' SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine whether the acquittal of the respondent No,1 for the murder of her husband recorded by the Lahore High Court by its judgment dated 4-10-1988 was not conjectural and against the weight of ocular and other overwhelming circumstantial evidence brought on record.
2. The deceased Javed Aziz had been the husband of the respondent No,1 for about 17/18 years till the occurrence. They had two sons All Imran and Ali Faran aged 16 years and 15 years respectively.
Both were studying in St. Cathderal School. On the night of 19th/20th November, 1983, they were all in the house, 203 Riwaz Garden, Lahore. After entertaining their guest and his family the deceased and the respondent No,1, had retreated to their bedroom. The two sons had gone to their bedroom.
At about 2-15 a.m., according to the respondent No,1, when she went to the toilet, she heard the shrieks, came out and saw her husband the deceased under attack. There were other persons armed with pistol who resisted her and pushed her towards the bedroom of the children. Javed Aziz was done to death while the two sons and the respondent No,1 remained in another room bolted from inside as well as from outside. It was in the morning at about 6-30 a.m. That Ali Faran was able to go out of the house by scaling over the wall and ring up Abdur Rahman (P.W.26) his uncle residing in Allama Iqbal Town, Lahore and informed him of the occurrence that had taken place.
Abdur Rahman (P.W.26) came to the house, saw the deceased lying in the gallery in his house having a number of injuries on his person and he went to the Police Station Mozang and lodged the report about the occurrence at 7-30 a.m. This report has certain features which must be noted at the outset.
' The first is that there is a clear recital that it was being lodged after obtaining full details of the occurrence from the two sons Ali Imran and Ali Faran (P.Ws. 27 and 28) and the respondent herself.
It was also stated therein that the dacoit had done it. There were hairs in the hand of the deceased indicating that he had pulled it while resisting the assailant. Apart from all these there was a whole set of male clothes consisting of shirt, Shalwar and jersey, all blood-stained which indicated that the blood-stained clothes had been discarded by the assailant before leaving the scene of occurrence?
3. The post-mortem examination of Javed Aziz conducted by Dr. Tariq Feroze (P.W.16) indicated that there were as many as 22 incised wounds on the person of the deceased, some of them on regions giving a clear indication that he had seriously resisted the attack on him. The doctor also found that a tuft of hair was gripped in the hand of the deceased due to cadaveric spasm in left hand.
4. Sardar Ali (P.W.30), (Inspector) had recorded the F.I.R. And conducted the initial investigation. He got the spot photographed and fingerprints picked up. He made the recoveries of Churri (Ex. P.25) and clothes shirt (Exh. P.27), Shalwar (Exh.P.28) and brown jcrsy (Exh.P.26). These were blood- stained. The quilt (Exh.P.31) and footprint, and the blood were also taken into possession. There were also other articles recovered not of much relevance to the immediate narration of the facts of the case.
' During the course of the investigation, SA. Tailoring Shop of Akhtar Ali, the co-accused of the respondent No,1 who died before the trial in jail, was searched. This tailoring shop is situate in the basement of the business premises of Mahmood Ahmed Butt (P.W.18). The documents recovered from Akhtar All showed that he had attended the United Christian Hospital on the morning of 20-11- 1983 and Dr. Pervaiz Paluse (P.W.15) had attended to his following injuries:-- "(1) A lacerated wound 1 c.m. x 1/2 c.m. x 1/4 c.m. At the palmer aspect of middle phalanx of left thumb.
(2) Sharp-edged superficial wound 1.5 c.m. x .2 c.m. x .2 c.m. At the palmer aspect of the middle phalanx of left index finger.
(3) Sharp-edged superficial wound 1.5 c.m. x .2 c.m. x .2 c.m. At the palmer aspect of the middle phalanx of middle finger."
5. The respondent No,1 was produced before Ch. Muhammad Nawaz, ' Magistrate First Class then posted at Lahore (P.W.24) on 28-11-1983 where her so-called confessional statement was recorded.
