This appeal has been directed against the judgment passed by the learned Additional Sessions Judge, Lahore on 7-2-2000 by which he has convicted the appellant under section . 308(2), P.P.C. and sentenced to 10 years' S.I. as Ta'azir and he has also been directed to pay Diyat amount of Rs, 2,56,000 to the legal heirs of deceased and in case of non-payment thereof to remain in jail till its realization. Benefit of section 382-B, Cr.P.C., has been given to the appellant. This conviction has been passed in case F.I.R. No,72 registered on 16-2-1999 at Police Station Allama Iqbal Town, Lahore at 5-00 a.m. on the statement of Muhammad Ramzan P.W. 7 which was recorded by Naseer Ahmad P.W.6 as Exh.P.D. Occurrence of this case took place on 15-2-1999 at 2-00 p.m. at Zarsanga, Bari Studio 1/2 k.m from Illama Iqbal Police Station. Dead body of a woman Zulekha alias Neelam alias Nainan wife of the appellant was found and recovered by the police.
2. Brief facts narrated by Muhammad Ramzan P.W. 7 are that he was the domestic servant of Mst.
Zulekhan wife of the appellant for the last about 4/5 months ago. On 15-2-1999 at about 11-00 a.m.
Muhammad Afzal the husband of Mst. Zulekhan Bibi made a telephone call to his house and he attended the said call, whereupon Rana Muhammad Afzal asked him that he wanted to talk to his wife Mst.Zalekhan Bibi, so she was called and thereafter Muhammad Afzal talked with her. Mst.
Zulekhan Bibi told him that her husband had called her and she was going to him and he should take care of the minor daughter and she would be coming back soon. Zulekhan Bibi did not come back during the whole night and he kept on waiting. At 5-00 a.m. on 16-2-1999, Rana Muhammad Afzal came and asked him to lock the house and accompany him. He asked Rana Muhammad Afzal about Zulekhan and he replied that he would let him know the whole thing. He accordingly locked the house, handed over the keys to Muhammad Afzal and Rana Muhammad Afzal took his minor daughter Kanwal Moheen, alias Chand, aged 4 years and the complainant with him in his car and took them to the house of his first wife in Rehmanpura. The accused informed him at Rehmanpura that on the previous day at 2-00 p.m., he had strangulated Mst. Zulekhan Bibi to death in her office at Bari Studio due to her bad habits and had huddled up her dead body in her Chadar by tying her dead body. The complainant alongwith local police came to the spot and Rana Muhammad Afzal had opened the door of the store by applying the key and the dead body of Zulekhan tied up in a bundle had been recovered. After recording of this statement dead body was sent t. mortuary for the purpose of post-mortem examination. The appellant was arrested on 2-9-1999 an after completion of the investigation the challan was submitted.
3. Learned Trial Court framed charge under section . 302, P.P.C. against the appellant which was denied by the appellant and he claimed to be tried. The prosecution in order to prove the guilt of the accused produced 9 witnesses. Ch. Hamiddun Chishti, the Draftsman P.W. 1 prepared the site- plan, Ijaz Ahmad, A.S.I., P.W.2 delivered the parcels at Police Station P.W.3 Anwar Ahmad. Constable is recovery witness of the dead body. P.W.4 Muhammad Naeem is witness of extra Judicial Confession P W 5 Rana Muhammad Latif, Inspector Legal, is also witness of extra-judicial confession. P.W.6 recorded the tormal F.I.R. . P.W.7 is the complainant, P. W.8 had conducted the post-mortem examination. P.W 9 is the Investigating Officer. After the conclusion of the prosecution evidence, statement of appellant under section 342. Cr P.C. was recorded in which he denied the allegation. He did not appear in his defence nor he produced ,any defence evidence.
Afterconclusion of the trial and after hearing learned counsel for the parties the impugned judgment has been passed which is being assailed through this appeal.
4. Learned counsel for the appellant contends that it is a case of no evidence and extra-judicial confession according to the prosecution was made before Muhammad Naeem who is public witness but was declared hostile. Similarly complainant has not supported the prosecution version while appearing P.W.7 and was declared as hostile. It is further contended that prosecution has miserably failed to prove the case against him. It is further contended that nothing was recovered from the appellant and there are material contradictions in the statements of the prosecution witnesses. F.I.R. was gotlodged by P.W.7 Muhammad Ramzan complainant and according to him the appellant was accompanying him at the time of recovery of the dead body and registration of the case but he was not arrested by the police and arrest was subsequently shown on 22-24999 in spite of the fact that P.W.2 and other witnesses stated that appellant was arrested even before the day on which his arrest has been shown. It is further contended that Rana Latif is the only witness against the appellant before, whom extra-judicial confession has been allegedly made. He has been confronted on material points and his statement cannot be taken into consideration for the conviction of the appellant as being the police official. Any confessional statement made before him has got no evidentiary value.
5. Learned State counsel has opposed this appeal on the ground that 9 prosecution witnesses have fully supported the prosecution case and prosecution has proved its case beyond any reasonable doubt. Contradictions are minor and natural due to the elapse of time between recording of the statement before the learned Trial Court and earlier incident. String by which the deceased was strangulated and the shoes have been recovered from the spot. Motive is also proved. Post-mortem report fully supports the prosecution case.
6. I have heard the arguments of the learned counsel for the parties and also perused the record of this case. Admittedly there is no eye-witness, of the occurrence. The prosecution evidence is based on the circumstantial evidence. In this case the only evidence collected by the police was the recovery of dead body from the spot, and extra-judicial confession which consists of the statements of Muhammad Naeem P.W.4 and Rana Muhammad Latif P.W.5 and P.W.7 Muhammad Ramzan complainant. Muhammad Naeem P.W.4 and Muhammad Ramzan p.W.7 complainant have been declared as hostile witnesses and they have not supported the proseeution evidence even to the extent of making of extra-judicial confession by the appellant before them. The only statement of Rana Muhammad Latif who is S.I. in Police is supporting this piece of evidence on the face of it which alone is not sufficient to hold that the appellant had made any extra-judicial confession because Rana Muhammad Latif admittedly is S.I. Police and is posted in the office of S.P.
There was no cause to make any extrajudicial confession before him by the appellant as he was not previously known to him and the statement made before the police official is inadmissible in evidence hence this statement cannot be given any fate. The other evidence collected by the police during the investigation was that dead body was recovered from the room of Bari Studio.
According to the F.I.R. got recorded by P.W.7 the appellant was also accompanying alongwith police officials when the dead body was recovered and the statement under section 154, Cr.P.C. was recorded and the complainant therein had stated about the extra-judicial confession made by the appellant but police did not arrest him for the reasons best known to them and he was arrested on 22-2-1999. On the other hand P.W.2; has stated that the appellant had already been arrested. Similarly other P.Ws. also state about the arrest of the appellant before 22-2-1999. Even the evidence by excluding the extrajudicial confession is accepted, no case is made out against the appellant because the other witnesses are formal in nature and no cogent evidence is available on the record to connect the appellant with the commission of the crime. The prosecution has failed to prove the case against the appellant beyond any reasonable doubt. In such circumstances, the judgment is not sustainable and is set aside. The appeal is accepted. The appellant is thus acquitted of the charge by extending the benefit of doubt in his favour. He shall be released forthwith, if not required in any other case.