' Fida Hussain (accused/appellant) along with co-accused Ramzan, Rashid and Noor Muhammad faced trial before the learned Additional Sessions Judge, Dera Ghazi Khan, in case FIR No, 492 dated 22.08.2006 under Section 302/34, PPC Police Station Kot Chutta, Dera Ghazi Khan, and on conclusion of trialvide judgment dated 15.10.2008, Ramzan, Rashid and Noor Muhammad were acquitted of the charge against them, whereas, accused/appellant was convicted under Section 302(b), PPC, and sentenced to imprisonment for life, with further direction to pay Rs,50,000/- as compensation under Section 544-A, Cr.P.C. To the legal heirs of deceased, failing which to further suffer six months imprisonment. Present criminal appeal has been filed by the accused/appellant to assail his above conviction and sentence.
2. Briefly the .Case of the prosecution as set down in FIR got lodged by Allah Wasaya complainant/PW-6 is that about 20/22 years before Mst. Sakina alias Medu was married with Fida Hussain (accused/appellant) and they had two sons and four daughters. The spouses were carrying dispute for last couple of days, whereupon, on 21.08.2006 at about DEGER VELA, the complainant along with his brother Allah Diwaya (PW-10) and brother-in-law namely Ghulam Haider PW-11 went to the house of Mst. Sakina, where they saw that Fida Hussain and his brothers Rashid and Anwar were quarreling with Mst. Sakina. The complainant and others requested them not to quarrel and in their view Mst. Sakina went to take grass from cotton crop and the complainant party came back their house. On 22.08.2006 at about 11.00 a.m. They received information that Mst. Sakina after cutting the grass had not returned to her house. The complainant Allah Wasaya, along with Ghulam Haider, Allah Diwaya and Ghulam Shabir went to know about Mst. Sakina. When they searched in the land of "KHHOO" Murad Wala in cotton crop, dead body of Mst. Sakina was found and a cloth had been tied around her throat and stool had come out in her clothes. It was averred in the FIR that Mst. Sakina was murdered by Fida Hussain along with Rasheed and Anwar. [Subsequently during investigation the complainant got recorded supplementary statement to the effect that in fact Anwar was not brother of accused, rather Muhammad Ramzan was brother of accused and he had participated in the occurrence; he also implicated.
' Motive was stated to be that Fida Hussain and his brother wanted to marry the daughter of Mst.
Sakina with Ghulam Farid (niece of Fida Hussain accused), but Mst. Sakina was not willing.
3. On receipt of information about the occurrence, PW-9 Muhammad Farooq Sub-Inspector recorded statement of Allah Wasaya complainant and sent the complaint to Police Station.
Thereafter, he proceeded to the spot, inspected the dead body, prepared application Ex.PF for autopsy of deceased and inquest report Ex.PG. The dead body was sent to mortuary under escort of Ghulam Akbar Constable/87, prepared rough site plan Ex.PH, recorded statements of PWs under Section 161, Cr.P.C. Last worn clothes of deceased i,e, Shirt P-1, Shalwar P-2. Earrings P-3 and Dupata P-4 were handed over to him and secureduide memo. Ex.PE. Two sealed envelopes for chemical analysis and report of histopathologist were also received by him. On 27.08.2006, he recorded statements of prosecution witnesses under Section 161, Cr.P.C., in whose presence allegedly Fida Hussain had confessed his guilt. On 01.09.2006 he arrested Fida Hussain accused/appellant. After serving out physical remand the accused was sent to judicial lock. Rashid, Ramzan and Noor Muhammad were found innocent by the Investigating Officer and they were not challaned, however, on submission of report under Section 173, Cr.P.C., Rashid, Ramzan and Noor were also summoned to face trial.
4. The accused persons were charge sheeted, to which they pleaded not guilty and claimed to be tried. During trial, the prosecution examined eleven witnesses. Allah Wasaya complainant PW-6 and Ghulam Haider PW-11 made statements in line with narration of the FIR. Ghulam Shabir was examined as PW-7 who made statement with regard to recovery of dead body from cotton crop.
Fida Hussain son of Imam Bakhsh PW-8 stated about extra judicial confession by accused/appellant Fida Hussain. Allah Diwaya PW-10 while toeing the line' of the complainant also deposed about extra judicial confession. The rest of the prosecution witnesses are all formal in nature and they made statements before the Court about their respective functions performed during the course of investigation, whereas, Lady Dr. Munaza Batool PW-2 had conducted autopsy over the dead body of Mst Sakina alias Midu and while appearing in Court deposed that following injuries were found by her on the dead body:- "A ligature mark of size 6 cm x 15 cm incise situated in front and lateral sides of neck"
' The lady doctor further opined that probable time elapsed., between injury and death was within few minutes and between death sand post mortem was about 24 to 36 hours.
5. The learned DDPP produced report of chemical examiner Ex.PK and with that closed the case for the prosecution. The accused persons when examined under Section 342, Cr.P.C. While denying the prosecution evidence, in answer to a question "WHY THIS CASE AGAINST YOU AND WHY THE PWS HAVE DEPOSED AGAINST YOU ?". Fida Hussain accused/appellant made the following reply:--- "It was blind murder. Ghulam Haider father of deceased received Rs, 70,000/- from Fida Hussain PW-8 and marriage of Rukhsana Mai, my daughter was contracted with Sabir Hussain PW-8 That Nikah was solemnized 40-kilometer away within area of U/S Sarwar Wali. I have been falsely involved in this case because Ghulam Haider intended to give hands of my three daughters to sons of Allah Wasaya and Allah Diwaya PWs who are his "Sales". The PWs are brothers in law and eons in law of father of deceased. Due that reaction they have deposed falsely."
