1979 P Cr (PLP)

5. Nazir Ahmad Khan S. I. carried out the necessary investigation. He has not been examined. He arrested both the appellants on 11-10-1973 when they were produced before him by Sultan Ahmad P. W.

7. On 12-10-1973, the two appellants led to the recovery of a dead body from a pit in one of the rooms of the house of the deceased which was taken into possession-vide memo. Exh. P. J. Patka P. 1 was produced before the Investigating Officer by Muhammad Khan P. W. 2 and Abdur Rehman (not examined). Turban P. 3 was recovered at the instance of appellant Muhammad Tufail and taken into possession vide memo. Exh. P. G. Mst. Inayatan appellant led to the recovery of blood-stained toka P. 2 which was taken into possession vide memo. Exh. P: H. Site plan Exh. P. L. and its copy Exh. PL/1 was got prepared from Muhammad Yaqoob Draftsman P. W. 6.

6. Dr. Nazim Ahmad p. W. 1 conducted post-mortem examination ore the dead body of the deceased. (His observations have been fully noticed in the judgment of the learned trial Judge and I need not repeat the same). The dead body was in an advanced stage of putrefaction and therefore, the cause of death could not be discovered. All the bones were intact. No fracture or cut of any bone was found. Hyoid bone was intact. Face was not identifiable. Patka P. 1 was found lying by the side of the dead body which led to its identification. Large bone was sent for chemical examination. From the report of the Chemical Examiner no metallic poison or violence was detected as to "account for" the death of the deceased.

7. Appellants when examined at the trial pleaded innocence. Appellant Muhammad Tufail has admitted that Mst. Hanifan, daughter of the deceased is his wife and appellant Mst. Inayatan his mother-in-law. He has admitted that Mst. Inayatan appellant had been living with him at Jhugian Dhana Singh alongwith her children prior to the occurrence, and her husband Nawab deceased used to visit her there. He has taken up the position that appellant Mst. Inayatan is his mother-in-law and he considers her as his real mother. He has stated that he has been involved in the case at the instance of Muhammad Din P. W. as the latter had a dispute with the deceased over the distribution of inheritance and regarding the share in a Depot. He did not lead any evidence in defence. Appellant Mst. Inayatan, similarly, has admitted that she was living in village Jhugian. However, this v as with the permission of her late husband who also used to visit her there. She denied the recovery of toka P. 2 at her instance. She stated that this case has been registered against her at the instance of the brothers of her late husband and that her son Maula Bakhsh P. W. was playing in their hands.

8. There is no ocular version to the occurrence. Prosecution case mainly rests on the circumstantial evidence which when analysed can be categorised thus :

(i) Motive that the appellants had illicit relations and with a view to perpetuate the same intended to remove the deceased from their way ; (ii) Extra judicial confession by the two appellants before Sultan Ahmad P. W. 7 and Hayat P. W. 9 ; (iii) The recovery of the dead body at the instance of the appellants the body was dug out by Khushi Muhammad P. W. 8 and blood stained turban P. 3 at the instance of appellant Muhammad Tufail and Toka P/2 at instance of appellant Mst. Inyatan.

9. I have heard the learned counsel for the parties and have gone through the record of the case with their help.

10. 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 supposition 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 circumstantial 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 may be 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, anti 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 following principles may generally be kept in view :- (i) That the circumstances from which the conclusion is drawn b fully established. (ii) That all the facts should be consistent with the hypothesis. (iii) That the circumstances should be of a conclusive nature an 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 Rahmat 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 safe guide for the disposal of such like cases." I intend to examine various pieces of evidence in the case keeping the above formulation in view.

