2017 P Cr. L J 479
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer -ud-Din Kakar, JJ
NOOR MUHAMMAD and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No. 71 of 2015, Criminal Revision No. 1 of 2015 and Criminal Acquittal
Appeal No.42 of 2015, decided on 8th December, 2016.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34 ---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of doubt -
--No direct evidence ---Accused was charged for the murder of deceas ed---Complainant did not
initially nominate any person in his fard -e-bayan, on the basis of which, FIR was recorded---
Accused persons had been nominated through supplementary statement ---Complainant had taken
U-turn from his previous statement ---Such facts created doubt in the prosecution's case, benefit
of which would resolve in favour of accused---Conviction and sentence recorded by Trial Court
were set aside in circumstances.
(b) Penal Code (XLV of 1860) ---
----Ss. 302 & 34 ---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of doubt -
--Accused persons were not named in the FIR --- Complainant implicated the accused persons
through supplementary statement ---Complainant made improvements in his supplementary
statement ---Circumstances suggest ed that complainant involved the accused persons falsely and
therefore, reliance could not be placed on his such statement ---Conviction and sentence recorded
by Trial Court were set aside in circumstances.
(c) Criminal trial ---
----Witness ---Improvements made by witness ---Effect ---If witness improved his version to
strengthen the prosecution case, statement of such witness, could not be relied upon being
dishonest ---Credibility of witness had become doubtful, which cast serious doubt on the veracity
of suc h witness.
Akhtar Ali and others v. The State 2008 SCMR 6 rel.
(d) Penal Code (XLV of 1860) ---
----Ss. 302 & 34 ---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of doubt -
--Retracted confession ---Accused was charged for the murder of de ceased ---Accused made
confession before Judicial Magistrate but later on retracted ---Retracted confession of the accused
was not corroborated by any evidence ---Circumstances suggested that confessional statement
retracted by the accused person, could not a t all be called as voluntary judicial confession in the
eye of law and the same had no legal effect ---Conviction and sentence recorded by Trial Court
were set aside in circumstances.
(e) Criminal Procedure Code (V of 1898) ---
----S. 164---Confession ---Ret racted confession ---Evidentiary value ---Conditions ---Retracted
confession could not be based as a ground for conviction of accused unless the same was
corroborated by strong pieces of evidence and appeared to be voluntary, without any
inducement, promise, duress or coercion ---If retracted confession appeared to be voluntary and
true, it was supposed to be the best evidence against the maker (accused) and could be made sole
basis for conviction, without looking for corroboration.
(f) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 38 & 39--- Information or disclosure by accused in custody of Police ---Admissibility ---
Information or disclosure by accused in the custody of police was inadmissible/irrelevant under
Arts.38 & 39 of Qanun- e-Shahadat, 1984.
(g) Penal Cod e (XLV of 1860) ---
----Ss. 302 & 34 ---Qatl-i-amd, common intention---Appreciation of evidence ---Recovery of
weapon of offence ---Relevance---Weapon of offence (pistol) was recovered from the possession
of accused ---Report of Forensic Science Laboratory show ed that recovered 30 -bore crime
empties were not fired from the pistol, which was recovered from the possession of accused---
Such recovery of weapon of offence was of no avail ---Conviction and sentence recorded by Trial
Court were set aside in circumstances.
Syed Manzoor Shah for Appellants (in Criminal Appeal No. 71 of 2015).
Syed Manzoor Shah for Respondents Nos. 1 and 2 (in Criminal Revision No. 1 of 2015).
Najam -ud-Din Mengal for Appellants and Petitioners (in Acquittal Appeal and Criminal
Revision).
Khalid Ahmed Kubdani for Respondents (in Acquittal Appeal No. 42 of 2015).
Ameer Hamza Mengal, Deputy Prosecutor General for the State.
Date of hearing: 23rd November, 2016.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---Through this common judgment, we propose to
dispose of Criminal Appeal No.71 of 2015 filed by the appellants/convicts Noor Muhammad and
Imam Bakhsh, against their conviction as well as connected Criminal Revision Petition No.1 of
2015, for enhancement of sentence awarded to both the convicts and connected Criminal
Acquittal Appeal No.42 of 2015 filed by complainant Sakhi Dad against the acquittal of co-
accused Baboo son of Essa, as all three matters are the outcome of the same judgment dated
19.2.2015 "the impugned judgment" of the Court of Sessions Judge, Lasbella at Hub "the trial
Court", whereby the appellants in criminal appeal No.71 of 2015 were convicted and sentenced
as follows: -
Therefore, in presence of mitigating circumstances in favour of accused persons Noor
Muhammad alias Nooro and Imam Bakhsh, they are convicted under section 302(b),
P.P.C. and sentenced to suffer RI for life as Tazir with compensation of Rs.l 00,000/ - as
envisaged under section 544- A, Cr.P.C. to be paid to the legal heirs of deceased Ghulam
Akbar and in default of payme nt thereof, to further undergo SI for six months. Benefit of
section 382- B, Cr.P.C. was also extended in favour of accused.
