' This judgment 034 dispose of Criminal Appeal No 109 of 2008 titled Riaz Ahmad, etc vs. The State etc. And Criminal Revision No 211 of 2008 titled Gulzar Ahmad vs. The State, etc as both are outcome of the same judgment.
2. The appellatits, namely Riaz Ahmad, Abdul Khaliq, Haq Nawaz and Muhammad Irshad, were tried by the learned Additional Sessions Judge, Mailsi, in a case FIR No, 109/06 dated 23.12.2006. Under Section 302/34, PPP registered at Police Station Miran Pur. Tehsil Mailsi, District Vehari, and vide judgment dated 30.05.2008, they were convicted and sentenced under Section 302(b), PPC to imprisonment for life each. They were also extended the benefit of Section 382-B, Cr.P.C., 2-A. The relevant facts for the disposal of this appeal as per complaint Exh.PA are that the marriage of the complainant's sister Mst. Shahnaz Bibi was solemnized with Riaz Ahmad accused and by her wedlock with accused Riaz, she gave birth to four children. On 30.09.2006 at 10:00 p,m. (night), the complainant received an information that Mst, Shahnaz Bibi, by taking pesticide, has committed suicide. The complainant and his brother Irshad, Khurshid sio Ramzan then reached jp the house of Mst. Shahnaz Bibi (deceased). She was lying on a cot. Her face was in downward direction. The complainant then made a doubt that her sister was murdered after making cruelty. The. Blood was oozing from the nose of Mst. Shahnaz Bibi deceased, her lips were swollen. The accused Riaz at that time showed the bottle of pesticide to the complainant which was not de-sealed and even the quantity of the pesticide was not decreased in the said bottle. At that time, the dead body of complainant's sister was buried by her relatives, There after, the complainant came to know that her sister was murdered. He then presented an application to the learned District & Session Judge, for exhumation/disinterment and post-mortem of the dead body. Thereafter on 02.12.2006 in the supervision of the Magistrate Mailsi the exhumation of the grave was made. The post-mortem of the dead body was conducted. As per postmortem report, Mst. Shehnaz Mai was murdered by strangulation. On 21.12.2006. Haji Muhatqad Irshad and Haji Khurshid Ahmad came to the complainant and they both told that all the four accused came to them and they one by -one confessed their guilt regarding the commission of murder of Mat. Shahnaz Mai by strangulation.
Mat. Shahnaz Bibi (deceased) was murdered by all the accused in furtherance of their common object.
3. After registration of the case, the investigation was conducted and thereafter the challan was submitted in the trial Court. The learned trial Court framed the charge on 16.06.2007 which was denied by the accused persons and they claimed trial.
4. To prove the guilt of the accused, the prosecution examined as many as eleven witnesses during the trial. The complainant Gulzar Ahmad PW-1 supported the prosecution version as narrated by him in the complaint Exh.PA. Muhammad Irshad PW-2 and Khurshid Ahmad PW-3 were the witnesses of extra judicial confession made before them by the accused persons. They also corroborated the prosecution story. Ijaz Latif PW-4 Draftsman prepared the site-plan of the place of occurrence through memo. Exh.PB, Exh.PB/1, Exh.PB/2. Muhammad Fazal Javaid 634 HC PW-5 stated that on 25.12.2006, Zahoor Hussain S.I. Handed over to him two scaled parcels which were kept intact by him in the Malkhana of Police Station. On the same day, he handed over the said parcel to Abdul Jabbar 38-HC its for onward transmission to the office of Chemical Examiner, Lahore. Abdul Jabbar 38-HC PW-6 delivered the sealed parcels to the office of the Chemical Examiner. Lady Dr. Durana Irfan (W.M.0) PW-7 stated that on 02.12.2006. On disinterment from graveyard at Pull Ghazi Abbas, Peer Addal Sher, she examined the dead body of Shahnaz Bibi d/o Ashiq Muhammad, identified by Gulzar Ahmad s/o Ashiq Muhammad. Death of the dead body was two months approximately before disinterment and body examined on 02.12.2006 at 01:00 p.m. She dispatched the matter to the Chemical Examiner i.e,
1. Piece of stomach;
2. Small and large intestines;
3. Liver, Spleen, Kidney:
4. Preservative formally. In her opinion, the cause of death was asphyxia. Asphyxia due to strangulation, however, visceras were taken, preserved in Plastic Jars and sent to the Chemical Examiner for detention of poison, bypnotics etc. Muhammad Nawaz A.S.I.
