Through this criminal appeal, the appellant has called in question the judgment dated 24.06.2011, passed in case/F.I.R. No, 490, dated 28.12.2010, offence under Section 302/34, PPC, registered at Police Station Kot Sultan, District Layyah, whereby while acquitting co-accused Muhammad Yameen, the appellant has been convicted under Section 302(b), PPC and sentenced to life imprisonment alongwith compensation of Rs. 50,000/- under Section 544-A, Cr.P.C. payable to the legal heirs of the deceased and in default, whereof compensation shall be recovered as arrears of land revenue and in case of failure to recover the same, the accused will suffer six months imprisonment. Benefit of Section 382-B, Cr.P.C. was extended to the convict/appellant.
2. Precisely, the prosecution's case as set out in the FIR (Exh.PA/2) on the basis of complaint (Exh.PA) lodged by Riaz Hussain. complainant/Khaluzad of the deceased (PW-13) is to the effect that the deceased Manzoor Hussain had been married to the convict/appellant Mst. Balqees about 9/10 years ago and was living with his in-laws; that on 28.12.2010 at about 8.00 p.m. he received information that Manzoor Hussain had died upon which, he alongwith Saeed Ahmad, his brother and Ashiq Hussain s/o Ghularr Qasim reached at the spot and saw that the dead body of Manzoor Hussain was lying on the cot in the Courtyard and there was blackish abrasion around his neck; that they suspected that Manzoor Hussain has been murdered by strangulation while putting rope or cloth around his neck.
3. On 30.12.2010, the complainant made supplementary statement before police and raised suspicion that Mst. Balqees Bibi and Muhammad Yamin accused persons had committed the murder of deceased Manzoor Hussain because it was the talk of the town as Manzoor Hussain deceased had also told them in his life time that Muhammad Yamin accused had illicit relations with Mst. Balqees Bibi. 1 Complainant further stated in his supplementary statement that on 1.1.2011, Muhammad Rasheed PW informed him on telephone at evening time that Mst. Balqees Bibi accused had confessed before him that she along with Muhammad Yameen accused had committed the murder of Manzoor Hussain and at that time he was on his field duty far away, so he asked Rasheed PW that on the next day he would meet him; that on the next day, Rasheed and Ehsannullah PWs met him and he took them to the police station where their statements were recorded.
4. The investigation encapsulated into submission of report under Section 173, Cr.P.C., the learned trial Judge took the cognizance, supplied the copies of the statements of witnesses recorded under. Section 161, Cr.P.C. to the accused under Section 265(c), Cr.P.C., framed charge, which was denied by the accused while professing innocence and claimed trial. The . learned trial Judge ordered the prosecution to produce evidence for establishing the charge.
5. In order to prove the charge against the accused/appellant, the prosecution has produced Amir Abbas T/ASI (PW-1), Aftab Ahmad ASI (PW-2), Shabbir Hussain 293/C (PW-3), Imam Bakhsh 425/C (PW -4), Abdul Hameed Patwari Halqa (PW-5), Dr. Qamar Bashir (PW-6), Fazal Hussain SI (PW-7), Saeed Ahmad (PW-8), Muhammad Waqar Ahmad (PW-9), Ahmad Bakhsh (PW-10), Rasheed Ahmad (PW-11), Ehsanullah (PW-12), Riaz Ahmad, complainant (PW-13) and Abdul Hameed SI (PW- 14). Beside the above, complaint (Exh.PA), rappat No, 13 (Exh.PAJI), FIR (EXh.PA/2), site plan (Exh.PB, Exh.PB/1 & Exh.PB/2), post-mortem report (Exh.PC), Diagrams (Exh.PC/1 & Exh.PC/2), injury map (Exh.PD), inquest report (Exh.PE), report of chemical Examiner (Exh.PF), final report of doctor (Exh.PG), recovery memos. or apparels, dupatta, CNIC and Wattan Card etc. (Exh.PH, Exh.PJ & Exh. PK), site plan of place of occurrence, dupatta, CNIC Card etc. (Exh.PL to Exh.PN) had been produced. Dr. Qamar Bashir (PW-6) who conducted-post mortem on the dead body of the deceased has observed as under: "There was a signal ligature mark around the neck which was 18 cm x 2 cm. It was 4 cm above supra sternal notch and 8 cm below the chin. A mark of knot was present on the back of the neck.
On dissection of neck, all the underlying tissues beneath the ligature mark were cyanosed.
