Muhammad Farrukh Mahmud, J.--This appeal, by leave of this Court, is directed against judgment dated 07.06.2007 handed down by learned Federal Shariat Court, in case FIR No, 49 of 2004 registered at Police Station Raiwind Saddar, District Kasur on 08.02.2004 at 2:00 p.m. for offences under Section 302 PPC read with Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereby convictions and sentences recorded by the learned trial Court vide judgment dated 24.06.2005, in following offences were maintained:--
(a) Under Section 302(b) PPC to life imprisonment plus compensation of Rs, 5,000/- in default of payment thereof to suffer further 3 months S.I.
(b) 380/411 PPC-7 years R.I. plus fine of Rs, 10,000/4n default thereof to suffer further one month S.I.
The sentences were directed to run concurrently and benefit of Section 382-B was given to the convict.
Through the same judgment, appellant was acquitted of the charge for offence under Section 18/10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979:
2. The case FIR was registered on the statement of Muhammad Jameel (PW-13)-father of deceased Nida Jameel. The relevant facts are that the complainant was an employee of Mehran Ramzan Textile Mills situated near Bucheke Bypass. His wife had left for Sahiwal on 07.02.2004 while his son Ahsan Jameel had gone to Lahore. Complainant and his deceased daughter Nida Jameel were alone in the quarter allotted to the complainant. On the fateful day at about 8:15 a.m., the complainant left his house in pursuit of his duty. Muhammad Sajjad appellant met the complainant at his door and inquired about his going to the Mill. The complainant informed him that he was on his way to perform his duties. The complainant left for' his job, leaving her daughter Nida Jameel aged about 10-11 years alone in the house. At about 11 a.m. Ahsan Jameel returned from Lahore and knocked at the door which was bolted from inside. Since the door was not opened he climbed over the wall and jumped in the compound of the house. He discovered that Nida Jameel was lying dead in the bed room. Ahsan rushed to the Mill and informed his father, thereafter complainant and Ahsan went to their. house and saw that Nida Jameel had been strangulated and there were signs of abrasion on her neck, and blood was oozing from her nose.
The complainant discovered that Rs, 10,000/-had been removed from the drawer of the table.
While reporting the matter to the police the complainant 'showed his suspicion against Sajjad- appellant and one Muhammad Riaz.
3. During trial prosecution examined 15 witnesses in support of its case. PW-13 narrated the facts given in the FIR, however lie added that on checking the articles he found that his Identity Card was also missing. He further stated that on his return Rao Shamim Ali Khan (PW-7), Muhammad Akram (PW-9), Raheem Ullah (PW-8) and Muhammad Hanif (not produced) met him and informed him that they had seen the appellant in a confused state in the street and while climbing down the wall and that Raheem Ullah had seen the appellant while he was knocking at the door of his house and that the door was opened and the appellant went inside, PW-7 and PW-9 stated that at about 10.00/10:30 a.m., they saw the appellant while he was climbing down from the wall of the quarter of complainant. PW-7 added that he called the appellant who did not stop and ran away. PW-8 stated that at about 10 a.m. he saw the appellant knocking at the door of the complainant and that he also saw the appellant entering inside the quarter. PW-11 and 12 Haseeb-ul-Najum and Abdul Hameed stated about the confession of the appellant, however their statements were discarded and not-believed. PW-6 Dr. Farzana Shaheen conducted postmortem examination on the dead body of the deceased on 09.02.2004 at 11 a.m., she observed that the cause of death was shock due to asphyxia caused by throttling due to fracture of hyoid bone. All injuries were ante-mortem and sufficient to cause death in ordinary course of nature. She further stated that the time elapsed between death and postmortem was about 22 hours. PW-5 Faryad Hussain stated about the recovery of silver ring with name Nida written on it, I.D. Card of the complainant and Rs, 5,000/- at the instance of the appellant from Quarter No, 10 of residential colony of Mehran Ramzan Textile Mill. Ahsan Jameel s/o complainant appeared as PW-14 and after narrating the facts given in the FIR made improvement in his statement by stating that Identity Card of his father and ring of the deceased was also taken away. He was duly confronted with his statement recorded under Section 161 Cr.P.C. Muhammad Boots. S.I. (PW-15) stated about the investigation of the case, arrest of the accused and recoveries. The rest of the witnesses are formal in nature. After closure of prosecution case statement of the appellant was recorded under Section 342 Cr.P.C. The appellant pleaded innocence, and explained his position in answer to Question No, 9 which is as follows:-- "I along with Abdur Razaq son of Sher Muhammad and Molvi Hassan resident of Qr. No, 9 were arrested on 8.2.2004 by local police thereafter, local police arrested some other workers of this mill due to suspicion. Other workers of the mill became afraid and they started feeing away from the mill. Due to non-availability of workers there was apprehension of close of mill of couple of days. In that situation owner of the mill inquired the administration. Due to these circumstances the administration stopped the police from arresting other workers and made me scape goat. The PWs are very interested. They made statements due to relation with complainant and due to influence of mill administration and specially Admn. Manager, who was very interested in this case.
