RAJA FAYYAZ AHMED, C.J.----This appeal under section 410, Cr.P.C. Has been directed against judgment, dated. 21-2-2000 passed by the learned Additional Sessions Judge-I, Quetta in Sessions Case No.32 of 1999 whereby accused Abdul Salam alongwith the co-accused have been convicted under ,section 302(b), P.P.C. And each sentenced to imprisonment for life and liable to pay compensation of Rs.50,000 each to the legal heirs of deceased Mst. Zarina under section 544-A, Cr.P.C. And in default of payment of compensation each to suffer R.I. For two years.
Co-accused namely Eid Muhammad and Mst. Sakina sentenced to life imprisonment each under section 302(b), P.P.C. Have assailed the abovesaid judgment respectively in Criminal (Jail) Appeals No. 14 of 2000 and 23 of 2000; therefore, these three criminal appeals, i.e. Criminal Appeal No.28 of 2000, Criminal (Jail) Appeal Nos. 14 of 2000 and Criminal (Jail) Appeal No.23 of 2000 are disposed of by this common judgment. Appellants Eid Muhammad and Mst. Sakina were represented by Mr. Zar-e---Eman, Advocate.
2. The brief facts of the case are that pursuant to Fard-e-Bayan (ERh.P/1-A) of P.W. Gul Khan recorded by the I.P./S.H:O., Police Station Saddar, Sher Afzal Awan on 11-12-1998 at 7-30 p.m. Case Crime No.237 of 1998 was registered on the same date with Police Station under section 302/34, P.P.C.
The endorsement, recorded by the Police Officer below the Fard-e-Bayan shows that pursuant to information received from Constable Yar Muhammad of M.T. Section Police Line, resident of Killi Ismail, Quetta the I.P./S.H.O., Police Station Saddar alongwith the other Police Staff reached the place of Wardat being the House of Ghouse Bakhsh son of Abdul Rahim, resident of Killi Ismail and found the charred dead body of a woman lying in the residential room of the house situated towards west, whose face and legs were burnt and P.W. Gul Khan, present on the spot identified the dead body being that of his were namely Zarina, whose statement as Exh.P/1-A was recorded by the Police Officer on spot which was sent to the police station alongwith Murasila for registration of the case under section 302/34, P.P.C.
3. In the Fard-e-Bayan Gul Khan (P.W.1) disclosed that he alongwith his family members is residing in a rented house in Killi Ismail, Quetta and sells kerosene oil and today on 11-12-1998 at about 4-00 p.m. He was present in his house when his were Mst. Zarina alias Razia alongwith his son namely Zahid Khan alias Babu Khan aged about 5/5-1 /2 years left the house for taking clothes, whereafter at about 4-45 p.m. His said son returned alone on which he inquired about his mother and he told to him that he alongwith his mother had gone into a house and inmates of the house sent him to the shop with a female child for taking clay applied on writing wood-board According to P.W. Gul Khan his son further disclosed to him that when he came back from the shop to their house after getting clay inmates of the house told to the child that his mother had left for Hudda, therefore, he informed to his father (P.W. Gul Khan) that he has come back to his house. P.W. Gul Khan in his Fard-e-Bayan further stated that on being asked his said son took him to the house of Ghous Bakhsh son of Abdul Rahim caste Langov, in Killi Ismail, Quetta and he explained that about 4/5 years back he also remained as tenant of Ghous Bakhsh for two months. On reaching the house of Ghous Bakhsh he knocked the door of Ghous Bakhsh, on which were of Ghous Bakhsh came on the main door and looked to be disturbed, she on being inquired by Gul Khan told to him that his were had come to their house and thereafter, left to Hudda, but on account of the lady noticed to be worried and her tone raised the suspicion, therefore, he went back to his house in order to come back with a grown-up child, who can be sent inside their house to check, and; at about 5-00 p.m.
He alongwith his son Zahid came back to the house of Ghous Bakhsh, but apprehended that his son might not be allowed to enter into their house, he contacted his friend Mohyuddin, Constable B.R.P. And narrated to him these facts, who also resides in the same Killi and from there he sent back his son Zahid to his own house and alongwith Mohy--ud-Din and his daugher aged about 18 years namely Bibi, they came to the house of Ghous Bakhsh at about 7-00 p.m. And saw emitting of stroke from the house of Ghous Bakhsh, whereas; the people gathered they were putting of the quilt on fire, in the drain outside the house and; the mother of Ghous Bakhsh also outside the house was found shouting and putting of the quilt on fire, therefore, he (P.W. Gul Khan) asked to his friend Mohyuddin to see by themselves by entering into the house, but they were not permitted to enter into the house and also Mohyuddin advised him not to go into the house and in the meantime police reached there, to whom he disclosed the entire facts pertaining to the missing of his were whereupon he was permitted by the police to see the dead body, whose face was burnt/charred including legs and after inspecting, he identified the dead body to be that of his were by recognizing from fingers of the hands, toes and face marks; accordingly, he alleged that the mother and were of Ghous Bakhsh i.e. Murad Bibi and Sakina have caused the death of his were in their house by putting her on tire.
4. After registration of the F.I.R. Pursuant to Fard-e-Bayan, site inspection note and sketch of place of Wardat were prepared by the Investigating Officer, during the course whereof pieces of quilt were taken into possession besides a plastic gallon and on the same day Murad Bibi mother of Ghous Bakhsh was arrested. Appellant Abdul Salam was arrested on 19-12-1998 and a letter was also seized from him. Accused Mst. Sakina were of the accused Ghous Bakhsh was arrested on 21- 12-1998 and on the next day i.e. 22-11-1998 on her pointation one iron rod, blood-stained earth and Chappal of deceased were taken into possession and vide memo. Prepared by the Investigating Officer and on the same day another accused namely Eid Muhammad was also arrested. Accused Mst. Sakina was produced before the Judicial Magistrate on 23-12-1998 and her confessional statement under section 164, Cr.P.C. Was recorded. On 26-12-1998 Mst. Murad Bibi was discharged under sections 169, Cr.P.C. The letter, recovered from the accused Abdul Salam was sent to the Handwriting Expert alongwith the specimen writing of P.W. Miss Shaista, who stated to have written these letters at the instance of accused Mst. Sakina. After examination of the letter seized from accused Abdul Salam and the specimen writing sent to the Expert, positive report was received.
Eventually on completion of investigation and required formalities, challan for trial of the offence was filed in Court against accused Abdul Salam. Eid Muhammad and Mst. Sakina. The learned Sessions Judge, Quetta on receipt of challan alongwith the record and papers of the case transferred the same on the file of the learned Additional Sessions Judge-I, Quetta.
5. On 3-6-1999, the learned Additional Sessions Judge-I, Quetta (hereinafter referred to as the learned trial Court) indicted the accused persons under section 302/34, P.P.C. To have committed Qatl-i-Amd of deceased Mst. Zarina, daughter of Gul Khan in furtherance of common intention by means of iron rod as well as strangulation (suffocation), to which they each did not plead guilty and the prosecution to substantiate the accusation produced ten witnesses namely Gul Khan (P. W .1), Muhammad Yasin Bajwa I. P. /Handwriting Expert, Crimes Branch, Quetta (P.W.2), Muhammad Anwar H.C./P.S. Saddar (P.W.3) Ameer Abdullah, Constable Police (P.W.4), Miss Shaista (P.W.5), Dr. Shamim Gul Mashwani, Medico Legal Officer, Civil Hospital, Quetta (P.W.6), Mr. Muhammad Ilyas, Judicial Magistrate-III, Quetta (P.W.7), Abdul Khaliq H.C./Police Station Saddar (P.W.8), Noor Muhammad A.S.-I/ Police Station Saddar (P.W.9) and Nisar Kazmi I.P./Police Station Saddar (P.W.10).
6. After close of the prosecution evidence, the accused persons were examined by the learned trial Court under section 342, Cr.P.C. Wherein they each denied the accusation as well as disputed and repudiated the incriminating pieces of evidence in toto. None of the accused opted to record statement on oath in disproof of the charge within the purview of section 340(2), Cr.P.C. And no evidence in defence was produced except accused Abdul Salam, who produced only one witness in defence namely Ashiq Hussain (D.W.1). After close of the parties' case and hearing them vide impugned judgment all the three accused persons were convicted under section 302, P.P.C. And sentenced as hereinabove mentioned.
