2020 P Cr. L J 533
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
AKHTAR MUHAMMAD alias GHANI and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeals Nos. 63, 196 of 2015 and Criminal Revision Petition No. 11 of 2015,
decided on 30th October, 2019.
(a) Criminal trial ---
----Circumstantial evidence ---Principle ---Chain of evidence must exist as not to leave any
reasonable ground for conclusion consistent with innocence of accused---Evidence must b e
such to show that within all human probability, act must have been done by accused.
Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.
(b) Criminal trial ---
----Judicial confession--- Retracted --- Scope --- Retracted judicial confession can be made
basis for awarding conviction and sentence but to be on safer side, if case is merely based on
circumstantial evidence, then judicial confession must be corroborated with some impeachable, independent corroborative evidence, particularly in a case where accus ed was
held responsible for capital charge.
(c) Criminal Procedure Code (V of 1898) ---
----S. 164--- Judicial confession ---Principles ---Un-explained delay in recording confession,
torture upon maker during course of investigation (even on the first day as s tated by accused
and not disputed), omission to mention factum of removal of handcuffs, failure by Magistrate to mention grant of time prior to making confessional statement cast serious doubt on voluntariness of confession.
Naqeebullah's case PLD 1978 S C 21; Khalid Javed and another v. The State 2003
SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Patoo and another v. The State 2012 MLD 1358 rel.
(d) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Delay in sending
crime empties to Forensic Science Laboratory ---Complainant lodged FIR against accused
persons for committing qatl -i-amd of his sister ---Conviction and sentence was based on
judicial confession ---Co-accused was convicted and sent enced for giving false information---
Sending of crime weapon and bullet empties together with delay of one year and nine months
to forensic expert created reasonable doubts in case of prosecution---Forensic Expert report
in such regard was inconsequential to the case of prosecution---Prosecution failed to
establish culpability of accused through reliable, trustworthy and confidence inspiring
evidence--- So many circumstances were not required for extending benefit of doubt in favour
of accused rather one cir cumstance which created reasonable dent in veracity of version of
prosecution could be taken into consideration for the purpose not as a matter of grace rather as a matter of right ---High Court set aside conviction and sentence awarded to accused
persons by Trial Court and acquitted them of charge as benefit of doubt was to be extended in favour of accused--- Appeal was allowed accordingly.
Mehmood Ahmed v. The State 1995 SCMR 127; Zia -ur-Rehman v. The State 2000
SCMR 528 and Hashim Qasim and another v. The State 2017 SCMR 986 ref.
Ali Sher and others v. The State 2008 SCMR 707; Tariq Pervaiz v. The State 1995
SCMR 1345 and Riaz Masih v. The State 1995 SCMR 1730 rel.
Nemo for Appellant (in Criminal Appeal No. 63 of 2015).
Abdul Wali Khan Nas ar for the Complainant (in Criminal Appeals Nos. 63, 196 of
2015).
Habibullah Gul, Additional Prosecutor General for the State (in Criminal Appeals
Nos. 63, 196 of 2015 and Criminal Revision Petition No. 11 of 2015).
Muhammad Shabbir Rajput for Appellant (in Criminal Appeal No. 196 of 2015) and
Respondents Nos. 1 and 2 (in Criminal Revision Petition No. 11 of 2015).
Abdul Wali Khan Nasar for Petitioner (in Criminal Revision Petition No.11 of 2015).
Date of hearing: 14th October, 2019.
JUDGMENT
ROZI KHA N BARRECH, J. ---The appellants namely Akhtar Muhammad alias
Ghamai and Sardar Muhammad alias Agha Shereen sons of Fida Muhammad were involved in case FIR No.02 of 2012 registered under sections 302, 34, P.P.C. at Police Station Pashtoon Abad, Quetta, and w as tried by the learned Additional Sessions Judge -IV, Quetta,
(hereinafter "the trial Court"). The trial Court seized with the matter in terms of judgment dated 19.05.2015 (hereinafter "the impugned Judgment"), convicted and sentenced the appellants in the following terms: -
"The accused Sardar Muhammad alias Agha Shereen son of Fida Muhammad is convicted under section 302(b) (liable to Ta'zir) P.P.C. and sentenced to suffer life
imprisonment with fine of Rs.2,00,000/ - (Rupees Two Lacs Only) which would be
paid to the legal heirs of deceased under section 544- A, Cr.P.C., and in default thereof
he has to suffer SI for one (01) year."
