' MISS TALLAT YAQUB, J.--- The appellants Nasim Akhtar (35 years) and Muhammad Anwar (25 years) were tried, alongwith Muhammad Ashraf acquitted co-accused, by the learned Additional Sessions Judge, Lahore under section 302/34, P.P.C. For the murder of Najam-ul-Hassan who vide his judgment, dated 29th of April, 1991 convicted them thereunder and sentenced them to death.
They were also awarded a fine of Rs,20,000 each. In default of the payment of fine they were to suffer 2 years' R.I. The fine if realised half of it was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2.. Both the convicts have filed the separate appeals while the learned Additional Sessions Judge, Lahore has also sent a reference to this Court under section 374, Cr.P.C. For confirmation on their death sentence. This judgment shall dispose of the appeals as well as the murder reference.
2. The prosecution case as narrated by Gul Roze watchman complainant is that on 4-11-1987 at about 3-30 a.m. He was roaming in new Chaudhery Park and when he reached near the house of Muhammad Sharif, he saw a dead body of unknown person lying near the house of Muhammad Sharif. He informed Syed Ahmad Sher Shah, President, Muslim League of the Mohallah who directed him to report the matter at the police station. Then he went to the Police Station Ravi Road, Lahore leaving the dead body under the guard of residents of Mohallah. A.S.I. Muhammad Aslam P.W.11 recorded his statement vide Rapat No,38 and after the receipt of chemical examination report formal F.I.R. Exh.P.F. Was recorded.
3. After recording the Rapat, Mumtaz Ali S.I. Went to the spot and took into possession the dead body of the deceased and prepared inquest report Exh.P.G. He also took into possession purse Exh.P.1 and two bills of Sui Gas and water Exhs.P.2. And P.3 vide memo. Exh.P.H. Recovered from the pocket of the deceased in the presence of Bashir Ahmad P.W.1 and Abdul Ghafoor P.W.2.
4. He sent the dead body to the mortuary for post-mortem examination. On 7-11-1987 after receipt of the post-mortem report Muhammad Aslam A.S.I. Recorded F.I.R. Exh.P.F. And the investigation was entrusted to Mumtaz Ali, S.I. (P.W.14).
5. The motive for the occurrence as disclosed by Mst. Nasim Akhtar, appellant, wife of the deceased in her extra-judicial confession made before Ghulam Hussain, P.W.12, Salamat Ali P.W.13 and Azhar Hassan P.W.14 is that she had developed illicit liaison with Muhammad Ashraf, co-accused which came to the notice of her husband, the deceased and she was given beating by her husband. In order to wreak vengeance, she procured Valium-2 tablets through her co-accused Muhammad Ashraf and. Muhammad Anwar and on 3-11-1987, she mixed the tablets in the food of the deceased, her husband and administered the same to him. Thereafter, Muhammad Anwar co-accused took her husband in a rickshaw to Ravi Road on the pretext that he had to receive Rs,1,200 from some body and throttled the deceased from the rickshaw. The police also collected last seen evidence of Muhammad Naeem P.W.4 and Mst. Roshni P.W.8, who are respectively son and daughter of the deceased and Mst. Nasim Akhtar, appellant. P.W.4 and P.W.8 have stated that their mother mixed valium tablets in the food of their father and served the same to him in the presence of Muhammad Anwar, co-accused. P.W.3 Saif Ullah also deposed that he saw on the night of 3-11- 1987 at about 9-00 p.m. The deceased, his wife and co-accused Muhammad Anwar.
6. P.W.10 Dr. Ahmad Saeed performed post-mortem examination on the dead body of the deceased on 4-11-1987 at 3-00 p.m. And found the following injuries on his person:--
(1) Abrasion measuring 1 c.m. x 0.8 c.m. On left side of neck. 6 c.m. Below left ear and 10 c.m. From midline.
(2) Abrasion measuring 0.5 c.m. x 0.5 c.m. On the left side of the neck, 5 c.m. Below left ear and 9 c.m. From midline. 1 c.m. From injury No,1.
' In the opinion of the doctor, all the injuries were ante-mortem caused by blunt weapon. Cause of death is ante-mortem throttling. The time between injuries and death was 2 to 5 minutes and between death and post-mortem examination was 12 to 18 hours.
7. After the usual investigation, the police sent up the accused for trial.
8. The prosecution in support of their case produced as many as 15 witnesses including the witnesses of recovery. All the witnesses have supported the prosecution case. Asghar Abbas, A.S.I.
