' The appellant Shaukat Masih aged 15, son of Tehla Masih, of Mushian, K Block, Model Town, Lahore, was tried by a learned Addl. Sessions Judge, Lahore, for committing the murder of his sister Mst.
Meena, aged 30/35 years about 10/11 days prior to the registration of the case.
2. The learned trial Judge vide his judgment, dated 4-6-1979 convicted the appellant under section 302, P.P.C. And sentenced him to imprisonment for life and to a fine of Rs,3,000 or in default to one year further R.I.
3. The appellant has challenged his conviction and sentence through the present appeal.
4. The occurrence was reported by lnayat Ali, P.W.7 through statement Exh. P.E., which he made before Muhammad Shafi Ullah P.W.12, the then S.I/S.H.O., Police Station, Model Town, Lahore, on 14- 8-1977 at 4-00 p.m. The formal F.I.R. Exh.P.E/1 was recorded at Model Town Police Station, on the same day at 4-15 p.m. By Muhammad Yousaf P.W.9 the then Muharrir A.S.I. Police Station, Model Town.
5. The F.I.R. Account of the prosecution version is that Mst. Meena deceased was married to one Talib Masih of village Watne Police Station, Raiwind. Her relations with her husband were rather strained and she used to come to her parent's house very often. Her parents and respectables of Murhian used to send her back to her husband's house but again after a few days, she would come back to her parents house. Lastly, she came to her parents house at Murhian about 5/6 months prior to the occurrence. Her parents tried that she should go to her parents-inlaw's house but she was not prepared to do so. About 10/11 days prior to the registration of the case, she was not even seen in her parents house. Her father and brother gave out that she was abducted. On 14-8-1977 when P.W.7 lnayat All and P.W.3 Miraj Din enquired from the appellant about the whereabouts of his sister, he confessed his guilt before them and informed them that in fact he had murdered his sister and has buried her dead body in village Murhian. Thereafter, Inayat All and Miraj Din proceeded to the Police Station but near the Model Town bus stand, they met Muhammad Shafi Ullah, S.I. S.H.O., before whom lnayat Ali P.W.7., made statement Exh.P.E.
6. After recording the statement Exh.P.E., Muhammad Shafi Ullah 5.1. Proceeded to village Murhian where Shaukat Masih appellant was produced before him by lnayat All and Miraj Din P.Ws. During investigation, Shaukat Masih led to the recovery of dead body of Meena deceased from the Haveli of his father Tehla Masih where he had buried the dead body. The dead body after recovery was secured into possession vide memo. Exh.P.A. Dated 14-8-1977, which is attested besides Muhammad Shafi Ullah S.I/S.H.O. By lnayat Ali P.W.7, Miraj Din P.W.3 and Ch. Mashooq Ali (not produced).
7. On 17-8-1977, the appellant while in Police custody led to the recovery of the weapon of offence viz. Blood-stained Kassi P.I from a Chari field belonging to one Khuda Bakhsh of village Murhian.
This blood-stained Kassi P.1 was taken into possession vide memo. Exh.P.B., which has been attested by Rashid alias Kala P.W.4. And Munir Ahmad P.W.11. Besides Muhammad Shafi Ullah S.I./S.H.O. P.W.12.
8. The post-mortem examination on the dead body was performed on 15-8-1977 by Dr. Farid Bakhsh Hashmi, whose testimony could not be recorded as Dr. Farid Bakhsh Hashmi, had gone abroad. The prosecution examined P.W.8 Abdul Sattar Shah, Dispenser, of the office of Surgeon Medico-legal, Punjab,Lahore, who stated that he served under Dr. Farid Bakhsh Hashmi and was well conversant with his signatures and handwriting. Abdul Sattar Shah, Dispenser, further testified that post-mortem report in respect of the post-mortem of Meena Masih, carbon copy whereof is Exh. P.F. Is in the hand of Dr. Farid Bakhsh Hashmi.
9. According to the post-mortem report, there was incised wound on the right side of neck 9 c.m. x 7 c.m. Cutting all the deep structures including vessels, reaching to cervical vertebrae and cutting them half and half.
10. It has been opined by the doctor that injury on the neck was ante-mortem and was caused by a sharp heavy weapon. Death occurred due to shock and haemorrhage as a result of the aforementioned injury which was sufficient to cause death in the ordinary course of nature.
11. The appellant claimed to be innocent and pleaded that he was falsely involved in order to save the actual culprit. He denied the recovery of the dead body and the recovery of the blood-stained Kassi as his instance. He further denied of having made extra-judicial confession before Miraj Din and lnayat Ali. No evidence in defence, however, has been led by the appellant.
12. It transpires from the above resume of the facts of this case that there is no ocular evidence of the offence of murder against the appellant and there is nothing on the record to suggest as to what was the motive for the young appellant to murder his own sister.
13. The prosecution case against the appellant rests on extra-judicial onfession, recovery of the dead body at the instance of the appellant, recovery of the blood-stained Kassi P.1 at his instance and medical evidence.
14. Extra-judicial confession has always been regarded as the weakest type of evidence which requires strong independent corroboration. In the circumstances of the present case, the evidence of extra-judicial confession is based on the testimonies of P.W.3 Miraj Din and P.W.7 lnayat Ali. Miraj Din has stated that S.H.O. Met them at Model Tom) Bus Stand.He and Inayat All verbally reported the matter to him. He accompanied them to village Murhian where he recorded the statement of Inayat Ali and subsequently also recorded the statement of this witness. Miraj Din further disclosed that the guilt was confessed before this witness and lnayat All in the presence of his father Tehla Masih. According to him, the confession was made at 3-00 p.m. In the Haven of Tehla Masih.
