1. Appellants Muhammad Munir and Mst. Mumtaz stand convicted vide judgment dated 30-11-2001 passed by learned Additional Sessions Judge Karachi (East) Judicial Complex, in Sessions Case No,299 of 1995, for committing offence punishable under section 302(b), P.P.C. And thereby have been sentenced to suffer life imprisonment and to pay fine of Rs,10,000 each, or in default thereof to further suffer R.I. Imprisonment for one year, benefit under section 382, Cr.P.C. Was extended to the appellants. Both appellants have filed present two Jail Appeals against the said judgment. I have heard Mr. Mehmood A. Qureshi Advocate for the appellants and Mr. Habib-ur-Rasheed for the State. Prosecution story, is to the effect that complainant Abdul Ghafoor lodged F.I.R. Bearing No,85 of 1995 at Police Station Taimoria, Karachi, stating therein that his real brother, namely, Parvana Khan, then aged about 60 years, was working as a Gardner in the Board Office, Homeopathic College Karachi, and on 7-4-1995 he left his house by informing the complainant that he was leaving to work in the bungalow wherein he was working as a gardener but then did not return back till late hours, and then his motorcycle was found from village Khundo within the jurisdiction of Police Station North Nazimabad; police registered such F.I.R. And then investigation was carried out during which accused/appellant Mst. Mumtaz allegedly pointed out the place inside the bungalow, owned by one Akhlaque Ahmed, where the dead body of deceased Parwana Khan was allegedly buried by her and by her husband (co-accused Muhammad Munir); S.H.O. Prepared its Mushirnama. The S.H.O. Then produced appellant Mst. Mumtaz before Mr.Inayatullah Judicial Magistrate Karachi West on 25-4-1995 with a request to record her confessional statement under section 164, Cr.P.C.; who recorded such confessional statement of the said appellant wherein she stated to the effect that she, alongwith her husband namely co-accused Muhamamd Munir, were residing in the above stated bungalow (owned by Akhlaq Ahmed) wherein she was serving since about one year, before the date of incident, while her husband (appellant Muhammad Munir) used to go out to earn as a labourer; deceased Parwana Khan was working as a gardner in the said bungalow, employed by its owner to maintain the lawn/garden thereof, that the deceased had been insisting/compelling her to have illicit terms with him since sometime before the date of incident, but she had been resisting the same and, instead, narrated such facts to her husband (viz. The co- appellant); she further Stated that on the day of incident, after the deceased went to the said bungalow to work therein and while her husband was sleeping inside the house in the other room, at about 4-00 p.m. She prepared a cup of tea for the deceased and served the same to him; but the deceased allegedly embraced her whereupon she gave a push to throw him back; on such commotion, her husband came from the room of the house, duly armed with Gaintee (Teekam), an instrument to dig the earth, and gave blow of the same on the head of the deceased, who thereby sustained injury and fell down; appellant Muhammad Munir inflicted four blows with the same on the head and back of the deceased, and then she also took the "Gaintee' from her husband and inflicted blow thereof on the head and neck of the deceased; blood came out of the injuries and he succumbed to the same after about 15-20 minutes, and died. She further stated in the said confessional statement that under such circumstances, she and her husband dragged the dead body towards the bath room of the house and kept it therein till 2-00 a.m., whereafter they both dug up the earth at the backside of the room of the house and buried the same (by wrapping it with a bed-sheet) together with his plastic chapals. On the fifth day, brother of the deceased went to the said bungalow to know the whereabouts of the deceased, but appellant Mst. Mumtaz did not disclose anything to him; and then police officials visited the said bungalow of the place of incident and arrested the appellants "under suspicion"; she further stated that owner of the bungalow did not visit the said bungalow during those days and they were residing therein all alone and that she also produced the "Gaintee" before the police officials with which they both inflicted injuries on the person of the deceased. After completing the investigation, police sent up both the appellants to the Court for trial. Learned trial Court framed the charge against them on 28-4-1995 for committing the murder of the said deceased to which both pleaded not guilty and claimed to be tried. In support of its case prosecution examined complainant Abdul Ghafoor, who deposed to the effect that his brother deceased Parwana Khan had left the house on his motorcycle, stating that he wanted to go to work in the bungalow of place of incident, but did not return back till late in the night, and he went in search for him, and then lodged such F.I.R. At the police station, under the apprehension that the deceased might have been kidnapped with intention to murder him; he further deposed that police made him as Mushir of the place of burial of the dead body of his brother, and inspection of the dead body, and for making personal search of accused/appellant Mst. Mumtaz, and that after concerned Medical Officer conducted post-mortem examination over the dead body of his deceased brother Parwana Khan, it was handed over to him. P.W.2. Bahadur Khan, examined by the prosecution, deposed that appellant Mst. Mumtaz while being in police custody, having handcuffs, pointed out the place to the police officials, where she had concealed the crime weapon of this incident, namely, "Gaintee" alongwith one polythene bag contained the National Identify Card and Domicile Certificate of her husband viz. Appellant Muhammad Munir, which were secured by the Investigation Officer, and then the police party returned back to the police station. P.W. Kalay Khan deposed that the complainant Abdul Ghafoor had reported that his brother Parwana Khan was missing and that such entry was made in the Roznamcha of P.S. Taimoria, which was produced by him in the evidence.
