MST. KAISARI Versus SARKAR

1. MUHAMMAD SHARIP, C. J .-The accused-appellant is a young woman of 19/20 years of age who was tried by the Sessions Judge, Muzaffarabad on a charge under section 302, Penal Code for committing the murder of her husband Shahadat Khan with the assistance of Sain approver on the 1st of July 1971, At Village Jagran, Tehsil and Police Station Authmuqam. The learned Sessions Judge by his order dated 30-11-1971 convicted her for an offence under section 302 and sentenced her to death, subject to confirmation by this Court. The convict has filed this appeal through the Superintendent of Jail, Muzaffarabad. At the request of the convict Mr. M. A. Farooq, Advocate argued the case as amkus curiae on her behalf. The file has also been submitted by the Sessions Judge for confirmation of the sentence. Both the appeal and the reference for confirmation shall be disposed of by this order.

2. The prosecution story may briefly be stated as follows: -

3. It is said that Mst. Kaisari accused had an intrigue with Sain approver. She wanted to get rid of her husband Shahadat Khan deceased with whom she was married much against her wishes, about a year before the occurrence on 1-7-1971. It is stated that the illicit relations between the accused and the approver started before the marriage of the accused took place with the deceased. An effort on the part of the approver to get the assent of the father of the girl for giving her in marriage to him did not materi alize. Mst. Kaisari accused though did not like the match yet out of modesty could not muster enough courage to reject the proposal at the time of the marriage. One year of the married life was a story of constant disagreement between the spouses. She very often went to the house of her parents during the period and for the most part of the year stayed there 5 months prior to the occurrence, it is alleged, she was given beating by her husband. Thereupon she left the house of her husband and came to the house of her father where she stayed till the end of June 1970. On enquiry by the approver as regard to the reasons for her a staying with her husband she complained to him about the cruel treatment of her husband and suggested to the approver that Shahadat Khan should be done to death. The accused alongwith the family moved to Dhoke (Pasture) Chharak where the deceased went for reconciliation in order to bring her back to his house. It is here that the first part of the drama is played. Mst. Kaisari accused informed Sain approver about the visit of Shahadat Khan to their Dhok and told him that under some pre text she would bring him outside the Dhara and asked him (approver) to be ready to finish Shahadat Khan,. On the night between the 28th and 29th of June 1971, as conspired earlier when the deceased came out of 'Dhoke' alongwith accused he was attacked by Sain approver who inflicted two blows with axe on the person of the deceased. One landed at the back of his head and the other on the arm. The deceased on receiving the injuries rushed back to the Dhara where mother of the accused gave him first aid by applying bandage on the wounds. The injuries, it is alleged, were not fatal and the deceased alongwith his wife left for Dhoke Dana the next day wherefrom they reached village Jagran on 1st July 1971, at about Zohar time. It is here that the last part of the drama was acted in the evening.

