' ASIF SAEED KHAN KHOSA, J.---Nasir Mahmood appellant was convicted for an offence under section 364-A, P.P.C. Vide judgment dated 29-1-2001 handed down by the learned Additional Sessions Judge, Faisalabad and was sentenced to death. The appellant was also convicted for an offence under section 302(b), P.P.C. And was sentenced to death and to pay a sum of Rs,20,000 to the heirs of Zunaira Bibi deceased by way of compensation under section 544-A, Cr.P.C. And in default of payment thereof the said amount was ordered to be recovered as arrears of land revenue. The appellant was further convicted for an offence under section 201, P.P.C. And was sentenced to rigorous imprisonment for seven years and a fine of Rs,5,000 or in default of payment thereof to undergo simple imprisonment for one month. The benefit under section 382-B, Cr.P.C.
Was extended to the appellant. Through the same judgment two co-accused of the appellant namely Mst. Nooran Bibi and Muhammad Farooq were acquitted by the learned trial Court. Nasir Mahmood appellant has challenged his convictions and sentences before this Court through Criminal Appeal No, 244 of 2001 which has been heard by us along with Murder Reference No,23 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.
2. According to F.I.R. No, 73 lodged by Hafiz Muhammad Sharif complainant (P.W.1) at Police Station Garh, District Faisalabad at about 4-40 P.M. On 23-2-1997 in respect of an offence under section 363, P.P.C. The complainant's minor daughter namely Zunaira Bibi (aged about seven years) had been taken from the complainant's house by Mst. Nooran Bibi accused to her own house at about 5-30 p.m. On 20-2-1997 from where the complainant's daughter was taken to an unknown destination by Muhammad Farooq accused on a motorcycle. Zunaira Bibi was not heard of or seen alive by anybody thereafter. After remaining unsuccessful in finding his daughter in the next couple of days the complainant lodged the above mentioned F.I.R. In respect of disappearance of his daughter. On 11-3-1997 Nasir Mahmood appellant allegedly made an extra-judicial confession before his own father namely Abdul Wahad (P.W.2) and also before Bashir Ahmad (C.W.2) on the same day regarding murder of Zunaira Bibi by him and on the basis of such confessions made by the appellant he was taken into custody by thelocal police. During his interrogate,the appellant allegedly led to recovery of the dead body of Zunaira Bibi from a sugarcane field belonging to Hafiz Muhamm Sharif complainant on 12-3-1997 and sections 302 and 201, P.P.C. Were resultantly added to the F.I.R. Thereafter Post-mortem Examination of the dead body was conducted on 12-3-1997 and a Kandhala was recovered from the appellant's possession. Upon completion of the investigation the appellant's co-accused namely Mst. Nooran Bibi and Muhammad Farooq were declared by the police to be innocent which prompted Haji Muhammad Sharif complainant to institute a private complaint in respect of the same incident on 2-4-1998. After recording of the preliminary evidence the appellant and his two co-accused were summoned by the learned trial Court to face a trial and after holding a full-dressed trial the appellant's co-accused namely Mst.
Nooran Bibi and Muhammad Farooq were acquitted by the learned trial Court but the appellant was convicted and sentenced by it as mentioned and detailed above. Hencethe present appeal and the connected Murder Reference before this Court.
3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. The learned counsel for the appellant has taken us through the entire prosecution evidence and has maintained that no sufficient evidence was available on the record so as to hold the appellant guilty of the charge and, thus, the learned trial Court was not justified in convicting and sentencing him. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
4. After hearing the learned counsel for the parties and going through the record we have straightaway observed that the deceased in this case namely Zunaira Bibi (aged about seven years) was a daughter of a paternal uncle of Nasir Mahmood appellant namely Haji Muhammad Sharif complainant (P.W.1) and the appellant's own father namely Abdul Wahad (P.W.2) had also implicated the appellant for the murder in issue. Due to such close relationship between the parties and the extraordinary circumstances of this case we have exercised extra care and caution while appreciating the evidence available on the record. We have also noticed at the outset that admittedly the appellant had absolutely no motive against the minor deceased so as to deprive her of her life before it had blossomed. It is of critical importance to mention here that in his statement recorded under section 342, Cr.P.C. The appellant had mentioned in some detail the circumstances in which his relations with his father and paternal uncle had become strained and as to why his father and paternal uncle were out to harm him on one pretext or the other. It is also significant to mention here that in the F.I.R. Lodged by Hafiz Muhammad Sharif complainant (P.W.1) the appellant had not even been mentioned as one of the culprits and it was after about three weeks of the alleged occurrence that the appellant had been implicated in this case in circumstances which were not above board and the private complaint in pursuance of which the appellant has been convicted and sentenced by the learned trial Court had been instituted after about a year and two months of the alleged occurrence. All these circumstances have been found by us to be extraordinary and unusual and, thus, we have attended to the minutest details of the evidence available on the record so as to make sure that justice is done and the law takes its own course.
