' The present criminal appeal calls into question the legality and propriety of the judgment dated 6-1-1993, whereby the learned Additional Sessions Judge, Chiniot, had convicted and sentenced each of the appellants under section 302/34, P.P.0 to imprisonment for life with a fine of Rs,10,000 or in the default thereof to undergo further R.I. For two years and under section 201/34, P.P.0 to suffer R.I. For seven years with a fine of Rs,2,000 or in default thereof to further undergo R.I. For six months; with direction that all the sentences shall run concurrently.
2. The brief facts of prosecution case are that on 4-6-1991 the complainant Manzoor alongwith Nazar Muhammad and Nawaz P.Ws. Had gone to see his brother Noora (deceased) who was living with his father-in-law. Sheehan, and asked about him from his wife Mst. Mumtaz; but being not satisfied with her reply, he suspected and adopted a harsh tone, whereupon she disclosed that, with the help of her father Sheehan and other accused namely, Ahmad Yar and Ali Sher, she had murdered Noora five days earlier and buried his dead body in the Dhari, as he used to bring women of bad repute in the house and commit Zina with them in her presence and that on her protest he used to mal-treat her. She had further disclosed that on the next night, they dug out the dead body and threw it in Jhang Branch Canal after cutting its head and arms. Thereafter, the complainant searched out the dead body from Dingro bridge in the area of Police Station Mochiwala with the help of Nazar and Nawaz P. Ws. And after taking it back to his village, got registered the instant case.
3. Noor Muhammad, S.1./Investigating Officer recorded the complaint Exh.PA, forwarded it to the police station and himself went to the spot, prepared injury statement Exh.PJ and inquest report Exh.PH and handed over the dead body to Nazar Hussain constable for post-mortem examination.
He also took into possession the blood-stained earth from the spot vide memo. Exh.PB. On 12-6-1991 he arrested all the four accused and on 16-6-1991 he got recovered Tokka P..1, hatchet P.2 and blood-stained clothes of the deceased Noora P.3/1-5, on the pointing out of Sheehan (since dead), Ahmad Yar and Mst Mumtaz accused, vide memos. Exhs.PC, PD and PE and also prepared the site plans of the places of recovery, Exhs.PC/1,PD/1 and PE/1, respectively. On 19-6-1991 he also got recovered Kulhara P.6 on pointing out of Ali Sher accused vide memo. Exh.PF and prepared the site plan of the place of recovery Exh.PF/1. He got prepared the site plans of the place of occurrence Exhs.PK and K/1 and after completion of the investigation, challaned all the accused.
4. Before the framing of charge, Sheehan accused had died and as such a formal charge was framed against Mst. Mumtaz, Ahmad Yar and Ali Sher accused/appellants under section 302/201/34, P.P.C. To which they did not plead guilty and claimed to be tried.
5. At the trial the prosecution examined as many as ten witnesses to prove its case. P.W.1 Sooba Khan had identified the dead body of Noora deceased at the time of post-mortem examination by scar mark on his neck and eczema marks on the feet, as the dead body was without head. P.W.2 Manzoor was the complainant of the instant case, who reiterated the contents of the complaint Exh.PA. P.W.3 Nazra had corroborated the statement of P.W.2 Manzoor complainant and had deposed that he and Nawaz P.W. Had gone to Manzoor complainant to get money, who had taken them to the house of Sheehan accused (since dead), as he had to get money from his brother Noora and that in their presence Mst. Mumtaz accused confessed having murdered Noora deceased and that they had helped the complainant in search of the dead body. He had further deposed that Mst. Mumtaz and Shaheen accused (since dead) had met him and implored to bring about compromise and that they both had admitted to have committed the murder of Noora deceased. He had further deposed that he had attested the recovery memos. Exhs.PC, PD.PE and PF in respect of the weapons of offence and the blood-stained clothes of the deceased, as the same had taken place in his presence during the investigation. P.W.4 Shahadat had deposed that about 2-1/2 years back he was present in his house alongwith Nazara P.W in Chak No,184/JB when Mst.
