2003 PLP 1419 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This appeal with the leave of the Court is directed against the judgment, dated 4-7-2001 passed by Lahore High Court, Lahore whereby while rejecting Criminal Appeal No. 100 of 1996 filed by the appellants Murder Reference No.259 of 1996 sent by Additional Sessions Judge, Gujranwala has been accepted and death sentence awarded to them by the trial Court under section 302(b), P.P.C. has been confirmed.

2. Succinctly stating facts of the case are that P.W. Naveed Anwar Naveed a practising lawyer of Gujranwala lodged complaint Exh.P/O with Police Station Civil Lines, Gujranwala on 9th February, 1993 at 2-05 p.m relating to the incident of murder of his wife Mst. Gazala Naveed took place at 1-15 p.m. in his Bungalow No.28, Gulzar Ibrahim Street, Gujranwala. As per contents of F.I.R. when the complainant alongwith P. W. Matloob Ahmad Waseem reached at the outer gate of his house he witnessed appellants Moulana Khalid Javed Noorani son of Muhammad Rafiq and Aleem Ahmad son of Abdul Karim being Electricians busy in installing door. inter-com and bell on the main gate. He .knocked at the door and in the meanwhile heard the shrieks from inside the house. On this he alongwith others climbed over the gate, and jumped in the courtyard of the house and saw his wife Mst. Gazala Naveed coming out from the bathroom towards courtyard. When she reached towards the eastern side two unknown persons were following her in the same speed. One of them had a double-edged dagger in his hand whereas other was armed with knife (Churri). They stabbed his wife on different parts of her body and ultimately being helpless she fell down on the ground and succumbed to the injuries. The assailants/culprits ran away alongwith crime weapons advancing threats to the complainant and others. Accused persons went out of the bungalow by scaling over the wall situated towards its northern side. Statedly on the same day complainant got recorded a supplementary statement with the police nominating the appellants as accused for commission of the offence with an explanation that on account of murder of his wife he was mentally disturbed and confused, his eyes were blurred, therefore, instead of naming the appellants to be the accused he mentioned their names as witnesses. It is important to note that in the supplementary statement P. Ws. Muhammad Saleem Butt son of Muhammad Gul (not produced) and Muhammad Zubair son of Siraj Din were cited to be the eye-witnesses of the incident, with further explanation that due to mental stress he has forgotten to mention their names in the F.I.R. Accordingly the police started investigation during course whereof appellants were arrested on 21-2-1993. Appellant Aleem Ahmad on 7-3-1993 got recorded his confessional statement before P.W. Malik Masood Ahmad (Magistrate) as Exh.PE. Similarly dagger being crime weapon was also recovered from his possession vide Exh. PF, dated 3-3-1993. Whereas Churri was recovered from the possession of appellant Khalid Javed vide Exh.P/K, dated 28-2-1993.

3. Appellants were sent up to face trial. As they pleaded not guilty to the charge and claimed to be tried, therefore, prosecution to substantiate 'accusations against them produced as many as 18 witnesses followed by recording appellants' statements under section 342, Cr.P.C. They did not opt to record their statements on oath within the purview of section 340(2), Cr.P.C. However, Dr. Ehsan Ali was examined by them as their defence witness.

4. Learned trial Court on completion of trial found the appellants guilty of the offence under section 302(b), P.P.C. Thus they were convicted/ sentenced to death vide judgment dated 23-1-1996. Appellants/convicts filed Criminal Appeal No. 100 of 1996 before learned High Court. The trial Court also transmitted, Murder Reference No.259 of 1996 for confirmation of the death sentence within the purview of, section 374, Cr.P.C. The Appellate Court dismissed the appeal filed by convicts as a result whereof confirmed the death sentences vide judgment impugned, dated 4-7-2001.

5. Leave to appeal was granted on 30th August, 2001 to reappraise entire evidence for safe administration of justice in view of peculiar facts and circumstances of the case.

6. Mr. Nazir Ahmad Ghazi, learned Advocate Supreme Court appeared for appellants whereas Naveed Ahmad Naveed, complainant argued the case himself. The State was represented by Ch. Arshad Ali, Advocate Supreme Court.

7. Learned counsel for appellants contended as follows:-- (a) The eye-witnesses have not seen the occurrence themselves at all, therefore, P.Ws. Naveed Ahmad Naveed, Matloob Ahmad Waseem, Muhammad Zubair as well as P.W. Abdul Ghafoor and Khalid Parvez witnesses of Wajtakkar have furnished false evidence because it was an unseen incident as they were planted by the prosecution to strengthen its case in accordance with the supplementary statement of complainant/P.W. Naveed Anwar Naveed. (b) The recoveries of incriminating articles i.e. blood-stained Churri and dagger respectively from the possession of Khalid Javed and Aleem Ahmad accused have been effected in presence of the interested witnesses i.e. closely related to the complainant therefore, liable to be disbelieved. (c) The confessional statement of appellant Aleem Ahmad was recorded after detaining him in custody for a period of more than 14 days, therefore, is not- admissible in law. Besides it, neither it is voluntary nor true, therefore, for want of corroboration on material points has no evidentiary value, as such same may be rejected.

8. P.W. Naveed Anwar Naveed (complainant) argued:-- (a) F.I.R. Exh. P/O was lodged by him, nominating two unknown persons to be the accused for the commission of the offence as after the incident of murder of his wife his eyes were blurred and he was confused. However, on realizing omission committed by him he got this error rectified immediately by making supplementary statement wherein he explained his state of mind and then correctly nominated the appellants as accused of the murder of his wife. (b) To substantiate accusation P.Ws. Matloob Ahmad Waseem and Muhammad Zubair have furnished trustworthy evidence and they have also corroborated his version disclosed by him in the supplementary statement. (c) The circumstantial evidence i.e. recovery of blood-stained clothes of both the accused, the crime weapons stained with blood of the deceased, positive report of Serologist coupled with true and voluntary confessional statement of one of the accused Aleem Ahmad has established guilt against appellants, therefore, judgment impugned warranti no interference.

9. Learned State Counsel supported the arguments advanced by the complainant and further contended that the object of the registration of F.I.R. is to put the machinery of law into motion and F.I.R. itself is never considered as evidence as such during the investigation of the case supplementary statement of the complainant can be recorded in order to bring true facts on record. The learned High Court and the trial Court having considered the material available on record have rightly concluded that the appellants are guilty for the commission of the offence. Therefore, he prayed that conviction/sentence awarded to appellants may be maintained.

10. A perusal of substance of F.I.R. Exh. P/O reveals that unfortunate incident of murder of Mst. Ghazala Naveed wife of Naveed Anwar Naveed took place during broad daylight at 1-15 p.m. inside the house of the complainant. The report of the incident was lodged at 2-5 p.m. at Civil Lines Police Station, Gujranwala situated at a distance of half kilometre from the place of occurrence by her husband P. W. /complainant Naveed Anwar Naveed. P.W. Muhammad Asadullah Khan, Inspector Police/I.O. reduced into writing verbatim version of the complainant, which he got recorded in presence of P.W. Matloob Ahmad Waseem one of the eye-witness. Complainant on having heard the contents of the report read over to him by P.W. Muhammad Asadullah signed it as a token of correctness. The footnote of F.I.R. being relevant is reproduced hereinbelow:--

