2024 M L D 2001
[Balochistan]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
MUHAMMAD ILYAS ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 113 of 2024, decided on 28th August, 2024.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Lodging of FIR with promptitude -
--Accused was charged for committing murder of the brother of complainant by firing---
Matter was reported on the same day of the occurrence---Parties were known to each other before the occurrence, thus there was no chance for false implication ---First Information
Report was registered without pre -consultation or premeditation of the police ---
Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt ---Appeal against conviction was dismissed, in circumstances.
(b) 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 the brother of complainant by firing---By evening deceased did not come back home and complainant being worried telephoned his
brother on his mobile but his mobile was off and he informed the police about the
occurrence---Complainant had no enmity with the accused and had absolutely nothing to
falsely depose against him ---Said witness was cross -examined on various points, but the
accused failed to even slightly shake his deposition---Complainant remained firm and consistent with regard to timing---Accused also failed to suggest any personal grudge or enmity being a reason to falsely depose against him ---Through whatever angle the
statement of complainant was examined and appreciated, his evidence was found worth consideration and confidence -inspiring---Circumstances established that the prosecution
had proved its case against the accused beyond shadow of doubt ---Appeal against
conviction was dismissed, in circumstances.
(c) Criminal trial---
----Last seen evidence ---Scope ---Such evidence stands for an event in which the slain
person is seen last time alive in the company of an accused ---Though the evidence of last
seen in itself is generally regarded as weak in nature, but there is no legal impediment to
making it the basis for awarding conviction if it is corroborated by some other source of unimpeachable character ---Evidence of last seen qualifies for acceptance if it fits into the
criteria of the proximity of time and distance, according to which the time and distance between the event of last seen and death of the deceased must not be too long---Lesser the duration and distance between the event of last seen and the homicidal death of the victim, the stronger such evidence is.
Muhammad Abid v. The State and another PLD 2018 SC 813 rel.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Qatl -i-amd---
Appreciation of evidence ---Confession, retraction of ---Scope ---Accused was charged for
committing murder of the brother of complainant by firing---There was no direct evidence of the crime in question and the main evidence on the basis of which the accused was found guilty of the charge was his own confessional statement, though the accused had retracted his confessional statement during trial ---For accepting a confession, two
essential requirements must be fulfilled, i.e., the confession was made voluntarily, it was
based on true account of facts, leading to the crime, and the same was proved at the trial ---
Record transpired that the accused was arrested on 01.02.2023 and he recorded his confessional statement under S.164, Cr.P.C, on 13.02.2023 before Judicial Magistrate, who deposed that after fulfilling all legal formalities within the meaning of S.364, Cr.P.C.,
he recorded the confessional statement of the accused ---Sufficient time was given to the
accused to think over his confession---Judicial Magistrate had been subjected to lengthy
and taxing cross -examination by the defense, but nothing could be extracted from his
mouth to prove that the confessional statement of the accused was the result of force, torture, promise, or inducement ---Judicial Magistrate while recording the confessional
statement of the accused, had taken all the precautions and had faithfully complied with all the formalities as envisaged under S.364, Cr.P.C.---Accumulative effect of all the circumstances led to only one conclusion that the accused made a true judicial confession voluntarily and without any pressure and was fully involved in the matter ---After recording
his confessional statement, the accused had ample opportunity to retract from his confession,
but he remained mum till the conclusion of the trial ---Admittedly, the said two essential
requirements of the confessional statement had been fulfilled, and through the evidence, it had
not only been established to have been recorded voluntarily, but it was proved at the time of trial---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt ---Appeal against conviction was dismissed, in circumstances.
(e) Criminal Procedure Code (V of 1898) ---
----S. 164---Confession, retraction of ---Scope ---Retracted judicial confession voluntarily
made that gets some kind of corroboration from other circumstances is itself sufficient for
the conviction of the accused.