Petechial hemorrhage was present in the brain. Membrane and spinal card were normal. Scalp, skull and vertebrae were normal, healthy and intact. Larynx was normal but two tracheal rings at level of ligature were depressed. Left and right lung were cyanosed. Other thorax organs were normal, healthy and intact: Stomach was normal, healthy and intact and was full of semi-digested food. Small intestine was normal and healthy and it contained digested food and gases. Large intestine was normal and healthy and contained fecal matter and gases. The bladder was normal, healthy and contained about 100 m.l. of urine. All the other abdominal organs were normal, healthy and intact. Stomach with its contents, piece of small intestine, piece of large intestine, piece of liver, piece of spleen, piece of left kidney were taken and sealed in jars for sending the same to the Chemical Examiner, Lahore for detection of poison.
According to the opinion of doctor, the injury was ante-mortem in nature and it was sufficient to cause death in ordinary course of nature due to asphyxia (supply of oxygen and blood was stopped). The probable time between injury and death was 5 to 10 minutes and between death and post mortem examination was 12 to 14 hours.
He has seen the report of Chemical Examiner Exh. PF and according to the said report tranquilizer belong to benzodiazepine was detected in the viscera sent for analysis and in view of the above, he is of the opinion that the deceased was first sedated and after that he was killed by ligation causing the asphyxia leading to death."
6. After closure of prosecution evidence, the convict/ appellant was examined under Section 342, Cr.P.C. wherein she pleaded her innocence. In reply to the question that why this case and why the PWs deposed against her, the convict/appellant replied as under: "I am innocent. I was married with Manzoor Hussain deceased who was brought up in my home by my parents. My mother belong to other family. The relatives of my father hated with my mother.
The complainant's family want to marry their sister Mst. Naseem with Manzoor Hussain deceased but when my marriage was solemnized with Manzoor Hussain deceased, the complainant's family became inimical to me. On the sudden death of Manzoor Hussain deceased, I and my family members informed all the relatives of the deceased. It was a blind murder. Previously my father had enmity with Rasheed PW regarding dispute of BANA and due to that dispute, we were not visiting terms with Rasheed PW and therefore, I have been falsely involved in this case to deprive me from- my property and- to take revenge of that enmity. The witnesses closely related to each other. No independent witness has been produced. The complainant has concocted baseless story of extra-judicial confession to involve me in this false case.
On receipt of report of Chemical Examiner and opinion of Doctor, complainant and the PWs made a concocted and baseless story of extra-judicial confession to involve me in this occurrence. I was married with Manzoor Hussain deceased. We never use to quarrel with each other during our matrimonial life. We were living a happy life and during our wedlock three children were born. I am gentle and pious lady. I had no illicit relations with my co-accused Yamin. I never fell in love with Yamin my co-accused."
The convict/appellant neither examined herself under Section 340(2), Cr.P.C. nor produced defence evidence and on the conclusion of trial, learned trial Judge convicted and sentenced the appellant through the impugned judgment as alluded to in earlier Para No, 1 of the judgment.
7. Learned counsel for the appellant has submitted that the co-accused namely Muhammad Yameen, who strangulated the deceased, had since been acquitted of the charge disbelieving the evidence, hence, in absence of any independent evidence, the conviction against the appellant cannot sustain. The evidence of extrajudicial confession allegedly made by the appellant, being weak type of evidence, can easily be procured whenever direct evidence of crime is not available; that conviction cannot he passed only on the basis of report of Chemical Examiner or the medical evidence and prayed for her acquittal from the charges.
8. On the other hand, learned Deputy Prosecutor General supported and defended the impugned judgment and prayed for dismissal of this appeal.
9. Arguments heard and record of the case has been perused.
10. After hearing learned counsel for the parties and going through the record and reappraisal of evidence, it is observed that there is no direct evidence available against the appellant in this case and the case rests upon circumstantial evidence. The evidence, which was available against the appellant can be categorized into three type of evidence.
(i) The extra judicial confession allegedly made by the appellant before PW-11 and PW-12 on 1.1.2011 in the "Baithak" of Rashid Ahmad (PW-11) at about Degar Wela.
(ii) 'Muhammad Wager Ahmad (PW-9), claims to have witnessed the recovery of Dopatta P-3 allegedly recovered on pointing out the complainant from the room of her house lying in the pitcher,' which was taken into possession by the I.O vide recovery memo. Exh.PJ, attested by him and Shahid Iqbal PW.
