MUHAMMAD NADEEM S/O MUHAMMAD ZIA (Appellant) VS THE STATE (Respondent)

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IN THE HIGI+TdUHE,OFtsINPfi ry61 Criminal Appeal No.126 of 2015 Confirmation Case No.03 of 2016

Present:

t, Mr. Iustice Naimatullah Phulpoto Mr. Iustice MohammadKarim Khan Agha

Appellant: Muhammad Nadeem son of Muhammad Zia, through Mr. Muhammad Ashraf Kazi, Advocate and Mr.Irshad Ahmed Jatoi Advocate

Respondent: The State through Farman Ali Kanasro Addl PG and Mr. Muhammad Iqhal Awan, Deputy Prosecutor General Sindh

The complainanfi Through Mr. Amir Azam, Advocate

Dates of hearing: 15.01.201.9 and 21-01-2079,

Dated of |udgment 30 -01-20L9

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Mohammad Karim Khan Agha. I.- Muhammad Nadeem son of Muhammad Zia, appellant, was tried by learned Sessions Judge, Central at Karachi for offences under Sections 302/34 PPC registered at I{S Rizvia Society, Karachi. After full-dressed trial, vide judgment dated 15.03.2016, the appellant was convicted under sections 302/34 PPC and awarded death sentence as well as to pay an amount of Rs.5,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased, in case of default in payment of same, he shall suffer further S.I. for six months (the impugned judgment). A Reference under Section 374 Cr.PC was made to the this Court for confirmation of the death sentence awarded to appellant/accused Muhammad Nadeem.

2.Brief facts of the prosecution case as per the FIR EIre that on 25.77.2009 at about 1600 hours SIP Syed Abbas Ali recorded the statement of complainant Zubatu Ahmed Siddiqui son of Muhammad Ahmed r' Siddiqui u/s.154 Cr.PC at Abbasi Shaheed Hospital wherein he has stated that he is student of M.Com and on 25.11..2009 at 1200 hours the police of fiS Rizvia Society informed him on telephone that the dead body of his brother Shoaib Ahmed Siddiqui (Shoaib), aged about 25/26-years has

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been recovered from Car No.ALK-708, maker Suzuki, VXR AIto, blue colour from a vacant plot near Al-Bashir Corner, Jahangirabad Nazimabad, Karachi. On such information, he reached at Abbasi Shaheed Hospital and found the dead body of his brother in the mortuary. On inquiry, a friend of his brother Zohaib ur Rehman disclosed that on l^ 24.11.2009 at about 4:00 p.m. Shoaib took the aforementioned car from his friend Wasiq and along with Nadeem went to the house of Farheen situated in Nazimabad No.1, Karachi for the purpose of his marriage proposal. At about 3:20 a.m. Shoaib informed Zohaib ur Rehman on phone that he is coming back after meeting with the brother of Farheen and further informed that he proposed Farheen. Thereafter Shoaib was out of contact. The complainant suspected that Farheen, her brother Asad and others comrnitted murder of his brother Shoaib in the car by hanging with the seatbelt of said car and set him on fire. SIP Syed Abbas Ali on the basis of aforesaid statement of complainant registered FIR against Farheen, her brother Asad and others.

3.After completing formalities SIP Syed Abbas AIi handed over the investigation to SIP Mohammad Ishaque. During investigation Investigating Officer arrested accused Nadeem and accused l(hurram Akram who facilitated / instigated Nadeem in the commission of the above crime. After completing usual investigation I.O. submitted charge sheet under the above referred sections.

4.The trial court framed a formal charge against the accused persons at Ex.3 under Section 302/34 PPC to which they both pleaded not guilty and claimed to be tried.

