2020 M L D 659
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
SANAULLAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.352 and Murder Reference No. 8 of 2018, decided on 28th August,
2019.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Juvenile Justice System Ordinance (XXII of 2000), S.7---Qatl -i-
amd---Age of accused, determination of --- Accused was charged for committing murder of
brother of the complainant ---Trial Court sent a letter to the Medical Board for determination
of age of the accused--- Subsequently, on direction of the Trial Court, Medical Board, after
examining the accused, issued a certificate, according to which his age was about 17 years ---
Validity ---Once it was brought to the knowled ge of the Trial Court that the accused was a
child under S. 2(b) of the Juvenile Justice System Act, 2018, his trial was to proceed under S. 4 thereof rather than under ordinary law ---Conviction and sentences of the accused
tantamounted to throwing him in prison with adults in violation of S.16 of Juvenile Justice
System Act, 2018--- Section 16 of the Act provided that the accused being juvenile could not
be awarded death; similarly accused could not be ordered to labour etc. in view of the clear bar contained under the law, which was applicable to the facts and circumstances of
the present case--- Trial Court had wrongly awarded death punishment to the accused---Appeal
was allowed and accused was acquitted by setting aside conviction and sentence awarded by the Trial Court, in circumstances.
(b) Criminal trial ---
----Circumstantial evidence ---Scope ---If the case was based on circumstantial evidence, the
prosecution was to ensure that the circumstances from which the inference of guilt was
drawn, had been firmly established--- Circumstances must have unerringly pointed towards
the guilt of the accused and when taken cumulatively, same should form a chain so complete, that it must demonstrate in all probabilities that the crime was committed by the accused.
Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Last seen evidence--- Scope ---
Accused was charged for committing murder of brother of the complainant ---Last seen
evidence had been furnished by one witness ---Said witness had stated that on the day of
incident he was present with deceased in his house ---Accused asked the deceased to go to
place "P" ---Deceased took his car and went while witness was left at cemetery and accused
and deceased went away ---Said story narrated by witness had neither been corroborated from
the FIR nor from the statement of the accused recorded under S. 164, Cr.P.C., nor the
prosecution produced any other corroborating evidenc e in that behalf ---Version of said
witness was an afterthought and seemed concocted and fabricated one---If the witness had
seen the accused on the very first day of missing the deceased he would have definitely disclosed before the police and he had inqu ired from the accused about the whereabouts of
the deceased but he did not lodge the report on the first day rather his statement was recorded by the police after three days from missing of the deceased ---Statement of said witness did
not find any support from alleged confessional statement of the accused and other piece of evidence--- Belated statement of witness regarding last seen of the deceased in the company
of the accused was unbelievable and not trustworthy---Appeal was allowed and accused was acquit ted by setting aside conviction and sentence recorded by the Trial Court, in
circumstances.
(d) Criminal trial ---
----Last seen evidence--- Evidentiary value ---Last seen evidence was the weakest type of
evidence unless corroborated by the other strong piec es of evidence--- Punishment of capital
charge could not be based on evidence of last seen.
(e) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Accused was
charged for committing murder of brother of the complainant ---Complainant alleged in his
report that deceased was kidnapped for ransom and accused demanded Rs. 25,00,000/ - for
his release---Record revealed that neither the complainant informed the police about receiving of a phone call for ransom demand nor lodged the report in respect of the deceased---Complainant lodged the report on 16.12.2013 when the dead body of the deceased was lying in civil hospital ---Even otherwise, the complainant did not collect the record of the
telephone from which he received call, neither he approached the police for collecting the Call Data Record about receiving calls ---Witnesses, who we re allegedly sitting with the
complainant at the time of receiving call also did not inform the police or Levies Force about receiving of the said call ---Record was silent as to what was the occasion for the said
witnesses to have been present with complai nant at the time of call from the unknown
person--- No explanation whatsoever had been rendered by the prosecution---Alleged call for
ransom, in circumstances, appeared to be fabricated and cooked story, simply because no voice data of the phone call was ei ther by the police or Levies Force or produced by the
complainant party ---Testimony of the said witness was neither truth- worthy nor confidence
inspiring--- Appeal was allowed and accused was acquitted by setting aside conviction and
sentence recorded by th e Trial Court, in circumstances.