11. In the F.I.R Exh. P/O murder of Mst. Ghazala Naveed was shown to have been committed by two unknown persons, who in presence of complainant and P.W. Matloob Ahmad Waseem as well as the appellants succeeded in making their escape good after commission of offence brandishing the weapons of offence and threatening the complainant and others. According to the contents of F.I.R. appellants being Electricians were deputed by the complainant to install door inter com and bell alongside the newly fitted outer gate of the house. It is pertinent to note that as per F. I. R Exh. P/O when complainant alongwith P.W. Matloob Ahmad Waseem and appellants were present at the gate of the door they listened the shrieks of the deceased from inside the house. On this they climbed over the gate and from there saw that Mst. Ghazala Naveed was coming running from the bathroom and when she reached towards the eastern side of the courtyard, unknown persons were chasing her. Out of them one had a double-edged dagger and the other was armed with a Churri. In F.I.R: Exh.P.O. the complainant categorically stated that he could recognize accused persons if they were brought before him. It means that he had seen the accused persons from a close distance inflicting injuries on different parts of the body of his wife. He had also seen that deceased lady while defending herself with her hands fell down in the bed of flowers. The complainant after having seen above incident in the presence of others named above left for police station in the company of P.W. Matloob Ahmad Waseem for lodging F.I.R., leaving behind appellants to protect the dead body of the deceased. Surprisingly the complainant after having lodged F.I.R. containing minute details of the incident got recorded a supplementary statement Exh. D/B offering explanation noted therein that "due to severe mental stress agony as well as physical pressure annoyance and on account of unbearable shock he was not in his senses therefore instead of nominating appellants Khalid Javed Noorani and Aleem Ahmad as accused he has described them to be a e-witnesses of the incident (Emphasis provided). It was also explained by him that he forgot to mention the names of eye-witnesses namely Muhammad Saleem Butt (not produced) and Muhammad Zubair at the time of lodging of F.I.R Exh. P/O. In the supplementary statement Exh.D/B altogether a different version was introduced by the complainant. He stated that on the day of incident i.e.. 9th February, 1993 at 11-30 a.m. both the appellants had reached at his Bungalow for installing call bell etc, as they were known to him since long. Arrival of both the appellants was reported to him by his wife on telephone in his Chambers through his clerk P. W. Zulfiqar Ali son of Muhammad Siddique. When at 1-15 p.m. he reached his house on' the Scooter of P.W. Matloob Ahmad Waseem he found the outer gate closed and saw that appellants had prepared holes etc. near the right pillar of the house. On knocking the door he did not receive any response. When he started beating the door he heard shrieks. Meanwhile P. W. Muhammad Saleem Butt son of Muhammad Gul Dad Butt, caste Kashmiri, resident . of. Mashallah Market, Gali Dastagrianwali, Gujranwala (not produced) and P.W. Muhammad Zubair son of Siraj Din caste Kashmiri, resident of Satellite Town, Gujranwala were also attracted on hearing shrieks. On this the complainant, P.Ws. i.e. Matloob Ahmad Waseem, Muhammad Saleem Butt and Muhammad Zubair climbed over the gate and saw that his wife Ghazala Naveed was coming out running from the bathroom to the eastern side of courtyard and the appellants were mercilessly stabbing her. It is most important to note that the witness had attributed injuries to the accused individually as under:-- It was also stated in the supplementary statement that on having. seen the incident he alongwith P.Ws. Matloob Ahmad Waseem, Muhammad Saleem Butt and Muhammad Zubair jumped in the courtyard. The accused persons while brandishing the Churri and dagger and advancing them threats of murder made their escape good by climbing over the wall of the bungalow situated towards the northern side street. He further stated that he left P.Ws. Muhammad Saleem Butt (not produced) and Muhammad Zubair to protect the dead body and himself came to police station under great mental .stress to lodge the report.

12. It is a case in which F.I.R. Exh.P.O had not been lodged by a layman but by a practising Advocate having sufficient knowledge of law, therefore, he is not expected to commit glaring omissions in lodging F.I.R. In respect of an incident which reportedly has been seen by him with his own eyes from a close distance in presence of three persons including appellants and P.W. Matloob Ahmad Waseem. In. the F.I.R. Exh. P.O the-word "unknown persons who committed the murder of Ghazala Naveed has been used at least at six places and the complainant verified the correctness of his statement by putting his signatures on the footnote of the F.I.R. which was recorded in presence of P.W. Matloob Ahmad Waseem.

13. Now it is a fact that prosecution itself vide F.I.R. Exh.P/O and supplementary statement Exh.D/B had introduced two versions of the incident. Whereas appellants during cross-examination on the statements of the P.Ws. and in their statements under section 342, Cr.P.C. have supported the prosecution version mentioned in F.I.R. Exh. P/O. Thus for such reason the principle to deal with cases of two versions laid down by this Court in the .case of Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879) has, to be applied. It has been laid down therein as follows:-- The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the. prosecution witnesses, particularly the eye witnesses and the probability of the story told by them and then examine the statement of the accused under section 342, Cr.P.C. statement under section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. is exculpatory, then he must be acquitted. If the statement under section

342. Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case. If the answer, in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question bin the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or nor there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly. Admittedly the plea of the appellants of innocence coincides with the version of the prosecution contained in F.I.R. Exh.P.O. Therefore, it would be appropriate to note that F.I.R. under section 154, Cr.P.C. is normally considered as a corner stone of the prosecution case unless it is shown that on account of some mala fide intention a wrong version of the complainant was recorded by the investigating agency with a view to allow the real culprits to go escort free and to involve innocent person in the commission of the offence or complainant in order to misguide the investigation lodged false report i.e. F.I.R. or supplementary statement with ulterior motive. To substantiate this argument reference may be made to the case of Muhammad Rafique Kamboh and another v. The State (1993 PCr. LJ 1403). In this case convict Muhammad Rafique Kamboh lodged report about the murder of his wife but subsequently it transpired that he himself was involved in the commission of the offence. Relevant paras. narrating facts of the case are reproduced hereinbelow for convenience: "Concisely stated the facts of the case are that on 6th of September, 1992 appellant-convict Muhammad Rafique Kamboh informed the police on telephone that when he entered his house he found his wife Aamna Bibi dead lying in pool of blood in the T.V. Lounge. The S.H.O. of Bijli Road Police Station, Quetta alongwith other police officers rushed to the place of incident. Fard-e-Bayan of Muhammad Rafique Kamboh was obtained and sent to the police station for registration of then case, in pursuance whereof F.I.R. No.74 of 1992 (Exh.P/21) was registered. Initially Sub-Inspector Aminullah was entrusted the investigation of the case who conducted necessary investigation of the case who conducted necessary investigation by preparing site inspection note Exh.P.5 and inquest report. He also sent the dead body to Civil Hospital, Quetta for autopsy, obtained blood lying near the deceased and prepared Parcel No. 1 and completed all the formalities. Thereafter, Muhammad Iqbal, I.P./S.H.O. was handed over the investigation of the case. It may be noted that by that time the police suspected appellant as murderer and he was also included in the investigation. In such circumstances on 9th of September, 1992 the convict-appellants were arrested. At the pointation of appellant Qalandar Khan, Dopatta and shirt of deceased lady were recovered from almirah lying in the room adjacent to the T.V. Lounge. Likewise an iron grill was recovered at the instance of Muhammad Rafique Kamboh. The parcels were sent for examination by Chemical Examiner who sent his report Exh.P/14. Another important feature of the case was that during investigation both the convicts were produced before A.C./Magistrate First Class, Quetta for recording of their confessional statements. On completion of investigation challan Exh.P/19 was sent to Sessions Judge,-Quetta for trial. However, case was transferred to the Judge Special Court for Speedy Trials, Balochistan at Quetta vide Notification, dated 17th of December, 1992. " As far as supplementary statement of a complainant is concerned its value is not more than a statement under section 161, Cr.P.C. , in this behalf reference may be made to the case of Falak Sher alias Sheru v. The State (1995 SCMR 1350). In this report appellant Falak Sher was not nominated in the F.I.R. However, subsequently complainant involved him by making supplementary statement deposing therein that the unidentified person was appellant who had earlier served with him for two years and was on visiting terms. Accordingly he was put to trial and was convicted by the trial Court and sentenced the accused to life imprisonment. In appeal the Federal Shariat Court maintained the conviction and sentence. As such appellant and two others filed petition before this Court. Leave was granted only to appellant Falak Sher whereas the same was refused to the co-accused. While evaluating the case of both the sides it has been laid down that F. I. R. is the document, which is entered into 154, Cr.P.C. book maintained at the police station at the complaint of the informant. It brings the law into motion. The police under section 156, Cr.P.C. start investigation of the case. Any statement or further statement of the first informant recorded during the investigation by. police would neither be equated with First Information Report nor read as part of it. Consequently it was held that as the name of appellant does not appear in the F.I.R., resultantly he was acquitted of the charge. The dictum laid down in this case has been followed by a Division Bench of Lahore High Court in the case of Anees-ur-Rehman and another v. The State (PLD 2002 Lahore 110). It may be noted that in this case a distinction has been made by making observation that F.I.R. is a document which is entered into a book maintained at the police station and thumb-marked or signed by the first informant while the supplementary statement is recorded under section 161, Cr.P.C. ano is not signed or thumb-marked. So is the position in the instant case as well because F.I.R. Exh.P/O was signed by P.W. Naveed Anwar Naveed as it is evident from the footnote of the F.I.R. Exh.P/O on which he put his signatures whereas he has not signed the supplementary statement Exh.D/B, therefore, its value will be determined keeping in view verdict of the case-law noted hereinabove.

