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Criminal Appeal No. 617 of 1977, decided on 7th March, 1982.
‑‑‑S. 302‑‑Evidence Act (I of 1872), S.24‑‑Extra‑judicial confession, a weak type of evidence‑‑Such confession to be appreciated with exceptional care‑‑Test for acting upon extra‑judicial confession being whether confession was actually made, it was voluntary, it was true‑ Prudence required that it should also be corroborated on material particulars.
‑‑‑S. 302‑‑Evidtsnce Act (I of 1872), S.24‑‑Extra‑judicial confession by a Pardahnashin lady‑‑One of witnesses found to be history sheeter of Basta Bay‑‑Such witness not related to accused or having any link with police‑‑Such witness neither a Lambardar or B.D. member‑‑Story of confession by a Pardahnashin lady to such person not found to be believable‑‑Other witness of confession also found to be stranger to accused‑‑Making of confession by accused before such witnesses disbelieved in circumstances.‑‑[ Confession].
‑‑‑S. 302‑‑Evidence Act (I of 1872), S.24‑‑Extra‑judicial confession‑ Assurance given by witness to accused that nobody would beat her if she will tell truth, held, amounted to inducement as contemplated by S.24 of Evidence Act‑‑Extra‑judicial confession under inducement, held, was inadmissible and to be excluded from consideration.‑‑ [Confession].
‑‑‑S. 302‑‑Evidence Act (I of 1872), S. 24‑‑Extra‑judicial confession‑ One witness of extra‑judicial confession deposing that accused tied handkerchief on neck of deceased and strangulated him‑‑No mark of legature found on back side of neck‑‑Medical evidence contradicting evidence of witnesses of extra‑judicial confession‑‑Prosecution, held, failed to prove that confession was in fact true.‑‑[ Confession].
‑‑‑S. 302‑‑Recovery‑‑Accused strangulating deceased with Dopatta‑ Medical evidence contradicting evidence of witnesses of extra‑judicial confession‑‑Recovery of mere Dopatta when one of witnesses of extra‑judicial confession had stated that deceased was strangulated with handkerchief, held, was of no evidentiary value.‑‑[Recovery].
‑‑‑S. 302‑‑Criminal Procedure Code (V of 1898), S. 342‑‑Abscondence‑ Constable not produced to prove abscondence‑‑Statement of Investigating Officer that he searched for accused and she was absconding found to be a vague and incomplete statement‑‑Evidence regarding abscondence not put to accused when she was examined under S.342, Cr.P.C.‑ Evidence of such witnesses, held, could not be used against accused.
‑‑‑S. 302‑‑Accused not having direct motive against deceased‑‑Motive found to be flimsy and farfetched‑‑Statement of complainant that he saw accused coming out of a Kotha and immediately thereafter he found dead body of deceased, not confidence inspiring‑‑Motive and circumstantial evidence disbelieved.
‑‑‑S...302‑‑Last seen evidence‑‑Witnesses of last seen evidence closely related to complainant (father of deceased)‑‑Last seen evidence per se, held, was not sufficient to earn conviction having failed to exclude hypothesis of innocence of accused‑‑Last seen evidence disbelieved in circumstances.‑‑[Evidence].
‑‑‑S. 302‑‑No direct evidence of crime available‑‑Evidence of extra -judicial confession rejected‑‑Recovery disbelieved‑‑ Abscondence of accused not proved‑‑Motive found to be flimsy and far‑fetched‑‑Last seen evidence also disbelieved‑ Accused acquitted in circumstances.
Malik Mumtaz Akhtar for Appellant.
Mushtaq Shaida for the State.
Date of hearing: 7th March, 1982.
This criminal appeal arises from the judgment of the learned Sessions Judge, Multan, whereby he, on 4‑6‑1977, convicted Mst. Saeedah, aged 38 years, under section 302, P.P.C. for causing the death of Arshad, aged 5/6 years, and sentenced her to imprisonment for life.
