1997 P Cr (PLP)

QAZI HAMIDUDDIN, J.

Kachkol son of Sanab Gul, and Mst. Yasmin widow of Wareed Gul residents of Village Ismaila, Tehsil and District Swabi were tried for offences under section 302/201/34, P.P.C. and section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the learned Additional Sessions Judge, Swabi who vide his judgment, dated 24-4-1994 convicted both the appellants and sentenced them to death as Tazir under section 302, P.P.C. He also convicted and sentenced the appellants to seven years' R.I. each and fine of Rs.10,000 each or in default to suffer further R.I. for one year each under section 201/34, P.P.C. The appellants were, however, acquitted of the charges under section 5/10 of the Zina Ordinance. Feeling aggrieved of the said judgment both the appellants have preferred the present criminal appeal from jail. There is also Murder Reference No. 10 of 1974 filed by the learned Additional Sessions Judge, Swabi under section 374, Cr.P.C. for confirmation of death sentences of both the appellants. Both the appeal and the murder reference are to be disposed of by this single judgment.

2. Facts of the prosecution case in brief are that on 19-9-1991 at 11-00 hours; Mst. Yasmin wife of Wareed Gul deceased went in the company of Muhib Gul father of the deceased to Police Station Kalu Khan and while recording her report (Exh. P.Z.) about the missing of her husband she stated therein that her husband Wareed Gul had left his house for the last 8 days telling her that he was going to Mardan for attending ' Shabi Jumma' and when he did not return home till 2/3 days she informed Muhib Gul, her father-in-law and her other relatives. She did not charge any one in the report. However, she stated that her husband had friendly relations with Kachkol resident of Ismaila who was running a shop near their house and both the deceased and Kachkol appellant were on visiting terms with each other.

3. P.W.9, Muhammad Anwar, A.S.-I. after recording the report in the daily diary obtained thumb-impression of the complainant Mst. Yasmin as also of Muhib Gul father of Wareed Gul deceased. He sent the D.D. to Police Station Kalu Khan for obtaining permission for investigation under section 156(3), Cr.P.C. He then went to the house of the deceased Wareed Gul alongwith the abovementioned two complainants and the general public and during search of the house of the deceased the said A.S.-I. suspected a place inside the 'Kotha' which was newly plastered with mud. He dug out that place wherefrom dead body of Wareed Gul deceased was recovered which was identified by Muhib Gul father of the deceased, who then made a report to the said A.S. -I. on the spot on 19-9-1991 at 16-00 hours as per Murasila Exh.P.A./1 on the basis of which case was registered under section 302/34/201, P.P.C. as also under section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. Exh.P.A. in Police Station Kalu Khan on the same day at 17-15 hours wherein complainant Muhib Gul has stated that he had gone to Abbottabad to earn his livelihood some 2/3 years back. He received information that whereabouts of his son were not known for the last 7/8 days prior to the lodging of the report. He came to the house of his son Wareed Gul and alongwith his daughter-in-law Mst. Yasmin went to the police station where Mst. Yasmin lodged the report about the missing of her husband. Then with the help of the relatives the police searched the house of the deceased and from a ' Kotha' thereof the dead body of the deceased was recovered from a ditch, who was killed with a sharp-edged weapon. After having satisfied himself the complainant Muhib Gul charged his daughter-in-law Mst. Yasmin and Kachkol son of Sanab Gul for committing the murder of his son and burying the dead body in the ' Kotha' of the house of the deceased for concealing it. Motive for the offence was stated to be illicit relations between Kachkol and Mst. Yasmin appellants and for these relations they conspired and killed the deceased.

