' MALIK SAEED EJAZ, J.---Mst. Rashidan Bibi daughter of Muhammad Khalil was tried under section 302 P.P.C. For the murder of her real daughter Mst. Shazia Parveen aged 15/16 years, by Jam Manzoor Ahmad, learned Additional Sessions Judge, Burewala, District Vehari, in case F.I.R.
No,353/1998 dated 5-101998 under section 302 P.P.C, registered at Police Station Burewala and she was convicted under section 308 P.P.C. And sentenced to undergo 14 years R.I. With a direction to make payment of Diyat amounting to Rs,3,00,000 to the legal heirs of the deceased. The benefit of section 382- B, Cr.P.C. Was also extended to her, vide judgment dated 12-3-2003.
2. The occurrence was taken place within the area of Chak No,521/EB, Tehsil Burewala in the night between 4/5 October, 1998 in the house of the appellant which is at a distance of 09 miles from the Police Station Saddar Burewala where F.I.R. Exh.PA/1 was registered at about 8-25 a.m. On the written complaint of the appellant Exh.PA recorded by Manzoor Hussain Constable 476/HC (P.W.2).
3. Brief facts of the case narrated in the complaint Exh.PA by the appellant are that the appellant was married with Qudratullah (P.W.3) 18/19 years ago but relations between the spouses were strained and the appellant by leaving the house of Qudratullah, her husband, from Mouza Wandela Jahangir Depalpur came in Chak No,521/EB and started living there including her children namely Mst. Shazia Parveen and two sons Muhammad Shakeel and Tanveer Ahmed, with her brothers and mother. In the resentment of strained relations of the appellant with Qudratullah, Mst. Zaineb Bibi sister of Mst. Qudratullah, who was married with Muhammad Aqeel the brother of the appellant, also left the house of her husband and started living with Qudratullah in Depalpur. On the fateful night, Mst. Shazia Parveen (deceased) slept in a room of the house on a separate cot while the appellant along with other two children also slept under the Chhappar. On the next morning when she awoke, saw Mst. Shazia Parveen dead. The blood was also found on her cot. The door of the house was open, hence the F.I.R. Was got registered by the appellant against unknown assailant.
4. After recording statement of Mst. Rashidan Bibi appellant Exh.PA, Wali Muhammad S.- I./Investigating Officer (P.W.5) sent the same to the police station for registration of formal F.I.R.
(Exh.PA/1) through Muhammad Azhar Constable 382/C, then he proceeded to the place of the occurrence and inspected the dead body, prepared injury statement of Mst. Shazia Parveen deceased Exh.PC, inquest report Exh.PC/1, inspected the spot and prepared rough site-plan Exh.PD.
One cot P-2, one pillow P-3 both blood-stained and blood-stained earth, were taken into possession vide recovery memo. Exh.PE which was attested by Ghulam Mustafa and Manzoor Ahmad (both given up P.Ws). The dead body was dispatched for postmortem examination under the escort of Muhammad Hanif Constable (P.W.9), who handed over the last worn clothes of the deceased which were taken into possession vide memo. Exh.PF. On 12-10-1998 he got prepared scaled site-plan from Mazhar Hussain, Draftsman. He recorded statements of the witnesses of the memos. Under section 161, Cr.P.C.
5. On 18-10-1998 Wali Muhammad S.I./Investigating Officer was transferred and the investigation was entrusted to Rustam Ali Inspector (P.W.6) who recorded statements of Qudratullah P.W.3 and Muhammad Hanif P.W.4 under section 161 Cr.P.C, regarding extrajudicial confession allegedly made before them by the appellant. On 16-11-1998 he arrested Mst. Rashidan Bibi appellant and on the same day on her pointation, the weapon of offence Chhuri P-1 blood-stained was taken into possession vide memo. Exh.PB attested by Qudratullah P.W.3 and Muhammad Hanif P.W.4. On the same day, he got recorded statement of Mst. Rashidan Bibi under section 164 Cr.P.C, from Maher Abdul Haq MIC (P.W.10). Supplementary statements of Qudratullah and Muhammad Hanif (P.Ws.) were also recorded on the same day. On 26-11-1998 he recorded statements of Riasat Ali A.S-I. And Nazeer Ahmad P.W. Regarding the transmission of the parcels of blood-stained Chhuri and blood- stained earth. The appellant was found guilty during the investigation, hence the challan was prepared against the appellant and sent to the learned trial Court.
