KHIZAR HAYAT, J: -- Abdul Razzaq alias Kala son of Muhammad Sharif, aged 21/22 years, caste Arain, electrician by profession, resident of Chak No.358/WB, Tehsil Lodhran, District Multan, has been convicted under section 302, P.P.C. For the murder of Mst. Musarrat Afzal, his co-villager, and sentenced to death and a fine of Rs.10,000 or in default thereof to undergo 2 years' R.I., by Judge, Special Court for Speedy Trials, Multan, vide his judgment, dated 6-2-1988. It was further directed that he shall pay Rs.25,000 as compensation to the heirs of the deceased or in default to undergo 6 months' R.I. The convict has filed the instant appeal against his conviction and sentence.
2. The prosecution story is as follows:-- Muhammad Azmat complainant went to the fields in the morning of 3-10-1986 asking his mother to send his meals there. He did not get the meals till 10 a.m. Therefore, he went home to enquire about it. He was informed by his mother that Mst. Musarrat Afzal (deceased) had gone to the fields at 7-15 a.m. (morning) for delivering his meals. Muhammad Azmat got worried over this and started searching for her with his. Father. At about 5 p.m. They spotted her dead body lying in Killa No.2 of Square No.25 of their Chak No.358/E.B. They noticed some marks of violence on her neck. They also found her Shalwar, Dopatta, pair of slippers, two polythene bags containing bread and `Shakker' and a tin containing Lassi lying beside her dead body. Footprints of two persons were also visible on the spot. A gold ring and a wrist watch worn by the deceased were missing. Muhammad Azmat P.W. Then leaving the dead body in the care of his father, went to Police Station Dunyapur, and lodged F.I.R. (Exh.PA.) with S.I. Khadim Hussain (P.W.4) at about 6 p.m.
3. S.I. Khadim Hussain (P.W.4) reached the spot and started investigation. A little later Inspector Aziz-ur-Rehman's (P.W.19) arrived there and took the investigation in his hands. He sent deceased's dead body on 4-10-1986 for post---mortem examination to Lodhran mortuary. During spot inspection he picked up a broken piece of button (P.8) and a cotton stick (P.9) having some hair attached to it and took them into possession under memos. Exhs.P.N. And P.O. Respectively. He prepared a mould (P.1) of the footprint inscribed on the spot and secured it under memo. Exh.P.D.
The tin containing Lassi (P.10) was seized under memo. Exh.P.Q. And Shalwar (P.11) and Dopatta (P.12) of the deceased were seized under memo. Exh.P.R. While her slippers (P.13/1-2) and two polythene bags containing bread and `Shakker' were seized under memo. Exh.P.S.
4. Dr. Muhammad Aslam Arshad S.M.O., T.H.Q. Hospital, Lodhran (P.W.9) conducted post-mortem examination on the dead body of the deceased and found following injuries on it:--
(1) A contusion mark on right side of face starting from lower eyelid upto the mandible angle alongwith abrasions at its lower end.
(2) A contusion mark with abrasions 5 c.m. x 2-1/2 c.m. Along the right side of chin and lower jaw.
(3) A contusin with abrasion 7 c.m. x 3 c.m. On the left side of lower jaw.
(4) Multiple contusion with abrasions on front of neck and on left side of neck which did not resemble ligature mark.
(5) Multiple contusions with abrasions on front and upper part of the chest.
(6) A contusion mark on the left and front part of chest on left side upto the top of left shoulders.
(7) A contusion mark 11 c.m. x 1 c.m. On the upper part of right upper arm.
(8) Big contusion mark on the right side of abdomen.
(9) Big contusion mark starting from right illiac region upto the middle of thigh.
(10) Big contusion mark starting from the middle of thigh upto the left knee.
(11) Contusion marks on both the knees and legs.
On dissection, both lungs, pericardium and heart were found congested. The stomach, bladder, large and small intestines were empty. All other organs of the body were healthy. Organs of generation were also healthy except that the left side of vulva was swollen and discharge was present there. In order to ascertain the cause of death, the doctor sent, to the Chemical Examiner, portions of her stomach, kidneys, spleen, heart, large and small intestines, besides two vaginal swa bs for chemical analysis. According to the report Exh.P.H. Of the Chemical Examiner, poison was not detected in the viscera and the vaginal swabs were found not stained with semen. The doctor then opined that the deceased had died of asphyxia caused by pressing of the neck and pressure on the chest, described as injuries Nos.4, 5 and 6 which were sufficient in the ordinary course of nature to cause the death. Probable time between injuries and death was immediate and between death and post-mortem examination within 24 hours.
5. On 12-10-1986 the appellant approached Muhammad Siddiq son of Nasar Din (P.W.15) and Muhammad Siddiq son of Mahtab Din (P.W.18) at the Dera of Ch. Bagh Ali in Chak No.356/WB and confessed to have killed the deceased saying that on the day of occurrence at about 7 a.m. When he was watering his fields, Mst. Musarrat Afzal (deceased) happened to pass near him carrying a container of Lassi and two plastic envelopes. He cut a joke with her. She resented it and threatened to complain against him to her parents. He got frightened. He then went after her and at some distance stopped her and asked her to desist from making a complaint against him, whereupon the deceased slapped him and reiterated that she would tell her family about it. At this he (the appellant) assaulted her. He threw her on the ground and in the process, string of her Shalwar was broken. He then gave her fist blows on her chest and face as a result of which she died. He further stated that he had divulged this secret to them as his conscience pricked him. These P.Ws.
