' MUHAMMAD MUNIR KHAN, J.-This Criminal Appeal and the connected Murder Reference arise from the judgment of the learned Sessions Judge, Bahawalnagar, whereby, he, on 23-2-1980 convicted Badar Din alias Badroo, appellant under sections 366/376/302, P. P. C. For the abduction, rape upon and murder of Mst. Tahira Bibi aged about 15/16 years and sentenced him, under section 366, P. P.
C. To 10 years' R. I. And a fine of Rs, 5,000, in default thereof, to further R. I. For one year, under section 376, P.. P. C. To 10 years' R. I. And a fine of Rs, 5,000 in default thereof to further R. I. For one year and under section 302, P. P. C. To death, compensation of Rs, 5,000 under section 544-A, Cr. P. C. In default thereof to six months' R. I. With direction that, in case, the capital punishment awarded under section 302, P. P. C. Is not confirmed the sentences awarded under sections 366/376, P. P. C.
Would run consecutively.
2. The prosecution case in brief is that Mst. Tahira Bibi deceased daughter of Muhammad Hussain P. W. 14 left the house of her father on account of a domestic incident about if months prior to her death. At 7 or 8 p. m. On the same day, Ata Muhammad P. W. 15 saw her with the appellant at Bus- stand Dipalpur. She told Ata Muhammad P. W. 15 that she was going to Haveli Lakha to see her ailing uncle. On the following day, Muhammad Husain P. W. 14 (her father) went to Haveli Lakha but did not find her in the house of her maternal uncle. It has been alleged that after about 18/22 days Mst. Tahira Bibi was seen in the company of Badar Din appellant by Ghulam Rasul P. W.
21. Badar Din told him that Mst. Tahira Bibi was his second wife and they were going to Takht Mahal.
This fact was told by Ghulam Muhammad to Muhammad Hussain and others when they accidentally met him at Kabula Town. Thereafter, on 24-2-1979 naked dead body of Mst. Tahira Bibi was seen in a bush by Muhammad Mansha P.-W. 8 and Muhammad Arshad (not produced), they informed Mumtaz Ahmad Lamberdar P. W. 9 in village Tughera Sharif who visited the spot and leaving Mushtaq and Arshad behind to guard the dead body, left for Police Station Sadar Bahawalnagar to inform the Police. On his way to the police station he came across Yar Muhammad A. S. I. P. W. 19 in village Mari Qadar Bakhsh and made statement Exh. P. H./3 which was sent to the police station through Mehboob Elahi Foot Constable (not produced) for an entry in the Rozenamcha. This statement was incorporated as Rupt No, 20 in the Rozenamcha dated 24-2-1979, copy is Exh. P. H. /4. Yar Muhammad A. S. I. P. W. 19, after recording the statement of Mumtaz Ahmad P. W. 9 initiated proceedings under section 176, Cr. P. C. He reached the spot, took the dead body into his possession. Since it was an unidentified body, the police got its photographs. The dead body was despatched to the mortuary under the escort of Nazar Muhammad, Constable P. W.
4. Dr. Shabir Ahmad P. W. 7 conducted the post-mortem examination on 25-2-1979 and found the following injury on her person:- ' There was a slight abrasion mark on the left side of the neck in the size of 2' x 1', no other mark of injury was seen. The doctor opined that apparently there was no such wound or cause which may be sufficient to cause death. According to him the death was immediate and the duration between the death and the post-mortem was 2/3 days. He, however, sent visceras and vaginal swabs to Chemical Examiner and stated that the final result will be given after the Chemical reports."
' Muhammad Hussain P. W. 14 and others, wholly unaware of the death of Mst. Tahira Bibi were still in her search when on 2-3-1979 at Bahawalnagar they heard the people saying that an unidentified dead body of a girl was buried 2/3 days earlier in the graveyard. They, then approached Rao Abdul Khaliq S.-I. P. W. 22, S. H.
0. Police Station Sadar, Eahawalnagar and identified the photographs as those of Mst. Tahira Bibi deceased. Muhammad Hussain P. W. 14 then lodged F. I. R. Exh. P. L. Which was recorded by the said S. H.
0. At 4 p. m. On the same day.
3. Rao Abdul Khaliq S.I/S. H.
0. P. W. 22 inspected the spot. On 4-3-1979 Muhammad Bakhsh P. W. 12 and Ramzan P. W. 13 produced Badar Din appellant before the S. H.
