' ABDUS SATTAR ASGHAR, J.---This appeal under section 417(2-A), Cr.P.C. Is directed against the judgment dated 23-5-2011 passed by the learned Additional Sessions Judge, Rahimyar Khan, whereby he acquitted respondents Nos.1 to 4 accused in case F.I.R. No,96 of 2008 dated 4-3-2008 under sections 302/364 and 34, P.P.C. Registered at Police Station City Sadiqabad, District Rahimyar Khan lodged by Mst. Khurshid Bibi regarding abduction of her daughter Mst. Javeria Nasir.
2. Brief facts leading to this appeal are that Mst. Khurshid Bibi widow of Nasir Ali lodged the above said F.I.R. Alleging that she was wedded to Nasir Ali in the year 1986; that the spouses had three daughters namely Shamila Nasir aged 20 years, Javeria Nasir (deceased) aged about 14/15 years and Nadra Nasir aged about 12/13 years, that the said Nasir Ali contracted a second marriage with one Mst. Saima daughter of Ashraf Ali about 6/7 years back by enticing her against the wishes of her parents and brought. Her to the house resulting into disputes between Khurshid Bibi and Nasir Ali whereupon the complainant went to her parents at Jhelum; that on 15-8-2007 Nasir Ali was murdered by her second wife Saima Bibi, his mother-in-law namely Hanifan Bibi and his brother- in-law Kashif with the help of hired assassins at the house of his in-laws; that the complainant having come to know about the murder of her husband reached Chak No, 166/P and found her daughter namely Javeria missing from the house; that P.Ws. Muhammad Razwan and Manzoor Ahmad disclosed to the complainant that some time before the murder of Nasir Ali the accused/respondents Nos.1 to 4 had taken Javeria Nasir in a white coloured car from Chak No,166/P and thereafter she did not come back; that the complainant has been searching for her daughter Javeria Nasir at her own but did not find any clue; that the 'accused/respondents Nos. 1 to 4 in furtherance of common intention have enticed/abducted Javeria for the purpose of sale or has murdered her.
3. On the basis of the above report F.I.R. Was registered against the accused/respondents Nos. 1 to 4 under section 496-A, P.P.C. During investigation it revealed that an unknown woman was murdered in Abbasin Hotel, Bahawalpur and in this regard case F.I.R. No 204 of 2007 dated 10-6- 2007 under section 302/34, P.P.C. Had already been registered at Police Station Kotwali, Bahawalpur and the dead-body of the unknown woman was buried after postmortem examination.
Complainant party identified the last-worn clothes of the deceased lady as of Javeria Nasir therefore the offence under section 496-A, P.P.C. Was deleted and offence under section 302/34, P.P.C. Was added. The accused were arrested and after investigation challan under sections 302/34/364, P.P.C. Was submitted against the said accused.
4. After submission of challan against the accused Muhammad Qasim and Mst. Hanifan Bibi charge was framed on 20-6-2009. Later on accused Muhammad Asim was also arrested by the police and report under section 173, Cr.P.C. Was submitted and consequently charge was refrained on 24-12-2009 whereas accused Mst. Saima Bibi earlier allowed post-arrest bail was declared a proclaimed offender. The accused did not plead guilty and claimed to be tried.
5. Prosecution produced as many as 19 witnesses to prove the charge. This is an unseen occurrence. Prosecution evidence is based on the dimensions of extra-judicial confession and last-seen. Accused Muhammad Qasim, Muhammad Asim and Hanifan Bibi in their statements under section 342, Cr.P.C. Denying the prosecution evidence pleaded their innocence and categorically contended that they have been falsely implicated in this case with malice being real brothers and mother of co-accused Saima Bibi second wife of Nasir Ali deceased.
6. After providing opportunity of hearing to the parties learned tri41 Court acquitted all the above mentioned four accused on the ground that the prosecution has failed to produce reliable and confidence-inspiring evidence to connect the said accused with the alleged abduction and murder of Javeria Nasir deceased.
7. Learned counsel for the appellant has argued that the impugned judgment of acquittal is arbitrary, perverse and contrary to law and facts of the case and liable to set aside; that the trial court has misappreciated the evidence available on the record in sheer disregard to the principles of administration of criminal justice; that the prosecution evidence on the dimension of extra- judicial confession and last-seen is worthy of credence; that the learned trial court has acquitted all the accused including Mst. Saima who was declared proclaimed offender and was not facing trial; that the learned trial Court erred in disbelieving the P.Ws. Causing miscarriage of justice.