6. The appellant was charge-sheeted and she denied the allegation levelled against her and opted to face trial.
7. In order to prove its case, the prosecution produced ten witnesses. Since the occurrence was admittedly un-witnessed as such, the question of ocular account does not arise. The prosecution rested its case on the basis of extra judicial confession of the appellant allegedly made before Qudratullah P.W.3 and Muhammad Hanif P.W.4 as well as on the basis of judicial confession allegedly made by the appellant before Maher Abdul Haq MIC P.W.10 beside the recovery of blood- stained Chhuri allegedly recovered in the presence of the same witnesses i.e, P.W.3 and P.W.4 and the medical evidence.
8. To prove the injury, Lady Dr. Samina Siddique P.W.8 deposed that she conducted the post- mortem examination on the dead body of the deceased and found the following injury on her body:~ "An incised wound about 6 c.m. x 3 c.m. Cut x trachea with major blood vessels on both sides cut, extending up to esophagus laterally on both sides of neck. Clotted blood and some froth from the wound also present. "
'The injury was declared sufficient to cause death in ordinary course of nature. The probable time between injury and death and within 24 hours (when the P.W. Was recalled she deposed that the deceased was died immediately) and the time between the death and post-mortem was 24 hours.
9. After tendering the report of the Chemical Examiner Exh.PK for detection of semen, report of the Chemical Examiner Exh.PL in respect of blood-stained Chhuri and Exh.PM regarding earth, the report of the Serologist Exh.PN regarding earth, and Exh. PO about Chhuri weapon of offence, the prosecution evidence was closed.
10. When the appellant was examined under section 342 Cr.P.C, she denied the allegation levelled against her. In reply to a question as to why the case against her and why the P.Ws, have deposed against her, she stated that this case has been planted by Qudratullah and his cousin Muhammad Hanif. P.W.3 and P.W.4 respectively who were inimical towards her as she left the house of her husband Qudratullah P.W.3 about 9/10 years ago .And was living separately with her mother arid three children. She further stated that she never appeared before the Magistrate P.W.10 for recording her confessional statement and the statement was managed by the Investigating Officer with the connivance of Qudratullah P.W.3.
11. Learned counsel for the appellant submitted that Mst. Shazia (deceased) was living with her mother (the appellant) along with two minor brothers happily since long and the appellant left the house of Qudratullah P.W.3 about 9/10 years back and during this period, Qudratullah admitted that he neither visited her nor the appellant visited his house. In this situation, the relationships of the deceased with the appellant were cordial and loving as the appellant looking after her children without getting any financial aid from her husband and she would not kill her daughter without any reason. Further submitted that it was blind murder and the appellant was involved for the first time by Qudratullah P.W.3 (her husband) and Muhammad Hanif P.W.4 on 12-11-1998, after more than one month of the alleged occurrence by creating a story of extra judicial confession of the appellant.
