ZULIFQAR ALI Versus THE STATE
KHAWAJA MUHAMMAD SHARIF, J.‑‑ ‑Zulfiqar Ali son of Usman Ghani and Nasir son of Muhammad Yasin appellants alongwith Mst. Hafizan Bibi, Mst. Saddiqan Bibi and Muhammad Nawaz (since acquitted) were tried by learned Judge, Special Court, constituted under the Anti‑Terrorism Act, 1997 at Lahore for committing Zina‑bil‑Jabr with Mst. Kalsoom Akhter and then committing her murder. By virtue of his judgment, dated 28‑4‑2000, the said learned Judge found Zulfiqar Ali and Nasir guilty of the charges, convicted and sentenced them as under:‑‑‑
Under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979.
To death each: under section 302(b), P.P.C.
To death each and to pay Rs.1,00,000 (Rupees one lac only) each to the legal heirs of deceased by way of compensation as envisaged by the relevant provisions of section 544‑A, Cr.P.C. or in default whereof to undergo Rigorous Imprisonment for two years each.
Nasir appellant was also sentenced to imprisonment for life under section 11 (ibid) and to pay Rs.50,000 as fine or in default whereof to further undergo rigorous imprisonment for one year.
2. Murder Reference No. 255‑T of 2000 seeks confirmation of said sentence of death awarded to Nasir and Zulifqar Ali convicts whereas they by filing Criminal Appeals No. 549 of 2000 and 637 of 2000 respectively have approached this Court to call in question convictions and sentences passed against them by the said learned Judge. Muhammad Ali son of Haji Allah Din has filed Criminal Revision No. 449 of 2000 with the prayer that amount of compensation be enhanced and sentence of stripes be also imposed against the appellants. On 21‑9‑2000 it was ordered to be heard alongwith the above captioned two appeals, filed by the appellants. We propose to dispose of all these matters together through this single judgment.
3. Occurrence of the alleged incident took place on 22‑3‑1999 at 2.00 p.m, within the area of Village 13/IAL, situated at a distance of six and a half kilometres from Police Station Sadar Renala Khurd, District Okara. The said occurrence was reported by Muhammad Ali complainant Allah Yar. S.I. (P.W.11) on 24‑3‑1999 at 7.00 p.m. at the police station. The said police official as per dictation of the complainant drew up F.I.R. (Exh. P.C.) without any addition or substraction on his part.
4. According to the prosecution version, Mst. Kalsoom Akhter, victim was returning house after delivering food to her maternal uncle Muhammad Ashraf who was working in fields. Mst. Hanifan Bibi and Saddiqqan Bibi accused (since acquitted) asked her to help them in lifting fodder. It was witnessed by Muhammad Ali complainant (P.W.4) and Fazal Din (given up witness) Mst. Kalsoom Akhter did not reach her house till evening. Complainant asked Muhammad Nawaz accused (since acquitted) and Zulfiqar appellant through Punchait to deliver back the custody of Mst. Kalsoom but they put off the matter on one pretext or the other. On 24‑3‑1999 at evening time Muhammad Rafique (P.W.5) and Ishaq went to Killa No.23. Square No.26 where they found the dead body of Mst. Kalsoom Akhter. Complainant alleged in the first information report that Zulfiqar appellant had killed her daughter after committing Zina‑bil- Jabr with her and thrown her dead body in the fields with the help of Muhammad Nawaz and others.
5. Allah Yar, S.‑I. (P.W.11) after registration of case left for the spot and prepared site plan (Exh. P.H.). He collected clip (P.6) and one pair of plastic chappal (P.7/1‑2) from the spot and took the same into possession through memo. (Exh.P.B.) duly attested by Muhammad Ashraf (P.W.1) and Muhammad, Ali complainant (P.W.4) alongwith Fazal Din. On 14‑5‑1999 he arrested Nasir Accused.
Riaz Ahmad Inspector (P.W.12) also investigated the case. On 1‑4‑1999 he arrested Zulifqar appellant. On 15‑4‑1999 Zulfiqar appellant while under custody pointed out the place from where the dead body was recovered. Similarly Zulfiqar appellant pointed out the place of Killa No.23 of Square No.8 where Mst. Kalsoom was subjected to sexual intercourse and was murdered. He got recorded confessional statement of Zulfiqar appellant on 15‑4‑1999 from the Court of a Magistrate First Class and then sent him to judicial lock‑up. He examined all the relevant witnesses under section 161, Cr.P.C. After completion of investigation, challan against the accused was submitted.
6. The learned trial Judge took cognizance of the case on receipt thereof. After observing all the legal formalities, charge against the accused was framed and put to them. They emphatically denied correctness of all the allegations and claimed to be tried. Prosecution was forthwith directed to produce evidence of its choice to bring home guilt to the accused which it did. Prosecution produced as many as twelve witnesses in all to achieve its goal.
7. Dr. Zahida Yasmin (P.W.7) conducted autopsy on. the dead body of Mst. Kalsoom Akhter and found two injuries on her person. According to her injury No. 1 was sufficient to cause death in the ordinary course of nature. Three vaginal swabs were taken which were found to be stained with semen vide report of Chemical. Examiner (Exh. P. I). She prepared her report (Exh.P.E.) and pictorial diagram (Exh.P:E/1). Dr. Muhammad Hassan (P.W.9) medically examined Zulfiqar and Nasir appellants with regard to their potency and found them to be fit to perform sexual act. Muhammad Ashraf (P.W.1) as witness of last seen evidence whereas Muhammad Saddique (P.W.2) deposed about extra judicial confession made by Nasir appellant. Muhammad Akhtar (P.W.3) deposed that he saw the appellants with a girl on their shoulders. Muhammad Ali complainant (P.W.4) narrated story of the F.I.R. whereas Muhammad Rafique (P.W.5) is witness of recovery of dead body from the fields. Umer Farooq Ali (P.W.10) was produced by the prosecution to prove confessional statement of Zulfiqar Ali appellant. The evidence of remaining witnesses is of formal nature, which is not required to be discussed.
