RAJA SHAHID MEHMOOD ABBASI, J.---This appeal is directed against the judgment dated 13.07.2008 passed by learned Additional Sessions Judge, Jand, District Attock, whereby Muhammad Farooq appellant was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with the direction to pay Rs, 2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default thereof to undergo 06-months' S.I. The benefit of section 382-B, Cr.P.C. was, however, extended to him. On the other hand, the complainant Mst. Gul Nisa has filed Criminal Revision No,207 of 2018 for enhancement of quantum of sentence of the appellant. As both these matters are outcome of one and the same judgment, therefore, I propose to decide these matters through this single judgment.
2. As per FIR (Ex.PD) brief facts of the case as narrated by Mst. Gul Nisa complainant (PW13) are that her father has died, whereas, mother is alive, they are three brothers and four sisters. 17 years back, Ameer un Nisa alias Mehro (since deceased) was married with Muhammad Farooq son of Muhammad Miskeen resident of Mankoor and out of the wedlock, they were blessed with three daughters and three sons, but their relationship never remained cordial as Muhammad Farooq had suspicion that his wife Ameer un Nisa had illicit relations with one Yasir Mahmood resident of Jand. Rab Nawaz, brother of complainant also had suspicion on the character of Mst. Ameer un Nisa deceased. Due to said suspicion, Muhammad Farooq became depressed and also brought this fact in the knowledge of his son Muhammad Rauf. On 10.11.2017 at about 06:00 p.m. while the complainant was present at her home; both Muhammad Farooq and Muhammad Rauf came to the house of her brother Muhammad Nawaz and informed him that his sister was lying in the house in unconscious position, who immediately informed the complainant Mst. Gul Nisa, upon which a vehicle was arranged but Muhammad Farooq did not accompany them, whereas, Nawaz, Muhammad Rauf and one driver of carry van namely Muhammad Taj resident of Bhandar went at the place of occurrence, where, they found dead body of Ameer un Nisa alias Mehro on the cot in the residential room having ligature mark around the neck. Upon this information, complainant also rushed to the house of her sister, where accused Muhammad Farooq also reached at the spot and advised them to take the deceased to hospital but complainant insisted to inform the police as the death of her sister was unnatural. Complainant and her brother Muhammad Nawaz evaluating the circumstances were sure that accused Muhammad Farooq son of Muhammad Miskeen, Muhammad Rauf son of Muhammad Farooq residents of Mankoor and Rab Nawaz son of Lalbat Khan, while sharing their common intention, committed the murder of Ameer un Nisa under the pretext of honour, hence, the FIR (Ex.PD).
3. After registration of the case, Baber Shehzad SI (PW.12) carried out the investigation and after completion of investigation, he submitted report under section 173, Cr.P.C. before the court for trial of Muhammad Farooq appellant in accordance with the law.
4. The accused, on indictment, pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced thirteen witnesses in toto. Gul Nisa, complainant, was examined as PW13.
Ali Muhammad (PW.7) was witness of wajtakkar, whereas Muhammad Sharif (PW8) was witness of extra judicial confession. On the receipt of written complaint prepared and sent by Babar Shahzad S.I. (PW12) through Mudassar Iqbal 1400/EC (PW1), Muhammad Jahangir A.S.I. (PW5) chalked out formal FIR (Ex.PD), while Arshad Mehmood Halqa Patwari (PW4) has prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Baber Shahzad, S.I./I.O. (PW12) who stated about various steps taken during investigation of the case. On 10.11.2017, Dr. Rafia Abbas (PW10) had conducted postmortem examination on the dead body of Ameer un Nisa alias Mehro deceased and gave the following observations:- I- EXTERNAL APPEARANCE:-
1. Horizontal ligature mark on front and sides of neck above the level of thyroid cartilages but absent from back of neck and no knot mark seen. A 31 years old healthy female of average height, wearing plain pink shalwar and printed pink Kameez, eyes and mouth semi opened, shalwar was blood stained corresponding to genital area and inner side of thigh and also mud stained.
Kameez was mud stained. Rigor mortis fully developed upto neck but partially developed on arms.
Small abrasions on posterior surface of both heels were present, but no other signs of assault or bruises seen on body, except ligature mark.
II- CRANIUM AND SPINAL CORD:- Scalp, skull and vertebrae: No fracture of vertebrae seen. Unremarkable.
