2012 M L D 1358
[Balochistan]
Before Naeem Akhtar Afghan and Jamal Khan Mandokhail, JJ
PATOO and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No.204 of 2011, decided on 5th June, 2012.
(a) Qanun -e-Shahada t (10 of 1984) ---
----Art. 46 ---Dying declaration ---Admissibility in evidence ---Scope ---Dying declaration, though
was admissible in evidence, but by itself was not sufficient to sustain conviction ---Such
declaration must be free from every sort of taint and be independently corroborated for safe
reliance to record conviction ---In order to find out the truth or falsity of a dying declaration, a
case was to be generally considered in all its physical environment and circumstances ---Dying
declaration was onl y a corroborative piece of evidence, which would support the ocular
testimony; and it was a weak type of evidence.
(b) Penal Code (XLV of 1860) ---
----S. 302(b)/34 ---Qatl-e-amd, common intention ---Appreciation of evidence ---Complainant
while recording his statement at the trial had contradicted the contents of the F.I.R. and he
improved his statement before the court ---No identification parade of accused was got conducted
to identify the assailant who was following the deceased and assaulted him with ax e---
Prosecution witness could not identify the culprit who ran away from the spot ---Said witness had
also not identified any of the accused ---Said contradictions and infirmities had badly shaken the
veracity of both the witnesses ---Alleged dying declaratio n, which otherwise was a very weak
type of evidence, could not be held free from any sort of taint, and could not be safely relied
upon to record conviction as the same lacked independent corroboration ---Statement of
prosecution witness with regard to alle gations of assault by a person upon the deceased with an
axe had further rendered the recovery of knife doubtful ---Recovery of axe had not been
established from the possession of the accused ---Neither there was any disclosure memo of the
accused nor his co nfessional statement ---No report of chemical analysis was available to prove
that the axe was stained with human blood ---Statement of doctor though had established the
unnatural death of the deceased, but same was not in conformity with the ocular testimon y---
Statements of witnesses were also vague with regard to the motive of the occurrence and motive
did not stand established through their testimony ---Prosecution had failed to give any
explanation for shifting the custody of accused hundred miles away for recording their
confessional statements; whereas competent authorities to record confessional statements were
available at the relevant place ---Magistrate while recording confessional statements of accused
had not observed the prescribed procedure ---Even the memorandum at the foot of the
confessional statements, was not in accordance with mandatory requirement of S.164(3),
Cr.P.C. ---Confessional statement, got recorded, was highly defective and in violation of
mandatory provisions of S.164, Cr.P.C. as well as S.364, Cr.P.C. ---Prosecution, due to said
infirmities, contradictions, illegalities and irregularity had failed to bring home the charge against
accused beyond any shadow of doubt ---Sufficient doubt existed in the case of prosecution,
benefit of which had to be extended to the accused ---Accused were acquitted of the charge and
were ordered to be released, in circumstances.
(c) Criminal Procedure Code (V of 1898) ---
----Ss.164 & 364 ---Confessional statement ---Evidentiary value ---Procedure to be foll owed in
recording the confession by Magistrate ---As soon as accused was produced for confession, his
handcuffs should be removed; and all the Police Officers should be turned out from the court
room ---Accused, thereafter should be informed that he was befo re a Magistrate; and whether he
would make any statement or not; he would not be given back to the Police, which had produced
him before the court; but would be remanded to judicial lock -up---Accused should then be given
sufficient time to ponder over the matter ---Accused thereafter should be warned, that he was not
bound to make any statement, but, if he did so, it could be used as evidence against him ---
Greater duty was cast upon the Magistrate recording confession to be satisfied that such
confession was voluntarily made; and to that end he must conscientiously devote his inquiry
before recorded the confession ---Unexplained delay in recording confessional statement of
accused would not render the same to be used as substantive piece and same would lose its
evidentiary value ---Longer the Police custody of accused, the lesser was the evidentiary value of
the confession ---Where delayed retracted confessional statement of accused lacked
corroboration in material aspects, and was not supported by reliable ev idence or strong
corroborative circumstances, intrinsic worth of the confessional statements, would remain
suspicious and for such reasons, same could not form the basis of conviction of accused.
