2023 M L D 1435
[Balochistan]
Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ
ATTAULLAH and another ---Appellants
Versus
The STATE--- Respondent
Criminal Jail Appeals Nos. 49 of 2021 and 29 of 2022, decided on 10th August, 2022.
(a) Criminal trial ---
----Circumstantial evidence ---Scope ---Where there is no direct evidence against accused and
prosecution rests its case on circumstantial evidence, the inference of guilt could be justified
only where all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of other person---There must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with innocence of the accused and must be such as to show that within all human probability the act must have been done by the accused.
Talib Hussain v. The State 1995 SCMR 1538 and Muhammad Sharif v. The State
PLD 2009 SC 709 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 302(c), 201 & 34--- Criminal Procedure Code (V of 1898), S. 164---Qatl -i-
amd, causing disappearance of evidence of offence, giving false information to screen defenders, common intention---Appreciation of evidence ---Sentence, reduction in---
Conviction under S. 302(b), P.P.C. converted into one under S. 302(c), P.P.C.--- Confessional
statement of the accused ---Accused were charged for committing murder of the brother of
the complainant and his dead body was thrown into a well ---Record showed that the accused
made his confessional statements before the Judicial Magistrate ---Record prepared by the
Judicial Magistrate as well as his deposition proved conclusively that he took all precautionary measures to ensure that confession was voluntary---In that connection the accused, besides, admitting the commission of offence, also stated about the motive ---Case
of prosecution with regard to motive of offence was entirely based on confessional statements of the accused persons ---Apart from above, there wer e circumstances, which were
not taken into account by the trial Court, while awarding the sentence of life imprisonment to the accused persons ---Prosecution mainly relied upon the statements of accused persons
under S. 164, Cr.P.C., wherein, accused persons admitted the commission of crime, but according to the version of accused, the deceased time and again sexually assaulted him, thus, in order to save his honor, he managed to commit the murder of the deceased---As per
record, it appeared that the accused committed the offence in an effort to defend himself
from the sexual assault made on him by the deceased ---Thus, it appeared that it was some
immoral or improper act of the deceased himself, which had led or had at least contributed to his ultimate murder ---Reading of confessional statement of accused revealed that he alone
made a plan for committing murder of deceased, due to the reason that deceased carnally
assaulted upon him more than once ---No other evidence was available with regard to motive
of the offence except the confessional statements of the accused persons, which brought the
case of accused, within the purview of S. 302(c), P.P.C ---In such circumstances, the appeal
was partly allowed and conviction of accused was converted from 302(b) to 302(c), P.P.C and sentence was reduced from life imprisonment to that of ten years.
Muhammad Mumtaz v. Mehtab and another 2020 SCMR 200 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 164--- Confessional statement--- Scope ---Confessional statement is to be taken as a
whole and not in piecemeal.
Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 201 & 34---Qatl -i-amd, causing disappearance of evidence of offence, giving
false information to screen defenders, common intention--- Appreciation of evidence ---
Sentence, reduction in ---Conviction under S. 302(b), P.P.C. converted into one under S. 201,
P.P.C. ---Accused were charged for committing murder of the brother of the complainant and
his dead body was thrown into a well ---Record showed that other accused had not taken any
part in commission of the offence in furtherance of common intention, but he was well aware
that the offence of murder had taken place ---Said accused by his action and conduct
concealed the evidence of commission of the offence and to save the main accused from being punished, caused disappearance of evidence of the offence, thus he was guilty of offence under S. 201, P.P.C.---Thus, the conviction and sentence of accused in question under S. 302(b), P.P.C., was set aside and he was convicted under S. 201, P.P.C and sentenced to suffer imprisonment for a period of five years ---Appeal was partially allowed
with said modification in sentence.
Muhammad Khair Mengal for Pauper Appellants.
Ms. Noor Jahan Kahoor, Additional Prosecutor General for the State.
Date of hearing: 28th July, 2022.
JUDGMENT
IQBAL AHMED KASI, J. ---Since Criminal Jail Appeal No.49 of 2021 and Criminal
Jail Appeal No.29 of 2022 are arising out of the same judgment of the trial Court, hence are
being disposed of through this common judgment.