2. The facts of the case are that vide FIR No.37/2012 dated 15.11.2012, report was lodged
by one Sakhi Dad, under section 302 Qisas and Diyat, 34, P.P.C. against the unknown accused
alleging therein that he is resident of Achaar hotel Sakran and about 15/16 years ago, he left his
native area and purchased the land in Mouza Chorr and is residing there. His nephew namely
Ghulam Akbar was caretaker of a Banana orchard in Mouza Kandiaro. On the day of occurrence,
Uthal police recovered a dead body from the area of Pir Sawai, which was kept in civil hospital
Uthal for identification, on receiving information, when he reached civil hospital, identified the
dead body of his nephew. According to the complainant, they had no enmity with any one and
that unknown accused have committed murder of his nephew. However, later on, on 17.11.2012,
the complainant tendered an affidavit/supplementary statem ent to SHO Police Station, Uthal
implicating Imam Bakhsh, Noor Muhammad both sons of Ismail and Babo son of Essa as the
accused.
3. After registration of the FIR, investigation was entrusted to SI Attaullah (PW -10), who
produced the FIR Ex -P/10- A, prepared site plan through Patwari, took into possession blood
stained clothes of the deceased. On 17.11.2012, complainant submitted his supplementary
statement and nominated accused persons Imam Bakhsh, Noor Muhammad and Baboo and they
were arrested in the instan t case. Prepared disclosure and pointation memos of the appellants. On
the pointation of appellant Noor Muhammad, the police party took into possession crime weapon
i.e. one TT Pistol and Motorcycle. He produced the accused/appellants before the Judicial
Magistrate (PW -6) for recording their confessional statements under section 164, Cr.P.C. He
recorded statements of the witnesses and after completion of investigation, handed over the case
file to SHO/IP Muhammad Siddique, who prepared challan Ex -P/10- B. PW -11 Muhammad
Sharif IP, stated that on 15.11.2012 he received information through telephone regarding the
dead body lying at Pir Sawai road, thereafter, he along with other police officers/officials
reached there, prepared site plan Ex -P/11- A, found bullet injuries on the person of dead body,
took into possession four empties, blood stained earth from the place of occurrence, brought the
dead body to hospital for medical examination and prepared inquest report Ex -P/11- B. He sent
the blood stained articles t o FSL, produced FSL report Ex -P/11- C and examination report
regarding Pistol Ex -P/11- D and also identified his signatures on the complete challan Ex -P/11- E.
4. On the stated allegations, Charge was framed and read -over to the convicts/appellants
and acquit ted accused person on 07.1.2013 to which they pleaded not guilty and claimed trial.
During the trial, the prosecution examined the following 11 witnesses.
PW-1 Sakhi Dad, is complainant of the case.
PW-2 Dr. Azeem Nawaz , examined the dead body of the dece ased and found the
following injuries on his person:
i. Gunshot on medial side of right clavicle.
ii. Gunshot on level of male nipples right side of sternum on rib sternum margin.
iii. Gunshot right side mid abdomen incised from back.
iv. Gunshot from cent er of head to low mandible.
Probable cause of death: Chest+neck+abdomen+head injury and issued MLC Ex -P/2-A.
PW-3 Muhammad Ali ASI, witness to recovery memo Ex - P/3-A whereby an unknown
dead body was taken into custody, recovery memo of blood stained earth Ex-P/3-B,
recovery memo of four empties Ex -P/3-C, recovery memo of one handkerchief and two
ladies dopatta Ex -P/3-D and recovery memo of one pair of shoes Ex -P/3-E.
PW-4 Muhammad Hussain SI , witness to disclosure memo of accused Noor
Muhammad alias Nooro Ex-P/4-A, recovery memo of one TT pistol 30 bore along with
empty magazine Ex -P/4-B, recovery memo of one motorcycle Honda 125 Ex P/4- C and
recovery memo of pointation of the place of occurrence Ex -P/4-D.
PW-5 Hamid Mehboob ASI, witness to disclosure memo of accused Imam Bakhsh Ex -
P/5-A and recovery memo of pointation of the place of occurrence.
PW-6 Inayatullah Barech, Judicial Magistrate, recorded the confessional statements of
the appellants and produced the same as Ex -P/6-C and Ex -P/6-G.
PW-7 Muhammad A nwar IP, witness to disclosure memo of accused Baboo Khan Ex -
P/7-A, recovery memo of motorcycle super star Ex -P/7-B and recovery memo of
pointation of the place of occurrence.
