Find a Lawyer

Criminal Appeal No. 100 of 1975, decided on 25th May 1976.

‑‑ S. 302 read with S. 304, Part 1l‑Murder‑Accused an issueless woman, kidnapping child intending to adopt it, but on child's weeping either throwing it on ground or putting her hand on child's mouth‑Child found dead with several injuries‑Accused, held, in either case, acted with knowledge that her act was likely to cause death of child‑Accused having no intention to kill child‑Sentence under S: 302 altered to one under S. 304, Part 11, P. P. C., in circumstances.‑[Sentence].

Appellant through Jail.

Ilyas Malik for the State

Dates of hearing s 29th and 30th April 1976.

Mst. Taj alias Tajan, aged 45 years, daughter of Allah Jawaya, resident of than Muhammad Shah in the area of Police Station, Bhawana, District Jhang, was tried for the murder of two months' old child named Zu1fiqar Ali and also for kidnapping him for offences under sections 302, P. P. C. and 364‑A, P. P. C. Mr. Zahir Ahmad Khan Yusufi, Sessions Judge, Mianwali, convicted her under sections 302, P. P. C. and 364‑A, P. P. C. and sentenced her to imprisonment for life an two counts, vide his judgment and order passed on 6‑12‑1974. She filed appeal against her convictions and sentences through Jail which is before me for disposal.

Before the learned trial Judge the appellant was represented at State expense but before me she was unrepresented in appeal.

2. Briefly, the prosecution case as disclosed in the F. I. R. was that Ata Muhammad complainant P. W. lived in Chak No. 69/TDA, Tehsil Bhakkar, District Mianwali, with his wife, Mst. Nekan P. W. and nine children including Zulfiqar Ali deceased who was only two months' old. On 16‑4‑1972 at about degarwela when Ata Muhammad complainant P. W. apart from complainant's brother. Muhammad Shafi, were present in their house after harvesting of wheat crop the appellant visited their house and introduced herself by the name of Mst. Tajan, beggar from District Jhang and begged for food and residence for the night. The complainant instructed his wife, Mst. Nekan P. W., to give food to the appellant and after taking the dinner the male members of the family slept to the room in the house of the complainant while wife of the complainant, Mst. Nekan P. W., alongwith her children slept in the courtyard of the complainant's house and the appellant also slept there on a separate cot by the side of Mst. Nekan P. W. At about midnight of the night between 16/17 April 1972, the cow of the complainant was found running in the courtyard of the house due to which Mst. Nekan P. W. was awakened when she saw that her child Zulfiqar deceased, who had been sleeping on the same cot by her side as also the appellant, who had slept on a separate cot by her side, were both missing from the house. Mst. Nekan P. W. informed her husband, the complainant and they started raising hue and cry which awakened and attracted the remaining members of the family including Ghulam Abbas and Muhammad Shafi, brothers of the complainant as also Zafar Ali, son of the complainant besides other people from the village. All of them in different groups started running in search of the appellant. The complainant accompanied by Tassadiq Hussain Shah P. W. and the complainant's brother, Ghulam Abbas (not examined), went in search of the appellant and eventually reached Chak No. 215/TUA in the area of Police Station, Nekera, and found the appellant running away when they identified the appellant and apprehended her. On enquiry the appellant gave her father's name as Allah Jawaya and caste as Muslim Sheikh, resident of Thatha Muhammad Shah, Police Station, Bhawana, District Jhang, and confessed before them that the appellant was issueless and was roaming about in search of some child. She confessed before them that on the previous night Le., the night between 16/17 of April 1912, she kidnapped the child of the complainant and while escaping she was pressing the child against her breast on the way and wanted to do so by concealing the child but the child was weeping in the way on account of which the appellant got fed up and threw the child on the ground in the field of gram near a well in the area of Chak No. 65/TDA, and within a few minutes thereafter the child expired. She also confessed before them that leaving the deceased child at the spot the appellant wanted to escape but unfortunately she was apprehended by them and could accompany them to point out the place where the dead body of the child was lying. Accordingly the appellant led them to a grain field in the area of Chak No. 65/ TDA, and on her pointation the dead body of Zulfiqar Ali deceased child was recovered. Leaving the dead body of the deceased child in the care of Ghulam Abbas (not examined) and Tassadiq Hussain Shah P. W. Ata Muhammad complainant went to the Police station Bhakkar, where on his statement formal F. I. R. was registered on 17‑4‑1972 at 5‑30 p.m. The distance given in the F. I. R. between the area of village Khan Pur where the complainant resided and the police station was given as 16 miles.