4. Sain approver who after inflicting injuries on the person of the deceased on the night between the 28th and 29th June 1971, had gone to attend a marriage came to the village Jagran in the evening and attracted the attention of Mst. Kaisari accused by blowing a whistle. She met him outside the house: and informed him that Shahadat Khan was lying all alone in the house, therefore, he should come inside the house after sometime. Con sequently Sain approver entered into the house at Maghrab time. Mst. Katsari accused at the time was sitting beside the bed of the deceased. She seeing the approver got up, took the axe P-1 that was hanging on a nail fixed on the wall and at once inflicted a blow on the face of the deceased which caused severe commotion to the body of the deceased. The approver thereupon held the deceased from legs meanwhile the accused dealt the second blow on the face. Thereafter she asked the approver to leave the house lest the may not be noticed by someone. After sometime she came out of the house, chained the door from outside and went to the house of Mst. Maiwa Jan wife of Rahmatullah P. W. where Hashmatullah P. W. I brother of Shahadat Khan deceased arrived after some time. On enquiry she told him that Shahadat Khan is slaying in his own room. Hashmatullah lighted the wooden lamps and went to see his brother in his house. The door was chained from outside. On entering into the house he found his brother lying dead. There were two injuries on his person. He came back to the house of Rehmatullah and informed him about the death of Shahadat Khan and asked him to keep a watch over the accused through his wife. Then they informed Mir Zaman and Gul Zaman. On the text day he lodged F. I. R. Exh. P. A , at the Police Station Authrnuqam on which Raja Abdur Rauf S. H. O. Police Station Authmuqam investigated the case and recovered axe P-1 at the instance of the accused on 3-7-1971 from beneath a wooden box lying in the room where the deceased was done to death. Axe P-2 was recovered vide Exh. P. D. at the instance of the approver on 8-7-1971 from his house. Both these weapons were sent for Chemical examination but the source of Alwa the blood could not be ascertained on these articles. The post -mortem examination on the dead body was conducted by Dr. Atta Ullah Butt, C. M. O., Authmuqam on 4-7-1971 who found the following injuries on the person of the deceased: -

(1) Incised wound right lower forearm 3' x 1 x 1'.

(2) Incised wound left lower face 5' x 2" x 1 . Left lower jaw broken and exposed the wound.

(3) Incised wound left upper lip extending in to left side of face 3' x 1 x 1'. The left upper jaw broken and exposed through the wound.

(4) Incised wound right back of head 3 x 1 x 1' the occi pital bone at the place is broken.

5. In his opinion the deceased lost his conscious after receiving injuries Nos. 2, 3 and 4. The accumulated blood in the mouth cavity or account of injuries Nos. 2 and 3 that caused obstruction to respira tion. Consequently he died due to asphyxia. The death took place within half an hour after receiving injuries Nos. 2 and 3. In cross-examination he stated that the blood clots of all the injuries seemed to be of the same duration and the condition of all the wounds was same and no wound was infected. In re examination he further stated that it was not possible for him to distinguish whether the injuries were inflicted at one and same time or at different times because the condition of the wounds was same.

6. The conviction rests on the statement of the approver which on close examination does not find satisfactory corroboration from independent evidence. The first point that requires determination in this case is whether the solitary evidence of the approver is to be relied upon or not. We have examined the record and we do not think that in the circumstances of the case it would be quite safe to convict the accused person merely on the evidence of the approver. In the first place the approver seems to have taken good care to take as little responsibility on him self as possible. The hatching of the plot, its execution and infliction of the fatal blow to the accused on 1-7-1971 is ascribed to the accused and as regard to himself he says that he only held -the deceased from legs when after receiving first blow with the axe a violent commo tion started in the body of the deceased and kept him on in that position till the second blow was dealt by the accused in quick succession and then at the instance of the accused he left the place to avoid apprehension.

7. Besides this we do not find any satisfactory corroboration of the approver forthcoming from independent evidence. Approver's statement is inconsistent with the statement of Dr. Atta Ullah Butt who performed the post-mortem examination. According to the approver's statement two injuries that is one on the arm and the other on-the back were inflicted by him at Dhoke Chharak on the night between 28th and 29th June 1971. They are injuries Nos. 1 and 4. The remaining two injuries namely injuries Nos. 2 and 3 were inflicted on 1st July 1971, by the accused at village Jagran. In other words the age of the injuries that were inflicted by approver was already about 72 hours when two injuries were inflicted by the accused but the Doctor who performed the post- mortem examination found the condition of wounds same and the blood clots of all the injuries seemed to him to be of the same duration. If the injuries were inflicted at different times as is stated by the approver or recorded in the retracted confessional statement of the accused, then the condition of the wounds would not have been the same. According to Modi pus appears in about 36 to 48 hours in a wound which has not been properly treated but according to the doctor no wound was infected. In Glaister Medical Jurisprudence, page 252 it is laid down that in 48 hours to 72 hours spindle shape cells which seem at right angle to the vessel are present. There is no evidence that the wounds were properly treated and the dust alleged to have been put on the wounds before applying bandage was not noticed by the doctor. Thus it would appear that the medical evidence does not corroborate in material particular the evidence of the approver, rather it negates that.