7. Prosecution evidence: Gul Khan son of Ghulam Rasool by caste Mohmand resident of Killi Ismail, Quetta (P.W.1).
Pursuant to his Fard-e-Bayan Exh.P/1-A referred to hereinabove Case Crime No.237 of 1998 under section 302/34, P.P.C. Was registered. He deposed that on 11-12-1998 at 4-00 p.m. His were Mst.
Zarina alongwith his child Zahid Khan left the house for stitching of cloth, but did not come back for quite' sufficient time and at about 4-45 p.m. His son Zahid Khan returned to the house and on being asked about his mother he told to him that they had gone to the house of Mst. Sakina. Who sent him for bringing clay (mait). According to the witness his son further told to him that when he came back to the house of Sakina after getting the clay (mait) he was not allowed to enter into the house of Sakina and was told that his mother had gone to Hudda and should go back to his house.
Further his son, according to the witness told to him that he thereafter for some time kept on waiting at the Chungi for his mother and ultimately came back to his own house. P.W. Gul Khan stated that he inquired from his son about the house of Sakina, who answered in affirmative, therefore, he alongwith his said son went to the house of Sakina and on reaching there he knocked the door of the house of the Sakina, on which she came out of her house and looked to be disturbed, from whom he inquired about his were, and Sakina told to him that she had come to her house but thereafter, left for Hudda, therefore, he went after his were to Hudda but was not found there and he came back to house and left the child in the house. After that, he approached to his acquaintance Mohyuddin Hawaldar in his house and narrated to him the above mentioned facts, whereafter, the witness alongwith Mohyuddin and daughter of Mohyuddin went to the house of Mst.Sakina and saw a lot of noise there with smoke and fire but they were not permitted to go inside the house and after that, he came back and alongwith his son Zahid went to the house of Sakina so that his son can go inside the house to see by himself as to what had happened but they were not permitted to enter into the house and police also reached there therefore, he narrated all these facts to the police and the police took him inside the house for identification of the dead body. According to the witness, he saw a charred dead body inside the house which he identified to be that of his were (Zarina) by cut of her small finger. He also explained that the dead body was also identified by him by its teeth and face and at that time Mst. Murad Bibi was crying that her daughter-in-law has been burnt. He produced his Fard-e-Bayan as Exh. P/1-A, on which he identified his signature.
Muhammad Yasin Baiwa IP/Handwriting Expert Police Station Crimes Branch, Quetta (P.W.2).
According to him he was posted as Handwriting Expert in the F.S.L., Quetta and on 9-1-1999 he received two documents for examination alongwith three specimen documents which he examined, out of which the specimen writings were shown to have been written by Shaista. After examining the specimen written documents and the letter. Ail written in Urdu with marker revealed that the letter on account of similarity and by characteristics was similar and tally with the specimen writings accordingly; he issued report under his signature which he produced as Exh.
P/2-A.
Muhammad Anwar H.C/Police Station Saddar (P.W3).
According to him on 21-12-1998 in Unar-Pur Sind accused Abdul Salam produced a letter comprising of two pages from his bag to the Investigating Officer Shamsur Rehman's, S.I.P. And disclosed that these letters were got written by Sakina in the hand of Shaista. According to the witness this letter was taken into possession in his presence by the Investigating Officer vide memo. Exh. P/3-A, on which he identified his signatures as one of the Musheers. He produced the letter as Article P/ I comprising of two pages.
Ameer Abdullah Constable Police Police Station Airport Quetta (P.WA).
According to him for the last four years he is residing in a room situated in Killi Ismail, Quetta rented out to him by Ghous Bakhsh and on 11-12-1998 he was present in his room when he saw that accused Abdul Salam stepped into the courtyard of his room through the small window, affixed in the wall from the house of Ghous Bakhsh and went outside from the door of his courtyard.
Miss Shaista daughter of Amanullah, age 14 years resident of Killi Ismail (P. W.5).
The witness deposed that she is student of Class 6th in the Government Girls School, Jinnah Town and is resident of Killi Ismail. According to her for last about nine months Mst. Sakina was not having good terms with her husband and other family members and she used to visit their house, who also against her will used to take her to her house and by compelling her and on swearing letters for Abdul Salam were used to be got written from her. She also stated that accused Sakina had illicit relations with accused Abdul Salam. The witness produced the letter written in her hand as Article P/ 1.
Dr. Shamim Gul Mashwani (P.W.)
At the relevant time she was posted as M.L.O., Civil Hospital, Quetta and on 11-12-1998 at about 10- 30 p.m. Dead body of one Zarina were of Gul Jan, caste Mohmand, resident of Killi Ismail, Quetta was brought to her by Aziz Buzdar, S.-I., Police Station Saddar, Quetta in the Casualty Department of the Civil Hospital, Quetta for post-mortem examination and keeping in view the raised temperature of the dead body, she decided to conduct autopsy in the next morning. Accordingly; at 9-00 a.m.
On 12-12-1998 she commenced with the autopsy process, the dead body was found to be extensively burnt and no ligature mark on her neck was noticed. According to the Medical Officer immediate cause of earth was the head injury suffered by the deceased and after that the dead body was burnt besides the extensive burning of the body following injuries were noted on the dead body reflected it Exh. P/6-A:-- "(1)Lacerated wound muscle deep 7 c. m x 2 c.m. On back of head. Fresh bleeding on pressing from wound.
(2)Lacerated wound 4 c.m. On lower lip, separating lower lip in two halfs.
(3)Irregular cutter form wound lacerated in type on left shoulder.
Probable time between Immediate due death and injuryto head injury.
Probable time between More than 12 Death and post- hours. mortem.
She produced the autopsy report as Exh. P/6-A.
Muhammad Ilyas Judicial Magistrate-III Quetta (P.W.7).
He wasb postedas Judicial Magistrate-III/FMC, Quetta and on 23-12-1998 accused Sakina, nominated in case Crime No.237 of 1998 was produced before him by the Police Staff of Police Station, Saddar for recording her confessional statement. He recorded confessional statement of accused under section 164, Cr.P.C. And was produced by him as Exh. P/1-A and the certificate appended below the confessional statement was produced as Exh. P/7-B.
According to the witness he asked the Police Staff to leave his chamber and he afforded time for reflection to accused Sakina who was also informed by him that she was not bound to make confessional statement, which if made, shall be used against her and further according to the witness, he told to the accused that if she makes a confession or does not confess the guilt she will be committed to judicial lock-up. The learned Magistrate stated that after pondering and availing time she volunteered to record her statement out of her own freewill and accord, therefore, he recorded her statement under section 164, Cr.P.C. And also put the prescribed questions to her and when he was satisfied that the accused willingly wanted to make statement and is free from any kind of influence he recorded her statement, whereafter, below the statement recorded by him, he issued the requisite certificate and sealed the same into the envelope which was sent by him to the learned Sessions Judge. He produced the sealed envelope as Article P/2. On which he identified his signatures.
For convenience and reference statement of the accused recorded under section 164, Cr.P.C. Is reproduced hereinbelow:-- Abdul Khaliq. H. C. Police Station Quetta (P. W.8).
According to this witness on 11-12-1998 he was posted in Police Station Saddar when information was received that a house has caught tire in Killi Ismail in which a woman has been burnt; accordingly, pursuant to such information he alongwith the S.H.O. Malik Sher Afzal, Shamsur Rehman's, S.-I., Abdul Ghani, S.-I. And other police staff reached the place of incident and saw smoke emitting from a room of the house and in his presence S.-I. Shamsur Rehman's prepared site inspection report and that of Abdul Ghani, A.S.-I., he produced the same as Exh. P/8-A, on which he inscribed his signature as one of the Musheers. Also in his presence Shamsur Rehman's, A.S.I.
