2017 P Cr. L J 1669 S. 302---Medical report and medical evidence---Scope---What exactly could be expected from medical report, was generally the time, nature and cause of death, injuries on some body's person, their age, creed and intensity, the medical condition of various body organs at the time of examination; but it never would point towards the assailant---Medical evidence would only gain importance where along

 2017 P Cr. L J 1669

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, Muhammad Alam and Wazir Shakeel Ahmad, JJ

NADEEM ABBAS and 2 others---Appellants

Versus

The STATE---Respondent

Cr. Appeals Nos. 26, 33 of 2011 and 1 of 2012, decided on 20th October, 2016.

Per Malik Haq Nawaz J, agreeing with Wazir Shakeel Ahmad, J on difference of opinion between Wazir Shakeel Ahmed and Muhammad Alam, JJ [Majority view]

(a) Penal Code (XLV of 1860)---

----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Benefit of doubt---Occurrence in the case was an unseen one devoid of the presence of any eye-witness---Prosecution version was that deceased while being unconscious was raped by accused, but the negative report of Pathologist regarding the presence of spermatozoa in the vaginal swabs of the deceased belied the prosecution version---Medical team was bound to unearth the cause of death and to come up with accurate and credible findings in that regard, but the exhumation report revealed that the same had been done in a routine manner---None of the quoted methods had been applied to dig out the truth nor there existed a finding that the employment of said methods was either not possible or there were any sort of impediments in doing so---Evidence adduced by the prosecution was barren to such an extent that it was quite incapable of germinating the seed of conviction in any manner---Motive as alleged by the prosecution saw the light of the day only after accused persons made confessional statements recorded under S.21-H of Anti-Terrorism Act, 1997---If for the sake of argument, the confessional statements of accused persons were considered to be correct despite their legal infirmity, even then same were not probative enough to yield positive results for the prosecution---"Memory Card", which laid the foundation of whole transaction, neither was recovered from accused nor any evidence was put forth by the prosecution regarding the fate of said memory card---Mortar which could have been used to erect the superstructure of prosecution's case turned into rubbles because of the happy go lucky behaviour shown with respect to the collection of corroboratory evidence by both the Investigating Officers---Venue of occurrence as depicted in the site plan, negated prosecution version---Dining hall where the deceased was allegedly hanged was adjacent to the sleeping room where all the under-training nurses, who were fourteen in number used to sleep---Testimony of prosecution witness was of vital importance since it unraveled a number of mysterious knots of the controversy---No last seen evidence was available which could even remotely suggest that the deceased was either rang up or taken out by co-accused---Chronological sequence of certain happenings which occurred during the course of investigation and the recoveries effected, also had a telling effect on the prosecution case---Recovery of pillow; was also of no avail to the prosecution case---If the same was taken to be the weapon of offence, the exhumation report by virtue of which the Medical Board found ligature marks, dashed down to the ground, because ligature could be anything used to compress the throat to block the air supply---Evidence of extra-judicial confession also cut a sorry figure with respect to the case of prosecution---Prosecution which was supposed to prove its case up to the hilt beyond any shadow of doubt, had failed to do so---Thick mist of doubt was looming over the prosecution case---No reliance could be placed on the evidence produced by the prosecution---All accused persons were acquitted of the charge extending them benefit of doubt and they were ordered to be released forthwith, in circumstances.

            2006 SCMR 231 ref.

(b) Penal Code (XLV of 1860)---

----S. 302---Medical report and medical evidence---Scope---What exactly could be expected from medical report, was generally the time, nature and cause of death, injuries on some body's person, their age, creed and intensity, the medical condition of various body organs at the time of examination; but it never would point towards the assailant---Medical evidence would only gain importance where along with other corroborative incriminating evidence, it would weave the rope of the noose supposed to fit the neck of accused.

(c) Criminal Procedure Code (V of 1898)---

----S. 167---Remand proceedings---Magistrate regulating the remand proceedings, had to be very cautious in granting or refusing remand---Order of Magistrate, in either way was to be supported with logical and legal reasoning---Any mistake committed by Magistrate, could have serious ramification and same could change the countenance of either the prosecution or the defence case that too in a perverse manner---Duty would become almost sacred when the question was that of remand of accused or as committed to judicial lock up.

            1984 PCr.LJ 2588 and PLD 2001 SC 607 ref.

(d) Criminal trial---

----Benefit of doubt---Benefit of every doubt would tend to tilt the balance of justice in favour of accused, but where the same was occasioned owing to the inefficiency of Investigating Officer, or where the same seeped in a verdict because of below the mark proceedings conducted by the Police personnel, it would become all the more pinching and heart rendering for the Court, specially where the record screamed out that the doubt pulling faces to the aggrieved victim had been devised, designed and mechanized by a satanic intent of benefiting accused at the expense of one who pinned his hopes in the judicial system of the country---Such devastative phenomenon had two prong impact on the society; on the one hand, it would give a clean chit to the guilty, on the other, it would make the bereaved complainant septic and hostile towards the system of dispensing justice.

Per Muhammad Alam, J; Malik Haq Nawaz, J disagreeing [Minority view]

(e) Penal Code (XLV of 1860)---

----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Occurrence being unseen, there was no eye-witness---Only evidence against accused persons was circumstantial evidence and second medical report, which contradicted the first medical report on very crucial aspects of the occurrence---Evidence on record regarding messages and calls between accused and the deceased, had shown that accused had connection with the deceased---Trial Court had wrongly relied on confessional statement of accused persons as same had been recorded by the Police Officer, though judicial Magistrates were conveniently available---Only piece of evidence, which could not be ignored, was the second medical report---Doctors conducted the said second report on the dead body of deceased after exhuming the same from the tomb where deceased was buried---Prosecution had established the facts that the dead body which was subjected to the second post-mortem was of the deceased---Prosecution evidence comprised the second medical report and post-mortem report---Comparative study of both the reports, had shown that the first report was very short and summary, while the second medical report contained all necessary details that correctly related to the opinion of the Board of Doctors---First report was prepared without internal examination of the dead body of deceased, while the second report showed through examination of different internal parts of the body of deceased---Opinion of the Board of Doctors had shown that deceased received injuries at different parts of her body before she was murdered---Opinion of the doctors of the Board, very clearly contradicted the first medical report regarding the causes of death of the deceased---Court relied on the second medical report and held that the Trial Court had correctly relied on the same---Second medical report was correct and cause of death of the deceased was her murder by accused persons and not because of any suicide etc.---Sentence/conviction passed by the Trial Court, were upheld and appeals were dismissed---Murder Reference also answered affirmatively. [Minority view]

Per Wazir Shakeel Ahmed, J agreeing with Malik Haq Nawaz, J [Majority view]

(f) Penal Code (XLV of 1860)---

----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Benefit of doubt---Trial Court had nowhere in the impugned judgment incorporated/entrusted the motive of the offence---Police had claimed recovery of a video of accused having sexual intercourse with the deceased, but same was neither found to be placed on record nor witness was produced in support of recovery memo, rather he was abandoned---Prosecution had also failed to prove sexual assault by accused with the dead body of the deceased---Prosecution had failed to include the names of the persons to whom accused handed over the mobile phone of the deceased lady, nor the contents of the record of messages were verified/confronted before the Trial Court---Statement of the sole witness trainee, who was sleeping in hostel at night of the occurrence with the other inmates, created serious doubts on the story of the prosecution---Prosecution had failed to interlink the chain of corroboration/circumstantial evidence in the case and the chain of circumstantial evidence from taking of the possession of mobile phone to their numbers and the ownership, usage and the calls, messages received through other mobile phone to that of the alleged murder of deceased lady, was not established---Prosecution had failed to connect to the extent of co-accused in commission of alleged offence---Benefit of doubts, was extended to accused---Impugned judgment of the Trial Court was set aside, accused were acquitted and ordered to be released forthwith, in circumstances.

            2008 SCMR 1103 and 2002 PCr.LJ 149 rel.

            Haji Daulat Karim for Appellant (in Cr. Appeal No. 26 of 2011).

            Jahanzeb Khan for the Complainant (in all cases).

            Malik Sherbaz, Dy. A.-G. for the State (in all cases).

            Raja Shakeel Ahmad for Appellant (in Cr. Appeal No.33 of 2011).

            Amjad Hussain for Appellant (in Cr. Appeal No. 1 of 2012).

            Date of hearing: 14th October, 2016.

JUDGMENT

            MALIK HAQ NAWAZ, J.---I have been entrusted with the task of authoring the fate of FIR No. 145/2011, regarding which a difference of opinion arose in between the Hon'ble Divisional Bench, both my learned brothers who probed into the available evidence, set of circumstance, incriminating material and the testimony of witnesses could not see eye to eye with each other, the verdict passed by both the Hon'ble Judges is at variance to such an extent, that one of them has stamped their liberty and have acquitted them of the charge extending them the benefit of doubt, while the other has upheld the judgment of trial court whereby major punishment were inflicted upon the accused persons. Since the arguments for the learned defense counsel and counsel for the State/complainant have exhaustively been produced/re¬produced in the judgment of both of my learned brothers and the same arguments have been raised at bar before me. These judgments are at variance as the appreciation of evidence of both the judgments has been entirely different. The re-production of all the arguments of learned counsel will raise the volume of judgment, as both these judgments are also a part of the main judicial file, therefore, the arguments of the learned defense counsel are not again reflected due to paucity of time and space.