5.At the trial, prosecution examined PW-L complainant Zubair Ahmed Siddiqui as Ex.4 who produced statement under Section 154 Cr.PC as Ex.4/ A, receipt of handing over dead body as Ex.4/8, application of cornplainant addressed to SIO, fJS Rizvia Society as Ex.4/C. Prosecution, further to prove its case examined PW-2 Ameer Mughal as It' Ex 5 . PW-3 Dr. Shiraz Ali Khawaja was examined as Ex.6 who produced police letter for post-mortem as 8x.7, post-mortem report as Ex.8 and photocopy of cause of death as Ex.9 . PW4 Muhammad Ammad was examined as Ex.10, PW-s SI Syed Abbas Ali was examined as Ex.11 who b

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produced memo of inspection of place of incident as Ex.12, inquest report as Ex.13, FIR as Ex.14 and arrival entry as Ex.15. PW-6 Muhammad Tariq Khan was examined as Ex.1.6. PW-7 Zohaib ur Rehman was examined as Ex.l7who produced memo of arrest of accused I(hurram Akram as Ex.18. PW-8 AIi Raza was examined as Ex.19 who produced memo of pointation

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of place of incident as Ex.20. PW-g Noman Ahmed Siddiqui was examined as Ex.21, who produced memo of arrest and personal search of accused Muhammad Nadeem as 8x.22. PW-10 Muhammad Amir was exEurdned as Ex.38. PW-1l Muhammad Ishaque was examined as Ex.39 who produced photographs as Ex.40, sketch of crime scene as Ex.41. Letter for chemical examination as Ex.42, notice to accused Nadeem under Section 160 Cr.PC as Ex.43, Rozenamcha Entries regarding interrogation and admission of guilt by accused Nadeem as Ex,44 and Ex.45 request letter for CRO and photocopy of CRO of accused Nadeem as Ex.46 and 8x.47, CRO of deceased Shoaib Ahmed Siddiqui as Ex.48, departure entry No.29 as Ex.49 arrival entry as Ex.50. chemical examiner report as Ex.51 corrigendum in respect of Articles No.3 & 4 as Ex.52 and application of brother of deceased addressed to SIP North Nazimabad, Karachi as Ex.53 and interrogation reports of Farheen and Asad as Ex.54 and 55. v

6.Statement of accused Nadeem was recorded under section 342, Cr.IrC at Ex. 57. The Accused denied the prosecution allegations, claimed himself to be innocent and stated that the deceased himself volunteered accused Ktturram Akrarn as his culprit before dying. He did not examine himself on oath nor examined any witness in his defence.

7.Learned Sessions ]udge, Central, Karachi, after hearing the learned counsel for the parties and assessment of evidence available on record, vide the impugned judgment dated 1.5.03.2016, convicted and"sentenced the appellant as stated above, hence this appeal has been filed.

8.The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment dated 15.03.2016 passed by the trial court and, therefore, the silne may not be reproduced here so as to avoid duplication and unnecessary repetition.

9.In a nut shell the case of the prosecution initially seeilrs to be that Shoaib (th" deceased) went along with the accused Nadeem in a car bomowed from ShoaiHs friend Wasiq on 24-11-2009 in order to meet Ms Farheen (who was Nadeem's cousin) who he wanted to make a marriage

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proposal. The deceased was seen at 10pm on 24-11-2009 by PW 6 Tariq Khan with Nadeem outside a petrol pump filing up l{asiq's car. Thereafter Shoaib's friends PW's 4 Mohammed Amaand, PW 7 Zohaibur Rehman Khan and PW I Ali Raza tried to find and contact Shoaib who they managed to reach on his mobile phone at around 2 am and lastly at

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about 3.20am when Shoaib told them that he was with Nadeem in Nazimabad and would be returning back soon. PW 2 Ameer Mughal who was a water tanker driver saw and spoke to accused Nadeem at about 4.30 arn on 25-L1-2009 in the ]ahangirabad area which was close to the place of incident whilst driving his tanker and offered him a lift home which Nadeem declined. That the police found Wasiq's car abandoned at about 8am burnt with the dead body of Shoaib also burnt with the seat belt around his neck in the Jahangirabad area who according to the post mortem carried out by PW 3 Dr.Shiraz had died on account on strangulation and also had burns on his body. That when Nadeem was suilunoned to the police station he admitted to the murder of Shoaib to the police and took them to the place of the murder where the burnt out car was found. That based on the last seen evidence and this extra judicial confession to the police according to the prosecution Nadeem had

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murdered Shoaib in the car and then set fire to him on account of the later discovered motive that Khurram Akram the absconding co accused owed Shoaib money and whose associates had told Shoaib not to chase up for the return of the money or else he would be killed and that Nadeem was one such associate of I(hurram Akram. In order to prove its case the prosecution relied on the evidence of the PW's and numerous documents which were exhibited in evidence at trial.

