' RAUF AHMAD SHEIKH, J.---Arshad Mahmood and Mst. Ghazala Shaheen appellants have assailed the vires of judgment dated 28-2-2006 passed by Syed Muzaffar Ali Shah, learned ASJ, Rawalpindi, whereby they were convicted and sentenced as under:--
(i) Arshad Mahmood appellant convicted under section 302(b), P.P.C. And awarded death sentence. He was also ordered to pay a sum of Rs,2,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default to undergo S.I. For six months.
(ii) Mst. Ghazala Shaheen appellant convicted under section 302(b), P.P.C. And sentenced to imprisonment for life. She was further directed to pay a sum of Rs,1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default to undergo S.I. For six months.
2. Through Criminal Appeal No,86 of 2006 and Criminal Appeal No,71 of 2006, they have assailed the conviction recorded and sentences awarded to them. The learned trial Courts has also submitted Murder Reference No,192 of 2006 seeking confirmation or otherwise of the death penalty awarded to Arshad Mahmood appellant under section 374, Cr.P.C. As all these matters are inter-connected and inter-linked so are being disposed of through this single judgment.
3. Briefly stated the prosecution version embodied in the F.I.R. (Exh. PD/ I) recorded on the statement (Exh.PD) of Basharat Hussain son of Bostan Khan, Caste Rajpute Thakral, aged about 33/34 years, an Army personnel, resident of Darkali Sher Shahi, is that the complainant had contacted two marriages, From the wedlock with first wife namely Mst. Aziz-un-Nisa late a son Qasim Mehmood aged about 13/14 years was born who was studying in 7th Class. The second marriage with Mst. Ghazala Shaheen had taken place nine years back and out of wedlock with her one son aged three years and a daughter aged 1-1/2 months were born. On 15-2-2005 he received an information on telephone from home that Qasim Mehmood was missing and on this information he came to his house, His wife told that on the preceding day i,e, 15-2-2005 at about 10.30 a.m. One unknown person came to the house along with Qasim Mehmood, who was made to sit in the Baithak by his son and he himself came to her and told that the said person had come from his father's side to know the well being of the family. On this the complainant's wife told his son that his father had gone only two days back so there was no news. The unknown person left the Baithak and Qasim also went along with him. The complainant started search of Qasim Mehmood along with other relatives. On 17-2-2005 he along with his nephew Waseem Khalid son of Khalid Hussain and Arshad Mahmood son of Dawood Ahmad both residents of the same village arrived in the Jungle where dead body of Qasim Mehmood was found lying in `kassi nama' (low lying area with high banks).
4. After investigation, both the accused/appellants were sent up to face trial. They were charged under sections 302/34, P.P.C. They pleaded not guilty and claimed the trial.
5. After conclusion of the trial and hearing arguments the learned trial court, proceeded on to convict and sentence the appellants as mentioned above.
6. The prosecution examined 14 witnesses in support of its allegations in addition to the documentary evidence adduced. Basharat Hussain (P.W.9) almost reiterated the contents of his statement (Exh. PD) and proved his signatures on the same and added that his son was murdered by his wife Mst. Ghazala Shaheen and Arshad Mahmood in furtherance of common intention and that he had no enmity in the village. Once he had come on the following day of Eid and found Arshad Mahmood appellant present in his house. He gave him two slaps and asked to refrain from coming to his house. He said that on his return from job, would again see him as to why he had come to his house so in connivance with his wife, he committed murder of his son.
7. The medical evidence was produced through Dr. Sajjad Hassan Raja (P.W.1) who had conducted the autopsy of the dead body on 17-2-2005 and found following injuries on his person:--
(1) An encircling ligature parchment-live starting from angle of mandible crossing over the thyroid crossing over a left and upper boundary of left stern mastoid muscles and left angle of mandible.
(2) Multiple contusion at the route of neck and throat and up-to under surface of chin.
' In his opinion, the cause of death was injuries Nos.1 and 2. All the injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. The probable time between injuries and death was 5 to 20 minutes and between death and post-mortem 5 to 40 hours. He proved post mortem report (Ex.PA) and pictorial diagram (Ex.PA/1).
8. Mst. Nasreen Akhtar (P.W.2) stated that she had seen the deceased going with Arshad Mahmood appellant on 15-2-2005 at about 7-30 a.m. Aurangzeb (P.W.6) and Khalid Mehmood (P.W.7) had stated that accused/appellant Arshad Mahmood had confessed his guilt in their presence on 6-3- 2005 at about 11-30 a.m. At the residence of P.W.7. Israr Hussain (P.W.12) and Iftikhar Ahmad, Inspector/SHO (P.W.14) have stated that Arshad Mahmood and Ghazala Shaheen made disclolure and led to the recovery of wire (P.7) from an iron box lying in a room of the house of Ghazala Shaheen, which was secured through memo of recovery (Exh.PF). Iftikhar Hussain, S.I. (P. W.13) proved the statement of the complaint (Exh. PD).
9. Iftikhar Ahmad (P.W.14) had conducted the investigation of this case. He proved site plan without scale (Exh.PH), memo of recovery (Exh.PE) regarding securing of last worn clothes and shoes of the deceased, site plan prepared by Patwari (Exh.PB), memo of pointation of place of occurrence (Exh.PG), memo of recovery (Exh. PF) regarding securing of electric wire (P.7) and site plan of place of recovery (Exh.PJ). He also arrested both the accused/appellants and recorded the statements of all the P.Ws.
