SARDAR MUHAMMAD DOGAR, J.---Muhammad Shafique alias Chheela 32 and Abdul Razzaq alias Bagga have filed appeal against judgment dated 30-5-1996 by Sessions Judge Narowal whereby learned Judge had convicted them under section 302/34, P.P.C. and sentenced both of them to death plus to pay a sum of Rs,50,000 each, as compensation to the heirs of the deceased in default to undergo R.I. for six months. They were also convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo R.I. for seven years plus to suffer twenty stripes.
Murder Reference No, 1/L of 1996 by the learned trial Judge for confirmation of sentence of death and the appeal by the convicts are being disposed of together.
2. Occurrence in this case had taken place sometime before Ishawela, on 30-4-1995, in the field adjoining to the school of village Kheeva at a distance of three kilometers from police station Qila Sobah Singh District Narowal.
F.I.R. Exh.PF/1 was registered at the police station by Muhammad Idrees MHC P.W.4 on 1-5-1995 at 11/30 a.m., on receipt of complaint Exh.PF drafted by Muhammad Siddique S.H.O., P.W.11 on the statement of Murad Ali, P.W.9, at 11.00 a.m. at Chowk Village Kheeva.
According to F.I.R. complainant had three sons and four daughters. Yasmeen out of them was aged 16 years. On 30-4-1995 he was returning home from Qila Sobah Singh where he had gone for some personal erraned. He reached near the culvert of the village pond at Ishawela Aazan. He saw his daughter Mst. Maqaddas Bibi aged about 6 years sitting at the culvert and weeping. On his asking she told him that Baji Yasmeen (sister) had brought her for evacuation and that leaving her there, She had gone to the fields for evacuation but she had not returned till then. She also told him that soon after Yasmeen had entered the field Muhammad Shafique alias Chheela and Abdul Razzaq alias Bagga had also entered the field after her. The complainant took Mst. Maqaddas Bibi to the house. His wife Mst. Majeedan Bibi had gone to her parents. He set out in search of Mst. Yasmin taking alongwith him some co-villagers. They could not find any trace or clue of Mst. Yasmin during the whole night. They again started search in the morning. They received information during the search that dead body of Mst. Yasmeen was lying in the field of Muhammad Riaz, Advocate in the area of village Blackeypur. They went there and saw the dead body lying with face downward.
There were fire shot injuries on the back of the chest. The shot had made exit wound on the side of the chest. The dead body was besmeared with blood. He further stated that Muhammad Shafique and Abdul Razzaq had under threat committed zina with his daughter and murdered her.
3. Muhammad Siddique, S.H.O., after despatching statement Exh.PF to the police station for registration of case reached the spot. He despatched the dead body for post-mortem after preparing inquest report Exh.PJ, and collected blood stained earth from the spot vide memo. Exh.P1.
Empty P/9 found lying there was also taken into possession by him vide the same memo. Last worn clothes of the deceased alongwith three phials, one of them containing swabs and one containing pallets produced by Muhammad Rafique and Rafaqat Ali Constables before him were taken into possession vide memo. Exh.PG.
He arrested both the accused on 7-5-1995, on being produced before him by Muhammad Rafique and Muhammad Ashiq, Gun, P-8 got recovered by Muhammad Shafique on the same day from his house was taken into possession by him vide memo. Exh.PH. He submitted challan to Court after completion of necessary investigation.
4. Evidence of recovery of empty and blood-stained earth from the spot was deposed to by Murad Ali, P.W.9, and Muhammad Siddique, P.W.11, while the evidence of recovery of Gun P-8 at the instance of Muhammad Shafique was deposed to by Muhammad Siddique, S.H.O., P.W.11, and Nazir Ahmad Constable, P.W.6.
Evidence of extra-judicial confession was deposed to by Muhammad Ashiq, P.W.B. Evidence of last seen was deposed to, by Mst. Maqaddas Bibi, P.W.10. Murad Ali her father who had lodged the F.I.R. also corroborated her testimony.
For medical evidence prosecution examined Dr. Syed Abrar Hussain who had performed autopsy on the dead body of Mst. Yasmeen on 1-5-1995 at 5.00 p.m. He had noted 15 circular wounds on breast area of the deceased, excepting one injury (No,7) the margins of the other injuries were inverted. The margins of one injury was (blackened). A Coke and Pellets found beneath injuries were removed and sealed into a phial. He had taken three vaginal swabs and sealed the same into parcel. Large intestines were healthy and contained feacal matter. Bladder was healthy and full of urine. Death was opined to have occurred due to shock and heamorrhage resulting from Injuries Nos.1 to 3 and 7 to 15. All injuries were opined to be ante-mortem and caused by fire-arm. Duration between injuries and death was opined to be within 5 to 10 minutes while the time between death and post-mortem was opined to be within 24 hours.
Dr. Parvez Iqbal Najam, P.W.1, was examined regarding potency of the appellants. He stated that he had examined both of them and found them capable to perform sexual intercourse.
