1989 P Cr (PLP)

(iii) He did not open tile door when asked to do so by complainant Ghulam Hussain, his close neighbour. (iv) He was having injury on his hand and in order to conceal it had wrapped a Chadar around it. (v) He made extra‑judicial confession before complainant Ghulam Hussain (P.W.1) soon after the incident. (vi) The blood‑stained Chhuris were lying near the dead body. (vii) Recovery of blood‑stained Pyjama, Banyan and handkerchief from the roof of the house at the pointation of this accused. (b) MST. KULSOOM.‑‑ (i) She being the wife of deceased Muhammad Yaqub resided in the same house with deceased Muhammad Yaqub. (ii) She was present in the house of deceased, Muhammad Yaqub when this incident took place. (iii) She did not open the door when asked to do so by complainant Ghulam Hussain, her close neighbour. (iv) She was implicated by appellant Muhammad Sarwar in his extra‑judicial confession made before complainant Ghulam Hussain. (v) She was not found weeping when complainant Ghulam Hussain entered into the house of deceased Muhammad Yaqub. (vi) Recovery of blood‑stained Shalwar at her instance.

7. The factum of unnatural death of deceased Muhammad Yaqub is not disputed by the appellants. The Medical Officer who had conducted the autopsy on the dead body of Muhammad Yaqub, was not available and consequently the post‑mortem report was brought on record through Aijaz Hussain Shah, 1.0. (P.W.2).

8. A conviction may be based on circumstantial evidence alone, but in order that it may be relied upon, it must be compatible with the guilt of the accused. It must be such as may point only to one possible inference leading to the conviction of the accused. However, in the case of circumstantial evidence failure of one link destroys the entire chain. To establish an offence, therefore, by circumstantial evidence four things are essential:‑ (i) The circumstances from which the conclusions are drawn, should be fully established. (ii) All the facts must be consistent with the hypothesis. (iii) The circumstances should be of a conclusive nature and tendency. (iv) The circumstances should, to a moral certainty, actually exclude every hypothesis, but the one proposed to be proved.

9. The fact that appellant Muhammad Sarwar, who is step‑brother of deceased Muhammad Yaqub, resided in the same house where the incident took place, is not open to any controversy. He has also not disputed his presence in the said house on the night of incident. Ghulam Hussain (P.W.1), who is close neighbour of deceased Muhammad Yaqub and completely an independent person, has stated on oath that the appellant did not open the door of the housel which was bolted from inside when asked by him to do so. The plea that some outsiders were responsible for causing the death of Muhammad Yaqub, therefore, stands falsified from this conduct of appellant Muhammad Sarwar.

10. Appellant Muhammad Sarwar admits the injuries on his person but' states that the same were the result of police torture. The F.I.R. which was lodged with great promptitude makes a mention of injury on the person of appellant Muhammad Sarwar. Ghulam Hussain (P.W.1), has testified about the presence of injury on the person of appellant Muhammad Sarwar soon after the incident. This piece of evidence was not questioned by appellant Muhammad Sarwar in cross‑ examination and is deemed to have been accepted by him. The medical report which has come on record through Aijaz Hussain Shah S.H.O. (P.W.2) as (Exh.49), confirms this position. This is a strong circumstance going against appellant Muhammad Sarwar.

11. The prosecution has tried to establish the recoveries of blood‑stained articles at the instance of appellant Muhammad Sarwar through Aqueel Ahmad (Exh.32) and Aijaz Hussain Shah (P.W.2). The statement of Aqueel Ahmad (Exh.32) recorded before the committing Magistrate was transferred to the file of Court of Session under Article 47 of the Qanun‑e‑Shahadat, 1984, as he was not traceable when summoned to appear before the Court of Session. The learned counsel for the appellants has questioned the admissibility of the statements of Wazir Ali, Muhammad Rashid and Aqueel Ahmed. It will be seen that the learned Additional Sessions Judge made all possible efforts to procure the attendance of these witnesses and their statements were transferred to his file after the process‑servers testified that there was no possibility of their appearance. Where a witness cannot be found, his evidence given in a former judicial proceeding will be relevant in subsequent judicial proceeding. The evidence of Aqueel Ahmad proves beyond any shadow of doubt that appellant Muhammad Sarwar had pointed out Banyan, Pyjama and handkerchief which were secured by Aijaz Hussain Shah S.H.O., and were sealed. These articles were sent to Chemical Examiner for report, which is on record (Exh.48). According to this report the Banyan was found stained with human blood of group `O' which was also the group of blood of deceased Muhammad Yaqub found on loin cloth vide (Exh.48).

