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Petitioner: Mst. ZOHRA VS Respondent: THE STATEHonorable Justice BASHIRUDDIN AHMADNemo,Masood Ahmad for A: G.
1968 P Cr
1968 P Cr. L J 1174
[Lahore]
Before Bashiruddin Ahmad and Shaukat Ali, JJ
Mst. ZOHRA‑Convict‑Appellant
Versus
THE STATE‑Respondent
Criminal Appeal No. 89 of 1966, decided on 21st March 1968.
Penal Code (XLV of 1860), S. 302‑Confession retracted at earliest opportunity‑No independent corroboration forth coming‑ Conviction and sentence set aside.
Nemo for Appellant.
Masood Ahmad for A: G. for the State
JUDGMENT
BASHIRUDDIN AHMAD, J.‑Mst. Zohra (19) was tried for abetment of the murder of her husband Muhammad Hussain on the night intervening 9‑10th of September 1963 by the learned Addl. Sessions Judge, Lahore at Sheikhupura, who convicted and sentenced her under section 302 read with section 109, P. P. C. to transportation for life. The convicted person has appealed through jail.
2. The prosecution story, briefly narrated, is that the appellant, who was married to the deceased, developed illicit intimacy with Muhammad Aslam and on the evening of the 9th of September 1963, she pressed tier husband to accompany her paramour to Dera Lalu Phuman and some time later Muhammad Hussain was found murdered near Chah Zaildalan on S4eikhupura‑Lyallpur Road by F. C. Ghulam Qadir P. W. 12 who made the statement Exh. P. L. to Sub‑Inspector Khurshid Ahmad P. W. 22 at I1‑45 p. m. He endorsed it to City Police Station, Sheikhupura for the registration of a case. The Head Constable considered that Muhammad Hussain was run over by a motor vehicle and initially a case under section 304‑A, P. P. C. was registered but later on as a result of the post‑mortem examination, it was found that the deceased had died of injuries caused by a sharp‑edged weapon. The offence was altered into one under section, 302, P. P. C.
3. The doctor, who conducted the post‑mortem examination, found that the deceased had 22 injuries caused to him by sharp -edged weapon. The bone of the forehead over the right eyebrow was cut through under injury No. 1. The 5th and 6th ribs in their interspace had cut marks. The interspace under the left clavicle was cut through. The right border of the sternum was cut and also the attached rib and the right mannmary vessel. Pleurae were cut on both the sides and both the sides of the chest contained about a pint of blood. Right lung was cut. Left lung was cut at three places. Pericardium was cut superficially. The peritoneum was cut at the back part and contained about pint of blood. Liver was cut at the lower part. Right kidney was cut through and through. The deceased died of haemorrhage and shock resulting from penetrating cut wounds of the chest, cut of the lungs, right mammary vessels, right kidney and liver. Injury No 1 was grievous. Injuries Not. 6, 8, 9, 15, 19 and 20 were fatal, which were sufficient to cause death in the ordinary course of nature.
4. The appellant pleaded not guilty to the charge and denied the prosecution allegations against her. She admitted that she was married to the deceased at Rahimyar Khan and after the marriage she came along with her husband to Chachoki in Sheikhupura District with her parents and settled there. The appellant also admitted having made the confessional statement before the Magistrate but explained that she was coerced by the police to make the confession. The appellant asserted that she was innocent but did not produce any evidence in her defence.