Took into possession pieces of burnt quilt and mattress vide memo. Exh. P/8-B on which he identified his signatures as Musheer. He added that these articles were sealed into parcel, produced by him as Article P/3 and the burnt pieces of quilt and mattress were produced by him as Article P/4 and Article P/5. After that, according to the witness, Shamsur Rehman's also took into possession the burnt mat vide memo. Prepared in his presence, which too was sealed into a parcel which he produced as Article P/6 and that was produced by him as Exh. P/6-C signed by him as Musheer. A plastic gallon lying in the room with kerosene smell red in colour was also taken into possession in their presence and was sealed into Parcel No.3 and memo. Signed by the witness as one of the Musheers. Was produced by him as Exh. P/8-D and the parcel was produced as Article P/7, on which he identified his signature and the gallon was produced as Article P/ 10. After that, according to the witness the pieces of burnt quilt and mattress lying near to the main door of the house were taken into possession and sealed into Parcel No.4 vide memo. Prepared on spot and he produced the same as Exh.P/8-E and the burnt pieces of quilt and mattress were produced as Article P/13.
Noor Muhammad A.S.I. Police Station, Quetta (P.W.9).
According to him in presence of Abdul Ghani, S.-I., Police Station, Saddar on 22-12-1998 during interrogation accused Sakina made a disclosure that she can effect recovery of iron bar with which she, Eid Muhammad alias Eido and Abdul Salam killed Mst. Zarina and her Chappals and the blood, which was scratched from the floor, kept in a packing as well as wrapped in red and green colour cloth, accordingly: disclosure memo. Was prepared in his presence by the Investigating Officer, S.-I.
Shamsur Rehman's, which he produced as Exh. P/9-A on which he identified his signature as a marginal witness, whereafter, pursuant to the disclosure he alongwith Shamsur Rehman's, S.-I.
Abdul Ghani, S.-I. And Lady Constable under the supervision of S.H.O., Nisar Kazimi went to the house of accused Sakina, situated in Killi Ismail and the accused led them to the residential room of her house, situated towards south and an iron bar lying near to the door of the room was produced by accused Sakina to the Investigating Officer and from inside the room she also picked up a bundle and gave it to S.-I. Shamsur Rehman's which was checked in his presence and it contained in tin-pack, which contained blood--stained earth and a pair of plastic chappals. These articles were taken into possession and produced by accused Sakina were exhibited as articles by the witness. Recovery memo. By which the Investigating Officer took the articles into possession was produced by the witness as Exh. P/9-B, on which he identified his signature as one of the Musheers.
Nisar Kazimi I.P./S.H.O., Police Station Saddar (P.W.10).
He stated that pursuant to Fard-e---Bayan of P.W. Gul Khan, F.I.R. Was registered with Police Station Saddar. On receipt of information about the incident, according to the witness, the then S.H.O., Police Station Saddar, Abdul Ghani, A.S.-I., H.C. Abdul Khaliq, Shamsur Rehman's, S.-I. And Abdul Aziz, S.-I. Went to the place of incident where also statement of Gul Khan was recorded and investigation of the case was entrusted to S.-I. Shamsur Rehman's, who inspected the place of incident, took into possession pieces of quilt and mattress, sealed the same into Parcel No.1 and a burnt mat on which the dead body was lying was also taken into possession and sealed into a parcel. Also according to the witness the plastic gallon red in colour, was taken into possession vide memo. Prepared by the Investigating Officer, besides the burnt pieces of quilt lying near to the main door of the house were also taken into possession by the Investigating Officer and prepared sketch of place of Wardat, produced by him as Exh.P/10-A, on which he identified signature of the Investigating Officer. Statements of P. Ws. Yar Muhammad and Ameer Abdullah under section 161, Cr.P.C. Were also recorded by the Investigating Officer including the statement of H.C. Abdul Khaliq and Abdul Ghani, S.-I., and site inspection note was also prepared by the Investigating Officer, on which he identified signature of the S.-I. Shamsur Rehman's and on the same date Murad Bibi was arrested, whereas; according to the witness on 19-12-1998, the Investigating Officer arrested accused Abdul Salam from Railway Station Quetta. He stated that accused Sakina was arrested on 21-12-1998 by the Investigating Officer, who also took into possession a letter from accused Abdul Salam, whereas; Eid Muhammad was arrested by the Investigating Officer on 22-12-1998, on which date on the pointation of the accused Mst. Sakina one iron bar, blood--stained earth, pair of Chappals of deceased were taken into possession by the Investigating Officer which were sealed into separate parcels. According to him the disclosure memo. Exh. P/9-A was prepared by the Investigating Officer, on which signature of S.-I. Shamsur Rehman's was identified. He added that the Investigating Officer also produced accused Sakina before the Judicial Magistrate-III, Quetta for recording her confessional statement and on 26-12-1998 Murad Bibi was discharged under section 163, Cr.P.C. Accused Salam and Eid Muhammad were sent to judicial lock-up on 1-2-1999 and the Handwriting Expert Report was received by the Investigating Officer on 16-2-1999 and the medical report was received on 4-2-1999 by the Investigating Officer. After completion of investigation according to the witness record and papers of the case were handed over to him for preparation of challan. He produced the challan as Exh. P/10-B.
7. Defence Evidence Ashia Hussain son of Yar Muhammad, resident of WAPDA Colony, Jamshoro (D. W.1)
He stated that accused Abdul Salam is known to him, who is employed as Munshi in the office of the Oil Tanker Union at Jamshoro. He stated that on 10-12-1998 to 18-12-1998 accused was present with him at Jamshoro.
8. The learned counsel for the appellant as well as Mr. Akhtar Zaman, learned Additional Advocate- General have been heard at length. Mr. Muhammad Aslam Chishti for appellant Abdul Salam contended that:-- A. It was an unwitnessed occurrence and as per medical evidence death was caused by head injury not attributed to accused Abdul Salam rather as per statement of accused Mst. Sakina recorded under section 164, Cr.P.C. The fatal head injury was attributed to accused Eidu and the alleged role of strangulation of the deceased lady in such statement was also assigned to accused Eidu which if be believed, contradicts the medical evidence as to the cause of death. The only evidence on which the prosecution case mainly rests is the confessional statement of accused Sakina and the same is exculpatory in nature because it was disclosed in such statement by its maker that she had no intention to kill the deceased, therefore, the same cannot be used even against accused Mst. Sakina and secondly even if be taken as partly inculpatory and partly as exculpatory cannot be used as a circumstantial piece of evidence against co-accused Abdul Salam and Eidu nor does the same can lay any legal basis to warrant into conviction of the co- accused.
B. No other convincing piece of circumstantial evidence, corrobo--rative in nature has been produced by the prosecution to lend necessary support in substantiating the charge in view of the so-called confessional statement of accused Mst. Sakina, inasmuch as the Investigating Officer and Mohyuddin to whom the P. W. Gul Khan narrated about the events prior to the identity of the dead body was not produced at the trial.
C. The other circumstantial pieces of evidence i.e. Recovery of letter from the possession of accused Abdul Salam, evidence of P.W. Miss Shaista who statedly wrote the letter under the instigation of accused Mst. Sakina and the evidence of P.W. Ameer Abdullah who allegedly was accused Abdul Salam soon after the occurrence having jumped through the window of the house of accused Ghous Bakshh in the courtyard of his one room house and thereupon; to have gone outside through the door of his house being not worthy of any credence and doubtful cannot be used as corroborative piece of circumstantial evidence nor does such evidence independently or otherwise furnish any basis with regard to the involvement of the accused Abdul Salam with the commission of the crime.
D. Without prejudice to the above grounds, the statement of accuse lady recorded under section 164 Cr.P.C. Even if be taken as a confessional statement cannot be used as a circumstantial piece of evidence against the co-accused hence; the other pieces circumstantial evidence on which the prosecution placed reliance even if go unchallenged will not result into conviction of the co- accused.
E. The identification of the dead body being that of deceased Mst. Zarina is also doubtful hence; conviction of the accused persons on such count cannot sustain.
The learned counsel in support of his conviction as to the confession of the accused Mst. Sakina placed reliance on the judgments f the Hon'ble Supreme Court i.e. Arif Nawaz Khan and three others v. The State. LD 1991 FSC 53 and Faqirullah v. Khalil-u--z-Zaman and others 1999 SCMR 2203.
