' This judgment will dispose of Criminal Appeals No,896 of 1999 filed by Mst.$alqees Begum, Criminal Appeal No,1008 of 2001 filed by Muhammad Ashraf against their conviction, Criminal Appeal No,1066 of 1999 filed by Muhammad Ilyas Baig against acquittal of Muhammad Nadeem etc. And Criminal Revision No,552 of 1999 filed by Muhammad Ilyas for enhancement of ' sentence directed against the judgment dated 26-.8-1999 passed by Sessions Judge/Special Court, Sialkot, whereby the convicted Mst. Balqees Begum under section 364, P.P.C. And sentenced her to 10 years'
R.I. With fine of Rs,50,000 or in default one years' R.I. With benefit of section 382-B, Cr.P.C. He also convicted Muhammad .Ashraf under section 302/34, P.P.C. Read with section 364, P.P.C. And sentenced him to undergo 14 years' R.I. With Diyat amount under section 323, P.P.C. Benefit of section 382-B, Cr.P.C. Was also granted to him, while Muhammad Nadeem and Yaseen accused were acquitted.
2. The brief facts of this case as narrated by Muhammad Ilyas Baig complainant through Exh.P.A, are that he was a police man and he had come to his village on leave and his eldest brother Azad Baig who was an army employee had also come on leave as his wife and children were also living in village. During the absence of her husband Azad Baig, Mst. Balqees appellant had developed illicit relations with Muhammad Ashraf appellant. The deceased forbade her from such activities but she continued her illicit liaison with him and she became adverse to her husband and made a plan with her paramour Muhammad Ashraf and her son Tanveer Baig to kill the deceased. On the day of occurrence i,e, 17-8-1996 at Sehriwela after murdering the deceased had thrown his dead body near the Petrol Pump at Daska Sialkot Road. As the deceased was an army employee, therefore, his dead body was removed to C.M.H. Sialkot Cantt.
3.The police after completing all the necessary formalities proceeded to the spot. Allah Ditta, S.I.
Took blood-stained earth vide memo. Exh.P.E. He also seized bag P.3 belonging to the deceased which was containing P.4 to P.18 and Medico-legal report Exh.P.G recovery memo. Exh.P.F. On 18-8- 1996 the complainant produced Chappal P.1 before him vide memo. Exh.PP. He arrested Mst.
Balqees Begum appellant on 23-8-1996. On 13-9-1996 he arrested Muhammad Ashraf appellant and on his personal search he found letters Mark A to Mark A/8 vide memo. Exh.P.H and on the same day he got recovered iron pipe P.19 vide memo. Exh.P.I. Thereafter, investigation was transferred to CIA Sialkot. On 2-12-1996 the investigation of the case was handed over to Muhammad Nawaz, Inspector Police (C.I.A), who arrested Muhammad Nadeem on 31-7-1997 who produced Serya P.2 vide memo. Exh.P.D. Proceedings under section 87, Cr.P.C. Were initiated against Yaseen accused by him. After completion of investigation the accused were challaned under section 302/34 read with section 364, P.P.C.
3. The prosecution in order to prove its case has produced as many as 13 witnesses including Doctor, Investigating Officers, eyewitnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.L and report of Serologist Exh.P.M learned SSP closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded not guilty and claimed to be tried. Four D.Ws. Were also produced by the defence.
4. Learned counsel for the appellants in support of this appeal submit that it was an un-witnessed occurrence, that Tanvir Baig P.W.The son of the deceased and Balqees Begum appellant was named as one of the co-accused of the present appellant but later on he was cited as an eye- witness. They submit that there is no eye-witnesse in this case. Adds that the story of the prosecution is most improbable. They further submit that conduct of Azam Baig P.W. At the time of abduction of the deceased by the appellant and his co-accused is also unnatural, that story of love letters is also not believable, that merely on extra-judicial confession against the appellants, conviction on such a charge neither can be maintained nor awarded, that an iron pipe recovered on the pointation of Muhammad Ashraf appellant was not stained with blood, that as far as love letters recovered at the time of the arrest of the appellant Muhammad Ashraf is concerned, that is also not worthy to be relied upon, that on the same evidence two co-accused namely Yaseen and Nadeem have been acquitted by the learned trial Court.
