' CH. MAHMOOD AKHTAR KHAN, J.--- Mst. Bushra Rohan wife of Ali Rohan and Muhammad Azam son of Sher Muhammad were tried by Mian Muhammad Shafi, learned Additional Sessions Judge, Rawalpindi in case F.I.R. No,15 dated 6-1-2002 under section 302/34, P.P.C. Registered at Police Station Airport, Rawalpindi for committing murder of Ali Rohan. The learned trial Court vide judgment dated 7-11-2002 convicted Mst. Bushra Rohan and Muhammad Azam appellants and sentenced both the appellants to death with further direction to pay Rs,1,00,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default whereof, they have to further undergo S.I for six months.
2. The appellants have challenged their conviction and sentences by filing Criminal Appeal No,664 of 2002. The learned trial Court has also referred the matter to this Court under section 374, Cr.P.C.
Vide Murder Reference No,895 of 2002 for seeking confirmation or otherwise of the sentences awarded to the appellants. Both the matters are being disposed of through this single judgment.
3. The prosecution story in brief, as set-forth in F.I.R. Exh.P.C. Lodged by Abad-ur-Rehman P.W.3 is that he along with his brother Muhammad Hayat and Mst. Zareen Pasha were sleeping in their house, at about 4-00 a.m., Mst. Bushra wife of Ali Rohan, who was residing in a rented house in his neighbourhood, knocked the door and told that Ali Rohan had died. The complainant along with his brother and mother rushed to the house of Ali Rohan. When they reached near the house of Ali Rohan, they saw Muhammad Azam, driver of Ali Rohan going hurriedly from the house of Ali Rohan.
The complainant, his brother and mother found Ali Rohan lying dead on the cot. They found mark of rope around the neck of deceased. On hearing their noise of weeping, Rashid and Sher Zaman and other people of the locality reached there. The complainant had suspicion that Ali Rohan was murdered by Muhammad Azam and Mst. Bushra Rohan due to illicit relations with each other and that the complainant and his deceased brother forbade Muhammad Azam from coming to his house and due to that grudge, Muhammad Azam and Mst. Bushra Rohan committed murder of Ali Rohan.
4. Prior to the lodging of F.I.R. , Mst. Bushra accused filed an application to the S.H.O., Police Station Airport Exh.P.G. Regarding the death of Ali Rohan stating that Ali Rohan was ill and died while he was sleeping. Nazir Ahmed S.-I./Investigating Officer on receipt of information about the occurrence, visited the place of incident, prepared the inquest report of the deceased and sent the dead body to the hbspital for autopsy. He took into possession last worn clothes of the deceased vide memo. Exh. P. A. After receiving the post-mortem report, Investigating Officer recorded F.I.R. On the statement of Abad-urRehman. He also recorded statements of witnesses under section 161, Cr.P.C., recovered rope P-3 from the place of occurrence vide memo. Exh.P.D. He arrested the accused and after completion of codal formality, sent them to face trial.
5. Dr. Muhammad Imdad A.S.-I. P.W.6 conducted autopsy on the dead body of Ali Rohan deceased vide post-mortem examination report Exh.P.F. And found the following injuries:---
(1) There were two injection sites (Tattooing) present on left forearm anterior aspect with bluish contusion area just below the left elbow. Eechumisis was present.
(2) Contusion on the both eye-brows reddish in colour.
(3) A ligature mark was present with its circumference length 40 c.m. Around the neck and originally from front to behind width 2 c.m. Like groov it was 8 c.m. Below from chin and 7 c.m.
Above from sternum at front region, 7 c.m. Below from right ear and 6-1/2 c.m. Below from left side.
6. According to doctor, it was occurred due to strangulation which led to asphyxia mode of death in ordinary course of nature was due to Injuries Nos.2 and 3.
7. In order to establish the charge against the appellants, the prosecution examined 11 witnesses and tendered in evidence the report of Chemical Examiner (Exh.P.E.).
8. After completion of prosecution evidence, the appellants were examined under section 342, Cr.P C. They professed their innocence and pleaded their false implication in the case.
