2020 P Cr. L J 637
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
OBAIDULLAH and others---Appellants
Versus
The STATE and others---Respondents
Criminal Jail Appeals Nos. 52, 54, Criminal Revision No. 44, Criminal Acquittal Appeal No.
337 and Murder Reference No. 5 of 2018, decided on 21st October, 2019.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd---Power to record
statements and confessions ---Appreciation of evidence ---Sentence, reduction in ---Mitigating
circumstances ---Circumstantial evidence ---Recovery of weapon--- Retracted confession---
Scope ---Accused persons were alleged to have murdered the deceased ---Held; no direct
evidence of the crime in question was available and the prosecution case was structured upon circumstantial pieces of evidence i.e. disclosures of accused persons along with recovery of crime weapon, corroborated by positive report of Forensic Science Laboratory and judicial confession of accused persons recorded by Judicial Magistrate under S. 164, Cr.P.C.---
Testimony of Judicial Magistrate revealed that confessional statements of accused persons were voluntary and true and the procedural defect, if any, in recording the statements stood removed by the question put by the Magistrate to the accused to the effect that they were not
bound to make any statement and if a confessional statement was made by them, the same could be used against them as evidence ---Accused did not directly or indirec tly take the plea
before the Trial Court at any stage that the confessions were involuntary---Accused, though, had retracted their confessions, but the same could be relied upon, because the events disclosed by them for the purpose of commission of crime i n their confessional statements
including the manner adopted by them was fully corroborated by prosecution evidence available on record---Motive for killing the deceased indicated that their confessions were voluntary and true and the same could not be dis carded for the sole reason of having been
recorded after six/seven days in view of the facts and circumstances of the case ---Crime
weapon was recovered in pursuance of the disclosures made by the accused persons and the pistol along with the empties secure d from the place of occurrence were sent for the report of
Ballistic Expert---Report of Ballistic Expert showed that the crime empties were fired from the same pistol---Circumstances highlighted excluded every hypothesis of the innocence of accused persons and thus the Trial Court had rightly relied upon circumstantial evidence ---
No space existed to entertain any hypothesis of innocence, guilty verdict called for no interference ---High Court, while attending to the sentence of death passed against one of the
accused, observed that though all the other formalities required by the law vis -a-vis
recording confessional statements under S. 164, Cr.P.C. were duly complied with, yet the
same were recorded after a delay of six/seven days ---Such delay was an irregula rity not
vitiating the confessional statement itself but put the court to caution---Offence in question
was seemingly committed by the accused under the influence of absconding co- accused on
account of his liasion with her--- Alteration of death penalty int o imprisonment for life was a
conscionable wage, in circumstances ---Penalty of death awarded to the accused was altered
into imprisonment for life.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Criminal Procedure Code (V of 1898), S. 417---Qanun- e-Shaha dat (10 of
1984), Art. 39---Qatl -i-amd---Appeal against acquittal ---Confession by accused while in
custody of police not to be proved against him ---Appreciation of evidence ---Extra -judicial
confession---Exculpatory confession--- Scope ---Accused along with others was alleged to
have murdered the deceased---No evidence was available against the accused except his
extra -judicial confession recorded during police custody, which was also exculpatory in
nature, therefore, the Trial Court had rightly acquitted him of the charge ---Appeal against
acquittal, being without merit, was dismissed.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl -i-amd ---Appreciation of evidence ---Circumstantial evidence --- Scope ---
Every circumstance, in cases based on circumstantial evidence, was to be linked with each
other and it should form such a continuous chain that its one end touches the dead body and
the other to the neck of the accused, but if the chain link is missing then its benefit must go
to the accused.
(d) Criminal P rocedure Code (V of 1898)---
----S. 164---Power to record statements and confession---Retracted confession---
Corroborative evidence --- Scope ---Retracted confession either judicial or extra -judicial if
found to be truthful and confidence inspiring and also qualifies the test of voluntariness, can be used for conviction without looking for any other sort of corroboration--- Though it is not
prudent to base conviction in a criminal case only on the strength of retracted confession without independent corroborat ion and necessary particulars and the court is under obligation
to inquire into all the material points and surrounding circumstances to satisfy itself regarding the voluntariness of confession but it is not an inflexible rule that the retracted confession cannot be made the basis of conviction without independent corroboration rather
the rule of corroboration is rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person---Retracted confession can be legall y taken into
consideration against the maker if the confession is found to be true and voluntary and can also be used as a sole evidence for conviction without any corroboration, if the court is satisfied about its voluntary character and truthfulness.
