' QAZI MUHAMMAD AMIN AHMED, J.---Mohtaj Hussain Shah, hereinafter referred to as the deceased, was found lying dead in his house located within the area of Adyala at a distance of 18-kilometers from Police Station Saddar Berooni Rawalpindi during the night between 12/13-8-2005. The incident was reported by his brother Syed Zulfiqar Hussain Shah (P.W.6) through statement Ex.PA recorded by Asmat Mehmood, SI (P.W.13) at 8:05 a.m. At the spot wherein none was nominated as accused nor any motive cited for the crime. The autopsy was conducted by Dr. Irfan Khilji (P.W.11) at 11:30 a.m.
On 13-8-2008 and solitary injury almost chopping of the neck was held responsible for homicidal death; it was an incised wound measuring 21 cm x 5 cm x 10 cm on the front of neck, 5 cm below the chin and 5 cm above strunal nach with all the vital structures cut leaving vertebra attached with the trunk. The appellants were arrayed as accused on the basis of a supplementary statement through application Ex.PL by Zulfiqar Hussain Shah (P.W.6); one Mehmood was also named as an accomplice with them. Nusrat Bibi, appellant was arrested on 31-8-2008 followed by Naseer Javed, appellant on 1-9-2008.
' During the course of investigation, Naseer Javed, appellant on 3-9-2008 led to the recovery of an ATM Card belonging to Nusrat Bibi, appellant secured vide memo Ex.PC. After completion of investigation, the appellants were sent to face trial before a learned Addl. Sessions Judge at Rawalpindi on 16-1-2009 when they denied the charge and claimed trial, in consequence whereof, the prosecution produced as many as fifteen witnesses to drive home the charge. Confronted with the prosecution evidence, Nusrat Bibi appellant took the following plea:- "My deceased husband was murdered by some unknown person or persons. None witnessed the occurrence. As it was a blind murder and the clue of the real culprits was not found, the complainant with the scheme to get its full benefit and to oust me from the house owned by my deceased husband and to oust me from the ownership of the entire belonging of my deceased husband, prepared a story of Shazia, strained relation inter se me and my husband, obnoxious calls to the unknown persons and usage of some ATM card by my co-accused, involved me in the murder of the deceased Mukhtaj Hussain Shah. The complainant, that is why, never mentioned the real facts despite his claim to know all these things to the police, DSP or any Court including this learned Court. With the view to deprive me from all my legal rights over the belonging of the deceased Mukhtaj Hussain Shah, the complainant hatched the story of my involvement in the case and for this reason used P.W.14 and P.W.15 after 2 years after the death of their father. For this purpose he also got the association of P.W.5 who admitted in his statement that police had not recorded his statement qua the recovery proceedings. P. Ws. 5 and 12 are close relative of the complainant who supported the prosecution case due to their relationship with the complainant.
Otherwise their falsification is evident from the material witnesses P.W..14 and P.W.15 itself. It is pertinent to mention here that to satisfy his ill intention, greed and temptation to grab the property of deceased brother, it was the complainant who got contracted the marriage of P. W.
Sundas Ammara with his son in lieu of only Rs.1000 as dower".
' She was joined by Naseer Javed, appellant in her denial.
2. Upon conclusion of the trial, the learned trial Judge vide impugned judgment dated 16-6-2011 returned a guilty verdict, whereby, the appellants were convicted under Section 302(b), P.P.C. And sentenced to imprisonment for life each with compensation of Rs.500,000 each under Section 544- A Code of Criminal Procedure, 1898 or to undergo six months imprisonment in the event of default.
3. Learned counsel for the appellants contends that the appellants are not nominated in the first information report and their subsequent induction as accused in the case is without any legal evidence as the supplementary statement Ex.PL could not have been admitted in evidence and that even otherwise Ex.PL sans the source which improved upon the complainant's knowledge, that too, at a belated stage and that extra-judicial confession pressed into service by the prosecution and relied upon by the learned trial Judge, a statement being in police custody cannot be read to the detriment to the appellant; that examination of Sundas Amara P.W.14 and Sunbal Amara P.W.15 as eye-witnesses without their having joined police investigation cannot furnish basis to sustain the charge.
4. Contrarily, the learned Law Officer has defended the impugned judgment while arguing Criminal Revision No.214 of 2011, learned counsel for the complainant sought enhancement of sentence.