10.In a nut shell the plea of Nadeem was that he was completely innocent and that the case had been falsified against him because he refused to pay money to the complainant who was the brother of the deceased.

L1. Learned advocate for the appellant Nadeem contended that it was r a case of circumstantial evidence as there was no eye witness, that the appellant had not been named in the FIf+ that the extra judicial confession made by the appellant before the police was inadmissible; that the last seen evidence was insufficient to convict the appellant as it had not been sufficiently corroborated; that the chemical report was contradictory to the

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prosecution case as it had stated that the burning was caused by Kerosene and not by pehol whereas the last seen PW had seen the appellant with a bottle of petrol at a PSO petrol station when admittedly petrol stations only sold petrol and not Kerosene; that the medical evidence does not support the prosecution case as the time of death in the medical report

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does not tie in with the time of death as alleged by the prosecution; that the appellant taking the police to the place of the incident was irrelevant and thus for atl the above reasons the appellant was entitled to be acquitted on the basis of the benefit of the doubt being extended to him. In support of his contentions he placed reliance on Muhammad Abid v. The State (PLD 2018 Supreme Court 813), Hayatullah v. The State (201.8 SCMR ?lWZ), Nazar Muhammad & another v. The State (SBLR 2018 Sindh 1,662), Abdul Sattar v. The State (PLD 1976 Supreme Court 404) and Parikh's Text Book of Medical ]urisprudence and Toxicolory by Dr. C.K. Parikh.

12.On the other hand, Mr. Farman Ali Kanasro Addl. PG and Mr. Muhammad Iqbal Awan, Deputy Prosecutor General contended that the last seen evidence and that of the tanker driver coupled with the phone

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call evidence of the PW's speaking to Shoaib shortly before his death and as coroborated by his extrajudicial confession was compelling evidence against the appellant. However when confronted by the court with the failure of the prosecution to call as PW's Farheen and Asad who had been named in the FIR to show that the appellant had not met them he conceded that this was a major defect in the prosecution case. Likewise the lack of motive and the car not being kept as case property and very fairly conceded by assisting the court and keeping these factors in mind and the totality of the evidence that the prosecution had failed to prove its case beyond a reasonable doubt. Learned counsel for the complainant supported this contention of the learned APG and DPG.

13.We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the Y appellant, the impugned judgment with their able assistance and have considered the relevant law,

14.Before proceeding further it must be mentioned that during the course of the trial co-accused Khurram Akram absconded and thus the

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trial proceeded only against the appellant Nadeem who as mentioned above was convicted by the impugned judgment and sentenced to death.

15.From the evidence in our view it seems to be an admitted position that Shoaib was found murdered by strangulation and burned in his I friend's (wasiq's) car in the early morning of 25-11-09 in the Jahangirabad area of Nazimabad.

76.The issue before us therefore based on the evidence on record is who murdered Shoaib? Without belaboring the point it is a cardinal principle of criminal jurisprudence that the prosecution must prove its case beyond a reasonable doubt and it is not for the accused to disprove the case against him who may take as numy defenses as he likes to the allegations against him and if there is any doubt in the prosecutions case the benefit must go to the accused. As was held in the case of Tariq Perez V/s. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has observed as follows:-

It is settled lau, that it is not necessary that there should be many circumstances ueating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent t- mind about the gailt 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."

77.Admittedly there is no eye witness to Shoaib's murder which was committed during the night when it was dark.

