' ABDUL MAJID MALLICK, C. J. -Muhammad Bashir, appellant has been convicted by the Sessions Judge. Kotli vide his judgment dated 30-7-1983 for the offences under sections 364 and 302, A. P. C.
And sentenced to ten years' Rigorous Imprisonment and a fine of Rs, 500 on the first count and to life imprisonment and to fine of Rs, 500 on the second count. The appellant has further been directed to undergo two months simple imprisonment on each count in case of default in payment of fine.
2. The appellant has come up in appeal against the above convictions and sentences while the State has filed revision petition against the above judgment of the Sessions Judge for conversion and sentence of life imprisonment to one of death under section 302, A. P. C. This order will dispose of both the above appeal and the revision petition.
3. The brief facts giving rise to the above appeal and revision petition are that on 18-6-1981, Qazi Muhammad Yusuf, complainant made a written report to the Station House Officer, Police Station, Kotli to the effect that on 16-6-1981 at afternoon his three and half years old daughter named Shabana went alongwith her minor sisters and few other children for the purpose of grazing sheep near the house of Malick Yusuf and Noor Muhammad, situated at the distance of 1000 to 1500 yards from his house and that at about sun-set, only his two other daughters came back home unaccompanied by her. It was further alleged in the report that on inquiry by his son, Ilyas, his daughter named Dadoo told that she was coming after them. The report also contained the information that despite the search, missing daughter had not been found so for and that from the circumstances it appeared that she had been kidnapped by somebody with intention to murder her.
4. On receipt of the above report, a case under section 364, A. P. C. Was registered by the police.
During-the-investigation, on 26-6-1981 the appellant and one Ali Dad who were detained by the police for the search of the missing girl, on the same morning informed the police that the garment of the missing child hair and bones were lying in the forest known as Bengari' situated at the distance of one and half mile from the place of occurrence. On this information, the police party went 'on the spot and took into possession one blood-stained shirt, one shalwar, one plastic `chappal' of right foot, five plastic bangles, bunch of hair and some bones of human body which were lying scattered there. The complainant who was accompanying the police party, identified the above articles to be belonging to her missing daughter. The bones discovered from the place were identified by the complainant to be of the dead body of his said daughter on the basis of left canine on the bone of the lower jaw which was over-lapping anteriorly. The bones were sent by the Investigating Officer to the Medical Specialist Kotli for his examination and report who gave the opinion in his post-mortem report that the bones were of the female human body of about four years of age.
5. The appellant was arrested on 3-7-1981 by the police on whose instance, on 7-7-1981 one plastic `chappar of left foot, six steel bangles, one four inch steel nail, one empty half plastic bag and a cot were recovered from an unattended house of Mian Sakhi Muhammad situated at village Athrian.
The appellant again on 12-7-1981 led to the recovery of one blood stained `perm' from his house which was taken into possession through recovery memo. Exh. P. M. And on the next day three 'Chatank' of Sulphamide Powder was also recovered from the shop of the appellant at his instance.
The `perna' and shirt discovered from the forest were found to be stained with human blood by the Serologist out of which `perna' contained blood stains of group 'S' while the group of blood on shirt was undeterminable due to insufficient material. After the completion of the investigation, the appellant was sent to the Court of Sessions Judge, Kotli for facing his trial for the offences under sections 364 and 302, A. P. C. For having kidnapped and murdered the deceased, Mst. Shabana.
6. The prosecution in support of his case examined as many as 20 witnesses namely ; Muhammad Yusuf, Muhammad Ilyas, Mst. Zeenat Bibi, Muhammad Naeem, Nasim Akhtar, Muhammad Sadiq, Dr. Asgher Ali Mian, Muhammad Saddiq Patwari, Muhammad Latif, Muhammad Maqsood, Tasweer Hussain, Badur-uz-Zaman, Muhammad Fazal, Major (Retd.) Iqbal Khan, Muhammad Ghafar, Iftikhar Khan, Tassadiq Hussain, A. S. I. Raja Abdul Aziz, Inspector and Sardar Aftab, Sub-Inspector of police.