9. Mr. Zar-e-Eman, Advocate appointed as counsel for the pauper convicts/appellants Eid Muhammad and Mst. Sakina in Criminal (Jail) Appeals Nos. 14 of 2000 and 23 of 2000 adopted the arguments put forth by Mr. M. Aslam Chishti, Advocate and he placed reliance on the judgment reported in 1976 PCr.LJ 1342 and 1972 PCr. LJ 1257.
10. The learned Additional Advocate-- General contended that within two days of her arrest, accused lady Mst. Sakina confessed her guilt who was accordingly produced before the learned Judicial Magistrate-111, Quetta who after observing all the legal formalities and satisfaction, also providing time reflection to the accused recorded her confessional statement under section 164, Cr.P.C. And issued the requisite certificate as envisaged by section 164, Cr.P.C. The learned Magistrate also withstood the test of cross-examination. Moreover, the close scrutiny of the confessional statement of lady accused under section 164, Cr.P.C. Would show that the same was inculpatory confessional statement of accused lady in which she also involved the co-accused Abdul Salam and Eidu (Eid Muhammad) with the commission of the crime and by inter se criminal conspiracy an innocent lady was killed for the prosecution of their illicit and illegitimate pursuits.
According to the learned Additional Advocate-General the confessional statement of the accused lady being voluntary and true can be used as evidence against her and again the other accused as a circumstantial piece of evidence duly corroborated by the other pieces of circumstantial evidence i.e. Recovery of love letter from possession of the accused Abdul Salam sent to him by accused lady which she got inscribed through a neighbouring young girl student of 6th class namely- Miss. Shaista (P.W.5), iron bar pair of plastic Chappals of deceased lady Mst. Zarina, blood-stained cloth recovered pursuant to the disclosure of accused lady Mst. Sakina, evidence of P.W. Amir Abdullah who soon after the occurrence saw the accused Abdul Salam making good his escape through the window installed towards the house of said P.W. Coupled with the site inspection report and sketch of site, Handwriting Expert report and medical evidence. The learned Additional Advocate-- General contended that these pieces of evidence including the evidence of P.W. Gul Khan (husband of the deceased lady) could not be impeached, discredited or rebutted hence; appropriately on correct appraisal of entire evidence including the defence evidence, the learned trial Court rightly convicted all the appellants on the charge. He further argued that identification of the dead body made by Gul Khan on spot was not seriously challenged by the defence secondly: since the dead body was found lying in the house of accused Sakina were of Ghous Bakhsh. Therefore, in case the identification of the dead body made by P.W. Gul Khan if were to be disputed, the burden was upon her to show as to whose dead body was lying in her house and thus, in absence of any other evidence to the contrary available on record, the identification of the dead body as made by P.W. Gul Khan cannot be doubted. The learned Additional Advocate- General further argued that repeatedly process for the Investigating Officer Shams-ur-Rehman's were: issued by trial Court and ultimately it was reported by the Ministry of Interior Affairs.
Government of Pakistan that he was deputed to discharge duties in Kosovo and the possibility of his return in near future was also not reported hence; in these circumstances non-production of Investigating Officer had no adverse affect on the prosecution case, a s through other available witnesses the prosecution successfully proved the abovesaid circumstantial pieces of incriminating evidence. Mr. Akhtar Zaman, the learned Additional Advocate-General emphatically contended that as against accused Abdul Salam since other pieces of circumstantial evidence referred to above of unimpeachable character furnished necessary corroboration to the confession of accused lady which he failed to impeach and rebut, therefore, the learned trial Court rightly held him to be guilty on the charge. In support of his plea reliance has been, placed on the reported judgments i.e. PLD 1991 SC 150 and 2000 SCMR 1634.
12. The contentions noted above put forth by the learned counsel for the appellants and the learned Additional Advocate-General have been considered in the light of the prosecution evidence and the evidence of the defence witness produced by accused Abdul Salam which has been gone through carefully and minutely including the impugned judgment. Also the case-law cited by the learned counsel for the parties has been gone through in view of their respective contentions.
Before embarking upon the case, it may be noted that vernacular portion of the evidence of P.Ws.
And the D.W. Has been referred to above and considered while writing the judgment as against the English translated version of the witnesses. The case of the prosecution as it stands opened in Fard-e-Bayan (Exh. P/1-A) of P.W. Gul Khan was that on at about 4-00 p.m. He was present in his house when his were Mst. Zarina alias Razia alongwith his son namely Zahid Khan alias Babu Khan aged about 5/5-1/2 years left the house for taking clothes and at about 4-45 p.m. His said son returned alone on which he inquired about his mother and his said son told to him that he alonewith his mother had gone into a house and inmates of the house sent him to the shop with a female child for taking mait and further in the Fard-e-Bayan P.W. Gul Khan sated that his son disclosed to him that when he came back from the shop to their house after getting ' mait' inmates of the house told to him (his son) that his mother had left for Hudda (a residential and commercial area near to Killi Ismail, this explanation is ours) therefore, he (his son) has come back to his house.
It has further been stated in the Fard--e-Bayan that on being asked his said son took him to the house of Ghous Bakhsh son of Abdul Rahim in Killi Ismail, Quetta. Also explanation was given in the Fard-e-Bayan that about 4/5 years back he remained as tenant of Ghous Bakhsh for two months, and on reaching the house of Ghous Bakhsh he knocked at the door of house of Ghous Bakhsh, on which were of Ghous Bakhsh came on the main door who looked to be worried and disturbed and on being inquired by P.W. Gul Khan, she told to him that his were had come to their house but thereafter left to Hudda. It was further alleged in the Fard-e-Bayan that since the lady was noticed to be disturbed and her tone raised . The suspicion, therefore, he went back to his house in order to come back with a grown-up child, who can be sent inside their house to check, and at about 5-00 p.m. He alongwith his son Zahid came back to the house of Ghous Bakhsh and as he apprehended that his son might not be allowed to enter into their house, therefore, he approached to his friend namely Mohyuddin Constable B. R. P. Residing in the same Killi and narrated to him the abovesaid facts and from there he sent back his son Zahid to his own house, whereas; he (Gul Khan) alongwith Mohyuddin and his daughter aged about 18 years namely Bibi went back to the house of Ghous Bakhsh at about 7-00 p. m. And saw smoke emitting from the house of Ghous Bakhsh and the people gathered there were putting of the quilt on fire in the drain outside the house, whereas; mother of Ghous Bakhsh present outside the house was shouting and putting of the quilt on fire, therefore, he (P.W. Gul Khan) asked to his friend Mohyuddin to see by themselves by entering into the house but they were not permitted to enter into the house and also Mohyuddin advised him not to go into the house. Further in the Fard-e-Bayan it was stated by P.W. Gul Khan that in the meantime police reached there, to whom he disclosed the entire facts pertaining to the missing of his were and he was permitted by the police to see the dead body, whose face was burnt/charred including legs and after inspecting, he identified the dead body to be that of his were by recognizing from the fingers of her hands, toes and face marks. He alleged lastly in the Fard-e- Bayan that the mother and were of Ghous Bakhsh namely Murad Bibi and Sakina have caused the death of his were in their house by putting her on fire.
12. After identification of the dead body by P.W. Gul Khan at about 10-30 p.m. On the same date, the same was taken to the Casualty Department of the Civil Hospital Quetta for post-mortem examination. Dr. Shamim Gul Mashwani (P.W.6) MLO, Civil Hospital, Quetta stated that on 11-12-1998 at about 10-30 p.m. Dead body of one Zarina were of Gul Jan was brought to the hospital by Aziz Buzdar S.-I., Police Station Saddar for post-mortem examination, but keeping in view the high temperature of the dead body, she decided to conduct autopsy on the next morning at 9-20 a.m.
