2000 PLP 566 (MLD)

Muhammad Nawaz P. W.9 is the complainant and corroborated his version appearing in F. I. R. Exh.P.B. Dr. Iqbal Ahmad Javed P.W.10 deposed that 4 on receiving the District Magistrate's Order No.497‑M/RDN, dated 25‑1‑1993, a Medical Board was constituted to conduct the exhumation and post‑mortem examination of the dead body of Mst. Safia Bibi wife of '7 Muhammad Siddique accused/appellant. He further deposed that as a result of exhumation, following injury was found:‑‑ (1) A circular hole 2 c. m. x 2 c. m. was present on front of chest left side lower portion and 9‑1/2 c.m. left to the nipple and 6 1/2 c.m. left to the midline, and 8 c.m. medial to the madillary bone. He further deposed that in the opinion of the Board, cause of death was hemorrhage and shock due to Injury No. l which was sufficient to cause death in the ordinary course of nature. Injury No. l was found grievous and caused by fire‑arm weapon and was ante‑mortem in nature. Probable duration that elapsed between injury and death was immediate. He produced Post‑mortem Examination Report Exh.P.D. and the diagram of injury Exh.P.D./l. Abdul Rashid, S.I./S.H.O. (P.W.11) is the Investigating Officer whose evidence has already been discussed above. Abdur Rashid Constable C.W.I was handed over summons Exh.C.W.I/A for service upon Rana Muhammad Ashraf, Magistrate 1st Class, who had died. He submitted his report Exh.C.W.‑I/B which bears his signatures. Mahmood Anwar Shah P.W.12 has been working as Reader to Muhammad Ashraf Khan, MIC (since dead) and brought on record exhumation report Exh.P.G. prepared by the said learned Magistrate. Thereafter, the Deputy District Attorney gave up the remaining P.Ws. being unnecessary and produced report of Chemical Examiner Exh.P.H. and report of Bacteriologist Exh.P.l and closed the case for prosecution vide statement, dated 13‑2‑1995.

7. When examined under section 342, Cr.P.C., the accused Muhammad Siddique denied the prosecution version and in reply to Question No. 11 as to why this case had been registered against him and why the P.Ws. deposed against him, he replied as follows:‑‑ "No male issue was borne to Mst. Safia Bibi deceased and she felt sorry for that. She was pregnant before that and she committed suicide by shooting herself with my revolver. In order to make her funeral sanctified, this matter was concealed. After some time, the complainant party pressed me to marry younger sister of Mst. Safia Bibi. I refused and out of annoyance, this false case was made against me, my father and brothers." He further stated that he had informed Ijaz Hussain P.W.7 that Mst. Safia Bibi had committed suicide. He further stated that at the time of his arrest, he had produced his licensed weapon before the police. He. refused to get his statement recorded under section 340(2), Cr.P.C: and further stated that he would not lead any evidence in defence.

8. When examined under section 342, Cr.P.C. the accused Nasar Ali, Muhammad Ramzan, Sher Muhammad and Muhammad Hanif denied the prosecution version and stated that they have been involved in this case falsely due to their close relationship with Muhammad Siddique accused. They further adopted the statement of Muhammad Siddique as given by him.

9. After going through the evidence produced by the prosecution, the trial Court while acquitting Sher Muhammad, Muhammad Hanif, Muhammad Ramzan and Nasar Ali, convicted and sentenced Muhammad Siddique accused/appellant vide judgment under appeal.