0. On 5-3-1979, Badar Din appellant led to the recovery of shalwar Exh. P. 2, shirt Exh. P. 3, dopatta Exh. P. 4 and burqa Exh. P. 5 of the deceased from a pit having . . . Reed bushes, which were taken into possession vide memo. Exh. P. L. Attested by Mumtaz Ahmad P. W. 9, Ahmad Yar P. W. 10 and Amir P. W.
20. On 7-3-1979 Badar Din appellant got recovered a pair of shoes Exh. P. 1/1-2 of the deceased from a pit of water which were taken into possession vide memo. Exh. P. K. Attested by the same witnesses. On 8-3-1979 these articles were identified by Muhammad Hussain P. W. 14, Allah Ditta P.
W. 17 and Ghulam Rasul P. W. 21 as belonging to the deceased. It is remarkable that the dead body was exhumed on 10-7-1979 and again subjected to post-mortem by Dr. Sher Muhammad P. W. 6, who, on external examination found the following injury : "There was a bruise mark on the left side of her neck below and behind the angle of the left mandible. The mark was dark brown. On dissection there was found infiltration of blood in the subcutaneous tissue under the bruise. Carotid sheet of both sides of the neck was lacerated and extra-vecessation of blood was present. There was no fracture of hyoid bone or that of thyroid bone, vertabrae and trachea. These all were intact and not broken."
' In the opinion of the doctor, the death was due to asphyxia caused by strangulation. The probable time that elapsed between injury and death was immediate and between death and the second post-mortem about 2 to 3 weeks. The Chemical Examiner's Report Exh. P. J. Shows that no poison was detacted in the visceras, the vaginal swabs were, however, stained with semen.
4. The above statement of facts would show that there is no ocular evidence as to the murder of Mst. Tahira Bibi. The prosecution has relied upon extra-judicial confession and the circumstantial evidence in the shape of last seen and recoveries of the clothes and shoes of the deceased from the appellant.
5. To prove the last seen of the deceased with the appellant, the prosecution examined Atta Muhammad P. W. 15, who allegedly saw the deceased with the appellant on the day when she left the house of her father. Ghulam Rasul P. W. 12 was produced to prove that he had seen Mst. Tahira Bibi deceased with the appellant after 18/22 days of her leaving the house of her father. To prove the extra-judicial confession, the prosecution examined Muhammad Bakhsh P. W. 12 and Ramzan P.
W.
13. To prove the alleged recoveries the prosecution examined Mumtaz Ahmad P. W. 9, Ahmad Yar P.
W. 10, Amir P. W. 20 and Abdul Khaliq P. W.
22. The articles allegedly recovered from the appellant were identified to be those of the deceased by Muhammad Hussain P. W. 14, Allah Ditta P. W. 17 and Ghulam Rasul P. W.
21.
6. The appellant when examined under section 342, Cr. P. C. Denied all the incriminating circumstances and stated that he was falsely involved at the instance of Ghulam Rasul P. W.
21.
7. Learned counsel for the appellant has submitted that the evidence of extra judicial confession is not only unreliable but also inadmissible and that the prosecution has failed to prove the alleged recoveries satisfactorily. Furthermore, the evidence of last seen fails to connect the appellant with the murder of Mst. Tahira Bibi deceased. As against this, the learned State Counsel has defended the judgment of the trial Court and stated that Mumtaz Ahmad P. W.
9. Ghulam Rasul P. W. 21 and Ata Muhammad P. W. 15 having no animosity against the appellant, were reliable witnesses and as such the conviction has been rightly recorded by the trial Court.
8. Keeping in mind the guiding principles laid down by the superior Courts for the appreciation of extra-judicial confession and the circumstantial evidence that (1) extra-judicial confession is at best a weak type of evidence and utmost care and caution is to be used in placing reliance on such confession which also requires a three-fold proof firstly ; that, in fact, it was made, A secondly ; that it was voluntarily made and thirdly ; that it was truly made, (ii) that the circumstantial evidence should exclude all the hypothesis of the innocence and should lead to one and only one conclusion that the accused and none else has committed the crime. We proceed to evaluate and weigh the structure of the prosecution case-and would like to discuss the evidence of extra judicial confession which, to or mind, is the main pillar of the structure. The prosecution case is that on 4-3- 1979 the appellant had confessed before Muhammad Bakhsh P. W. 12 g and Ramzan P. W. 13 that he had done the deceased to death. Muhammad Bakhsh P. W. 12 has clearly stated that the appellant did not tell them as to who and under what circumstances had murdered the lady. This witness was, however, allowed to be cross-examined by the District Attorney but nothing in favour of the prosecution could be elicited from him. We have considered his statement with care. The mere fact that he was allowed to be cross examined by the District Attorney is not sufficient to discard his entire statement. We do not see any reason to disbelieve him. In view of his statement we are inclined to hold that the prosecution has failed to qualify the first test that the confession was, in fact, made by the appellant. As for Ramzan P. W. 13, we find that on the most material point i. e. The confession of the murder, this witness stands contradicted by Muhammad Bakhsh P. W.