14. With reference to above discussion there is yet another important area of the case which needs elaborate consideration i.e. after how much time front lodging F.I.R. Exh. P/O complainant Naveea Anwar Naveed got recorded supplementary statement Exh.D/B. This aspect of the case engaged our attention quite for some time during hearing because delay in recording supplementary statement would be an important factor which is likely to give rise to an inference that second version contained in it was introduced by the prosecution after deliberation and if it is so it will adversely affect the prosecution case. We failed to find satisfactory answer to our query from the record of the case because no time has been noted on the supplementary statement Exh.D/B by P.W. Muhammad Asadullah, Investigating Officer who recorded it. However, in his Court statement Investigating Officer deposed that shortly after recording the F.I.R. Exh.P.O the complainant got his supplementary statement Exh.D.B recorded but he did not disclose even approximate time of recording the same. So for complainant Naveed Anwar Naveed is concerned he in his Court statement stated that "I was so much confused and shocked that I felt that my eyes were blurred. Matloob Ahmad Waseem, Muhammad Saleem Butt and Muhammad Zubair consoled me and I stabilized myself after some time and then I left Muhammad Saleem and Muhammad Zubair to look after the dead body and went to the Police Station, Civil Line on the scooter of Matloob Ahmad Wasim, driven by him. I was not fully within myself even at that time and narrated the occurrence as much as I could under the given condition, and the Inspector recorded my report, got my signatures. The report is Exh. P/O, and the report was read over to me after my signature and I immediately pointed out that under great stress and strain and mental shock I had erroneously mentioned the murderers as the P.Ws. and had omitted to mention the names of other P.Ws. namely Muhammad Saleem Butt. and Muhammad Zubair. There and then my supplementary statement was recorded". This vital portion of the statement of the complainant also has not helped us to ascertain the time of recording his supplementary statement. It may be noted that for changing his version from F.I.R. Exh.P.O to the version incorporated in supplementary statement Exh.D/B the complainant had claimed allowance oft account of his disturbed mental condition but without proving medically through expert evidence, therefore, it .would be dangerous and against the interest of justice to accept his explanation without legal proof.

15. Learned counsel for appellants argued that P.W. Muhammad Asadullah had started investigation of the case believing FA.R. Exh.P.O to be true version of the case but subsequently having failed to persuade the appellants to nominate and identify some one else as accused for the commission of the offence, My have been involved in the case with ulterior motives on the basis of supplementary statement which was recorded by the complainant much after happening of incident. To substantiate his plea he stated that after recording F.I.R. Exh.P.O.,P.W. Muhammad Asadullah Investigating Officer left for the place of occurrence and on completing spot investigation prepared the inquest report mentioning therein the facts as disclosed by the complainant in the F.I.R. and dispatched the same to medical officer and subsequently added in inquest report a last line in a small gap that supplementary statement is also appended therewith. Whereas complainant Naveed Anwar Naveed vehemently opposed his assertion and he contended that supplementary statement was appended with inquest report Exh.PN by 4 the Investigating Officer before dispatching the dead body alongwith requisite form to the medical officer.

16. According to section 174, Cr.P.C. read with Rule 25.35(1) of the Police Rules the inquest report is prepared when the investigation has been completed. A perusal of inquest report Exh.P/N suggests that brief history of the case as per the contents of F.I.R. Exh. P/O was noted and nothing from the substance of supplementary. statement Exh.D/B was mentioned therein except at its end that supplementary statement is. Also appended therewith. P.W. Dr. Farrukh Hussain Mirza who performed post-mortem on the dead body on having gone through the brief history of the case had drawn blank lines against every written line of the history perhaps to ensure that no addition or deletion is made subsequently. Similarly left over small blank portions of the report were also scored out by him but the sentence about appending the supplementary .statement was inserted in a small gap. In this behalf P.W. Dr Farrukh Hussain Mirza stated "that I had drawn lines on the blank spaces. The lines around the report and in blank marginal spaces are in my hand. I did so, so that nothing could be inserted into writing". We have observed that wordings regarding appending supplementary statement has been inserted by using different ink but it may be in the same handwriting.

17. Learned counsel for appellants contended that post-mortem was conducted on 10-2-1993 and after obtaining information from the hospital regarding the nature of the injuries the supplementary statement of complainant Naveed Anwar Naveed under section 161, Cr.P.C. and the statements of two other eye-witnesses were prepared, therefore, as per his contention supplementary statement was recorded after deliberations. Complainant Naveed Anwar Naveed controverted the arguments. of the learned counsel and stated that as per instructions issued by Government of Punjab, Health Department performance of post-mortem examination was not possible during night time, therefore, P.W. Dr. Farrukh Hussain Mirza conducted post-mortem examination on the next day i.e. 10-2-1993.

18. We have examined the instructions, dated 27th October, 1990 but we failed to find out anything therefrom supporting his argument. Contrary to it the Medical Officers have not been restrained to conduct post-mortem examination at evening time if the "shadow less ice blue lights" are available for correct interpretation of nature of injuries and even if such light is not available the medical examination if need be conducted expeditiously with the permission of the District Magistrate concerned. It could be seen that case pertains to Gujranwala and post mortem examination was conducted in District Headquarter Hospital, therefore, presumption would be that "shadow less ice blue lights' would be available in the hospital. Argument so advanced by appellants' counsel seems to be convincing for the reason that, P.W. Manzoor Hussain Constable stated that on 9th February 1993 he escorted the dead body of a lady from the place of occurrence to mortuary at Civil Hospital, Gujranwala for post-mortem examination. On the following day the post-mortem was conducted on the dead body by the Medical Officer. He further . deposed that at 5-30 p.m. he escorted the dead body from the place of occurrence to the mortuary. He did not take any document with him to the mortuary. it means that P.W. Muhammad Asadullah who arrived at the place of occurrence consumed 2/3 hours over there but did not prepare inquest report at the spot, therefore, the dead body was dispatched to the hospital without documents and inquest report Exh.P/N, and Injury Report bearing date 10-2-1993 were probably handed over to Medical Officer on next day. Thus inference would be that post-mortem examination was got delayed intentionally and after receipt of medical report of the even date i.e. 10th February, 1993 supplementary statement of P.W. (complainant) Naveed Anwar Naveed under section 161, Cr.P.C. was .recorded wherein besides making substantial Changes qua F.I.R. the seats of the injuries were also-noted which coincide with medical evidence Exh. P.M. In this very context the version-of the prosecution that P.W. Naveed Anwar Naveed got recorded his statement immediately he himself admitted the P.W. Matloob Ahmad Waseem, Muhammad Saleem Butt (not produced) and Muhammad Zubair consoled him and on stabilizing himself after some time he went to the police station for lodging the report. In view of this admission it is not possible to accept his version that at the time of dictating F.I.R. Exh. P/O he was confused and could not record his statement correctly. There is nothing on record to substantiate the version of the complainant that on account of his mental distress, agony and confusion he failed to narrate correct story to the investigating agency except his own version as observed hereinabove. Actually occurrence of such shocking sensational incident does have its reflection on the mental status of the sufferer but it does not mean that he also loses mental balance. However, such things are relatable to the behaviour of a person but the facts and circumstances of the instant case, as observed hereinabove indicate that after completion of recording F.I.R. Exh.P.O P.W. Naveed Anwar Naveed put his signatures on the same testifying that whatever has been written therein was correct. It is interesting to note that no request was made to any quarter subsequently by him for cancellation of the F.I.R. and substituting it with supplementary statement. Thus we feel no hesitation in observing that "man may lie, but the circumstances do not" has once again proved its efficacy as in this case as well circumstances have proved that the supplementary statement Exh. DB was recorded by the complainant with deliberation much after recording of F.I.R. Exh.P.O. On the basis of such conclusions it is to be observed that P.W. Naveed Anwar Naveed had not supported the prosecution ,version contained in F.I.R. Exh.P.0 nor any of the eye-witnesses particularly P.W. Matloob Ahmad Waseem supported the prosecution in this behalf though he was present with P.W. Naveed Anwar Naveed when he got recorded F.I.R. as per the contents of its footnote, which has been reproduced hereinabove. Undoubtedly they gave evidence as per the case set up by the complainant in the supplementary statement Exh.D/B. As it has been observed hereinabove that the value of this document is not more than a statement of a witness under section 161, Cr.P.C. and object of recording of such statement is nothing but to use it for the purpose of proving contradictions between the statement of the witness given by him in the Court and the previous statement as per the provisions of section 162, Cr.P.C. However, in view of the facts and circumstances of the instant case the contents of F.I.R. Exh.P.O being a previous statement of P.W. Naveed Anwar Naveed can be compared with the statement recorded by him on oath in the Court. Admittedly both these statements disclose two different versions particularly on the points or "nomination of the accused persons, the names of the witnesses as well as injuries sustained by Mst. Ghazala Naveed on her body during the commission of the offence. Therefore, legally no reliance can be places on supplementary statement Exh,.D/B. Undoubtedly F.I.R. and Court statement of P.W. Naveed Anwar. Naveed both have introduced two versions as has been noted above. In such-like situation the question would be as to which version of the prosecution is to be accepted. In this behalf it may be observed that according to administration of criminal justice a- witness who makes glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of the F.I.R. if he is complainant or if he is a witness and his statement is recorded under section 161, Cr.P.C. such witness is to be considered to be wholly unreliable witness and it is not advisable to place explicit reliance upon his evidence. It has been noticed that there are glaring contradictions in the contents of F.I.R. Exh.P.O and the statement of P.W. Naveed Anwar Naveed out of which portion of F.I.R. marked as:-- were got proved by P.W. Asadullah, Investigating Officer who in cross examination deposed that contents of F.I.R. including (A to A), (B to B) and (C to C) were correctly recorded and nothing was omitted or added by him.` In these portions of the statement the complainant had attributed murder of Ghazala Naveed to unknown persons, which would mean that commission of offence was done by two unknown persons as they were seen running after the deceased lady having dagger and Churri in their hands respectively and the complainant would be in a position to identify them if they were brought before him as per the contents of F.I.R. from his evidence it stands established that at the time of incident P.W. Muhammad. Zubair and Muhammad Saleem Butt (not produced) were not present at the place of occurrence and complainant posted both the appellants for protection of dead body and he himself went to the police station on the scooter of Matloob Ahmad Waseem for lodging report. By proving these important aspects of the case through the prosecution witnesses defence has succeeded in establishing . that by making improvements in the earlier. statement as per F.I.R. Exh. P.O and the Court statement of the complainant the appellants have been shown falsely to be the accused responsible for commission of the offence and if there be no improvement in the Court statement of the complainant then unknown persons would be responsible for the commission of offence. Besides it, this improvement also proves that Matloob Ahmad Waseem and two other witnesses P.W. Muhammad Zubair and Muhammad Saleem Butt, (not produced) were introduced after deliberations with the object of involving the appellants falsely in the case.