2.         It is cardinal to be mentioned here that the whole story hovers around the death of deceased girl Shabana Akhtar who was a trainee nurse residing in the Midwifery Hostel Gilgit along with other under training nurses, at 13.05.2011 her dead body was found hanging with the ceiling fan of the dining hall of the above mentioned hostel, a complaint Exh.PW-12/A was jotted down to the said effect by the principal Midwifery School and presented to the concerned SHO, who duly incorporated the same in daily Roznamcha, since the unfortunate vista of the dining hall portrayed the heart rendering incident as a "suicide" so the proceedings were initiated under section 174, Cr.P.C., while the proceedings were in continuum allegedly the convict/appellant Nadeem Abbas disclosed that the suicide committed by the deceased was mechanized and engineered by Jarrar Hussain, Ashfaq Hussain and Shafqat, the said persons used to send indecent texts on her cell phone and have captured certain videos while making after her, as the said persons threatened to give air to the captured videos, the deceased succumbed to the psychological pressure and sounded the final note of her life by hanging herself and thereby committed suicide. As per the disclosure, the said persons were arrested, but the investigating agency could not collect any incriminating material which might have laid the foundation of guilt against the persons arrested on the disclosure made by the convict/appellant, hence the said persons were discharged as innocent by the police by invoking the authority given in section 169, Cr.P.C.

3.         It was only after that the police started suspecting and spotted the convict/appellant, as per record the arrest of accused and his re-remand was the turning point in the instant case, since it blessed the prosecution with the evidence of extra judicial confession, confession recorded under section 21-H and telephone call data, the occurrence in the present case is an unseen occurrence devoid of the presence of any eye-witness. It seems that the police which was earlier wandering in the dark, took it as a natural bounty and fit the noose in the neck of convict/appellant that too in the light of revelations made by the accused himself without probing into its legal strength and intrinsic value.

4.         The learned trial court awarded capital punishment to the accused Nadeem Abbas, life imprisonment to Jameela Bibi co-accused and imprisonment for seven years to the accused Ijlal Hussain (because he was indicted for the charge to screen off the offence and the offender). One of the learned member of Divisional Bench remained thoroughly in accordance with the judgment arrived at by the learned trial Court and upheld the punishments awarded to the appellants. I have gone through the said judgment, my learned brother Mr. Justice Muhammad Alam has discarded a greater chunk of evidence set forth by the prosecution, but the things which have tilted his verdict towards maintaining conviction of the appellants is the exhumation report whereby the dead body of the deceased was exhumed four months after its burial and the medical team managing the affairs of exhumation opined that the major critical injury No.1 mentioned in Exh. PW. 21/A1 and A2 was homicidal in nature.

5.         The exhumation of dead body took place on the directions of Hon'ble Supreme Appellate Court Gilgit-Baltistan, which was result of an application made by the father of the deceased showing his concerns with respect to the credibility of the first postmortem report. My learned brother Judge while relying upon the exhumation report and the cell phone data opined that the connection between the convict/appellant and the deceased is well established and on the said score he endorsed and upheld the judgment of the learned trial court. With all my reverence and respect for the wisdom and the legal acumen of my learned brother Judge I tend to disagree with his opinion, as far as the mobile data is concerned, although it is admissible in evidence by virtue of Article 164 of Qanun-e-Shahadat Order, 1984 yet the stander of evidence required to result in harsher punishment cannot be compromised. I have gone through the data and have found it short of legal and evidentiary merit. The calls made and messages sent to the deceased do no harmonize and are also not coherent with respect to their proximity in space and time with the death of the deceased. The said data fails to clarify that whether the SIM number shown to be used by the deceased registered against the name of her brother was ever put in the mobile G-5 4808 allegedly taken by accused Nadeem Abbas from the deceased and handed over to the police after the commencement of the unfortunate incident of death of the deceased. The prosecution has failed to mention the IMEI number of the recovered cell phone which was of immense importance in deciding the fact that whether it was the mobile which carried the SIM allegedly used by deceased Shabana Akhtar or not, more over there is not even a scratch of evidence which may testify that the said cell phone ever remained in use of the deceased, neither the same has been identified by any of her family members nor by her course mates, besides the cell number shown to be that of convict/appellant Nadeem Abbas has been dialed by the number shown to be that of the deceased that too for few minutes in a sequence which depicts only a broken conversation, co-accused Jameela Bibi's cell number also surfaced in the record collected, but it is quite natural, the deceased was a trainee nurse and co-accused Jameela Bibi was the housemother of midwifery hostel where the deceased was residing. They had a working relationship as colleagues, the existence of a few calls against the number of co-accused is not a matter of great deal. The cell number from which certain texts were sent to the deceased was neither verified nor shown to be registered against the name of any of the accused. Although the prosecution was conversant with the cell number of the accused Nadeem Abbas and allegedly recovered a Samsung cell phone vide Exh.PW-1/M alleged to be in use of the accused, which was handed over by him to the mobile repairing shop, yet no calling or text data sent via the recovered cell and the SIM registered against the name of the accused has been obtained by the prosecution, to establish his connection with the deceased in such a manner, which may be defined as a reason for taking the life of the deceased. In addition, while making the personal search of co-accused Jameela Bibi, her cell phone No. 0312-9703561 carrying Zong SIM inside was also wrested and the recovery memo was prepared but was not exhibited. What precluded the investigation authority from obtaining her text and calling data is a question of such an intricate nature which has a telling effect on the prosecution case. The lethargy and incompetency shown with respect to the collection of mobile data and fitting the same within the puzzle of deceased's murder has gone down to the very roots of the prosecution case.

6.         My learned brother Judge has given due consideration to the second medical opinion formulated after the exhumation of the dead body of the deceased. In order to reach a logical conclusion the final opinions of both the autopsy report and the exhumation report is reproduced hereunder:-

            First Autopsy Report (Exh.PW-23/1)

Final opinion:---In my opinion, deceased Shabana Akhtar died due to hanging resulting in transaction of spinal cord at a very high level leading to failure of multiple vital organs such as heart, lungs and brain. This injury is sufficient to cause death in ordinary course of nature. The time elapsed between the death and postmortem is round about 8 to 10 hours.

            Exhumation Report (Exh.PW.21/A-1 and A-2)

Final opinion:---The Board is of the opinion that the deceased died due to injury No. 1 which caused obstruction of upper respiratory tract, which resulted in anoxia to death. This injury is homicidal in nature and before this she has been violated as evident from injuries Nos. 3 to 8. All these injuries were ante-mortem in nature and was sufficient to cause death in an ordinary course of life.

Injury No. 1:---A traverse ligature mark present on the middle of the front of neck extending posterior aspect of the neck measuring 8 x 1.5 c.m. Incision given here to know either the so called ligature mark is ante-mortem or post-mortem. This incision showed that contusion is present just below the ligature mark.

Injury No. 2: Another ligature mark present on the side of the angle of mandible, here incision given which proved that his ligature mark is of post mortem nature.

            Both the autopsy and exhumation reports if juxtaposed give tongue to a common finding. The autopsy reports reads "deceased Shabana Akhtar died due to hanging resulting in transaction of spinal cord at a very high level leading to failure of multiple vital organs such as heart, lungs and brain." While in the exhumation report it is mentioned as deceased died due to injury No.1 which caused "obstruction of upper respiratory tract which resulted in anoxia leading to death" (underlining is provided for emphasis), board further thrashed that the injury is homicidal in nature and the deceased has been violated as well. It is clear from the above underlined portion that the death of the deceased occurred due to blockage of oxygen to the brain.

7.         The idea that the injury No. 1 was homicidal resulted because of the presence of ligature mark in the middle of front of the deceased neck, incision was also given there which showed that contusion was present below the ligature mark, but to the effect that what did that particular contusion below the ligature mark spelled, the report is silent. As per the exhumation report another ligature mark was also found which was declared to be post mortem in nature.

8.         It is pivotal to be mentioned here that as per the prosecution version, the deceased while unconscious was raped by the accused Nadeem Abbas, but the negative report of pathologist regarding the presence of spermatozoa in the vaginal swabs of the deceased belies the prosecution version. In order to reach a proper decision regarding the worth of exhumation report and the opinion formulated therein, assistance has been sought from Modi's Medical Jurisprudence and Mayllo Medical Legal Dictionary. The connotation held by certain medico legal terms are produced here under:-

ANOXIA:- Oxygen deficiency, any condition in which there is a deficiency of tissue oxidation.

LIGATURE:- a thread or string for tying blood vessels, as the arteries to check blood.