12. We further find that the statement of this witness that "Badar Din told us that he had murdered the lady" is a vague as well as incomplete statement. It does not indicate as to who and under what circumstances she was murdered by the appellant. To or mind, this statement does not amount to the confession of the murder of Mst. Tahira Bibi deceased. The evidence of extra judicial confession being a weak type of evidence, it is the duty of the prosecution to prove the same without leaving any ambiguity and if there is any ambiguity the benefit would go to the accused and not to the prosecution. For these reasons we are of the opinion that no implicit reliance can be placed on this piece of evidence and it has to be excluded from consideration. The extra judicial confession which is the main pillar of the prosecution case having been found shaky and not concrete the superstructure has to tumble down.
9. This brings us to the evidence of last seen. To prove it, the prosecution has examined two witnesses namely ; Ata Muhammad P. W. 15 and Ghulam Rasul P. W.
21. Ata Muhammad P. W. 15 has stated that he had seen the deceased with the appellant on the day when she left the house of her parents. It transpires from the evidence led by the prosecution that Ghulam Rasul P. W. Had seen the deceased with the appellant after 18/22 days of her deserting her parents. Since she was seen alive even after 18/22 days of her leaving the house of her parents, the evidence given by Ata Muhammad P. W. 15 can hardly he treated as an evidence of last seen.
When the statement of Ghulam Rasul P. W. 21 is read in the light of the F. I. R. And other evidence brought on the record, it appears that he had seen the deceased and the appellant about a month prior to her death in a district other than the district where the dead body was recovered. Since there is sufficient interval between the date when she was seen with the appellant and the date of her murder and there is also a considerable distance between the place where she was allegedly seen by Ghulam Rasul P. W. 21 and the place from where the dead body was recovered, we are of the opinion that even the statement of Ghulam Rasul P. W. 21 cannot be termed as an evidence of last seen. In this view of the matter, we are of the opinion that his evidence also fails to exclude the hypothesiS of the innocence of the accused. The possibility that she after having separated from the appellant might have been killed by some one else cannot be excluded. At this stage, we would like to observe that there does not appear any motive for the appellant to kill the deceased, because, it appears from the evidence of Ata Muhammad P. W. 15 and Ghulam Rasul P. W. 21 that Mst. Tahira Bibi was a consenting party and most probably had eloped. When the appellant in her presence told Ghulam Rasul P. W. 21 that Mst. Tahira Bibi was his second wife she did not refute it. In these circumstances, the possibility that she might have been done to death even by her relatives cannot be excluded.
10. The evidence of recovery has failed to inspire confidence in or mind. To prove it, the prosecution examined for witnesses namely : Mumtaz Ahmad P. W. 9, Ahmad Yar P. W. 10, Amir P. W. 20 and Rao Abdul Khaliq S. H.
0. P. W.
22. We find that out of these witnesses, two witnesses namely Ahmad Yar P. W. 10 and Amir P.W. 20 have refused to support the recoveries from the appellant. We further find that there are material contradictions in the statements of Mumtaz Ahmad P. W. 9 and Rao Abdul Khaliq S. H.
0. P. W. 22 inasmuch as the S. H.
0. Has stated that the clothes were recovered on 5-3-1979 and the shoes were recovered on 7-3- 1979, whereas, the trend of the statement of Mumtaz Ahmad is that the shoes as well as the clothes were recovered on one and the same day. The prosecution case that the accused had led to the recovery of these articles on 5-3-1979 and 7-3-1979 stands materially damaged by the statement of Allah Ditta P. W. 17 who has clearly stated that he had seen the clothes and the shoes at the police station after two or three days of the registration of the case. This means that these articles were already with the police before 5-3-1979 and 7-3-1979 and as such the recoveries are fake ones. Even otherwise, this piece of evidence per se is not sufficient to connect the appellant with the murder of Mst. Tahira Bibi.
11. The upshot of the above discussion is that there is no satisfactory basis whatsoever for upholding the conviction of the appellant and while giving him the benefit of doubt, we acquit him of all the charges. He shall be released forthwith if not required in any other case. The sentence of death is not confirmed.