' MUHAMMAD AHSAN BHOON, J.---This judgment shall dispose of Crim. Appeal No, 128 of 2002 filed by Tasharuf Hussain Shah, Mst, Kubra. Bibi, Mat. Tahira Jabeen, and Crim. Appeal No, 285 of 2002 filed by Mat. Kubra Bibi and, Mat. Tahira Jabeen through the Superintendent, Women jail, Multan challenging their conviction and sentence and Crim. Revision No, 48 of 2002 filed by Sultan Mahmood-, petitioner-complainant for awarding normal penalty of death and further amount of fine/comperisation awarded to respondents Nos. 1 to 3, as all arise out of judgment dated 27.2.2002 passed by the learned Additional Sessions Judge, Gujjar Khan, District Rawalpindi, in case FIR No, 76, dated 7.5.2000, offence under sections 302/34, PPC at P.S. Jatli District Rawalpindi, vide which he convicted the appellants Tasharuf Hussain Shah, Mst. Kubra Bibi and Mst. Tahira Jabeen under section ' 302(b), PPC and sentenced them to undergo imprisonment for life as ta'zir each and also directed the appellants to pay compensation. Of Rs, 50,000/- each to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was extended to them.
2. Briefly the facts of the prosecution case are that Sultan Mahmood, complainant (PSG'-14) made a report to the police on 7.5.2000 at about 12:15 Noon that he was resident of village Bhains Damwal and was cultivator. His cousin (Chacha Zad) Ali Asif son of Muhammad Afzal was also resident of Village Bhains Damwal and he was cultivator; That on 6.5.2000, at about 9:30 p.m., Ali Asif went to the house of Munir Hussain son of Ali Akbar resident of village to offer Fatia Khawani who did not come back and his mother Mst. Zaib-un-Nisa came to his house and informed him that Ali Asif had not come back. He alongwith Muhammad Ali son of Muhammad Anwar and Zahoor Ahmad son of Manzoor Ahmad went out to search out Ali Asif, but he could not be traced out and then he went back to his house to sleep; that on 7.5.2000 at about 7:30 p.m., his sons Irfan Mehmood and Nauman Mehmood took the buffalo to Barsati Nallah near the Jillage who saw the dead-body of AL-Asif smeared in blood lying in the land of Nazakat Hussain resident of Kali Bhagral across the Barsati Nallah; That they immediately came back and informed the complainant whereon, he alongwith Muhammad Ajaib and Chokidar Karamat Hussain went to the spot and saw the dead- body of All Asif lying in the land of Nazakat Hussain who had received injuries on, both sides of his neck and on his both hands and there was a adeep wound on his head; That Ali Asif was murdered by un-known culprits. So the complaint was, sent by Muhammad Anwar, S.I/SHO with his endorsement to the Police Station for registration of criminal case through Zafar Iqbal constable No, 2862 and on the basis of the same, FIR Exh. PK/2 was drafted by Muhammad Ayub, ASI.
3. After due investigation report under section 173, Cr.P.C. Was submitted in the learned Trial Court.
Charge was framed against accused/appellants, who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant was examined under section 342, Cr.P.C. Neither any of them opted to appear as his own witness in disproof of the allegation levelled against them as required u/s. 340(2), Cr.P.C. Nor did they adduce defence evidence. The learned Trial Court after hearing the parties passed the above-said conviction and sentence.
4. Heard. Record perused.
5. Admittedly this is a case of unseen-and un-witnessed occurrence wherein no direct evidence for the commission of alleged murder of Ali Asif, 'deceased was available. So whole case of the prosecution hinges upon the circumstantial evidence. Prosecution case hinges upon extra-judicial confession, last seen evidence and evidence of recovery as well as medical evidence. Evidence of Mukhtar Ahmad (PW5) and Rehmat Ullah (PW-6) was qua the extra-judicial confession. Both the said witnesses are residents of District Sargodha and according to their own statements before the learned Trial Court they were not previously known to the accused nor had any relation with them, so it seems very improbable that the accused will make confession before a person to get favour who has no acquaintance with them. Even otherwise the reasons explained by them that why they went to village Bhains Damwal from Sargodha to the place i.e, Gujjar Khan, does not fall between the village of occurrence and Sargodha. Similarly, when there is no evidence that how the accused had knowledge about the time of coming of these PWs in the village of occurrence so how they could make statement before them. Even otherwise the evidence of extra-judicial confession is weakest type of evidence and the same cannot be relied upon for the purpose of conviction and sentence in a case of capital punishment unless corroborated by other strong piece of evidence.
