' RASHID AZIZ KHAN, J.---Gulab Shah aged 35 years with his brother, Qasim Shah was sent up for trial by Police Station Shah Jamal, District Muzaffargarh, to face a charge under section 302/201/34, P.P.C. For the murder of Mst. Amiran. Additional Sessions Judge, Muzaffargarh vide judgment dated 13-4-1991 gave benefit of doubt and acquitted Qasim Shah of all the charges. Gulab Shah was however found guilty under section 302, P.P.C. And sentence to death with a fine of Rs,4,000 or in default one year's R.I. He was also directed to pay compensation of Rs,2,000 to the legal heirs of the deceased or suffer 6 months' imprisonment. Convict has appealed. Case is also before us for confirmation of death sentence. Both these matters shall be disposed of by this judgment.
2. Prosecution case in brief as disclosed in F.I.R. Exh.P.C. Lodged by Abdul Qadir Shah was to the effect that he was resident of Muzaffargarh, he had married his daughter Mst. Amiran Mai 14/15 years earlier with Kaloo Shah where she lived till her death. On 16th June, 1989, first informant's daughter Mst. Hajra at about noon time came to Muzaffargarh and informed that during the night of 15th/16th June, 1989, she with her sister Mst. Amiran Mai went to sleep after talking to each other.
When she woke up in the morning she found Mst. Amiran missing. She searched for her but could not find. The first informant started searching for his daughter when near Qureshi More he came across Bashir Hussain Shah and Fida Hussain Shah who on his inquiry informed that Gulab Shah wanted to develop illicit relations with Mst. Amiran who was not prepared for the said purpose therefore Gulab Shah must have after abduction murdered her.
3. Occurrence had taken place between the night of 15th/16th June, 1989, inside the shop of the accused situated in Mauza Sanwai Syed, 6 miles from Police Station Shah Jamal, District Muzaffargargh. Complaint Exh.P.C. Was made on 16-6-1989 at 3-5 p.m. By Abdul Qadir Shah P.W.3, father of Mst. Ainiran, which was recorded by Muhammad Sharif, S.I, P.W.8 at Basti Balochan, Police Station Shah Jamal. Formal F.I.R. Exh.P.C./1 was drawn the same day at police station.
4. Muhammad Ashraf, S.I. P.W.8 after recording statement Exh. P.C. Came to the spot and recorded the statements of witnesses. He looked for the accused and arrested him on 21-6-1989. While in custody he led the police party to his shop and got recovered dead body buried inside the shop. 37 pieces of broken bangles P.1/1-37 were also secured from the spot. Lock P.2 and key P.3 of the shop were also secured. All the abovesaid articles were secured vide Memo. Exh. P.C. Which was duly attested by Bashir Hussain P.W.5 as well. Some hair of the appellant lying near the dead body were also secured vide the same memo. He prepared Injury Statement Exh. P.H. And Inquest Report Exh.
P.I. And sent the dead body to the hospital for autopsy. After autopsy last worn clothes of the deceased, shirt P.8 was also taken into possession. On 26-6-1989 appellant got recovered Dopatta and Shalwar P.6 and P.7 of the deceased which were secured vide Memo. Exh. P.E. After usual investigation he challaned both the accused.
5. Prosecution in support of its case produced 9 witnesses in all apart from 2 Court-witnesses. C.W.1 Dr. Sadiq Mahmood Surrani, Medical Officer, D.H.Q. Hospital, Muzaffargarh on 21-6-1989 examined the dead body of Mst. Amiran. At the time of examination the deceased was wearing only a shirt.
The skin of the dead body had started discolouration and was peeling off with foul smell.
Purification had set in. The doctor could not find any injury on the person of the deceased therefore, he took pieces of stomach for detection of poison. Pieces of large and small intestines as well as of liver were also taken for detection of poison. Three vaginal swabs were obtained for analysis. After obtaining the report neither poison nor semen was detected.
6. Dr. Sher Muhammad Khan C.W.2 alongwith two other doctors had formed a board to conduct the post-mortem examination. According to their post-mortem examination which was conducted on 14-2-1990 they had opined that the cause of death was strangulation. Khurshid Ahmad, Constable P.W.1 had witnessed the recovery of specimen hair of the appellant which were sealed into a parcel.
