' ASIF SAEED KHAN KHOSA, J.--- Muhammad Mubeen and Muhammad Aamer appellants were convicted for an offence under section 302/34, P.P.C. Vide judgment, dated 11-9-1999 rendered by the learned Judge, Anti-Terrorism Court No,I, Multan and were sentenced to, death each and to pay a sum of Rs,.1,00,000 each as compensation to the heirs of Mst. Asma Naureen deceased under section 544-A, Cr.P.C. Or in default of payment thereof to suffer simple imprisonment for six months each. Through the same judgment both the appellants were also convicted for an offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and were sentenced to death each. The appellants were also convicted for an offence under section 7(i)(b) of the Anti- Terrorism Act, 1997 and were sentenced to rigorous imprisonment for seven years each and to pay a fine of Rs,25,000 each or in default of payment thereof to undergo further rigorous imprisonment for one year each. The appellant have challenged their convictions and sentences before this Court through the present appeal.
2. The necessary facts giving rise to the present appeal are that sometime during the afternoon of 3-10-1998 Mst. Asma Naureen wife of Ghulam Abbas died in her house situated in Mohallah Kotla Waris Shah, Multan and her dead body was found hanging from a nail in the wall of a room of that house at a time when there was nobody else present in the house. Ghulam Abbas, the husband of the said deceased, informed Ghulam Rasool, A.S.-I. (P.W.1 of Police Station Saddar, Multan regarding the death of his wife through an application (Exh.P.'./ Exh.D.B.) at 6-15 p.m. In the same evening i,e, 3-10-1998 and in the said application it was stated by Ghulam Abbas that his wife had committed suicide. Ghulam Rasool, A.S.-I. (P.W.11) then proceeded to the spot, prepared inquest report (Exh.P.C.) and then sent the dead body to the hospital whereat post-mortem examination (Exh.P.B.) of the said dead body was conducted at 11-00 a.m. On the next day, i,e, 4-10-1998 by Dr. Rashida Sohrwardhi (P.W.5). All these proceedings were carried out in pursuance of proceedings under section 174, Cr.P.C. After three days of the death of Mst. Asma Naureen the matter was reported by Rehmat Ali Shah (P.W.8), a paternal-cousin of the deceased, to the local police through an application (Exh.P.H.) at 6-50 p.m. On 6-10-1998 and then on the basis of that application Muhammad Irshad, S.-I./S.H.O. Recorded a formal F.I.R. Bearing No,404 at Police Station Saddar, Multan for offences under sections 302/34, ,P.P,C. And 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In the said F.I.R. It was asserted by the complainant that he had been informed by Muhammad Hameed (P.W.12) and Irfan Ali (P.W.13) that Muhammad Mubeen and Muhammad Gamer appellants had made a confession before them to the effect that they had committed the murder of Mst. Asma Naureen after committing Zina-bil-Jabr with her one after the other. After registration of the said criminal case both the appellants were arrested by the, local police and they were got medically examined by Dr. Muhammad Bakhsh Chawan (P.W.6) regarding potency, etc. The case was then investigated by Muhammad Irshad, S.-I./S.H.O. And upon completion of investigation a challan was submitted by him before the learned trial Court. At the commencement of the trial a charge under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 302/34, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 was framed against the appellants by the learned trial Court on 11-6-1999 to which they pleaded not guilty and claimed a trial.
3. During the trial the prosecution produced as many as sixteen witnesses in support of its case against the appellants. The medical evidence was provided by Dr. Rashida Sohrwardhi (P.W.5) and Dr. Muhammad Bakhsh Chawan (P.W.6). Rehmat Ali Shah complainant (P.W.8) stated about lodging of the. F.I.R. By him and about receiving information about 'making of extra-judicial confession by the appellants before two witnesses. Muhammad Hameed (P.W.12) and Irfan Ali (P.W.13) deposed about making of extra-judicial confessions by the appellants before them on 3- 10-1998. Ghulam Abbas (P.W.16), the husband of the deceased, stated about his submission of application (Exh.P.J/Exh.D.B.) before Ghulam Rasool, A.S.-I. Regarding suicidal death of his wife.
Ghulam Rasool, A.S.-I. (P.W.11) deposed about the steps taken by him in the, proceedings under section 174, Cr.P.C. After receiving an application in that regard from Ghulam Abbas (P.W.16).
Muhammad Waseem, S.-I./S.H.O. (P.W.15) proved the steps taken by Muhammad Irshad, S.-I./S.H.O.
During the investigation of this case by him as at the stage of the trial the said Investigating Officer had become mentally disabled. The remaining evidence produced by the prosecution was more or less of formal nature.
4. In their statements recorded under section 342, Cr.P.C. The appellants denied the controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
The appellants opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in their defence.
5. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence the present appeal before this Court.