19. We have already noted that in the absence of any medical/expert evidence on record the version of P.W. Naveed Anwar Naveed contained in Court statement as well as supplementary statement Exh.D/B i.e. on account of mental stress, agony as well as physical pressure, annoyance and due to unbearable shock etc. he could not make correct statement in F.I.R. Exh.P.O. is not acceptable. It is interesting to note that P.W. Muhammad Asadullah, Investigating Officer in his examination-in-chief did not say a single word of favour of the complainant relating to his mental condition at the time of recording of F.I.R. nor he made reference in examination-in-chief about recording of supplementary statement of the complainant P.W. Naveed Anwar Naveed. It is to be noted that P.W. Muhammad Asadullah for all intent and purpose supported the contents of F.I.R. Exh. P.O. Reference at this stage to the statement of Matloob Ahmad Waseem would also be relevant to further elaborate whether complainant Naveed Anwar Naveed could not make correct statement contained in F.I.R. Exh.P.O on account of his disturbed mental condition. It is to be noted that this witness who is very close to complainant allegedly did not opt to remain with him in police station when F.I.R. was being recorded by him as per his Court version where he deposed `that after dropping Naveed Anwar Naveed he went to Public Call Office to inform the. relatives of Naveed Anwar Naveed about this incident and when he came back to police station he accompanied Naveed Anwar Naveed and police officials to the place of occurrence" whereas contents of F.I.R. as per its footnote the Witness was very much present when P. W. Naveed Anwar Naveed after admitting the contents of F.I.R. to be correct signed it which means that his statement of not being present at the time of recording F.I.R. with the complainant is incorrect. Therefore, inference would be that if P.W. Naveed Anwar Naveed got recorded anything which was contrary to facts he would have got corrected the same then and there including nomination of accused persons and eye-witnesses but non-interference by him while recording F.I.R. would mean that initially complainant got recorded correct facts therein. It is to be noted that the prosecution has to build up its case on the strength of evidence of P.W. Naveed Anwar Naveed but if his own statement is totally rejected then the prosecution cannot secure conviction on the basis of other evidence because the remaining prosecution witnesses are supposed to provide support to the statement of complainant. Thus, it is proved beyond any doubt that P.W. Naveed Anwar Naveed had failed. to furnish trustworthy, confidence-inspiring and consistent evidence to establish accusation against the appellants.

20. In line the next important evidence of P.W. Matloob Ahmad Waseem. His presence at the place of occurrence is not disputed by both the sides. However, the appellant's claim is that he is the witness of the incident as per the contents of F.I.R. Exh.P.O whereas prosecution's claim is that he is the witness of the incident as per the contents of the supplementary statement Exh.D/B. On account of such serious controversy in the stand of both the sides it would be appropriate to ascertain as to out of two manners of incident which one has been. seen by him. As far as P:W. Naveed Anwar Naveed is concerned he has stated in F.I.R. Exh.P.O that when he reached his house alongwith P.W Matloob Ahmad Waseem he saw that appellant Moulana Khalid Javed Noorani and Aleem Ahmad Electricians were busy on the main outer gate of the house in installing door intercom and call bell and in their presence complainant knocked at the door of the house and on hearing shrieks he alongwith appellants and P.W. Matloob Ahmad Waseem climbed over the gate and jumped in the courtyard from where all of them witnessed the incident of causing injuries by two unknown persons on the person of Ghazala Naveed. It is to be noted that after the unfortunate incident P.W. Matloob Ahmad Waseem accompanied P.W. Naveed Anwar Naveed to police station for lodging report leaving behind the appellants for protection of the dead body. As it has been stated hereinabove that P.W. Muhammad Asadullah Khan, Investigating Officer in his statement on oath before the Court has admitted that he correctly recorded the note regarding police proceedings D to D/1 over leaf F.I.R. Exh. P.O (the note has been reproduced hereinabove in para 10). A perusal of which reveals that F.I.R. Exh. P.O was recorded in presence of P.W. Matloob Ahmad Waseem as it has also been noted above meaning thereby that the contents of F.I.R. were read over to Naveed Anwar Naveed in his presence and latter put his signatures on it verifying its correctness. P.W. Muhammad Asadullah Khan, Investigating Officer though had stated that P.W. Matloob Ahmad Waseem had soon left the police station but he further clarified in unequivocal terms "the fact of the matter is that he came and we recorded the F.I.R. and he left the police station. Thus there is no doubt to conclude that F.I.R. Exh.P.O was recorded in presence of P.W. Matloob Ahmad Waseem, as such inference would be that till, recording of F.I.R. he also supported the version of prosecution which has been incorporated in F.I.R. Exh. P.O correctly by P.W. Muhammad Asadullah, Investigating Officer As such it is impossible to accept the explanation of P.W. Matloob Ahmad Waseem that F.I.R. Was not recorded in his presence because after dropping Naveed Anwar Naveed. in police station he went to Public Call Office to inform the relatives of Naveed Anwar Naveed about this incident. The theory of absenting himself from the police station obviously has been introduced by him to support the changed stance of Naveed Anwar Naveed as per supplementary statement Exh.D./B but without. realizing that his presence at the time of recording of F.I.R. has been marked in the column of police proceedings by P.W. Muhammad Asadullah Khan, Investigating Officer. In this context it may also be noted that the Court statement of P.W. Matloob Ahmad Waseem relating to injuries sustained by deceased Ghazala Naveed corresponds to post-mortem report Exh, PM/ 1 and injury report appended therewith which would mean that he also got recorded his statement either on 10th February,, 1993 when post-mortem was conducted or later on. It is also to be kept in mind that P.W. Matloob Ahmad Waseem was a nominated witness in F.I.R., therefore, if he would have supported the version of the prosecution case put up in F.I.R. Exh.P.O essentially evidence furnished by him would have been acceptable because as per the contents of F.I.R. he remained present with the complainant throughout the period during which occurrence took place, therefore, presumption would be that he had seen the incident as it is reported in F.I.R. but he had not supported the prosecution case set up in the F.I.R. Exh.P.O rendering his evidence doubtful. Therefore, it is held that P.W. Matloob Ahmad Waseem gave false evidence in the Court to falsely involve the appellants in the commission of the offence.

