P L D 1968 Lahore 49 (PLP)

(1) An abrasion, " x ", on the right side of the neck 1" below the ear. (2) An abrasion, " x ", on the front of right side of chest, 4 " above the right nipple. The membranes and the brain were congested. There was a ligature mark all around the neck. Lower part below the larynx having 2" width in front and sides and 1 '' on the back of the neck. The margins were abraded and there were multiple extensions from the margin in front of the neck more so the lower part. The subcutaneous tissues under the ligature mark were infiltrated with blood more so at the margin. The larynx and trachea were congested containing frothy fluid. The rings of the trachea were fractured. The lungs were voluminous and congested exuding dark fluid blood on cutting. The tongue was congested and swollen. The abrasions on the person of the deceased were due to friction against hard sub stance. The death, in the opinion of the doctor, was due to asphyxia resulting from strangulation.

7. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They ascribed the case to enmity. They disowned the extra judicial confessions attributed to them. Mst. Taj Bibi explained the circumstances in which she made the judicial confession and her statement to that effect is reproduced below for the sake of convenience:‑- "I had made this statement before the Magistrate but it was because that the police had detained me for 11 months and police had taken away my children and ornaments. The police were beating my children in my presence and they also beat me. Police used chilly on me. I, therefore, told the police that I would make whatever statement they wanted me to make but they should not harass me more. One of the police officers rehearsed as a Magistrate and I was produced before him to make this statement. I, therefore, made the statement before the Magistrate. The confession bears my thumb‑impression." No evidence was produced in defence.

8. Direct evidence is not forthcoming in this case. The evidence against the appellants divides itself into the following categories:‑ (i) The evidence of the motive; (ii) the extra judicial confessions made by the appellants; and (iii) the judicial confession of Mst. Taj Bibi appellant.

9. The evidence on point (i) consisits of the statements of Said Muhammad, Sharif, Gaman, Allah Ditta, Noor Muhammad and Ghulam Muhammad. The evidence of Said Muhammad P. W. 7 and Sharif P. W. 8 is unanimous, that fifteen or sixteen days before the occurrence, which is the subject‑matter of this case, they went to the house of Amir appellant in connection with `Choori Khairat'. Gul Muhammad appellant was also there. Zulfiqar deceased and his wife Mst. Taj Bibi appellant also visited the house of Amir in that connection. In their presence Amir appellant demanded the hand of the daughter of Zulfiqar in mar riage. Zulfiqar did not agree. Mst. Taj Bibi was willing to give her daughter in marriage to Amir appellant. There was exchange of hot words and Zulfiqar deceased left the place without taking food but Mst. Taj Bibi stayed behind. She talked to Amir and Gul Muhammad appellants but Said Muhammad and Sharir did not hear the conversation. It is in the statement of Ghulam Muhammad, father of the deceased, that Zulfiqar came to him and informed him that he had gone to the house of Amir in connection with Khairat, that Amir demanded the hand of his daughter in marriage, that Zulfiqar did not agree to it as wanted to give his daughter in marriage to his nephew, that there was exchange of hot words between Amir and Zulfiqar who left the house of Amir. Ghulam Muhammad P. W. 14 did no say so in his statement to the police. The omission is material and no reliance can be placed on the testimony of this witness. Said Muhammad is a refugee from Hissar District. He is, in no way, related to the appellants or the deceased person in this case. He stated to the police that he along with Sharif P. W. 8 approached the deceased on behalf of Amir in a deputation for the hand of his daughter. The witness stated to the committing Magistrate that Amir exchanged fist blows with the deceased when the latter refused to give his daughter in marriage to him. Said Muhammad was examined by the police two months after the incident. No reason is forthcoming for this inordinate delay on the part of the police to examine this witness and it is difficult to rely on his evidence. Sharif P. W. is a refugee from Amritsar District and bad nothing in common with the appellants who are locals. Amir is aged about twenty‑five and the girl whom he proposed to marry is only ten years old. In view of the disparity in ages I am not inclined to believe this part of the story.

