2020 PLP 502 (MLD)

FAROOQ HAIDER, J.

This single judgment shall decide Criminal Appeal No.458/2017 and Criminal Revision No.278/2017. Through the aforementioned Criminal Appeal No.458/2017 Ghulam Mohy-ud-Din (appellant) has assailed the judgment dated 28.01.2017 passed by learned Additional Sessions Judge, Faisalabad, whereby he has been convicted under Section 302(b), P.P.C. and sentenced to "Imprisonment for Life" as Taz'ir for committing qatl-i-amd of Qamar Sohail (deceased) along with payment of compensation of Rs.4,00,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C. and in case of default thereof to further undergo S.I. for six months with benefit of Section 382-B, Cr.P.C.; whereas through Criminal Revision No.278/2017, Ruqia Rukhsar (complainant) has sought enhancement of aforementioned sentence awarded to and amount of compensation imposed upon Ghulam Mohy-ud Din (convict) by the trial court.

2. Brief facts, as per written application (Ex.PG) submitted by Ruqia Rukhsar complainant to Habib Ullah, A.S.I. at Fareed Chowk on 11.10.2014 at about 06:55 a.m. are that she is a house wife and resident of House No.2015, Street No.16, Block No.3, Raza Abad, Faisalabad; she was married with Qamar Sohail and out of said wedlock, four sons were born; her husband Qamar Sohail used to work in State Life Insurance Company and on 10.10.2014 at about 04:00 p.m. he, after informing her and his maternal uncle/ , left the house on Pak Hero motorcycle bearing registration No.4121/FDQ in order to meet his friend having mobile phone with SIM No.0345-7692617 and 0300-7682837; after lapse of considerable time when he did not return back, they became worried and at about 06:45 P.M. complainant established contact through phone having SIM No.0302-9565780 with Qamar Sohail, who told that he is not feeling well and is at Ghulam Muhammad Abad and would return shortly but he did not come whole the night; the complainant kept calling him on mobile phone but he did not attend the same; on 11.10.2014 at about 06:00 a.m. it was learnt that a dead body is lying in Kaleem Shaheed Park whereupon the complainant along with Abdul Razzaq and Abdul Sattar reached at the stated place and found dead body of Qamar Sohail having injuries on his neck and abdomen there. It has been alleged in the application by complainant that her husband was having ATM, identity card and necessary documents in his purse and same are missing: unknown accused persons committed murder of Qamar Sohail. On the basis of said application, case vide FIR No.644 dated 11.10.2014 was registered under Section 302, P.P.C. at Police Station Raza Abad, Faisalabad. It will not be out of place to mention here that complainant Ruqia Rukhsar moved another application dated 18.10.2014 (Ex.PG/2) to police alleging therein that Qamar Sohail (deceased) had some money dispute with Ghulam Mohy-ud-Din (appellant), who after the occurrence remained not present at his house and shop, therefore, on 18.10.2014 the complainant along with Majid Hussain and Muhammad Ramzan came at his shop, who on seeing them became confused/perplexed and on query about Qamar Sohail, he confessed that he committed murder of Sohail Qamar after administering him intoxicated tablets and then sought pardon; the complainant and aforementioned witnesses tried to apprehend him but he fled away from the place of occurrence. The appellant was arrested and after completion of the investigation, he was challaned to the Court. He was formally charge sheeted, to which he pleaded not guilty and claimed trial. Thereafter, prosecution got examined its witnesses and after tendering reports of experts, closed its evidence. Then, statement of the accused under Section 342, Cr.P.C. was recorded wherein he refuted allegations levelled against him, however, neither he opted to depose on oath under Section 340(2), Cr.P.C. nor produced any evidence in his defence. The learned trial court after conclusion of trial has convicted and sentenced the appellant as mentioned above through the impugned judgment dated 28.01.2017.

3. Learned counsel for the appellant has submitted that impugned conviction recorded against and sentence awarded to the appellant through impugned judgment are against the 'law and facts'. and result of non-reading/misreading of evidence. Learned counsel for the appellant finally prayed for acquittal of the appellant.

4. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant has supported the impugned judgment and prayed for dismissal of the appeal. In support of revision petition for enhancement of compensation and sentence, learned counsel for the complainant has submitted that since prosecution has proved its case against the appellant up to hilt, therefore, sentence of death may be awarded to him and amount of compensation may also be enhanced.