The learned counsel has pointed out that the story of extra judicial confession is false as on 12-11- 1998 neither Qudratullah P.W.3 nor Muhammad Hanif P.W.4 apprehended Mst. Shazia just after the alleged confession and they did not bother to hand over her to the police and constrained themselves just to get recorded their statements before the Investigating. Officer and proceeded to Depalpur. As such, the conduct shown by both the witnesses after knowing the factum of extra judicial confession, was unnatural and unbelievable. Further submitted that as far' as the statement under section 164, Cr.P.C. Allegedly got recorded by the appellant before the Magistrate P.W.10 is concerned, the same cannot be believed as the Magistrate did not bother to verify the identification of the appellant before recording her statement and he did not adopt the measures which were essential to be adopted by him as he did not ask the appellant that she was not bound to make statement and she would not be handed over to the police if she refused to make statement or he did not try to ascertain whether the appellant was under pressure or coercion and whether the lady who got recorded statement before him was Mst. Rashidan appellant or someone else and lastly he argued that according to the Investigating Officer P.W.6 Rustam Ali he got recorded the statement of the appellant before the Magistrate while the Magistrate denied this fact by stating that in fact Muhammad Khalid S.-I. Brought the accused for recording statement under section 164 Cr.P.C. Admittedly said Muhammad Khalid S.-I. Was not produced by the prosecution to establish the identity of the appellant at the time of recording her statement before the Magistrate. Similarly the weapon of offence i.e, Chhuri P-1 has been planted, as P.W.6 admitted that no witness from the locality was associated in the alleged recovery proceedings. The witnesses Qudratullah and Muhammad Hanif P.W.3 and P.W.4 who were admittedly inimical towards the appellant were cited in the memos.
12. Conversely, the learned D.P.G. On behalf of the State stated that Mst. Rashidan made her extra judicial confession before the P. Ws. And the judicial confession before the Magistrate under section 164 Cr.P.C. Which were fully proved by the prosecution through P.W.3 P.W.4 and P.W.10 as such the appellant was rightly convicted and sentenced under section 308, P.P.C.
13. Arguments heard. Record perused.
14. It is noted that the case of the prosecution revolves around Qudratullah P.W.3, his cousin Muhammad a Hanif P.W.4, Maher Abdul Haq MIC P.W.10, Lady. Dr. Samina Siddique P.W.8 and Rustam Ali Inspector P.W.6. The remaining witnesses are immaterial and needs not to be discussed.
15. As far as the evidence led by the prosecution to establish extra judicial confession of the appellant is concerned, Qudratullah P.W.3 husband of the appellant, appeared before the learned trial Court and admitted that he was married with the appellant about 20 years back and his relations with her were strained as a result of which, 9/10 years back, she left his house along with three children including the deceased and started living in Chak 521/EB, Burewala. During this period he neither visited her house nor provided any financial aid for his children which were being looked after by the appellant of her own. By narrating the story of extra judicial confession, this P.W.
Stated that he visited the house of the appellant on 7-10-1998 after receiving information of the murder of his daughter and he returned to his house at Depalpur after meeting with the brothers of the appellant and then he again came to the house of the appellant on 12-11-1998 (after more than one month of the alleged occurrence) when the appellant made extra judicial confession before him and his cousin Muhammad Hanif. He further stated that after receiving this information from the appellant, he and Muhammad Hanif went to the police and got recorded their statements by disclosing the extra judicial confession and then proceeded to Depalpur.
16. In view of the above statement; I am unable to believe the story of the extra judicial confession due to the reasons that if such confession was actually made by the appellant, the same would have been firstly made before her brothers and mother who were residing in the same house and why she would make extra judicial confession before a person i.e, Qudratullah who was inimical towards her and who did not bother to provide financial assistance for his children who were being looked after by the appellant for the-last 9/10 years and the person of such behaviour would not spare the appellant after knowing the factum of confession and he would made first attempt to hand over the culprit murderer to the police while he, instead of handing over the appellant to the police, constrained himself to go to the police and to got recorded his statement and then to proceed to Depalpur. The conduct shown by both the witnesses Muhammad Hanif and Qudratullah who were inimical towards the appellant, was highly unnatural and unbelievable. It is also noted that P.W.6/Investigating Officer Rustam Ali admitted in cross-examination that after knowing the factum of extra judicial confession on 12-11-1998 when he recorded statements of Qudratullah and Muhammad Hanif, he did not bother to arrbst the appellant till 16-11-1998. This admission of the Investigating Officer also negates the story of extra judicial confession. The other aspect of the case in this regard also needs to be analyzed that if such confession was actually made and was volunteered then the Chhuri allegedly got recovered by her from her house,, was to be handed over by the appellant and if it was volunteered then there was no need to bring new evidence of judicial confession which was allegedly shown to be made before Maher Abdul Haq MIC P.W. 10 on 16-11-1998.
