2020 M L D 967
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
MUHAMMAD JAFFAR---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 298 and Murder Reference No. 18 of 2015, decided on 21st October,
2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 376(2) ---Qatl -i-amd, rape ---Appreciation of evidence ---Ocular and medical
evidence---Corroboration---Sentence, reduction in ---Accused was charged for committing
murder of two ladies after their rape ---Record showed that mo ther of one of the deceased
lady had brought on record the past relations of the deceased with accused---Medical Officer who examined the dead bodies of the victims had opined the cause of death as suffocation and strangulation while the private parts of both the deceased showed that they were subjected to forcible sexual intercourse and raped from both sides ---Medical Officer who
carried out the medical examination of the accused had opined that the accused was potent
and able to perform act of zina ---Besides, the semen samples of the accused were also taken
and the same were sent to Forensic Science Laboratory for examination along with the shalwar, qameez and chaddar of deceased as well as a piece of cloth ---Forensic Science
Laboratory issued report and opined that the said articles excluding the chaddar of deceased were stained with human sperm ---Multiple bruises on the persons of both the deceased would
reflect not only their sexual assault and brutal murder, but also their attempt to rescue themselves f rom the clutches of the culprits ---Circumstances established that the prosecution
had succeeded in proving the charge against the accused ---Three accused persons including
the accused had been booked in the crime ---Except the accused, the remaining accused
persons were absconding, hence their pleas were yet to come on record ---One of the
deceased had kept illicit relations with the accused and absconding accused out of her free will and consent, therefore, awarding of capital punishment to the accused was unwarranted --
-While upholding the conviction of accused under Ss. 376(2) & 302, P.P.C., his sentence of
death was converted into imprisonment for life ---Appeal was dismissed with said
modification.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 376(2) ---Qanun -e-Shahadat (10 of 1984), Art. 40--- Qatl-i-amd, rape ---
Appreciation of evidence ---Sentence, reduction in---Disclosure by accused ---Scope ---
Accused was charged for committing murder of two ladies after their rape ---Accused had
disclosed that he had pas t illicit relations with the deceased lady and he used to call the
deceased in a garden situated backside of her house and committed zina with her on many
occasions, on the day of occurrence deceased was called on backside ground of her house, who along wi th her cousin/ deceased came over there---As per plan both were taken to the
baitak of absconding accused---Accused along with absconding accused committed zina with
them for twelve days, whereafter, accused along with absconding accused consulted that if
the deceased were left alive, the allegations of siya kari would be levelled against them, as
such, they planned to commit their murder ---Accused thus confirmed that he had provided all
the information of the crime in detail ---Accused disclosed the name of his co -accomplices
and the place of occurrence, which facts earlier were not in the knowledge of the prosecution---Accused in the said disclosure had also disclosed the manner in which the deceased were picked in a vehicle and were taken to the place of o ccurrence---Accused had
also brought on record the manner in which the deceased were murdered by strangulation and such fact had also been corroborated by medical evidence---Nothing had come on record that the disclosure of the accused was the result of co ercion, undue influence rather the facts and
circumstances of the case would disclose that the same was voluntary, thus the disclosure of the accused was admissible---While upholding the conviction of accused under Ss. 376(2) & 302, P.P.C., his sentence of death was converted into imprisonment for life ---Appeal was
dismissed with said modification.
Muhammad Amjad v. The State PLD 2003 SC 704 and Zakir Khan and others v. The
State 1995 SCMR 1793 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 376(2) ---Criminal Procedure Code (V of 1898), S.164--- Qatl-i-amd, rape ---
Appreciation of evidence---Sentences reduction in ---Confessional statement of accused---
Scope ---Confessional statement of the accused was recorded under S. 164, Cr.P.C. by the
Judicial Magis trate---Judicial Magistrate had fulfilled all the legal requirements for recording
confessional statement ---Contents of such confession had fully been corroborated by the
disclosure of the accused ---Perusal of confessional statement of the accused confirmed that
the same was recorded without any coercion, pressure, torture or blackmailing rather the accused realized his shamefaced act and due to embarrassment, he immediately agreed to record his confessional statement ---Confessional statement was thus recor ded in accordance
with law, voluntarily and truly without any fear or torture ---While upholding the conviction
of accused under Ss. 376(2) & 302, P.P.C., his sentence of death was converted into imprisonment for life ---Appeal was dismissed with said modifi cation.