6. On the other hand learned counsel for the State assisted by the learned counsel for the complainant who has also filed a revision petition and also an appeal against the acquittal of co- accused submit that the star witness in this case is Tanvir Baig who is son of Mst. Balqees Begum appellant and the deceased, that there was no reason on his part to depose falsely against her real mother. Learned counsel for the 'complainant further submits that in case of circumstantial evidence some pedding is to be made by the Investigating Officer to bring home the guilt of an accused person. Learned State counsel supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. In the instant case the complainant is Ilyas Baig who is the real brother of the deceased. According to the F.I.R. He has mentioned Tanvir Baig the son of the deceased and Balqees Begum appellant as one of the co-accused of the present appellant and the convicted co-accused. I am unable to understand that how his character was changed from an accused to any eyewitness. The abduction in the instant case took place. At about 3-30 a.m. On 17-8-1996 and when the deceased was being taken on the shoulder of Ashraf, Nadeem and Yaseen and was being put in the pickup, this was witnessed by Azam Baig and other, P.Ws. Azam Baig is uncle of the deceased and he did not bother to ask from any of the accused that what had happened with Azad Baig and where he was being taken and why he was being taken. His conduct at the spot is most unnatural. According to the prosecution story some intoxicant was given to the deceased before his abduction from his house but there is no report of Chemical Examiner in' this regard to prove this fact. I am also unable to understand that at the time of abduction of the deceased who was an army employee why he was carrying bag containing different kinds of articles which the police had recovered alongwith his dead body and the same have been mentioned in the recovery memo. Exh.P.F and these are 14 in number. It is not the story of the prosecution that at the time of abduction the deceased was equipped with the above said 14 articles along with a bag of samsunite. This shows the padding on the part of the Investigating Agency. As far as love letters which were purported to have been written by Balqees Begum to Muhammad Ashraf are concerned, there is no report of Hand Writing Expert to prove this fact that these were written by Balqees Begum appellant. Moreover, it does not appeal to reason that .When the appellant Ashraf made an extra-judicial confession before the P.Ws. Why he would get with him so many love letters. It is totally illogical and unbelievable, that the iron pipe recovered on the pointation of Ashraf appellant was not stained with blood. As far as illicit relations between Ashraf and Balqees Begum appellants are concerned, it has been stated by the complainant that many a time he had reprimanded Balqees Begum, even her deceased husband , Azad Baig had also reprimanded in this regard. If this was the position that all the family members were fully aware of illicit relations between Ashraf and Balqees, then why the deceased had not divorced Mst.
Balqees Begum who according to the family members was a woman of bad reputation. There is no eye-witnesses in this case and it was blind murder case. The complainant in this case is a police Constable and the possibility of his using influence or requesting the Investigating Officer to implicate the appellants falsely in this case cannot be ruled out. As far as extra-judicial confession is concerned, it has been held by this Court and the Hon'able Supreme Court of Pakistan that extra- judicial confession is a very weak type of evidence and sentence of capital charge cannot be awarded merely on such type of evidence. Tanvir Baig was a minor and her mother was in Jail and the possibility that his uncle the complainant in this case and other family members while using their influence forced him to make the statement against her mother, cannot be ruled out. It has also come on record that Balqees appellant was having six children from the wedlock of deceased.
The story of the prosecution to my mind is not plausible and convincing one. No independent witness has been produced in this case. Presence of the eye-witnesses of abduction at the time of occurrence i,e, 3-30 a.m. Early in the morning when even Fajjar `Azaan' had not taken place, is also ruled out of the consideration.
8. Having heard the learned counsel for the parties and also going through the evidence on the record, I am not satisfied with the prosecution case as the same is full of doubts and the golden principle of law is that benefit of doubt is always given to the accused person not as a grace but as a matter of right. In this view of the matter, both these appeals are accepted and the conviction and sentence awarded to the appellants is set aside. They are behind the bars, they shall be released forthwith if not required in any other case . The connected Criminal Revision and appeal against acquittal are dismissed.