GULLAN Versus STATE

This criminal appeal against judgment, dated 18‑12‑1995 passed by Mr. Sagheer Ahmed Qadri, learned Additional Sessions Judge, Chiniot has been filed by Mst. Gullan appellant to challenge her conviction under section 302‑B, P.P.C. whereby she was sentenced to imprisonment for life for the murder of a baby girl named Atia aged about 7 years and to pay compensation of Rs. 50,000 under section 544‑A, Cr.P.C. to the legal heirs of the deceased or in default to undergo further R.I. for two years.

2. The brief facts are that Muhammad Waris complainant reported to the Police vide F.I.R. Exh.P.A. that he was residing in a house adjacent to the house of appellant Gullan. The husband of Mst. Gullan was in Saudi Arabia at the relevant time. The persons with dubious character used to visit the house of Mst. Gullan as she was allegedly of easy virtues. Being a neighbour the complainant Muhammad Waris (P.W.2) asked appellant Mst. Gullan on several occasions that she should not entertain persons of immoral character. This led to a quarrel between the complainant and Mst. Gullan about 15/20 days prior to the occurrence. At that title the appellant/convict threatened the complainant that she would teach such a lesson to the, complainant for the aforesaid accusation of which he shall feel burning throughout his life. The complainant went to Karachi on the following day of the aforesaid quarrel and received a telephone from his brother Muhammad Tariq on 10‑5‑1994, whereby he was informed that his daughter Mst. Atia aged about 7 years was missing from the house. The complainant reached his house from Karachi on 12‑5‑1994 and came to know through his wife Mst. Razia that deceased Mst. Atia had gone out of the house at about noon time on 9‑5‑1994 and did not return since then. A hectic search was allegedly made but without any result. The complainant entertained a suspicion against Mst. Gullan on account of the aforementioned quarrel and threat she had given to him. The complainant alongwith other Mohalladars and respectables inquired from Mst. Gullan in respect of the deceased of which she expressed her ignorance. On 16‑5‑1994 at about 12 O'clock Mst. Gullan was present at the door of her house, when the complainant also passed from there. He found that foul smell was coming from the house of appellant Mst. Gullan, whereupon he contacted his brother Muhammad Tariq, Shahid Ahmad and Mushtaq Ahmad. He told them about the nasty smell. All of them went to Mst. Gullan in her house and inquired about the deceased upon which she hesitantly told them that she had no knowledge of any incident. All of them asked Mst. Gullan about the smell coming from her house whereupon she told the complainant that the latter was accusing her, therefore, she had murdered his daughter. She also said to the complainant that he may do whatever he likes. After such an extra judicial confession, the F.I.R. vas lodged.

3. During the investigation the appellant/convict Mst. Gullan led to the recovery of dead body of the deceased from a room of her house. It was ill putrefaction stage being wrapped in polythene cover and then inserted into a gunny bag. She got it recovered from an iron box which was opened at the time of recovery of dead body. Recovery of the dead body was seen by Muhanur ad Waris (P.W.2), Mushtaq Ahmad (P.W.3) and the Investigating Officer (P.W.7). This recovery was effected at 3‑00 p.m. on the same day when the case was registered. The box P. l in which dead body was lying was taken into possession vide recovery memo Exh.P B.

4. The prosecution examined the witnesses namely Muhammad Waris and Mushtaq Ahmad in respect of extra judicial confession made by the appellant before them and also in respect of recovery of, the dead body effected on the pointation of the appellant. The motive version was given during trial by Muhammad Waris P.W. i.e. the father of the deceased. Medical evidence was brought on record by examining Dr. Faiz Ahmad Faiz (P.W.6), who prepared post‑mortem report Exh.P.D.

5. Appellant/convict was examined after conclusion of the prosecution evidence. She set up a total denial and deposed that she was falsely implicated in this case on account of enmity.

6. The learned trial Judge recorded the conviction vide impugned judgment as stated above.

7. The complainant also instituted Criminal Revision No.52 of 1996 whereby he prayed that since the murder committed by Mst. Gullan appellant/convict was cruel and heartless, therefore, she may be awarded the normal penalty of death upon her conviction under section 302, P.P.C. A prayer was made that the amount of compensation be also enhanced.