11. Maula Bakhsh and Mst. Hanifan have deposed that the appellants had developed illicit relations. It is stated that the fact was notoriously known in the area. At one occasion even a Panchayat was convened in which appellant Muhammad Tufail had taken the breasts of Mst. Inayatan appellant into his mouth and declared that she was like his own mother. Notwithstanding, the two appellants did not desist from carrying on this unfortunate liaison. Though their statements suffer from some discrepancies here and there, yet they have consistently deposed as to this fact. It is not quite easy for a son to accuse his mother of such a distasteful affair. Similarly, Mst. Hanifan P. W. had to speak against both, her mother and husband. Learned counsel for the appellants pointed to .a circumstance that Mst. Hanifan was not a girl of good character. She was carrying on with one Mahand who had been going with her to Court during the committing proceedings of this case. She had instituted a suit for dissolution of her marriage with Muhammad Tufail appellant. She was not available to be examined as a witness at the trial and as stated by' Hassan Ali P. W. 10, she had eloped with some body. It is true that in her statement before the Committing Magistrate, she stated that she intended to marry Khushi Muhammad alias Mahand but it could well be that she wanted to marry Khushi Muhammad after her husband's involvement in the case. The more fundamental question to be seen is as to why a son and daughter should depose against their own mother. I have no hesitation in holding that the two appellants had developed illicit liaison. However effect of this will be considered after having discussed the-rest of the evidence.

12. Extra judicial confession is stated to have been made before Sultan Ahmad P. W.

7. Extra judicial confession calls for a greater caution and care and the Courts should be reluctant to act upon such confessions unless they are satisfied that the same is of a very high and unimpeachable character. It should be relied upon only when evidence in support is invulnerable. I am not, at all, convinced by the statements of these two witnesses: This evidence is not susceptible to one solution only. According to Sultan Ahmad P. W. he was present at his sera alongwith Hayat (P. W. 9). Watto, Muhammad Din and Mehtab (not examined) that the two appellants came to them at night. Both the appellants had confessed their guilt before them. They had asked them for help. They, thereafter, produced the two appellants before the Police. Appellant Muhammad Tufail then narrated the whole story to the police and led to the recovery of the dead body of the deceased. Sultan Ahmad P. W. is also witness of the recovery of the dead body. According to him the Police recovered the turban from near the dead body. The Police prepared memo. Exh. P. J. regarding this recovery. Mst. Inayatan appellant led to the recovery of blood-stained toka P. 2 from her residential kotha. In cross-examination he stated that the appellants came to his dera at "Sehriwela". The appellants remained with them for 4/5 hours when they were 'ultimately produced before the Police. He made improvements over his statement before the Committing Magistrate where he stated that the appellants were taken to the Police within ten minutes of their arrival at his dera. He had produced the two appellants before the Police at his dera. The Police had stayed with him for the night. He admitted that - father of Nawab deceased died one year prior to the occurrence and that the deceased was demanding share in his ancestral property from his brothers Muhammad Din and Mehtab. He admitted that Nawab deceased was a sharer in a depot in possession of Muhammad Din and that there was a dispute between the deceased and his brother Muhammad Din over the share in the depot. Hayat P. W. stated that the Police was present in the house of Nawab deceased when the appellants were produced before them. He is also witness of recovery of toka P. 2, turban P.

3. Turban according to him, was found lying hear the dead body of the deceased. Toka was recovered at the instance of Mst. Inayatan appellant. According to him appellants came to the dera of Sultan Ahmad at about 8/ 9 a. m. After about 10/ 20 minutes both the appellants were produced before the Police. He has admitted that appellant Mst. Inayatan had filed a complaint against him, Muhammad Din, Maula Bakhsh and Sultan Ahmad P. Ws. He denied that this complaint was regarding the fact that after the arrest of Mst. Inayatan, they had taken away three cows and other articles belonging to the appellants. He denied to have stated before the Committing Magistrate that the cows were with him. Mst. Hanifan P. W. was also cross-examined regarding these facts. According to her Police had gone to Jhugian Dhana Singh and brought Mst. Inayatan appellant to village Gagga at about. 10-00 a. m. while appellant Muhammad Tufail ran away from the village: His brother Maula Bakhsh P. W. was with the Police when Mst. Inayatan appellant was brought by the Police in village Gagga. The two appellants pointed to the place from where the dead body was recovered. The dead body was found cut into, pieces, each 6" in length: Muhammad Khan, F. C. P. W. 2 had accompanied the Investigating Officer to the spot. He had stated that he reached village Gagga at 4/5 p. m. on 11-10-1973. Aslam Constable was sent to Jhugian Dhana Singh to bring the appellants. He brought appellant Mst. Inayatan with him. He reached village Gagga at night. Both the appellants were brought to the police station and kept there for -the night. They were brought to the place of occurrence by Aslam Constable. It is thus clear that the story of extra judicial confession by the two appellants before Sultan Ahmad and Hayat P. Ws. is nothing but a concoction. The appellants were in Jhugian Dhana Singh. Mst. Inayatan appellant was brought by AN am, F. C. to village Gagga, from where both the appellants were taken to police station. There was no occasion therefore, that they had gone to the dera of Sultan Ahmad and Hayat for making extra judicial difficult to accept this piece of evidence.