9. In their defence, the appellants produced Mst. Jabin Gul as D.W 1 and Pervaiz Iqbal as D.W.2. The learned trial Court after conclusion of trial convicted and sentenced the appellants as stated above.
10. Learned counsel for the appellants submitted that case against the appellants is of no evidence. It was alleged that prosecution version according to both the appellants had illicit relations inter se which was objected by the deceased, has not been proved by producing any cogent and convincing evidence. The evidence of extra-judicial confession was fabricated just to involve them in the commission of offence. It was also submitted that as name of Kanwal Arooj was not mentioned in the F.I.R. And producing her as any eye-witness after 18 days of the occurrence was just to fill the lacuna of prosecution case. F.I.R. Was lodged with delay of two days and the story furnished by the complainant is highly doubtful and that recovery of rope from house of the deceased is inconsequential, therefore, both the appellants are entitled for their acquittal.
11. In response to the contention raised by learned counsel for the appellants, Learned Deputy Prosecutor General assisted by learned counsel for the complainant submitted that as the dead body was found in the house of Bushra Rohan and Muhammad Azam appellant was seen by the complainant and Umar Hayat P.W. When they rushed to the house of the deceased after learning about the death. It was further submitted that P.W.10 Kanwal Arooj is a natural witness who is daughter of the deceased and Mst. Bushra appellant and she has no grudge against her mother for her involvement falsely in the case and that her statement is so confidence inspiring that only her statement is sufficient for holding guilty of the appellants for their conviction.
12. We have heard the arguments and carefully examined the record with the assistance of learned counsel for the parties and scanned the entire evidence. As regards the motive there is no evidence on this aspect although P.W.3 Abad-ur-Rehman complainant of the case deposed that many persons of their neighbourhood told him regarding the illicit relations of the appellants inter se. Neither he himself witnessed such an act of the appellants nor he produced any witness from the neighbourhood to substantiate version taken by him regarding the fact of motive. P.W.4 Umar Hayat is silent on this aspect of the case rather he goes to state that he do not know about any complaint of illicit relations in between the appellants. Moreover it is also observed by us that Muhammad Azam remained Suzuki driver of the deceased till the time of occurrence. Had there been any complaint against him, then deceased should have shunted him out from his services as a Suzuki driver. Motive has not been proved.
13. Admittedly in the F.I.R. Exh.P.C. Recorded on the statement of P.W.3 on 6-1-2002 no eye-witness has been mentioned in it. From reading of F.I.R. It goes to show that it was Bushra Rohan appellant who went to the house of the complainant at 4-00 a.m. And told them that her husband had died on which complainant P.W.4 Umar Hayat his brother and his mother Zareen Pasha given up P.W.
Rushed to the house of the deceased, where they saw Muhammad Azam appellant coming out of the house of the deceased and found dead body lying in the room and then they shifted dead body to their own house It is worth-noting that in the F.I R. Complainant no where stated that when they reached in the house of the deceased they ever saw P.W.10 Kanwal Arooj or any of the children of the deceased in the said room as rented house of the deceased only consist of one room as shown in the site-plan. It is also mentioned in the F.I.R. That complainant and P.Ws. Had noticed the ligature marks on the neck of the deceased prior to shifting his dead body to their house but it is astonishing that during the trial even in examination-in-chief of the complainant he stated that they took Ali Rohan to hospital complex and doctor kept Ali Rohan in emergency and then he told them that Ali Rohan had expired. He further stated that they took Ali Rohan to the Hospital Complex as he was being treated there. He also stated that when they brought Ali Rohan deceased in their house from the Hospital declaring him dead by the doctor, then they found ligature mark on the neck of the deceased. If deceased was done to death by the appellants then before going to the house of the complainant for furnishing information about the death of Ali Rohan by Bushra Rohan appellant, there was no fun for her to leave Muhammad Azam appellant in her house and also for Muhammad Azam appellant to remain there till the arrival of brother and mother of the deceased over there. As far as statement of P.W.10 Kanwal Arooj is concerned we feel that no conviction could be made on her statement for the reasons that her name as witness has not been mentioned by the complainant in the F.I.R. Which was registered with a delay of two days without any plausible explanation. Even her presence or presence of other children has not been mentioned in the F.I.R. Or shown in any proceeding conducted by the Investigating Officer at the place of occurrence after registration of the case. Admittedly an incomplete challan was prepared and was sent to the office of District Attorney for its scrutiny on 18-12-2002. Ch. Nazir Ahmad S.