(f) Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd---Appreciation
of evidence ---Delay of about twelve days in recording the confessional statement of
accused ---Inconsequential ---Accused was charged for committing murder of the brother of
complainant by firing---Admittedly, the accused was arrested on 01.02.2023, and his
statement under S.164, Cr.P.C, was recorded on 13.02.2023, i.e., after twelve days of his arrest ---Judicial Magistrate, who recorded the statement of the accused, was found to have
no motive/malice for implicating the accused in the crime ---Investigating Officer was not
alleged to have induced, pressurized or tortured the accused so as to obtain the confessional statement ---Statement as well as cross -examination of the Investigating
Officer did not reflect any motive on his part for fabricating false evidence to involve the accused in the crime---Rule of admissibility of a confession prescribed no time for recording the confession if recorded within the period of legal, physical remand with the police ---Confession of an accused and its different aspects in each case are to be looked
into in light of its attending facts and circumstances, therefore, it is not a rule of universal application that in each and every case, the delay would essentially damage the evidentiary value of confession---No doubt there was a delay of twelve days in recording the confessional statement of the accused, but that by itself was not sufficient to discard the same---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt ---Appeal against conviction was dismissed, in
circumstances.
PLD 1978 Quetta 1; 1985 PCr.LJ 2375; 2005 YLR 908; 2013 PCr.LJ 127; 2004 YLR
1088; 2006 PCr.LJ 62 and 2021 MLD 729 rel.
(g) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Medical evidence, in line with
confession of accused ---Accused was charged for committing murder of the brother of
complainant by firing--- Circumstantial evidence of reliable nature on record against the
accused, proved his proper nexus with the offence of murder of the deceased---Medical Officer, examined the deceased and issued the medical certificate, according to which the deceased received injuries on his head by means of a firearm ---Observations of the
Medical Officer were in line with the confession of the accused, wherein he had admitted
that he made a fire upon the deceased, due to which he received injuries ---Thus the
medical evidence available on record abundantly corroborated the confession of the
accused ---Circumstances established that the prosecution had proved its case against the
accused beyond shadow of doubt ---Appeal against conviction was dismissed, in
circumstances.
(h) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qanun- e-Shahadat (10 of 1984), Arts. 37, 39 & 40---Qatl -i-amd---
Appreciation of evidence ---Crime weapon recovered on the disclosure of accused and
crime empties recovered from the spot ---Reliance---Accused was charged for committing
murder of the brother of complainant by firing---Record showed that crime weapon was recovered on the day of arrest of accused, in pursuance of his disclosure ---Such recovery
was made in the presence of recovery witness and the same was taken into possession through recovery memo.---So far as the alleged disclosure of the accusedwas concerned, it might be stated that as provided by Arts. 37 & 39 of the Qanun- e-Shahadat, 1984, a
confession made by an accused person in police custody was not admissible ---However, if
something related to the case was recovered or any fact was discovered in consequence of information conveyed by the accused person, then the information so received would be admissible in evidence within the purview of Art.40 of the Qanun- e-Shahadat, 1984,
because the presumption would be towards its truthfulness, but if nothing in consequence of the disclosure was recovered or discovered, then the information so received by itself would not be admissible ---Two empties of T.T pistol were recovered from the place of
occurrence by the Investigating Officer and the crime weapon recovered on the pointation of the accused were sent for a report of the Ballistic Expert and the Ballistic Expert report
had been produced, which showed that the recovered empties were fired from the pistol recovered on pointation of the accused in pursuance of his disclosure ---Circumstances
established that the prosecution had proved its case against the accused beyond shadow of doubt ---Appeal against conviction was dismissed, in circumstances.
Mehboob Ali Muhammad Hassani for Appellant.
Abdul Karim Malghani, State Counsel.