Membranes, brain, spinal cord: Unremarkable.
All organs of thorax were healthy except larynx and tracheae healthy (Hyoid bone fracture).
According to the doctor, cause of death was vigil inhibition secondary to strangulation, leading to sudden cardiac arrest. Probable time that elapsed between injury and death was immediate and between death and postmortem was approximately 5 to 7 hours. Ex.PF is postmortem report of the deceased.
Rest of the prosecution witnesses, more or less, are formal.
Thereafter, appellant was examined under section 342, Cr.P.C. whereby he professed his innocence in the matter and denied all the allegations leveled against him. The appellant did not opt to depose within the scope of section 340(2), Cr.P.C. or adduce evidence in defence. The contention adopted by him in reply to the question as to why this case against him and why the PWs had deposed against him, read as under:-- "In fact Ameer un Nisa deceased committed suicide when I and my son Rauf were present in runnel while busy in the repairing water supply pipe along with the other people of vicinity. In the meantime my younger sons Muhammad Hasnain and Saim Ali make a noise that their mother is hanging in the room, upon which I along with my son Muhammad Rauf attracted to my house, my son leading me and reached in the house prior to me, opened the door and cut the rope with which she was hanging with the help of spade and laid Mst. Ameer un Nisa on the cot, when I reached she was dead. After that the persons of locality and our brotherhood also came over there, we ourselves informed the police and informed the brothers and sisters of Ameer un Nisa, upon which Muhammad Nawaz and Rabnawaz along with their mother firstly came to our house.
We informed the police regarding the suicide committed by Ameer un Nisa, the police directed us to brought the dead body to THQ Hospital land. We took the dead body to THQ Hospital Jand along with Muhammad Nawaz, Rabnawaz and their mother Mst. Sahib Jan accompanied us to hospital. Where in the hospital complainant of this case Mst. Gul Nisa and her sister Mst. Noor un Nisa also arrived. After due deliberation and with consultation, they lodged this fictitious FIR against us, when Rabnawaz asked his sister Gul Nisa complainant that Ameer un Nisa has committed suicide. She incorporate her name in the FIR also as accused and when Muhammad Nawaz asked his sister that Ameer un Nisa has committed suicide, despite his identification of the dead body and recording statement under section 161, Cr.P.C. he was replaced from array of witness as well. Prior to this Rabnawaz son of Lal But Khan is involved in case FIR No,56 dated 03.08.1997 under section 364, P.P.C., amended sections 302 and 201/109, P.P.C. at Police Station Injra. It is also pertinent to mention here that the father of complainant Lal But Khan son of Karim Khan lodged FIR No,233 dated 20:06.1999 under section 302, P.P.C. at new town Rawalpindi against his son Muhammad Nawaz on the allegations that Muhammad Nawaz aged about 16th/17th years committed the murder of his daughter Mst. Razia Begum (divorced lady) on her questionable character with the license weapon of .12 bore of complainant, So this family has a critical, criminal record. Complainant of this case also lodged an FIR against one person at Rawalpindi of the accident of her husband Ghulam Nazeer Khan and obtained Rs,2,00,000/- from the accused and compromised the matter. Complainant lodged this FIR in order to tutorial money from me registered this false case. As far as the witness of this case Latif is the real maternal uncle of complainant, All Muhammad is the son of her maternal aunt, and Muhammad Sharif is the villager and deposed falsely just to strengthen their false prosecution case."
The learned trial judge on conclusion of the trial held the appellant guilty of the offence charged and sentenced him mentioned hereinabove.
5. Learned counsel for the appellant submits that the appellant has been falsely involved in this case due to erratic guess work and malicious intention of the complainant; that admittedly there is no eye-witness of the occurrence and entire case rests upon circumstantial evidence, that too not inspiring confidence; that the evidence of wajtakkar and that of extrajudicial confession are not worthy of reliance and cannot be taken even as corroborative of the charge; that the prosecution did not produce any connecting evidence against the appellant during the course of the trial, despite that he was pronounced guilty verdict and handed down the sentence of imprisonment for life merely on speculations; that the deceased had committed suicide, which fact is apparent from natural conduct of the appellant and his co-accused, since acquitted in a separate trial under Juvenile Justice System, 2000; that the allegations were leveled against the appellant by the witnesses who had personal grudge with the appellant; that the medical evidence is merely a corroboratory circumstance, which cannot take place of the substantive evidence; that the recovery of rope at the instance of the appellant is hardly of any consequence being an embroidery of the main allegation, which could not be proven by the prosecution, through some concrete evidence; that the case against the appellant is nothing but a pack of lies, each word whereof converges on the innocence of the accused; that the prosecution badly failed to bring home the guilt of the appellant beyond any reasonable shadow of doubt but learned trial court ignored all the fallacies of the prosecution case with surprising ease, rendering its pronouncement of guilt against him is a funny story; that the impugned judgment has been passed by the learned trial court without application of judicious mind and it looks unsustainable from all four corners.
