1996 P Cr (PLP)

5. On 7-2-1993, the Investigating Officer P.W.13 vide an application Exh.P.J. put a query to the Medical Officer as to whether according to the post- mortem report, it was a case of unnatural death because the signs mentioned by the doctor indicated the death by violence. P.W.1 Dr. Ghulam Haider Saqib reported that the indications during the post-mortem examination were enough to prove unnatural death. However, he reserved his final report till the receipt of the report of Chemical Examiner. According to the report of the Chemical Examiner Exh.P.B. no poison was detected in the visceras. The doctor opined in the post-mortem examination report Exh.P.K. that probable time that elapsed between the death and post-mortem examination was within 36 to 72 hours.

6. Keeping in view the report of Chemical Examiner Exh.P.B. the doctor finally opined that the injuries mentioned were ante-mortem in nature and time that elapsed between the injuries and death was within half an hour and the cause of death was asphyxia due to throttling. On 17-2-1993 P.W.10, Bijjar Khan informed the Investigating Officer that Mst. Sakina appellant widow of the deceased had made extra judicial confession before him, to the effect that she and Saeed Ahmad acquitted co accused who is nephew of the deceased and son of the first informant had developed illicit relations and as they wanted to marry each other, Saeed Ahmad acquitted co-accused brought certain tablets and directed her to administer those tablets to the deceased. Accordingly Mst. Sakina appellant allegedly administered those tablets to the deceased in a cup of tea and then they took away the deceased, outside the house on the pretext to help him to urinate and thereafter strangulated the deceased who was semi-conscious. She killed the deceased and after placing clothes and shoes of the deceased on a Palali had thrown the dead body into the well.

7. On the same day P.W.11 Allah Bachaya and P.W.12 Qadir Bakhsh informed the Investigating Officer that in their presence Saeed Ahmad acquitted co-accused had also made extra judicial confession. Consequently P.W.13 Waris Ali Investigating Officer arrested the appellant and acquitted co-accused Saeed Ahmad on the same day. 7-A. Appellant while in police custody led to the recovery of two Khaki (brown) packets from a hole in the wall of the house which were taken into possession vide memo. Exh.P.G.

8. After completion of the investigation the challan was submitted to the Court. Appellant and her acquitted co-accused Saeed Ahmad were tried by the learned Sessions Judge, Dera Ghazi Khan who vide impugned judgment convicted the appellant and acquitted Saeed Ahmad. Hence this appeal.

9. Learned counsel for the appellant argued that the appellant never made any extra judicial confession before Bijjar Khan P.W.10 and that the extra judicial confession being a very weak type of evidence cannot be believed without independent corroboration which according to him was lacking in this case. Recovery of Khaki packet at the pointation of the appellant was of no consequence as the same was not sent to the Chemical Examiner and that no poison was detected from the viscarea of the deceased; that acquittal of co accused Saeed Ahmad smashes the whole case of the prosecution and that prosecution had not proved the case against the appellant beyond reasonable doubt.

10. Learned State Counsel has half-heartedly supported the impugned judgment and frankly admitted that except the extra judicial confession no other evidence was available on record to connect the appellant with the commission of offence.

11. I have heard the learned counsel- for parties and have gone through the record of the case with their assistance. I have given anxious consideration to the arguments addressed before the Court.

12. The prosecution and defence are unanimous that except the evidence of extra: judicial confession there is no material on record which would be sufficient to hold the appellant guilty for the offence with which she was charged. I would like to thoroughly examine the circumstances in which the alleged extra judicial confession was made by the appellant. Haji Noor Muhammad complainant P.W.9 stated in cross-examination that Saeed Ahmad and Mst. Sakina appellant were arrested 8 days after the occurrence and P.W.10 Bijjar Khan stated in his examination-in-chief that 15/16 days after the present occurrence, he had gone to the house of Mst. Sakina accused to condole the death of the deceased and found her worried and he asked her to relax. According to this witness, she told him that as he was elder in the family, he should help her because she had killed her husband. She further told that she had illicit relations with Saeed Ahmad acquitted co-accused. P.W.13 Waris Ali, S.-I. stated in the examination that he arrested the appellant on 17-2-1993 and in the cross-examination he stated that before 17-2-1993 both the accused had been joined in the investigation and no other person was joined for the investigation. It was generally rumoured before 17-2-1993 that these two accused persons had illicit relations with each other. Bijjar Khan had told him about the extra judicial confession of Mst. Sakina at the place of occurrence at about 2 p.m. Allah Bachaya P.W.11 and Qadir Bakhsh P.W.12 had told him at 3/4 p.m. that Saeed Ahmad acquitted co-accused made extra judicial confession before them. These P.Ws. had made contradictory statements. If the appellant was arrested by the police 8 days prior to the making of extra judicial confession then how could she make extra judicial confession before Bijjar Khan as alleged by him. The Investigating Officer has stated that on the day when extra judicial confession was made by the appellant he was present in the village where he was informed about the making of extra judicial confession by the appellant. This circumstance alone is sufficient to hold that situation in the village was not normal and it cannot be ruled out that the appellant was under duress. The extra judicial confession cannot be held to have been voluntarily made as according to the Investigating Officer both the appellant and acquitted co-accused had joined the investigation prior to 17-2-1993. Bijjar Khan P.W.10 stated that extra-judicial confession was made before him because he was the elder member of the family and appellant requested him to help her. It is no where stated by this witness that he did not promise to help the appellant. Bijjar Khan P.W. stated that he had not met Mst. Sakina in her house and had been searching the accused. He has also stated that at the time when Sakina had confessed her guilt the police was already present in the village for investigation of the case. All these circumstances lead to the conclusion that the so-called extra judicial confession was not voluntarily made. The appellant would not make any confessional statement before a person who was actively associated with the police to find out the real assailants, unless he showed some sympathy and promise to save her from the rigors of the police.

