2016 S C M R 274

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Mushir Alam and Dost Muhammad Khan, JJ

AZEEM KHAN and another---Appellants

Versus

MUJAHID KHAN and others---Respondents

Criminal Appeals Nos.497 and 496 of 2009, decided on 15th October, 2015.

(On appeal from the judgment dated 1-6-2009 passed by the Lahore High Court, Rawalpindi Bench
Rawalpindi in Crl. A. 144-T of 2007, Crl. Revision 62-T of 2007 and CSR. No.50-T of 2007)

(a) Penal Code (XLV of 1860)---

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom,
qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Un-witnessed crime---Lack of
corroborative evidence---Voice data of phone calls not presented---Recovery memo witnesses
'interested witnesses'---Crime in question was an un-witnessed incident and based only on
circumstantial evidence and recovery of incriminating articles--- Important links in the chain of
story set up by the prosecution were missing due to lack of corroborative evidence---No voice
record transcript of calls had been brought on record to prove the ransom demand---Area from
which the call for ransom was made, was not shown---Most crucial and conclusive proof that the
cell phone from which ransom demand was made was owned by the accused and SIM allotted was
in his name was also missing---Attesting witnesses of recovery memo were related to the deceased
and thus were highly interested witnesses---Number of bones, allegedly belonging to deceased,
which were recovered on pointation of accused persons did not match with the number of bones
sent for analysis to the Forensic Science Laboratory---Trial Court had relied on highly cryptic and
infirm evidence to award death sentence to accused persons---Supreme Court set aside convictions
and death sentences awarded to accused persons and acquitted them of the charge.

(b) Criminal Procedure Code (V of 1898)---

----S. 164--- Confession recorded by Magistrate on oath---Admissibility---Such confession violated

the law and rendered the same inadmissible.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 164 & 364---High Court (Lahore) Rules and Orders, Vol. III, Chap. XIII---Judicial
confession before Magistrate, recording of---Procedure and precautions to be observed by
Magistrate for recording judicial confession of an accused.

Following procedure and precautions are to be observed by a Trial Court for recording judicial
confession of an accused.

Before recording confession and that too in crimes entailing capital punishment, the recording
Magistrate had to essentially observe all the mandatory precautions (laid down in the High Court
Rules and Orders). Fundamental logic behind the same was that, all signs of fear inculcated by the
investigating agency in the mind of the accused were to be shed out and he was to be provided full
assurance that in case he was not guilty or was not making a confession voluntarily then in that
case, he would not be handed over back to the police. Thereafter, sufficient time for reflection was
to be given after the first warning was administered. At the expiry of such time, recording
Magistrate had to administer the second warning and the accused shall be assured that now he was
in the safe hands. All police officials whether in uniform or otherwise, including Naib Court
attached to the Court must be kept outside the Court and beyond the view of the accused. After
observing all these legal requirements if the accused person was willing to confess then, all required
questions as formulated by the High Court Rules and Orders should be put to him and the answers
given, be recorded in the words spoken by him. Statement of accused should be recorded by the
Magistrate with his own hand and in case there was a genuine compelling reason then, a special
note was to be given that the same was dictated to a responsible official of the Court like
stenographer or reader and oath shall also be administered to such official that he would correctly
type or write the true and correct version. In case, the accused was illiterate, and made a confession,
which was recorded in another language i.e. Urdu or English, then the same should be read-over
and explained to him in the language he fully understood, and thereafter a certificate, as required
under section 364, Cr.P.C. with regard to these proceedings should be given by the Magistrate under
his seal and signatures and the accused shall be sent to jail on judicial remand and during this
process at no occasion he shall be handed over to any police official/officer whether he was Naib
Court wearing police uniform, or any other police official/officer, because such careless
dispensation would considerably diminish the voluntary nature of the confession, made by the
accused.

(d) Penal Code (XLV of 1860)---

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Criminal Procedure Code
(V of 1898), Ss. 164 & 364---Kidnapping for ransom, qatl-i-amd---Reappraisal of evidence---
Judicial confession, recording of---Illegalities committed by Magistrate in recording confession of
accused---Effect---Judicial confession unworthy of reliance---Recording Magistrate committed
successive illegalities as after recording the confessions of the accused persons on oath, both were
handed over to the same police officer, who had produced them in the Court in handcuffs---
Recording Magistrate was either unaware of the law on the subject or he was acting on the desire of
the police, compromising his judicial obligations---Such careless attitude of the Magistrate provided
premium to the investigating agency because it was thereafter, that the recoveries of the so-called
incriminating articles were made at the instance of the accused persons---Recording Magistrate did
not put many mandatory questions to the accused persons like duration of police custody and he
also did not inform them that they would not be given back to the police whether they recorded the
confession or not---Confessions of accused persons in such circumstances were of no legal worth,
and had to be excluded from consideration, more so, when these were retracted at the trial---Even
otherwise confessions of accused persons prima facie appeared to be untrue because the same
contradicted the story set up by prosecution witnesses on material particulars of the case---Supreme
Court set aside convictions and death sentences awarded to accused persons and acquitted them of
the charge.

