' MUFTAKHIRUDDIN, J.--- This appeal is filed by Imran Bashir Farooqi son of Bashir Ahmad Farooqi resident of House No, B/248 Lala Rukh Wah Cantt. District Rawalpindi (now confined in Central Jail Rawalpindi) and is directed against the judgment and order, dated 23-5-1989 passed by Mr. Farrukh Lateef, the learned Additional Sessions Judge, Rawalpindi whereby the appellant has been found guilty of an offence punishable under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentenced to suffer R.I. For ten years with whipping numbering ten stripes and a fine of Rs,5,000 (Rupees five thousand only). The appellant has also been held guilty under section 302, P.P.C. And sentenced to death and has been ordered to be hanged by his neck till he be dead. He has also been sentenced to pay a fine of Rs,5,000. A sum of Rs,20,000 (twenty thousand only) has been ordered to be paid as compensation under section 544-A, Cr.P.C. To the heirs of the deceased Mst. Zahida Bibi. The compensation is to be recoverable as an arrear of land revenue. The case is before us also for the confirmation of the death sentence under section 374, Cr.P.C. (Murder Reference 1/I of 1989 the State v. Imran Bashir Farooqi).
2. The facts leading to the prosecution of the appellant in the Court of the learned Additional Sessions Judge, Rawalpindi are that on 25-9-1988 an information was received at Police Station Wah Cantt. That one Mst. Zahida Bibi aged about 13 years, a maid-servant working with Fazal Khan at his house situated at Lala Rukh Wah Cantt. District Rawalpindi was hanging with a rope in the Veranda of the house and was dead. This information was conveyed to Ghulam Mustafa A.S.I. Of Police Station Wah Cantt. Who proceeded to the house bearing No, B/248 situated in Lala Rukh Wah Cantt. And reached at 2-45 p.m. Fazal Khan son of Sher Khan caste Ranjha made a statement before him. The same was recorded. Statement reads as follows:--{{URDU TEXT}} ' The statement was read over to Fazal Khan, a retired Suhedar of the Army and was duly signed by him in token of its correctness. The inquest report Exh.P.G. And injury statement was prepared and the dead body was dispatched to the Hospital for post-mortem examination. Dr. Shahzad Hussain (P.W.2) undertook the post-mortem examination and submitted his report Exh.P.G. The dead body was identified by Tariq Pervez Malik (P.W.12) who later handed it over to Muhammad Afsar (P.W.5) the grandfather of the deceased. P.W.4 Muhammad Khan who had escorted the dead body from the spot to the mortuary and delivered the same to the doctor brought with him sealed parcels and clothes shirt Exh.P.1, Shalwar Exh.P.2 and Kamees Exh.P.5 which were taken into possession vide recovery memo. Exh.P.D. Ghulam Mustafa (P.W.9) S.I. Recorded the statement of Sher Afzal, a son of the complainant. Fatal Khan (Exh.D.B.) The parcel was taken by Muhammad Riaz (P.W.10) to the Chemical Examiner. This parcel was obtained from the Moharrir S.I. Ghulam All (P.W.11) of the Police Station Wah Cantt. But was returned under some objection the same was, therefore, returned back to the Moharrir on 6-10-1988. Again on 7-10-1988 the said parcel was taken to the office of the Chemical Examiner and delivered on 8-10-1988. On 24-10-1988 on receipt of the report of the Chemical Examiner to the effect that poison was not detected in viscera but the vaginal swabs were stained with semen, a case was registered by Abdul Majeed Inspector Police Lines Rawalpindi (P.W.13) who reached the spot and the investigation started afresh and again recorded the statement of P.Ws. The accused was arrested and on 26-10-1988 a site plan Exh.P.C. Was got prepared from Draftsman Muhammad Ishaq (P.W.3) but before that on 25-10-1988 the S.H.O. Of the Police Station Wah Cantt. Made an application before the Resident Magistrate for obtaining the physical remand of the accused for five days as according to the Police Officer the accused was to he medically examined and the pointation of the place of occurrence was to be made. The Magistrate granted only One day and ordered that the accused be produced before him the next day i,e, on 26-10-1989. Since this application of remand has been referred to by the learned counsel appearing for the appellant during the course of argument and a contention has been raised that the accused was arrested on 24-10-1988 it is necessary to reproduce the said application (Exh.D.C.):--{{URDU TEXT}} ' On 26-10-1988 Muhammad Akram A.S.I. (not examined nor cited in the list of witnesses) produced the accused before the Resident Magistrate Malik Muhammad Iqbal and his confessional statement Exh.P.A. Was obtained. Abdul Majeed (P.W.13) in his statement has affirmed that the accused was examined by the doctor but his name does not find mention in the calender of witnesses submitted along with the challan produced by the police nor any M.L.R. In that behalf is on record. It is admitted that the investigation was transferred to Rana Muhammad Nawaz D.S.P.
