' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--- Appellant Zahid Hussain along with his co-accused Qaisar Sajjad was tried in case F.I.R. No,383, dated 21-11-2005 for the offence under section 302/34, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997, registered at Police Station Khushab by the Special Judge, Anti-Terrorism, Sargodha Division Sargodha who vide judgment, dated 28-7-2006 while acquitting his co-accused convicted the appellant under section 302(b), P.P.C. And sentenced him to death as Ta'zir as well as to pay Rupees one lac as compensation to the legal heirs of the deceased or in default whereof to undergo six months' S.I. He was further convicted under section 7(a) of Anti-Terrorism Act, 1997 and sentenced him to death as well as to pay a fine of Rs,1,00,000 or in default whereof to suffer one year's R.I.
2. Calling in question the impugned judgment appellant filed Criminal Appeal No,1392 of 2006 while the trial Court has made a reference (C.S.R. No,41-T of 2006) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this judgment.
' Mst. Humaira Firdous died on 21-11-2005 at 7-30 a.m. In the house of appellant situated in lane Eisawali Mohallah Badshahwala about one Km. Away from Police Station Khushab. Matter was reported to the police on the same day at 8-00 a.m. By Muhammad Ayub father of the deceased.
3. In brief the story of prosecution is that complainant is the resident of Mohallah Sardar Bahadur Khan and for the last five years is working in Saudi Arabia. During the days of occurrence he had come to Pakistan to spend his holidays. His daughter Humaira Firdous was married with Zahid Hussain appellant three years prior to the occurrence and out of the said wedlock she had a son namely Sohail Ahmad Ali. Allegedly, the relations between the spouses became strained and three/four days prior to the occurrence there was a quarrel between them, thereafter Humaira Firdous being annoyed went to the house of one Haji Muhammad Anwar Esa who got the matter patched up and she (Humaira Firdous) went back to the house of her husband. Statedly on the fateful day i.e, 21-11-2005 at about 7-30 a.m. Appellant informed the complainant telephonically that Humaira Firdous had caught fire. On this information complainant along with his wife Mst.
Sughran Bibi and Ghulam Qadir went to the house of appellant where they saw Humaira Firdous, being burnt, lying dead on a cot. Thereupon the complainant while lodging the F.I.R. Had shown his suspicion that Humaira Firdous was done to death by the appellant and his brother Qaisar Sajjad while setting her on fire after sprinkling kerosene oil.
' Fateh Khan S.-I. P.W.8, (Investigating Officer) upon the statement of Muhammad Ayub (P.W.4) entered formal F.I.R. Exh.P.B. As well as conducted the investigation. He after inspecting the dead body, prepared necessary documents and sent the same to mortuary for postmortem examination. During the spot inspection he took into possession a Peeri P.1, pieces of gloves of polythene P.2, pieces of clothes P.3 and a pair of Chapel P.4, all burnt, vide recovery memo. Exh.P.E.
He also prepared rough site plan Exh.P.H. At the spot complainant of this case also produced before him written statement Exh.P.C. Which was placed on record as supplementary statement of the complainant stating therein that Muhammad Rafiq and Muhammad Idrees had seen the appellant and his co-accused setting the deceased on fire after sprinkling kerosene oil on her. Thereafter the Investigating Officer also recorded the statements of said witnesses under section 161, Cr.P.C.
' On 23-11-2005 the appellant was arrested and on 30-11-2005 he led to the recovery of phial of chloroform P.5 and a piece of pad/cloth P.6 lying in a box in the eastern room of the house which were taken into possession vide memo. Exh.P.I. Appellant also led to the recovery of bottle used for carrying kerosene oil. P.7, another bottle used for carrying petrol and a burnt piece of rope of cloth P.9. These articles were taken into possession vide memo. Exh.P.J. The Investigating Officer also got prepared scaled site plan Exhs.P.A. And P.A./1 through draftsman and after complying with legal formalities submitted challan before the trial Court where prosecution produced ten witnesses to prove the charge against the appellant and his co-accused ' Tasawar Hussain H.C. P.W.1 kept the parcels of case property in Malkhana for safe custody, Muhammad Pervaiz F.C. P.W.2 took the parcels to the office of Chemical Examiner and delivered the same intact. He also took the dead body to the mortuary for post-mortem examination.
Muhammad Saleem, Draftsman P.W.3 prepared scaled site plan Exhs.P.A. And P.A./1. Muhammad Ayub P.W.4 being complainant of this case made statement on the lines he got registered F.I.R. As well as the supplementary statement. Dr. Zahra Malik woman Medical Officer P.W.5 conducted post-mortem examination of the dead body of Humaira Firdous deceased. Muhammad Rafiq P.W.6 deposed that within his view appellant and his co-accused after pouring kerosene oil set the deceased on fire. Haji Ghulam Qadir P.W.7 had accompanied Muhammad Ayub complainant when he went to the police station for lodging the F.I.R. ; ' He was also present when the police took the articles into possession from the spot. Fateh Khan S.P. P.W.8 conducted the formal investigation: Muhammad Anees P.W.9 deposed that on 21-112005 at about 8-45 p.m. Appellant made confessional statement before him stating therein that due to domestic agonies he had set his wife on fire. Statedly appellant also requested the witness for getting him pardon from the complainant. This witness was also present when the appellant led to the recovery of certain articles find mentioned in the preceding para. Of the judgment. Haji Muhammad Munir P.W.10 identified the dead body of Humaira Firdous at the time of post-mortem examination.