Date of hearing: 7th August, 2024.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant Muhammad Ilyas, son of Din
Muhammad, allegedly murdered Muhammad Naeem (brother of the complainant, namely
Hassan Bakhsh, son of Juma Khan) by means of firing with a T.T pistol at the Garden area within the precincts of Surab Police Station on 31.01.2023. For the commission of the said offence, the appellant was booked in case FIR No. 09/2023 registered under section 302 P.P.C. with the said police station on 01.02.2023 at 6:15 pm. After a regular trial, the appellant was convicted under section 302(b), P.P.C. vide judgment dated 29.03.2024 ('the impugned judgment') passed by learned Sessions Judge Kalat (`trial Court') in Murder Case No. 02 of 2023 and sentenced to suffer R.I for life and to pay Rs.200,000/ - to the legal heirs
of the deceased in default whereof he was directed further undergo six months S.I. with the benefit of Section 382- B Cr.P.C.
2. Aggrieved from the impugned judgment, the appellant, Muhammad Ilyas, has assailed
his conviction and sentence through the instant appeal.
3. Learned counsel for the appellant submitted that the impugned judgment is based on
conjectures and surmises as the same is based on mis -reading and non -reading of evidence
available on record; that there is no eye -witness of the occurrence and the entire case is based
on circumstantial evidence; that witnesses produced by the prosecution are closely related to the complainant and no reliance can be placed on their testimony; that the confessional statement of the accused was recorded after twelve days from his arrest and reliance cannot be placed on such confessional statement and lastly prayed that since the prosecution has
failed to establish its case beyond any reasonable doubt, therefore, by accepting the appeal,
the appellant may be acquitted of the charge.
4. Conversely, the learned state counsel vigorously controverted the arguments advanced
by the learned counsel for the appellant and submitted that the prosecution had successfully
proved its case against the appellant up to the hilt by producing reliable and trustworthy evidence; that evidence of the prosecution is based on last seen evidence, extra -judicial
confession, and the most important evidence which is available in the shape of the
confessional statement of the accused which sufficiently connects the appellant with the
commission of the alleged crime and lastly prayed that in the presence of sufficient evidence
on record, appeal filed by the appellant is liable to be dismissed.
5. We have heard the arguments of learned counsel for the parties and have gone
through the record minutely.
6. In order to prove its case, the prosecution produced the following evidence:
a. Last seen evidence.
b. Extra Judicial Confession.
c. Recovery of the dead body and crime weapon on pointation of the appellant.
d. Statement of the appellant recorded under section 164 Cr.P.C.
e. Medical evidence.
7. It alludes from an in -depth review of the record that the main occurrence of the
murder of the deceased remained un -witnessed. The prosecution's case mainly rests upon the
above circumstantial evidence. The record depicts that the matter was reported on the same
day of the occurrence. The parties were known to each other before the occurrence. There
was no chance for false implication. These circumstances are enough to believe that the FIR
was registered without pre- consult or premeditation to the police. The evidence of PW -1
reveals that on the day of the occurrence, the accused was accompanying the deceased.
8. One of the components of such incriminating circumstances is the evidence of last
seen narrated by Hassan Bakhsh (PW- 1), who stated that on 31.01.2023, his brother deceased
Muhammad Naeem, and accused/appellant Muhammad Ilyas, were on a motorcycle. He asked his brother, and he stated that he is going to take measures. Till the evening his brother did not come back home and he worried and telephoned his brother on his mobile but his mobile was off and he informed the police about the occurrence. Before proceeding any further, it appears to be in the fitness of things to see that what the evidence of last seen means in law. Such evidence stands for an event in which the slain person is seen last time alive in the company of an accused. Though the evidence of last seen in itself is generally regarded as a weak type in nature, but there is no legal impediment to making it the basis for awarding conviction if it is corroborated by some other source of unimpeachable character.
9. The evidence of last seen qualifies for acceptance if it fits into the criteria of the
proximity of time and distance, according to which the time and distance between the event of last seen and death of the deceased must not be too long. The lesser is the duration and distance between the event of last seen and the homicidal death of the victim, the stronger is such evidence. The logic behind evaluating the evidence of last seen on the touchstone of the proximity of time and distance lies behind the theory that the afflux of longer duration and distance between the two events gives rise to the hypotheses that after having been seen in the company of the accused, the deceased might have parted his way and joined the company of some other. The Hon'ble Supreme Court of Pakistan, in the case of Muhammad Abid v. The State and another (PLD 2018 SC 813), dealing with the evidence of "last seen together" while enunciating the dictum of last seen evidence made the following observations, which is reproduced for ready reference: --
"The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. Proximity of the crime scene. 3. Small time gap between the sighting and crime 4. No possibility of third person interference 5. Motive. 6 Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accu sed who committed the crime. There must be something more establishing
connectivity between the accused and the crime."