5. Heard. Record perused.
6. Case of the prosecution is hinged upon various pieces of circumstantial evidence as well as eye- witness account including failure to furnish an explanation which Nusrat Bibi, appellant being the wife of the deceased owed as to what befell upon her better half, who spent the preceding night in her company under the same roof. Insofar as circumstantial evidence is concerned, mainstay of the prosecution comprises statements of Iftikhar Hussain Shah (P.W.4) and Mahmood Hussain Shah (P.W.12); they are witnesses of extrajudicial confession allegedly made by Nusrat Bibi, appellant their case is that on 31-8-2008 Nusrat Bibi, appellant made her breast clean before them through a narrative which contained comprehensive details of the incident that included motive for the crime and manner in which the deceased was done to death. Motive introduced through this method was deceased's intimacy with one Shazia Bibi, who was divorced for that reason by her husband and the appellant apprehended that she would tie a knot with the deceased; according to her confessional statement, she arranged Naseer Javed, a hired assassin through the good offices of Mahmood Hassan P.O. To accomplish the task. An ATM card was also recovered on 3-9- 2008 during the course of investigation at the instance of Naseer Javed, appellant. Statements of Iftikhar Hussain Shah (P.W.4) and Mahmood Hussain Shah (P.W.12) when read together. Bring Asmat Mahmood, SI (P.W.13) into picture, who was present at the time of alleged disclosure while associating Nusrat Bibi within investigation as an accused. This being so the alleged extrajudicial confession is hit by Article 39 of the Qanun-e-Shahadat Order, 1984 and cannot be read in evidence to the detriment of Nusrat Bibi, appellant. This piece of evidence does not much advance prosecution's case qua Naseer Javed, appellant against whom this confessional statement could only be considered within the restrictions of Article 43 of the Order ibid even if it were admitted in evidence, therefore, the piece of evidence is beside the mark. There is yet another circumstance looming over the confessional statement that there is no automated transaction carried out through the ATM relied upon by the prosecution to demonstrate payment of money to the assassin. Reliance on supplementary statement Ex.PL is also liable to be excluded from consideration for the reason that a supplementary statement is neither continuation of first information report nor can be read in expansion thereof; it is a statement for all intents and purposes, in whatever form, is a statement under section 161 Code of Criminal Procedure, 1898, use whereof, is controlled by the riders provided in Section 162 of the Code ibid as such there was no occasion for the learned trial Judge to admit supplementary statement in written form in evidence through its exhibition as Ex. PL.
Prosecution belatedly brought two eye-witnesses Syeda Sundas Amara (P.W.14) and Sunbal Amara (P.W.15) both are of age; they are real daughters of the deceased and Nusrat Bibi, who lived under the same roof. Case of the former is that on 12-8-2008 at 9:00 p.m. Nusrat Bibi appellant told her that she would give a glass of milk to the deceased and after this brief conversation she went to her room and awoke following morning to see her father lying dead in his room; she pointed her finger on Nusrat Bibi, appellant. Case of Sunbal Amara (P.W.15) is in line with her sister. Both of them stated that the complainant and the other P.Ws. Arrived at the scene in their presence. However, the names and presence of these two witnesses is conspicuously missing in complaint Ex.PA; they never joined police investigation nor their statements under section 161 Code of Criminal Procedure, 1898 were recorded; they surprised the appellants for the first time during the trial. No doubt, it is hard to believe that real daughters would implicate their mother, nonetheless, on a closer scrutiny, their statements fall short of framing the Nusrat Bibi, appellant in the crime conclusively; at the most the statements are expression of a suspicion and suspicions are after all suspicions which cannot be graduated to be taken as a proof. Even otherwise, their initial silence heavily militates against their credibility; in the aftermaths of the incident, they have taken opposite side in a divided family. Examination of a witness intended to be produced against an accused, under section 161 of the Code of Criminal Procedure, 1898 and supply of copies thereof are fundamental safeguards to an accused bracing gallows as these enable him to confront the charge so as to defend himself in a meaningful and effective way rather than taken by surprise in a hapless manner; these safeguards cannot be dispensed with even in the case of close blood relationship inter se the witnesses and the accused. Blood is not thicker than water in a criminal trial with corporal consequences, therefore, both Syeda Sundas Amara (P.W.14) and Sunbal Amara (P.W.15) have to be treated at par with any other witnesses whose testimony is pressed into service to bring home charge entailing capital sentence; their statements are liable to be excluded from consideration and thereafter nothing is left in the field. Consequently, by extending benefit of the doubt, Crl. Appeal No.286 of 2011 and Crl. Appeal No. 55-J of 2011 are allowed. Nusrat Bibi, appellant is on bail; her surety is discharged. Naseer Javed, appellant shall be released forthwith, if not required in any other case.
7. As a necessary corollary of above findings, Crl. Revision No.214 of 2011 stands dismissed.