The appellant both in his statements under sections 242 and 342 Cr. P. C. Denied the charges levelled against him and put forth the plea that he had been falsely implicated in the case by the complainant as he had refused to satisfy his demand that he (appellant) should give his house to him. No evidence was produced in defence. The learned Sessions Judge found the appellant guilty of the commission of the offences with which he was charged by the prosecution and convicted and sentenced him as stated above.
8. We have heard the learned counsel for the appellant, Additional Advocate-General and the counsel for the complainant and have also gone through the record of the case. The learned counsel for the appellant first of all contended that the prosecution has failed to prove that the missing daughter of the complainant had in fact been murdered and as such no conviction can be recorded for the offence of murder. In this connection, it is contended that the bones alleged to have been found from the forest have not been proved to be of the dead body of the said missing girl. It is further contended by the learned counsel for the appellant that the circumstantial evidence led by the prosecution against the appellant does not at all give rise to any inference that the accused had kidnapped and murdered the missing daughter of the complainant. It is also argued by the learned counsel for the appellant that the extrajudicial confession of the accused cannot be relied upon for the purpose of convicting him as the evidence with regard to it is furnished by the close relatives of the complainant which even otherwise does not appear to be true being inconsistent with the human conduct.
9. On the other hand, the learned counsel for the State has contended that the circumstantial evidence led in this case leads to the conclusion that it was none but the appellant who had committed the murder of the deceased after kidnapping her from a place where she had gone to graze her sheep alongwith her minor sisters and other female children of the locality. It is also contended by him that circumstantial evidence finds further support from the extra-judicial confession made by the appellant to his brother-in-law, Manzoor Qureshi and overheard the Bader-uzZaman and Muhammad Ghafar P. Ws. Who happened to be the relatives of both complainant and the appellant. In this case, there is no direct evidence in respect of commission of the offences by the appellant and only circumstantial evidence has been adduced by the prosecution against him which has been relied upon and used by the trial Court for convicting him, The circumstantial evidence consists of the following particulars :- "(1) The discovery of some bones of the human dead body from the 'Bengal-I' Forest.
(2) Discovery of five bangles, 'a plastic `Chappal' of one foot, shirt, Shalwar, and bunch of hair from the said 'Forest'.
(3) The appellant was seen near the house of one Muhammad Zaman, situated in village Chowki Teenda, going upwards to the Forest about of afternoon on the day of occurrence.
(4) The shop of the appellant was found closed at about afternoon on the day of incident.
(5) The recovery of `Chappar of one foot and six steel bangles from the unattended house of one Mian Sakhi Muhammad situated at village Athrian at the instance of the appellant.
(6) The recovery of one 'Perna' stained with human blood at the instance of the appellant from his house.
(7) The recovery of Sulphamide Powder from the shop of the appellant at his instance.
(8) The extra-judicial confession of the appellant to his brother-in-law, Manzoor Ahmad Qureshi, to the effect that he had picked up the deceased from the place where she was grazing sheep and after taking her to the house of Mian Sakhi Muhammad had murdered her by throttling."
' Now we proceed to examine and discuss the above piece of circumstantial evidence one by one to see as to how far the same can be used against appellant for the purposes of basing his conviction.
10. As regards the discovery of some bones of the human body from the forest of `13angari' this does not in any way connect the appellant with the commission of offence with which he is charged. In the first place, there is no reliable proof that the bones found in the forest were of the dead body of the missing daughter of the complainant. The complainant and his wife have identified these bones to be of the dead body of their missing daughter solely on the basis that the left canine in the bone of the lower jaw was overlapping anteriorly which in other words means that they recognized the bones to be belonging to their missing daughter because the left canine in mandible was overlapping anteriorly which was also the case with the left canine of their said daughter.
11. The above identification mark relied upon by the complainant and his wife for the identification of the dead body of their missing daughter cannot be held to be conclusive proof of their being so as the left canine overlapping anteriorly can also be of any child other than th daughter of the complainant. It cannot be said that only the daughter of the complainant had a canine anteriorly overlapping and no other child could have such a canine. Even otherwise, there is no other evidence except the evidence of the complainant and his wife that their missing daughter had a canine anteriorly overlapping. No such identification mark is mentioned in the report which was lodged with the police by the complainant about the disappearance of his minor daughter and thus on the mere evidence of the interested witnesses to that effect is not sufficient to hold that the complainant's daughter under discussion in fact had a canine anteriorly overlapping.