4. The Investigating Officer then prepared the injury sheet and inquest report Exh.P.M./2 and Exh.P.M./3 respectively of the deceased. He also prepared the site plan Exh. P.B. and got post-mortem on the dead body of the deceased on the spot by Dr. Ikramullah (P. W .4), Medical Officer Incharge of Civil Hospital, Kalu Khan on 19-9-1991 at 5-00 p.m. The Investigating Officer then carried out the house search of Kachkol appellant and recovered a blood stained axe P.1/A as the weapon of offence from inside the house, which was stained with blood at the handle and prepared the recovery memo. Exh.P.R. to that effect. The appellant Mst. Yasmin was produced on 21-9-1991 before Rizwanullah Khan the M.I.C., Swabi for recording her confessional statement which was recorded as Exh. P. W. 1 /

1. Appellant Kachkol was absconding, hence Imam Din F.C.19 (P.W.2) was entrusted with the warrant of arrest under section 204, Cr.P.C. which he returned unserved alongwith 204, Cr.P.C. which he returned unserved alongwith his report Exh.P.2/1. He was then entrusted with proclamation notice and the provisions of section 87/88, Cr.P.C. were complied with. After arrest of the appellant Mst. Yasmin on 20-9-1991 at her pointation S.H.O. Samar Ali (P.W.8) recovered a shovel P.6 vide memo. Exh.P.R./3. After completion of formal investigation complete challan against Mst. Yasmin appellant and under section 512, Cr.P.C. against Kachkol appellant was submitted. Appellant Kachkol was also arrested on 9-11-1991. His confessional statement Exh.P.W.12/3 was recorded on 16-11-1991 and after completion of formal investigation against him, supplementary challan was also put in Court. Dr. Ibrarullah, Medical Officer, Civil Hospital, Kalu Khan on 19-9-1991 conducted autopsy on the dead body of deceased Wareed Gul at 5-00 p.m. and found the following:-- External examination: Body was swollen, extremely foul smelling and the skin had peeled off the body. Putrefaction had set in. (1) An incised wound 4" x 2 in front on the forehead. (2) An incised wound size 5" x 2" on the left side of the skull (3) An incised wound size 4" x 2" on the back of the skull Internal examination Scalp, skull, membranes and brain we injured. Bones of the skull were fractured. Death of the deceased was opined by the doctor to be due to haemorrhage and shock and injury to the brain caused by sharp-edged weapon. One Shalwar and one Bunyan of the deceased was handed over to the police alongwith the post-mortem report. Time between injury and death was stated to be immediate and that between death and post -mortem was stated to be within 5 to 7 days. The post-mortem report Exh. P.M. and pictorial Exh.P.M./1 are in his handwriting and correctly bears his signatures while injury sheet Exh.P.M./2 and inquest report Exh.P.M./3 are duly endorsed by him.