On the application of the father of the accused. However, on the return of file the challan was presented in Court by Abdul Majeed (P.W.13) and the accused was charged with offences punishable under section 10(3) of the said Ordinance and also for the commission of murder under section 302, P.P.C.
3. The appellant pleaded not guilty and claimed trial. The prosecution in order to bring home the guilt to the accused produced as many as 13 witnesses. They are P.W.1 (Malik Muhammad Iqbal), the Magistrate who had recorded the confessional statement of the accused (Exh.PA.) P.W.2 (Dr. Shahzad Hussain) Medical Officer, Civil Hospital, Taxila who had conducted the post-mortem examination on the dead body of Mst. Zahida Bibi daughter of Muhammad Banaras resident of House No,B/249, Lala Rukh Wah Cantt. District Rawalpindi. P.W.3 (Muhammad Ishaq) the Draftsman who deposed about his visit to the spot and preparation of the site plan Exh.P.C. P.W.4 (Muhammad Khan) No,394 of Police Station Wah Cantt. Deposed that on 25-9-1988 he had escorted the dead body from the spot to the mortuary and delivered the same to the doctor. The doctor after the post-mortem examination gave him one sealed parcel, 7 sealed bottles, a shirt Exh.P.1, Shalwar Exh.P.2 and an envelope which he had produced before the Investigating Officer and the same was taken into possession vide recovery memo. Exh.P.D. On the same date rope Exh.P.3 and stick Exh.P.4 were taken from the spot vide recovery memo. Exh.P.E. Both the recovery memos. Were attested by the witness. P.W.5 (Muhammad Afsar) a grandfather of the deceased deposed that on receipt of information about the death of her granddaughter. He had reached Civil Hospital, Taxila. After the post-mortem the dead body was received by him. P.W.6 (Mst. Salma Nasreen) daughter of Fazal Khan, (the complainant) P.W.7 (Sher Afzal an unmarried son of Fazal Khan and brother of Mst.
Salma Nasreen) P.W.8 (Fazal Khan the complainant) the depositions of these three witnesses would be mentioned later in this judgment at the proper time at the time of the assessment of their evidence. P.W.9 (Ghulam Mustafa A.S.I.) who had reached the spot on the information of the occurrence. P.W.10 (Muhammad Riaz F.C.) who had taken the parcels to the (Chemical Examiner)
P.W.11 (Ghulam Ali A.S.I. Moharrir) who had kept the parcels in the Malkhana and had later handed over the same to Muhammad Riaz for onward transmission to the office of the Chemical Examiner.
P.W.12 (Tariq Pervez Malik) who had identified the dead body to be that of Mst. Zahida Bibi at the time of post-mortem examination and P.W.13 (Abdul Majeed Inspector) is the Investigating Officer in this case. The witnesses Mrs. Razia Younis, Surria Parveen and Ghulam Safdar were given up being unnecessary on 14-3-1989. The report of the Chemical Examiner Exh.P.H. Was tendered in evidence and the case of the prosecution was closed on the statement of Raja Inayatullah D.D.A.
The accused/appellant was examined under section 342, Cr.P.C. On 15-3-1989. The allegations were refuted by him and in answer to question No,6 'Why this case against you and why the P.Ws.
Deposed against you' the accused stated, which is reproduced hereunder:-- "The P.Ws. Are related inter se. They have deposed to suppress the misdeed of Sher Afzal P.W. It was known everywhere that the misdeed has been done by Sher Afzal P.W. On 25-9-1988 Sher Afzal, P.W.
Made a statement before the police and there was no complaint whatsoever against me. It was after full one month that the story of absence of deceased from the house and her remaining with me or any admission by me before the P.Ws. Was concocted for the first time. I was arrested by Abdul Majeed, Inspector, on 24-10-1988 at about noon time and taken to the police station. I was tortured and was not allowed even to sleep and was forced to make a confessional statement according to the wishes of Abdul Majeed, Inspector. I was continuously maltreated till 26-10-1988. I had not committed any offence, hence I never made any confession. On 26-10-1988, in the evening at about 6-00 p.m. I was taken to the house of Resident Magistrate where I cried at the pitch of my voice that I was in wrongful confinement for the last 2 days and have been tortured by the police.