10. I now proceed to consider whether the prosecution succeeded in proving that Mst. Taj Bibi prosecuted a love‑intrigue with Amir appellant. The prosecution examined Gaman P. W. 10, Allah Ditta P. W. 11, Noor Muhammad P. W. 12 and Ghulam Muhammad P. W. 14 to prove that Amir appellant had illicit intimacy with Mst. Taj Bibi. It is in evidence that six months before the occurrence, under consideration, Zulfiqar shifted from Chak No. 153 to Chak No. 154/10‑R because his relatives including Ghulam Sarwar P. W. 13 objected that Mst. Taj Bibi should not give her daughter in marriage to Amir. He took Zulfiqar to village Loothar and Noor Muhammad gave his land to the deceased for cultivation at the instance of Amir. Gaman stated that Amir frequently visited the house of the deceased and used to remain with Taj Bibi at her house even in the absence of Zulfiqar from home. The witness had seen Amir talking to Mst. Taj Bibi and making love to her. Allah Ditta P. W. simply said in his statement that he had seen Amir and Mst. Taj Bibi appellants sitting together and that he informed Noor Muhammad about it. There is evidence that Zulfiqar deceased gave his elder daughter in marriage to a maternal cousin of Amir appellant. If, in. the circumstances, Amir visited Zulfiqar, it could not be legitiately inferred from his visits that he prosecuted a love‑intrigue with Mst. Taj Bibi. Amir gave his age as 25 years while Mst. Taj Bibi is aged 40 years. In the circumstances; I am not prepared to believe that Amir prosecuted a love‑intrigue with the woman and at the same time he was desirous to marry her daughter. Gaman and Allah Ditta P. Ws. stated that they informed their landlord Noor Muhammad about the illicit relations between Amir and Mst. Taj Bibi. Noor Muhammad P. W. 12, however, did not say so in his statement. He deposed that Amir and Gul Muhammad used to visit the house of Zulfiqar and he saw Amir talking to Mst. Taj Bibi. It is nowhere in the statement of this witness that Gaman and Allah Ditta informed him about the illicit intimacy between Amir and Mst. Taj Bibi. The deceased was a tenant of Noor Muhammad at Chah Nawan Muradwala. Noor Muhammad, it appears, did not like the visits of Amir to his well. He felt afraid lest his cattle may not be stolen. There is nothing in the statement of this witness to the effect that Ghulam Muhammad and Allah Ditta ever informed him about the illicit intimacy between Amir and Mst. Taj Bibi. No doubt, Ghulam Muhammad father of the deceased attributed unchastity to Mst. Taj Bibi, but no reliance can be placed on the story because Ghulam Sarwar who lodged the report to the police, made no mention about it in Exh. P. B. If Mst. Taj Bibi appellant carried on with Amir so openly there is no explanation for the omission of the story about her illicit intimacy with Amir in the first information report. In all probability, the story of the motive was concocted in this case.

11. The evidence on point (ii) consists of the statement of Sadiq Muhammad, Ismail and Ghulam Qadir. Qadirpur Ran is at a distance of four miles from village Loothar and Sadiq Muhammad is a Zamindar of Qadirpur Ran. Sadiq Muhammad and Ismail deposed that 18 months ago at 7‑00 p.m. Amir and Gul Muhammad appellants confessed that Amir had illicit relations with the wife of the deceased who did not like it. So they strangled the deceased to death during the night and approached Sadiq Muhammad with the request that he should produce them before the police. They kept Amir and Gul Muhammad appellants with them for the night and on the following day they were produced before the police. Sadiq Muhammad is neither a Lambardar nor a Chairman. He admitted that Amir and Gul Muhammad had never before approached him for help in any matter. The witness belongs to a different village. He admitted that he had no influence with the police. It is not clear why Gul Muhammad made a common cause with his co‑accused to kill the deceased. In the circumstances, it is not possible to believe that of all persons Amir and Gul Muhammad appellants approached Sadiq Muhammad P. W. and confessed to the crime in the presence of Ismail, a cultivator of their village Sadiq Muhammad stated that Amir and Gul Muhammad confessed in the presence of Ismail who was his guest. To the contrary, Ismail P. W. 16 stated in cross‑examina tion that be was sitting with Sadiq Muhammad P. W. when Amir and Gul Muhammad appellants came there, that they took Sadiq Muhammad aside and talked to him. When Sadiq Muhammad came back he informed the witness about the confession by Amir and Gul Muhammad appellants. The reason given by Ismail for his presence with Sadiq Muhammad is not convincing. Ismail knew Amir but did not know Gul Muhammad appellant. While Amir confessed to the crime Gul Muhammad kept silent. In view of the serious inconsistencies in the evidence of Sadist Muhammad and Ismail P. Ws., I feel it not safe to accept and act on the extra judicial confession which was retracted at the earliest opportunity and more so in the absence of its corroboration in material particulars.