5. Arguments of the learned counsel for the parties were heard and the record of the case perused with their assistance. In this case the prosecution has relied on the following grounds for demanding death penalty for both the appellants which reasons have ostensively prevailed with the learned trial Court and entailed in the passing of the death sentence on both the appellants: -- (i) Motive (ii) Direct charge in the F.I.R (iii) Confessional statements of both the appellants (iv) Circumstantial evidence corroborating the confessional statements. (v) Abscondence of the appellant Kachkol. Before discussing the reasons enumerated above this Court would like to observe that the case in hand must have created ripples of sensations subtle feeling of nausea and disgust which might have aroused euphoria for revenge and punishment of all those who could be nominated for commission of the brutal act at the time of discovery of the dead body of the deceased from his own house while the culprits pronounced were his own wife and her alleged paramour. There must have been a very shop reaction of the people of the area to the gory crime and the people of the locality must have been emotionally involved to influence the investigation knowingly or unknowingly against the two culprits nominated for the crime and the investigation agency may have been swayed by the emotion and the sentiments of the people to padd up the prosecution case to obtain a conviction and appease the excited reaction of the people and to assert that the law takes its own course to bring the criminals to justice. In the light of above observation it is incumbent upon this Court, which is distant from the occurrence its emotional and sentimental reactions, both in time and space to objectively assess the evidence collected by the Investigating Agency and produced in the trial Court and arrive at a just conclusion demanded by the principles of administration of criminal justice. Before embarking upon the objective analysis of the evidence on which the prosecution has based the edifice of its case the well-settled principles of objective analysis applicable and attracted in this case are enumerated as under:-- (i) Retracted confessions require unimpeachable corroborative evidence (ii) One piece of tainted evidence cannot prove the other piece of such evidence. (iii) Suspicion cannot take the place of proof. (iv) To fill in the lacuna of the prosecution case the evidence adduced shall be subjected to more severe scrutiny and shall only be adopted when proved without any shadow of doubt. (v) The portion of the evidence in the sight plan of the crime or of pointation of places of recovery of incriminating evidence in the site plan and in the pointation plan at the instance of the P.Ws. shall be proved according to Evidence Act and the statements of the P.Ws. to the extent be treated as recorded under section 161, Cr.P.C. The motive for the offence as given out by the maker of the report Muhib Gul is that appellant Mst. Yasmin had developed illicit relations with Kachkol appellant, who had earlier endeared her husband, and obtained access to her body whenever it was conveniently possible without fear of detection. It is very strange that the revelation of illicit relationship between the two appellants dawned on the father of the deceased when he lodged the report at 16-00 hours on 19-9-1991 though on the same day at 11-00 hours when Mst. Yasmin lodged her report, duly accompanied by the complainant, to the effect that whereabouts of her husband were not known for the last 12/13 days prior to the lodging of the report Exh. P.Z. He was ignorant of existence of any such relationship between the appellants. It was this report lodged by the appellant Mst. Yasmin, which led to the ultimate recovery of the dead body of the deceased Wareed Gul from a ' Kotha' of the house in which he allegedly last resided. Now the time of recovery of the dead body land lodging of the report in the shape of Murasila must have been connived by preliminary enquiry and investigation and for nomination of the convict for the offence. Who provided this allegedly incriminating evidence and in what shape or manner is not known nor the prosecution has made any effort to unveil it and place it before the trial Court. Of course there are the retracted confessional statements of Mst. Yasmin and her alleged accomplice who have in their retracted confessional statements admitted such relationship between them but at the time of the report lodged by the complainant these confessional statements which were recorded later were not available nor was available any other evidence to base the allegation thereon and nominate the appellants for the offence. At this stage this Court would observe that it does not altogether exclude possibility of existence of any such relationship between the appellants but at the same time it cannot presume existence of any such relationship on the basis of the suspicions aroused through any whispering disclosures by residents of the locality. Suspicion cannot be made basis for proof of a fact, though it may be sufficient to unleash unrelenting efforts to find evidence to substantiate it when crime of such a nature is committed and may prompt the Investigating Agency to supplement the prosecution story in such a false manner as to convince the Court of the crime having been committed for the motive spelled out in the report.

