1. ' This appeal is directed against the judgment given by the Sessions Judge, Dadu in Sessions Case No,205 of 1985 whereby the appellant was convicted under section 302 of Pakistan Penal Code and sentenced to undergo R.I. For life and also to pay a fine of Rs,50,000 or in default to undergo a further imprisonment for five years.
2. ' Briefly the facts of the case are that one Darak, the deceased, had no male issue from his first wife Mst. Hani except for one daughter Mst. Bhagri and, therefore, he took a second wife, the present accused. From out of his wedlock with the present accused the deceased got two sons, namely, Salch and Ali Hasan and a daughter by name of Gulnar. The deceased was found missing from the house since about one week when on enquiries by Mst. Bhagri, she was informed by the accused that he had gone to Ghotki but in spite of lapse of about one week, he did not return. However, on the morning of 12-2-1985 the said Mst. Bhagri was informed that a dead body was dug out from a ditch by the dogs on which she alongwith her step-brother Saleh and sister went towards the place and on seeing the dead body, they identified the same to be of their father's. They immediately approached Rais Gul Muhamamd Khan who also came to the place of incident and seeing the dead body asked them to go to police station and lodge the F.I.R. Mst. Bhagri then on the same day approached the Police Station Tando Rahim Khan at 22-05 hours and got the F.I.R. Lodged. In the F.I.R. She disclosed that the accused had illicit connections with one Akbar; and that she showed her suspicion in the said Akbar, Umer, Rahim and Jummo to have murdered the deceased at the instance of the present accused. The F.I.R. Was registered by S.H.O. Kambar Ali of the Police Station Tando Rahim Khan who took up the investigation, visited the place of incident on the next day where he prepared the Mashirnama of Wardat, picked up blood-stained earth from under a cot which is also said to have blood stains on one of its arms. The accused is also said to have produced one blood-stained quilt before him. The SHO is then said to have examined the witnesses and detained the present appellant and co-accused Akbar for interrogation. It is further the case of the prosecution that the accused led to recovery of blood-stained Muhri (wooden hammer used for thrashing the corn.). She is also said to have produced one spade which are said to have been used in commission of the offence. These recoveries were made on 16-2-1985 and on the same day, the dead body was exhumed and post-mortem was conducted. On 17-2-1985, the appellant was produced for recording a confession before a Magistrate whereafter she was remanded to judicial custody. The co-accused was subsequently arrested on 21-2-1985 and the challan was put up before the Court. The appellant as well as co-accused both pleaded not guilty and a charge was framed against them under sections.
3. ' 302/201 and 34, P.P.C. The prosecution in support of the charge examined six witnesses as under:-- -
(i) P.W.1 Dr. Manzoor Ahmed, Exh.8. P.W.2 Mst. Bhagri (complainant), Exh.9. P.W.3 Mst. Hani, Exh.10.
(iv) P.W.4 Haji Gul Khan, Exh.12.
(v) P.W.5 Magistrate Hari Ram, Exh.14.
(vi) P.W.6 Police Inspector Kamber Ali (Investigating Officer), Exh.16.
4. ' The Medical Officer produced the post-mortem report as Exh.8/A while the complainant produced the F.I.R. As Exh.9/A. Magistrate Hari Ram produced the confession recorded by him as Exh.14/A. The Investigating Officer produced the Mashirnamas of Wardat, recoveries and arrest as Exhs.16/A to 16/F. The prosecution did not examine P.W. Saleh, the son of the complainant and any of the Mashirs of the various Mashirnamas Exhs. 16/A to 16/F. The prosecution then closed their side. The accused was examined under section 342, Cr. P.C., who retracted from the confession allegedly given by her and claimed that the same was obtained through coercion and torture. The learned trial Court discarded the evidence of P.Ws, 2, 3 and 4 on the ground that the same was not corroborated but relying on the evidence of the Magistrate and Investigating Officer, convicted the appellant and sentenced her as above, while co-accused was acquitted.
5. ' I have heard the learned counsel for the appellant and the learned Assistant Advocate-General Sindh. A perusal of the judgment will show that the following points were framed by the learned trial Court:
(1) Whether the deceased sustained injuries and died on account of injuries a week prior to 12-2- 1985, during night hours in his house' situated in Deh Phadak Taluka Johi?