6. On conclusion of trial, as detailed above, Fida Hussain accused/appellant was convicted and sentenced, whereas, Ramzan, Noor Muhammad and Rashid co-accused were acquitted of the charge by extending them the benefit of doubt.
7. I have heard the arguments of learned counsel for the parties at considerable length and perused the entire available record with their assistance.
8. According to the prosecution itself and also held by the learned trial Court, it is a case of unseen occurrence and the prosecution has tried to built its case on the point of motive, recovery of dead body, Medical evidence and extra judicial confession by Fida Hussain accused/appellant.
9. Before analyzing the prosecution evidence, it may not be out of place to discuss here that as shall be seen by the contents of the FIR and also as deposed by the prosecution witnesses Allah Wasaya complainant PW-6, Allah Diwaya PW-10 and Ghulam Haider PW,11, when they reached at the house of Mst. Sakina, Fida Hussain accused/appellant and his brothers were quarreling with Mst. Stikine. Further, the motive was also jointly attributed to Fida Hussain accused/appellant as well as his brothers Ramzan, Rashid and Noor. Similarly, it was alleged that Fida Hussain along with his brothers had committed the murder Mst. Sakina. As such, throughout the role ascribed to Fida Hussain accused/appellant was similar to his three brothers, who were earlier found innocent during investigation and subsequently have been acquitted by the learned trial Court as well, through the set and nature of evidence against them was the same, as has been used against the accused/appellant to record conviction against him.
10. With above situation, when same set of evidence has been disbelieved by the learned trial qua three of the co-accused of the accused/appellant, extra care and caution was required to consider the same evidence against Fida Hussain accused/appellant. Furthermore, admitted position of the matter is that Allah Wasaya complainant PW6 was the real material uncle of Mst.
Sakina deceased, similarly, Allah Diwaya PW-10 (being brother of the complainant) was her uncle, whereas, Ghulam Haider PW-11 was the real father of Mst. Sakina. Therefore, all these witnesses being closely related with the deceased and inter-se, heavy onus was on the prosecution to have brought on record strong independent corroborative piece of evidence. The importance of independent and impartial corroboration became further important in this case for the reason that same set of evidence has already been disbelieved by the learned, trial Court qua co-accused, who have been acquitted by the same judgment and said acquittal has not been assailed by the prosecution/complainant before any higher forum, despite the fact that same allegations had been levelled by the prosecution against all the accused persons.
11. After discussing the above background, although in the FIR it has been stated that Fida Hussain accused/appellant and his brothers had quarreled with Mst. Sakina, as she was not consenting to their demand of giving the hand of her daughter to the son of Ghulam Farid (their niece), but in categorical terms it has also been explained in the FIR that matter was got patched up between them and in their presence Mst. Sakina went out to cut the grass. Firstly, if the motive as set out above is taken as correct, then according to the prosecution it existed against all the four accused and secondly when the dispute had been amicably settled down by the complainant and others and Mst. Sakina left for cutting the grass, as a usual activity, then there does not appear any justifiable reason why her murder could be committed by her husband and brothers-in-law.
12. Only the evidence of alleged extra judicial confession can be termed as a distinguishing feature between the case of Fida Hussain accused/appellant from the case of acquitted co-accused and to prove the aspect of Extra Judicial Confession, the prosecution examined Fida Hussain PW-8, Allah Diwaya PW-10 and Ghulam Haider PW-11. On this aspect, the learned trial Court after appraising the evidence of above prosecution witnesses, in para-24 (at page7) of the impugned judgment has held that:-- "Alleged confession made by accused Fida Husain before PW-8 and PW-10 Allah Dewaya appears doubtful and does not support the case of prosecution because it appears improbable that after that confession before them, they would have allowed to go to the accused free. Alleged occurrence took place on 21.08.2006 and same was reported to the police on 22.08.2006 after recovery of dead body of deceased. Alleged confession according to PW-8 was made by accused after four days of occurrence at about 10:00, 11:00 am. According to PW10 Allah Dewaya, who is "Mamoo" of deceased, it was made at about 1:00, 1:30 pm. PW-8 admitted that after the confession of accused, they did not capture him for handing over his custody to police and he left the spot peacefully. Accordingly, alleged extra judicial confession does not prove the case of prosecution."
In addition to above, even if the statements of PW-8 Fida Hussain son of Imam Bakhsh and PW-10 Allah Diwaya, which on the face of it are extremely brief on the aspect of extra judicial confession. I am afraid that same would hardly stand the test of being called a valid "extra judicial confession", as not the slightest of details of the occurrence have been mentioned. It is no where mentioned that how and in what manner the deceased lady was trapped in fields, from where he got the cloth to tie the neck of the deceased and what individual role was played by each of the accused person. Therefore, the learned trial Court reached to a just and proper conclusion to reject the evidence of extrajudicial confession.
13. Although, prosecution witnesses are consistence about the recovery of dead body of Mst Sakina from the fields, but this recovery alone is not sufficient to connect the accused/appellant with the commission of the offence, because admittedly no recovery memo. In this respect was prepared by the Investigating Officer and furthermore, though according to the Investigating Officer the accused/appellant remained on physical remand but no recovery was affecter either on his'disclosure or pointation.
14. For what has been discussed above, it is held that prosecution has failed to prove its case against the accused/appellant beyond any shadow of doubt. Consequently, I allow this appeal and set-aside the conviction as well as sentence of the accused/appellant. He shall be released forthwith if not required in any other case. The record of the learned trial Court be sent back immediately and the case property, if any shall be disposed of in accordance with law.