Mumtaz and Sheehan accused had come there and confessed to have murdered Noora deceased with the help of Ahmad Yar and Ali Sher accused/appellants. In his cross-examination, he was confronted with his statement under section 161, Cr.P.C. Exh.DB to the effect that he was present in the house of Nazra in Chak No,159/JB when both the abovenamed accused had confessed their guilty, but he had denied having so deposed.
6. P.W.5 Dr. Muzaffer Ahmad had conducted the post-mortem examination on the dead body of Noora on 5-6-1991 and observed the following injuries on his person:-
(1) An incised wound of 6 c.m. x 1 c.m. On front of neck which communicated with another wound that had cut down the neck.
(2) Head and neck had been removed by the later wound and were absent.
(3) Both the arms had been cut down and were absent. This were at the level of top of shoulders.
They were cut very neatly with a fine sharp-edged weapon.
(4) Left leg had also been cut down except a small tag of skin by which it was attached to the remaining body.
(5) Toes of the right foot were also cut down and absent.
' The body was swollen and there was post-mortem regidity. On opening the thorax he found that- tracheia was cut down by injury No,2 and there was no sign of anti-mortem drowning in the lungs.
On opening the abdomen, he found that stomach contained little semi solid food, whereas bladder contained about 50 cc of urine, and rest of the organs were healthy and normal.
' In his opinion injury No,1 was anti-mortem, while the rest were postmortem. Head and neck were absent and might had additional injuries and if so, those might be fatal being on the vital organ.
Only injury No,1 was surrounded by a contusion and there was retraction of tissue and it was not as clean cut as any of the injuries. Although this injury No,1 merges with injury No,2, it was deep down to great vessel resulting in haemorrhage and shock that caused death. According to him probable time between injuries and death was about an hour and between death and post-mortem about two to ten days. He had proved' Exhs.PG and PG/1, the correct carbon copy of his post-mortem report and the diagrams showing location of injuries, respectively, to be in his hand and bear his signature.
7. P.W.6 Ghulam Murtaza constable had received two sealed parcels containing blood-stained earth and the clothes of the deceased from the Moharrir on 29-6-1991 and delivered the same in the office of Chemical Examiner, Lahore on 30-6-1996 intact. P.W.7 Nazar Hussain constable had 'escorted the dead body of Noora deceased for post-mortem examination. P.W.8 Muhammad Rafique, A.S.I./Moharrir had testified having received a sealed parcel containing blood-stained earth from the Investigating Officer on 14-6-1991 and assailed parcel containing blood-stained clothes of the deceased on 16-6-1996 and kept the said parcels in the safe custody in Malkhana.
He further testified having handed over the said parcels to Ghulam Murtaza constable on 29-6- 1996 for onward transmission to the office of Chemical Examiner, Lahore P.W.9 Muhammad Munir Patwari had prepared site plans of the place of occurrence Exhs.PK and PK/1 in the scale of 40 Karams equal to one inch on the direction of police and pointing out of the P.Ws. And had deposed accordingly. P.W. 10 Noor Muhammad, S.I. Was the Investigating Officer in the instant case and he had narrated the details of the investigation. However, in his cross-examination he failed to tell the names of the accused and the number of F.I.R, in connection of which he was present at Beriswala Pull, where he had recorded the complainant of the instant case.
8. In their statements under the provisions of section 342, Cr.P.C. The appellants had denied having made extra-judicial confession before Nazra, Shahadat or Manzoor P.Ws. And also denied having led to the recovery of blood-stained clothes of the deceased or weapons of offence. All of them had also declined to make statement on oath or to produce defence evidence.
9. The learned Trial Court, taking into consideration all the facts and circumstances of the case, had convicted and sentenced the appellants as stated above.
10. The learned counsel for the appellants and the State were heard at length and the reword of the case perused with their assistance.
11. The case against the appellants is based on the following pieces of evidence:-
(i) Extra-judicial confession by the appellants before P.Ws. 2 and 3;
(ii) Recovery of dead body of the deceased Noora from the canal;
(iii) Pointing out the place of occurrence by appellant No,1 Mst. Mumtaz and
(iv) Recovery of the blood-stained clothes of the deceased in pointing of appellant No,1 Mumtaz.