(2) Whether the accused caused injuries to the deceased and murdered him?
(3) Whether the accused caused the evidence of the murder to be disappeared by burying the dead body of the deceased in a ditch?
(4) Whether accused Akbar helped the accused to commit the murder and to cause disappearance of evidence of the murder by helping her?
(5) What offences are committed by the two persons named above put to. Trial?
6. ' POINT NO.1. On this point, with regard to death of the deceased and its cause, the prosecution has examined the Medical Officer, who had performed post-mortem. His evidence has gone unchallenged. Hence the fact that the deceased had sustained unnatural death on account of injuries as alleged stands proved.
7. ' POINT NO.2. This is the main point which is to be considered. It is alleged by the prosecution and is held by the trial Court that the death of the deceased was caused on account of injuries given by the present appellant. On this point the prosecution has examined five witnesses. Admittedly, the incident is an unwitnessed one. According to the prosecution case the complainant had found her father missing about one week prior to the lodging of the F.I.R. And she was informed by the present appellant that he had gone towards Ghotki. However, on 12-2-1985, learning that a dead body was dug out from a ditch by dogs, she went there with her brother and sister and identifying the dead body to be that of her father, she informed Rias Haji Gul Khan and on his advice, she went to the police station to lodge the F.I.R. Wherein she expressed her suspicion in co-accused Akbar and others stating that they caused the death of her father at the instance of the present appellant. The other witness examined by the prosecution is P.W. Mst. Hani. The prosecution has also examined P.W. Haji Gul Khan on this point. These three witnesses have not seen the incident but their evidence is based on suspicion and has rightly beep discarded by the trial Court. The other reason for discarding the above evidence is that P.W. Saleh, the son of the appellant has not been examined by the prosecution to corroborate their evidence. According to the prosecution' Saleh is the person before whom the appellant had made extra-judicial confession as recorded in her confession.
8. Thus, Saleh was the most important witness in the case from this point of view but this witness was given up by the prosecutor through a statement in writing saying that according to process-server, this witness had shifted from the village where the Wardat was committed to Ghotki. The trial Court has also considered this aspect and further observed that this witness being son of the appellant would have been an interested witness. Nothing is said in the judgment, if any effort was made to procure the attendance of this witness although the two other witnesses Mst. Bhagri and Mst. Hani have shown their residence as Ghotki and when their attendance from Ghotki could be procured then why not the attendance, of P.W. Saleh. This shows that the case has been mishandled by the prosecution at the trial and no serious note of this has been taken by the trial Court. Not only this but the prosecution has also failed to examine the Mashirs of Wardat, recovery of alleged incriminating material and arrest. No reason has been shown as to why these Mashirs were not examined. The record shows that there is only one statement made by the prosecutor wherein it is stated that according to the report of process-server P.W. Allah Rakhio (Mashir) has gone to Saudi Arabia and is not likely to return and, therefore, he could not be examined. There is nothing on the record to show as to why the other Mashirs have not been examined by the prosecution. This fact itself give rise to inference against the prosecution and would play a great role in demolishing the case against the appellant.
9. ' The trial Court has solely relied on the evidence of Magistrate and the' Investigating Officer which is based on confession and circumstantial evidence.
10. ' I will first take up the confession. It is admitted by the Investigating Officer P.W. Kambar Ali in his cross-examination that he had detained the present appellant on 13-2-1985 for interrogation; and that she had remained in his custody from 13th to 17th February, 1985 although her formal arrest has been shown on 16-2-1985. The confession of the appellant is recorded by the Magistrate on 17- 2-1985 and the Magistrate in his evidence has stated that when she was brought before him for confession she was accompanied by a small child (her minor son). Now as admitted, from 13th to 17th February 1985 she had been in police custody, obviously with her minor child and one can imagine as to what would be her condition and feelings in police custody during this period of five days. It is established law that confession recorded of an accused after keeping him for such period in police custody would be of no avail to prosecution unless corroborated by a very strong independent evidence. Such confession by itself cannot form the basis of conviction, whereas in the present case one more factor, militating against the prosecution, is that the accused is a lady with her minor child in police custody. It is not only she alone who has suffered the rigour of such custody but her minor child is also made to undergo such torture. She is an illiterate lady and in her statement given in defence, she has stated on oath that she had not given such confession. I, therefore, hold that this confession by itself cannot form the basis of the conviction unless some very strong corroborating evidence is brought on record.