PW-8 recorded the formal FIR Exh.PA/1. Muhammad Riaz S.I. PW-9 is the second I.O. Of this case. He stated that on 07.03.2007, he obtained further physical remand of three accused. He summoned the patties to join the investigation and on 12.03.2007. He sent three accused. Namely, Riaz, Abdul Khaliq and Haq Nawaz in judicial lock up. On 23.03,2007, he arrested the fourth accused Irshad and obtained his physical remand. On 29.03.2007 after concluding the investigation, he handed over the file to S.H.O. To send the Challan in the Court. Zahoor Hussain S.I. PW-10 is the I.0, who stated that on 23.12.2006, he was present at Mauza Shah Sattar where the complainant Gulzar Ahmad presented a written complaint Exh,PA and he as per his statement sent the complaint in original at P/S Miran Pur through Muhammad Asghar 101-C for the registration of. FIR. He then reached at the place of occurrence, prepared rough site plan Exh.PD. On 22.01,2007. He recorded the statements of two witnesses under Section 161, Cr,P.C. He arrested the three accused, namely, Ries, Khaliq and Haq Nawaz present in the Court on 27.02.2007. Irshad and Khaliq PWs also presented their affidavits to him and he incorporated the same in the police Diary No 7. Azhar Hussain Chandio PW-11 stated that on 08.11.2006, learned Sessions Judge, Vehari entrusted an application to him for exhumation.
He then on 02.12.2006. Al alongwith Lady Dr. Durana Irfan went at the grave of Shahnaz Mai, where Azhar Hussain ASI was present and in his presence, the exhumation of the grave of Shahnaz Mai was made by the complainant party and after disinterment, Lady Dr. Durana Irfan conducted the post-mortem of her dead body in the graveyard. Ahmad Nasir Aziz Wirk S.P. Investigation appeared as CW-1. During his investigation all the four accused were found innocent and according to his investigation the deceased committed the suicide.
6. After closure of the prosecution evidence, the statements of the accused/appellants were recorded under Section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement In reply to a question "why this case has been registered against you and why the PWs have deposed against you", all the accused persons gave the similar answers. The reply given by the accused Riaz Ahmad to this question, is as under "This is a false case against me. After burial of Mat. Shahnaz Mai complaint party had demanded the hands of daughter of Jan Muhammad, my brother for the complainant Gulzar Ahmad. Jan Muhammad refused to give the hands of his daughter, so. Gulzar Ahmed established this case against me and others. I have deposed before the police and Special Judicial Magistrate about my innocence. Children of Mat. &alum Mai have also deposed about my innocence before the police.
PWs have committed perjury. I was also declared innocent by the S.P. Investigation (CW-1), PWs are related to deceased and interse, hence, they have deposed falsely against me. I am innocent."
7. The trial culminated into conviction and sentence of the appellants as mentioned above. All the appellants have challenged their conviction and sentence through Criminal Appeal 109 of 2008 as mentioned above while the complainant has filed Criminal Revision No, 211 of 2008 for enhancement of sentence of the respondents to death.
8. Learned counsel for the appellants argued that it is a case of no evidence; that there was no occasion for the accused to gave the alleged extra judicial confession before the PWs; that in the extra judicial confession no role was ascribed by the PWs; that the joint extra judicial confession has no value hi the eye of law; that the appellants are innocent, therefore, they are entitled for acquittal.
9. On the other hand the learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently opposed this appeal and -supported the impugned judgment. They further contended that the medical evidence fully corroborates the ocular account, therefore, the appellants are not entitled for acquittal. Learned counsel for the complainant also prayed for enhancement of sentence of the appellants to death.