6. In the first instance the prosecution was bound to prove that the appellants lived in close vicinity to facilitate commission of the crime of adultery. Granted that earlier the deceased and his wife lived near the shop of the co-accused Kachkol and may be the appellants may have developed the illicit relationship but there is no evidence to the effect which may convert the suspicion into unrelentable proof or proof without shadow of doubt. No witness has been produced to prove the suspicion. The prosecution has then shifted the venue to the new house rented to Mst. Yasmin and her husband near; the mosque where the appellant Kachkol is stated to visit her to commit Zina. There is no evidence to dispel the doubt on the allegation of Zina between the appellants. P.W.5 Sanobar Bacha, Pesh Imam of the mosque has never stated that he had ever seen the appellant visiting her, the appellant Mst. Yasmin in the house, or having ever seen him leaving her home but all the same he stated that illicit relationship did exist between the two appellants. The veracity of the testimony of witness is not determined only from the fact that as to whether the witness is a truthful or a lier by nature but also from the fact as to how far the witness is careful and cautious in his dealings and particularly as to whether he is in the habit to ascertain the correctness of his statement. Sanobar Bacha, Pesh Imam of the mosque examined as P. W. 18 does not inspire confidence. He has stated that Kachkol appellant was on visiting terms with the deceased. Now this statement does not automatically lead to conclude that since appellant visited the deceased he had illicit relations with the appellant Mst. Yasmin. This witness has stated that on the night of occurrence he heard cries at about 2-00 a.m. from the direction of the house of the deceased but he has failed to identify the cries to be of male or a female and surmised that since appellant Mst. Yasmin was a woman of dubious character therefore he conjectured that she might be being beaten by her husband and she might be crying. Now there are no grounds to say that the cries were of the appellant Mst. Yasmin that she was beaten by her husband and she was a woman of loose character. This witness states that the deceased who regularly offered prayers in the mosque did not turn up for the prayers 7/8 days after he had heard the hues and cries from the direction of the house of the deceased. He did not care to investigate the reason and causes of the hues and cries nor tried to ascertain as to who had raised these cries and why he did not mention this fact to any body and did not bother about the absence of the deceased from the morning prayer for 7/8 days and he kept quiet. The offering of prayers in a mosque with congregation has its own wisdom, reason and benefits. One of these benefits is that if a person regularly offers his prayers in the mosque fails to offer such prayer in the mosque, then his companions try to find out the reason of his absence from the prayer and if he is in need of help they render the same to him. It was only when the father of the deceased Wareed Gul brought the police to the house of the deceased where appellant Mst. Yasmin was present and the body of Wareed Gul was dug out from the residential ' Kotha' that he, when examined, made the statement. So this witness is not trustworthy for the proof of illicit relations between the two appellants. He has admitted in cross-examination that he has not stated specifically before the police that Mst. Yasmin was woman of loose character. He has admitted that his own residential house was situated at a distance of about one furlong from the mosque and at 2-00 a.m. in the morning he heard hues and cries in the mosque but it is not known as to whether he used to sleep in the mosque or not and why was he in the mosque at the time when he heard hues and cries from the house of the deceased. He admits that he has not seen Mst. Yasmin inside the house prior to the day of the recovery of the dead body. As earlier said the entire statement of this witness is of such a nature that it depicts the maker of the statement to be a person of careless habits making statements without verifying their truthfulness and drawing his own conclusion on the basis of conjectures. So even otherwise if this witness is truthful, even then he loses his credibility by virtue of his careless habits and by reason of his making statements the truthfulness of which he does not care to ascertain. This is the sole witness through whom the prosecution has tried to prove existence of immoral relationship between the two appellants and it points only to suspicion, of illicit relations without any proof thereof. When we exclude the statement of this witness on the motive of illicit relationship between the appellants then we are left with the retracted confessional statements, which would be later discussed in the body of this judgment. So this Court is of the view that the prosecution has not been able to prove the motive for the offence without any doubt. The possibility .of any such relationship can be suspected but suspicion is not a substitute for proof and the administration of criminal justice requires a proof without any shadow of doubt and particularly in this case, when two persons are facing gallows, the doubts inherent in the story of the prosecution leads to the conclusion that the prosecution has failed to bring home the truthfulness of the fat that the appellants were having immoral relationship with each other.

7. The prosecution has correctly laid stress on the recovery of the dead body from the residential ' Kotha' of the deceased house through R W.18 Sanobar Bacha. The prosecution has attempted to prove that the appellant Mst. Yasmin shifted to the house adjacent to the mosque known as Dhery Sar of which P. W.18 Sanobar Bacha is the Imam. The prosecution evidence is silent as to when the couple shifted to this house and as to where Mst. Yasmin was after the hues and cries heard by this witness at 2-00 a.m. in the morning from the direction of their house. Mst. Yasmin had four children and must have been living somewhere after the fatal night but the prosecution has very conveniently omitted the place of abode of Mst. Yasmin appellant after the alleged occurrence. Even the prosecution failed to put question to the appellant Mst. Yasmin to the effect as to where she had gone after the alleged murder of her husb4nd in collaboration with her alleged paramour. So the prosecution has been able only to the recovery of dead body of the deceased from the residential 'Kotha' of the house in the vicinity of the mosque of which P.W.18 Sanobar Bacha was a Pesh Imam but whether factually this ' Kotha' was the residential Kotha' of the deceased and his wife, has not been proved. Moreover mere recovery of the dead body from inside the ' Kotha' of the deceased does not of its own connect the appellants with the commission of the crime. The prosecution had to rely on the circumstantial evidence in support of the retracted confessional statements. Recovery of the dead body from the house of the deceased is being projected as a circumstance corroborating the statements of the two appellants in their retracted confessional statements, but this Court is of the view that the prosecution could validly suspect that the deceased may have been put to death by the two appellants and buried him in the ' Kotha' of his own house but the prosecution has failed to substantiate the suspicion by evidence inspiring confidence. Therefore, even if dead body is recovered from the Kotha' of the deceased even then it does not prove that he was killed by the two appellants and that the killing took place inside the house in which the ' Kotha' is situated. The learned State Counsel has contended that the appellants have been directly and promptly charged in the F.I.R. at the spot after the recovery of the dead body. The dead body was recovered from allegedly the residential Kotha' of the deceased on 19-9-1991 but the time of its recovery has not been shown in the F.I.R. The crime so alleged to have been perpetrated on the night between twelfth and thirteenth of September, 1991 and the case was registered through Murasila Exh.P.A./1 which was written at 16-00 hours. Now Mst. Yasmin had made her report through Serial No.20 of daily diary on 19-9-1991 at 11-00 hours Exh. P.Z. about the missing of her husband. She was in the company of her father-in-law, complainant in the F.I.R. Exh.P.A. So till 11-00 a.m. of 19-9-1991 the complainant did not know about the death of his son and has not given any statement to the effect that the appellants had illicit relations between themselves. All that transpired between 11-00 a.m. on 19-9-1991 and 16-00 hours on the same day cannot be ascertained. The only fact that comes to light is that after I1-00 a.m. when the report in the daily diary of Mst. Yasmin was registered investigation under section 156(3), Cr.P.C. was initiated and it was through these investigations that the dead body of the deceased was recovered from the house adjacent to the mosque of P.W.18 in presence of Mst. Yasmin. Who furnished the details given in Exh. P.A. regarding illicit relations between Mst. Yasmin and Kachkol to the maker of the report is not disclosed. This Court has already observed that it does not exclude the possibility of any such relationship between the appellants but as held that this relationship was not proved and the complainant may have charged the appellants for the commission of the crime on the basis of suspicion, but apparently, from the perusal of the record, it is abundantly clear that no credible foundations of any such suspicion exist to warrant nominating the appellants for the crime. Thus, it is evident that nomination of the appellants for the commission of the crime is prompted by the rumours and suspicion prevailing in the area at the time regarding dubious relations between the appellants but this fact has not been legally proved.