Farooq Rasheed for Appellants.
Atique Ahmed Khan, Deputy Prosecutor -General for the State.
Date of hearing: 5th April, 2012.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This judgment shall dispose of Criminal Appeal No. 204
of 2011 filed by the appellants/convicts Patoo and Moula Baldish both sons of Sabza agains t the
judgment impugned dated 20th August, 2011 passed by learned Additional Sessions Judge,
Lasbela at Hub, whereby both the appellants have been convicted under section 302(b), P.P.C.
and sentenced to suffer imprisonment for life as Tazir with compensati on of Rs.50,000 (Rupees
Fifty Thousand Only) each to be paid to the legal heirs of deceased Din Muhammad and in
default thereof, to further undergo S.I. for six months each with benefit of section 382 -B, Cr.P.C.
2. Brief facts of the prosecution case are that vide F.I.R. No 54/86 dated 14th June, 1986
report was lodged with Thana Hub by Muhammad Alam (P.W.9) under section 302/34, P.P.C.
against the appellants/ convicts stating therein that he is originally resident of Bela and works as
Operator in Feroz T extile Mill, Hub. His duty was from 11 -00 p.m. to 7 -00 a.m. On the day of
occurrence, after performing his duty when he came out of the gate of the company, Mitha Khan
(P.W.5) an employee of the said factory, at about 7 -30 a.m, told him that the person arm ed with
axe fleeing away in a truck parked nearby has injured a person who is lying in injured condition
near the gate of Gatron Factory. The complainant and Mitha Khan rushed towards the gate of
Gatron Factory and at that time the injured was taking his l ast breath. On inquiry by the
complainant and Mitha Khan, the injured told that Moula Bakhsh and his brother Patoo have
caused injuries to him with axe and knife. After telling this, the injured succumbed to the
injuries. Leaving Mitha Khan with dead body , the complainant went to Thana for report.
In pursuance of the above F.I.R., the investigation was started. Dead body was shifted to
hospital, inquest report was prepared. Site map was prepared, blood stained clothes of deceased
were taken into possess ion and the statements of the witnesses were recorded. As per challan the
appellants/convicts surrendered their custody to the police on the same day. The
appellant/convict Patoo produced blood stained hatched saying that he had snatched it from the
deceas ed and caused him injuries with the same. The appellant/convict Moula Bakhsh made
disclosure and got recovered a knife from under the seat of the truck.
During investigation the confessional statements of appellants/convicts were recorded on 26th
June, 1 986 before Tehsildar Bela (Wahid Bakhsh). Subsequently challan was submitted against
the appellants/convicts.
At that time Criminal Law Special Provisions (Ordinance -II) of 1968 was prevailing and the trial
of the appellants/convicts commenced before the tribunal.
Subsequently, in pursuance of the judgment passed by the High Court the case of the
appellants/convicts was transferred to learned Additional Sessions Judge, Lasbella at Hub on
24th September, 2009 for trial under the regular Law.
At the tri al before the learned Additional Sessions Judge, Lasbella at Hub charge under section
302(a), P.P.C. was denied by the appellants/convicts on 5th April, 2003. The prosecution
produced P.W.1 Dr. Muhammad Yousuf, P.W.2 Dr. Ghous Bakhsh Barozai, P.W.3 Zeenat Bibi,
P.W.4 Naz Bibi, P.W.5 Mitha Khan, P.W.6 Ghulam Hussain, P.W.7 Abdul Latif, P.W.8 Wahid
Bakhsh, Tehsildar, P.W.9 complainant/Muhammad Alam, P.W.10 Muhammad Ramzan, first
I.O. and P.W.11 Muhammad Ishaq, second I.O. The appellants/convicts were examined under
section 342, Cr.P.C. The appellants/convicts got recorded their statements on oath under section
340(2), Cr.P.C, however, no witness was produced in defence. After concluding evidence and
hearing arguments, vide judgment impugned dated 13th March, 2 006 both the
appellants/convicts were acquitted of the charge by extending benefit of doubt.