On 12-12-1998 she commenced with the post-mortem of the dead body, which was found to be extensively burnt and no ligature mark on the neck of the dead body was noticed. According to Medical Officer immediate cause of death was the head injury, suffered by the deceased and after that the dead body was set at fire. As per deposition of the MLO and autopsy report Exh. P16-A the deceased had suffered lacerated wound 7 c.m. x 2 c.m. Muscle deep on the back of the head with fresh bleeding on pressing the wound, lacerated wound on the lower lip 4 c.m. Segregating the lip into two parts and irregular gutter wound on left shoulder in a lacerated form. The probable time between death and post-mortem was given more than m elve hours. She admitted in cross- examination that there was no sign of strangulation on the dead body and that due to charring of the face of deceased her identification was not possible and voluntarily stated that the dead body was identified to be that of a female and she further admitted that there was no specific identification mark of identification present on the dead body.
As regards the cause of death as per medical evidence is concerned, has not been disputed or challenged by the defence and thus; it has been successfully proved by the prosecution that on receiving head injury the deceased had died immediately and so far as the contention of the appellant's learned counsel is concerned that there was ambiguity with regard to the identification of the deceased, it may be seen that P.W. Gul Khan, who happened to be the husband of the deceased lady in his Fard-e-Bayan has stated that he saw the dead body pursuant to the permission granted to him by the Police, he noticed that face of the dead, body was charred and the legs of the dead body were also burnt, but after inspecting he identified the dead body to be that of his were by recognizing from the fingers of her hands and toes and face marks; accordingly, he told to the police that the dead body was that of his were and in his deposition at the trial he also stated that he identified the dead body being that of his were by the small linger of her let hand which was cut, by her face and teeth. Moreover, the clothes on her lower part of body remained safe from burning and he was able to identify the dead body of his were Mst. Zarina.
Such part of the statement of P.W. Gul Khan and as contained in the Fard--e-Bayan was not challenged in cross-- examination by the defence, hence; the fact deposed by the witness with regard to the identification of the dead body shall be deemed to have been admitted by the accused persons, moreover, in all probabilities in view of the version of P.W. Gul Khan that he was taken by his minor son to the house of Ghous Bakhsh and on knocking of the door by him, were of Ghous Bakhsh came on the main door of the house who admitted that were of Gul Khan had come to her house and after some time left for Huda, but after visiting to the house of Ghous Bakhsh Mst.
Zarina was not seen by any person and by the time P.W. Gul Khan when again came to the house of Ghous Bakhsh he saw smoke emitting from the house and next within a couple of minutes he was permitted by the police present on the spot to identify the dead body lying in the house, showed that the dead body was put on fire in the house of Ghous Bakhsh was that of the were of P.W. Gul Khan. The version of P.W. Gul Khan that he saw the dad body, identified by him, lying in the house of Ghous Bakhsh, as above-noted remained unchallenged, hence; in such view of the matter the burden heavily lies upon the accused Mst. Sakina to have produced evidence or at least explained as to whose dead body was found lying in her house. It is pertinent to note that accused Sakina in her examination by the Court under section 342, Cr.P.C. Disclosed herself as were of Ghous Bakhsh, whereas; according to P.Ws. Miss Shaista, Ameer Abdullah and site inspection report (Exh. P/8-A) produced by Abdul Khaliq, H.C. (P.W.8), the house of Ghous Bakhsh was situated in Killi Ismail and this part of prosecution evidence was also not challenged by the defence. As per contents of site inspection report Exh. P/8-A proved and produced by P.W. Abdul Khaliq, who accompanied the Investigating Officer (Shamsur Rehman's) to the place of Wardat, the dead body was lying in the house of Ghous Bakhsh situated in Killi Ismail and at the time of occurrence accused Sakina and Murad Bibi was also shown in the inspection report present in the said house, has not been challenged in cross-examination, therefore, such part of prosecution evidence will also be deemed to have been admitted by the defence. It may be noted that repeatedly notices were sent to the Investigating Officer namely Shamsur Rehman's, which could not be served as the Investigating Officer was deputed on official duty to Bosnia and thus; his attendance could not be procured by the prosecution. In view of the foregoing reasons as well as the other pieces of incriminating evidence referred to hereinafter, we are of the considered view that the dead body lying in the house of Ghous Bakhsh, situated in Killi Ismail in which accused Mst. Sakina was also living as were of Ghous Bakhsh, was that of Mst. Zarina deceased were of P.W. Gul Khan which was taken to the hospital and subjected to post-mortem examination by Dr. Shamim Gul Mashwani (P.W.6).
13. Most crucial piece of prosecution evidence is the confession of accused Mst. Sakina. She was arrested by the police on 21-12-1998 and such fact has also been admitted in criminal appeal filed by accused Abdul Salam. She was produced before the Judicial Magistrate- III/FCM. Quetta on 23- 12-1998 for recording her confessional statement in case Crime No. 237 of 1998. The learned Magistrate in his statement at the trial deposed that when she was produced in his Court accused Sakina stated to him that she wants to record confessional statement on her own free will and thereafter, he sent the police staff to outside from his chamber and informed to the accused that she was not bound to make a confession and if she made a confessional statement, the same shall be used as evidence against her and that she was not bound to make any statement or not to make any statement and that in any case she will be sent to judicial lock-up. Also, time for reflection was allowed to the accused lady and ultimately she stated to the Magistrate that she has thought, understood and expressed to record her statement, out of her own freewill and accord and accordingly; as desired by the accused lady, he recorded the statement of Mst. Sakina under section 164, Cr.P.C. And; before recording the statement he also put the prescribed questions as per pro forma to the accused and after getting her answers he having satisfied himself that the accused voluntarily wanted to record her statement and is free from every sort of influence, pressure and coercion, therefore, he recorded her statement and after reducing the same into writing at the end of the statement he issued requisite certificate as envisaged by section 164, Cr.P.C. He produced the confessional statement of the accused lady as Exh. P/7-A and the certificate, issued by him below the recorded statement as Exh.P/7-B. The envelope, in which the statement was sealed by the learned Judicial Magistrate was produced as Article P/2, right of cross-examination on this witness was not availed by the learned counsel for accused Abdul Salam and Eid Muhammad, whereas; the learned counsel for accused Sakina cross-examined the witness, but his testimony could not be impeached or discredited by the defence. From the close scrutiny of the evidence of the learned Judicial Magistrate namely Muhammad Ilyas (P.W.7), we; are satisfied that after having completed all the legal formalities as well as satisfying himself as to the volunatriness and willingness of the accused lady to make a confessional statement, he recorded the same under section 164, Cr.P.C.
