2020 M L D 1636
[Balochistan]
Before Muhammad Hashim Khan Kakar
and Muhammad Ejaz Swati, JJ
MUHAMMAD ESSA and another ---Appellants
Versus The STATE and another ---Respondents
Criminal Appeal No.362 and Murder Reference No.18 of 2019, decided on 17th April, 2020.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl -i-amd ---Appreciation of evidence ---Benefit of doubt ---Delay of about
two hours and fifteen minutes in lodging the FIR ---Effect ---Accused was charged for
committing murder of his wife inside his matrimonial home ---Motive behind the occurrence
was stated to be strained relationship between the spouses ---Record showed that the
occurrence had taken place during a night in the month of May, inside the house of accused,
which remained unwitnessed--- Accused, who happened to be the son- in-law of complainant,
along with co-accused had been nominated in the FIR on the basis of suspicion---Place of
occurrence was at a distance of about three kilometres from Levies Thana ---FIR in respect of
the incident in question had been lodged after about two hours and 15 minutes ---Possibility
regarding deliberation and cooking- up a false story could not be ruled out of consideration,
in circumstances ---Appeal against conviction was allowed, in circumstances.
(b) Pena l Code (XLV of 1860)---
----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164--- Qatl-i-amd---Appreciation of
evidence ---Benefit of doubt ---Confessional statement of accused ---Infirmities ---Accused was
charged for committing murder of his wife inside his matrimonial home ---Motive behind the
occurrence was stated to be strained relationship between the spouses ---Bare perusal of
confessional statement revealed that it was made on oath---Confession should be recorded in the manner provided for statement of an accused and not in the manner provided for recording evidence ---If confessional statement was recorded in the manner provided for
recording evidence by administering oath then it would loose its character insofar the maker was concerned ---Fact of admi nistering oath at the recording of confession virtually meant
that the maker was compelled to give evidence against him, placing him in the status of a witness at the stage of investigation in violation of Art.13(b) of the Constitution read with S. 5 of the Oaths Act, 1873---Administering oath in recording confession would mean the recording of evidence of the maker for use in subsequent stage against the maker which was prohibited under the law ---Proceedings of recording of the judicial confession deposed by the
Judicial Magistrate also showed that it had never been mentioned in those proceedings that
before recording the confession the handcuffs of the accused had been removed or for any time reflection was provided---Circumstances established that the pro secution had failed to
prove its case against the accused ---Appeal against conviction was allowed, in
circumstances.
Muhammad Bakhsh v. The State PLD 1956 SC (Pak) 420; Azeem Khan v. Mujahid
Khan and others 2016 SCMR 274 and Manzur v. The State PLD 1973 Lah. 714 rel.
(c) Criminal trial ---
---Confession----Confessional statement, retraction of---Scope ---In absence of independent
corroboration, retracted judicial confession could not suffice by itself for recording or upholding the conviction.
(d) Penal Co de (XLV of 1860)---
----S.302(b)---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Confessional
statement of accused and medical evidence---Contradictions ---Effect ---Accused was charged
for committing murder of his wife inside his matrimonial home ---Medical evidence furnished
by Lady Police Surgeon was contrary to the alleged confession as well as prosecution case ---
Said witness deposed that on 29- 5-2019, dead body was brought by Tehsildar and she after
conducting post -mortem prepared her report ---Said report showed that the cause of death
would be given after receiving the chemical analysis report ---Report of Chemical Analysis
was only to the effect that no drug/poisons were detected in blood, liver and stomach
contents ---In such view of the matt er, there was no occasion with the said witness to opine
that the cause of death was due to asphyxia, smoothling and homicidal in manner---Appeal
against conviction was allowed, in circumstances.
(e) Criminal trial ---
----Witness ---Reliance ---Scope ---Reli ance upon evidence of witnesses disbelieved to the
extent of co-accused ---If a set of witnesses was disbelieved to the extent of some accused,
the same could not be believed in respect of remaining accused facing the same trial without
there being any inde pendent and strong corroboration.
(f) Penal Code (XLV of 1860)---
----S.302(b)---Qatl -i-amd---Wife dying an unnatural death in the house of husband---
Presumption---Burden of proof---Prosecution was bound to prove its case against accused
(husband) beyond reasonable doubt at all stages of a criminal case ---In a case where the
prosecution asserted presence of some eye -witnesses and such claim of the prosecution was
not established by it then the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in hi s house, therefore, it must
be he and none else who would have committed that murder.
Abdul Majeed v. The State 2011 SCMR 941 and Nasrullah v. The State 2017 SCMR
724 rel.
Muhammad Khlid Kaakar for Appellant (Criminal Appeal No.362 of 2019).