1.8. The prosecutiort's case in our view seems to hinge on the following main elements (a) the last seen evidence and (b) the mobile phone calls between the friends of Shoaib and Shoaib during the early hours of 25-11- 2009 and (c) the appellants extra judicial confession before the police and his pointation of the crime scene and (d) other circumstantial evidence, Turning to the last seen evidence

19.With regard to the last sedn evidence in the case of Fa1ryaz Ahmed V State (2017 SCMR 2026) at P.2030 the supreme court set out some of the 1r fundamental principles which must be followed and the prosecution was obliged to fulfill the same which are set out below:

'7. The last seen eaidence is one of such categoies of euidence. In this category of cases some fundamental pinciples must be

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followed nnd the Prosecution is under-Iegal obligation to fulfill tltl sfrm4 some of which mfry be cited below.

fi There must be cogent reasons that tltc deceased in normal and ordinary course ntfrs suVposed to accompany th* accused and tlnse reflsons must be palpable and pima facie .T furnislwd W tlrc Prosecution.

(it)Tlrc proximi$ of the crime seen plays a aital role because if within a short distance tlw deceased is done to death tlwn, ordinaily the inference would be that lw did not part u)ays or sepflrfrted from the acansed and onus in this regard would shift to the accused to furnish tlwse cira,tmstaqces under which, the deceased W him and parted ways in the course of transit,

(tii) The timing of that the deceased wns last seen with the acansed and suhsequently his murder, must be reasonahly close to each other to exclude flfiy possibility of the deceased getting axnny firo* the accased or the accused getting away from him.

(ia)Thwre must be some refrsons and objects ofi account of which the deceased accornpnnied thc accused fo, accomplishment ,f n the sfrme towards partiailar d*stination, otltenoise giving compntry W tlte deceased to the accused would become a question mark.

(a)Additionally there must be some motiue on the Pnrt I of the accused to kill the decessed othenttise the Prosecution has to furnish widence that it wfls during the transit that something happened ahnormal or unpleasant which motiaated. the accused in killing the deceased.

(an The quick rryorting of tlrc matter without any undue dclry is essential, othenoise the prosecution story would become doubtful for tle refrson thnt the story of last seen u)as tailored or designed falsely, inaolaing accused Person. Beside the aborte, circumstantial widence of last seen must he corroborated by indeputdent eaidence, coming fro* unimpeachable source because uncorrohorated last seen widmce is a weak type of afidence in cases inaoluing capital punishment, (ait) TIu recoaery of the cime weapon fro* the accused and tlte opinion of the expert must be carried out in a transparent and fair mnnner to exclude all possible doubts, which may aise if it is not done in a proper and fair manner.

\t (aiii) The Court hns also to seriously consider that whether the dcceased was haaing any contributory role in tlw cause of his death inaiting the trouble, if it was not a pre-planned and calculated murder." (bold added) h/

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20.The above fundamental principles were endorsed in the recent supreme court case of Muhammad Abid V The State (PLD 2018 SC 813) where it was held as under regarding last seen evidence or "last seen together" evidence at P.818 para 5 and 6 as under;

i "5. Ocular frccount forming the last seen eaidence is that the appellant aws seen by PW-f (Muhammad Naeem) at his shop with tlu aictim at 2:L5 pm on A5.09.20L0 wlrcre he had coml to rent n motorcycle and by PW-7 (Dildar Ahmed) at 2:20 pffi on the same day urhen the appellant purclrnsed petrol fro* his shop, The theory of last seen together is one whwe two persons flre 'seen togethel aliae and after an intental of time, one af them is found aliae and the other dead. If the period between the two is short, presuffiption can he drawn that the person aliae is the author of the othet's death, Time gnp betuteen the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased heing last seen in the compnny of the accused fs not by itself sfficient to sustain the charge of murder. Thwe must be eaiilence to link the accused with the murder of his cotflpflnion, such as inriminating facts fls recovery, strong motiae and the proximate time when they u)ere last seefl together and the time when the deceased a)as killed, Lsst seen euidarce as ciranmstantial eaidence must be Y incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused'.

