' AFTAB HUSSAIN, C.J.--This is an appeal filed by ghulam Murtaza, convict against the order dated 1- 10-1983 passed by Mr. Muhammad Anwar Nasim, Additional Sessions Judge, Sargodha by which he convicted the appellant under section 10(3) of the offence of zina(Enforcement of Hudood)
Ordinance, 1979 and sentenced him to 25 years' R.I. And 30 stripes.
2. The victim Mst. Iqbal Bibi, aged 7 or 8 years had not only been raped but also murdered. But notwithstanding the provision of the section 235, Cr.P1C.' which provide trial for more than offence at the same trial, if committed in one series of acts so connected together as to form the same transaction, the learned Sessions Judge separated the trial, for the two offences, with the result that two different appeals have been filed in this Court and the High Court. This has given rise to an anomaly of the same act being thrashed by two different Courts, acting in concurrent jurisdiction.
3. The facts of the case are that on the 22nd of October, 1981 at about 8 or 9 a.m. Mst. Iqbal Bibi aged about 7 or 8 years, resident of village Matifa went to ease herself in the sugarcane field and then did not return. Her dead body was discovered in a sugarcane field. It appears that she had also been raped and her shalwar was found nearby.
4. The first information report Exh. P.D. Regarding the occurrence was lodged at the Police Station, Kot Moman, which is at a distance of 9 miles from the place of occurrence on the same day at 5 p.m. At the instance of Umar Hayat, P.W.6 maternal-uncle of the deceased. He gave the circumstances of disappearance of Mst. Iqbal Bibi and how her dead body was found in the sugarcane field in Killa No, 22 Square No, 9, belonging to Mirza. He described that there were scratches on her neck and around it and blood oozed out from her private part and some cruel man had committed zina-bil-jabr with her and had strangulated her. Mst. Iqbal Bibi was wearing golden ear-rings, pair of tops, weighing one tola which were also missing and the culprit had removed the same. The complainant raised hue and cry, which attracted many persons to the spot.
5. Doctor Mumtaz Ahmad, P.W.4, conducted the post-mortem examination. He found a number of injuries on the body. In his opinion death occurred due to shock and asphyxia caused by compression of neck and closure of mouth throttling which was sufficient to cause death in the ordinary course of nature. All the injuries were antimortem. He found the blood present in the vagina and around there were tears. The labia majora and hymen was absent. Vaginal orifice was patent loose and admitted two fingers easily.
6. He took two vaginal swa bs and slide and handed them over to the police for chemical examination for detection of semen. The Chemical Examiner's report is positive and proves that vaginal swa bs and slides were stained with semen. In addition vaginal swabs were also stained with blood.
7. P.W.4 medically examined the appellant for potency on the 14th day of the occurrence i,e, 1st of November, 1981 and found him potent.
8. There is no eye-witness of the occurrence. The evidence of Manzoor, P.W.7 is of last seeing together, Mst. Iqbal Bibi decease and Ghulam Murtaza, appellant standing near the sugarcane field of Mirza. Mst. Iqbal Bibi was standing at the Banna. The witness then went to the house of Anwar, P.W.8, where he was going to borrow his tractor. He came to know late at Peshi Wela at his dera that Mst. Iqbal Bibi was missing. He claims to have informed Umar Hayat about his seeing the appellant and victim together at about 8 a.m. The same day. This information was given by him after late Peshi Wela. He made the statement before the Police also at the same time when he informed Umar Hayat. He was confronted with his statement Exh. D.A. Before the Police which was recorded next day on the 23rd of October, 1981 and in which he had stated that he had seen the two together one day earlier. He had admitted that he was the first cousin of Umar Hayat, P.W.6 and that Anwar, P.W.8 was his wife's brother.
9. The two other witnesses, namely, Muhammad Anwar, P.W.8 and Ghulam Ali, P.W.9 are the witnesses of extra-judicial confession of the appellant. According to Muhammad Anwar, the appellant visited him at his dera at about 9 p.m. On 24-10-1981 when Ghulam Ali, P.W.9 was also sitting there. The appellant confessed before him is well as Ghulam Ali that he had committed rape on Mst. Iqbal Bibi and had murdered her. He requested him to arrange pardon from Umar Hayat and the Police. The witness asked him to come the following morning and then he would try to help him but then he did not return till the 5th November, 1981. On that day he came early in the morning. He told him that he had come according to his promise. The witness took him to the Police at about 10-00 a.m. On the same day. He added that he himself made his statement to the Police at that time.
10. He admitted in cross-examination that he is the first cousin of Umar Hayat P.W.6 and Manzoor, P.W.7 was the husband of his sister. He himself had been a Police Constable. He denied that he was dismissed from service but he had resigned himself. He further stated that Manzoor, P.W.7 had informed him at about 2 or 2 1/2 p.m. On the date of occurrence that he had seen Mst. Iqbal Bibi standing with Ghulam Murtaza on the Banna near the sugarcane crop. He denied that his statement was recorded by the Police on 24-10-1981. He was confronted with the copy of the statement Exh. D.B. Where the above date so recorded. He denied that the appellant was apprehended by the Police on the 22nd of October, 1981 and consequently he could not have come to him on the 23rd or the 24th October, 1981. He said that he had stated before the Police on 5-11- 1981 that the appellant had come to him at 9 p.m. On 24-10-1981 and had made the extra-judicial concession. He was confronted with the statement Exh. D.C. Which was recorded in the case diary but these facts were not mentioned there.