3. Feeling aggrieved of the acquittal of the appellants/convicts, the State through Advocate
General filed Criminal Acquittal Appeal No.142 of 2006 before this court. After hearing
arguments, vide order dated 31st December, 2010, after setting aside the judgment dated 13th
March, 2006 passed by learned Additional Sessions Judge Lasbela at Hub, the case was
remanded to the trial court with directions to rehear th e parties and to decide the case afresh on
the ground that the evidence of the prosecution has not been appreciated by the trial court in its
true prospective.
After remand by this court, the learned Additional Sessions Judge, Lasbela at Hub heard the
arguments and thereafter vide judgment impugned dated 20th August, 2011 convicted both the
appellants under section 302(b), PPC and sentenced them to suffer imprisonment for life as Tazir
with compensation of Rs.50,000 (Rupees Fifty Thousand Only) each to be paid to the legal heirs
of deceased Din Muhammad and in default thereof to further undergo six months. S.I. each, with
benefit of section 382 -B, Cr.P.C.
The appellants/convicts, feeling aggrieved of the conviction awarded vide judgment impugned,
have pr eferred the instant appeal.
4. Learned counsel for the appellants/convicts Mr. Farooq Rasheed, Advocate argued that
the appellants/convicts have faced agony of protracted long trial since 1986 but the prosecution
has miserably failed to prove the charge against the appellants beyond reasonable doubt. Learned
counsel further argued that the prosecution evidence is full of infirmities, the alleged dying
declaration is not proved and the judgment impugned is a result of misreading and mis -
appreciation of evi dence available on record. Learned counsel further argued that the ocular
testimony is not confidence inspiring, the recovery of axe and knife is doubtful and the retracted
confessional statements cannot be made the basis of conviction in view of unexplai ned delay and
due to lack of corroboration.
On the other hand, Mr. Attique Ahmed Khan, Deputy Prosecutor General argued that the
prosecution has successfully proved the charge against the appellants/convicts beyond any
shadow of doubt, through dying decl aration, ocular testimony duly supported by recovery of
crime weapons, medical evidence as well as the confessional statements of the
appellants/convicts.
5. After hearing arguments of learned counsel for the parties we have carefully gone
through the re cord of the case. In the instant case the prosecution relies on the dying declaration,
ocular testimony, medical evidence, recovery of crime weapons, and the confessional statements.
According to the settled principle of law, though dying declaration is admissible in evidence but
by itself is not sufficient to sustain conviction. It must be free from every sort of taint and be
independently corroborated for safe reliance to record conviction. In order to find out the truth or
falsity of a dying declaratio n a case is to be generally considered in all its physical environment
and circumstances. A dying declaration is only a corroborative piece of evidence which supports
the ocular testimony and it is a weak type of evidence.
In view of the above principle, let us appreciate the ocular testimony available on record.
P.W.9/complainant Muhammad Alam while recording his statement at the trial has contradicted
the contents of the F.I.R. According to the F.I.R., when he came out from the gate of the factory,
Mith a Khan (P.W.5) told him about a person fleeing away in a truck with an axe after causing
injury to a person who was lying on the gate of Gatron Factory and he along with Mitha Khan
rushed towards the gate of Gatron Factory. But while recording his statemen t in the court, P.W.9
Muhammad Alam stated that after performing his duty when he came out, he saw a gathering in
front of Gatron Factory and Mitha Khan told him that the assailants who assaulted a person are
going having an axe with them, meanwhile they boarded in a parked truck. In the F.I.R., P.W.9
Muhammad Alam never stated that the injured introduced himself as Din Muhammad but while
improving his statement before the court P.W.9 Muhammad Alam stated that the injured
introduced himself as Din Muhammad .