Finally prays that the appeal may be accepted and the appellant being an innocent person may be acquitted of the charge.
6. In contrary to the above, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has contended that the appellant strangulated his innocent wife in a cold- blooded manner and his guilt had been established beyond all shadows of doubt by the prosecution through tangible and cogent evidence; that the ocular account, the medical evidence, recovery of rope at the instance of the appellant and other allied circumstances made it a case of proven credibility against him, hence, the impugned judgment did not suffer from any frailty or legal defect; that the appellant committed brutal murder of his own better half, hence, he did not deserve any leniency. While addressing arguments on criminal revision filed' by the complainant for enhancement of sentence, learned counsel for the complainant argued that the appellant/respondent murdered his wife in a brutal manner, so his sentence should also be enhanced from imprisonment for life to death.
7. Arguments heard and record perused.
8. The fact and circumstances of the case do not suggest that the alleged occurrence of murder of Mst. Ameer un Nisa at about 06.00 p.m. on 10.11.2017 had been witnessed by anyone. It is an admitted position of the case that the occurrence remained un-witnessed and the case is one of circumstantial evidence, therefore, very care and caution is required to evaluate the worth of the evidence relied by the prosecution. According to Mst. Gul Nisa complainant (PW13), she was informed about the occurrence by none other than the appellant himself, but when reached at her home, she was informed that the deceased died as she had committed suicide, but the complainant being not satisfied with the version taken by Muhammad Farooq appellant, she preferred to report the matter against the appellant, his son Muhammad Rauf and her own real brother Rabnawaz with the allegation that they had strangulated the deceased under the pretext of honour; but subsequently she exonerated her brother Rabnawaz co-accused during the course of investigation. Likewise, co-accused Muhammad Rauf, in a separate trial under the Juvenile Justice System Ordinance, has also been acquitted of the charge by learned trial court while disagreeing with the prosecution version and disbelieving its witnesses to his extent.
9. As stated above, the case being one of circumstantial evidence; the prosecution mainly relied upon the evidence of recovery of dead body from the house of the appellant, evidence of wajtakkar, extra judicial confession, medical evidence, recovery and lastly the motive. It is settled by now that where the circumstances so reported are tampered with or conjured up, they cannot be accepted without careful and critical analysis and if the circumstances are well authenticated, such circumstantial evidence can form basis of conviction.
10. The first significant piece of evidence relied by the prosecution in this case is motive. According to the prosecution's case, the appellant Muhammad Farooq, his son Muhammad Rauf and real brother of the complainant Rab Nawaz had suspicion that the deceased Ameer un Nisa had illicit relations with one Yasir Mehmood resident of Jand and she used to make calls to her on cell phone, but it was only an oral assertion, of the complainant (PW13). The prosecution also produced Noor un Nisa (PW6) who also supported the version of the complainant and in addition to that she stated that about five days prior to the occurrence, the spouses met her at the house of her brother Muhammad Nawaz at Jand, where her deceased sister complained about quarrel with her husband as suspicion about her character as questioned by her husband/appellant. Moreover, (according to her, appellant threatened her with chhuri, but said matter was not reported to the police. Neither Yasir Mehmood, resident of Jand, was interrogated nor any objectionable telephonic data was collected during the entire investigation nor was brought before the court at the time of trial. I, therefore, do not take the motive set up by the prosecution as cause for such a tragic incident.