The accused lady retracted from her confession in her examination by the learned trial Court under section 342, Cr.P.C. And in answer to questions Nos. 23 and 24 stated that she did not voluntarily record her confessional statement and in the same breath stated that she did not record confessional statement (Exh. P/7-A), whereas; accused Adbul Salam and Eid Muhammad in answer to question No. 23 put to them each while under examination by the learned trial Court stated that the confessional statement was not voluntarily recorded by accused Sakina. It is worthwhile to note that after two days of her arrest, accused Sakina recorded her confessional statement before the learned Judicial Magistrate and retracted from such confession that she did not voluntarily record the same and stated in answer to question No.24 that she did not record confession without assigning any reason, therefore, onus would lie on her that she did not record any confession or that it was not voluntary but nothing was brought on record to show that the same was not voluntarily made or was obtained through coercion or inducement, thus; in absence of any allegation of coercion or inducement, retraction of confession by the I accused lady patently appears to be false, baseless and incorrect, 1998 PCr. Ld 837 ref. As hereinabove noted the Judicial Magistrate after observing all the formalities and satisfying himself with regard to the voluntariness of the accused lady to make statement confessing the guilt, he proceeded to record her confession by complying with the relevant provisions of the law; hence, in such circumstances, retraction of confession by the accused lady without any indication of its being not voluntarily made cannot be discarded. Moreover, undisputedly the incident had taken place inside the house and the accused Sakina being one of the inmates of the house in all probabilities naturally was in the knowledge of the entire events and the episode including the motive for doing away with the innocent lady (deceased Zarina) who, per chance while passing on her way with her minor son entered into the house of Ghous Bakhsh, situated in the same Killi and ultimately, her dead body was identified by P.W. Gul Khan, who happened to be the husband of accused Sakina. It is pertinent to note that Gul Khan (husband of the deceased lady) in his Fard-e-Bayan stated that his son aged about 5/5-1/2 years took him to the house of Ghous Bakhsh, situated in Killi Ismail and he remained tenant of Ghous Bakhsh 4/5 years back, which fact was not challenged or disputed by the defence; hence, it can be inferred safely that. Since Gul Khan remained as tenant of Ghous Bakhsh for some time, therefore, the deceased might have been acquainted with the were of Ghous Bakhsh, and thus; on the date of occurrence the deceased lady on her way to bring the stitched clothes went to the house of Ghous Bakhsh situated in the same Killi. The confessional statement has been reproduced in vernacular in para. No.6 of the judgment at page 15 wherein it was stated by the accused that she did not like her husband and wanted to be divorced and she had developed illicit connections about two years back with the maternal cousin of her husband namely Abdul Salam and also wanted to join Abdul Salam for good/flee with him. She also disclosed in such statement that one Eidu also wanted t establish illegitimate relations with her, who prepared a plan that he will help her in fleeing and told to her to bring some woman to her house and on 11-12-1998 at the instance of Eidu, she went in search of woman in the Mohallah and at that time Abdul Salam was also present in the house but she failed to bring any woman of Mohallah to her house and all of a sudden Zarina came to her house, who was made to sit in the room while Eidu and Salam had concealed themselves behind the door and Zarina could not see them. She further stated that Eidu hit on the head of Zarina with the iron bar; whereas, Salam put his hand on the mouth of Zarina and in the meantime, Eidu asked him to bring a cloth and she gave to him a ' Dopata' with which Eidu strangulated Zarina, as a result whereof she died and according to her it was 4-00 p.m. At that time and they concealed the dead body. At about 6-00 p.m. She sent a female child from nearby to bring kerosene oil and Eidu and Salam burnt, the dead body of Zarina and at 8-00 p.m. She and Salam went to the railway station. She has further stated that she did not intend to kill Zarina and simply wanted to run away with Salam and that Salam and Eidu. Committed the murder and she is innocent because she did not know that Fidu will kill Zarina.
The above mentioned facts abundantly reveal that the same could not have been known to an outsider except the person, involved with the affairs and the events, hence the disclosure so made in he statement by accused Sakina is indicative of he fact that she being one of the inmates of the house and were of Ghous Bakhsh being were and in the knowledge of the entity episode revolving around the motive to get rid of her husband, voluntarily recorded her statement before the Judicial Magistrate which also in the circumstances of the case appear to be true. In this statement she also mentioned the name of deceased lady as Zarina hence this fact further lends support that P.W. Gul correctly identified the dead body of his were (Zarina) lying in the house of Ghous Bakhsh and the contention that in view of medical evidence the identification of the dead body was doubtful, is devoid of any substance. Mr. M. Aslam Chishti during course of arguments submitted that without prejudice to his contentions as to the effect of the so-called confessional statement exposing accused Abdul Salam and Eidu to any criminal liability or otherwise, since the learned trial Court did not put any specific question to these accused during their examination under section 342, Cr.P.C. On such point, therefore, such a statement even if be treated as a confession cannot be used against co-accused Abdul Salam and Eidu. In view of such plea the learned counsel was asked that had in specific terms the question was put to these accused what answer possibly could have been given by the accused persons, the learned counsel frankly submitted that obviously the accused would have replied in negative; and secondly, in such view of the matter failure on the part of the learned trial Court to put a specific question to these accused that the confessional statement of accused Sakina can be considered as a piece of circumstantial against them in view of expected positive answer as explained by Mr. M. Aslam Chi'shti would not be fatal to consider the effect of the confession of accused Sakina as against the other co --accused, however, it may be noted that the contention so raised during arguments, no doubt was urged but not very seriously stressed upon because the learned counsel mainly contended that even if the admission of facts as recorded in the statement of accused Sakina under section 164, Cr.P.C.
Amounts to confession for want of convincing circumstantial piece of evidence will not lay any basis for conviction of the co-accused; and secondly, the confession of an accused cannot be used even as circumstantial evidence against the other accused.
Adverting to the contentions of appellants learned counsel that the so-called confession being exculpatory in nature even cannot be used against its maker, as the accused lady categorically stated that she not intend to kill Zarina as she only wanted run away with Salam and that murder w committed by Eidu and Salam. In such behalf, we may mention that these spoken words by accused Sakina in her confession are not to be read and understood in isolation rather, the confession has to be read as whole and the Court has to infer safe conclusion as to whether the accused was party to the criminal conspiracy and they joined their minds to achieve the object and the acts done and committed by each of the accused were in furtherance of their common intention. In very simple words it was disclosed by the accused lady that she wanted to get rid of her husband as she disliked hir and she had also developed illicit relation with Abdul Salam, the maternal cousin of he husband and wanted to run, away with he paramour and on the other hand; Eidu also wanted to establish illicit relations with her who made a plan and will also help her to flee with Abdul Salam so, she went in search of woman of the Mohallah to be brought to her house, but failed to bring any woman to the house and at that time Eidu and Abdul Salam were also present when suddenly deceased farina came to the house and she was made o sit in the room and at that time accused Salam and Eidu had concealed themselves Behind the door and Zarina could not notice heir presence. These disclosed facts can lead any prudent person to infer that accused Sakina was fully aware of the intentions of the other accused and to facilitate and advance conspiracy for achieving the object she went in search of a woman of Mohallah to be brought to her house, to be done to death and to be set on tire so that they can pretend that (Sakina were of Ghous Bakhsh) died on account of catching fire and taking advantage would be able to run away for good with her paramour. Her taking deceased Zarina to the residential room of the house, presence of both the other accused in the house at the relevant time when she went in search of a woman of Mohallah and concealing of accused Salam and Eidu behind the door of the room in which Zarina was made to sit by accused Sakina, are the circumstances which abundantly show that there was privity of minds between all the three accused and to achieve nefarious designs.
Sakina facilitated commission of crime in furtherance of their common intention pursuant to the criminal conspiracy/plan very well-known to accused Sakina hence, merely for the reason that Sakina stated that she did not intend to kill Zarina and that she only wanted to flee away with Salam and that murder was committed by Eidu and Salam would not absolve her of criminal liability nor for these spoken words the confession can be said exculpatory in nature or partly inculpatory and partly as exculpatory, rather; motive as well as the subsequent acts done and performed by each of the accused referred to in the confession of E accused Sakina are indicative of the fact that her confession was incuplatory in nature and can be used as evidence against her.
15. As regards the confession of accused Sakina. Next it was contended by Mr. Muhammad Aslam Chishti that the same affects only its maker and cannot be used as against the other co-accused.
To supplement the contention he has placed reliance on the judgment of the Honorable Supreme Court in the case of Faqirullah v. Khalil-uz-Zaman and others (1999 SCMR 2203). It is well-settled that confession implicates the accused but not the co-accused and the retracted confession of an accused person as against co-accused is not acceptable if there is no other proof against the co- accused, however, the same can be F considered as circumstantial piece of evidence against the co-accused and can be a basis of Tazir to the co-accused, if it is corroborated by other independent evidence, PLD 1991 (FSC) 53 ref. In the case of Faqirullah v. Khalil-uz-Zaman (1999 SCMR 2203), it may be observed that the honorable Supreme Court did not hold that the retracted confession of an accused cannot be considered even as a piece of circumstantial evidence against the co-accused, rather; the honorable Court after dilating upon the proposition with reference to the principle based on the well known incident reported by almost all the compilers of "Ahadith" in which the Holy Prophet (p.b.u.h.) punished a person with Hadd on the confession of the commission of the Zina. But in spite of the fact that he had mentioned a particular woman by name with whom he had admitted to have committed Zina, the Holy Prophet (p.b.u.h.) did not convict the woman on the basis of this confession by the co-accused. He (p.b.u.h.) appointed a Judicial Officer to investigate and to independently find out whether the woman had committed Zina or not and the Holy Prophet (p.b.u.h.) directed the Judicial Officer to punish the woman only on her own free and independent admission and thus; in the light of the quoted principles and the example, the honourable Court held that it also means that the confession made by a person may be accepted to the extent to which it Affects himself and may be rejected to the extent to which it implicates some body else.
