' SAEED-UR-REHMAN FARRUKH, J.--- This jail appeal is directed against the judgment, dated 18-6- 2003 passed by the Additional Sessions Judge, Faisalabad, whereby the appellant was convicted under section 302(b), Pakistan Penal Code and sentenced to life imprisonment. He was also convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to twenty-five years' R.I. Both the sentences were directed to run consecutively. Benefit of section 382-B, Cr.P.C. Was extended to him.
2. Facts forming the background of this appeal, in brief, are; on 12-6-1999 Ghulam Murtaza complainant P.W.5 appeared before Hamid Masih, S.-I. P.W.8 and made a complaint (Exh.P.D.) in writing (later on reduced into formal F.I.R. Exh.P.D./1) to the effect that he along with Abdul Hamid.
P.W.6 and Mehmood Hussain (not produced) were coming towards Chak No,30/JB by bicycle from Chak No,34/JB. When they reached near the culvert of Rajbah Madohana, within the area of Chak No,32/J.B., they saw naked body of a dead woman aged about 35/40 years, stuck to the side of the Rajbah. The dead body was pulled out by them and they noticed a lacerated wound on her head.
3. ' Investigation was initiated by the police during the course whereof the appellant was arrested and ultimately challaned to Court.
' The appellant was charge-sheeted by the learned trial Judge for offences under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 302, Pakistan Penal Code. He pleaded not guilty to the charge and claimed trial.
4. During the course of trial the prosecution produced, in all, eight witnesses in support of its case.
' Muhammad Rashid Patwari appeared as P. W.1 and deposed that he prepared site plan Exh.P.A.
On the direction of the police, showing various locations near the place from where the dead body was recovered by the complainant.
' Statement of Mahmood Ahmad constable P.W.2 is formal in nature as he was handed over a sealed phial and a sealed envelope by the Incharge of Police Post for keeping the same in safe custody in Malkhana which was later on handed over to Shabbir Ahmad constable, for onward transmission to the office of Chemical Examiner, Lahore.
5. Lady Dr. Tanveer Zafar Demonstrator, Forensic Department Punjab Medical College Faisalabad appeared as P.W.3 and deposed that on 13-6-1999 she conducted post-mortem examination on the dead body of a woman. The body was "dressless" and had clotted blood and dried mud on head. She found the following injuries on the dead body.
"(1) A lacerated wound measuring 6 c.m. x 2 c.m. On the top of head posterior part of horizontal in direction across the mid-line, under-line bones exposed.
(2) A bruise measuring 5 c.m. x 2 c.m. On the left shoulder joint."
' In her opinion, the death was the result of cardio respiratory arrest as a result of head injury. Injury No,1 was grievous in nature while injury No,2 was simple. Both the injuries were ante-mortem and were caused by blunt weapon. In her opinion, injury No,1 was sufficient to cause death in the ordinary course of nature. She proved her medico-legal report Exh.P.B., the injuries statement Exh.P.B./1 and inquest report Exh . P C . /1.
' Significantly, the lady doctor did not carry out any investigation as to whether or not the deceased was subjected to sexual assault by some one.
' Noor-uz-Zaman Anjum P.W.4 recorded formal F.I.R. Exh.P.D./1 and his deposition need not be dilated upon.
6. Ghulam Murtaza P.W.5 deposed that on 12-6-1999 he was coming from Chak No,34/J.B. Along with Abdul Hamid and Mahmood Hussain. When they reached Rajbah Madohana Chak No,32/J.B.
They saw a naked dead body of woman which was stuck on the side of Rajbah. It was brought out to the bank of Rajbah. An injury was seen on its head. He went to the police and got his complaint recorded as Exh.P.D.
' Abdul Hamid P.W.6 supported Ghulam Murtaza P.W.5 about the detection of dead body from the Rajbah and its being pulled out by the same by them.
' Both these witnesses were cross-examined at some length but the same is of little significance, as the factum of detection of dead body in Rajbah and its being taken out by these witnesses is not disputed.
7. Muhammad Ashiq P.W.7 deposed that on 4-7-1999, at about 5-00 p.m., he along with Ilyas Lamberdar (cited P.W.) was present in his parlour. The appellant came there in custody and disclosed that he brought a woman from Lahore and after subjecting her to Zina killed her. He further made a disclosure that two other women were similarly done to death by Sota blows and the Sota was thrown by him in the Rajbah. According to the witness the appellant requested them that he be "got forgiven" from the complainant of those cases. Ilyas Lamberdar asked the appellant to see him after 2/3 days and promised that he would contact the legal heirs of murdered women in the meantime. He (witness) and Ilyas went to the police and narrated the story to them. This witness was cross-examined at some length by the defence and it came out that the assertion that the appellant made disclosure about killing two other women was not mentioned in his statement before the police Exh.D.B. Likewise, his deposition that the appellant was asked to visit them after 2/3 days was also found missing in the said statement. He admitted that the appellant did not disclose the names and addresses of the complainant regarding murders of two other women. He admitted that Ilyas Lamberdar was not attending the Court despite repeated summoned for the last 6/7 months, prior to the date of his deposition in Court.