According to the evidence at the trial the distance between the house of the complainant in the area of Chak No. 69/TDA, Khanpur and the place from where the dead body of Zulfiqar Ali deceased child was recovered from the gram field in the area of Chak No. 65/TDA was about 4 or 5 miles and from that spot onward to the Chak No. 215/IDA from where the appellant was apprehended the distance was about 8 miles while the distance between the place where the dead body was found and the police station was about 6 miles.

The motive as aforementioned alleged in the F. I. R. was that the appellant, aged 45 years, was issueless and was in search of a child apparent ly for the purpose of adopting him although the reason for taking the child is not mentioned in the F. I. R.

Almost the same story as given in the F. I. R. was repeated at the trial except for a difference in the wording of confession made by the appellant at the time she was apprehended. With regard to the extra -judicial confession of the appellant before the complainant and Tassadiq Hussain Shah P. Ws. it was deposed at the trial by Tassadiq Hussain Shah P. W. that they asked her about the child whereupon she told them that she had brought the child from the house of Ata Muhammad complainant P. W. and because the child was weeping she put her hand on his mouth to keep him quiet and after sometime when she saw that the child was dead she threw his dead body in the field of gram in Chak No. 65/TDA. This was an improvement on material point because in the F. I. R. the prosecu tion case was that when she was apprehended by the complainant and the prosecution witnesses she confessed before them that she was carrying the child and was pressing the deceased child against her breast and wanted to escape with the child without being noticed by anybody but the child started weeping and for that reason the appellant threw the deceased child on the ground as a result of which he died within few minutes of his being thrown on the ground in the gram field near the area of Chak No. 65/TDA.

3. Raja Muhammad Inayat Ullah (P. W. 9), who was then posted as Station House Officer at the Police Station. Bhakkar, after recording the formal F. I. R. (Exh. P. A.) at the Police Station went to the spot where the dead body was stated to be lying and reached there at 7‑45 p.m. on the same day i.e., 17‑4‑1972. On arrival at the spot he found the appellant present in custody of Tassadiq Hussain Shah P. W. and Ghulam Abbas (not examined) and also found lying the dead body of Zulfiqar Ali deceased child at some distance from them. After preparing the injury statement and inquest report of the deceased he sent the dead body of the deceased child to the mortuary for autopsy. The Investigating Officer got the person of the appellant searched by Mst. Nekan P. W., mother of the deceased child, upon which currency notes of the total value of Rs. 19 and a pair of bangles were recovered and were secured, vide memo. Exh. P. B. He arrested the appellant on the same day and recorded the statements of the prosecution witnesses. He got prepared the site plan. He took into possession the last worn clothes of the deceased child. After completion of investigation he challaned the appellant for trial in Court.

4. Dr. Dalil Khan (P. W. 1), conducted post‑mortem examination on the dead body of Zulfiqar Ali deceased, aged two months, son of Ata Muhammad complainant P. W. caste Mirasee, resident of Khanpur in the area of Police Station, Bhakkar, on 1g‑4‑1972 at 1‑30 p.m. At the inquiry stage he deposed that injuries found on the dead body were multiple, fine abrasions on the upper lip and a few abrasions on the lower lip and there was generalized cyanosis on the body. Internally viscera was slightly congested. In the opinion of the doctor death had resulted due to asphyxia on account of smothering. He gave the time between injury and death as 5 to 10 minutes and that between death and post‑mortem examination was given by him as 30 to 40 hours. He proved the post‑mortem examination report. He was not cross‑examined by the defence. At the trial as well be was not examined by the prosecution nor was he cross‑examined by the defence.

5. The prosecution examined 9 witnesses in all to prove its case. There was no eye‑witness of the occurrence. There was no witness about the motive except the motive of kidnapping the child because the appellant was issueless which motive was given by the complainant himself and his wife both of whom were parents of the deceased child. Ata Muhammad com plainant (P. W. 6), father of the deceased child and Mst. Nekan (P. W. 7), mother of the deceased child and wife of the complainant, were examined by the prosecution to prove the prosecution version given in the F. I. R. about the manner in which the appellant visited the house of the complainant and after introducing herself as a beggar sought food and shelter which was provided to her and that after taking the food the entire family as also the appellant slept in the same house when at midnight the appellant with the deceased child was found missing and parties were sent to search out the appellant. The same Ata Muhammad complainant (P. W. 6) and Tassadiq Hussain Shah (P. W. 8) proved the: apprehension of the appellant in the area of Chak No. 215/TDA, the extra‑judicial confession of the appel lant before them and recovery of the dead body of the deceased child in the gram field in the area of Chak No. 65/TDA, at a distance of about 8 miles from the place the appellant was apprehended. The investigation in this case and the recoveries were proved by the Investigating Officer, Raja Muhammad Inayat Ullah (P. W. 9). Other formal witnesses were also examined. They all supported the prosecution case. The statement of Dr. Dalil Khan before the committing Magistrate was transferred to the Sessions record.

