' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,23 of 2000 filed by Muhammad Farooq, appellant Criminal Appeal No, 364 filed by Mst. Ameeran Mai, appellant, and Criminal Appeal No,384 of 2000 filed by Muhammad Siddique, appellant who were convicted and sentenced by the learned Judge Anti-Terrorism Court, Faisalabad Division Faisalabad vide judgment dated 5-1-2000 as under: ' Muhammad Farooq and Muhammad Siddique---Death under section 302(b)34, P.P.C., and also death under section 7 of the Anti-Terrorism Act, 1997 and to pay a fine of Rs,50,000 each and in default 7 years, rigorous imprisonment and also death sentence under section 364-A, P.P.C.
' Mst. Ameeran---Seven years, rigorous imprisonment and to pay a fine of Rs, 50,000, in default 2 rears' rigorous imprisonment under section 201, P.P.C. And also seven years' rigorous imprisonment and to a fine of 50,000 in default two years' rigorous imprisonment under section 7 of the Anti- Terrorism Act, 1997.
' Murder Reference No,49/T of 2000 for confirmation of death sentence or otherwise shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 2-00 p.m. On 9-9-1999 at a distance of one and a half kilometer within the Revenue Estate of Mohallah Chandanwala from Police Station Kotwali District Jhang -while the matter was reported by Muhammad Saleem through written complaint Exh.P.D at 4-45 p.m. At Sadar Chowk and the formal F.I.R. Exh.P.D/1 was recorded by Muhammad Manzoor, A.S.I.
3. Briefly stated the facts of the case are that the complainant is an employee of Dal Factory .Of Malik Muhammad Shafi and his wife Kausar Perveen is employed at Punjab Pilot High School Basti Sultan Noor, Jhang. He has got two daughters and one son. His younger daughter Mst. Shazia Naureen aged about 6/7 years was a student of nursery class in Punjab Pilot High School. On 9-9- 1999 at about 2-00 p.m., Kausar Perveen wife of the complainant and his daughter Mst. Shazia Naureen came back home from the school. Wife of the complainant offered the Zohar prayer.
Meanwhile Shazia Naureen changed her school uniform and went outside for playing. When Shazia did not turn up, search was made. Necessary announcement was also made in the loud-speakers.
Oh receipt of information Muhammad Saleem complainant reached his house. At about 4-00 p.m.
The boys who were playing in the madarassa Riaz-ul-Islam having seen a blood-stained gunny bag near a Pahari Kikar raised alarm upon which he along with Ijaz Hussain and Muhammad Akram and other persons or the mohallah reached the spot where they saw a gunny bag in which the dead body of his daughter Mst. Shazia was lying. They saw sand on her person and burada of wood on her hair. They also saw injuries on some parts of her dead body inflicted by sharp-edged weapon and pointed weapons. Blood was oozing out of the injuries.
4. After registration of the formal F.I.R.Akhtar Ali, Inspector S.H.O. Went to the ground of Madrasa Riaz-ul-Islam along with the complainant and other Police officials, inspected the dead body of Mst. Shazia Naureen (deceased), prepared the injury statement Exh.P.B, inquest report Exh.P.C, prepared the rough site plan Exh.P.P, secured blood-stained earth vide memo. Exh.P.M, also secured a gunny bag P.5 which was stained with human blood vide memo Exh. P. L, recorded the supplementary statement and on 10-10-1999 recorded the statements of ljaz Hussain and Abdul Aziz. On 11-9-1999, and Investigating Officer arrested Farooq and Siddique who pointed -out the place of murder of Mst. Shazia. On 13-9-1999, Farooq led to the recovery of Chhuri P.2 which was taken into possession vide memo. Exh.P.H. He also got recovered Cycle P.3 vide memo. Exh.P.J. On the same day, Muhammad Siddique got recovered Sua P.4 which was taken into possession vide memo. Exh . P. K . Mst. Ameeran was arrested on 22-9-1999. After completion of the investigation, all the three accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 14 witnesses in all, then the learned P.P tendered in evidence reports of the Chemical Examiner and the Serologist, thereafter the case of the prosecution was closed. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. After conclusion of the trial, the appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having read the entire prosecution evidence submits that it was an unwitnessed occurrence, nobody was named in the F.I.R., the complainant did not show any suspicion against anybody, there was no eye-witness in this case, it is a case of circumstantial evidence and in order to make out a false case against the appellants, the evidence of last seen, extra-judicial confession, Wajtakar and recoveries were concocted by the Police in connivance with the complainant. Further submits that the statements of the witnesses are not believable. Adds that the conduct of the witnesses of extra-judicial confession, last seen and Wajtakar is most unnatural. Further adds that in the instant case, two persons have been awarded sentence of death while one has been sentenced to seven years' rigorous imprisonment.