PW-8 Zahid Hussain ASI, witness to recovery memo of clothes of the deceased Ex -P/8-
A and recovery memo of different articles Ex -P/8-B.
PW-9 Muhammad Ashraf Constable, witness to recovery memo of arrest and body
search of the accused persons.
PW-10 Attaullah SI, Investigating Officer, has initially investigated the case.
PW-11 Muhammad Sharif Khoso, the second Investigating Officer.
5. After completion of the prosecution side, the appellants/accused were examined under
section 342, Cr.P.C., wherein they denied the prosecution case and pleaded their innocence,
however, they did not opt to make their statements on oath as envisaged under section 340(2),
Cr.P.C., nor led evidence in their defence. While the acquitted accused Baboo got recorded his
statement on oath and also produced two witnesses in his defence.
6. On conclusi on of the trial and hearing the arguments, the learned trial Court found the
appellants guilty and sentenced them as mentioned herein above vide impugned judgment.
Whereas the accused Baboo Khan was acquitted of the charge, hence these Criminal Appeals
and Criminal Revision Petition.
7. Learned counsel for the appellants/convicts contended that the FIR of the case was
registered against the unknown accused persons and the appellants/ convicts along with co-
accused were implicated through supplementary statement, which is not admissible under the
law; that there is no direct and indirect evidence against the appellants which connect them with
the commission of offence and the occurrence is unseen, but the trial Court wrongly without
considering the material available on record sentenced the appellants; that the conviction was
built upon confessional statements of the appellants, which were not corroborated by the other
piece of evidence; that during the investigation allegedly a TT Pistol was recovered from the
appellant Noor Muhammad, which was sent for analysis, but result of the examination report
shows that the empties were not fired from the said arm. He also pointed out certain
contradictions in the statements of the prosecution witnesses, which according to him should
have been considered by the trial Court, but ignored without any rhyme or reason, causing
miscarriage of justice to the appellants/convicts.
8. Conversely, the learned DPG opposed the appeal and stated that the trial Court after
taking into consideration the material available on record, has rightly convicted and sentenced
the appellants, which, do not call for interference by this Court. Whereas, learned counsel for the
complainant contended that the impugned judgment to the extent of awardi ng lesser punishment
to the appellants being contrary to facts and law, hence liable to be modified by enhancing the
same to the extent of capital punishment. Learned counsel added that the impugned judgment to
the extent of acquittal of accused Baboo bein g contrary to facts and law; that the trial Court has
failed to appreciate the available evidence in its true prospective; that without proper reasons
benefit of doubt has been extended to the acquitted accused Baboo for which he was not entitled.
Lastly, he prayed for setting aside/modified the impugned judgment to the extent of acquittal of
accused Baboo and he be punished in accordance with law.
9. We have heard learned counsel for the parties at length and have gone through the record.
It is an admitted fact that initially the complainant (PW -1) Sakhi Dad did not mention the name
of any accused in his fard -e-bayan (Ex -P/1-A dated 15.11.2012) on the basis of which, FIR was
recorded. According to fard -e-bayan, some unknown persons committed the offence, whereas the
complainant had nominated the appellants/convicts and acquitted accused in his supplementary
statement (Ex -P/1-B dated 7.11.2012). In case the contents of the FIR and supplementary
statement are put in juxtaposition then it is clear that the comp lainant had taken altogether U -turn
from his previous stance. This fact creates doubt in the prosecution's story and was not
considered by the trial Court in its true prospective in the impugned judgment. Thus, it is,
therefore, established that the names of the appellants/convicts along with the acquitted accused
did not appear in the FIR as such, it is an improvement made by the complainant in the
supplementary statement therefore, the statement of the complainant involving the appellants in
the case is o bviously false and no reliance can be placed therein in view of all attending
circumstances available on the record and the trial Court was, therefore, not justified to convict
the appellants. It is also a settled maxim that when a witness improves his ver sion to strengthen
the prosecution case, his improved statement, subsequently made cannot be relied upon as a
witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on
the well known principle of criminal jurisprudence that improvements once found deliberate and
dishonest cast serious doubt on the veracity of such witness. The question of placing reliance on
the materially improved statement of a witness came up for consideration before the Hon'ble
Supreme Court in the c ase reported as Akhtar Ali and others v. The State {2008 SCMR 6}. At
page 12 of the judgment, the Hon'ble apex court commented as under:
"It is also a settled maxim when a witness improves his version to strengthen the
prosecution case, his improved statem ent subsequently made cannot be relied upon as the
witness has improved his statement dishonestly, therefore, his credibility becomes
doubtful on the well -known principle of criminal jurisprudence that improvements once
found deliberate and dishonest cast serious doubt on the veracity of such witness. See
Hadi Bakhsh's case PLD 1963 Kar. 805"
10. In the instant case, admittedly there is no eye -witness of the incident and the prosecution
relied upon the following set of evidence:
i. Confessional statements o f the appellants.
ii. Recovery of crime weapon i.e. Pistol on the pointation of appellant Noor
Muhammad.
iii. Circumstantial evidence in the shape of recovery of last worn clothes of the
deceased coupled with MLC, recovery of empties and report of the FSL etc.