(e) Qanun- e-Shahadat (10 of 1984)---
----Arts. 38, 39 & 40---Confession to police officer not to be proved---Confession by accused
while in police custody---Information received from accused to be proved---Scope ---
Confession made by accused person, while he is 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 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 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.
Muhammad Khair Mengal and Muhammad Khalid Khan Kakar for Appellants.
Jameel Ahmed Babai for the Complainant.
Abdul Mateen, Deputy Prosecutor- General for the State.
Date of hearing: 1st October, 2019.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This common judgment will
dispose of Criminal Jail Appeals Nos.52 and 54 of 2018, Criminal Revision Petition No.44 of 2018, Criminal Acquittal Appeal No.337 of 2018 and Murder Reference No.05 of 2018, arising out of judgment dated 31st October 2018 (the "impugn ed judgment"), passed by the
Sessions Judge, Pishin (the "trial Court"), whereby appellant Zubair Ahmed son of Nizamuddin was convicted and sentenced under section 302(b) of the Pakistan Penal Code,
1860 (P.P.C.) to suffer death as Tazir; whereas, appellan t Obaidullah son of Samiullah was
convicted and sentenced under section 302(b), P.P.C. to suffer imprisonment for life as Tazir. Both the appellants were directed to pay compensation of Rs.600,000/ - each to the
legal heirs of deceased or in default whereof to suffer RI for six months each, with benefit of
section 382- B, Cr.P.C.
2. The complainant Wali Jan has filed Criminal Revision Petition No.44 of 2018 for
enhancement of sentence awarded to the appellant Obaidullah and Criminal Acquittal Appeal No.337 of 2018 against the acquittal of accused/respondent Rafiullah; whereas the State has
sent the Murder Reference No.05 of 2018.
3. Abdul Raziq son of Mano Jan, hereinafter referred to as the deceased, left home on
11.06.2018. Upon failure to return, his disappearance was reported by his relatives on 22.06.2018. On the fateful day i.e. 22.06.2018, the dead body of deceased Abdul Raziq was found by the Levies Officials in a flood -water stream, which was subsequently identified by
the uncle of deceased viz. Haji S aleh Muhammad and in this regard formal FIR No.28 of
2018 was lodged at Levies Headquarter, Pishin. In consequence of said FIR, the appellants Zubair Ahmed, Ubaidullah and Rafiullah (since acquitted) were arrested. Upon their disclosure the crime weapon wa s recovered from one Khalil -ul-Rehman. It is in this
backdrop that the appellants along with co- accused Rafiullah were indicted before the Court;
whereas, fourth accused Molima Fatima daughter of Abdul Qayum is still away from law.
4. We have heard learned counsel for the parties and also perused the available record,
which reveals that there is no direct evidence of the crime in question and the whole edifice
of the prosecution case has been structured upon the circumstantial pieces of evidence i.e. disclo sures of appellants followed by the recovery of crime weapon, corroborated by positive
report of Forensic Science Laboratory and judicial confession of appellants recorded by PW -
8 Anas Gul, Judicial Magistrate -I, Pishim under section 164, Cr.P.C. It is set tled by now that
in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if chain link is missing then its benefit must go to the accused.