8. We have given patient hearing to the counsel for the appellant and perused the record carefully.
9. Careful appraisal and analysis of the prosecution evidence indicates following material deficiencies, inconsistencies and discrepancies : ---
(i) Prosecution has produced Muhammad Rizwan (P.W.5) and Manzoor Ahmad (P.W.6) on the dimension of last-seen. No time, date or place of the alleged abduction of Mst. Javeria A Nasir by the accused is given by Muhammad Rizwan (P.W.5) and Manzoor Ahmad (P.W.6) in their statements. P.W.5 Muhammad Razwan is real nephew of Nasir Ali deceased, father of Javeria. He stated that when he had seen deceased Javeria Nasir in the car her father Nasir Baloch was alive and he was murdered after two months of the alleged abduction. Contrary to the above, Manzoor Ahmad P.W.6 stated that about 8/9 months before the murder of Nasir Ali, he along with Muhammad Rizwan (P.W.5) had seen that Javeria was being taken in white car by the above named accused from Chak No, 166/P. This is a material contradiction. It is pertinent to mention that Nasir Ali father of Javeria was murdered on 15-8-2007. He did not lodge any F.I.R. With regard to abduction of his daughter Mst. Javeria against the accused during his life time. Allegedly complainant Khurshid Bibi first wife of Nasir Ali reached Chak No, 166/P after the murder of her husband Nasir Ali when P.Ws. Muhammad Rizwan and Manzoor Ahmad disclosed her about the abduction of Javeria by the accused. The F.I.R. Is lodged on 4-3-2008 after about 6-1/2 months of the alleged abduction of Javeria Nasir. Inordinate delay in lodging the F.I.R. Is not sufficiently explained. Testimonies of both the P.Ws. Muhammad Rizwan and Manzoor Ahmad P.Ws.5 and 6 due to material contradictions lack intrinsic value and inherent worth and are not confidence-inspiring at all therefore they cannot be believed at all. Prosecution evidence on the dimension of last-seen appears to be farbricated and thus cannot be relied upon.
(ii) Plea of extra-judicial confession advanced by the prosecution is based on the testimony of Mujahid Ali (P.W.1), Khizar Hayat (P.W.2) and Muhammad Akram (P.W.3), Mujahid Ali (P.W.1) real brother of Nasir Ali deceased father of Javeria stated that on 9-7-2008 he and Shaukat Ali P.W.
Joined the police investigation in this case when Muhammad Qasim accused in police custody disclosed that Mst. Javeria Nasir at the time of her abduction had taken away two suits in hand bag; that after her murder in the Hotel Abbasin Bahawalpur he had returned at Sadiqabad with said bag along with key of the room of the hotel after locking the same, which he had concealed in a rented house situated in Shadman Town Sadiqabad and he could get recovered the same.
' Khizar Hayat (P.W.2) stated that on 16-6-2008 he along with Muhammad Akram Raja Lambardar were going to the Irrigation Department Office Rahimyar Khan in connection with personal case when at about 10 a.m. Muhammad Qasim accused came there and made confession that Nasir Ali had contracted marriage with his sister Saima against the wishes of her parents causing their dishonour in the relatives; however the matter was patched up and that one year prior to 16-6- 2008 his mother and sister told him that Mst. Javeria Nasir daughter of Nasir deceased from his first wife knows some weak points of Mst. Saima Nasir, second wife of deceased and she may cause trouble in the matrimonial life therefore they planned to kill her and that in absence of Nasir on the pretext of picnic he along with co-accused took Javeria to Bahawalpur in a car and obtained a room in Abbasin Hotel at Bahawalpur with fictitious names as Waqas and Wazeer where he and said Javeria Nasir spent the night in a room of said Hotel whereas the other accused remained outside and that on the next morning he along with other accused in furtherance of their common intention committed the murder of Javeria Nasir by tiding her hands and feet and by strangulation with a cloth and also putting the cloth in her mouth; that they locked the room and went to Sadiqabad in the said car and that Mst. Saima accused satisfied her husband for two months about the missing of Javeria Nasir on different pretexts; that thereafter they called Nasir Ali to their house and also killed him with help of accused Tariq Malik, Abdullah Bhatti and Kashif Ali and that his conscience reprimanded him; that the accused Qasim requested to manage pardon from the legal heirs of the deceased Muhammad Akram P.W.3 stated that on 16-6-2008 he along with Khizar Hayat came in the office of Irrigation Department at 8-00 a.m. And they were waiting for the XEN Irrigation where Qasim Lodhi accused came at about 9-00 a.m. And disclosed about the abduction and killing of Javeria and thereafter of her father Nasir Ali.