6.ThE foundation of tlu "last seen togetlwr" tlteory is based on principles of probability and cfruse and connection and requires '1.. cogent reatons that tlu deceased in normal and ordinary course atfrs suryosed to frccompany tlu accused 2. proximity of the crime scefie 3. small time gap betuteen the sighting and cime. 4. no possihility of third persot interfmence 5, motiae. 6. time of dcath of aictim, The ciranmstance of last seen together does not by itself necessarily lead to the infwence that it u)as the accused who cornmitted the crime" Thgre must be something more establishing connectiaity between the accused and the crime." (bold added).

2'1,. Keeping in view the above principles the last seen evidence is -i' provided by PW 6 Muhammed Tariq Khan who knew Shoaib and saw him at L0pm on 24-11.-2009 at the t€O petrol pump adjacent to Sir Syed College sitting in the passenger seat of a blue Alto. They exchanged greetings/salams and Shoaib totd him that Nadeem was taking petrol for his motor cycle. He also knew Nadeem and saw Nadeem with a plastic

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bottle containing some petrol like liquid who he exchanged salams with before Nadeem drove away the car with Shoaib in the passenger seat. In our view no evidence has come on record to lead us to disbelieve this last seen evidence.

, 22. The next piece of evidence is that PW 2 Aneer Mughal who was a water tanker driver states in his evidence that at about 4.30am on 25-11- 2009 he saw and spoke to Nadeem at Jehangirabad and offered him a lift home but Nadeem declined the lift as he had a motor cycle anci was waiting for some one. Again in our view no evidence has come on record to lead us to disbelieve this evidence.

23.So far the prosecution has shown that Nadeem was with Shoaib at L0pm and that Nadeem was seen alone near the place of incident at 4am sorne 6 hours later.

24.In our view this last seen evidence alone is insufficient to convict Nadeem with the murder of Shoaib as there is an unaccounted for 6 hours when Shoaib was last seen urith Nadeem and Nadeem was last seen alone in the vicinity of the murder scene which is sufficient time for them to

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have separated and leads us onto the mobile calls between the friends of Shoaib and Shoaib during the early hours of 25-11-2009 which the prosecution has used to corroborate the last seen evidence.

25.The question therefore is whether between 10pm on 2411-2009 and 4.30am on 25-11-2009 Nadeem murdered Shoaib in the manner as alleged. The prosecution has tried to show that Shoaib was alive and with Nadeem up to at least 3.20am on 25-11-2009 (the day of the incident) through various PW's such as PW 4 Muhammed Ammad, PW 7 Zohaibur Rehman and PW I Ali Raza who grr* evidence that between 2.15am and 3.20 am th*y were in mobile phone contact with Shoaib who had told them that he was with Nadeem in Nazimabad where they were going to meet Asad the brother of Farheen the lady who Shoaib wished to propose to. I,Ve however have our reservations about such so called corroborafive 'f evidence. This is because (u) we find it rather strange that PW 4 Muhammed Ammad would be concerned about the where abouts of Shoaib at 10pm when he knew from the previous duy that Shoaib was going with Nadeem in Wasiq's car (who was not called as a PVV) to q

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discuss his wedding proposal to Farheen with Asad the brother of Farheen or Farheen herself and that he and the other 2 aforementioned PW's were up till the early hours of the morning wanting to know where Shoaib was especially after Shoaib had already informed them where he was, who he was with and what they were doing. PW I Ali Raza also r admitted in cross examination that they did not sit until 3 or 4 am at the Quetta Hotel often and that they usually sat until midnight. So why were they sitting so late at the Quetta hotel on this occasion? This does not particularly appeal to reason and (b) not once during all these phone calls with Shoaib, which in effect is hearsay evidence, did any of the aforesaid PW's ever speak to Nadeem who was apparently with Shoaib and whom they all knew which again does not appeal to reason. Thus they only have Shoaib's word that he was with Nadeem at 3.20 am on 25-11,-2009 when Nadeem might well have left him by this time and Shoaib out of embarrassment e.g. Shoaib's proposal being rejected or any other reason he did not want to admit this to his friends who were calling him and (c) significantly Shoaib's mobile phone was not recovered and there are no CDR records in evidence to show that Shoaib was actually called by any of the aforesaid 3 PW's who allegedly called Shoaib in the early hours of 25-

26.Thus, in our view the last seen evidence has not been adequately corroborated by another independent source of evidence such as the alleged telephone calls.