2. S.H.O. Ali Yar Khan deposed before the trial Court that after the F.I.R. Of this incident was registered by S.I.P. Saqlain at the instance of complainant Abdul Ghafoor, he investigated the case, during which accused appellant Mst. Mumtaz pointed out the place where the dead body of deceased Parwana Khan was buried; he further deposed that she led police party with the Magistrate and pointed out place of burial of the dead body of the deceased, which was dug in up to the depth of five feet, whereafter dead body of Parwana Khan was taken out, and he prepared such Mushirnama, by carrying out all the legal formalities; then he arrested the appellant Mst. Mumtaz in presence of the Mushirs; he further deposed that on 4-5-1995 appellant Muhammad Munir pointed out the crime weapon, while leading the police party into the garage of the above stated bungalow, took up the same and handed over the same to the said S.H.O. Alongwith "Gaintee", NIC of the deceased, and Domicile Certificate of his own, which were secured by the S.H.O. Under Mushirnama and was sealed by him, and then he produced the appellant Mst. Mumtaz before the Magistrate who recorded her confessional statement; then the said S.H.O. Recorded 161, Cr.P.C.
3. Statement of witnesses namely, Muhammad Rafiq, Abdul Ghafoor, Qamar Abbas, P.C. Rehmat Ali, Shamaz Khan, Bahadur Khan, A.S.I. Kalay Khan and recorded further statement of the complainant. P.Ws. Farrukh Habib has deposed in the trial Court that on 14-4-1995, while he was working as senior Traffic Magistrate, he was directed by the then District Magistrate to supervise the proceedings of recovery of the dead body of deceased Parwana Khan; he did so and further that appellant Mst. Mumtaz pointed out the place of the burial of the deceased and the dead body of deceased Parwana Khan was taken out of the "debris"; he further deposed that appellant Mst.
4. Mumtaz was in custody of the police at the said time. P.W. Mr. Inayatullah, Judicial Magistrate deposed that appellant Mst. Mumtaz was produced before him by the S.I.P. Of Police Station Taimoria, with a letter requesting therein to record her confessional statement which was so recorded by him, details whereof have been reproduced above. In their statements under section 342, Cr.P.C. Both appellants denied the allegations of the prosecution and stated that they have been falsely implicated in this case; they did not produce any evidence in their defence. As stated above, learned trial Court found both appellants guilty of the said offence and convicted and sentenced them through the judgment impugned herein. Thus, the prosecution has based its case mostly on the confessional statement made by Mst.
5. Mumtaz appellant before the Judicial Magistrate, the evidence of alleged pointation of the place by her where she alorigwith her husband appellant Muhammad Munir allegedly buried the dead body of deceased Parwana Khan, the pointation of the 'weapon of incident by her and also by co- appellant Muhammad Munir, the prosecution has further 'relied upon evidence of complainant Abdul' Ghafoor to the effect that the deceased had informed him that by leaving their house he was to go to the bungalow of the place of incident, and the evidence of the P.Ws. Farrukh Habib the then Magistrate to the effect that. Mst. Mumtaz allegedly pointed out place of burial of the deceased whereby dead body of the said deceased was dugout. Learned counsel for the appellants has attached the confessional statement allegedly made by appellant Mst. Mumtaz, firstly for the reason that the Magistrate admitted in his cross-examination before the trial Court that he had first administered the oath to appellant Mst. Mumtaz, and then recorded her confessional statement, and thereby the same became illegal; he cited PLD 1956 SC 420 and 1992 PCr.L.J. 955 wherein it has been held to the effect that no reliance can be placed on the judicial confession which was recorded after oath was administered to the maker. Thereof, which was in contravention of established practice, and contrary to the provisions of section 5 & 6 of the Oaths Act, and thereby the confessional statement became inadmissible in evidence.