6. The prosecution case which materialised as a result of the investigation and various pieces of evidence collected was that prior to the occurrence the respondent No.1 had developed illicit relations with Akhtar Ali who had a daughter aged about 10 years who used to give company to him. They used to pass occasionally the night together in International Hotel. Such outings were explained by the respondent No.1 to her husband and family as attempts to get the loan advanced by the deceased to her own sister and brother recovered. Akhtar All had also visited the house of the respondent No.1 and the deceased a week before in the same clothes in which he under a prior arrangement with the respondent No.1 entered the house on the night of occurrence and committed the offence with the assistance of the respondent No.1 who prevailed upon her two sons not to raise hue and cry or get immediate help so as to protect the deceased and apprehend the assailant.
7. Respondent No.1 alone stood the trial as Akhtar Ali died during the detention as an undertrial. All the factors appearing in prosecution case against her were put to her and she denied having played any part in the commission of the crime. Her version was that the dacoits had entered the house. She was taken unaware. She could not protect her husband from them. However, she tried her best to protect her two sons and was successful in doing so. She denied her association with Akhtar All or complicity or outings with him prior to the occurrence. She also made a detailed statement on oath and faced cross-examination.
8. The trial Court on a consideration of the entire material on record held the offence proved against respondent No.1 and in arriving at this conclusion, the following facts and findings were expressly recorded:--
(i) The two sons Ali Imran (P.W.27) and All Faran (P.W.28) were natural witnesses of the occurrence and they had deposed against the respondent No.1, their own mother.
(ii) They had identified the co-accused Akhtar All having visited their house a week earlier and was introduced by the respondent No.1 as her tailor.
(iii) The frequent absence of the respondent No.1 from the house was also proved from her two sons.
(iv) The presence of three dacoits as claimed by the respondent No.1 was disproved from the circumstances.
(v) The recovery of bed-sheets (Exh.P.37/1-3), steel cooking pot P.38 containing water, steel glass Exh.P.39 and China Clay plate P.40 containing sugar and salt from the stairs of the house was taken to corroborate the prosecution case that Akhtar Ali had permissive access to the stairs under a conspiracy.
(vi) The blood-stained clothes left by the assailant and their identification as the clothes of Akhtar Ali established the identity of the assailant.
(vii) The medical attention received by Akhtar All at U.C.H. On the morning of 20-11-1983 provided the corroboration of his having participated in the occurrence and having received these injuries in the same.
(viii)The identification of Akhtar All by P.W.17 All Imran and P.W.28 Ali Faran before fhe Magistrate was found sufficient Co prove the offence against the respondent No.1.
The confessional statement was not accepted for lack of formality in recording it and for the delay of four days taken in recording it which remained unexplained. Similarly, the reports of the expert were found deficient as they did not contain reasons for the opinion given. The prosecution case was found established and the respondent No.1 was convicted under section 302/34, P.P.C. And sentenced to death and a fine of Rs.5,000.
9. On appeal and while seized of the confirmation of the death sentence awarded to the respondent No.1 by the trial Court, the High Court reexamined the entire evidence afresh and came to its own conclusions. During the course of the arguments and otherwise no instance of misreading of the evidence or a material omission to take any factor was pointed out. It is only the view of the evidence on record taken which has been challenged and made the basis of the argument in appeal.
10. The High Court on an examination of the evidence recorded the following conclusions:- "(i) About the confessional statement of the respondent No.1, the High Court observed as hereunder:-- ' It is unimaginable that the lady would have come forward of her own free will to make any confession about her implication in the commission of her husband's murder, about which FIR had already been lodged on story narrated by her.
' The statement, even otherwise, is not a categorical confession of commission of murder. Instead of being inculpatory, it is exculpatory. In that view of the matter also, it does not possess any significant evidentiary value. In the circumstances, no importance can be given to the said confessional statement for maintaining conviction of the appellant. The reasons given by the trial Judge for discarding the same also, in our view, possess weight. The statement is, therefore, excluded from consideration as evidence.'