21. Now taking up the evidence. furnished by P.W. Muhammad Zubair it is to be, observed that in promptly lodged F.I.R. by P.W. Naveed Anwar Naveed his name was not mentioned and he was introduced to be the witness of the incident in the supplementary statement Exh.D/B. It is settled proposition of law that a statement of witness whose name is not mentioned in the F.I.R. instead of rejecting the same it should be taken into consideration carefully and efforts should be made to seek corroboration to such statement from independent sources because every witness whose name does not find mention in F.I.R. necessarily is not a false. witness, therefore, he cannot be discredited for this reason alone nevertheless when F.I.R. is lodged by a complainant who himself is not an eye-witness there is every possibility to omit the name of eye-witnesses when F.I.R. was lodged but when a complainant himself is eye-witness he is supposed to disclose the names of those persons who have seen the incident. In the case in hand P.W. Naveed Anwar Naveed himself being an eye-witness in F.I.R. Exh.P.O has nominated only the appellants and P.W. Matloob Ahmad Waseem to be the witnesses of the incident but when at a subsequent stage he made supplementary statement Exh.D/B he has introduced two other eye witnesses besides P.W. Matloob Ahmad Waseem namely P.W. Muhammad Zubair and Muhammad Saleem Butt (not produced). As in the paras. supra explanation offered by P.W. Naveed Anwar Naveed for changing his stand from his version contained in F.I.R. Exh.P.O to his version mentioned in supplementary statement Exh. D/B has not been approved, therefore, presence of P.W. Muhammad Zubair at the place of incident is difficult to accept. However, independent examination of his evidence as well reveals that he was not present at the time when incident took place; otherwise there was no hurdle in the way of the complainant to disclose his name in F.I.R. Assuming for sake of arguments that P.W. Naveed Anwar Naveed omitted to mention his name in F.I.R. but P.W. Matloob Ahmad Waseem who was accompanying him and admittedly in whose presence F.I.R. was recorded he should have pointed out to the complainant for mentioning his name to the Investigating Officer. Perusal of the cross-examination- of P.W. Muhammad Zubair indicates that he was also persuaded to give evidence to support the prosecution version contained in supplementary statement Exh.D/B by P.W. Matloob Ahmad Waseem because both of them know each other as they are running joint business of garments/hosiery and mutually they supply garments to each other. It may be observed that if P.W. Muhammad Zubair were in fact present at the spot when incident took place he being a wrestler was quite capable to overpower the accused persons either individually or collectively with the help of complainant Naveed Anwar Naveed, Matloob Ahmad Waseem and Saleem Butt but non-interference by him in the incident persuades us to draw adverse inference i.e. he was not present at the spot when incident took place. Besides it P.W. Muhammad Zubair seems to be a chance witness because as per his own version he is resident of a place situated at a distance of 1 and 1-1/4 miles away from the residence of Naveed Anwar Naveed and on the day of incident he had no occasion or reason to visit the house of Naveed Anwar Naveed. Therefore, considering him to be a chance witness his evidence would be acceptable subject to establishing his presence at the place of incident as held in the case of h Javed Ahmad alias Jaida v. The State (1978 SCMR 114) that when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passerby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation for their presence at or near the spot at the relevant time. This view has been reiterated in the cases of Muhammad Ahmad and another v. The State and others (1997 SCMR 89) and Imran Ashraf and 7 others v. The State ( 2001 SCMR 424). On having read the statement of P. W. Muhammad Zubair we fail to find any explanation to show his presence at the place of incident at a particular moment when P.W. Naveed Anwar Naveed and Matloob Ahmad Waseem heard shrieks from inside the house of former. Similarly no independent corroboration is available on record to believe his evidence in view of the fact that the evidence of P.W. Naveed Anwar Naveed and Matloob Ahmad Waseem has already been discarded, therefore, in view of principle that a tainted piece of evidence cannot furnish corroboration to another piece of tainted evidence as it has been held in Ali Akhtar Hussain v. The State (1972 SCMR 40) and Muhammad Ilyas and another v. The State (1993 SCMR 1602). His statement is also-rejected.

22. Now we are left with the statements of two other important witnesses namely P.W. Abdul Ghafoor and Khalid Pervaiz. They are Wajtakar type of witnesses as bath of them are residents of different Mohallas situated at a distance of about 1-1/2 miles and 3 miles respectively from the place of occurrence. Former is tonga driver whereas the latter is a painter. Allegedly these two witnesses alongwith 4 other persons namely Muhammad Saeed, Muhammad Tuhsil, Muhammad Tahir and Khawaja Muhammad Zakir (not produced) had seen the appellants while jumping over the small wall of the servant quarter of house of complainant Naveed Anwar Naveed. According to them appellant Khalid Javed had a Churri in his hand whereas Aleem Ahmad was armed with a dagger respectively. To appreciate their evidence it is to be noted that as per site plan Exh.PA on the back side c)f the bungalow of the complainant a servant quarter is situated with a door opening in the close-ended street on side of which 4 feet high Wall is situated. Position of P.W. Abdul Ghafoor and Khalid Pervaiz has been shown at Points Nos. O&P in the site plan whereas remaining witnesses i.e. Muhammad Saeed and three others were shown to be present at the . position M, N, Q & R in the main street. It is to be seen that allegedly appellants made their escape good in front of these persons and allegedly at that time the clothes of both of them were stained with blood and they were also having blood-stained weapons in their hands but no. one amongst these persons stopped them although. they were in a position to make their escape difficult but instead of reacting naturally they allowed them to run away in their presence and in this behalf no explanation has been offered by them. Thus in the absence of any explanation it is hard to believe their presence at the positions shown in the site plan. Perusal of examination-in-chief of P.W. Abdul Ghafoor reveals that he being a tonga driver had gone to Gil Road. Gali Deepu Wali, for the purpose of dropping the passengers but in the site plan no tonga has been shown. This witness also deposed that he called the accused persons but they managed to escape after scaling over another short wall. Thereafter he came to know that they had murdered the wife of Naveed Anwar Naveed, Advocate. In cross-examination he deposed that when they reached the house of Naveed Anwar P.W he was also present there alongwith 2/3 other persons. They said that Khalid Javed and A]eem Ahmad (appellants) had murdered the wife of Naveed Anwar Naveed when the witnesses readily replied that the accused had crossed them shortly ago. The witness had not deposed about presence of Muhammad Saeed, Muhammad Tufail, Muhammad Tahir and Khawaja Muhammad Zakir nor he had stated whether on having seen the accused persons running from the scene of incident they had made any effort to catch hold of them. He also failed to give explanation as to who had informed him that these two persons were running after committing the murder of wife of Naveed Anwar Naveed and on whose pointation he alongwith other witnesses went to the house of Naveed Anwar Naveed on the main gate situated on the opposite side of the street when allegedly he had seen them running in small street. It is also noteworthy that according to him Zahid Peraiz, Advocate is known to him being the councillor of the area but he stated that he was not present in the house of the complainant on the day of incident whereas perusal of inquest report indicates that he was shown to be witness in this document. Therefore, on basis of these discrepancies in his statement his presence in the street where allegedly he saw accused persons running away after commission of offence seems to be doubtful.

23. As far as P.W. Khalid Pervaiz is concerned he has also not disclosed as to why was he present in the street at the time when the appellants allegedly made their scape good because he is resident a Mohalla of 3 miles away from the place of incident. This witness had also not mentioned about the presence of other witnesses namely Muhammad Saeed etc. in the street when the appellants were making their escape good. It is common knowledge that the Wajtakar type of witnesses are always treated to be chance witnesses. Their evidence be accepted if they can establish their presence at the place of incident but in absence of such explanation the prosecution is bound to place on record some strong evidence to corroborate their statements. In the case of Sikandar v. The State (PLD 1963 SC 17) it has been ruled that evidence of Wajtakar type of witnesses can be doubted on number of reasons including his own residence and acquaintance of the witnesses with the accused. Likewise in the case of Javed Ahmad alias Jaida v. The State (1978 SCMR 114) it has been held that "when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passerby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation for their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness or contradiction in their testimony. In addition to if the version of P.Ws. Abdul Ghafoor and Khalid Pervaiz is accepted to be correct then it goes against the record because had they been present in the house of Naveed Anwar Naveed immediately after the commission of offence they must have met Naveed Anwar Naveed at the place of occurrence and consequently they would also have supported the contents of F.I.R. in which the complainant himself stated that unknown persons had committed the murder of Mst. Ghazala Naveed and on the basis of same theory he lodged F.I.R. but later on he changed his stance and attributed commission of murder to the appellants. It would mean that immediately after the commission of the offence they were not present at the place of incident and they were introduced subsequently when complainant Naveed Anwar Naveed got his supplementary statement recorded in which he charged the appellants for the commission of the offence, therefore, following the law laid down in the judgments noted hereinabove as well as judgment in the case Zafar Hayat v. The State (1995 SCMR 896) wherein it has been held that when no corroborative evidence is available to support the version of a chance witness it has to be excluded from consideration. Thus evidence furnished by these two witnesses is rejected being wholly unreliable.