27.It is true that Nadeem might have been spotted at around 4.30am in the ]ehangirabad area near the place of incident by PW 2 Aneer Mughal but this may be because he and Shoaib had quarreled or for any other reason Nadeem got out of the car and left Shoaib alone in the car which may have occurred at any time after 10pm and 4.30am between ?4/25-11,- 2009. It is also unclear at what precise time the murder actually took place which may well have been after 4,30am on 25-11-2009 when Nadeem was seen by tanker driver PW 2 Aneer Mughal. According to PW 5 ASI Syed -+. Abbas AIi at Llam he received information that a suspected car was standing near Al Shabbir Corner ]ehangirabad which was apparently a built up residential area and as such it would seem odd that no one from the area contacted the police to report a car on fire which would have stood out in the darkness of the night. Even the post mortem finds the 1n

duration of death to be within 12 hours from 3pm being the time when the post mortem was completed which means that Shoaib could have been murdered at any tirne between 3am and 3p* which shows that the majorify of the hours in which death may have occurred was after 4.30am. Keeping in view that some of the PW's allegedly spoke to Shoaib at 3.20

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am and Nadeem was seen by the tanker driver at 4.30 am this only gives Nadeem a window of one hour to strangle and murder Shoaib and set him and the car on fire and move away from the scene of the murder which short space of time creates doubt. As such in our view it cannot be conclusively said based on the last seen evidence that Shoaib and Nadeem had not parted company before Shoaib's murder.

28.In additiory Nadeem had no motive to murder Shoaib. As per the FIR the main suspects were Asad and Farhan whom Shoaib wanted to propose to. Interestingly the interrogation report of Farhan confirms that she was in contact with Shoaib and was expecting a matrimonial proposal yet both she and her brother Asad, despite not being adequately able to account for his movements on the night of the murder and the place of the murder being close to Asad's house and who appears to be an equally strong suspect in the murder of Shoaib have been let off and were not even called as PW's. There was no mention in the FIR of Nadeem as a suspect. There is no documentary or other evidence to show that Nadeem owed Shoaib money which Shoaib was now pressing for and as such Nadeem had no motive to murder Shoaib. Even otherwise the application for protection by Shoaib on which the alleged new motive is based does not name Nadeem at all. The application/complaint states that Khurram Akram and his associates (who are named in the complaint/application) are threatening Shoaib not to ask for the return of his money or he will be killed and NOT Nadeem. Furthermore, nothing has come on record to show conclusively any nexus/link between co-accused Khurram Akram and Nadeem in terms of any business relationship which they may have had with each other or in respect of Nadeem with Shoaib. Even otherrnrise it does not particularly appeal to reason that Nadeem would murder Shoaib that night as Nadeem knew that he had been seen with Shoaib at 10pm on the night of the murder by PW 6 Muhammed Tariq Khan who he had spoken to at the IISO station and that Nadeem's friends especially Wasiq and the other PW's referred to above who were trying to contact

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him by mobile phone in the early hours of 25m November knew that Nadeem was driving Shoaib to meet with Asad or Farhan concerning his marriage proposal. Thus, Nadeem would have known that he would have been the obvious suspect for the murder of Shoaib and as such his murdering Shoaib on that night keeping in view these facts which were r within his knowledge does not appeal to reason.

29.This leads us to the next issue as to whether Nadeem's extra judicial confession before the police is of any assistance to the prosecution case.