Khuda Bux v. The Crown 1969 SCMR 390 ref.

(e) Criminal trial---

----Evidence, appreciation of---One tainted (piece of) evidence could not corroborate another
tainted piece of evidence.

Muhammad Bakhsh v. The State PLD 1956 SC 420 ref.

(f) Evidence---

----Documentary evidence---Oral evidence---Contradiction between---Documentary evidence shall

prevail over an oral statement made at a subsequent stage, which contradicted the contents of
documents.

(g) Criminal trial---

----Extra-judicial confession---Weak type of evidence on basis of which conviction on capital

charge could not recorded.

Noor Muhammad v. The State PLD 1991 SC 150 ref.

(h) Penal Code (XLV of 1860)---

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom,
qatl-i-amd---Reappraisal of evidence---Medical jurisprudence---Decomposition of human body---
Recovery of bones---Doubt as to whether a human body could decompose into bones within a
month---Pieces of bones allegedly belonging to deceased were discovered about a month after his
murder---Such (rapid) destruction of entire body of a human being was not possible within a month
because some visceras made of tough tissues and full skeleton of human body remained intact---In
the present case, only scattered pieces of bones were recovered and not full skeleton of human body,
which by itself was unbelievable, being against the well-established and universally recognized
juristic view on the subject---Recovery of pieces of bones after one month was entirely doubtful---
Supreme Court set aside convictions and death sentences awarded to accused persons and acquitted
them of the charge.

Modi's Textbook of Medical Jurisprudence and Toxicology ref.

(i) Criminal Procedure Code (V of 1898)---

----S. 510---DNA test report---Not admissible piece of evidence as S. 510, Cr.P.C. did not mention
the report of a biochemical expert on DNA (biochemist).

(j) Penal Code (XLV of 1860)---

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Criminal Procedure Code
(V of 1898), S. 510---Kidnapping for ransom, qatl-i-amd---Reappraisal of evidence---Recovery of
bones to identify deceased---DNA report of bones---Not admissible in evidence---Not sufficient to
award capital punishment---Even if in the present case such DNA report was admitted into the
evidence and relied upon, it would in no manner be sufficient to connect the necks of the accused
persons with the commission of the crime when the bulk of other evidence against them was found
to be unbelievable thus, no reliance could be placed on such DNA report to award a capital
sentence---To ensure fair-play and transparency, the samples in the laboratories from the parents (of
deceased) should have been taken in the presence of some independent authority like a Magistrate
and also the recovered samples from the crime scene in the same way to dispel the chances of
fabrication of evidence through corrupt practices---Transition of the samples to the laboratory
should have also been made in a safe and secure manner, but all such safeguards were ignored in the
present case--- Supreme Court set aside convictions and death sentences awarded to accused
persons and acquitted them of the charge.

(k) Criminal trial---

----'Interested witness' and 'independent witness', evidence of---Scope---Even evidence of

uninterested (independent) witness, not inimical to the accused, may be corrupted deliberately (and
hence not worthy of reliance), while evidence of inimical witness, if found consistent with the other
evidence corroborating it, may be relied upon.

Waqar Zaheer v. The State PLD 1991 SC 447 ref.

(l) Criminal Procedure Code (V of 1898)---

----S. 156--- Penal Code (XLV of 1860), S. 302(b)--- Qatl-i-amd---Reappraisal of evidence--- Police
documents---Recovery memo---Interpolation and over-writing---Court in such cases should be at
guard and had to take extra care in making the appraisal of evidence, because once dishonesty in the
course of investigation was discovered then Court would always seek strong corroboratory evidence
before relying on the other evidence of the prosecution.

