' INAYAT ELAHI KHAN, J.-The appellant Mst. Shaukata wife of He was Khan, aged about 20 years, resident of village Malkandher, Tehsil Peshawar alongwith the acquitted accused Salim Khan son of Muhammad Khan was tried for the murder of Jamil Khan, a child of about 4/5 years of age, by the Additional Sessions Judge, Peshawar and convicted under section 302, P. P. C. And sentenced to imprisonment for life. No sentence of fine was imposed nor any compensation was awarded under section 544-A Cr. P. C. In view of the poverty of the appellant. By this Jail Appeal Mst. Shaulcat a has challenged her conviction and sentence,
2. The prosecution case, as disclosed in the F. I. R. Lodged by Mst. Ambia in Police Station Nasir Bagh, Tehsil Peshawar on 17-5-1982 at 9.45 a. m. Is that on the same day at about 8.45 a m. The complainant had gone to the house of one Akram to fetch water from the well leaving her son Jamil Khan in the house in the company of the appellant. When she reached the well, the appellant came after her and informed her that her son Jamil Khan had been murdered by some one. The complainant at once ran towards her house and found the child lying in the street severely injured who expired within few seconds. The dead body of the child was taken to her house by one Mehboob. According to the complainant she had no enmity with anyone but charged the appellant for the reason that the deceased was a naughty boy and the appellant disliked him.
3. Muhammad Akbar, A. S.-I. (P. W. 10) was on Gusbt duty when he came to know of the incident. He rushed to the spot and found the child lying dead. He recorded the report of the complainant in the form of a Murasila (Exh. PA/1) and forwarded the same to the police station for the registration of the case. He then prepared the injury sheet and the inquest report of the deceased and sent the dead body for the post-mortem examination. The site plan (Exh. P. 8) was prepared by him at the instance of the complainant. He took into possession a blood-stained cot (Exh. P. 2) and 12 pieces of blood-stained Mazri (ban) and also cut a piece (Exh. P. 4), about 9 inches long, from the left arm Of the cot which was blood-stained. The articles were allegedly recovered from the Kotha of the appellant and sealed into a parcel vide memo. (Exh. PR/2). He also took into possession some bloodstained grass and manure (Exh P. 5) from the manure heap (Deheran) near the house of the appellant and sealed them into a parcel vide memo. (Exh. PR/3) some blood-stained earth (Exh. P.
6) was also picked up from the scene of occurrence situated in the street. From the courtyard of the Kotha of the appellant a few blood-stained stones (Exh. P. 7) were also taken into possession vide memo. (Exh. PR/5). The blood-stained clothes (Exh. P 8) of the deceased sent by the doctor were also taken into possession by him. He is a marginal witness to the recovery memo. (Exh. PR/7) whereby the S. H 0. Took into possession the trouser of the appellant having suspected stains of blood. He arrested the appellant on the following day of. The occurrence and the investigation of the case was then handed over to the S. H. O. Abdul Wajid, S. I. (P. W. 11) took over the investigation on 17-5-1982 and obtained Police Custody of the appellant on 14-5-1982. Since the right forefinger of the appellant was injured she was sent for medical examination. He stated that the appellant while in custody took him to the scene of occurrence and on her pointation he recovered 4 broken pieces of a shaving blade (Exh. P. 10) from the manure heap (Dheran) vide memo. (Exh. PR). He also prepared another site-plan (Exh. P8/I) at the instance of the appellant and produced her before a Magistrate for her confessional statement. He also took into possession the Shalwar of the appellant (Exh. P. 9) having suspected stains of blood on its lower portion i. e. Paincha. The Shalwar and the other blood-stained articles were sent for chemical analysis. The report of the Chemical Examiner (Exh. P F) was in the positive. In cross-examination he stated that the appellant was arrested on 18-5-1982 and kept in police custody for 3 days before her confession was recorded on 22-5-1982. He stated that the pieces of the shaving blade were found on the Dheran in a scattered position but lying in a close range.
