' Muhammad Sarwar and Mst. Kulsoom, step-brother and wife of deceased Muhammad Yaqub, respectively were tried for the murder of Muhammad Yaqub by means of Chhuris, and were convicted by Mr. Abdul Hameed Abro, Lind Additional Sessions Judge (West), Karachi, for the offence under section 302/34, P.P.C., vide judgment, dated 12-10-1987, and sentenced to imprisonment for life and to pay a fine of Rs,5,000 each or in default to suffer R.I. For three years.
Both the appellants have challenged their conviction and sentence by filing this appeal under section 410, Cr.P.C.
2. Deceased Muhammad Yaqub was a tenant of complainant Ghulam Hussain and was residing adjoining to his house alongwith his family members including both the appellants. On 13-5-1973 at about 2-30 a.m. Complainant Ghulam Hussain woke up on cries followed by groaning coming from the house of deceased Muhammad Yaqub. He went to the house of deceased Muhammad Yaqub and knocked the door, but nobody opened it. In the meanwhile Izhar, Khursheed and other neighbours collected there. Complainant Ghulam Hussain then brought Muhammad Ramzan, through whom he had rented out the house to deceased Muhammad Yaqub. The door was opened on the intervention of Muhammad Ramzan. Complainant Ghulam Hussain went inside the house and found Muhammad Yaqub lying dead with his throat cut and intestines protruding out, in a pool of blood. Both the appellants were present there. Appellant Muhammad Sarwar was having an injury on his hand. On interrogation he confessed his guilt before complainant by stating that he and Mst. Kulsoom were responsible for the murder of Muhammad Yaqub, who had disgraced his father earlier. On the same day at 3-15 a.m. The report of this incident was lodged at Liaquatabad Police Station. Sadique Hussain S.I.P. Recorded the F.I.R. And sent a copy of it to Aijaz Hussain Shah, S.H.O. He then proceeded to the scene of occurrence and held inquest in respect of deceased Muhammad Yaqub in presence of Mashirs Muhammad Rashid and Muhammad Hussain. In the meanwhile Aijaz Hussain Shah S.H.O. Arrived at the Wardat and he carried further investigation. He then prepared memo. Of Wardat in presence of same Mashirs. The S.H.O. Then recorded the statements of Ghulam Hussain, Wazir Ali, Muhammad Izhar, Babu and others. He then arrested both the appellants. Appellant Muhammad Sarwar then produced blood-stained Banyan, Pyjama and handkerchief from the roof of the house. Appellant Mst. Kulsoom then produced blood-stained Shalwar. All the blood-stained clothes were sealed on the spot. Appellant Muhammad Sarwar, who was having injury on his hand was also referred for medical examination. Appellant Muhammad Sarwar had also pointed out the shop from where he had purchased Chhuris. On the basis of the mark of washerman on the clothes of appellant Muhammad Sarwar, the S.H.O. Went there and examined him. The blood-stained articles were sent to Chemical Examiner for examination and report. After usual investigation, the case was sent up before A.C.M. III, Karachi, where during the course of committal inquiry some witnesses were examined. After the introduction of law reforms the case was received in Court of Sessions.
3. The prosecution has examined Ghulam Hussain (P.W.1), Aijaz Hussain Shah D.S.P. (P.W.2) and Sadique Hussain S.I.P. (P.W.3). The evidence of Wazir Ali, Muhammad Rashid, and Aqil Ahmad, who were examined before the committal Court, and who are presently not traceable, was transferred to the file of Court of Session under Article 47 of the Qanun-e-Shahadat, 1984, vide (Exhs.28, 29 and 32).
4. The appellants met the charge with a denial. According to them three unidentified persons had committed the murder of Muhammad Yaqub and they were falsely roped in this case.
5. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found both the appellants guilty and convicted them accordingly. It is in these circumstances that the present appeal has been filed.
6. The case of the prosecution solely rests upon circumstantial evidence. These are the following pieces of evidence against the appellants:-
(a) MUHAMMAD SARWAR.--
(i) He resided in the house of deceased Muhammad Yaqub.
(ii) He was present in the house of deceased Muhammad Yaqub when the incident took place.
