' ABDUL WAHEED SIDDIQUI, J.--- Appellant has assailed a judgment delivered by the Court of Additional Sessions Judge, Lodhran on 21-4-1993 whereby he has been convicted under section 302, P.P.C. And has been sentenced to death and to pay a fine of Rs,10,000 or in default to further undergo R.I. For a period of two years. A Criminal Murder Reference has also been preferred as required under section 374, Cr.P.C. We hereby dispose of both the Criminal Appeal and Criminal Reference together.
2. One Malik Zulfigar Ali (P.W.4) appeared at Chawk Bukhari Qasba on 20-6-1991 at 9 a.m. And made complaint (Exh.P.B.) recorded by Imdad Hussain (P.W.8) A.S.-I. Which complaint became the basis of an F.I.R. (Exh.P.B./1) lodged at Police Station City Kehror Pacca, District Multan on 20-6-1991 at 7-10 p.m.
' The story as negated in the complaint (Exh.P.B.) is that the complainant was resident of village Kahror Pacca alongwith his family and had a grocery shop. In his neighborhood appellant alongwith Mst. Amiran Mai and Muhammad Ramzan were residing in a rented house for labor purposes and were originally from Basti Muhabat Pur, District Vehari. These persons had an acquaintance with the relatives of the complainant and used to come to his house as well. They also used to get guests from their village specially Ghulam Hussain and Manzoor Ahmed. Three months prior to the filing of complaint Exh.1P.B., Ghulam Hussain and Manzoor alias Kala also came as guests. On the same day appellant and his wife Amiran Mai came to the house of the complainant at about 4 p.m. And requested him to send his daughter Mst. Kauser Bibi for help in household work as they had received guests. After some time the girl shall be returned. The complainant then sent his daughter Kauser Bibi aged 7/8 years. The girl did not return up to 10 p.m.
Then the complainant accompanied by Muhammad Qasim P.W.7 and Allahyar went to the house of the appellant which was found closed. Next day all of them went to Basti Muhabatpur in search of appellant and his family. There they met Ghulam Hussain and Manzoor who informed them that the girl was really brought by appellant, his wife and another to Basti Muhabatpur, but that she has been taken to Ahmedpur Sharqia to their relatives. A mistake has been committed, but the girl shall be returned within 2 to 4 days. Then the complainant and his companions returned' back to Kahror Pacca. The girl was not returned and again they went to Basti Muhabatpura where Ghulam Hussain met them. He promised that he was himself going to Ahmedpur Sharqia and shall bring the girl within 2/4 days but the condition was that the matter may not be reported to the police. Again they returned to Kahror Pacca, but the girl remained missing. The complainant party remained in search of the girl and again went to Basti Muhabatpur but this time none could be located. Finally then the complainant got satisfied that along with appellant, his wife and three they. Persons have abducted his daughter and she has been concealed somewhere. Thus, the complaint.
'After, completing the investigation, prosecution challaned only the appellant who was charged under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereafter referred to as the said Ordinance, and section 302, P.P.C. To which appellant did not plead guilty.
3. To prove its case, prosecution examined 12 P. Ws. Muhammad Latif (P.W.1) is a formal witness of the recovery of the dead body of the victim girl after digging earth with Kassi by the appellant who was in custody and had made potation towards the place where he had murdered and buried the dead body of the victim girl. This witness has also proved photographs of the clothes on the dead body Exh.P.1, Exh.P.2., Exh.P.3, Exh.P.4 and Exh.P.5. Muhammad Zafar-ul-Din (P.W.2) has proved preparation of site plan Exh.All and Exh.A./2 on 8-12-1991 on the direction of police. Iqbg Naveed (P.W.3), P.C., has proved recording of F.I.R. Exh.P.B./1. On the basis of complaint Exh.P.B. Zulfiqar Ali (P.W.4), the complainant, has proved the contents of complaint (Exh.P.B.). He has deposed further that 5-1/2 months after the complaint, appellant came to his shop at about 8-30 a.m. And at that time Muhammad Bux (P.W.6) and Muhammad Shafi were present in his shop. The appellant fell on his feet and made confession before him that After taking his daughter Mst. Kausar Bibi to his house, he committed Zina-bil-Jabr with her and then murdered her. After that he buried the dead body in the courtyard of his house. He requested further that he may be produced before police and he will lead to the recovery of the dead body. Then the complainant and two other P.Ws.
