KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Murder Reference No,292/T of 1999 and Criminal Appeal No,880 of 1999 filed by Muhammad Nazim, appellant who was convicted and sentenced for committing Zina-bil-Jabr and Qatl-e-Amd of Mst. Sumaira by Judge, Anti-Terrorism Court, Faisalabad vide his judgment, dated 29-71999 as under:-- Under section 302(b), P.P.C.
Under section 7 of the Anti- Terrorism Act, 1997 Under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979Death Death with a fine of Rupees one lac and in default to 7 years' R.I.
Life imprisonment
2. Occurrence in this case had taken place at 11 a.m. On 11-11-1998 within the revenue estate of Chak No,247/RB at a distance of 13 kilometres from Police Station Dijkot District Faislabad while the matter was reported to the police by Muhammad Khalid (P.W.4) at 9-15 a.m. On 12-11-1998 vide complaint Exh.P.G. And the formal F.I.R. Exh.P.G./1 was recorded by Ikhlaq Hussain, Muharrir, (P.W.11) on the same day at 9-50 a.m.
3. Brief facts of the case are that Mst. Sumaira aged 7/8 years on 11-11-1998 at about 11 a.m. Went outside the house in the street for playing but did not return back till evening. Complainant searched for his daughter and made announcement through loud speakers for four times with short intervals. She was not available and complainant spent the night worriedly. On the following day in the morning, Shahid (brother) and Talib Hussain (father) again searched for Sumaira. When the complainant alongwith his father and brother reached Killa No,19 of Square No,17, they found the dead body of Sumaira in the sugarcane field. Her Shalwar was removed and was gagged in her mouth. Mst. Sumaira was murdered after committing Zina-bil-Jabr.
4. After registration of the formal F.I.R., Muhammad Yaseen (P. W.13) went to the place of occurrence, prepared the injury statement Exh.P.C. Inquest report, Exh.P.G. Of Sumaira deceased, recorded statements of the P.Ws., took into possession the last-worn clothes of the deceased vide memo. Exh.P.K. And then the investigation was transferred to Mehar Taj, S.-I./S.H.O., who arrested the appellant on J9-11-1998 who while in police custody led to the recovery of nail-cutter P.1 which was taken into possession vide memo. Exh.P.F. After receipt of the report of Chemical Examiner about the swa bs, Article 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was also added. After completion of the investigation, appellant was challaned to face the trial.
5. Prosecution in order to prove its case produced 14 witnesses in all. Thereafter, learned Deputy District Attorney tendered in evidence report of the Chemical Examiner Exh.P.A. According to which, swa bs taken from vigina of the deceased, were stained with semen. Then statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded innocence and claimed false implication.
6. Learned counsel for the appellant has read before us the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And submits that it is a case of no evidence; it was an unwitnessed occurrence; it was a blind murder; there is evidence of only extra-judicial confession coming from the mouth of Muhammad Akram (P.W.7) real maternal-uncle of the deceased and Muhammad Afzal (P.W:8) a close relative of the complainant party which is unnatural and not convincing and that the appellant had been made a scape-goat as the Prime Minister had gone or had to come to Visit Faisalabad and the police in order to show its efficiency, without any evidence, material or basis, involved the appellant. Further, submits that the nail-cutter allegedly recovered on the pointation of the appellant was not stained with blood. Learned counsel lastly submits that there is no evidence on record to connect the appellant with the commission of the offence.
7. On the other hand, learned counsel for the State submits that there was no question of false implication or to falsely implicate the appellant. He supports the judgment of trial Court.
8. We have heard learned counsel for parties and have gone through the evidence recorded by the learned trial Court. In the instant case, according to F.I.R., occurrence took place on 11-11-1998 at 11 a.m. While the matter was reported to the police on 12-11-1998 after recovery of dead body of Mst.
Sumaira, daughter of the complainant. Nobody was named in the F.I.R. No suspicion was shown against any person whatsoever. Appellant was arrested on 19-11-1998 by Mehar Taj, S.H.O., who was not produced by the prosecution. It was an unseen occurrence. Only evidence against the appellant was that of extra-judicial confession furnished by Muhammad Akram (P.W.7) real maternal-uncle of the deceased and Muhammad Afzal (P.W.8) a close relative of the complainant party. A perusal of their statements shows that appellant met them at Ada Dasooha and told them that he had committed Ziadati with Mst. Sumaira and requested them to get him pardoned from Khalid, father of the deceased. It is astonishing to note that both these witnesses did not apprehend the appellant there and then and produced before the police, rather both the witnesses had stated that appellant,was being taken to police station but he ran away. If the appellant had come to both these witnesses in order to get him pardoned from the complainant, then there was no reason for his running away. Both these witnesses also did not go to police to tell about the extra-judicial confession of the appellant made before them. Muhammad Akram (P.W.7) is aged 30 years while Muhammad Afzal (P.W.8) is aged 50 years. Appellant was aged 16/17 years. It does not appeal to reasons that a boy of 16/17 years would be able to made his escape good from the two persons having good physique, one P.W.7 being real maternal-uncle of the victim. So, we do not believe the evidence of extra-judicial confession.
As regards of recovery of nail-cutter P.1 is concerned that was not stained with blood, according to report of the Chemical Examiner.
Nobody had seen the appellant committing rape with Mst. Sumaira or giving her injuries with nail cutter. We are mindful of the fact that a minor girl of 7/8 years was raped and done to death but we also cannot be oblivious of the fact that we cannot hang a person unless there is sufficient evidence in this regard having come from an unimpeachable source to connect the accused with the commission of offence. It may also be noted here that after arrest, appellant was taken to the house of Farooq M.N.A. By the Investigating Officer, who had nothing to do with the case. It has also come on record that the Prime Minister after hearing the news of rape and murder of the minor Sumaira had to visit Faisalabad, so the possibility of appellant being made a scape-goat cannot be ruled out.
Taking into consideration the over all facts and circumstances of the case and the evidence brought on record, we are of the considered opinion that the prosecution had failed to prove its case against the appellant beyond any shadow of doubt. So, while accepting the appeal we set aside the conviction and sentence recorded against the appellant by the learned trial Court.
Appellant is in jail and he shall be released forthwith if not required to be detained in any other case. Murder Reference is answered in the negative.
Death sentences is not confirmed.