1969 PLP 442 (SCMR)

Mst. Said Begum was the widow of the appellant's paternal uncle Nur Dad who died leaving 35 bighas of land, which the appellant's father was cultivating after Nur Dad's death. Disputes arose in respect of the produce of the land between. Mst. Said Begum and the appellant's father who prevailed upon the appellant to marry her, though he had already been betrothed to another woman ; but there were differences between the appellant and Mst. Said Begum also. He stole her ornaments. and she complained to her cousin, P. W. 2, who intervened on her behalf and obtained a promise from the appellant and his father to treat her properly. This was about the middle of March 1951. A month later P. W. 2 heard that Mst. Said Begum was not to be seen and so he enquired of the appellant and his. father about her whereabouts but did not receive a satisfactory reply. He then made further enquiries and finally presented a complaint (Exh. P. A.) to the First Class Magistrate at Gujrat alleging that Mst. Said Begum had been forcibly taken away from her house by the appellant and two of his brothers either for the purpose of murdering her or for concealing her somewhere and that action should be taken in the matter. This complaint was presented on 12th May 195 but it is not clear what action was taken on it before the investigation of this case was com menced. P. W. 2's evidence, however, is that the complaint was sent to the Sub‑Inspector Incharge of Karianwala Police Station and thereafter was consigned to the record room. On 15th April 1951 a dead body of a woman was exhumed from a field in the limits of village Kotli Kohala where P. W. 17, who had gone there to cut grass, noticed a human foot sticking out. Post‑mortem examination of the corpse revealed (1) a punctured wound penetrating into the pericerdium and heart, (2) both the ear lobes torn, (3) a bruise on the centre of the forehead, and (4) contusions on the right fore‑arm. It was opined that death had resulted from the first injury, that that injury was caused with a pointed weapon and that death must have occurred immediately after the injury and about three to five days prior to 16th April 1951, the date of the post‑mortem examination. The corpse was identified as that of one Mst. Niamat Bibi of village Majra, who at about that time was alleged to have been abducted. After the post‑mortem examination, the corpse was buried in a graveyard at Gujrat ; but the clothes and other articles that were found on it were preserved in the malkhana. A case of murder was then brought against one Rahman and one Sardara who had been alleged to have abducted Mst. Niamat ; but that case collapsed as P. W. 36, an Inspector of Police, found Mst. Niamat alive at Lyallpur. She gave evidence as P. W. 16 denying that she had ever been abducted. It is not clear from the evidence in this case when exactly that case of murder was withdrawn. But Exh. P. Q., an applica tion presented by P. W. 36 to P. W. 37, the Duty Magistrate at Gujrat, for the exhumation of the corgi se which had been buried after the post‑mortem examination referred to above, states that the case against Rahman and Sardara was being withdrawn, that it was alleged that the said corpse was of Mst. Said Begum and that her relatives wanted to identify it. On 5th July 1951, in the presence of P. W. 37, the exhumation took place, but what was exhumed was only a skeleton and a long plait of hair which was separate from the skull. P. Ws. 2 to 6, relatives of Mst. Said Begum, however, identified it to be hers with reference to a gap in the front teeth of the upper jaw and the plait of hair, on the ground that Mst. Said Begum had such a gap in her teeth and also had long hair. They also identified the clothes and other articles which bad been preserved in the malkhana as those which they saw on her person a few days before her disappearance. P. W. 36 arrested the appellant on 12th July 1951, and though he had made a confessional statement to him before arrest, he did not produce him before a Magistrate for a confes sion being recorded under section 164, Criminal Procedure Code, but on the other hand obtained his remand to police custody for ten days for the purposes of investigation and verification of the fact stated by the appellant. He was produced on 23rd July 1951 before P. W. 18, who was then the First Class Magistrate with section 30 Powers at Gujrat, and a confession was recorded the same day under section 164 of the Criminal Procedure Code. The confession starts with an account of how the appellant happened to marry Mst. Said Begum and what his relations with her were prior and subsequent to the marriage. Then follows a narrative as to how, to remove a thorn that had pricked her in one of her arms, the appellant took Mst. Said Begum to the Mission ‑Hospital at Jalalpur Jattan and from there to more than one place in that town, and how he ultimately took her after sunset, to a distance of one and a half miles from Jalapur Jattan and reaching Kotli Kohala killed her removing the balis from her ears and buried her. Thereafter, the movements of the appellant after the murder are stated, and lastly reference is made to the production of the balls before the Inspector of Police. But this confession, the appellant retracted, when he was questioned by the Committing Magistrate. He stated that he had made it under police pressure. Eight witnesses were examined about the movements of the appellant and Mst. Said Begum at Jalalpur Jattan on 12th April 1951. Their evidence was that Mst. Said Begum was on that day seen in the company of the appellant and that thereafter they did not see her alive. According to P. W. 2, the appellant, when questioned by the witness about the whereabouts of Mst. Said Begum, stated that he had divorced her and a deed divorcing Mst. Said Begum executed by the appellant on 20th April 1951 was produced. The execution of this deed was admitted by the appellant, and this fact was strongly relied on as supporting the case against him. The version of the appellant was that his father did not compel him to marry Mst. Said