5. Arguments heard. Record perused.

6. It has been noticed that it was a blind murder occurrence; neither any accused nor any eyewitness has been mentioned in the application for registration of case (Ex.PG), similarly, no motive is mentioned in the same; case of prosecution comprises upon circumstantial evidence, which is in the form of extra-judicial confession, recovery of one shoe (P-5), empty wrapper of biscuit RIO (P-6), chhuri (P-7), report of the Forensic Science Agency (Ex.PS) and motive.

7. As far as evidence of extra-judicial confession allegedly made by the appellant before Ruqia Rukhsar (PW-7), Majid Hussain (PW-9) and Muhammad Ramzan (given up witness) is concerned, before discussing the same, it is appropriate to examine the motivating factors for making extra judicial confession and in this regard, guidance has been sought from the dictum laid down by august Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), relevant portion is being reproduced:-- "

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 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. The witnesses in hand before whom the confessions are said to have been made are of no social or official status. One Falak Sher (P.W.16) is a junior clerk in the office of the Deputy Commissioner, the other Noor Muhammad (P.W.17) is a petty fodder-seller and the third Ahmed Taqi (P.W.19) is a teacher in a private school. It is yet to be answered as to what help could they have rendered to the accused when involved in a heinous case of murder as well as abduction for ransom. Least to mention that the dead body having been recovered on 23rd, none of the accused had any apprehension of being suspected, involved or arrested on the day of making extra-judicial confessions. These are absolutely unnatural.