Abdul Majeed, Inspector, made statement before the Resident Magistrate purporting to be on my behalf. I was made to sign the said statement under coercion. I was again handed over to the same Abdul Majeed, Inspector, who took me along and kept me confined in the police station."
' The trial Court found the accused guilty of both the charges, convicted him and sentenced as mentioned above.
4. The trial Court relied on the confession allegedly made by the accused/appellant before Malik Muhammad Iqbal (P.W.1) which was retracted and also on so-called extra-judicial confession made before Mst. Salma Nasreen (P.W.6) and Sher Afzal (P.W.7) and the statement of these P.Ws.
Containing an allegation that the deceased remained with the accused for two hours a day before the alleged occurrence and referred the evidence of Dr. Shahzad Hussain (P.W.2) and the report of the Chemical Examiner Exh.P.H. In the judgment.
5. Mr. M.B. Zaman and Sardar Muhammad Ishaq, Advocates appeared for the appellant and Mr. Muhammad Aslam Uns, Advocate represented the State.
6. The entire evidence has been read before us and the documents produced during the trial from both sides have been minutely scrutinized. It is an admitted feature of the case that by the time the police reached the scene of occurrence P.Ws. 6 and 7 (Mst. Salma Nasreen and Sher Azal, the daughter and son respectively of the maker of the F.I.R. (Fazal Khan) were there. The statement of complainant was recorded in their presence. Naturally before that these two witnesses had seen the dead body and were of the opinion that it was a case of suicide. A pertinent question that comes in the mind is to know the circumstances under which the suicide was committed. The deceased was a young girl and employed in the house as maid-servant. Had there been a meeting of the deceased with the accused as later alleged after one month, the same should have been disclosed to the police. The police officials who had seen the dead body were of the opinion that it was case of suicide. They should have made an effort to discover the cause. P.W. Salma Nasreen a daughter of the complainant has conceded that in her presence the police was told by Sher Afzal (P.W.7) about the incident that had occurred a day before i,e, the deceased had been with the accused from 7 to 9 p.m. On 24-9-1988. It is simply unbelievable that after having seen the incident the witnesses would not have told about the incident which had taken place in the previous night. There has never been any admission on the part of the accused that he had been with the deceased girl on the previous night. The girl according to Mst. Salma Nasreen, with reluctance had informed that she was with Imran (the accused) but the accused did not admit this fact. This being the situation it has been rightly contended by the learned counsel for the appellant that the way in which the incident has been reported does not appear to be a correct version of the incident and the story has been developed to suit the witnesses. The assertion of the accused appears to be plausible. The version made by Fazal Khan (P.W.8) is very simple. The events described by him could not take much time, rather a few minutes are expected to have been consumed, in placing the cup of tea by the deceased, interference by the infant with it and calling the deceased so that the child be taken care of so that the complainant could enjoy the cup of tea. The house must have been properly secured during the day time or if it was not so the other inmates of the house were there, they could have heard the opening of the door if anybody had come there. There is no evidence that anybody had seen the occurrence. Even the learned counsel for the State concedes that there is no ocular evidence of the murder.
7. The investigation made by the officers of the police is not an honest effort to discover the truth rather the facts have been deliberately twisted. P.W.13 (Abdul Majeed, Inspector) had the cheek to deny the fact that the accused was arrested on 24-10-1988 (this is contained in the challan itself), it is said in the challan:--{{URDU TEXT}} "In my opinion probable cause of death is asphyxia due to homicide partial hanging." {{URDU TEXT}} ' The application Exh.D.C. Signed by Investigating Officer on 25-10-1988 as mentioned in this judgment earlier contains the interpolations, the word " has been cut and the word " " has been written above it the figure 24 hours has been also interpolated and replaced by '25'. This is seen by a naked eye. The Investigating Officer did not apply his common sense that the later position of the writing belies the denial as is apparant from the words used therein{{URDU TEXT}} '. If the accused was arrested on 25-10-1988 the remand was not required on that very day as 24 hours had not expired. We are of the considered view that P.W.13 (Abdul Majeed) made a false statement which was false to his own knowledge as the challan was presented and submitted by no other person than he himself. Entire investigation made by him is nothing but a padding and the accused involved in order to save the real culprit if really the deceased girl was subjected to sexual intercourse. The site plan got prepared on 26-10-1988, not at the pointation of the police officials who had been on the spot on the day of occurrence, is nothing but an attempt to oblige those who wanted to implicate the accused. At any rate it does not advance the case of justice.