2. Briefly stated facts of the case are that on 30.12.2019, on the complaint of one
Muhammad Zahid, FIR No.01 of 2020, was registered with Levies Station, Taftan, with the
averments that on 27.12.2019, his brother namely Waheed Ahmed left for Taftan Bazar for purchase of grocery items, but did not return. They by their own started search of his bother, but could not find him. In this regard the complainant also moved an application before the Tehsildar concerned, whereas, on 1st January 2020, the dead body of his brother was recovered from a well.
It would not be out of place to mention here that during the course of trial, learned
counsel for the appellant Qadeer Ahmed moved an application for transfer of the case from the ordinary Court of law to a Juvenile Court, as the age of appellant/accused at the time of trial was about 17 years, hence the application was allowed and his case was separated from the case of accused Attaullah.
3. After completion of usual investigation, challan of the case was submitted before the
Sessions Judge/Juvenile Court, Noshki ('the trial Court') and on 19.01.2021, two separate charges were framed and read over to appellants/accused Qadeer Ahmed and Attaullah, to which they denied the allegations leveled against them by the prosecution and claimed trial.
4. At the trial, the prosecution examined PW -1 Javed Ali, Risaldar, PW -2 Dr.
Muhammad Iqbal, PW -3 Muhammad Zahid, PW -4 Muhammad Ibrahim Kakar and PW -5
Zahoor Ahmed Baloch, Tehsidar, Taftan. On conclusion of the evidence from the prosecution side, the statements of appellants under section 342, Cr.P.C. were recorded, wherein, they
professed their innocence, but neither they opted to record their statement under section 340(2) Cr.P.C., nor produced any witness in their defence.
5. The learned trial Court after hearing the arguments of the learned counsel for the
parties, vide two separate judgments dated 23rd June 2021 ('the impugned judgments') convicted the appellant Qadeer Ahmed son of Moheem Khan under section 302(b), P.P.C. being juvenile and sentenced him to life imprisonment as ta'zir and to pay compensation under section 544- A, Cr.P.C. to the legal heirs of deceased amounting to Rs.2,00,000/ -
(rupees two lacs). In default whereof to further suffer S.I. for six months, whereas, appellant/accused Attaullah son of Yar Muhammad was sentenced to suffer imprisonment for life as ta'zir and to pay compensation of Rs.2,00,000/ - (rupees two lac) to the to the legal
heirs of deceased amounting to Rs.2,00,000/ - (rupees two lacs). In default whereof to further
suffer S.I. for six months.
6. Learned counsel for the pauper appellants contended that it was an un- witnessed
incident and the complainant was not the eye -witness of the same. Besides, the FIR of the
occurrence was lodged against unknown persons, with an unexplained delay of about 05 days; that the case of the prosecution was based on circumstantial evidence and confessional statements of both the appellants, whereas, no evidence has been produced by the prosecution to complete the chain of circumstantial evidence. He further argued that the
confessional statements of the appellants were recorded with delay of 07 days, that too,
without consent of the appellants; that in absence of any other evidence, the alleged
confessional statements of both the appellants, under the law can be taken as a whole, not in piecemeal; that the motive alleged in the confessional statement by appellant Attaullah brings his case in exceptional clause of section 302(c), P.P.C.
7. Learned Additional Prosecutor General, contended that according to the evidence on
record, the appellants preplanned the incident and committed the murder of the deceased in furtherance of their common intention, which also reflects from circumstantial evidence, including the confessional statements of the appellants, hence the instant appeals are liable to be dismissed.