2. The occurrence took place on 4‑10‑1975 at 10 a.m. in a Kotha situated in a garden of Basti Batewali of Mauza Buch Mubarak of Police Station Saddar, Multan. The distance between the place of occurrence and the Police Station is two miles. Statement (Exh. P.C.) of Muhammad Aslam (P.W. 1), father of the deceased, was recorded by Khadim Hussain A.S.I. (P.W. 12) in Chauk Suraj Miani at 6 a.m. which was sent to the Police Station for registration of the case. Mumtaz Hussain M . H . C . (P . W . 8) recorded the formal first information report (Exh P . C . / 1) a 6‑20 a.m. on the same day.
3. Mst. Saeedah appellant is related to Muhammad Aslam (P.W. 1), who used to reprimand her for her bad character.
4. Arshad deceased left her house at 9/10 a.m. on 4‑10‑1975 but did not come back. Muhammad Aslam (P.W. 1) started his search. Fida Hussain (P.W. 2) and Ghulam Yasin (P.W. 3) who were closely related to the deceased, told him that they had seen Mst. Saeedah appellant taking away the deceased to her house. Muhammad Aslam then approached Mst. Saeedah appellant but she expressed her ignorance whereupon Muhammad Aslam went on with the search of the deceased but without any success. On the next day, i.e. 5‑10‑1975, Sehriwela Muhammad Aslam woke up to keep fast. He went to a nearby garden to answer the call of nature when he saw Mst. Saeedah coming out of a Kotha. Muhammad Aslam went inside and found Arshad, his son,' lying dead. Thereafter, he brought Muhammad Akram (P.W. 4) and Muhammad Afzal (not produced) to the place of occurrence and leaving them with the dead body, he left for the police station for the report. On the way, he met with Khadim Hussain A.S.I. P.W., who recorded his statement Exh. P.C.
5. Khadim Hussain A.S.I. (P.W. 12), went to the spot, sent the dead body to the mortuary under the escort of Gul Muhammad F.C. (P.W. 7), He arrested the appellant on 12‑10‑1975 when she was produced by Sher 'Muhammad (P.W. 9) and Ramzan (P.W. 10). While in custody, Mst. Saeedah led to the recovery of Dopatta P. 3 from her residential Kotha which was taken into possession, vide memo. Exh. P. E. attested by Sher Muhammad and Muhammad Ramzan (P.Ws. 9 and 10). After investigation, she was challaned to face trial.
6. Dr. Asheeq Muhammad (P.W. 5) conducted post‑mortem examination on the dead body of deceased Arghad on 6‑10‑1975 at 9‑30 a.m. and on external examination he noticed a contusion mark 7" x 2" in front of the neck extending from the left side of the neck to the right side of the neck. On dissection there was acohymosis under the contrusion mark. The trichea was highly conjested. In his opinion the death was due to strangulation of the ‑neck resulting asphyxia. The injury was sufficient to cause death in the ordinary course of nature. The death was instantaneous. In cross‑examination he stated that there was no mark of ligature on the back side of the neck of the deceased. In his opinion it was not necessary that ligature mark should be all around the neck. He stated that if the pressure is put from the front of the neck, the mark of ligature would not appear on the back side.
7. In order to prove its case, the prosecution produced as many as 12 witnesses and relied upon the following categories of evidence:‑--
(1) Extra‑judicial confession supported by Sher Muhammad (P.W. 9) and Ramzan (P.W. 10);
(2) Recovery of Dopatta P. 3 at her instance, supported by Sher Muhammad and Ramzan P.Ws.;
(3) Abscondence: That she remained' absconder for six days;
(4) Motive and a circumstance that Mst. Saeedah was seen coming out of the Kotha where the dead body was found; and
(5) Last seen: Supported by Fida Hussain (P.W. 2) and Ghulam Yaseen (P.W. 3).
8. The accused denied the incriminating circumstances. She, however, admitted that Muhammad Aslam is related t‑ her. In answer to the question as to why the case against her, she stated that her first husband died and the complainant wanted to marry her but she refused and it was for that grudge that she was falsely involved in the case. In defence, she examined Faiz Muhammad A.S.I. (D.W.1), who stated that Sher Muhammad (P.W. of extra‑judicial confession) had been a history sheeter of Basta Bay of Police Station Saddar from 1940 to 1953. She also tendered copy of the judgment whereby Sher Muhammad P.W. was convicted.
9. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt and its evidence is not reliable.
10. As against this, learned counsel appearing on behalf of the State has defended the judgment of the trial Court.
11. After hearing the learned counsel for the parties and going through the record, I am inclined to hold that the prosecution has not been able to bring home the guilt to the accused for the following reasons:‑
(i) Extra‑judicial confession.‑‑ This piece of evidence is at best a weak type of evidence. It is to be appreciated with exceptional care. Before it is acted upon it has to stand a three‑fold test;
(i) Whether the confession was actually made before the witnesses;
(ii) Whether it was voluntary; and
(iii) Whether it was true and the prudence requires that it should also be corroborated on material particulars.
Keeping in mind these precaution, I find that Sher Muhammad was once a history sheeter of Basta Bay of the police station and as admitted by him he was not related to the appellant; he had no link with the police; he was neither a Lambardar nor B.D. member of the Illaqa. It does not appeal to reason as to why Mst. Saeedah who is a Pardahnasheen lady had choosen Sher Muhammad to unburden her mind before him. Muhammad Ramzan P.W. was also a stranger to her. For these reasons it cannot be believed that Mst. ‑ Saeedah had, in fact, made confession before these witnesses.
(ii) As for the second test, it has been stated by Sher in his examination‑in‑chief "she was afraid of beating by the police. I assured her that nobody would beat her and she will tell the truth". This amounts to inducement as contemplated by section 24 of the Evidence Act and on this short ground the alleged extra‑judicial confession becomes inadmissible and is to be excluded from consideration.
(iii) On the third test, Sher Muhammad has stated that Mst. Saeedah had told them that she had strangulated the deceased with Dopatta; whereas Ramzan stated that she had told them that she had strangulated the deceased with a handkerchief. In cross‑examination Ramzan (P.W.10) has stated that the accused had told them that she had tied the handkerchief on the neck of the deceased and strangulated him; whereas the medical evidence shows there was no mark of legature on the back side of the neck of the deceased, which to my mind, should have been all around the neck in case the Dopatta or the handkerchief is tied around the neck of the deceased and, as such, I am of the opinion that the prosecution has also failed to prove that the alleged confession was, in fact, a true one.
12. For the reasons given above, the evidence of extra‑judicial confession is hereby rejected excluded from consideration.
(i) The recovery of mere Dopatta, in the circumstances of the case, and particularly when Ramzan has stated that the deceased was strangulated with a handkerchief is of no evidentiary value.
(ii) Absconder: I find that it is not a case of abscondence at all because no constable has been produced to prove that Mst. Saeedah appellant had absconded due to the fear of her prosecution. The statement of the A.S.I. (P.W.12) that he searched for the accused and she was absconding is a vague and incomplete statement. Since this piece of evidence was not put to her when she was examined under section 342, Cr. P.C. and no 8pportunity to explain was afforded to her, this piece of evidence cannot be used against her on this short ground.
(iii) Motive: Mst. Saeedah had no direct motive against the deceased. The motive as alleged by the prosecution that since Muhammad Aslam had dissuaded her from immoral activities she killed the deceased appears to be flimsy and farfetched. The statement of Muhammad Aslam that he saw Mat. Saeedah coming out of the Kotha and immediately thereafter he found dead body does not inspire confidence. Had he seen her there he would have immediately raised hue and cry and would have apprehended her or followed her.
(iv) The last item i.e evidence of last seen also cannot be believed for the reason that the witnesses are closely related to Muhammad Aslam and, moreover, this circumstances per se is not sufficient to earn conviction under section 302, P.P.C. because the same fails to exclude the hypothesis of the innocence of the accused.
13. The upshot of the discussion is that the appeal is accepted and the appellant is acquitted. She is on bail. Her bail bonds shall stand discharged.
H. A. K./5478/L Appeal accepted.
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