' NAZIR AHMAD BHATTI, C.J.--- The first wife of complainant Allah Wasaya had died but he had children from her. Subsequently he married Mst. Allah Jawai, a woman of 45 years but no child was born from this wife. The complainant was cattle trader. On 15-12-1992 he had to participate in the marriage of his nephew Muhammad Jiger in village Haveli Naseer Khan. On the said day at about 3-00 a.m. He and his son Zahoor Ahmad took cattle to the market in Bahawalpur and he told his wife Mst. Allah Jawai to directly go to the place of marriage along with Muhammad Javed his son from his previous marriage" At about 14-00 hours he sent his son Zahoor Ahmad back to the village and himself went to the place of marriage at about 16-00 hours. In the meanwhile his other son Ashiq Muhammad arrived there and he informed his father that his step-mother was not available in the house although his brother Muhammad Javed was there. The complainant and his son Ashiq Ahmad started searching Mst. Allah Jawai but not finding her came back to the village. On 17-12- 1992 the complainant was sitting in the house of Umer Bakhsh, Councilor along with Falak Sher Awan and some other persons when P.W.7 Muhammad Irshad came there and informed them that he was spraying his cotton crop with insecticides when he saw a blood-stained gunny bag containing something in it. Suspecting it to be a dead body the complainant and the other persons went to the spot and the complainant opened the gunny bag and found the dead body of his wife Mst. Allah Jawai packed in it without a Shalwar, but having blood-stained shirt. The complainant Allah Wasaya went to Police Station Saddar, Bahawalpur on the same day at about 18-35 hours and recorded F.I.R. No.274/92. He disclosed in the F.I.R. That he had been informed by his wife that Abdul Majeed appellant herein, had attempted to molest her and for that reason he suspected the said appellant of the murder of his wife.
2. The Investigating Officer recovered blood-stained earth from the spot, blood-stained shirt of the deceased and her 6 bangles. Mst. Allah Jawai was having two incised wounds on her body caused with sharp-edged weapon, one on the left mandible and one on left chin. The dead body of Mst.
Allah Jawai was examined for the purpose of post-mortem by P.W.9 Dr. Muhammad Siddique on 18-12-1992 at 16-00 hours. The doctor found a sharp cut of 10 c.m. x 1/2 c.m. On the left mandible, cutting sharply, the bone of mandible and the wound was communicating with the oral cavity and a second sharp-edged wound on the front of the neck just below the chin starting from the left trapezius muscles below the clavicle going up to the right mandible jaw cutting sharply the muscles and all the blood vessels of the neck, esophagus and trachea and also sharply cutting cervical vertebra. According to the post-mortem report death occurred instantly. However, the doctor did not find any sign of violence on the perineum and vulva nor any matting of vaginal and pubic hair. The doctor als& found no secretion coming out from the vagina. He took two vaginal swa bs' which were found stained with semen on chemical analysis.
3. P.W.15 Jamaat Ali Bukhari Inspector/S.H.O. Arrested accused Abdul Majeed. On 21-1-1993 at the potation of accused Abdul Majeed the Investigating Officer recovered one blood-stained hatchet, from his house, his own blood-stained Shalwar and blood-stained Shalwar of the deceased, a pair of ear-rings and a Koka. The said ornaments and the other blood-stained Shalwar were allegedly worn by the deceased at the time of the commission of the offence. Accused Abdul Majeed was alleged to have made an extra judicial confession on 19-1-1993 before P.W.11 Ahmad Bakhsh and P.W.12 Malik Muhammad Hashim before his arrest and they allegedly took him to the police station.
Subsequently co-accused Muhammad Amir and Ghulam Haider were also arrested. After investigation all the three accused were sent up for trial before Additional Sessions Judge, Bahawalpur. Appellant Abdul Majeed was charged under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for committing Zina-bil-Jabr with Mst. Allah Jawai, also under section 302/34, P.P.C. Her murder and also under section 201/34, P.P.C. For causing the disappearance of evidence and dead body. Accused Muhammad Amir and Ghulam Haider were charged under sections 302/34 and 200/34, P.P.C. All the three accused pleaded not guilty to the charges and claimed trial.