5. The conviction of the appellant rests on her retracted confession and the corroborative evidence. Her confession was recorded simultaneously with that of her paramour Muhammad Adam with whom we are not concerned in this appeal, by Mr. Ghulam Murtaza section 30 Magistrate on the 14th of September 1963. The learned Magistrate, who was called as the 2nd witness for the prosecution, deposed that he had satisfied himself by putting questions to the appellant that the statement, which she intended to make was voluntary and not the result of use of 3rd degree methods by the police. The gist of her confessional state ment is that she was married to the deceased but she was unable to pull on with him as the deceased was half‑wetted, that she demanded the divorce from him to which the deceased did not agree, that they shifted to Chachoki, she fell in love with Muhammad Aslam and conspired with him to kill the deceased and in pursuance of that conspiracy Muhammad Aslam took Muhammad Hussain with him in the evening and put him to death. Muhammad Aslam returned at about 8 or 10 p. m. and mentioned to her that he had killed Muhammad Hussain. She went and brought the dead body of her husband and informed the police. The confession of the appellant was recorded in open Court when persons other than members of the polio Force could come into the Court room without let or hindrance and after administering the warning to Mst. Zohra the Magistrate did not record her confession behind closed doors but deputed the peon of his Court not to permit persons other than the officials of the office of the Deputy Commissioner, legal practitioners and their clerks to enter the Court room but no note to this effect was made in the proceedings. The Magistrate admitted that Abdur Rauf, Head Constable of the City Police Station, Sheikhupura, was found present inside the Court room in plain clothes when he was recording the confessional statement of Muhammad Aalam. The result was that after the Head Constable was turned out of the Court room Muhammad Aslam did not confess to the crime. Since Muhammad Aslam and the appellant were produced before the Magistrate at the same time for the purpose of confession, the circumstance that a Head Constable of the City Police Station Sheikhupura to which this case pertained was found inside the Court room when the confessional statement of Muhammad Aalam was recorded and as soon as the Head Constable was made to leave the Court room Muhammad Aslam did not confess to the crime introduces an element of grave doubt as regards the voluntary nature of the statement Exh. P. T‑4 of the appellant. In these circumstances, we do not consider it proper in the safe administration of criminal justice to hold that the confessional statement of Mst. Zohra was voluntary or true and rule it out of consideration. The learned trial Judge did not address himself to his aspect of the matter. He proceeded to find corroboration of the retracted confession from the evidence of witnesses whom any Judge with experience of administration of criminal justice would have been reluctant to believe. Corroboration of this tainted piece of evidence was found by the trial Judge in the evidence of Hakim Allah Ditta P. W. 4 and Muhammad Hussain P. W.7. The former deposed that the appellant once asked him to give her an amulet so that her husband should start hating her; while Muhammad Hussain stated that he was present in the lane in front of his house when Mst. Zohra appellant told the deceased to go with Muhammad Aslam on the evening preceding the night of the occurrence. Another slender piece of evidence which the trial Judge considered as corroborative of the retracted confes sion was the statement made by Abdual Hamid, Gatekeeper of the Railway Level Crossing on Sheikhupura‑Lyallpur Road: He deposed that two years and two months ago at 7 p.m. Muhammad Aslam and Muhammad Hussain deceased while riding on a bicycle dashed against the gate of the level crossing and he had a quarrel with them on that account. The witness admitted that he did not know Muhammad Aslam or Muhammad Hussain and still the trial Judge decided to rely on the evidence of this witness. From the bare statement of Muhammad Hussain P. W. 7 to the effect that Muhammad. Aslam visited the house of the deceased the trial Court inferred that the visits of Muhammad Aslam were in con nection with his illicit intimacy, which he had developed with the appellant. The recovery of dead body of the deceased by the Foot Constable on Sheikhupura‑Lyallpur Road was wrongly considered as corroboration of the retracted judicial confession, which was otherwise inadmissible in evidence. We have already come to the conclusion that the confession was not voluntary and much less true. It was, therefore, inadmissible in evidence. Even if the confession is held to be voluntary and admissible as sue still it was retracted by the appellant at the earliest opportunity and the retracted confession could only be used to base conviction provided independent corroboration was forthcoming. There was no material corroboration of the retracted confession from an independent source and as such the conviction of tile appellant could not be sustained.
6. For all these reasons we accept the appeal, set aside the conviction and the sentence passed on Mst.‑Zohra for the offence under sections 302/109, P. P. C. and acquit her. The appeal ix accepted.
Appeal accepted.