8. Last witness produced by the prosecution was Hamid Masih S.-I. P.W.B. He deposed about the various steps taken by him during the course of investigation. According to ,him the appellant, led the police to the place of occurrence and on his pointation rough site plan Exh.P.A./2 was prepared.
' During cross-examination he denied the suggestion that Ghulam Murtaza complainant was a police tout. He, however, admitted that he used to visit him occasionally for some personal work. It came out in his evidence that the appellant was in police custody in case F.I.R. No,627 of 1999 under section 302, Pakistan Penal Code and section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 Police Station Sadar Sheikhupura and case F.I.R. No,519 of 1997 under section 302, Pakistan Penal Code Police Station "B" Division Sheikhupura. According to him the appellant had confessed about the present case during the police custody of those cases and information on this behalf was passed on to him on wireless by police from Sheikhupura District.
' Learned District Attorney gave up Rana Muhammad Ilyas and Shabbir Ahmad, constable as "unnecessary witnesses".
9. After conclusion of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. He denied the prosecution story in toto. In reply to the question as to why the case has been registered against him, he took up the plea that the complaint made by the complainant was a concocted story and all the P. Ws. Were police officials and stock witnesses, having relations with the police. He firmly stated that he never made confession before any one. He pointed out that the alleged witness of confession Ilyas Lambardar was not produced by the prosecution during the trial which made the prosecution story regarding confession doubtful.
' He stated that he would neither produce defence evidence nor he would appear as his own witness on oath under section 340(2), Cr.P.C. In disproof of the prosecution allegations.
10. We have heard the learned counsel for the parties and perused the record with their assistance.
11. We find merit in this appeal.
' A perusal of the resume of the evidence led by the prosecution against the appellant would show that the only incriminating piece of evidence is the statement of Muhammad Ashiq P.W.7 to the effect that the appellant, while in custody, appeared before him and Ilyas Lambardar (not produced) and made extra-judicial confession about murdering a woman after committing Zina with her and thereafter throwing the dead body in the Rajbah. We have noticed earlier that the witness made considerable improvements upon his statement before the police. The witness had conceded that the appellant did not disclose the names and A addresses of the heirs of two other women, allegedly murdered by him and he (witness) also did not collect information about the legal heirs of the deceased in this case. He admitted that he had no link with the appellant and that he was not the resident of his village so much so that he did not have any type of relations "with his co-villagers". The above damaging admissions/omissions made by the witness seriously eroded the veracity of his deposition.
12. The superior Courts have evolved certain principles to assess the evidentiary value of extra- judicial confessions.
' In "Gul Muhammad v. The State PLD 1958 (W.P.) Kar. 133 it has been laid down that extra-judicial confession was at the best a weak piece of evidence and, in order to form sole basis of conviction, it must be supported by exceptional circumstances to create a belief that the same was in reality made and was true.
' The Federal Court in two celebrated judgments titled Abdul Latif v. The Crown PLD 1952 FC 1.13 and Ahmad v. The Crown PLD 1951 FC 107 had ruled that extra-judicial confession must be received with utmost caution.
13. It is significant to note that the witness conceded that the appellant was not his co-villager and had no relation with him so much so that he did not have any connection whatsoever with his co- villagers. He was an ordinary agriculturist and was not a person holding a position of authority. It seemed highly improbable that the appellant would go to a stranger living in another village and make confession regarding the alleged crime and that too without ascertaining as to whether he was in a position to render him any help in seeking pardon from the legal heirs of the deceased. In Allah Ditta v. The State 1977 SCM R 251 almost similar situation arose and it was held that the extra- judicial confession, made before a person not known to the alleged confessor who was neither a D Lambardar nor a B.D. Member and was not in position to help the accused, could not be relied upon for convicting him.
' That is not all. The prosecution withheld Ilyas Lambardar, though according to Muhammad Ashiq P.W.7 the confession was made before him in his parlour. The legal presumption due to non- production PO-. U of this witness, would be that had he been produced in Court he would not have supported the prosecution version.
' 'Last but not the least, according to the prosecution the appellant, at the relevant time, was not a free person to make extra-judicial confession as he was allegedly brought to the parlour of Ilyas Lambardar, while he was in custody. No reliance, therefore, could be placed on the incriminating statement of Muhammad Ashiq P.W.7 for convicting the appellant.
' We are clearly of the view that the so-called extra-judicial confession, ascribed to the appellant, was nothing but a crude attempt on the part of police to create false evidence so as to foist the present case upon him.
' As mentioned, hereinbefore, there is no other evidence/material on record, to connect the appellant with the crime.
14. The upshot of the above discussion is that the appeal is accepted, conviction and sentences of the appellant are set aside and he is acquitted. He shall be released from jail forthwith if not required in connection with any other case.
' The above are the reasons for our short order dated 20-10-2004.