5. The prosecution had also tendered in evidence positive report Exh.PD, about the swabs being stained with semen, reports Exhs.PM, PN from the offices of the Chemical Examiner and Serologist respectively about the earth being stained with human blood and report Exh.PO from the office of the Forensic Science Laboratory was also tendered in evidence. According to Exh.P0, the Expert had expressed inability to express opinion about empty P-9 having been fired from the gun P-8.
6. After recording statements of the appellants during which both of them pleaded innocence and false implication. The learned trial Judge also recorded the statements of Muhammad Anwar as D.W.1 and Muhammad Rafique as D.W.2. Muhammad Anwar had been named as a prosecution witness to prove that gun P-8 was recovered at the instance of Muhammad Shafique in his presence. Muhammad Anwar during statement as D.W.1 refuted that any gun had been recovered at the instance of Muhammad Shafique.
Muhammad Rafique was named as a prosecution witness to prove that both the appellants had made extra-judicial confession in his presence. Muhammad Rafique while appearing as D.W.2 refuted, that appellants had made confession either before him or before Muhammad Ashiq. Both the D.Ws. had been given up by the prosecution as won over. They were summoned on the request of the appellants and they made statements as defence witnesses.
7. We have gone through the evidence with the assistance of the learned counsel for the appellants and have considered contentions raised by the learned counsel for the parties.
8. The evidence of recovery of gun at the instance of Muhammad Shafique was deposed to only by the Investigating Officer and a constable. Learned trial Judge did not believe the evidence of recovery of gun. We have gone through the reasons noted in that regard by the learned trial Judge and we do not find anything to differ with him. We may note hear that even if the evidence of the recovery of gun is believed it will not advance the case of the prosecution in any manner as the gun was not found wedded with the empty recovered from the spot. The Expert from the Forensic Science Laboratory had expressed inability to give positive opinion, as he had found 'perforation in the percussion cap at the point of striker pin mark'. It is worth noticing that this empty had not been recovered from the custody of any of the appellants. It was found lying at the spot. The responsibility of tampering with percussion cap of empty, therefore, cannot be laid on the shoulders of any of the appellants.
9. All that the medical evidence in this case goes to prove is that the deceased had died as a result of fire-shot injuries and the swa bs removed from her vagina were found stained with semen. The report about the swa bs and the opinion of the doctor at the best prove the commission of sexual intercourse with the unfortunate girl and of her having died as a result of fire arm injuries. This evidence can corroborate any other evidence but by itself does not connect the appellants with the crime.
The evidence of the doctor who declared the appellants to be fit to perform sexual intercourse again does not prove that they had committed Zina with the deceased.
10.The prosecution case, as put up before trial Court, was, that both the accused had made extra-judicial confession before Muhammad Rafique son of Noor Din and Muhammad Ashiq son of Taj Din in the haveli of the former in village Khemey Wali. However, the prosecution only examined Muhammad Ashiq as P.W.8, Muhammad Rafique was given up as won over.
Muhammad Ashiq stated that he was working at Lahore and had come to the village on coming to know about the murder of Mst. Yasmeen his real niece and that six or seven days after the occurrence he had gone to the haveli of Rafique, where Muhammad Shafique had come and made a confession that he alongwith Abdul Razzaq had taken the deceased to a field, committed Zina with her, one by one, forcibly and then murdered her by firing. He stated that while Muhammad Shafique was making statement, Abdul Razaq had also come and also made same statement. During cross-examination he explained that when Muhammad Shafique was giving the details of the crime alleged to have been committed by them, Abdul Razzaq was also repeating the same things. He admitted during cross-examination that father of Muhammad Shafique was a big landlord of the village. He had denied the suggestion during cross-examination that Mst.
Yasmin was not a girl of good character and that she had eloped twice or thrice and that she had more than once left the house of her father without permission and returned after some time. ---- He also denied the suggestion that the deceased was engaged to son of her maternal-aunt Mst.
Bashiran Bibi. He denied the suggestion that the engagement was broken and as a result sons of Mst. Bashiran had threatened that they will kill Mst. Yasmin. He denied the suggestion that he had made a false case.
10-A. Evidence of extra-judicial confession is not a strong evidence like the evidence of judicial confession made before a Magistrate.
11.Be that as it may, one thing is positive that evidence of extra-judicial confession by a single witness is always weighed very cautiously and minutely. Here in this case, the only witness, examined, is not only real paternal uncle of the deceased and brother of the complainant but was also not residing normally in the village. Muhammad Shafique, about whom, he stated, to have come for making a confession, was the son of a big Zamindar. We do not find any reason why should he have gone to the house of a Rehmani (Kumhar), to make confession of an offence involving capital punishment? Moreover, it is Muhammad Ashiq's own case that neither Muhammad Shafique nor Abdul Razzaq had come to him. According to him he had gone to see Muhammad Rafique and both the accused had come there one after the other and made confessional statements. Muhammad Rafique in whose haveli and before whom appellants allegedly made confession while appearing as D.W.2, categorically contradicted, that, any such meeting had taken place or any confession had been made by any of the two persons.