Azeem Khan and another v. Mujahid Khan 2016 SCMR 274 rel.
(f) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Delay of about
more than two days in lodging FIR ---Ef fect---Occurrence took place on 14.12.2013 and the
FIR was lodged on 16.12.2013 at 10:00 pm. ---Record revealed that the complainant knew
about the occurrence on 14.12.2013--- Complainant in his report as well as in his statement
stated that on 15.12.2013 when they came to know that juvenile accused was at his home,
they met him who was very nervous and could not satisfactorily answer about the whereabouts of the deceased, therefore, they handed him over to police, whereby accused disclosed that he and abscon ding accused put the deceased to death on account of non -
payment of ransom and threw his body--- Statements of complainant and Investigating
Officer revealed that the accused was handed over to Levis Force on 15.12.2013 and the Investigating Officer stated that when police handed over the accused to him they told that the accused was involved in murder of deceased meaning thereby that the complainant and Investigating Officer and the Police Officials of police were having knowledge about missing of the deceased and his murder on 15.12.2013 but despite that the complainant did not lodge the report and he lodged the report on 16.12.2013 at 10:00 p.m.--- Lodging of the FIR with
such delay had not been plausibly explained by the prosecution as well as complainant,
which created reasonable doubt in the prosecution case--- Appeal was allowed and accused
was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.
Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 1 27 rel.
(g) Criminal Procedure Code (V of 1898) ---
----S. 164--- Confessional statement of accused ---Procedure---Before recording the
confessional statement of the accused, the Judicial Magistrate was to observe all the mandatory precautions as per High Court Rules and Orders and Procedure, so that all signs of fear inculcated by the investigation agency in the mind of the accused were to be shed out.
Azeem Khan and another v. Mujahid Khan 2016 SCMR 274 rel.
(h) Penal Code (XLV of 1860)---
----S. 3 02(b) ---Criminal Procedure Code (V of 1898), S. 164---Juvenile Justice System
Ordinance (XXII of 2000), S. 2(b) ---Qatl-i-amd---Appreciation of evidence ---Recording
statement of juvenile accused ---Scope ---Accused was charged for committing murder of
brother of the complainant ---Record showed that the accused was arrested on 15.12.2013
before lodging the FIR, which was registered on 16.12.2013 and produced him before the Judicial Magistrate on 23.12.2013---Accused, being a minor, was provided no opportunity of counselling neither by his guardian nor by a lawyer ---Judicial Magistrate did not state a
single word in his statement as well as in the certificate issued by him that either any offer was made to the appellant for counselling---Judicial Magistrate did n ot comply in letter and
spirit the procedure of recording judicial confession---Judicial Magistrate did not explain to the accused that who he was and even he was not told that he would not be handed over to
police after his confession ---Indeed, the Judic ial Magistrate after recording the confession,
handed over the accused to the same levies officials, who produced him for purpose of
judicial remand ---Said fact was also confirmed by Investigating Officer, who conducted
investigation of the case ---Confessi on of the accused was not voluntary, in circumstances ---
Confession of the minor was to be assessed on the same touchstone as to statement of a child
witness ---Child witness was brought to the dock by relatives while on the contrary child
accused was brough t to the court by Police Officials for recording his confessional statement
and possibility of tutoring and police fear was always there ---Record further transpired that
the police and Levies Force wrongly confined the accused before lodging of the FIR
without taking remand from the concerned Judicial Magistrate ---Requisite care and
vigilance had not been taken by the Judicial Magistrate before recording confessional
statement of the appellant---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.
Hashim Qasim and another v. The State 2017 SCMR 986; State through Advocate
General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Abdul Haleem v. The State 1984 PCr.LJ 611 and Abdul Hameed v The State PLD 1980 Pesh. 25 rel.
(i) Criminal Procedure Code (V of 1898) ---
----S. 164--- Confessional statement ---Delay in recording confessional statement ---Effect ---
Confessional statement recorded with delay of eight da ys after the arrest of accused ---Such a
delay having not been plausibly explained by the prosecution, could not be accepted as confidence inspiring against the accused.
Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003
SCMR 14 19; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Patoo and another v. The
State 2012 MLD 1358 rel.
(j) Criminal Procedure Code (V of 1898) ---
----S. 164 ---Confessional statement of accused ---Scope ---Conviction could not be based only
on the confessional statement of the accused unless the prosecution was able to substantiate its case against the accused by trustworthy and inspiring evidence.
Muhammad Ismail and others v. The State 2017 SCMR 898 rel.
Muhammad Ashraf Bazai and Muhammad Shabbir Rajpoot for Appellant.
Sudheer Ahmed, D.P.G. for the State.
Date of hearing: 7th August, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant was invol ved in case FIR No.80/2013
dated 16.12.2013 registered under section 302, P.P.C. at Levies Headquarter, District Pishin
and was tried by learned Sessions Judge, Pishin ("trial court"). The trial court seized with the matter in terms of judgment dated 14.11.2018 ("impugned judgment"), convicted and sentenced the appellant in the following terms: ---
"37 .....As such accused Sanaullah son of Hazrat Gul is convicted under section 302(b), P.P.C. and sentenced to death as Tazir and he is also required to make payment of compensation amounting to Rs.600,000/ - (six lac) to the legal heirs of
deceased as per provisions contained under section 544- A Cr.P.C. or in default to
suffer R.I for six (06) months."
Aggrieved from the impugned judgment the appellant has assai led his conviction and
sentence through criminal appeal bearing No. 352 of 2018, while the trial court forwarded murder reference No. 08 of 2018 for confirmation of the sentence of death inflicted upon the convict/appellant in terms of section 374, Cr.P.C. as both the cases are arising out one and
the same judgment of the trial court, therefore same are being disposed of through this single judgment.
2. The prosecution story as disclosed in the complaint Ex.P/1- A recorded on the
statement of Muhammad Naeem, complainant/PW -1 is that on 14.11.2013 at 9:30 am the
appellant/accused Sanaullah took the complainant's brother namely Muhammad Ismail (deceased) in his vehicle bearing Registration No. KT -415 from his house. At about 2:08 pm
his cousin Shahidullah (PW -9) received a telephone call on his mobile phone number (0300-
9383390), who along with Muhammad Asif (PW -2) were sitting in the guestroom (Baithak)
from the cell phone of Muhammad Ismail. He turned the speaker on, it was stated from the other side that Muha mmad Ismail is with them and in lieu of his release, demand of ransom
amounting to Rs.25,00,000/ - was made for his release. Thereafter, they tried to contact the
said number time and again, but found the same switched off. On the next day, the complainant came to know that tie appellant/accused Sanaullah has come back, he went to
meet the appellant at his house, who was very nervous, and was unable to disclose the whereabouts of Muhammad Ismail satisfactorily, therefore, he was handed over the accused (Sanaullah) to Sariab police, whereby it was revealed by accused that he along with Muhammad Younas the bakery owner, Pehlwan and Younas Levies official with consultation of each other abducted Muhammad Ismail and due to non- payment of ransom demanded for
release of the abductee they killed Muhammad Ismail and threw him in Pishin area. On 16th December 2013 the complainant received information that the dead body of his brother is lying in civil hospital Quetta. On the said information the complainant and his rel atives went
to the hospital and found the dead body of his brother at the hospital, which had four gunshot injuries behind his head on other parts of his body. Hence the criminal report.
3. After completion of the investigation the challan was submitted be fore the trial court,
charge was framed on 24th September, 2014 to which the accused pleaded not guilty and claimed trial, whereafter the prosecution in order to substantiate the accusation against the appellant produced as many as twelve witnesses during the trial. Muhammad Naeem (PW -1)
was the complainant of the case. Muhammad Asif (PW -2) was witness of last seen.
