2012 M L D 466
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
ZAFFAR--- Appellant
Versus
THE STATE---Respondent
Criminal Jail Appeal No.32 of 2010, decided on 22nd December, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence ---There being no eye -witness of the
occurrence, prosecution case rested upon circumstantial evidence ---Judicial confession made by
accused was not voluntary and was a result of torture ---Deceased was lastly seen not in the
company of accused, but of co- accused ---Axe stained with human blood allegedly recovered at
the instance of accused was sent to Forensic Science Laboratory after an unexplained delay of
one and a half months and the positive report of the said Laboratory did not show that the blood
found on the axe was of the same group as that of the deceased---Even otherwise, evidence of recovery of crime weapon being only of corroboratory nature, by itself was not sufficient for conviction in the absence of direct or substantive evidence ---Similarly, the positive report of the
expert for the same reason could not be made a basis for holding the accused guilty---Recovery of the dead body of the deceased from the house of accused alone would not prove that the deceased had been killed by him ---No other evidence was available on record to connect the
accused with the crime--- Accused was acquitted in circumstances.
State v. Muhammad Yaqoob PLJ 2000 SC 1863 and Bashir Ahmed v. The State PLJ 1974 Cr.C.
Lah. 460 ref.
(b) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Principles ---Universally recognized
principle of law is that conviction must be based on unimpeachable evidence and certainty of
guilt---Any doubt that arises in the prosecution case must be resolved in favour of the accused---
Imperative for the court to examine and consider all the relevant events, preceding and leading to the occurrence, so as to arrive at a correct conclusion ---When the eviden ce examined by the
prosecution is found inherently unreliable and against natural course of human conduct, then the conclusion must be that the prosecution has failed to prove the guilt beyond reasonable doubt.
Miss Shabana Azeem for Appellant.
Abdul Sattar Durrani, A.P.- G. for the State.
Date of hearing: 7th December, 2011.
JUDMGENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Pauper appellant Zafar son of Mushtaq has
challenged the validity of judgment dated 30th August, 2010, passed by the Sessions Judge,
Mekran at Turbat, by means of instant Criminal Jail Appeal No.32 of 2010 sent through Superintendent, District Jail, Turbat, whereby he was convicted and sentenced under section 302(b) of the P.P.C. to suffer life imprisonment and to pay an amount of Rs.100,000 (rupees one hundred thousand only) as compensation to the legal heirs of deceased Aqeel, in default whereof to further undergo S.I. for six (6) months, with the benefit of section 382- B of the Cr.P.C.
2. On 20th February, 2010, complainant A dil (P.W.1) in his written application (Exh.P/1-
A), addressed to Station House Officer (S.H.O.), Police Station. Turbat, alleged that last night,
he, along with his brother Aged, was sitting in their Bhaitak, when at about 11- 00 p.m., Nooral
and Faisal cam e there on a motorcycle and since his brother was their friend, therefore, he
accompanied them on their call. The complainant further alleged that at about 4- 00 a.m., Fazeel,
who happens to be the brother of Nooral, informed him telephonically that his brother Aqeel is admitted in the emergency ward of civil hospital, Turbat in injured condition. On that, he, along with Hanif, Fareed Ahmed and Abdul Majeed, rushed to the hospital and reached there at about 5-00 a.m., where he saw the dead body of his brothe r lying in the emergency ward. The
complainant also alleged that when they reached hospital, Fazeel, Nooral, Faisal and Zafar were present there and or their arrival, they left the hospital premises. Consequently, a case vide Crime No 12 of 2010, under sec tion 302 read with section 34 of the P.P.C. was registered against the
above named accused persons at Police Station City, Turbat.