Begum, that she willingly married him but he divorced her as she was 40 years old, that he was falsely implicated because P. W. 2 and others were against his marrying Mst. Said Begum and he had joined her in declining to agree to the proposal of P. W. 2 that a daughter of Mst. Said Begum should be married to P. W. 2's son. He denied having taken Mst. Said Begum to the Mission Hospital at Jalalpur Jattan. He said he did not go there on 12th April 1951. No evidence for the defence was adduced. The first point that arises for decision in this case is whether it has been established beyond all reasonable doubt that the corpse exhumed on 14th April 1951 was that of Mst. Said Begum. The learned Judges of the High Court, therefore, set before themselves the proof of corpus delicti as the first point for decision. But, on the evidence of the witnesses who identified the corpse and the articles preserved in the malkhana, they were satisfied that what was once wrongly identified as the corpse of Mst. Niamat Bibi was really the corpse of Mst. Said Begum and that Mst. Said Begum was murdered on 12th April 1951. Having come to this conclusion, the learned Judges considered the evidence of eight witnesses examined to prove that Mst. Said Begum was seen on 12th April 1951 in the company of the appellant at Jalalpur Jattan and accepted the version of four of those witnesses. The execution of the deed of divorce by the appellant on 20th April 1951 was considered by the learned Judges as a circumstance that went a long way ‑in supporting the case for the prosecution, as according to their conclusion there was no doubt that Mst. Said Begum was dead even on 12th April 1951, It was held that the confession was made voluntarily and was sufficiently corroborated by the rest .of the evidence adduced in the case. These are no doubt findings of fact, but it was contended before us by the learned counsel for the appellant that in arriving at these findings the Courts below overlooked certain material portions of the evidence, which far from establishing the case that Mst. Said Begum was murdered on 12th April 1951 have the opposite effect. He argued that Exh. P. Q , the application for the exhumation of the corpse indicates that even before the corpse was exhumed the police and the witnesses who identified to presumed that the corpse which was first identified as that of Mst. Niamat Bibi was that of Mst. Said Begum, and that in view of this predilection on their part at that stage, no value could safely be attached to their evidence of the identity of the corpse or the articles that were found on it. It was further urged that Exh. P. A. the complaint presented by P. W. 2, which also was not considered by the learned Judges, indicated that Mst. Said Begum was alive even after 12th April 1951. As regards the retracted confession the argument was that the learned Judges in accepting it as having been made voluntarily did not take into consideration the fact that the appellant was in police custody for 10 days before making it. In view of these contentions well Scrutinized the evidence and on scrutiny we find that Exhs. P. Q. and P. A. and certain important aspects of the evidence of the identification of the corpse and articles shatter the very foundation on which the case for the prosecution is based, and that the omission of the Courts below to take these points into consideration has resulted in grave and substantial injustice. Reference has already been made to Exh. P. Q. the application presented on 4th July 1951 for the exhumation of the corpse. After referring to the wrong identification of the corpse as that of Mst. Niamat Bibi and to the case which was brought on that basis, the application states as follows :‑ "The case is being withdrawn. The dead body which was identified by mistake is alleged to be that of Mst. Said Begum, wife of Nadir Khan, Gujar of Phambra, Police Station Kharian. She disappeared during those days and was murdered by her husband. The relatives of the deceased want to identify the dead body. Identification of the dead body is most essential to make out a case fruitful. It is, therefore, requested that the opinion of D. H. O. may be obtained in the case to know as to whether the dead body is identifiable and arrangements may kindly be made for its exhumation." P, W. 36, who made this application and proved it in his evidence, did not say on what the statements quoted above were based; nor was he questioned in this connection. But the above passage indicates that even before the exhumation the theory of the police was that the corpse that was yet to be identified was that of Mst. Said Begum and that she had been murdered by her husband. That the witnesses who identified the corpse were influenced by this theory and took it for granted that it was of Mst. Said Begum, whose whereabouts were not known, is clear from the readiness with which they identified a skeleton which was hardly identifiable. As already stated, what was recovered at the exhumation was only a skeleton and a plait of hair. This is clear from the evidence of P. W. 37 and the memo drawn up by him at the time of the identification (Exh. P. G.). It is also clear from this evidence that the only marks of identity mentioned by these witnesses were the gap in the front teeth of the upper law and the long hair. Identification on such slender basis, even if the witnesses had not been predisposed to regard the corpse they had yet to see as that of Mst. Said Begum, could hardly have been regarded as sufficient for establishing its identity, and when the possibility of the witnesses having already made up their minds that the corpse was of Mst. Said Begum cannot be reasonably excluded, the value of their evidence is practically nil. It is true that the learned Judges did not rely only on this identification, but also referred to the identification of the articles which had been preserved in the malkhana after the post‑mortem examination. But it is in the evidence of those witnesses who identified the articles that they bore no distinctive marks but on the other hand were of