Explanation:- From the definition of ligature as provided in various medical legal dictionaries following ingredients can be sifted:

a) It can be anything, substance or a tool (string, head scarf, chain, club or even human fingers.)

b) Used to constrict, compress or squeeze the neck muscles in such a manner so as to restrict or block the air supply/oxygen completely or partially.

            The test provided to figure out that whether a particular death occurred due to hanging or strangulation as provided in Modi's Medical Jurisprudence is reproduced as under:-

Hanging	Strangulation
1. Mostly suicidal.	1. Mostly homicidal.
2. Face---usually pale and petechiae rare.	2. Face---Congested, livid and marked with petechiae.
3. Saliva---Dribbling out of the mouth down on the chin and chest.	3. Saliva---No such dribbling.
4. Neck---Stretched and elongated in fresh bodies.	4. Neck---Not so.
5. External signs of asphyxia, usually not well marked.	5. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotisinus effect).
6. Bleeding from the nose, mouth and ears very rare.	6. Bleeding from the nose, mouth and ears may be found.
7. Ligature Mark---Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment like.	7. Legature Mark---Horizontal transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish.
8. Abrasions and ecchymoses round about the edges of the ligature mark, rare.	8. Abrasions and ecchymoses round about the edges of the ligature mark, common.
9. Subcutaneous tissues under the mark---White, hard and glistening.	9. Subcutaneous tissues under the mark---Ecchymosed.
10. Injury to the muscles of the neck---Rare.	10. Injury to the muscles of the neck---Common.
11. Carotid arteries, internal coats ruptured in violent cased of long drop.	11. Carotid arteries, internal coat ordinarily ruptured.
12. Fracture of the larynx and trachea---Very rare and that too in judicial hanging.	12. Fracture of the larynx and traches---often found also hye bone.
13. Fracture-dislocation of the cervical vertebrae---common in judicial hanging.	13. Fracture-dislocation of the cervical vertebrae---rare.
14. Scratches, abrasions and bruises on the face, neck and other parts of the body---Usually not present.	14. Scratches, abrasions, finger marks and bruises on the face, neck and other parts of the body---usually present.
15. No evidence of sexual assault.	15. Sometimes evidence of sexual assault.
16. Emphysematous bullae on the surface of the lungs---Not present.	16. Emphysematous bullae on the surface of the lungs---may be present.

 

9.         It is observed with grief and concern that although it was incumbent upon the medical team to unearth the cause of death, and to come up with accurate and credible findings in this regard, but the exhumation report reveals that the same has been done in a routine manner. Astonishingly none of the above quoted methods have been applied to dig out the truth nor there exists a finding that the employment of the above said methods was either not possible or there were any sort of impediments in doing so. Advancements in medical science have made available a number of methods to explore the reasons behind a death. In furtherance the medical team so constituted was well versed and quite at home in this regard. The medical team should have been attentive to the call of duty and the heavy responsibility which they were shouldering. It was this exhumation report which certified the death of the deceased as a murder thereby making the people of the concerned locale scared and apprehensive of sending their daughter to such institution which impart skills of humanitarianism and nobleness in that strata of society who intends to join the noble profession of nursing.

10.       What exactly can be expected from a medical report is generally the time, nature and cause of death, injuries on some body's person their age, creed and intensity, the medical condition of various body organs at the time of examination. But it never points towards the assailant, medical evidence only gains importance where along with other corroborative incriminating evidence it weaves the rope of the noose supposed to fit in the neck of the accused.

11.       The crux of the above discussion is that I differ with the opinion of my learned brother Mr. Justice Muhammad Alam. The evidence adduced by the prosecution is barren to such an extent that it is quite incapable of germinating the seed of conviction in any manner.

12.       I am thoroughly in agreement with the judgment arrived at by my learned brother Mr. Justice Wazir Shakeel Ahmad who after making an exhaustive inquiry into the available material against the accused persons has sanctioned their acquittal yet there are certain portions of the instant case which deserve an eloquent elaboration to beef up the findings of my learned brother at one hand and to justify the acquittal of convict/appellants on the other.

13.       Since the occurrence is an unseen occurrence and the prosecution banked upon medical and circumstantial evidence. The motive as alleged by the prosecution saw the light of the day only after the accused persons made confessional statements recorded under section 21-H of Anti-Terrorism Act, 1997. Although section 32 of A.T.A., 1997 showers the said Act with an overriding effect and being special law the provisions of section 21-H contained therein makes the confession recorded before police admissible in evidence, yet it can be said that this particular provision is an inborn fault in the said legislation. There exists no device which may shield the accused from feeling the implied pressure influence/coercion/threat or duress exerted by a person wearing a police uniform even if it be considered that nothing such has been done expressively. Besides the apprehension of getting subjected to torture and the hope of winning some favour in case the one making the confession signs the dotted lines of the police or abides by their directions cannot be ruled out altogether. During the proceedings under section 21-H, the idea that continuously surges the mind of the accused is his custody which is to remain with the police, but the same is not the case with the confession made before a Magistrate under section 164, Cr.P.C., who makes the accused certain that after making the confession or getting his statement recorded his custody will not be handed back to the police.

14.       If for the sake of arguments, the confessional statements of the accused persons are considered to be correct despite their legal infirmity, even then the same are not probative enough to yield positive results for the prosecution. The motive as scanned from the confessional statement of the accused Nadeem Abbas and co-accused Jameela Bibi was the recovery of a "memory card" which allegedly contained the video of both the accused persons filmed by themselves while they indulged in the act of coitus. The deceased laid her hands on the said memory card and was allegedly blackmailing accused Jameela Bibi. The deceased was first made unconscious by making use of a tissue paper soaked in chloroform. The bottle of chloroform was obtained from the operation theater by the co-accused Jameela Bibi as per her confession. The memory card was taken out from the brassieres of the deceased and kept by the accused Nadeem Abbas. He allegedly committed rape of the deceased while she lost her senses at the instance of co-accused Jameela Bibi, who cleaned the body of the deceased with a rug after the sexual activity came to a halt. Soon after that the intention of retrieving the memory card transformed into committing murder of the deceased on the score that if left alive she would spill the beans regarding the said happening.

15.       It was nothing else but the above discussed "memory card" which laid the foundation of this whole transaction, but quite astonishingly neither the same was recovered from the accused nor was any evidence put forth by the prosecution regarding the fate of the said memory card. Secondly the prosecution admitted that a dustbin was lying at the venue of occurrence, where the deceased was done to death but the same was not searched neither the tissue paper soaked in chloroform nor the rug used for cleaning was recovered. The whole record is silent with respect to the recovery of the bottle of chloroform as well. In short, the mortar which could have been used to erect the super structure of prosecution's case turned into rubbles because of the happy go lucky behavior shown with respect to the collection of corroboratory evidence, by both the I.O. firstly SIP Faqir Mohammad examined as PW and secondly IP Hafeez-ur-¬Rahman examined as PW-23 in the trial Court.

16.       What has been sketched as motive within the motive was the apprehension, that the deceased will give tongue to whatever happened to her at that time. The statement of accused Nadeem Abbas if read carefully reveals that he was already having an illicit liaison with the deceased much prior to the said incident. In such a situation was there a remotest possibility that the deceased would have told anybody about the said incident? Had she done so, none would have believed her because it is not a child play to barge in a girl hostel, commit rape with a trainee nurse and flee from there without any restraint from any quarter and the same would have resulted in utter humiliation for her, even otherwise the deceased was an unmarried girl and she would have been mindful and cautious of the future repercussion which must have followed any such disclosure, as a summation of all this the reason furnished for the murder of deceased does not stand to reason.

17.       Secondly the venue of occurrence as depicted in the site plan Exh. PW.9/A negates the prosecution version because it is not at all congenial for such a heinous activity, the venue of occurrence illustrates that the room of house mother Jameela Bibi is shared by both Jameela Bibi and another house mother namely Mumtaz Begum. The dining hall where the deceased was allegedly hanged is adjacent to the sleeping room where all the under training nurses who were fourteen in number used to sleep. In this regard it is important to point towards the testimony of one of the prosecution witness namely "Sabeeha" who was in fact the first to see the deceased hanging from the fan. She averred that she saw the dead body at 4:30-5:00 a.m. while she was going to make tea after attending washroom because the heater (used for cooking purposes) is located in the dining hall where the deceased was found hanging. She further stated that as their examination was about to commence, so they slept at 12:00 O'Clock at night on the said date. It also surfaced in her testimony that she did not hear any knocking at the door during that night. The testimony of said PW is of vital importance since it unravels a number of mysterious knots of the instant controversy. It is to be seen that the trainee nurses were not having an attach bathroom, they used to go somewhere inside or near the dining hall to answer the nature's call. Moreover, all of them slept at 12:00 O'Clock at that night which was shown to be the time of arrival of the accused in the midwifery hostel. Now the question arises that whether it was at all feasible for the accused persons to hang the dead body of the deceased in the dining hall which could have been visited by any of them at any time. Besides there is no evidence that the said hall was bolted from inside, even otherwise bolting such a common place would surely have raised alarm had someone knocked at the door at the time when the proceedings were continue. In addition it is pivotal to be penned here that to regulate the discipline of the hostel falls within the responsibilities of a house mother, it cannot be expected that the co-accused Jameela Bibi was unaware of the examination which was in the offing and the time at which the nurses slept. It does not appeal to reason that the roommates of the deceased who slept at 12:00 O'Clock at night were so dead to the world that none of them heard knocking at the door or the sound when the door of sleeping room was unlocked, amongst the fourteen trainee nurses only the above mentioned (Mst. Saba) as P.W-5 was examined by the prosecution. Admittedly there is no last seen evidence which could even remotely suggest that the deceased was either rang up or taken out by the co-accused Jameela Bibi.