3. After registration of F.I.R. Exh.P/7- A, the investigation of the case was entrusted to
P.W.7 Riaz Hussain, S.- I., who w ent to civil hospital along with other police officials, where the
dead body of the deceased was lying, which was taken into possession vide memo. Exh.P/2- A
and its inquest report Exh.P/7- B was prepared. He released the dead body of the deceased to his
heirs without conducting postmortem examination on their request. He recorded the statements
of P.Ws. and, thereafter, went to the place of occurrence, where on the pointation of the
complainant, he prepared site sketch Exh.P/7- C, secured blood- stained earth of the deceased vide
memo. Exh.P/2- B. On the spot, the father of accused persons Faisal and Zafar, namely, Mushtaq
produced before him a pair of black shoes, which were taken into possession vide memo. Exh.P/2- C. He arrested the accused persons and during course of interrogation, accused Zafar
made disclosure about the commission of the offence and in consequence whereof, recovery of crime weapon i.e. axe was effected on his pointation from the courtyard of his house which was taken into possession vide rec overy memo. Exh.P/3- A and site sketch of the place of recovery
was prepared vide memo. Exh.P/7- D. The accused also pointed out the place of occurrence, at
which memo of pointation Exh.P/3- B was prepared. Thereafter, he went to police station, where
the brother of the deceased i.e. complainant produced the blood -stained clothes of the deceased,
which were taken into possession vide recovery memo. Exh.P/2- D. He sent the blood- stained
articles etc. to FSL for analysis, obtained medico legal certificate regardi ng the deceased from
the doctor concerned. During course of investigation, co- accused Nooral was brought by his
father to police station and he was taken into police custody. He got recorded the confessional statement of accused Zafar under section 164, Cr .P.C. through Judicial Magistrate concerned and
in view of the confessional statement recorded by accused/appellant Zafar, he sent the papers to SP investigation for guidance and since there was no evidence against the co- accused persons,
therefore, they w ere discharged under section 169 of the Cr.P.C., whereas, after completion of
the investigation, the documents were placed before the S.H.O. concerned, who prepared incomplete challan Exh.P/7- E. On receipt of FSL report Exh.P/7- F, supplementary challan
Exh.P/7- G was prepared and the appellant was sent to face the trial.
4. On the state allegation, a formal charge was framed and read over to the appellant, to
which he did not plead guilty and claimed trial. To prove the accusation, the prosecution
produced seven witnesses. P.W.1 Adil is complainant of the case, who placed on record his
written application Exh.P/1 -A. P.W.2 Javed Ali, on receiving information about the death of
deceased, reached Civil Hospital, where he stood mushir to recovery memos. Exh.P/2- A,
Exh.P/2- B, Exh.P/2- C and Exh.P/2- D. P.W.3 Muhammad Ikram is witness to the recovery of
crime weapon i.e. axe on the disclosure and pointation of accused Zafar, which was taken into possession vide recovery memo Exh.P/3- A as well as memo of pointation E xh.P/3- B. P.W.4 Dr.
Kahoor Khan, Senior Medical Officer, DHQ Hospital, Turbat, examined the dead body of the deceased and issued certificate Exh.P/4 -A. P.W.5 Muhammad Hanif took the complainant to
hospital in his Suzuki vehicle, where he saw the brother of the complainant dead. P.W.6
Inayatullah, Judicial Magistrate, recorded the confessional statement of the accused and produced the same as Exh.P/6- B and certificate Exh.P/6 -C and P.W.7 Riaz Hussain, S.- I., is the
investigating officer of the case. Then the prosecution closed its side.
5. The accused was examined under section 342 of the Cr.P.C., wherein he once again
denied the prosecution allegation. He did not opt to record his statement on oath as provided
under section 340(2) of the Cr.P.C., nor produced any witness in his defence.
6. On conclusion of the trial, the trial Court found the prosecution's case against the
appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted
and sentenced, as mentioned and detailed above, whereas the co -accused persons were acquitted
of the charge.
7. We have heard the learned counsel for the pauper appellant as well as the counsel for the
State and have gone through the record with their valuable assistance. It has been argued by the
learned counsel for the pauper appellant that the prosecution had failed to prove its case against
the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary the learne d counsel for the State has maintained that
the prosecution had succeeded in proving the guilt of the appellant to the hilt and therefore, the present appeal deserves dismissal.
8. Reappraisal of evidence would show that there is no eye -witness of the in cident and the
case of the prosecution mainly rests upon the judicial confession of the appellant, the recovery of
crime weapon "axe" on his pointation and the expert's report, showing that the axe was stained with human blood. It is the case of prosecution that on the fateful night at about 11- 00 p.m. one
Nooral and Faisal came to the house of complainant on a motorcycle and deceased Aqeel
accompanied them on their call and, subsequently, at about 4- 00 a.m. one Fazeel, who happens
to be the brother of Noor al, informed the complainant through telephone call regarding the
injuries sustained by deceased Aqeel. On receiving this information, complainant, along with Hanif, Fareed Ahmed and Abdul Majeed, rushed to the hospital, where they found the dead body
of deceased Aqeel, lying in the emergency ward.
