2 0 1 1 P C r . L J 48
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
SIRAJ AHMED ---Appellant
Versus
THE STATE ---Respondent
Criminal Jail Appeal No. 67 of 2007, decided on 21st July, 2010.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324 & 337 -D---Criminal Procedure Code (V of 1898), S.164 ---Qatl-e-amd,
attempt to commit qatl -e-amd, Jaifah ---Appre ciation of evidence ---Benefit of doubt ---
Confessional statement under S.164, Cr.P.C. ---Evidentiary value ---Accused contended that
he was forced to make confessional statement before Magistrate by the Police ---Validity ---
Confessional statement was a strong piece of evidence but complete reliance could not be
placed on the same unless such statement was proved to have been made voluntarily --Injured
witness, who was the only eye -witness of the case, stated that he was riding pillion on the
motorcycle driven by the deceased when the accused attacked them with dagger but none of
the official or private witnesses disclosed anything about that motorcycle; the said motorcycle
was not taken into custody by the Investigating Officer ---Occurrence having taken place at
night, injured eye -witness mentioned of the motorcycle to prove his ability to recognize the
accused in the head -light of the motorcycle but presence of the said motorcycle remained
doubtful ---Statement of the witness in circumstances, lost its weight ---Assertion of the
complainant who was father of the deceased that he never met the injured eye -witness since
the occurrence till date could not be believed ---Alleged confession was not corroborated by
the evidence and material brought on record ---Trial Court failed to appreciate evidence and
contradictions in the statements of the witnesses which were also at variance with medical
evidence --Even statement of the only eye -witness was not considered properly ---Reasonable
doubt in prosecution case entitled the ac cused to the benefit of doubt ---Prosecution having
failed to prove its case, appeal was accepted and accused was acquitted of charges.
(b) Criminal Procedure Code (V of 1898) ---
----S. 164---Confessional statement before Magistrate ---Evidentiary valu e---Confessional
statement was a strong piece of evidence but the same could not be relied unless such
statement was proved to have been made voluntarily.
2004 PCr.LJ 1518; PLD 2002 SC 558; PLD 1996 SC 1; PLD 2005 SC 530; 2005 YLR
3346; 2005 SCMR 277; 2001 SCMR 1405 and 2005 SCMR 1906 ref.
Waseem Dumar for Appellant.
Mrs. Sima Jamal for the State.
Date of hearing: 3rd May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Instant jail appeal has been filed by appellant
Siraj with averments tha t he has been falsely involved in commission of the offence.
The witnesses appeared from the prosecution side are interested and all related to each
other, despite the fact that the alleged incident was occurred at marriage ceremony, but
none of the person attending the same was made witness of the incident. Further, he was
maltreated and tortured by the police, while he was threatened that if he did not make
confession before the Judge, he would be sent to remand and be tortured, but if he
confess he will be set free. Due to fear of torture he got recorded his confessional
statement. There is contradiction in the statements of the witnesses. He prayed for
setting aside of impugned judgment and his acquittal of the charge, or in alternate reduction
be made i n the sentence.
As per record, F.I.R. No.12 of 2007 Police Station Bela District Lasbella was registered on 7-
4-2007 by one Lal Muhammad reporting about an incident occurred on same date at 11 -30
p.m. It has been alleged therein that while he was sleepin g in his house along with his family
he was suddenly told by his family that his son Ghulam Muhammad and his friend Abdul
Hafiz were seriously injured by Siraj while hitting them with dagger. When he reached at
hospital his son Ghulam Muhammad was dead due to injuries sustained, while Abdul Hafeez
was in injured condition. On registration of case, the investigation was carried out. Appellant
was arrested soon after incident, while crime weapon was recovered. After completion of
investigation case was challa ned, whereupon proceedings were held after framing of charge
on 10 -7-2007, which he denied and pleaded not guilty. Twelve witnesses appeared from side
of the prosecution, while no evidence was produced from defence side, nor the appellant
opted to record h is statement on oath. On completion of trial, the court finding him guilty of
the offence, thus sentenced him for offence under section 302(b), P.P.C. to suffer life
imprisonment with compensation of Rs.50,000 payable to the legal heirs of the deceased,
further punished for offence under section 324, P.P.C. to suffer rigorous imprisonment for a
period of five years with fine of Rs.20,000, in default to suffer further imprisonment of six
months. Further convicted for offence under section 337 -D, P.P.C., whil e directed to pay
Rs.84,000 as Arsh to injured Abdul Hafeez. Feeling aggrieved of the same he filed instant
appeal praying for his acquittal being falsely involved.
