STATE Versus MST. MUKHTARAN

MANZOOR HUSSAIN SIAL, J.‑ Mst. Mukhtiaran (26) and Shan Muhammad (21) were tried under section 302/34, P:P.C. by Additional Ses sions Judge, Multan, for the murder of Faiz Muhammad. The learned trial Judge vide his judgment dated 18th February 1.976 acquitted both of them. The State assailed the order of their acquittal by means 9f tills appeal.

2. According to the prosecution, Mst. Mukhtiaran was the fourth and last woman married by the deceased. He was an old man and could not sexually satisfy her. She developed illicit intimacy with Shan Mohammad accused; three months prior to the occurrence. The deceased had seen her talking with Shan Mohammad a week prior to the occurrence and gave her beating, whereupon the accused conspired to do away with Faiz Mohammad in order to celebrate their marriage.

3. On the night between 4th and 5th August 1973, when the deceased had gone to offer Isha prayers in the mosque. Mst. Mukhtiaran contacted Shan Mohammad from the window of her house and asked him to come in. He scaled over the wall and entered the house. She made him sit in a room. The deceased, on his return from the mosque, went on the roof to sleep. At about midnight when he had slept, she took Shan Mohammad on the roof, and both of them murdered Faiz Mohammad with chhuri. They buried his dead body in a room of the house.

4. This version of the occurrence was given by Mst. Mukhtiaran on 7th September, 1973, in the hospital where she was admitted and had given birth to a female child. She confessed her guilt before Mohammad 1qbal (P.W. 11), Reham Din (P.W. 12) and Ihsan and Nizam Din (not produced). They went to the house of Shan Mohammad on the same day and met him in a lane, where on their inquiry he also affirmed her statement. Thereafter the witnesses went to Police Station, Karorpacca,‑ where Mohammad Iqbal P.W. lodged F.I.R. (Exh. P.A.) on 7th September 1973 at 4.00 p.m. which was recorded by Karam Hussain, S.I. Consequently a case under sections 302/364, P.P.C. was registered against the accused..

5. The Investigating Officer reached the spot, deputed Mohammad Sharif, F.C. to guard the house of the deceased and himself went to Hospi, tar where be arrested Mst. Mukhtiaran. She produced key P. 1 before him which was taken into possession vide memo Exh. P.B. On 8th September. 1973, he applied to A.C., Lodhran for deputing a Magistrate to supervise the disinterment of the dead body. On 11th September, 1973, he arrested Shan Mohammad and recovered watch P. 2 vide memo Exh. P.C. On the same day Shan Mohammad led to the recovery of blood‑stained chhuri P. 3 from a Jala of a house which was secured vide memo. Exh. P.D. Another watch P. 4 recovered from an attached case was taken into possession vide memo Exh. P.E.

6. The Investigating Officer with Dr. Mohammad Afzal Mohammad Ameer Khan, Naib Tehsildar, and the accused, went to the place of occurrence. The accused pointed out the place where the dead body was buried. The place was dug by Mukhtar and Gaman Masih and the dead body of the deceased was exhumed which was identified by Mohammad Ishtiaq (P. W. 8).

7. Dr. Mohammad Afzal conducted the post‑mortem and found three stab wounds in the . abdomen of the deceased which are described as under :‑

(1) A stab wound l " x " opening into the abdominal cavity on tire right upper abdomen.

(2) A stab wound 2 x " opening into the abdomen 3" below injury No. I on the right side.

(3) A stab wound l " x " opening into the abdomen on the left lower part of the abdomen.

8. On dissection of thorax all the organs were decomposed and the heart was empty. He found abdominal wall intact from front but decomposed from side and back. He declared all injuries to be antemortem. The cause of death, according to him, was haemorrhage and shock resulted by these injuries, which were sufficient to cause death in the ordinary course of nature. He gave probable time between injuries and death as 15 to 30 minutes and between death and post‑mortem about four to six week.

9. On 12th September, 1973, Mst. Mukhtiaran was discharged from the Hospital. She led to the recovery of kassi P. 8 and wahola P. 9 from inside a room. These articles were taken into possession vide memo Exh. P.H. The chhuri P. 3 was reported by the Serologist to be stained with human blood.

10. Shan Mohammad accused pleaded innocence and repudiated the charge under section 302/34, P.P.C. He also retracted the confession and denied the recovery of chhuri P. 3 at his instance. Similarly, Mst. Mukhtiaran when examined under section 342, Cr. P. C. stated that she was implicated falsely by Mohammad Iqbal P.W. who wanted to develop. illicit relations with her and to remove her husband from the scene in order to marry her. She denied the recovery of Kassi P. 8 and Wahola P. 9 and also retracted the confession made before Mohammad Iqbal and Reham Din P.Ws.

11. The learned trial Court rejected the prosecution version and acquitted the respondents.

12. Learned counsel for the State argued that the trial Court has erred in discarding the prosecution evidence on flimsy grounds. He submitted that the evidence of extra judicial confession was corroborated by the evidence of recoveries. According to him, the prosecution has succeeded in proving the guilt of the accused and they were convicted accordingly.

13. On the other hand, learned counsel for the respondents not only controverted the submissions made by his adversary at the Bar, but also pointed out that the evidence led by the prosecution was discrepant on material points and did not inspire confidence. He maintained that the order of acquittal passed by the trial Court was proper and not to be interfered with.