Concluding his submissions, learned counsel for the appellants submits that the prosecution has failed to prove its case against the appellants and they are entitled to acquittal.
7. On the other hand, learned counsel for the complainant submits that there was no previous background of enmity between the parties, it was not a case of false implication, there is no earthly reason to disbelieve the statements of the witnesses, ocular account is not contradicted by the medical evidence and that the prosecution has been successful in proving its case against the appellants.
8. Learned counsel for the State supports the contentions raised by learned counsel for the appellants and does not support the judgment of the learned trial Court.
9. We have heard learned counsel for the parties and have gone through the record. In the instant case, the occurrence had taken place at 2-00 p.m. On 9-9-1999, while the matter was reported to the Police at 5-15 P.M. The same day by Muhammad Saleem, father of Mst. Naureen (deceased) aged about 6/7 years. Nobody was named in the F.I.R. The complainant did not show any suspicion against anybody. First of all, we would take up the evidence of extra-judicial confession which was furnished by Tufail Hussain and Ijaz (P.Ws.8 and 9 respectively) Tufail Hussain P.W. Stated that Mst.
Ameeran told him on 16-9-1999 that her two sons Farooq and Siddique had murdered Mst. Shazia Naureen, she had no concern with this occurrence and that after her sons disclosed to her about the murder, she helped them in putting the dead body in a gunny bag and asked them to throw away the dead body. She further told the witness that the dead body of the deceased was lying in the Bathak as stated by her sons. She further told that her sons threw away the dead body of the deceased outside with her help. According to the witness, Mst. Ameeran requested him that as Saleem father of the deceased was his friend, he should get pardon from him. First of all, it is not believable that a mother would admit' the crime of her sons in such a way because it cannot be expected from a mother. The conduct of Mst. Ameeran appears to be against the nature of a mother. Similarly, the conduct of Tufail Hussain P.W.9 was unnatural because he neither reported the matter to the Police for the complainant on the same day. He admitted in 'cross examination that he went to Police Station on 17-9-1999 and signed his, statement.
' This is also a lie because the statement under section 161, Cr.P.C. Is never signed by the person making the said statement. Next is Ijaz P.W.9. He was a councillor. He stated that on 10-9-1999 in the morning, Muhammad Farooq came to him and asked that he wanted to talk about some very secret and important matter. The witness and Farooq sat down in the Bathak of Ijaz where Farooq admitted that as Muhammad Saleem complainant had falsely charged him with the stealing of money, so he along with his brother Muhammad Siddique had murdered Mst. Shazi Naureen and now they were repenting and for them pardoned may be got from Muhammad Saleem, the complainant. This witness admitted in his cross-examination that he did not hand over Farooq to the Police after he had made a confession before him about the murder and especially in view of the fact that he had already suggested to the Police to join Farooq and Siddique as suspects' in this case. This witness also admitted that his statement was not recorded on 9-9-1999. The conduct of this witness was also unnatural when he himself admitted that he had already suggested to the Police to join Farooq and Siddique as suspects in the case. Apart from the unnatural conduct of the witnesses of extra-judicial confession, A the evidence of extra-judicial confession has been held to be a very weak type of evidence by the superior Courts.
10. The evidence of last seen was furnished by Muhammad Ashraf (P.W.12). He stated that at about 3 P.M on 9-9-1999 he was coming from Darbar Wali Gali. When he entered the ground of Madarassa Riaz ul Islam, he saw Farooq who was holding a handle of bicycle while Siddique was putting his hands on the gunny bag which was on the rear seat of the bicycle. Both the accused went towards the ground along with cycle on which gunny bag was loaded. Then the witness went to his house and slept there. At about 4-30 P.M, he was got woke up and was told that a dead body had been recovered from the ground of Madarassa Riaz ul Islam. After hearing this, the witness went to the said ground where he identified the gunny hag which he had already seen with the accused. This witness made statement before the Police at 5-00 p.m. While the occurrence had taken place at about 3/4.00 p.m. The deceased had got 15/20 injuries on her person. If this witness had seen the gunny bag on the pillion seat of the bicycle then blood must had been oozing out and there must have been a trail from the house of the appellants to the place where the dead body was thrown. We are not going to believe this witness so the evidence of last seen is of no avail to the prosecution.