Significantly it is noticeable that the quoted example did not refer to a case in which no other evidence excepting confession of a co --accused was available and thus; the Holy Prophet (p.b.u.h.) appointed a Judicial Officer to investigate and to independently find out whether the woman had committed Zina or not, and secondly; the principle enshrined in the ' Ahadith' referred to in the aforesaid judgment of the Honourable Supreme Court does not- provide that confession of a co-accused cannot be considered as a circumstantial evidence against the other accused, rather, the quoted example indicates that the other evidence if can be procured, could be looked into by the Qazi hence; in our considered view as also consistently been held by the honourable superior Courts that confession of an accused person can be considered as a circumstantial piece of evidence against the other accused for which reference can be made to the reported judgments such as PLD 1991 SC 150, 2000 SCMR 1634 and 1998 MLD (FSC)344.
16. As regards accused Sakina during course of interrogation on 21-12-1998 i.e. The second day of his arrest she made a disclosure to the Investigating Officer that she can lead and effect recovery of the iron rod, by means of which deceased Zarina was killed by Eidu with the assistance of Abdul Salam and herself, besides the blood-stained earth concealed by her in the room of her house, accordingly; the disclosure memo. Was prepared by the Investigating Officer in presence of Noor Muhammad, A.S.-I. (P.W.9) and Abdul Ghani Tareen S.I.P., P.W. Noor Muhammad A.S.I., Police Station, Saddar has produced the disclosure memo. As Exh. P/9-A which bears his signature as one of the Musheers, who deposed that in his presence on 22-12-1998 accused Sakina made the above mentioned disclosure to the Investigating Officer, who prepared the memo. And thereafter, he alongwith Shamsur Rehman's (Investigating Officer), Abdul Ghani, S.-I. And Lady Constable under the supervision of S. H.O. , Nisar Kazmi (P. W.10) took the accused Sakina to her house, situated in Killi Ismail and she led them to the residential room of her house, situated towards south and from near to the door produced a iron bar to the Investigating Officer, thereafter, from inside the room she produced a bundle of cloth to Shamsur Rehman's and on being checked a tin--pack containing blood-stained earth and a pair of plastic Chappals were recovered from the bundle which were taken into possession vide memo. Exh. P/9-B, produced by the witness bearing his signature as one of the Musheers. The P.W. Also produced the articles referred to above, taken into possession and produced by accused Sakina pursuant to her disclosure. The recovery of the iron rod at the pointation of the accused Sakina gets due corroboration from the medical evidence that the deceased suffered injury caused by blunt object on her head on account of which the deceased died immediately after receiving injury. Witness was subjected to cross-examination but he remained firm on all the material particulars and his evidence could not be shaken. The recovery of the iron rod, blood-stained earth and the pair of Chappals, concealed in a bundle of cloth also provide corroboration to the confession of accused Sakina.
Muhammad Anwar H.C., Police Station, Saddar, deposed at the trial that on 21-12-1998 in Unarpur Sind accused Abdul Salam produced a letter comprising of two pages from his bag to the Investigating Officer Shamsur Rehman's, S.-I. And disclosed that this letter was sent to him by Sakina and was written in the hand of Shaista, accordingly; the letter was taken into possession in his presence and that of Sahib Khan vide inventory prepared by the Investigating Officer on which he and the other Musheer inscribed their signatures. He produced the letter as Article P/1 and the memo. As Exh. P/3-A. Perusal of the contents of the letter evidently shows that the accused Sakina had developed close illicit connections with her paramour and she wanted to run away for good with him. Moreover, the contents of the letter also indicate that the same was written on behalf of Sakina by someone else; who called herself as sister and the addressee as her brother. Also, the version of this witness could not be impeached or discredited in cross-- examination. In order to substantiate that the abovesaid letter was written by accused Sakina to her paramour accused Abdul Salam, the prosecution has produced Miss Shaista aged 14 years, student of 6th Class and resident of Killi Ismail in which accused Sakina's house was also situated. According to this witness she is a student .Of 6th Class and studying in the Government Girls School Jinnah Town. About nine months back Sakina had developed strained relations with her husband and inmates of the house, and she also used to visit to her house and against her will used to take the witness to her house and used to ask her to write letters for Abdul Salam. The witness also stated that she was compelled to write letter by swearing her and thus: she wrote the letter to Abdul Salam. She also in her statement alleged that Sakina had illicit relations with accused Abdul Salam. She produced the letter written by her as Article P/1 by identifying her writing. It appears from the evidence of this witness that during course of investigation after recovery of the abovesaid letter specimen handwritten document in Urdu with a marker pen were obtained from P.W. Miss Shaista and the same alongwith Article P/1 were sent to the Handwriting Expert for examination and report. The Handwriting Expert Muhammad Yaseen Bajwa I.P/S.H.O. Crimes Branch, Quetta appeared as P.W.2 and stated that on 9-1-1999 he received document comprising of two pages for examination and three specimen documents which he examined. According to him the specimen documents and the two papers (letter) was written with marker pen and on comparative examination of these documents he came to the conclusion in view of the characteristics of the handwriting of these documents that the letter comprising two pages mentioned at Serial No. l of hi; report (comprising of two papers) tally with the specimen Urdu writing on the papers mentioned at Serial No.2 having the same habitual writing characteristics. He produced the report bearing his signature as Exh.P/2- -A. The report shows that these documents were received by the Expert in connection with F.I.R. No. 237 of 1998 of Police Station, Saddar, Quetta under section 302/34, P.P.C. The witness was cross- examined by the learned defence counsel for accused Sakina and for Abdul Salam in respect of the material aspects of his evidence but his testimony could not be impeached. From the evidence of P.W. Shaista it was successfully proved by the prosecution that under instructions of accused Sakina letter (Article P/ 1) was written by P. W. Miss Shaista. Moreover, Miss Shaista is a young girl of about 14 years of age, obviously does not carry any motive to falsely attribute for writing of letter on behalf of accused Sakina under her instructions and she in very simple words stated that she was used to be taken by accused 8akina to her house, who compelled her to write letter to accused Abdul Salam and she being a young girl of tender age could not foresee results of writing of such type of letters, therefore, it is quite convincing that she being a little educated girl and living in the same Killi could have been easily prevailed upon and the said girl was also sworn to write letter for Abdul Salam which she did. Also on account of such factors it appears that she did not disclose such a fact to her parents. No doubt she has stated that illicit relations existed between Sakina and Abdul Salam and on the point she was also cross-examined. She also stated in cross-examination that now she has attained puberty. From the facts, so deposed by the witness it can be easily inferred that with regard to the existence of illicit relations between Sakina and Abdul Salam she had assumed the fact from the verbal utterances of accused Sakina which the witness shaped into writing under the instructions of accused Sakina hence the said given fact by P.W. Shaista will not have any adverse effect on her version and there is also no reason to disbelieve and doubt her testimony, consequently, the letter Article P/1 also lends support to the confession of accused that she hated her husband and wanted to run away with accused Abdul Salam with whom she had developed illegitimate liaison.
17. Abdul Khaliq, H.C., Police Station Saddar (P.W.8) stated that on 11-12-1998 on receipt of information that a house in Killi Ismail has caught fire in which a woman has been burnt, therefore, he alongwith the S.H.O. Malik Sher Afzal, Shamsur Rehman's, S.-I. (Investigating Officer), Abdul Ghani, S.-I. And other police staff reached to the place of incident and saw that the smoke was emitting from a room of the house. According to this witness in his presence and that of Abdul Ghani, S.-I. Shamsur Rehman's prepared the site inspection report, which was produced by him as Exh. P/8-A on which he inscribed his signature as one of the Musheers. He also produced memos.