Apart from what has been observed above the other note worthy thing is, that the impression which one gets after going through the statement of P.W.8, is, that the confession was made by both the accused jointly. The value of a joint confession is assessed at a very low ebb. In fact there are reported judgments that joint confession is no confession.
' For the reasons noted above we find no reason to disagree with the argument of the learned counsel for the appellants that no reliance can be placed I on the evidence of the alleged extra- judicial confession deposed to by Muhammad Ashiq. The same stands discarded.
12. The only evidence which remains to be evaluated is the evidence of last seen deposed to by Mst. Maqqadas Bibi. She was real sister of the deceased. According to her father (P.W.9) she was about six years old at the time of occurrence. However, her age recorded at the time of making statement on 18-3-1996 was eight years. Be that as it may, even a person aged eight years is a child. The testimony of Mst. Maqaddas Bibi, therefore, will have to be examined as that of a child witness. The testimony of the child witness has to be considered with great care and caution. It has to be seen that the child was intelligent enough, posed good memory and that he or she had not acted under any influence.
' The learned trial Judge before recording her statement had put her questions and declared that she was fit to make statement. Merely relying on answers of three questions is not enough for us to hold that she was a competent witness but we feel that since the trial Judge had the opportunity to see the witness acting and behaving, so his opinion about competency should be accepted.
Nonetheless her testimony needs to be scrutinized thoroughly. As noted earlier she was the real sister of the deceased and daughter of complainant. Her first statement, was the one, which she made to her father Murad P.W.9. According to Murad Ali she had told him that Mst. Yasmin had taken her alongwith to the field for evacuation and that Mst. Yasmin after having made her sit near the school had entered the field for evacuation and that after Mst. Yasmin had entered the field Muhammad Shafique alias Chheela and Abdul Razaq alias Bagga had also gone that way and that she had not returned. She made second statement before Muhammad Siddique, S.H.O., P.W.11, the said statement (recorded under section 161, Cr.P.C.) was exhibited at the trial as Exh.DE). In Exh.DE she did not state that the accused had caught Mst. Yasmin, that Mst. Yasmin had resisted and that both the accused had taken her away forcibly. For the third time she made statement at the trial as P.W.10. In that she stated that she had sat on the bannah of the field and Mst. Yasmin had entered the field and sat there and that in the meantime Chheela and Bagga came there armed with rifle, caught her sister Mst. Yasmin from the field. She resisted but they took her away forcibly and being afraid she came to the Pulli and sat there weeping. Before the Court she made lot of improvements. She was confronted with her statement Exh.DE before the police where she was neither found to have stated that the accused were armed nor that they had caught Mst.
Yasmin nor that they had taken her away and neither that Mst. Yasmin had resisted. The improvements made by her are very obvious and of great significance than the statement she had made to her father and to the police. We do not think that it was by chance. We rather feel that it was by way of a mutual understanding, consultation and tutoring. Her father also ascribed improved statement to her while appearing as P.W.9. Murad Ali while lodging F.I.R. had not stated that Maqaddas Bibi had told him that the accused had dragged Mst. Yasmin and taken her away forcibly. He had stated so by way of improvements at the trial. A cautious reading of the testimony of Murad Ali and Maqaddas Bibi gives an inclining that the daughter had followed the line set by father viza-viz improvements in the statement.
It was on the basis of this situation that the learned counsel for the appellants argued that the evidence of the last seen deposed to by a witness cannot be acted upon without strong corroboration particularly so when the evidence of the recoveries and the evidence of the extra- judicial confession stands discarded for being incapable to link the accused with the crime.
Learned counsel in support of his contention had placed reliance on Ghulam Mustafa alias Ziau...
Appellant v. The State ... Respondent, reported at page 718, PLD 1991 SC. The facts and circumstances of the case in hand to a great extent tally with the facts and circumstances of the cited case. Their Lordships of the Supreme Court of Pakistan had taken note of the observations in the cases reported as Nazo v. The State (1977 SCM R 20), Rehmat v. The State (PLD 1977 SC 515) and Karamat Hussain v. The State (1972 SCM R 15).
In the judgment reported at page 15 of SCMR 1972 Hon'ble Mr.Justice Hamoodur Rehman, who was then Chief Justice observed as follows:-- "If the extra-judicial confessions are disbelieved and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant. In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused."
12-A. As a result of the enunciation of the testimony of P.W.10 and P.W.9 we are of the firm view that the evidence of last seen deposed to by P.W.10 and re-narrated by P.W.9 is not the type of the evidence which can be safely relied upon for maintaining the conviction of the appellants, particularly so when there is no other evidence in corroboration of the same. We are of the view that the prosecution has not 'been able to prove the case against the appellants beyond reasonable shadows of doubt. This appeal is, therefore, allowed by way of grant of benefit of doubt.
The appellants are acquitted. They shall be released forthwith if not required in any other case.
13. Since the appeal has been allowed and the appellants are acquitted, question of confirmation of sentences of death does not arise. The murder reference stands answered.