(iii) He did not open the door when asked to do so by complainant Ghulam Hussain, his close neighbour.
(iv) He was having injury on his hand and in order to conceal it had wrapped a Chadar around it.
(v) He made extra-judicial confession before complainant Ghulam Hussain (P.W.1) soon after the incident.
(vi) The blood-stained Chhuris were lying near the dead body.
(vii) Recovery of blood-stained Pyjama, Banyan and handkerchief from the roof of the house at the pointation of this accused.
(b) MST. KULSOOM.--
(i) She being the wife of deceased Muhammad Yaqub resided in the same house with deceased Muhammad Yaqub.
(ii) She was present in the house of deceased Muhammad Yaqub when this incident took place.
(iii) She did not open the door when asked to do so by complainant Ghulam Hussain, her close neighbour.
(iv) She was implicated by appellant Muhammad Sarwar in his extra-judicial confession made before complainant Ghulam Hussain.
(v) She was not found weeping when complainant Ghulam Hussain entered into the house of deceased Muhammad Yaqub.
(vi) Recovery of blood-stained Shalwar at her instance.
7. The factum of unnatural death of deceased Muhammad Yaqub is not disputed by the appellants. The Medical Officer who had conducted the autopsy on the dead body of Muhammad Yaqub, was not available and consequently the post-mortem report was brought on record through Aijaz Hussain Shah, I.O. (P.W.2).
8. A conviction may be based on circumstantial evidence alone, but in order that it may be relied upon, it must be compatible with the guilt of the accused. It must be such as may point only to one possible inference leadig to the conviction of the accused. However, in the case of circumstantial evidence failure of one link destroys the entire chain. To establish an offence, therefore, by circumstantial evidence four things are essential:-
(i) The circumstances from which the conclusions arc drawn, should be fully established.
(ii) All the facts must be consistent with the hypothesis.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv) The circumstances should, to a moral certainty, actually exclude every hypothesis, but the one proposed to be proved.
9. The fact that appellant Muhammad Sarwar, who is step-brother of deceased Muhammad Yaqub, resided in the same house where the incident took place, is not open to any controversy. He has also not disputed his presence in the said house on the night of incident. Ghulam Hussain (P.W.1), who is close neighbour of deceased Muhammad Yaqub and completely an independent person, has stated on oath that the appellant did not open the door of the house which was bolted from inside when asked by him to do so. The plea that some outsiders were responsible for causing the death of Muhammad Yaqub, therefore, stands falsified from this conduct of appellant Muhammad Sarwar.
10. Appellant Muhammad Sarwar admits the injuries on his person but states that the same were the result of police torture. The F.I.R. Which was lodged with great promptitude makes a mention of injury on the person of appellant Muhammad Sarwar. Ghulam Hussain (P.W.1), has testified about the presence of injury on the person of appellant Muhammad Sarwar soon after the incident. This piece of evidence was not questioned by appellant Muhammad Sarwar in cross' examination and is deemed to have been accepted by him. The medical report which has come on record through Aijaz Hussain Shah S.H.O. (P.W.2) as (Exh.49), confirms this position. This is a strong circumstance going against appellant Muhammad Sarwar.
11. The prosecution has tried to establish the recoveries of blood-stained articles at the instance of appellant Muhammad Sarwar through Aqueel Ahmad (Exh.32) and Aijaz Hussain Shah (P.W.2). The statement of Aqueel Ahmad (Exh.32) recorded before the committing Magistrate was transferred to the file of Court of Session under Article 47 of the Qanun-e-Shahadat, 1984, as he was not traceable when summoned to appear before the Court of Session. The learned counsel for the appellants has questioned the admissibility of the statements of Wazir Ali, Muhammad Rashid and Aqueel Ahmed. It will be seen that the learned Additional Sessions Judge made all possible efforts to procure the attendance of these witnesses and their statements were transferred to his file after the process-servers testified that there was no possibility of their appearance. Where a witness cannot be found, his evidence given in a former judicial proceeding will be relevant in subsequent judicial proceeding. The evidence of Aqueel Ahmad proves beyond any shadow of doubt that appellant Muhammad Sarwar had pointed out Banyan, Pyjama and handkerchief which were secured by Aijaz Hussain Shah S.H.O., and were sealed. These articles were sent to Chemical Examiner for report, which is on record (Exh.48). According to this report the Banyan was found stained with human blood of group '0' which was also the group of blood of deceased Muhammad Yaqub found on loin cloth vide (Exh.48).
