2003 PLP 1070 (SCMR)

QAZI MUHAMMAD FAROOQ, J.

This Criminal Appeal, by leave of the Court, is directed against the judgment, dated 17-8-2001 of a learned Division Bench of the Lahore High Court, Rawalpindi Bench whereby Criminal Appeal No.486-J of 2000 filed by the appellant Muhammad Kamran was dismissed, his conviction under section 302(b), P.P.C. for the murder of a minor girl Nadia Bibi was upheld, the sentence of death awarded to him by the learned Judge Special Court Anti-Terrorism, Rawalpindi was confirmed and his further conviction under section 377, P.P.C. read with section 6(c) of Anti Terrorism Act, 1997 and sentence of imprisonment for life and a fine of Rs.5,00,000 or two years R.I. in default as well as conviction under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentence of 10 years' R.I. and a ,fine of Rs.1,00,000 or six months' R.I. in default with benefit of section 382-B, Cr.P.C. were maintained.

2. The grisly occurrence, had taken place on 7-12-1999 within the limits of Police Station Fateh Jang "and the prosecution story in respect thereof runs like this. On the fateful day the complainant Fateh Muhammad was informed that his granddaughter (daughter's daughter) Nadia Bibi while playing had left the house at about 2-00 p.m. and was missing. The complainant launched a hectic search alongwith a few others which ended at about 7-30 p.m. when the dead body of the missing girl, aged about six years, was-found lying in the bushes within the limits of village Jhundial. The deceased was subjected to Zina and strangulated by her Shalwar. The report about the occurrence was made by the complainant at Police Station Fateh Jang at about 9-10 p.m. against an unknown culprit. Sometime thereafter the appellant had confessed his guilt before his relative Abdul Qadir and Hast Khan.

3. The conviction of the appellant, who, denied the prosecution allegation and professed innocence at the trial, rests on his extra-judicial confession and the medical evidence according to which the deceased was subjected to sexual assault both rectally and vaginally and her death had occurred due to asphyxia caused by strangulation.

4. Leave was granted to reappraise the prosecution evidence as conviction of the appellant was based on an uncorroborated extra-judicial confession.

5. It was contended by the learned counsel for the appellant that the extra-judicial confession attributed to the appellant was fabricated by his relatives who were equally related to the complainant party and in any event the conviction and sentences of the appellant were .not sustainable as the extra-judicial confession was uncorroborated. Reliance was placed on Mehrban v. Muhammad Ramzan and another (2002 SCMR 441).

6. The learned counsel representing the State conceded that corroborative evidence was not available but defended the impugned judgment by contending with vehemence that the extra-judicial confession having been established by close relatives of the deceased and being voluntary and true was by itself sufficient to sustain conviction.

7. Before adverting to the extra-judicial confession alleged to have been made by the appellant vise deem it necessary to highlight the principles enunciated by this Court from time to time in regard to evaluation of an extra-judicial confession. It was held in Ahmed v. The Crown (PLD 1951 FC 167) that extra-judicial confession must be received with utmost caution. The principle was reiterated in Abdul Latif v. Crown (PLD 1952 Federal Court 113) wherein it was also held that there should be some corroborative evidence to the effect that the alleged extra-judicial confession was not only made but was also voluntary and true. In Sarfaraz Khan v. State 0996 SCMR 188) it was observed that extra-judicial confession is a weak type of evidence which can be easily procured whenever direct evidence of the crime is not available; therefore, while placing reliance on it, the Courts should use utmost care-and caution. A three-fold proof is required to. make the extra judicial confession the basis, of conviction. First, that in fact it was made, secondly, that it was voluntarily made and, thirdly, it was truly made.

8. The extra-judicial confession in question was allegedly made by the appellant on the day of occurrence i.e. 17-12-1999 at midnight before his relatives Abdul Qadir (P.W.7) and Hast Khan (P.W.10) in the Baithak of the latter in presence of Mehmood Hussain and Ejaz, not examined at the trial, who suspected him to be the culprit. The statement of Abdul Qadir is altogether silent about the material particulars and details of the occurrence and it is in his cross-examination that the police had accompanied him to the house of Hast Khan where extra-judicial confession was made by the appellant at 2-00 a.m. and the police had not recorded his statement under section 161, Cr.P.C. The statement of Hast Khan contains certain particulars of the occurrence but it has been rendered questionable by the assertion, which was also put to the appellant in his statement under section 342., Cr.P.C. and denied, that the appellant had made the extra-judicial confession after pointation of the dead body of the deceased in nearby jungle. Had the dead body of the deceased been recovered on the pointation of the appellant this fact would have been mentioned in the F.I.R. which was lodged after recovery of the dead body of the deceased. It is also in his statement that he and Abdul Qadir had handed over the appellant to the police at about C 2-30 a.m. The presence of the police in the house of Hast Khan where the extra-judicial confession was allegedly made and arrest of the appellant from the same place speaks volumes about the voluntariness of the extra-judicial confession. The matter has been made more complex and intriguing by the statement of the Investigation Officer, namely, Abdul Razzak, Inspector (P.W.1) that he had arrested the appellant on 19-12-1999 when he was produced before him at the Bus Stand by Abdul Qadir and Hast Khan. It is also pertinent to mention that real son of Hast Khan, namely, Nasir Ahmed (P.W.8), who was declared hostile, had belied him by stating that the real suspect was one Muhammad Akram. Mere fact that Abdul Qadir and Hast Khan are closely related to the appellant cannot make their statements sacrosanct because both of them are related to the complainant as well. It is in the statement of Abdul Qadir that the appellant is the son of his niece and Nadia Bibi deceased was daughter of his 'Bhanji'. The prosecution evidence also shows that the deceased was the daughter of a cousin of Hast Khan and the appellant is his nephew. The statements of Abdul Qadir and Hast Khan are not I invulnerable and after scrutinizing the same minutely we are convinced that the appellant had not made an extra-judicial confession before them and in any case the extra-judicial confession attributed to him was not voluntary and true. As regards the corroborative evidence, suffice it to say that it is admittedly lacking and in any case the extra-judicial confession is too defective and weak to be cured and strengthened by any corroborative evidence.

9. For the reasons stated above, the appeal is allowed, the conviction and sentences of the appellant are set aside and he is acquitted of the charge levelled against him. He be released from the Jail forthwith if not required in any other case. The above are the reasons for our short order, dated 5th March, 2003. N.H Q./M-801/S Appeal allowed.