11. The other evidence in sequence is that of wajtakkar, which has been furnished by Ali Muhammad (PW7). According to this witness, he saw Muhammad Farooq appellant along with his son Muhammad Rauf co-accused (since acquitted) on 10.11.2017 at about 04:05 p.m. while riding motorcycle and by that time they were in perplex condition. Firstly, company of father and the son on a motorcycle is not unusual or unnatural. Secondly, according to prosecution's own showings, appellant was the one who informed the complainant and other relatives of the deceased about the unfortunate incident. Even the appellant in his statement under section 342, Cr.P.C. stated that they were present in runnel while busy in the repairing of water supply pipe along with other people of the vicinity when his younger sons Muhammad Hasnain and Saim Ali raised hue and cry that their mother was hanging in the room, upon which both the appellant and his son Muhammad Rauf rushed to the place of occurrence and when they reached home, the deceased was F found dead. The version of this witness remained uncorroborated and unsubstantiated, therefore, is not much helpful to the prosecution.
12. Next is the evidence of extra judicial confession furnished by Muhammad Sharif (PW8). Such type of evidence of its being concocted easily is always looked at with doubt and suspicion.
According to him (PW8), he was driver by profession as well as councilor of Union Council Makhad Tehsil Jand and on 11.11.2017 at about 03:00 p.m. while he was present at Bus Stop Jand along with Muhammad Saleem (not examined), appellant came to him and I disclosed that he had committed a grave mistake and committed the murder of his wife by strangulation on the basis of honour. According to him, he further stated that as he was raged due to which he committed the murder and as the police was in his search, therefore, some arrangement should be made to patch up the matter between him and the legal heirs of the deceased. The deposition of the aforementioned witness of extra judicial confession when examined reveals that firstly the place chosen by the appellant for such purpose was not at all suitable. The approach of the appellant to this witness, as claimed by hint, at Bus Stop appears to be unnatural and even unconformable to common experience and observation. There was every chance for his arrest. Learned counsel for the complainant has no answer that as to when he was nominated accused of the case and his real son was already in jail, why he should go to such a busy place like bus stop and expose himself, where there was every chance of his apprehension. Secondly, why the appellant had made extra judicial confession before such a person who having some authority was expected to do him more harm than good. During cross-examination, it transpired that he had no influence upon the complainant party. I do not find any answer to aforesaid questions nor any other justification for believing him (PW8). He being councilor of the area had some authority but neither he raised any alarm nor immediately informed the police and did not bother to apprehend him.
Moreover, his statement also remained uncorroborated and unsubstantiated. The other person namely Muhammad Saleem, who was accompanying at the time when the alleged confession, was made, was not examined by the prosecution. The aforementioned facts certainly raise serious doubt about the veracity of the witness and his testimony is not upto the mark to place any reliance upon it. Even otherwise, extra judicial confession is a very weak type of evidence and the same obviously needs impartial/strong corroboration from other independent sources which is missing in this case. Guidance can be sought from the cases of "Solid Mumtaz and others v, Basharat and others" (2006 SCM R 231) and "Tahir Javed v. The State" (2009 SCM R 166) wherein, at page 170, the august Supreme Court of Pakistan was pleased to observe as under:- "10. It may be noted here that since extra judicial confession is easy 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 and reliable corroboration for such type of evidence. The extra judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmad v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it.. Reference in this regard may usefully be made to the following reported judgments:--
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405,
(3) Tayyab Hussain Shah v. The State 2000 SCMR 683,
(4) Sarfraz Khan v. The State and others 1996 SCMR 188."
Keeping in view the guidelines given by Hon'ble Supreme Court of Pakistan in afore-referred judgments, I palpably discard the evidence of extrajudicial confession manufactured by the prosecution to strengthen its case.
