1979 P Ct (PLP)

(ii) Extra-judicial confession before Ahmad Din P. W. 5 and Allah Rakha P. W. 6 ; (iii) the motive ; (iv) Abscondence of the appellant ; and (v) The medical evidence.

9. Learned trial Judge has accepted the prosecution case in its entirety. He has accepted the motive for the crime and is of the opinion that the factum of throwing the dead body of the deceased by the appellant, has been fully established. He has observed that the appellant was "duty bound to explain from where she took the dead body and in the absence of such an explanation the only reasonable conclusion which can be drawn from these circumstances is that she strangulated Yousaf Masih to death and then threw his dead body in front of the house of his grandfather Gulzar Masih." He has believed the extra-judicial confession said to have been made by the appellant "without coercion and inducement before the independent witnesses". He has accepted the statement of the Investigating Officer that the appellant was not available for four days and has used this circumstance against the appellant.

10. I have heard the learned counsel for the appellant and the learned State counsel aid have gone through the record of the case carefully. Learned counsel for the appellant relied on Abu Bakar v. The State (P L D 1974 Kar. 393) and Ahmad Khan v. The State (1974 P Cr. L J 463).

11. The principle needs no reiteration that in a criminal case, the burden to establish the guilt of the accused for the offence charged is, always, on the prosecution. The Courts, not as a matter of grace but as of duty are to give benefit to the accused if the prosecution has failed to discharge that onus. In cases where prosecution case rests merely on circumstantial evidence, this duty of the Courts becomes more onerous as such cases involve some element of supposition based on judicial discretion. Word "proved" is defined in section 3 of the Evidence Act. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought under' the circumstances of the particular case, to act upon the supposition that it exists. Similarly, a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposi tion that it does not exist. In cases where the prosecution relies on the direct evidence, it is easy to form a view either way. Indirect and the circum stantial evidence, on the other hand, does not prove the point in question directly, but establishes it only by inference. Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts maybe more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. It is only when these conditions are fulfilled, circumstantial evidence may approximate to truth. For proof by circumstantial evidence, the following principle may generally be kept in view :- (i) That the circumstances from which the conclusion is drawn be fully established. (ii) That all the facts should be consistent with the hypothesis. (iii) That the circumstances should be of a conclusive nature and tendency. (iv) That the circumstances should, to moral certainty, actually exclude every hypothesis but the one proposed to be proved. Muhammad Akram, J. in the case of Rehmat alias Rahman v. The State (P L D 1977 S C 515), after considering the case-law on the subject, observed :-- "The two last mentioned authorities discussed above go to show that there can be no hard and fast rule and that the evidence of last seen carries weight depending upon the varying degree of probity and the facts and circumstances in each case, remembering always the golden rule applicable where in the absence of direct evidence, the conviction is based solely on the circumstantial evidence. Before the guilt of the accused can be inferred merely from inculpatory circumstances, these circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt ........................ All the cases discussed in the final analysis rest on the application of this rule which is the only safeguide for the disposal of such like cases."

12. I intend to examine various pieces of evidence in the case keeping the above formulation in view.

13. Motive alleged is that Gulzar Masih P. W. had dispute with his brother Anwar Masih over their ancestral property. The appellant is the wife of Anwar Masih. The complainant demanded from Anwar Masih his share in the property left by their father and had got even a mutation sanctioned in the names of all the brothers. This allegedly, provided motive force to the appellant for the crime. In this connection Manzoor Masih P. W. 4 who was Ex-Chairman of the Pakistan People's Party, Koth Muhammad Siddiq and an Elder of Catholic Church stated that a month before the occurrence he was present in his house alongwith Bachan Masih, Secretary, Pakistan People's Party. The appellant came to him and com plained that Gulzar Masih P. W. had got mutation sanctioned in his favour and asked the appellant to vacate the house. She solicited the help of the witness to dissuade Gulzar Masih P. W. not to eject her. The witness stated that on that occasion she had extended a threat that or otherwise, he would be taught a lesson. The fact that Gulzar Masih P. W. had a dispute with his own brother Anwar Masih and the former had asked the appellant to vacate the house even if accepted, question which still remains to be seen is if the circumstances are such which lead to only one conclusion that for this she nurtured a motive to cause the death of a minor child. The prosecution does not even claim that the appellant had any particular motive to cause the death of the deceased. It is in evidence that there were a number of minor children in the family of Gulzar Masih. Why had the appellant chosen this particular child, poses a big sign of interrogation. Even on the fateful day the deceased had accompanied his twin brother Joseph Masih. Why was Joseph Masih spared? For all this I am inclined to conclude that the motive set up by the prosecution is very weak and in any case not of a conclusive nature and tendency.