6. The appellant pleaded not guilty to the charge. When examined under section 342, Cr. P. C. she denied all the allegations of the prosecution; further denied her apprehension, extra‑judicial confession made by her before the prosecution witnesses and also denied the recovery of the dead body of the child at her pointation. In reply to the question as to why the cast against her the appellant stated that on 17‑4‑1972 when she was selling bangles in Chak No. 65/TDA, she was arrested by the police on mere suspicion. Earlier she had stated that Mst. Nekan P. W., mother of the deceased child, did not search her person and did not recover any currency or bangles from her person but it was the police who had searched the person of the appellant and recovered the currency notes and bangles from the appellant.

7. The learned trial Judge believed the evidence relating to the visit and stay of the appellant at tile house of the complainant in Chak No. 69/ TDA as alleged lay the prosecution, also believed the apprehension of the appellant by the P. Ws. in the area of Chak No. 215/TDA, further believed the extra‑judicial confession made by the appellant before the P. Ws. and recovery of the dead body of the child by the prosecution witnesses at the pointation of the appellant. He found that the medical evidence supported the other evidence led by the prosecution and both the charges under section 302, P. P. C. as well as under section 364‑A, P. P. C. bad been proved by the prosecution as a result of which the learned Sessions Judge convicted the appellant on both the aforementioned charges and sentenced leer to suffer life imprisonment on two counts.

The appellant had filed appeal through Jail and was not represented before me during the hearing of her appeal, the learned counsel or the State assisted me in the disposal of this appeal. According to the sub missions made by him no case was made out against the appellant under section 302, P. P. C. or under section 364‑A, P. P. C. but the appellant was guilt; of having committed offence under section 363 P.P.C on the testimony of Ata Muhammad complainant and his wife Mst, Nekan P.Ws. in whose house the appellant stayed for the night and was found missing with the deceased child at midnight tune.

I have been taken through the evidence in this case by the learned counsel .for the State which evidence I have myself read perused and con sidered carefully. Ata Muhammad complainant and his wife Mst. Nekan P. Ws, were parents of the two months' old deceased child, Zulfiqar Ali, but both of them had no enmity or ill‑will against the appellant so as to falsely implicate her on a charge of capital punishment. Their testimony is con sistent uniform and inspires confidence. It leaves no doubt in nay mind that the appellant stated at the house of the complainant and his wife and was found absent from the house with the deceased child at the midnight time. Evidently after coming to know that the deceased child was missing from the house alongwith guest woman, who had introduced herself as a beggar woman, the parents had to make all efforts to search the deceased child and the appellant. According to the prosecution they formed them selves into various groups. A group consisting of Ata Muhammad complainant P. W. and Tassadiq Hussain Shah P. W. apart from Ghulam Abbas (not examined) as unnecessary eventually succeeded in apprehending the appellant from a place in the area of Chak No. 215/TDA. Ghulam Abbas was not examined as unnecessary. Ata Muhammad complainant was father of the deceased child who had earlier been kidnapped by the appellant but his testimony relating to the apprehension of the appellant at the place alleged by the prosecution was corroborated by an independent witness, Tassadiq Hussain Shah (P. W. 8), who was not connected with the complainant‑party nor had any enmity to falsely depose against the appel lant. Therefore, there appears no reason to me to disbelieve the complainant and Tassadiq Hussain Shah on the point of apprehension of the appellant. It was these two witnesses who deposed about the extra judicial confession of the appellant before them and Ghulam Abbas (not examined) and also about the recovery of the dead body of the deceased child at a distance of 8 miles from the place where the appellant was apprehended. There is some difference in their testimony about the extra judicial confession which appears to have been improved upon. In the F. I. R. according to Ata Muhammad complainant P. W. appellant wanted to escape with the child without being noticed and carried the child on her breast but since the child would not stop weeping she threw him on the ground as a result of which within few minutes thereafter he died while at the trial the complainant deposed only this much that the appellant told them that she had killed Zulfiqar Ali deceased near chah doliwala and had thrown his dead body in the area of Chak No. 65/TDA whereas Tassadiq Hussain Shah P. W. deposed at the trial that the appellant told them that after the appellant had brought the deceased child from the house of Ata Muhammad complainant he was weeping and the appellant put her band on the mouth of the child in order to keep him quiet and after some time the appellant noticed that the child was dead due to which the appellant threw away the dead body of the child in Chak No. 65/TDA. As such the testimony of the complainant and Tassadiq Hussain Shah P. W. about the extra‑judicial confession is not consistent and is not worthy of reliance. According to the established principles of law an extra‑judicial confessions should be in the same words in which it had been made. Consequently, I rule out of consideration the prosecution evidence relating to the extra judicial confession by the appellant before the aforementioned witnesses by giving benefit of doubt to the appellant on that point. It was the same set of witnesses, Ata Muhammad complainant and Tassadiq Hussain Shah P. Ws. who proved the recovery of dead body of the deceased child from a gram field in the area of Chak No. 65/TDA on the pointation of the appellant which was relied upon by the learned trial Judge and I have no apparent reason to disagree with him on that point. For the reason that both of them bad no enmity or ill‑will against the appellant those prosecu tion witnesses were rightly believed by the learned trial Judge. The dead body could not be traced until and unless the appellant had led to its recovery. Therefore, I believe the prosecution evidence that the appellant led to the recovery of the dead body of the deceased.