9. The record is indicative of the fact that the appellant Zafar was arrested on 20th February,
2010, while his confessional statement was recorded on 1st March, 2010, after a delay of about
11 days. We have ex amined the confessional statement and found that the Magistrate, after
performing requirements of law and giving a time of 15 minutes, recorded the same and he was of the opinion that the confession was true and voluntary. Admittedly, there is no hard and fast rule as to how much time is to be allowed to the accused for reflection before confession is recorded. However, period of time depends on each case. In the present circumstances of the case, we find that the period given by the Magistrate for reflecti on purposes to the appellant
Zafar Mushtaq was not sufficient and it has caused prejudice to the appellant, specially keeping in view the fact that it has been recorded after 11 days of his arrest, thus, the lapse by the Magistrate in recording of confessi onal statement is fatal to the evidentiary value of confession,
which adversely affected the voluntariness and truthfulness of the confession. It is to be noticed that in response to questions Nos.6 and 8, of the confession, the accused replied in the foll owing
manner: --
"Ans.No .6.
Ans.No 8.
10. The answers given by the appellant clearly demonstrate that the confession in question is
neither voluntary, nor truthful, rather it is a result of torture as is evident from perusal of
Exh.P/6- B. There is no cavil to the proposition that a, sole judicial confession is sufficient for
conviction of the maker, if it is voluntary, true and corroborated by other independent pieces of evidence, which is lacking in the instant case, as has already been observed hereinabove that the confession in question is not voluntary and is a result of torture. According to the evidence of complainant, deceased Aqeel was lastly seen in the company of co - accused Nooral and Faisal,
whom the deceased accompanied on the fateful night. According to the medico legal certificate that initially deceased Aqeel was brought to the hospital by said Faisal and Nooral and the whole
episode, except the alleged judicial confession, does not figure the name of the appellant.
11. Moreover, much emphasize has been laid on the positive report of Forensic Science
Laboratory Exh.P/7- F, whereby the axe, recovered at the instance of appellant Zafar Mushtaq,
has been found to be stained with human blood. This piece of evidence, apparently, appeal to
reasons, however, when examined minutely, it also l ooses it intrinsic value. According to the
prosecution evidence, the alleged axe was recovered at the instance of the appellant on 21st
February, 2010, whereas the same was received by the FSL authorities on 3rd April, 2010, after
an unexplained delay of a bout one and half month. We are afraid the evidence of recovery of
crime weapon by itself being evidence purely of corroboratory nature, in the absence of direct or
substantive evidence, alone, was not sufficient to bring home charge against the appellant .
Although according to the FSL report the axe in question was blood stained, but it does not purport the same blood group as that of the deceased.
12. The simpliciter positive report of the expert would not be sufficient for conviction of the
appellant. The opinion of an expert has a corroborative value only and useful for ascertaining
whether the direct evidence is true or not. It is absolutely unsafe to base a conviction on that
opinion only. When there is no other evidence in the case, it can never be said with certainty that
the weapon with which the crime is said by the expert to have been committed, though found in possession of the accused person, was in his possession when the offence was committed. Reference can be made to a judgment titled "Stat e v. Muhammad Yaqoob", PLJ 2000 SC 1863.
13. Learned counsel, appearing on behalf of the State, argued that since the dead body was
recovered from the house of the appellant, thus, he was responsible to disclose the real facts, if
he was not the accused. It may be noted that mere recovery of dead body, adjacent to the house
or from the house, is not sufficient to prove the deceased was killed by the appellant. We may quote findings arrived at on the point in a case of "Bashir Ahmed v. The State", PLJ 1974 Cr.C.
Lahore 460, wherein it has been held as under: --
"8. No doubt, the dead body of the deceased was seized from the house of Bashir appellant but this alone would not show that the deceased was killed by the appellant and that even if it be said that he was killed by the appellants, in the manner and the circumstances as deposed by Abdul
Sattar (P.12)."
14. The universally recognized principle of law is that conviction must be founded on
unimpeachable evidence and certainty of guilt and, hence, any doubt that arises in the
prosecution case, must be resolved in favour of the accused. It is therefore, imperative for the Court to examine and consider all the relevant events, preceding and leading to the occurrence, so as to arrive at a correct conclusio n. Where the evidence examined by the prosecution is found
inherently unreliable and against natural course of human conduct, then the conclusion must be
that the prosecution failed to prove the guilt beyond reasonable doubt. There is no other evidence
to implicate the appellant with commission of the offence, except the recovery of alleged axe and positive report of expert, which would not be sufficient for conviction and sentence of the appellant.
What has been discussed hereinabove, we are of the view that the prosecution has miserably failed to prove the case against the appellant beyond any reasonable doubt. Resultantly, criminal jail appeal is allowed and impugned judgment is set aside. The appellant is acquitted of the charge. He is in custody, be r eleased forthwith, if not required in any other case.
N.H.Q./174/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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