AFRASIAB KHAN, J.--The appellants Mst. Shamim Akhtar, aged about 27 years, and Mukhtar Ahmad, aged about 25 years, were convicted under section 302/34 P.P.C. For the murder. Of Muhammad Yaqoob deceased and sentenced to death plus fine of Rs. 10,000 each and in default thereof to undergo three years' rigorous imprisonment each vide the judgment dated 29-4-1985 of the learned Additional Sessions Judge, Faisalabad. Both the appellants were also convicted under section 201/34 P.P.C. And sentenced to five years' rigorous imprisonment each plus fine of Rs. 5,000 and in default to suffer further rigorous imprisonment for two years each. It was directed by the learned trial Court that if the amount of fine was recovered, half of 'the same shall be paid to the heirs of the deceased. Both the appellants have challenged their conviction and sentence by filing two separate appeals (Cr.A.No.317 of 1985 and Cr.A.No.318 of 1985). The proceedings for the confirmation of the death sentence so awarded to the appellants are also before us. We propose to dispose of the two criminal appeals along with the Murder Reference together by our consolidated judgment.
2. Briefly stated, the facts of the case as narrated by the complainant Muhammad Hayat (P.W.7) in his statement Ex. P.B./1 are that he works as a labourer in the Vegetable Market. His brother Muhammad Yaqoob deceased was a vegetable vendor in Bhowana Bazar. The deceased was married six years ago with the appellant Mst. Shamim Akhtar. In the neighbourhood of his deceased brother, the appellant Mukhtar Ahmad lived and he developed illicit relations with Mst.
Shamim Akhtar appellant. This fact came to the knowledge of the complainant. The complainant tendered an advice to his deceased brother Muhammad Yaqoob that the appellant Mukhtar Ahmed should be forbidden to visit his house. However, the appellant Mst. Shamim Akhtar was adament and she used to call the appellant Mukhtar Ahmad in her house. Upon this, the complainant, as a protest, stopped his visits to the house of the deceased. About three months ago, the complainant came to know that his deceased brother Muhammad Yaqoob had not been coming to his house for the last 10/15 days and further that the appellant Mukhtar Ahmad had been living continuously in the house of the appellant Mst. Shamim Akhtar. On inquiry, the appellant Mst.
Shamim Akhtar disclosed that the deceased Muhammad Yaqoob had gone to Lahore in order to do some job. The complainant stated that on 23-8-1982, he in the company of Ilam Din (not produced) and Muhammad Boota (P.W.6) went to the house of the appellant Mst. Shamim Akhtar wherein the appellant Mukhtar Ahmad was also present. On query both the appellants disclosed that they had done to death Muhammad Yaqoob 3a months ago and further they had buried his dead body somewhere in the house. The reason given by the appellants was that the deceased was a hurdle in the continuance of their illicit relations. The complainant stated that his deceased brother had a ring on which the name of the deceased in Urdu was written. The complainant stated that both the appellants had murdered his brother and had buried him in his own house.
The complainant stated that both the appellants were apprehended by them and were accordingly produced' before the police.
3. Muhammad Masood D.S.P., F.I.A., was posted as S.H.O. Police station Factory Area, Faisalabad, during the days of the occurrence. He investigated the case. On 26-8-1982, the witness along with Syed Tassaddaq Husain Bokhari, Magistrate (P.W.8) and Dr. Muhammad Ajmal (P.W.5) visited the place of occurrence. The appellants took the witnesses with them and pointed out the place where the dead body of the deceased was buried. The place so pointed out was dug out and a skeleton from there was recovered from the depth of about four feet. Seven artificial teeth of the skeleton were taken into possession by the Magistrate vide memo.PE. The complainant Muhammad Hayat (P.W.7) identified the skeleton to be that of his deceased brother Muhammad Yaqoob on the basis of the aforesaid artificial teeth. On 27-8-1982, the appellant Mst. Shamim Akhtar led to the recovery of ring P.1 from within an attache-case lying in the same room and accordingly the said ring was taken into possession vide memo. Exh. P.F. On the same day, the appellant Mukhtar Ahmad led to the recovery of Chhuri P.2 from under a big box which was taken into possession vide Memo Exh.
P.G. The witness stated that during the proceedings of exhumation of the dead body Muhammad Botta P.W.6 and Ilam Din (not produced) were also present. Site plans Ex. P.A. And Ex.P.A/1 were got prepared. By the draftsman. Muhammad Nawaz P.W.11 was posted as Incharge of Police Post Factory Area and or. 23-8-1982, he recorded the complaint Ex.P.B/1 on the statement of Muhammad Hayat complainant. The witness arrested both the accused. On 26-8-1982, he was also present during the exhumation proceedings and he wrote all the proceedings on the dictation of Syed Tassaddaq Husain Bokhari Magistrate (P.W.8). The witness has conceded that he was facing the 'trial in a corruption case. According to the report of the Chemical Examiner (Ex. P. L.) containing the articles at serial Nos.1 to 6, no poison was detected on all the articles.