Present produced the appellant before police in front of the Court at Qaid Azam. Road. Police arrested and interrogated the appellant in his presence. While under custody, the appellant led the police to his house in the presence of witnesses voluntarily. The house at that time was occupied by another tenant Muhammad Yaqub by name. Appellant pointed out a place under a Chapper where dead body was buried. The earth was dug by him and the dead body was brought out which was identified by him as well as the clothes which were worn by her. A photographer was summoned by the police and he remained taking the photos of the proceedings. Later on dead body was taken to the hospital by Police Constable, Rabnawaz accompanied by the witnesses. At the time of the postmortem this witness identified it. Afterwards dead body and clothes were handed over by the doctor to Rab Nawaz, Constable. The last-worn clothes of the deceased shirt Exh.P.1, Shalwar Exh.P.2 along with a Paranda Exh.P.3 were produced by Rab Nawaz, Constable to A.S.-I. 'who took the same into possession under memo. Of recovery which bears his signature.
' Mst. Zainaban Mai (P.W.5), mother of the deceased victim, has proved identification of the dead body through the clothes on the dead body. Muhammad Bux (P.W.6) has corroborated the deposition of the Complainant, (P.W.4) Muhammad Qasim (P.W.7), brother of the complainant, has deposed that he lives with the complainant. He has corroborated the contents of complaint (Exh.P.B.). He had accompanied the complainant to Muhabatpur in search of the girl taken away by the appellant and has proved all the steps taken by the family in such a search. Imdad Hussain (P.W.8), A.S.-I., has proved the recording of the complaint (Exh.P.B.) on the basis of the statement of the complainant (P.W.4). On the same day he visited the spot and prepared site plan Exh.P.D.
Statement of the P.Ws. Qasim and Allahyar were recorded by him under section 161, Cr.P.C. And on 11-7-1991 he arrested Muhammad Ramzan, but on 17-7-1991 this accused was declared innocent.
Amanullah (P.W.9), S.I.P., and Investigation Officer of the case has deposed that on 19-10-1991 he was posted as S.I.P./S.H.O., Police Station Kehror Pacca. He was entrusted with the investigation of the case. On 7-12-1991 appellant was produced before him by complainant and two others when he was present on Quaid-e-Azam Road. He interrogated the appellant and recorded statements of complainant and Muhammad Shafi under section 161, Cr.P.C. He arrested the appellant while under custody, appellant led him the house where he had burried the,victim girl. On each and every detail about the recovery of the dead body he has corroborated the complainant (P.W.4). On 11-12-1991 statement of the appellant was got recorded under section 164, Cr.P.C. After completing investigation he challaned the appellant. Birth certificate Exh.P.E. Was produced before him by the complainant. Rabnawaz (P.W.10) has proved his posting at Police Station Kehror Pacca on 7-12-1991, and was in the company of Amanullah (P.W.9), Investigation Officer, when appellant led them to the house from where the dead body was recovered. He has corroborated complainant (P.W.4) and Investigation Officer (P.W.9) in the details about the recovery of the dead body. He has proved handing over of the dead body to him for post-mortem examination, escorted it to the Civil Hospital Kehror Pacca. Complainant and Muhammad Shafi accompanied him to the hospital. After post-mortem, last worn clothes were handed over to him which are shirt Exh.P.1, Shalwar Exh.P.2, and Paranda Exh.P.3. These were produced by him to Investigation Officer along with the Rasi. The same were taken into possession vide recovery memo. Exh.P.C. Which bear his signature. Zulfiqar Ahmed (P.W.11), Magistrate 1st Class, has proved recording of the confessional statement of appellant under section 164, Cr.P.C. On 11-12-1991 which was given by him voluntarily. The statement is Exh.P.J. Which is in his hand and bears his signature. Dr. Fazal Karim (P.W.12), has proved examination of the dead body of the deceased Kausar Bibi on 7-12-1991 at 1-30 p.m. This dead body was in the form of skeleton and was brought to him by P.C. Rabnawaz (P.W.10). He has further deposed as under:-- "The bone skeleton of dead body had been brought to the hospital in piece of cloth (Chader). There were blood-stained shirt and Shalwar. The hairs of the dead body were intact. There was a Paranda on the head of the deceased. The string having a knot was with the bony skeleton and the muscle were not present. All the bones were separated from the skeleton. The following injuries were found.
(1) There was fracture of hyoid bone. All the other bones except hyoid bone were in tact. In my opinion the cause of death is asphyxie due to strangulation.