P.W.5 Mitha Khan has also contradicted P.W.9 Muhammad Alam. According to P.W.5 he left
the mill at 7 -15 a.m. and found two persons running at RCD road. The person who was following
the other, assaulted him with an axe who fell down on the ground in fro nt of Gatron Factory and
after committing the crime the assailant ran away in a truck. According to Mitha Khan (P.W.5)
Muhammad Alam (P.W.9) was also with him, but according to Muhammad Alam (P.W.9) he
was told about the occurrence by Mitha Khan (P.W.5). N o identification parade of the
appellants/convicts was got conducted to identify the assailant who was following the deceased
and assaulted him with axe. Further according to Mitha Khan (P.W.5) he could not identify the
culprit who ran away from the spot. Mitha Khan (P.W.5) has also not identified any of the
appellant/convict as the assailant following and causing injury to the deceased. These
contradictions and infirmities have badly shaken the veracity of both the witnesses.
P.W.7 Abdul Latif stated th at he was working in Gatron Factory and when he came out of the
factory, he found Din Muhammad in injured condition who told him that Moula Bakhsh and
Patoo have assaulted him and requested for not leaving him alone. This version of P.W.7 is not
corroborat ed by P.W.5 and P.W.9. P.W.7 Abdul, Latif has not mentioned about the presence of
P.W.5 and P.W.9 with the injured. Similarly Mitha Khan (P.W.5) and Muhammad Alam (P.W.9)
have also not mentioned about presence of Abdul Latif (P.W.7) with the deceased. The
inconsistency in the statements of the above three witnesses has rendered their testimony
unworthy of reliance and presence of all the above three witnesses with the deceased prior to his
death is highly doubtful. In these circumstances, the alleged dying declaration, which is
otherwise a very weak type of evidence, cannot be held free from any sort of taint and cannot be
safely relied upon to record conviction as the same is also lacking independent corroboration.
The statement of P.W.1 Dr. Muhammad Y ousuf Panezai with regard to recovery of knife from
the truck on the pointation of appellant Moula Bakhsh is also of no avail to the prosecution as
there is no disclosure memo of appellant/convict Moula Bakhsh in this regard and further there is
nothing on record to prove that the allegedly recovered knife was stained with human blood. The
statement of P.W.5 with regard to allegation of assault by a person upon the deceased with an
axe further renders the recovery of knife doubtful.
According to P.W.1 whe n he reached thana one blood stained axe and blood stained clothes were
already lying in the thana which were taken into possession in his presence. In view of the
statement of P.W.1 the recovery of axe has not been established from the possession of
appel lant/convict Patoo. If the prosecution version is believed that appellant/convict Patoo at the
time of his surrender produced blood stained axe and stated that he snatched the same from
deceased and caused him injury with the same, then disclosure of appel lant/convict patoo should
have been recorded and his confessional statement should have been recorded on the same day.
Neither there is any disclosure memo of the appellant/convict Patoo nor his confessional
statement was recorded on 14th June 1986. There is no report of chemical analysis to prove that
the axe was stained with human blood.
Though the statement of Dr. Ghous Bakhsh Barozai (P.W.2) establishes the unnatural death of
the deceased but same is not in conformity with the ocular testimony.
The statements of Zaib Bibi (P.W.3) and Naz Bibi (P.W.4) are also vague with regard to the
motive of the occurrence and same are not confidence inspiring and motive does not stand
established through their testimony.
According to prosecution, the confessiona l statements of the appellant/convicts were recorded on
26th June, 1986 by Tehsildar Bela on the directions of Assistant Commissioner, Hub. The
prosecution has failed to give any explanation for shifting the custody of the appellants/convicts,
hundred mile s away, from Hub to Bela only for recording their confessional statements.