' It may be noted here that the learned Trial Court had rightly disbelieved the recovery of the alleged weapons of offence, i.e, Toka P.1, hatchet P.2 and Kulhara P.6. For cogent reasons stated, and had similarly disbelieved the motive set up by the prosecution. The learned Trial Court had further ruled out of consideration the extra-judicial confession by accepting the objection raised against the same to the effect that it was allegedly made jointly and that, therefore, it was inadmissible in evidence; and had, instead relied upon the extra-judicial confession alleged made by appellant No,1 Mst. Mumtaz on the very day that she had been confronted by the complainant P.W.2 Manzoor, of having murdered Noora deceased alongwith her co-accused namely, Ahmad Yar and Ali Sher, appellants Nos.2 and 3, respectively, and her late father Sheehan, who had expired before the commencement of the trial of the instant case. The learned Trial Court had relied upon the said extra-judicial confession by appellant No,1, Mst. Mumtaz, and had used the same against the other two appellants as well by invoking the provisions of Article 43 of Qanun-e-Shahadat, and further relying upon the authority cited as 1976 PCr.LJ 625, to the effect that the confession made by an accused can be used against the maker and his co-accused. However, as the said extra- judicial confession allegedly made by appellant No,1, Mst Mumtaz before the complainant P.W.2 Manzoor was never put to the other two appellants specifically during their examination under the provisions of section 342, Cr.P.C., therefore, it is hereby held that the same cannot be used against them. As regards, the said extra-judicial confession being used as a piece of prosecution evidence against appellant No,1 Mst. Mumtaz, it is hereby pointed out that by itself it is a weak piece of evidence, especially further taking into consideration that the said alleged extra-judicial confession A does not disclose any detail or manner or mode in which the deceased Noora was done to death and is merely a statement of general nature that had been attributed to appellant No,1 Mst. Mumtaz. Furthermore, that said extra-judicial confession was got out of her by threats and pressure, as is stated by P.W.2 and P.W.3 in their testimony, which further weakens the case of the prosecution, if the said extra-judicial confession is to be the basis of upholding the conviction and sentences awarded to the appellants, specially the said appellant No,
1. This brings the Court to the rest of the prosecution evidence, i.e, the pointing out of the place of occurrence, the recovery of blood-stained clothes of the deceased by appellant No,1, Mst. Mumtaz, and the recovery of the dead body from the canal.
12. To deal with the recovery of the dead body of the deceased Noora, it may be pointed out that the same was recovered from the canal on search by P.W.2 and P.W.3, allegedly on the pointing out of appellant No,1 that they had thrown the dead body in the canal, but neither has it been brought on the record through evidence of any of the P.Ws. As to the precise place pointed out where allegedly the deadbody was thrown in the canal nor any time or date is stated in that respect.
Similarly, mere pointing out the place of occurrence from where the blood-stained earth was alleged to have been recovered or the further allegation to the effect on behalf of the prosecution that the dead body had been buried at the place pointed out by appellant No,1 before the said deadbody had been thrown into the canal, itself fails to prove the charge against the appellants.
Further, notice has been taken of the fact that claim of the prosecution regarding the identification of the dead body is through the testimony of P.W. 1 Sooba Khan, that he had identified the headless body by scar mark on his neck and marks of eczema on the feet, which leaves a great deal to be desired regarding the positive identification of the deadbody beyond doubt. Furthermore, the testimony of the two star witnesses of the prosecution namely, the complainant P.W. 2 Manzoor and P.W.3 Nazar Muhammad, suffers from many contradictions and improvements which further damages the case of the prosecution against the appellants.
13. Pursuant to the above discussion, it is hereby held that the prosecution had failed to prove the charge against the appellants beyond reasonable doubt. Hence, the, present criminal appeal is hereby allowed and the impugned judgment is set aside. Resultantly, the appellants stand acquitted of the offences charged. They shall be released forthwith, if not required to be detained in any I other case.