10. In the instant case, complainant/PW -1 has no enmity with the appellant and having
absolutely nothing to falsely depose against him. He has put forth what he knew while
making his statement on oath that on 31.01.2023, he witnessed the deceased in the company of the appellant. The said witness cross -examined on various points, but the appellant failed
to even slightly shake his deposition. He remained firm and consistent with regard to timing. The appellant also failed to suggest any personal grudge or enmity being a reason to falsely depose against him. Through whatever angle the statement of PW -1 is examined and
appreciated, we have found his evidence worth consideration and confidence -inspiring. The
dead body of the deceased was recovered by the police on the pointation of the appellant
from the area of Baro. According to the medical certificate Ex.P/6 -A dead body was received
at hospital at 2:45 am on 01.02.2023. During cross -examination Dr. Najeebullah Medical
Officer PW -6 stated that the wound on the head of the deceased was presumed to be twelve
hours old, and according to complainant/PW -1, he saw the appellant accompanying the
deceased on 31.01.2023.
The evidence regarding "last seen together" furnished by PW -1 is well -founded,
credible, and confidence- inspiring, fulfilling the criteria expounded in Muhammad Abid's
case supra. However, it shall be further scanned in view of the other pieces of evidence so
mentioned in the preceding paragraph.
11. Besides another important substantive piece of evidence with the prosecution is the
confessional statement of the appellant, which was believed and relied upon by the trial court
while recording the conviction of the appellant. Though the appellant has retracted his
confessional statement during the trial, but before dilating upon the evidentiary value of his
retracted confession and its voluntariness or otherwise. For the sake of convenience, we deem it appropriate to produce the relevant portion of the confessional statement of the
appellant with the English translation below:
"I had a mobile phone wherein I had my relative girl's mobile number with whom I
often used to contact on a mobile phone. I had also sent a marriage offer to her. Naeem got the number from my phone and Naeem used to call her. I warned him thrice not to bother her, but he turned deaf ears. Then I rode with Naeem towards the ground where I had a pistol and told Naeem to lets test the pistol there. I took out the pistol and fired at a stone, and then my mind changed, and the girls' telephone number came to my mind. So I asked him to recite Kalma, and I could not recall, and a shot hit Naeem, and I fled from there and went home. In the morning, I went to Bazar when I recalled that I had killed Naeem. Then I told the police that I had murdered Naeem and also handed over the pistol to the police. Naeem's legal heirs have now pardoned me and have forgiven me."
12. As stated above, there is no direct evidence of the crime in question, and the main
evidence on the basis of which the appellant was found guilty of the charge was his own confessional statement. The corroborative evidence produced by the prosecution to prove the facts relating to the occurrence in which an innocent person was killed may not be independently sufficient to prove the charge against the appellant and establish his participation in the occurrence; however, if combined together, provide a strong chain of circumstances, leading to the conclusion that it was the appellant, who had committed the murder of deceased. The main ground weighed with the learned trial court while convicting the appellant is his own confessional statement; as such, an essential question for consideration, in this case, would relate to the admissibility of the confessions and their evidentiary value for the purpose of conviction and was voluntary or otherwise?