12, For the above reasons, the death of the missing girl of the complainant is not proved with the result that the discovery of the bones from the forest does not provide an incriminating circumstance against the appellant so as to hold him responsible for murdering the daughter of the complainant after kidnapping her.
13. Even if, it is assumed for the sake of argument that the bones discovered from the forest were that of the dead body of the daughter of the complainant, still their discovery cannot be used as an incriminating circumstance leading to the inference that it was the appellant who .Had kidnapped and murdered her. These bones were not recovered at the instance of the appellant and according to the prosecution case itself, these were first of all seen scattered in the forest by Muhammad Siddique P. W. While making a search for the missing girl. It was this witness who had called the appellant who was conducting a similar search on other side of the ravine and informed him about the discovery of the bones and other articles. In these circumstances, we fail to see how the discovery of these bones from a place in a forest accessible to everybody can be used as a circumstance incriminating the appellant in the commission of offence of kidnapping and murder of the missing daughter of the complainant. Had the appellant led to recovery of these bones, then it could be said that he had the exclusive knowledge of the place from where they were recovered which fact might lead to inference that he had placed them there after murdering her but no such inference can be drawn for the reasons mentioned above.
14. From the perusal of the judgment of the trial Court, it appears that the learned Sessions Judge had used the discovery of the bones under discussion and other articles from the forest against the appellant on the grounds that he had deputed Muhammad Siddique P. W. Towards the site from where they were found for the search of the missing girl and that he had also asked the said witness to make further search on the discovery of the shirt saying that more articles would be found. The above alleged conduct of the appellant, in our view, doe, not lead to the only inference that he had the knowledge that the bones and other articles were lying at the place from where they were discovered or that he had placed them there. Such a conduct of the appellant might have been innocent one without his having previous knowledge that the bones and other articles under discussion were lying there and cannot be said to be in consistent with his innocence. Even otherwise, from the circumstances of the case, it appears to us that the above conduct and utterances have wrongly been attributed to the appellant by the said prosecution witness as the truthfulness of his evidence in this regard is highly doubtful. In his statement before the investigation officer recorded under section 161, Cr. P. C. This witness did not depose that the appellant had detained him for the search of the missing child towards the place from where the bones and other articles were discovered or that the appellant had asked him to make further search saying that more articles belonging to the deceased would be discovered. These omissions which amount to the material contradictions make his statement before the Court which pertains to the conduct of the appellant under discussion highly doubtful and cannot be relied upon to draw any adverse inference, against the appellant. The other witnesses who were accompanying Muhammad Siddique P. W. For the search of the girl could corroborate the above evidence of this witness, but they were not produced by the prosecution. For the above reasons, this discovery of the bones from the forest as a piece of circumstantial evidence against the appellant deserves to be discarded altogether from consideration,
15. So for the discovery of bunch of hair bangles, plastic Thappar of one foot, shirt and Shalwar from the forest is concerned, it also does not furnish any incriminating circumstance against the appellant for most of the reasons as stated above while discussing the discovery of bones from the said place. The evidence that the complaint is furnished only by the complainant and his wife and they are interested witnesses. Apart from their evidence, there is nothing on the record to show that garments and other articles found scattered in the forest were worn by the daughter of the complainant on the fateful day of her disappearance. In the F. I. R. It is not mentioned that these garments, `Chappar and bangles were being worn by the missing girl on the day of incident, although in such like report the description of wearing apparel is usually given for the purpose of facilitating identification of the missing person. The articles under discussion are of common use and unidentifiable. They were not got recovered at the instance of the appellant and as such the discovery from the open and accessible place cannot be used as circumstances pointing to the implication of the appellant in the commission of any offence. Moreover, the possibility of the police or complainant having manoeuvred their implantation there is not even ruled out. The shirt and Shalwar' were found to have been turned inside outside which fact shows' that it was done by someone before they were discovered. If these garments were worn by the missing girl on the day of incident then they would not have been found in a condition in which they were discovered.
There appears no apparent reason for the appellant to have done so after murdering the girl and placing her dead body in the forest.
16. The bones discovered from the forest were found to have been broken from the ends by the Doctor who examined them and according to him they appear to have been eaten by the animals.