' It is on the record that Muhammad Akram P.W.3 is not Lambardar of the village as alleged by the prosecution, rather Lambarder of the village was Ghulam Muhammad. It is not disclosed by the prosecution that how the accused Qasim came to know about the availability of Muhammad Akram (P.W.3) and Khizar Hayat (P.W.2) at the office of XEN Irrigation Department on the alleged date i,e, 16-6-2008. No effective social status or relationship of the P.Ws. Khizar Hayat and Muhammad. Akram with the family of the deceased Javeria is disclosed as a motivating circumstance to make, extra-judicial confession before them. Both of them have also not explained the nature of the personal work they had to perform in the office of XEN Irrigation on the said date. It is an established principle of law that the accused cannot be believed to open his mouth with regard to performance of his criminal act unless and until some reason is behind the same. Both the P.Ws. Have not uttered any cogent reason motivating the accused to make any confession before them. They have also not mentioned about their effective influence upon the complainant to obtain pardon for the accused which could motivate the accused to make extrajudicial confession before them.
In order to prove an extra-judicial confession prosecution is bound to establish following essential ingredients:-- A Firstly that the extra-judicial confession is in fact made; B. Secondly that the confession is voluntarily made; C. Thirdly that it is truly made; and D. Fourthly that the motivating force behind is proved. Bare reading of the testimonies of the P.W.2; Khizar Hayat and P.W.3 Muhammad Akram transpires that it fails to establish the above mentioned four ingredients to prove the extra-judicial confession of Muhammad Qasim accused. It is variously held by the honourable Supreme Court that extra- judicial confession must be proved by witnesses of unimpeachable character. Both the P.Ws. Have also failed to explain that why they did not take any step to apprehend the accused when he had made confession of, guilt before them. Therefore, for the above reasons testimonies of P.Ws. Khizar Hayat, Muhammad Akram as well as Mujahid appear to be fabricated and are neither confidence- inspiring, nor reliable.
(iii) As regards circumstantial evidence, Muhammad Saleem P.W.9 an employee of the Abbasin Hotel, Bahawalpur deposed that on 8-6-2008 Wazir Ahmad along with a woman hired a room of the Hotel; he did not name Muhammad Qasim, Asim, Mst. Hanifan and Mst. Saima. The number of identity card of the person who had hired the room of the hotel is also not got verified by the Investigating Officer from NADRA. No identification parade of the accused was ever got conducted by the P.Ws. After arrest of the accused with the help of Manager or any employee of the Abbasin Hotel. Even at the time of appearance of P.W.9 Muhammad Saleem in the court it was not asked whether he could identify the accused persons in the court as the person who had hired the room in the hotel. Even the photographs (P-1/1-3) of the deceased lady produced by Shabbir Ahmad SI, Police Station Kotwali the I.O. Of the case F.I.R. No,204 of 2007 to the I.O. Of the instant case Munawar Hussain SI were not shown to Khurshid Bibi complainant to identify them as the photographs of her daughter Javeria deceased. Mujahid Ali P.W.1 stated that the said photographs were given to Kotwali `Police by him. However he did not explain that from where he had obtained the said photographs. Therefore, testimonies of Mujahid Ali P.W.9 are neither confidence-inspiring nor reliable.
9. It is cardinal principle of criminal law that prosecution remains under heavy burden to prove the charge beyond any shadow of doubt. In this case inordinate delay of more than one year in lodging of the F.I.R. And prosecution's failure to produce confidence-inspiring and reliable evidence on the dimensions of last-seen and extra-judicial confession make this case highly doubtful. This is an unseen occurrence and a case of no evidence. The prosecution has not been able to bring the guilt home to the accused/respondents beyond any shadow of doubt. Therefore, the learned trial Court has rightly acquitted Muhammad Qasim, Muhammad Asim and Mst. Hanifan. The complainant/appellant has not been able to make out a case to interfere with the judgment of the learned trial Court granting acquittal to the said accused. In view of the above discussion and reasons, this appeal is dismissed in limine to the extent of accused/respondents Nos.1 to 3 namely Muhammad Qasim, Muhammad Asim and Mst. Hanifan Khanum.
10. By virtue of the impugned judgment the learned trial Court has also acquitted Mst. Saima Nasir accused/respondent No,4, proclaimed offender. The said accused never appeared before the trial Court. She was never charged in any offence and did not face any trial. Therefore, her acquittal is untenable in law and of no legal effect. She will be dealt with in accordance with law as and when brought by the police before the trial Court.