2020 M L D 2039
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
SALEEM IQBAL and another ---Appellants
Versus
MUHAMMAD ASHIQ and others ---Respondents
Criminal Acquittal Appeals Nos.61 and 71 of 2018, decided on 18th December, 2019.
(a) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Appeal against acquittal ---Accused was
charged for committing murder of the husband of complainant by firing--- Record showed
that wife of the deceased/comp lainant was eye- witness of the case and during investigation
they were booked as the accused ---No one had come forward to furnish the ocular account of
the incident, thus, it was an unseen occurrence ---Prosecution case was full of contradictions
and manner and mode of occurrence was highly doubtful and the evidence produced in
support of its case was not confidence inspiring ---Appeal against acquittal was dismissed, in
circumstances.
(b) Criminal trial --
----Circumstantial evidence ---Scope ---Prosecution mu st ensure, that the circumstances from
which the inference of guilt was sought to be drawn must be cogently and firmly established-
--Circumstances must unerringly point towards the guilt of the accused and when taken cumulatively, they should form a chain so completed that it must demonstrate in all
probabilities that the crime was committed by the accused.
(c) Penal Code (XLV of 1860)---
----S. 302 ---Qatl -i-amd---Appreciation of evidence ---Appeal against acquittal ---Confession,
recording of ---Infirmities ---Effect ---Accused was charged for committing murder of the
husband of complainant by firing--- Record showed that wife of the deceased/complainant
became eye- witness of the case and during investigation she was also booked as accused---
Accused persons were produced before the Judicial Magistrate for recording statements under S.164, Cr.P.C. whereby the accused was given an opportunity to cross -examine the co -
accused persons ---Accused was produced before Judicial Magistrate for recording his
statement under S .164 Cr.P.C., whereafter the statement of said accused was recorded and
issued certificates ---Neither the Judicial Magistrate called on the said date the co -accused
persons nor gave them any opportunity for cross -examination while recording statement of
accused under S.164, Cr.P.C.---When co -accused was produced before the Judicial
Magistrate, the Judicial Magistrate did not record her statement and notice was issued to the
accused for cross -examining co- accused and her statement was recorded on the next day ---If
it was necessary to issue notice to accused for giving him an opportunity of cross -examining
the co -accused persons, then the question arose as to why did he not record the statement of
accused on the said date---When the Judicial Magistrate recorde d the statement of accused,
he did not call both the co -accused on the said date--- Said aspect of the matter casted
reasonable doubt on the prosecution case ---Record further transpired that the Judicial
Magistrate, after recording statement of accused unde r S.164, Cr.P.C., handed them over to
the Investigating Officer, who brought the accused before him, which made the confessional statements of accused involuntary, which could not be made basis for recording conviction---Judicial Magistrate had also not gi ven sufficient time for reflection before recording the
statements of the accused under S.164, Cr.P.C., as it was incumbent upon him to have given accused sufficient time for reflection i.e. thirty minutes with three intervals ---Henceforth by
not doing so, Judicial Magistrate failed to observe precautions held necessary before
recording a confessional statement ---Certificates issued by the Judicial Magistrate and
statements of Investigating Officer and Judicial Magistrate revealed that no time for reflectio n was given to the accused before recording their statements under S.164, Cr.P.C., as
envisaged under S.364(2), Cr.P.C.---Confessional statements of accused did not appear to be true and voluntary--- Circumstances established that the Trial Court had passed a well -
reasoned judgment, which was neither perverse nor fanciful or ridiculous ---Appeal against
acquittal was dismissed, in circumstances.
(d) Penal Code (XLV of 1860)---
----S. 302--- Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd---Appreciati on of
evidence--- Appeal against acquittal ---Confessional statement of accused ---Delay in
recording ---Effect ---Accused was charged for committing murder of the husband of
complainant by firing--- Record showed that after eight days of his arrest the accused was
produced before Judicial Magistrate, who allegedly recorded his statement under S.164, Cr.P.C. ---Such delay had not plausibly been explained by the prosecution, which had highly
damaged its credibility and same could not be accepted as confidence inspi ring against the
accused ---Appeal against acquittal was dismissed, in circumstances.
Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003
SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Patoo and another v. The State 2 012 MLD 1358 rel.