4. At the trial the State produced 15 witnesses in proof of the prosecution case. All the three accused made depositions under section 342, Cr.P.C. Accused Abdul Majeed also produced three defense witnesses and also himself made a deposition on oath.
5. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Muhammad Amir and Ghulam Haider and convicted accused Abdul Majored for the offence under section 10(3) of the Hudood Ordinance, under sections 302, 201, P.P.C. For the offence under section 10(3) of the Hudood Ordinance the accused/appellant was sentenced to undergo rigorous imprisonment for 25 years and to suffer 30 stripes. For the offence under section 302, P.P.C. For the appellant was sentenced to death and to pay an amount of Rs.50,000 as compensation to the heirs of the deceased and for the offence under section 201, P.P.C. The appellant was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.20,000 or in default to further undergo rigorous imprisonment for 6 months. The convict Abdul Majeed has challenged his conviction and sentence by the criminal appeal in hand. The learned trial Judge also forwarded Murder Reference No.7/L of 1994. Both the appeal and the murder reference are being disposed of by this single judgment.
6. There is no ocular testimony against the appellant for charging him for the murder of Mst. Allah Jawai. However, it is a fact corroborated by prosecution evidence that Mst. Allah Jawai disappeared from the house of her husband complainant Allah Wasaya on 15-12-1992. It is also a fact that on 17-12-1992 at about noon time her dead body was recovered from a field packed in a gunny bag and she had been done to death with sharp-edged weapon causing two injuries one on the left mandible and one on the left chin and she died immediately after receiving the injuries.
The complainant had disclosed his suspicion against the appellant for having committed the murder of his wife allegedly on the ground that he wanted to have illicit relationship with her but she had refused. It is also a fact that the appellant used to live in the neighborhood of the complainant.
7. The State produced evidence consisting of the alleged extra-judicial confession of the appellant made on .19-1-1993 before P.W.11 Ahmad Bakhsh and P.W.12 Malik Muhammad Hashim, recovery of incriminating material namely, blood-stained hatchet, blood-stained shirt and Shalwar of the appellant, blood-stained Shalwar of the deceased and some ornaments allegedly belonging to the deceased and recovered by the Investigating Officer at the very pointation of the appellant and motive for him to commit the offence.
8. In so far as the evidence of extra-judicial confession of the appellant is concerned, in that respect two witnesses were produced, one is P.W.11 Ahmad Bakhsh and the other is P.W.12 Malik Muhammad Hashim. The former stated that he was sitting in his Dera along with P.W.12 Malik Muhammad Hashim when accused Abdul Majeed came and informed them that he had illicit relationship with Mst. Allah Jawai wife of the complainant Allah Wasaya but the deceased had made a complaint to Umar Bakhsh Councilor and Falak Sher Awan and that for the said complaint he had grudge against her and he forcibly took her to his house and after committing Zina with her, killed her with hatchet. P.W.11 further stated that the appellant also told them that he put the dead body in a gunny bag and had thrown the bag in the cotton crop of Irshad. He further stated that the appellant requested them to produce him before police whereupon this witness and Malik Muhammad Hashim took him to Police Station Saddar Bahawalpur. In cross-examination this witness stated that he had taken accused Abdul Majeed aside and had also called Malik Hashim but these circumstances are not mentioned in his statement under section 161, Cr.P.C. He further admitted that during those days he was neither a Lumberdar nor a Councillor of Mouza Baqir Pur.
He also admitted that two brothers of Ghulam Haider had also lived with their family in the same Ihata along with the appellant where the latter alleged to have committed the offence of Zina and murder. P.W.12 Malik Muhammad Hashim stated that when he went to the Dera of P.W.11 Ahmad Bakhsh there were 4/5 other persons sitting and appellant Abdul Majeed came there and took P.W.11 aside. The latter also called him and in his presence the appellant made the extra judicial confession and narrated the other circumstances. In cross-examination this witness admitted that he had been convicted when he had given a statement in a murder case of Wahid Bakhsh. He also admitted that the complainant was living in his neighborhood. Although both these witnesses deposed about the alleged extra-judicial confession of. The appellant before them and then they produced him in the police station, but there are very many discrepancies in their depositions.