Produced him before Inspector Azizur Rehman's (P.W.19) in the school building of Chak No.358/WN where he was busy investigating the case. The Investigating Officer arrested him and interrogated him. On the same day (12-10-1984) the appellant at his pointation first, got recovered his shirt (P.14) and Chadder (P.15) from his Baithak, and then he pointed out a place near the school building of the Chak and got recovered gold ring (P.5) and wrist watch (P.6) of the deceased buried there.
Shirt and Chadder were seized under memo. Exh.P.G. And the wrist watch and the gold ring were secured under memo. Exh.P.T. On 26-4-1987, a track identification parade was held in the jail premises under the supervision of Malik Safdar Ali, M.I.C. (P.W.10). The appellant was made to walk with 7 other under-trials and Rana Muhammad Aslam (P.W.7) correctly identified appellant's tracks as being similar to the one he had seen on the spot.
7. Button (P.8) and cotton stick (P.9) seized from the spot and the shirt (P.14) recovered from the appellant were sent to the Chemical Examiner for analysis on 30-11-1986. According to Chemical Examiner's report Exh.P.CC. The hair found attached to the cotton stick (P.9) resembled with the hair found on appellant's shirt (P.14). No opinion about button (P.8) was given. Then the button and the shirt were sent to the Director Forensic Science Laboratory Punjab, Lahore, who vide report Exh.P.BB.
Opined that piece of button (P.8) matched with the portion of the broken button attached with shirt (P.14) of the appellant. He further reported vide his report Exh.P.DD. That the mould Mark `A' lifted from the scene of crime did not match with the mould mark `B' which was prepared of the footprint of Abdul Razzaq, appellant, during investigation as they were of different measurement.
8. At the trial the prosecution examined all-told 21 witnesses and the appellant denied the allegations but produced no defence. Following circumstantial evidence is relied upon by the prosecution:--
(a) Statement of Dr. Muhammad Salim Akhtar (P.W.9) who opined that the deceased met unnatural death due to asphyxia;
(b) Evidence of `track identification' furnished by Rana Muhammad Aslam (P.W.7), tracker, who identified footprints of the appellant in a track identification parade held under supervision of M.I.C.
(P.W.10) on 26-4-1987;
(c) Evidence of extra-judicial confession deposed to by Muhammad Siddiq son of Nasar Din and Muhammad Siddiq son of Mahtab Din (P.W.15/P.W.18);
(d) Recovery of cotton stick (P.9) having some hair on it and a broken piece of button (P.8) from the spot on 4-10-1986 and shirt (P.14) of the appellant recovered at his pointation on 12-10-1986 having some hair on it and a piece of button attached to it;
(e) Reports of experts i.e. Chemical Examiner's report Exh.P.CC. Which says that hair on stick (P.9) resembled with hair found on appellant's shirt (P.14), while report Exh.P.BB. Of Forensic Science Laboratory shows that broken piece of button (P.8) matched with portion of button found attached with shirt (P.14).
On the basis of the above evidence, learned trial Court held the appellant guilty and convicted and sentenced him as indicated above, hence this appeal.
9. We have heard arguments of the learned counsel for the parties and also perused the record carefully with their assistance.
10. Death of Mst. Musarrat Afzal (deceased) occurred due to asphyxia is not denied. There is no eye-witness of the occurrence. The case, therefore, hinges on the circumstantial evidence mentioned above. The question is whether the circumstantial evidence on record has proved beyond reasonable doubt that none else but the appellant had strangulated the deceased to death? Needless to say that circumstantial evidence can form basis of conviction only if such evidence is incapable of explanation upon any other reasonable hypothesis of innocence of the accused than his guilt. The prosecution evidence would, therefore, be tested on this touchstone.
11. We take up evidence of extra-judicial confession first, which is sought to be proved through Siddiq son of Nasar Din (P.W.15) and Siddiq son of Mahtab Din (P.W.18). On their own showing the said P.Ws. Are neither Lambardars nor B.D. Members and wielded no influence in the Illaqa, therefore, it is hard to believe that the appellant would have approached them and made clean breast before them. If the appellant was impelled by his conscience to do so then ordinarily he would have approached the father, mother or brother of the deceased instead of contacting these witnesses. The confessional statement as narrated by the witnesses is in conflict with medical evidence inasmuch as the appellant told them that he dragged and concealed the dead body in a cotton field but there are no marks of dragging whatsoever on the person of the deceased. The P.Ws. Stated that the appellant had told them also that the deceased `remained convulsing for about half an hour and then expired but contrarily the medical witness (P.W.9) opined that the deceased had died immediately on receipt of injuries. Muhammad Siddiq son of Mahtab Din (P.W.18) stated that the appellant had told them that during the assault he had pressed neck of the deceased but Muhammad Siddiq son of Nasar Din (P.W.15) has not stated so. Apart from this, the Investigating Officer (P.W.19) in his cross-examination admitted that police statement (Exh.D.F. Of P.W.18) was fabricated by him. The relevant portion of his statement reads as under:-- "Exh.D.F. Is the copy of the statement of Muhammad Siddiq son of Mahtab (volunteered, I had written this statement myself and Muhammad Siddiq son of Mahtab did not make this statement).