12. Lastly there is evidence of extra‑judicial confession of appellant Muhammad Sarwar made before complainant Ghulam Hussain. An extra‑judicial confession is merely a confession made outside the scope of judicial confession. The weight to be accorded to such confession would depend entirely upon the context of the circumstances, the person to whom it was made, and the actual conditions under which it was made, which may probabilize the voluntary nature and truth of the confession, or otherwise. As observed earlier Ghulam Hussain (P.W. 1) is a natural and independent person. No enmity is alleged or suggested with this witness. His testimony that appellant Muhammad Sarwar admitted the killing of his step‑brother Muhammad Yaqub, therefore, carries much weight, specially when it is supported by other circumstances attending to this case. The evidence of Ghulam Hussain (P.W.1) is assailed by the learned counsel for appellants on two‑fold grounds, firstly that the so said extra‑judicial confession was made in presence of police, and secondly Ghulam Hussain stood belied from the statement of Wazir Ali (Exh.28) who does not speak about such confession. A careful examination of the evidence of Ghulam Hussain (P.W.1) shows that appellant Muhammad Sarwar confessed his guilt twice, once before lodging the F.I.R. before Ghulam Hussain (P.W.1), and secondly after the commencement of investigation before the Police Officer. The latter confession is undoubtedly inadmissible, but not the earlier one. As regards the evidence of Wazir Ali (Exh.28), it may be observed that if one witness deposes with regard to a certain fact that it happened and another witness, who also claims to be present at the same time keeps quiet about that aspect of the case, greater weight should be attached to the witness, who alleges the affirmative.

13. There is, therefore, strong circumstantial evidence on record proving the guilt of appellant Muhammad Sarwar. The cases of Yousuf v. The State reported to 1975 P Cr. L J 936 and Makha v. The State reported in 1975 S C M R 394, may be usefully referred in this context. The conviction and sentence recorded against appellant Muhammad Sarwar are, therefore, maintained.

14. The case of appellant Mst. Kulsoom, however stands on different footings. She is the widow of deceased Muhammad Yaqub any was admittedly residing with him in the same house. She also admits her presence at the Wardat at the time of incident. The fact that she raised cries at the time of incident is not disputed. In fact her cries attracted complainant Ghulam Hussain. Her cries were being heard by the witnesses when they had collected at the door of her house. The possibility that she was asked by appellant Muhammad Sarwar not to open the door, therefore, cannot be ruled out. Her conduct, no doubt raises a strong suspicion against her. The suspicion, however strong it may be, cannot be taken as substitute of legal evidence. The fact that she was not weeping at the time of incident and after the arrival of neighbours stands belied from the evidence of Wazir Ali (Exh.28) who found her weeping.

15. The recovery of blood‑stained Shalwar at the instance of Mst. Kulsoom is again not proved. Both the Mashirs were not examined and it is highly risky to rely upon the evidence of Police Officer alone to this effect. Even otherwise she was wife of deceased Muhammad Yaqub and in normal course her Shalwar could be stained with blood of her own husband while taking care of him at the relevant time.

16. Again the conviction of an accused person can never be based upon extra‑judicial confession of co‑accused. Whenever, therefore, the Court has to deal with a confession of co‑accused, the. Court should start with the rest of the evidence, and not the confession. If the rest of the evidence is wholly unsatisfactory, the confession of the co‑accused will not be of any avail to the prosecution. An alternate hypothesis inconsistent with the guilt of Mst. Kulsoom is very much there and in the event of such a possibility of two versions, the settled principle of law is that the one favourable to the accused has got to be preferred. Mst. Kulsoom is, therefore, entitled to acquittal.

17. In the result the appeal filed in respect of appellant Muhammad Sarwar is dismissed. The appeal filed by Mst. Kulsoom is allowed. The conviction and sentence recorded against her are set aside. Appellant Mst. Kulsoom, who is in custody be released forthwith, if not required in any other case. SA./M‑722/K Partly accepted.