' Instant appeal is directed against the judgment dated 27-6-1991 passed by Malik Dost Muhammad Khimta, Additional Sessions Judge, Rawalpindi, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to life imprisonment and a fine of Rs,20,000 or in default to undergo R.I. For one year. He further directed that half amount of the fine, if recovered, shall be paid to the legal heirs of the deceased. He further extended benefit of section 382-B, Cr.P.C.
To the appellant.
2. Briefly stated the facts are that Mst. Nasreen Akhtar was married with Muhammad Masood appellant. As a result of their marriage, one son was born who was alive at the time of alleged occurrence and Mst. Nasreen Akhtar deceased was again pregnant at that time. On 17-3-1990 at about 9-00 a.m., his uncle Kamal Khan informed him about the death of his sister Mst. Nasreen Akhtar. On receipt of said information, he alongwith Mst. Gulsher Bibi and Mst. Shahzeera Khatoon left for the house of accused. He found that dead body of his sister was lying on a cot and she had some bluish marks on her neck. He enquired from the appellant if she had been murdered or died her natural death. He (complainant) was informed by the appellant that he had done his job and he (complainant) could do whatever he thought fit. He stated that motive behind this occurrence was the strained relations of the appellant with the deceased who was not allowed to see her parents. He then went to the police station and lodged F.I.R. Exh. P.C. After usual investigation the case was sent up for trial.
3. A charge under section 302, P.P.C. Was framed against the appellant to which he pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused, prosecution examined Habib Ullah Head Constable (P.W.1), Raja Naseer Ahmad (P.W.2), Sardar Ali Constable (P.W.3), Muhammad Mehboob (P.W.4), Mst. Shahzeera Khatoon (P.W.5), Raja Muhammad Ajaib (P.W.6), Dr. Sajid Hussain Raja (P.W.7), Abdul Rashid Razi M.I.C., Rawalpindi (P.W.8), Raja Abdul Ghafoor A.S.I. (P.W.9) and Haseen Husain Shah M.M.P.I. (P.W.10). Thereafter, the learned Deputy District Attorney close a prosecution evidence vide his statement dated 22-5-1991.
5. When examined under section 342, Cr.P.C. The accused/appellant denied the prosecution version and stated that he had been implicated in this case falsely. In reply to question No,8 as to why the case had been registered against him and why the P.Ws. Had deposed against him, he replied as follows: "I have been falsely implicated in the occurrence due to enmity with my in laws. I had gone to the house of my maternal uncle situated in village Dhuraian since 15-3-1990. I received information about death of my wife in the said village on 17-3-1990. I was not present in my house on the night of occurrence. While coming back on 17-3-1990 for my village, the police arrested me at Kahuta on 17-3-1990. The police constantly tortured me from the time of my arrest up to 22-3-1990 asking me for confession. I was produced before the Assistant Commissioner for this purpose on 22-3-1990 where I refused to confess my alleged involvement. The police detained me in illegal confinement from 17-3-1990 to 22-3-1990. On coming to know that I have declined statement under section 364, Cr.P.C., the police obtained my physical remand on 22-3-1990 and again tortured me throughout up to 25-3-1990. I was out of senses due to torture and I was produced in the Court with Haseeb Husain Shah, P.W, who dictated the statement on my behalf and the Magistrate P.W. Directed me to sign the same. I do not know contents of the alleged confessional statement. This statement was not read over to me after having been recorded. When I recovered from after effects of my torture while in the jail, 1 moved several applications to Senior Police Officials and the District and Sessions Judge, Rawalpindi, wherein I intimated that my alleged statement has been procured under coercion. 1 remained in custody throughout and I could trace out application dated 19-5-1990 moved to the District and Sessions Judge, Rawalpindi. I produced its certified copy Exh.D.A. In defence.
' Mst. Shahzeera P.W. Is wife of Ghulam Mustafa who is brother of the deceased. We had strained relations with each others and we were not on visiting terms. Mst. Shahzeera P.W. Never visited my house and the deceased never went to see her parents and brothers. About five or six months before the occurrence, Pervaiz son of sister of Ghulam Mustafa alongwith his two uncle namely Naseer Ahmad and Zaheer Ahmad committed murderous assault upon me and I got injured. The said occurrence was registered at Police Station, Kahuta and the trial is still pending. I produced Exh.D.B. Which is attested copy of the F.I.R."
' He did not examine himself under section 340(2), Cr.P.C. But produced documents Exhs. D.A. And D.B.
6. After going through the evidence produced by the prosecution and hearing learned counsel for the parties, the trial Court convicted and sentenced the appellant vide judgment under appeal.
7. Arguments have been heard and record perused.
8. Contention of learned counsel for the appellant is that the impugned judgment is primarily based on confessional statement Exh.P.G./2-3 of the appellant as well as medical evidence that there is no ocular version of the alleged occurrence as it is an unseen occurrence, that confessional statement Exh.P.G./2-3 has got no sanctity in the eyes of law as it is not evident that the same had been recorded after removing the handcuffs of the appellant, that as per application Exh.P.G. Appellant was arrested on 21-3-1990 and was produced for his confessional statement on 22-3-1990, that confessional statement was not recorded on 22-3-1990 and the same was recorded on 25-3-1990, that this fact is sufficient to prove that the alleged confessional statement is the result of coercion, that as per application Exh.P.G. He was arrested on 21-3-1990, but this contention stands falsified by the admissions of P.Ws. 4 and 5 who have admitted that appellant was arrested on 17-3-1990, that this discrepancy in the prosecution version also lends support to the defence stand that confessional statement was extracted by applying third degree methods, that enmity had been existing between the parties as is evident from F.I.R. Exh.D.B. Lodged by him against the nephews of the complainant, that there being no ocular evidence available on record and confessional statement being the result of undue influence and coercion, prosecution has failed to prove its case against the appellant. He thus urged that appeal may be accepted and he may be acquitted.
9. Conversely, the impugned judgment has been supported by learned counsel for the State.
10. Now let us analyse and scan the evidence and see if prosecution has succeeded in proving its case Admittedly, none had seen the accused/appellant committing the murder of the deceased and as such there is no ocular account of the occurrence. As there is no oral evidence to connect the appellant with the commission of this offence, so the trial Court has placed reliance upon confessional statement Exh.P.G./2-3 of the appellant recorded on 25-3-1990. It is also fact that the accused/appellant was produced before the Magistrate on 22-3-1990 for recording statement under section 364, Cr.P.C., as is evidence from application Exh.P.G. As well as from cross- examination of P.W.10 Haseeb Hussain Shah, M.M.P.I./ Investigating Officer. He (P.W.10) admitted that he had moved two applications on 22-3-1990, one for recording statement under section 364, Cr.P.C. And the other for obtaining his remand. The mere fact that two applications were moved clearly tells upon bona fide of the Investigating Officer. It appears that Investigating Officer was not sure that accused/appellant would be willing to record his confessional statement, that is why he also moved another application for obtaining his remand. It is fact that confessional statement was not recorded on 22-3-1990 and the same was recorded on B 25-3-1990. The accused/appellant has resiled from his alleged confessional statement while recording his statement under section 342, Cr.P.C. And has termed the said statement to be result of torture, undue influence and coercion on the part of the Investigating Officer. Under these circumstances, it is highly unsafe to rely upon said confessional statement. If confessional statement is taken out of consideration, there remains no evidence to connect the appellant with the commission of this offence.
11. The upshot of the above discussion is that prosecution has failed to bring home guilt to accused/appellant. Accordingly, appeal is accepted. The impugned judgment is set aside and the appellant is hereby acquitted. He is present on hail. His bail bonds stand discharged.