' Appellant Syed Ali Shah alias Shahji was tried alongwith Mst. Zahida wife of deceased Asghar Ali by Miss Mah Jabeen, III Additional Sessions Judge (Central) Karachi, for the offence under section 365/302/34, P.P.C., who found the appellant guilty for the offence under section 302/34, P.P.C., and sentenced him to imprisonment for life and to pay a fine of Rs,10,000 or in default to suffer R.I. For six months. The fine if recovered was ordered to be paid to legal heirs of deceased Asghar Ali. Co- accused Mst. Zahida died during the pendency of the case and consequently the case against her abated. By this jail appeal the appellant has challenged his conviction and sentence recorded/awarded on 19-4-1992.
2. Deceased Asghar Ali, a Rickshaw Driver resided with his wife co-accused Mst. Zahida (since dead) and his children in a but situated in New Karachi. On 27-2-1987 deceased Asghar Ali had come to the house of his father Gulzar Muhammad, the complainant in this case, alongwith his family members to participate in the marriage ceremony of his brother Muhammad Anwar which was to take place in the first week of March, 1987. On 1-3-1987 deceased Asghar Ali went to his house and thereafter he was not seen alive. Complainant Gulzar Muhammad and his other sons searched for him but with no result. The appellant, a neighbour of deceased Asghar Ali, and co- accused Mst. Zahida wife of deceased Asghar All who were carrying on criminal intimacy were suspected to have hand in the disappearance of deceased Asghar Ali and such information was conveyed to Gulberg Police. The house of the appellant who was found missing, was searched in his absence which led to the recovery of a blood-stained mattress. On 10-3-1987 the F.I.R. In this case was registered at New Karachi Police Station. On 25-3-1987 the dead body of Asghar All was found in a drain (Nala) in highly decomposed condition. During the course of investigation the appellant was arrested on 10-12-1987 who produced on spade and an iron pipe from his house. On 17-12-1987 the appellant was produced before Shahzar Shamoo, A.C.M. No,1 (Central) Karachi, who recorded his judicial confession. After completing the investigation both the accused were challaned.
3. The appellant pleaded not guilty and claimed a trial. At the trial the prosecution examined complainant Gulzar Muhammad (P.W.1), Anwar All (P.W.2), Abdul Majeed (P.W.3), Abdul Salam (P.W.4), Muhammad Aslam (P.W.5), Muhammad Usman (P.W.6), Amir Muhammad Khan (P.W.7), Muhammad Anwar (P.W.8), Muhammad Ashraf P.C. (P.W.9), Gulzar Ahmad P.C. (P.W.10), S.M. Saleh Jafferi (P.W.11), Muhammad Munir (P.W.12), Muhammad Nusrat S.I.P. (P.W.13), Fayyaz Ahmad Qureshi, Inspector (P.W.14), Atta Muhammad S.I.P. (P.W.15), Lal Khan S.I.P. (P.W.16), and Shahzar Shamoo A.C.M. (P.W.17).
4. In his statement recorded under section 342, Cr.P.C., the appellant denied the case of the prosecution. His defence in his own words is as follows:-- "I had no enmity with Asghar Ali. I always treated him as real brother. I am innocent. I have not committed any offence. I have been implicated falsely in this case. I produce my written statement separately."
5. The appellant did not step into the witness-box. He also led no defence. On the assessment of evidence available oh record the learned Additional Sessions Judge found the appellant guilty for the offence under section 302/34, P.P.C., and convicted him accordingly.
6. On 16-11-1992 I had heard the appellant in person and Mr. M. Hayat Qureshi, learned counsel for the State. Mrs. Ismat Mehdi, Advocate who happened to be present at that time then volunteered to represent the appellant free of charge and she requested for an adjournment. On 9-12-1992 the arguments were reheard and this time Mr. Abdul Hakeem Bijarani, learned A.A.-G. Represented the State, who supported the impugned judgment.
7. The fact that deceased Asghar Ali disappeared all of a sudden on 1-31987 and on 25-3-1987 his decomposed dead body was found from a Nala is not in dispute. The post-mortem report (Exh.40) which is brought on record through S.M. Saleh Jafferi, (P.W.11) makes it clear that deceased Asghar Ali died an unnatural death due to head injury caused from some hard and blunt object.
8. There is no direct evidence in this case and the case of the prosecution against the appellant solely rests upon circumstantial evidence consisting of following items:--
(i) Criminal intimacy between the appellant and co-accused Mst. Zahida wife of deceased Asghar Ali (since dead).
(ii) Absence of the appellant from his house soon after the incident till his arrest on 10-12-1987.
(iii) Recovery of blood-stained mattress from the house of appellant on 10-3-1987 during his absence.
