MST. ZAFRANA Versus THE STATE

S. IBNE ALI, J .--- The accused-appellant Mst. Zafrana was tried, found guilty, convicted under section 302/109, P.P.C. and sentenced to life imprisonment, with a fine of Rs.5,000 or in default to suffer one year's R.I. by the trial Court vide its judgment, dated 26-5-1991. She has now challenged her conviction and sentence before this Court by filing the appeal in hand.

2. The prosecution story briefly stated is that Sher Muhammad (deceased) husband of Mst. Zafrana appellant was shot dead on the night in between 9/10th of May, 1988 in the fields of Khan Haji Gul situated within the limits of Police Station Saddar Bannu. The report about the occurrence was lodged by the convict-appellant on 10-5-1988 at 9-00 hours in the shape of a Murasila Exh. P.A. which was incorporated into F.I.R. No. 163 in Police Station Saddar Bannu on the same day, wherein she stated that the deceased was her husband and she had given birth to four sons and a daughter from him. She further alleged that on account of ailment she had been living in her parent's house, in village Beri Khel Mandan for treatment of the last about two months, where she was informed by one Muhammad Ali about the killing of her husband Sher Muhammad deceased. She at that time charged in the F.I.R. Mir Kaboot and Mir Laiq for the murder of her husband. Motive for the offence as alleged by her in the F.I.R. was a dispute over some landed property between the deceased and the accused Mir Kaboot and Mir Laiq.

3. During the course of investigation it was disclosed that the complainant had falsely implicated Mir Laiq and Mir Kaboot in the case and she had illicit connection with Elam Jan accused and in order to clear their way, they in consultation with each other have done away with the deceased. It is pertinent to note that Elam Jan accused has also been convicted and sentenced to imprisonment for life by the trial Court in a joint trial with Mst. Zafrana convict-appellant, but he is not appellant before us.

4. The co-accused Elam Jan made a confession before the Magistrate, wherein he stated that at the instance of the appellant he has killed the deceased. After the confession statement of Elam Jan co-accused the Investigating Officer arrested Mst. Zafrana the appellant and challaned her in the present case.

5. The convict-appellant Mst, Zafrana and her co-accused were produced before the trial Court, where they did not plead guilty to the charge and claimed trial.

6. In order to prove its case the prosecution in all examined 8 witnesses.

7. P.W.1 Mahmood Khan, A.S.-I. on receipt of Murasila Exh. P.A. has registered the case vide F. I. R. Exh.P.A.I/1.

8. P.W.2 Ghulam Mustafa, Head Constable is a formal witness to the recovery memos. Exh. P.C., Exh. P.D., Exh.P.E., Exh. P.F. and Exh. P.G., whereby various articles were taken into possession by the Investigating Officer during the spot inspection.

9. P.W. Ghulam Qasim, A.S.-I. has stated that he was on Gasht on 10-5-1988 and in the meanwhile Mst. Zafrana met him and reported the matter, which he reduced into Murasila Exh.P.A and sent the same to Police Station Saddar Bannu for registration of a case. Thereafter, he proceeded to the spot, prepared injury sheet and inquest report of the deceased. He also secured blood stained earth from the spot and sealed the same into a parcel vide recovery memo. Exh. P.C. He also took into possession blood-stained leaves of bushes vide recovery memo. Exh. P.D. He took into possession a .12 bore empty vide memo. Exh.P.l/1, a phial containing pellets vide memo. Exh.P.5., a blood stained shirt Exh.P.6 and a blood-stained jacket Exh.P.7 belonging to the deceased brought by the constable from the hospital vide recovery memo. Exh. P.G. He fulfilled all the formalities of investigation and arrested accused Elam Jan on 13-5-1988 and the convict-appellant Mst. Zafrana on 15-5-1988. He also recorded the statements of P.Ws. under section 161, Cr.P.C. Accused Mir Kaboot and Mir Laiq, charged in the F.I.R. by Mst. Zafrana were discharged under section 169, Cr.P.C. Accused Elam Jan was produced before Jehangir Khan, M.I.C. Bannu, who recorded his confessional statement on 15-5-1988, which is Exh. P.Q. on the record.