8. We have heard the learned counsel for the pauper appellants, learned Additional
Prosecutor General and perused the available record. PW- 1 Javed Ali, Risaldar Levies,
appeared before the Court and deposed that on 01.01.2020, Dafedar Inayat Ali, Tehsildar and he went from the Levies Station towards south, wherefrom, they recovered an unidentifiable
dead body tied with a ladies chaddar on his neck from a old well. They took the dead
body to Civil Hospital, where, brother of deceased, namely, Muhammad Zahid (PW -3)
identified the dead body from his coat and socks. He produced copy of recovery memo as
Ex.P/1- A. The Investigating Officer also took into possession, the coat and socks through
recovery memo, he produced copy of recovery memo of coat and socks as Ex.P/1- B and also
acknowledged them as Article P/1 and Article P/2 respectively. He further stated that on 11.01.2020, the Investigating Officer took Qadeer Ahmed and Attaullah (the accused persons) along with him to the place of occurrence. The accused persons pointed out the place of occurrence and thereafter both of them pointed out the well from where they thrown the dead body. The memo of pointation of the place of occurrence was prepared and the same
was produced as Ex.P/1 -C. He further stated that on the same day at Asar time, the brother of
deceased brought a ladies chaddar and stated it to be the same, used for murdered of the deceased, while tying on his neck. The Investigating Officer showed the scarf to the accused persons separately, which they owned and stated that with the same scarf they have committed the murder of the deceased. He produced memo of identification of chaddar as Ex.P/1- D and also produced recovery memo of chaddar as Ex.P/1- E and acknowledged the
same as Ex.P/5.
PW-2 Dr. Muhammad Iqbal, is the Senior Medical Officer, in District Headquarter
Hospital, Dalbandin, who conducted medical examination of the deceased and exhibited his Medico Legal Certificate (MLC) as Ex.P/2 -A.
PW-3 Muhammad Zahid, is the complainant of the case. He in his statement recorded
before the Court deposed the same story, as narrated in the FIR. He produced his application/Fard -e-bayan as Ex.P/3- A and further added that on 01.01.2020, he received
information regarding recovery of dead body of his brother from a well, therefore, he went to the hospital, where, he identified the dead body of Waheed Ahmed from his coat, socks and forehead. The complainant moved an application for handing over the dead body without conducting postmortem, which he produced as Ex.P/3- B.
PW-4 Muhammad Ibrahim Kakar, the then, Judicial Magistrate Taftan, who recorded
the statements of accused Qadeer Ahmed and Attaullah, under section 164, Cr.P.C. and
produced the same as Ex.P/4- A.
PW-5 Zahoor Ahmed Baloch, Tehsildar Taftan, is the Investigating Officer of the
case. He stated that on 01.01.2020, on the complaint of Muhammad Zahid, FIR was registered and he conducted the investigation. He further stated that at about 05:00 p.m. he received information regarding recovery of a dead body from a well as eastern side of Killi Station, Taftan, upon which, he along with other Levies officials rushed towards the place of incident, taken out the dead body from the well and found a chaddar tied on his neck. He prepared memo of place of occurrence and shifted the dead body to BHU, Taftan, where, the brother of the deceased identified him by his coat and socks, which he took into possession through recovery memo and prepared sealed parcel No.1, recorded the statements of witnesses under section 161, Cr.P.C. He further stated that he collected the mobile data of deceased, from which it was known that on 27.12.2019, last call was made to him by one Qadeer Ahmed, therefore, he arrested accused Qadeer Ahmed, who during investigation admitted the murder of deceased Waheed Ahmed with the collusion of other accused person, as such, on the pointation of accused Qadeer Ahmed, accused Attaullalh was arrested on 11.01.2020. He further averred that on 17.01.2020, he produced the accused Qadeer Ahmed
and accused Attaullah before the Judicial Magistrate Taftan for recording their statements
under section 164, Cr.P.C. and thereafter they were shifted to District Jail. On completion of investigation, challan of the case was prepared and sent to the trial Court. He produced FIR as Ex.P/5 -A, site plane as Ex.P/5- B, Murasilla to Assistant Commissioner, as Ex.P/5 -C, call
data record as Ex.P/5 -D and challan as Ex.P/5- E.