During course of arguments the learned counsel for the appellant contended that there are
material contradictions in statements of prosecution witnesses, which were not considered by
the trial Court. Further, most of the witnesses are not eye -witnesses of the incident. The
counsel for the appellant relied on the judgments reported in 2004 PCr. LJ 1518, PLD 2002
SC 558, PLD 1996 SC 1, PLD 2005 SC 530, 2005 YLR 3346, 2005 SCMR 277, 2001 SCMR
1405 and 2005 SCMR 1906. While in reply learned State counsel contended that, the murder
is not disputed, while apart from other evidence there is confession and admission of the
offence on part of the accused person/ appellant, which is sufficient to prove his guilt. The
counsel for the appellant relied on above mentioned case laws, which are on point of grave
and sudden provocation. In instant case as there i s no plea taken by the appellant during
course of trial that the act has been committed by him due to grave and sudden provocation,
as such the mentioned judgments are not relevant.
As per record the incident occurred on 7-'1.-200 at 11 -30 p.m. whereby t he appellant
allegedly attacked one Ghulam Muhammad and Abdul Hafeez with dagger, who sustained
serious injuries, while Ghulam Muhammad did' not survive. It is further apparent from record
that appellant allegedly surrendered himself before Police Authorit ies and also produced the
crime weapon i.e. dagger on same day after twelve O'clock at night. Further, the appellant
also voluntarily got recorded his statement under section 164, Cr.P.C. on 16 -4-2007, whereby
he confessed killing Ghulam Muhammad, while in juring Abdul Hafeez with averments that
as the victim Ghulam Muhammad was teasing women folk, despite his warnings he did not
avoid doing so, thus he brought knife from his house and attacked them, he was so annoyed
that he failed to recognize severity of his action, whereafter he surrendered himself with
crime weapon to police.
Though the appellant has got recorded his statement under section 164, Cr.P.C, thereby he
confessed commission of the offence, he also disclosed the reason for doing the act, but while
preferring present appeal he has taken specific plea that he has been induced by the police
that in case he got recorded his statement admitting the guilt he would be set at liberty.
Further, threatened that in case of default he would bear dire cons equences. Prosecution
witness No.11 Abdul Saboor is the Judicial Magistrate, who recorded the statement of the
appellant, which is present on record as Exh. P/10 -A. Though the confessional statement is a
strong piece of evidence if establish to be recorded voluntarily, unless proved complete
reliance cannot be made on it. Rather the remaining evidence and other material are also
required to be considered and evaluated. As per record the incident was occurred, though at
night, but in a residential locality, while some marriage ceremony was also going on there.