Hashim Qasim v. The State 2017 SCMR 986 rel.
Obaidullah Quresh for Appellant.
Habibullah Gul, D.P.G. for the State.
Ali Ahmed Lehri for the Complainant.
Date of hearing: 23rd September, 2019.
JUDGMENT
ABDULLAH BALOCH, J .---This common judgment disposes of Criminal Appeal
No.298 of 2015 and Murder Reference No.18 of 2015.
The appeal has been filed by the appellant Muhammad Jaffar, against the judgment
dated 16th September 2015 (hereinafter referred as, "the impugned judgment") passed by the
learned Additional District Judge Kalat (hereinafter referred as, "the trial Court"), whereby
the appellant was convicted and sentenced as under:
"Under section 376(2), P.P.C,. 1860 and sentenced with death on two counts for committing rape with Bibi Nazia and Bibi Asia. The accused is further convicted
under section 302(b), P.P.C., 1860 and sentenced with death on two counts for committing the murder of Bibi Nazia and Bibi Asia. He be hanged by the neck till he is dead. He is also directed to pay Rs.5,00,000/ - (Rupees five lac only) to the legal
heirs of deceased Bibi Nazia and to pay Rs.5,000,00/ - (Rupees five lac only) to the
legal heirs of deceased Bibi Asia as compensation under section 544- A of Cr.P.C. In
default of payment of fine to suffer S.I. of 02 (two) years. The sentences so awarded
shall be executed subject to confirmation by the Hon'ble High Court."
While the Murder Reference has been made by the learned trial Court for
confirmation of death sentence awarded to the appellant or otherwise as envisaged under
section 374, P.P.C.
2. Facts of the prosecution case are that on 21S` December 2013, at about 12:15 p.m.,
the complainant Imam Hassan son of Karim Dad lodged FIR No.30/2013 at Levies Thana, Kalat, stating therein that on the said date a t about 11.00 A.M. his tribesmen Muhammad
Alim son of Shafee Muhammad and Shakar Khan son of Yar Khan were going to Kalat for buying household articles on their motorcycles. On the said day, due to very cold weather both Muhammad Alim and Shakar Khan stopp ed their motorcycles at the area of Girap Pul
and burn fire to warm themselves. In the meanwhile, they saw the dead bodies of two women lying inside the bridge. After that Muhammad Alim and Shakar Khan came and informed him. He alongwith them went there an d he also saw that two dead bodies of unknown women
were lying under the bridge. It looks that the unknown women were killed somewhere else by unknown accused and then they threw their dead bodies to conceal their crime.
3. After registration of FIR, the i nvestigation of the case was entrusted to PW -15 Abdul
Zahoor, lst I.O., who during investigation inspected the place of recovery of occurrence and prepared site plan; recorded the statements of witnesses; he took into possession one sleeper from dead bodie s; prepared inquest report; shifted the dead bodies to hospital and took
pictures of dead bodies; obtained death certificates; arrested the appellant Jaffar Khan on 16th January, 2014 and thereafter the investigation of the case was transferred to Crimes Branch Quetta and the investigation was entrusted to PW -16 Abdul Manaf, 2nd I.O., who
during investigation recorded the extra judicial confession of the appellant and on his pointation visited the place of occurrence and recovered a Locket of the deceased B ibi Asia,
which was later on identified by the PW Muhammad Sarwar; prepared site map; recovered
different articles of the deceased from the place of occurrence; got recorded the confessional statement of appellant under Section 164 Cr.P.C. On completion of investigation, the challan
was submitted in the trial Court.
4. At the trial, the prosecution produced seventeen (16) witnesses. The appellant was
examined under section 342, Cr.P.C. However, the appellant recorded his statement on oath under section 340( 2), Cr.P.C., however, did not produce any witness in his defence. On
conclusion of trial, the trial Court convicted and sentenced the appellant as mentioned above in Para No.1, whereafter he has filed the instant appeal, while the learned trial Court has referred the murder reference.