According to Miraj Din, the appellant had informed them that he had buried the dead body in the courtyard of his house. In the statement Exh.D.A. Of this witness recorded by the police under section 161, Cr.P.C. It is not mentioned that the accused made extra-judicial confession before Miraj Din and lnayat Ali in the presence of his father and that confession was made in the Haveli of his father. In the statement Exh.D.A. The place of burial is mentioned as Deh Murhian and not the courtyard of the house of the accused. P.W.7 Inayat Ali gave a different version about the details of the alleged extra-judicial confession. He told that the accused and his father had come to his house to request him to accompany them to the Police Station as they wanted to intimate the Police about the disappearance of Meena deceased. Shaukat accused remained sitting in the house and he made confession of having murdered his sister before lnayat Ali.He told this witness that he had buried the dead body in his courtyard. He (Inayat Ali) further told that in the evening Miraj Din P.W. Had also come to the house of Inayat Ali and again the accused made confession but on that occasion, Tehla Masih, the father of the accused, was not present. According to lnayat Ali, his statement was recorded by the S.H.O. At Model Town Bus Stand. Lnayat Ali has contradicted Miraj Din inasmuch as according to Miraj Din, confession was made at 3-00 p.m. At the house of Tehla Masih while according to inayat Ali, confession was made in his house, firstly, in the morning and for the second time at 3-00 p.m. According to Inayat Ali, his statement was recorded by -the S.H.O. At Model Town Bus Stand, but according to Miraj Din, the statement was recorded on the spot.
15. Regarding recovery of dead body vide_memo. Exh.P.A., the state- ments of Miraj Din, lnayat Ali and Muhammad Shafi Ullah, Investigating Officer, are almost unanimous. There is no material on the record to suggest that the recovery of dead body of the deceased at the instance of the appellant from the courtyard of his Haveli can be doubted in any manner.
16. As regards the recovery of blood-stained Kassi P.1, it may be observed that the Kassi is alleged to have been recovered from a Chari field belonging to one Khuda Bakhsh in village Murhian. P.W.4 Rashid and P.W.11 Munir Ahmad, are the attesting witnesses of the recovery memo. Exh.P.B, whereby Kassi P.1 was recovered. According to both these recovery witnesses, Chari field of Khuda Bakhsh is close to a thoroughfare. Rashid stated that earth was dug up and Kassi P.1 was recovered which was blood-stained. According to this witness, he was grazing cattle at the time of recovery near the field of Khuda Bakhsh and he was made to attest the recovery memo. It is noteworthythat this witness has also attested the recovery memo. Exh. P.C. Whereby the Police Constable produced the last worn clothes brazier P.2, shirt P.3, Shalwar P.4, Dopatta P.5 and blanket P.6, after the post- mortem examination. The memo. Exh.P.C. Was attested by this witness at the Police Station. If he was just grazing cattle and was asked to attest the memo. Exh.P.B, regarding the recovery of blood- stained Kassi, there was hardly any occasion for him to attest the memo. P.C. About the securing of clothes of the deceased after the post-mortem examination. Needless to say, that memo. Exh.P.C.
Was admittedly prepared at the Police Station. The possibility cannot be excluded that the signatures of this witness on both the memos. Viz. P.B. And P.C. Were obtained by the Police at the Police Station. Munir Ahmacr(P.W. 11) 'has disclosed that Police alongwith the accused had come to the Dara of Sain Karanga near the graveyard. This witness went to the said Dara after the arrival of the police as he was summoned thereby the Police through some person named as Makhan who lived at the said Dara. According to him, Rashid P.W. Was already present at the Dara when this witness reached there. He admitted that he signed two papers at the Police Station. Muhammad Shafi Ullah S.I/ S.H.O. Unlike Rashid and Munir disclosed that he went direct from the Police Station to the Chari field from where Kassi P.I (blood-stained) was recovered in the presence of Munir and Rashid. He expressly stated that on the occasion of recovery of Kassi P.1 they did not stay at any Dara or any other place in the village before coming to the field from where the recovery was made. He further disclosed that he did not summon Rashid and Munir for joining the investigation.
The said two witnesses met him in the village by chance and he took them along for witnessing the recovery. In this manner, he has contradicted both Rashid and Munir. Rashid, as already stated, had disclosed that he was present near the field grazing cattle while Munir has disclosed that he was summoned to Dara of Sain Karanga through one Makhan.
17. In the light of these glaring contradictions in the statements of the recovery witnesses, the recovery of blood-stained Kassi at the instance of the appellant becomes highly doubtful.
18. The medical evidence simply furnishes support to the prosecution to this extent only that Mst.
Meena deceased was done to death by causing injury at her neck with some heavy sharp-edged weapon. The medical evidence does not, in any manner, connect the appellant with the offence.
19. The above analysis of the prosecution case leads to the conclusion that the offence of murder is not proved against the appellant beyond reasonable doubt. The only fact which stands established against him is that the dead body of the deceased has been recovered at his instance.
This recovery is, therefore, indicative of the fact that the appellant is liable for causing disappearance of evidence of offence of murder inasmuch as he buried the dead body of the deceased with intention of screening the offender from legal punishment. He is, therefore, liable for punishment under section 201, P.P.C.
20. The appellant, no doubt, has not been specifically charged for the offence punishable under section 201, P.P.C. But by virtue of the provisions of section 237, Cr.P.C. He can be convicted of the offence proved against him.
21. In the light of the above conclusions, the appeal is allowed to this extent that the conviction and sentence of the appellant under section 302, P.P.C. Is set aside and instead he is convicted under section 201, P.P.C. And is sentenced to the imprisonment already undergone by him. .