SARDAR MUHAMMAD RAZA, J.--- Village Aza Khel is 7/8 kilometres North-East of Police Station Mattani, Peshawar. Ainuddin S.H.O. Mattani, on 12-5-1989 received information that an unidentified dead body had been unearthed in the nearby graveyard of village Aza Khel. He went to the spot where such dead body was in fact lying with its head completely chopped off: Many villagers were also present around but none identified the dead body. Anyhow, the S.H.O. Sent a Murasila Exh.P.A./1 upon which F.I.R. No.122 was registered at Police Station Mattani.
2. The S.H.O. Prepared injury sheet as well as the inquest report and sent the dead body to Police Hospital for post-mortem examination. The dead body was buried by Municipal Corporation as unidentified.
3. The record is silent about the fact as to how the police came to know that it was the dead body of Janat Gul son of Redi Gul who belonged to village Godah in Orakzai Agency and was married to one Mst. Begum daughter of Abdul Islam in village Aza Khel. Few days later one Spin Gul of Orakzai Agency came into contact who told the police that the deceased Janat Gul was his nephew and was married to one Mst. Begum of Aza Khel. That on the 28th of Ramazan, Abdul Islam the father- in-law of the deceased had gone to village Godah in Orakzai Agency in order to bring his daughter along. The deceased Janat Gul asked his father-in-law Abdul Islam to bring his wife back on the 4th day after Eid but Abdul Islam due to his other engagements expressed his inability and in turn suggested that Janat Gul should himself come to take his wife back. Accordingly, Jahat Gul came on 9-5-1989 but did not return even after 2/3 days whereupon Spin Gul got worried and came after Janat Gul to village Aza Khel.
4. Spin Gul had never been to the village before but came across the only man in the village that he already knew. The man informed him that a dead body was found in the village. Spin Gul suspected some foul play and went to the Hujra of Lai Shah, the Chairman of the village. Abdul Islam was also summoned to the Hujra where he denied the arrival of his son-in-law to the village. When asked as to where his daughter was, Abdul Islam replied that since lanat Gul had not come to take her, she had left for the house of her sister Bibi Hawa at Sarki Batagram. Spin Gul did not feel satisfied of the explanation and hence went to Police Station Mattani where he charged Abdul Islam for the murder of Janat Gul. Mst.
Begum, the wife of Janat Gul was also examined who furnished ocular account of the occurrence to the effect, in brief, that her father Abdul Islam, her mother Bibi Roshana and her sister Bibi Hawa had killed her husband in their own house by strangulating him with a rope. That it was so done at about 2/3 p.m. And thereafter the dead body was hidden in the house till 1-00 a.m. At midnight when it was carried by all the three to the graveyard and buried in a ditch. That she constantly requested all of them not to resort to such cruelty but they did not accede to her request and rather threatened her to keep shut. She also stated that after when her husband was dead, the accused changed his new clothes with the old one, removed his shoes, cap, and wristwatch and took out a sum of Rs.32 as well. Her statement was recorded on 20-5-1989. Bibi Roshana also made a confession before Mr. Anwar Ali Haideri, Magistrate 1st Class, Peshawar on 22-5-1989.
5. It further came to light that one Hafiz Gul of village Godah Orakzai Agency who had blood feud with the complainant family had conspired such murder of Janat Gul at the hands of his own father-in-law on payment of Rupees one lac which were paid through, Abid and Yahya. These three persons were also arrayed as accused but they are still absconders. Abdul Islam, Bibi Roshana and Bibi Hawa were tried on charge under section 302/201/404/ 109/34, P.P.C. They denied the charge and also pleaded innocence in their statements under section 342, Cr.P.C.
6. Mr. Ziauddin Siddique, learned Additional Sessions Judge, Nowshera Camp Peshawar, through his judgment, dated 9-4-1994 was of the view that the prosecution had succeeded in proving the case against Abdul Islam and Bibi Roshana while it had failed to bring home the guilt against Bibi Hawa. The latter was acquitted while Abdul Islam and Bibi Roshana were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and a fine of Rs.20,000. They were also convicted under section 201/34, P.P.C. And sentenced to rigorous imprisonment for two years.
Conviction under section 404/34, P.P.C. Entailed an imprisonment of two years. All the sentences were to run concurrently and the learned Judge was kind enough to give them benefit under section 382-B, Cr.P.C. Both, Abdul Islam and Bibi Roshana have preferred appeals through Jail Authorities. This judgment in Criminal Appeal No. 101 of 1994 shall also decide Jail Criminal Appeal No. 227 of 1994.
7. The learned trial Judge seemed to be convinced of the statement of Spin Gul, the uncle of the deceased and the confessional statement Exh.P.X. Of Bibi Roshana. The interesting aspect of the case was that Mst. Begum, the wife and the only eye-witness in the case was never produced in Court and was abandoned by the Public Prosecutor. The learned trial Judge transferred her statement under section 164, Cr.P.C. To the file of murder trial and thus placed complete reliance on it.
