LEHRASAP KHAN, J.--Mst. Nasreen Akhtar (33) has been convicted by a learned Additional Sessions Judge, Rawalpindi, on 11-11-1984, under section 302, P.P.C. For the murder of Rahat Nazeer, a child aged 2 -- years, and has been sentenced to death and a fine of Rs.10,000 or in default six months' R.I. It has been directed that the fine, if realized, the same shall be paid to the legal heirs of the deceased. Vide the same judgment, two co- accused of Mst. Nasreen Akhtar, namely, Mst. Ameer Jan, mother-in-law and Mst. Tazeem Akhtar, sister-in-law of Mst. Nasreen Akhtar were acquitted.
2. The convict Mst. Nasreen Akhtar has challenged her conviction and sentence through the present appeal viz. Criminal Appeal No. 106 of 1984, while the matter also stands referred to us under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Mst. Nasreen Akhtar. Muhammad Nazeer, the father of the deceased child, has filed Criminal Revision No. 101 of 1985 for enhancement of the sentence of fine. All the three matters shall be disposed of by this judgment.
3. The occurrence in this case allegedly took place on 15-2-1983 at 3 p.m. When the deceased-child Rahat Nazeer went outside his haveli, but did not return thereafter. The occurrence was reported at Police Station Mandra on 18-2--1983 at 4-30 p.m. By Major (Rtd.) Umer Hayat Khan, paternal uncle of the deceased-child, vide F.1.R. Exhibit P.B. Which was recorded by Malik Ghulam Shah (P.W. 15), the then S.I., S.H.O. Police Station Mandra.
4. As per F.I.R. Account of the prosecution version, Muhammad Nazeer, the father of the deceased-child, used to serve in Saudi Arabia. His family, consisting of a were, two daughters and the deceased-child live in the village. On 15-2-1983, at 3 p.m., the child came out of the haveli. It was a little cloudy. A short-while afterwards, Mat. Nazeer Begum, the mother of the deceased-child, enquired about the child, but he was not available. She searched for him till evening, but without success. She sent a message to her brother-in-law Major (Rtd.) Umer Khan at Rawalpindi that the child was missing. Major (Rtd.) Umer Hayat Khan also searched for the child. The water of a small well, situated near the house of the deceased-child, was completely taken out, but the child was not found there. During the night between 17 and 18-2-1983, at about 12-30 a.m., Muhammad Rafaqat, Muhammad Zamurrad, Muhammad Shakeel and Fazle Mahmood came back from Dhok Ladhar to the village of the deceased-child, namely, Dhok Choi, in a Suzuki car and with the help of the headlight of the Suzuki car, spotted the dead body of the child lying in a field, on the back of the village mosque. Thereafter, Major (Rtd.)
Umer Hayat Khan was informed and he lodged the report. In the F.I.R. Major (Rtd.) Umar Hayat Khan expressly stated that nobody had any enmity with him or his brother Muhammad Nazeer the father of the child and that he (Maj. Rtd. Umer Hayat) was, therefore, not in a position to express his suspicion against any person.
5. During the course of investigation, it transpired that Subedar Muhammad Akram had a dispute with Muhammad Nazeer, the father of the deceased-child, over the boundary wall of the haveli and that on 18-2- 1983, marriage of Muhammad Bashir son of Mowara Khan and nephew of Muhammad Nazeer, was to take place. In that marriage Subedar Muhammad Akram was not being invited. His daughter Mst. Nasreen Akhtar appellant thus harboured grudge against the family of Muhammad Nazeer and she caused the death of the child by strangulation. It has also been alleged that Mst. Nasreen Akhtar appellant made extra-judicial confession before Rasaldar Amir Afsar (P.W. 9) and Subedar Maior Abdul Razzaq (P.W. 8). It has further been alleged that with the help of Army-trained dogs, exercise of dogs tracking was carried out by P.W. 3 Muhammad Arshad, Lance Dafedar, Dog Training centre, Rawalpindi, and the dogs went towards the house of the appellant and sat in the room situated on the left side of that house.
6. The autopsy on the dead body of the deceased-child was performed by P.W. 1, Dr. Ghayyur Alam, the then Medical Officer, Civil Hospital, Gujar Khan, on 18-12-1983 at 12-00 noon. He noticed that on the dead body, there was a soft brownish mark 5" x --" on the front of the neck, tampering on both sides, with swelling around it; it was situated centrally across the wind pipe. He also noticed a few contusions on the abdomen; thigh, back and chest, etc. Of the dead body. He opened that the death occurred due to asphyxia, as a result of strangulation, caused by injury No. 1, which was sufficient to cause death in the ordinary course of nature.
7. The plea of the appellant was that of total denial. She claimed that she had been falsely involved in this case, on account of enmity of the complainant party with her father. No evidence has, however, been led in defence.
8. As disclosed in the brief resume of the prosecution case, as detailed above, the case against the appellant has been based by the prosecution on merely circumstantial evidence, comprising of dogs' tracking and extra- judicial confession. There is no ocular evidence in this case at all. Reliance has also been placed on enmity.