Police Station Ravi Road, Lahore also appeared as C.W.1. He deposed about the non-bailable warrants of arrest of P.Ws. Gul Rose, Muhammad Javaid and Azhar-ul-Hassan.
9. Mst. Nasim Akhtar, appellant when examined under section 342, Cr.P.C. Did not plead guilty to the charge. When questioned that why this case is against you, she stated:- "Some of the P.Ws. Were inimical towards me and my children and my late husband. My husband had constructed a house where I and my family was residing. My father-in-law and brother-in-law wanted to take the possession of the house as they apprehended that the said house was constructed out of the assets of their joint business but my deceased husband refused to accept their demand so they became hostile against me and my family, and after the death of my husband this false and fabricated case has been staged against me. I and my children have been evicted from the said house. My children were pressurised to make statements against me. I am innocent in this case."
' Muhammad Anwar appellant explained the case against him in the following words:-- "I am a poor labourer. I was arrested in this case on suspicion and falsely challaned by the Investigating Officer to show his performance."
' Both the appellants did not produce any evidence in their defence.
10. Placing reliance on the prosecution evidence, the learned trial Judge convicted the appellants and awarded them the sentences, as indicated above.
11. We have heard the learned counsel for the appellants as well as the State and the complainant and have perused the record minutely with their able assistance.
' The learned counsel for the appellants contended that it was an unwitnessed crime in which the police by fabricating the evidence of extrajudicial confession and that of Wajtakkar has obtained the conviction of the appellants which is not based upon sound appreciation of evidence. The extrajudicial confession is the weakest type of evidence, which could only be believed if it is proved that it was genuinely made and it stands corroborated by independent evidence; fortunately, both these conditions are lacking in this case; neither the extra-judicial confession was made at the earliest opportunity nor it is being corroborated by any independent source. On the contrary the extra-judicial confession is against the medical evidence. The motive, though alleged, has not been proved, which adversely reflects upon the prosecution case, as a whole. The evidence with respect to extra-judicial confession is coming from the mouth of highly interested and inimical witnesses and is contradictory in itself. According to Salamat Ali P.W.13, Mst. Nasim Akhtar had illicit relations with Muhammad Ashraf and Muhammad Anwar, whereas according to Azhar Hassan P.W.15, she had developed ink* liaison with Muhammad Ashraf accused. According to Ghulam Hussain P.W.12, Mst. Nasim Akhtar made extra-judicial confession in the police station, whereas according to Salamat Ali P.W.13 and Azhar Hassan P.W.15, real brothers of the deceased, the extra- judicial confession was made by Mst. Nasim Akhtar in the house, which makes the version of the prosecution further doubtful. Placed reliance on 1985 P Cr. L J 1216, 1993 P Cr. L J 880 and PLD 1992 Lah.
243.
12. The learned counsel for the State has supported the impugned judgment.
' The learned counsel for the complainant strenuously urged that the extra-judicial confession made by Mst. Nasim Akhtar appellant is not the outcome of coercion or undue influence and the witnesses, specially Muhammad Naeem (P.W.4) who is the son of the deceased had no animosity to falsely implicate his mother Mst. Nasim Akhtar. The extrajudicial confession gets support from the recovery of Valium-2, at the instance of Mst. Nasim Akhtar as well as by the evidence of Saifullah P.W.3, a Wajtakkar witness and also from the medical report. Thin, the learned trial Judge has recorded the conviction on the basis of proper appreciation of evidence.
13. Admittedly, it is an unwitnessed crime and the dead body of Najmul Hassan deceased was found by Gul Roze, Watchman in New Chaudhery Park, near the wall of the house of Muhammad Sharif at 3-30 a.m. On 4-11-1987 and he also informed Syed Ahmad Bashir Shah, President, Muslim League. Unfortunately, both these persons were not examined by the police. The occurrence took place on 4-11-1987, whereas the extrajudicial confession was made on 12-11-1987 and it remains a mystery why Mst. Nasim Akhtar appellant made the extra-judicial confession, as there was no compelling reason for her to do so, because by that time neither she was suspected as accused nor there was any move by the police to arraign her as such. It is in evidence that the incriminating articles were recovered after the extra judicial confession; hence there is no independent corroboration of the extra-judicial confession allegedly made by Mst. Nasim Akhtar appellant. The conditions laid down in 1985 P Cr. L J 1216 have not been fulfilled. Neither there is evidence that the extra judicial confession is voluntary one nor there is any independent corroboration of the extra- judicial confession available on the record. On the contrary, the extra-judicial confession is against the medical evidence. According to the confessional statement of Mst. Nasim Akhtar, Valium-2 was administered to the deceased before he was strangulated, whereas there is no evidence of the doctor to this effect.