(m) Criminal trial---

----Crimes entailing capital punishment---Conviction---Circumstantial evidence, reliance upon---

Scope---Different pieces of circumstantial evidence had to make one chain, an unbroken one where
one end of it touched the dead body and the other the neck of the accused---Any missing link in
such chain, broke the whole chain and no conviction could be recorded in crimes entailing capital
punishment---Courts had to take extraordinary care and caution before relying on the circumstantial
evidence---To justify the inference of guilt of an accused person, the circumstantial evidence must
be of quality that was incompatible with the innocence of the accused; if circumstantial evidence
was not of such standard and quality, it would be highly dangerous to rely upon the same by
awarding capital punishment---Better and safe course in such circumstances would be not to rely
upon such circumstantial evidence.

(n) Criminal trial---

----Conviction---Evidence---Strong unimpeachable evidence---No one should be construed into a

crime on the basis of presumption in the absence of strong evidence of unimpeachable character
that was legally admissible.

(o) Criminal trial---

----Evidence, appreciation/appraisal of---Benefit of doubt---Heinous or gruesome nature of crime---

Nature of crime should not detract the Court of law in any manner from the due course to judge and
make the appraisal of evidence in a proper manner and to extend the benefit of reasonable doubt to
an accused person---Any influence from the nature of the crime and other extraneous consideration
might lead the judges to a patently wrong conclusion.

Agha Muhammad Ali, Advocate Supreme Court for Appellants (in Crl. A. 497 of 2009).

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for the Complainant.

Ahmad Raza Gillani, Advocate Supreme Court for the State.

Date of hearing: 15th October, 2015.

JUDGMENT

DOST MUHAMMAD KHAN, J.---The appellants (i) Mujahid Khan and (ii) Arbab Khan,
at a trial held by the learned Presiding Judge of Anti Terrorism Court-II, Rawalpindi, upon
conviction under sections 365-A and 302, P.P.C. read with section 7 of Anti-Terrorism Act, 1997,
were handed down sentence(s) of death under section 365-A, P.P.C. and S.7(e) of A.T.A.
Additionally, appellant Mujahid Khan was convicted and was sentenced to death under section
302(b), P.P.C. The properties of the appellants were also ordered to be forfeited.

2. Both the appellants filed appeal before the Lahore High Court, Rawalpindi Bench,
Rawalpindi, which was heard along with Murder Reference No.50-T/2007 as well as Criminal
Revision No.62-T/2007 filed by the complainant and vide impugned judgment dated 01.06.2009,
the appeal of the appellants was dismissed and the Reference sent by the Trial Court under section
374, Cr.P.C. was answered in affirmative, however, the Criminal Revision Petition of the
complainant was dismissed.

3. Both these appeals have been filed with leave of the Court dated 27.08.2009. The order is
self speaking and elaborate one.

We have heard Sardar Muhammad Ishaq Khan, learned Sr. ASC for the complainant, Agha
Muhammad Ali, learned ASC for the appellants in Crl. A. No.497/2009 and Mr. Ahmad Raza
Gillani, learned Additional Prosecutor General, Punjab and have carefully gone through the
evidence on record.

4. Precise but relevant facts are that, a pre-teen nephew of the complainant, Khan Wali (PW-4),
namely Muhammad Bilal (deceased) aged about 10/11 years went missing on 16.07.2006. In the
crime report (Ex-PH/1) the complainant expressed apprehension that his nephew was probably
kidnapped. After registration of the crime report, Nazar Muhammad SI, Police Post Naseerabad
inspected the spot and prepared the site plan thereof. In the meanwhile a cell phone call was
received by Muhammad Wali (PW-3); the caller used cell phone No.0302-5665028 and the
receiving cell phone number of Muhammad Wali was 0300-9866033. The caller demanded
Rs.25,00,000/- however, bargain was struck at Rs.3,00,000/-, which amount was delivered by
leaving it at the place told by the caller to Muhammad Wali (PW-3). At this stage section 365-A,
P.P.C. was added to the charge. The Investigating Officer obtained phone calls data of both the cell
phones from the mobile company through one Rana Shahid Parvez, DSP on 03.08.2006. On
17.08.2006 both the appellants were arrested. During interrogation the appellants jointly disclosed
that they had murdered the abductee Muhammad Bilal on 5th day of his abduction at 12:00
midnight by chocking his mouth and the dead body was then buried in a ditch however, on
22.07.2006 they had received an amount of Rs.3,00,000/- as ransom money from Muhammad Wali
PW, who is the son of the complainant. The appellants further disclosed that after abduction of the
deceased on 16.07.2006, they tied him with a tree, situated on the bank of flood channel. The
abductee was killed because he used to raise hue and cries.

