P L D 1953 Lahore 57 (PLP)

MUHAMMAD JAN, J.‑--Mst. Hussain Fatima aged about 25 years, has been convicted under section 302 read with section 34, Pakistan Penal Code, and sentenced to transportation for life. She has appealed through jail. She was accused of having conspired with four persons, namely, Sadiq, Fazal, Bahar Shah and Diwan Shah to kill her husband Walayat and, in pursuance of the conspiracy, of having had him killed by being thrown into a well on the 5th April 1951. She was tendered pardon by the Additional District Magistrate, Rawalpindi, on the 11th April 1951, vide Ex. P. E/1. She accepted the pardon, vide Ex. P. E/4. The Additional District Magistrate then directed, by order Ex. P. E/5 that her statement as an approver should be recorded by Mr. Sher Babadur Khan, Magistrate 1st Class, Rawalpindi, and he recorded her statement, Ex. P. E. on the same day in that statement she said that her father died when she was only four years old and her mother remarried. She lived in the house of Jumma Shah, son of her uncle. Bahar Shah, for four or five years and then with her aunt, Mst. Bib! Jan, for about a year. Then she took up residence with her cousin, Diwan Shah, who said that he would marry her to his son but wished to have sexual relations with her himself. She left his house and went to another cousin and from there she went on to the house of her mother. Diwan Shah went there to bring her back but she refused to go with him and returned to the house of her aunt, Mst. Bibi Jan, in Dhok Muzammil. After about a month and a half, Bahar Shah came there and married her to Walayat Shah son of Mst. Bibi Jan. Bahar Shah visited her in the house of her husband and so did Fazal and Sadiq. Mst. Bibi Jan objected to their visits and said that they were badmashes. She quarrelled with her aunt and left her house but was persuaded to go back. She left again and went to the house of Diwan Shah but was told by Diwan Shah and his wife that she should go and live somewhere else. She suggested that Bahar Shah should try to secure her divorce and then She would marry Shah Miskin, son of Diwan Shah. Diwan Shah called Bahar Shah and suggested that he should try to secure the divorce. Fazal and Sadiq had come with Bahar Shah. Bahar Shah said that it would not be easy to get a divorce and Sadiq suggested that Mst. Hussain Fatima should kill her husband. Diwan Shah approved of the suggestion and Bahar Shah, Fazal and Sadiq promised to help her in the matter. She agreed with the proposal. Jumma Shah had also come to the house of Diwan Shah when this decision was arrived at. About eight days after this she went back to the house of Mst. Bibi Jan at Dhok Muzammil. Her brother, Sabar Shah, came there on the Monday following her return to the house. Then he and Mst. Bibi Jan went away to Gujar Khan and on Wednesday Bahar Shah, Fazal and Sadiq arrived and she went to see them. They said that they would cone to her house at night and knock at the door and that she should open it. They then went away to Gujar Khan. Mistri Muhammad Din who was grazing his cattle near by, asked her why those men had come. She said that they had brought news about mother's health and returned to her house. At about sehriwela she heard a knock at the door. Her husband, Walayat Shah, and his brother, Imdad Ali Shah, were sleeping at the time. She opened the door and Bahar Shah, Fazal arid Sadiq came in. Walayat Shah and lrndad Ali Shah woke up. Bahar Shah asked Walayat Shah to accompany them to Dhok Bangial where they had some work and Walayat Shah went with them. They proceeded towards the village well and Sadiq asked Mst. Hussain Fatima to follow with the bucket which was lying in the kitchen. She did so and on reaching near the well saw Bahar Shah, Fazal and Sadiq picking up her husband and throwing him into the well. Walayat Shah tried to rise above the water, but Bahar Shah, Fazal and Sadiq threw bricks and stones at him and he was drowned. Then they told her that if she was questioned by anyone about her husband she should say that he had gone with Muhammad Shah and Saidu Shah. The bucket remained at the well and she returned home. Shortly afterwards she went to Niaz Ali and Mistri Muhammad Din and told them that Muhammad Shah and Saidu had taken away her husband. She took them towards the well and, after looking into it, said that she could see her husband's shirt and that he had been killed. She then went to the police station with Mistri Muhammad Dinand made a report that owing to enmity with her brother, Muhammad Shah and Saidu Shah had taken her husband from his house and killed him: The police came to the village and started investigation in the course of which she told them the truth. This was the statement that the appellant made under section 164, Cr. P. C. and she ended it by saying "that is all". The learned counsel appearing for her in the trial Court argued that this expression showed that, she had been tutored and that she had repeated the lesson which she had been taught. Diwan Shah, Bahar Shah, Fazal and Sadiq were prosecuted and Mst. Hussain Fatima was produced as a witness. She went back upon her statement under section 164, Cr. P. C. in the Court of the Committing Magistrate and denied that she was tendered pardon or that she had made any statement. She also denied that Bahar Shah. Fazal and Sadiq had taken her husband Walayat Shah or that they had thrown him into the well. When confronted with her statement, Ex. P. E., she said that she had made it out of fear. Diwan Shah was discharged by the Committing Magistrate and Bahar Shah, Fazal