(iii) The medical evidence coupled with Chemical Examiner report.
Therefore, in order to decide this appeal, suffice it to observe that after going through the evidence of PW-11 and PW-12 I am convinced that apart from being a weak type of evidence, the circumstances, in which it is claimed by the prosecution that the appellant had made extra judicial confession do not inspire confidence. Admittedly both the PWs i,e, PW-11 and PW-12 are the relatives of the complainant as well as of the deceased. Their evidence is contradictory on very material. particulars. According to the prosecution story, the appellant made extra judicial confession before Rasheed Ahmad (PW-11) and Ehsan Ullah (PW-12) on 1.1.2011 to the effect that on 7.8.2010 at about Ishawela, Muhammad Yameen, co-accused (since acquitted) came to her house, provided sleeping pills to her, she mixed 3/4 sleeping pills in a cup of tea, administered the same to Manzoor Hussain, deceased, who after taking tea went under deep slumber, she called upon Muhammad Yameen, co-accused (since acquitted), gave her Dopatta to him, who strangulated Manzoor Hussain, deceased with said Dopatta and she herself boarded on the chest of the deceased caught hold him from his arm in order to avoid any resistance, who died. During cross- examination, Rashid Ahmad (PW-11) stated that his statement was recorded by the police on 2.1.2011, he has a mobile phone and he has also the number of the complainant, he made call to the complainant at that time but he was not available at home and he replied that on the next day he will meet him. He further admitted in cross-examination that after the confession of Mst. Balqees Bibi, he did not inform the police, rather he informed the complainant. Ehsanullah (PW-12) during cross-examination contradicted PW-11 by stating that at that time, they have not informed the complainant or police on mobile phone rather after departure of Mst. Balqees Bibi, they went to Riaz complainant, who was not available at his house. Riaz Ahmad, complainant (PW-13) deposed that on 1.1.2011, Muhammad Rashid, PW informed him on telephone at evening time that Mst.
Balqees Bibi, accused had confessed before him that she alongwith Muhammad Yameen, accused had committed the murder of Manzoor Hussain. At that time, he was on his field duty far away, so he asked Rashid, that on next day he will meet him. On the next day, Rashid and Ehsan Ullah, PWs met him and he took them to the police station where their statements were recorded. The statements of aforesaid three PWs are not in line with each-other, hence not confidence inspiring.
Furthermore, despite making of extra judicial confession by the appellant before them, they did not overpower her for producing before the police and allowed her to go escort free, hence making of extra judicial confession by the appellant before them is unbelievable. Even otherwise, it has been held by the apex Court in various judgments that extra judicial confession is weak type of evidence and such like confession can easily be procured whenever direct evidence of crime is not available. Until and unless extra judicial confession is not corroborated by any other independent piece of evidence, no reliance can be placed on and it would not be safe to maintain conviction of appellant on basis of such type of evidence. Reliance is placed upon case titled "Sajid Mumtaz and others versus Basharat and others" (2006 SCM R 231)", "Sarfraz Khan vs. State and 2 others" (1996 SCM R 188), "Nizam-ud-Din versus The State" (2010 P.Cr.LJ 1730) and "Imran alias Dully and another versus The State and others" (2015 SCM R 155).
11. Furthermore, in absence of direct evidence, evidence of experts do not point finger towards the culprit, although the post mortem report confirms the death of the deceased and report of Chemical Examiner suggests the administration of poison to the deceased but cannot pinpoint the person who administered the same. Riaz Ahmad, complainant (PW-13) is neither the eye-witness of the alleged occurrence nor had any first-hand knowledge about the occurrence from any other source. His supplementary statement is based upon extra judicial confession alleged made by the appellant before PW-11 and PW-12, which is weak type of evidence as alluded to in para No, 10 of the judgment. It is pertinent to mention here that the co-accused Muhammad Yameen, who in-fact strangulated the deceased has since been acquitted of the charge and according to the prosecution, the appellant has only provided a Dopatta P-3 for strangulation leaves no room for sustaining the impugned judgment. No appeal against acquittal of co-accused Muhammad Yameen has been filed by the complainant, thus same has attained finality to his extent.
12. For what has been discussed hereinabove, the instant appeal is accepted and conviction judgment dated 24:6.2011 is set aside. The appellant is on bail. Her surety stands discharged from the ability of her bail bonds.