6. We have heard the learned counsel for the appellants as well as the learned counsel for the State and have perused the record with their assistance. In support of this appeal the learned counsel for the appellants. Has maintained that the prosecution's case against the appellants hinges mainly on the alleged extra-judicial confessions made by the appellants before Muhammad Hameed (P.W.12) and Irfan All (P.W.13) but both the said witnesses do not inspire confidence and, thus, the appellants's 'convictions and sentences cannot be maintained. As against that the learned counsel for the State has argued that the prosecution had succeeded in proving the guilt of the appellants to the hilt and this appeal, therefore, merits an outright dismissal.
7. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had indeed failed to prove its case against the appellants beyond reasonable doubt. It is admitted at all hands that Mst. Asma Naureen had died in the afternoon of 3-10-1998 inside her house at a time when her husband Ghulam Abbas was away and in circumstances which had not been witnessed by any of the prosecution witnesses.
The medical evidence shows that some violence had been 'committed upon the deceased before her death but the crucial question in this case is whether it is the appellants and none else who had perpetrated the alleged offence. The deceased's husband namely Ghulam Abbas (P.W.16) had submitted an application before Ghulam Rasool, A.S.-I. (P.W.11) at 6-15 p.m. On 3-10-1998 to the effect that the deceased had committed suicide and, resultantly, proceedings under section 174, Cr.P.C. Were undertaken by the said Police Officer. The inquest report had been prepared by the said Officer during the night of 3-10-1998 and post-mortem examination of the dead body was conducted at 11-00 am. On 4-10-1998. During all these stages the death of the deceased was treated as suicidal and not homicidal. It was only after three days of the said occurrence. i,e, on 6- 10-1998 that for the first time the said death was termed as homicidal when Rehmat Ali Shah complainant (P.W.8) lodged an F.I.R. In that regard and an accusing finger was raised against the present appellants and that too only on the basis of alleged extra-judicial confessions made by them before Muhammad Hameed (P.W.12) and Irfan Ali (P.W.13). Apart from the said piece of evidence no other significant or positive evidence was produced by the prosecution implicating the present appellants in this regard. The husband of the deceased who had initiated proceedings under section 174, Cr.P.C. Was admittedly not an eye-witness of the circumstances wherein the deceased had died and he had consistently maintained before the police that her death was suicidal. However, while appearing before the learned trial Court as P.W.16 he had tried to wriggle out of that stand taken by him before the police and had expressed suspicion against the present appellants but he had, at the same time, admitted making of a statement before Ghulam Rasool, A.S.-I. (P.W.11) on 3-10-1998 regarding suicidal nature of the deceased's death. He had gone on to admit before the learned trial Court that he had made no other statement during the investigation of this case despite his claim that the complainant had informed him about the alleged extra- judicial confessions made by the appellants on 3-10-1998 and despite his suspicion against the appellants in that regard. Rehmat Ali Shah complainant (P.W.8) had also not seen the occurrence himself and the alleged extra-judicial confessions were also not made before him. The prosecution had not set up any motive in this case prompting the appellants to perpetrate the alleged offences against the deceased. Admittedly no incriminatory material or article was recovered from the appellants' custody during the investigation of this case. As regard the medical evidence the same cannot by itself identify the perpetrator of an offence. The bicycle allegedly recovered from the house of a neighbour of the deceased had never been established to be that of any of the present appellants. Thus, in order to prove its case against the appellants the prosecution was left with only the extra-judicial confession allegedly made by the appellants -before Muhammad Hameed (P.W.12) and Irfan Ali (P.W.13) and an attending circumstance that the appellants had statedly been found by some of the witnesses to be present outside the deceased's house on 3-10-1998 in a perplexed state.