He appeared on each and every date of hearing in this Court after recording of his statement.
Furthermore, I produce my written reply in this regard which is mark-A."
4. Leave was granted by this Court on 10.12.2007 to re-appraise the evidence of last seen and recoveries. The order is being reproduced for easy reference:- "Malik Saeed Hassan, learned counsel for the petitioner has contended that in recording conviction against the petitioner in the instant case, the learned trial Judge had relied upon the extra-judicial confession of the petitioner made before PW-11 Naseeb-ul-Najum and PW-12 Ch. Abdul Haq but the same was disbelieved by the Federal Shariat Court in appeal and the petitioner was also acquitted from the charge of rape. He has added that after disbelieving the extra-judicial confession, their remained on record only the evidence of last seen and the recoveries i.e. ring of the deceased, Identity card of the complainant and a sum of Rs, 5,000/- allegedly recovered from the upper storey of Quarter No 10 belonging to the Muhammad Nasrullah, the said quarter was a single storey building ' therefore, the discrepancy had marred evidentiary value of the evidence of recovery and therefore, last seen evidence alone was not sufficient to bring home charge against the petitioner. In order to consider as to whether in the absence of direct evidence, the afrore-mentioned pieces of evidence which according to the learned counsel for the petitioner were purely of corroboratory in nature, were sufficient to base conviction thereon, leave to appeal is, granted."
5. The learned counsel for the appellant has submitted that the evidence of last seen was not worthy of credence and that the recoveries were fake and were planted upon the appellant to strengthen the case. The learned counsel for the appellant further argued that after disbelieving the evidence of extra-judicail confession the learned court convicted the appellant merely on presumption. Conversely it has been argued that PW-7, 8 and 9 were independent witnesses who had no motive to falsely implicate the appellant and that their evidence was fully supported by the recovery of articles at the instance of the appellant which fully implicated him.
6. We have heard the learned counsel for the parties and have gone through the entire record of the case. Admittedly the story of extrajudicial confession was disbelieved by the appellate Court for good and cogent reasons. After excluding the evidence of extra-judicial confession, we are left with the evidence that the appellant was seen while he was entering the house of the complainant and was also seen when he was coming out of the house and the recovery of articles belonging to the deceased and complainant at the instance of appellant. Undeniably it was an un-witnessed crime. PW-7, 8 and 9 only said about presence of the appellant near the house of the complainant.
PWs had not seen the deceased in the company of appellant. At most this piece of evidence can be described as a relevant circumstance through WAJ TAKKAR (chance) witnesses. PWs-7, 8 and 9 are co-workers of the complainant and happened to be present at the relevant time by chance.
According to PW-8 he saw the appellant, knocking the door of the quarter of the complainant, and entering into it. After noticing the above fact this PW left for Jaranwala, and returned at 4.00 p.m.