8. Now before taking up the retracted confessional statements recorded in this case the evidence produced in support thereof is discussed. The only allegedly corroborative evidence in support of the confessional statements available or procured or planted are the recovery of the alleged weapon of offence Exh. P.1/A taken into custody vide memo. Exh.P.R., shirt P.1, Shalwar P.2 grey colour Pakistani tetron, a pair of shoes not exhibited recovered vide memo. Exh.P.R./1 and a shovel P.6 recovered vide memo. Exh.P.R./3. Now we take these recoveries one by one and discuss the legal steps taken while effecting these recoveries and the legal value and implications of these recoveries and discuss the same in the light of the charges levelled and leading to the conviction of the appellants. The axe P.1./A, allegedly, was blood-stained and oddly enough the blood stains were on the handle of the axe and not on the blade of it. This recovery was made on 19-9-1991 but this axe was received in the Chemical Laboratory on 9-10-1991 that is about after twenty days of its recovery. The axe should have been sent to the Chemical Examiner immediately after its recovery and its retention for 20 days by the Investigating Agency throws sufficient clouds of doubt on the evidentiary value of the blood stains allegedly found on the handle of this axe. No explanation has been given by the prosecution as to why this axe was not promptly sent to the Chemical Analyst for examination, and in absence of any such explanation, reliance on this recovery linking the appellants with the crime for convicting two persons and depriving them of their life is not justified. Retention of any such property of such an importance by the police or the Investigating Agency does discredit the entire evidence in this regard. So the recovery of axe and its carrying blood stained marks of the deceased does not inspire confidence and cannot corroborate the retracted confession of the appellants.

9. The prosecution has manoeuvred to connect the appellants with the commission of the crime through the recovery of the blood-stained axe from appellant Kachkol's residential house. The story as told by the prosecution is that the appellant after having used the axe in killing the deceased decamped with it and took it -to his home. Now this version does not ring sound. After committing the murder the appellant allegedly buried the dead body of the deceased in the residential room inside the house under occupation of the deceased as tenant. The appellant could have very conveniently buried the axe alongwith the dead body or if this disposal of the weapon of offence did not occur to him at the time of the burial of the dead body of the deceased, the appellant could have disposed it of in his way to his house in the fields or elsewhere as it did not carry any mark of identification which could link the appellant with the offence if subsequently recovered but it is most improbable that he would take it to his own house and hide it there. It does not sound true or rational on the part of the appellant to hide the alleged weapon of offence in his own house to be discovered subsequently by the Investigating Officer.