5. Learned counsel for appellant argued that the alleged incident is an unseen and blind
murders having no direct or indirect evidence on record connecting the appellant with the commission of crime; that no evidence has been produced by the prosecution to establish that
Zina was committed with the deceased by the appellant; that the impugned judgment suffers from misreading, non- reading and mis -appreciation of evidence available on record; that the
medical evidence is not only in conflict with the ocular account, but also biased and
prejudicial in the circumstances of the instant case; that the disclosure of appellant whilst recorded in police custody is not admissible as evidence under Articles 38 and 39 of Qanun-e-Shahadat Or der, 1984; that the prosecution has failed to establish the recovery of articles of
the deceased on the pointation of the appellant and the story with regard to the alleged recovery is doubtful; that the evidence produced by the prosecution was not of such a nature
which could have been made basis for recording capital punishment against the appellant; that the actual culprit of the occurrence is one "Jaffar Khan", while the real name of appellant
is "Muhammad Jaffar", thus mistaken implication of the appel lant cannot be ruled out of
consideration; that there are glaring contradictions in the statements of prosecution witnesses, which render the case of prosecution as doubtful, but the learned trial Court has failed to extend the benefits of such doubts to t he appellant.
6. Learned Additional P.G. assisted by the learned counsel for the complainant have
supported the impugned judgment and contended that the prosecution has produced concrete,
solid and unimpeachable evidence against the appellant in the shape of medical, direct and
circumstantial evidence and the defence has absolutely failed to rebut the same; that during investigation the appellant recorded his extra -judicial confession followed by the pointation
of place of occurrence and the recovery of cer tain articles of both the deceased and
identification of such articles by the heirs of deceased; that the appellant voluntarily and
truly without any pressure or coercion had recorded his confessional statement under section
164, Cr.P.C.; that the case of prosecution is supported by medical evidence and the
conviction awarded to the appellant is based upon proper appreciation of evidence by the Court below.
7. Heard the learned counsel and perused the available record. In order to substantiate
the charge, t he prosecution has produced the evidence of sixteen (16) witnesses consisting
upon ocular, circumstantial and medical evidence. Initially, the FIR was lodged on the complaint of PW -1 Imam Hassan, according to him on 21st December, 2013 he was present
in hi s house, when PW -8 Muhammad Alim and one Shakkar Khan informed him about lying
of two dead bodies of ladies under the bridge. Hence, he (PW -1) accompanied them and
found the dead bodies, whereafter he informed the Levies, they came at the site and took the
dead bodies of deceased to Hospital. PW- 2, PW -3 and PW -4 are the witnesses of
photographs of dead bodies taken at Civil Hospital Kalat as well as recovery witness of shoes
of deceased. Accordingly, PW -5 Allah Bakhsh being the father of deceased Bibi Nazia and
uncle of Bibi Asia identified the dead bodies at Civil Hospital Kalat. PW -6 Ghulam Sarwar is
the uncle of deceased Asia, who narrated the story of missing of his niece and further stated that he identified the Locket of deceased Asia in Crime Branch P olice Station. In his cross
examination PW- 6 has brought on record that the said Locket was purchased by him for the
deceased.
8. Now adverting to the statement of most important witness of prosecution, who is PW -
7 Bibi Haleema being the mother of deceased Asia. This witness has brought on record the past relations of the deceased with appellant. According to this witness her deceased daughter Asia had relations with one Jaffar, who for the last one year had been talking with him on mobile phone, however, on getting information she refrained her, thereafter she
stopped talking with him. According to this witness she along with her husband and daughter
Asia came to Kohing to the house of her brother, from where her daughter accompanied her niece Bibi Nazia and went outside, but they did not return home. Hence, she (PW -7) went to
the house of paternal Aunt of Jaffar, who on seeing them became worried and stated that you (PW -7) should search for them and they will also do the needful. PW -7 further brought on
record that thereafter they came to know that her daughter and niece were raped and brutally murdered.
9. The statement of PW -7 is sufficient to establish the past relations of Bibi Asia with
the appellant. Since, PW -7 had already known the relations of her daughter with appellant
and that's why on missing of her daughter, she directly went to the house of Jaffar's Aunt to
inquire about the whereabouts of her daughter and niece and according to PW -7 the Aunt of
appellant on seeing her became worried. Such assertions of PW -7 not only established the
past relations of the appellant with deceased Asia, but also the knowledge of both the
families about such relations. Thus, the contention of the learned counsel for the appellant that the actual cu lprit is "Jaffar Khan", while the real name of appellant is "Muhammad
Jaffar", who was booked in the crime due to some misunderstanding, is without any substance.