10. Arguments have been heard and record perused.

11. It is submitted by learned counsel for the accused/appellant that alleged occurrence took place on 1‑11‑1992 at 11‑00 p.m. whereas F.I.R. has been lodged on 7‑1‑1993 at 6‑15 p.m,., that there is no plausible explanation of this inordinate delay in lodging the F.I.R., that the entire prosecution evidence consists of extra‑judicial confession of the accused before Ijaz Hussain P.W.7 and Malik Nazar Muhammad P.W.8, that there is no mention of the name of Malik Nazar Muhammad in the contents of F.I.R. lodged at the instance of Muhammad Nawaz P.W.9, that similarly neither Ijaz Hussain P.W.7 nor Muhammad Nawaz P.W.9 referred to the presence of Malik Nazar Muhammad in their statements, that motive attributed to the accused/appellant has been disbelieved by the trial Court that no oral evidence regarding the occurrence is available in the instant case, that prosecution evidence also lacks corroboration from any uninterested and independent witness, that dead body was handed over to the complainant and his other relatives and they had given bath to the dead body of Mst. Safia Bibi, that if Mst. Safia Bibi had a bullet injury on her dead body, how it could not be noticed by the womenfolk of the complainant party who were present at the time of giving her bath, that it Was brought to the notice of the complainant party by the accused/appellant in the very beginning that the deceased Mst. Safia Bibi had committed suicide and even then the matter was hushed up at the instance of parents of the deceased as in that case none had participated in the funeral ceremony of the deceased, that to cover the said eventuality, the deceased was buried on the next day. He further contended that even if the prosecution version is accepted as correct, the accused/appellant could not be convicted under section 302, P.P.C. as in the presence of three daughters of the deceased the sentence could only be awarded under section 308, P.P.C., wherein only Diyat can be awarded to the legal heirs of the deceased. He further submitted that extra-judicial confession is the weakest type of evidence which cannot be relied upon unless the same is corroborated by independent evidence and placed reliance upon Sarfraz Khan v. The State and 2 others (1996 SCMR 188), as well as upon Mst. Naseem Akhtar v. The State (1995 PCr.LJ 339) and Muhammad Aslam Pervaiz alias Ghazi v. The State (1995 MLD 664). He further stated that in the instant case, prosecution evidence has not been corroborated by any independent evidence, as such the same cannot be relied upon for passing an order of conviction and placed reliance upon Abdul Majeed v. The State (1994 PCr.LJ 281). He further argued that only that extra judicial confession carries some weight if it is made before a person of some authority as held in 1994 MLD 387 (Lahore). He argued that alleged extra -judicial confession of accused/appellant Muhammad Siddique has been made before Ijaz Hussain P.W.7 and Malik Nazar Muhammad P.W.8 and none of them is a person of authority, as such the alleged extra judicial confession made before them carries no weight. He further canvassed that when no direct evidence is available, case against the accused, if based on the circumstantial evidence, has to be proved on the principles as enumerated in Muhammad Younas alias Babu v. The State (1996 PCr.LJ 109 (Shariat Court (Azad J & K)) and further submitted that none of the said essentials is available in the instant case. He finally submitted that as the deceased Mst. Safia Bibi was survived by her three daughters, so the accused/appellant in no case could be convicted under section 302, P.P.C. and relied upon Khalil -uz‑Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885). He, thus, submitted that prosecution has failed to bring home guilt to the accused and the trial Court has not passed the impugned judgment in accordance with law.

12. Conversely, the impugned judgment has been supported by learned counsel for the State assisted by learned counsel for the complainant. While supporting judgment under appeal, learned counsel for the complainant has also submitted that since prosecution has succeeded in bringing home guilt to the accused/appellant so he was liable to be given capital punishment and prayed for the enhancement of sentence awarded to him. He further asserted that prosecution had also brought on record evidence connecting the acquitted accused with the commission of this offence and as such the trial Court was not justified in passing an order of acquittal against them. He submits that the impugned judgment to the extent of acquitted accused be set aside and the case be remanded to the trial Court with a direction to pass judgment against the acquitted accused in accordance with law.

13. In instant case, besides the present accused/appellant, Sher Muhammad, Muhammad Hanif, Muhammad Ramzan and Nasar Ali were also sent up for trial for the murder of Mot. Safia Bibi wife of Muhammad Siddique accused/appellant. Out of the accused named above, Muhammad Ramzan and Hanif are brothers of Muhammad Siddique accused/appellant whereas Sher Muhammad is father of the accused and Nasar Ali son of Nazar Muhammad is cousin of the accused/appellant.