(e) Criminal Procedure Code (V of 1898) ---
----S. 164 ---Confessional statement---Evidentiary value ---Confessional statement is not to be
accepted as a substantive piece of evidence and conviction cannot be placed on it alone, unless it is corroborated in each and every detail by other corroborative and circumstancial
evidence.
(f) Penal Code (XLV of 1860)---
----S. 302 ---Criminal Procedure Code (V of 1898), S.164---Qatl -i-amd Appreciation of
evidence--- Appeal against acquittal ---Retracted confession ---Scope ---Retracted confession
shall not be accepted as gospel truth ---Court shall carefully scrutinize such confessional
statement to ascertain as to whether all the formalities required thereto fulfilled by the court,
which recorded such statement.
Muhammad Parvez and others v. The State 2007 SCMR 670; Muhammad Ali v. The
State 2008 PCr.LJ 87 and Muhammad Yousuf v. The State 1995 SCMR 351 rel.
(g) Penal Code (XLV of 1860) ---
----S. 302 ---Qatl -i-amd---Appreciation of evidence ---Appeal against acquittal ---Recovery of
weapon and crime empty on the instance of accused ---Delay in sending the weapon and
crime empty for analysis ---Scope ---Record showed that the pistol was recovered o n the
pointation of accused--- Such version was not trustworthy and confidence inspiring---Incident
took place on 03- 07-2016 and the pistol was recovered along with empty on 28- 07-2016
from a drain with running water on the pointation of accused--- Nothing w as available on
record to show that the said drain was a running water drain--- Prudent mind would not accept
that the accused made firing upon the deceased and also took the empty with him and threw the same in a drain of running water ---Said recovery was not effected from exclusive
possession of the accused and the place of recovery was also not in custody of the accused---Bullet lead was recovered on the day of occurrence from the place of occurrence and the same was taken into possession through recovery memo and was sealed in a parcel ---Said
bullet lead was not sent to Firearms Expert along with recovered pistol ---Record further
revealed that the alleged recovery was effected on 28 -07-2016 and pistol and one bullet
empty were sent to Firearms Expert for opinion after delay of five months without any explanation--- Such recovery was inconsequential, in circumstances ----Appeal against
acquittal was dismissed, in circumstances.
(h) Criminal trial ---
----Benefit of doubt ---Principle ---One circumstance, which created reasonable dent in the
veracity of the prosecution version could be taken into consideration for extending benefit of doubt to the accused not as a matter of grace rather as a matter of right.
Syed Ayaz Zahoor and Rubina Shaheen for Appellants.
Respondent No.1 (in person).
Allaudin Saeed for Respondents Nos. 2 and 3.
Abdul Mateen, DPG for the State.
Date of hearing: 12th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---Appellant Saleem Iqbal son of Muhammad Iqbal
nephew of the deceased has fil ed Criminal Acquittal Appeal No. 61 of 2018 under Section
417(2) Cr.P.C. The State through Prosecutor General Balochistan has filed Criminal
Acquittal Appeal No.71 of 2018 in FIR No. 74 of 2016 for an offence under Section 302 P.P.C. of P.S. Industrial Are a Quetta against the judgment dated 12.02.2018 (impugned
judgment) passed by learned Additional Sessions Judge -I, Quetta (trial court) whereby the
respondent were acquitted of the charge.
2. Relevant facts for disposal of the titled appeals are that the accused/respondent Nos.2
Safina w/o deceased Muhammad Afzal filed an application with SHO PS Industrial Area Quetta on 03.07.2016 and on the report of Mst. Safina the FIR No.74 of 2016 (Ex.P/6- A) was
registered with the allegation that on the aforesaid date at 7:40 pm, at the house of deceased Muhammad Afzal situated at Stewart Road Quetta near Karkhana Gali, Quetta one person after knocking the door came inside and was talking with her husband. Suddenly, the sound of fire came when the complainant along with her daughter came into the courtyard, they saw
that her husband was lying and blood pouring out of his head. After this the complainant along with her daughter with the help of her neighbours shifted her husband to hospital, where in the hospital Muhammad Afzal succumbed to injuries. Hence the crime report was
lodged against unknown accused persons.