14. Undoubtedly, the occurrence in this case was witnessed by none and the prosecution had to rely only on circumstantial evidence which consisted of medical evidence, evidence of extra‑judicial confession, recoveries and the motive.

15. The prosecution produced Mohammad Iqbal complainant and Reham Din P.W. to prove the confessions, made by the accused before them. Mohammad Iqbal P. W. a close relation of Faiz Mohammad deceased, was brought up by the deceased and was living in his house at the time of occurrence. Similarly Reham Din. a friend of Mohammad Iqbal, was a pupil of the deceased. According to the prosecution Mst. Mukhtiaran confessed her guilt before them while she was in the hospital We are not impressed with the prosecution case that after a month and in the absence of any compelling cause she would make inculpatory statement before them, particularly when none knew about the occurrence and there was no evidence, whatsoever, connecting her with the crime. Reham Din admitted that she observed pardah from him, but gave no plausible explanation for visiting her in the hospital, where she did not hesitate to make confession before him. It was not 'the prosecution case that she confessed her guilt because she was taken into confidence by the P. Ws. and they assured some help. She being the wife of the deceased, and aware of the close relations of the P. Ws with him would not normally make confession before them.

16. It also appears unnatural that the witnesses after hearing the confessional statement, did not approach the Police and instead went to Shan Mohammad who was already prepared to make confession before them. The circumstances narrated by the P. Ws. in which confessional statements were made by the accused before them shake their credibility. In Ghulam Mohammad v. State (P L D 1971 Lah.850), it was held:

"The extra judicial confession is a weak specie of evidence and before it is made the basis of conviction, it has to be subjected to close scrutiny."

Similarly in Rahzan v. State (P L D 1960 Lah.24), it was held

"As against judicial confessions, extra‑judicial confessions call for greater caution and care in their acceptance. Where such confessions are oral the Court should not act on them, unless they are proved by evidence of the most unimpeachable character."

17. In our view the evidence of extra judicial confession cannot .relied upon without corroboration by other authentic evidence and further it must be determined, first, whether the confession was actually made by the accused and, secondly, whether it was made voluntarily and truly.

18. In the instant case, the very factum of confession, having bee made by the accused, is doubtful and we feel no hesitation in discarding such evidence from consideration.

19. We are not impressed by the version of the occurrence given by the prosecution because it appears far from reality. The deceased was stated to be sleeping on the roof in the month of August when he was assaulted by the accused with chhuri and died half an hour, after sustaining injuries, as testified by the doctor. In these circumstances, the occurrence could not have gone unwitnessed by the residents of adjoining houses and Mohammad Iqbal P.W. who claimed to sleep during summer in the street adjoining the baithak of the house. Neither Mohammad 1qbal, nor minor children of Faiz Mohammad deceased who were inmates of the same house, learnt about the occurrence, until after a month when Mst. Mukhtiaran herself disclosed regarding the occurrence to Mohammad Iqbal P. W.

20. According to the, prosecution, Mst. Mukhtiaran confessed her guilt on 7th September 1973, and said that the dead body was‑ buried in her house. The dead body was exhumed on 11th September, 1973 when Shan Mohammad was arrested, and no reasonable explanation was offered for this delay. This leads to an irresistible inference that it was delayed to make it at the instance of Shan Mohammad in order to connect him with the crime. Even the posting of the Foot Constable to guard the house of the deceased, as asserted by the prosecution, was not borne out by a corresponding entry in the Police Roznamcha.

21. There is no evidence to prove motive, of illicit relations between the accused. Even Mohammad Iqbal PW, who resided in the same house, admitted that he did not know about it, as he never saw them engaged in objectionable talk, nor was he told by Faiz Mohammad deceased.

22. The evidence of recovery of chhuri P 3, at the instance of Shan Mohammad required rejection, because it was made from Jalla of a house which did not belong to him, nor could it retain blood stains on it for nearly two months in summer.

23. . As pointed out, the present case rests only on circumstantial evidence, and the fundamental principle of universal application, in cases depending on such evidence, is that in order to justify the inference from guilt, the incriminating facts must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. In Siraj v. The Crown (P L D 1956 F C 123), it was held :‑

"In dealing with the question of sufficiency of circumstantial evidence to sustain a conviction, it has to be borne in mind that if, on the facts proved, no hypothesis consistent with the innocence of the appellant can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothsis compatible with the innocence of the appellant, the case will have to be treated as one of no evidence and the conviction and sentence in that case will have to be quashed."

In Mohammad Nazir Hossain Sarkar v. The State, it was also held

" ....it is a fundamental rule in such cases of circumstantial evidence that an accused person cannot be found guilty unless all reasonable hypothesis, which are consistent with his innocence, have been excluded .........

24. In the light of the principle highlighted hereinbefore; for the determination of guilt or innocence of the accused in a case of circumstantial evidence, and by its application to the facts of the instant case, we are satisfied that the prosecution evidence brought on the file is certainly not of such authenticity and character as to exclude all hypothesis of the respondents' innocence. We are, therefore, of the view that the prosecu tion has failed to establish its case against the respondents beyond reason able doubt:

25. In the result, we find no merit in this appeal and dismiss it.

Appeal dismissed.