If the animals had eaten the flesh of the dead body then these garments would not have been found turned inside outside because in that case they would have been torn into pieces. For the reasons stated above, the discovery of these articles from the forest is not such a circumstance from which inference of the appellant being the murderer of the missing daughter of the complainant can be drawn.
17. The next piece of circumstantial evidence which consists of recovery of one plastic Thappar and six steel bangles from the house of Mian Sakhi Muhammad at the instance of the appellant also in no way connects the appellant with the commission of any crime. These article were recovered from an unattended and abandoned house which is also situated near a thoroughfare. These articles are unidentifiable and o common use freely available in the open market and as such it is no D possible to hold conclusively that these were being worn by the deceased on the day of occurrence. Especially, in view of the fact that there is no reliable and independent evidence to that effect except that of the parents of the missing girl. These articles were recovered on 13-7-1981 that is about 16 days after the arrest of the appellant. In the above mentioned circumstances, the recovery of these articles is not of any significance and does not provide an incriminating circumstance against the appellant.
18. The recovery of one `Perna' alleged to be stained with human blood from the house of the appellant has also been relied upon by the trial Court as a circumstantial evidence, connecting him with the commission of the offences of kidnapping and murder but in our view this piece of evidence is also of no value to the prosecution so as to be used as a circumstance indicating appellant's implication in the said offences. In the first place its recovery from the house of the appellant at his instance appears to us to be very much doubtful. It is in the evidence of the witnesses of recovery of this articles that the house of the appellant I was found locked when the police took him there for the purpose of effecting its recovery ; that there was complete darkness inside the room of the house when the appellant opened the lock of the door and police and the witnesses of recovery went inside it and that a lantern was lit by the policeman in the light of which search for 'Perna' was conducted by him along with the appellant during which it was found lying beyond a box end picked up by the appellant. The article recovered under the circumstances mentioned above cannot be said to have been recovered at the instance of the appellant. When the police party and public men accompanied it, went inside the room of the house when there was darkness in it without being first searched out, the possibility of 'Perna' having been placed there either by the police or some other person accompanying it by taking advantage of such darkness is not ruled out. The recovery of 'Perna' under such circumstances from the house of the appellant cannot be used as an incriminating circumstance against him. This 'Perna' is also an article of common use and as such it cannot be held to be belonging to the appellant.
19.Even otherwise, its recovery from the house of the appellant is not such a circumstance which may tend to show 'the connection of the appellant with the kidnapping and murder of the missing daughter of the complainant'. The allegation of the prosecution that it was used for carrying away the dead body of the complainant's daughter to the place from where bones were discovered, is based on the fact that it was found stained with human blood at the time of its recovery. But in our view, the evidence of its being blood stained at the relevant time is not above suspicion. The perusal of its recovery memo. Exh. P. M. Would clearly show that the words `4.,s1T (blood stained) finding place twice in it have been written with an ink quite different from one used in writing the remaining recovery memo. And that too once above the line and second time at its end.
20.The above fact leads to the conclusion that words 'blood-stained' were included and added after the preparation and signing of the recovery memo. By its attesting witnesses. If the 'Perna' had in fact been found stained with blood at the time of its recovery then there is no reason, as to why the words 'blood-stained' in its recovery memo. Would not have been written in the line and in the same ink with which the remaining recovery memo. Was Written and also signed by its attesting witnesses. Once the fact of its being stained with blood at the time of its recover becomes doubtful, its recovery from the house of the appellant loses all its significance as a piece of circumstantial evidence giving rise to the inference about the appellant's implication in the commission of the offences with which he is charged.
21. Even if, it is assumed for the sake of arguments that it was blood-stained at the time of its recovery from the house of the appellant still this fact does not help the prosecution in establishing that the same was used in carrying the dead body of the deceased after murdering her to the place from where some bones and other articles belonging to the deceased were discovered as the human blood found on it, was no proved to be belonging to the blood group of the deceased. It is even not proved that the group of human blood found on it was the same a that found on the shirt discovered from the forest and alleged to be worn by the deceased at the time of her kidnapping and murder.