8. The learned Prosecutor gave up remaining witnesses and after tendering in evidence report of Chemical , Examiner (Exh.P.I.) declared the prosecution case close.
9. Trial now entered into the next crucial stage, which pertained to examination of accused under section 342, Cr.P.C. All the incriminating evidence was brought to their notice to enable them to understand it and to offer handsome explanation with regard to the crime imputed to them. They denied correctness of all the allegations levelled against them and proclaimed their absolute innocence in the matter. They opted not to make statements on oath as envisaged by the relevant provisions of section 340(2), Cr.P.C. They produced five defence witnesses to prove their innocence.
10. The trial Court after hearing both the sides wrapped up the trial by convicting the appellants as aforementioned.
11. Learned counsel for the appellants in support of this appeal submits that appellants were not named in the F. I. R. that F. I. R. was recorded after three days of the occurrence, that there was no eye‑witness in this case, that the learned trial Court has based conviction of the appellants on confessional statement of Zulfiqar Ali appellant and the extra‑judicial confession of Nasir appellant; that confessional statement of Zulfiqar Ali appellant was not recorded in accordance with law, that extra‑judicial confession is very weak type of evidence and is not convincing one; that Nasir appellant produced five defence witnesses in the instant case, that no allegation of Zina was brought against Nasir appellant in the confessional statement (Exh.P.F./1), that both the appellants were severely beaten by the police that Nasir appellant was got admitted in the local hospital and in this regard he produced Muhammad Saeed Ulfat (D.W.5). According to him Nasir appellant remained in hospital from 17‑4‑1999 to 29‑4‑1999. They both submit that on the same evidence, Hafizan Bibi, Saddiqan Bibi and Muhammad Nawaz were acquitted by the learned trial Court, that no case is made out against the appellants and they be acquitted of the charge.
12. Learned counsel for the State assisted by learned counsel for the complainant submits that there is no previous background of enmity between the parties, that there is no question of false implication of the appellants, that according to the Doctor rape was committed with Mst. Kalsoom Bibi and the report of the Chemical Examiner (Exh.P.1) is in the positive. They support judgment of the trial Court.
13. We have heard learned counsel for the parties. Occurrence in the instant ease took place on 22‑3‑1999. Till the recovery of dead body on 24‑3‑1999 no F.I.R. or report was lodged with the police. Appellants were not named in the F.I.R. The only evidence against the appellants is judicial confession (Exh. P.F./1) made by Zulfiqar appellant and extra‑judicial confession made by Nasir appellant. We have gone through the confessional statement (Exh.P.F/1) with the assistance of learned counsel for the parties. The most important questions. which should have been put to Zulfiqar appellant, were not asked from him regarding the fact that since how long he was in police custody and that after his statement, his custody would not be delivered to the police. We find that the most established rules regarding recording of judicial confession were not followed by the Magistrate. The ever first thing to be done by the Magistrate is to order for removal handcuffs of the accused and send the police out of the Court‑room. Thereafter, accused should be given sufficient time to ‑ponder over the situation and be explained clearly that he is not bound to make a confession, whether he makes a confession or not he will not be sent back to police custody. Next to it is to put him the following questions:‑‑
(1) For how long have you been with the police?
(2) Has any pressure been put on you to make a confession?
(3) Have you been threatened to make a confession?
(4) Has any inducement been given to you?
(5) Have you been told that you will be made an approver?.
(6) Why are you making this confession.?"
14. The Magistrate is to do all this to satisfy himself that the confession is being made voluntarily and truly. The glaring mistake committed by the Magistrate, which strikes at the very root of the case is that confessional statement of Zulifqar appellant was recorded on Oath. Confession on Oath has always been declared inadmissible in evidence. There is no allegation of Zina against Nasir appellant in this confessional statement. It shows that he made this confessional statement to save the honour of his mother, sister and br6ther who were in police custody. The possibility that he was covered to make this confessional statement cannot be ruled out. Even in the application submitted by the Investigating Officer, it was never mentioned that the accused was willing to make a confessional statement. We are not going to believe this weak type of evidence.
15. Now we take up the question of extra‑judicial confession made by Nasir appellant. Extra judicial confession has always been treated as a very weak type or evidence not only by this Court but also by the Hon'ble Supreme Court of Pakistan. There is no direct evidence in this case. It is correct that a young girl of 14 years was raped and murdered but Court has to see that no innocent person should be sent to gallows. The only argument of learned counsel for the complainant and State that there was no previous enmity between the parties and there is no question of false implication of the appellants in this case, is not accepted because there is no evidence in this case. It may be noted here that according to the prosecution, dead body was recovered from the surgarcane field and Zina was committee with Mst. Kalsoom Bibi in that sugarcane field but in the site plan (Exh.P.D.) no sugarcene field has been mentioned. Case of the prosecution is based upon circumstantial evidence which is not convincing one. After having heard learned counsel for the parties going through the record, we are of the considered opinion that prosecution has not been able to prove its case against the appellants beyond any shadow of doubt. Accordingly by accepting this appeal, we set aside convictions and sentences of the appellants. They are directed to be set a liberty forthwith if not required to detainee in any other case. Death sentence is NOT confirmed and Murder Reference is answered in the negative.
N.H.Q./Z‑120/L Appeal accepted.