10. The learned counsel for the appellants have contended that the evidence as to extra-judicial confession is totally unreliable as there are material contradictions in the statements of P.Ws.6 and 7 and their behaviour was not natural. It is urged that the evidence regarding extrajudicial confession cannot be made basis for capital punishment unless the same is furnished through trustworthy witnesses in a confidence-inspiring manner. It is also contended that the statement of Mst. Nasreen Akhtar (P.W.2) regarding having seen the deceased alive lastly in the company of the appellant Arshad Mahmood suffers from infirmities and is not worth reliance at all. In support of the contenions raised, reliance is placed on Tahir Javed v. The State (2009 SCM R 166), Sajid Mumtaz and others v. Basharat and others (2006 SCM R 231) and Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103).
10-A Controverting these arguments, the learned counsel for the complainant and the learned DPG have contended that the appellant Arshad Mahmood had himself voluntarily made confession before P.Ws.6 and 7 who had no grudge to make false statements and as such the extra-judicial confession though retracted by itself is sufficient to prove the guilt of the appellants. In this respect, reliance is placed on Nizam-ud-Din v. Riaz and another (2010 SCM R 457). It is also urged that the appellant Arshad Mahmood had led to the place where the dead body was lying so it is positively established that he had exclusive knowledge of the concealment of the dead body and it is a very strong circumstance in support of the prosecution allegation against the appellants.
11. The prosecution case mainly hinges upon the statements of P.W.2, P.W.6 and P.W.7. Mst. Nasreen Akhtar (P.W.2) who had allegedly seen the deceased alive for the last time in the company of Arshad Mahmood appellant has admitted in the cross-examination that her son Asif was interrogated and kept in the Police Station for some days along with one Safeer. She had made her statement for the first time on 3-3-2005. Had she, in fact, seen the deceased alive for the last time with Arshad Mahmood appellant, she would have disclosed this fact immediately after discovery of the dead body in order to remove the doubts against her own son. She also admitted that after recovery of the dead body, she had been visiting the house of the complainant but did not disclose them she had seen the deceased with Arshad Mahmood appellant. Her evidence, therefore, does not inspire confidence and it appears that she has become witness in order to save her own son.
12. The evidence regarding extra-judicial confession has been furnished by P.W.6 and P.W.7.
Although they have stated that this confession was made by Arshad Mahmood appellant at one time but the facts narrated by them are different from each other. There are material contradictions also in the statements made by both of them. P.W.6 stated that after the confession, he and Khalid went to the house of the complainant to inform him about the same. P.W.7 Khalid Mehmood stated in the cross-examination that he did not inform Basharat about the extra-judicial confession made by Arshad Mahmood appellant. P.W.7 has further stated that he had not told this fact to any person till the date of his evidence i,e,, 4-7-2005 and had kept this fact in his heart. Both of them are closely related to the complainant and had the confession been made by Arshad Mahmood appellant before them, they would have made an attempt to apprehend him. The evidence regarding extra-judicial confession is always considered as a weak piece of evidence and should be scrutinized very carefully. It should not be believed unless it is adduced by trustworthy and reliable witnesses. It is a matter of common knowledge that in blind murders, the witnesses under influence of the agg ived family are usually prompted to come forward to depose regarding making of extra-judicial confession by the accused, who are suspected. In view of this aspect, it is always imperative in the administration of justice on criminal side that the evidence of such witnesses should be appraised with great care and caution and could not be made basis for conviction unless the court is fully satisfied that the witnesses have stated nothing but the truth.
The case-law reported as Nizam-ud-Din v. Riaz and another (2010 SCM R 457) is not applicable on the facts of this case. We are of the considered view that P.Ws.6 and 7 have not come forward with true facts and have tailored a story to lend support to the prosecution version.
13. The contention of the learned counsel for the complainant that the appellant Arshad Mahmood had led to the place where dead body was lying so he had exclusive knowledge of the place and this is a strong circumstantial evidence to prove his guilt, is not borne out from perusal of record because no one had stated that he had led to the place where dead body was lying rather the prosecution version is that the complainant Waseem Khalid and appellant Arshad Mahmood arrived at the place in search of Qasim Mehmood deceased.
14. The learned counsel has then urged that both the appellants have illicit relations with each other and the deceased had seen them in compromising position so he was done to death. There is no evidence available on the record to establish it beyond doubt that both the appellants had illicit relations. The extra-judicia confession in this respect has already been held to be not believable by us. Waseem Khalid (P.W.10) did state that he saw both the appellants while committing Zina with each other but in the cross-examination he admitted that he had not stated this fact in his statement before the Police. It is, thus, clear that he had made dishonest improvement to bring his statement in line with the prosecution version. Moreover, he stated that he told this fact to his uncle Basharat but Basharat Hussain has not specifically mentioned so. It is, thus, not established that the appellants had illicit relations with each other and for this reason they committed Qatal of Qasim Mehmood deceased.
15. The recovery of wire is also very doubtful because the joint recovery is not recognized by law.
Moreover, the wire (P.7) is of ordinary nature and available easily from the Bazars and Markets. The contention that after committing murder, Arshad Mahmood appellant had brought it to the house of Mst. Ghazala Shaheen appellant cannot be believed because had, in fact, this been the weapon of offence, it would have been thrown in the Jungle where the dead body was lying and the appellants would have not kept it in the house just to enable the prosecution to use it against them.
16. For all that has been observed above, we are of the considered opinion that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. The learned trial court did not appreciate the evidence in its true perspective. The findings of learned trial Court, the conviction recorded and sentences awarded by it are not sustainable. Consequently both the appeals are accepted and the appellants are acquitted. They are in the Jail and be released forthwith if not required to be detained in any other case. Murder Reference No,192 of 2006 is answered in the negative.