11. Ghulam Ali, P.W.9, who is also a first cousin of Umar Hayat and Muhammad Anwar made a similar statement about the extra-judicial confession dated 24-10-1981. He is the resident of the same village. He stated in cross-examination that he went to the dera of Muhammad Anwar, P.W.
On 24-10-1981 to request him to plough his land with his tractor the next morning. He promised him to do so and asked him to stay with him for the night. He stated that he appeared before the Police one or two days after 24-10-1981 and made the statement. His statement, copy of which is Exh. D.D.
Was however recorded by the Police on 24-10-1981 and he stated therein that the appellant had come to the dera of Muhammad Anwar on the previous night which means the judicial confession was made on the 23rd of October, 981. He denied that the so-called confession is fabricated and in fact the appellant was apprehended by the Police on the 22nd of October, 1988.
12. Umar Hayat, P.W.6 stated in cross-examination that the dead body was discovered by Mst. Jallo, wife of Manzoor shaikh and Mst. Jallo was detained by the police for several days as a suspect during the investigation of this case. He further stated that the appellant along with his father resided at his dera and he remained present at the dera till he was arrested by the Police. He said that he was apprehended by the Police at Khuftanwela on the day of occurrence when he was sleeping at his house. He denied any knowledge whether Manzoor. P.W.7 had come to him on the dera on the day of occurrence to condole the death of Mst. Iqbal Bibi. He stated that he did not know whether the appellant was innocent or not.
13. The evidence of Muhammad Feroze, Revenue Patwari, who prepared the site plans Exh. P.A. And Exh. P.M]. On 5-11-1981 is relevant only to the extent that no name was mentioned before him by any of the witnesses nor any witnesses had pointed out any place where the accused appellant was at the time of occurence, before or after.
14. Muhammad Yousaf, P.W.3 in whose presence the shalwar of the victim was taken into possession stated in cross-examination that the appellant was present at that time and remained present in the dera of Umar Hayat P.W. Complainant till he was arrested by the Police about 13 days after the occurrence. He used to reside at the said dera and was arrested from there. He continued doing routine work from Umar Hayat complainant.
15. Mashir Ali Shah, P.W.10 who is the Investigation Officer, while giving the details of the investigation stated that he recorded the statement of Muhammad Anwar, P.W.8 and Ghulam Ali, P.W.9 on the 24th of October, 1981. He arrested the appellant on 5-11-1981. He proved the copy of the 'statements Exhs. D.A. To D.D. He denied that the appellant was apprehended (as stated by Umar Hayat, P.W.6) at the dera of Umar Hayat, complainant on the 22nd of October, 1981. He appeared before him for the first time on 5-11-1981. The appellant remained in the Police lock-up up to the 14th of November, 1981 but no recovery could be effected from him. He denied that Mst. Jallo was ever interrogated by him as a suspect.
16. The appellant's statement is that of denial. He stated that he was apprehended by the Police on 22-10-1981 and was detained till 15-11-1981 when his arrest was shown in Police papers falsely. This left him no occasion to make any extra-judicial confession. He further explained that along with him Mst. Jallo was apprehended as a suspect. The Moeens living at the dera of Umar Hayat P.W.
Were also detained by the Police and their interrogation continued for more than a week. He claimed to be innocent and stated that Muhammad Anwar, who is a dismissed Police Constable falsely involved him in the case in order to help the Police in showing that the case had not remained untracted.
17. It is clear from the evidence of Umar Hayat,-P.W.6, an absolutely truthful witness, that the appellant was detained by the Police on the 22nd of October, 1981 i,e, the day when the occurrence took place. The statement of the appellant that he had throughout been under detention up to the 5th November, 1981 when his arrest was formally shown. This is further corroborated by the fact that despite the fact that according to P.W.10 he had recorded the statements of the witnesses of the extra-judicial confession (P.Ws. 8 and 9) on the 24th of November, 1981, there is not a hint on the record as to whether he at all searched the appellant and if so where. It is also strange that the first cousins of Umar Hayat, P.W.6 (i,e, P.Ws. 8 and 9) should allow the appellant to escape after his alleged extra-judicial confession to them on his promise that he would come next day. Ghulam Murtaza is also stated to have been there. Muhammad Anwar could have taken him to the Police Station right at that time of apprehending him. The story of extra judicial confession is also proved to be untruthful from the contradiction about the date in the statements of the two witnesses. Their statements before the Police were recorded on the 24th October, 1981 at 9 p.m. But it appears from the statement made by P.W.9 before the Police that he fixed the date of confession as 23rd of October, 1981.
18. The only evidence left about the occurrence is that of Manzoor' Ahmad, P.W.7 of seeing the appellant and the victim together for the last time when Mst. Lqbal Bibi was standing at the Banns.
It is strange that the Police Officer, P.W.10 who had been informed about this next day did not immediately arrest the appellant, as he states, and waited till his appearance before him of the 5th of November, 1981. Umar Hayat, P.W. Does not support the story of Manzor Ahmad, P.W.7. Although the latter claimed that he had informed Umar Hayat about this fact on the date of occurrence but no such statement was made by Umar Hayat. On the other hand he stated that he did not remember whether after recovery of the dead body Manzoor. P.W.7 came to his house that day to condole the death of the child. Manzoor P.W.7 category call stated that he gave this information to Umar Hayat on the day o occurrence when the Police was there which means that the dead body had been recovered. This evidence is also not believable.
19. Even if this evidence had been believed it would not be possible to maintain the conviction of the appellant merely no the evidence of being seen last together with the victim. It is worth mentioning that even the golden ornaments were not recovered.
20. We allow this appeal and quash the order of conviction and acquit him. He shall be released forthwith if not required in any other case.