-I/S.H.O. P.W.11 who investigated the case stated that objection was raised by the District Attorney that why no P.W. From the Mohallah was joined in investigation in support of illicit relations between the appellants and that why eye-witness has been recorded. He admitted that he recorded statement of Kanwal Arooj on 22-2-2002 in compliance of objection raised by District Attorney. D.W.1 Jabin Gul is mother of the appellant Bushra Rohan. She states that deceased has two sons and two daughters. Two days prior to the date of occurrence she took all the children of the deceased to her house with the reason that Ali Rohan deceased was ill and his family was residing in a very congested house. After the demise of Ali Rohan she brought children to attend his funeral ceremony and then again took them along to her house. After 10 days of the occurrence paternal grand-mother of the children asked her to bring the children to her house and accordingly she brought them and thereafter she was not allowed to take the children along with her house. Factum of absence of the children of the deceased from his house on the day of occurrence has also been confirmed by D.W.2 who is neighbour of the deceased and is a witness of an independent character and also from the fact that their presence has not been mentioned in the F.I.R. Conviction cannot be based on the sole testimony of a child witness. Reliance could be placed on Sultan and another v. The State PLD 1965 (W.P.) Kar.
615. If police did not record the statement of witnesses immediately and delay was caused in recording the same then a reasonable explanation is required to be furnished by the prosecution for such delay. As explanation furnished by the prosecution is not confidence inspiring, therefore, statement of P.W.10 Kanwal Arooj could not be relied upon. In this regard Dr. Khalid Moin and others v.
' The State and others 2006 PCr.LJ 639 could be relied upon. As far as recovery of rope Exh.P.3 is concerned it was not taken into custody from the possession or on pointation of the appellants, the said rope was not blood-stained having no support to the prosecution case. P.W.3 Abad-ur- Rehman, P.W.4 Umar Hayat and P.W.8 Muhammad Akram attempted to advance their case by trying to attribute extra-judicial confession to the appellants by saying that on 7-2-2000 when they were sitting in their house for offering Fateh of Ali Rohan deceased, Khalid Khan brother of Mst.
Bushra Rohan appellant and Bushra Rohan accused himself came there and it was Khalid who stated that his sister had committed a blunder and beg for apology. They only said that Mst.
Bushra Rohan appellant also sought pardon for commission of the murder of the deceased. It is not believable that in the gathering of post-funeral ceremony of the deceased just after one day of the registration of the case appellant Bushra Rohan would go there and after her confession complainant, his brother P.W.8 and other persons present over there neither they informed the police nor they apprehended her. Likewise prosecution produced P.W.9 Sher Zaman as a witness of extra-judicial confession of Muhammad Azam appellant who stated that on 8-1-2002 he along with his brother Haider Zaman when were present at a hotel where they saw Muhammad Azam appellant along with two unknown Pathans and he heard the conversation in between Muhammad Azam and those two Pathans. Muhammad Azam appellant was telling the above said two Pathans that Mst. Bushra Rohan appellant has proved herself of a weak heart as she has disclosed all the secrets and that in-laws of Mst. Bushra Rohan appellant had come to know that he (Azam) was also involved in the murder of Ali Rohan deceased. By scanning the evidence of extrajudicial confession, statements of the appellants before the said P.Ws. Could not be termed as extra- judicial confession as no time, date and manner of commission of offence has been mentioned.
The treatment of the P.Ws. With the accused/appellants after their confession before them, also indicates that the said piece of evidence was no where available but of their imagination.
14. For the foregoing reasons we are with the confirmed view that there is no evidence with the prosecution to connect the appellants with the death of Ali Rohan deceased. We hereby accept this appeal, set aside the impugned judgment and hereby acquit both the accused from the charge against them. They are under custody. They should be released forthwith if not required in any other case.
15. Murder reference is, answered in the negative.