5. As stated above, there is no direct evidence of the crime in question and the main
evidence on the basis of which the appellants were found guilty of the charges were their own confessional statements. The corroborative evidence produced by the prosecution to prove the facts relating to the occurrence in which an innocent person, who also happened to
be "Hafiz -e-Quran" was killed, may not be independently sufficient to prove the charge
against the appellants and establish their part icipation in the occurrence, however, if
combined together, provide a strong chain of circumstances, leading to the conclusion that it
was the appellants, who had committed the murder of deceased. The main ground weighed with the learned trial Court while convicting the appellants is their own confessional statements, as such, an essential question for consideration in this case would relate to the admissibility of the confessions and its evidentiary value for the purpose of conviction. We are conscious of the fact that both the confessions have been retracted by the appellants, however, it is by now settled that a retracted confession either judicial or extra judicial if is
found truthful and confidence inspiring and also qualifies the test of voluntarines s, can be
used for conviction without looking for any other sort of corroboration. There is no cavil to
the general rule that it is not prudent to base the conviction in a criminal case only on the
strength of retracted confession without independent corroboration and necessary particulars
and the Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession but it is not an inflexible rule tha t the retracted confession cannot be made basis of
conviction without independent corroboration rather the rule of corroboration is a rule of
abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a
person. The law is that a retracted confession can be legally taken into consideration against
the maker if the confession is found true and voluntary and can also be used as a sole
evidence for conviction without any corroboration if the Court is satisfied about its volunta ry
character and truthfulness.
6. In the case at hand, it is established from the testimony of PW -8, Judicial Magistrate -
I, Pishin, who recorded the confessional statements of appellants Zubair Ahmed and
Ubaidullah that the judicial confessions made by the appellants were voluntary and true and
the procedural defect, if any, in recording the statements stood removed by the question put by the Magistrate to the appellants to the effect that they were not bound to make any statement and if a confessional stat ement was made by them, the same could be used against
them as evidence. It is pertinent to mention here that the appellants did not directly or indirectly take the plea before the trial Court at any stage that the confessions were involuntary. Undoubtedly, the appellants had retracted their confessions, but the same could
be relied upon, because the events disclosed by them for the purpose of commission of crime
in their confessional statements including the manner adopted by them was fully corroborated by prosecution evidence available on record. The appellants had also disclosed
the motive of killing the deceased indicated that their confessions were voluntary and true and the same could not be discarded for the sole reason of having been recorded after six/seven days in view of the facts and circumstances of the case.
7. So far as the alleged disclosures of appellants is concerned, it may be stated that as
provided by Articles 37, 39 of the Qanun- e-Shahadat Order, 1984, a confession made by an
accused per son, while he is 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 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.
8. Now turning towards the recovery of crime weapon, in this regard, it is to be noted
that in pursuance of the disclosures made by the appellants the crime weapon was recovered from possession of one Khalil -ul-Rehman and the said pis tol along with the empties secured
from the place of occurrence were sent for the report of Ballistic Expert. The Ballistic Expert Report has been produced as Ex.P/10- K, which shows that the crime empties were fired from
the pistol recovered from the posse ssion of one Khalil -ul-Rehman in pursuance of the
disclosures made by the appellants.
9. These circumstances exclude every hypothesis of their innocence and thus the learned
trial Court has rightly relied upon the aforementioned pieces of circumstantial ev idence,
there being no space to entertain any hypothesis of innocence, guilty verdict calls for no interference, the appeals fail.
10. So far as the question of quantum of sentence is concerned, we have particularly
attended to the sentence of death passed against the appellant Zubair Ahmed and have
noticed some peculiarities of this case, warranting exercise of discretion in the matter of his sentence of death. In this regard we have noticed that though all the other formalities required by the law viz. a viz. recording confessional statement under section 164, Cr.P.C. had been duly complied with, yet the same were recorded after a delay of six/seven days.
This was an irregularity not vitiating the confessional statement itself but putting the Court to
caution. Similarly, the offence in question seems to be committed by appellant Zubair
Ahmed under the influence of absconding accused Moalima Fatima on account of his liaison
with her, taken from this angle, alteration of death penalty into imprisonment for li fe would
be a conscionable wage in the circumstances. Consequently, penalty of death awarded to appellant Zubair Ahmed is altered into imprisonment for life while the amount of fine and
compensation is kept intact.
With the above modification, Criminal Ja il Appeals Nos.52 and 54 of 2018 along with
Criminal Revision Petition No.44 are dismissed and Murder Reference is answered in
negative. So far as the Criminal Acquittal Appeal No.337 of 2018 is concerned, it may be
noted that there is absolutely no eviden ce against the respondent Rafiullah except his extra -
judicial confession recorded during police custody, which is also exculpatory in nature, therefore, the learned trial Court has rightly acquitted him of the charge, as such, the appeal being without meri t is dismissed.
SA/146/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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