Appellants Ghulam Abuzar and Mst. Ruqayya Bibi were tried by Miss Mah Jabeen, Iltrd Additional Sessions Judge (East) Karachi, for the offence under section 302/201/109/34, P.P.C., who found them guilty for the offence under section 302/34, P.P.C. And vide judgment, dated 27-4-1989 sentenced each of them to imprisonment for life and to pay a fine of Rs.5,000 or in default to suffer R.I. For six months more. Both the convicts have challenged their conviction and sentence by filing separate appeals. By this judgment I propose to dispose of both the aforesaid appeals.
2. Deceased Dost Muhammad, a railway employee was the husband of appellant Mst. Ruqayya Bibi, who resided together in their own house situated in Qayyumabad, Karachi, alongwith their four children. Appellant Ghulam Abuzar who resided in the same vicinity was a friend of deceased Dost Muhammad and he used to visit their. House frequently. It is alleged that appellant Ghulam Abuzar developed illicit intimacy with appellant Mst. Ruqayya Bibi and they on 28-8-1986 at about 1-30 a.m. Throttled Dost Muhammad and then electrocuted him to death. Muhammad Akram and Muhammad Riaz, who are nephews of deceased Dost Muhammad and resided in Natha Khan Goth were informed about the death of Dost Muhammad in the morning time giving it a colour of accidental electrocution. Muhammad Akram advised appellant Mst. Ruqayya Bibi to inform the Railway Authorities for making arrangement for the transportation of dead body of Dost Muhammad to his native place, but the proposal,, was opposed by her as there was likelihood of decomposition of dead body. Deceased Dost Muhammad was then buried in the graveyard of Qayyumabad. Appellant Mst. Ruqayya Bibi then went to her native place situated in the Province of Punjab where she resided with her children for few days. On return to Karachi she stayed in the house of Muhammad Akram situated in Natha Khan Goth and when asked to shift to her own house she came out with truth by stating that she was scared of appellant Ghulam Abuzar who has thro deceased Dost Muhammad to death. On 13-10-1986 at 11-05 p.m. The report of this incident was lodged by Muhammad Akram at Korangi Police Station (Crime No.742 of 1980). On 28- 10-1986 the dead body of Dost Muhammad was exhumed and his post-mortem examination,, was conducted at the graveyard by Dr. Shad Muhammad. The bones of the neck of deceased Dost Muhammad and some other parts were preserved and were sent to Chemical Examiner, Karachi, for report. After the receipt of the report both the appellants were arrested on 11-2-1987. Appellant Mst. Ruqayya Bibi was produced before Mr. Thanwardas, A.C.M. On 18-2-1987, who recorded her judicial confession. After usual investigation both the appellants were sent up to stand trial for the said offence.
3. The appellants pleaded not guilty to the charge and claimed a trial. At the trial the prosecution examined Muhammad Akram (P.W.1), Muhammad Riaz (P.W.2), Muhammad Inayat (P.W.3), Ziauddin (P.W.4), Muhammad Mumtaz (P.W.5), Shafqat Imam (P.W.6), Thanwardas (P.W.7), Shoukat Sultan (P.W.8), Dr. Shari Muhammad (P.W.9) and Muhammad Akhtar Lodhi S.I.P. (P.W.10).
4. Both the appellants met the charge with a denial. According to them the witnesses are interested, hence they have deposed falsely against them. Appellant Mst. Ruqayya Bibi has denied to have, made judicial confession by stating that her signatures were obtained by the Investigating Officer. They, however, did not examine themselves on oath. They also led no defence.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellants guilty and convicted them accordingly.
6. I have heard Mr. Hasan Feroz, learned counsel for the appellants and Mr. Salman Ansari, learned counsel for the State. 1 have also gone through the record of this case carefully.
7. According to the case of the prosecution the death of deceased Dost Muhammad was unnatural. He was first throttled and then electrocuted to death. Dc. Shafi Muhammad (P.W.9), who had conducted the post-mortem examination on the dead body of deceased Dost Muhammad has not supported the case of the prosecution to this effect. When asked to give his opinion about the cause of death. Dr. Shah Muhammad testified as follows: "Presently cause of death could not be ascertained due to advance age of decomposition. As far as opinion about the allegations is concerned could not be excluded as it is specially concerned with soft parts of the neck and respiratory system /cardio-vascular system. All these stages have passed due to decomposition...'
8. The report of the Chemical Examiner is on record (Exh.28) and it is also in negative in respect of the articles received by him. Thus, there is no positive evidence on record to prove that deceased Dost Muhammad died due to throttling or electrocution.
