P L D 1983 Peshawar 218 (PLP)

USMAN ALI SHAH, ACTG. C. J.--‑The appellant Mst. Zarina was tried alongwith Abdur Raziq acquitted accused for the murder of a baby newly born to the appellant. The prosecution case is that the birth of the baby was the result of illicit relations between the two accused, therefore, immediately after the birth of baby, the accused killed the baby and buried it, which was later exhumed at the behest of the appellant. The two accused were put to trial in the Court of Additional Sessions Judge who on the basis of evidence produced by the prosecution found the appellant guilty of the offence, accordingly convicted her and sentenced her to death. As regards the accused Abdur Raziq, the learned trial Judge did not find him guilty and acquitted him, vide his judgment dated 16‑1‑1983. The appellant feels aggrieved of her conviction, therefore, she has filed the present appeal: The murder reference is also before us. We propose to dispose of the appeal and murder reference together by this one judgment. We have heard the learned counsel for the parties and perused the record. The prosecution was moved in the case on the report of Ghulam Sarwar P. W. 8, the father of the appellant. He alleged that when the baby was born to the appellant she told him that accused Abdur Raziq had raped her as a result of which she conceived and in consequence a baby was born to her, that after the birth of the baby accused Abdur Raziq took the baby. The report was recorded by Habibullah Khan S. I. P. W. 9 and thereafter he investigated the case in the course of which he exhumed the dead body of the baby at the pointation of the appellant from a place in the house of her father. The dead' body of the baby was then sent for post‑mortem examination which was conducted by Dr. Shahjehan Khan in whose opinion the baby was born alive. The learned trial Juge was mainly impressed by the medical evidence according to which the baby was born alive. He, therefore, held that after birth the baby was killed by the appellant. At the trial the appellant stated that she is the legally‑wedded wife of her cousin Gulsher from whom she conceived as a result of which a dead child was born to her. The learned trial Judge repelled this plea of the appellant and observed in support of his conclusion that if what the appellant had stated was, correct, she would have produced her own mother and the mother of Gulsher to testify to the version of the appellant. Thus as stated above the learned trial Judge was convinced that the baby was born alive and after birth the appellant put it to death. On going through the evidence on record, we have not been able to agree with the learned trial Judge that the baby was surely born alive and thereafter was killed by the appellant. There is no imperative and positive evidence in this behalf. Correct that the medical witness has stated that the baby was born alive but as it is his opinion, it cannot bear the stamp of belief unless it is supported by ocular evidence. The prosecution failed to produce a single witness to claim that the baby was born alive in his presence and was killed by the appellant, therefore, the presumption will be that the baby was born dead. Authorities are not lacking in a case of this nature. We would refer in this behalf to one such authority in the case of Mst. Hussan Pari v. Emperor (A I R 1941 Pesh. 22) to show that in the case of young, woman giving birth to her first child and entirely unattended during the process no presumption can reasonably be made that the child was born alive. It is conceded that the birth of the baby to the appellant in this case was not attended nor any person witnessed when the appellant was in the process of delivering the baby. It seems that the settled law attracting to this case was not present to the mind of learned trial Judge, therefore, the medical opinion upon which he mainly relied cannot be substituted for the settled law. Now as the prosecution did not produce a single witness in support of ifs charge against the appellant that in his presence the baby was born to her alive and was killed by her, there can be no escape from the conclusion the probability of which commends itself to the senses of a reasonable mart its the case of this peculiar nature that the baby was born dead to the appellant. The upshot of the above is that we hold that the baby was born to the appellant dead, therefore, she cannot be held guilty for the murder of the baby. The impugned judgment of the learned trial Judge is, therefore, set aside and the death sentence is not confirmed. This, however, is not the end of the matter. It is clear in the circumstances of the case that the dead body of the baby was recovered on the pointation, of the appellant in the courtyard and in this behalf marginal witnesses have p also given testimony. Thus the dead body of the baby which was an illicit birth to her was buried by her in order to conceal it and so the provision of section 318, P. P. C. can be invoked against her. This section is to the following effect :‑ "Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." We, therefore, convict the appellant under section 318, P. P. C. and sentence her to two years' R. I. and a fine of Rs. 2,000 or in default further R. I. for one year. The appeal is accordingly disposed of. M. Y. H. Appeal partly accepted.