18.       As discussed above, the room where the deceased was allegedly assassinated was shared by house mother Mumtaz Begum and co-accused Jameela Bibi. The said room could have been germane to such an activity had the prosecution established that Mumtaz Begum the roommate of Jameela Bibi co-accused was either absent or on a night duty on that fateful date. To my utter astonishment the said PW was declared hostile by the prosecution when she stated that she was on vacations during the said happening. Prosecution herself clipped her wings by doing so. The synopsis of the above discussion is that the place of occurrence was not appropriate enough to afford the accused persons an opportunity of committing murder of an under trainee nurse with such an ease.

19.       Thirdly, the chronological sequence of certain happening which occurred during the course of investigation and the recoveries effected also have a telling effect on the prosecution case. The arrest of accused Nadeem Abbas took place at 29-05-2011 and he was committed to judicial lockup at 09-06-2011. The three accused persons allegedly identified the Dopatta with which the deceased was found hanging with the fan at 01-07-2011. The mobile G-5 4808 was recovered at 16.05.2011. The Samsung set alleged to be in use of accused Nadeem Abbas was recovered on 04-06-2011 and the mobile phone Nokia allegedly handed over by deceased to accused was also recovered on the same date. The re-remand of accused was sought at 14-07-2011 which was granted by the Magistrate on 15-07-2011. It is to be noted here that the accused was committed to judicial lockup on 09-06-2011 and he remained there till his re-remand to the police on 15.07.2011. This particular fact gives rise to serious questions regarding genuineness and credibility of the recoveries effected in between these two very crucial dates. The happenings which took place after the accused was handed over to the police on re-remand are enlisted hereunder.

i.          Identification of place of occurrence 21-07-2011.

ii.         Recovery of pillow alleged to have been used to kill the deceased on 28-07-2011.

iii.        Compact disc recovered through an informer containing sexual film of accused Nadeem Abbas and deceased Shabana Akhtar 31-07-2011.

iv.        Recovery of cell phone of Jamila Bibi 22-07-2011.

v.         Recording of confessional statement of accused on 02-08-2011.

20.       From the above description it is quite clear that the re-remand of accused was sought only to extract confessional statement from the accused. The lapse of time in between various happenings cannot be reconciled in any manner. The arrest of accused Ijlal Hussain took place on 16-07-2011 whose name as co-accused was allegedly disclosed by the main accused Nadeem Abbas. It is interesting to mention here that PW. Ghaib Ali Shah Magistrate 2nd class averred during his examination in chief that in his presence accused Ijlal Hussain, Jameela Bibi and Nadeem Abbas identified the Dopatta of the deceased. PW Shahid Hussain photographer stated that on 01-07-2011 he was present in the investigation wing where the Dopatta was identified, if the statement made by the I.O. Hafeez Ur Rahman PW-23 that he arrested the accused Ijlal Hussain on 16-07-2011 at the disclosure of main accused is considered correct it belies the statement of PW-9 and PW-19 who alleged to have witnessed the identification of Dopatta by all the three accused. If the testimony of both these PWs is taken in account then the question arises that when the accused had identified the Dopatta on 01-07-2011 why he was arrested after the lapse of 15 days on 16-07-2011.

21.       From a careful scrutiny of the above mentioned incidents which crept up during the investigation, it can be said without any restraint that police while making application for re-remand was not having any solid evidence nor there were exceptional circumstances existing to justify the re-remand.

22.       It is observed with concern and caution that the Magistrate regulating the remand proceeding should be very cautious in granting or refusing remand. His order in either way is to be supported with logical and legal reasoning. Any mistake committed by him can have serious ramifications and same may change the countenance of either the prosecution or the defense case that too in a perverse manner. In this regard I am guided by the wisdom laid explicit in PLD 2005 SC 86 where it has been held "Magistrate who grants remand is under legal duty to justify himself if under the given circumstances, remand is to be granted or not. Liberty of a person cannot be curtailed and he has a legal right to explain his point of view before the Magistrate when remand is to be granted and it is a sacred duty of the Magistrate to safeguard the rights of the people remand is not to be granted automatically after the police make such a request." The duty becomes almost sacred when the question is that of re-remand of the accused once committed to judicial lockup. As a future guidance for the Magistrates who are or will be at the helm of remand proceedings, I am inclined to reproduce the guidelines enumerated in 1984 PCr.LJ 2588 and reproduced in an august Judgment of the Hon'ble Supreme Court of Pakistan PLD 2001 SC 607.

"A learned single Judge of the Lahore High Court laid down the following 18 guidelines for the Magistrates in granting or refusing remand:-

1. During first 15 days, the Magistrate may authorize the detention of the accused in judicial custody liberally but shall not authorize the detention in the custody of the police except on strong and exceptional grounds and that too. For the shortest possible period.

            2. The Magistrate shall record reasons for the grant of remand.

3. The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned.

4. After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case, the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety.

5. After the expiry of 15 days, no remand shall be granted unless the application is moved by the police for the grant of remand/adjournment.

6. The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C.

7. Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that after further evidence will be obtained after the remand is granted.

8. The Magistrate shall not grant remand/adjournment in the absence of the accused.

            9. The Magistrate should avoid giving remand/adjournment at his residence.

10. The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/remand.

11. The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same.

12. The Magistrate shall examine police file before deciding the question of remand.

13. If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand/adjournment.

14. The Magistrate shall not allow remand/adjournment after two months (which is a reasonable time) of the arrest of the accused unless it is unavoidable.

15. In case, complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses.

16. If the challan is not submitted within two months, the Magistrate shall report the matter to the Sessions Judge of the District and also bring the default of the police to the notice of Superintendent of Police of the District.

17. The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/police.

18. The Magistrate shall always give reasons for the grant of remand and adjournment."

23.       The recovery of pillow vide recovery memo Exh. PW-1/I, effected on 28-07-2011 is also of no avail to the prosecution. If the same is taken to be the weapon of the offence, the exhumation report by virtue of which the medical board found ligature marks dashes down to the ground because ligature can be anything used to compress the throat to block the air supply and ligature marks are found because of the force exerted by the ligature to cut down the air supply from the throat, appearing of ligature marks that too in case of such a person who was killed by using a pillow to compress her mouth and nostril while she was unconscious and not in a position to resist is something out of question. It is also worth mentioning that the said pillow has been identified by one of the co-accused Ijlal Hussain, his role if deciphered from the confessional statement started after the deceased took his last breath. It transpires from the confessional statement that the said accused was called in owing to the inability of the rest of the accused to carry the deceased, in such a predicament and paucity of time, the disclosure with respect to mode and manner in which the deceased was killed is against natural conduct. The prosecution also recovered a compact disc on 31-07-2011 allegedly handed over by an informer containing the films of illicit liaison of the accused Nadeem Abbas and deceased Shabana Akhtar but the said DSP namely Ibrahim was not examined in this regard. Besides prosecution did not get it identified that the sexual acts being filmed were performed by the accused and deceased, as a matter of fact it is not the prosecution case that the deceased was blackmailing the accused Nadeem Abbas or in either way demanding anything from him rather from the prosecution point of view she was having the memory card which allegedly contained sexually exploited material pertaining to the accused and co-accused Jameela Bibi. Suffice to say that this piece of recovery also defies to lend support to the prosecution version in any manner. In addition to the confessional statements recorded under section 21-H, there exists some other sort of confession in the prosecution record as well, which has been termed as "extra-judicial confession". This particular term in order to convey its proper meanings requires elaboration. Black's law dictionary defines the words extra and extra-judicial in the following manner:-

            Extra---Beyond, except, without, out of, additional.

            Extra Judicial---Outside Court, outside the functioning of Court system.