4. Dr. Liaqat Ali Khan (P.W. 2) conducted the post-mortem examination on the dead body of the deceased on 17-5-1982 at 1230 p. m. And found a clean incised wound 4" x 1" on the anterior aspect of the neck below the chin. The trachea, neck, blood vessels and the esophagus were injured. He stated that after receiving the injury the death was instantaneous.
5. Shaukat Ali Khan, M. I. C. ( P. W. 1) recorded the confessional statement of the appellant on 22-5- 1985. He stated that the confessional statement (Exh. PK) was recorded after observing all the legal formalities. He could not remember as to how long the appellant remained in police custody before her confessional statement was recorded but stated that she was given in police custody on 19-5-1982 for 3 days. Muhammad Nawaz, A. S.-I. (P. W. 3) on receipt of murasila (Exh. PA/1) registered the case against the appellant vide F. I. R. (Exh. PA). Fazal Rehman (P. W. 6) is a marginal witness to the recovery memo. (Exh. PR) whereby the appellant while in custody, led the police inside her house where from 4 broken pieces of shaving blades were taken into possession by the Investigating Officer in his presence. The said recovery was made on the third day of the occurrence. Mst. Ambia (P. W. 7), mother of the deceased, reiterated the contents of the F. I. R.
Lodged by her and stated that the appellant is the wife of the brother of her husband and Salini, the acquitted accused, is the sister's son of her husband. In cross-exarhidatron she stated that when she returned back from the well she saw the deceased lying in the street at a distance of 4/5 paces from the outer door of her house. In the same street the houses of Gulshan, Mehboob and Akram are situated. Mst. Sherin laja (P. W. 8) stated that the complainant had come to her house for fetching water from the well situated in her house. After a while the appellant came and informed the complainant that Jamil Khan was slaughtered by someone. She stated that at that time the appellant was smeared with blood.
6. The appellant in her statement under section 342, Cr. P. C. Pleaded innocence and stated that she was kept in police custody from 17-5-1982 to 22-5-1982 where her modesty was out-raged by the police personnel including males and females and "Unspeakable things" were done to her by the police. She said that her confessional statement was the result of pressure and coercion by the police who told her that she would be kept in police custody till she made the confession. She said that the child was slaughtered outside the house in the street of which she came to know later on and the story narrated in the confession was concocted by the police and put in her mouth.
7. The learned trial Court did not believe the retracted confession of the appellant as she was kept in police custody for 4 days. It was considered that if she was willing to make a voluntary confession she could have done so on the first or the second day of her arrest. However, reliance was placed on the statement of Mst. Ambia (complainant) and that of Mst. Sherin Taja (P. W. 8) to the effect that the appellant rushed after the complainant and informed her that the deceased was slaughtered by some one. The fact that the child was left in the company of the appellant a little prior to the occurrence, when its mother left for fetching water from the house of Mst. Sherin Taja, was also taken into consideration against the appellant. Particularly when she could neither offer any explanation nor could show the actual culprit who might have killed the child. The other circumstances taken into consideration was the injury on the forefinger of the appellant which according to the doctor was caused by a sharp-edged weapon within 3 days. The inference drawn was that the appellant's finger got injured in the process of killing the deceased. The alleged recovery of 4 broken pieces of the shaving blade at the instance of the appellant was also taken into consideration as a piece of evidence against her. It was also considered that the report was promptly lodged by the complainant at the spot and there was no evidence to suggest that the complainant had any reason to falsely implicate the appellant when both of them were the members of the same family and their relations were cordial. Since there was no evidence to connect Salim Khan, the co-accused, with the commission of the offence, excepting the retracted confession of the appellant, he was acquitted of the charge.
8. On 7-5.1985 during the arguments we felt the necessity of again examining doctor Liaqat Ali Khan, and, therefore, he was summoned as a witness. It was also directed that a counsel should be engaged by the State to represent the appellant at the hearing. On 21-5-1985 the doctor was examined and Mr. Abdul Samad Khan Advocate, who was engaged as a State counsel to represent the appellant, was also- heard in support of the appeal. The doctor stated that the injury 4" X 1" on the neck of the deceased could possibly be caused with the shaving blade (presently broken into 4 pieces). He stated that this injury was not possible if the victim was an adult but in case of a minor it was possible if the head, hands and the legs of the child were fully controlled by the assailant.
