TARIQ PARVEZ KHAN, J.---On 3-12-1998 at 6-15 a.m. Mst. Gul Marjan were of deceased Zahir Shah who had taken the dead body of her deceased husband to Civil Hospital, Shakardara, made report to Mushtaq Hussain (P.W.8) that at night time at 2-30 a.m. She alongwith her deceased husband were asleep in their room. Deceased went out of the room for urination and when was re-entering the room, somebody fired at him from outside with which the deceased was hit on the back, none was charged in the report nor suspected.
2. From record it appears that on 7-12-1998 Eid Badshah (P.W.9) father of deceased Zahir Shah came to the village and on his accusation and on the accusation of Mst. Umar Nisa, mother of the deceased, Mst. Gul Marjan who was initially complainant of the case, was arrayed as accused in this case but her arrest has been shown by the police on 9-12-1998.
3. It is alleged that at the same day of arrest she was produced before Judicial Magistrate namely Taj Muhammad Khan (P. W.11) where her confessional statement was recorded which is Exh.P.W.11/3.
On the same day Mst. Gul Marian is alleged to have led the police party to the recovery of a shot- gun, recovered from the shed within the house of deceased. Said shot--gun was having an empty in its chamber and was said to be giving smell of fresh discharge.
4. Learned trial Judge on the basis of confession and on the basis of pointation of shot-gun and because empty recovered from the chamber having matched, came to the conclusion that prosecution has brought charge against the appellant. She was, therefore, convicted and sentenced to life imprisonment under section 302(b), P.P.C. With a fine of Rs.10,000 as compensation with benefit of section 382-B, Cr.P.C.
5. Learned counsel appearing for the complainant has argued that confession was made on the very day of arrest, therefore, there is no possibility of maker being coerced or put to any torture, that confession finds full corroboration for motive as extended by Eid Badshah and Mst. Umar Nisa, that as the marriage between the deceased husband and the appellant was because that lady was given as 'Swara' i.e. Against her will, therefore, the spouses has strained relation. Therefore. Mst.
Gul Marian would have strong motive to kill her husband.
It is argued by the defence that the onus to establish its case is always on the prosecution, which in this case is not discussed.
6. After we have heard learned counsel for the appellant and the learned counsel appearing for the complainant including the learned Deputy Advocate-General, we will first take up the recovery of shot-gun and the report of Fire-arm Expert which is Exh.P.Z.
7. Crime was committed on 3-12-1998, the shot-gun was recovered on 9-12-1998 as alleged by the prosecution but it was received by the Fire-arm Expert on 26-1-1999 i.e. After delay of about 46 days which has not at all been explained by the prosecution.
Sarfaraz (P.W.1) is produced by the prosecution to prove the recovery of shot-gun but in his cross- examination he has stated that he does not know whether the gun recovered was old or new and he also said that the 'Toopak' recovered was in fact picked up by a constable who handed over the same to the Investigating Officer. This statement of P.W. Would negate the charge against the appellant that it was on her production that the gun was taken into possession.
8. Recovery memo. Exh.P.C/1 through which the shot-gun was allegedly taken into possession when the original is seen, it appears to have been prepared on 8-12-1998. However, digit "8" has been tampered with and has been made as digit "9" without any initial thereon, therefore, even the date of recovery has become doubtful.
If it is the case of the prosecution that Mst. Gul Marjan was arrested on 9-12-1998 then the shot-gun was recovered a day before her arrest and could not be on her pointation.
Even otherwise since no empty was recovered from the scene of the crime, this gun cannot be- connected with the crime. There is yet another circumstance that whether after six days of the commission of the crime its barrel would give the smell of fresh discharge. We, therefore, outrightly exclude the evidence in respect of either pointation of the gun or report of the Fire--arm Expert.
9. We are now left to dilate upon the evidentiary value of confession Exh.P.W.11/3. According to statement of Investigating Officer (P.W.8), Mst. Gul Marjan was produced before recording Magistrate at 10-10 a.m. Where she remained until 13-10 hours but certificate under section 164/364, Cr.P.C. i.e. Exh.P.W.11/2 would prove that she was produced at 11-00 a.m. And entire recording of confessional statement was over by 12-00 hours. The question would be that as what for she was retained by the Magistrate for 50 long minutes i.e. 10-10 a.m. To 11-00 a.m.
10. As Mst. Gul Marjan was charged on 7-12-1998 in the statement of Eid Badshah, her father-in-law, therefore, she should have been arrested the same day. It is not known that why prosecution wants us to believe that she was arrested on 9-12-1998. However, the cat will come out of the bag when one will look at memo. Exh.P.C/1 over which we have already dilated that there was tampering done with the recovery memo. Of the shot--gun on which day she has been shown to be an accused. If she was termed as accused by the police on 8-12-1998 again the question would be that her arrest has been shown on 9-12-1998 thus she was in the illegal custody of the police for 24 hours. The confession made by a person produced by the police from their unlawful custody is always considered to be involuntarily made.
11. If the confession was to be made and if the true facts were to be given and if the shot-gun was recovered on 9-12-1998 and this fact was fresh in the mind of maker of the confession but there is omission in the confession regarding pointation of the shot-gun. If on one hand this proves that the confession is untrue, it will also reflect on the recovery of the shot-gun.
It is in the statement of the accused under section 342, Cr.P.C. That between 7-12-1998 till 9-12-1998 she was brought and kept in the police station, all this would reflect that she was compelled to make statement and, therefore, we would not consider her confessional statement to be voluntarily made nor it is true.
12. When there is no direct evidence against the appellant and her conviction was recorded on the basis of confession as well as recovery of the shot-gun and the report of Fire-arm Expert, all such facts constitute circumstantial evidence which are all having dent therein, therefore, it is not safe to base conviction on such evidence. We accordingly allow this appeal. Conviction and sentence of the appellant are set aside and she is acquitted of the charge. She be set at liberty forthwith S if not required in any other case.