            If seen in the context of the above definitions an extra judicial confession is a confession made either outside of the Court or outside the functioning of Court system. The sentence "outside the functioning of Court system" is wide enough to bring within its sphere any official in authority who in any manner is a part of functioning of Court system, hence the disclosure recorded by the Magistrate 2nd class who ventured a step further by getting some filmed and transformed into a CD, can neither be termed as confession nor extra Judicial confession. Besides the same has been recorded while all the three accused confessed jointly. The recovery of pillow has been effected on 28.7.2011, on the same day accused Nadeem Abbas and Ijlal Hussain identified the same. Many of the exercises carried during the investigation seem to be a "joint venture", bringing all of them to a nullity in the eyes of law. The Hon'ble Supreme Court has profoundly mediated upon the worth of "extra judicial confession" in 2006 SCMR 231, joint confession cannot be used against either of the accused. Extra judicial confession is always a weak type of evidence which can easily be procured, whenever direct evidence is not available, exercise of utmost care and caution has always been the rule prescribed by the Supreme Court in such cases, motivating factors for a person guilty of offence entailing capital punishment to make a confession generally are (1). To boast off, (2). To ventilate the suffocating conscience and (3). To seek help when actually trapped by investigation from a third person who is authoritative socially or officially, extra judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. When the investigating officer fails to properly investigate the case, he resorts to padding and concoctions like extra judicial confessions, which by now have become the signs of incompetent investigation. Judicial mind, therefore, before relying upon such weak type of evidence, capable of being effortlessly procured, must ask a few questions, like why the accused should at all confess, what is the time long between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship and friendship of the witnesses with the maker of confession and what above all is the position or authority held by the witnesses. In view of this the evidence of so-called extra judicial confession also cuts a sorry figure with respect to the case of prosecution.

24.       As a matter of fact every benefit of doubt always tends to tilt the balance of justice in favour of the accused, but where the same is occasioned owing to the inefficiency of investigating officer or where the same seeps in a verdict because of below the mark proceeding conducted by the police personnel it becomes all the mores pinching and heart rendering for Judge, specially where the record screams out that the doubt pulling faces to the aggrieved victim have been devised, designed and mechanized by a satanic intent of benefiting the accused at the expense of the one who pins his hopes in the judicial system of the country, this devastative phenomenon has two prong impacts on the society on one hand, it gives a clean chit to the guilty on the other, it makes the bereaved complainant septic and hostile towards the whole system of dispensing justice, instant case is one of the befitting example where, lacunas have specifically been created to shower the accused with the blessing at times yielded by such devilishly lethargic and patently dishonest investigation. My heart is bleeding over such a bleak scenario where the whole exercise of entangling the parties into a cumbersome schedule of hectic trial fizzles out the fag end of the trial. I intends to direct the Chief Secretary Gilgit-Baltistan to convene a meeting with IGP to curb the above mentioned tendency and those involved in such a heinous high handedness must be brought to the book to restore the confidence of the society in the institutions created for the purpose of maintaining the social order and dispensing Justice.

25.       The synopsis of the above discussion is that the prosecution which is supposed to prove her case up to the hilt beyond any shadow of doubt has miserably failed to do so, rather there is thick mist of doubt looming over the prosecution case. In such a scenario, no reliance can be placed on the mockery evidence produced by the prosecution, hence I part with the said judgment with the words that there are multiple doubts emerging out of the available record whose benefit tends to loose the handcuff of the accused and stamps their liberty, while agreeing with the judgment of my brother Mr. Justice Wazir Shakeel Ahmad. I acquit all the accused of the charges extending them the benefit of doubt.

26.       Accused Nadeem Abbas and Jamila Bibi are in Judicial custody, they shall be released forthwith if not required to be detained in any other case. Accused Ijlal Hussain's sentence was suspended by this Court under section 426, Cr.P.C., his bail bonds are discharged and his sureties are relieved from their liabilities.

27.       Murder reference No. 06/2011 of accused Nadeem Abbas is answered in negative.

28.       The Registrar Chief Court will circulate copies of this judgment to all the Sessions Judges/Addl. Sessions Judges and Judicial Magistrates of Gilgit-Baltistan for guidance/compliance and a copy of this judgment be also sent to Chief Secretary Gilgit-Baltistan for taking necessary action as directed in para 24 of the judgment.

Sd/-

Malik Haq Nawaz, J.

Haji Daulat Karim and Burhan Wali for Appellants (in Cr. Appeal No. 26 of 2011).

Raja Shakeel Ahmed and Raja Zia-ur-Rehman for Appellant (in Cr. Appeal No. 33 of 2011).

            Amjad Hussain for Appellant (in Cr. Appeal No. 1 of 2012).

            Deputy Advocate-General for Respondent/State (in Cr. Appeal No. 1 of 2012).

            MUHAMMAD ALAM, J.---This is a criminal appeal No.26/2011 under section 410, Cr.P.C. against the conviction/order dated 19-12-2011, passed by the learned Judge Anti-Terrorism Court, Gilgit in T.C. No.27/2011. The learned court passed the impugned order which goes as under:

109. In view of the discussions made in para Nos.17 to 94 and paras Nos.99 to 109, my findings against accused Nadeem Abbas, accused Jameela Bibi and accused Ijlal Hussain are as under:-

(i) After evaluation of entire evidence of prosecution, I am of the considered opinion that prosecution has proved its case against accused Nadeem Abbas, accused Jameela Bibi and accused Ijlal Hussain beyond any shadow of doubt by providing sufficient evidence in the shape of circumstantial evidence, confessional statements of the above named three accused, Extra Judicial Confession of accused Nadeem Abbas, recovery of Pillow, CD Exh.P/1, and call and messages record.

(ii) No mitigating circumstances are available in favour of the accused Nadeem Abbas, accused Jameela Bibi as they have put the Pillow on the mouth of deceased Shabana Akhtar in furtherance of their common intention. The manner, in which the acused have committed the murder of deceased Shabana Akhtar, who was under trainee nurse, does not call for any leniency in the sentence.

(iii) In the light of the above discussion, I hold that the prosecution has proved guilt of accused Nadeem Abbas and accused Jameela Bibi for murder of deceased Shabana Akhtar in furtherance of their common intention, hence, I convict accused Nadeem Abbas under section 302(b) read with section 7(a) of the Anti-Terrorism Act 1997 and sentence him to death. He be hanged by his neck till he be dead the accused shall pay fine of Rs. 300,000/- (Rupees three lac), the amount of fine, if recovered shall be paid to the LRs of deceased Shabana Akhtar under section 544-A, Cr.P.C. I, convict Jameela Bibi under section 302(b) read with section 7(a) of the Anti-Terrorism Act 1997 and sentence her to undergo rigorous imprisonment for life and also fine of Rs.300,000/- (Rupees three lac). The amount of fine, if recovered shall be paid to LRs of the deceased under section 544-A, Cr.P.C. In default of payment of fine by the convict accused, they shall undergo rigorous imprisonment for two years.

(iv) I, convict accused Ijlal Hussain under section 201, P.P.C. and sentence him to rigorous imprisonment for a term of 7 (seven) years and to pay fine of Rs.100,000/- (Rupees one lac). The amount of fine, if recovered shall be paid to the LRs of the deceased under section 544-A, Cr.P.C.

(v) I, also convict accused Ijlal Hussain under section 202, P.P.C. and sentence him to imprisonment for a term of 6 (six) years.

            (vi) Benefit of section 382(B), Cr.P.C. be given to the convict accused.

110. Warrant of commitment for sentence of death of convict accused Nadeem Abbas be sent to the Superintendent District Jail, Gilgit for safe custody till the execution of sentence. Warrant of commitment also be sent for execution of sentences of accused Jameela Bibi and accused Ijlal Hussain.

111. Copy of judgment given to convict accused free of cost and directed them that they can file appeal before the Honourable Gilgit-Baltistan Chief Court within 7 (seven) days against the sentence of death and imprisonment awarded to them. Copy of judgment also given to learned Public Prosecutor free of cost.

112. Record of the case be transmitted to the Honourable Gilgit-Baltistan Chief Court as provided under section 25 of the Anti-Terrorism Act 1997 read with section 374, Cr.P.C. for confirmation of death sentence awarded to convict-accused Nadeem Abbas."

Appellant/convict Nadeem Abbas has filed Criminal Appeal No.26/2011, appellant/convict Ijlal Hussain has filed Criminal Appeal No.01/2012 and appellant/convict Jameela Bibi has filed Criminal Appeal No.33/2011, under section 410, Cr.P.C., for their acquittal by setting aside the impugned order. Order impugned through these appeals is the above reproduced order. Through my this order/judgment, I dispose of the above referred three criminal appeals. This order/judgment be placed on the files of above referred three criminal appeals. So, hereunder, appellants mean appellants of the above referred three appeals while respondents mean respondents of the said three appeals.

2.         Police, of Police Station City Gilgit, chalked FIR No.145/2011 on 17-05-2011, on the written application of complainant, S.I.P. Faqeer Mohammad, wherein, the occurrence was reported. The staff of DHQ Hospital reported that deceased Shabana, who was under training as Nursing Assistant, was found dead hanging with a fan in the dining hall of the Nursing Assistants. The occurrence was reported as suicide by the deceased. Police conducted proceedings under section 156, Cr.P.C. and initially the FIR was chalked for the offences of section 322/34, Cr.P.C.

3.         After chalking FIR, police completed investigation and submitted challan. In the case in hand, it is very important to note that police exhumed the dead body of the deceased and obtained second post mortem report of the so exhumed dead body. The two post mortem reports are different and for ready reference, I am reproducing opinion of the doctors in both the said reports (infra).