13. It is a trite law that for accepting a confession, two essential requirements must be
fulfilled, i.e., the confession was made voluntarily, it was based on true account of facts, leading to the crime, and the same was proved at the trial. Record transpires that the appellant was arrested on 01.02.2023 and recorded his confessional statement under section 161 Cr.P.C on 13.02.2023 before Muhammad Abbas Judicial Magistrate Surab (PW -4), who
deposed that after fulfilling all legal formalities within the mea ning of section 364, Cr.P.C.,
he recorded the confessional statement of the appellant; that sufficient time was given to the appellant to think over his confession. Before recording the confessional statement of the
appellant, he answered question No.5 of the questionnaire, an extract of which is reproduced
below: -
"Q.5. Have you been forced or induced to record your confession?
Ans. No."
Reply of the appellant to the aforesaid question leaves no room for any doubt that his
confessional statement is involuntarily or the result of torture, force, inducement, or promise. Muhammad Abbbas, Judicial Magistrate (PW -4) has been subjected to lengthy and taxing
cross -examination by the defense, but nothing could be extracted from his mouth to prove
that the confessional statement of the appellant was the result of force, torture, promise, or inducement. The learned Magistrate while recording the confessional statement of the appellant, has taken all the precautions and had faithfully complied with all the formalities as envisaged under section 364, Cr.P.C.
14. The accumulative effect of all the circumstances leads to only one conclusion that the
appellant made a true judicial confession voluntarily and without any pressure and is fully involved in this matter. It is now well settled that retracted judicial confession voluntarily made that gets some kind of corroboration from other circumstances is itself sufficient for the conviction of the appellant. The explanation of the appellant that he was tortured and, as
such, he made a confessional statement in the absence of any material does not appeal to the
mind. Especially when he was given ample time and chance by the Magistrate before making
a confessional statement, he made the statement when he was alone with the Magistrate in court; after the statement, he was sent to judicial remand, and the challan was immediately submitted in court. After recording his confessional statement, the appellant had ample
opportunity to retract from his confession, but he remained mum till the conclusion of the
trial. Admittedly, the said two essential requirements of the confessional statement had been
fulfilled, and through the evidence, it has not only been established to have been recorded voluntarily, but it was proved at the time of trial.
15. The admissibility of the statement is being challenged on the ground that the same has
been recorded with a delay of twelve days. Admittedly, the accused/appellant was arrested on 01.02.2023, and his statement under section 164 Cr.P.C has been recorded on 13.02.2023, i.e., after twelve days of his arrest. PW -4, who recorded the statement of the accused, is
found to be having no motive/malice for implicating the accused in the crime. While PW -7
Ameer Hamza, IP, who investigated the matter, was not alleged to have induced, pressurized, or tortured the accused so as to obtain the confessional statement. His statement as well as cross -examination, do not reflect any motive on his part for fabricating false evidence to
involve the accused/appellant in the crime. We are also inclined to hold that since the rule of admissibility of a confession prescribes no time for recording the confession if recorded within the period of legal, physical remand with police. Confession of an accused and its different aspects in each case are to be looked into in light of its attending facts and circumstances; therefore, it is not a rule of universal application that in each and every case, the delay will essentially damage the evidentiary value of confession. This court, in a number of cases, i.e., PLD 1978 Quetta 1, 1985 PCr.LJ 2375, 2005 YLR 908, 2013 PCr.LJ 127, 2004 YLR 1088, 2006 PCr.LJ 62 and 2021 MLD 729 held that recording the confessional statement with delay by itself is not sufficient to discard the same. There is no doubt there was a delay of twelve days in recording the confessional statement of the accused, but this by itself is not sufficient to discard the same. The Hon'ble Supreme Court in the case of Nabi Bakhsh v. State 1999 SCMR 1972, held that delay in recording the confessional statement by itself is not sufficient to affect its validity. However, no hard and fast rule can certainly be laid down about the period within which the confessional statement of the accused ought to be recorded during the investigation.
It is pertinent to mention here that the appellant did not directly or indirectly take the
plea before the trial court at any stage that the confession was involuntary. Undoubtedly, the appellant had retracted his confession, but the same could be relied upon because the events disclosed by him for the purpose of the commission of a crime in his confessional statement, including the manner adopted by him, were fully corroborated by prosecution evidence available on record.
