' Through this appeal Mst. Ghulzar Bibi appellant has called in question the judgment dated 22-9- 1999 rendered by Additional Sessions Judge, Lodhran in case F.I.R. No, 249 of 1997 dated 22-8-1997 registered at Police Station City, Karor Pacca for offences under section 302/34, P.P.C. Whereby the learned trial 'Court convicted the appellant under section 302(b), P.P.C. And sentenced her to life imprisonment. A fine of Rs,20,000 was also imposed on the appellant. In default whereof the appellant was to 50,000 as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased was also imposed on the appellant.
2. Muhammad Azam, P.W. 3 made a statement before Muhammad Kabeer Khan, S.-I./S.H.O., P.W. 12 on 22-8-1997 at about 9-00 p.m. When the latter reached THQ Hospital, Karor Pacca after receiving the information about the occurrence. P.W. 12 recorded the statement of P.W. 3 Exh.P.A and sent the same to the police station. Resultantly, formal F.I.R. No, 249 Exh.P.A/1 was recorded by Syed Akhtar Hussain, HC/P.W.7.
3. It was narrated by P.W. 3, complainant that he was a school teacher in Municipal Committee. On 22-8-1997 at about 11-00 a.m. His son Humad Azam aged four years was playing in the street outside his house. As the child did not return to the house for a considerable time the complainant along with his brothers Muhammad Ajmal, Muhammad Akmal and his father Bashir Ahmad started searching for the child and also arranged announcement in the mosque but could not find the child. At about 8-00 p.m. Jalal Din, P.W. 4 a neighbour of the complainant informed him that two unknown persons threw a bag in front of the door of his house and ran away. Jalal Din and his sons Rafiq and Shafiq checked the bag and discovered that it contained the dead body of Humad Azam son of the complainant. The complainant and his brothers reached the spot and saw that the deceased received various injuries on his body who was taken to the hospital where the medical officer certified the death of Humad Azam. According to the complainant some unknown persons for some unknown reasons had murdered his son.
4. After registration of the cash.; P.W. 12 reached the scene of occurrence and took into possession bag P.2 vide memo. Exh.P.0 attested by Muhammad Azam, P.W. 3 and one Muhammad Ajmal who was not produced.
5. On 29-8-1997 one Javed Bokhari produced a video cassette relating to the tracer dogs which was taken into possession by Raj Ameer, S.H.O., P.W. 13 vide memo. Exh.P.E and was attested by Muhammad Shahid Tabassam who appeared as P.W.
5.
6. The appellant was arrested in this case on 8-9-1997 and allegedly led to the recovery of pair of shoes P3 and a shirt P4 belonging to the deceased from the bedfold lying in the kitchen of her house on 10-9-1997. The same were taken into possession by Muhammad Kabeer, S.-I., P.W.12: vide memo. Exh.P.D attested by Muhammad Azam, P.W.3.
7. After investigation of the case Mst. Gulzar Bibi along with her sister Mst. Shamshad Bibi and father Azeem Bakhsh were sent up to face the trial. However, the learned trial Court acquitted Mst.
Shamshad Bibi and Azeem Bakhsh co-accused.
8. During the trial Liaqat Hussain, P.W.1 and Rasheed Ahmad. P.W.2 furnished the evidence of extra- judicial confession. Dr. Abdul Haq appeared as P.W. 8 and stated about the post-mortem examination. P.W. 4, Jalal Din stated about the discovery of dead body. Muhammad Shahid Tabassam stated about the video relating to tracer dogs. Muhammad Azam, P.W. 3 appeared as complainant and also stated about the recoveries. P.W. 12, Muhammad Kabeer Khan, S.-I./S.H.O.