9. PW-3 Muhammad Zahid, though stated that appellants had committed the murder of
his brother Waheed Ahmed, but he was not the eye -witness of the incident, thus, the case of
prosecution is based on confessional statements of both the appellants. It is well settled law that where there is no direct evidence against accused and prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only where all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of other person, there must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with innocence of the accused and must be such as to show that within all human probability the act must have been done by the accused. In this respect reliance is made to the case of Talib Hussain v. The State (1995 SCMR 1538) wherein, the Hon'ble Supreme Court of Pakistan has held as under:
"In cases where there is no direct evidence to show in what manner the offence was committed, the Courts must examine the probabilities in the light of indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place, the articles secured (found) there, the motive for the crime and the other surrounding circumstances proved. (State) v. Manzoor PLD 1966 SC 664). In the words of Hamoodur Rahman, J. (as he then was): "But once the circumstances have been fo und to be so established they may well furnish a better basis for decision
than any other kind of evidence. As Hewart, I.C.J. observed in the case of Percival Leonard Taylor, James Weaver and George Thomas Donovan (1828) 21 CA 20 it is no derogation of evidence to say that 'it is circumstantial'. The circumstances from which inferences are to be drawn should not only be proved and "be incompatible
with the innocence of the accused" but "incapable of explanation upon any other
reasonable hypothesis than that of his guilt:" The same principle was followed in Mst. Sairan alias Saleema v. the State (PLD 1970 Supreme Court 56). Mere concurrence of circumstances unless based on proved facts is not enough to draw inference. The coincidence should be "un- designed" and not manoeuvred or planted. In Fazal Elahi
v. Crown (PLD 1951 FC 214) while discussing the nature and principles for assessing
circumstantial evidence the following dictum of Hewart, I.C.J. in the case of Taylor
was quoted and relief upon: -
"For the purpose of the present discussion, the emphasis of this passage lies in the expression 'undersigned coincidence'. Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."
10. Similarly in the case of Muhammad Sharif v. The State (PLD 2009 SC 709), the
Hon'ble august Court, observed as under:
"The arrest of appellant itself appears to have unfolded the whole episode. He made disclosures and provided solid clues. He led, the investigators to the place of occurrence wherefrom the dead body and other incriminating articles were recovered.
He, by making confessional statement before the Magistrate solved the mystery as to
how and why this all happened. The altercation that took place between the two about the payment of money, the harsh language and abuses hurled by the deceased resulting in spontaneous ugly situation of provocation taking the names of mother, sister and wife, pushing of the deceased by the appellant from the mountain and stoning him. There appears no valid justification to disbelieve Dr. Shaoib Gola
AC/SDM, (P.W.6) an official who had neither any enmity with the appellant nor any reason to misstate the facts."
11. The confessional statements, which the appellants made before PW -4 Muhammad
Ibrahim Kakar, Ex- Judicial Magistrate Taftan, as Ex.P/4 -A, on 17.01.2020, the record
prepared by the Judicial Magistrate as well as his deposition proved conclusively that he took all precautionary measures to ensure that confession was voluntarily. In this connection the appellant Attaullah, besides, admitting the commission of offence, also stated about the motive. The case of prosecution with regard to motive of offence is entirely based on confessional statements of the appellants. It is well settled law that confessional statement is to be taken as a whole and not in piecemeal. Reliance in this respect is made to the case of Shamoon alias Shamma v. The State (1995 SCMR 1377), wherein the Hon'ble Supreme Court of Pakistan, held as under:
"However, if the Court decides to convict eh accused' on the basis of his confessional statement or his plea under section 342, Cr.P.C. then it is not open to the Court to accept a part of the statement of the accused and reject another part for the purpose of convicting him for the offence. It is quite clear from the orders of the Courts below that the conviction of the appellant has been based solely on the basis of his admission/statement under section 342, Cr.P.C. in these circumstances, it was not open to the Courts below to have relied only that part of his statement under section
342, Cr.P.C. in which he admitted having killed the deceased Muhammad Yousaf and
discard that part of his statement in which he stated that it was done under grave and sudden provocation as he had found the deceased in a compromise position with his wife in the early hours of morning. As earlier pointed out, the court could either accept whole of this statement or reject the same. The Court could not take exception
to the part of the statement of the accused which stated that he had seen his wife Mst.