and Sadiq were acquitted by the Court of Session. The Public Prosecutor then certified that Mst. Hussain Fatima had wilfully concealed the true facts of the case and had failed to comply with the condition on which she was pardoned. She was accordingly tried on the charge of murder. On being questioned by the Sessions Judge, she said that her statement before Mr. Sher Bahadur Khan, Magistrate, 1st Class, Rawalpindi, under section 164, Cr. P. C. was not true. The Additional District Magistrate (P. W. 3), who had tendered the pardon and Mr. Sher Bahadur Khan (r. W 2), who had recorded the state ment, Ex. P. E. were examined as witnesses. Mr. Muhammad Yaqub Khan, A. D. M. (P. W. 3), deposed that the appellant had accepted the pardon on the express condition of making a true disclosure of facts relating to the murder of Walayat Shah, and Mr. Sher Bahadur Khan (P. W. 2), testified to the statement which she had made before him. He further deposed that he gave her sufficient time to think before making the statement, that the Court room was cleared of all the police officials and that she bad made the statement voluntarily. Rashid Ahmad, Sub‑Inspector, (P. W. 15), deposed that the appellant was arrested on 10th April and sent to the judicial lock up on the same day. She was tendered pardon and her statement was recorded on the next day when she was in judicial custody. After considering the evidence, we are satisfied that the statement before Mr. Sher Bahadur Khan, Magistrate, 1st Class Rawalpindi, was voluntarily made by the appellant and that she has forfeited the pardon by not complying with the condition of the pardon. The evidence against her is mainly the statement Ex. P. E. which, having been resiled from, can be treated as a retracted confession. In Ram Nath v. Emperor (A I R 1928 Lah. 320) it was observed by a Division Bench of this Court that a statement made by an approver containing an admission of guilt in respect of the crime for which the approver is tried is a confession and if with drawn before the Committing Magistrate trust be regarded in the light of a retracted confession. In Mst. Aziz Begum v. Emperor (A I R 1937 Lah. 689) another Division Bench of this Court held that where an accused who is made an approver makes a statement which in its general aspect is abundantly corroborated anti there is no doubt about the truth of the story told in it, that statement is sufficient evidence for his conviction, if he turns hostile and forfeits his pardon. In Puran v. Emperor (A I R 1938 Lah. 133) it was held by Young, C. J. and Monroe, J. that where an approver is sent up for trial on resiling in the Sessions Court from a statement made in the Court of the Committing Magistrate his statement before the Committing Magistrate should be treated as a, confession and his conviction might follow on this confession alone without corroboration, There is, however, ample corroboration of the confession in this case. In the first place the appellant knew where the dead body of her husband was and took Mistri Muhammad Din (P. W. 7). and others to the well from which it was recovered. The medical evidence which shows that the deceased had a large number of contused and lacerated wounds and that death was due to drowning corroborates the confession that the deceased was thrown into the well and struck with bricks and stones. Some of the injuries, in the opinion of the doctor, could have been caused by the striking of the body against the wall of the well. The evidence of Mistri Muhammad Din that he had seen Bahar Shah, Fazal and Sadiq talking to Mst. Hussain Fatima near the well a day before the body was found and the evidence of Imdad Ali Shah (P. W. 5), brother of the deceased, that on the knocking of the door Mst. Hussain Fatima opened it and let in Baber Shah, Fazal and Sadiq who took Walayat Shah with them further corroborates the confession. The motive for the crime stated in the confession is borne out by the evidence of Jumma Shah (P. W. 6), an uncle of the appellant, and Mst. Bibi Jan (P. W. 11), an aunt of the appellant. Muhammad Shah (P. W. 10), has enumerated several enmities which he had with Bahar Shah, Fazal and Sadiq and has deposed that he and his cousin, Saidu Shah, were falsely accused in the report. Nothing has been elicited in his cross‑examination to show that he had any connection with the murder and the fact that Muhammad Shah and Saidu Shah were falsely accused in the report by the appellant also shows that she was acting in conspiracy with Bahar Shah, Fazal and Sadiq. Rashid Ahmad, Sub‑Inspector, P. W. 14, deposed that the report (Ex. P. H.) accusing Muhammad Shah and Saidu Shah was made to him by Mst. Hussain Fatima and that his investi gation showed that they were innocent. He found some bricks and stones of the well dislodged when he went there. These bricks and stones appear to have been thrown at the deceased as stated in the confession, Ex. P. E. On being questioned by tee trial Court, the appellant denied all the material facts a appearing in evidence against her and said that she was stripped naked by the police arid compelled to name Bahar Shah, Sadiq and Fazal. She was threatened that she would be shot dead if she refused to do so. We do not believe this statement and hold that the confession, Ex. P. E., was voluntarily made by her and that it has been sufficiently corroborated to be accepted as true. Relying on the confession and the corroborative evidence in support thereof, we maintain the conviction and the sentence of the appellant. The appeal is dismissed. A. H. Appeal dismissed.