12. The only witness who deposed about the extra judicial confession alleged to have been made by Mst. Taj Bibi is Ghulam Qadir P. W. 17, who is the Chairman of the Union Council and also the Lambardar of Mauza Loothar. He deposed that Mst. Taj Bibi came to him on the morning of the 13th of October 1962, and confessed that she along with Amir and Gul Muhammad had strangled her husband Zulfiqar at Chah Bhirkiwala during the night as she had illicit intimacy with Amir appellant to whom she wanted to give her daughter in marriage but the deceased did not like it. It is on the record that the police was present at the Dera of Muhammad Khan and the witness took Mst. Taj Bibi there and produced her before the police. Ghulam Qadir admitted in the opening line of his cross‑examination that he did not know Mst. Taj Bibi. The story of the extra judicial confession appears to me to be incredible because the police was at the Dera of Muhammad Khan at a distance of only 30 Karams from the house of Ghulam Qadir Lambardar and if Mst. Taj Bibi happened to be in the village and was an absconder the police could not have possibly experienced any difficulty in locating her. She could herself appear before the police and there was no point in her approaching Ghulam Qadir to produce her to the police when he did not know her and as such she could not expect any help from him. It is significant to note that never before that either Zulfiqar or Noor Muhammad complained to Ghulam Qadir that emir appellant visited Mst. Taj Bibi for evil purpose. Mst. Taj Bibi denied that she approached Ghulam Qadir and made an extra judicial con fession to him. She retracted from the so‑called statement which she is alleged to have made to Ghulam Qadir and in the absence of corroboration of her statement in material particulars, it is not safe to rely on this piece of the evidence.

13. The evidence on point (iii) is that of Mr. Safdaruliah, Magistrate, who recorded the judicial confession of Mst. Taj Bibi appellant. She was arrested on the 13th and on the same day she was produced before the Magistrate for recording her statement. Mr. Safdarullah failed to inform Mst. Taj Bibi that he was a Magistrate though he made it clear to her that she was not bound to make the confession and in case she made the statement that would be used as evidence against her. The lady was given one hour to reflect and then the Magistrate proceeded to record her confession which was read over to her and she thumb‑marked it. The learned Magistrate did not take the trouble of even looking at the provisions of section 164, Cr. P. C. He omitted to record a memorandum at the foot of the state ment to the effect that he was satisfied that the confession was voluntary. The impression that I gained on going through the confession is that it was neither voluntary nor true. Mst. Taj Bibi repeated parrot‑like the story which she was tutored by the police to narrate in Court and although it is not imperative under the law that an accused person produced before a Magis trate for the purpose of a confession should be remanded to judicial custody but it is always safe to do so particularly in the case of a female. It was necessary for the learned trial Judge to consider that the confession was not only voluntary but was also true. Mst. Taj Bibi retracted from her statement at the earliest opportunity. The learned trial Judge fell in error in relying on this piece of evidence to convict Mst. Taj Bibi appellant. He also failed to appreciate that the retracted con fessional statement could not be taken into consideration against her co‑accused in the absence of its corroboration in material particulars. Any Judge with experience of administra tion of criminal 'justice in the Province knows that this type of the evidence is usually introduced by the police in a case which rightly or wrongly it considers to be otherwise weak.

14. On a careful consideration of the facts and the evidence, I feel that the case against the appellants is not free from reason able doubt. Suspicion, however great, cannot take the place of judicial proof. I would, therefore, accept the appeals, set aside the conviction and the sentence passed on the appellants and proceed to acquit them. The appeal was allowed by my short order, dated the 3rd of April 1967, and this judgment contains the reasons therefore. A.H. Appeal allowed.