17. As far as the evidence of judicial confession which was tried to prove by the prosecution through P.W.10 is concerned such statement cannot be believed as the same was not recorded by fulfilling the formalities required under the law as the Magistrate has admitted in cross- examination that:-
(i) Riasat Ali P.W.6 had not brought the accused before him for recording statement under section 164, Cr.P.C, and Abdul Khalid A.S-I. Produced the application Exh.PI along with the accused.
(ii) It is correct that Khalid A.S-I. Stated before him that Malik Rustam Ali P.W.6 had gone to Mailsi so he produced Mst. Rashidan Bibi for her statement.
(iii) He did not inquire from Mst. Rashidan Bibi accused about the period of the custody.
(iv) He has not mentioned in the report that the police- was sent out of the Court-room when statement was recorded,
(v) He did not inquire from Mst. Rashidan Bibi accused whether she was free from any type of pressure or coercion.
(vi) It is correct that he did not explain to Mst. Rashidan Bibi accused that if she did not make statement, she will not be given in the custody of the police and she will be sent to the judicial lock up.
(vii) It is correct that he did not mention that Mst. Rashidan Bibi accused was given some time for considering and thinking.
18. In view of the above admissions made by the learned Magistrate P.W.10, it is established that before recording the B confessional statement under section 164, Cr.P.C. Exh.PJ, the learned Magistrate did not bother to adopt the measures for the identity of Mst. Rashidan Bibi accused.
Muhammad Khalid A.S1!, who produced the accused was not produced by the prosecution in the trial while he was an important witness Who could verify the identity of Mst. Rashidan Bibi accused.
P.W.6 stated in cross-examination that he left the place of occurrence on 16-11-1998 after recording the supplementary statements and effecting the recovery of weapon of offence at about 3/4 p.m.
Whereas the learned Magistrate stated that he recorded such confessional statement in his Court which is admittedly at a distance of more than 10/12 miles from the place of occurrence. The question arises that why the Magistrate was holding his Court on that date ^beyond the Court's hours, as the statement might have been recorded at about 5/6 p.m. The factum of time was also proved as Qudratullah P.W.3 admitted in cross-examination that after completion of the proceedings at the place of occurrence on 16-11-1998, the Investigating Officer along with the appellant proceeded to the Police Station, while the Investigating Officer stated that he proceeded to the Court from the place of occurrence. Both these facts have been found incorrect as Rustam Ali Inspector who was at Mailsi as per P.W. 10 and he did not produce the appellant before the learned Magistrate but P.W.6 stated that he produced the accused Mst. Rashidan before the learned Magistrate. In view of the above facts and circumstances, the factum of judicial confession is also not established by the prosecution and the evidence led in this regard is not confidence inspiring and thus the same has no credibility:
19. As far as the recovery of bloodstained Chhuri is concerned, the same was shown to be recovered from the house of the appellant after about one and half months of the alleged occurrence and both the witnesses of extra judicial confession Qudratullah and Muhammad Hanif P.W.3 and P.W.4 respectively were cited in the recovery memo. Who were admittedly inimical towards the appellant. No witness from the locality was associated in the alleged recovery proceedings. Even otherwise, no one would retain such weapon even without removing the blood on it with him and to produce the same before the police so the same could be used as D incriminating evidence against him and if such weapon was lying with the appellant, then the same must have been handed over by her on 12-11-1998 to the police when she made alleged extra judicial confession before Qudratullah and Muhammad Hanif. The learned trial Court did not bother to consider this fact and the recovery of weapon of offence was believed.
20. Keeping in view the above discussion, it is held that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. Consequently, I have no option but to accept the instant appeal. Resultantly, the appeal is hereby accepted, the impugned judgment and sentence awarded to the appellant is hereby set-aside and the appellant is acquitted by extending her benefit of doubt. She is on bail, her bonds are recalled and surties are D discharged.