14. A perusal F.I.R. Exh.P.B. reveals that Muhammad Siddique accused/appellant informed the complainant regarding the death of Mst. Safia Bibi on the ground of heart attack. This information was accepted as correct by the complainant and other inmates of his family who collected on the spot and carried out funeral ceremony as a result of which Mst. Safia Bibi was buried on 2‑11‑1992. It has come on record through statement of P.W.4 Mat. Daulat Bibi that .she was present at the time of bath given to the deceased and similarly it has been admitted by P.W.5 Muhammad Iqbal that he was present when the womenfolk had given bath to the deceased. According to the Post‑mortem Examination Report Exh.P.D., a bullet injury had been found on the person of the dead body. It is very strange that if Mst. Daulat Bibi P.W.4 was present at the time of giving bath to Mot. Safia Bibi, she had not noticed such wound on the chest of the deceased. Similarly, Muhammad Iqbal P.W.5 is brother‑in‑law of the deceased and was also present at the time of bath which was given by his womenfolk. It does not stand to reason that the injury on the dead body was slipped from the notice of the ladies who had given bath to the deceased. It has further been admitted by Muhammad Iqbal P.W.5 that at the time of giving bath to the deceased, the stomach is pressed to evacuate all the matter from the intestines. This admission clearly shows that chest of the deceased as well as stomach of the deceased were specifically pressed at the time of given bath to the deceased. The only inference which can be deduced from these admissions is that said injury was noticed at the time of giving bath to the deceased but the same was concealed from public in general, failing which trial could not be carried out. As in Shia sect, if the death is not a natural one and is the result of suicide, then funeral ceremony is not carried out. To avoid such eventuality, it appears that the factum of receiving a fire‑arm injury was concealed by the family members of the deceased who had collected on the spot and had been the incharge of the dead body right from the bath till her burial.

15. The prosecution has mainly relied upon extra‑judicial confession of the accused/appellant Muhammad Siddique made before Ijaz Hussain P.W.7 as well as Malik Nazar Muhammad P.W.8. A perusal of F.I.R. Exh.P.B. clearly shows that there is no .mention about the name of Malik Nazar Muhammad and similarly neither Ijaz Hussain P.W.7 nor Muhammad Nawaz complainant P.W.9 made a reference to the presence of Malik Nazar Muhammad in their statements. .Again a perusal of the statement of Malik Nazar Muhammad P.W.8 clearly shows that he has made extensive improvements in his statement, as is evident from his cross‑examination. He has stated that he had called the accused when the later had made confession before him whereas he did not mention this fact in his statement Exh.D.B. Again he further stated that initially Muhammad Siddique accused/appellant confessed his guilt and thereafter, other accused confessed their guilt before him individually. However, he stands confronted with his statement Exh.D.B. where it was not so recorded. Thus, the extra judicial confession made before Ijaz Hussain P.W.7 as well as Malik Nazar Muhammad P.W.8 has not been corroborated by any independent evidence, as such the same cannot be made a base for passing an order of conviction. Again it is fact that neither Ijaz Hussain P.W.7 nor Malik Nazar Muhammad P.W.8 was a person of authority, as such the so‑called extra judicial confession carries no weight.

16. It is pertinent to point out that Mst. Safia deceased left three daughters at the time of alleged occurrence. It is fact that prosecution neither cited them as witnesses nor examined any one of them to support the prosecution version that she was done to death by the accused by firing with his pistol. Admittedly, the daughters of the deceased could be the most important witnesses in the instant case. The mere fact that they have neither been cited nor examined by the prosecution raises an adverse presumption against the prosecution.

17. The trial Court has convicted the accused/appellant under section 302, P.P.C. and sentenced him to imprisonment for life and fine of Rs.20,000 as compensation under section 544‑A, Cr.P.C. He has further been convicted under section 201, P.P.C. and sentenced to R.I. for seven years and fine of Rs.10,

000. As discussed above and admitted by the prosecution itself, the deceased was survived by his three daughters. This being the factual position, provisions of section 302, P.P.C. will not come into play and the case has to be decided in the light of provisions contained in sections 306 and 307, P.P.C. As the accused is husband of the deceased Mst. Safia Bibi and three daughters of the deceased are alive, so the accused/appellant could be convicted under section 308, P.P.C. if the prosecution had succeeded in bringing home guilt to the accused. Thus, even on this legal score, the judgment under appeal is not sustainable in the eyes of law.

18. The upshot of the above discussion is that prosecution has failed to bring home guilt to the accused beyond reasonable doubt. Accordingly, the appeal is accepted, conviction and sentence is set aside and the appellant is hereby acquitted. He is already on bail. His bail bonds stand discharged.

19. With the acceptance of this appeal, Criminal Appeals Nos.350 and 342 of 1995 are hereby dismissed. N.H.Q.M‑1283/L