10. Now adverting to medical evidence, suffice to state here that the medical examination
of deceased Bibi Nazia and Bibi Asia was carried out by PW- 10 Dr. Shireen Gul, Lady
Medical Officer, District Headquarter Hospital Kalat and after examination she issued MLCs as Ex.P/10- A and Ex.PW10- B, respectively. Perusal of MLC of Bibi Nazia establishes t he
fact that Central cyanosis positive with whole neck and around the neck Cyanosis, bruised; one forehead lacerated wound about 3x4 cm; whole body bruised on the both buttocks and lower abdomen also lacerated and bruised and rigor mortis develop on the whole body due to cold weather and oldness of dead bodies. PW -10 has further opined that Hymen ruptured and
oozing of blood on anal region and on the Shalwar also. Likewise, the MLC of deceased Bibi Nazia reflect that she had also received similar nature of injuries on her person. PW -10 has
opined the cause of death as suffocation and strangulation while the private parts of both deceased shows that they were subjected to forcible sexual intercourse and raped from both sides. PW -15 Abdul Zahoor, 1st I.O. also examined the dead bodies and observed multiple
injuries/ bruises on the dead bodies and recorded the details in inquest reports.
11. It has further been observed that the medical examination of the appellant was carried
out by PW -13 Dr. Ali Mardan, Police Surgeon, Bolan Medical Complex and after
examination, he issued MLC of appellant as Ex.P/13- A, wherein he has opined that the
appellant was potent and able to perform act of Zina (sexual intercourse). Besides, the semen
samples of the appellant were also taken and the same were sent to FSL for examination along with the Shalwar Qameez and Chaddar of deceased Bibi Asia as well as a piece of
cloth (Gadda Cover). After examination, the FSL issued report Ex.P/16- C and opined that the
above said articles exclud ing the Chaddar of deceased were stained with human sperm.
The multiple bruises on the persons of both deceased would reflect not only their
sexual assault and brutal murder, but also their attempt to rescue themselves from the
clutches of the culprits, but being ladies they failed in their attempts. Though the defence has not disputed the unnatural death and forcible sexual intercourse/rapes of deceased, but pleaded false implication of the appellant.
12. The medical evidence so produced by the prosecution is sufficient to establish that the
both the deceased were raped/sexually assaulted from both sides by the appellant along with his co -accomplices and the sexual assaults were forcible. The deceased made their attempts
to rescue themselves from the clutches of the culprits, but being ladies they failed in their attempts. Besides, the medical examination of the appellant has also confirmed that he is potent and able to perform sexual intercourse.
13. The case of prosecution has further been strengthened fr om the disclosure of the
appellant Ex.P/11- A, perusal of which reflects that the appellant has disclosed that he had
past illicit relations with the deceased Asia and he used to call the deceased in a garden situated backside of her house and committed Zina with her on many occasions. On 8th
December 2013 the deceased was called on backside ground of her house, who along with her cousin Bibi Nazia came over there, while as per plan both were taken in a Indus Corolla vehicle to the Baitak of absconding accus ed Aftab situated at Mangochar and the appellant
along with absconding accused Aftab and Asadullah committed Zina with them till 20th December 2013. Whereafter, he along with absconding accused consulted that if the deceased were left alive; the allegation s of Siya Kari will be leveled against them, as such,
they planned to commit their murders. Hence, initially he committed Zina with Asia, whereafter he called absconding accused Aftab and Asadullah. Absconding accused Aftab stood on the feet of Asia, while he and Asadullah put her Chaddar around her neck and
strangulated her. Whereafter, they went to other room where Bibi Nazia was present and they also strangulated her. Whereafter, they put their dead bodies in the boot of Car and threw the same under the bridge.
14. The perusal of above disclosure of the appellant confirmed that he has provided all
the information of the crime in detail. The appellant disclosed the names of his co-accomplices and the place of occurrence, which facts earlier were not in the knowledge of
the prosecution. The appellant in the said disclosure has also disclosed the manner in which the deceased were picked in a vehicle and were taken to the place of occurrence i.e. the Baitak of absconding accused Aftab. The appellant has also brought on record the manner in which the deceased were murdered by strangulation and such fact has also been corroborated by medical evidence. Even otherwise, nothing has come on record that the disclosure of the
appellant was the result of coercion, undue influence rather the facts and circumstances of
the case would disclose that the same was voluntary, thus the disclosure of the appellant is
admissible under Article 40 of Qanun- e-Shahadat Order, 1984. In the case titled Muhammad
Amjad v. The State PLD 20 03 SC 704, the Hon'ble Supreme Court held as under:
"Further it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police offi cer, such information whether it amounts to a
confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant under Article 40 ibid relating to incriminating articles is admissible."