10. The next point, which militates against accepting the axe to be the crime weapon used by the appellant is the fact that while the handle bears the blood stains the blade of the weapon which actually caused injuries on the head of the deceased is not stated to be stained with blood. This is very odd phenomenon, the blade not shown to be blood-stained but the handle carrying the blood stains. 'This is not credible. Reference to the axe in the confessional statement of appellant Kachkol loses its evidential value for the reason that the police had already allegedly recovered the axe from the-house of the appellant Kachkol and Kachkol being in their custody could well be prevailed upon to confirm the police investigation in this regard. Any imputation to appellant about the axe, which was within the knowledge of the police prior to its admission by the appellant shall be regarded with deserving caution as it cannot be without the doubt of having been tutored to the appellant in this case and there is no evidence which can repel the doubt that this admission was not the result of the tutoring of the alleged culprit who was within their custody.

11. Now we shall discuss the recovery of the weapon. It was recovered as P.1/A vide recovery memo. Exh. P.R. on 19-9-1991 while the time of recovery is not shown in the memo. in the presence of P:W. Saad Shah and P.W. Amirullah Khan, A.S.-I. Police Station Kalu Khan but only P.W. Amirullah, A.S.-I. was produced as P.W.3 to prove the recovery and P.W. Saad Shah was not produced and was abandoned vide order-sheet No.10, dated 18-12-1993. While searching the house of the appellant it was incumbent on the police to comply with the provision of section 103, Cr.P.C. and produce the witness Saad Shah as search witness but in the instant case though an independent witness was available he was conveniently abandoned and reliance has been placed on the testimony of the police witness who in the given circumstances of this case cannot be trusted without doubt to corroborate, the confessional statement and this led to the conviction of the two appellants to death. Therefore, in the light of the above objective discussion this Court has arrived at the following conclusion:-- (i) It is highly doubtful that the axe P.1/A is the crime weapon. (ii) The recovery of this weapon from the house of the appellant Kachkol is extremely doubtful. (iii) It is also extremely doubtful that the blood stains found on the handle of the weapon were in fact the stains of the blood of the deceased, this weapon recovered in the custody of police for well over 20 days and then sent to the Chemical Examiner. It was not difficult to smear its handle with blood of the group of the deceased. Before parting with the discussion of the evidentiary value of the axe as crime weapon used and hidden by the appellant Kachkol this Court would point out that the Court does not rule out the possibility of padding up the prosecution case by the Investigating Agency and this axe case might have been planted by the Investigating Officer to be recovered and displayed as weapon of offence. While we perused the confessional statement of the appellant Kachkol Exh.P.W.12/1 we found that the effort could have been made to tutor the appellant to mention the recovery of the weapon from his house, a fact which was otherwise not known to the appellant because he did not know that the axe was allegedly recovered from his house whosoever led him to, make the confession unrelentingly put the factum of its recovery in the mouth of the appellant because its mention rebounds on the impartiality of the Investigating Agency as the appellant did not know that the axe was recovered from his home. It is also pertinent to note that there is no mention of axe in the retracted confessional statement of appellant Mst. Yasmin.

12. The next corroborative piece of evidence in support of the confessional statement is the alleged recovery of one shirt P.1, Shalwar P.2 (Malatia colour i.e. dark grey) and one pair of shoes not exhibited belonging to the deceased Wareed Gul vide recovery memo. Exh.P.R./l. On 12-11-1991 about more than twenty days of the recovery of the dead body this recovery was effected allegedly on the pointation of the appellant after his arrest.