Ilyas Mughal for the Complainant (Criminal Appeal No.362 of 2019)..
Habibullah Gul, Additional Prosecutor General Additional Prosecutor General for the
State (Criminal Appeal No.362 of 2019).
Habibullah Gul for the State (in Murder Reference No.18 of 2019).
Muhamm ad Khlid Kakar for Respondent (in Murder Reference No.18 of 2019).
Ilyas Mughal for the Complainant (in Murder Reference No.18 of 2019).
Date of hearing: 6th April, 2020.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. --Appellant Muhammad Essa and co-
accused Amir Muhammad had allegedly murdered Mst. Gul Ghutai, who happened to be the
wife of appellant Muhammad Essa inside the appellant's matrimonial home in new Muhajir Camp Saranan, in the area of Levies Thana Saranan, District Pishin, at about 2:00 a.m. during the night between 28/29- 5-2019, in the backdrop of a motive based upon strained
relationship between the spouses. For commission of the said offence they were booked in
case FIR No. 18 of 2019, registered at the said Levies Thana, during the following morning
at 4:00 a.m. After a regular trial co- accused Amir Muhammad was acquitted of the charge,
whereas, appellant Muhammad Essa was convicted, vide judgment dated 24th September 2019 ('the impugned judgment') by the Model Criminal Trial Court/Additional Sessions Judge, Pishin (`the trial Court') of the charge, under Section 302(b) P.P.C., and was sentenced to death as Ta'zir and to pay compensation of Rs.2,00,000/ - to the legal heirs of
the deceased. Besides the instant appeal, a Murder Reference No.18 of 2019, has also been sent by the trial Court. These are being decided through this single judgment.
2. We have heard the learned counsel for the appellant as well as the learned Additional
Prosecutor General, duly assisted by the learned counsel for the complain ant and have gone
through the record with their valuable assistance. It has been argued by the learned counsel
for the appellant fiat the prosecution had failed to prove its case against the appellant beyond
reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the
appellant. In the contrary, learned Prosecutor General, maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the instant appeal
deserves to be dismissed.
3. The occurrence in this case had taken place during a night in the month of May,
inside the house of appellant, which remained unwitnessed. The appellant Muhammad Essa,
who happened to be the son- in-law of complainant, Saeed Alam, along with co- accused.
Amir Muhammad has been nominated in the FIR, on the basis of suspicion. Prosecution case
is founded upon an application (Ex.P/1-A) of Syed Alam (PW -1), received by Tehsildar Haji
Muhammad Akram, on 29- 5-2019 at 4:15 a.m. at Levies Thana Saranan, which was
culminated in formal FIR (Ex. P/10- A). According to the complainant, his daughter Gul
Ghutai, married appellant Muhammad Essa and on the day of incident, he was informed by
co-accused Amir Muhammad regarding the death of his daughter. After receiving such
information, he proceeded to the house of appellant and came to know that his daughter was
committed to death by the accused persons.
4. As stated above, the occurrence in this case had taken place at midnight i.e. 02:00
a.m. in the month of May, and the pl ace of alleged occurrence was inside the house of
appellant, situated at New Mahajir Camp Saranan, at a distance of about 3 k.m. from Levies Thana, Saranan. An FIR in respect of the incident in question had been lodged after about
two hours and 15 minutes and, thus, a possibility regarding deliberation and cooking- up a
false story could not safely be ruled out of consideration. As stated above, there is no eye -
witness of the occurrence and the whole case of the prosecution has been structured upon the
sole confessional statement of appellant Muhammad Essa (Ex.P/8- B), recorded by Zil -e-
Huma, Judicial Magistrate -II, Pishin (PW -8). A bare perusal of confessional statement
reveals that it was made on oath. The question as to what is the effect of administering oath
to an accused before his confessional statement is recorded, came up for consideration before
the Hon'ble Supreme Court of Pakistan, in the case of "Muhammad Bakhsh v. The State PLD
1956 SC (Pak) 420, wherein after considering the provision of sections 342 and 164, Cr.P.C.,
Section 5 of the Oaths Act, 1873 and Sections 24 and 132 of the Evidence Act, has observed: --
"The administration to him of an oath or affirmation is thus opposed to public policy and any infringement of the provision prohibiting the Court from putting him under
oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel. We have, therefore, no doubt that the statement under section 164 of the Criminal P.C. was obtained from the prisoner in an illegal manner and that its rejection must follow as a matter of course from that illegality".
