2025 PLP 1710 (SCMR)

MALIK SHAHZAD AHMAD KHAN, J.

Abid and Mst. Farida (appellants) were tried by the learned Additional Sessions Judge/IZQ-I, Buner, pursuant to a case registered vide FIR No. 464 dated 22.04.2016, under Sections 302/404/34, P.P.C. read with Section 15-AA, at Police Station Daggar, Buner. The learned Trial Court vide its judgment dated 13.12.2017, convicted and sentenced the appellants as under:- Abid (In Criminal Appeal No.154/2023) Under Sections 302(b)/34, P.P.C. Death for the murder of Sher Alam and to pay fine Rs.5,00,000/- payable to the legal heirs of deceased as compensation under Section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months. Under Section 404, P.P.C. Rigorous imprisonment for seven (07) years with fine of Rs.30,000/-, recoverable as arrears of land revenue and in default thereof to further undergo simple imprisonment for three (03) months. Under Section 15-AA Rigorous imprisonment for three (03) years with fine of Rs. 10,000/-, recoverable as arrears of land revenue and in default thereof to further undergo simple imprisonment for one (01) month. Mst. Farida (In Criminal Appeal No. 155/2023) Under Sections 302(b)/34, P.P.C. Death for the murder of Sher Alam and to pay fine Rs.5,00,000/- payable to the legal heirs of deceased as compensation under Section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months. The benefit of Section 382-B, Cr.P.C. was extended to the convicts and the sentences of imprisonment awarded to Abid appellant were ordered to run concurrently.

2. In appeal, the learned High Court maintained the convictions and sentences awarded to Abid (appellant), whereas while maintaining the conviction of Mst. Farida (appellant), under Sections 302(b) and 34 P.P.C., altered the sentence of death awarded to her into imprisonment for life. The amount of compensations awarded against the appellants and the sentences in default thereof were maintained. Benefit of Section 382-B Cr.P.C., was also extended in favour of the appellants.

3. Arguments heard. Record perused.

4. As per contents of the FIR, (Ex.PA/1), Musa Khan complainant (PW-8), alleged that he and his paternal uncle namely Sher Alam (deceased), along with their families were living in the same house situated in village Pai-Khan Jangdara, District Buner. On the preceding night of 22.04.2016, his paternal uncle along with his family members went inside his room to sleep but on the next morning the female family members raised hue and cry, which attracted the complainant and other family members to the room of Sher Alam deceased), where they saw that neck of Sher Alam (deceased), was cut with a sharp edged weapon and he had been murdered. The complainant further alleged that he had no clue about the motive of the murder of his paternal uncle, however, his paternal uncle had contracted three (03) marriages and had divorced his one wife namely Mst. Tajria Zainab. He further alleged that in the year 2014, Hamesh Khan, who was father-in-law of his paternal uncle namely Sher Alam (deceased), was murdered and the deceased was implicated in the said murder case with the allegation of abetment of the murder of his father-in-law.

5. The appellants were not named in the FIR, which was lodged against the unknown accused. However, the appellants were later on implicated in this case on 28.04.2016, when the complainant named them as accused in this case. Mst. Farida and Abid (appellants), statedly made judicial confessions before Wajid Alam, Judicial Magistrate Shabqadar (PW-10), on 28.04.2016 and 30.04.2016, respectively, wherein they stated that they had developed illicit relationship with each other due to which they committed the murder of Sher Alam (deceased), who was husband of Mst. Farida (appellant). The judicial confessions of the appellants were later on retracted by them. It is true that convictions and sentences can be awarded to the accused on the basis of their retracted judicial confessions, provided the said judicial confessions are corroborated by some independent evidence. In this respect, we have noted that the appellants stated in their retracted judicial confessions that before the occurrence, sleeping pills were administered to Sher Alam (deceased), whereupon he became sleepy and then both the appellants committed his murder. According to the medical evidence brought on the record through Dr. Fazal Wahab (PW-4), the contents of the stomach of the deceased were obtained through a syringe and the same were sent to the office of FSL but perusal of FSL report (Ex.PZ/3), shows that no drug was detected in the said contents. It is argued by learned Additional Advocate General that the retracted judicial confessions of the appellants were corroborated by the recovery of Churri (P-7), at the pointing out of Abid (appellant), as well as, by the recovery of blood stained dupatta and nara (belt), recovered at the pointing out of Mst. Farida (appellant) and the same is further corroborated by the FSL report, which shows that the above-mentioned articles were stained with human blood having the same blood group but it is noteworthy that the prosecution has not brought on the record that what was the blood group of Sher Alam (deceased), therefore by merely mentioning this fact that the abovementioned articles were of the same blood group by itself is not sufficient to connect the appellants with the alleged offence.