Muhammad Tahir, Levies Khasadar (PW- 3) was witnesses of proceedings carried out under
Section 174, Cr.P.C. Wajid (PW -4) was circumstantial witn ess. Niaz Muhammad (PW -5) is
recovery witness of blood stained clothes of the deceased (Ex.P/5- A) and disclosure memo of
the appellant (Ex.P/5 -B). Abdul Nafay, Levies Khasadar (PW -6) was the witness of
pointation of place of occurrence by appellant (Ex.P./ 6-A). Abdul Nafey, Levies Khasadar
(PW -7) was witness of recovery memo of handkerchief, waistcoat and shoes of the deceased
(Ex.P/7 -A) and recovery memo of bullet empties of TT pistol (Ex.P/7- C). Shahidullah Jatak
(PW -9) was the circumstantial witness of the occurrence, who received telephone call
from unknown person with regard to demand of ransom. Noor Bakhsh Mengal Judicial
Magistrate -X, Quetta (PW -10), who recorded the confessional statement of the appellant
Sanaullah under Section 164, Cr.P.C., (Ex.P/10- A, Ex.P/10- B and Ex.P/10 -C). Ghulam
Mustafa Naib Tehsildar (PW- 11), was the investigation officer of the case who stated about
various steps taken by him during investigation of the case. (Ex.P/11- A to Ex.P/11- F). Junaid
Khan Naib Tehsildar (PW -12) produced the supplementary challan (Ex.P/12- A).
Dr. Ghulam Sarwar Hashmi Medico -Legal Officer (PW- 8), who examined the dead
body of deceased Muhammad Ismail and found the following injuries (Ex.P/8- A):
"Injuries:
1) One bullet entrance 1 x 1 cm lower occipital skull.
2) Exit right side lower neck.
3) two bullet entrance right shoulder 1 x 1 cm interiorly chest.
4) One bullet entrance right scapular 1 x 1 cm exit arterially right upper chest.
5) One bullet exit mid lower back 1 x 1 cm and exit mid abdomen.
Probable cause of death:
Cause of death is head injury caused by firearm.
Duration:
Above 12 hours also torture signing present."
4. The statement of the appellant/accused was recorded under section 342, Cr.P.C.
wherein he rebutted the allegation leveled against him and professed his innocence. The appellant neither opted to appear as his own witness under Section 340(2), Cr.P.C. nor produced any witness in his defense. After hearing arguments advanced by learned counsel appearing on beha lf of both the parties, the trial court while evaluating the evidence available
on record found the version of the prosecution proved beyond the shadow of reasonable doubt. Resultantly, recorded conviction to the appellant in the above terms.
5. Arguments advanced from both the sides have been heard. We have also minutely
zone through the record available on file with the able assistance of learned counsel for the parties. We have noted that the learned counsel for the appellant during trial filed an applic ation under section 7 of the Juvenile Justice System Ordinance, 2000 (repealed) for
determination of age of the appellant as juvenile with the request that the case may be transferred to juvenile court, on the ground that the date of birth of the appellant was
01.08.1998 according to his school leaving certificate. On basis of application filed by
learned counsel for the appellant the trial court sent a letter to the Medical Superintendent of
Bolan Medical Complex Hospital Quetta on 17.07.2013, for constitution of Medical Board for determination of age of the appellant. Subsequently, on direction of the trial court, the Provincial Health Directorate Balochistan constituted a medical board and after examining the appellant, the medical board issued a certific ate on 27.08.2014, according to which the
age of the appellant was about 17 years.
6. The question of age of a person facing trial, who has been put to the trial to face the
charge of murder has got a significant importance in view of Section 16 of the Juvenile Justice System Act, 2018. According to said section no person who was a juvenile offender at the time of commission of an offence shall be awarded punishment of death. The Juvenile Justice System Act, 2018, was promulgated in order to provide protection for the right of
children involved in the criminal litigation, whereas its preamble states that it is expedient to provide for protection of children in criminal litigation, their rehabilitation in society, reorganization of Juvenile Courts and matters connected therewith and incidental thereto;
whereas its clause (b) of Section 2 states that:
"2. Definitions: (a)... (b) 'child' means a person who at the time of an offence has not attained the age of eighteen years."
