concerned, Nazeer Ahmad (P.W.1) has stated in his cross-examination that they were told by the Edhi people that those were the dead bodies of Muhammad Arshad (deceased) and Nasir (deceased) but none from the staff of Edhi Foundation appeared in witness box; that there is no evidence that the deceased persons were seen with the appellant and his co-accused at the place from where the dead bodies were found shortly after the occurrence; that Nazeer Ahmad (P.W.1) has admitted that the complainant is resident of the village which is at a distance of hardly one and half or three miles from his village and that the complainant Muhammad Anwar (P.W.4) made announcement in the mosque and many people from his village also went there and in such a situation, it appears highly improbable that Nazeer Ahmad (P.W.1) could not know about this incident; that recovery of Kalashnikov (PY) at the instance of the appellant is not helpful for the prosecution for the reason that the empties were recovered from the spot on 9-6-2005, the appellant was arrested in this case on 14-7-2005 whereas, the Kalashnikov (PY) was allegedly recovered at the instance of the appellant on 28-7-2005 and both the crime empties and Kalashnikov (PY) were received together in the office of the Forensic Science Laboratory on 1-10-2005, therefore, chances of preparation of fake empties cannot be ruled out. So far as the statement of Muhammad Sadiq (P.W.3) is concerned, learned counsel for the appellant contends that the evidence of said witness is also not helpful to the prosecution as even he did not identify the dead body of his son Nasir (deceased); that the statement of Nazeer Ahmad (P.W.1) is also not reliable because in his application (Exh.P.W.1/1=Exh.P.W.9/16), he has stated that he had noted firearm in the vehicle and while appearing before the learned trial court, he stated that even hot words were exchanged between the deceased and appellant and his co-accused and even the accused persons asked Muhammad Arshad (deceased) sarcastically to go with them and for that reason, there was no need for Muhammad Arshad (deceased) to accompany the appellant and his co-accused; that there is no direct or indirect circumstantial evidence which could connect the appellants with the crime; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant may be acquitted from the charges.

8. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that there is evidence of last seen of the deceased being alive in the company of the appellant and his companions which has been furnished by Nazeer Ahmad (P.W.1), Bashir Ahmad (P.W.2) and Muhammad Sadiq (P.W.3); that all these witnesses have no enmity with the appellant or any of his co-accused for their false implication; that presence of Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2) in the house of their own sister is quite natural and probable as both are residents of the same village wherein, sister of the above said P.Ws. and the deceased were residing; that so far as the identification of the dead bodies is concerned, though no identification memo was prepared by the prosecution but it is not a disputed fact rather it was suggested to the P.Ws. on behalf of the defence that those were the dead bodies of Muhammad Arshad (deceased) and Nasir (deceased) and they were murdered by co-accused Abu Zar who is still P.O.; that evidence of Nazeer Ahmad (P.W.1), Bashir Ahmad (P.W.2) and Muhammad Sadiq (P.W.3), if taken into consideration, it clearly establishes the fact that Muhammad Arshad (deceased) and Nasir (deceased) were taken away by the appellant and his co-accused; that to the extent of appellant, the prosecution is further corroborated by the recovery of Kalashnikov (PY) and positive report of the Forensic Science Laboratory (Exh.P13/1); that in the circumstances, chain link of circumstantial evidence is complete and the prosecution has fully proved its case against the appellant; that the sentence of death was rightly awarded to the appellant by the learned trial court and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.

9. We have heard the arguments of learned counsel for the appellant, the learned Deputy Prosecutor-General assisted by learned counsel for the complainant and have also gone through the record with their able assistance.

10. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any chain link is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as "Ch. Barkat Ali v. Major Karam Elahi Zia and another" (1992 SCMR 1047), "Sarfraz Khan v. The State and 2 others" (1996 SCMR 188) and "Asadullah and another v. State and another" (1999 SCMR 1034). In the case of Ch. Barkat Ali (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:-- "9. ...Law relating to circumstantial evidence is that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See "Siraj v. The Crown" PLD 1956 FC

123. The prosecution evidence in this case was of the deceased last seen with the accused and from the latter was recovered a handle of the hatchet blood stained and he was absent from the forest after the murder. The learned Federal Court held that the evidence was not sufficient and the accused was acquitted. In the case of "Karamat Hussain v. The State" 1972 SCMR 15 it was laid down that "In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused." In the case of Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192, held as under:- "7. ...it is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence..." Further reliance in this context is placed on the case of "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court as under:-- "

7. Needless to emphasise that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain." Keeping in view the parameters, laid down in the above-mentioned judgments, we will discuss each part of the prosecution evidence, separately.

11. The prosecution case is based on the following pieces of evidence:-- (i) The evidence of last seen: (ii) Extra-judicial confession; (iii) The evidence of recovery of Kalashnikov (PY); (iv) Motive; and (v) Medical evidence. (i) The Evidence of Last Seen:

12. As mentioned earlier, it was an unseen occurrence. Muhammad Anwar, Lumberdar (P.W.4), on 9-6-2005 at 8-00 a.m., reported to the police that the dead bodies of two unknown persons were lying near the Dera of one Sikandar within the territorial limits of Boriyanwali and there were bullet injuries on the face and head of both these persons. The evidence of last seen the deceased persons alive in the company of the appellant and his co-accused was furnished by Nazeer Ahmad (P.W.1), Bashir Ahmad (P.W.2) and Muhammad Sadiq (P.W.3). Insofar as the evidence of Muhammad Sadiq (P.W.3) is concerned, the same cannot be termed as last seen evidence because according to his statement, on 8-6-2005 at 9-00 a.m., Nazer Abbas (appellant) went to his house and took Nasir (deceased) with him in order to go to village Panjan Kasana whereas, according to the statements of Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2), on 8-6-2005 in the evening time, Nasir (deceased) along with the appellant and his co-accused namely, Abu Zar (since P.O), Muhammad Arshad (arrested and tried later), Aamir and Shafaqat Ali (since acquitted) came to the house of Muhammad Arshpd (deceased). As Nasir (deceased) was subsequently see alive by Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2), therefore, the evidence of Muhammad Sadiq (P.W.3) cannot be termed as last seen evidence. We are, therefore, left with the evidence of Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2) who had allegedly seen the deceased persons alive in the company of the appellant and his co-accused. We have noted that the story of lastly seen the deceased persons alive in the company of the appellant and his co-accused, furnished by Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2) is highly improbable. According to their statements, Muhammad Arshad (deceased) and Muhammad Arshad, co-accused of the appellant (arrested and tried later) both remained in Greece. Muhammad Arshad (arrested and tried later) took an amount of Rs.9,00,000 (rupees nine lac) from Muhammad Arshad (deceased) for delivering the same in the house of Muhammad Arshad (deceased) but he did not deliver the said amount. Muhammad Arshad (deceased), five months prior to the occurrence, came to Pakistan, demanded the said amount from Muhammad Arshad, accused (arrested and tried later). On 8-6-2005, at evening time, the appellant along with his co-accused and Nasir (deceased) came to the house of Muhammad Arshad (deceased), where hot words were exchanged between the accused persons and Muhammad Arshad (deceased). It was so stated by Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2) that the accused and Muhammad Arshad (deceased) broke up with each other. It was also mentioned in the application (Exh.P.W.1/1-Exh.P.W.9/16) moved by Nazeer Ahmad (P.W.1) that on 8-6-2005 at the time when the appellant along with his co-accused came to the house of Muhammad Arshad (deceased), he (Nazeer Ahmad P.W.1) saw that there were firearms in the vehicle of the accused persons. Nazeer Ahmad (P.W.1) has also stated that accused persons sarcastically asked Muhammad Arshad (deceased) to accompany them. As mentioned earlier, according to the statements of Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2), hot words were exchanged between the accused persons and Muhammad Arshad (deceased) and Nazeer Ahmad (P.W.l) had also seen firearms in the vehicle of the appellant and his co-accused, therefore, it does not appeal to common sense that even then, they (P.Ws.) allowed Muhammad Arshad (deceased), who was their 'Bhanja' to accompany the appellant and his co-accused. It does not appeal to the mind of a prudent person that a 'Mamoon' (maternal uncle) will allow his nephew to accompany the accused persons despite the fact that he had seen firearms in the vehicle of the accused persons at the relevant time and hot words were also exchanged between the accused persons and the deceased before their departure from the house of the deceased. We have also noted that the above-mentioned witnesses of the prosecution made dishonest improvements in their statements recorded by the learned trial court. The relevant part of the cross-examination of Nazeer Ahmad (P.W.1) at pages 35 and 36 of the paper book reads as under:-- "Except Exh.P.W.1/1 no other application was moved by me before the police nor was my statement recorded by the police otherwise. As per the aforesaid application presence of Nasir, Bashir Begum and Rashad was not shown although their presence was stated by me in my examination-in-chief in this case. It is correct that in the above application it was not stated by me that when we were sitting Nasir deceased had also come. Name of Shafaqat accused was not mentioned in the application Exh.P.W.1/1. It is correct that it was not stated in the application that on account of Lain Dain a quarrel had taken place between the deceased persons and the accused persons although I had so stated in my examination-in-chief. It was also not stated in the application that the deceased persons were taken away in Toyota Hiace. It was not stated in the application Exh.P.W.1/1 that at 9-00 p.m. the deceased persons were taken away and when they did not return till 10-00 a.m. the next day then we had tried to contact them on telephone although it was so stated in my examination-in-chief. It is correct that it was not stated in the application that Tariq Bhanja of Shafaqat had come to our house the next morning and had asked the mother of the deceased that he should send Rashad the brother of the first deceased as he was called by him. It was also not stated in the application Exh.P.W.1/1 that Rashad had not gone. It was also not stated in the application that on 10-6-2005 Shafaqat accused himself had come at 8-00 a.m. and asked us that he should search for the deceased from the office of Eidi Welfare although I have so stated in my page 2 of examination-in-chief. It was also not stated in the application that Shafaqat further told that the deceased Arshad had been murdered and he, should be forgiven, although I have so stated in my examination-in-chief..." Similarly, Bashir Ahmad (P.W.2) also made dishonest improvements in his statement recorded by the learned trial court. The relevant part of the cross-examination of Bashir Ahmad (P.W.2) at Page Nos.40 and 41 of the paper book reads as under:-- "...Police had recorded my statement at Kharian at Thana. I had put my thumb-impression before the police. My statement was read over to me. Nazir complainant had also got recorded his statement. At that time I had not named Shafaqat. We had required Niaan from him but he did not give it. Then his name was given... Shafaqat was neither named by me nor complainant. His name was included after 15/20 days..." It is evident from the perusal of abovementioned portions of the statements of Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2) that they made dishonest improvements in their statements recorded by the learned trial court and the said improvements were duly brought on the record. It is by now well-settled law that if a witness makes dishonest improvements in his statement then he cannot be relied upon to maintain the conviction of an accused on a capital charge. Reference in this context may be made to the case of "Muhammad Rafique and others v. The State and others" (2010 SCMR 385) wherein, at page 396, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- "24. ...This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCMR 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence." We have also noted that Nazeer Ahmad (P.W.1) has stated during his cross-examination that he moved his application (Exh.P.W.1/1) after 3/4 days of the occurrence. He has further stated that the dead bodies of the deceased persons were found within the territorial limits of Burhiawala, Tehsil Kharian. Bashir Ahmad (P.W.2) has stated that the place from where the dead bodies were recovered was at a distance of three or three and half miles from their (P.Ws.') village. It was also brought on the record through the statement of Muhammad Anwar (P.W.4) that announcement through loudspeaker was made regarding the discovery of two dead bodies. According to the statements of Nazeer Ahmad (P.W.1) and Bashir Ahmad (P.W.2), the deceased persons departured in the company of the appellant and his co-accused on 8-6-2005 at 9-00 p.m. and when they did not return after 10-00 p.m., Nazeer Ahmad (P.W.1) tried to establish a telephonic contact with Muhammad Arshad (deceased) but the said effort proved to be in vain. It does not appeal to common sense that when Muhammad Arshad (deceased) who had strained relations with the appellant and his co-accused left his house in the company of the appellant and his co-accused and was not traceable, the abovementioned witnesses of last seen would remain silent for 3/4 days. We have also noted that the identification of the dead bodies to be that of Muhammad Arshad (deceased) and Nasir (deceased) has also not been established in this case. Dr. Farooq Ahmad (P.W.7) conducted the postmortem examination on the dead bodies and according to his statement, he, on 9-6-2005 at 9-30 a.m. and 10-00 a.m., conducted the postmortem examination on the dead bodies of two unknown persons and their parentage was also not known. The prosecution has not produced any witness who had identified the dead bodies of said two unknown persons to be that of Muhammad Arshad (deceased) and Nasir (deceased). Nazeer Ahmad (P.W.1) has stated during his cross-examination that the dead bodies were buried by Edhi people and they (P.Ws.) were told by Edhi people that the dead bodies were of Muhammad Arshad (deceased) and Nasir (deceased). Relevant part of the statement of Nazeer Ahmad (P.W.1) at pages 37 and 38 of the paper book reads as under:-- "It is incorrect that I had identified the deadbodies only from the clothes. Explained that the deadbodies were buried by Eidi people and that we were told by them that the persons buried were Arshad and Nasir..." It is evident from the perusal of the statement of Nazeer Ahmad (P.W.1) that the prosecution witnesses were told by the staff of Edhi Foundation that the dead bodies were that of Muhammad Arshad (deceased) and Nasir (deceased) but none from the staff of Edhi Foundation was produced in the witness box by the prose-cution to establish the identification of the dead bodies. No application for disinter-ment of the dead bodies has been brought on the record. We are, therefore, of the view that it has not been proved by the prosecution beyond shadow of doubt that the dead bodies of unknown persons which were discovered by Muhammad Anwar, complainant (P.W.4) near the Dera of one Sikandar within the territorial limits of village Boriyanwali were that of Muhammad Arshad (deceased) and Nasir (deceased). (ii) The evidence of extra-judicial confession:

13. The prosecution evidence regarding extra-judicial confession allegedly made by the appellant was furnished by Muhammad Sadiq (P.W.3). The relevant part of the statement of Muhammad Sadiq (P.W.3) about extrajudicial confession of the appellant at pages 45 and 46 of the paper book is repro-duced hereunder for ready reference:-- "...Nazer Abbas accused was taken into custody by us and we had handed him over to the police at Wazirabad. The accused Nazer Abbas had made confession before me that he had murdered my son Nasir deceased..." It is noteworthy that no date, time or place of the extra-judicial confession allegedly made by the appellant is mentioned by Muhammad Sadiq (P.W.3). No reason, whatsoever, for committing the murder of Nasir (deceased) was mentioned in the abovementioned statement of Muhammad Sadiq (P.W.3). We have also noted that evidence regarding extra-judicial confession allegedly made by Shafaqat accused (since acquitted) was also produced by the prosecution through the statements of Nazeer Ahmad (P.W.1) but said evidence has been disbelieved by the learned trial court and Shafaqat, co-accused of the appellant has been acquitted by the learned trial court. The appeal filed by the complainant (Criminal Appeal No.1379 of 2007) against the acquittal of said accused was dismissed in limine by this Court vide order dated 1-4-2008. It appears that the evidence about extra judicial confession of the appellant and Shafaqat co-accused was procured in order to overcome the weakness of prosecution case. The question of placing reliance on extra-judicial confession of the accused persons, came up for consideration before the 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 suchlike heinous offences where fear dominates and is .always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the 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". It was not established by the prosecution that Muhammad Sadiq (P.W.3) was in authority, socially or officially. Further-more, except Muhammad Sadiq (P.W.3), there is no other witness produced regarding extra judicial confession allegedly made by Nazer Abbas appellant and this extra judicial confession is not corroborated by any other evidence. Keeping in view all the abovementioned facts, the evidence of extra judicial confession of the appellant is not worthy of reliance. (iii) Evidence of recovery of Kalashnikov (PY):