6. As un-witnessed occurrence which took place in the night between 6-7.5.2000 and the dead- body of Ali Asif deceased was found lying near Barsati Nallah on the next day of occurrence. The prosecution in order to prove its case, produced one witness Ali Ahmad PW-7 who had allegedly lastly seen the deceased in the company of the accused-appellants, was closely related to the deceased as admitted by him in the first line of his cross-examination. He deposed that he had seen Mst. Kubra Bill and Mst. Tahira Jabeen appellants alongwith Ali Asif deceased coming outside the house of Munir Hussain and going towards Bursati Nallah and after a short while he saw the accused-appellant Tasharuf Hussain going towards Barsati Nallah i.e, the place of occurrence but the said deposition itself does not show that the appellant Tasharuf Hussain was seen in the company of the deceased Ali Asif, as according to him, he saw only the appellant Tasharuf Hussain going in direction of the place of occurrence whereas PW-3 stated that on 6.5.2000 at about 11:30 p.m. In the night when he came out of his house he had seen the accused Tasharuf Hussain, Mst.
Kubra Bibi and Mst. Tahira Jabeen passing fastly on the front of his house and going towards their houses and on the next day, he came to know that Ali Asif deceased had been murdered and accused mentioned above were responsible for the said murder. So the said PWs had not at-all seen the accused in the company of the deceased. Even otherwise, PW-7 admitted that there are three other ways which led to Barsati Nallah from the old house as well as new constructed house of the accused persons and even he admitted this fact that during the investigation that he had not told the police about the house of Munir from where two ladies accused and the deceased had come. So I am of the considered view that last seer evidence is mere concocted one and an after thought story when the prosecution came to know about the murder and dead-body was found near the Barsati Nallah.
7. As far as the story of motive is concerned, PW-9 Muhammad Ibrar Anwar deposed that there was an altercation about the payment of Rs, 15,000/- which was due towards Mst. Kubra Bibi accused and when deceased demanding the same, the accused Mst. Kubra Bibi and Ali Asif were seen by the appellant Tasharuf Hussain and he said to Ali Asif deceased that he had illicit liaison with Mst.
Kubra Bibi and why he was demanding the money from her in a harsh manner. The story itself does not appeal to reason that, as Mst. Kubra Bibi is real Bhabbi of accused Tasharuf Hussain and one would not encourage any woman who is his closely related to develop illicit relations with her paramour and even otherwise if Mst. Kubra Bibi had illicit liaison with the deceased then it does not appeal to reason that she would join hands another accused to facilitate for the murder of her paramour, who is source of her leisure and happiness.
8. As far as recovery of torch P. 1 which was taken into possession by the police vide recovery memo. Exh. P.C. At the behest of Mst. Kubra Bibi and wrist watch P. 2, taken into possession vide recovery memo. Exh. PD at the behest of Mst. Tahira Jabeen are concerned, it was never stated by any of the witnesses of last seen that these accused were moving while holding torch in dark hours of the night. Similarly, the dead-body was recovered and the FIR was lodged but it was nowhere mentioned in the FIR that anything belonging to the deceased was missing. So story of the prosecution itself would show that the said recoveries are fake and planted upon them, hence does not furnish any corroboration. Similarly, the -recovery of hatchet from the accused Tasharuf Hussain also does not help the prosecution as neither PW-3 nor PW-7 stated single word about seeing in holding hatchet in his hand. Even there is no independent witness of the said recovery and the same is in violation of section 103, Cr.P.C. It is also an admitted fat that recovery of hatchet took place from an open place, which was accessible for public at large.
9. As far as medical evidence is concerned, no doubt deceased died un-natural death due to the injuries received but it was an unseen occurrence and the injuries itself does not furnish any corroboration that the same was caused by particular person. Hence, there is no need to, dilate on the same.
10. I may observe here that the whole, case of the prosecution hinges upon circumstantial evidence and it is settled law that in such type of case the Court must remember that the processes of inference and deduction are essentially involved frequently of a delicate and perplexing character.
Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances, those circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The circumstances sought to be relied upon must have been established beyond all doubt and the prosecution evidence should be in the shape of chain that must go in geometrical progression and if a single ring of chain is missing then whole case would all on the ground. While applying the above criteria it would not, be safe to rely upon the above-discussed evidence produced by the prosecution, which is pregnant with inherent discrepancies as well as improbabilities, hence in my considered view that this is a case of no evidence.
11. For what has been discussed above, the appeals filed by the appellants are allowed, the judgment of conviction passed by the learned Trial Court on 27.2.2002 is hereby set aside and the appellants are acquitted of the charge of murder. The appellant Tasharuf Hussain is in custody. He shall be released from jail forthwith if he is no longer required in any other case. The appellants Mst.
Kubra Bibi and Mst. Tahira Jabeen are on bail; their sureties are discharged from the liabilities of the bail bonds.
12. Criminal Revision filed by the complainant is hereby set aside.