7. We are mindful that once it was brought to the knowledge of the learned trial Judge
that the appellant was a child under section 2(b) of the Juvenile Justice System Act, 2018, his trial should have proceeded under section 4 thereof rather than under ordinary law. The conviction a nd sentences of the appellant is tantamount to throwing him away in a prison
with adults with R.I. in violation of section 16 of Juvenile Justice System Act, 2018, which states that no child should be given corporal punishment at any time while in custody. The
above provision of law clearly provided that the appellant being juvenile cannot be awarded death. Similarly he cannot be ordered to labour etc in view of the clear bar contained under the law, which is applicable to the facts and circumstances of the case, therefore, the trial
court has wrongly awarded death punishment to the appellant.
8. As far as merits of the case are concerned, the record transpires that no one came
forward to furnish ocular account of this unfortunate incident, thus, one may say that it is an
unseen occurrence. The material collected by the prosecution are; last seen evidence furnished by Muhammad Asif (PW -2), pointation of place of occurrence by the appellant,
confessional statement of the appellant and circumstantial evidence in the shape of last worn clothes of the deceased, recovery of bullet empties and blood stained earth from the place of occurrence and medical evidence.
9. Before dilating upon the above referred circumstantial evidence, we are fully
conscious of the princi ple 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 fully established and all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the circums tances 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 concl usion consistent with the innocence of the
accused and it must be such to show that within all human probability the act must have been
done by the accused. In case titled "Sheikh Muhammad Amjad v. State" (PLD 2003 SC 704),
the august Supreme Court while d ealing with circumstantial evidence, has been held that: --
"According to the standard of proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of e vidence furnished by those circumstances must be so
complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be f ully established but also that all the circumstances
so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances
cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime."
10. First of all we would take the last seen evidence, which is usually not c onsidered to be
strong piece of evidence. In the case in hand the same has was furnished by Muhammad Asif (PW -2). According to this witness on 14.12.2013 he was present with Muhammad Ismail
(deceased) in the house. The appellant asked Muhammad Ismail about going to Pishin. Then
Muhammad Ismail took his vehicle 2.0 -D car and told him to sit with him in the car.
Thereafter they reached near Balochistan University, wherefrom they took Sanaullah and went to Kasi cemetery ( ). He was left there, whereafter appellant Sanaullah and Muhammad Ismail left. The above story narrated by PW -2 has neither been corroborated
from the FIR as well as the statement of the appellant recorded under Section 164, Cr.P.C., nor the prosecution produced any other corroborating evidence in this behalf. This version of
PW-2 establishes his status as a witness of last seen, which is an afterthought and seems
concocted and fabricated one. Had he seen the appellant Sanaullah on the very first day of Muhammad Ismail's missing he would have definitely disclosed before the police regarding
missing of the deceased, when he was last seen with one Sanaullah and he would have also inquired from the appellant about the whereabouts of the deceased but he did not lodge the report on the first day rather his statement was recorded by the police on 17.12.2013 after three days from missing of the deceased Muhammad Ismail. Admittedly the last seen evidence is the weakest type of evidence unless corroborated by other strong pieces of evidence. It is difficult to award punishment of capital charge on basis of evidence of last
seen. The statement of PW- 2 does not find any support from alleged confessional statement
of the appellant and other piece of evidence. Thus, this belated story of PW -2 regarding last
seen of the deceased in the company of the appellant is unbelievable and not trustworthy.
11. The next piece of evidence is demanding ransom from the complainant party. The
complainant alleged in his report that on 14th December 2013 at 2:08 pm, he al ong with his
cousin PW -9 Shahidullah were sitting in his Baithak, when Shahidullah received a call on his
mobile phone number 0333- 9383390 from the mobile phone of deceased Muhammad Ismail.
He turned the speaker on and Muhammad Asif (PW -2) was also sitting in Baithak. The
person who called the number of PW -9 Shahidullah from the mobile phone of the deceased
told them that Muhammad Ismail was in their custody and demanded an amount of
Rs.25,00,000/ - in lieu of his release, whereby the said person dis connected the call. The
record reveals that neither the complainant informed the police about receiving of a phone
call with ransom demand nor lodged the report in respect of the deceased Muhammad Ismail.