Stated about the registration of the case and investigation. Similarly Raj Ameer, S.-I./S.H.O., who appeared as P.W. 13 also stated about the investigation of the case. The rest of the witnesses were formal in nature. After the closure of prosecution evidence statement of the appellant was recorded under section 342, Cr. P.C. Who denied the charge and stated that she and her other family members were subjected to immense torture by the police. She further stated that she was innocent and had never made any confession. However, she did not appear as a witness in accordance with section 340 (2), Cr.P.C. Two D.Ws. Were produced during the trial. D.W.1 Muhammad Munawar, DSP stated about the of the writ petition vis-a-vis the arrest of the appellant and her other family members and the torture inflicted on them. Haji Allah Wassaya, D.W. 2 stated about filing of writ petition.
9. The learned counsel for the appellant has argued that no trustworthy evidence was available against the appellant and the learned trial Court has wrongly convicted the appellant on the basis of extra-judicial confession which could not be proved and was believed by the other circumstances of the case as well. On the other hand, the learned counsel appearing on behalf of the State has argued that evidence of extrajudicial confession was fully supported by the recovery, therefore, the conviction was justified.
10. I have heard the learned counsel for the parties at length, have gone through the record of the case as well as the impugned judgment. Admittedly, it was a unwitnessed occurrence and the law was set in motion by P.W. 3 after the discovery of dead body of his child which was allegedly thrown in front of the door of the house of P.W. 4 Jalal Din. The case of the prosecution mainly rests on the statement of Liaqat Hussain, P.W. 1 and Rasheed Ahmad, P.W. 2, before whom allegedly the appellant made confession about the occurrence. P.W. 1, Liaqat Hussain is maternal grandfather of the deceased while P.W. 2, Rasheed Ahmad is grandfather of the deceased. According to their story Azeem Bakhsh father of the appellant had come to their house and invited these witnesses to his house where the appellant and other co-accused Shamshad Bibi were present. Azeem, Baldish narrated the whole incident and asked for pardon. According to these witnesses, on inquiry appellant confessed that she had throttled the deceased as the deceased used to break eggs of her pigeons. The occurrence took place on 22-8-1997 while according to these P.Ws. The appellant made confession on 5-9-1997 about fourteen days after the occurrence. Apparently there was no reason for the father of the appellant to invite these two witnesses to his house so that they may confess the guilt before these two P.Ws. It is strange that Azeem Bakhsh father of the appellant never made confession before these P.Ws. At the first instance. Even otherwise, a father would like to protect his children. These witnesses were duly confronted with their statements under section 161, Cr.P.C. Which were brought on record as Exh.D.A. And D.B. These witnesses admitted that tracer dogs had led to the house of Azeem Bakhsh and also to the kitchen. According to P.W.5 on 29-8- 1997 the services of tracer dogs were hired, who after smelling the recovered bag allegedly led to the house of Azeem Bakhsh and thereafter stood before the kitchen. The video cassette wherein the whole proceedings were recorded was taken into possession by the police on 29-8-1997. It is not believable that the police did not haul up the family members of Azeem Bakhsh on the same date. Azeem Bakhsh lived in his house along with his six sons and daughters. It is on the record that a writ petition was filed on 8-9-1997-wherein it was sated that the whole family of Azeem Bakhsh father of the appellant was being detained at the police station and subjected to merciless torture.
It was also stated in that writ petition (Exh.D.H) that the - family .Of Azeem Bakhsh was being tortured since 29-8-1997. Due to the intervention of this Court the detenus including the appellants were produced before 'this Court on 9-9-1997. The Court observed that the appellant and other family members of Azeem Bakhsh were tortured and, therefore, medical examination of eight persons including the appellant, her sister Mst.Shamshad Bibi and her six brothers was ordered.
Resultantly, the appellant was examined by the Medical Officer on 9-9-1997. According to the report Exh.D.P/1 dated 9-9-1997 relating to the torture of the appellant by the police the appellant received six injuries on her person and the duration of injuries as mentioned in the medical report was from seven to nine days which corroborates the version of the appellant that they were in fact apprehended by the police much earlier than the date of their arrest shown. An inquiry against the delinquent police officers was ordered by this Court. The same was conducted by Muhammad Munawar, D.S.P., D.W.1 who stated that indeed the appellant and her other family members were tortured by the police officials. Considering all the circumstances the story of extra-judicial confession which was introduced on 5-9-1997 for the first time appears to be fabrication and a poly of police to justify the arrest of the appellant and her other family members.