8. The trial Court did not consider the effect of the improvements, additions made by P.W.6 and P.W.7 at the trial on material points. The improvements and additions deserve to be ignored. Thus, there remains no incriminating circumstance to convict the accused with the commission of the offence of Zina or murder. We are of the view that the trial Court has misread the evidence. There is no assertion in the statements of the P.Ws. That the deceased girl had ever agreed that she be subjected to Zina. We have not been able to find any such admission in the so-called statement Exh.P.A. Made before the Magistrate either. Merely going with a person or being found with a person does not lead to the conclusion that Zina has been committed. The finding of the trial Court is thus fallacious. Mr. Muhammad Aslam Uns, Advocate the State counsel has frankly admitted that there is no evidence about sexual intercourse and the conviction under section 10 of the said Ordinance is not sustainable in law.
9. The learned counsel for the appellant has referred to the statement made by P.W.2 (Dr. Shahzad Hussain) during the cross-examination it is correct that if the ligature mark is on the upper part of the neck, it is indication of suicide but if it is on the lower part of the neck, it will be homicide. There was no mark of struggle on the person of the deceased nor there was any tear on her clothes and in the case in hand, the ligature mark was on the upper side of the neck. There are chances in this case that deceased might have committed suicide".
This is a case which is not witnessed by any person. The medical evidence thus refutes the confession and it can he said that the confession is not true. Besides, it appears to have been obtained by duress. The a appellant has alleged before the Magistrate that he was not allowed to sleet during his detention for two nights. He has further said It is not denied by the prosecution that the accused was handed over to the police after the recording of the confession. This certainly affects the voluntariness of the confession. The allegations made by the accused in his statement under section 342, Cr.P.C. And later in his written statement are thus established. A Division Bench judgment of this Court in Liaqat Bahadur v. The State PLD 1987 FSC 43 (the judgment was rendered by me) it has been observed:-- "In the matter of a confession the real difficulty arises in determining whether it is voluntary and true. All judicial confessions bear the stamp of the recording Magistrate's approval, who ordinarily fulfills the formalities before getting down to record the confession but compliance by the Magistrate with the routine formalities will not furnish a true and a conclusive index to the real working of the mind of an accused perion to show that the confession was his volatile act, pure and simple unaffected by any external circumstance and much less is it a proof of the fact that the confession is true. Therefore, when the mind of a Judge is engaged in assessing the value of a confession he has to go much deeper than the record of the confession. The entire set up of the prosecution case and the surrounding circumstances and the intrinsic value of the confession itself will have to be taken into account to find out if it is voluntary and true. Besides putting the set questions the Magistrate is required to make a real endeavour to find out the voluntary nature of the confession. It is his solemn duty, .As pointed out by a Division Bench of the Lahore High Court in Said Begum v. The State PLD 1958 Lah. 559 which should be performed with great care and caution and not mechanically."
It has been pointed out further that the judicial history presents abundant warning against the danger of placing too much reliance on uncorroborated and retracted confession and retracted confession is a source of anxiety to those who E have to see that justice is properly administered. In the instant case the confession has been retracted at the trial. It was also pointed out by me in Mst.
Zubaida's case reported in PLD 1986 FSC 268 (273-E) that 'the retracted confession in Islam has never been a basis of conviction against an accused person. The confession to be effective in respect of Ordinance VII of 1979 [Offence of Zina (Enforcement of Hudood) Ordinance 1979] must be recorded not by a Magistrate or a Court but by a Court of competent jurisdiction which is the Court competent to try the case (see Muhammad Naseer v. The State PLD 1988 FSC 58 a Full Bench case). Thus, the controversy has been settled once for all. The retracted confession and the so-called extra-judicial confession relied on by the prosecution is thus of no avail to the prosecution. The impugned judgment, therefore, is not sustainable and must be set aside. The appeal is accordingly accepted, the conviction and the sentences passed against the appellant are hereby set aside and he is acquitted of the charges. The reference is answered in the negative. By a short order the appellant has already been directed to be set at liberty if not required in any other case.
' These are the reasons for the short order recorded at the conclusion of the arguments.