5. After the said disclosure, both the appellants were jointly taken to Tarnol area where they
pointed out the place of crime, wherefrom mud stained torn 'shalwar', shirt and a pair of slippers,
allegedly belonging to the deceased were recovered along with a wrapper of candies/toffees. A strip
containing six pills was recovered from the pocket of the shirt of the deceased. These articles were
identified by the father and cousin (Muhammad Wali) to be of Muhammad Bilal deceased on the
spot. 12 pieces of bones were also recovered from the crime spot through a recovery memo and
were sealed into one and the same parcel. A Suzuki Mehran Car No.FDO 5481 with registration
book was recovered from appellant Mujahid Khan besides, the cell phone with SIM No.0302-
5071540 was also recovered from appellant Arbab Khan on his personal search.

6. Both the appellants made judicial confession before Ch. Muhammad Taufiq, Magistrate on
18.08.2006 however, against the procedure as required under the law, they were handed over back
to the same police officer, who got further physical custody of both the appellants on the same day
from the Anti Terrorism Court, Rawalpindi.

7. Besides the above, appellant Mujahid Khan had also made extra-judicial confession before
Haji Muhammad Ashraf (PW-8), the close relative of the complainant, on 16.07.2006 at 11:00 am at
Rawalpindi, however, Muhammad Ashraf instead of informing the complainant through any source
including cell phone call, decided to proceed to Peshawar where, he had allegedly struck a bargain
with regard to the purchase of property. According to him, he was required to pay the earnest
money to the seller and when he came back, he informed the complainant on the following day
about the said fact.

8. At the trial, Muhammad Wali (PW-3) had stated that, on 17.08.2006, they were present with
the police party, headed by the Investigating Officer who got information that both the appellants
were coming to Rawalpindi in the Suzuki Mehran Car, mentioned above, thus, the police laid
barricade at Tarnol and both the appellants, on reaching there, were intercepted and arrested.
Contrary to the police statement, this witness has further stated at the trial that both the appellants
were taken to the crime spot one after another and at their pointation the above crime articles,
clothes and pair of slippers were recovered therefrom, which were taken through separate memos,
Ex-PA and Ex.PB.

9. The bones recovered, were sent to the Forensic Science Laboratory, Lahore however, Dr.
Manzoor Hussain, Research Officer of Molecular Biology, University of Punjab, Lahore (PW-13)
stated that he received 21 numbers of bones and in addition thereto teeth as well, however, these
were not shown in Ex.PA. At the instance of Arbab Khan appellant, an amount of Rs.150,000/- was
recovered from an iron box in his house. The attesting witnesses to the recovery memo (Ex.PG) are
the complainant and Muhammad Wali, who have played very active role in the course of furthering
the investigation of the case.

10. On the other hand, Dr. Manzoor Hussain (PW-13) brought on record the positive result of
the DNA Test (Ex-PR) on the basis of samples, taken from Azeem Khan and Mst. Khiyal Bibi, the
parents of the deceased with the recovered pieces of bones and teeth.
11. At the conclusion of investigation, charge sheet was filed against the appellants in the Trial
Court, which ended in the conviction of both the appellants stated above.

12. The summary of the above detail would show that the prosecution has placed reliance on the
following pieces of evidence:-

(i) The cell-phone data, collected from the cellular company, of both the cell phones, the
one allegedly belonging to appellant Arbab Khan and the other to Muhammad Wali (PW-3);

(ii) The judicial confession of both the appellants recorded by the Magistrate;

(iii) The extra judicial confession made by one of the appellants, namely, Mujahid Khan,
before Haji Muhammad Ashraf (PW-8), Vice President, "Anjuman-e-Tajran, Bara Market"
Rawalpindi;

(iv) The recovery of the bones (12 in number), clothes and slippers of the deceased from
the crime spot;

(v) The recovery of money from the house of the above appellant;

(vi) The recovery of Suzuki Mehran Car, which one of the appellants had allegedly
purchased from unknown seller, paying a portion of the ransom money; and

(vii) Positive result of the DNA test.

13. Undeniably, it is an un-witnessed crime. The entire edifice of the prosecution case is based
on circumstantial evidence and recovery of the alleged incriminating articles, detail of which is
given above.

14. The judicial confessions, allegedly made by both the appellants are the material piece of
evidence in the prosecution hand, therefore, we would deal with the same in the first instance.