9. Regarding enmity, it may be observed that almost every P.W. Who has been examined to depose about the motive, has stated that Subedar Muhammad Akram, the father of the appellant, had dispute with Muhammad Nazeer, the father of the deceased child, over the boundary wall. Muhammad Nazeer himself has also stated so. We have noticed that Muhammad Nazeer as also the other P.Ws. Have admitted that so-called dispute over the boundary wall took place twenty years back, but at that time, it was settled with the intervention of the elders and, thereafter, both the parties constructed their boundary walls, and afterwards Subedar Muhammad Akram, the father of the appellant, started residing in Rawlpindi permanently. It has also come on record that Muhammad Nazeer's father, appellant's father and appellant's father-in-law, Meer Zaman, are first cousins.
They are also closely related to Mowara Khan, whose son's marriage was to take place on 18-2-1983. In the F.I.R. Major (Rtd.) Umer Hayat Khan categorically stated that he and his brother Muhammad Nazeer had no enemy in the village and he was not in a position to express suspicion against any person.
10. The evidence of dogs' tracking is also least impressive. Muhammad Arshad, Lance Dafedar (P.W. 3) stated that he ordered his dogs: and thereafter, the dogs started smelling and followed the smell. The dogs entered the house and sat in the room situated on the left side of that house. Thereafter, the dogs went to bath room of that house. In cross- examination, Lance Dafedar Muhammad Arshad disclosed that he did not remember the name of the village where he had taken his dogs and that he also did not know the name of the owner of the house wherein the dogs went and sat. He admitted that he had not told the police the name of the owner of the house and the name of the village. He also admitted that none of the ladies was present in the house when the tracking was done with the help of dogs.
11. P.W. 8, Subedar Major Abdul Razzaq stated that he was related to the parties. On 23-2-1983, he was present in the house of Rasaldar Amir Afsar (P.W. 9) for the condolence, on the occasion of death of Rahat Nazeer. At about 10-00 p.m., Mst. Nasreen Akhtar appellant came to that room. She was in a distressed condition. She told Rasaldar Amir Afsar that she had committed the murder of the child with the help of Mst.
Ameer Jan and that she threw the dead body of the deceased with the help of Mst. Tazeem Akhtar. She requested them to help her for being pardoned. This witness admitted that he came to know about the death of Rahat Nazeer in Rawalpindi, although he had gone there for the programme of the marriage of son of Mowara Khan. He further stated that after Mst. Nasreen Akhtar went away, they went to sleep and they did not inform about the confession to anybody else. He could not deny that one Zamurrad was arrested by the police, in connection with this murder.
12. Rasaldar Amir Afsar (P.W. 9) disclosed that in the presence of Subedar Major Abdul Razzaq (P.W. 8), Mst.
Nasreen Akhtar appellant requested him for being forgiven and told that she had murdered the child. This witness told the appellant that she had committed a great sin and cruelty and so he could not help her. It is on record that Subedar Major Abdul Razzaq left for his village in the morning and after the disclosure by Mst.
Nasreen Akhtar, they had gone to sleep. He admitted that everybody came to know on 18-2-1983 that Rahat Nazeer has been murdered by the appellant and the acquitted co-accused and that. He had also come to know about the real culprits on 18-2-1983. He clarified that on 18-2-1983, at about tea time in the morning, they all came to know that the appellant and the acquitted co-accused had murdered Rahat Nazeer.
12-A. The manner in which the above two witnesses conducted themselves after the appellant allegedly confessed her guilt before them, is rather unusual. Both of them stated that they went to sleep after learning about the confession and that they did not inform anybody about this confession at that time or in the morning It has been testified that Abdul Razzaq left for his village in the morning. Subedar Major Abdul Razzaq stated that extra-judicial confession was made before them on 23-2-1983, but Rasaldar Amir Afsar has admitted that, everybody in the village knew by tea time on 18-2-1983 that the child had been done to death by the appellant and the acquitted co-accused. The depositions of these two P.Ws. About the alleged extra-judicial confession, do not inspire confidence. Otherwise too, extra-judicial confession has always been regarded as the weakest type of evidence, requiring strong independent corroboration. No corroboration, worth the name, is forthcoming in the present case. A phial is alleged to have been recovered from the house of Subedar Muhammad Akram, at the instance of the appellant, but that phial has no connection whatsoever with the crime and, therefore, this recovery is of no consequence.
PLD 1960 Lah. 24, it was ruled that as against judicial confessions, extra-judicial confessions call for a great caution and care in their acceptance. Where such confessions are oral, Court should not act on them unless they are proved by evidence of the most unimpeachable character.
13. After a careful appraisal of the prosecution evidence, we have come to a positive conclusion that the prosecution has hopelessly failed to bring home the guilt to the appellant beyond any reasonable doubt. We, therefore, allow her appeal, set aside her conviction and sentence and acquit her. She shall be released forthwith, if not required to be detained in any other case.
Death sentence of the appellant is accordingly not confirmed.