11. Then the prosecution produced Khair Muhammad (P.W.11). He stated that about one month ago at about 2-30 p.m. He was going in Street No,3 of Chandanwala Mohallah, Farooq and Siddique were taking away forcibly female baby aged about 6/7 years to a house under construction, the minor girl was wearing Shalwar of red colour at that time, after some time he heard the noise and rushed to the ground of Madrassa, Riaz ul Islam and saw a dead body lying in gunny bag and he identified that the dead body was of the same girl to whom he had seen in the company of the accused. This witness in cross-examination stated that his house falls 30/35 yards away from the house of the complainant, he was residing there for the last 22/23 years, Salim complainant resides in that house even before 22/23 years and that he saw the girl but could not recognize 'that the girl was of Salim complainant. It is not believable that when the house of Muhammad Salim the complainant was at a distance of 30/35 yards and he was knowing the family of the complainant very well, the witness could not recognize the minor Shazia in the company of the accused appellants. In cross-examination this witness stated that after seeing accused persons taking away the girl, that is, victim to a house, he went to his house and slept there, after hearing the noise at about 3-30 or 4-00 P.M., he went straight to the ground, the dead body of the girl had been brought out of the gunny bag, Salim and Ijaz were also present there and he immediately told that the girl was being taken away by Farooq and Siddique and that the girl was being forcibly taken towards the house. If this was the situation and Saleem complainant father of the deceased was in the knowledge of the fact told to him by Khair Muhammad P.W.11, then the complainant Saleem should have mentioned the names of Farooq and Siddique in the F.I.R. Because in the next sentence of his cross-examination this witness stated that then Saleem went to the Police to lodge a report. This witness has completely demolished the case of the prosecution rather to prove the case.
12. Now comes the recoveries. The knife was secured vide memo. Exh.P.K recovered on the pointation of Muhammad Siddique, appellant. The witnesses of the recovery were Muhammad Arif and Muhammad Naeem. Muhammad Naeem was not produced while Muhammad Arif was examined as P.W.7. He was not resident of the house near to the place of recovery which was an under construction house. This witness also admitted that at the time of recovery many people of mohallah also collected at the spot. We disbelieve this witness. No independent witness was joined or cited by the prosecution to prove the recovery. The recovery being in clear violation of mandatory provisions of section 103,1c Cr.P.C. Is of no help to the prosecution.
13. Now, we take up the motive. In the F.I.R. It was stated by the complainant that he had no enmity with any person and had also no suspicion on anyone. He in the supplementary statement introduced the motive that a sum of Rs,5,000 was stolen for which he suspected Muhammad Farooq and Siddique, nian was demanded from them, they promised to give the nian after Sawan and Badhon. None of the other prosecution witnesses supported this motive given by the complainant which became the cause of the incident. In other words, except the bald statement of the complainant, no independent corroboration has come on record. So we also disbelieve the motive set up by the complainant in his supplementary statement. The recording of supplementary statement is alien to law. There is no mention of such statement in whole of the Criminal Procedure Code. This trend has been introduced by the Police in order to fill lacunas in the case of the prosecution.
14. The medical evidence was furnished by Dr. Razia Afzal (P.W.1). There were 10 incised wound and injury No,10 was also having 14 to 16 incised wounds in number in the area of 11 c.m. x 7 c.m.
According to the prosecution, this murder had taken place in an under construction house of the appellants. According to site plan Exh.P.F got prepared from the draftsma just adjacent to the house of the appellants is the house of the complainant. Wall is in between these two houses. Then there are houses on northern and eastern side of house of the appellants. According to the prosecution, the occurrence had taken place in broad-daylight. The victim was done to death as per version of the complainant in the house of the appellants while the blood-stained earth according to Exh.P.N was taken into possession from the said house. Had the minor been murdered by the appellants in their under construction house, then the shrieks of the minor must have been heard by the wife of the complainant who was present in the adjacent house or by any other person from the adjacent houses but neithei wife of the complainant nor any other person from the adjoining houses came forward to state that they heard the shrieks of the minor.
15. The motive has been disbelieved, evidence of extrajudicial confession and last seen has been kept out of consideration and the recovery of the Chhuri has also been disbelieved, then nothing is left on the record to award the capital punishment. In a case orcapital punishment evidence must have come from an unimpeachable source and the only inference which the Court could draw is that it were the accused who were charged for the offence- re. This important fact is missing in the instant case.
The net result of the above discussion is that we are of the considered view that the prosecution has not been successful in proving its case against the appellants rather the story of the prosecution is pregnant with doubts, the benefit of which, is to be extended in favour of the accused. While by extending the same benefit to the appellants. We accept the appeals filed by the appellants, set aside the conviction and sentence recorded against them by the learned trial Court. Muhammad Farooq and Muhammad Sithlique appellants are in jail. They shall be released forthwith if no required to be detained in any other case. Their death sentence is not confirmed.
Murder Reference is replied in the negative. Mst. Ameeran is on- bail. Her bail bonds shall stand discharged.