30.It is settled law that for an exhaiudicial confession to be relied upon extreme caution must be exercised and that it must be supported by some unirnpeachable corroborative evidence in order to bring home a conviction. In the case of Sajid Mumtaz V Basharat (2006 SCMR 231) it was held as under at P.2.?8 Para L7:

"1.7. Last but not tlu least are tlw extra-judicial confessions of alt tlu acansed, out of wlnm tlwse oj Basharat and Msfl Naghma are joint one. This requires somcwlwt detailed discttssion. This hurt and its predecessor Court (Federal b C-ourt) lmae elaborately laid down tlu law regarding extra- judicial confessions starting from Ahmed a. ThE Crown PLD 1951. FC 1,03-1.07 up to the latest. Extra-judicial contession has always been taken with a pinch of salt, In Ahmed u. The Crown, it wfls obsented thst in this country (as n whole) extra-juilicial confession must be receiaed with utmost caution, Further, it was obserued fro* time to time, thnt before acting upon n retracted extra-judicial confession, tlu Court must inquire into all mateial points and surrounding circumstances to "satisfy itself fully tlwt the confession cannot but be true." As, iln extra-juilicial confession ds not a direct ntidence, it must be conohorated in matgrial partianlars hefore being made the basis of conaiction.

1,8. It lms been furtlrcr hald thfrt thl status of the person before wlwm the extra-judicial confession is madc must be lept in uiew, that joint confession cannot be sued against eitlur of tlum and. that it is always a weak Wpe ol eoidence which cfrn easily be procared wheneuer direct widmce is not aaailahle. Exerrcise of utmost -t cilre and caution has always been the ile presc,ribed by this Court.

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him by mobile phone in the early hours of 25m November knew that Nadeem was driving Shoaib to meet with Asad or Farhan concerning his marriage proposal. Thus, Nadeem would have known that he would have been the obvious suspect for the murder of Shoaib and as such his murdering Shoaib on that night keeping in view these facts which were

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within his knowledge does not appeal to reason.

29.This leads us to the next issue as to whether Nadeem's extra judicial confession before the police is of any assistance to the prosecution case

30.It is settled law that for an extrajudicial confession to be relied upon extreme caution must be exercised and that it must be supported by some unirnpeachable corroborative evidence in ord.er to bring home a conviction. In the case of Sajid Mumtaz V Basharat (2006 SCMR 231) it was held as under at P.238 Para 1.7:

"L7. Last but not tlw least are tlu extra-judicial confessions of all the acansed, out of wlnm tlwse oj Baslwrat and Mst. Naghma are joint orc. This requires somewhat detailed disanssion. This hurt and its predecessor Cnurt (Federal y C-ourt) luae elaborately laid down tlw law regarding extra- judicial confessions starting from Ahmed a. TltE Crown PLD 1951, FC 103-1,07 up to tlu latest, Extra-judicial confession has always been taken with a pinch of salt, ln Ahmed v. The Crown, it u)as obsroed that in this country (as a whole) extre-juilicial confession must be receiaed with utmost caution, Furtlur, it was obserued fro* time to time, thnt before acting upcin a retracted extra-judicial confession, the C-ourt must inquire into all mateial points and surrounding circumstances to "satisfy itself fully tlut tlu confession cannot but be true." As, afi extra-juilicial confession fs not E direct eoidence, it must be conohorated in mafurtal particulars hefore being made the basis of conuiction.

1.8. It lws been furtlwr ltald thnt tlw stahts of tlw person before wlwm tlu extra.judicial confession is made must be lept in vieut, that joint confession cannot be sued against either of tlrem and that it is always a weak type ol widence which cfrn easily be proanred whenwer direct widnrce is not aaailable. Exwcise of utmost + cflre and caution has always been the rule prescribed hy this Court.

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22.As ohserued hy the Eederal Court, u)e would reiterate especially refefing to this pnrt ,f the country, that extra-judicial confessions haae almost become a norrn when the prosecution cannot otherwise succeed. Rather, it may be ohserued with coflcerfl as well frs with regret that when the Inaestigating Officer fails to properly inaestigate the v case, he resorts to padding and concoctions like extra-iudicial confessions, Such confession by nonl haoe become the signs of incompetent inaestigation. A judicial mind, before relying uqon such weak type ol widance, capable of heing effortlessly proatred must ask a few questions like why the acansed should at all confess, what is the time log between the occurrence and the confession, whether the acstsed had been f"ll1 trapped during inaestigation before making the confession, what is the nature and gravity of the offmce inoolaed, what is the relationship or frienilship of the wihtesses with the maker "f confession and what, aboae all ds the position or authortg helil hy the witttesso. fuold added)

31.The prosecution case is that the extrajudicial confession of Nadeem corroborated by the last seen evidence and the fact that the appellant took the police to where the place of incident occurred is sufficient to convict him.

