QAZI MUHAMMAD FAROOQ, J.---Mst. Noor Jehan, aged about 30/35 years, her husband Abdul Marjan, aged about 40/42 years and her mother-in-law Mst. Sultana, aged about 50/52 years were tried by the learned Additional Sessions Judge, Bannu under section 302/201/404/34, P.P.C. for committing the murder of one Mumtaz Baz in furtherance of their common intention, for taking away and dishonestly misappropriating four pistols, one shotgun, two Klashnikovs alongwith magazines and 47 cartridges, one Rado wrist-watch, one 7 MM Rifle alognwith charges belonging to the deceased and for buying the dead body of the deceased in the courtyard of their house with a view to causing the disappearance of the evidence of his murder. The learned trial Judge, vide his judgment dated 24-4-1990, acquitted Mst. Sultana but convicted the couple under the aforementioned sections of law and sentenced them under section 302, P.P.C. to imprisonment for life with a fine of Rs,10,000 each or in default to suffer further two years' R.I. each, under section 201, P.P.C. to two years' R.I. with a fine of Rs,500 or in default to undergo one month further R.I. and under section 404, P.P.C. to two years' R.I. and a fine of Rs,500 each or in default of payment of fine to undergo further R.I. for one month. All the sentences were. ordered to run concurrently. The jail appeal of Mst. Noor Jehan convict is before us for disposal.
2. The facts of the case in brief are that on 24-8-1988 at 10-30 p.m. one Jirga Baz lodged a report at Police Station Mandan to the effect that his brother Mumta Baz was missing. The police took the investigation in hand under section 156(3), Cr.P.C. and in due course found that the deceased had some liaison with the family of the appellant and was also seen last while going to their house. The investigation yielded positive result on 25-8-1988 when the dead body of Mumta Baz was dug out from the courtyard of the appellant's house. The appellant and her husband were arrested forthwith and the investigation reached its logical conclusion when the appellant and her husband confessed their guilt before the Assistant Commissioner, Bannu on 31-8-1988 and 30-8-1988 respectively. Their confessional statements disclose that the deceased was involved in gun running and on the eventful day had brought some Arms and Ammunition to the appellant's house and kept the same there saying that a woman from Karachi will take the same away. At about noon time the deceased fell asleep and on the initiative of the appellant's husand a plan was hatched to kill him and misappropriate the contraband articles. Resultantly, the appellant's husband dealt four Danda blows on the head of the deceased as a result of which he lost his life. In the meantime the appellant's mother-in-law came there but did not learn about the incident as the dead body of the deceased was covered with a quilt. However, the appellant's husband gave her the wrist-watch of the deceased, papers in regard to his motor-cycle and copy of a licence which she handed over to the sister of the appellant's husband. Thereafter, they buried the dead body in their house and the appellant concealed one shot gun and four pistols in an open place outside the house and kept two Klashnikovs in the house of one Hamdullah situate in Bakhmal Ahmed Zai.
3. Autopsy on the dead body of the deceased was conducted by Dr. Nafees-ud-Din (P.W.12) who found the following:-- External Examination (1)Whole body swollen, foul smelling and skin being peeled off from many parts.
(2)Three lacerated wounds on the left temporal region in an area of 2" circumference, each one measuring about 2" x 1".
(3)One lacerated wound on the left parietal bone measuring about 1-1/2" x 1".
(4)The left hemisphere of skull depressed and badly damaged. <u>Internal Examination</u> Abdomen: All the organs healthy, stomach also healthy and containing partially digested food material.
Cranium and Spinal Cord Skull, scalp and vertebrae injured. Membrains and spinal cord injured. Contents of thorax healthy.
In his opinion the deceased had died of blunt injuries to the vital organs, heamorrhage and shock.
Probable time that elapsed between injuries and death within 5 minutes and between death and PM about 3 to 5 days.