5. According to the prosecution the appellant's father and his paternal uncle, i,e, the complainant belonged to Ahl-e-Sunnat sect whereas the appellant had become a renegade by converting to Ahl-e-hadis sect .Which had generated severe misgivings between such close relations and had led to parting of their religious ways. It was alleged by the prosecution that the appellant had murdered the complainant's minor daughter only to inflict pain upon his paternal uncle on account of religious differences. We have, however, found that no independent evidence whatsoever had been adduced by the prosecution before the learned trial Court in order to establish that the appellant was such a die hard religious zealot that he was ready to kill a minor daughter of his own paternal uncle so as to inflict pain upon him merely because he professed a different religious orientation and belonged to a different religious sect.
6. We have found the appellant's conviction recorded by the learned trial Court for an offence under section 364-A, P.P.C. To be utterly unwarranted as it was not even the prosecution's case that the appellant had kidnapped the minor deceased. According to the prosecution the minor deceased had been kidnapped by the appellant's co-accused namely Mst. Nooran Bibi and subsequently the minor deceased was handled by Muhammad Farooq co-accused but both the said co-accused of the appellant had been acquitted by the learned trial Court by disbelieving the prosecution's allegations against them. According to the learned counsel for the complainant the acquittal of the said co-accused of the appellant by the learned trial Court has not been challenged by the complainant party before this Court. No evidence worth the name had been produced by the prosecution before the learned trial Court in order to establish any involvement of the petitioner in the alleged kidnapping of the deceased.
7. As regards the appellant's conviction recorded by the learned trial Court for an offence under section 302(b), P.P.C. We have straightaway noticed that the medical evidence produced by the prosecution had never convincingly established that the deceased's death was homicidal or that the same was not natural. In this context the statement made by Dr. Muhammad Yousaf Mughal (C.W.3) before the learned trial Court and the Post-mortem Examination Report of the dead body have been carefully scrutinized by us and we have found that at the time of post-mortem examination of the dead body the said doctor had found no external mark of injury on any part of the dead body and the subsequent report of the Chemical Examiner received in this case had disclosed no presence of poison in any internal organ of the dead body or semen on the vaginal swa bs. The post-mortem examination of the dead body had been conducted on 12-3-1997 and the report of the Chemical Examiner was received on 23-5-1998 and on both such occasions the doctor had never recorded any opinion regarding the cause of death of the deceased. It was only on 5-12-2000 when the said doctor made his statement before the learned trial Court as C.W.3 that he had stated for the first time that "from the history of the case, I am of the opinion that death was due to asphyxia caused by throttling". That opinion expressed by the doctor after about three years of conducting the post-mortem examination and receiving the report of the Chemical Examiner was nothing but gratis and the same was not based upon any concrete material. At the time of conducting the post-mortem examination the said doctor had not noticed any mark of throttling on the neck of the deceased or any injury establishing the same and Jahangir Khan, S.-I.
(C.W.7),the Investigating Officer of the State case, had categorically stated before the learned trial Court that while preparing the Inquest Report pertaining to the dead body he had not noticed any injury on the neck of the deceased. The learned counsel for the complainant has maintained that the doctor had found tongue of the deceased to be protruding which, according to the doctor, was an indication of throttling but this submission of the learned counsel for the complainant overlooks the fact that the doctor had added that protruding of the tongue could also be a result of purification. In this state of the evidence produced before the learned trial Court we have found that the medical evidence had not been able to establish that the deceased's death was homicidal and, thus, the appellant's conviction for the alleged murder was nothing but far-fetched, if not a legal impossibility.
8. The prosecution's case against the appellant vis-a-vis the alleged murder is replete with various peculiarities and incongruities which are difficult to escape notice. For instance no eyewitness of the alleged murder had been mentioned or had come forward during the investigation of the State case but in the private complaint filed by the complainant after about a year and two months of the alleged occurrence one eye-witness namely Jaffar Ali had been introduced and he had also made a statement during the preliminary evidence recorded prior to summoning of the appellant to face a trial. However, during the trial that eye-witness had been given up by the prosecution as he was "not ready to appear in the Court"! The law on the subject is quite well settled that if a witness cited in the Calendar of Witnesses is not produced by the prosecution then the Court is to presume that if he had entered the witness-box then he would not have supported the prosecution's case.