4.         I have heard learned counsel for parties and have gone through the material available on file. In the case in hand, the occurrence is unseen, therefore, there is no eye-witness. The only evidence against the appellants is the circumstantial evidence, read with the second medical report which contradicts the first medical report on very crucial aspects of the occurrence, i.e., whether the death of the deceased was result of any offence, amounting to intentional murder or the same was result of any suicide by the deceased herself. Learned counsel for parties argued on this aspect of the case. The evidence on record regarding messages and calls between convict/accused and the deceased, in the shape of Exh.PW-23/K show that appellants had connection with the deceased. While convicting and sentencing the convicts/appellants, learned trial court has relied on the following prosecution evidence:

i.          Confessional statements of Exh.PW-13/A, Exh.PW-13/B and Exh.PW-13/C of the convicts/appellants.

ii.         Extra-Judicial Confession of accused Nadeem Abbas (PW-9).

iii.        Medical Evidence which confirms the death of deceased Shabana Akhtar as a result of anoxia.

iv.        Recovery of pillow which has been used in the commission of the crime vide recovery memo Exh.PW-9/C in presence of magistrate (PW-9).

v.         CDs/Movies.

vi.        Call and Message record Exh.PW-23/K.

vii.       Site Plan Exh.PW-9/A of the place of occurrence which has been prepared on the pointation of accused Nadeem Abbas in presence of magistrate Syed Ghaib Ali Shah (PW-9).

viii.      Site plan Exh.PW-2/A which has been prepared on the pointation of accused Jameela Bibi in presence of magistrate (PW-9).

5.         I have thoughtfully considered the arguments of the counsel for parties and have minutely perused the prosecution evidence. I do not agree with the trial court, regarding his opinion of relying on the above described all pieces of prosecution evidence. The learned trial court has wrongly relied on confessional statement of the appellants as the same has been recorded by a police officer although judicial magistrates were conveniently available in city Gilgit. There are chains of rulings, wherein, the superior judiciary of the country has not relied on such statements. Moreover, the prosecution has joined a magistrate in almost all the investigation proceedings which has also been repeatedly and strongly deprecated by our superior judiciary. The acceptance of statement of appellant/convict Nadeem Abbas by the trial court is also wrong as the same can never be termed as an extra judicial confession. Any statement made by any accused in custody of police can never be termed as extra judicial confession.

6.         The opinion of the lady doctor, Dr. Dilshad Begum, through the first medical report, Exh.PW¬23/I, goes as under:

"In my opinion deceased Shabana Akhtar died due to hanging resulting in transaction of spinal cord at a very high level leading to failure of multiple vital organs such as heart, lung and brain. This injury is sufficient to cause death in ordinary course of nature. The time elapsed between death and post mortem is round about eight to ten hours."

7.         The only piece of evidence which cannot be ignored is the second medical report. The doctors conducted the said second medical report on the dead body of deceased after exhuming the same from the tomb where deceased was buried. Prosecution has established the facts that the dead body that was subjected to the second post mortem was of deceased. The doctors who prepared second medical report opined that:

            External Postmortem Examination:

            . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

            . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

            . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1.         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.         Contusions present on the front of right shoulder and breast (right) measuring 10*6*8 cm in diameter. Incision given here to know the nature of injury and it showed that it is ante mortem in nature.

4.         Contusions present on the left breast measuring 6*4*4 cm in diameter and it is ante mortem in nature.

5.         Three contusions present on the lateral aspect of right upper 1/3 of right arm measuring 8*3*4 cm in diameter and it is ante mortem in nature.

6.         Contusions present on the front of left arm in its upper 1/3 measuring 6*4*4 cm in diameter and it is ante mortem.

7.         Contusion present on the dorsal aspect of right knee measuring 3*2 cm in diameter and it is ante mortem.

8.         ..........................................................................

            Internal Postmortem Examination:

            HEAD AND NECK:

On dissection of head, the brain matter is shrunken and there is no blood or any remnant present in the skull cavity.

On dissection of neck, the ligature mark mentioned in the wound No.7 shows contusions of neck muscles and subcutaneous tissue while wound No.2 has got no contusions marks.

            THORAX:

On thoratic examination there were contusions present below the skin of both breast and front of right shoulder which is ante mortem in nature.

            ABDOMEN:

On abdominal examination all the organs found healthy. Uterus taken out from the cavity and the dissection done which shows no products of conception.

            OPINION:

"The board is of the opinion that deceased died due to injury No.1, which caused obstruction of upper respiratory track, which resulted in anoxia leading to death. This injury marks is homicidal in nature and before this she has been violated as evident from injury No.3 to injury No.8. All these injuries were ante mortem in nature and was sufficient to cause death in an ordinary course of life."

8.         So, in the case in hand, I had to rely upon the prosecution evidence comprised of the two medical reports or post mortem reports, read with prosecution evidence of messages and calls record in the mobiles of appellants/convicts and the deceased, showing continuous contacts of the appellants/convicts with the deceased. The first medical report, Exh.PW-23/I, was conducted by a lady doctor, Dr. Dilshad Begum, while the second medical report, Exh.PW-21/A.1 to A.2, was prepared under the supervision of a medical board of doctors. The said medical report was constituted in the light of an order of the Hon'ble Supreme Appellate Court (Exh.PW-23/D). A comparative study of both the reports clearly shows that the first report is very short and summary while the second medical report contains all necessary details that correctly related to the opinion of the board of doctors. The first report was prepared without internal examination of the dead body of deceased while the second report shows through examination of different internal parts of the body of deceased. I have underlined the opinion of the board of doctors with the words ante-mortem. This word clearly shows that deceased received injuries at different parts of her body before she was murdered. The opinion of the doctors of the board very clearly contradicts the first medical report regarding the causes of death of deceased. I rely on the second medical report and hold that the learned trial court has correctly relied on the same. Second medical report is correct and death of deceased is her intentional murder by the convicts/appellants and not because of any suicide etc.

9.         Result is that I uphold the sentence/conviction passed by the trial court and the appeals in hand are dismissed. Murder Reference No.06/201 1 dated 21.12.2011, bearing ATC No.ATC-1(S.R)/J/1346/ 2011, also answered affirmatively. All the three files be consigned to record.

Sd/-

Muhammad Alam, J

            WAZIR SHAKEEL AHMED, J.---Following are the reasons of my disagreement with the judgment of my brother Judge Mr. Justice Muhammad Alam of 02-12-2015 whereby sentence/conviction awarded to the appellants by the trial court vide impugned judgment dated 19-12-2011 was upheld by dismissing the instant appeals bearing numbers Cr. Appeal 26, 33/11 and 01/12.

2.         The precise facts of the case in hand are that one Shabana Akhtar daughter of Doulat Ali under trainee as Nursing Assistance was found dead hanging in the dining hall of hostel of Nursing Assistants and police after necessary investigation got registered FIR under section 322/34, Cr.P.C. On 17-5¬-2011, on written murasila submitted by SIP Faqir Muhammad PW-1. According to the narration of same on 13-5-2011 at about 6:45 hours, after receiving the report from D.H.Q Hospital that Mst. Shabana Akhtar daughter of Doulat Ali trainee has committed suicide by hanging herself from the ceiling fan of dining hall of the hostel, police initiated investigation during which it was found that the suicide was doubtful and after getting necessary permission under section 156, Cr.P.C. from Judicial Magistrate conducted further investigation during the same the statement a Nadeem Abbas son of Ghulam Abbas (present appellant) was got recorded which disclosed that accused Syed Jarrar, Ishfaq Hussain and Shafaqat have found to be involved in indecent messages and were also found blackmailing the said deceased Shabana Akhtar regarding spreading of her videos in the whole hospital and in this way the person named above were found to force the deceased to suicide and it was further narrated in 1st report by PW-1 that the police till the procurement of autopsy report found the case as that of 322/34, P.P.C. and got chalked the same on 12-11-2015 at 6:45 hours.

3.         The PW-1 during his initial investigation prepared site plan of place of occurrence Exh-PW-¬1/A, and also site inspection report Exh-PW-1/B, inquest report Exh-PW-1/C, he took the dead body of deceased in his possession vide Exh-PW-1/D got identified deceased vide Exh-PW-1/E, handed over the dead body of deceased to Medical Officer Exh¬PW-1/F, and received the same back vide Exh-PW¬1/G and further handed over to L.Rs of deceased vide Exh-PW-1/H. He also took in possession a white dopata of Shabana Akhtar vide Exh-PW-1/I and Uniform vide Exh-PW-1/J, he further took into possession of one mobile phone G-5 which allegedly belonged to deceased Shabana Akhtar and which was handed over to S.P. by present appellant Nadeem Abbas. PW-1 also got into his possession one Nokia mobile on the pointation of appellant Nadeem Abbas which was allegedly handed over to appellant Nadeem Abbas by deceased Shabana Akhtar some 3/4 months prior to the occurrence vide Exh-PW-1/L and he on the pointation of the appellant also took possession of Samsung mobile from a mobile shop owned by Tuqeer Hussain near Imamia Masjid vide Exh-PW-1/M. This PW also got recorded the statements of PWs under section 161, Cr.P.C. vide Exh-PW-1/N and sent murasila vide Exh-PW-1/O to SHO Police Station City Gilgit for lodging FIR.

