Ijaz-ul-Hassan, J.--Mst. Nasim Akhtar appellant was tried by learned Additional Sessions Judge Charsadda for the murder of her husband Mukhtiar Wali, allegedly committed by her on 22.10.1998 at unknown time in her house in furtherance of her common intention with absconding co- accused Abdul Wakil and Mst. Nekraz both residents of Shah Pasand Kalay, Charsadda. She was also tried for throwing the dead body of the deceased in the fields in order to cause disappearance of evidence of offence. At the conclusion of trial, the appellant having been found guilty of the charges, was convicted under Section 302 PPC vide judgment dated 4.10.2000 and sentenced to imprisonment for life with a fine of Rs, 100,000/- or in default thereof to suffer two years S.I. Half of the amount of fine on realisation. was directed to be paid to heirs of the deceased as compensation under Section 544-A, Cr.P.C. The appellant was also convicted under Section 201 PPC and sentenced to suffer imprisonment for seven years and a fine of Rs, 50,000/-or in lieu thereof to undergo S.I. for one year. Both the sentences were directed to run concurrently.
2. Feeling aggrieved the appellant has filed instant Jail Criminal Appeal No, 403/2000 challenging her conviction and sentences.
3. Shortly narrated the facts culminating into murder of Mukhtiar Wali are that S.I. Safdar Zaman (PW.4), who was then posted as Additional SHO Police Station Charsadda, was on patrol duty of the area when he received an information that some limbs of human body are lying in a field of sugarcane near 'Dab Banda' Charsadda. On reaching the fields he found one hand and two feet of the human body. He took the same into possession and after post mortem examination, entrusted the parts to Municipal Corporation Charsadda for burial. He prepared site-plan (Ex. P.4/1) and injury sheet (Ex. P. 4/2). During investigation of the case he was informed that some other parts of human body have also been recovered by the staff of Police Station Nisatta, Charsadda and a case has already been registered in the said police station. S.I. Safdar Zaman Khan PW handed over the investigation papers to the officials of Police Station Nisatta, who carried out the remaining investigation. In the meanwhile, PWs Awal Khan and Anwar Shah MC brought the head of the deceased to Police Station Nisatta, where it was taken into possession by ASI Ruhul Amin Khan (PW.3). The photograph of the head was taken and an advertisement was made in the daily `Mashriq' Peshawar, regarding the occurrence.
4. During the investigation it transpired that Mst. Nasim Akhtar appellant was responsible for the murder of her husband in connivance with absconding co-accused Abdul Wakil and Mst. Nekraz.
The appellant was accordingly arrested. During interrogation she admitted her guilt. She was produced before Ishtiaq Ahmad, Senior Civil Judge/Judicial Magistrate. Charsadda (PW. 5) who recorded her confessional statement on 13.11.1998.
5. The prosecution in order to prove its case produced eight witnesses in all including the Investigating Officers Medical Officer, Mst. Nasiha (daughter) and Usman Ghani (father) of the deceased.
6. Dr. Abdul Qayum, DHQ Hospital Swabi (PW. 7) on 22.10.1998 at 11.00 a.m. examined the head of an unknown person and on internal examination found no injury on the skull and face. The neck was found cut with a sharp instrument at the level of fourth serival vertebra. He also examined the penis brought to him and found the same cut from the interior half with a sharp edged instrument. On internal examination vertebra was found injured and the spinal card cut with a sharp instrument at the level of 4th servical vertebra. Muscle bones, joints, muscles of the neck and throat were found injured. Time between death and post-mortem examination was found to be two to three days, approximately.
7. Mst. Nasim Akhtar appellant in her statement recorded under Section 342, Cr.P.C. totally refuted the allegations of the prosecution and claimed to have been charged falsely in order to deprive her of the property and the pensionary benefits of her deceased husband. She also denied having made confessional statement or led the police party to her house for recovery of blood stained earth and other articles. However, she appeared in the witness box and gave a detailed statement under Section 340(2) Cr.P.C. denying all the allegations levelled against her.
8. By placing reliance on the material available on the record, the appellant was convicted and sentenced by the learned trial Court as stated above.
9. It is evident that there is no eye witness to the occurrence and the prosecution case is entirely based on the retracted confession of the appellant, recovery of blood-stained earth from the roof top of the adjoining quarter statedly at the pointation of the appellant and statements of daughter and father of the deceased.
10.We have heard in detail Mr. Noor Alam, Advocate for the appellant and Mr. Ijaz Ahmad, Advocate for the State. We have also gone through the entire evidence with their able assistance.