8. Since both the matters arise out of the common judgment, therefore, the appeal as well as the revision petition are proposed to be disposed of through this single judgment.

9. It is clear from the above facts that the prosecution relied upon the motive, the evidence relating to extra‑judicial confession made by the appellant/convict, the recovery of dead body on her pointation from her house and the medical evidence to support its version.

10. The learned counsel for the appellant has submitted that motive in this case could not be proved as no other witness was examined to corroborate Muhammad Waris i.e. the complainant P.W. It is for that reason that the same was also disbelieved by the learned trial Court. It was also contended that the prosecution relied upon the extra judicial confession, which has repeatedly been held to be a very weak type of evidence until and unless materially supported by circumstantial evidence of unimpeachable character. The fact that the dead body of deceased was allegedly recovered has been denied by the appellant/convict by deposing in her statement under section 342, Cr.P.C. that a dead body of an unidentified deceased child was recovered from a deserted house near her house and she was falsely implicated in this case on account of her enmity with the complainant, who was pressing her to deliver back the children which she had got from her previous husband Ghulam Shabbir after getting divorce from him through the Court and on winning the case for custody of children. Since she had refused to give back the custody of her children to her previous husband against the wishes of the complainant, tfterefore, he turned hostile to her and on finding a dead body of some unidentified deceased child from a nearby house as aforesaid, she was implicated falsely in this case. It was, therefore, submitted that the case of the prosecution was highly doubtful and the learned trial Court fell in error to believe the evidence brought on record, and ultimately to record the impugned conviction and sentence.

11. The learned counsel for the State assisted by the learned counsel for the complainant vehemently urged that since the occurrence remained unseen, therefore, extra judicial confession made by the appellant was rightly considered as it was corroborated by recovery of dead body at the instance of appellant/convict and also by the medical evidence examined at the trial.

12. Lastly it was contended that the appellant /convict though a lady had committed brutal murder by taking the life of an innocent baby girl aged about 7 years only because she was restrained to be of immoral character by her father/complainant, therefore, she was liable to be awarded capital punishment and also heavier fine.