15. Keeping in view the High Court Rules, laying down a binding procedure for taking required
precautions and observing the requirements of the provision of section 364 read with section 164,
Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes
entailing capital punishment, the Recording Magistrate has to essentially observe all these
mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated
by the Investigating Agency in the mind of the accused are to be shedded out and he is to be
provided full assurance that in case he is not guilty or is not making a confession voluntarily then in
that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection
is to be given after the first warning is administered. At the expiry of that time, Recording
Magistrate has to administer the second warning and the accused shall be assured that now he was
in the safe hands. All police officials whether in uniform or otherwise, including Naib Court
attached to the Court must be kept outside the Court and beyond the view of the accused. After
observing all these legal requirements if the accused person is willing to confess, then all required
questions formulated by the High Court Rules should be put to him and the answers given, be
recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with
his own hand and in case there is a genuine compelling reason then, a special note is to be given
that the same was dictated to a responsible official of the Court like Stenographer or Reader and
oath shall also be administered to such official that he would correctly type or write the true and
correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate,
the confession he makes, if recorded in another language i.e. Urdu or English then, after its
completion, the same be read-over and explained to him in the language, the accused fully
understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these
proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent
to jail on judicial remand and during this process at no occasion he shall be handed over to any
police official/officer whether he is Naib Court wearing police uniform, or any other police
official/officer, because such careless dispensation would considerably diminish the voluntary
nature of the confession, made by the accused.

16. In the instant case, the Recording Magistrate namely, Ch. Taufiq Ahmed did not observe
least precautions, required under the law. He was so careless that the confessions of both the
appellants were recorded on oath, grossly violating the law, the same, therefore, has rendered the
confession inadmissible which cannot be safely relied upon keeping in view the principle of safe
administration of justice.

17. The Recording Magistrate committed successive illegalities one after the other as after
recording the confessions of the appellants on oath, both were handed over to the same police
officer, who had produced them in the Court in handcuffs. This fact bespeaks volumes that the
Recording Magistrate was either not knowing the law on the subject or he was acting in the police
way desired by it, compromising his judicial, obligations. This careless attitude of the Magistrate
provided premium to the Investigating Agency because it was thereafter, that the recoveries of the
so-called incriminating articles were made at the instance of the appellants, detail of which is
mentioned above.

18. In our considered view, the confessions of both the appellants for the above reasons are of
no legal worth, to be relied upon and are excluded from consideration, more so, when these were
retracted at the trial. Confessions of this nature, which were retracted by the appellants, cannot
mutually corroborate each other on the principle that one tainted evidence cannot corroborate the
other tainted piece of evidence. Similar view was taken by this Court in the case of Muhammad
Bakhsh v. The State (PLD 1956 SC 420), while in the case of Khuda Bux v. The Crown (1969
SCMR 390) the confession made, was held not voluntary because the accused in that case was
remanded back to the police after making confession.

19. Both the confessions of the appellants prima facie appear to be untrue because the same are
clashing with the story set up by prosecution witnesses on material particulars of the case. In the
confession of Mujahid Khan it is stated that Arbab Khan co-accused contacted Haji Azeem Khan
(father of the deceased) on phone and demanded an amount of Rs.25,00,000/- from him as ransom
money also telling him that he will call back. While, Muhammad Wali (PW-3) stated that it was he
who was contacted by the accused on cell phone in this regard four times on different dates and he
struck the bargain at Rs.3,00,000/- which amount he placed at the point, told to him by the accused.
The cell phone data collected by the police is with regard to the two cell-phones, one is attributed to
Arbab Khan appellant and the other to PW Muhammad Wali. At the relevant time, Azeem Khan,
father of the deceased was abroad and only the complainant, Khan Wali and his son Muhammad
Wali have been shown interacting with the caller on phone. The contradiction pointed out, is of a
serious nature thus, has demolished the story given in the confessions of the appellants and has
rendered the same of no legal efficacy. Appellant Mujahid Khan has disclosed in his confession that
with the share of the ransom money he purchased Alto Taxi Car but a car of different make (Suzuki
Mehran) was recovered. This aspect of the matter was also not investigated to trace out the seller of
the car besides, the time and date of the bargain of purchase of the car was also not brought on
record. Similarly, appellant Arbab Khan stated in his confessional statement that he had spent the
money on his engagement with a girl. Neither the name of the girl has been brought on record nor
of her family members i.e. parents, to corroborate this aspect of the matter. Such evidence would
have provided enough corroboration what was stated in the confession but it appears that, the same
was deliberately withheld therefore, adverse inference is to be drawn against the prosecution. In his
confession (Ex-PM), appellant Mujahid Khan has stated that he and Arbab Khan both were called
on phone by the police and were then arrested, while PW-3, stated at the trial that both the
appellants were arrested during snap checking on a barricade, laid near Tarnol. The above
contradiction is of a grave nature, which cannot be lightly ignored. At the trial, the Recording
Magistrate made crude attempts to rectify the wrong/illegalities, he had committed in recording the
two confessions however, the law of evidence is clear on this point that documentary evidence shall
prevail over the oral statement made at a subsequent stage, contradicting the contents of documents.
Therefore, his belated statement at the trial cannot be safely relied upon. The subsequent statement
of the Recording Magistrate created many doubts and had made both the confessions highly
doubtful. In the circumstances the principle of re-benefit of doubt is attracted, which has to be
extended to the appellants and not the prosecution. The questionnaire would show that many
mandatory questions were not put to the appellants like duration of police custody and that they
would not be given back to the police whether they record the confession or not. This is another
infirmity of a serious nature, diminishing the voluntary nature of the confession to naught.