10. P.W.4 Jehangir-Khan, M.I.C. has recorded the confessional statement of accused Elam Jan as stated earlier.

11. P.W.5 Haq Bayaz has stated that during the days of occurrence he was Chowkidar in Torka Bazar, while the deceased Sher Muhammad was water career in the said Bazar and on the night of occurrence at about 9/9-30 p.m. he had seen the deceased in the company of Elam Jan accused in the hotel of one Daraz Khan while they were taking tea. Thereafter the accused and the deceased smoked Charas outside the hotel and then both of them went to the hotel of one Mazullah Khan situated at a distance of about 10 paces from the shop of Daraz Khan. He stated that he has also seen the deceased and the accused in the hotel of Mazullah Khan at about 10-30 p.m. and at about 11-00 p.m. he heard the report of fire shot and on the next morning he learnt that Sher Muhammad was lying dead in a vial. In his cross-examination he stated that he has got no relation with the discharged accused Mir Kaboot and Mir Laiq. Besides it no material question was put to him in the cross-examination.

12. P.W.6 Jamal Ahmad is the marginal witness to the recovery memo. Exh.P.0.1/1 vide which the Investigating Officer took into possession the crime pistol Exh.P.8 allegedly recovered at the pointation of accused Elam Jan.

13. Abdur Rahim Khan the then S.H.O., Police Station Saddar Bannu appeared as P.W.7 and stated in detail the whole proceedings, which he has conducted during the investigation of the case and denied the suggestions put to him during his cross-examination.

14. P.W.8 Dr. Hafizullah Khan, the then Medical Officer, D.H.Q., Hospital Bannu conducted autopsy on the dead body of Sher Muhammad deceased on 10-5-1988 at 10-15 a.m. and found the following on external examination:--

"(1) An entry wound 1 " x 1 " on the back at the level of 4th thoracic spine one inch on the right side of spine.

(2) A bruise 1 " x 1 " on the right side of forehead.

(3) A bruise 1" x 1.2" on the bridge nose.

Internal examination:

3rd thoracic vertebral process is fractured. 3rd rib on the back fractured. Pleaurae damaged on right side. Trachea is damaged. Right lung damaged. Main arota damaged alongwith the main lungs blood vessels. Stomach healthy."

Death in his opinion was caused due to injuries to vital organs like Arota, pulmonary vessels and lungs, which led to profuse haemorrhage. Probable time between injuries and death was opined to be 15 to 30 minutes and the time between death and post-mortem examination 10 to 15 hours.

15. We have heard the learned counsel for the appellant and learned Assistant A.-G. for the State.

16 At the very outset the learned counsel for the appellant submitted that the only evidence against the appellant is the confessional statement of co -convicted accused Elam Jan and there is no other evidence ocular or circumstantial against her. He further submitted that even the confessional statement of the co-accused Elam Jan is not admissible in evidence because it has been recorded on oath. He further submitted that even the case of the co- convicted accused Elam Jan, who has not appealed against his conviction is full of doubts and he has been convicted by the trial Court on surmises and conjectures. (We have also taken suo motu notice of the case and have issued notice to the State for examining the record against the co-convicted accused Elam Jan separately). The learned counsel submitted that even the weapon of offence, which has been recovered from the possession of co-convicted accused is also not proved. He referred to the statement of Jamal Ahmad (P.W.6), who denied the recovery of the pistol Exh. P.8 from the possession of the co-accused and stated that he saw the pistol in the hand of the S.H.O. at the time of recovery and it was not recovered from the possession of anybody else in his presence. He stated that he is serving as Instructor in Government College of Education Ghoriwala for the last 26 years. He stated that he did not enter the house nor he saw the recovery from the possession of the co-accused and he signed the memo. Exh.P.l/1 under the pressure of the S.H.0.

