1995 P Cr (PLP)

4. Muhammad Hanif appellant when confronted with the prosecution case, pleaded innocence and stated that he has been falsely involved as the deceased was murdered by unknown persons.

5. At the trial, the prosecution examined as many as 12 witnesses to prove its version and gave up Muhammad Idrees, Rehmat Ali, Muhammad Iqbal, Bashir Ahmad, Muhammad Sardar, Mubarak Ali and Muhammad Tufail P.Ws. as unnecessary witnesses and tendered in evidence the report of Chemical Examiner Exh.P.L. P.W.1 Muhammad Anwar, Head Constable Moharrir, P.W.2 Mubarak Ali Constable, P.W.3 Muhammad Iqbal, P.W.6 Muhammad Ismail Patwari, P.W.7 Muhammad Hanif, P.W.9 Rabnawaz and P.W.13 Muhammad Jamil are the formal witnesses who have supported the prosecution version.

6. P.W.I 11 Shaukat Hayat, then, M.O. D.H.Q. Hospital, Sheikhupura performed post-mortem examination of the dead body of Muhammad Hussain deceased on 12-4-1991 at 9-45 a.m. and found that rigor mortis was not present. Partial post-mortem staining was present on the back and two lagature marks were also present all around the neck. The following injuries were also found on the dead body-- (1) Lacerated wound 2 c.m. x.5 c.m. muscle deep on the right eyebrow. (2) Two lagature marks all around the neck upper part, which were 2 c.m. apart. All the injuries were ante-mortem and caused with blunt weapon. Samples of stomach, small and lame intestines, liver, kidneys and spleen etc. were taken by the doctor and handed over to the police for sending the same to the Chemical Examiner for detection of poison if any. The report of the Chemical Examiner is Exh.P.L. according to which poison was not detected in the above visceras. According to doctor death had occurred due to asphyxia and severe shock; injury No.2 was sufficient to cause death in the ordinary course of nature.

7. The statement of Muhammad Hanif appellant was recorded under section 342, Cr.PC. The appellant stated that he is innocent; they had never taken the deceased to their house and that no extra-judicial confession was ever made by him in this case before any person. The appellant also denied the recoveries as mentioned above were effected at his instance. He pleaded that he has been falsely implicated in this case due to suspicion. According to him the dead body of Muhammad Hussain deceased was found by the public floating in the canal and on the receipt of the said information the police cam , to the spot and recovered the dead body alongwith some articles and subsequently planted the said articles on him and co-accused. The appellant did not offer himself as his own witness for recording statement under section

340. Cr. P.C. and also did not produce evidence in defence.

8. I have heard the arguments of the learned counsel for the appellant as well as of learned State counsel and learned counsel for the complainant in Criminal Miscellaneous No.270 of 1993 and have perused the record with their able assistance.

9. It is an admitted fact that the murder of deceased was not witnessed by any P.W. and there is no direct evidence in this case. The case of the prosecution as such hinges on the points of last seen, extra-judicial confession motive and recoveries which pieces of evidence, as observed by the learned trial Court, have been collected during the investigation of the case.

10. As indicated above, the deceased was last seen m the company appellant and co-accused on 9-4-991 as informed by P.W. 7 Muhammad Hanif. The learned trial Judge observed P.W.7 as an independent and disinterested person and without any hesitation accepted his statement as correct as he was not inimically deposed of towards the appellant and held that it was the duty of appellant to explain the whereabouts of the deceased which he utterly failed to do so. It is an admitted fact that there was no previous enmity whatsoever between the parties; hence the observation that P.W. Muhammad Hanif did not inimically depose of towards the appellant; it is not necessary that one should' depose against another due to enmity, some time other considerations do play its part; in such evidence, the Court must make an effort to disengage the grain from the chaff. It is an error to take an easy way by holding the evidence as unimpeachable or discrepant but the paramount duty of every Court is to analyse the evidence carefully and scrupulously and if that is not possible give the benefit of it to the accused so that the innocent may not be convicted.

11. In an unreported judgment, the Supreme Court of Pakistan in case Rehmat alias Rehman v. The State Criminal Appeal No.52 of 1976 decided on 5-4-1977 observed that on the whole, of evidence of the deceased having been last seen alive in the company of the accused was regarded as a weak type of circumstantial evidence to base a conviction on it and this view of the Supreme Court was upheld in case Naqib Ullah and another v. The State PLD 1978 SC 21.

12. Similarly like the facts of case in hand, in case Basant Singh v Emperor AIR 1927 Lah. 541, the accused was one of two persons in whose company the deceased was last seen alive, subsequent to his disappearance, the accused led the police to the place where the deceased was buried. It was held that though "grave suspicion" attached to the accused, the circumstances were not sufficient to establish his guilt because of the possibility that the deceased may have been murdered by another person. On a balance of the decided cases, it appears that the circumstances of the deceased having been last seen in the company of accused :s not by itself sufficient to sustain the charge of murder as has been done by the learned trial Judge in the present case. As F there was no direct evidence of the murder, hence the conviction on the basis that he was the last person seen with the deceased is not maintainable as in similar case Siraj v. The Crown PLD 1956 FC 123, the conviction of the t accused was set aside.

13. According to prosecution version the appellant while in the Bhathak of Muhammad Tufail had made confession that deceased was killed by him and his co-accused in the presence of P.W.4 Dilbar Hussain, P.W 5 Fazal Hussain complainant, Idrees and said Muhammad Tufail. The prosecution examined P.W.4 Dilbar Hussain and P.W.5 Fazal Hussain complainant in order to prove the fact of the extra-judicial confession made by the accused but left the most important and required evidence of Muhammad Tufail to whose Bhathak the alleged confession by the accused was made and similarly Idrees P.W. was an independent witness was not produced as unnecessary.