14. The motive part of the prosecution version is belied by the evidence of Salamat Ali P.W.13 and Azhar Hassan P.W.15. According to Salamat All P.W.13 Mst. Nasim Akhtar had illicit relations with Muhammad Ashraf and Muhammad Anwar, whereas according to Azhar Hassan P.W.15 she had illicit relations with Muhammad Ashraf acquitted accused. The motive besides being contradicted by these witnesses is unreasonable and unbelievable and against the natural course of events. A woman would not simultaneously develop illicit relations with two persons and both of them would not try to eliminate the husband of their beloved jointly as rivalry is likely to erupt in such illicit relations between the alleged paramours. The evidence of Saifullah P.W.3, a Wajtakkar Witness, was recorded after sufficient delay. He conceded this fact that he did not know the name of the deceased and the police did not record his statement which shows that he was made a witness later on. The evidence adduced by the prosecution is a glaring example of police padding. It appears that when the police failed to trace out the unwitnessed crime, they manoeuvred the evidence of extra-judicial confession from the mouth of Mst. Nasim Akhtar appellant. Ghulam Hussain P.W.12, the only independent witness has not supported the prosecution on this point, as according to him, the extra-judicial confession was made in the police station, whereas Salamat Ali and Azhar Hassan P.Ws. Deposed that she made the extra-judicial confession in her house and this evidence, per se, is not believable as both these persons besides being the real brothers of the deceased have got animosity against Mst. Nasim Akhtar appellant due to the property dispute, i,e, regarding the possession of house which was in the exclusive possession of the deceased. Both these witnesses had reasonable suspicion in their mind that it was built from the income derived from the shop jointly owned by him alongwith his father. The conduct of these two witnesses further belies the version given by the prosecution, because in spite of the fact that the extrajudicial confession was made on 12-11-1987, they did not inform the police on the same day; rather they informed the police on 13-11-1987 and this inordinate delay in informing the matter to the police remained unexplained. At a belated stage before the trial Court a pretext was coined that they have been thinking over this matter patiently whether the information should be conveyed to the police or not, as it is likely to harm their own Bhabi Mst. Nasim Akhtar. The evidence of Azhar Hassan P.W.15 also suffers from similar defect and he being the real brother of the deceased had a motive to falsely implicate the appellant Mst. Nasim Akhtar. The judgment of the trial Court is contradictory, as on the same evidence he has convicted Muhammad Anwar, but has acquitted Muhammad Ashraf. According to Salamat Ali P.W.13, he was the paramour of Mst. Nasim Akhtar and had the motive to commit the crime.
' The perusal of statement of Mst. Nasim Akhtar shows that she was 35 years of age at the time of her statement, whereas acquitted accused Muhammad Ashraf was aged 25 years and Muhammad Anwar was aged 42 years. Difference in ages between these two persons would lead to this inference that Mst. Nasim Akhtar would not, in the normal course of events, develop illicit relations at the same time with persons of different ages and character. There is chain of authorities to this effect that extra-judicial confession is the weakest type of evidence and normally conviction cannot be based on this type of evidence, unless it is coming from an unimpeachable source and is being corroborated by independent evidence. Had Mst. Nasim Akhtar appellant wanted to make the confession,, the proper course open to the police was to get her confessional statement recorded by a Magistrate. As the police has failed to do so, hence the sanctity attached to this confession statement is lost and conviction cannot be based on this extra-judicial confession which may be the outcome of undue influence and is being supported by highly interested and inimical witnesses. The story of Valium-2, stood disbelieved from the medical evidence. The evidence of Wajtakkar witness, namely, Saifullah P.W.3 is not sufficient to advance the prosecution case.
15. The upshot of the above discussion is that in view of the infirmities and lacunae, referred to above, we find that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. Resultantly, we accept both the appeals, set aside the convictions and sentences of the appellants and acquit them. They shall be set at liberty forthwith if not required to be detained in any other case. The death sentences are not confirmed and the reference is answered in negative.