Wallan in the early hours of morning in a compromise position with the deceased
Muhamad Yousaf on the ground that she escaped unhurt in the incident. We, accordingly, allow this appeal and covert the sentence of appellant from section 302, P.P.C. to section 304, P.P.C., Part II. The sentence awarded to the appellant is reduced to the period already undergone."
12. In the instant case, appellant Qadeer Ahmed, in his confessional statement Ex.P/4- A,
specifically stated about the motive that deceased severally committed unnatural act with him, therefore, he planned for committing his murder. The relevant portion of statement of appellant Qadeer Ahmed is reproduced herein below:
13. Apart from above, there are circumstances, which were not taken into account by the
trial Court, while awarding the sentence of life imprisonment to the appellants. The prosecution mainly relied upon the statements of appellants under section 164, Cr.P.C., wherein, appellants admitted the commission of crime, but according to the version of appellant Qadeer Ahmed, the deceased time and again sexually assaulted him, thus, in order to save his honor, he managed to commit the murder of the deceased. We can safely conclude that the occurrence was result of reasons as stated by the appellant Qadeer Ahmed, in order to save his honor and the act of accused is to be adjudged at the touchstone of evidence available on record, in accordance with principle of administration of justice in criminal cases. It appears that the appellant committed the offence in an effort to defend himself from the sexual assault made on him by the deceased. It, thus, appears that it was some immoral or improper act of the deceased himself, which had led or had at least contributed to his ultimate murder.
14. The reading of confessional statement of appellant Qadeer Ahmed reveals that he
alone made a plan for committing murder of Waheed Ahmed, due to the reason that he made carnally assaults upon him more than once. There is no other evidence with regard to motive of the offence except the confessional statements of the appellants, which brings the case of appellant Qadeer Ahmed, within the purview of section 302(c), P.P.C. Reference in this respect is to be made to the case titled Muhammad Mumtaz v. Mehtab and another (2020 SCMR 200) wherein, the trial Court convicted the accused under section 302(b), P.P.C. and sentenced him to imprisonment for life, the learned High Court alter such conviction into
section 302(c), P.P.C. The Hon'ble Supreme Court of Pakistan observed as under:
"Respondent's confessional statement, though retracted subsequently, is prosecution's
mainstay; going by his words, he was carnally assaulted by the deceased for more than once; despite resistance, the deceased insistingly treated the lusty course and it is in this backdrop, according to the prosecution itself, that the respondent exasperatingly embarrassed, took the most drastic step in the face of no other possible motive. In the absence of any other evidence, the respondent made his breast clean and as such his narrative is to be received in its totality. Incident though most unfortunate, nonetheless, the deceased cannot be credited as being entirely blameless and as such interference by this Court at this point of time, particularly when the respondent had already served out the sentence would be far from being expedient."
15. In such view of the matter, as far as, the case of appellant Attaullah is concerned, he
has not taken any part in commission of the offence in furtherance of common intention, but he was well aware that the offence of murder had taken place. He by his action and conduct concealed the evidence of commission of the offence and to save the appellant Qadeer Ahmed from being punished, and thereby, caused disappearance of evidence of the offence, thus, he is guilty of offence under section 201, P.P.C.
In view of above facts and circumstances, we are inclined to partly allow the instant
appeals, thus, conviction of the appellant Qadeer Ahmed is converted from 302(b), P.P.C. to 302(c), P.P.C. and his sentence is reduced from life imprisonment to that of 10 (ten) years, however, the conviction order to the extent of payment of compensation remains intact, whereas, the conviction and sentence of appellant Attaullah, under section 302(b), P.P.C. is set aside and he is convicted under section 201, P.P.C. and sentenced to suffer Rigorous
Imprisonment for a period of 05 (five) years and to pay a fine of Rs.50,000/ - (rupees fifty
thousand) and in case of default whereof to further suffer Simple Imprisonment for 06 (six) months. Benefit of section 382- B, Cr.P.C. is also extended to both the appellants.
JK/133/Bal. Appeal partly 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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