P L D 2009 Peshawar 20 (PLP)

MUHAMMAD ALAM KHAN, J.

By this single Judgment, we propose to dispose of the instant Criminal Appeal No.31 of 2006 titled "Alif Gul v. Noor Afzal" and Criminal Jail Appeal No.51 of 2006 titled "Mst. Kalsoom v. The State and other as both of them have arisen out of the same judgment of learned Sessions Judge, Charsadda in Sessions Case No.256 of 2004 decided on 20-12-2005 vide which the appellants Alif Gul and Mst. Kalsoom Bibi were found guilty, holding that both the accused, in furtherance of their common intention committed the murder of Muhammad Afzal deceased and thus, convicted both of them and on conviction under section 302(b) read with section 34, P.P.C. sentenced each of them to life imprisonment. The benefit of section 382-B, Cr.P.C. was however, extended to them.

2. Briefly narrated the facts of the case as gleaned from the F.I.R No.327 dated 1-6-2000 under section 302/34, P.P.C. of Police Station Umarzai District Charsadda, are that Noor Afzal aged about 70/71 years father of deceased Muhammad Afzal, was permanently residing in Karachi in connection of his livelihood when he received an information on 29-5-2000 about .the death of his son and he along with his family members came to his village on 31-5-2000 and he went to the Police Station, lodged the report regarding the occurrence, in which Mst. Kalsoom his daughter-in-law was charged for the murder of his son.

3. Motive for the occurrence was shown, that Mst. Kalsoom appellant was having bad character and illicit relations with persons of immoral repute. This report was initially entered in daily diary No.22 dated 31-5-2000 and inquiry under section 156(3), Cr.P.C. was launched by the local police and during the inquiry, the dead body of the deceased was exhumed and post mortem examination was conducted. In post mortem examination the cause of death was described by the doctor to be throttling and trauma to neck. Consequently on the registration of the case Mst. Kalsoom appellant was arrested on 2-6-2000.

4. During the investigation of the case Mst. Kalsoom appellant made a judicial confession on 5-6-2000 and she also named Alif Gul appellant as her accomplice, who was arrested on 19-11-2000.

5. The trial of both the accused commenced and the learned trial Court found the appellants guilty of the charge and convicted and sentenced them as stated above and hence the present appeals.

6. In order to prove the case against the appellants, prosecution examined P.W.1 Tariq Sohail S.H.O. P.S. Charsadda who had submitted complete challan in the Court. P.W.2 Bahadur Shah Khan, S.-I. Investigation, who has recorded the statement of Alif Gul appellant, P.W.3 is Doctor Qamar Zaman Khan Safi SMO DHQ Hospital Charsadda who conducted the post-mortem examination, P.W.5 Nisar son of Gul Noor who is a marginal witness to the pointation memo Exh.PW5/2 vide which Mst. Kalsoom accused pointed the place of occurrence and recovery memo. Exh.PW5/1 vide which a cot (Charpai) was taken into possession by the I.O. P.W.6 Sultan Ali DSP Anti Corruption Peshawar who submitted challan under section 512 Cr.P.C. against Alif Gul accused and complete challan against the co-accused Mst. Kalsoom and later on Alif Gul accused was arrested and supplementary challan was submitted to the Court. P.W.7 is Murad Khan S.-I. Traffic Police Peshawar who has investigated the case. Muhammad (sic) Sessions Judge Swat was examined as P.W.8 who while posted as Judicial Magistrate had recorded the confessional statement of Mst. Kalsoom accused Exh.P.C, Exh.PC/1 and Exh.PC/2. Prosecution abandoned Noor Afzal, Arshid and Munir.

7. After examination of the accused under section 342, Cr.P.C. wherein they totally denied the allegations against them, while Mst. Yalsoom retracted her confession.

8. Khawaja Muhammad Khan Gara, Advocate learned counsel for Alif Gul appellant submitted that, there is no direct evidence against him and the only piece of evidence available on the record is the confession of his co-accused Mst. Kalsoom, which too, has been retracted during the trial. It was also submitted that Noor Afzal complainant had been abandoned by the prosecution. The occurrence was un-witnessed and there was no corroborative evidence against the appellant, thus, forming basis for his conviction. It was also argued that mere abscondence will not per-se, hold the appellant guilty of the charge and on this sole ground he could not be convicted.

9. Miss Farhana Mawat, Advocate the learned counsel for Mst. Kalsoom appellant, in Jail Criminal Appeal No.51 of 2006 submitted that the confessional statement of Mst. Kalsoom is not admissible in evidence as she remained in police custody for five days and the confession was the result of torture and coercion by the police. Elaborating her arguments she submitted that besides the retracted confession of Kalsoom no evidence either direct or circumstantial is available on the record to warrant the conviction of Mst. Kalsoom appellant.

10. We have gone through the record of the case and with the assistance of the learned counsel for the appellants have scanned the entire evidence on the record.

11. The only evidence on the record is the statement of the Doctor Qamar Zaman Safi P.W.3 who has described the cause of death to be asphyxia and trauma to neck. Some samples were also obtained and sent to Laboratory in order to prove that the death was caused due to administering poison to the deceased, but the result is not available on the record, which is a link missing in the prosecution story.

12. The only piece of evidence against Alif Gul appellant is the confessional statement of his co-accused Mst. Kalsoom which cannot be made basis for his conviction as held in the case of Mst. Zafran v. The State reported in (1999 PCr.LJ 163), and in the case of Shabi-ul-Hassan v. The State reported in (PLD 1991 Supreme Court 898).

13. The other piece of evidence regarding the abscondence of the appellant Alif Gul is also of no help to the prosecution, because mere abscondence cannot be made the basis for conviction of the accused. The accused may run away due to fear or suspicious circumstances as held in the, case of Rahimullah Jan v. Kashif and another reporting in PLD 2008 Supreme Court 298).

14. Now coming to the case of Mst. Kalsoom appellant. She was arrested on 1-6-2000 and remained in police custody till 5-6-2000 when the alleged confession was made by her, no question was put to the lady accused as to how many days she remained in police custody as is evident from Questionnaire Exh.P.C. So a lady remaining in police custody for such a long time, her confession does not ring true and is not voluntary and the same is liable to be straightaway ruled out of consideration as held in the case of "Muhammad Israr and other v. The State (2002 PCr.LJ 1072)

15. In view of the facts and circumstances of the case narrated above, we accept both the appeals and on setting aside the conviction and sentence recorded by the trial Court through the impugned judgment, acquit both the appellants namely Alif Gul and Mst. Kalsoom. They be set free forthwith if not required in any other case. The above are the reasons for our short orders announced on 11-7-2008. H.B.T./161/P Appeals accepted.