4. In order to prove its case the prosecution examined as many as 15 witnesses including Dr. Nafees-ud-Din (P.W.12) who had held autopsy on the dead body of the deceased. Saadullah Shah LC (P.W.1) deposed that the Investigating Officer had got the entries of the arms licence in regard to .30 bore pistol in the name of the deceased verified from him. Kebaz Khan (P.W.2) is a formal witness who had identified the dead body of the deceased. Umer Zad (P.W.3) stated that in his presence a police party had dug out the dead body of the deceased from a place inside the house of the appellant's house and he had signed the recovery memo. Exh.PE and had also signed the recovery memo. Exh.PE and had also signed the recovery memo. Exh.PF as marginal witness vide which a "Danda" Exh.P-1 was taken into possession. Shah Sarwar (P.W.4) deposed that the house from where the dead body of the deceased was recovered was rented out by him to the appellant's husband. Muhammad Sultan (P.W.5) is a formal witness who had escorted the dead body of the deceased to the mortuary. Muhammad Shafiq (P.W.6) is a marginal witness of recovery memo. Exh.PH vide which the motor-cycle of the deceased was taken into possession by the Investigating Officer and GuI Baz Shah (P.W.7) is the marginal witness of recovery memo. Exh.PJ vide which a Rado wrist-watch belonging to the deceased was taken into possession. Muhammad Ayaz (P.W.8) is also a formal witness who had drawn up the F.I.R. Exh.PA-1/1 on receipt of the "Murasila" Exh.PA. Jirga Baz Amir Khan (P.W.9) is the brother of the deceased who stated that he had set the ball rolling by making a report at the police station that the deceased was missing. He also deposed about certain recoveries made by the police in his presence. Pervez Khan (P.W.10) deposed that he had handed over the Rado wrist-watch to the police which had been given to him by Mst. Teli Begum. Mst. Teli Begum (P.W.11) stated that Mst. Sultana accused had handed over her a note book, an arms licence and a wrist-watch and after recovery of the dead body of the deceased she had handed over the wrist-watch to Pervez Khan P.W. and asked him to throw it away. Sher Muhammad Khan (P.W.13) stated that during the days of occurrence he was posted as Assistant Commissioner, Bannu and had recorded the confessional statement of the appellant on 31-8-1988 and had also recorded the confessional statement of the appellant's husband on 30-8- 1988. (P.W.14) Muhammad Khan S.-I. deposed about the manner in which he had investigated the case. Muhammad Rahim Khan (P.W.15) stated that the deceased had parked his motor-cycle in his shop.
5. When examined at the trial under section 342, Cr.P.C. the appellant denied the prosecution allegations and professed innocence. She also recorded her statement on oath under section 340(2), Cr.P.C. wherein she levelled serious allegations against the police.
6. After hearing the learned counsel appearing on behalf of the appellant at State expense and the learned Assistant Advocate-General assisted by Mr. Dost Muhammad Khan, learned counsel for the complainant we find that the appellant's husband was the principal accused who had enacted the tragedy and there is no safe evidence of any sort against the appellant to sustain her conviction. She appears to have been improperly convicted and sentenced.
7. The appellant admittedly did no harm to the deceased and the confessional statement of her husband recorded on 30-8-1988 makes it manifest that the initiative was taken by him and he had in fact dominated her will completely. The post murder role attributed to her represents the role of a scared and flabbergasted house wife who mechanically and instinctively reacts to save the life of her husband. Her confessional statement having been recorded a day after the recording of the confessional statement of her husband does not appear to be voluntary and in any event the portion relating to mutual consultations for eliminating the deceased has to be kept out of consideration as it is incompatible with the assertion made in the confessional statement of her husband that the idea of killing the deceased was floated by him. Besides, in her statement on oath recorded under section 340(2), Cr.P.C. she levelled serious allegations of torture and gun-rape against the police and even if these allegations are deemed to have been exaggerated one fact stands established beyond any doubt that at the crucial time she was under the thumb of her husband and later on under the thumb of the police. This intriguing circumstances has made the retracted judicial confession of the appellant defective inherently and no corroborative piece of evidence howsoever strong it may be can remove this inherent infirmity. The appellant's retracted judicial confession thus cannot be treated at par with that of her husband particularly when apart from the aforementioned inherent infirmity it is not fully and satisfactorily corroborated in material particulars. In this context it will be pertinent to point out that the recoveries of arms and ammunitions allegedly belonging to the deceased were made after a week of the appellant's arrest without associating any witness from the public and on peculiar facts and circumstances of the case independent witnesses appear to have been excluded deliberatley from factum of recovery. Besides, the arms and ammunition were recovered from an open place over which the appellant had no control and there is also no evidence on record to point out that she had kept 2 Klashnikovs with one Hamdullah.
8. For the foregoing reasons this appeal is accepted, the conviction and sentences of the appellant are set aside and she is acquitted of the charges levelled against her. She be released forthwith if not wanted in any other case.
Hereinabove are the reasons for our short order dated 27-9-1993.