"The accused Akhtar Muhammad alias Ghamai son of Fida Muhammad is convicted
under section 201 PPC and sentenced to suffer seve n (07) years imprisonment and to
pay fine of Rs.10,000/ - (Rupees Ten Thousand Only) in case of default to suffer SI
for three months and he (Akhtar Muhammad) is also convicted under section 203,
P.P.C. and sentenced to suffer imprisonment of two (02) years and to pay fine of
Rs.5,000/ - (Rupees Five Thousand Only) in case of default to suffer SI for two (02)
months. The sentence of the convict Akhtar Muhammad shall run concurrently.
Benefit of section 382(B), Cr.P.C., is extended in favour of both the convic ts".
2. Aggrieved from the impugned judgment, the appellant Sardar Muhammad alias Agha
Shereen son of Fida Muhammad has assailed his conviction and sentence through Criminal Appeal No.196 of 2015, the appellant Akhtar Muhammad alias Ghamai son of Fida Muha mmad has also assailed his conviction and sentence through Criminal Appeal No.63 of
2015, while the complainant Hikmatullah son of Muhammad Zareef filed Criminal Revision Petition No.11 of 2015 for enhancement of conviction awarded to the appellants by the trial
Court, as both the appeals and petition are arising out one and the same judgment of the trial Court, therefore, the same are being disposed of through this single judgment.
3. The prosecution story as disclosed in the FIR (Ex.P/2 -A) recorded on the statement of
Hikmatullah (complainant) PW -2 is that on 19.01.2012 he was present in his house situated
at Rasheed Chowk, his brother -in-law Sardar Muhammad alias Agha Shereen (appellant)
came at there and told his (complainant) mother that his daughter wa s ill, on said information
his (complainant) parents went with Sardar Muhammad alias Agha Shereen home, when his (complainant) parents reached at there at 8:30 p.m., found his sister dead, after seeing dead body of his sister, the condition of his mother b ecame bad so she was taken home and then to
Gillani Hospital, where a person namely Abdul Rehman told the complainant that dead body of his sister was brought to hospital by Sardar Muhammad alias Agha Shereen, but doctor told him that it was a police case and advised him to take her at Civil Hospital, Quetta, then Sardar Muhammad alias Agha Shereen intentionally not took her to Civil Hospital but at his home, after that his mother condition became stable she was taken home and further it became into his kno wledge that his sister Fouzia was killed by the accused persons by firing
upon her due to unknown reasons. Hence the criminal report.
4. After completion of investigation, the challan was submitted before the trial Court.
Charge was framed to which the accused/ appellants pleaded not guilty and claimed trial. After full dressed trial, the accused/appellants are convicted as mentioned herein above. Hence this Criminal Appeal and Criminal Petition.
5. Arguments advanced from both the sides have been heard. We have also minutely
gone through the record available on file with the able assistance of learned counsel for the parties.
6. Undeniably, it is a case of blind murder, which has been witnessed by none. PW -
2/complainant Hikmatullah (brother of the deceased). PW- 3, Noor Muhammad (brother of
the deceased). PW- 4, Muhammad Zareef (father of the deceased). PW- 7, Bibi Gul (mother of
the deceased) are not eye- witnesses of the occurrence and according to the report of
complainant on the day of occurrence he was present in his home his brother -in-law Sardar
Muhammad alias Agha Shereen came at there and told his (complainant) mother that her
daughter was ill, on said information the complainant/PW -1 along with PW -4, Muhammad
Zareef, PW- 7, Bibi Gul went with the appellant/convict (Sardar Muhammad) home, when
complainant along with parents reached at there at 8:30 p.m., found his sister dead. The PW -
3, Noor Muhammad who is brother of deceased was informed by PW -1 about occurrence, he
and complainant went to polic e station. PW -1, Hidayatullah is witness of recovery of crime
weapon i.e. pistol, bullet led and bullet cartridges. PW -6, Abdul Rehman, who did not stated
against the accused and was declared as hostile witness. PW- 8, Hafeezullah, SI, who is
witness of blo odstained clothes of the deceased. PW -9, Dr. Ali Mardan Mengal, MLO, who
conducted postmortem of the deceased. PW -10, Muhammad Afzal (Judicial Magistrate) who
got recorded statement under section 164, Cr.P.C., of the accused Sardar Muhammad alias
Agha Sher een. PW- 11, Sultan Muhammad Durrani, IP, who conducted investigation of the
case and PW- 12, Khalid Mehmood, SI, who produced firearm expert report (Ex.P/2- A).