5. The confession should be recorded in the manner provided for statement of an
accused and not in the manner provided for recording
evidence. If it is rec orded in the manner provided for recording evidence by administering
oath, then it loses its character insofar the maker is concerned. The fact of administering oath at the recording of confession virtually means that the maker is compelled to give evidenc e
against him, placing him in the status of a witness at the stage of investigation, in violation of Article 13(b) of the Constitution of Islamic Republic of Pakistan, 1973, read with section 5 of the Oaths Act, 1873. Administering oath for recording confe ssion will only mean the
recording of evidence of the maker for use in subsequent stage against the maker which is prohibited under the law. While holding this view, we are fortified from the dictum, laid down by the Hon'ble Supreme Court, in the case of " Azeem Khan v. Mujahid Khan and
others" 2016 SCMR 274, wherein after discussing in detail the precautions, required to be observed by the Magistrate, while recording confession of an accused, has held: -
In the instant case, the Recording Magistrate namely. Ch. Taufiq Ahmed did not
observe least precautions, required under the law. He was so careless that the
confessions of both the appellants were recorded on oath, grossly violating the law, the same therefore, has rendered the confession inadmissible which cannot be safely
relied upon keeping in view the principle of safe administration of justice."
6. Similarly, a Division Bench of Lahore High Court, in the case of "Manzur v. The
State, PLD 1973 Lah. 714, while considering the question of prejudice in case of recording
confession of accused on oath observed as under: -
"We cannot see how an accused person can be said not to have been prejudiced when
evidence which the law expressly says shall not be taken against him has been so
taken, and the finding is influenced by that evidence. The law so jealously guards
against inadmissible evidence that where a verdict or finding has been influenced by
such evidence it enjoins the superior Courts to exclude it and to reweigh the remaining evidence in order to decide whether it can sustain the verdict of finding.
We have, therefore, no hesitation in holding that the confession cannot be taken into
consideration in deciding the question of the appellant's guilt."
7. Besides the afore mentioned illegalit y, committed by the learned Judicial Magistrate,
Pishin, while recording the statement of appellant under section 164, Cr.P.C, admittedly the
said judicial confession had been retracted by the appellant before the learned trial court and in absence of an i ndependent corroboration, such retracted judicial confession could not
suffice all by itself for recording or upholding the appellant's conviction. The proceedings of recording of the judicial confession deposed about by the learned judicial magistrate als o
show that it had never been mentioned in those proceedings that before recording the
confession the handcuffs of the appellant had been removed or any time for reflection was provided.
8. The medical evidence furnished by PW -9, Dr. Aisha, Lady Police Surgeon, is also
contrary to the alleged confession as well as prosecution case. PW -9 deposed that on 29- 5-
2019, dead body was brought by Tehsildar, Muhammad Akram and she after conducting postmortem, prepared her report Ex. P/9- A The report does not purport the cause of death
and it is stated therein that the same will be given after receiving the report of chemical analysis. The report of chemical analysis Ex. P/9- B is also only to the effect that no
drug/poisons were detected in blood, liver and stomach contents. In such view of the matter, there was no occasion with the said witness to opine that the cause of death was due to Asphyxia, smoothling and Homicidal in manner.
9. There is another aspect of the case. As stated earlier besides the appellant one oth er
person, namely, Amir Muhammad was also indicted in this case, who was acquitted by the learned trial Court, which was not assailed either by the complainant or State and, as such, his acquittal attained finality. It is well settled by now that if a set of witnesses is disbelieved
to the extent of some accused, the same cannot be believed to the extent of remaining
accused facing the same trial without there being any independent and strong corroboration,
which is lacking.
10. Reverting to the contention of learned Additional Prosecutor General, that the
deceased Gul Ghutai died unnatural death, inside the house of appellant, who happened to be
her husband, thus, some part of the onus lies on him to establish the circumstances, in which such unnatural deat h had occurred. The contention has no leg to stand for two reasons,
firstly, the prosecution has failed to establish the unnatural death of deceased and secondly, the honorable Supreme Court has answered the same in the cases of "Abdul Majeed v. The State" 2011 SCMR 941 and "Nasrullah v. The State" 2017 SCMR 724, wherein, it has been
clarified that the prosecution is bound to prove its case against an accused beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution assert s presence of
some eye -witnesses and such claim of the prosecution is not established by it, then the
accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it m ust be he and none else, who
would have committed that murder.
For what has been discussed above, we are of the considered opinion that the
prosecution had failed to establish its case against the appellant beyond any shadow of doubt, thus, extending the benefit of doubt he is acquitted of the charge and he shall be released
immediately if not required to be detained in any other case. Accordingly, this appeal is accepted and Murder Reference No.18 of 2019 is answered in negative and death sentence is not confirmed.
These are the reasons of our short order dated 6th April 2020.
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