12. I have considered the foregoing submissions. It is true that extra?judicial confession is considered to be a weak evidence, but if it inspires confidence that the story revealed during the confession by a culprit is supported by the attending circumstances, it can be safely accepted otherwise the offenders confessing an unseen occurrences will go scot free. The Court's approach while appraising the evidence should be dynamic and not static. It should keep in mind all facts and circumstances of the case and if be satisfied that factually the person charged with the offence had committed the same, it should record the conviction though there might have been some technical lapse on the part of the investigating, agency/prosecution provided the same had not prejudiced the accused in the fair trial. The cumulative effect appears to be that it excludes any reasonable hypothesis of the appellant's innocence. Looking at the facts of the case in hand from that angle it should be borne in mind that the complainant is the father of the deceased and there is no long lasting enmity between him and the appellant except the aforementioned quarrel. In such a situation the complainant being the father of the deceased would not like that he should spare the actual killer of his daughter and may involve the appellant if she was actually innocent. Since the motive story was revealed only by Muhammad Waris P.W. i.e. the complainant and was not corroborated by any other witness, as according to the complainant, there was none when that incident had taken place therefore, as a matter of abundant caution, the trial Court had rightly come to the conclusion that the motive could not be proved beyond any reasonable doubt against the appellant Mst. Gullan. However, that aspect of the case will not demerit the whole prosecution story which otherwise stands on strong footings. In addition to Muhammad Waris, the father of the deceased, another respectable and independent person from the area namely Mushtaq Ahmad P.W.3 supported the story in respect of extra judicial confession made by the appellant/convict before him and the complainant. The aforesaid Mushtaq Ahmad is the Chairman. Anjaman‑e‑Dokandaran in the area and as such would not only be a disinterested witness, but would be considered as a reliable person in the matter. He and the complainant had clearly stated that when they inquired from the appellant about the foul smell coming from her house, she clearly told that she had murdered the deceased for the reasons that Muhammad Waris P.W. had attacked her chastity by dubbing her to be an immoral woman having connections with persons of loose character. Since the murder was speaking by itself by emitting foul and stinking smell from appellant's house due to the putrefaction of the dead body, the truth perforated from her tightly closed lips and she voluntarily admitted that she had killed the deceased. There is also in evidence that there was hectic search for the deceased not only by her kith and kin but also by the rest of the residents and in that situation, and after the dead body had started putrefying, the appellant/convict had no option but to speak out the truth as it had become difficult for her to hide the murder of an innocent baby girl. The dead body of the deceased was recovered in presence of the aforesaid two witnesses and the Investigating Officer on the pointation of the appellant from a room of her house lying in a box. A question would arise as to why the appellant had kept the dead body in her house after killing the deceased. There is no difficulty in understanding her problem in respect of the disposal of the dead body. Being a small place and due to hectic search for the deceased, it would have not been possible for the appellant to secretly dispose of the dead body for which she had made all possible arrangements by wrapping the dead body in polythene cover and inserting it in a gunny bag, but could not do so due to the fear of her being caught red‑handed. However, the fact remains that the dead body was recovered from her house on her pointation which is a strong corroborative factor to her extra‑judicial confession made before Muhammad Waris and Mushtaq Ahmad P. Ws. Though Muhammad Waris is father of the deceased, but it is not likely that he would falsely implicate the appellant by substituting her for the real culprit. However, if any independent evidence i5 required, the same is provide by Mushtaq Ahmad who is not only a respectable person of the locality but is disinterested and natural witness. He can, therefore, be safely relied upon about the extra‑judicial confession.

13. The medical evidence also supports the version given in the extra?judicial confession. Dr. Faiz Ahmad Faiz, Medical Officer, Tehsil Headquarters Hospital, Chiniot while appearing as P.W.6 stated that the dead body was identified by Haji Muhammad Umar P.W. and it was in the process of putrefaction giving foul smell with total disfiguration of features. The cause of death was asphyxsia resulting from air ways obstruction possible due to throttling. The body was found to have been partially burnt in an attempt for its destruction after death. This part of the medical evidence shows that the story revealed in the extra judicial confession is not only probable but surely truthful as it stood corroborated so far as emission of foul smell from the dead body and also because of the cause of death and an attempt to set the dead body at fire to conceal the murder. This also upsets the story of the defence that in fact an unclaimed burnt dead body was traced by the appellant in a nearby building and after collecting the same, the complainant involved the appellant falsely in this case. There remains no doubt about the identity of the dead body because it was identified by P.W.1 Muhammad Umar to whom the deceased was closely related being a grand‑daughter of his brother Muhammad Gulzar i.e. the father of the complainant. That witness was never cross‑examined which showed that his statement was accepted as correct regarding identification of the dead body. In addition to that the Investigating Officer also stated that the dead body though partially putrefied, yet it could be identified by its face.

14. In view of my above discussion, I come to an irresistible conclusion that it has rightly been held by the learned Trial Court that the prosecution had proved its case beyond any reasonable doubt against the appellant/convict for the murder of the deceased Mst. Atia.

14‑A. Now a question would arise whether the sentence of imprisonment for life awarded in this case satisfies the ends of justice. The motive in this case was not proved, which would show that the origin of murder remains shrouded in mystery. In such a situation though it was a callous murder, but the sentence of imprisonment for life would meet the ends of justice in the given situation. Likewise, the amount of compensation of Rs.50,000 appears to be adequate and there seems to be no ground for enhancing the same. The appeal being meritless is dismissed and the sentence awarded to the appellant Mst. Gullan alongwith compensation of Rs.50,000 is maintained. The benefit of section 382‑B, Cr.P.C. shall remain available to the appellant as directed in the impugned judgment.

15. As a result of my above finding, the revision petition is also dismissed.

H.B.T./G‑108/L ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.