17. From the perusal of the F.I.R. it is clear that it was Mst. Zafrana the appellant who first lodged the report wherein she charged Mir Laiq son of Mir Kaboot and Mir Kaboot son of Sher Khan for the murder of her deceased husband. She gave the motive that there was a dispute between the two accused and the deceased over a landed property. Later on after investigating the case the Investigating Officer came to the conclusion that the two persons charged by the appellant in the F.I.R. were innocent and the murder has been committed by the co-convicted accused at the instigation of the present appellant. As stated above co-accused Elam Jan was arrested and the police was successful to procure the confessional statement from the co-accused wherein he had admitted that the murder was committed by him at the instance of the appellant. Even in her statement under section 342, Cr.P.C. the appellant stated that the actual murderers are Mir Kaboot and Mir Laiq the step-brothers of the deceased just to grab the property of her husband. She further stated in her statement that due to the influence of an M.P.A. of Illaqa the Investigating Officer exonerated the real culprits from the case and involved her and the co-accused in the case. She further stated that the co-accused is more than 50 years of age, whom she had never seen nor she had any illicit relation with him.

18. The learned trial Court in para. 19 of the judgment has stated as follows:--

"The evidence produced by prosecution and the confession of accused Elam Jan are sufficient piece of evidence in order to establish that accused Elam Jan and Mst. Zafrana were carrying on illicit relation with each other. Though accused Mst. Zafrana was the legally wedded wife of deceased Sher Muhammad but in order to fulfil their illegal lust both the accused Elam Jan and Mst. Zafrana have arranged for the murder of deceased as he being the husband of Mst. Zafrana was material hurdle for them in prosecution of their illicit relation. This motive of instant occurrence advanced by prosecution which persuaded both the accused to arrange the murder of deceased, is not only corroborated from the circumstances of case but it has also got support from the refracted confessional statement of accused Elam Jan which is volunteer and true one. Anyhow, as I have discussed above that there is no direct evidence in the instant case and the prosecution has come forthwith the retracted confession of accused Elam Jan which is further corroborated through the circumstantial evidence, therefore, under the law we have to accept the said confession as it is. While going through the confession of accused Elam Jan, it appears that at the time of commission of murder of deceased by him, he was fully under the influence of accused Mst. Zafrana not only on account of his illicit liaison with her but he was also compelled by her under a threat that if he shall not commit the murder of her husband Slier Muhammad she will charge him for Zina. If this part of confession of accused Elam Jan, is to be considered with reference to the external circumstances of instant case, it appears that accused Elam Jan was totally in the hand of lady accused Mst. Zafrana, who has become so blind in her illegitimate relation with her paramour, the co-accused Elam Jan, that she was bent upon to dispose of her own husband once for ever."

19. From 'the perusal of the above para which has been reproduced from the judgment of the trial Court it is clear that the appellant has been convicted on the retracted confession of the co-convicted accused and there is no other evidence against her.

20. The evidentiary value of confession qua its maker anal others, mentioned in such confession will be clear from Article 43 of Qanun-e-Shahadat, 1984 which is reproduced below:--

"43. Consideration of proved confession affecting person making it and others jointly undertrial for same offence . --- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved--

(a) such confession shall be proof against the person; making it; and

(b) the Court may take into consideration such confession as circumstantial evidence against such other person."

From the plain reading of the above-quoted Article it is clear that the confession against its maker will be taken as a proof, if it is proved and against other person the Court may take it into consideration as circumstantial evidence. The confession of co-convicted accused appears to be not proved on the one hand and on the other the Court may consider it as circumstantial evidence against the co- accused if otherwise proved and no further. In any case it is a well-known principle of criminal jurisprudence that circumstantial evidence howsoever strong it may be, cannot take the place of a proof. How, on earth one can be -convicted on solitary piece of circumstantial evidence in the shape of retracted confession of co-accused in the absence of any other strong piece of corroboratory evidence direct or circumstantial, which is totally lacking in this case. To convict a person on such evidence alone is not only against the spirit of law but also against the law laid down by the superior Courts.

21. For the foregoing reasons the appeal of the appellant is accepted. The conviction and sentence of the appellant is set aside and she is acquitted of the` charge levelled against her. She shall be set at liberty forthwith if not wanted in any other criminal case.

Hereinabove are reasons for our earlier short order

N.H.Q./2062/P Appeal accepted.