Except P. W.10 Abdul Hafeez being the injured, no other witness is eye -witness of the
occasion. Even the complainant Lal Muhammad, father of the deceased, is not the eye -
witness, rather he had been told by his family members about occurrence of the incident, no
name is disclosed. According to him when he reached at Hospital his son has already been
dead due to injuries caused to him on chest, while Hafeez was injured. P.W.1 Lal
Muhammad, P.W.2 Abdul Satt ar, P.W.3 Imdad Ali, P.W.4 Muhammad Sharif and P.W.8
Khair Muhammad, all though relatives of deceased, but none of them are eye -witness of the
incident, rather on getting information about the same they reached at Hospital. None of them
reached at the site , nor witnessed the injured lying there except P.W.3 Imdad Ali. He is the
person who allegedly took victim and injured to the hospital from the site, while P.W.7 Islam
is the person who lastly saw the victim and the injured before the occurrence of inciden t, but
he has also not seen the occurrence of incident. According to him at 11 -30 p.m. he was sitting
on the road when Ghulam Muhammad (victim) and Hafeez (injured) visited him and asked
him to accompany them to take tea, he refused, on the same they asked him to bring cups,
then they proceeded, he heard cry of Ghulam Muhammad, when he reached there Hafeez told
him that Siraj Ahmed hit them with dagger. Meanwhile, Noor Bakhsh came, he called Imdad,
who brought mini bus, then they took both of them to hospit al. This witness has not seen the
occurrence, but he allegedly reached at the site soon after occurrence. Despite the fact that he
was present near the place of occurrence and sitting on the road. As per site map, present on
record as Exh.P/6 -D, the road i s nearly straight and place of occurrence can be seen from a
distance. Despite asserting his presence he did not see the appellant either present nearby or
leaving the place, rather his source of knowledge is injured Hafeez. Said Noor Bakhsh being
an impor tant witness, but he was not produced before the court. The only eye -witness is
injured Hafeez, who appeared before the court as P.W.10. As per his statement he along with
Ghulam Muhammad were going to Bazar for taking tea, when near a shop accused Siraj
attacked on chest of Ghulam Muhammad with dagger, as he was sitting behind him on rare
seat of motorcycle, while tried to save him (deceased) he was also hit twice by dagger,
meanwhile Ghulam Muhammad fell down, he (witness) raised noise, whereupon Islam ca me
there. Afterwards a car was brought and they were taken to hospital. He was referred to
Karachi, when he came back after treatment his statement was recorded. He has narrated
altogether different facts. As per him he and Ghulam Muhammad were boarded on a
motorcycle and proceeding towards Bazar when said incident happened. But the last person
who saw and met them before incident P.W.7 Islam never disclosed this fact that both the
victim and injured were on motorcycle when they met him. The other witness P .W.3 Imdad
who allegedly took them to hospital is also silent to this effect. The official witnesses also did
not disclose anything about presence of motorcycle at the spot. The sketch of site was
prepared, which is present on record as Exh.P/6 -D, is also silent in same respect, as nowhere
presence of motorcycle is shown therein. The Investigation Officer also did not disclose
presence of motorcycle nor took it into custody. No motorcycle was taken into custody from
the site, as there is no memo. of recover y of the same.
Though the only witness of the occasion Hafeez has asserted that he along with victim was
boarded on rear seat of motorcycle when the appellant attacked him and he (injured) also
sustained injuries, while he tried to save him. It seems som e how impossible to hit a person
rather persons on motorcycle, which was moving with a dagger, while appellant was surely
shown to be on foot. There is no explanation, in same respect. According to injured appellant
Siraj fled away towards Bazar. Despite t he fact, as per site map, the house of the accused was
just 6/7 steps from the site of incident. Further, the injured recognized accused/appellant Siraj
in light of motorcycle. As the incident was occurred at night it was easily be presumed that
the place was dark, that is why witness stated that he was able to recognize the accused in
light of the motorcycle, the presence of which is surely doubtful.
While adverting to the remaining evidence,' the witnesses contradicts with each other on
several points. As per P.W. Lal Muhammad he gave information to Police Station on same
day, while application Exh. P/1 -A was reduced into writing by SHO. Further, he has not
given any other statement to police. But contrary to the same P.W.6 Abdul Khaliq A.S. -I.
deposed t hat the complainant came to the Thana, while moved written application thereby
reporting the incident, whereupon report was registered. According to him complainant
reached at Thana at 11 -30 p.m. He was alone and brought the written application with him.
