' Iqbal Masih, was convicted under section 302 of the Pakistan Penal Code with a sentence of life imprisonment and a fine of Rs. 1,000 or in default to undergo further rigorous imprisonment for one year by the learned Sessions Judge, Sheikhupura, vide his judgment dated the 12th of April 1975, the subject-matter of this appeal.
2. The incident involving the murder of Mst. Hamidan (deceased) took place on the night between ,7tb/28th of November 1973, inside the house of her husband Arsbad (not produced) in bassi Baluchan due to her elopement with one Noor Elahi as reported to the police by Rehmat (P. W. 11) to Sub-Inspector Syed Khadim Husain Shah (P. W. 12) who recorded his statement (Exh. P. A.) at 2-00 a. m. On the same night in Police Station, Sheikhupura City.
3. It was alleged that Mst. Hamidan had continued illicit relations with Noor Elahi, a local shop keeper, in spite of her marriage with Arshad, a brother of Iqbal Masih appellant. She had eloped with him and returned to her house two or three days prior to this occurrence. The infamy brought to the family of the appellant is said to have led to her murder at the hands of Iqbal Masih appellant, who sneaked into her room after midnight and passing a scarf (Mufler P. 1) around her neck strangulated her to death. Her outcries attracted Rehmat Ali P. W. Bagha, Boota and Dhoonda, who witnessed the occurrence through a window as the outer door of this room was chained from inside. They raised hue and cry which attracted the other Mohallandars as well including Malik Amir Khan (P. W. 5) and Malik Khan Muhammad (P. W. 6) in whose presence Iqbal Masih appellant opened the door and on coming out of the room confessed his guilt saying that he had removed the stigma of ill-repute from his family. He was thereupon secured at the spot and leaving the others to guard him as also the dead body of Mst. Hamidan Rehmat Ali P. We went to the police station and lodged this report.
4. After the registration of the case Sub-Inspector Khadim Husain Shah (P. W. 12) came to the spot and securing blood-stained earth from under the dead body vide Exh. P. C. And the scarf (Mufler P.
1) from the neck of Mst. Hamidan vide Exh. P. D despatched her dead body to the mortuary under the escort of Foot Constables Abdur Rashid (P. W. 9) and Muhammad Younis along with his inquest report (Exh. P. J) and injury statement (Exh. P. K). He thereafter recorded the statements of the above-named witnesses and took into custody lqbal Mull). Appellant. On the next day the Sub- Inspector produced him before Mr. Muhammad Anis Qureshi, then Magistrate 1st Class, Sheikhupura (P. W. 2) for recording his judicial confession vide his application (Exh. P. F.) who after the necessary formalities wrote his statement (Exh. P. F/ 1) which was read back to him and after admittin it to be correct Iqbal Masih appellant thumb-marked the same in token of its correctness.
' The Sub-Inspector then got prepared the site plan (Exh. P. B.) with its duplicate (Exh. P. BR) and after giving his notes in red ink signed the same in token of its correctness.
5. On the 28th of November 1973, at 11-00 a.m., Dr. Anwar-Mohy-udDin (P. W. 1) held autopsy on the dead body of Mst. Hamidan and found the following injuries on it vile Exh. P. H. :-
(1) An abrasion with bruise 21# ss r on the under surface of chin at the left side horizontal in direction.
(2) An abrasion with bruise 2k" x 1" on the under surface of chin at the left side horizontal in direction about 3/4" below Injury No. 1.
(3) An abrasion 1" x oblique in direction situated on the under- surface of chin at the right side at the middle.
(4) An abrasion 1/8" X 1/8" on the front of left knee joint at the middle."
' He further observed that the hyoid bone and tracheal rings had fractured at the upper part. All the injuries were ante-mortem and simple in nature having been caused by blunt weapon and were not sufficient to cause death in the ordinary course of life. In his opinion the death was due to asphyxia in strangulation as it was evident from external and internal post-mortem appearances.
Probable time that elapsed between injuries and death was immediate and between death and post-mortem about 10 hours.