7. The record transpires that no one came forward to furnish ocular evidence of this
unfortunate incident, thus, one may say that it is an unseen occurrence. The material
collected by the prosecution are; recovery of crime weapon, (pistol) from the accused/appellant (Sardar Muhammad alias Agha Shereen) on the pointation of place of occurrence by accus ed/appellant Sardar Muhammad alias Agha Shereen, confessional
statement of the accused/appellant Sardar Muhammad alias Agha Shereen and circumstantial evidence in the shape of last worn clothes of the deceased and recovery of bullet empties and
bloodstaine d earth from the place of occurrence and medical evidence.
8. Before dilating upon the above referred circumstantial evidence, we are fully
conscious of the principle that if the case is based on circumstantial evidence, the prosecution must ensure, that t he circumstances from which the inference of guilt is sought
to be drawn, must be cogently and firmly established. The circumstances must unerringly point towards the guilt of the accused and when taken cumulatively, should form a chain so complete, that i t must demonstrate in all probabilities that the crime was committed by the
accused. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first
instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such to show that within al l human probability the act must have been
done by the accused. In case titled Sheikh Muhammad Amjad v. State PLD 2003 SC 704, the august Supreme Court while dealing with circumstantial evidence, has been held that: -
"According to the standard of proof re quired to convict a person on circumstantial
evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so
complete as not to leave any reasonable ground for a conclusion consistent with the
innocence of the accused. The circumstances from which the conclusion of the guilt is
to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive natur e and consistent only with the hypothesis
of the guilt of the accused and should not be capable of being explained by any other
hypothesis, except the guilt of the accused and when all the circumstances
cumulatively taken together should lead to the only i rresistible conclusion that the
accused alone is the perpetrator of the crime".
9. The prosecution has mulled upon the retracted confessional statement of appellant,
maintaining that it can solely be based for holding the appellant guilty of the charge. There is no cavil in the proposition that the retracted judicial confession can be made basis for
awarding conviction and sentence but to be on safer side, if the case is merely based on the circumstantial evidence, then the judicial confession must be corroborated with some impeachable, independent corroborative evidence, particularly, in a case where the accused has to be held responsible for the capital charge. Thus, the alleged judicial confession of the appellant, has been examined in isolation as well as in view of the corroborative pieces of evidence to extend premium to the prosecution.
10. The touch stone of a judicial confession can be tested on the following points: -
a) Voluntarily without any promise or coerciveness.
b) Admissible and proved in all respect before the Court.
c) True and
d) Consistent, having coherence to the other facts and circumstances.
11. Perusal of the evidence, the prosecution produced PW -10, Muhammad Afzal (Judicial
Magistrate) reveals that the appellant Sardar Muhammad al ias Agha Shereen was produced
before him on 27.01.2012 who recorded his confession statement. Keeping in view the yardstick, evidence of learned Judicial Magistrate (PW- 10) and confessional statement
(Ex.P/10- A) of appellant Sardar Muhammad alias Agha Sher een has to be scanned. Maker of
confession was arrested on 19.01.2012 while confession was recorded on 27.01.2012. There is delay of eight days in recording the confessional statement, effect of which has to be determined keeping in view the facts and circumstances of the case.
12. Coming to the voluntariness of the judicial confession, allegedly made by the
appellant Sardar Muhammad alias Agha Shereen, we have cautiously examined the testimony of PW -10 Muhammad Afzal Kakar the then Judicial Magistrate, Que tta, and perused the
aforesaid questionnaire, confessional statement and certificate. The PW- 10 Muhammad Afzal
Kakar, the then Judicial Magistrate, Quetta, while recording statement and issuing of certificate has not given sufficient time for reflection be fore recording statement under
section 164, Cr.P.C., as it was incumbent upon him to have had given sufficient time of reflection with three intervals, henceforth by not doing so. The PW -10 Muhammad Afzal
Kakar, the then Judicial Magistrate, Quetta, did not state a single word in his statement that either he has given sufficient time of reflection. The PW- 10 Muhammad Afzal Kakar, the
then Judicial Magistrate, Quetta, failed to observe the pre- cautions held to be necessary
before recording a confessional statement. Moreover, the certificate (Ex.P/10 -B) issued by
him as envisaged under section 364(2), Cr.P.C., lacks the time of reflection, recording
confessional statement of the appellant in his language i.e. Pushto, warning that if he records or would not be handed over to police again and that he himself is acquainted with Pushto
language. However, during cross -examination he stated that he did not mention in certificate
that the accused handed over to police again voluntarily stated that such words could not be
written in certificate. He further stated during cross -examination that;
13. The above facts and circumstances have not only made the statement of PW -10
Muhammad Afzal Kakar, the then Judicial Magistrate, Quetta, unreliable but worthy of no
credence too, as such, no explicit reliance can be placed thereupon. However, we are not
brushing aside the confession on this score alone. There are other important attending circumstances which cannot be ignored. Perusal of the confessional statement (Ex.P/10- A)
reveals that it is maker while replying question No.6 stated that on the first day after his arrest, he was given beating and was subjected to torture. Torture by the police even on the first day casts serious doubt about the voluntariness of the confessio n. The arguments that
appellant as per his own saying was not subject to torture except first day and as such confession was without duress has least impressed us. Re -action of all persons in such
eventualities will not be same all the times. Some persons having strong nerves can re -act by
not submitting to the will of dominating authority if later on there is no ill -treatment.