13. In the first instance it is extremely doubtful that these clothes actually belonged to the deceased because vide Exh.P.R./2 one Shalwar P.4, one Banyan P.5 were taken into possession by the Investigating Officer on 19-9-1991 produced by Sardar Ali, F.C. No.326 which were given to him by the doctor. Therefore, in the given circumstances of this case there is no scope of another pair of clothes allegedly recovered from the grave in which the dead body of the deceased was hidden as already clothes of the deceased were taken into custody vide memo. EXh.P.R./1. The prosecution has in this case also relied on the police witness Mir Jafar examined as P.W.7 and has abandoned Mira Khan an independent witness. The recovery of the clothes from the place where the dead body was hidden is extremely doubtful rather on the contrary it indicates that the investigating agency in its zeal to get a conviction forgot to comply with the legal formalities regarding recovery of incriminating evidence. Besides the dead body was recovered on 19-9-1991 from the residential 'Kotha' of the deceased whereas these clothes were recovered on 12-11-1991 almost from the same place from where the dead body was recovered. It does not sound true. If the clothes were buried in the same ditch then the same should have been recovered at the time when the dead body was exhumed. It appears that the Investigating Agency has deliberately delayed the recovery of the clothes to enable them to recover the same at the instance of the appellant Kachkol and on his pointation when in police custody. The appellant Kachkol has referred to the alleged hiding of these clothes in the same ditch from which the dead body was recovered in his confessional statement where Mst. Yasmin has not mentioned the same in her retracted confessional statement. This recovery is unnatural and has been manipulated to substantiate a weak confessional statement. Hence the Court holds that: -- (i) The clothes allegedly recovered vide memo. Exh.P.R./1 have not been proved to be that of the deceased beyond doubt. (ii) The clothes so recovered have not been proved beyond doubt to have been hidden by the appellant in the ditch in which the dead body of the deceased was hidden. (iii) The recovery itself is not proved beyond doubt. (iv) It is an effort on the part of the Investigating Agency to provide corroborative evidence to the confessional statements. (v) The pointation of the appellant in police custody of the place of hiding the clothes is also doubtful as the places were already known to the police and any pointation of places already known to the Investigating Agency cannot be taken for granted without doubt.

14. The only other recovery made relevant to the instant case was effected through Exh.P.R./3 vide which a Belcha (shovel) Exh.P.6 with which the ditch was dug has been recovered. This shovel has been shown by the appellant Mst. Yasmin to be the one used for digging the ditch for hiding the dead body of the deceased. This is a common type of shovel (Belcha) and could be the one used in exhumating the dead body. Sartaj Khan (P.W.10) marginal witness to the recovery memo has stated that his signatures were obtained and he made a statement in the Court. He does not admit recovery of this shovel in his presence. In the circumstances the recovery of the shovel and its use in the commission of the crime is also doubtful and cannot be made foundation to maintain the conviction.

15. Now after having exhaustively dealt with the circumstantial evidence adduced in corroboration of the confessional statements of the appellants this Court would take up the confessional statements, their evidentiary value, the method and circumstances the same were recorded and the credence that can be placed on them to maintain conviction.

16. The confessional statement of Mst. Yasmin was recorded on 21st September, 1991 as Exh.P.W.I/1 whereas that of Kachkol was recorded on 16th November, 1991 as Exh.P.W.12/1, after seven days of his arrest by the police. In her statement Mst. Yasmin has allegedly admitted to have illicit relations with the appellant Kachkol and murder of her husband in collaboration of appellant Kachkol. This confessional statement was recorded on the 21st of September, 1991. It is to be seen as to whether the confession has been made voluntarily without coercion, undue influence or under false guarantees. In the first instance it is apparent from the record that she was produced in the Court of Mr. Rizwanullah Khan, M.I.C., Swabi by Nisar Muhammad S.I. at 10-00 hours on the same date. It is also apparent from record that at the time of exhumation of the dead body of the deceased on 19-9-1991 Mst. Yasmin was present and on the same day at 16-00 hours case was registered against her then whatever may be the date of formal arrest of the appellant, the fact remains that for all practical purposes she was under police custody from the time of the recovery of the dead body and any confession recorded during police custody, that too after almost 48 hours of such custody, had to be relied upon gradingly with due caution and care to base conviction thereon. In cases where confessions are recorded the Court recording confession shall in the first instance establish the identity of the person whose confession the Magistrate is about to record. Exh.P.W.1/2 is the pro forma to be filled in prior to recording of the confession. In this pro forma there is a column in which ' mark of identification' has to be recorded but in this case this column has been left blank which shows that the Magistrate recording the confession did not bother to properly identify the maker of the confession and therefore, the inescapable conclusion that the person who made this confession may not be the appellant Mst. Yasmin cannot be avoided. This doubt hits at the very root of the confession, which can be safely disregarded for maintaining the conviction. Similarly the Magistrate recording confessional statement of the appellant Kachkol failed to properly identify him and give his mark of identification and the same conclusion that the maker of that confession too might not be the appellant Kachkol is inescapable. There is yet another column in which the appellant's reason for recording confessional statement is to be recorded which too has been left blank in case of Mst. Yasmin. Hence for the above two omissions as well, the confessional statement has become extremely doubtful. There are numerous authorities to the effect that where there is delay in recording the confessional statements and the maker thereof has remained in the police custody the confessional statement becomes doubtful and positive corroboration has to be sought to make such confession the basis of conviction. In the case in hand the confessional statements are doubtful and more doubtful is the alleged corroborative testimony discussed and discarded above.