While as per P.W.13 Muhammad Sharif, the Investigating Officer, deposed that he recorded
statement of the complainant at his house. Further, deposed that he recorded statement of
injured at 12 O'clock at night. But contrary to the same as per injured, while recording his
statement as P.W.10, his statement was recorded when he returned after treatment from
Karachi. Though most of private witnesses stated that on having information about incident
they reached at hospital, but according to P.W.6 Abdul Khaliq A. S.-I. when they reached
hospital people were not present there as it was night. Apart from the same the Medico Legal
Certificate issued by the Medical Officer P.W.9 Dr. Qadir Bakhsh, which is present on record
as Exh.P/9 -B, the condition of the injured is written as patient is conscious, well oriented to
time and space. While according to P.W.10 Hafeez (the injured), he gained consciousness on
next day at 4, O'clock. Further, it is strange that though the injured was conscious his
'statement was recorded wh en he returned back from Karachi as per his (injured) court
statement. While as per Investigating Officer his statement was recorded at O'clock at home
on same day or thereafter it is not clear, as nothing is mentioned to same extent. Furthermore,
the comp lainant while appearing before the court stated that till present he had neither met
nor seen the injured, nor asked him about the incident. It is some how strange and unnatural
that the complainant being father of the victim, never tried to sought out the truth. It is further
be noted that in Medico Legal Certificate Exh.P/9 -B two wounds are noted down, but in the
discharge card Exh.P/9 -C the description of wounds are different.
The prosecution in present case tried to build up the case that the accused himself appeared in
Thana thereby surrendered himself with crime weapon, while made disclosure about
commission of offence and also produced the dagger, while got recorded his confessional
statement voluntarily. The appellant during examination denied all the alleged facts. Rather in
appeal he took plea that he was threatened and induced to record confessional statement.
Though during course of trial he never raised such a plea, nor specifically asked question to
P.W.11, the Judicial Magistrate, while cross -examining him. Apart from the same though
confession is made, but the same must be corroborated by the other evidence and the other
material on record. But in present case several contradictions, as mentioned hereinabove,
have come on record. Though priva te witnesses deposed that they have heard that accused/
appellant killed and injured Ghulam Muhammad and Hafeez, but none of them have direct
knowledge about the same, rather their evidence to this extent is hearsay. Even the injured,
though named appellan t as real culprit, but his statement is not corroborated by other material
present on record. The presence of motorcycle is not proved, thus his statement that he
recognized appellant/ accused in light of motorcycle loses its weight. Further, as per
Invest igating Officer the clothes worn by the appellant having blood stains were taken into
custody, relevant recovery memo. is produced as Exh.P/12 -A, while parcel and clothes were
produced as Art.P/10 to Art.P/12. But it is to be noted that these blood stained clothes were
never sent to FSL for chemical analysis nor any report in same respect is produced.
Furthermore, the memo. of recovery of blood stained clothes of injured Exh. P/6 -C does not
disclose the cuts present thereon.
The above mentioned contradict ions and facts are not considered by the trial Court, while
deciding the case. The statement made by the only eye -witness is not considered properly.
Not even the fact that the statement of P.W.7 and P.W.10 being the most important witnesses,
did not corro borate each other. The delay in recording of confessional statement was required
to be considered due to the contradictions appeared in the statements of witnesses and the
medical certificates. But the trial Court has failed to observe the same. Reasonable doubt
appeared due to above mentioned contradictions and observations, the benefit of which was
surely to be exercised in favour of the accused person. The trial Court failed to consider these
aspects of the case and exercise the powers vested in it.
In view of above discussion as the prosecution has failed to establish case free from doubts
against the appellant, therefore, the appeal filed by the appellant is accepted, the impugned
judgment dated 10 -7-2007 of Additional Sessions Judge, Lasbella at Hub is hereby set aside,
while extending benefit of doubt in favour of appellant Siraj Ahmed son of Nadullah, he is
hereby acquitted of the charge under sections 302 (b), 324 and 337, P.P.C. pertaining to case
F.I.R. No.12 of 2007 Police Station Bela District Lasbella. He be released at once, if not
required in any other case.
A.R.K./94/Q Appeal accepted.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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