10. I have heard the learned counsel for the parties and thrashed out the record with their able assistance.
11. Admittedly, the prosecution case solely hinges upon the extra judicial confession made by the appellants before Muhammad Irahad Pilifo2 and Khureliid Ahmad PW-3 after two months of the occurrence. It is pertinent to mention here that both the witnesses did not mention the roles of appellants, therefore, joint extra judicial confession cannot be used against fife appellants. The evidentiary value of the extra: judicial confession (joint or otherwise) came up for consideration before the Honig Supreme Court of Ileldataiiin the case of Tahir Javed vs. The State (2000 RCM 160).
The relevant portion of Which reads as under: "10...It may be noted here that since extrajudicial confession eaey,to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and Court would expect sufficient end reliable corroboration for such type of evidence. The extrajudicial confession therefore must be emaidered with over all context of the prosection case and the evidenee on record. Right from the case of Ahmed v. The Crown PI.41) 1951 PC 107 it has been time and again laid down by this court that extra-judicial confession can be used against the accualet.Ardy when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it."
' The prosecution has also failed to offer a plausible explanation as to why the children of the appellant/deceased, who were, admittedly, present in the house at the time of occurrence, were not produced as witnesses in the case. The deceased had four children. The age of her elder daughter Sumera Bibi was 14-15 years, the age of her son Aziz was 12-13 years, age of other daughter was 8-9 and younger son was 7- 8 years but astonishingly none of them were produced before the police or the Court in support of the prosecution version. They were the most natural witnesses of the occurrence and almost all them could have given evidence in the Court which creates serious dent in the prosecution story. Ahmad Nasir Aziz Wirk, SP Investigation appeared as CW-1 and before the learned trial Court he stated that according to his investigation Mst. Shahnaz Mai, committed suicide and all the appellants were found innocent by him. It is an admitted fact that one Irshad Ahmad is a doctor who is the real brother of the complainant. He also reached at the place of occurrence and he did not check the deceased. The complainant also admitted that his mother and sister were present during the bath of the deceased but they did not disclose to the complainant about any mark and sign on the dead body. The complainant, PW-1 admitted in his cross-examination that after quarter to three months of the death of Shahnaz Mai, at the time of reopening of the grave for the purpose of post-mortem examination, he himself. Khurshid Ahmad, Irshad Ahmad and Muhammad. Ramzan were present. Sarward Christian was also present at that time. Said Sarwar Christian had taken out the parts of the body from the grave and the complainant stated that he cannot tell the exact parts of the body which were taken out of the reopened grave. He also admitted that he remained present in the home of Riaz, accused (husband of the deceased) till Qul Khwani and Qul Khwani was held on the fourth day of the burial.
It is very important to state here that when the dead body was dug out from the grave after a period of 3 Y2 months the body was In pieces and how it was determined that the torture had been done with the body. If Riaz was murderer of his wife then why the complainant remained with him for four days till Qul Khwani and why he not discussed about the death of his sister to the people who were gathered at the time of Qul Khwani. If the deceased had committed suicide then why the complainant party not reported the matter to the police under Section 174, Cr.P.C. Although the lady doctor PW-7 who conducted the post-mortem examination of the deceased opined the cause of death due to asphyxia but without the report of viscera she cannot gave her opinion that the death was caused due to asphyxia. All the above mentioned circumstances make the case of the prosecution highly doubtful. It is well-settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind, about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right. Reliance in this respect may be placed on the case Tariq Pervaiz vs. The State (1995 SCM R 1345).
12. In view of what has been discussed above, Criminal Appeal No, 109 of 2008 is allowed, impugned judgment is set aside and the appellants, namely, Riaz Ahmad, Abdul Khaliq, Haq Nawaz and Muhammad Irshad are acquitted of the charge. The appellants are on bail, through suspension of their sentence, hence their bail bonds are discharged. Criminal Revision No, 211 of 2008 filed by the complainant for enhancement of sentence stands dismissed.