8. The part of the story about the first occurrence at Dhoke Chharak on the night of 28th June 1971, as regard the fact that the deceased told the prosecution witnesses that Sain inflicted two injuries at his person at the instance of his wife and that he recognised him, cannot be believed to be true for the following reasons: -

(1) No husband after learning about the conspiracy of his wife to do away with his life and in pursuance of such con spiracy when grievous hurts are caused to him, would take her to his house to provide her further chance of executing her nefarious designs.

(2) The absence of the report at the police station about that incident before the death of Shahadat Khan further lends support to the view that this story has been designed and decided afterwards.

(3) The age of all the injuries being same further belies the story of the first occurrence.

(4) It is stated by the Doctor that after receiving injuries Nos. 2, 3 and 4 the deceased must have lost conscious. No question has been put as regard to the injury No. 4 whether the injury by itself was sufficient to render the deceased uncons cious but taking into consideration the nature of the wound and the place at which it was inflicted and the fact that occipital bone at the place was broken it can be said that by itself injury No. 4 was sufficient to render the deceased unconscious. This injury was 2 " x 1 x 1 and it cannot be believed that after receiving such an injury that had broken the occipital bone the deceased could cover 10 to 12 miles on foot over rugged hills of that part of the country.

9. The learned Sessions Judge in convicting the accused has placed reliance on the retracted extra-judicial confession and judicial confession of the accused which according to him corroboration of approver's statement in material particular. No doubt judicial confession of the accused even if retracted would corroborate in material particular approver's statement but before relying on the judicial confession that has been retracted it is necessary to examine whether the statement was of voluntary nature and whether the influence of the polite was still continu ing or not when her judicial confession was recorded. The learned Sessions Judge failed to take into consideration the circum. stances in which the judicial confession was made by Mst. Kaisari and the fact that it was retracted on the first chance. Mst. Kaisari accused was arrested on 2-7-1971 by the police. Even prior to the arrival of the police she was practically detained as suspect by Qazi Abdur Rahman, B. D. Member. Axe Exh. P-1 the alleged weapon of offence was recovered at her instance on 3- 7-1971 after which she remained under police custody, till 20-7-1971 when her judicial confession was recorded by the' Additional Sub-Judge, Magistrate 1st Class, Muzaffarabad. This long detention in police, custody of a lady would lead to the inference that the influence of the police was still continuing when she was examined. It is not clear from the record that she was kept for some time in judicial lock-up or was allowed to consult some Advocate before making the statement.

10. It may be pointed out that S. D. M., Authmuqam acting under section 167 has been granting remand in Police custody on flimsy grounds. It is a well-settled principle of law that accused should not be remanded to police custody merely on the ground that h the presence of the accused is necessary to finish the investigation or to get from the accused a confessional statement. The accused was produced before the S. D. M. on 6-7-1971 when 10 days' remand in police custody was granted on the ground that the weapon of offence is to be recovered from the accused. Then again they were produced on 1.6-7-1971 and remand in police custody was requested on the ground that the presence of the accused was necessary for completion of the investigation. We have stated above that this is not a good ground for remand ing the accused to police custody. The period of remand to police custody ought to be restricted to the necessity of the case. So far as Mst. Kaisari accused appellant is concerned when she was produced before the S. D. M., Authmuqan on 6r-7-71 the S. D. M. either failed to weigh the evidence in order, to decide whether the accused was to be remanded in police custody or not; or the evidence as regard to recovery of the weapon of offence at the instance of Mst. Kaisari subsequently sought to be proved against her having taken place on 3-7-1971. was not on the record. Apart from that there is no justification at all on 16-7-1971 for remand in police custody of Mst. Kaisari. Her confessional statement on 20.7-71 in these circumstances 'hen it was recorded after her remaining for 18 days in police custody cannot be held to be voluntary one. In short the confessional statement was made after remaining for 18 days in police custody and was retracted at the earliest opportunity. It cannot be acted upon without corroboration by trustworthy evidence which is not forthcoming in this case. The evidence of the approver itself is tainted one and requires corroboration in material particular. The retracted confession of the accused is also tainted one and requires corroboration by trustworthy evidence. One tainted evidence cannot corroborate outer tainted