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32.In our view tuking the police to the place of the incident might have been a piece of corroborative evidence if the place of incident and body and the cause and manner of death had not already been found and that the appellant was the only one who knew where the scene of incident was and where the body had been hidden. However in this case the place of incident, body and cause of death had already been found and uncovered by the police and thus in our view this extra judicial confession before the police and taking the police to the place of incident is of no assistance to the prosecution based on the particular facts and circumstances of this case as the extrajudicial con-fession could easily have been concocted by the police.

33.It should also be noted that the IO also failed to uncover any other potentially corroborative evidence from the appellant. For example, no -t- mobile phone was recovered from him, the CDR of Shoaib and the other PW's who state that th"y were in contact with Shoaib has not been checked, the clothes of Nadeem were not tested for any Kerosene which may have fallen on them, any tox'c chemiral produced by the smoke l?

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which may have been found in his clothe+ no blood on his clothes, no toxicology test was carried out on Shoaib to see if he had any sleep inducing chemicals in his blood, it has not come in evidence that the battery wires of the car were discorurected as claimed by Nadeem in his alleged extrajudicial confession before the police as the car was not even y made case property etc

34.As a matter of law we are cognizant of the fact that it is difficult to prove a case based on circumstantial evidence and that great care and caution must be shown in such cases. We have taken this legal aspect into account whilst deciding this case. For example in the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274) at P.290 Para's 3L and 32 it was held as under;-

"31.. As disanssed earlier, the entire case of tlu proseantion is based on circumstantial ersidence. The principle of law, consistently laid down by this Court is, that different pieces of such et)idence haae to make sne chain, an unbruken ofle where sne end of it touches the dead hody and the other the neck of the Accused. In case of nny missing link in the chairy the whole chain ts broken and fia conaiction can be recorded in crimes +- entailing capital punishment. This principle is fully attracted to the facts and ciratmstances of tlw present urce.'@old addcd)

'32, . , , , .In cilses of ciratmstantial widence, tlrc C-ourts are to tale extraordinary care and caution before relying on tlu sfrme. Ciranmstantial euidEnce, even ,f supported W dcfectiae or inadequate eaidence, cannot be made basis for conaiction on a capital charge, More partidar$, when tlure are indications of design in tlw prryaration af fr cnse or introducing any piece of fabicated ruidence, tlrc C-ourt should always be mindful to take extraordinnry precautions, so thnt the possibility it being deliberately of misled into false infirence and patently Tttrong conclusion is to be ruled out, thmefore ltard and fast rules slnuld be ayplied fo, carefully and narrowly examining circumstantial utidenu in such cfrses because clunces of fabricating such eaidenw are always tlwre. To iustify the infercnce of of guilt nn acarced Persoh the circumstantial eoidence must he of a quali$ to be incompatible with the innocence of the scarced, If such ciranmstantial midence is not of that standard + and quality, it would be hishly darugerous to rely upon the same by awarding capital punishment. The better and safe caurse would be not to rely uPton it in seanring the ends of iustice."(hold addeil)

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35.Thus in our vie\ff even when taking the prosecution case as a whole, and at its best, in terms of last seen evidence, extra judicial confession of the accused before the police and taking of the police to the scene of the incident, the phone calls and other circumstantial evidence we do not consider that tfte prosecution has been able to prove its case against

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the appellant beyond a reasonable doubt (as admitted by the learned APG and counsel for the complainant) and that under such circumstances as mentioned above the appellant is entitled to the benefit of the doubt. Thus, we, by extending the benefit of the doubt to the appellant set aside the impugned judgment and acquit him of the charge. The confirmation reference is answered in the negative and the appellant shall be released forthwith unless he is wanted in any other custody case.

36.The appeal is disposed of in the above terms.

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