20. Leaving apart the above infirmities, Mujahid Khan, according to his confession, was a
conductor on a Dumper while Arbab Khan was employed in a local hotel near Tarnol. In both the
confessions, the appellants have stated that due to poverty they decided to commit the crime of
abduction for ransom however, the investigative agency did not record the statements of the
driver/owner of the Dumper and the proprietor of the hotel where the accused were employed.
Thus, beside others, this important link is missing in the chain for lack of corroborative evidence.
Moreover, when both the appellants had spent their share of ransom money, then how an amount of
Rs.150,000/- was recovered from appellant Arbab Khan.

21. In both the confessions, it is stated that the abductee was immediately taken out to an open
place and he was tied with a tree. One of the appellants, Mujahid Khan used to stay with him at
night but at day time he used to leave behind the abductee all alone. Such unnatural conduct could
not be believed as any passerby could come across and would have released the abductee. Such a
fantastic story, bereft of logic, can only be believed by a blind or imprudent man because it was the
abductee, on whom the appellants were to encash upon Rs.25,00,000/- No one, who catches a big
fish would let it to swim again in the seawater because, its retrieval would become absolutely
impossible.

22. The cell phone call data collected is of no help to the prosecution for the reasons that
numerous calls have been made indicating continuous interaction between the two cell phones,
contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the
unknown caller made calls on his cell phone four times. No competent witness was produced at the
trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on
record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the
most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted
was in his name is also missing. In this view of the matter, this piece of evidence is absolutely
inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any
manner.

23. The extra-judicial confession, allegedly made by one of the accused before Haji Muhammad
Ashraf (PW-8), Vice President of the "Anjuman-e-Tajran, Bara Market" Rawalpindi appears to be a
concocted story because he admitted that the complainant is related to him and they reside in the
same street.

Appellant Mujahid Khan allegedly made extra judicial confession before him on 14.08.2006,
however, he being closely related and having somewhat business connection with the complainant,
did not inform him immediately although he was having a car with him at that time and also a cell
phone, rather he decided to go to Peshawar and when he came back on the following day, instead of
persuading the complainant Khan Wali, under the direction of the latter, he straightaway went to
Police Post Naseerabad and recorded his statement with the police against both the appellants. His
plea that he had struck a bargain of property and was to pay earnest money therefore, he went to
Peshawar thus, could not inform the complainant for that reason, is a fallacious one. Being a very
serious matter and being a relative of the complainant and because the complainant was residing in
Rawalpindi, few kilometers away from that place, when he got this information at 10:30 am on
14.08.2006, there was no impediment in his way to inform him directly or through phone. Peshawar
city is roughly 100 kilometer away from Rawalpindi, if at all he was required to strike a bargain for
purchase of property, he could have reached there within 2 hours after disclosing this fact to the
complainant. Even, the IO did not go to Peshawar to verify this assertion of the PW, as to whether
he had gone to Peshawar for the above purpose and who was the seller of the property, with whom
he had struck the bargain. No document about the bargain was produced to the Investigating
Officer.

Even otherwise, the story appears highly insensible and runs counter to natural human conduct and
behaviour that the appellant, Mujahid Khan would have disclosed such a gruesome crime before
this PW, involving the necks of both, knowing well that this witness was of no help to him/them
because on record it is proved that this PW did not utter a single word to the complainant
persuading him for re¬conciliation and for settlement, rather after disclosing the fact of disclosure
of the crime, the appellant had made to him, he (Haji Muhammad Ashraf) on the direction of the
complainant went straight to the Police Post and recorded his statement with the Investigating
Officer. 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