24. At this stage reference to the statement of Zulfiqar Ali clerk of P.W. Naveed Anwar Naveed, Advocate, needs to be considered because through this witness efforts have been made to prove that unfortunate lady Mst. Ghazala Naveed on the said day at about 11-30 a.m. wanted to contact complainant to inform him that appellants had come to install the intercom sets and there being two sets available in the house which one were to be installed but she could not talk to her husband because according to the version of the witness he was busy in the meeting in the Bar Room, therefore, the witness told her that Naveed Anwar Naveed would be coming at 12-30 p.m. when he will convey her message to him. The witness further stated that on this she decided to get first of all installed electric bell by the appellants and put off the remaining work till she could establish contact with her husband. So far appellants are concerned their case during the trial had been that on the day of incident Naveed Anwar Naveed called them in his chamber from where he took the appellants and Matloob Ahmad Waseem to his house in a taxi for electricity repair and they remained strict to their version in their statements under section 342, Cr.P.C. as well. Thus in order to make both the appellants present at the house of complainant in absence of P.W. Naveed Anwar Naveed this witness i.e. P.W. Zulfiquar Ali was introduced. He is clerk of the complainant but his name was not mentioned in F.I.R. and if for the sake of argument it is presumed that Mst. Ghazala Naveed attempted to contact Naveed Anwar Naveed complainant on telephone to inform him that appellants had reported at his house for installing intercom and door bell he must have disclosed this fact in the F.I.R. Besides it, P.W. Zulfiqar Ali has stated before the Court the outcome of conversation took place between him and deceased, therefore, corroboration was necessary to prove the version of witness by producing more authentic evidence if not direot at least circumstantial evidence i.e. two sets of intercom or any other person seeing them entering in .house of complainant in his absence etc. Above all in the supplementary statement Exh.D/B the name of the witness has been introduced for the first time without offering any explanation as to why his name was not disclosed in the F.I.R. to prove that his deceased wife had informed Zulfiqar Ali about the arrival of both the appellants at her house. Therefore, for these reasons we are of the considered opinion that this witness was equally introduced subsequently in order to complete the chain of events arising out of supplementary statement Exh.D/B. Thus it would not be safe to rely upon his statement for the purpose of drawing inference that both the appellants had reported at the house of Naveed Anwar Naveed in his absence at 11-30 a.m. at a time when his wife Mst. Ghazala Naveed was alone in the house.

25. Prosecution has also produced evidence of incriminating articles to connect appellants with the commission of offence i.e. recovery of crime weapons namely Churri and dagger as well as blood-stained clothes. According to report of Chemical Analyzer Exh.P/U the clothes were found to be stained with human blood. It is to be noted that prosecution has failed to bring on record evidence whether these articles were stained with blood but it failed to bring on record evidence whether these articles were stained with blood which matches with blood group of deceased Ghazala Naveed.

26. In this behalf it is to be noted that it is the prosecution version that on 21st February, 1993 both the appellants were arrested- and on 28-2-1993 Khalid Javed vide recovery memo. Exh.PK got recovered blood-stained Churri Article P-19 from his shop situated at Garjakh known as King Decoration. On the same day the accused at the time of pointation of Churri also produced his blood-stained clothes i.e. Shalwar, article P-20 and shirt P-21 vide Exh.P/L. Whereas on 3rd March, 1993 appellant Aleem Ahmad got effected recovery of blood-stained dagger Article P7 from his residential house and subsequently he got recovered his blood-stained clothes, shirt P-8 and Shalwar P-9 vide recovery memos. Exh.PF and Exh.PG respectively. Although the date of arrest of both the appellants has remained under serious criticism by the defence because it is appellants' version that they were arrested in this case on 12th February, 1993 whereas prosecution case is that they were arrested on 21-2-1993. Be that as it may this question will be considered later on. However, fact remains that the recoveries of these incriminating articles were effected from Khalid Javed and Aleem Ahmad after 7/11 days respectively from the date of their arrest. It is to be noted that presence of blood stains on the clothes of appellants was not disputed by them because their explanation is that while shifting the dead body of Ghazala Naveed to the Ambulance their clothes got blood-stained. Therefore, question would be as to whether the recovery of blood-stained clothes after considerable delay of their arrest without matching the group of blood of deceased with the blood available on their clothes in view of the facts and circumstances of the case would be appropriate to place explicit reliance upon the same. In this context reference to the statement of recovery witness P.W. Sahibzada Muhammad Saleem may be made because through him recovery of Churri Article P-19 and the recovery of blood-stained clothes was effected from appellant Khalid Javed. This witness is maternal uncle of P.W. Naveed Anwar Naveed. He remained associated with investigation of the ,case from very beginning. As per record on the day of incident incriminating articles, tools including grinding machine, Grinder machine etc. were recovered in his presence and he stood witness for the same and again after about 18 days from the date of incident he visited the police station alongwith Khalid son of Lal Din P.W. He alleges that in his presence appellant Khalid Javed disclosed that he had kept the Churri with him and could lead to the recovery of the same. He also offered to lead to the recovery of blood stained clothes. According to him the appellant in custody of police led to the recovery of blood-stained Churri Article P-19 from his shop King Decorations, Garjakh Road, Gujranwala near Crown Cinema, Gujranwala. Churri was taken into possession vide Exh.PK which was attested by him and Muhammad Khalid P.W. On the same day after about 15 minutes appellant Khalid Javed led to the recovery of his own blood-stained clothes from his shop. These articles were also taken into possession vide recovery memo. Exh.PL. In cross-examination he admitted that the place of recovery is one mile away from his house. Likewise P,W. Muhammad Saeed deposed that about 1-3/4 years ago he alongwith Muhammad Asghar son of Ghulam Muhammad had gone to Police Station Civil Lines, Gujranwala to make a report about the loss of passport of Muhammad Asghar and when they were coming out they saw that Aleem Ahmad accused was saying to the S. H. O./Investigating Officer that he would lead to the recovery of dagger blood-stained, the weapon of offence. The accused while on his way disclosed that he would lead to she recovery of his blood-stained clothes, which he was wearing at the time of occurrence, which he had concealed in his house. After reaching the house the accused first led to the recovery of dagger blood-stained Article P7 lying in the box. He first took out the key from the "Alla" and opened the lock of the box and then took out the dagger P-7. The 1.0: sealed the recovered weapon of offence into a parcel and took the same into possession vide recovery memo. Exh.PF which was signed by him as well as Muhammad Asghar. Then accused got recovered blood-stained Qameez P.8 and Shalwar P.9 vide recovery memo. Exh.PG signed by him. This witness in cross-examination denied that he is a professional witness being produced in murder cases. However, he admitted "it is correct that I happened to appear as P.W. in a murder case in Lahore in which the in-laws of my friend were murdered". The house of this witness is situated at a distance of about quarter to two miles from the house of accused. According to him it took 2-1/2 hours for the recovery at the pointation of Aleem Ahmad. From the perusal of statements of these witnesses it is clear that they are interested witnesses. As far as Sahibzada Muhammad Saleem is concerned he remained associated with the investigation of the case from the very beginning being maternal uncle of complainant Naveed Anwar Naveed but he resides in a different Mohalla at a considerable distance from the place of recoveries. So is the position of other witness P.W. Muhammad Saeed, therefore, under these circumstances the question for consideration would be as to whether before effecting recoveries any disclosure memo. was prepared by the police, answer to it is in negative. Besides it recoveries were effected by the police in violation of section 103, Cr.P.C. which lay an obligation upon the police officer to call two or more inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them so to do. Non-adherence to the provisions of section 103, Cr.P.C. at time proves fatal and due to this reason it is insisted that in the peculiar circumstances of the case prosecution must associate with it respectable inhabitants of the area before effecting recoveries. In addition to this in absence of disclosure memo. it is not possible to hold that both the appellants effected the recoveries of incriminating articles voluntarily. Besides it prosecution itself has not claimed exemption for non-compliance of section 103, Cr.P.C. because it has associated with it civilian persons the time of the recovery but those persons were not inhabitants of the area. Moreover they were highly interested in the prosecution case as one of them is a stock witness i.e. Muhammad Saeed. Therefore, we are of the considered opinion that in truer to exclude the element of false recovery of incriminating articles from the possession of appellants prosecution should have complied with the provisions of section 103, Cr.P.C. particularly keeping in view the peculiar circumstances of the case according to which appellants were not nominated as accused in F.I.R. Exh. P/O but subsequently by means of supplementary statement Exh.D/B they have been involved in the commission of the offence. Reference in this behalf may be made to the case of Zakir Khan and others v. The State (1995 SCMR 1793) wherein it has been held that "the object behind section 103, Cr.P.C. appears to be to ensure that independent witnesses are associated with investigation of a case and possibility of concocted evidence is ruled out.