11.Learned counsel for the appellant is, support of the appeal contended that the confessional statement was not voluntary; that it was obtained by threat and torture by the police; that recovery of blood-stained earth has not been satisfactorily proved and that there is absolutely nothing on the file to connect the appellant with the crime in question. Concluding the arguments, the learned counsel reiterated that the entire case is based on circumstantial evidence which is not at all sufficient to form basis for conviction of the appellant.
12.The learned State counsel, on the contrary, defended the impugned judgment and asserted with force that the appellant is the perpetrator of the crime and at her instance the deceased was done to death.
13.It is not denied that while passing an order of conviction of an accused for murder the Court has not only to be satisfied that the murder has been committed but it must also be satisfied that accused committed the murder. In case of murder the onus of proof always lies upon the shoulders of the prosecution and the prosecution is required to prove case against the accused beyond any reasonable doubt. If any authority is required in support of the proposition reference can be made to Ghulam Abbas and others vs. The State (2001 P.Cr.L.J. 1672) and Hakim Ali and others vs. The State (1971 SCM R 432).
14.As stated above, the mainstay of the prosecution case is the confessional statement of the appellant, recovery of blood-stained earth at her pointation from the roof top of the adjoining quarter and statements of Mst. Nasiha (daughter) and Usman Ghani (father) of the deceased. The, appellant was arrested on 9.11.1998 and her confessional statement was recorded on 13.11.1998. In the confessional statement the appellant stated that for the last 8/9 years she has been residing with the deceased and other family members in Gul Khan quarter Opposite Sugar Mill Nowshera.
The deceased was a man of objectionable character and used to bring women of easy virtue for adultery. He also had illicit relations with one Mst. Nekraz. Left, with no option she (appellant) consulted Mst. Nekraz to resolve the matter and ultimately with the assistance of Abdul Wakil absconding co-accused, uncle of Mst. Nekraz absconding co-accused murdered the deceased by firing and thereafter cut his limbs with an axe. She also stated that limbs were thrown in the fields in order to hide the offence.
15. The confessional statement of the appellant recorded after 4/5 days of her arrest has been subsequently retracted. Having regard to the facts and circumstances of the case we find that the retracted confessional statement finds no corroboration from any independent source. It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to inquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true. It is true that delay in recording the confession by itself cannot render the confession negatory if otherwise it is proved on record that the same was made voluntarily and delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. In the present case we find that the confessional statement was not ,recorded properly and the legal formalities were not complied with. Before considering the evidentiary value of the confessional statement the Court is required to see whether it was true voluntarily made, legally recorded and fits in with the surrounding circumstances of the case. A perusal of the record would show that the question whether she would make confession or not or for how many days she remained in the police custody, which are essential to ascertain the voluntary character of a confessional statement have not been asked.
We therefore, hold that the confessional statement of appellant was neither true nor voluntary nor legally recorded nor it fits in with the attending circumstances of the case. Razi Khan appellant vs. The State Respondent (PLD 1987 Peshawar 104), Naqibullah and another vs. The State (PLD 1978 Supreme Court 21), and The State vs. Minhun alias Gul Hassan (PLD 1964 Supreme Court 813).
16. The next piece of evidence relied upon by the prosecution is the recovery of blood-stained earth stated to have been recovered at the pointation of the appellant from the roof top of the adjoining quarter. The recovery has not been proved satisfactorily. The blood-stained earth has not been sent to seriologist to ascertain whether it was of human origin or not. The recovery does not connect the appellant with the guilt. It is not denied that one piece of tainted evidence cannot be utilized to corroborate another piece of tainted evidence.
17.So far as the statements of daughter and father of the deceased are concerned, these statements do not associate the appellant with the crime in any manner. We are not prepared to place reliance on their statements in absence of strong corroborative evidence which is missing in this case.
18. Having heard the arguments of learned counsel for the parties and having gone through the material on file we find that the prosecution case is based on circumstantial evidence. It is an unseen occurrence and the accused appellants has been implicated due to suspicion; Evidence of confessional statement is weak type and cannot be relied upon unless it is corroborated by independent source. The prosecution case is highly doubtful and as such conviction of the appellant is not maintainable. Resultantly, we accept the appeal, set aside the impugned judgment of conviction and acquit the appellant. The appellant shall be released forthwith from jail is not required to be detained in any other case.
19.The case of absconding accused namely Abdul Wakil son of Mewa Din and Mst. Nekraz wife of Fanoos, residents of Shah Pasand Kalay District Charsadda, shall be kept on dormant file till their arrest and trial.