11. The extra judicial confession, it is alleged, was made by Mst. Ksisari before Hashmritullah, Qazi Abdul Rahman, B. D. Member and Matiullah, Shahwali and Abdur Rahman. In fact it was Qazi Abdur Rahman, B. D. Member to whom, it is alleged, the extra-judicial confession was made. Qazi Abdur Rahman does not state that Israil was present at the time while Israil himself states that he was also present at the time when extra judicial confession was made by the appellant. There is difference as regard the words used by the accused-appellant in making extra-judicial confession. Israil states that Mst. Qaisari stated that at Chharak it was Sain who gave beating and at Gorial it was she who gave beating to the deceased in presence of Sain. Matiullah states that on enquiry by Qazi Abdur Rahman accused stated that she did not like the deceased so she has killed hire. Now she will marry Sain and she did not utter any other words, It is further stated by Matiullah and Rahmatullah that the oral confessional statement by the accused was made after the departure of Israil and Hashrnatullah for the police station. Rahmatullah son of Najibullah states that the accused on enquiry told that it was she who gave beating to the deceased on bights and as well as here below. Thus it would appear that all the witnesses differ as regard the actual words used by the accused in her oral confession. This was not admitted by her in her statement under section 342. She, it is alleged, made extra judicial confession in the morning of 2-7-1971 even before her arrest by the police and also immediately after her arrest but strange enough no effort was made to get her confession recorded by a Magistrate till 20-7-1971. This long delay detracts from the value of the testimony.

12. The confession to Qazi Abdul Rahman who is B. D. Member while the accused in detention as suspect though not actually under custody, in our opinion, is not admissible. After the introduction of B. D. system members of the B. D. have taken the roll of I Lamabardars and Zaildars. In fact they have become stock witnesses of the police and their agents and they work more or less under the influence of the police and an oral confession before B. D. member while the accused was under detention cannot be relied upon.

13. The recovery of the axe at the instance of the accused does not fend any support to the statement of approver as the source of blood sould not be identified by the Serologist. It was recovered from the same house where the deceased was done to death. Mst. Kaisari being wife could have knowledge of the axe lying in the house at any particular place. Recovery of the axe at her instance without proof of human blood on it would not lead to an, inference of guilt or corroborate the evidence of the approver.

14. The learned Sessions Judge seems to have been much in 0uenged by the statement of Muhammad Yusuf who is brother or Mst. Kaisari accused but on the close examination of the statement of Muhammad Yusuf we are unable to agree with the finding of the learned Sessions Judge. Of course, he states that the accused after Nikkah was not living with her husband and that on 28-6-1971 the deceased received injuries at the hands of Sain approver but he does not say that accused at the time also went outside the Dhara alongwith the deceased when injuries were inflicted on his person by Sain.

15. The net result of the discussion above is that there satisfactory corroboration to the approver's evidence, from any independent evidence. The judicial confession svgs retracted at earliest and was made after long period of detention in police custody cannot be held to be voluntary. No human blood has been proved on the axe recovered at the instance of the accused and oral extra-judicial confession has neither been satisfactorily proved nor can be held to be admissible. Therefore, giving the benefit of doubt we acquit the accused, She may be released at once. This also disposes of the reference for confirmation of death-sentence.

16. Appeal accepted.