16. There is also circumstantial evidence of reliable nature on record against the
appellant, proving his proper nexus with the offence of murder of the deceased. Dr.
Najeebullah (PW- 6), examined the deceased Muhammad Naeem on 01.02.2023, and he
issued the medical certificate Ex.P/6 -A, according to which the deceased received injuries on
his head by means of a firearm.
17. The above observations of the doctor are in line with the confession of the appellant,
whereas he has admitted that he made a fire upon the deceased, due to which he received injuries. Thus the medical evidence available on record abundantly corroborated the confession of the appellant.
18. The investigation officer, after registration of the FIR, arrested the accused and, on
his disclosure and pointation in the presence of ASI Abdul Ghani (PW -5) recovered the dead
body of deceased Muhammad Naeem. The IO/IP Ameer Hamza (PW- 7) secured two bullet
empties of T.T pistol, and the same were taken into possession through a recovery memo. in the presence of the witnesses. PW- 5 also took the blood- stained earth of the deceased from
the place of occurrence. He also took the blood- stained garments of the deceased into
possession through a recovery memo. in the presence of PW -2, and the blood stained- earth
and blood- stained cloth of the deceased were sent to FSL, whereby the IO also obtained a
positive report Ex.P/7- K according to which the suspect blood- stained articles were stained
with human blood.
19. Now turning towards the recovery of the crime weapon, in pursuance of the
appellant's disclosure, the crime weapon was recovered on his pointation on the next day of
his arrest i.e., on 02.02.2023 in the presence of SI Ghulam Sarwar (PW -3) and the same was
taken into possession through recovery memo. So far as the alleged disclosure of the
appellant is concerned, it may be stated that as provided by Articles 37, 39 of the Qanun- e-
Shahadat Order, 1984, a confession was made by an accused person in police custody is not
admissible. However, if something related to the case is recovered or any fact is discovered
in consequence of information conveyed by the accused person, then the information so
received would be admissible in evidence within the purview of Article 40 of the Qanun- e-
Shahadat Order, 1984 because then the presumption would be towards its truthfulness but if
nothing in consequence of the disclosure is recovered or discovered, then the information so received by itself would not be admissible.
20. Keeping in view the natural mode and manner of the above mentioned recoveries
from the spot coupled with the recovery of the crime weapon on the pointation of the appellant as well as the confidence inspiring statements of PWs, any probability of false procurement of the said evidence is excluded.
21. Two empties of T.T pistol were recovered from the place of occurrence by the IO, and
the crime weapon recovered on the pointation of the appellant were sent for a report of the ballistic expert and the ballistic expert report has been produced as Ex.P/7- J, which shows
that the recovered empties were fired from the pistol recovered on pointation of the appellant in pursuance of his disclosure.
22. After thrashing out the material on record, we have come to the conclusion that the
prosecution story stands to reason and is natural, convincing, and free from any inherent improbability. All the circumstances mentioned above are interlinked with each other in the manner making out an unbroken chain connecting the present appellant with the murder of the deceased, thus, qualifies the criteria of acceptable circumstantial evidence discussed by the August Supreme Court of Pakistan in the case of Hashim Qasim and another v. The State (2017 SCMR 986) wherein it was laid down that:
"Placing reliance on circumstantial evidence, in cases involving capital punishment, the superior Courts since long have laid down stringent principles for accepting the same. It has been the consistent view that such evidence must be of the nature, where, all circumstances must be so interlinked, making out a single chain, an unbroken one, where one end of the same touches the dead body and the other the neck of the accused."
These circumstances exclude every hypothesis of his innocence, and thus, the learned
trial court has rightly relied upon the aforementioned pieces of circumstantial evidence; there
is no space to entertain any hypothesis of innocence, the guilty verdict calls for no
interference, and the conviction and sentence recorded by the trial court against the appellant is based on correct and proper appreciation of evidence. Therefore, the judgment of conviction and sentence is maintained; as, a result whereof, Criminal Appeal No. 113 of 2024 is dismissed accordingly.
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