Similar view has also been taken from the case of Zakir Khan and others v. The State
1995 SCMR 1793, wherein it has been held that:
"In fact Article 40 operates as a proviso to the preceding Articles. However, in order to make any such information admissible, what is required to be established by the
prosecution is that any Article or such other evidence discovered during the investigation of a case in consequence of information supplied by the accused
connects him with the crime. The information supplied by one accused in this case led
to another accused which in consequence of the information supplied by the latter, led to the discovery of incriminating evidence against him, connecting each of them with the crime. There being no doubt about the admissibility of such evidence under Article 40 of Qanun- e-Shahadat, the Court was only left to consider sufficiency of
such evidence against each of the appellants to connect him with the crime. Such evidence, as pointed out earlier, was therefore, admissible under Art icle 40 of Qanun-
e-Shahadat."
15. The case of prosecution has further been strengthened by the confessional statement
of the appellant under section 164, Cr.P.C. recorded by PW -14 Muhammad Ali Kanrani,
Judicial Magistrate Khuzdar. The perusal of confession al statement of appellant Ex.P/14 -B
and C reveals that prior to recording the statement, the learned Judicial Magistrate had fulfilled all the legal requirements by introducing him before the appellant and also brought into his knowledge the consequences of such confessional statement and had also given sufficient time to the appellant to review his decision of recording such confessional statement, but despite such facts the appellant was ready to get recorded his confessional statement and the learned Jud icial Magistrate got appended the thumb impressions of the
appellant on the said statement. The contents of such confession have fully been corroborated by the disclosure of the appellant. The perusal of confessional statement of the appellant confirms tha t the same was recorded without any coercion, pressure torture of blackmailing
rather the appellant realized his shamefaced act and due to embarrassment, he immediately agreed to record his confessional statement. Thus, there is absolutely no reason availa ble for
us to disagree or disbelieve such confessional statement, which on the face of it appears to be recorded in accordance with law, voluntarily and truly without any fear or torture. The Hon'ble apex Court in the case of Hashim Qasim v. The State 2017 SCMR 986, has held that,
"For accepting a confession, two essential requirements must be fulfilled; first, that the confession was made voluntarily and was based on true account of facts leading to the crime
and, second, the same was proved at the trial." Admittedly, the said two essential
requirements have been fulfilled in the case in hand as through the evidence it has not only
been established that the same is voluntarily, but also it was proved at the trial.
16. Adverting to the defence plea of the ap pellant, suffice to observe here that the
appellant throughout the trial has failed to take any solid or concrete plea rather simply denied the allegations and has brought on record that due to some misunderstanding he has been booked in the case, but the pointation of place occurrence, recovery of certain articles
being in the use of the deceased, the disclosure of the appellant followed by his confessional statement as well as the medical evidence are much greater than the bald denial of the appellant, wh ich cannot be brushed aside in any manner. Admittedly, the prosecution has
succeeded in proving the charge against the appellant through direct, circumstantial and medical evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses. The motive behind
the murders has also been established as the appellant and co -accused were fear of
allegations of Siya Kari. The learned trial Court has discussed and dilated upon each and
every aspect of the case and rightly convicted the appellant.
17. So far as the quantum of sentence i.e. Capital punishment of death is concerned, we
do not find in agreement ourselves with regard to the same. Suffice to observe here that three accused persons including the appellant have been booked in the crime and except the appellant, both the remaining accused persons are absconding, hence their pleas are yet to come on record. Besides, the deceased Bibi Asia out of her free will and consent had kept illicit relations with the appellant and absconding accused Asadullah, thus under these circumstances awarding of capital punishment to the appellant is unwarranted.
18. For the reasons discussed hereinabove, while upholding the conviction of convict -
appellant Muhammad Jaffar Son of Muhammad Raza under sections 376(2) and 302, P.P.C.,
his sentences of death on two counts each are converted into R.I. for life on two counts each and the remaining sentences shall remain intact. The sentences shall run conc urrently with
the benefit of section 382(b), Cr.P.C.
With the above reduction of sentences, Criminal Appeal No.298 of 2015 is dismissed,
while the murder reference No.18 of 2015 is answered in negative.
JK/141/Bal. Sentences reduced.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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