JUDGMENT SARDAR MUHAMMAD DOGAR, J.
This appeal is directed against the judgment dated 9.6.1996 of Additional Sessions Judge, Faisalabad whereby the learned Additional Sessions Judge had convicted the appellant under section 302(b) PPC (Qisas & Diyat) Ordinance, 1992 and under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was awarded sentences as follows:- Under section Death plus to pay a sum of 302(b)Ordinance, 1992 Rs. 30,000/- as compensation to PPC (Qisas & Diyat) the legal heirs of the deceased in Ordinance, 1992. default whereof to undergo S.I. for six months.
2. Occurrence in this case had taken place on 5.10.1995 in Killa No. 9 of Square No. 45 in the area of Chak No. 275/JB at a distance of five kilometers from Police Station, Thikrawala District Faisalabad.
F.I.R. Ex.PB/1 was registered at the Police Station by Sanaullah. MHC I P.W. 2) on 6.10.1995. At 8.10 a.m.
On receipt of complaint Ex.PB, recorded by Muhammad Siddique. S.I. (P.W. l2) on the same day at 8.30 a.m., at Adda Thikriwala, on the statement of Falak Sher (P.W. 9).
According to F.I.R. Mst. Irshad Bibi aged 9/10 years daughter of the complainant had gone to the field, on 5.10.1995 at Assarwela to cut grass. As she did not return for some time he (father) due to anxiety went out in search of her alongwith Noor Muhammad and Khan, P.Ws. Inspite of search, all around they could not trace her. On the following morning they again set out for search. Soon they found Irshad Bibi lying dead in maize field of Square No. 45. She was without Shalwar and her dopatta was around her neck. He stated that some unknown person after having committing Zina- bil- Jabr with his daughter had murdered her by strangulating her with dopatta.
3. Muhammad Siddique after despatch in statement Ex.PB to the police station for registration of case went to the place of occurrence. After preparing injuries statement Ex.PJ and inquest report Ex.PK, he sent the dead body for post-mortem. After inspection of spot he prepared site plan Ex.PR without scale and collected blood-stained earth there vide memo. Ex.PO. He recorded statements P.Ws, and took into possession last worn clothes of the deceased including qameez P-1, Shalwar. P- 2 and dopattha P-3, produced before him by Liaqat Ali constable.
Investigation thereafter was taken over by Muhammad Amin Bhatti, Inspector. On receipt of secret information on 6.10.1995, Muhammad Ameen Bhatti raided the house of Khalid alias Khala situated in Chak No.276/JB Dandaywal and arrested him. On the same day Khalid alias Khala after making disclosure got recovered his Shalwar P-5 and shirt P-6 from his factory, which the Inspector took into possession vide memo. Ex.PQ. The Inspector handed over custody of Khalid to Muhammad Nawaz, AS1, for getting his statement recorded under section 164 Cr.P.C.
4. Muhammad Nawaz, AS1 after taking the accused to District Courts submitted application before the Ilaqa Magistrate for recording his statement under section 164 Cr.P.C. The learned Magistrate after usual proceedings, recorded statement Ex.PM/1 of Khalid alias Khala and directed that he be sent to judicial lock-up. Muhammad Nawaz, AS1 before taking him to jail produced him before the doctor for medical examination viz-a-viz potency. After the medical examination he. Entrusted the accused to the jail authorities .
After completion of necessary investigation challan was submitted to Comt.
5. At the trial, prosecution produced: (a) medical evidence which included the post-mortem examination of the deceased and opinion of the doctor about the capability of the accused to commit sexual intercourse evidence of recovery of blood-stained earth from the place of occurrence and evidence of the recovery of Shalwar and qameez by the appellant, (c) evidence of judicial confession of the appellant alleged to have been made by him before Ch. Muhammad Ashraf, Magistrate 1st Class Faisalabad on 15-10.1995 and (dl positive report Ex.PH about the vaginal swabs being stained with semen from the office of the Chemical Examiner.
6. Dr. Muhammad Akhtar Parvez who had performed autopsy, on the dead body of the deceased appeared as P.W.
7. The doctor had found a ligature mark 27-1/2 cm x 6 cm around the neck, 2- 1/2 cm below chin, 3 cm below left ear and 3 cm below right ear. On dissection under line subcutaneous, tissues were found ecchymosed and mussels damaged. There was fracture of thyroid cartilage and hyoid bone. He had removed vaginal swabs and sent the same to the office of the Chemical Examiner for opinion. The last worn clothes of the deceased, were handed over by him, to the police constable. According to his opinion the deceased had been subjected, to zina and had been done to death thereafter by strangulation.
The same doctor had medically examined the appellant o:. 15.10.1995 at 4.05 p.m. And declared him fit for performing sexual intercourse.
7. Evidence of collection of blood-stained earth from the spot was deposed to by Khan Muhammad (P.W. 10) and Muhammad Siddique, SI (P.W. l2) while evidence of recovery of Shalwar and qameez at the instance of the appellant from his factory was deposed to by Khan Muhammad, P.W. 10, and Muhammad Ameen Bhatti, Inspector, P.W. 14.
8. Statement of Muhammad Ashraf Chaudhry, Magistrate 1st Class, P.W.
8. And Muhammad Nawaz, AS1, P.W. 3, were recorded to prove the judicial confession said to have been made by the appellant on 15.10.1995 before Mr. Muhammad Ashraf Chaudhry, MIC. Falak Sher complainant was examined as P.W. 9, his son Mumtaz aged 10 appeared as P.W. 11.