27. There is yet another important aspect of the case i.e. whether the recovery of incriminating Articles i.e. Churri Article P-19 and dagger Article P-7 is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984. As per this Article when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. This Article corresponds to section 27 of repealed Evidence Act, 1872 which has been interpreted in various judgments including the one reported in the case of The State through the Advocate-General, Province of Balochistan, Quetta v. Jamil Iqbal (PLD 1974 Quetta 28) wherein it has been held that a statement of an accused before the police is admissible if an accused person states that a weapon of offence is lying at a particular place and he produces the same, that portion will be admissible but if he states that the weapon with which. he killed the deceased will be produced by him, such statement will be inadmissible. In instant case perusal of Exh. PF and Exh. PK pertaining to the recoveries of dagger and Churri from the possession of Khalid Javed and Aleem Ahmad respectively indicates that the police had effected the recoveries of both these incriminating articles in presence of witnesses as it has been incorporated in these memos. that with these weapons they had committed the murder of Mst. Ghazala Naveed, therefore, to this extent the statement so recorded in the recovery memos. is inadmissible. Thus its result would be that on discarding the said portion of the R statement incorporated in the recovery memos. the prosecution is left only with the recoveries of dagger and Churri Article P.7 and P-19 and now the burden is upon it to prove through other evidence that these articles being crime weapons were used for the murder of deceased. This could not be done without matching the stains of blood allegedly available on these articles. One may pose a question to himself as to that how would it be possible for the prosecution to match the blood group of deceased with the blood available on these articles because these articles were recovered on 28-2-1993 and 3-3-1993 respectively from appellants whereas deceased was buried on 10th February, 1993. The answer to this query is that at the time of post-mortem the concerned doctor should have got determined her blood group from Chemical Analyser for future use during investigation and trial of the case. Such practice can be adopted invariably in all the criminal cases. Under these circumstances position would be the same with regard to the blood-stained clothes recovered from the possession of the appellants. Even otherwise it is most probable to conceive that an accused person who is allegedly involved for commission of capital charge he would try to destroy the crime weapon at the first available opportunity instead of keeping the same into safe custody for a long period so that police after arrest may use the same as evidence against him. Similar is the position with regard to blood-stained clothes allegedly recovered from the possession of appellants. Although appellants have not disputed the fact that their clothes were blood-stained when they were shifting the dead body of Ghazala Naveed into the ambulance after the commission of the offence but it is yet to be proved by the prosecution that these are the same clothes which were stained with her blood. Be that as it may in absence of the evidence that the blood-stained clothes matched with the blood group of deceased Ghazala Naveed it would not be in the interest of justice to connect the appellants with the commission of the offence.

28. Next piece of evidence in line is confessional statement of appellant Aleem Ahmad who was produced on 7th March, 1993 before P.W.9 Malik Masood Ahmad, Magistrate for recording his confessional statement. According to prosecution he got recorded true and voluntary confessional statement Exh.PE. A perusal whereof indicates that on 13th/14th day of his arrest his confessional statement was recorded by the witness whereas the case of defence is that he alongwith Khalid Javed was in custody from 12th February, 1993. Learned counsel appearing for appellant Aleem Ahmad demonstrated his plea on the strength of argument that a Writ Petition being No.118-H of 1993 was filed before Lahore High Court, Lahore and in pursuance of the order of the High Court both the appellants were produced on 23rd February, 1993 and Police informed that they were arrested on 21-2-1993. The learned High Court issued directions for subjecting them to the medical examination as a result whereof they were subjected to medical test on 23-2-1993 which proved that appellants Khalid Javed and Aleem Ahmad were found to have been tortured. According to him on the person of Khalid Javed there were about eight injuries with blunt weapon whereas on the person of Aleem Ahmad the number of injuries was less. However, doctor disclosed probable duration of injuries to be 9 to 12 days. As such according to him the confessional statement of appellant Aleem Ahmad after detaining him in custody for about 23 days is inadmissible during which he was subjected to torture. He further stated that to prove the injuries on the person of Aleem Ahmad Dr. Ehasn Ellahi was also produced in defence. Mr. Naveed Anwar Naveed complainant stated that Aleem Ahmad convict/appellant got recorded true, voluntary and inculpatory confession within the period of 14 days of his arrest. The contention of his counsel about torturing him during police custody is unfounded because according to statement of D.W. 1 Dr. Ehsan Ellahi the injuries on his person were due to fall from motorbike, therefore, the confessional statement of appellant Aleem Ahmad has furnished evidence against him to establish the guilt accordingly.

