1994 PLP 100 (SCMR)

(ii) They had identified the co‑accused Akhtar Ali having visited their house a week earlier and was introduced by the respondent No.1 as her tailor. (iii) The frequent absence of the respondent No.1 from the house was also proved from her two sons. (iv) The presence of three dacoits as claimed by the respondent No.1 was disproved from the circumstances. (v) The recovery of bed‑sheets (Exh.P.37/1‑3)~ steel cooking pot P.38 containing water, steel glass Exh.P.39 and China Clay plate P.40 containing sugar and salt from the stairs of the house was taken to corroborate the prosecution case that Akhtar Ali had permissive access to the stairs under a conspiracy. (vi) The blood‑stained clothes left by the assailant and their identification as the clothes of Akhtar Ali established the identity of the assailant. (vii) The medical attention received by Akhtar Ali at U.C.H. on the morning of 20‑11‑1983 provided the corroboration of his having participated in the occurrence and having received these injuries in the same. (viii) The identification of Akhtar Ali by P.W.17 Ali Imran and P.W.28 Ali Faran before the Magistrate was found sufficient to prove the offence against the respondent No.1. The confessional statement was not accepted for lack of formality in recording it and for the delay of four days taken in recording it which remained unexplained. Similarly, the reports of the expert were found deficient as they did not contain reasons for the opinion given. The prosecution case was found established and the respondent No.1 was convicted under section 302/34, P.P.C. and sentenced to death and a fine of Rs.5,000.

9. On appeal and while seized of the confirmation of the death sentence awarded to the respondent No.1 by the trial Court, the High Court re examined the entire evidence afresh and came to its own conclusions. During the course of the arguments and otherwise no instance of misreading of the evidence or a material omission to take any factor was pointed out. It is only the view of the evidence on record taken which has been challenged and made the basis of the argument in appeal.

10. The High Court on an examination of the evidence recorded the following conclusions:‑‑ "(i) About the confessional statement of the respondent No.1, the High Court observed as hereunder:‑‑ It is unimaginable that the lady would have come forward of her own free will to make any confession about her implication in the commission of her husband's murder, about which FIR had already been lodged on story narrated by her. The statement, even otherwise, is not a categorical confession of commission of murder. Instead of being inculpatory, it is exculpatory. In that view of the matter also, it does not possess any significant evidentiary value. 1n the circumstances, no importance can be given to the said confessional statement for maintaining conviction of the appellant. The reasons given by the trial Judge for discarding the same also, in our view, possess weight. The statement is, therefore, excluded from consideration as evidence.' (ii) The evidence of the two sons was discarded for the reason that their conduct in defending their father did not appear to be consistent with their initial version of the occurrence which was one of dacoity and that if they had seen the assailant a week before in the house, they would from the very beginning have reacted differently to the occurrence than they had. (iii) Abdur Rahman (P.W.26) had suppressed and repudiated a part of the first information report wherein he had admitted having got the full details of the occurrence from the two sons and the respondent No.1 before lodging the report. (iv) The normal cores attended to by the respondent No.1 that night namely of entertaining the guests etc. and to the sons in the manner in which she did that night would not indicate that she was a party to any conspiracy. (v) The identity of the hair recovered and said to be of assailant was held not proved satisfactorily. (vi) The finger‑prints obtained from the spot did not establish the identity of the assailant as the report was not tendered. (vii) The recovery of the clothes identified to be that of Akhtar Ali was not held proved for various reasons. (viii) The recovered articles were considered to be corroborative of the version given in the F.I.R. that there were more than one culprit in the house on the night of occurrence. (ix) The other evidence of their meeting in Shalimar Hotel and International Hotel were. held not to be sufficiently proved by proper verification of the record. The learned Judges in the High Court concluded as hereunder:‑‑ "For all the reasons given above and the analysis of the evidence, we are convinced that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubts. This appeal is, therefore, allowed and the appellant is acquitted."

11. In arguing this appeal, Sardar Muhammad Latif Khan Khosa, Advocate the learned counsel for the appellant has gone over the same evidence which has been fully taken note of by the High Court and tried to make out a case of proof beyond reasonable doubt against the respondent. Even her so‑called confessional statement has been referred to with a view to find some corroboration from it apart from the other circumstantial evidence brought on record.

12. There are certain features of the case, which must be noticed before considering the evidence. In the first place, there is no allegation or evidence on record that the relations between the respondent and the deceased had gone sour or had become abnormal on any account including the relationship that the respondent had developed with her co‑accused. The only material available on record is that she at times got money from the deceased in order to loan it out to her sister and brothers and the deceased wanted the repayment of it for which purpose she used to go out to her sister and brothers, pass the nights there when in fact she was passing the nights with her paramour the co- accused. There is nothing definite on record with regard to these loans, the approximate amount or that she wanted to get the repayment of it. Instead, evidence was led about passing the nights by the respondent with the co -accused paramour and with his daughter in Hotel and elsewhere. This evidence was found not of such quality and so verified as to inspire confidence.

13. Another feature to be noted in the case is that immediately after the occurrence, the sons of the deceased and his brother both were satisfied about the explanation given immediately after the occurrence of it being a dacoity or robbery at night. If these witnesses had consistently maintained their position that was initially taken, that would have appeared more natural. Subsequent verification of facts could alter their impression with regard to the culpability of the respondent, and in that case those other factors would have come to focus for determination of her participation in the crime. In the case, however, the brother of the deceased as well as the two sons tried to suppress and repudiate their earlier stand of treating the occurrence as a robbery coupled with murder and this with, a view to give the impression that from the very beginning they had the impression of it being a conspiracy in which the respondent played a part. For achieving this, Abdul Rahman had to repudiate the contents of the F.I.R. and the two sons resorted to deposing about their behaviour which was inconsistent and abnormal. This affected their credibility as eye‑witnesses and showed them to be either biased witnesses or having made up their mind from material other than legally admissible evidence.

14. The conduct of the respondent during the course of the occurrence and soon thereafter would appear to be consistent with her innocence. She wanted to proted her two sons and she succeeded in it. The conduct of the two sons on seeing the assailant and identifying him to be the same man as was introduced by their mother as her tailor could have definitely been different than what it happened to be. The case was concerned not so much with the culpability of the co‑accused as with the complicity of the respondent in the crime. The direct evidence being not of a quality and description which could satisfy the requirements of law and a discerning mind, it is only circumstantial evidence that was left on record. It did not connect the respondent in the crime in any case.

15. In the circumstances, we find that the acquittal recorded by the High Court suffers from no such infirmity as may invite our interference in it. Hence, this appeal is without merit and is dismissed. N.H.Q./A‑1056/S Appeal dismissed.