ZIAUL REHMAN vs THE STATE

' MAMOON KAZI, J.---Appellant Ziaul Rehman was convicted by the learned Additional Sessions Judge, Sahiwal for murder of his own minor son, Faizul Rehman aged about two years and his minor daughter, Shumaila aged a little over an year and sentenced to death and to pay a fine of Rs,6,000, in default to suffer further R.I. For two years. The fine, if recovered, was to be paid to the mother of the said minors.

2. On appeal to the High Court, although the conviction of the accused was maintained, but his sentence of death was reduced to that of imprisonment for life. The conviction of fine, however, remained intact. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.

3. The case of the prosecution, according to the F.I.R. Registered at Police Station "B" Section, District Sahiwal on 26-12-1988, was that about a month prior to the registration of the said F.I.R. Appellant Ziaul Rehman had a quarrel with his wife, Mst. Rafiqan P.W.3. Thereafter, she left the appellant's house alongwith her brother, Khushi Muhammad P.W.4 leaving the two children in the former's custody. After about a month, when Khushi Muhammad welt to the appellant to enquire about the children, he made an extra-judicial confession before the witness, admitting to have thrown the children in Lower Bari Dowab Canal situated near Poly Technic College, Sahiwal, thus causing their death. The said confession was also alleged to have been heard by Zahid Majeed, P.W.5 and Shabbir Ahmed, P.W.6.

4. During the investigation of the case by A.S.I. Muhammad Akhtar, P.W.7, the appellant is said to have led him in presence of the witnesses to the place where the children had allegedly been thrown by the appellant into the canal. However, nothing incriminating could be recovered therefrom.

5. In his statement before the Court, the appellant denied the said allegations and pleaded innocent. However, he neither produced any evidence in his defence nor he made any statement under section 340(2), Cr.P.C.

6. We have heard Mr. Muhammad Javed Sandhu, Advocate Supreme Court on behalf of the appellant and Malik Ainul Haq on behalf of the State. The evidence of Mst. Ration, her brother Khushi Muhammad and P.Ws.5 and 6 is the main evidence relied upon by the prosecution besides that of the Investigating Officer. Although, there is evidence of extra-judicial confession allegedly made by the appellant before P.Ws. Khushi Muhammad, Zahid Majeed and Shabbir Ahmed, but this evidence is not corroborated by any other evidence produced by the prosecution. Admittedly, neither the bodies of the children nor any other incriminating evidence could be recovered by the police during the course of investigation in the case. The evidence of extra-judicial confession alone without any corroboration is not sufficient to maintain any conviction thereon.

7. Learned counsel for the State has, however, argued that the evidence of P.Ws. Khushi Muhammad, Zahid Majeed and Shabbir Ahmed fully corroborates each other so far as extra- judicial confession is concerned. Furthermore, according to the learned counsel, the appellant is said to have pointed out even the spot where the bodies had been thrown by him. Therefore, the evidence of the prosecution lent sufficient corroboration to each other.

8. We, however, find no force in the said contentions. One weak piece of evidence cannot corroborate another similar evidence. So far as the evidence of pointing out of the place of occurrence by the accused is concerned, as nothing incriminating was discovered therefrom by the police, the same cannot be of any consequence to the prosecution. In fact, this evidence is inadmissible as it cannot be considered as exception to Article 39 of Qanun-e-Shahadat Order.

The appellant had merely pointed out the place to the police as being the place where the children had been thrown by him and as the same did not lead to discovery of any fact for the purpose of Article 40 of the said order this evidence cannot be relied upon as corroboratory evidence. The contention of the learned counsel for the prosecution is, therefore, not tenable. No doubt, the petition which was filed by the appellant from jail has been shown to be barred by 266 days, but in view of the circumstances of the case, we condone the delay as dismissal of the appeal for such technical reasons will cause grave injustice to the appellant under the circumstances of the present case.

9. In the result, the appeal is allowed and the judgment of the High Court is set- aside. Resultantly, the conviction and the sentence of the appellant is also set aside.