14. The prosecution has also produced the evidence of recovery of Kalashnikov (PY) allegedly recovered from the possession of Nazer Abbas (appellant), which was taken into possession vide recovery memo. Exh.P.W.2/1= Exh.P.W.9/17. We have noted that five crime empties were taken into possession from the spot on 9-6-2005. The appellant was arrested in this case on 14-7-2005 and Kalashnikov (PY) was allegedly recovered from his possession on 28-7-2005 but the Kalashnikov (PY) and crime empties were sent together to the Forensic Science Laboratory. Although the report of the Forensic Science Laboratory is positive according to which five empties recovered from the spot had been fired from the Kalashnikov (PY) but as the empties and Kalashnikov were kept together at the police station, therefore, possibility cannot be ruled out that fake empties were prepared from the Kalashnikov (PY) and thereafter, same were sent to the office of the Forensic Science Laboratory for their comparison with Kalashnikov (PY) allegedly recovered from the possession of the appellant. Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Jehangir v. Nazar Farid and another" (2002 SCMR 1986), "Mushtaq and 3 others v. The State" (PLD 2008 SC 1) and "Ali Sher and others v. The State" (2008 SCMR 707). We are, therefore, of the view that the recovery of Kalashnikov, (PY) from the possession of the appellant and positive report of the Forensic Science Laboratory (Exh.PP/1) are of no help to the prosecution case. (iv) Motive:

15. We have noted that no motive, whatsoever, was alleged against the appellant and the same was attributed to Muhammad Arshad, co-accused of the appellant (arrested and tried later). Nazeer Ahmad (P.W.1), Bashir Ahmad (P.W.2) and Muhammad Sadiq (P.W.3), all have admitted that there was no money dispute between Nazer Abbas (appellant) and Muhammad Arshad (deceased). Relevant part of cross-examination of Nazeer Ahmad (P.W.1) at page 34 and 35 of the paper book reads as under:-- " .There was no Lian Dain between the two deceased and Nazer Abbas accused " Whereas, relevant part of cross-examination of Bashir Ahmad (P.W.2), at page No.42 of the paper book reads as under:-- "Nazer Abbas accused had no Lain Dain with Arshad deceased my Bhanja..." Similarly, relevant part, of cross-examination of Muhammad; Sadiq (P.W.3), at page 47 of the paper book is reproduced hereunder:-- "...Nazer Abbas accused had no dispute over Lain Dain with my son Nasir deceased..." We are, therefore, of the view that there was no motive with the appellant to commit the murder of Muhammad Arshad (deceased) and Nasir (deceased). (v) Medical evidence:

16. Insofar as medical evidence is concerned, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410) and "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103).

17. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In "Tariq Pervez v. The State" (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-- "5. ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram v. The State" (2009 - SCMR 230), at page 236, observed as under:-- "13. ...It is an axiomatic principle of, law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

18. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No.1026 of 2007 filed by Nazer Abbas appellant, set aside his conviction and sentence and acquit him from the charge by extending him the benefit of doubt. He is in custody, he be released forthwith if not required in any other case. However, it is made clear that the observations made in this judgment are not relevant to the case of Abu Zar, co-accused of the appellant (since P.O).

19. Murder Reference No.404 of 2007 is answered in the NEGATIVE and the sentence of death of Nazer Abbas (convict) is NOT CONFIRMED. MH/N-37/L Appeal allowed.