Mst. SAFIA BIBI vs THE STATE

' ASIF SAEED KHAN KHOSA, J.-- , Safia Bibi and Shuja-ud-Din alias Maqsood alias Soodi appellants were convicted for an offence under section 302(b)/34, P.P.C. Vide judgment dated 31-5-2001 rendered by the learned Additional Sessions Judge, Hafizabad and were sentenced to imprisonment for life each and to pay a sum of Rs,50,000 to the heirs of Munir Ahmad deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. Both the appellants were also convicted for an offence under section 364/34, P.P.C. And were sentenced to rigorous imprisonment for ten years each and a fine of Rs,10,000 each or in default of payment thereof to undergo simple imprisonment for two months each. Both the appellants were further convicted for an offence under section 201/34, P.P.C.

And were sentenced to rigorous imprisonment for seven years each and a fine of Rs,10,000 each or in default of payment thereof to undergo simple imprisonment for two months each. The sentences of imprisonment passed against both the appellants were ordered by the learned trial Court to run concurrently and the benefit under section 382-B, Cr.P.C. Was extended to them. Safia Bibi appellant has challenged her convictions and sentences before this Court through Criminal Appeal No,336-J of 2002 whereas Shuja-ud-Din appellant has preferred Criminal Appeal No,415-J of 2003 in that regard. I have heard both these appeals together and I propose to decide the same together through the present consolidated judgment.

2. Safia Bibi appellant was the wife of Munir Ahmad deceased at the relevant time and the prosecution had alleged that she had been carrying on illicit relations with Shujaud-Din appellant.

According the prosecution's allegation Shuja-ud-Din appellant had taken Munir Ahmad deceased with him from the latter's house at 9-00 p.m. On 26-5-1998 and had subsequently thrown him in a canal and the dead body of Munir Ahmad deceased was never found. F.I.R. No,265 was lodged in that regard by Muhammad Hanif complainant, a brother. Of Munir Ahmad deceased, on 18-8-1998 at Police Station Jalalpur Bhattian, District Hafizabad for an offence under section 364, P.P.C.

Sections 302 and 201, P.P.C. Were subsequently added to the F.I.R. After completion of investigation a challan was submitted before the learned trial Court whereafter the appellants were tried by the learned trial Court resulting in their convictions and sentences as mentioned and detailed above.

Hence, the present appeals before this Court.

3. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the prosecution had miserably failed to prove its case against the appellants beyond reasonable doubt and, thus they are entitled to be acquitted by this Court. As against that the learned counsel for the State has maintained that the prosecution had successfully brought the guilt of the appellants home and, thus, the learned trial Court was quite justified in recording their convictions and sentences.

4. After hearing the learned counsel for the parties and going through the record with their assistance it has straightaway been noticed that the alleged murder of Munir Ahmad deceased had admittedly remained unwitnessed and his dead body had never been found or subjected to postmortem examination. There is, thus, no evidence available on the record to establish that Munir Ahmad had actually died and that his death was homicidal. In order to establish its case the prosecution had produced six witnesses before the learned trial Court. Nazar Muhammad (P.W.1) and Sardara (P.W.2) were stated to be witnesses of Waj Takkar but they had turned hostile and had not supported the prosecution's case before the learned trial Court. Muhammad Hanif complainant (P.W.3) had only witnessed the alleged making of a confession by Shuja-ud-Din appellant before the police but he had admitted that such confession had been made by the said appellant after he had been tortured by the police. Even otherwise a confession by an accused person before the police is inadmissible in evidence. Nazia Bibi (P.W.4), a daughter of Munir Ahmad deceased, had deposed about the illicit relations between the two appellants and had stated about Shuja-ud-Din appellant taking away Munir Ahmad deceased with him at 9-00 p.m. On 26- 5-1998. There is no other independent evidence available on the record regarding the motive set up by the prosecution, i.e the illicit relations allegedly maintained by the two appellants. The last- seen evidence provided by this witness had no legal value as the time of death of the deceased had never been established so as to show proximity between the last-seen evidence and the death. It is settled law that the last seen evidence can have legal worth only if the deceased is seen in the company of the accused quite close to the time of his death so as to exclude any possibility of the deceased coming in contact with anybody else before his death. As already observed above, the time of death of the deceased, if any, had not been established in this case and, thus, the last-seen evidence provided by this witness was not of much legal value. Muhammad Ilyas, A.S-I. (P.W.5) had deposed about making of a confession by Shuja-ud-Din appellant before the police during his custody and had also stated about pointing out of the place by this appellant from where he had allegedly pushed the deceased into a canal. Confession before the police is inadmissible and, pointing out of a place by an accused person in the absence of any recovery from that place is also inadmissible in evidence. Muhammad Nawaz (P.W.6) had also deposed about such pointing out of the place by Shuja-udDin appellant and the statement made by this witness also suffered from the same legal defect.

5. The discussion made above shows that the case in hand was practically a case of no evidence and, thus, it cannot be said that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt. Both the above. Mentioned appeals are, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and both the appellants are acquitted of the Charge. They shall be released from the jail forthwith if not 13 required in any other case.