' This judgment will dispose of Criminal Appeal No,62 of 1989 which was directed against the judgment passed by the learned Additional Sessions Judge, Rahimyar Khan on 27-4-1989 whereby he convicted and sentenced the appellants in case F.I.R. No,121 of 1985 registered at Police Station Kot Samaba under section 302/34, P.P.C. To undergo imprisonment for life with a fine of Rs,10,000 each, in default three years each.
2. The occurrence in this case took place three months prior to the date of registration of the F.I.R. In the area of Mauza Goth Raza, 12 K.M. Towards southern side from P.S. Kot Samaba while the matter was reported to the S.P., Rahimyar Khan by Abdul Raheem P.W., through complaint Exh. P.E. On 21-7- 1985 while the formal F.I.R. Exh. P.E/1 was recorded at 4 p.m. On 23-7-1985.
3. The facts in brief, as narrated in the F.I.R, are that Abdul Ghafoor, deceased in this case alongwith his family was found missing from his house. On inquiry by the complainant (P.W.4) Muhammad Din given up P.W. And Faiz Bakhsh (P.W.12) told him that they had seen Shahzad alias Shadi accused alongwith Bashir Ahmad, Ghulam Sarwar, Muneer Ahmad and Muslim all Jat by caste resident of Goth Raza taking away Mst. Shram accused and the children of Abdul Ghafoor who were being put in a truck forcibly by them while Mst. Shram was sitting on front seat of the truck. In this respect Abdul Rahim, complainant contacted Ghualm Sarwar on the next day and asked him about Ghafoor and his children as to where they had been concealed. Ghulam Sarwar enraged and issued threats to the complainant. On 15-7-1985, the complainant contacted one Makhdoom Sultan Ahmad Shah and a Punchayat was convened at his Bangalow which was participated by Sardar Muhammad Sarfraz Khan (P.W.9), Hafiz Rasool Bakhsh, Dost Muhammad and Doctor Aziz- ur-Rehman (given up P.Ws.). Ghulam Sarwar and Bashir Ahmad in the said Punchayat confessed that they had committed a blunder. They also prayed for time till 20-7-1985 to produce Abdul Ghafoor and his children. On 20-7-1985 again a Punchayat was convened in which Ghulam Sarwar admitted that Abdul Ghafoor had been murdered whereas his daughter Mst.Mukhtiar Bibi was sold away in the area of Sindh. The complainant Abdul Rahim then made the report to the police in which he further contended that Abdul Ghafoor had developed illicit relations with one Mst. Fauzia daughter of Muneer Ahmad and for that reason the family of Muneer Ahmad and Bashir Ahmad nursed grudge against him.
4. After registration of the case and completing all other necessary formalities Syed Imdad Hussain Shah, Inspector (P.W.14) took the investigation in his own hands and arrested Mst. Shram Khatun and Shahzad alias Shadi accused on 20-7-1985. During the course of investigation both the accused confessed their guilt and on 31-71985 Shahzad accused while in police custody pointed out a place in the house of Abdul Ghafoor deceased from where after digging out the land the dead body of Abdul Ghafoor was recovered alongwith last worn clothes which were taken into possession by the I.O. Vide memo. Exhs.P.F. And P.J. Site plan in regard to recovery of dead body and inquest report vide memo. Exh. P. H. Were also prepared. Chhurri was got recovered by Mst.Sharm accused while she was in police custody, was also taken into possession vide memo.
Exh. P.C. Initially the case was registered under section 364, P.P.C. But after confession of the accused the same was converted into a murder case under section 302/34, P.P.C.
5. Prosecution in order to prove its case has produced as many as 14 witnesses in all. Amongst them P.W.13 is Dr. Muhammad Azhar Iqbal and P.W.14 Syed Imdad Hussain Shah, S.H.O. Thereafter the statements of the accused/appellants were recorded under section 342, Cr.P.C.
6. Learned counsel for the appellants after going through the evidence produced by the prosecution and statements of the appellants recorded under section 342, Cr.P.C. Submits that there is delay of 3 months in lodging the F.I.R., without any explanation, that it was an unwitnessed occurrence, that the dead body was decomposed and was not in a position to be identified so the confessional statement of both the appellants which was recorded by the learned trial Court was not in accordance with law because the legal formalities were never complied with. That as far as recovery of Chhurri from Mst. Sharam Mai is concerned, it is most unnatural because there was no need of keeping Chhurri with her for three months. That nothing incriminating was recovered at the instance of Shehzad Munir appellant. He submits that it is a case in which conviction and sentence cannot be maintained.
7. On the other hand learned A.A.-G. Assisted by Mr. Muhammad Akhtar Qureshi, Advocate submits that there is confessional statement of both the appellants which were recorded by the learned Magistrate in accordance with law, that appellant Sharam Mai led to the recovery of Chhurri which was stained with blood. Learned A.A.-G. Submits that there was no previous background of enmity so there was no question of false implication.
8. I have heard the learned counsel for the parties and also have gone through the record. It may be mentioned here that on my query learned A.A.-G. Submits that Mst.Sharam Mai has already undergone her sentence and has been released from Central Jail, Multan on 19-7-1999 after payment of fine, through free legal aid society. It is a sad state of affair because 10 years have passed but this appeal has not been disposed of and particularly in a case of woman, who has ' already undergone her sentence and has been released form Jail. Moreover, her arrest had taken place 3 years prior to her conviction i,e, on 3-7-1985. There is delay of three months in lodging the F.I.R. Without any plausible explanation. There was no eyewitness in this case, so it is an unwitnessed occurrence. As far as confessional statement of the appellants recorded on 3-8-1985 is concerned, it may be noted here that when on 31-7-1985 both the appellants were produced before Sh. Ashfaq P.W.1, they stated that they wanted to make their confessional statement but on the same day the complainant stated before the said learned Magistrate that both the appellants are under pressure and have been maltreated by the police in order to extract the confession and in this regard an application Exh. P.B. Was filed by the complainant and this fact is sufficient to discard the prosecution evidence regarding to the confessional statement of the appellants. As far as recovery of knife (Chhurri) P.7 at the instance of Mst. Sharam Mai is concerned, that was allegedly made on 31-7-1985. Knife (Chhurri) is ordinary weapon, there was no need on. The part of Mst. Sharam Mai to keep the same with her. As far as Shahzad Munir appellant is concerned no weapon of offence was recovered at his pointation except some clothes allegedly belonging to the deceased. Dr. Azhar Iqbal P.W.13 while conducting post-mortem examination on 31-7-1985 did not give any opinion regarding the cause of death of the deceased Abdul Ghafoor. He sent the visceras to the Chemical Examiner who did not detect any poison and no cause of death was given, vide his report Exh. P.K.
9. Keeping in view the above circumstances, I am of the opinion that prosecution has failed to prove its case against the appellants. I accept this appeal and set aside the conviction and sentence awarded to the appellants by the learned trial Court. Shahzad Munir is on bail, he is discharged from his bail bonds.