3. After completion of the investigation the challan was submitted before the trial court,
whereby after full dressed trial the accused/respondents were acquit ted of the charge by the
trial court vide impugned judgment dated 12.02.2018. Aggrieved from the impugned judgment Saleem lqbal son of Muhammad Iqbal nephew of the deceased Muhammad Afzal filed Criminal Acquittal Appeal No. 61 of 2018 under Section 417(2) Cr.P.C while the State
through the Prosecutor General Balochistan has filed Criminal Acquittal Appeal No.71 of
2018. Since both appeals are arising out of one and same judgment.
4. We have heard the learned counsel for the parties and have perused the enti re record
with their able assistance.
5. The penal laws in Pakistan are primarily based upon certain fundamental procedural
values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he/she enjoys
the benefit of such presumption, which could be interfered with only for valid and apt reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wh erever there is perversity of facts/or law appearing in the judgment,
the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but, otherwise, such interference is not called for. It is true that there is no embargo on the
appellate court, reviewing the evidence, upon which an order of acquittal is based; however, it is equally true that generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further streng thened by his/her acquittal.
6. Now keeping the above principle in view, it is to be seen as to whether the judgment
passed by the trial court is perverse, illegal and is based on non- perusal of evidence and no
other decision could have been given except t hat the accused is guilty and there has been
complete misreading of evidence leading to miscarriage of justice or that the accused has
rightly been acquitted on the basis of material available on record.
7. It may be observed that accused/respondent No.2 M st. Safina is wife of deceased
Muhammad Afzal on whose complaint the FIR was lodged on 03.07.2016 and her daughter Mst. Ruqiya (accused/respondent No.3) became eyewitness of the case and during investigation they were booked as the accused. The record tran spires that no one came
forward to furnish the ocular account of this unfortunate incident, thus one may say that it is an unseen occurrence. The material collected by the prosecution on record are disclosure of the accused, statements of the accused recor ded under Section 164 Cr.P.C, recovery of crime
weapon on pointation of accused/respondent No.1 with couple of positive reports of Firearms Expert report and other circumstantial evidence in the shape of last worn clothes of the deceased, recovery of bulle t lead and medical evidence.
8. Before dilating upon the above -referred circumstantial evidence, we are fully
conscious of the principle that if the case is based on circumstantial evidence, the prosecution must ensure, that the circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established. The circumstances must unerringly point towards the guilt of the accused and when taken cumulatively, should form a chain so complete, that it must demonstrate in all probabilities that the crime was committed by the
accused. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be ful ly established and all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such to show that within all human probability th e act must have been
done by the accused. Reliance is placed in the case titled, "Sheikh Muhammad Amjad v. State" (PLD 2003 SC 704).
9. Most important piece of evidence is judicial confession made by accused/respondents,
which were produced by PW -5 namely Muhammad Qasim Judicial Magistrate, who recorded
statements of accused/respondents Safina and Ruqiya under Section 164 Cr.P.C on 28.07.2016 and of accused/respondent Muhammad Ishfaq on 04.08.2016. During trial the accused/respondents retracted their judici al confession. According to PW -5 Muhammad
Qasim Judicial Magistrate the accused/respondent Mst. Safina was produced before him for recording her statement under Section 164 Cr.P.C on 27.07.2016 but on the said date he did not record her statement and issue d notice to arrested accused namely Muhammad Ishfaq
(respondent No.1). On 28.07.2016 the accused/respondents Mst. Safina and Mst. Ruqiya and Muhammad Ishfaq were produced before the Judicial Magistrate PW -5, for recording
statements of accused Safina and R uqiya under Section 164 Cr.P.C whereby the accused
Muhammad Ishfaq was given an opportunity to cross -examine them. But on 04.08.2016 the
accused Muhammad Ishfaq was produced before him for recording his statement under Section 164 Cr.P.C, whereafter he recorded statements of said accused under section 164 Cr.P.C and then issued certificates. On the said date neither the Judicial Magistrate PW- 5
called the accused/respondents Mst. Safina and Mst. Ruqiya nor gave any opportunity for
cross -examination while re cording statement of accused Muhammad Ishfaq under section
164 Cr.P.C. It is stated earlier that when the accused Mst. Safina was produced before the Judicial Magistrate on 27.07.2016 at that time the Judicial Magistrate did not record her statement and no tice was issued to accused/respondent No.1 Muhammad Ishfaq for cross -
examining accused Mst. Safina and her statement was recorded on the next date i.e. on
28.07.2016. For the sake of argument if it is presumed that it was necessary to issue notice to
accus ed/respondent Muhammad Ishfaq for giving him an opportunity of cross -examining the
accused/respondent Mst. Safina, then the question arises as to why did he not record the statement of accused/respondent Muhammad Ishfaq too on the said date. Moreover, when the
learned Judicial Magistrate PW- 5 recorded the statement of Muhammad Ishfaq on
04.08.2016 he did not call both the accused/respondents namely Mst. Safina and Mst. Ruqiya on the said date. This aspect of the matter casts reasonable doubt in the prosecut ion case.