' Learned Public Prosecutor tendered in evidence report of Chemical Examiner Exh.P.L. And closed the p-osecution case.
4. Trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. Appellant took the plea that he has been falsely involved in this case because the complainant who is his maternal uncle wants to usurp the property left by his (appellant) father. He also took the plea that it. Was an accidental death and he had informed the police and the complainant in this regard.
' Appellant did not make any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
5. Trial Court, after appraisal of evidence available on record, vide judgment, dated 28-7-2006 convicted and sentenced the appellant as narrated earlier. Hence this appeal.
6. After hearing learned counsel for the parties at some length and perusing the record, we have observed that the entire case of the prosecution rests upon the statement of one eye-witness of the occurrence i.e, Muhammail Rafiq P.W.6, extra-judicial confession of the appellant allegedly made by him before Muhammad Anees P.W.9, recovery of certain incriminating articles at the instance of appellant, motive for the commission of this offence and the medical evidence.
' Initially this case was got registered by Muhammad Ayub, father of Humaira Firdous deceased against the appellant and his co-accused upon suspicion because appellant and his wife (Humaira Firdous . Deceased) had strained relations and statedly 3/4 days prior to the occurrence there was a quarrel between the spouses, thereafter the lady (Humaira Firdous) had gone to the house of Haji Muhammad Anwar Esa but later on because of the patch up between the parties she came back to the house (i.e, the house of her husband-appellant) and on 21-11-2005 ' news was received by the complainant that his daughter had caught fire.
' After lodging the F.I.R. On the same day complainant also placed on record his supplementary' statement i.e, Exh.P.C. Stating therein that Muhammad Rafiq P.W.6 along with his son Muhammad Idrees had seen the appellant and his co-accused setting Humaira Firdous on fire after sprinkling kerosene oil. Thereafter, statements of both the said witnesses were also recorded by the Investigating Officer. During the trial only Muhammad Rafiq was produced as P.W.6 whereas his son Muhammad Idrees was given up by the prosecution as unnecessary witness. We have observed the trial Court had disbelieved this witness because his presence on the spot at the relevant time was found doubtful. We have also observed that this witness was the resident of another Mohallah and had not given any explanation about his presence on the spot at the time of occurrence during the said early hours of the day. It is also apparent from the statement of Investigating Officer that when he visited the spot, said witness was not present. The data available on record also reveals that Muhammad Rafiq is closely related to Muhammad Ayub P.W.4 (complainant) (his sister is married with complainant and his daughter is married with the son of complainant). Statedly, he along with his son had seen the occurrence and within their view the appellant and his co-accused had set Humaira Firdous on fire after pouring kerosene oil on her but strangely they never bothered to interfere or made any attempt to save Humaira Firdous but left the place in order to .Inform the complainant and other witnesses. It is also not clear from the record that after how many hours of the occurrence the statement of this witness was recorded and thus, the possibility that the said eye-witness was introduced later on in order to strengthen the prosecution case could not be ruled out.
' As far recovery evidence, we have observed that the trial Court on valid and sound grounds has already disbelieved this piece of evidence, and the same needs no discussion.
' Another piece of evidence relied upon by the prosecution is the confession of the appellant which he allegedly had made before Muhammad Anees P.W.9. This witness is the son of Muhammad Rafiq P.W.6. We have observed that neither this witness was in a position to exert any influence upon the complainant for a compromise with the appellant nor he gave the mode and manner in which the appellant allegedly had committed the murder of Humaira Firdous, the statement of this witness is general in nature that appellant confessed his guilt before him that he had set his wife (Humaira Firdous) on fire. Allegedly appellant had confessed his guilt on the day of occurrence but admittedly, this witness who is closely related to the complainant never bothered to inform either the complainant or the police immediately after the said confession but made the statement before the police on the next day, he also after hearing confession never attempted to apprehend the appellant, thus, unnatural conduct of the witness is sufficient to doubt his credibility. Even otherwise it is well-settled that evidence of extrajudicial confession is a very weak type of evidence which is normally created when the prosecution fails. To collect any tangible evidence to prove the charge and that such type of evidence should not be relied upon in the absence of any corroborative piece of evidence.
' Motive for the commission of this offence statedly was the strained relations between the spouses and in order to prove this part of its case, prosecution has relied on the bald statement of Muhammad Ayub P.W.4. According to the F.I.R., 3/4 days prior to the occurrence deceased after quarrel with the appellant had gone to the house of one Muhammad Anwar Esa who got the matter settled down between the parties and thereafter the deceased came back to the house of her husband (appellant) but this important witness was never produced before the trial Court in order to prove the motive part of the prosecution case. The statement of Investigating Officer is also silent qua the collection of any data to prove this part of the prosecution case.
It is well-settled that prosecution has to stand on its own legs in order to prove the charge against the accused persons but in the present case prosecution has failed to perform its duty, the evidence relied upon by the prosecution to prove the charge against the appellant is full of doubts entitling the appellant to get the benefit of the same. Accordingly, the instant appeal is accepted, conviction and sentence of the appellant is set aside and he stands acquitted from the charge. He shall be released forthwith if not required in any other case.
' Death sentence awarded by the trial Court is not confirmed and the reference is answered in negative.