The act of the appellant did not cause any concerned to the PW and instead of making any inquiry or reporting the matter to the complainant. He went to Jaranwala and managed to return by 4:00 p.m. Which it is difficult to believe considering the distance between the place of occurrence and Jaranwala and the occasion for which this witness had gone to Jaranwala. According to him he had gone to Jaranwala in order to celebrate Eid with his children, in that case there was no occasion for him to return on the same date after leaving his children behind. PWs-7 and 9 have stated that they had seen the appellant while he was climbing down the wall of the quarter of the complainant at about 10:00/10:30 a.m. Admittedly, the unusual act of the appellant did not raise any suspicion in the minds of the witnesses. Both of them were co-workers of the complainant, in case they had seen the appellant climbing down out of the house of the complainant, then their, natural response would be to immediately inform the complainant or police, or at least knock at the door of the complainant. On the contrary both these witnesses did not react and did not narrate the circumstance to any one till the arrival of police. PW-7 admitted that he was on visiting terms with the complainant but he did not raise any noise when he saw appellant climbing down from the wall and he did not try to apprehend the appellant. He also admits, that he did not go to the house of the complainant after having seen the appellant and did not disclose this fact to any neighbor, to the Security Officers or to the General Manager. Similarly PW-9 also admitted that after having seen the appellant climbing down from the wall of the house of the complainant, he simply went to his house and did not bother to inform the complainant, Security Officers, General Manager or any of the Security Guards about it During cross-examination, he firstly stated that his statement was not recorded by the police then he improved his statement by stating that he did not remember and further improved his statement by stating that his statement was recorded. In addition to all that, it does not appeal to reason as to why the appellant chose to come out of the house of the complainant by climbing down the wall of the house. He could easily come out from the front door after satisfying himself that he was not being seen by anyone. It is also illogical that the appellant would knock the door and enter inside the house, of the complainant in the presence of the witnesses while, according to prosecution case the appellant had entered into the house to commit a crime. As noted above the conduct of the PWs, who were chance witnesses, was not natural and their testimony could only be believed in the presence of very strong and independent corroboratory evidence, which was lacking in this case. According to prosecution case, on 25.02.2004, the appellant, who was in custody led to the recovery of Rs, 5,000/-, Identity Card of the complainant and a silver ring which contained the name of Nida. In order to prove the recoveries Faryad Hussain Constable, (PW-5) and Muhammad Boota (PW-15) appeared before the learned trial Court. For various reasons no reliance can be placed on this piece of evidence. Firstly it was not narrated in the FIR that the Identity Card of the complainant and silver ring of the deceased were missing. PW-13 and PW-14 tried to improve their statements before learned trial Court but were duly confronted with their earlier statements.
Secondly there was no occasion for the accused to remove the Identity Card of the complainant and the silver ring of the deceased as both these articles could easily implicate him. Undeniably, it was an ordinary ring of not much worth to be stolen. As far as Identity Card of the complainant is concerned it was of no use to the accused. Anyone with a head on his shoulders would not keep these articles intact till his arrest so as to produce those to the I.O. Thirdly the provisions of Section 103, Cr.P.C., which are mandatory in nature were violated as no one from the locality was associated during the recovery. Both the recovery witnesses were Constables who were sub- ordinate to the I.O. Section 13, Cr.P.C. requires that officer about to make the search would call upon two or search. We would like to refer to the judgment of this Court in the case of Muhammad Azam vs The State (NLR 1996 Criminal 197) wherein it was observed as follows: "It is necessary in this case to touch question of interpretation and requirements mentioned in Section 103, Cr.P.C. in order to clarify position. Bare perusal of Section 103, Cr.P.C. shows that it applies with full force when search is to be made of place which is in a locality. In other words it can be said that Section 103 is relatable to the place and not to the person. If place is known where search is to be made and that place is situate in a locality which is inhabited by the people, then it is necessary to join two or more respectable persons from that locality to witness the search. Main object behind Section 103, Cr.P.C. is to guard against possible chicanery and concoction and for that reason witnesses from the locality are to be joined in the investigation and if this is done and for some reason subsequently in the Trial Court those witnesses from the locality are not produced for the reason that they had been won over, then evidence of police officer who made the recovery can be believed if his conduct in the investigation is beyond reproach."
In the instant case there is no explanation as to why the inhabitants of the locality were not associated during search. It was so held in the case of State through Advocate-General, Sindh Vs. Bashir and others (PLD 1997 SC 408) which is as follows: "It may be observed that it has been repeatedly held that the requirement of Section 103, Cr.P.C., namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public.
For the above noted reasons, the recovery evidence is not worthy of any credence. M far as medical evidence is concerned it does not lead to the killer.
7. For all what has been said above, we allow this appeal. The judgments passed by the learned Courts below are set aside, the appellant is acquitted of all the charges and would be released if not required in any other case.