8. It is settled law that an extra-judicial confession is a weak type of ", evidence and it is rarely sufficient by itself to maintain a conviction in a I criminal case. In the present case the extra-judicial confession allegedly made by the appellants do not receive any corroboration or support from any other independent material or evidence. In this case the evidence regarding the extra- judicial confessions allegedly made by the appellants is marred by improbabilities and vitiated by downright absurdities rendering the same to be utterly unreliable. The prosecution's case is that sometime in the evening of 3-10-1998 the present appellants had made extra-judicial confession before Muhammad Hameed (P.W.12) and Irfan Ali (P.W.13) who had then informed Rehmat Ali Shah complainant (P.W.8) the same evening regarding the said confessions made by the appellants and thereafter the complainant had at some subsequent stage informed the deceased's husband namely Ghulam Abbas (P.W.16) about the same. Muhammad Hameed (P.W.12) is a maternal-uncle (Khaloo) of the deceased whereas Irfan Ali (P.W.13) is a real brother of the deceased. Rehmat Ali Shah complainant, is a first paternal-cousin (Chachazad) of the deceased and Ghulam Abbas (P.W.16) is the deceased's husband. The time of making of the alleged extra-judicial confessions by the appellants before P.Ws.12 and 13 and the manner wherein P.Ws. 12 and 13 had got together before the said confessions were made before them are matters regarding which P.Ws.12 and 13 had made conflicting statements before the learned trial Court, It is available on the record that P.Ws.12 and 13 as also Rehmat Ali Shah complainant (P.W.8) and Ghulam Abbas (P.W.16) were individually or collectively associated with and were present at the time of preparation of the inquest report, conducting of the post-mortem examination, holding of the funeral and other incidental proceedings between 3-10-1998 and 6-10-1998 but it is strange that they had failed to disclose the alleged factum of making of the said confessions by the appellants to anybody else including the police. The complainant had even failed to disclose the same to his wife when she had asked him about the details regarding the deceased's death. The alleged making of those confessions were rendered extremely doubtful when Muhammad Hameed (P.W.12) had stated before I the learned trial Court that on 4-10-1998, one day after the alleged confessions, Irfan Ali (P.W.13) had informed P.W.12 that the "suspected" the appellants regarding murder of the deceased. Such a. Suspicion expressed by P.W.13 was surely incompatible with the assertion that the appellants had already confessed their guilt before the P.Ws.12 and 13 on 3-10-1998.
Muhammad Hameed (P.W.12) had stated before the learned trial Court in categoric terms that during the investigation of this case he had never gone to the police and he had never made any statement before the police. This had clearly established that he disowned the statement being relied upon by the prosecution to be a statement of this witness made under section 161, Cr.P.C.
Before the Investigating Officer. Thus. This witness had, for all practical purposes, made a statement regarding the alleged extra-judicial confessions for the first time before the learned trial Court and not at any stage before that. Such a belated disclosure by this witness about the only piece of evidence worth any consideration in this case has rendered the statement of this witness to be not worthy of much credence.
9. Adverting to the statement made by Irfan Ali (P.W.13) before the learned trial Court it may be repeated here that Muhammad Hameed (P.W.12) had stated that on 4-10-1998 P.W.13 had expressed a "suspicion" against the appellants. If the appellants had in fact confessed their guilt before P.W.13 on 3-10-998 then such a suspicion entertained by P.W.13 of 4-10-1998 was clearly incompatible with the alleged confessions. This suspicion expressed by P.W.13 on 4-10-1998, thus, casts a heavy cloud of doubt over the factum of the alleged confessions made by the appellants on 3-10-1998. P.W.13 had stated before the learned trial Court that apart from the complainant he had not told anybody else about the making of the said confessions by the appellants. He had further stated that he was associated with the preparation of the inquest report, conducting of the post-mortem examination, receiving of the dead body after the post-mortem examination and the inquiry under section 174, Cr.P.C. Being conducted by Ghulam Rasool, A.S.-I. (P.W.11) but at none of those stages he had informed the police, the deceased's husband, other relatives or,any other respectable regarding the alleged confessions having been made by the appellants before him and that he had made the first disclosure in that regard to the husband of the deceased on 6-10- 1998, i,e, after three days of the making of the alleged confessions by the appellants. As already observed above P.W.13 is the real brother of the deceased and we have found it to be unnatural and unbelievable on his part to have heard confessions of some persons regarding gang-rape of his sister and her murder and still not to have reacted to the same for three long days.
10. The unnatural and unbelievable conduct displayed by the deceased's close relatives like her brother (P.W.13), Khaloo (P.W.12), husband (P.W.16) and paternal-cousin (P.W.8) is such that the claim having been made by all these witnesses regarding the alleged making of extra-judicial confessions by the appellants has become totally unacceptable keeping in view our social attitudes. All these witnesses had claimed to have shared an information regarding gang-rape and murder of their very close relative but they had kept quiet for three days before reporting the matter to the police or informing any other relative in that regard. Such a claim or stand is not only naive but the same can be accepted only with a lump of salt. It has already been observed above that an extra-judicial confession is a weak type of evidence and in the present case it is so weak and shaky that we are constrained to observe that the legs on which it has been made to stand are broken and shattered, if not non-existent.
11. The alleged circumstance that Rehmat Ali Shah complainant (P.W.8) had found the appellants to be present outside the deceased's house in the afternoon of 3-10-1998 in a perplexed state is itself not established through any independent evidence and even otherwise it is by itself too weak a factor or a peg to fasten a findings of guilt of the appellants around it.
12. It may be true that there are certain features of this case which create a suspicion regarding involvement of the appellants in the alleged offences but at the same time it is also available on the record that during the investigation such a suspicion had also been raised against the deceased's husband and others who were also interrogated by the police and detained at the police station. It is trite that suspicion, howsoever, great or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case.
13. For what has been discussed above we have found that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, by extending the benefit of doubt to the appellants this appeal is allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and they are acquitted of the charge. The appellants shall be released from jail forthwith if not required in any other case.