14. The evidence that the appellant was seen throwing out the dead body is provided by Fazal Masih P. W.

3. He claimed that at noon time when he was going towards his house he saw the appellant coming out of her own house and throwing out the dead body of the child under a tree near the Khola in front of the house of Gulzar Masih P. W. It was not the body of a chicken or of an animal cub but was the dead body of a child. Strange enough the witness kept quiet till he heard alarm of Gulzar Masih after the latter had himself seen the dead body underneath the tree. The witness moreover has made serious improvement over his earlier position. In his statement before the Police (Exh. D. A.) he had stated that he had seen the appellant throwing the dead body at Chhahwela. He lived in the neighbourhood of the complainant. It can safely by presumed that he knew the deceased and his parents. When he had seen the appellant throwing dead body at Chhahwela, why he had not informed the parents of the deceased about it? Why was the body not discovered by any one else since Chhawela till noon? A definite suggestion was put to this witness that the deceased was killed by the witness's grand-children. For all this I feel that the plea of the prosecution that the appellant was seen throwing out the dead body in the street, is too artificial to be believed. This piece of evidence too shall have to be kept out of consideration.

15. The factum of abscondente has not been fully made out in this case. No steps were taken to have the appellant declared as proclaimed offender. The mere statement of the Investigating Officer that the appellant was not available for some days is not sufficient to hold that the factum of abscondence had been fully established. Abscondence is usually a very small item in the evidence on which conviction can be based. Absconding is equally consistent with innocence and guilt. It is well known that different persons are differently constituted, some accused persons, though innocent, deliberately abscond rather than to face the ordeal of a criminal trial. Before abscondence is used against an accused person, a strict proof of such an abscondence is required. Reference is made to Aminullah v. The State (P L D 1976 S C 629). This circumstance too, I am afraid, cannot be used against the appellant.

16. The medical evidence only suggests the cause of death. It was, no doubt, by strangulation. In the absence of any direct evidence the medical evidence is hardly of any avail to the prosecution and cannot be used as a corroboration.

17. The only aspect to be examined is in regard to the extra judicial confession said to have been made by the appellant. The prosecution has examined two witnesses, namely Ahmad Din P. W. 5 and Allah Rakha P. W. 6 on this aspect of the case. Ahmad Din P. W. is a Lambardar of the village. He has stated that he was present at his Dera alongwith Allah Rakha Barber P. W. and Qamar Masih when the appellant came there and confessed with her hands folded that as Gulzar Masih complainant had taken her house by fraud, she had killed his grand-son Yousaf Masih deceased. She asked the witness to help her in the matter. The witness asked the appellant to go to her house and not to run away and promised to help her as far as possible. The Police Officer visited the village to the evening when the appellant was produced by the witness before him. Allah Rakha P. W. has supported Ahmad Din P. W. in necessary details. He has stated that the appellant came at the Dera of Ahmad Din P. W. at Chhahwela, five days after the occurrence. She begged for pardon and told Ahmad Din P. W. that he had strangulated Yousaf Masih deceased because of the dispute over the house with Gulzar Masih. She asked for help.

18. In a case where the conviction is to be based solely on the evidence of extra-judicial confession, it is well established, that such a confession calls for extreme care and caution. According to this witness, on the fifth day of the occurrence at Chhahwela, the confession was allegedly made at the Dera of the Lambardar. He did not apprehend the appellant but allowed her to go to her house desiring that she should not run away. According to the Investigating Officer she was not available and could not be arrested between 25-4-1977 and 29-4-1977. The fact should have been known to the Lambardar. In the circumstances it seems unusual that the Lambardar should have allowed her to go back to her house after she had made confession before him. According to the Lambardar the police came to the village at "Laudewela" when the appellant was produced by him before the investigating Officer. However, according to the Police Officer he arrested the appellant on. 29-4-77 at 2-45 p.m. Ahmad Din P. W., no doubt, has no interest in either of the parties yet as a Lambardar of the village he had some concern about the success of the police case. The possibility cannot be wholly ruled out that the Police Officer was present in the village when the alleged extra judicial confession was made. This would render this confession doubtful. In the circumstances, it will not be safe to base convic tion solely on the basis of this extra-judicial confession.

19. For all that has been stated above, I feel that the prosecution has not been able to make but a case against the appellant beyond a reasonable doubt. I, therefore, giving the appellant benefit of doubt, accept this appeal, set aside her conviction and sentences and acquit her. She shall be released forthwith if not required in any other case. Appeal allowed.