11. As far as the confessional statements of the appellants are concerned, perusal of the
record shows that the same have been recorded on 23.11.2012 by the PW -6, Inayatullah Barech,
Judicial Magistrate, Uthal. Perusal of the record further shows that the statement of the appellant
Noor Muhammad, under section 164, Cr.P.C., was recorded after six days of his physical
remand, whereas the statement of the appellant Imam Bakhsh, under section 164, Cr.P.C., was
recorded after eight days of his physical rem and. There is no plausible explanation for the undue
delay of recording confessional statements of the appellants, while on the other hand the same
have been retracted by them. It is settled principle of law that retracted confession cannot be
based a ground for conviction of the accused person unless the same is corroborated by strong
corroborative pieces of the evidence. In the instant case, the confessional statement of the
appellants Ex - P/6-C and Ex -P/6-G, respectively, does not find support from any c orroborative
evidence. In these circumstances, the confessional statement retracted by the accused persons,
cannot at all be called as voluntary judicial confession in the eyes of law and the same are having
no legal effect. For judging evidentiary value of a retracted confession, it has to be seen whether
the same appears to be voluntary, without any inducement, promise, duress or coercion? Where
retracted judicial confession appears to be voluntary and true, it is supposed to be the best
evidence against the maker (accused), and can be made sole basis for conviction, without looking
for corroboration, but position in the instant case is squarely different. The retracted confession
of the appellants are not corroborated by any circumstantial evidence, hence cannot be relied
upon. As far as disclosure of the appellants Ex -P/4-A and Ex -P/5-A are concerned, it is a settled
principle that the information or disclosure by any accused person in the custody of police before
a police officer, is inadmissible/irrelev ant under Articles 38 and 39 of the Qanun -e- Shahadat
Order, 1984. In this case, although, SI Muhammad Hussain (PW -4) and ASI Hamid Mehboob
(PW-5) claimed that the appellants made disclosure/confession regarding the occurrence of this
case, but in conseque nce of said disclosure, no new fact was disclosed. So far pointation of the
place of occurrence by the appellants are concerned, it is an admitted fact that the place of
occurrence was already in the knowledge of police and complainant, because the police collected
the blood stained earth and empties from the place of occurrence, when inspected the said place
on 15.11.2012, so, the place of occurrence which was allegedly pointed out by the appellants on
17.11.2012 and 22.11.2012, respectively, was already i n the knowledge of police since
15.11.2012.
12. So far as recovery of TT Pistol (Art:P/19) at the instance of the appellant Noor
Muhammad is concerned, we may observe that as per MLC Ex -P12- A, there are four firearm
wounds on the person of Ghulam Akbar (de ceased), but surprisingly report of Forensic Science
Laboratory, Sindh (Ex -P/11- D) shows that 30 bore crime empties C1 to C4 were not fired from
the pistol (Art:P/29), therefore, recovery of the said Pistol, from the appellant is of no avail to the
prosecu tion. For the sake of convenience, the opinion of the Expert Ex -P/11- D is reproduced
herein below:
OPINION:
The microscopic examination of the case has led that:
i. Four .30 bore crime empties now marked as "C1 to C4" were 'not fired' from the
above ment ioned .30 bore pistol rubbed number in question, in view of the fact that major
points i.e. striker pin marks, breech face marks and chamber marks are 'dissmilar'.
13. After considering all the circumstances, we are of the considered view that the
prosecut ion has failed to prove its case against the appellants beyond shadow of reasonable
doubt, therefore, the Criminal Appeal No.71 of 2015 is allowed and the impugned judgment
passed by the trial Court is set aside. Consequently, the appellant Noor Muhammad a lias Nooro
and Imam Bakhsh are acquitted from the charge, by extending them benefit of doubt. They are
behind the bars, shall be released forthwith, if not required in any other case.
14. So far as Criminal Acquittal Appeal No.42 of 2015 filed by the compl ainant against the
acquittal of Baboo son of Essa and Criminal Revision Petition No.1 of 2015 filed by the
complainant for enhancement of sentence of the convicted appellants are concerned, for afore -
referred reasons, the same being devoid of merits are di smissed accordingly.
JK/8 -Bal. Order accordingly.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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