the kind in common use in villages. As regards the shoes (Exh. P. 4) P. W. 7 no, doubt deposed that he had made them for Mst. Said Begum, but in cross‑examination he admitted that he had made similar shoes for several others. None of these witnesses stated that they had any special reason to observe these articles carefully when they saw them on the person of Mst. Said Begum. It seems to us that since they saw them only one occasion they could not possibly have retained in their minds such a. clear impression of those articles that they could be certain that they were the very articles they had seen on her. An interesting light is thrown on the quality of this identification by the fact that P. W. 22 and P. W. 23, who identified the clothes found on the corpse as those which Mst. Said Begum was wearing when they last saw her, were among those who saw the corpse when it was first disinterred and the features were presumably easily identifiable. This is stated: by P. W. 21, and, as has been seen, on the earlier occasion, the body was identified, as that of a sixteen year old mochi girl Mst. Niamat Bibi, and if this was a mistake, it was over which these witnesses should have been able to prevent, if the knowledge they professed at the trial was not quite spurious. It does not appear that any memo. was drawn up ins respect of the identification of the articles. There is evidence that the articles were kept in the malkhana after the post‑mortem examination was held on 16th April 1951, but the officer before whom they were identified was not examined. It is not known. whether the precaution of asking the witnesses to pick out the articles from amongst other similar articles was taken. P. W. 6 deposed that the identification took place before the police in the Court building on the very day on which the corpse was exhumed. It is surprising that the identification of the articles was not made in the presence of the Magistrate, P. W.

37. In view of the experience the police already had in respect of this corpse in the earlier case one should have thought that all the possible precautions would have been taken but it does not appear that any precaution was taken in respect of the articles. These are not the only infirmities in the evidence for the prosecution on this question. There is a greater difficulty in the way of the case that Mst. Said Begum was murdered on 12th April 1951 being accepted as established beyond all reasonable doubt, and that is presented by Exh. P. A. the complaint preferred by P. W. 2 to which reference has already been. made. It is in his evidence that he presented this complaint on the very day on which it was written. The dated mentioned in it is 12th February 1951 but the scribe, P. W. 19, a. petition writer, deposed that it was a mistake for 12th May 1951; and this he stated with reference to his register. The Assistant Advocate General Mr. Sharif, who appeared for the Crown, proceeded on the basis that 12th May 1951 was the correct date. In the complaint it is stated that six days had elapsed since Mst. Said Begum was taken away from her house forcibly by the appellant and his brothers. This. indicates that she was alive even on the 5th May 1951. The complaint was not made by a stranger. P. W. 2 is the cousin of Mst. Said Begum and as already pointed out he had intervened on her behalf when the appellant and his father ill‑treated her. It is also in evidence that he made anxious enquiries about her. He no doubt stated in cross‑examination that he did not tell the petition‑writer that Mst. Said Begum was taken away forcibly six days prior to the writing of' the complaint, but P. W. 19 deposed that whatever was stated by P. W. 2 was. correctly incorporated in Exh. P. A. We can see no reason to doubt P. W. 19's evidence in this respect, as in the nature of things he could have had no motive to introduce into the complaint which he was writing on behalf of P. W. 2 any statement which was not made to him. If as is alleged in this complaint Mst. Said Begum was alive on 5th May 1951, it follows that she could not have been murdered on 12th April 1951 and that the corpse which was exhumed on 14th April 1951 was not hers. On the evidence of the prosecution itself, therefore, the case that Mst. Said Begum was murdered on 12th April 1951 does not appear to be true. Mr. Sharif contended on behalf of the Crown that these infirmities in the prosecution evidence only create a doubt as to the identity of the corpse, but do not in any way affect the value of the confession which has been held to have been voluntarily made. This argument overlooks the rule of caution le universally applied to the cases of retracted confession that such confessions should not be acted upon unless corroborated in material particulars by reliable evidence. A material part of the confession in question is that the murder to which it relates took place on 12th April 1951, and in view of what has been stated above it is impossible to hold that this part of the confession has been corroborated satisfactorily. On the other hand, the statement in Exh. P. A. referred to above clearly contradicts and confession and renders the statement of the appellant that he made it under pressure probable, especially when the fact that he was in police custody for ten days before he made the confession and the richness of detail in it are taken into consideration. In our opinion, therefore, the case of the prosecution that Mst. Said Begum was murdered has not been proved. In this view it is not necessary to consider the evidence about her having been seen in the company of the appellant on 12th April 1951 or about the execution by the appellant of the deed of divorce on 20th April 1951, as these circumstances would be of importance only if it could be held that she was killed on 12th April 1951. For the reasons set out above we think that the conviction of the appellant should not be allowed to stand. We, therefore, allow the appeal, set aside the conviction and the sentence imposed on the appellant and acquit him. He will be set at liberty forthwith. Appeal accepted.