1987 P Cr (PLP)

3. S.I. Habib Ullah (P.W.11) then went to Chah Mubarakwala situate in the area of village Ghalwan (as stated by him) and got recovered the dead body from the well through a diver, namely, Jalal (P.W.5), and having prepared the injury statement of deceased. He sent the dead body for post‑mortem examination the same day. Dr. Muhammad Ramzan Shah (P.W.1) who conducted post‑mortem examination at 7 a.m., on 19‑11‑1980 observed the following injuries on the dead body:‑

(1) A bruise mark 1" x 1/6" on right side of neck at its middle. (2) A bruise mark 1" x 1/8" adjacent and just below injury No. 1 on right side of neck. (3) A bruise mark 1" x 1/6" just below injury No. 2 on right side of neck. On dissection, he found that both the lungs were oedematous, swollen and congested, the alveoli and vesical of the lungs tissues contained air, few of alveoli were burst and the bronchioles were congested. The right side of heart was full of venous blood and the left side was empty. The bruises on the neck were found to be ante‑mortem. The death of deceased had occurred due to respiratory failure caused by throttling. The probable time elapsed between injuries and death was about 5 to 10 minutes and between death and post‑mortem about 3 days. S.I. Habib Ullah arrested the appellant on 19‑11‑1980 and having completed the investigation challaned him.

4. At the trial prosecution examined 11 witnesses in support of its case. The prosecution case hinges on the last seen evidence furnished by Ashiq Hussain (P.W. 8), extra‑judicial confession of the appellant to have strangulated the deceased to death has been deposed by Manzoor Ahmad (P.W.6), Raza Hussain (P.W.9) and Nasir Abbas (P.W.10) besides the medical evidence. The appellant when examined under section 342, Cr.P.C., denied the allegation and stated that it was month of Muharram and in Mauza Ghalwan where the 'Majalis‑e‑Azaa' used to continue till late in the night and the deceased being new‑comer to the village might have fallen in the well accidentally in the darkness of night. No defence evidence had been produced. Learned trial Court believing the prosecution case, convicted and sentenced the appellant, as indicated above, hence this appeal.

5. It is established that Mst. Kauser Perveen (deceased) had died due to strangulation. Main question for determination in this case is, whether the prosecution has succeeded in proving on record that the deceased had been strangulated to death by the appellant? Prosecution has relied on, as indicated above, two pieces of evidence, i.e. the deceased was last seen alive in the company of the appellant and the extra‑judicial confession made by him and the circumstance of showing of the dead body of the deceased in a well by the appellant to the witnesses.

6. Ashiq Hussain (P.W.8) stated that on 17‑11‑1980 at Ishawela, he was present by the roadside when he saw Bahar Shah, appellant, and his wife passing by his side and on his enquiry the appellant told him that he was going to a nearby place and that on the next day he came to know that Bahar Shah had murdered his wife and thrown her dead body in a well. In cross‑examination, he stated that neither he knew the name of wife of the appellant nor did he disclose it in his statement Exh.D.A. recorded by the police. On his own showing he was not acquainted with the wife of the appellant, therefore, how could he say that woman seen by him accompanying the appellant on 17‑11‑1980 was his wife. His evidence does not appear to be true as it is in conflict with medical evidence. Dr. Muhammad Ramzan Shah (P.W.1) who conducted post‑mortem examination on 19‑ 11‑ 1980 at 7 a.m., opined that the deceased had died about 3 days before, which means that the deceased died in the forenoon of 16‑11‑1980, therefore, it was impossible that the witness could see her alive in the company of the appellant on evening of 17‑11‑ 1980.

7. About extra‑judicial confession of the appellant, we have the evidence of Manzoor Ahmad (P.W.6) who is father of the deceased and a resident of Sardar Garh situated 74 miles from place of occurrence, Raza Hussain (P.W.9) and Nasir Abbas (P.W.10), both residents of Alipur. They stated that while they were on the road side and on their enquiry he (appellant) confessed to have killed the deceased by strangulating her and thrown her dead body in a well, for, she had illicit relations with Qasim Shah and that the appellant then took them to the deserted well where they saw the dead body of Mst. Kauser Perveen floating on the surface of the water. The appellant had also told them that he had throttled the deceased with Dopatta. Thereafter Manzoor Hussain, complainant, went for making report and brought the police there who got the dead body taken out of the well through Jalal Toba (diver) P.W.5. Raza Hussain (P.W.9) stated that when dead body was brought out it had Dopatta on it while Nasir Abbas (P.W.10) stated that Dopatta (with which she was strangulated) was not with the dead body. Raza Hussain (P.W.9) also stated that the police arrested the appellant at the well but Nasir Abbas (P.W.10) denied this. S.I. Habib Ullah (P.W.11) stated that after registering the case he went to the well and got recovered the dead body from it and sent it for post‑mortem examination and that he had arrested the appellant on the next day, i.e. 19‑ 11‑ 1980. This means that when the Thanedar reached the well, Bahar Shah appellant was not present there with the witnesses. Absence of the appellant from the well when police arrived there is very significant. Had the appellant confessed his guilt in presence of the witnesses and shown them the well where the dead body of the deceased was found floating then the witnesses and particularly father of the deceased would have not allowed the appellant to disappear, rather they would have taken him at once to the police station or kept him in their strict vigilance and produced him before the Sub‑Inspector on his arrival.

8. The story of making of appellant's confession before witnesses and his showing the well from where dead body was recovered further seems doubtful because according to the complainant the appellant confessed his guilt and showed them the well on the following day of his arrival (19‑ 11‑ 1980) from where the dead body was recovered, whereas the prosecution case is that it all happened on 18‑11‑ 1980. Again, the well of recovery according to Manzoor Hussain (P.W.6), Raza Hussain (P.W.9) and Nasir Abbas (P.W.10) is situated in village Bootey Shah but according to S.I. Habib Ullah (P.W.11) it is situated in village Ghalwan. It is not clear from the record that village Bootey Shah is also known as village Ghalwan. The witnesses were, therefore, not unanimous about the place of recovery of the dead body, hence doubtful.

9. Needless to say that extra‑judicial confession is always treated as a weak type of evidence which can be easily procured, therefore, the Courts have always refrained from acting upon it unless very strong corroborative evidence implicating the accused was available. There is no reliable corroborative evidence in this case. The circumstantial evidence referred to above according to me is not capable of satisfying a judicial mind that the appellant and none else had killed the deceased and thrown her dead body in the well, therefore, I find the conviction and sentence of the appellant as unsustainable.

10. In the result, I accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not wanted in any other case. S.G.D./B‑6/L ????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.