10. The Judicial Magistrate after recording the statements of the accused/respondents
handed them over to the investigation officer (IO) i.e. PW -6 Khalid Mehmood IP. According
to Judicial Magistrate PW -5 the accused/respondents Mst. Safina and Ruqiya were produced
before him on 28- 07-2016 at 11:30 am and within one hour he recorded statement of both of
them under section 164 Cr.P.C. He stated during cross -examination that on 04.08.2016 the
accused Muhammad Ishfaq was produced before him for recording his statement under Section 164 Cr.P.C at 2:00 pm by Khalid Mehmood SI. It is worthwhile to mention here that the Judicial Magistrate recorded the statement of accused/respondent before court timing i.e. 2:30 pm but on the other hand according to PW -4 Dr. Noor Bakhsh on 28.07.2016 the
accused/respondents Safina and Ruqiya were produced before him at 4:00 pm. He further stated in his statement that on 28.07.2016 at 4:30 pm he examined accused/respondents
Safina and Ruqiya. He also stated in his statement that all the accused were produced by IP
Khalid Mehmood of PS Industrial Quetta before him. He also produced medical certificates Ex.P/4- B and Ex.P/4- C according to which on 28.07.2016 he examined accused/respondents
Ruqiya at 4:15 pm and accused/ respondent Safina at 4:30 pm respectively, while on 4.8.2016 he examined accused/respondent Muhammad Ishfaq at 4:00 pm. PW -6 Khalid
Mehmood who conducted investigation of the case also confirmed during cross -examination
that after recording statements of accused/ respondents the learned Judicial Magistrate handed
over the accused/respondents to him (PW -6) whereafter he took the accused/respondents for
medical checkup.
In view of above discussion it is established that the Judicial Magistrate after
recording statem ent of accused/respondents under Section 164 Cr.P.C handed them over to
the police officials i.e. PW -6 Khalid Mehmood/IO who brought the accused before him (PW -
5), which makes the confessional statements of accused/respondents involuntary, which cannot be made basis for recording conviction. PW -5 Muhammad Qasim Judicial Magistrate
has also not given sufficient time for reflection before recording the statements of the accused/respondents under Section 164 Cr.P.C as it was incumbent upon him to have given sufficient time for reflection i.e. thirty minutes, with three intervals, henceforth by not doing
so PW -5 failed to observe precautions held necessary before recording a confessional
statement. Moreover according to certificates issued by the Judicial Magist rate PW -5 and
statements of both PW -5 and PW -6 reveals that no time for reflection was given to the
accused/respondents before recording their statements under Section 164 Cr.P.C as
envisaged under section 364(2) Cr.P.C. Therefore, confessional statements of
accused/respondents do not appear to be true and voluntary.
11. After perusal of confessional statements under Section 164 Cr.P.C of the
accused/respondents Nos.2 and 3 it transpires that they did not implicate themselves in the instant case and same ar e exculpatory statements. The story narrated by the
accused/respondents Safina and Ruqiya in their statement recorded under Section 164 Cr.P.C seems to be prosecution witness rather than the accused, because they fully exonerated themselves from the commis sion of the alleged offence.