4. Muhammad Boota (P. W.6) is a witness of extra-judicial confession having been made by both the appellants before him. He stated that on one day, at about Asar prayers time, he was sitting along with Ilam Din (not produced) in his house where the complainant Muhammad Hayat came and told them that he was searching his brother Muhammad Yaqoob as he was not traceable. The complainant told them that the appellant Mst. Shamim Akhtar was not telling anything about the whereabouts of the deceased. Thereupon, the witness along with the complainant and Ham Din (not produced) went to the house of Mst. Shamim Akhtar appellant. The other appellant Mukhtar Ahmad was also present there. All the three witnesses asked from Mst. Shamim Akhtar appellant about the whereabouts of the deceased Muhammad Yaqoob, but both the appellants first hesitated to tell anything, but confessed that they had murdered Muhammad Yaqoob and buried him under the cot. Both the appellants said they were in love with each other and that the deceased was a hurdle in their way and with this motive in view, they killed the deceased. Both the appellants were apprehended and were handed over to the police at Police Post Factory Area.
Three days after lodging the F.I.R., the dead body of deceased Muhammad Yaqoob was dug out from within the room of the house of Mst. Shamim Akhtar appellant. The witness stated that at the time of the exhumation of the dead body of the deceased, the Magistrate and the police were also present. The witness conceded that Muhammad Yaqoob deceased was the son of the sister of his father-in-law. The witness further stated that he made a statement Ex.D.B. Before the police wherein he disclosed that joint confession of murder was made by both the appellants.
Muhammad Hayat P.W. 7 is the complainant in the case and he made a similar statement as he made before the police on the basis of which F.I.R. Against the accused persons was registered.
However, the witness stated that the appellant Mst. Shamim Akhtar confessed before the witnesses for having committed the murder of Muhammad Yaqoob and further that his dead body was buried in the room underneath the cot. The witness stated that the appellant Mst. Shamim Akhtar told them that she and the appellant Mukhtar Ahmad were in love with each other. Similarly, the witness stated that the appellant Mukhtar Ahmad also made a confessional statement before them repeating the same story which was narrated by the appellant Mst. Shamim Akhtar. In cross- examination, the witness stated that on coming to know that his deceased brother was not traceable, he visited the house of Mst. Shamim Akhtar appellant three or four times in order to enquire about his brother from her. However, according to the statement Ex.P.B./1 made by the witness before the police, he went to the house of the appellant Mst. Shamim Akhtar only once before the went to the place along with other P.Ws. In the same statement made by the witness before the police, only on one query, the appellants had confessed their ~ guilt. It was further mentioned in the aforesaid statement by the witness that both the appellants made a joint confessional statement. The witness did not make any statement before the police vide Ex.P.B./1 that his deceased brother had artificial teeth. Qaim Din (P.W.9) deposed in his statement that a skeleton was dug out from a grave within the house of deceased Muhammad Yaqoob and the appellant Mst Shamim Akhtar. The skeleton was recovered at the pointing out of both the appellants. The witness stated that Dr. Muhammad Ajmal (P.W.5) produced seven artificial teeth, two from the upper jaw and five from the lower jaw before the Magistrate who took the same into possession vide memo. Ex.P.E. On the next day, appellant Mst. Shamim Akhtar led to the recovery of ring P.1 from an attache-case and the same was taken into possession vide Memo. Ex.P.F.
5. Both the appellants while making statements under section 342, Cr. P. C . Denied the commission of the offence. Both the appellants denied the recovery of ring P.1 and Chhuri P.2 at their pointing out. The appellant Mst. Shamim Akhtar has denied the recovery of ring P.1 and she further stated that the same ring did not belong to her or to her deceased husband. She further stated in her statement that Qaim Din (P.W. 9) was inimical towards her because she supported Mst. Siddiqan his rival candidate in the Local Bodies Election in 1979. She further deposed that the complainant Muhammad Hayat wanted to establish illicit relations with her about which she made a complaint to her husband, the deceased. Complainant Muhammad Hayat, Qaim Din P.Ws. And Ram Din (not produced) hurled threats upon her as well as on her deceased husband with dire consequences.
She stated that she is the company of her deceased husband, visited Kotwali police station a number of times for the registration of a case but nothing was done in that behalf. However, later on a written complaint was submitted before the Superintendent of Police who ordered for the registration of a case.
6. Learned counsel for the appellants submitted that there was no direct evidence produced by the prosecution so as to attract the provisions of section 302, P.P.C. The learned counsel submitted that this was a case of no evidence at all. He maintained that the evidence of Muhammad Boota (P.W.6), Muhammad Hayat complainant (P.W.7) and Qaim Din (P.W.9) is full of contradictions inasmuch as no conviction on their evidence could be based in law. He stated that the evidence pertaining to the confession having been made by the appellants before the Magistrate, has rightly been discarded. By the learned trial Court. He stated that the evidence of extra-judicial confession is again not worthy of any consideration. At any rate, the learned counsel stated that this was a case of joint confession having been made by both the appellants which joint confession has no legal value at all. Regarding the recovery of weapon of offence, the learned counsel stressed that Chhuri P.2 is admittedly not blood--stained. Additionally, the recovery of ring P.1 at the pointing out of the appellant Mst. Shamim Akhtar, was highly doubtful because it has not been disclosed in the evidence that there was some special identification of the ring P.1 which showed that the same belonged to. The deceased Muhammad Yeqoob. The learned State counsel has half heartedly supported the conviction and sentence awarded to the appellants by the trial Court.
