MALIK SHAHZAD AHMAD KHAN, J. Imran and Mst. Sadia, appellants were tried by the learned Sessions Judge/JST/ASJ at Nowshera, pursuant to a case registered vide FIR No.237 dated 11.06.2015 under Sections 302/34 P.P.C. at Police Station Nowshera Kalan. The learned Trial Court vide its judgment dated 31.03.2018, convicted and sentenced the appellants as under:- IMRAN (APPELLANT):- under Sections 302(b)/34 P.P.C. to death. He was also directed to pay compensation amounting to Rs.300,000/- to the legal heirs of the deceased except Mat. Sadia (appellant) as envisaged under section 544-A Cr.P.C., recoverable as arrears of land revenue and in default whereof to further undergo simple Imprisonment for six months.
MST. SADIA (APPELLANT):- under Sections 302(b)/34 P.P.C. to imprisonment for life. Benefit of section 382-B Cr.P.C, was extended to the appellant.
The appeal filed by the appellants was dismissed by the learned High Court vide impugned judgment dated 24.04.2019.
2. Arguments heard. Record perused.
3. As per contents of the FIR (Exh.PA), on 11.06.2015 at 06:00 AM, Rasheed Khan, complainant (PW-3) was present in his house situated in Manki Sharif, District Nowshera. In the meanwhile, Mst. Sadia, appellant, came to the complainant and informed that brother of the complainant namely Munk .Khan had died, whereupon, the complainant came to the house of his brother Munir Khan and found him to be dead. The complainant further alleged that he noticed injuries on the face and neck of the deceased. The complainant also alleged that he was confident that his brother Munir Khan was murdered by his wife Mst. Sadia, appellant and his nephew Imran appellant, who had already developed illicit relationship with each other, hence, the FIR of this case.
4. The name of any eye-witness was not mentioned in the FIR and the same was lodged on the basis of suspicion against the appellants that they had committed the murder of Munir Khan (deceased), who was husband of Mst. Sadia appellant, as they (appellants) had developed illicit relationship with each other. However, later on the prosecution introduced minor Mst. Sana, aged about 9/10 years (PW-5) as an eye-witness in this case. The said Mst. Sana (PW-5) is daughter of Mst. Sadia, appellant and Munir Khan, deceased. Although her statement recorded under Section 161 Cr.P.C. is available in the police file which shows that her said statement was recorded on 12.06.2015 but the Investigating Officer had not stated that he recorded the statement of Mst. Sana (PW-5) under Section 161 Cr.P.C. on the above-mentioned date. The statement of Mst. Sana (PW-5) under Section 164 Cr.P.C. was recorded on 17.06.2015 i.e. after six days from the registration of FIR. It is true that Mst. Sana (PW-5) stated before the learned Trial Court that on the night of occurrence she along with her brother was sleeping in a room of her house where her parents were also sleeping. She further stated that she woke up on the cries of her father and saw that her mother Mst. Sadia, appellant had put "chadar" on the nose and mouth of her father whereas Imran appellant had put his finger on the neck of her father and strangulated his neck. She further stated that she was threatened by Imran, appellant, to remain silent, where-after, she (PW-5) put blanket on her body but she still watched the occurrence and saw that his father was beaten and murdered by the appellants. However, we have noted that the name of Mst. Sana (PW-5) was not mentioned in the FIR as an eye-witness of the occurrence. Rasheed Khan, complainant (PW-3), straightaway alleged in the FIR that he was confident that his brother Munir Khan was murdered by his wife Mst. Sadia and Imran, appellants though his statement was not based on any evidence.
Mst. Sadia, appellant, was arrested on the very first day of the registration of the FIR i.e. on 11.06.2015.
It is noteworthy that Mst. Sana (PW-5) had already lost her father. Her mother Mst, Sadia (appellant) was also arrested by the Police immediately after the death of her father, therefore, she was at the mercy of her paternal uncle Rasheed Khan, complainant and other relatives, hence, it is quite obvious that she was under their influence/pressure when she later on made her statement before the Police and the Court. It is further noteworthy that Mst. Sana (PW-5) stated in her examination-in-chief that when her paternal uncle Rasheed Khan, complainant came to her house and found that her father had died, at that time her mother Mst. Sadia, appellant, had told the complainant that she had not murdered her father. She also stated that at that time her father's sister Mst. Zahida also came to her house and she started beating her mother Mst. Sadia, appellant. It is, therefore, evident that the complainant party right from the beginning was bent upon to declare Mst. Sadia (appellant) as the culprit of murder of her husband without availability of any evidence in this respect. We have also noted that Mst. Sana (PW-5) has further stated during her cross-examination that she was told by her above-mentioned paternal aunt Mst.
Zahida to give statement before the Court and she had been threatened by Wisal and Mst. Zahida of dire consequences if she would not give statement before the Court. The relevant part of her statement in this respect reads as under:- "I was also told by Mst. Zahida, to give statement before the Court. It is correct that I had been threatened by Wisal and Mst. Zahida of dire consequences if I was not to give statement before the Court."
