' This judgment will dispose of Criminal Appeal No.37 of 2002 filed by Mst. Farzana Bibi, Mst.. Rehana Bibi, Mst. Rasoolan Bibi and Mst. Asia Bibi and Criminal Appeal No.144 of 2002 filed by Muhammad Munsha, appellants against the judgment dated 14-1-2002 passed by learned Additional Sessions Judge, Sheikhupura whereby all the appellants were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay Rs.30,000 each as compensation, in default six months R.I.
2. Briefly stated the facts of the case are that Noor Muhammad on 22-9-1999 lodged complaint Exh.P.A. To the Police stating therein that his son Muhammad Boota was married With Mst. Rehana Bibi about 10 years back. After some time, Mst. Rehana developed illicit relations with Zahid Pervaiz, Muhammad Boota when came to know, he reprimanded his wife which resulted into hot words between them. Mst. Rehana left the house of Muhammad Boota and went to the house of her sister and her husband at Bula Garhi. After two months, Muhammad Munsha came to house of the complainant. He (Munsha) along with Mst. Rasoolan Bibi, Farzana Bibi and Shahid Maqbool enticed Muhammad Boota to enter into a compromise with Mst. Rehana, his wife. It was further alleged in the complaint that about one month prior to 22-9-1999, Munsha etc. Took his son Boota along with them but Boota did not come back nor his whereabouts were known. The complainant suspected that his son had been murdered.
3. Investigation of the case was taken over by Abdul Hay. A.S.-I. He prepared the site-plan Exh.P.B.
And Exh.P.B./1. Zahid Pervaiz accused led to the recovery of hatchet P.1 which was taken into possession vide memo. Exh.P.C. Similarly, Muhammad Munsha got recovered hatchet which was secured vide memo. Exh.P.E. Mst. Rehana Bibi and Munsha were arrested on 1-10-1999 and 5-10- 1999. Shahid Maqbool accused was also arrested on 5-10-1999. Zahid Pervaiz, Mst. Asia, Mst.
Rasaoolan and Mst. Farzana were taken into custody on 17-10-1999, 2-11-1999, 4-11-1999 and 17-11- 1999. After completion of the investigation, all the five accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 12 witnesses in all. The learned D.D.A.
Tendered in evidence Exh.P.F., report of the Department of Anatomy, K.E.M.C., Lahore and closed the case of prosecution. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication.
5. Learned counsel for the appellants submits that there is unexplained delay of one month in lodging the F.I.R. Further submits that in fact it was an unwitnessed occurrence. Adds that out of two witnesses of last seen, one Manzoor was not produced while Shabbir P.W. Was declared hostile.
Further adds that joint extra-judicial confession is not admissible in evidence and moreso it was made by the accused at one and the same time. In this regard, learned counsel relies upon 2001 PCr.LJ 1877. Argues that according to report Exh.P.F. Which was prepared by Dr. Muhammad Riaz Sheikh, Assistant Professor of K.E.M.C., Lahore who was not produced by the prosecution for the reasons best known to it, the approximate age of the person whose bones were sent for examination was 17-22 years while according to Nikah Nama the deceased Muhammad Boota was married with Mst. Rehana on 14-8-1988 when his age was 22 years, sothe occurrence having taken place in 1999, age of the deceased should have been 33 years. In this way, according to learned counsel, there was conflict between ocular account and the medical evidence. Further argues that nobody had identified the bones to sent for examination to be that of Muhammad Boota, deceased. It is submitted that Zahid Pervaiz to whom the motive was attributed has been acquitted by the trial Court. Learned counsel submits that on the same evidence, Shahid Maqbool and Zahid have been acquitted. Further submits that Mst. Asia and Mst. Rehana were not mentioned as accused who had gone to house of the complainant and took Muhammad Boota with them. Lastly submits that prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal.
6. Learned counsel for the State submits that it was Munsha accused who led to the recovery of bones of the deceased and that witnesses of extra-judicial confession have fully implicated the appellants. As to age of the bones, learned counsel submits that it,may be due to some mistake by the doctor who examined them.
7. I have heard learned counsel for the parties and have gone through the record. According to complainant, except Mst. Rehana and Mst. Asia, the remaining three accused took away the deceased from his house. For one month, the complainant kept silent and then reported the matter to the police without any proper explanation of the delay.
There is no eye-witness in this case. Evidence of last seen was furnished by Manzoor and Shabbir.
The said Manzoor was not produced before the trial Court while Shabbir P.W. Was declared hostile.
The witnesses of extra-judicial confession are Malik Muhammad Idrees and Muhammad Mushtaq, P.Ws.7 and 8. Malik Muhammad Idrees P.W.7 is a school teacher. His house is connected through metalled road with police station which is at a distance of 9 miles but after extra-judicial confession made by the accused, he neither approached the police nor the complainant or anybody in the village when he was related to the complainant though distantly. He told the same confession to the police two days after the occurrence. P.W.7 was neither the Lambardar, nor the person in authority who could have helped the accused making confession before him.
Muhammad Mushtaq P.W.8 disclosed about the confession to the police 12 days after the occurrence. This witness also did not inform either the police or the complainant and took no steps to apprehend the accused. He was also neither the Lambardar of the village or the person in authority who could help the accused. Above all, extra-judicial confession is a weak type of evidence and that joint confession of accused or confession made by accused in the presence of another accused is of no value and no reliance can be placed upon it. Reliance is placed on 1993 SCM R 1378.
' Now, only the evidence of Ghulam Abbas P.W.9 remains in the field. He was witness of recovery of bones of the deceased, taken into possession on the pointation of Muhammad Munsha, appellant.
According to report (Exh.P.E.) with regard to expert opinion of bones of Assistant Professor of Anatoiny of K.E.M.C., Lahore, the approximate age of the deceased whose bones were sent for examination was 17-22 years. Muhammad Boota deceased was married with Mst. Rehana on 14-8- 1988. According to Nikah Nama age of Boota at that time was 22 years. The occurrence had taken place in 1999, so at the time, age of the deceased should be 33 years. The prosecution for the reasons best known to it did not produce the author of report Exh.P.F. #TBS E F #TBE The main accused namely Zahir Pervaiz with whom, according to the complainant, Mst. Rehana had developed intimacy has been acquitted by the trial Court. Idrees P.W.7 had not taken the name of Zahid either in examination-inchief or in cross-examination. Mushtaq P.W.8 though in examination-in-chief named Zahid Pervaiz as accused but during cross-examination denied that Zahid Pervaiz also came alongwith other accused.
It is a case in which life imprisonment has been awarded to the appellants. In such like cases, evidence should be of such quality that it leads the Court to the only conclusion that it was/were only the accused challaned to face the trial, who have committed the offence and- the prosecution is duty bound to produce evidence which is so inter-linked as, to form a continuous chain excluding all hypothesis of innocence of the accused. These facts are missing in the instant case.
' After having gone through the entire prosecution evidence and attending to the submissions made by learned counsel for the -parties, I am of the considered view that the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. Resultantly, both the appeals are accepted, conviction and sentence recorded by trial against appellants is set aside and since all the appellants are on bail, they are discharged from their bail bonds.