6. It is further noteworthy that no proper postmortem examination on the dead-body of the deceased was conducted in this case and the prosecution case is based on external medical examination on the dead-body of the deceased.

7. We have also noted that an application for examination of the contents of the stomach of Sher Alam (deceased), was moved by the police on 22.04.2016, wherein it was stated that the deceased was administered sleeping pills before his murder, therefore, the contents of his stomach may be sent to the office of FSL for analysis and detection of poison/drug in the said contents but it is noteworthy that the story of administering sleeping pills to the deceased by the appellants before the commission of his murder was introduced through judicial confessions of Mst. Farida and Abid (appellants), which were recorded on 28.04.2016 and 30.04.2016, respectively. It is, therefore, not understandable that if the story of administering sleeping pills to the deceased before his murder was introduced by Mst. Farida and Abid (appellants), on 28.04.2016 and 30.04.2016, respectively, then as to how the prosecution moved the above-mentioned application on 22.04.2016, for analysis of stomach contents of the deceased. The said fact shows that the prosecution had already planned to implicate the appellants in this case with the abovementioned allegation that they both first administered sleeping pills to Sher Alam (deceased) and then they committed his murder.

8. It has also been brought on the record during recording of statements of the prosecution witnesses that Musa Khan complainant and Sher Alam (deceased) along with their family members were living in the same house and there were as many as eight (08) inhabitants of the house, where the occurrence took place but none from the said inhabitants had any clue about the murder of Sher Alam (deceased), in the house, where they were also present on the night of occurrence.

9. It was further brought on the record during judicial confession of Mst. Farida (appellant) that two children of the said appellant from her husband Sher Alam (deceased), namely Reshman aged about 12/13 years and Ahmad Alam aged about 8/9 years were living in the same house, where the occurrence took place. Even in the site plan of the place of occurrence (Ex.PB), the presence of two children of Mst. Farida (appellant) and her husband namely Sher Alam (deceased), was shown at point No.2 but none from them was produced in the witness box by the prosecution. The abovementioned two children of Mst. Farida (appellant) and the deceased were the most natural witnesses of the occurrence because they were sleeping in the same room, where the occurrence took place but they were not produced in the witness box, therefore, an adverse inference under Article 129(g) of Qanun-e-Shahadat Order, 1984 can validly be drawn against the prosecution that had the said witnesses been produced in the evidence, they would not have supported the prosecution case. Reference in this context may be made to the judgments reported as "Lal Khan v. The State" (2006 SCMR 1846), "Riaz Ahmed v. The State" (2010 SMCR 846), "Abdul Qadeer v. The State" (2024 SCMR 1146) and "Riasat Alam v. The State" (2024 SCMR 1224).

10. Insofar as the motive of inter-se illicit relationship between both the appellants is concerned, no prosecution witness has stated that he had ever seen the appellants in any objectionable condition or even talking to each other. Moreover, Mst. Farida (appellant), was living with Sher Alam (deceased) as his wife till the time of his death. Admittedly there was no litigation or a family suit between Mst. Farida (appellant) and her husband namely Sher Alam (deceased). We are, therefore, of the view that the motive as alleged by the prosecution has not been proved in this case.

11. Keeping in view all the above-mentioned facts, we have come to this irresistible conclusion that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt. It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story. Consequently, these appeals are allowed. The impugned judgment is set aside. The appellants are acquitted of the charges while giving them the benefit of doubt. They shall be released from the jail forthwith unless required to be detained in any other case. JK/A-37/SC Appeals allowed.