' Injury No,1 was sufficient to cause death in ordinary course of nature.
' I was unable to give any opinion about rape upon the deceased. Because there were no musculature and only bony skeleton was examined by me.
' Proper time between the injuries and death was half an hour. The time between post-mortem and death were about 8/9 months.
' The dead body in the form of skeleton, last-worn cloth of the deceased and the copy of the post- mortem report were handed over to the police. Post-mortem report Exh.K. Is in my hands and bears my signature. Inquest report Exh.L. Also bears my signature.
' In his statement under section 342, Cr.P.C., appellant has denied all the specific questions. To question No,18 he has replied that the P.Ws. Have deposed against him due to enmity. He has declined to be examined on oath and has produced Dr. (Muhammad Ikram, Registrar of Surgical B.V. Hospital, Bahawalpur in his defense. This D.W.1 has deposed as under:-- "I have undergone training and have obtained diploma in orthopedic surgery. It is not possible to tell the duration of the death on observing bone. It can, however, be done by Forensic specialist. It is difficult for ordinary Medical Officer to tell about the duration after observing the bone. Hide bone are U shape Hyped mole increases with age.
4. We have heard the counsel for the appellant and State. The counsel for appellant has relied upon the following grounds;
(1) That the delay in lodging the F.I.R. Has not been explained.
(2) That all the prosecution witnesses are interested and inimical towards the appellant and their evidence is not corroborated and reliable, therefore, the same cannot be made the basis of conviction of the appellant.
(3) That the extra-judicial confession as well as judicial confession is not in accordance with requirements of the relevant provision of law.
(4) That the recoveries have been planted.
(5) That the appellant has been acquitted for the charge under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979, by disbelieving the evidence put forward by the prosecution. Thus, the same set of prosecution witnesses cannot be relied upon for the charge under section 302, P.P.C,
(6) That the opinion advanced by the Medical Officer in respect of postmortem of the alleged deceased cannot be relied upon in the instant case.
(7) That the extrajudicial confession is a weak type of evidence which cannot be relied upon.
(8) That memo. Of recovery of dead body was not prepared.
' The counsel for the State has supported the impugned judgment. He has contended that in spite of retracted confession, there is recovery of the dead body and last-worn clothes of the victim on the potation of the appellant before independent witnesses which is enough to connect him with the guilt.
5. As to the delay in lodging F.I.R. Is concerned, the counsel for appellant has relied on the following two pieces of evidence which are apparently in conflict with each other.
(1) From complaint Exh.P. B . Lodged on 20-6-1991{{URDU TEXT}} ' From statement under section 164, Cr.P.C. Recorded on 11-12-1991; {{URDU TEXT}} ' Both these pieces of evidence are in conflict to the extent that the confessional statement of appellant refers to the rape and murder of Mst. Kausar Bibi in the rented house of Kehror Pacca, whereas the complaint Exh.P.B. Refers to the presence of the victim girl at Mehbatpur a few days later. This conflict can easily be resolved. In fact victim girl was in custody of the appellant. There is every possibility that he had taken the girl to Mehbatpur where she was seen with him by Ghulam Hussain, Manzoor Ahmed alias Kala who reported as such to the complainant. Later on, at some other occasion she was brought back to Kehror Pacca by appellant alone and then the occurrence took placeIn the presence of recovery of dead body and last-worn clothes on the pointation of appellant before independent witnesses whose evidence inspires confidence, appellant's statement under section 364, Cr.P.C. On this point cannot be considered as a gospel truth. The delay in lodging F.I.R. Is otherwise plausibly explained in complaint Exh.P.B., Consequently, this contention is rejected.
6. So far as the second contention about enmity of the complainant with I9 the appellant is concerned, it does not transpire from evidence.
7. It has been contended that extra-judicial confession is not in accordance with law. The learned counsel for appellant is correct to the extent that the extrajudicial confession is a weak type of evidence. In the present case, this c confession stands corroborated by judicial confession and recovery of the dead body etc., on the potation of the appellant himself. Hence, this contention is repelled as misconceived.
8. It has been contended that the judicial confession was recorded 4 days after the arrest. Hence it was obtained under the duress. Since the Magistrate who recorded the confessional statement namely Zulfiqar Ahmed (P.W.11) has denied such a suggestion and that no proof has been given to falsify such denial, this contention merits no consideration.
9. In view of the abovementioned discussion, the impugned judgment is upheld and the appeal is dismissed. Criminal Reference is replied in affirmation.