9. The motive set up by the prosecution for the alleged murder had not only remained unsubstantiated but the same has also been found by us to be quite unbelievable. It is admitted at all hands that despite differences in their religious orientations on account of belonging to different sects the appellant on the one hand and his father and paternal uncle on the other hand had never been involved in any untoward incident of any kind. Even according to the prosecution itself the appellant was living with his father in the same house during the days of the alleged occurrence and they were on normal speaking terms. Be that as it may the fact remains that the appellant had absolutely no motive against the minor deceased. Both the parties to this case were quite religious and it has been found by us quite difficult to believe that the appellant, who is himself a Hafiz-e-Qur'an, would even think of cold-bloodedly murdering a minor daughter of his paternal uncle merely to cause pain to him because of his belonging to a different religious sect. We may add in this context that if, for the sake of argument, religious hatred between the two parties had risen to such an aggravated pitch so as to prompt the appellant to commit such a dastardly murder of an innocent cousin of his then the same kind of hatred could also have prompted the complainant party, including the appellant's own father and paternal uncle, to get rid of the appellant by falsely implicating him in a case of murder even where the death of the deceased was not homicidal. It is proverbial that motive cuts both ways and in the present case this proverb could not be more true.
10. During the investigation of this case by the local police a Kandhala had allegedly been recovered from the appellant's possession but it is not disputed that the said implement was not a weapon of offence. According to the prosecution the appellant had used that implement in order to dig a field for the purpose of burying the dead body of the deceased. The memorandum of recovery of the said Kandhala (Exhibit-C.W.2/B) shows that the recovered implement was neither stained with blood nor it was soiled with mud and, thus, the said recovery was legally inconsequential as there was nothing to connect the recovered implement with the alleged murder.
11. In paragraph No, 5 of the private complaint instituted by Haji Muhammad Sharif complainant (P.W.1) he had specifically stated that Bashir Ahmad son of Karam Ali P.W. And Waris Ali P.W. Had informed the police that they had seen Muhammad Farooq accused, etc. Handing over Zunaira Bibi to the present appellant near a sugarcane field and requiring the appellant to kill her whereupon the appellant had assured them that he would kill the deceased in an appropriate manner. The said Bashir Ahmad son of Karam Ali P.W. And Waris Ali P.W. Had been cited by the complainant in the Calendar of Witnesses but Bashir Ahmad P.W. Had been given up by the complainant before the learned trial Court as he was "not ready to appear in the Court" and Waris Ali P.W. Had been given up by him as "unnecessary" and, thus, this critical aspect of this case asserted by the complainant had also remained unproved.
' The law on the subject requires us to presume that if the above mentioned witnesses cited by the complainant had entered the witness-box then they would have given a lie to the complainant on this aspect of the case against the appellant which factor further compounds over doubts about bona fide of the complainant and the appellant's father in leveling the allegation of murder against the appellant. We have already observed above that the complainant had also introduced Jaffar Ali through his private complaint as an eye-witness but even that so-called eye-witness was "not ready to appear before the learned trial Court".
12. The discussion made above leaves us only with two other pieces of evidence produced by the prosecution against the appellant vis-a-vis the alleged murder, i,e, extra-judicial confessions allegedly made by the appellant before his father namely Abdul Wahad (P.W.2) and before Bashir Ahmad (C.W.2) and an alleged recovery of the dead body of the deceased at the instance of the appellant. The appellant's father namely Abdul Wahad (P.W.2) had claimed before the learned trial Court that on 11-3-1997 the appellant had confessed before him that he had murdered Zunaira Bibi deceased. It is of critical importance that this witness had never joined the investigation of this case by the local police and had never made any statement before the Investigating Officer under section 161, Cr.P.C. Regarding the extra-judicial confession allegedly made by the appellant before him. The complainant's claim regarding the appellant's extra-judicial confession before this witness had been introduced for the first time through institution of the private complaint after about one year and two months of the alleged occurrence and it was thereafter that Abdul Wahad (P.W.2) had started claiming for the first time that the appellant had confessed his guilt before him.