(ii) The evidence of the two sons was discarded for the reason that their conduct in defending their father did not appear to be consistent with their initial version of the occurrence which was one of dacoity and that if they had seen the assailant a week before in the house, they would from the very beginning have reacted differently to the occurrence than they had.
(iii) Abdur Rahman (P.W.26) had suppressed and repudiated a part of the first information report wherein he had admitted having got the full details of the occurrence from the two sons and the respondent No.1 before lodging the report.
(iv) The normal cores attended to by the respondent No.1 that night namely of entertaining the guests etc. And to the sons in the manner in which she did that night would not indicate that she was a party to any conspiracy.
(v) The identity of the hair recovered and said to be of assailant was held not proved satisfactorily.
(vi) The finger-prints obtained from the spot did not establish the identity of the assailant as the report was not tendered.
(vii) The recovery of the clothes identified to be that of Akhtar All was not held proved for various reasons.
(viii)The recovered articles were considered to be corroborative of the version given in the F.I.R. That there were more Than one culprit in the house on the night of occurrence.
(ix) The other evidence of their meeting in Shalimar Hotel and International Hotel were held not to be sufficiently proved by proper verification of the record.
' The learned Judges in the High Court concluded as hereunder:-- "For all the reasons given above and the analysis of the evidence, we are convinced that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubts. This appeal is, therefore, allowed and the appellant is acquitted ."
11. In arguing this appeal, Sardar Muhammad Latif Khan Khosa, Advocate the learned counsel for the appellant has gone over the same evidence which has been fully taken note of by the High Court and tried to make out a case of proof beyond reasonable doubt against the respondent.
Even her so-called confessional statement has been referred to with a view to find some corroboration from it apart from the other circumstantial evidence brought on record.
12. There are certain features of the case which must be noticed before considering the evidence.
' In the first place, there is no allegation or evidence on record that the relations between the respondent and the deceased had gone sour or had become abnormal on any account including the relationship that the respondent had developed with her co-accused. The only material available on record is that she at times got money from the deceased in order to loan it out to her sister and brothers and the deceased wanted the repayment of it for which purpose she used to go out to her sister and brothers, pass the nights there when in fact she was passing the nights with her paramour the co-accused. There is nothing definite on record with regard to these loans, the approximate amount or that she wanted to get the repayment of it. Instead, evidence was led about passing the nights by the respondent with the co-accused paramour and with his daughter in Hotel and elsewhere. This evidence was found not of such quality and so verified as to inspire confidence.
13. Another feature to be noted in the case is that immediately after the occurrence, the sons of the deceased and his brother both were satisfied about the explanation given immediately after the occurrence of it being a dacoity or robbery at night. If these witnesses had consistently maintained their position that was initially taken, that would have appeared more natural. Subsequent verification of facts could alter their impression with regard to the culpability of the respondent, and in that case those other factors would have come to focus for determination of her participation in the crime. In the case, however, the brother of the deceased as well as the two sons tried to suppress and repudiate their earlier stand of treating the occurrence as a robbery coupled with murder and this with a view to give the impression that from the very beginning they had the impression of it being a conspiracy in which the respondent played a part. For achieving this, Abdul. Rahman had to repudiate the contents of the F.I.R. And the two sons resorted to deposing about their behaviour which was inconsistent and abnormal. This affected their credibility as eye- witnesses and showed them to be either biased witnesses or having made up their mind from material other than legally admissible evidence.
14. The conduct of the respondent during the course of the occurrence and soon thereafter would appear to be consistent with her innocence. She wanted to proted her two sons and she succeeded in it. The conduct of the two sons on seeing the assailant and identifying him to be the same man as was introduced by their mother as her tailor could have definitely been different than what it happened to be. The case was concerned not so much with the culpability of the co- accused as with the complicity of the respondent in the crime. The direct evidence being not of a quality and description which could satisfy the requirements of law and a discerning mind, it is only circumstantial evidence that was left on record. It did not connect the respondent in the crime in any case.
15. In the circumstances, we find that the acquittal recorded by the High Court suffers from no such infirmity as may invite our interference in it. Hence, this appeal is without merit and is dismissed.