13. A close look at the record reveals that according to the prosecution case, the deceased died homicidal death, whereas the appellant came forward with the stance that it was suicide committed by the deceased. In order to determine as to which party came forward with true version of the incident, I have minutely scrutinized the medical evidence and the prosecution's case furnished by the complainant party. According to the prosecution's case, it was appellant himself who informed them about the occurrence, the appellant remained present throughout with the dead body and according to the prosecution, he was even present when she was being shifted to the hospital and according to prosecution's own showing, his conduct remained quite natural till the time when the fingers of accusation were raised towards him, his son, and other accused. Now coming to the medical evidence, furnished by Dr. Rafia Abbas (PW10), who had conducted autopsy on the dead body of Mst. Ameer un Nisa alias Mehro deceased on 10.11.2017 at 11:00 p.m., who observed a ligature. mark around the neck of deceased during postmortem examination, but a close look of the medical evidence unveils that the ligature mark was absent at the back of neck. In my considered view, which is formed after going through the medical jurisprudence and other material, the ill-fated lady died due to suicidal K death through hanging as no ligature mark was present at the back of the neck. According to the view of Dr. S. Siddiq expressed in A Text Book of Forensic Medicine and Toxicology, the difference between suicidal and homicidal death by strangulation through rope lies in the nature of ligature mark. It is found mentioned in the afore- mentioned book of Medical Jurisprudence that ligature in suicidal death is mostly oblique in nature and inward compression fracture of hyoid bone are seen in throttling and outward compression fracture of hyoid bone are seen in hanging, but postmortem report is absolutely silent in this regard. Similar view was expressed by C.K. Parikh in his book Parikh's Textbook of Medical Jurisprudence and Toxicology. While drawing a distinguishing line between death by hanging and death through strangulation, Dr. Parikh observed that in former, kind of death, the ligature is found in position above hyoid cartilage, mark incomplete, directed obliquely upward with the gap indicating position of the knot and with no damage to the skin in the gap. In the instant case, the medical officer failed to clear whether the hyoid bone was fractured due to inward compression or outward compression, therefore, benefit of this infirmity contained in medical evidence can be extended in favour of the accused coupled with the circumstances of the case, therefore, I am persuaded to hold that most probably the deceased died due to hanging/suicide .
14. Now the only piece of evidence left with the prosecution is the recovery of rope. In this regard, it is an admitted position that a joint recovery of rope from Muhammad Farooq appellant and Muhammad Rauf co-accused (since acquitted) is shown to have been effected from the oven of his house on 19.11.2017. It is settled law that joint recovery, particularly under the circumstances when said recovery was disbelieved to the extent of other accused, does not bear any significance in the eyes of law. The evidence of recovery against this background has no evidentiary value, hence, it would not thus be safe to maintain the findings of conviction even on this evidence.
15. Apart from the above, co-accused Rabnawaz and Muhammad Rauf were burdened with identical allegations as compared to those leveled against the appellant. Co-accused Rabnawaz was exonerated from the allegations by the complainant during the course of investigation in the light of her statement (Ex.DA), while co-accused Muhammad Rauf was acquitted of the charge after full-fledged trial. Neither complainant nor the State opted to prefer appeal against the acquittal of said accused and judgment of his acquittal has attained finality. In the circumstances when the evidence to the extent of acquitted co-accused has already been disbelieved by learned trial court, it cannot be believed against the appellant until and unless the same is supported by any, independent corroborative piece of evidence which is very much lacking in this case as I have not been able to find out any such evidence on the record. Reliance can be placed on the case reported as "Ghulam Sikandar and another v. Mamraz Khan and others" (PLD 1985 SC 11), wherein, at page 23, the learned apex Court has been pleased to hold as under:- "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown (PLD 1951 Lah. 66) propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused............"
A similar view has been discussed by Hon'ble Supreme Court of Pakistan in cases of "Iftikhar Hussain v. The State" (2004 SCM R 1185) and "Akhtar Ali and others v. The State" (2008 SCM R 6) and to fortify the above view, guidance has also been sought from the case of "Ghulam Mustafa and another v. State" (2009 SCM R 916), wherein, at page 924, the learned apex Court of the country, has been pleased to hold as under:- "..............In our jurisdiction it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However, according to settled case law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses than indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State (1969 SCMR 132), Shafoo v. State (1968 SCMR 719) and Allah Ditta v.
State (PLD 2002 SC 52)........."
In case of circumstantial evidence like instant one, the chain of evidence should be in a geometrical progression touching from one side to the dead body whereas from the other side it should touch to the neck of the accused in the shape of motive, recovery of dead body, extra- judicial confession, pointing of place of occurrence by the accused and recovery of weapon of offence if any, and if one ring (ingredient) of chain is missing then whole evidence would be discarded and prosecution case would fall on the ground.
16. The upshot of the above discussion is that the prosecution has badly failed to bring home the guilt of the appellant beyond any reasonable shadow of doubt. The impugned judgment appears to have been passed merely on conjectures and surmises, without taking into account scores of infirmities and weaknesses in the Prosecution's case, thus, same is not sustainable by any stretch of imagination.
17. For the foregoing reasons, this appeal is accepted, the impugned judgment is undone and conviction/sentence of the appellant is set aside. He is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.
18. In view of my above findings, Criminal Revision No,207 of 2018 does not bear any force and same is dismissed in limine.