As Exh.P/8-C, Exh. P/8-D and Exh. P/8-E, whereby the Investigating Officer took into possession the plastic mat from beneath the dead body, a plastic gallon having smell kerosene oil, burnt pieces of quilt and mattress from the courtyard of the house a--nd from near to the main door in his present and the same were produced as articles by the witness. This witness also withstood the test of cross-examination and on material aspects of his evidence remained firm, which also provide limited corroboration to the confession of accused Sakina. In .The site inspection report Exh. P/8-A it was specifically mentioned by the Investigating Officer that in the room of the house which opens towards east the burnt dead body of deceased Zarina was found lying and such fact was not challenged in cross-examination by the defence. As hereinabove noted at the cost of repetition it may be mentioned that the Investigating Officer namely Shamsur Rehman's could not be produced by the prosecution for the reason that on official duty he was deputed to Kosovo and his return in the near future was indefinite, however, since P.W.10 accompanied the Investigating Officer to the place of Wardat and remained present throughout during inspection as well as inscribed his signature as one of the Musheers on the site inspection note and the memos., therefore, non-production of the Investigating Officer will not have any adverse effect on his testimony as these circumstantial pieces of evidence were proved by the witness.
18. Reverting to the prosecution case as regards accused Abdul Salam, discussed hereinabove about the effect of the confession of accused Sakina, letter Exh. P/3-A sent to him by accused Sakina and produced by accused Salam to the Investigating Officer coupled with the evidence of P.Ws. H.C. Muhammad Anwar (P.W.3), Miss Shaista (P.W.5) and the evidence of Handwriting Expert, yet; another piece of circumstantial evidence which needs consideration is the site map produced by Nisar Kazmi I.P./S.H.O.. Police Station, Saddar as Exh. P/10-A, who stated that during course of investigation Shamsur Rehman's, S.-I. Inspected the place of occurrence and besides taking other proceedings on spot also prepared the site map of the place of incident on which he identified the signature of the Investigating Officer. It was suggested in cross --examination to P.W.8, H.C. Abdul Khaliq that in his presence Shamsur Rehman's; S.-I., did not prepare the site map with scale, to which he answered in affirmative and voluntarily stated that the site map was prepared without scale. The perusal of the sketch of place of incident shows that the same was prepared without scale. The preparation of sketch of place of incident by the Investigating Officer has also, not been challenged in cross-examination by the defence. Exh. P/10-A shows that window of the store room of house of Ghous Bakhsh opens towards north in the open space, which ultimately leads to an open lane and in front of the window at some distance towards north room of Ameer Abdullah, produced by the prosecution as P.W.4 has been shown and this position as per sketch was also not challenged in cross-examination. In such factual position of the matter evidence of Ameer Abdullah (P.W.4) becomes of a very high degree of import. According to this witness for the last four years he is residing in Killi Ismail on rental basis in a room owned by Ghous Bakhsh and this part of his evidence has not been challenged in cross-- examination by the defence. He further stated that on 11-12-1998 he was present in his room when he saw that accused Abdul Salam jumped through a window installed in the wall of the house of Ghous Bakhsh towards the courtyard of his room and went outside through the door of his courtyard. Also, this part of the evidence of the witness was not challenged in cross-examination by the defence. It was suggested to the witness that on 11-12-1998 accused Abdul Salam was not present at Quetta and the witness disputed the same. Also in cross,-examination he explained about his presence in the room, who on being asked described the location and direction of his room in comparison to the house of Ghous Bakhsh. He also in answer to the question put to him during cross-- examination stated that the house in which accused Sakina was living and the room let out to him are owned by the husband of Sakina namely Ghous Bakhsh. Moreover, from the evidence of P.W.4 location of the room in his occupation as shown in the sketch Exh. P/10-A stands proved. Nothing has been brought on record nor even suggested to this P.W. To indicate that he has deposed falsely against accused Abdul Salam, hence, in absence of any motive or reason to falsely involve the accused, the version of this witness can be safely believed.
The above discussed circumstantial pieces of evidence including the confession of accused Sakina excludes all the reasonable hypothesis of innocence of accused Abdul I Salam, who even did not appear as his own witness in disproof of the charge within the purview of section 340(2), Cr.P.C. Despite opportunity for the purpose afforded to him by the learned trial Court and produced only one witness in defence namely Aashiq Hussain, who deposed that accused is known to him who is employed as Munshi in the office of Oil Tanker Union and that from 10-12-1998 to 18-12-1998 the accused was present with him at Jamshoro. It may be noted that to none of the P.Ws. It was suggested that accused Abdul Salam was employed as Munshi at Jamshoro and that with effect from 10-12-1998 to 18-12-1998 he was present at Jamshoro, inasmuch as; the accused himself did not appear in the witness --box as his own witness hence the plea so taken appears to be afterthought and misconceived in view of the overwhelming circumstantial evidence discussed hereinabove, as well as there was no reason for P.W. Ameer Abdullah` to have falsely deposed that he had seen the accused Abdul Salam at the relevant time when he was jumping over through the window of the house of Ghous Bakhsh, hence, at the face of it the evidence of the defence witness by no stretch can be taken as believable, true or even probable, so; appropriately the learned trial Court discarded the same.
19. The case-law cited by Mr. Zar-e---Eman, the learned counsel for the appellants Mst. Sakina and Eid Muhammad, in no way help in improving or advancing his case, hence; are of no avail to the case of either of the appellants.
20. Another aspect which needs to be attended is that P.W. Gul Khan in his Fard-e---Bayan Exh.
P/1-A did not mention the name of accused Sakina and at the trial repeatedly instead of mentioning the house of Ghous Bakhsh he mentioned the name of Sakina and this aspect has been elaborately dealt with by the learned trial Court in its true perspective, however, through the evidence of P.W. Gul Khan the prosecution successfully proved that on the date of occurrence at 4- 00 p.m. Deceased Zarina alongwith her minor son namely Zahid aged about 5/5-1/2 years left the house to fetch clothes and after about 45 minutes said son of Gul Khan returned home alone and on being asked he informed to his father (Gul Khan) that he alongwith his mother had gone to a house in Killi Ismail from where the inmates of the house sent him to bring ' mait' and when he returned to said house, the inmates of the house told to the son (Zahid alias Babu Khan) that his mother had gone to Hudda and thereupon as asked for by P.W., his son took him to the house of Ghous Bakhsh in Killi Ismail and he knocked the door of the house, on which were of Ghous Bakhsh came to the door and looked to be disturbed, who on being asked disclosed to him that his were had come to their house and thereafter has gone to Hudda which caused suspicion and as referred to hereinabove in the relevant paragraph subsequently the dead body lying in the house of Ghous Bakhsh on being permitted to recognize, was identified to be that of his were. All these facts and the other pieces of circumstantial evidence discussed above including the confession of accused Mst. Sakina which remained unrebutted beyond shadow of any reasonable doubt proved the guilt as against the accused Sakina and Abdul Salam, who in furtherance of their common intention facilitated the murder of deceased Mst. Zarina an innocent lady, for the prosecution of their illicit liaison and illegitimate objects with the obvious motive, justified capital punishment to both these accused persons under section 302(b)/34, P.P.C. And they deserved no leniency for lesser sentence of life imprisonment but as the State did not tile criminal revision for passing of appropriate sentence nor notice was issued by this Court in such behalf, therefore, while writing judgment we did not deem it proper to issue such notice to these convicts, however, it may be observed that the learned trial Court on misconceived grounds awarded the lesser punishment which conduct in the given facts and circumstances of the case cannot be approved PLD 1991 SC 150 ref.
The conviction and sentence awarded to the appellants Abdul Salam and Mst. Sakina under section 302. P.P.C. By the trial Court shall be taken as having beep made under section 302(b)/34, P.P.C. As regards accused Eidu excepting the confession of accused Sakina and the disclosure made by her pursuant to which the iron rod and the blood-stained earth stated to have scratched from ground by accused Eidu, who alleged to have kept, the same in the tin-pack were recovered at the instance of accused lady; no other circumstantial evidence was produced by the prosecution to connect him with the commission of the offence; hence, by extending benefit of doubt in his favour, he is acquitted on the charge.
Thus: in view of the above discussion and reasons Criminal Appeal No.28 of 2000 and Criminal
(Jail) Appeal No.23 of 2000 of accused Abdul Salam and Mst. Sakina being devoid of any substance are dismissed; whereas, Criminal (Jail) Appeal No. 14 of 2000 of accused Eid Muhammad alias Eidu is accepted, accordingly; he be set at liberty, if not required to be detained in connection with any other case.