12. The accused/respondent No.1 was arrested on 26.07.2016 and he was produced before
the Judicial Magistrate on 4.8.2016 i.e. eight days after his arrest for recording his statement under Section 164 Cr.P.C. It is worthwhile t o mention here that while statements of
respondents Nos. 2 and 3 were recorded by learned Judicial Magistrate on 28.07.2016 under Section 164 Cr.P.C the accused/respondent Muhammad Ishfaq was in custody and was also produced before the Judicial Magistrate but at that time he cross -examined both
accused/respondents Nos.2 and 3 namely Safina and Ruqiya but neither his statement was recorded under Section 164 Cr.P.C nor the IO made any request for recording statement of accused/respondent Muhammad Ishfaq under section 164 Cr.P.C and subsequently after eight
days of his arrest he was produced before Judicial Magistrate, who allegedly recorded his statement under Section 164 Cr.P.C. Such delay has not plausibly been explained by the prosecution, which has highly injured its credibility and same cannot be accepted as
confidence inspiring against the appellant. Reliance is placed in Naqeebullah's case (PLD 1978 SC 21) and Khalid Javed and another v. The State (2003 SCMR 1419). Reference may
also be made to the case of Shoukat Saeed v. The State PLD 1978 Quetta 1, Patoo and another v. The State (2012 MLD 1358).
13. The confessional statement is not to be accepted as a substantive piece of evidence
and to place conviction on it alone unless it is corroborated in each and every detail by other corroborative and circumstantial evidence is not warranted. The prosecution case is full of contradictions and manner and mode of occurrence is highly doubtful and the evidence produced in support of its case is not confidence inspiring. The courts are always vigilant,
that the prosecution shall prove in all the circumstances that the confessional statement or extract thereof was free of all kinds of coercion, threat, promise and that it was voluntary. Retracted confession shall not be accepted as Gospel truth. The court shall carefully scrutinize such confessional statement to ascertain as to whether all the formalities required thereto of recording of such statement were fulfilled by the court, which is record ing such
statement of an accused. Reliance is placed on the case of Muhammad Parvez and others v. The State (2007 SCMR 670), Muhammad Ali v. The State (2008 PCr.LJ 87). In the case of Muhammad Yousuf v. The State (1995 SCMR 351) it was held as under:
"Sec tion 302---Retracted confession ---Courts generally refrain from basing
conviction solely on retracted confession and have always sought for some reliable corroborative evidence regarding material particulars in the confessional statement."
14. The other pi ece of evidence is recovery of crime weapon i.e. pistol and bullet empty
on the instance of the accused. According to prosecution version the pistol was recovered on
pointation of accused/despondent No.1 Muhammad Ishfaq. Such version is not truth worthy and confidence inspiring. The incident took place on 03.07.2016 and the pistol was recovered
along with empty on 28.07.2016 from a drain, with running water on the pointation of accused Muhammad Ishfaq. It has also come on record that the said drain is a run ning water ,
in such state of affairs how was it possible that the empty which was otherwise weighing
very little remained in a drain of running water and was recovered after twenty five days of
the occurrence. It is also not acceptable to the prudent mind that the accused made firing
upon the deceased Muhammad Afzal and also took the empty with him and threw the same in a drain of running water. The said recovery was not effected from exclusive possession of the accused and the place of recovery was also n ot in custody of the accused. It has also come on
record that the bullet led was recovered on the day of occurrence from the place of occurrence and the same was taken into possession through recovery memo and was sealed in a parcel No. 1. The said bullet led was not sent to Firearms Expert along with recovered
pistol. Record further reveals that the alleged recovery was effected on 28.07.2016 and pistol and one bullet empty were sent to Firearms Expert for opinion on 27.12.2016 after delay of five months w ithout any explanation.
15. It is an established principle of law that for extending benefit of doubt in favor of the
accused so many circumstances are not required rather one circumstance, which creates reasonable dent in the veracity of the prosecution version can be taken into consideration for the purpose not as a matter of grace rather as a matter of right.
16. In the light of the above principles, we have re -appraised the material available on
record so as to determine, whether the impugned judgment of acquittal, recorded by the trial
court, suffers from any illegality or legal infirmity or is based upon misreading and non-reading of the evidence. In our considered view, the impugned judgment does not suffer from any legal infirmity to warrant interfer ence by this Court. Therefore, we are of the considered
view that the trial court has passed a well -reasoned judgment, which is neither perverse or
fanciful nor ridiculous. Rather the court has given valid reasons for its conclusion as there is absolutely nothing on record to connect the respondent/accused with the offence for which
they have been charged in the alleged crime.
Even otherwise after the acquittal, the accused/respondents earned double
presumption of innocence in their favour, therefore, to disturb such findings, strong and cogent evidence is required, which is lacking in the present case as such both the appeals are dismissed.
JK/105/Bal. Appeals dismissed.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,
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