He lodged the report on 16.12.2013 when the dead body of the deceased was lying in civil hospital Quetta. Even otherwise, the complainant did not collect the record of the telephone from which they received call, neither he approached the police for collecting the Call Data Record about receiving calls. PW- 2 Muhammad Asif and PW -9 Shahidullah, who were
allegedly sitting with the complainant at the time of receiving call also did not inform the police or levies about receiving of the said call. The question arises here as to what was the occasion for the sai d witnesses to have been present at the Baithak of complainant on
14.12.2016 at 2:08, the very time at which they received call from the unknown person that too on Shahidullah's phone, with ransom demand in lieu of release of the deceased from his mobile, who are also not close relatives of the deceased. In this regard no explanation
whatsoever has been rendered by the prosecution. Under such circumstances the alleged call for ransom appears to be fabricated and cooked story, simply because no voice data of the
phone call was collected either by the police or levies or produced by the complainant party. The testimony of the above witness is neither truth- worthy nor inspiring confidence.
Reliance in this regard is placed in the case of Azeem Khan and another v. Mujahid Khan (2016 SCMR 274).
12. The occurrence took place on 14.12.2013 and the FIR was lodged on 16.12.2013 at
10:00 pm. The record reveals that the complainant knew about the occurrence on 14.12.2013. The complainant in his report as well as in his statement stated that on 15.12.2013 when they
came to know that juvenile Sanaullah is at his home, they met him who was very nervous and could not satisfactorily answer about the whereabouts of the deceased, therefore they handed him over to Sariab pol ice, whereby Sanaullah disclosed that " he and absconding accused put
the deceased to death on account of non -pyment of ransom and threw his body at the area of
Pishin Tehsil". The statements of Muhammad Naeem (PW- 1) and Ghulam Mustafa (PW -11)
investigatio n officer IO reveal that the accused was handed over to Levies Pishin on
15.12.2013 and the IO stated that when Kuchlak police handed over the accused to him they told that "the accused is involved in murder of deceased Muhammad Ismail" meaning thereby tha t the complainant and IO and the police officials of Kuchlak police were having
knowledge about missing of the deceased and his murder on 15.12.2013 but despite that the complainant did not lodge the report and he lodged the report on 16.12.2013 at 10:00 pm. Lodgment of the FIR with such delay has not been plausibly explained by the prosecution as well as complainant. Which create reasonable doubt in the prosecution case. Reliance in this behalf is placed on the case of Mehmood Ahmad and 3 others v. The Sta te and another 1995
SCMR 127.
13. The judicial confession made by the appellant is another piece of evidence that has
been relied upon to convict the appellant. He was produced before PW -10 Judicial
Magistrate, Pishin namely Noor Bakhsh Mengal, who recorde d his statement under Section
164 Cr.P.C. on 23rd December 2013. The accused stated in his statement that
"he and deceased Muhammad Ismail were friends and the deceased Muhammad
Ismail did a wrongful act with him in his baithak despite his resistance. One day he met with Muhammad Younas Levies official (absconding accused) who came to his home from Pishin to Quetta. He told him about the story of wrongful act of the deceased with him. Muhammad Younas told him to bring Muhammad Ismail to Pishin; that on 14th December he went to Pishin in Muhammad Ismail's GLI silver
colored car, whereafter they picked up Muhammad Younas and his other friends; that they took the deceased to mountain area and made firing upon him."
14. Having given our anxious c onsideration to the foregoing background of the matter of
murder of the deceased contained in the FIR as well as in view of the statements of PW -1
Muhammad Naeem, PW- 2 Muhammad Asif, PW -9 Shahidullah on one hand and the
retracted confession of the appellan t on the other, it has been observed that there are two sets
of evidence on record. First set of evidence as already discussed consists of FIR, court statement of the complainant, PW -2 and PW -9 and the second and crucial set of evidence
consists of the confessional statement of the appellant before the Judicial Magistrate recorded under Section 164, Cr.P.C. The statement of appellant recorded under section 164, Cr.P.C. has not corroborated with the FIR as well as the statements of so -called witnesses.