9. The real question involved in the case‑ is what offence is constituted on the evidence on record in this case. The learned trial Judge found that the offence under section 302, P. P. C. and also under section 364‑A, P. P. C. was proved against the appellant for which holding hey guilt he awarded her sentence of life imprisonment on two counts. However, I do not agree with him. According to the medical evidence the child died on account of asphyxia due to smothering. The post‑mortem examination report does not disclose that the child was throttled to death or had any mark of violence. The case of prosecution right from the F. I. R. stage was that the appellant was an issueless woman and wanted to take a child evidently for the purpose of adopting him. This position was maintained by the prosecution even at the trial. If this version of the prosecution is kept in view then it cannot be found that the appellant had the intention to cause the murder of the deceased child so as to constitute an offence under section 302, P. P. C. Similarly it does not stand proved from the evidence on record read as a whole that the appellant had kidnapped the child of less than the age of 10 years in order that the child may be murdered or subjected to grievous hurt or slavery or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt or slavery or to the lust of any person within the meaning of the offence as defined in section 364‑A, P. P. C. Therefore. I am of the considered view that the guilt of the appellant under section 302, P. P. C. or under sec tion 364‑A, P. P. C. is not proved on the evidence on record of this case even believing that evidence as disclosed above except the evidence of extra- judicial confession of the appellant which has been ruled out of consideration by me. Taking the prosecution case as alleged the appellant was an issueless woman and was roaming about in search of a child for herself and with that view she kidnapped the child but while doing so she did not take necessary precaution and did not look after the life of the child. According to the original version put in the F. I. R. since the child was weeping and the appellant wanted to carry away the child without being noticed she threw the child on the ground as a result of which he died within minutes while at the trial stage the prosecution version as deposed by Tassadiq Hussain Shah (P. W. 8) was that since the child was weeping the appellant put her hand on his mouth in order to keep him quiet so that she could escape unnoticed but after sometime the appellant saw that the child was dead. In either case whether the appellant threw the child on the ground or put her hand on the mouth or even if she did not do any of these two acts the only inference that can be drawn is that while escaping with the deceased child of the age of two months she acted in the manner with the knowledge that her act was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death, within the meaning of section 304 (II), P. P. C. and I hold her guilty accordingly. The appellant is also found guilty of the offence under section 363. P. P. C. because she kidnapped the deceased child from the lawful guardian ship of his parents and is liable to be sentenced thereunder.

10. For the foregoing reasons, the appellant is convicted under section 304 (II), P. P. C. for which she is sentenced to suffer rigorous imprison ment for a period of five years and she is further convicted under section 363, P. P. C. and is awarded a sentence of three years' R. I. both of which are ordered to run concurrently. The appellant being a poor woman having filed appeal through Jail only no fine is imposed on her. Her convictions and sentences under sections 302 and 364‑A, P. P. C. are set aside. With this modification the appeal is dismissed.

Order accordingly,

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.