9. We have gone through the evidence with the assistance of the learned counsel for the appellant and considered the contentions raised by the learned counsel for the parties.
10. There is no ocular account in this case. The prosecution case rests on the circumstantial evidence enumerated above and the judicial confession.
The most important piece of evidence, is the judicial confession said to have been made by the appellant before the Magistrate on 15.10.1995.
11. According to evidence on record appellant was arrested by Muhammad Ameen Bhatti, Inspector, P.W. 14, on 15.10.1995, at 10.30 a.m. From his house in Chak No. 276/JB. He was taken to his factory' in the area of Chak No. 275/JB, from where, allegedly he got recovered Shalwar and qameez. He was then taken to Adda Thikiriwala and was handed over to Muhammad Nawaz, AS1 at about 1.30/1.45 p.m. For taking him to the Court for getting his statement recorded under section 164 Cr.P.C.
Muhammad Nawaz, AS1 took him to District court. He submitted application to Illaqa Magistrate (Mr. Muhammad Ashraf Chaudhry) for- recording his statement under section 164 Cr.P.C. The Magistrate after usual formalities recorded his statement Ex.PM/1 at 3.30 p.m. And handed him over to Muhammad Nawaz, AS1. The AS1 produced him before Dr. Muhammad Akhtar Parvez, who examined him for potency at 4.05 p.m. On the same day whereafter he was sent to judicial lock-up.
It is worth noticing that the factory of the accused from where he had allegedly got recovered Shalwar and qameez, was about, 4/5 k. Ms. Away, from the place where from he was arrested. He was taken to Adda Thikriwala which was at a distance of 4/5 k. Ms. From the factory'. District Courts are at a distance of about l2 miles from Thikriwala.
12. It is clear from the above-noted facts that the accused after arrest at 10.30 a.m., palpably extended cooperation to the police in so hasty manner, that, in five hours, after making disclosure during interrogation, led to the recovery of shit and Shalwar, showed his willingness to make a confessional statement before a Magistrate and after being taken to places, situated in different directions: made confessional statement before the Magistrate at Faisalabad. The speed and haste, with which, all that was gone there, in our view was not only improbable but doubtful also. The conduct of the appellant, to say the least, was, incompatible, with normal psychology of person charged with offence of capital punishment. A person charged of having committed rape-cw-murder would be more scared and so more cautious in conceding such things.
The appellant had not appeared before the police voluntarily. He was arrested by the Inspector after raid on his house. The Inspector had raided his house for arrest on secret information. That being so it can be safely assumed that the police was out to arrest him and was making efforts in that regard. The accused must also have known, that he is being chased. If in spite of that he did not appear before the police voluntarily and had fallen into the hands of the police due to raid.
How come that he would minutes, after his arrest would have started doing every thing voluntarily which was to incriminate him in the offence leading to trial and conviction on capital charge? In all fairness were find it quite difficult to. Accept the whole proceedings as true and voluntary. Coupled with all that, was also the non- fulfilment of certain formalities by the Magistrate who recorded confessional statement. In that he had neither removed hand cuffs of the appellant before recording statement nor had sent him directly to jail as required. Instead he had handed over the custody of the appellant to the same AS1 who had produced him for recording statement. The said AS1 although had been told to take him to the jail, had continued the investigation and taken him I appellant) to the doctor for medical examination.
For all the reasons noted above the evidence of judicial confession cannot form basis for conviction or maintenance of the same for being neither voluntary nor true.
13. In consequences of the above discussion and conclusion arrived at, the evidence of the recover}' of Shalwar and qameez at the instance of the appellant also becomes doubtful, the same, therefore, also cannot be taken Into consideration for maintaining the conviction of the appellant.
14. The statement made by Mumtaz P.W. 11 that he had seen the appellant, near about, the field, wherefrom the dead body of the deceased was recovered and that when he alongwith his brother had wanted to cut grass from there, the accused had angrily told them to go away, does not connect the appellant with the crime. Mere fact that, some body is found standing or passing from near the place where some offence had taken place, cannot he a sufficient reason, to hold that he had committed that offence? The testimony of Mumtaz even otherwise does not inspire confidence for the reason that he was real brother of the deceased and had not told this fact to his father till after the police had come to investigate after registration of the case. The dead body had been found before the registration of the case, the whole family including P.W. 11 had seen the dead body as all family members had gone there. His father had gone to Police Station for registration of case thereafter. If Mumtaz had seen what he stated, he would have told his father before he proceeded to Police Station. Obviously testimony of Mumtaz was an attempt made latter to create additional evidence.
15. The statement made by Falak Sher complainant does not incriminate the appellant in any manner. He did not state any thing directly against the accused. He had only expressed apprehensions.
16. The medical evidence and the report from the office of the Chemical Examiner about the swabs having been found stained with semen does not advance the case of the prosecution in any manner as this evidence can only corroborate the ocular account or the circumstantial evidence connecting accused with the crime. There being no evidence connecting the appellant in the crime. This evidence cannot form basis for maintaining the conviction.
17. As a result of the above enunciation of evidence and the discussion we are convinced that the prosecution has not been able to prove the case against the appellant beyond any reasonable shadows of doubt. The appeal is, therefore, allowed by way of grant of benefit of doubt. The appellant is acquitted. He shall be released forthwith if not wanted in any other case.