14. The moment, the appellant made extra-judicial confession, he was captured and kept in the Bhathak of Muhammad Tufail. P.W.4 Dilbar Hussain categorically stated that to the meantime P.W.5 Fazal Hussain had informed the police and the police arrived there and took the person of the appellant from their custody and his statement was recorded there by the police. The evidence of P.W.4 Dilbar Hussain and P.W.5 Fazal Hussain is not confidence inspiring evidence in the absence of Muhammad Tufail. The appellant in his statement categorically denied that he had ever made confession before the witnesses; if it would have been true; the Investigating Officer should have got recorded the statement of the appellant under section 164, Cr.P.C. as it was an unseen occurrence. Thereby it means under the circumstances extra-judicial confession was not made; if made under pressure as deposed by P.W.5 Fazal Hussain voluntarily in cross-examination that the accused/appellant had made confession in Village Dhop Sari in presence of the police persons was retracted in his statement under section

342. Cr.P.C. The confession as alleged by the P.Ws. does not seem to be true nor voluntarily. It is an interesting feature that the P.Ws. are still unaware of the whereabouts of Muhammad Tufail in whose Bhathak firstly the appellant and co-accused were called and later on made confession.

15. As observed by Munir, C.J. in his commentary on the Law of Evidence at page 168 (Vo1.1), it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of Court that is called upon to act upon a retracted confession to enquiry into all the material points anti surroundings and satisfy itself fully that the concession cannot but to be true .

16. It was held in case Nadir Hussain v. The Crown 1969 S C M R 442 that the rule of caution universally applied to the cases of retracted confession is that it should not be acted upon unless corroborated in material particulars by reliable evidence . In another case reported as Dhani Bakhsh v. The State P L D 1975 SC 187; it was held that a retracted judicial confession is seldom ma do the basis of conviction without being materially corroborated.

17. The learned counsel for the complainant relied upon case Mahmood v. The Sate 1993 PCr. LJ 1047; it was held by the Supreme Appellate Court, that recovery of dead body and other incriminating articles, extra-judicial confession and the last seen evidence had linked the accused with the murder of the deceased beyond any reasonable doubt; but the facts of the case in hand are quite different as the main witnesses before whom confession was made were not produced and the evidence of P.Ws.4 and 5 as already observed is not confidence inspiring and has not been corroborated from the independent evidence.

18. As already observed; when the appellant made confession in the Bhathak of Muhammad Tufail; the police was present and in the presence of police confession was made by the appellant as deposed by P.W.5 Fazal Hussain. In case Saeed Ahmad Humdani v. Mr. Irfan and others PLD 1986 SC 690, the accused wad, confession in a crowded Bazar when many people were present and that even the police party in uniform was closed by, as short a distance of ten feet or few paces. It was held that such an extra-judicial confession in the immediate presence of the police cannot be accepted as voluntarily and correct while in the case in hand; the confession was made in the presence of police and the statement of the appellant was recorded accordingly in the village by the police.

19. In case Iqbal Hussain v. The State PLD 1969 Lah. 217 it was held that the evidence regarding extra-judicial confession is discrepant and is not worthy of reliance. The witnesses have not said that in what words the appellant made a confession and what were the reasons for which he confessed. I, therefore, do not think that this confession can form the basis of the conviction of the appellant".

20. It is true that in some cases even the solitary evidence of Investigating Officer has been relied upon for the purposes of proving recovery but this cannot be done where there are attending circumstances casting doubt as to the genuineness of the recovery. P.W.10 Mujahid Raza Investigating Officer did not comply with the provisions of section 103, Cr.P.C. either in recovery of the dead body or the other articles taken into possession. The provisions of section 103, Cr.P.C. are mandatory in nature. He confessed that Head Roshan Din is just on Sheikhupura-Faisalabad Road which is very busy road; Head Roshan Din is also a bus stop and people board the buses frequently but he did not ask any person to join recovery of the dead body. The statement of P.Ws. in regard of recovery of dead body has been belied by the prosecution witness itself which was not declared hostile or any question was put to him P.W.2 Mubarak Ali, Constable stated that the moment they reached the spot the dead body was floating in the water and many persons had gathered there. Similarly P.W.3 Muhammad Iqbal S.I., second Investigating Officer did not care about the mandatory provisions of section 103, Cr.P.C. and admitted that the witnesses of recovery joined him from the police station as the recovery of articles was made from Village Dhop Sari at 2-30 p.m. and he did not join any resident of Village Dhop Sari.

21. The learned counsel for the complainant referred to case The State v Muneer Ahmad and-6 others; wherein it was observed that if the accused declines to give evidence on oath in disproof of charges or allegations made against him; Court shall consider its impact by discussing the evidence brought on record and contended that the appellant refused to give his statement on oath; hence in the absence of his defence witnesses; the prosecution version be accepted as impeachable as adopted by the learned trial Judge. It is well -settled principle of law that the approach of the Court of appeal should be to assess the entire evidence and the material before him to see if the case against the accused has been proved beyond any reasonable doubts, without being observed by the finding of conviction and the sentence passed by the trial Court and where the prosecution has failed to establish its case the only proper order is one of acquittal.

22. In view of what has been discussed above, I am inclined to hold that the testimony of the prosecution witnesses is not reliable at all and is liable to be ignored without any hesitation. I, therefore, hold that this is a case where the appellant is entitled to benefit of doubt. I allow this appeal, set aside the convictions and sentence of the appellant and direct he be released forthwith, unless he is lawfully required to be detained in some other case. N.H.Q./M-1984/L Appeal accepted.