8. It is not at all realized as to how the statement under section 164, Cr.P.C. Is to be treated during trial despite the fact that an independent section 265-J is available to that effect. It provides that a statement under section 164, Cr.P.C. May in the discretion of the Court, be treated as evidence in the case if such witness is produced and examined in Court. In the instant case Mst. Begum was never examined in Court. She was abandoned not because she was dead or because her whereabouts were not known but because, according to Hussain Ali Special Public Prosecutor, she was simply not available. This was not at all sufficient for abandoning a star witness for the prosecution and this abandonment does not arm the prosecution with a right to draw benefit from her statement under section 164, Cr.P.C., with the utmost convenience of a normal witness examined and cross-examined during trial. The abandonment of the witness was insufficient and improperly reasoned and more unjust was the reliance placed on it. No reliance at all can be placed on the statement of Mst. Begum recorded under section 164, Cr.P.C., in the absence of her appearance before the trial Court as witness.
9. Corning to the other circumstances an old principle of the Administration of Criminal Justice may be recalled as the primary duty of the prosecution to prove conclusively the corpus delicti. Let us see if the dead body recovered in the instant case is proved at all to be that of Janat Gul of village Godah Orakzai Agency.
10. All pieces of evidence available on record would negate such proof and speaking judicially as well as realistically, there is no evidence to the effect as to whose dead body it was. The statement of Mst. Begum is to be taken out of consideration. The only person that remains on record, as identifier of the dead body is Spin Gul. He himself states that he had not seen the dead body because it was already buried by Municipal Corporation and that he had identified the same through the photograph of the body taken by the Investigating Agency. Not a single of such photographs was ever placed on record and hence one cannot say if any photograph at all was taken or if it was of Janat Gul alone. The Investigating Officer has not alluded to such photograph.
There being no evidence to that effect, the proof with regard to corpus delicti is totally missing.
11. It is said in the confessional statement by Bibi Roshana and in the statement under section 164, Cr.P.C. (not admissible) of Mst. Begum that Janat Gul was murdered by strangulation when he had stood to offer Peshi prayers. This quite certainly is indicative of the fact that Janat Gul was not only a Muslim but a good Muslim, whereas, on the other hand the dead body recovered from graveyard was found to be uncircumcised. Who can say with utmost certainty that such dead body was at all of a Muslim or was not of a non-Muslim. This makes the proof of corpus delicti as further and extremely doubtful. It is not proved, therefore, on record that the dead person by all means was none else but Janat Gul. This failure of proof of corpus delicti by itself is sufficient for the acquittal of the appellants.
12. The second evidence that seemed to be much convincing for the learned trial Judge was the confessional statement of Bibi Roshana. By the time it came to trial, the statement stood retracted.
No doubt a conviction may be based on a retracted confession as well but for that one has to seek assurance that it is voluntary as well as rings true. To make such appreciation in the instant case, was all the more necessary for the trial Court because the learned Magistrate who had recorded the confession was dead by the time the trial was conducted and hence there was no one for the defence to cross-examine. In the event of the death of such Magistrate, each and every word and each and every omission becomes of utmost importance.
13. In the confessional statement dated 22-5-1989 Exh.P.X., the learned Magistrate never cared to ask the lady if why at all she was going to make a confession. Normally people do not confess and this abnormal act of a person must be supported by something strong in the background and hence the Magistrate should satisfy himself if the conditions under which an accused is confessing are natural and sufficient enough to compel a man to make a confession and take the risk of punishment. No such question was asked in the instant case and hence the very genuineness of an incriminating statement is doubtful. s14. The confessions are mostly extracted through undue influence, coercion and torture. That is what a Magistrate must feel alert as well as inquisitive about. It is his bounden duty to make sure that the intended statement of the accused is not the result of torture at the hands of police. Not a single question was asked to that effect specially when the confession comes from the weaker sex although all the accused were almost equally related to Janat Gul. Deficient in this behalf, the present confessional statement seems to be obtained through coercion and torture. It cannot be made the basis of conviction.
15. Let us see if in the light of the circumstances, it rings true. As it provides almost the entire story of the prosecution, therefore, the truth or otherwise of the entire story needs to be appreciated. It starts from the motive but the very motive is unnatural. It is not known on record that the old enemies of the complainant family like Hafiz Gul had some previous acquaintance or close relationship with Abdul Islam and that such relationship was close enough? To justify the reposing of trust in a father-in-law for the murder of his real son--in-law The killing of some Janat Gul when alone in the village was quite easy at the hands of the enemies and there was no sense in raking such a far-fetched attempt and that too by losing a sum of Rupees one lac. There is not an iota of evidence with regard to the payment of such amount. Even if the enemies were not capable of doing away with the deceased and even if they were to arrange for the services of a hired assassin could it not be anyone other than the real father---in-law with whom the mother-in-law and sister-in-law would automatically join and that too in the presence of their own daughter, the wife of Janat Gul. The motive is not only unproved but totally implausible.