(iv) Recovery of one spade and an iron pipe from the house of appellant at his instance on 11-12- 1987.
(v) Retracted judicial confession of appellant made on 17-12-1987 after one week of his arrest.
9. A conviction may be based on circumstantial evidence alone, but in order that it may be relied upon it must be such as may point out only to one possible inference leading to the conviction of the accused. In the case of such evidence failure of one link destroys the entire chain.
10. The most important evidence against the appellant is his retracted judicial confession (Exh.51) which quite admittedly was recorded after seven days of his arrest. Besides the delay in producing the appellant for recording his judicial confession, the evidence of Shahzar Shamoo, A.C.M. (P.W.17) makes it clear that he did not take necessary precautions to remove the appellant from the influence of police. He was not even informed that in either case, whether he makes a confession or not, he would not be sent back to police. There is yet another important and to my mind, the most fatal point in the confession that it was self-exculpatory, which may be seen from the following extract:- "I had illicit affairs with Mst. Zahida wife of Asghar Ali for the last 3 or 4 years. They were my neighbours. Mst. Zahida used to say me that I should remove her husband Asghar Ali from the way, but I used to say her that we should adopt the legal course. On 1-3-1987 at about 7 or 8 p.m. Asghar Ali was talking with me in my house when Mst. Zahida arrived there armed with an iron rod (Sarya), with which she struck on the head of her husband, whereupon Asghar Ali picked up a Danda lying in the room and struck me on my shoulder. I also struck Asghar Ali by means of Danda. I then fell down and thereafter Mst. Zahida caused so many injuries to Asghar Ali. She caught hold of the testicles of her husband and pressed them continuously, with the result that he went unconscious and died. At about 10 p.m. We buried the dead body of Asghar Ali near the river. Then I and Mst.
Zahida came back, from where Zahida went to the house of her in-laws. Blood of the deceased lying in our house was cleaned by both of us. I want that lady accused Zahida be also arrested because she is the real murderer. I helped her because of compulsion. Asghar Ali had picked up Danda on me, and due to that I had struck at him."
11. The law is well-settled in this regard. The confession besides being inculpatory must be voluntary, and if so, it must be true and trustworthy. It is undoubted that the police use third-degree methods for the purpose of securing a confession from the accused. The delay of seven days in getting the confessional statement of the appellant recorded leads to a conclusion that the appellant was forced to make this confession. Again the job of the police was made easier by Shahzar Shamoo, A.C.M. (P.W.17), who acted in a mechanical way while recording the confession.
Since the confessional statement was retracted at the earliest possible opportunity and the same is found to be self-exculpatory in nature, no reliance can be placed upon it.
12. There is also no evidence on record to even suggest that the appellant was on illicit intimacy with co-accused Mst. Zahida (since dead). The confessional statement of the appellant to this effect has already been discarded in para.11 ante.
13. The recovery of mattress from the house of the appellant during his absence is of no legal value.
The report of the Chemical Examiner, Karachi, to prove that the mattress was stained with human blood is not available on record. In the absence of such evidence no reliance can be placed upon this item of evidence.
14. The recovery of spade and iron rod from the house of the appellant after the lapse of nine months is hardly worth consideration. There is no evidence on record to prove that these articles which are easily available in market were used in this crime. At any rate the house of the appellant was lying open after the police had broken open its lock. In such circumstances the possibility of plantation of these articles cannot be ruled out.
15. Now we are left with the evidence of abscondence of the appellant, which by itself is not sufficient to adjudge a person guilty for an offence inviting capital punishment. It may also be added that no question about the abscondence of the appellant, his illicit intimacy with co- accused Mst. Zahida (since dead), recovery of blood-stained mattress and recovery of spade and iron rod were put to the appellant in his statement recorded under section 342, Cr.P.C. The examination of an accused is intended to give him an opportunity to explain each and every circumstance appearing in the evidence against him and upon which the prosecution claims that the case is made out. What appears to have happened is that upon a consideration of certain features of the case the learned Additional Sessions Judge was morally convinced of the guilt of the appellant; and this moral conviction wrapped her judicial vision to such an extent that she failed to view the evidence in its true perspective.
16. In my opinion the evidence falls far short of what is legally necessary to establish an offence under section 302, P.P.C. The conviction was based on what I can only describe as very inadequate, loose and unsatisfactory evidence. It may be added that in a criminal case, the accused starts with a presumption of innocence in his favour and when the evidence is not convincing and there is a reasonable doubt the benefit of such doubt is to be given to him.
17. In the result the appeal is accepted and the impugned conviction is set aside. The appellant who is in custody be released forthwith, if not required in any other case.