7. We have heard learned counsel for the parties and have perused the record very minutely. We are of the view that the prosecution has miserably failed to prove a case of murder against the two appellants. To begin with, there is no direct evidence connecting the two appellants with the commission of crime. The case of the prosecution is that the appellants made a confessional statement before the Magistrate saying that they had committed the murder of deceased Muhammad Yaqoob because both the appellants were in love with each other and that the deceased Muhammad Yaqoob was a hurdle in their love affairs. Thus, by murdering the deceased Muhammad Yaqoob they had removed that hurdle. Syed Tassaddaq Husain Bokhari Magistrate (P.W.8) is a witness who recorded the confessional statements having been made by the two appellants. However, it is apparent from the evidence that the Magistrate did not at all follow the mandatory provisions of law contained in sections 164 and 364, Cr.P.C. This is candidly clear from the statement of the Magistrate that the confessional statement was recorded by the police officer on his dictation. The Magistrate did not warn the appellants that in case they made confession the same confession shall be used against them in evidence. The witness also did not inform the appellants that in case they made confessional statements, they will be sent to jail and will not be handed over to the investigating police. In the end of the statement no certificate by the Magistrate was given showing that in his opinion, the confessional statements were voluntary in nature. It was further clear from the statement that confessions were recorded at the spot and the appellants were not produced in the Court. Thus, there is absolutely no legal value of the confessions having been recorded by the Magistrate in law. These confessions were rightly discarded 'by the learned trial Court. Similarly, the extra-judicial confession made by the two appellants saying that they had done the deceased Muhammad Yaqoob to death, on the face of it is a case of joint confession. A joint confession made by the accused is of no legal value at all. We, therefore, reject this extra- judicial confession as well. From the evidence of the witnesses, it is clear that they visited the house of the appellant Mst. Shamim Akhtar, whereas the other appellant Mukhtar Ahmad was present and on one query, both the appellants declared that they had murdered the deceased. This story is not believeable.
8. The medical evidence as deposed by Dr. Muhammad Ajmal (P.W.5) showed that the dead body was in such a state where the same could not be identified as that of the deceased Muhammad Yaqoob. The Medical Officer opined that the cause of death could not be ascertained at the time of post-mortem examination. Thus, from the medical evidence, cause of death has not been established in the case. Therefore, the recovery of Chhuri P.2 evaporates into an insignificance.
Additionally, the said Chhuri was not, admittedly, stained with blood. The entire evidence produced by the prosecution regarding the extra-judicial confession is interested and cannot be relied upon for recording conviction of 'the appellants on a capital' charge. Muhammad Boota (P.W.6) has admitted that the deceased Muhammad Yaqoob was the son of the sister of his father-in-law.
Thus, he is an interested witness. Similarly, Muhammad Hayat (P.W.7) being the real brother of the deceased is also an interested witness in the case. The prosecution has miserably failed to bring forth reliable and independent evidence to prove -the fact of extra-judicial confession.
9. The murder of Muhammad Yaqoob is obviously shrouded in mystery. The prosecution has not been able to bring any reliable and independent evidence to connect the two appellants with the commission of the murder of the deceased. Thus, we are persuaded under the facts and circumstances of the case to give benefit of doubt to the two appellants regarding murder charge.
The upshot of the above discussion is that the conviction and sentence of the appellants under section 302/34, P.P.C. Is set aside and they are acquitted of this charge. Accordingly, the sentence of death is not confirmed.
10. However, we are satisfied that there is ample evidence produced by the prosecution to show that they were the appellants who buried the dead body of the deceased in the house of Mst.
Shamim Akhtar appellant and on their pointing out, the dead body was recovered from the house of the appellant Mst. Shamim Akhtar. This fact of recovery of the dead body of the deceased at the pointing out of the appellant is clearly proved from the statements of Syed Tassaddaq Husain Bokhari, Magistrate (P.W.8), Dr. Muhammad Ajmal (P.W.5) and Muhammad Hayat complainant (P.W.7) besides the Investigating Officer. The witnesses were subjected to lengthy cross- examination but they remained consistent about the recovery of the dead body of the deceased Muhammad Yaqoob from the house of the appellant Mst. Shamim Akhtar. Thus, it is proved that both the appellants are guilty of causing disappearance of the evidence of offence of murder. They were rightly convicted and sentenced under section 201/34, P.P.C. Their conviction and sentence under the said sections are upheld.
11. Both the appeals are dismissed subject to the above modification. In the circumstances mentioned above, the appellants will not be allowed benefit of section 382-B, Cr.P.C.