According to P.W.11 he and P.W.12 only were sitting in the Dera at that time whereas P.W.12 had deposed that 4/5 other persons were also sitting there. Both these witnesses were not holding any official or non-official position or any office so that they could be considered as having any influence in the village and so it is not comprehensible as why the appellant chose them to make the alleged extra-judicial confession. On top of all P.W.12 Malik Muhammad Hashim was a previous convict for purgery and making a false statement in a judicial matter. For that reason alone his testimony cannot be taken as truthful. He had proved himself to be a false witness and there was no guarantee that the deposition made by him in this case was truthful. It is also doubtful that the appellant would make an extra-judicial confession because there was no other evidence available against him and nobody had seen him committing any offence against Mst. Allah Jawai before his arrest which took place after one month of the occurrence. No evidence of any kind could be collected against him. It is also to be kept in mind that extra- judicial confession is a very weak type of evidence and it should be very direct and convincing and should also come from the mouth of a person who is generally believed a truthful person: However, in the present case the testimony of both the witnesses with regard to this circumstance is not of the same kind. Moreover, one of the witnesses had in an earlier case purgered himself and was convicted for giving false evidence in a Court of law in a judicial proceeding. For the aforesaid reasons we have come to the conclusion that no convincing and cogent evidence had been brought on the record to prove extra-judicial confession allegedly made by the appellant.
8. The State also relied upon the recoveries made at the instance of the appellant. In this respect evidence was produced to show that two days after his arrest the Investigating Officer had recovered at the potation of the appellant one blood-stained hatchet, one blood-stained Shalwar of the deceased, her earrings and Koka and blood-stained shirt and Shalwar of the appellant.
Although the clothes of the appellant and the alleged Shalwar of the deceased were found stained with blood but no trace of semen was found on any of the clothes. Moreover, these clothes were found after about 5 weeks of the occurrence and there could be available no evidence of the clothes being semen-stained. Even otherwise it could not be established that these clothes belonged to the appellant and the deceased because no evidence was brought on the record to that effect except simply the production of these clothes by the appellant himself. The two ornaments recovered at the potation of the appellant could also not be established to be owned by the deceased. The Shalwar and the said ornaments were of ordinary type and could be possessed by virtually every female. In this respect as well no cogent and convincing evidence was brought on the record. The doctor who had performed autopsy on the dead body of Mst. Allah Jawai, had also not found any violence caused to her private parts nor there were traces of any semen outwardly. Although swa bs were found semen-stained but this circumstance will not prove the guilt of the appellant because she was a married woman and was living in the company of her husband up to the last day of her disappearance. No doubt the hatchet was found stained with blood but it was not sent to the Chemical Examiner to find out whether this was human blood and whether it was of the same group as the blood found on the shirt of the deceased. So the recovery of the blood-stained hatchet also did not cut much ice in the matter.
9. It was disclosed in the F.I.R. That the appellant had attempted to molest the deceased and as she had made complaint against him, so he bore a grudge against her and then killed her.
However, during the trial it had also come in evidence that the boys of the complainant owned pigeons and it was alleged by the appellant that he had made a complaint about the pigeons of the complainant and for that reason he had been' falsely charged. The motive as was advanced in the F.I.R. Could not be proved and adverse effect of this failure has to be borne by the prosecution.
Whereas the partial admission by the complainant of the motive advanced by the appellant for falsely charging him was admitted. In this view of the matter it cannot be observed authoritatively that there was a motive for the appellant for the commission of the offence.
10. The net result of the above discussion is that the State had neither succeeded in proving any extra-judicial confession made by the appellant nor the genuineness of the recovery could be established nor there was any ocular evidence of the murder of Mst. Allah Jawed having been committed by the appellant nor there was any evidence that the appellant had subjected Mst.
Allah Jawai to rape, nor any motive could be proved against him. For the aforesaid reasons we have come to the conclusion that the State had failed to prove any of the offences against the appellant for which he was charged.
11. Consequently the appeal is accepted. The conviction and sentence of the appellant recorded on 19-10-1994 by the learned Additional Sessions Judge, Bahawalpur are set aside and he is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.
' As a consequence of acceptance of this appeal the Murder Reference No.7/L of 1994 is not confirmed.