15. During the trial the appellant retracted his judicial confession. At the time of alleged
occurrence, age of the accused was 15/16 years. Admittedly, the appellant was a minor when he was tried under the Juvenile Justice System Ordinance, 2000 (repealed) now the Juvenile
Justice System Ordinance Act, 2018, which is a special law. The question before this court is as to whether the appellant who was a minor at the time of alleged occurrence could have
been dealt with under the ordinary law. In the present case the trial court has mainly relied on
circumstantial evidence and on the stance of the accused, the trial court was under obligation to consider the age and every aspect of the confessional statement for getting satisfaction as to whether all the formalities have been complied with or not. It is well settled that before recording the confessional statement of the accused, the Judicial Magistrate should essentially observe all the mandatory precautions as per High Court Rules and Procedure so that all signs of fear inculcated by the investigation agency in the mind of the accused are to
be shed out. Reliance is place on the case titled as Azeem Khan and another v. Mujahid and others (2016 SCMR 274). But we see no such precautionary measures in the present cas e,
which in the circumstances of the case were pre- requisite for recording the confession of a
minor. Before this Court is the case of a minor who has mainly been convicted on the basis of his judicial confession, therefore, extra ordinary care and caution was required to have
been taken by the concerned Judicial Magistrate before recording his confessional statement. Record shows that the appellant was arrested on 15.12.2013 before lodging the FIR, which was registered on 16.12.2013 and produced him before the Judicial Magistrate on
23.12.2013. The appellant, being a minor, was provided no opportunity of counseling neither by his guardian nor by a lawyer. It was desirable in the interest of justice that the appellant, being a juvenile, should have been prov ided counseling facility of guardian or a lawyer of his
choice but no such opportunity has been afforded to him by the Judicial Magistrate before recording his confessional statement. Reliance in this regard is placed on the judgment of the apex Court in t he case titled "Hashim Qasim and another v. The State" (2017 SCMR 986).
16. The learned Judicial Magistrate did not state a single word in his statement as well as
in the certificated issued by him i.e. Ex.P/10 -A that neither any offer was made to the
appe llant for counseling. Under such circumstances, we have no other option but to presume
that no offer was made to the appellant for counseling. It appears that the learned Judicial
Magistrate did very little in the current case to comply with the letter and spirit of recording
judicial confession. He did not explain the appellant that who he was and even the appellant
was not told that "he will not be handed over to police/levies after his confession". Indeed,
the learned Judicial Magistrate after recording the confession, handed over the appellant to
the same levies officials, who produced him for purpose of taking him for judicial remand. This fact is also confirmed by PW -11 Ghulam Mustafa (IO). Who conducted investigation of
the case. He stated during cros s-examination that on 23.12.2013 after recording the
confessional statement of the accused under Section 164 Cr.P.C, he was handed over to him and thereafter he sent the accused to judicial lockup through levies. Under the above circumstances, the confessi on of the accused was not voluntary and gross illegality was
committed by the learned Judicial Magistrate.
17. The confession of the minor is to be assessed on the same touchstone as to that of
statement of a child witness rather child witness is brought t o the dock by relatives while on
the contrary child accused is brought to the court by police officials for recording his confessional statement where possibility of tutoring and police fear is always there. Reliance is place on the case of State through A dvocate General Sindh, Karachi v. Farman Hussain
and others (PLD 1995 SC 1). Whether the appellant was able to understand the nature of questions put to him by the Judicial Magistrate or otherwise, in this regard even the judicial magistrate did not put question to the appellant for recording his statement that after recording his statement he would not be handed over to police or levies and in this regard another example is the answer given by the appellant to Question No. 5 that why he is
recording his st atement under Section 164 Cr.P.C.? the answer of the appellant was that
"because I have committed crime, I have done wrong."