9. According to Dr. Modi strangulation is a violent form of death, which results from constricting the neck by means of ligature or by any other means without suspending the body. It is called throttling, when constriction is produced by the pressure of the ringers and palms upon the throat.
Dr. Modi in his book `Medical Jurisprudence and Toxicology' has given the following external appearance on the dead body of a person whose death is caused by throttling: "If the fingers are used (throttling) marks of pressure by the thumb and fingers are usually found on either side of the windpipe. The thumb --mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards, and one below the other, but are sometimes found clustered together, so that they cannot be distinguished separately. These marks look like soft, red bruises, if examined soon after death, but they look brown, dry and parchment-like sometimes after death. The position of these marks may definitely indicate whether the left or right hand was used, as also the size of the hand also whether the person was standing in front or behind the victim. Crescent marks produced by the finger nails are occasionally present, if the finger tips are pressed deeply into the soft I tissues of the neck.
When both hands are used to grasp and compress the j throat, the thumb-mark of one hand and the finger marks of the other hand are usually found on either side of the throat. Sometimes, both thumb-marks are found on one side and several ringer marks on the opposite side. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck, as well as on its back. Besides these marks, there may be abrasions and bruises on the mouth, nose, checks, forehead, lower jaw or any other part of the body if there has been a struggle."
10. According to Dr. Modi the cause of death from electric shocks may bring the following external appearances on the dead body: "The face is generally pale, the eyes are congested and the pupils are dilated. Local lesions arc found at the points of entrance usually in the hands or on fingers and exit of the electric current mostly from feet or opposite hand. Professor Jellinek has pointed out that the micro pathological changes, as observed in the skin at the site of an electrical lesion, are a compression of the horny layer into a Ruqayya Bibi then went to her native place situated in the Province of Punjab where she resided with her children for few days. On return to Karachi she stayed in the house of Muhammad Akram situated in Natha Khan Goth and when asked to shift to her own house she came out with truth by stating that she was scared of appellant Ghulam Abuzar who has throtIled deceased Dost Muhammad to death. On 13-10-1986 at 11-05 p.m. The report of this incident was lodged by Muhammad Akram at Korangi Police Station (Crime No.742 of 1980). On 28-10-1986 the dead body of Dost Muhammad was exhumed and his post-mortem examination,, was conducted at the graveyard by Dr. Shad Muhammad. The bones of the neck of deceased Dost Muhammad and some other parts were preserved and were sent to Chemical Examiner, Karachi, for report. After the receipt of the report both the appellants were arrested on 11-2-1987. Appellant Mst. Ruqayya Bibi was produced before Mr. Thanwardas, A.C.M. On 18-2-1987, who recorded her judicial confession.
After usual investigation both the appellants were sent up to stand trial for the said offence.
11. Quite admittedly the dead body of Dost Muhammad was not concealed from anybody.
Complainant Muhammad Akram (P.W.1) has admitted that the burial took place at about 3 or 4 p.m. And he was present when last bath was l given to deceased Dost Muhammad. None, out of the relatives and neighbours, however, suspected any foul play at that time or noticed any of the above symptoms pointed out by Dr. Modi. The delay in lodging F.I.R. By 1-1/2 months in such circumstances is, therefore, fatal to the case of the prosecution.
12. In the case of Allah Ditta v. The State reported in 1980 P Cr. L J 163, it was observed by a Division Bench of Lahore High Court that: "Although circumstances cannot lie but they can mislead. They may also have been brought about for the very purpose of misleading and it is now settled that there can be no conviction unless and until the guilt be the only possible inference from the circumstances. Another rule which is to be taken note of, is that no conviction for murder is allowed unless the fact that there has been a death be proved fully which may be done either by direct evidence (e.g. The finding of the body) or by circumstantial evidence of exceptionally strong character. Mere suprevision is not sufficient to justify conviction."
13. The case of the prosecution mainly hinges upon the following items of evidence:
(i) Evidence of illicit intimacy between appellant Ghulam Abuzar and appellant Mst. Ruqayya Bibi.
(ii) Evidence of Shoukat Sultan (P.W.8) son of appellant Mst. Ruqayya Bibi, who heard shrieks of his father Dost Muhammad on the night of incident.
(i.e) Letter of appellant Ghulam Abuzar written to appellant Mst. Ruqayya Bibi giving threats (Exh.24).
(iv) Extra-judicial confession of appellant Mst. Ruqayya Bibi made before Muhammad Akram (P.W.1) and Muhammad Riaz (P.W.2).
(v) Judicial confession of appellant Mst. Ruqayya Bibi implicating herself and co-accused Ghulam Abuzar (appellant).