Whereas the Assistant Commissioner Hub was competent to record the same and apart from
Assistant Commissioner, the Tehsildar was also available at Hub and he was also competent to
record the confessional statements. Perusal of the confessional statements recorded under section
164, Cr.P.C. reveal that the following questions were asked from the appellants/convicts prior to
recording their confessional statements: --
The memorandum at the foot of the confessional statement reads as follows: --
7. It is to be appreciated that there is a specific procedure to be followed while recording the
confession under section 164, Cr.P.C. As soon as the accused is produced for confession, his
handcuffs should be removed and all the police officers should be turned out from the court
room. Thereafter the accused should be informed that he is before a Magistrate and whether he
makes any statement or not, he would not be given back to the police, wh ich had produced him
before the court but would be remanded to judicial lock up. He should then be given sufficient
time to ponder over the matter. Thereafter he should be warned that he is not bound to make any
statement but if he did so it could be used as evidence against him. The following questions
should be put to him: --
(i) For how long have you been with police?
(ii) Has any pressure been brought to bear upon you to make confession?
(iii) Have you been threatened to make confession'?
(iv) Has any inducement been given to you?
(v) Why are you making this confession?
(vi) Have you been maltreated by police?
After recording the accused's answers to the above questions, if the Magistrate is satisfied that he
is making confession voluntarily , he would then put such questions to him, as are given in the
printed form and then he should proceed to record his confession in verbatim.
According to section 164(3), Cr.P.C. the memorandum should be made at the foot of the
confessional statement to t he following effect: --
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any
confession he may make may be used as evidence against him and I believe that this confession
was voluntarily made. It was taken in my presence and hearing, and was read over to the person
making it and admitted by him to be correct, and it contains a full and true account of the
statement made by him".
8. In the instant case learned Magistrate i.e. P.W.8 has not observed the above procedure.
P.W.8 did not inform the appellants/convicts that they are before a Magistrate and never
informed the appellants/convicts that whether they make any statement or not, they would not
be given back to the police which had produced the m before the court and they would be
remanded to judicial lock -up. No question was put to the appellants/convicts as to for how
long they had been with the police, had they been threatened to make confession, why they are
making the confession and had they been maltreated by the police. Even the memorandum at the
foot of the confessional statements is not according to the mandatory requirement of section
164(3), Cr.P.C.
It is to be appreciated that a greater duty is casted upon the Magistrate rec ording confession to be
satisfied that such confession is voluntarily made and to that end he must conscientiously devote
his inquiry before recording the confession.
9. It is regretted to observe that no serious attempt appears to have been made by P.W. 8 to
find out if the confession was made voluntarily by the appellants/convicts. The confessional
statements recorded by P.W.8 are highly defective and in violation of mandatory provisions of
section 164, Cr.P.C. as well as section 364, Cr.P.C. The illegal ities and irregularities committed
by P.W.8 in recording the confessional statements of the appellants/convicts are not curable and
same render the confessional statements inadmissible.
10. The unexplained delay in recording confessional statements of th e appellants/convicts on
14th day of their surrender/arrest does not render the same to be used as substantive piece of
evidence and same loses its evidentiary value. It is settled principle of law that longer the police
custody of accused, the lesser is t he evidentiary value of the confession. The delayed retracted
confessional statement of the appellants/convicts is lacking corroboration in material aspects and
is not supported by reliable evidence or strong corroborative circumstance. In absence thereof the
intrinsic worth of the confessional statements remains suspicious and for such reasons the
delayed retracted confessional statements of the appellants/convicts cannot form the basis of
conviction.
11. All the above infirmities, contradictions, illega lities and irregularities lead us to the
conclusion that the prosecution has miserably failed to bring home the charge against the
appellants/convicts beyond any shadow of doubt. There exists sufficient doubt in the case of
prosecution. According to settle d principle of law benefit of slightest doubt has to be extended in
favour of an accused.
For the above reasons, the appeal is accepted. The judgment impugned dated 20th August, 2011
passed by learned Additional Sessions Judge, Lasbela at Hub is set asi de and the
appellants/convicts Patoo and Moula Bakhsh both, sons of Sabza are acquitted of the charge
under section 302(b), P.P.C. in F.I.R. No.54 of 1986 Police Station Hub. The appellants/convicts
are ordered to be released forthwith, if not required in any other case.
H.B.T./50/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.