13. This brings me to the recoveries. Blood-stained turban P. 3 of the deceased is stated to have been recovered at the instance of appellant Muhammad Tufail. Exh. P. G. is the memo. under which it was taken into possession. Sarfraz, A. S. I. has been examined to prove signatures of Nazir Ahmad Khan, S. I. under this memo. Muhammad Din and Mehtab are witnesses of this recovery. None of them has been examined. The tenor of this memo. shows that the recovery of the turban was effected at the pointing out of appellant Muhammad Tufail. However, according to Hayat and Sultan Ahmad P. Ws. it was found lying close to the dead body. The prosecution, therefore, has not been able to prove this recovery at the instance of appellant Muhammad Tufail. Mst. Inayatan is stated to have led to the recovery of toka P.

2. Sultan Ahmad and Hayat P. Ws. are the witnesses of this recovery. This recovery allegedly was made from the residential house of Mst. Inayatan. The conduct of the two witnesses has already been discussed while dealing with the evidence of extra judicial confession. It will otherwise be seen that Mst. Inayatan was living in Jhugian Dhana Singh. The house at village Gagga belonged to the deceased and his other children including Maula Bakhsh P. W. resided there. It is mentioned in the memo. that toka was found buried in a corner of the compound of her house, in village Gagga. Sultan Ahmad P. W. however, has not stated in the examination-in-chief that toka was found buried. According to Sultan Ahmad P. W. the Police reached the place of occurrence at 7/8 a. m. He denied to have stated before the Committing Magistrate that the Police reached the place of occurrence at 12 noon or 1-00 p. m. According to Hayat P. W. the two appellants were produced before the police at the place of occurrence. Mst. Inayatan appellant led to the recovery of toka from near the place where the dead body was recovered. As already noticed, according to Muhammad Khan P. W. the two appellants were brought from the place of occurrence to the police station. The evidence of recovery of toka being highly discrepant, it would not be possible to place reliance on this piece of evidence. The same set of witnesses are the witnesses of the recovery of dead body at the instance of the appellants. Khushi Muhammad P. W. dug out the place where the dead body was found buried. He admits that the place from where the dead body was recovered had already been dug out by dogs and children. I am, therefore, inclined to hold that the recovery of dead body at the instance of the appellants is also very doubtful. As suggested to the witnesses, it appears that the dead body had been dug out by the dogs and its presence was already known to the witnesses before the matter was reported to the Police. This piece of evidence, too, therefore, cannot be used against the appellants.

14. The circumstantial evidence in this case, I am inclined to hold, is not of such a nature as is consistent with the hypothesis of guilt of the two appellants. Motive alone is not sufficient to sustain conviction. This may give rise to suspicion but suspicion howsoever strong cannot take the place of proof. I feel no hesitation in concluding that the prosecution has failed to establish its case against the appellants beyond reasonable doubt. This appeal, therefore, succeeds. The conviction and sentences of the appellants are set aside and they are acquitted. Mst. Inayatan appellant is already on bail, she is discharged of her bail bonds. Appellant Muhammad Tufail shall be set at liberty forth with if not required to be detained in any other case. Appeal allowed.