' KH. MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,606 of 1994 filed by Shahid alias Shadoo, who was convicted and sentenced by Judge Special Court for speedy trial on 26-9-1993 for the murder of Razia Bibi to undergo death sentence under section 302-B, P.P.C. He was further convicted under section 10(2) offence of Zina (Enforcement of Hudood) Ordinance, 1979 to undergo 10 years R.I. He was also sentenced to 30 stripes with a fine of Rs,10,000 (ten thousand), in default of payment of fine to undergo R.I. For one year. The amount of compensation under section 302-B, P.P.C., was ordered to be paid to the legal heirs of the deceased.
2. The occurrence in this case took place on 8-2-1993 at 7-15 p.m. In Mohallah Noorpura, near Fish Farm situated at Jandiala Road, Sheikhupura. The complaint Exh.P.E. Was lodged on 9-2-1993 and recorded on 9-2-1993 at 7-25 p.m. By Muhammad Sajjad real brother of Mst. Razia Bibi deceased, examined as P.W.2.
3. Brief facts as narrated by Muhammad Sajjad complainant in the F.I.R., are that he returned to his house on 8-2-1993, at about 7-15 p.m., and learnt that his sister Razia Bibi who was mentally deranged, left the house and went towards Railway line on the call of some person and had not returned. Muhammad Sajjad conducted the search from the vicinity but failed to find out any clue.
He searched for Razia Bibi on the next day also, i,e, 9-2-1993 and found dead body of Razia Bibi in the pond which was to the east of the Fish Farm. Muhammad Sajjad disclosed in the F.I.R., that some unknown person stangulated her to death.
4. Appellant was arrested in this case on 13-2-1993 when he was produced before the Investigating Officer, by Aamar Abbas P.W. In District Courts Sheikhupura. At that time the appellant was wearing Chappal P.4 which was taken into possession vide memo. P.I. It may also be noted here that Shoab Ahmad Inspecor/Investigating Officer examined as P.1 and P.2 of the foot prints and took the same into his possession vide memo. Exh.P.G. The Inspector S.H.O. Also inspected the spot and found one bubble gum chewing-gum P.8 alongwith its cover P.9 and took the same into his possession vide memo. Exh.P.F. On 14-2-1993, the appellant also led to the place where he had committed the murder of the deceased and got recovered a pair of Chappal P.3 which was taken into possession vide memo. Exh.P.H. The appellant was injured from his left leg. The appellant was also medically examined about his potency. The Investigating Officer, had also submitted an application_ Exh.P.U.
For obtaining the semen of the appellant to find out the group for comparison with the group of semen from the swa bs which were taken into possession from the vagina of Mst. Razia Bibi deceased Samples of blood of appellant were also taken by the Doctor for grouping.
5. In order to prove its case the prosecution had produced 13 witnesses in all. Reports of the Chemical Examiner are Exh.P.S. And Exh.P.T. And that of Serologist are Exh.P.U. And Exh.P.U./1. The statement of the appellant under section 342, Cr.P.C., was also recorded. He submitted that he had been falsely implicated as Aamar Abbas P.W. Was inimical towards him due to Election Rivalry.
There is also evidence of extra judicial confession against the appellant in the shape of Rana Aamar Abbas P.W.3, then there is evidence of Allah Ditta P.W.8, tracker, who had compared the moulds with the Chappal allegedly belonged to the appellant and found it to be same.
6. Learned counsel for the appellant after reading the evidence, statement of the appellant under section 342, Cr.P.C., submits that it was an un witnessed occurrence, that there is no direct evidence, that there is no last seen evidence even. That nothing incriminating was recovered on the pointation of the appellant, that the appellant has been falsely implicated in this case due to election Rivalry with Aamar Abbas P.W. He further submits that no case is made out against the appellant. Lastly, he submits that the appellant is entitled to the acquittal.
7. On the other hand, learned counsel for the State submits that the appellant had made extra- judicial confession voluntarily, that there was no question of false implication of the appellant. He submits that the prosecution has proved its case against the appellant beyond and shadow of doubt.
8. We have heard the learned counsel for the parties very carefully and have also gone through the evidence minutely with the assistance of the learned counsel for the parties. Mst. Razia Bibi deceased left her house on 8-2-1993 but the matter was reported to the police on 9-2-1993, wherein nobody was named nor any suspicion was made against any body. Nobody had seen Mst.
Razia Bibi going with the appellant, even nobody had seen the appellant while committing Zina with Mst. Razia Bibi. Moreover, there is no eye-witness, who could state it was the appellant, who had put the 'Dopatta' around her neck and killed her. The evidence of extra judicial confession has always been considered as a very weak type of evidence. It is a case of circumstantial evidence.
Moreover, death sentence has been awarded to the appellant. We have to see whether on this evidence both the sentences awarded to the appellant can be maintained. The evidence in this case is not of such type that death sentence awarded to the appellant by the learned Trial Court should be maintained. The evidence of extra-judicial confession, taking of moulds into possession and the blood grouping is not of such type wherein the conviction can be maintained against the appellant. In our view the prosecution has miserably failed to prove its case against the appellant.
Keeping in view the above circumstances, we accept this appeal and set aside the conviction and sentence awarded to the appellant by the learned Trial Court. The appellant, if not required in any other case, shall be released forthwith.
Death sentence not confirmed. .