1. QAZI MUHAMMAD AMIN AHMED, J:- Yusra Tahir, aged 7/8, while playing with other kids went into the lane on 9-8-2008 at 7:00 p.m; she left home within the view of Muhammad Akram (PW-4) accompanied by Ahsan-ul-Haq and Muhammad Tayyab; she vanished and despite hectic search could not be located. A village watchman spotted dead body of a child in Canal Lower Bari Doaab on 11-8-2008; it was taken over by the police and buried unclaimed. Details were published in the Daily Express dated 12-8-2008 and this is how, the family identified the dead body with the help of photographs taken before her burial. After exhumation, autopsy was conducted by Dr. Farzana Nasir (PW-11), who found tongue protruding between the teeth with opened eyes and eye balls protruding as well; it was swollen with putrefaction and in the thorax pleural cavity contained bloodstained fluid; most of the internal organs were noted as swollen and putrefied; viscera were sent to the office of Chemical Examiner, however, neither poison nor any intoxicant was detected and finally asphyxia due to drowning was blamed as cause of death.
2. As Muhammad Tahir, father of the deceased, resided in United States of America for good, before his return, case was registered by his brother-in-law Muhammad Akram (PW-4); Muhammad Khalid appellant along with Khuram Shahzad, tried separately as juvenile, were arrayed as accused for the crime; former is real paternal uncle of the deceased. It is prosecution's case that on 16-8-2008 at about 10:00 a.m. both of them made their breast clean before Ahsan-ul-Haq, Muhammad Tayyab and Muhammad Akram, PWs and admitted to have taken the deceased to the spot on a motorbike and thereafter threw her in the canal. As per witnesses, the accused disclosed the crime under the compunction of conscience and sought assistance for their redemption. In the narrative, however, no motive or reason for the grisly act was divulged. The accused were arrested on 18-8-2009 with the motorcycle used in the crime and thereafter they went to the bank of the canal to point out the venue wherefrom Chappal (P-3) was recovered. Upon conclusion of investigation, the appellant was sent to face trial before a learned Additional Sessions Judge at Sahiwal where on 23-10-2008, when indicted, he claimed trial, pursuant whereto, prosecution besides placing reliance upon forensic reports, produced as many as 15 witnesses to bring home charge against him. The appellant confronted prosecution evidence with a denial and asserted accidental fall of the deceased in the canal as cause of her death, however, the learned trial Judge vide judgment dated 18-5-2010 convicted him under Section 302 (b) of the Pakistan Penal Code, 1860 and sentenced to death along with compensation of Rs.100,000/- to be recovered as arrears of land revenue or to undergo six months SI in the event of default. Khuram Shahzad, tried separately as a juvenile and through separate judgment was also convicted for the charge, however, sentenced to imprisonment for life along with payment of compensation, vires whereof, are being challenged by the appellant through Crl. Appeal No.826-J of 2011 clubbed with Murder Reference No.60 of 2010 seeking confirmation of death penalty; these are being decided through this single judgment.
3. Learned counsel for the appellant contends that the appellant had no occasion to throw his real niece in the canal in the absence of any motive or reason; that neither poison nor any intoxicant was detected nor the child was ravished and as such there was no earthly reason for any one on God's earth to take her life; that rental income of deceased's father, collected by the appellant is main reason behind prompting the witnesses, in a divided family, behind his false implication; that a joint extrajudicial confession is not admissible in evidence nor pointing out of the spot and memo thereof is a disclosure within the contemplation of Article 140 of the Qanun-e-Shahdat Order, 1984; that extrajudicial confession is universally recognized as a weak piece of evidence and cannot be relied upon to return a guilty verdict on a capital charge to be visited with ultimate penalty. Lastly, it was argued that in the absence of any compulsion or evidence pointed upon the appellant, there was no point for him to make a confession so as to retract therefrom subsequently. Contrarily, the learned Law Officer assisted by learned counsel for complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that an innocent child has been done to death in a most callous and brutal manner by no other than the appellant, a real paternal uncle situating in prohibitory degree and as such deserves no leniency.
4. Heard. Record perused.
5. Fate of prosecution case is hinged upon two pieces of circumstantial evidence comprising of last seen and extrajudicial confession. The child was seen leaving home while playing with the kids into the lane by the complainant and other family members whereas according to Zulfiqar Ahmad (PW-6), the appellant and Khuram Shahzad, co-accused were driving the deceased on a motorbike towards the link canal. Muhammad Tahir, father of the decease d (PW-7) is witness of extrajudicial confession allegedly made by the appellant before Muhammad Akram, Zulfiqar , Tayyab and Ahsan-ul-Haq. At first sight, it is hard to disbelieve that Muhammad Tahir (PW-7) would make a false statement against his real brother , as blood is thicker than water , nonetheless, in dispensation of criminal justice, mere credentials or status of a witness cannot form the basis for acceptance of his testimony; divides, acrimony and misplaced suspicions within families are not unusual phenomena, therefore, evidence of extrajudicial confession furnished by the witnesses warrants scrutiny and examination on the touchstone of probability , notwithstanding, the inter-se relationship between the appellant and the witnesses. Witnesses, otherwise, unanimous in their tirade upon the appellant are reticent on a probable or possible motive, prompting the appellant to take the life of his own niece. Both the accused have been shown to have made confession in a joint session and as such a joint disclosure cannot be read in evidence to their detriment. Yet another question mark is as to why the appellant would make his breast clean when there was no evidence to even obliquely frame him with the charge.
6. Statements of Muhammad Akram (PW-4) and Muhammad Tahir (PW-7) are not in line with each other; according to the former , they were present inside the house of Muhammad Tahir (PW-7), however , in his narrative, there is no mention about the presence of Muhammad Tahir when the confession was allegedly made whereas according to the latter , he was present when the appellant confessed his guilt. It is again intriguing as to why the witness es let off the subdued appellant accompanied by his juvenile co-accused, particularly when his brother Muhammad Tahir (PW-7) was present there. Story of extrajudicial confession is seemingly a usual exercise undertaken by the police invariably in every case lacking direct evidence. Similarly , statement of Zulfiqar Ahmad (PW-6) is beside the point if he and Muhammad Saleem PW had really seen the missing child in the company of the appellant and co-accused on 9-8-2008 while heading towards a canal, his natural and obvious response would have been to share this information with the family; his position that he learnt about the disappearance of the deceased on 13-8-200 8 requires a pinch of salt; after all, he is a well-wisher of the family , taking pain to undergo the rigors of volunteering himself as a witness; his stated ignorance is mindboggling. Pointing out of place of occurrence and a memo in support thereof do not constitute disclosure within the contem plation of Article 140 of the Qanun- e Shahdat Order , 1984. In a case structured upon circumstantial evidence, prosecution is required to constitute a chain of circumstances, inexorably linked with one another to establish a nexus between the crime and the culprit, synchronized in such a way whereby every hypothesis of innocence stood excluded. Absence of a motive , silence of witnesses of last seen and discrepant narrative with regard to the confessional statement, otherwise, inadmissible being joint fail to qualify the standard of required evidence referred to above, therefore, it would be unsafe to maintain the conviction. Consequently , Crl.
7. Appeal No. 826-J of 2011 is allowed; impugned judgment dated 18.5.2010 is set aside; the appellant is acquitted from the charge and shall be set at liberty forthwith, if not required. Murder Reference No.60 of 2010 is answered IN NEGA TIVE and death sentence is NOT CONFIRMED.