6. After the completion of the investigation he was challaned and during enquiry that followed Rehmat All (P. W. 11), Boota, Shana, Irshad, and Bagha entered the witness-box, but each one of them declined to support the prosecution case. He was, however, committed to the Sessions on the basis of judicial confession (Exh. P. F/1) and the extra-judicial confession made before Malik Amir Khan (P. W. _5) and Malik Khan Muhammad (P. W. 6) with corroboration by the recovery of scarf (Muller P. 1) in their presence, the motive and the medical evidence.
7. At the trial in addition to the above detailed medical evidence the prosecution had relied for its case on the testimony of Muhammad Anis Qureshi (P. W. 2) about the judicial confession (Exh. P.
F./1) recorded by him on request of the police on the 29th of November 1973, Malik Amir Khan (P. W.
5) and Malik Khan Muhammad (P. W. 6) regarding extra-judicia1confession of Iqbal Masih appellant as also the recovery of scarf (Mufier P. 1) in their presence Shana (P. W. 10), father of Mst.
Hamidan (deceased) and Rehmat Ali (P. W. 11), her uncle did endorse her illicit relations with said Noor Elahi, but denied having witnessed her strangulation at the bands of Iqbal Masih appellant or his making any extra-judicial confession before Malik Amir Khan (P. W. 5) or Malik Khan Muhammad (P. W. 6). Learned trial Judge, however, accepted both judicial and extra-judicial confessions as true and voluntary with corroboration by the existence of a motive as also the recovery of scarf Mufler (P. 1) and held him guilty of this murder.
8. This finding has been assailed before me as erroneous after the eye-witnesses had declined to support the prosecution case and had even demolished the alleged extra-judicial confession while the judicial confession was inadmissible in evidence due to non-compliance with legal formalities in recording it.
9. On being taken through the record I am inclined to agree with the contentions of the learned counsel for the appellant as the alleged eyewitnesses, named, in the first information report, namely, Shana (P. W. 10) father of the deceased and Rehmat (P. W. 11) her uncle had declined to lend support to the prosecution case, while Boota, Bhaga, Dhoonda and Irshad were not produced at the trial. The extra-judicial confession made before Malik Amir Khan and Malik Khan Muhammad P. Ws. Did not find mention either in the first information report or the inquest report and to crown all this the applcation of the Investigating Officer dated the 29th of November 1973 (Exh. P. F.) requesting for the recording of the statement of the appellant under section 164, Cr. P. C. Or the application seeking personal remand to police custody of Iqbal Masih appellant thereafter are absolutely silent about any such extra-judicial confession. Anyhow the evidence of Malik Amir Khan and Malik Khan Muhammad P. Ws. About it was emphatically refuted by the complainant Rehmat (P. W. 11) himself, who had even denied their presence at the spot on the eventful night. Even Shana (P. W. 10), the father of the deceased, did not claim to have seen them on that night. Their evidence otherwise did not inspire confidence due to some material discrepancies in their statements which I need not categorise in view of the above vital factors. I have, therefore, to exclude it from consideration. The recovery of scarf (mufier P. 1) from the neck of Mst. Hamidan was also attested by the same witnesses, namely, Malik Amir Khan and Malik Khan Muhammad. I, however, fail to understand why the scarf (P. 1) was at all removed from her neck by the Sub-Inspector as it could easily be included in the list of other articles mentioned in Column No. 22 of the inquest report, it could thus be of no consequence for the decision of this case.
The legal infirmities in the judicial confession (Exh. P. FR) were frankly' admitted by Mr. Muhammad Anis Qureshi Magistrate (P. W. 2) in his own statement at the trial disclosing the presence of Police, Constable who had brought him in his Court, the non-removal of handcuff from his wrist and giving back his custody to the same Foot Constable as also the absence of the requisite certificate at the end of the alleged confessional statement.
It has, therefore, to be discarded resulting in elimination of the entire prosecution evidence. This appeal is accordingly accepted and setting aside his conviction and sentence direct that he shall be set at liberty forthwith, if not required in any other case.