17. The confession in this case of Mst. Yasmin and Kachkol are tailored to the conveniences of the Investigating Agency to prove its case against the appellants through the planted and manipulated evidence. The confessions are thus tutored. The alleged corroborative evidence of recovery of clothes and pointation of places by the appellants proceeded the confessional statement wherein these pointation and recoveries have been spotlighted. The places pointed by the appellants of the recoveries made would not be admissible as such in the site plan as the same have not been observed and recorded by the Police Officer on his own inspection.

18. The above discussion facilitates to arrive at a conclusion that the evidence adduced can be impeached on the grounds discussed above and is so dubious in character that it cannot be relied upon for maintaining conviction of the appellant to death. The Court has already concluded that the evidence adduced is tailored, doubtful and planted and cannot be relied upon for corroboration.

19. The alleged abscondence of Kachkol appellant is considered as corroborative piece of evidence by the prosecution against the appellant. The facts have been correctly mentioned in the statement of P.W.2 regarding the issuance of warrants under section 204, Cr.P.C. and subsequent steps taken in pursuance to issuance of warrants under section 87/88, Cr.P.C. against Kachkol appellant. The occurrence took place on the night between 12th and 13th of September, 1991 and an application was moved which is Exh.P.E./1 for issuance of the search warrants under section 204, Cr.P.C. and the proclamations under section 87/88, Cr.P.C. were issued on 14-4-1993. The appellant was arrested on 16-11-1991. The abscondence would commence from the date of expiry of 30 days given in the notice under section 87/88, Cr.P.C. and in this case hardly a day has passed on the completion of 30 days as spelled out in the proclamation, when the accused was arrested. Therefore, in this case the abscondence is reduced to one day only and when we take the circumstances in which the warrants were issued and served under section 204, Cr.P.C. and similarly the proclamation and service thereof there is ample room to conclude that these have not been strictly served in accordance with law. P.W. Imam Din F.C. 19 Police Station Kalu Khan, who was entrusted with the warrants under section 204, Cr.P.C. has admitted that signatories Raza Khan and Mira Khan of the warrant Exh.P.W.2/1 are not Lumbardars or councillors. He does not know the name of the Mohallah in which the appellant was residing. He had not inquired from any body in the adjacent house about the whereabouts of the appellant. He had not inquired about the name of the Lumbardar and Chowkidar of the village. The appellant ran a shop according to this witness, which was closed and so were closed the other shops in the vicinity. So the warrants under section 204, Cr.P.C. and similarly the proclamations have not been served according to law and this deficiency in the proper service of the proclamation and the fact that only one day had elapsed on the 30 days period fixed in the proclamation for the appellant to surrender himself would disregard the evidence of abscondence of only one day as sufficiently strong to corroborate the retracted confession of the appellant Kachkol.

20. The suspicion in the case against both the appellants has led to concoction, planting of evidence, tutoring of confessions and therefore, the suspicion given birth to so many ills cannot be relied upon for upholding the prosecution story as suspicion cannot take the place of proof of I the crime.

21. In the light of the above discussion this appeal is accepted, the conviction and sentences of both the appellants are set aside and they are acquitted of the charges levelled against them under section 3026,101/34, P.P.C. Both the appellants shall be set at liberty forthwith if not required in any other case. Murder Reference is answered in the negative. N.H.Q./2077/P Appeal accepted