4.         The appellant Nadeem Abbas who was arrested on 29-5-2011 was committed to Judicial Lock -up and on 9-6-2011 the SHO Police Station got prepared challan of the case under section 322, P.P.C. On 14-6-2011 SHO City submitted challan vide Exh¬PW-23/A against the appellant to the prosecution branch for wetting purpose. On the same day the apex Court on the application of father of deceased Shabana took Suo Motu Notice of the instant case and directed DIG Crime to constitute JIT to conduct and carry out the investigation, the apex Court also remarked that they may observe that case may ultimately as result of investigation attract A.T. Act, 1997, therefore DIG Crime will constitute JIT.

5.         The record further transpires that in compliance of apex Court the fresh JIT was formulated which got recorded confessional statements of the present appellants under 21-H of A.T. Act, 1997 and registered a case under sections 302, 322 and 201, P.P.C. and also under sections 6/7, A.T.A., 1997 against the present appellants.

6.         The apex Court on 09-8-2011, when the above status of the case was apprised by the S.P Gilgit, found that the previous autopsy report, was misleading and it was finally directed DIG Investigation to take necessary steps for exhumation of dead body of deceased in presence of Magistrate through a medical board of PIMS Islamabad and also directed for submission of final report under section 173, Cr.P.C. after the postmortem of the dead body. The apex Court further directed the Chief Secretary to initiate departmental inquiry into the conduct of doctors and hospital officials who were instrumental in declaring murder of deceased girl as suicide. It was further directed that the JIT shall extent the scope of investigation to fix the responsibility under sections 201/202, P.P.C. It was also directed by the apex Court that the report regarding the action taken by Chief Secretary and also by the DIG Investigation shall be submitted in three weeks.

            Under the above directions of the apex Court the board of doctors conducted the re-postmortem of deceased and submitted their exhumation report Exh-PW-21/A1, A2 on 21-9-2011 and thereafter incomplete challan bearing No.262/11 was submitted before the ATA Court on 28-9-2011 against the present appellants and the completed challan was further submitted by JIT on 10-10-2011 after arresting accused Dr. Dilshad Begum whose name was placed in column No.2 in challan.

7.         The prosecution based its case on the following:-

1.         Confessional statements of accused under section 21-H of ATA.

2.         Extra Judicial Confession.

3.         Recoveries.

4.         Circumstantial Evidence.

5.         Medical Report/exhumation.

6.         Telephone calls.

            The case set up by the prosecution under the above enumerated categories of evidence as incorporated in the challan of the case are that appellant Nadeem Abbas had illicit relations with the house mother of Midwifery Nursing Hostel namely Jamila Bibi appellant since long. In the year 2010 deceased Shabana Akhtar got admitted as midwifery nursing trainee in the above hostel and illicit relations between Nadeem Abbas appellant and Shabana Akhtar was also established. Appellant Nadeem Abbas took above lady to village Danyor outside Gilgit in the house of his relative namely Mehar Ali pretending deceased as his wife and stayed there for a night. Thereafter, the prosecution according to the contents of the challan of the case abruptly discloses about a compact disc (CD) Exh.¬PW-10/1 regarding the illicit relation between appellant and deceased lady and narrates about the allegedly been recovery of the same. Likewise it is also alleged that appellant Nadeem Abbas also established sexual relations with appellant Jamila Bibi in the month of May 2011 and movie of same was prepared by the two. The memory card was kept by appellant Jamila Bibi with herself but some time before the occurrence, it was lost by the appellant Jamila Bibi and the same was allegedly came into the hands of deceased Shabana Akhtar whereby she started blackmailing the appellant Jamila Bibi who was naturally worried about the same and on 11.5.2011 the two appellants named above met out near the ICT Ward of D.H.Q. hospital where upon Jamila Bibi apprises Nadeem Abbas about the missing of the memory card and they chalked out a plan to get the missing memory card from the deceased lady. According to the above plan Nadeem Abbas on the very next day i.e. 12.5.2011 in the morning went to the DHQ hospital and got mobile from Shabana deceased and as per plan he reached Midwifery Hostel at about 12 o'clock at night on 12/13.5.2011 and Jamila Bibi after the opening corridor let Nadeem Abbas into her room and as appellant Jamila Bibi had already talked to deceased lady that in case of any emergency she will come to her to take her out and she accordingly called Shabana to her room. Shabana Akthar deceased by seeing appellant Nadeem Abbas expressed her wonder and enquired about his presence there whereupon, appellant lady said that she had called him and sat besides appellant Nadeem Abbas on the bed. Meanwhile, appellant lady took appellant out of the room and handed over a tissue paper containing chloroform which she had collected from operation theater by saying that the same is to be used to unconscious Shabana Akhtar.

8.         According to the narration of challan, Nadeem Abbas during gossips, all of the sudden put the above tissue paper on the face of deceased lady whereupon the deceased lady tried to resist but she was controlled by Nadeem Abbas as he caught hold of her hands while appellant lady caught hold of her legs and in a few moments Shabana was unconscious and appellant lady allegedly searched her body and got the lost memory card from inner side of her brassier. Thereafter the appellant Jamila Bibi directed appellant Nadeem Abbas to commit Zina with the lady in the state of her unconsciousness which he accordingly committed. The appellant Jamila Bibi got cleaned the body of Shabana Akhtar and after putting her shalwar on, told Nadeem Abbas that now she be finished otherwise she by telling the incident to all shall cause them a great problem whereupon appellant Nadeem Abbas allegedly put a pillow on the mouth and nose of deceased lady due to which she died on the spot and thereafter both appellants named above in order to get spread the cause of death as suicide, tried to take the body of deceased to dining hall to hang on the ceiling fan of the hall but they hardly managed to take the body near the door where appellant Jamila Bibi went outside to call appellant Ijlal Hussain to help them. The said Ijlal Hussain, according to the police story present on the spot did not try to stop the other two appellants from committing the offence willfully kept open the outer side of the hostel and in this way the three appellants took the dead body to dining hall whereby appellant Nadeem Abbas got knot the neck of trainee lady Shabana from her dopata of uniform and hanged on the fan with the help of two other appellants but due to movement of the fan they could not hang on the body properly, after commission of offence he went to his house and the two appellants Ijlal Hussain and Jamila Bibi as per plan spread news of suicide of the trainee. After completion of investigation these three appellants were committed to Judicial Hawalat after getting recorded their statements under section 21-H of A.T.A., 1997.

9.         On the directions of apex Court the examination process was carried out as mentioned above. The second postmortem report was submitted whereby it was opioned that the deceased died due to injury No.1 which caused obstruction of upper respiratory tract, which resulted in anoxia leading to death. This injury marked was homicidal in nature and it was also held that before this she had been violated as evident from the injuries Nos. 3 to 8. These injuries were ante mortem in nature and were sufficient to cause death.

10.       The prosecution in support of its case narrated above got adduced 23 P.Ws. after closing the same the appellants were examined under section 342, Cr.P.C. and also recorded their statements on oath under section 340(2), Cr.P.C. The prosecution in the light of second autopsy report found the first one fictitious and booked appellant Dr. Dilshad Begum and Dr. Wazir Ali Muhammad whose names were placed in column No.2 of the challan.

11.       I have gone through the record of the case minutely and have observed that the learned trial Judge has nowhere in the paras 8 and 15 of the impugned judgment has incorporated/enlisted the motive of the offence which is of course the sexual relations in between the co-appellants i.e. Nadeem Abbas and Jamila Bibi and saving of the video film of the same in the memory card of appellant Jamila Bibi, which was allegedly gone to the deceased Shabana Akhtar and as discussed above the offence of murder was allegedly committed by the two appellants Nadeem Abbas and Jamila Bibi due to the constant blackmailing of the deceased as according to the story of the prosecution set out for the first time during the recording of 21-H under ATA, the above memory card was lost by the appellant Jamila Bibi and was allegedly went into the hands of the deceased. It is also on record that according to police case after the alleged murder appellant Jamila got the alleged memory card from the body of deceased trainee but police totally failed to recover the same either from Nadeem Abbas or from Jamila Bibi and it can safely be said that no memory card could be retrieved from the appellants and the same is not a part of the record of the case.

12.       As stated earlier police had claimed recovery of a video of appellant Nadeem Abbas having sexual intercourse with Shabana Akhtar which was allegedly got recovered by one of JIT members namely DSP Ibrahim but the same is neither found to be placed on record nor the above member of JIT namely DSP Ibrahim was cited as PW in support of recovery memo Exh-PW-23/K.