13. According to the prosecution version and the story as alleged in the extra judicial confession the motive for the occurrence was the illicit relations between the appellant and Saeed Ahmad acquitted co-accused. Prosecution has not produced . any witness in corroboration of this fact. There is nothing on record to show that the appellant had any dispute with her husband prior to the occurrence or he ever forbade her to keep the relation with acquitted co-accused.

14. The acquittal of co-accused Saeed Ahmad creates doubt about the veracity of extra judicial confession. The learned trial Judge has not believed this part of the extra judicial confession and had acquitted Saeed Ahmad co accused. It would show that a major portion of the prosecution case has not been proved. Both the appellant and acquitted co-accused had denied any such relations in their statements under section 342, Cr.P.C. Both have stated that they never made any extra judicial confession before the prosecution witnesses. The extra-judicial confession can only be relied upon when it rings true to the Court. As both the appellant and the acquitted co-accused had denied the motive of the occurrence, it was the duty of the prosecution to prove by some independent evidence, the existence of illicit relations between them. The complainant who is brother of the deceased had not stated a word about it, either in his statement under section 161, Cr.P.C. or before the Court. Had there been any such illicit relations between the accused the complainant would have narrated the same in the first information report. Allah Bachaya and Qadir Bakhsh P. Ws. have not supported the prosecution case during the trial. They have refuted that Saeed Ahmad ever made extra judicial confession before them. They were declared hostile and were cross-examined at length. Nothing substantial came to light during the cross-examination.

15. According to the prosecution, the appellant had administered intoxicant in the shape of tablets before, strangulating the deceased but the Chemical Examiner's report shows that the viscrea not contain any poison. The Khaki packet allegedly recovered on the pointation of the appellant was not sent to the Chemical Examiner for analysis. So, this packet has no-evidentiary value at all. The version given in the so-called extra-judicial confession and the medical evidence are not in conformity with each other. The appellant in her statement p under section 342, Cr.P.C. stated that Bijjar Khan P.W. was inimical towards her and her parents and that he was a stock-witness of the police and a relative of the complainant party. He had falsely deposed against her.

16. After 8 days of the occurrence the appellant was arrested by the police and she did not make any confession before the police or any one else. Investigating Officer has admitted that before the formal arrest the accused were joined in the investigation. They did not make any confessional statement during this period. There was no occasion for the appellant to make extra-judicial confession before Bijjar Khan P.W. Further, if she was taken in custody by the police, after the occurrence, she would not have been let free by the police and it was not possible for the appellant to be present in her house on 17-2-1993 to make an extra-judicial confession before Bijjar Khan.

17. Recovery of the dead body was not effected on the pointation of the appellant. The post-mortem had already been conducted, when the extra-judicial confession was made and it was easy for the police and the prosecution to put these words in the mouth of the appellant. These circumstances cannot be used as corroboration. 18, I feel that the evidence regarding extra-judicial confession was not analysed in accordance with the principle which has been evolved by the Court of law for appraisal of such evidence.

19. The extra-judicial confession is weak specie of evidence and before it is made the base of conviction it has to be subjected to close scrutiny. Court while convicting the accused person solely on the basis of retracted extra-judicial confession must satisfy itself that the confession is voluntary and true. Court should also look for some other independent piece of direct or circumstantial evidence in the case which corroborates the confession, to ensure safe administration of justice. The confessional statement is used only as a corroborative piece of evidence for proving the prosecution theory. In the corroborative case the confessional statement of the appellant was not made voluntarily and the same was not supported by any other piece of evidence. The upshot of the above discussion is that it is not difficult to say that appellant was under some sort of surveillance from the very start. The police was present in the village when the alleged extra judicial confession was made.

20. For what has been stated above, I hold that prosecution has failed to prove its case against the appellant beyond reasonable doubt. Consequently, I direct that the appellant be set at liberty forthwith, if not required in any other case. The appeal is accepted and the impugned order and judgment is set aside. N.H.Q./S-16/L Appeal accepted.