22. The existence of stains of human blood on the wearing apparel like 'Perna' is not a conclusive proof of such stains being the blood of some victim of the crime, as it is a common knowledge that the garments of a person even sometimes become stained with his own blood having oozed out on account of some incidental cut with sharp-edged substance or even by scratching of a body. '
So the recovery of the blood-stained `Perna' from the house of the appellant does not per se go to prove that the same was stained with the blood of the deceased thereby leading to inference that it was the appellant who had kidnapped and later murdered her.
23. The circumstantial evidence that the shop of the appellant was found closed at about afternoon on the day of occurrence also does not give rise to the inference that the same was closed by the appellant because he had gone to abduct and murder the daughter of the complainant. There may be so many other reasons for closing the shop at the said time. Moreover, the fact of the appellant's shop being closed at afternoon on the day of incident is not satisfactorily and reliably proved The solitary witnesses who has deposed to have found the shop of the appellant closed when he went there to get a medicine, for his headache I a close relative of the mother of the missing girl being her cousin. This witness was living in the house of the complainant in those days. He did not disclose this fact to anybody before his statement to the police which was made after the arrest of the appellant and that too not on his own but on being asked by the police to do so. How the police could know that he had found the shop of the appellant closed at a certain time on the fateful day when this witness had never told this fact to anybody remains a mystery to us.
24. The learned Sessions*Judge has also used as an incriminating circumstance against the appellant, his conduct in asking the daughter of his brother, Miss. Saeeda, not to disclose to the Investigating Officer that she had heard somebody calling `Baji Baji' twice from the place from where the daughter of the complainant had disappeared when she was going to record her statement in response to a summon by the said officer. There is no legal evidence on the record about this conduct of the appellant and the learned Sessions Judge has used the circumstance against the appellant on the basis of the evidence of Raja Abdul Aziz, Inspector, P. W. To the effect that during the investigation, the aforesaid niece of the appellant had made such a statement. This evidence of the above named P. W. Is not admissible under law as it amounts to hearsay evidence as well as consisting of a statement made to the Investigating Officer by a witness during the investigation under section 161, Cr. P. C even otherwise this evidence, cannot be termed as a circumstance showing appellant's implication in the commission of the offence of kidnapping and murder of the missing daughter of the complainant. We fail to see how some body's calling 'Baji Baji' involved the appellant in the commission of the offences. This evidence was also not put to the appellant while examining him under section 342, A. P. C. Which omission, renders it incapable of being used against him.
25. Lastly, we come to examine extra-judicial confession used against the appellant for the purpose of convicting him for the offences under discussion To us fact of its having been made by the appellant is very), much doubtful and rather from the circumstances of the case, the evidence' with respect to it appears to have been procured by the police from the interested and partial witnesses with a view to strengthen its case against the appellant. The evidence as to the extra- judicial confession of the appellant of his guilt is furnished by Muhammad Ghafar and Bader- uzZaman P. W. Their evidence is that on the night of 26th of June, 1981, they were lying on the cots in the compound of the house of the complainant in front of his 'drawing room' when at about 10 p.m.
One Manzoor Qureshi, the husband of the sister of the appellant passed from there and went to the appellant who was sleeping in the compound of his own house which was adjacent to the complainant's house. They further stated that said Manzoor Qureshi asked the appellant as to why he for the last 3 to 4 days had been lying at his house who in reply stated that there was no life left in his legs and that when he was further asked as to why it was so, the appellant replied that he had murdered the complainant's daughter. His further evidence is that on further inquiry, the appellant told his said brother-in-law that he had picked up the daughter of the complainant from the place. Where she was grazing her sheep and then took her to the house of Mian Sakhi Zaman, killed her there by throttling and then placed her dead body in the `Bengari' forest. The above depositions of these witnesses do not appear to be reliable and truthful for the reasons given below.
( These witnesses are close relatives of the wife of the complainant being her cousins. They made the above statements for the first time before the police 10 days after the arrest of the appellant when they were asked to state as to whether they had over-heard the appellant making!
Confession to his brother-in-law of his having committed the offences with which he was charged.
If they had in fact heard the appellant, making confession of his guilt then there was no reason of their having not informed the complainant or his wife who is closely related to them about this. The keeping of this confession of the appellant to themselves and not disclosing to anybody despite the fact that the victim of crime of murder was their close relative is such a conduct which is quite inconsistent with human nature. The reason given by them that they did not tell any body about the confession under consideration on account of their relationship with the complainant as well as with the appellant is not only unconvincing but does not appear to be factually correct as well.