18. It can easily be assessed from the answer given by the appellant that he was unable to
understand the nature of question or to give rational answer thereof. Under such
circumstances, when utmost care is to be taken while assessing the testimony of a child
witness, on the same yardstick extraordinary care and caution should have been taken by the
Judicial Magistrate while recordin g the confessional statement of the appellant and the trial
court as well as by evaluating his such statement for his conviction specially when the offence carries capital punishment. The learned judicial magistrate filled the answers without adhering to t he codal formalities and without considering the intellectual level of the minor
who was unaware of the consequences of his statement. Likewise the possibility of the
appellant being minor to have been tutored or tortured by the local police before recordi ng
his confessional statement cannot be ruled out especially when no opportunity of counseling
by parents or a lawyer was afforded to him. The learned judicial magistrate did not go through the case file before recording the confessional statement of the a ccused. It is stated
earlier that the accused was arrested on 15.12.2013 before lodging of the FIR and it came on record that at first he was brought by relatives of the deceased to police station Sariab and he
was handed over to them, thereafter the accus ed was handed over to Kuchlak police and then
the Kuchlak Police handed over the accused to Levies Pishin. It has also been admitted by
PW-1 that before taking the accused to police station Sariab they manhandled the appellant.
As per PW- 11 Ghulam Mustafa, when the appellant was handed over to him by Kuchlak
police no document was handed over to him by the concerned police officials of Kuchlak
about his arrest.
19. The record further transpires that the police and levies wrongly confined the accused
before lodging of the FIR without taking remand from the concerned Judicial Magistrate. By
considering the above facts and circumstances regarding the judicial confession of the
appellant, we feel no hesitation in holding that the requisite care and vigilance has neither
been taken by the learned Judicial Magistrate before recording confessional statement of the appellant nor by the trial court in recording conviction against the appellant on basis of the
same statement and the said confessional statement was reco rded after torturing the accused
and the same is not voluntary, therefore , it would be highly unsafe to rely upon the
confessional statement of the appellant for maintaining his conviction. Reliance is placed on the case of Abdul Haleem v The State (1984 PCr.LJ Karachi 611). Reliance is also placed on
the case of Abdul Hameed v The State (PLD 1980 Peshawar 25).
It has been stated earlier that the appellant was arrested on 15.12.2013. He was
produced before the learned Judicial Magistrate on 23.12.2013 i.e. eight days after his arrest
for recording 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 St ate (2012 MLD 1358).
20. 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 wa rranted. 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 a ll 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's truth. The court shall carefully scrutinize such co nfessional statement to ascertain as to whether all the formalities required
thereto of recording of such statement were fulfilled by the court, which is recording such statement of a juvenile 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:
"Section 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."
21. The above discrepancies in the prosecution evidence not only create serious and
reasonable doubts in prudent mind the benefit of which must go the accused, being a well cherished principle of criminal justice but the same have further obscured the retracted confessional statement of the appellant. It is settled principle of law that conviction cannot be based only on the confessional statement of the accused unless the prosecution is able to
substantiate its case against the accused by trustworthy and inspiring evidence which is not available in the present case. Even otherwise, the confession here in this case being retracted one which is not corroborated by the other oral as well as circumstantial evidence on the
record, hence, the same cannot be used for conviction of the accused. Reliance is placed on
the judgment in the case titled Muhammad Ismail and o thers v. The State (2017 SCMR 898)
the Superior Court held that: -
"The only other piece of evidence remaining in the field was a judicial confession allegedly made by Muhammad Iqrar, Khalid Hussain and Shakir Ali appellants before a Magistrate under secti on 164, Cr.P.C. but admittedly the said judicial confession
had been retracted by the appellants before the trial Court and in the absence of any independent corroboration such retracted judicial confession could not suffice all by itself for recording or upholding the appellants' convictions".
In view of the above discussion, the trial Court has failed to properly analyze the
prosecution evidence especially the confessional statement of the appellant according to the principles laid down by the Superior C ourts, therefore, this appeal is allowed, the judgment
dated 14.11.2018 passed by learned Sessions Judge, Pishin ("trial court") is set aside, consequent upon the appellant is acquitted of the charge in FIR No. 80/2013 dated 16.12.2013 registered under Sec tion 302, P.P.C. at Levies Headquarter, District Pishin. The
appellant is in custody. He is directed to be released forthwith if not required in any other case.
The Murder Reference No.08 of 2018 is answered in NEGATIVE.
JK/87/Bal. Appeal allowed.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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