I fabricated the statement of Muhammad Siddiq son of Mahtab Din."
12. Next comes evidence of `track identification'. Rana Muhammad Aslam (P.W.7), the tracker, stated that he had experience of about 25 years in identifying; the human footprints. According to him, he saw footprints on the place old occurrence on 4-10-1986 and then on 26-4-1987 he correctly picked out the footprints of the appellant in the identification parade held in jail premises under supervision of Safdar Ali, M.I.C. (P.W.10). The prosecution wants that evidence of Muhammad Aslam (P.W.7), tracker, be treated as expert's evidence in the meaning of Article 59 of Qanun-e- Shahadat which deals with the `opinion of experts' on the point of foreign law, science or art or identity of handwriting or finger impressions. It is true that in rural areas some villagers by constant practice develop a knack to identify the human footprints and the Courts of this country also (with lot of reservations) consider it as a piece of evidence. Identification of `human footprints' has not developed as a definite `science' so far, as we have sciences of identification of handwriting and finger prints, therefore, evidence of track identification is always treated to be weak type of evidence. Number of instructions for procuring evidence of footprints found on the scene of occurrence are laid down in Chapter XXV of Punjab Police Rules, 1939. Its Rule 26 says that if a tracker identifies the footprints (of the accused) correctly then he must state before the Magistrate supervising the parade his reason on which he based his opinion. It further says that mould of the footprints found on the scene of the crime and the mould of the footprints identified in the identification parade should be preserved and then produced at the trial for comparison by the Court. Both these requirements, in this case, have not been fulfilled. Report Exh.P.K. Of identification parade drawn by Safdar Ali M.I.C. (P.W.10) is silent on these points. Again, Azizur Rahman, Investigating Officer (P.W.19) has admitted that the tracker was shown the footprints of the appellant on 12-10-1986 in the village school prior to the holding of test identification parade. This is admitted by Muhammad Aslam tracker also. This is violative of the following observation made in Maqbool Ahmad's case PLD 1982 Lah. 593 by a Division Bench of this Court of which one of us (Khizar Hayat, J.) was a member:-- "It must be ensured that the tracker did not have an occasion either to see the suspect walk or his footprints in between the day of his arrest till the day the test was held:"
Above all, according to Forensic Science Laboratory's report Exh.P.DD., mould Mark `A' (of footprint found on scene of offence) and mould Mark `B' (of the footprint of the appellant prepared during investigation) were not identical as they had different measurements. This fact demolishes this evidence completely. The track evidence produced by the prosecution is also, therefore, found as worthless.
13. There now remains the Expert's Reports, namely, Chemical Examiner's report Exh.P.CC. Which says that the hair attached to the cotton stick (P.9) resembled with hair found .On the appellant's shirt (P.14) and the other report Exh.P.BB. Of Forensic Science Laboratory which says that broken button (P.8) matched with portion of the button fund attached with appellant's shirt (P.14).
Prosecution's stand is that during appellant's scuffle with the deceased the latter's hair were stuck to the shirt of the culprit (appellant) and some with cotton stick (P.9) and that a portion of button of his shirt (P.14) was broken and dropped on the spot, which were later recovered from the spot and that they matched with hair and broken button found on the appellant's shirt. Learned trial Court missed to note that Articles P.8 and P.9 were recovered on 4-10-1986 while shirt P.14 was recovered on 12-10-1986 but they all were sent to Chemical Examiner on 31-11-1986, about 1-1/2 months after the recovery without any reasonable explanation. The possibility of fabricating this evidence by the police cannot, therefore, be ruled out. Furthermore, it is significant to note that it is not proved that hair found on the cotton stick (P.9) and those on the shirt of the appellant were human hair. Again, no attempt was made to prove that these hair were identical with the hair of the deceased. In reply to a pertinent question put to the Investigating Officer, Aziz-ur-Rehman's (P.W.19) admitted that he `did not cut the hair from the dead body in order to send the same to the Chemical Examiner, Lahore, for comparison with those found on the cotton stick'. He further candidly admitted `that he had not mentioned in the recovery memo. Exh.P.U. That the button of the shirt, got recovered by the accused was half broken'. These circumstances also do not connect the appellant with the crime.
14. In view of the above, we are constrained to hold that it is a case of no evidence, therefore, the conviction of the appellant recorded by the learned trial Court cannot be sustained. Consequently, we allow this appeal, set aside the conviction and sentence of the appellant and acquit him. The appellant was ordered to be released forthwith if not required to be detained in any other case, by our short order, dated 18-4-1989, and these are our reasons for the same.
N.H.Q./A-1106/L