According to the doctor, the victim sustained one single injury in front of his neck caused by the same weapon and it was possible that the injury might have been causad by any other sharp weapon with a handle. He further stated that it was not possible for the child victim after receiving such an injury to move about from one place to another.
9. Thus it can be seen that the evidence given by the doctor is in conflict with the confessional statement of the appellant wherein she had stated that the throat of the child was cut by her with the shaving blade inside the house but as the child did not die she picked him up in her lap and took him to the Dheran outside the house and again used the blade on his throat. She further stated that though the child was severely injured but again he rushed after her inside the-house an when she ran outside the house the child followed her in the street where he fell* and died.
According to the doctor the child was unable to move about after receiving the injury in question.
He sustained one single injury 4" x 1" on the neck and there is nothing to show that his throat was cut twice as alleged by the appellant in her confession. Similarly, if the child was picked up by the appellant in her lap after having been injured her shirt must have become stained with blood.
According to the evidence her Shalwar only was taken into possession which was suspected of having blood stains on its lower portion Taincha'. If her shirt was also stained with blood it must have been taken into possession by the Investigating Officer. According to the complainant and Mst. Sherin Taja (P. W. 8), soon after the occurrence the appellant rushed to the house of Sherin Taja and informed the complainant that her son had been killed by some one. However, there is no mention of this fact in her confessional statement. According to the site plan (Exh. P 8) the dead body of the child was found at Point No, 1 which is located in the street and from this place blood- stained earth was also recovered. According to the evidence the cot lying in the Kotha of the appellant was found blood-stained and a few pieces of blood-stained Mazri (ban) were also taken into possession. But the other cot shown at Point No, 4 in the site-plan has not been taken possession of which might also be blood-stained as the dead body of the child was placed on it soon after the occurrence. Thus the possibility cannot be excluded that the cot allegedly recovered from the Kotha of the appellant was the same cot which was lying under. a tree at Point No, 4 as shown in the site-plan. The recovery of 4 piece of the shaving blade, (Exh. P. 10) is also not free from suspicion because according to the I.
0. They were recovered at the pointation of the appellant from the manure heap (Dheran) lying outside the house of the appellant. But according to Pazal Rehman (P. W. 6), who is a marginal witness to the recovery memo. (Exh. PR), the said recovery was effected fro inside the house of the appellant. Further, the pieces of the shaving bald were not blood stained and if this was the blade used for cutting the throat of the child, the dried up stains of blood -must have been found thereon.
Regarding the injury found on the forefinger of the appellant doctor Yousaf Parvez (P. W. 12) stated that it was a healed scratch on the right index finger at the anterior aspect caused within 3 days.
The size of the injury was not mentioned. Thus the injury was either caused on the day of occurrence or a day prior to the occurrence. The possibility that the appellant might have received minor scratch on her finger during the household work cannot be ruled out. The recovery of blood stained stones etc. From various places inside the house of the accused would carry no weight as the complainant and the appellant were residing in the same house and soon after the occurrence the dead body of the child was taken inside the house and placed on a cot. The story that the throat of the child was cut a the Ahearn outside the house by the appellant appears to be incredible as the appellant would not have taken him outside the house if her intention was to kill the child. Further, the conduct of the appellant that having- come to know of the murder of the child in the street, she rushed to inform his mother about the occurrence would show that she was not the perpetrator of the crime. The motive alleged by the prosecution that the deceased was a naughty boy and the appellant was displeased with him could hardly be a motive for committing murder of the child.
10. On a careful analysis of the entire evidence available in the case we have come to the conclusion that the real cause for the murder of the child is shrouded in mystery. The prosecution case entirely rests on the circumstantial evidence which can form the basis of conviction only if it was incompatible with any other reasonable hypothesis than that of the D guilt of the appellant.
The cumulative effect of the circumstantial evidence does not lead us to the conclusion that the appellant and no one else caused the death of the child. In these circumstances, the case against the appellant has not been proved beyond any shadow of reasonable doubt. The appeal is, therefore, accepted and the appellant is acquitted of the charge. She may be set at liberty forthwith if not wanted in any other case.