16. The trial Court while examining Abdul Islam observed him to be a man of 80 years. It does not appeal to common sense as well as reason that an octogenarian like him would overpower a strong built man of 26/27 years like the deceased in the present scase and would kill him by strangulation that requires a sufficient amount of strength and involves a definite amount of struggle. Had it been some killing by fire-arm, one could believe that even a weak man could press the trigger. The mode of killing does not ring true at all.
17. The baffling contradiction in the prosecution case is that it is never proved to be death by strangulation. No such marks on the neck were observed by the Investigating Officer while preparing the inquest report nor was it so observed by the doctor. The hard and proved fact of the case is that the deceased was killed with some sharp weapon and by chopping off his head from the body at the level of neck. This totally negates the confessional statement as well as prosecution story and so all the more baffling it is as to how the learned trial Judge relied upon it.
18. It does not appeal to reason that a young man coming to the house of his parents-in-law as guest and in the presence of his own wife, coming all the way from a far off place like Orakzai Agency would not be offered meals especially when it was the right time for meals when he arrived. According to the prosecution story, he was killed 2/3 hours after his arrival and thus he must have been served with meals by his own wife. On the other hand the post--mortem report would suggest that not only the stomach but small as well as large intestines were empty, meaning thereby, that whosoever was the deceased, had not eaten any thing for at least 6 to 8 hours prior to his death.
19. The dead body had old clothes of light blue colors. It appears that some wisdom prevailed with the prosecution in presuming that a young man coming to the house of his in-laws specially after Eid will not be wearing such untidy dress and hence it was brought from the mouth of the witness that his new clothes were also changed and his belongings also misappropriated.
20. The death seems to have violated certain scientific and biological phenomenon. No blood is supposed to be shed to a death caused by strangulation but still the clothes of the deceased were seen to be blood-stained. Another unintelligent aspect of the prosecution story is that the accused had chopped the head of the deceased when they were burying the dead body. This is rather ridiculous because one a person had been done to death, there was no sense in chopping the head thereof. A head chopped off 12 hours after the actual death does not and cannot cause bleeding but still the clothes are blood-stained. This is another setback to the story of prosecution as well as to the concoction called confessional statement.
21. The prosecution seeks further supports from various discoveries made at the instance of Bibi Roshana that included the watch of the deceased. This is a fake recovery because it is nowhere proved that such watch in fact belonged to the deceased. The pointation by the lady of a cot vide memo. Exh.P.C. Where the deceased was dropped is also of no avail because cots are available in every Kotha of every house. Similar is the discovery of a pick-axe Exh.P.7, a spade Exh.P.6 and a saddle Exh.P.8 about which it is said that the ditch was dug with such pick-axe and spade and that a donkey-saddle was used to cover and hide the dead body till 1 O'clock at night. This does not amount to a discovery under Article 40 of Qanun-e-Shahadat because such implements are always available in the houses of Zamindars and saddles do happen to emerge where there are donkeys around.
22. The pointation of the ditches etc. In the graveyard and the room where the murder was committed is again no discovery under Article 40 of Qanun-e---Shahadat (corresponding to section 27 of the old Evidence Act) because such ditch wherefrom the dead body was unearthed, had become already known not only to the whole village but to the police as well and it was ten days prior to such pointation. Bibi Roshana on such day of pointation had remained in police custody arid was at the police station up to 11 O'clock and it is not known as to when was she produced before the Magistrate for confessional statement. The possibility cannot be ruled out that she was taken to such places after recording of her confessional statement and so she was handed over to the same police without having been sent to the judicial lock-up, No reliance can be placed upon such confession.
23. It is quite interesting that the lady accused pointed every big and small thing in- the house but for the rope with which the deceased was strangulated. This was the only incriminating article the recovery whereof would have mattered to some extent.
24. The net result of the above discussion is that the corpus delicti in the instant case hass not been proved. No eye-witness was produced in Court and no reliance could be placed on the statement under section 164, Cr.P.C. Of such witness who stood abandoned for no reason at all. That the confessional statement was not only the result of coercion and torture but it never rang true.
Discoveries under Article 4(1 of Qanun-e-Shahadat were fake and no discoveries at all within the contemplation of the said section. Neither the confessional statement supports the prosecution story nor it is vice versa supported thereby. It was thoroughly unproved case and no conviction could be based upon such evidence and circumstances so destitute.
25. Both the appeals are already accepted on 24-10-1995 and the appellants acquitted of all the charges. These are the detailed reasons on which we had based the acquittal