6. Learned counsel for the State has replied that the document of the confessional statement itself does not indicate that the Magistrate had ever administered any oath to appellant Mst. Mumtaz, while recording her confessional statement; objection raised by the learned State counsel has no force for the reason that the Magistrate himself admitted in his cross-examination that he had administered such oath to the said appellant before he actually recorded her confessional statement; the dictum laid down by Honourable Supreme Court as reproduced above, is to be followed in its letter and spirit; confessional statement having been so recorded against the normal and established principles of law and against the provisions of sections 5 and 6 Oaths Act, the same is inadmissible in evidence and cannot be relied upon for the purpose of conviction of the said appellant; moreover, appellant Mst. Mumtaz stated therein that her husband Muhammad Munir first inflicted blows on the person of deceased Parwana Khan with the help of "Gaintee" and then she took the same from him, and further inflicted blow thereof on the person of the deceased, in consequence whereof blood came out of the injuries and the said deceased succumbed to the same after about 15-20 minutes and died; on the one hand the Magistrate admitted in his cross- examination that he did not arrange for inspection of the person/body of appellant Mst. Mumtaz through any female to see as to whether or not any mark of violence was available on her person, and on the other no question was put to her in her statement under section 342 Cr.P.0 as to whether or not she was ever produced before the Magistrate to make a confessional statement, and/or if she ever made any confessional statement voluntarily. Thus, the question as to whether it was made by her voluntarily or whether the same is truthful has neither been thrashed out properly, nor the same can possibly be so thrashed out, in the said circumstances; the recovery of weapon of offence allegedly made at the pointation of the said appellant itself is full of doubt and therefore no independent corroboration is found available to the said confessional statement. The mashir of alleged recovery is closely related to the deceased who have further admitted that such mashiranamas were prepared at the police station. There is no evidence against appellant Muhammad Munir excepting the statement made by appellant Mst. Mumtaz against him; and accused cannot be convicted for the offence on the basis of the statement/confessional statement made by the co-accused; observations recorded in the judgment pronounced by Mr. Justice Mukhtar Ahmed Junejo ( as his lordship then was) in the case reported in 1992 PCr.LJ 955 are to the effect that a confessional statement made by the maker thereof having been rejected being unreliable, and there being no other evidence against the co- accused, (who stood connected with the alleged commission of the offence of the case on the basis of such statement of the co-accused only) is entitled to the acquittal, under such circumstances. So far the recovery of the "Gaintee" at the pointation of the appellant to the police, learned counsel for the appellants argued that the confessional statement made by appellant Mst. Mumtaz specifically discloses that she alongwith her husband co-appellant Muhammad Munir had already produced the said weapon of offence, viz. "Gaintee" before the Investigation Officer, before she was actually produced before the Magistrate (who recorded her confessional statement), whereas the Investigation Officer deposed before the trial Court that such recovery of the weapon of offence viz. "Gaintee" was made after nine days of making the said confessional statement; again, according to deposition of Mushir Bahadur Khan P.W.2, the "Gaintee" was pointed out to the police in his presence by appellant Mst. Mumtaz and on such pointation it was secured by the Investigating Officer, whereas Investigating.Officer himself deposed before the trial Court that the same was pointed out to him by appellant Muhammad Munir, thus, the recovery of the said weapon of offence cannot be believed on such contradictory statements of the said witnesses. Learned counsel for the appellants has assailed the evidence whereby appellant Mst. Mumtaz allegedly pointed out the place of burial of deceased Parwana Khan by arguing that the police officials had already come to know about such burial of the deceased, but even then, none of the witnesses of the prosecution has deposed as to how and in what manner Investigating Officer found it essential to either take appellant Mst. Mumtaz with himself for the purpose of pointation of the place of burial by her or for the purpose of the recovery itself; circumstantial evidence relied upon by the prosecution does not give a clear picture and cannot be relied upon. Learned counsel for the appellant has validly argued, that no person from the locality of the place of incident was made to act as Mushir of Wardat for the recovery of the dead body and the weapon of G offence, and that the Mushirs having made statements contradictory to the stand taken by the Investigation Officer himself, such evidence cannot be relied upon. Consequently, these appeals are allowed, impugned judgment of conviction and sentence is set aside, and both the appellants, entitled to the benefit of doubt were acquitted and directed to be released forthwith if not required in any other custody case, vide a short order dated 27-5-2004; above are the reasons the said short order.