Bader-uz-Zaman, P. W. Does not claim to be the relative of any of the parties while Muhammad Ghaffar P. W. Claims relationship with the appellant on the ground that he had been betrothed to the daughter of his sister named Mst. Zabaida. The witness admits not to know the name of the real sister of the appellant and also does not state the relationship of the said Mst. Zabaida with the appellant. Therefore, his statement that he was engaged with the daughter of the appellant's sister does not appear to be correct. Even if, it is assumed that Mst. Zabaida is related to the appellant, this relationship would not have been such a compelling factor so as to have prevented these prosecution witnesses from exposing the murderer of the daughter of their first cousin by disclosing the fact of his having made the confession before his brother-in-law. They did so only when they were asked by the prosecution to state as to whether they had heard appellant confessing his guilt to his father-in-law. There are also some important contradictions in their statements made before the Court. Muhammad Ghafar P. W. States that he had talked and discussed about the confession of the appellant with Bader-uz-Zaman, P. W. While they were going back to their houses. From the complainant's house next morning and had decided not to disclose the same to anybody because of their relationship with the parties whereas Bader-uz-Zaman had stated that they had not at all talked about the confession of the appellant with each other.
27. Similarly material contradiction appears in the statements of one of them before the Investigating Officer and the Court. Before the police, Bader-uz-Zaman, P. W. Had stated that he along with Muhammad Ghafar P. W. Had come to the house of the complainant at the evening time while at the trial he had stated to have come there at about 1 p.m. The above contradiction goes to show that what they have deposed about the confession, is not a truth.
28. There are yet other circumstances which make the fact of confession having been made by the appellant highly doubtful. When the appellant and his brother-in-law knew that these witnesses were lying on a cot near to them it was not expected of them to have indulged in such like conversation as is attributed to them by these witnesses because a man of ordinary produce in his senses would not confess his guilt of committing the offence of murder to anybody knowing fully well that the same was likely to be over heard by close relatives of the victim of his crime.
According to this evidence brought on record, the appellant and his brother-in-law had talked in low tone and thus it is doubtful whether such a conversation could possibly be heard by persons who were sleeping at distance of about 25 feet away from there.
29. For the forgoing reasons, the evidence regarding the extrajudicial confession of the appellant of his having committed the offences of kidnapping and murder, is not believable and cannot be taken into consideration against the appellant while considering prosecution charges against him.
Even otherwise, as a rule of prudence, no conviction can be based on retracted judicial or extra- judicial confession of the accused unless it finds corroboration from some other reliable and independent evidence. Since of ier circumstantial evidence has already been discarded in this case, no conviction of the appellant can be recorded on his extrajudicial confession alone.
30. According to the rulings of the superior Courts, it is now settled law that there can be no conviction of an accused person on the basis of circumstantial evidence until and unless, the only inference that emerges from such evidence is that of his guilt.
31. In 1982 P Cr. L J 311, it was held that in a case of circumstantial evidence, the prosecution has not only to establish the circumstances but also to show that accumulative effect of the circumstances points to the guilt of the accused. In PLD 1970 SC 56, it was held that as regards conviction, based on the circumstantial evidence alone the rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Similarly, in PLD 1975 Azad J & K 12, it was held that in a case of conviction on circumstantial evidence only when there is no ocular evidence, the rule is that all circumstances from which inference adverse to the accused is sought to be drawn must be conclusively proved and that it must be shown that incriminating fact is inconsistent with the innocence of the accused.
32. The sum total of the above discussion is that in this case firstly the circumstances sought to be used for basing the conviction of the appellant are not proved conclusively and secondly each of them is such that it cannot be said to be leading to the only inference about the implication of the appellant in the commission of the offences with which he is charged and rather, on the contrary, it is capable of explanation, quite consistent with his innocence.
33. As a result of the above discussion, by accepting the appeal of the appellant, we set aside his conviction and sentence and acquit him. The appellant shall be released forthwith, if he is not wanted in connect with any other case. The revision petition filed by the State for the conversion of the sentence of life imprisonment awarded to the appellant under section 302, A. P. C. To that of death, stands dismissed accordingly.
THE END