13.       It is also alleged that the appellant Nadeem Abbas committed the offence of Zina with Shabana Akhtar at Danyore in the house of one Meher Ali instead of the above Meher Ali one Mazhar was cited PW as circumstantial evidence of staying of appellants Nadeem Abbas and Shabana Akhtar at Danyore in his house where they allegedly indulged into sexual intercourse as mentioned above but the prosecution for the best reasons known to them abandoned this PW Mazhar also along with DSP Ibrahim.

14.       As far as the alleged sexual assault by the appellant Nadeem Abbas with the dead body of the deceased is concerned the prosecution also failed to prove the same because as per record of this case the viginal swabs of the deceased lady were duly taken by the lady doctor Dilshad Begum during autopsy which were duly examined in laboratory of the DHQ hospital and according to the report whereof no protozoa was found and accordingly the concerned technician submitted nil report that's why prosecution failed to cite the Pathologist of DHQ hospital who has submitted written report to JIT that the viginal swabs of the deceased lady cannot be furnished afresh to the JIT at that belated stage because the same has already got and found nil. So it is clear from the record of the case that prosecution had set out a clear motive for commission of the offence committed by the appellants but failed to establish the same.

15.       It is also on record that the prosecution has set out a story which resulted into the association of appellant Nadeem Abbas in the case in hand according to which soon after the occurrence i.e. on the very next day of occurrence appellant Nadeem Abbas handed over a mobile phone of Shabana Akhtar to S.P Azam on 15-5-2011 saying that the same was given to him by the deceased lady to him by saying she is facing problems due to the retention of the mobile set . The police on the basis of recovery memo Exh-PW-1/K took the above mobile phone and arrested accused Syed Jrar, Ashfaq Hussain and Shafqat on the basis of record of messages through the above recovered mobile phone.

16.       It will not be out of context to mention here that the prosecution in the light of their investigation under section 174, Cr.P.C. found appellant Nadeem Abbas involved in the alleged suicide of deceased lady and challan to that extent was prepared in which the accused persons named above were exonerated under section 169, Cr.P.C. The record of the present case transpires that the prosecution had miserably failed to include the name of the S.P to whom the present appellant Nadeem Abbas handed over the mobile phone of deceased lady nor the contents of the record of messages were verified/confronted before the trial court.

17.       As discussed above the prosecution has set up the case against the present appellant Nadeem Abbas on the basis of alleged recoveries of mobile phones and the data of messages of the same. In this regard prosecution claims certain conversations of appellant Nadeem Abbas using the number of deceased lady and also referred some calls from the above number of deceased lady to mobile number of Mst. Saba. The record of the case in hand clearly transpires that prosecution has once again bitterly failed to prove firstly, that whether the recovered/handed over Nokia mobile phone by the appellant Nadeem Abbas to the S.P. Gilgit bearing No 03155585742 was actually that of deceased lady and also failed to substantiate the fact through evidence before the trial court that mobile phone No.03418814364 was actually in use of Mst Saba PW or not. The only document put forwarded to trial court by the prosecution is the (CS) detailed Bill list containing 2 pages Exh-PW-23/K which is allegedly shown to be pertained to the mobile phone used by deceased lady bearing No. 03156332474 and it is shown to be in the name of one Iftikhar whose I.D card is also written on the document Exh-PW-23/K. The close perusal of the document Exh-PW-23/K shows that it is devoid of any mobile number which could ascertain the cell number and the user of the same to the extent of which this detailed list was prepared. To the contrary above cell number bearing No.03156332474 and the words and the name of Iftikhar Ahmed bearing CNIC No. 7501157451771 with the words were got written on the upper side of the document Exh-PW-23/K which transpires that the investigating officer/I.O. has himself got written the above contents on his own. It also worth mentioning here that the prosecution once again failed to cite any person as PW to confront the contents of the document Exh-PW¬23/K.

19.       The prosecution had got ample opportunity to cite witness from whose custody the document Exh-PW-23/K was procured to confront the contents of whereof in case of which the enumerated ambiguity would have got settled and proved and by not getting adduced any PW in support of document Exh PW-23/K. The prosecution has in fact failed to prove that the document was pertaining to the phone number of deceased lady and on the same number different calls made to PW Saba, appellant Jamila and appellant Nadeem Abbas to whom it is alleged through the above document that calls have been made to them from the number of deceased lady. In this way it is safely held that by omitting the same the prosecution has rendered the statements of PWs-1, 5 and 20 pertaining to mobile calls irrelevant.

20.       The prosecution has also allegedly based its case upon the recovered mobile phones vide different recovery memos from different places i.e. repair shops which are also of no help to them and have got no foot to stand on because it is also on record that the above investigating agency allegedly got mobile Nokia cell phone from Imran Mobile Center which was allegedly in use of deceased lady who handed over the same to appellant Nadeem Abbas for repair some three months prior to occurrence. It was recovered through Exh-PW¬1/L and another Samsung Mobile allegedly owned by appellant Nadeem Abbas got recovered by the police from Tuqeer Mobiles Center.

21.       It is astonishing rather shocking to note here that despite the word Nokia and Samsung no other details of the mobile sets including mobile model and registration No. are written in the recovery Memos bearing No. Exh-PW-1/K and Exh-PW-1/L what to talk of the SIM of the said mobiles numbers.

22.       The prosecution has recorded number of statements of the inmates of the hostel with whom the deceased lady was residing in the hostel and there is site plan of the same which is also exhibited as PW-1/A wherein the place of sleeping of Shabana Akhter deceased is also mentioned. All the colleagues of the deceased lady who have got recorded their statements under section 161, Cr.P.C. unanimously stated that as their papers were about to start therefore all the inmates/students were busy in studying and after 12 O'clock they put off the light and went to sleep but to the reasons best known to prosecution only a single PW namely Sabiha PW-4 was produced before the trial court. According to her statement all the 14 inmates including deceased lady in the hostel were slept after 12 O'clock after getting finished their studies. This PW-4 has also named two trainees Mst. Tahira and Rozina who were sleeping on the right and left site of the deceased on the day of occurrence but none of them were made to stand before the trial Court for the purpose of recording of their statements. This PW is in fact 1st person who has seen the deceased hanging on the fan of dining hall of the hostel at very morning of the day of occurrence at 4:30 to 5:00 a.m. in between the said time she woke up and went to washroom from where she went to dining hall for preparation of tea, as the heater was there where she found the body of the deceased hanging on the fan, during the cross-examination this PW admits that at the time of sleeping the door of the hall was locked from inside she further confirmed that she had not listened any knocking.

23.       The statement of the above sole witness/trainee who was sleeping in hostel at night of the occurrence with the other inmates creates serious doubts on the story of the prosecution according to which appellant Jamila Bibi called appellant Nadeem Abbas in her room at about 12 O'clock in the mid night and after some time she went outside and called deceased to her room as per arrangement. The very question of calling the deceased from the room where 13 other inmates were sleeping that also after considerable time in the mid night when the said room was locked from inside causes serious doubts on the prosecution case as the single inmate who got recorded her statement as PW-4 admittedly not heard knocking.

24.       From the above discussion it is proved beyond any shadow of doubt that the prosecution has failed to interlink the chain of the collaborative/circumstantial evidence in the case in hand and the chain of circumstantial evidence from the taking of the possession of mobile phone to their numbers and the ownerships, usage of the mobile phones of appellants and deceased lady and the calls, messages received through other mobile phone to that of the alleged murder of deceased lady is not established as discussed in detail above and the circumstantial evidences are clearly against the parameters laid down by Superior Courts in the like cases reliance can be made of a judgment of apex Court of Pakistan cited in 2008 SCMR 1103 where in it is held that all pieces of evidence should be so linked that it should give picture of complete chain one corner of which touch the neck of deceased and the other corner to neck of accused, the failure of one link destroys entire chain.

The another case law cited in 2002 PCr.L.J page 149 is also relevant wherein it is held that Court is duty bound to be on guards while appraising such circumstantial evidence and to see that such circumstances were proved independently and was so connected with other circumstances that it constituted an unbroken chain and let to know other inference but to the guilt of assailants.

25.       From the above detailed discussion as well as the record of the case shall transpire that the prosecution has badly failed to connect to the extent of the appellant Ijlal Hussain also along with co-appellants, in commission of the alleged even if for the sake of arguments the story of alleged commission offence is accepted in toto. As there is no evidence whatsoever regarding the alleged presence of Ijlal Hussain on the spot when the other co-appellants were committing the offence as discussed in para-8 supra. The alleged story of threat of dire consequence to the appellant Ijlal Husain by the co-appellants in case of non-cooperation to get the dead body of the deceased the lady from the door of the hall to the fan of the ceiling, in the above narrated circumstances does not by any stretch of imagination appeal a mind of an ordinary prudent person.

26.       In the circumstance of the present case the benefit of glaring doubts discussed and enumerated above in detail should not go anywhere than to the appellants and I, hereby extending the same allow the instant appeals by setting aside the impugned judgment of the trial court dated 19-12-2011 and direct acquittal of the appellants and to release them forthwith if not involved in any other case. The murder reference is accordingly answered in negative.

HBT/142/GB                                                                                      Appeals allowed.