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". Now when extra judicial confession allegedly made by present appellant in the case is examined on the touchstone of aforementioned factors, then it becomes crystal clear that neither it was made to boast off nor to ventilate the suffocating conscious nor to seek help when actually trapped by investigation because it is own case of the prosecution that name of the appellant came on record during investigation of the case only after alleged extra judicial confession and not prior to that. Therefore, it is not understandable that what compelled the appellant and why he allegedly confessed the crime, particularly before the persons, who being closely related to the deceased were expected to cause him more harm than good and they immediately became witness against him, this aspect raises eyebrows and leaves question mark about genuineness of this piece of evidence; in this regard, guidance has also been sought from the dictum laid down by august Supreme Court of Pakistan in case of "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274), relevant portion is being reproduced: - "This, in our considered opinion, appears to be a concocted story. He being the relative of the complainant and also running the business in the same market, where the complainant do the same business, the appellant Mujahid Khan would have never opted for disclosing such a gruesome crime to him, when by then the complainant party and the Investigating Agency, both were clueless about the crime of murder of the deceased and also about the actual culprits. 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." Furthermore, case of "Nasir Javaid and another v. The State" (2016 SCMR 1144) can also be safely referred and relevant portion from Page No. 1150 is being reproduced: - "Next is the evidence of extra-judicial confessions. Evidence of this type because of its being concocted easily is always looked at with doubt and suspicion. 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. Extra-judicial confessions of the appellants when examined in this light neither ring true nor agree with truth nor fit in with the surrounding circumstances of the case. The circumstances disclosed therein that the complainant made their lives miserable, implicates them in criminal cases and insulted their mother are not supported by the prosecution evidence. According to the statement of PW-13, the appellants were driven by their immense sense of guilt to make extra-judicial confessions. But why should they make extra-judicial confessions before PW-13, who being closely related to the complainant was expected to do them more harm than good" (emphasis added) Statedly, appellant made extra-judicial confession in presence of complainant, Majid Hussain (PW-9, who is brother of complainant and serving Assistant Sub-Inspector in police department) and Muhammad Ramzan (brother-in-law of Majid Hussain), meaning thereby that they were three and also closely related to the deceased, according to their own statements, appellant was all alone and empty handed at that time, relevant portion of statement of Ruqia Rukhar (PW-7) is being reproduced for ready reference: - "I myself inquired to the accused about the murder of my husband. Majid and Ramzan PWs were present beside me at that time. Ramzan standing behind me. When accused Ghulam Mohyudin confessed before us we tried to apprehend him but he ran away after telling the story of my deceased husband. At that time accused Ghulam Mohyudin was empty handed. After confessing the guilt accused Ghulam Mohyudin apologized us verbally....." (emphasis added) Here question does arise that how appellant escaped after alleged confession and why he did not escape from there before making alleged extra-judicial confession, this scenario on the one hand suggests that conduct of the cited PWs is not natural and on the other hand suggests that said piece of evidence is neither believable nor reliable rather same has been just introduced after finding no other evidence in the case; even otherwise "extra-judicial Confession" is the weakest type of evidence and it can only be taken into consideration if firstly it rings true and then finds support from other strong and tangible evidence of unimpeachable character; in this regard, case of "Imran alias Dully and another v. The State and others" (2015 SCMR 155) can be safely referred: relevant portion is being reproduced: - "(d) Needless to remark that extra judicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source therefore, in our view, this piece of evidence is entirely insufficient to carry conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who normally indulge in such like police chicanery." When search has been made for finding any tangible corroboratory evidence in the case, it has been noticed that the articles i.e. C.N.I.C., A.T.M Card, necessary papers, purse and mobile phone of the deceased, which were with him (as mentioned in the application for registration of FIR) when he left his house, have not been recovered; alleged recovery of shoe (P-5) and empty wrapper of biscuit RIO (P-6) are of no evidentiary value and do not connect the appellant with the commission of alleged offence. As far as recovery of chhuri (P-7) is concerned, suffice to say that occurrence allegedly took place in the intervening night of 10/11.10.2014 and dead body of the deceased was found on 11.10.2014, churi (P-7) was recovered on the pointing out of the appellant on 16.11.2014 i.e. after about 35 days of the occurrence and the same was sent to Punjab Forensic Science Agency, Punjab, Lahore on 24.11.2014 i.e. after more than 43 days of the occurrence. It is well settled principle of medical jurisprudence that human blood disintegrates after three weeks and after such period, any expert report with respect to presence of blood on the weapon of offence, carries no value; in this regard, guidance has been sought from the dictum laid down by the august Supreme Court of Pakistan in the case of "Faisal Mehmood v. The State" (2016 SCMR 2138), relevant portion is being reproduced:-- "It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks". (emphasis added) Therefore, report of Punjab Forensic Science Agency, Punjab, Lahore (Ex.PS) regarding chhuri, is inconsequential and recovery of churi (P-7) is of no help to the case of prosecution. Furthermore, blood allegedly available on the said chhuri (P-7) has not been got compared with blood of deceased available at his clothes through any expert report, therefore, without said grouping of blood, aforementioned recovery of chhuri and report of PFSA (Ex.PS), is inconsequential; in this regard, guidance has been sought from the dictum laid down by august Supreme Court of Pakistan in case of "Khalid Javed and another v. The State" (2003 SCMR 1419) and case of "Muhammad Asif v. The State" (2017 SCMR 486). It goes without saying that Majid Hussain (PW-9) has also been produced by the prosecution as recovery witness of aforementioned chhuri (P-7) and it is trite of law that a witness cannot corroborate himself, therefore, he being recovery witness cannot provide any corroboration to his own testimony, which he deposed about extra-judicial confession; in this regard case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) and "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596), can be safely referred. As far as motive is concerned, suffice to say that no motive was mentioned in the application (Ex.PG), complainant/PW-7 in second application (Ex.PG/2) mentioned dispute of money between appellant and deceased; during trial, complainant/PW-7 produced cheque (Ex.PH) and Iqrar Nama (Ex.PI) to prove said money dispute; but perusal of cheque (Ex.PH) reveals that same was not issued in the name of deceased, it was yet not dishonoured rather it was containing date as 12.12.2020, handwriting and signature available on the same were not got compared or verified from any expert. As far as Iqrar Nama (Ex.PI) is concerned, same was not got duly proved, neither its scribe nor Stamp Vendor nor any attesting witness nor Oath Commissioner/Notary Public was produced, even signature and thumb impression available on the same were not got compared/verified from any expert. Investigating Officer (PW-11) did not investigate said motive and relevant portion of his statement is being reproduced: - "I did not investigate with regard to the cheque and stamp paper produced by the complainant party." Even learned trial court did not believe said motive and relevant portion from Paragraph No. 26 of the impugned judgment, is being reproduced:- "In these circumstances, prosecution has miserably failed to prove motive against the accused."

8. Nutshell of the above discussion is that neither aforementioned extra judicial confession rings true nor there is any evidence available on record to provide corroboration to the same, hence, prosecution has been failed to prove its case against the appellant; therefore, there is no need to discuss defence version.

9. In view of what has been discussed above, Crl. Appeal No. 458 of 2017, filed by Ghulam Mohy-ud-Din (appellant) is allowed/accepted; impugned conviction recorded against and sentence awarded to the appellant through impugned judgment dated 28.01.2017 is hereby set aside. Appellant is acquitted of the charge, he shall be released from jail forthwith, if not required in any other case. Criminal Revision No. 278 of 2017 Since conviction recorded against and sentence awarded to Ghulam Mohy-ud-Din (convict/respondent No.1) through impugned judgment dated 28.01.2017, have been set-aside, therefore, instant Criminal Revision No. 278 of 2017 has lost its relevance and same is dismissed. JK/G-12/L Appeal allowed.