14. Muhammad Inayat (P.W.3) has testified about the illicit intimacy between the two appellants.
He, however, admits that since appellant Ghulam Abuzar visited the house of deceased Dost Muhammad he suspected that they had illicit relations. This is purely a hypothetical conclusion.
Admittedly appellant Ghulam Abuzar was a friend of deceased Dost Muhammad and obviously he visited the house with the consent of his friend. None of the relatives of deceased Dost Muhammad objected to the visits of appellant Ghulam Abuzar and evidence to this effect is lacking in this case.
Muhammad Inayat (P.W.3) is serving in Pakistan Navy where Muhammad Akram (P.W.1) also worked. It was on account of this connection that Muhammad Inayat (P.W.3) has come out with this sweeping allegation.
15. Shoukat Sultan (P.W.8) is son of appellant Mst. Ruqayya Bibi from deceased Dost Muhammad.
He has given his age to be 15 years when his deposition was recorded on 21-1-1989, meaning thereby that he was 12 years old when the incident took place. Shoukat Sultan (P.W.8) has come out with the following statement: "My father was present in the house and they both returned back. Afterwards we had meals and I slept. In the night I were up from my sleep on the cries and inquired from my mother about the cries, upon which she told me that cats were fighting with each other and she rebuked me to go and sleep. 1 could not sleep on that night. I heard from accused Abuzar. He was telling my mother
(if) anybody asked about the incident tell him that he has electric shock..."
16. Quite admittedly Shoukat Sultan (P.W.8) is the person who was deputed to complainant Muhammad Akram to inform about the accidental death of his father Dost Muhammad. At no time he conveyed about the above aspect of the case, which he has for the first time disclosed before the Court. He was a boy of about 12 years of age when the alleged incident took place. He is presently residing with the relatives of his father and, therefore, he has testified the above facts under their influence.
17. The prosecution has again failed to prove that appellant Ghulam Abuzar was the author of letter (Exh.24). He has denied to have, written this letter to appellant Mst. Ruqayya Bibi. The contents of this letter again do not indicate that deceased, Dost Muhammad was murdered by these two appellants. Such evidence could be planted by anybody.
18. The extra-judicial confession alleged to have been made by appellant Mst. Ruqayya Bibi to Muhammad Akram (P.W.1), and Muhammad Riaz (P.W.2) is again not proved satisfactorily. It was also retracted by appellant,, Mst. Ruqayya Bibi at the earliest opportunity. The evidence of Muhammad Akram (P.W.1) in this regard appears to be sketchy. His evidence shows that the alleged confession was recorded and the cassette containing the admission of guilt,, was handed over to him by appellant Mst. Ruqayya Bibi. This audio cassette was, however, not brought on record, why?, nobody knows. The evidence of both Muhammad Akram (P.W.1) and Muhammad Riaz (P.W.2) further goes to show that appellant Mst. Ruqayya Bibi had admitted before them that co- accused Ghulam Abuzar had strangulated her husband. This version is at variance to the case set up before the Court that deceased Dost Muhammad was first throttled and then electrocuted to death. No reliance can, therefore, be placed upon such evidence.
19. Now we are left with the evidence of judicial confession of appellant Mst. Ruqayya Bibi.
Muhammad Akram (P.W.1) who has lodged F.1.R. On 13-10-1986; (Exh.8) has nominated both the appellants. His evidence shows that both the appellants were arrested on the same day when the F.1.R. Was lodged. This position,, is further confirmed by Muhammad Riaz (P.W.2), who has stated as follows: "The accused were arrested immediately after the report."
Quite obviously both of them remained under wrongful confinement till 11-2-1987. When they were shown to have been arrested vide Mashirnama (Exh.31). The judicial confession of appellant Mst.
Ruqayya Bibi,, which was recorded on 18-2-1987 after about four months of her arrest has hardly any legal value. The story,, which was put forward in the judicial confession again appears to be improbable. In such a situation the judicial confession cannot be said to be voluntary and true. The case of State v. Asfandyar Wali and 2 others reported in 1982 SCMR 321, is a relevant authority in the above situation. The conviction of an accused person can never be based upon the confession of co-accused recorded in most suspicious circumstances. If the rest,, of the evidence is wholly unsatisfactory, the confession of co-accused which is uncorroborated and retracted will be of no avail to the prosecution.
20. In case of circumstantial evidence failure of one link destroys the entire chain, but in this case all the links connecting the appellants with this crime are missing. Even the unnatural death of deceased Dost Muhammad is not proved.
21. Having regard to the above circumstances, I am satisfied that both the appellants were wrongly convicted. They are accordingly acquitted and the judgment of the trial Court is set aside. The appellants who are present in custody be released forthwith, if not required in any other case. Both the appeals are accordingly accepted.