11. ' Now I take up the circumstantial evidence. In the circumstantial evidence, the trial Court has relied upon the evidence of the Police Inspector (Investigating Officer) and Mashirnama of Wardat and various recoveries. As stated above, the prosecution has failed to examine any of the Mashirs in case without assigning any reason as to why they are not examined. They could have been the independent witnesses in the case and holding them back by the prosecution would give rise to the inference that if they had been examined, their evidence would have gone against the prosecution. Reliance may be placed on provisions of Article 129(g) of the Qanune Shahadat, 1984.
12. The trial Court has observed that evidence of a police officer is as good an evidence as of any other witness. No doubt the law is that a police officer's evidence is not to be discarded unless some mala fides or some other circumstances are shown. Here in this case the very conduct of the Investigating Officer shows that his evidence by itself would not be sufficient to prove such a grave and serious charge against the appellant. In the first instance, the deposition of this police officer shows that the complainant had gone to police station in the company of P.W. Haji Gul Khan; and that the F.I.R. Was registered at the instance of the complainant Mst. Bhagri. As against this, P.W.
13. Haji Gul Khan, who is said to be a Rais and thus a Nekmard of the village states in his cross- examination that he did not go to police station nor informed the police about the incident. He also states that police did not record his statement. This contention of this witness totally belies the police officer. Again it may be observed that this police officer in his examination-in-chief has stated that he arrested co-accused Akbar on 21-2-1985, whereas the Mashirnama of arrest of Akbar shows that he was arrested on 20-2-1985. In his evidence when he was shown the Mashirnama of arrest of co-accused Akbar, this police officer seems to have lost his balance and stated that the date of arrest of co-accused Akbar was 20-5-1985 as shown, both in English as well as in vernacular record. As regards recovery of blood-stained earth from under the cot, it may be observed that the P.Ws. Mst. Bhagri and .Mst. Hani both admit that the two wives and four children of the deceased were all living in same common house and has stated in the F.I.R. And evidence, the death of the deceased was caused at least one week prior to lodging of the F.I.R. It is very surprising to note that all this period none of the inmates had noticed the blood-stained marks on earth as well as on the cot. People living in the house would naturally be cleaning and sweeping their house if not daily at least twice or thirce a week and yet none of them could notice such blood stains on earth and the cot. The other piece is of recovery of the quilt of the deceased, which is also said to be lying on the ground by the cot having blood stains. The quilt is also shown to have been recovered by the police through the Mashirnama of Wardat. As observed above, it is also surpirsing to note that a blood-stained quilt is lying in the house by the cot within sight of inmates but none of the inmates of the house could observe the same for a period of more than a week. This circumstance alongwith the fact that none of the Mashirs of recovery of the blood-stained quilt and earth was examined goes to create a doubt in the case of the prosecution. Of course, one of the Mashirs Allah Rakhio is said to have gone away to Saudi Arabia but the other Mashir Mohammad Laiq was very much available and could have been examined. Similarly, with regard to Mashirnama of production of Muhri (hammer) and spade is also rendered doubtful for the same reason.
14. ' From the above discussion, it is obvious that the case of the prosecution as presented cannot be one beyond any reasonable doubt. One tainted piece of evidence cannot corroborate other taintated piece of evidence.
15. As discussed above, I am of the view that both the confession as well as circumstantial evidence comprising of recovery of blood-stained earth, quilt, spade and Muhri (hammer) are not free from doubt. The learned Sessions Judge has observed that it was for the defence to have produced P.W.
16. Saleh, the son of the appellant before whom the appellant made extra-judicial confession. In a ciriminal case it is the duty cast upon the prosecution to prove their case beyond any reasonable doubt and it is not for the defence to prove the innocence of the accused. All that the defence is required to do is to create a doubt in the prosecution case and once the defence succeeds in creating a doubt the accused would be entitled to such benefit.
17. ' From the above discussion, I am of the view that prosecution has failed to prove their case beyond any reasonable doubt. I, therefore, allow this appeal, and set aside the conviction and sentence awarded by the trial Court. The appellant is acquitted and shall be released forthwith, if not required in any other case.
18. ' Above are the reasons for the short order announced on 30th December, 1991.