11 According to Dr. Abdul Khaliq, P.W.8 the deceased had ten injuries on his person. Injuries Nos.1, 4, 6, 7, 8, 9 and 10 were post-mortem in nature while injuries Nos.2,. 3 and 5 were anti-mortem.
According to him, the cause of death was injury No,3 which resulted into asphyxia due to throttling.
There is no explanation as to who caused injuries Nos.2 and 5. Injury No,3 was not mentioned in the inquest report Exh.P.G/1. It makes it clear that the medical examination does not support the prosecution case. According to the doctor the time in between the death and the post-mortem was 15 to 21 hours. The death took place at about 8-00 p.m. On 22-8-1997 belying the story of F.I.R.
That the child was alive at 11-00 a.m.
12. The recovery of clothes and shoes belonging to the deceased at the instance of the appellant is also a piece of fabrication. The appellant had been produced before this Court on 9-9-1997 and was sent to judicial lock-up by the order of this Court on l0-9-; ()QT. The appellant was medically examined on 9-9-1997. An order of this Court dated 9-9-1997 reveals that under the order of the Court Mst. Gulzar Bibi was to be kepi iii New Central Jail, Multan in the female ward and not at the police station on the night between 9-9-1997 and 10-9-1997. Even otherwise, it will be an act of sheer stupidity to keeps the clothes of the deceased at her house while the dead body of the deceased was packed in a bag and thrown away. The non-blood-stained shirt and pair of shoes could easily be packed in the same bag or got rid-off. The place from where the alleged recovery had been effected is jointly occupied by father of the appellant and other children, therefore, no importance can be attached to this recovery.
13. P.W.5 has stated that tracer dogs led to the house of Azeem Bakhsh acquitted co-accused and father of the appellant but it has no where been stated that the dogs made any gesture pointing that the appellant or inmates of the house were responsible for the occurrence. It has been noticed that instead of investigating the matter the police advises the complainant party to hire the services of tracer dogs. A huge sum is paid to the owners of such dogs whose evidence is of no value and can be extremely misleading. The Inspector-General of Police, Punjab should take notice of it and instruct the police officials to rely on their skills and training instead of following the leads provided by dogs:
14. The investigation conducted by the police officers in -this case is not only disappointing, but disgusting as well. Firstly, the family of Azeem Bakhsh was arrested and apprehended merely for the reason that tracer dogs led to the house of Azeem Bakhsh, thereafter the whole family was brutally tortured to extract evidence. In civilized society such a procedure cannot be even imagined.. It is like putting a cart in front of bullock. Normally a person could only a arrested when strong reliable incriminating evidence is available against him but in most cases it has been notced that the police arrests the person first and then starts extracting evidence out of the arrested person by way of inflicting torture. In the instant case eight family members of Azeem Bakhsh were tortured by the Investigating Officers. Hardly any reliance can be placed on such like investigation.
15. Co-accused Azeem Bakhsh and Mst. Shamshad Bibi were acquitted by the learned trial Court and the confession to their extent was not believed. There was no reliable strong independent evidence available against the appellant warranting conviction.
16. The prosecution has also failed to prove motive as no independent witness was produced in its support. However, the motive was too weak to be believed. Nobody would murder a child of. Four years for the reason that certain eggs of pigeons were broken by him.
17. For what has been discussed above I am of the firm view that the prosecution case is replete with doubts and the prosecution has miserably failed to prove . It against the appellant.
Resultantly, I allow this appeal, set aside the judgment dated 22-9-1997 passed by the learned trial Court. The appellant is freed acquitted of the charges and would be set forthwith if not required in any other case.