However, others having in mind the oppressive treatment may be for one day submit to the desire and dictate of person in authority.
14. Perusal of confessional statement (Ex.P/10 -A) questions put to the maker and
certificate (Ex.P/10 -B) do not suggest that handcuffs of the confessor were removed prior to
making confession. The Judicial Magistrate did not state a single word in the sta tement that
either he removed the handcuffs of the appellant while recording statement. It has been stated earlier that the appellant was arrested on 19.01.2012, he was produced before the learned Judicial Magistrate on 27.01.2012 i.e. eight days after his arrest for recording his statement
under section 164, Cr.P.C. Such delay has not plausibly been explained by the prosecution, which has highly injured its credibility and same cannot be accepted as confidence inspiring against the appellant. Reliance is p laced in Naqeebullah's case PLD 1978 SC 21 and Khalid
Javed and another v. The State 2003 SCMR 1419. Reference may also be made to the case of Shoukat Saeed v. The State PLD 1978 Quetta 1 and Patoo and another v. The State 2012 MLD 1358.
15. Un-explained d elay in recording confession, torture upon the maker during the course
of investigation (even on the first day as stated by appellant and not disputed), omission to mention factum of removal of handcuffs, failure of the learned Judicial Magistrate to menti on grant of time prior to making confessional statement, which cast serious about the
volunartiness of confession.
16. Now adverting to the test of the confessional statement with regard to truthfulness,
consistencies and having coherence to the facts and circumstances, it is relevant to highlight
that in the confessional statement allegedly made by the appellant Sardar Muhammad alias Agha Shereen, it was confessed that when he went at home in Assar time, he asked Fouzia to go her parent's home but she refused to go and told him that his mother stated to her that she took care of him (accused Sardar Muhammad) before the marriage of them (accused Sardar Muhammad and deceased), in the meanwhile his mother came and she (Fouzia) used filthy language to his mothe r, he told her mother to go outside, when she went out, his wife Fouzai
also went behind his mother, then noise of fall of her mother and crying heard by him, he without any thought and understanding took the pistol under the table and Fouzia ran , hide herself in Bhaitak and closed the door inside, he fired two fires by means of his .30 bore
pistol on side of door to make her afraid, then he told her to open door, after that he saw from the holes, where bullets passed through, then she said that he killed her, the door was opened
by him, saw that Fouzia was fallen on floor, he thought that Fouzia was scared, but when he checked her, no reply was given by her, he went to shop of his brother; his brother and doctor, whose clinic was near came, doctor checked her, found that on left side of ribs there
was a hole and he advised him to bring her hospital, they took her to Gillani Hospital where
doctor checked and confirmed that she was dead. Then they came back home, dead body was lied in room, then he, his broth er and his daughter went by Rickshaw to bring his sister and
parents of Fouzia, then after two hours police came, arrested him and he handed over the pistol to police.
17. The accused specifically stated in the alleged confessional statement that deceased
(Fouzia) ran at herself in Bhaitak, he fired two fires by means of .30 bore pistol on side of door to make her afraid, then he told her to open door, after that he saw from the holes, where bullets passed through, then she said that he killed her, the door was opened by him.