It is, therefore, evident that the statement of the sole eye-witness of this case Mst. Sam (PW-5) was procured through threats and pressure and she did not make her statement against the appellants with her free will.
5. It has also been brought on the record that there was also a brother of Mst. Sana (PW-5) who was sleeping in the same room where the occurrence took place and he was aged about 07 years but the said witness was not produced in the witness box.
6. The prosecution has further relied upon the judicial confessions of both the appellants, which were later on retracted. It is by now well settled that the retracted judicial confession of an accused cannot be relied upon without independent corroboration. In this respect, we have noted that the medical evidence does not support the retracted judicial confessions of the appellants. In the above-referred judicial confessions, it was stated that the appellants committed the murder of Munir Khan, deceased, on 11.06.2015 at 01:00 AM but according to the post-mortem report, the post- mortem examination on the dead body of Munir Khan (deceased) was conducted on 11.06.2015 at 09:30 AM and according to the opinion of the medical officer, the probable time that elapsed between the death and post-mortem examination was more than 12 hours as rigor mortis had developed on the dead body of the deceased. It shows that Munir Khan (deceased) had died on 11.06.2015 before 09:30 PM whereas according to the judicial confessions of the appellants, Munir Khan (deceased) was murdered on 11.06.2015 after 01:00 PM and, as such, the judicial confessions of the appellants have not been supported by the medical evidence. It is further noteworthy that according to medical evidence i.e. post-mortem report of the deceased there was no ligature mark on the neck of the deceased to support the prosecution case that Munir Khan, deceased, was strangulated with the help of a chadar.
According to the judicial confessions of both the appellants, Munir Khan, deceased, used to do the labour work in Rawalpindi and in his absence, the appellants developed illicit relationship with each other but the daughter of the deceased Mst. Sana (PW-5) categorically denied that her father was doing any job in Rawalpindi, Punjab. She also stated that her father did not use to go to Punjab in connection with his job, The relevant part of her statement in this respect is reproduced hereunder for ready reference:- "It is incorrect to suggest that my father doing job in Pindi Punjab. My father did not use to go to Punjab in connection to his job."
In view of the above, there is glaring conflict between the story narrated by the appellants in their judicial confessions and the evidence of the prosecution witness Mst. Sana (PW-5). No other convincing evidence was produced by the prosecution to prove the alleged motive of illicit relationship of the appellants with each other except the statement of Rasheed Khan, complainant (PW-3), who stated that he had seen the appellants prior to the occurrence in a room, therefore, he was convinced about their illicit affair. The relevant part of his statement in this respect reads as under:- "I had told the I.O. during investigation that I had seen both the accused prior to the incident in a room and thus I was convinced about their affair."
He has not stated that he had seen the appellants in any objectionable condition or they were not wearing their clothes. As both the appellants were closely related because Imran, appellant, was nephew of Munir Khan, deceased, therefore, mere presence of both the appellants in a room does not mean that they were also having any illicit relationship. Rasheed Khan, complainant, further stated that about 5/6 months prior to the occurrence, he gained knowledge of illicit relationship between the appellants. He further stated that he belonged to a Pashtoon family and according to Pashtoon traditions, in case of illicit relationship the wife is either divorced or murdered but he also conceded that no report was ever lodged against the appellants regarding the above-mentioned allegation. Admittedly, Mst. Sadia, appellant, was living with her husband namely Munir Khan, deceased, as a wife till the day of his death. No civil or criminal litigation was pending between them. We are, therefore, of the view that the motive alleged by the prosecution is not proved in this case and the judicial confessions of both the appellants are also not corroborated by the alleged motive.
7. Insofar as the recovery of chadar on the pointing out of Mst. Sadia, appellant is concerned, the same was not stained with any Incriminating material like blood; froth etc of the deceased. No FSL report is available on the record regarding the said chadar, therefore, mere recovery of a chadar which is available in every house is not sufficient to connect the appellants with the alleged offence. The prosecution has also produced the evidence of torn shirt of Mst. Sadia, appellant from her possession. According to the prosecution evidence, the shirt of' Mst. Sadia was torn during the occurrence but no such statement was made by the sole eye-witness of this case i.e. Mst. Sana (PW-5) that during the occurrence the shirt of Mst. Sadia, appellant, was torn and she changed the said shirt after the occurrence. We are, therefore, of the view that the above-mentioned recoveries are inconsequential for the prosecution.
8. As there is no independent corroboration of judicial confessions of the appellants and as the evidence of the sole eye-witness i.e. Mst. Sana (PW-5) is not worthy of reliance due to reasons mentioned in para No.6, of this judgment, therefore, we have come to this irresistible conclusion that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt. It by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story.
Consequently, this appeal is allowed and the impugned judgment is set aside. The appellants are acquitted of the charges while giving them the benefit of doubt. They shall be released from the jail forthwith unless required to be detained in any other case.