As regards Bashir Ahmad (C.W.2) a perusal of the statement made by this witness before the learned trial. Court shows that the alleged confession had been made by the appellant not before this witness but before one Zafar Iqbal. The said Zafar Iqbal was also cited by the complainant in the Calendar of Witnesses appended with his private complaint but he was never produced before the learned trial Court for some undisclosed reason. It is not disputed that upon making of the alleged confession by the appellant before Bashir Ahmad (C.W.2) the appellant was not this or taken into custody by this witness and that it was not this witness who had produced the appellant before the police. Although this witness was also cited in the Calendar of Witnesses yet for no recorded reason he was not produced by the prosecution before the learned trial Court and it was the learned trial Court itself which had summoned this witness as a Court Witness. This clearly shows that the prosecution was not sure that this witness would support its case before the learned trial Court if he was to be produced as a prosecution witness. Apart from that the confessions attributed to the appellant before Abdul Wahad (P.W.2) and Bashir Ahmad (C.W.2) were quite remarkable for their lack of the necessary details vis-a-vis the murder itself. It was claimed by both these witnesses that the appellant had confessed before them that he had committed them urder of Zunaira Bibi. No further detail of the said murder had either been divulged by the appellant before these witnesses nor any such detail about the actual murder itself had been disclosed by these witnesses before the learned trial Court. It may be pertinent to mention here again that according to the private complaint instituted by the complainant the appellant's acquitted co-accused namely Mst. Nooran Bibi and Muhammad Farooq were the persons who were involved in the alleged kidnapping, concealment and handling of the deceased and thereafter the deceased had allegedly been handed over by Muhammad Farooq accused, etc. To the present appellant for her murder. The confessions allegedly, made by the appellant before the above mentioned two witnesses were completely silent as to how the deceased had come in the custody of the appellant, as to where, when and how the appellant had murdered the deceased and as to where he had concealed the dead body. Such noticeable and critical deficiencies in the extra-judicial confessions allegedly made by the appellant had substantially denuded the said confessions of their evidentiary worth and value rendering them unsafe for reliance in a case of a capital charge. The confessions attributed to the appellant did not give out the necessary details of the occurrence and at any rate the story allegedly told by him to these witnesses was incomplete and many questions raised by the same had remained completely unanswered. An extra-judicial confession is generally and almost universally accepted and perceived as a very weak type of evidence and the same cannot suffice all by itself to maintain a conviction on a capital charge. The confessions attributed in this case to the appellant had failed to receive any corroboration or support from any independent evidence or quarter. We have, thus, found the prosecution's case regarding the alleged making of confessions by the appellant before the above mentioned witnesses to be utterly unreliable and worthy of I-little credence. If the appellant's own father had come up with an assertion in this regard by way of an afterthought with a delay of about a year and two months then we are not ready to place implicit reliance upon C.W.2 in this respect who was not even himself the person before whom the alleged confession had been made.
13. As regards the alleged recovery of the dead body of Zunaira Bibi deceased at the instance and pointing out of the present appellant the allegation in that regard had been made before the learned trial Court once again by none others than the appellant's father namely Abdul Wahad (P.W.2) and Bashir Ahmad (C.W.2)! We have noticed in this context that the memorandum of recovery of the dead body (ExhibitC.W.2/A) did not depict Abdul Wahad (P.W.2) as a witness of the said recovery. Although before the learned trial Court this witness had talked about such a recovery at the instance of the appellant yet he had stopped short of claiming that he was himself present at the time of such recovery and, thus, his statement in that regard made before the learned trial Court could not take the prosecution's case in this respect any far. As regards Bashir Ahmad (C.W.2) although he had been cited in the Calendar of Witness as a prosecution witness yet for an undisclosed reason he had not been produced as a prosecution witness and he had been summoned by the learned trial Court itself as a Court Witness. The above mentioned memorandum of recovery of the dead body shows that one Zafar Iqbal was also a witness of the said recovery and he too had been cited in the Calendar of Witnesses as a prosecution witness but he was never produced before the learned trial Court and we have not been able to find on the record any reason for his non-production. We may observe once again that in this kind of a situation the law requires us to presume that if this witness had entered the witness-box then he would have deposed against the prosecution. It is of critical importance to mention here that according to the private complaint one Jaffar Ali had himself seen the appellant killing the deceased by throttling her at the place from where the dead body of the deceased had subsequently been recovered. It is also mentioned in the private complaint that just before the killing of the deceased by the appellant and witnessing of the same by Jaffar Ali the appellant had been seen by Bashir Ahmad son of Karam Ali, P.W. And Waris Ali P.W. Receiving the deceased from Muhammad Farooq accused, etc. At the same place for the purpose of killing her. If all these witnesses were available with the prosecution and the place of murder was already known then the alleged pointing out of the same place by the appellant to the police and recovery of the dead body from the said place had lost their evidentiary strength and potency and were not sufficient by themselves to establish the appellant's culpability for the alleged murder.
14. The discussion made above leads us to an inescapable and irresistible conclusion that all the pieces of evidence relied upon by the prosecution against the appellant crumble and fall apart upon a close scrutiny of the same and probabilities of the appellant's false implication for the alleged murder are equal to, if not more than, those of his culpability. In this view of the matter we have decided to err, if at all, on the side of precaution and to extend the benefit of doubt to the appellant. Criminal Appeal No, 244 of 2001 is, therefore, allowed, the convictions and sentences of the appellant recorded by the learned trial Court are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
15. Murder Reference No, 23 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Nasir Mahmood appellant is not confirmed.