18. On the other hand, according to medical certificate produced by PW- 9 Dr. Ali Mardan
Mengal, who conducted postmortem of the deceased. The deceased received two firearm injuries. During cross -examination he stated that "there were bl ackening near wounds of
bullets". He further stated during cross -examination that if bullet fired from distance of 6
inch blackening can be seen on near wounds, voluntarily stated that it depends, upon weapon of firearm. Meaning thereby that the medical ce rtificate is not corroborated with confessional
statement and the same is contradicted to each other, how can it possible that the accused made a fire on door of the room which was closed and on the other side from the door the bullet hit to the deceased and there was blackening of injuries received by deceased. It is important to mention here that if the accused at first fired on door and the bullet crossed the door, thereafter hit the deceased the blackening would be on the door not on injuries of the deceased. This aspect of the matter also caused reasonable doubt in the prosecution's case.
19. According to PW -2 Hikmatullah who is complainant of the case, on 18.01.2012 he
was present in his house. The accused Akhtar Muhammad alias Ghamai came to his house
and told his (parents) that her daughter was killed. They reached to the house of accused at 9:30 p.m., at there they found dead body of deceased (Fouzia) was laying. On the other hand,
the FIR was lodged on 19.01.2012 at 12:15 a.m., at night with delay of three hours. The
lodgment of the FIR with such delay has not been plausibly explained by the prosecution as well as the complainant which create reasonable doubt in the prosecution's case. Reliance in this behalf is placed on the case of Mehmood Ahmed v. The State 1995 SCMR 127.
20. In so far as the extra judicial confession made by the appellant in the presence of PW -
5 Tahir Anwar, ASI while making pointation of the place of alleged occurrence is concerned, the same is inconsequential for not being admissible and worthy of credence. The pointation of the place of occurrence cannot be considered as discovery of new and fresh fact as contemplated under Article 40 of the Order of 1984, rather, the aforesaid pointation is hit under Articles 38 and 39 of the said enactment because the place of occurrence, was already
known and inspected by PW -11 Sultan Muhammad Durrani, IP who conducted investigation
of the case while preparing sketch plan of the place of occurrence, so making pointation of the place of oc currence at a subsequent stage by the appellant in no terms can be believed to
be discovery of new facts. Reliance is placed upon the case of Zia- ur-Rehman v. The State
2000 SCMR 528 and Hashim Qasim and another v. The State 2017 SCMR 986.
21. Allegedly the occurrence took place on 19.01.2012 and on the same day the accused
was arrested and allegedly recovery of pistol was effected from the accused, one bullet empty was taken into possession by the prosecution through recovery memo on the day of occurrence. According to PW -12 Khalid Mehmood, SI, the investigation officer has sent
parcel of alleged recovery pistol to firearm expert on 25.10.2013 and was received on 16.11.2013. The pistol was allegedly sent to firearm expert after one year and nine months. According to firearm expert (Ex.P/12- A) in respect of bullet empty was positive and the said
report in respect of crime bullet was negative. Even otherwise, sending of crime weapon
(pistol) and bullet empties together with delay of one year and nine months to the Forensic
Expert create reasonable doubt in prosecution's case, therefore, sending of forensic expert report in this regard is inconsequential to the prosecution case. Reliance is placed on the case of Ali Sher and others v. The State 2008 SCMR 707.
22. All the above narrated facts and circumstances when evaluated on the judicial
parlance reflect that the prosecution has failed to establish the culpability of the appellant in the instant case through reliable, trustworthy and confidence inspiring evidence. It is an established principle of law that for extending benefit of doubt in favour of the accused so many circumstances are not required rather one circumstance, which creates reasonable dent in the veracity of the prosecution version can be taken int o consideration for the purpose not
as a matter of grace rather as a matter of right. Respectful reliance in this regard in placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz Masih v. The State 1995 SCMR 1730.
From the facts and circumstances narrated above, we are persuaded to hold that
conviction passed by the learned trial Court against both the appellants in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Resultantly,
while setting aside the conviction and sentence recorded by the trial Court in terms of judgment dated 19.05.2015 in Criminal Appeal No.196 of 2015 filed by the appellant S ardar
Muhammad alias Agha Shereen and Criminal Appeal No.63 of 2015 filed by the appellant
Akhtar Muhammad alias Ghamai are allowed as a consequence whereof they are ordered to be acquitted of the charge in FIR No. 02 of 2012 dated 19.01.2012 registered under sections 302, 34, P.P.C. at Police Station Pashtoon Abad, Quetta. They are directed to be released forthwith, if not required in any other case.
The Criminal Revision Petition No.11 of 2015 under sections 435, 439, Cr.P.C, filed
by the petitioner Hikm atullah son of Muhammad Zareef for enhancement of the sentence is
hereby dismissed.
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