12. Lastly there is evidence of extra-judicial confession of appellant Muhammad Sarwar made before complainant Ghulam Hussain. An extra-judicial confession is merely a confession made outside the scope of judicial confession. The weight to be accorded to such confession would depend entirely upon the context of the circumstances, the person to whom it was made, and the actual conditions under which it was made, which may probabilize the voluntary nature and truth of the confession, or otherwise. As observed earlier Ghulam Hussain (P.W. 1) is a natural and independent person. No enmity is alleged or suggested with this witness. His testimony that appellant Muhammad Sarwar admitted the killing of his step-brother Muhammad Yaqub, therefore, carries much weight, especially when it is supported by other circumstances attending to this case. The evidence of Ghulam Hussain (P.W.1) is assailed by the learned counsel for appellants on two-fold grounds, firstly that the so said extra-judicial confession was made in presence of police, and secondly Ghulam Hussain stood belied from the statement of Wazir All (Exh.28) who does not speak about such confession. A careful examination of the evidence of Ghulam Hussain (P.W.1) shows that appellant Muhammad Sarwar confessed his guilt twice, once before lodging the F.I.R. Before Ghulam Hussain (P.W.1), and secondly after the commencement of investigation before the Police Officer. The latter confession is undoubtedly inadmissible, but not the earlier one. As regards the evidence of Wazir Ali (Exh.28), it may be observed that if one witness deposes with regard to a certain fact that it happened and another witness, who also claims to be present at the same time keeps quiet about that aspect of the case, greater weight should be attached to the witness, who alleges the affirmative
13. There is, therefore, strong circumstantial evidence on record proving the guilt of appellant Muhammad Sarwar. The cases of Yousuf v. The State reported in 1975 P Cr. L J 936 and Makha v. The State reported in 1975 SCMR 394, may be usefully referred in this context. The conviction and sentence recorded against appellant Muhammad Sarwar are, therefore, maintained.
14. The case of appellant Mst. Kulsoom, however stands on different footings. She is the widow of deceased Muhammad Yaqub and was admittedly residing with him in the same house. She also admits her presence at the Wardat at the time of incident. The fact that she raised cries at the time of incident is not disputed. In fact her cries attracted complainant Ghulam Hussain. Her cries were being heard by the witnesses when they had collected at the door of her house. The possibility that she was asked by appellant Muhammad Sarwar not to open the door, therefore, cannot be ruled out. Her conduct, no dout raises a strong suspicion against her. The suspicion, however strong it may be, cannot be taken as substitute of legal evidence. The fact that she was not weeping at the time of incident and after the arrival of neighbours stands belied from the evidence of Wazir Ali (Exh.28) who found her weeping.
15. The recovery of blood-stained Shalwar at the instance of Mst. Kulsoom is again not proved. Both the Mashirs were not examined and it is highly risky to rely upon the evidence of Police Officer alone to this effect. Even otherwise she was wife of deceased Muhammad Yaqub and in normal course her Shalwar could be stained with blood of her own husband while taking care of him at the relevant time.
16. Again the conviction of an accused person can never be based upon extra-judicial confession of co-accused. Whenever, therefore, the Court has to deal with a confession of co-accused, the Court should start with the rest of the evidence, and not the confession. If the rest of the evidence is wholly unsatisfactory, the confession of the co-accused will not be of any avail to the prosecution.
An alternate hypothesis inconsistent with the guilt of Mst. Kulsoom is very much there and in the event of such a possibility of two versions, the settled principle of law is that the one favourable to the accused has got to be preferred. Mst. Kulsoom is, therefore, entitled to acquittal.
17. In the result the appeal filed in respect of appellant Munarnmad Sarwar is dismissed. The appeal filed by Mst. Kulsoom is allowed. The conviction and sentence recorded against her are set aside.
Appellant Mst. Kulsoom, who is in custody be released forthwith, if not required in any other case. .