29. Perusal of confessional statement of Exh.PE of appellant Aleem Ahmad suggests that it is inculpatory in its nature. He had not only involved himself but had also involved co-accused Khalid Javed in the commission of the offence. However, apart from the question of admissibility of the confessional statement against the co-accused there is yet another important question namely as to whether the confessional statement is the result of torture by the investigating agency upon convict Aleem Ahmad or otherwise. In this behalf it may be noted that during the cross-examination of P.W. Malik Masood Ahmad, Magistrate it was suggested that appellant Aleem Ahmad had not given a statement that he had only thumb-marked the statement, which was already prepared by the witness, but the suggestion was vehemently denied by the witness. It was also pointed out to the witness that the accused had challenged the recording to confessional statement in the Lahore High Court, Lahore but the witness stated that he had no knowledge about it. In the statement under section 342, Cr.P.C. the appellant stated that his confessional statement was obtained under coercion and in this respect he moved the Lahore High Court and while answering the question i.e. "Do you want to say anything else"? he submitted certified copy of Writ Petition No.2995 of 1993 Exh.DC and the order of the High Court as Exh.DC/1 alongwith copy of Criminal Miscellaneous No 118-H of 1993 (Exh.DD) and order Exh.DD/1. A perusal of memorandum of writ petition Exh.DC indicates that appellant prayed that confessional statement may kindly be declared illegal, and void, ab initio, ultra vires, without lawful authority and the same be treated as non-existent on the record of the case F.I.R. No.40 of 1993, dated 9-2-1993 under section 302/34, P.P.C. registered at Police Station Civil Lines. It also finds mention in the memo. of petition that prior to filing of the same the brother of appellant Khalid Javed filed Habeas Corpus Petition bearing No. 118-H of 1993 for recovery and production of appellant before the Court. It is also noted therein that on 23rd February, 1993 both of them were produced in the Court and their arrest was shown from 21st February,. 1993 in the case vide F.I.R. under section 302/34, P.P.C. in Civil Lines Police Station, Gujranwala. It is to be noted that in Writ Petition No.2995 of 1993 a learned Judge of Lahore High Court, Lahore passed following order on 21st March, 1993:-- "21-3-1993. Sh. Muhammad Islam, Advocate. Submits that the investigation against the, petitioner was conducted by Muhammad Asadullah, S.H.O., Police Station Civil Lines, Gujranwala, respondent No.2 in a mala fide manner and that he obtained the petitioner's confessional statement through duress. He further submits that the petitioner has been crying hoarse against the conduct of the Investigating Officer and submitting applications for transfer of the investigation but the same have gone unheeded. He submits that several applications for transfer of investigation as well as re investigation were submitted before the I.-G. Police, Punjab, D.I.-G. Range, Gujranwala and the S.P., Gujranwala but the same have been kept in the cold storage. If any such application has been submitted before the above referred authorities, it should be disposed of on merits in accordance with law. The petition is disposed of with the above observations." Record does not indicate as to whether after passing of above order the concerned authorities disposed of the application if it was filed on behalf of the appellant. However, it is worth-mentioning that prior to filing of writ petition referred to hereinabove one Pervaiz Saleem stated to be brother of Khalid Javed submitted Criminal Miscellaneous Application No. 118-H of 1993 before the High Court which came up for hearing on 17-2-1993 when P.W. Muhammad Asadullah Khan, S.H.O., Civil Lines Police Station, Gujranwala made statement that he has not confined the appellants in his police station. However, learned counsel appearing on their behalf stated that they had been removed some where else. Learned counsel also complained to the Court that the S.H.O. was constantly harassing the petitioners and other family members of the detenues and he had also taken away Mst. Sameena wife of Muhammad Khalid Javaid Noorani and Mst. Bashiran mother-in-law of Muhammad Khalid Javed and they were confined somewhere. The petition came up for hearing on 16-2-1993 when the bailiff of the Court was deputed at the petitioner's expense to recover Khalid Javed Noorani and Aleem Ahmad detenus from the custody of respondents Nos.1 and 2 and produce them before the Court, immediately thereafter. As such on the adjourned date the detenus were produced before the Court and both of them were shown to have been arrested on 21-2-1993 in the light of the material on the record prima facie connecting them with the commission of the offence. The counsel appearing for petitioners stated that they were confined in illegal custody for about 9 days and formally were shown to have been arrested on 21-2-1993. The petition was disposed of by making observations that detenus may seek appropriate remedy for bail etc. However, on the apprehension of learned counsel that the detenus would be tortured by the police for extracting favourable statements from them has prayed that they may be ordered to be medically examined. On this the S.P., C.I.A., Gujranwala as well as Investigating Officer undertook that two accused persons shall be got medically examined from Police Surgeon, Lahore the same day and photo copies of the MLRs placed on record. Therefore, in view of the undertaking of the police officers no formal directions were passed. In pursuance of such undertaking the appellants were examined on the same day by D.VA'. Dr. Ehsan Ellahi who noticed as many as 10 healed injuries on the person of appellant Khalid Javed and described probable duration of injuries between 9 to 12 days. As far as appellant Aleem Ahmad is concerned on his person injury of multiple contusion was found on an area 13 c.m. x 10 c.m. on the left buttock caused with blunt weapon within probable duration of 9 to 12 days was noted. It would be seen that the history mentioned by the police in the request for conducting examination it was mentioned that he had fallen from motorbike 10/12 days ago. In our opinion 'this reason was shown with mala fide intention. by the investigating agency to the Doctor, otherwise, it is difficult to say that he had fallen from motorcycle 10/12 days before. Therefore, no doubt is left to conclude that Aleem Ahmad was in custody with police prior to 21st February, 1993 for about 9 to 12 days as per probable medical evidence. Similarly appellant Khalid Javed also remained" in custody for this much period. In the backgrounds of proceedings before the High Court to which a reference has been made in detail hereinabove and the manner in which appellants were produced before the High Court strong inference can be drawn that prior to their arrest they remained in police custody for a considerable period during which they were subjected to torture and ultimately prosecution succeeded to extract confession from one of the detenus i.e. appellant Aleem Ahmad. Perusal of confessional statement Exh.PE indicates that it has been prepared in accordance with the prosecution case as it has been set up in the supplementary statement Exh.DB in order to substantiate that the version introduced later by the complainant was correct qua the F.I.R. Exh.P/O. Even if for the sake of argument the objections raised by the appellant's counsel on the admissibility of confessional statement are overruled despite that it is duty of the prosecution to prove that appellant Aleem Ahmad made voluntary and true confessional statement. It may be observed with justification that a statement which has been recorded after a considerable delay from the date of arrest without offering any explanation for not producing the accused before the U Magistrate as early as could be possible creates a doubt on its voluntariness. Assuming for the sake of arguments that appellant Aleem Ahmad was arrested on 21st February, 1993 and recovery of incriminating articles i.e. dagger Article P7 was effected from his possession on 3rd March, 1993 as well as blood-stained clothes on the same day then there was hardly any justification to keep him into custody up to 7th March, 1993 when he was produced before P.W. Malik Masood Ali mad for recording his confessional statement. If this aspect of the case is viewed in the prospect of the appellant's charge that he was subjected to torture no other inference can be drawn except that prosecution detained the appellant in custody in order to extract confessional statement from him. It is well-settled that the confessional statement of an accused must be recorded as early as possible. In this behalf reference may be made to the case of Shaukat Saeed v. The State (PLD 1978 Quetta 1) wherein after having taken into consideration number of judgments including the one reported in Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363 Full Bench of High Court of Balochistan observed "No doubt confessions obtained after a long period of detention in police custody have rightly been looked upon with suspicion and that casts a duty on the Court to scan the confession and other evidence deeper and to look for any other evidence which may taint the confession itself, but surely a short perioc of detention in police custody for 24 hours preceding the recording or confession would not make it inadmissible".

30. The next important test, which the Court is required to satisfy is whether the accused has got recorded a true confessional statement. In this context it is to be seen that accused has retracted his confession and alleged that under coercion same was obtained from him. Therefore before believing the same it is imperative to examine as to whether same is corroborated by other evidence no material points as held in the case of Bahadur Khan v. The State (PLD 1996 SC 336). Relevant para. therefrom is reproduced hereinbelow:-- "

5. From the confession it is clear that while admitting the murder of Waris Khan it has been stated that as the deceased was not agreeable to take part of the money and the rest at a later date he started pelting stone upon his head and he sustained injury. As he apprehended that he would further injure him he gave an axe blow on his neck. Therefore, this part of the story should also be taken into consideration while relying on the confession of the appellant. Admittedly appellant has retracted from his confession which should be accepted only if it is corroborated by clear cogent and independent evidence. Although there is no such provision to accept retracted confession on this basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reason given for retracting is palpably false, absurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek some corroboration for retracted confession. The corroboration of such confession should be of material particulars, connecting the accused with the offence. In Naqibullah and another v. The State (PLD 1978 Supreme Court 21) referred by the learned counsel for the appellant, the law relating to confession has been elucidated in an authentic and authoritative manner,, with reference to several judgments of this Court and Foreign Courts. While referring to State v. Minhun alias Gul Hassan (PLD 1964 SC 813), it was observed:-- They both retracted from their confessions at the earliest opportunity in their respective statements recorded by the Committing Magistrate as well as in the Sessions Court. In State v. Minhun alias Gul Hassan this Court observed that it is now well-settled that as against the maker himself his confession. judicial or extra-judicial, whether retracted or no retracted can in law validly form the sole basis of his confession, if the Court is satisfied and believes that it is 'true and voluntary' and was not obtained by torture or coercion or inducement. In the opinion of the Court the question, however, as to whether in the facts and circumstances of a given case the Court should not act upon such a confession alone is an entirely a different question which relates to the weight evidentially value of the confession and not to its admissibility in law. In that connection this Court further remarked that:-- As observed even by Munir, C.J. in his commentary on the Law of Evidence at page 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 the Court that it called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true." Admittedly in the instant case there is no corroboration to the confessional statement Exh.PE of Aleem Ahmad appellant, therefore same is inadmissible.

31. In this context another aspect requiring examination would be whether confessional statement can be used against co-accused Khalid Javed. Suffice it to observe that confessional statement Exh. PE under Article 43 of the Qanun-e-Shahadat Order, 1984 can furnish proot against the person making it and the Court may take into consideration such confession as circumstantial evidence against such other person. Therefore, with reference to the instant case we are of the opinion that if confessional statement Exh.PE cannot be used against its maker namely appellant Aleem Ahmad, it cannot be equally used as, circumstantial evidence against Khalid Javed.

32. Thus having discussed entire prosecution evidence in details we are persuaded to form opinion that prosecution has failed to prove the version which was introduced by it through supplementary statement Exh.D/B of P.W. Naveed Anwar Naveed. As such the statement of accused under section 342, Cr.P.C. is to be believed in which by attaching a separate statement Exhs.DE and DF in answer to questions "why this case against you and why P. Ws. have deposed against you"? they have supported the prosecution version contained in F.I.R. Exh. P

0. It may be noted that it is known principle of law that when prosecution possesses no incriminating evidence against an accused then his statement/version under section 342, Cr.P.C. has to be believed in toto. Reference in this behalf may be made to the judgments reported in the cases of State v. Muhammad Hanif (1992 SCMR 2047), Muhammad Yaqub v. State (2000 SCMR 1827), Wasee-ud-Din v. The State (2001 SCMR 290) and Muhammad Amin v. Muhammad Khan (2002 SCMR 1473). Therefore, on believing the version of the appellants under section 342, Cr.P.C. it is held that they are innocent and have been falsely involved in the commission of the offence. For the foregoing reasons the appeal is accepted, as a result whereof impugned judgment, dated 4-7-2001 passed by the Lahore High Court, Lahore and judgment, dated 23-1-1996 passed by trial Court are set aside. The appellants namely Moulana Khalid Javed Noorani son of Muhammad Rafique and Aleem Ahmad son of Abdul Karim are acquitted of the charge. They shall be released forthwith if not required in any other case. M.B.A./K-88/S. Appeal accepted.