P.W.2 Muhammad Aslam Patwari had prepared site plan Exh-P.B. And P.B./1 at the instance of the police. P.W.3 Abdul Qadir Shah had got the case registered. P.W.4 Mst. Hajra had noticed the disappearance of Mst. Amiran and reported the matter to her father Abdul Qadir Shah. P.W.5 Bashir Hussain Shah had deposed about the extra-judicial confession which the appellant made regarding his guilt before him at his house. P.W.6 Muhammad Hashim, F.C. Had escorted the dead body to D.H.Q. Hospital, Muzaffargarh for autopsy. After the post-mortem examination he produced the last-worn clothes of the deceased before the Investigating Officer. He had also taken sealed parcels to the Office of Chemical Examiner and delivered the same intact. P.W.7 Ghulam Shabbir had deposed about the extra-judicial confession which the appellant had made before him regarding his guilt. The case was investigated by P.W.8 Muhammad Ashraf, S.I. P.W.9 Rasool Bakhsh M.H.C. Had drawn formal F.I.R. On the basis of statement Exh. P.C. On 20-6-1989. At the conclusion of prosecution evidence the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence.
7. It was contended by learned counsel for the appellant that prosecution has miserably failed to bring home the guilt of the appellant. Contended that it is a case where ocular account is not available and the prosecution tried to rely upon the circumstantial evidence which is neither convincing nor natural. The extra judicial confession allegedly made before Bashir Hussain Shah P.W.5 and hereafter before Ghulam Shabbir P.W.7 does not ring true at all. There is nothing on the record to indicate that the appellant chose to make confessional statements within a period of one day before different persons at different places.
' Asserted that the recovery of dead body at the instance of appellant cannot be used as a circumstance against him because he was tried but acquitted of the charge under section 201, P.P.C. Contentions were vehemently opposed by learned counsel for the State as well as the complainant.
8. We have heard learned counsel at length and gone through the evidence with their assistance.
The prosecution in this case has tried to prove the charge of murder against appellant from the circumstantial evidence consisting of the following:--
(i) Recovery of dead body from the shop of the appellant at his instance.
(ii) Recovery of a Shalwar and a Dopatta of the deceased at the instance of the appellant.
(iii) Extra-judicial confession before Bashir Hussain Shah P.W.5 and thereafter before Ghulam Shabbir P.W.7.
9. As far extra-judicial confession is concerned firstly it was made before Bashir Hussain Shah P.W.5.
We have noticed that this witness has not favourably deposed against the appellant. He is mentioned in the F.I.R. As well. According to the first informant, while looking for his daughter he came across Bashir Hussain Shah who informed that she must have been done to death by the appellant. In this view of the background it is hardly natural on the part of the accused to come to him for the purpose of making an extra-judicial confession. It has come in evidence that the witness was not in a position of authority in any manner who could render any assistance/help to the appellant. If the witness was already suspecting the appellant he should have raised an alarm or at least apprehended him when he had come alone but nothing of the sort was done. The witness was not relied upon by the Trial Court as far involvement of the co-accused of the appellant is concerned. The prosecution for reasons best known to it has not produced Fida Hussain who at the relevant time was sitting with this witness. We are of the view that it will not be safe to rely upon uncorfoborated testimony of this witness.
10. Ghulam Shabbir P.W.7 had also deposed that the appellant after a few days of the occurrence came to him when one Allah Ditta was sitting with this witness and made an extra-judicial confession of his guilt of having murdered Mst. Amiran. The witness was put to the test of lengthy cross-examination wherein it came on record that he was working as a labour at brick kiln at Kot Addu. He was not known to the appellant so intimately. He did not enjoy any status in life which could make him in a position where he could render any assistance or help to the appellant. In cross-examination he was confronted with number of improvements which he had made from his statement made earlier before the police. He could not give any explanation regarding the said improvements which only goes to show his interest in the prosecution. It is also unimaginable that an accused within a period of 24 hours would make extra judicial confession before two different persons at different places. This, on the face of it, appears to be a concoction on which reliance cannot be placed.
11. The appellant had got recovered dead body from his shop which was witnessed by Bashir Hussain Shah P.W.5. This witness had already been disbelieved as far his statement regarding the extra judicial confession is concerned. Even if reliance is placed on his statement as for recovery of dead body is concerned, it would establish that the appellant tried to do away with an evidence which could be used in a murder case. In other words, he can be convicted under section 201, P.P.C.
For which he has already been acquitted and no appeal or revision against the said acquittal has been filed. The witness has already been disbelieved regarding extra-judicial confession as well as by the Trial Court qua the involvement of Qasim Shah since acquitted. In these circumstances, without corroboration he cannot be relied upon as far the question of recovery of dead body is concerned.
12. The appellant allegedly while in custody got recovered a Shalwar and a Dopatta. There is no evidence at all to indicate whose Shalwar and Dopatta it was. In the absence of any evidence no finding can be given whether it belonged to the deceased or not. Apart from the evidence already discussed above no other evidence was brought on the file to connect the appellant with the alleged occurrence.
13. For what has been discused above, we are of the view that the prosecution has not been able to prove its case beyond doubt, therefore, the c appeal is accepted, the conviction and sentence of the appellant is set aside and he is acquitted. He shall be released forthwith if not required in any other case. Death sentence is not confirmed.