2021 P Cr. L J 839
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ
MUHAMMAD DIN---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No. 246 of 2019, decided on 3rd April, 2020.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Qatl -i-amd and
common intention ---Appreciation of evidence ---Benefit of doubt ---Delayed FIR ---Un -
witnessed incident ---Retracted juridical confession---Motive, not proved--- Failure of
prosecution to send crime weapon to Forensic Laboratory---Scope ---Accused was alleged to
have murdered two of his wives in the backdrop of a motive based upon the allegation of
"siyakari" ---First Information Report was lodged with a delay of 12 hours and that too by a
person who had not witnessed the occurrence ---Ocular account furnished by third wife of
accused was not straightforward as she had only seen the dead bodies, who were slaughtered by unknown persons ---Judicial confession of the accused was re corded 9 days after his arrest
and which was retracted ---Magistrate had neither informed the accused that he would not be
handed over to the levies authorities nor had he physically examined the accused nor had he provided time to the accused for reflection before recording his confessional statement ---
Medical evidence was not in line with the prosecution version---Prosecution had failed to prove the motive ---Recovery of crime weapon was of no avail as the same was neither
effected from the possession of ac cused nor was it sent to the Forensic Laboratory---No case
was made out against the accused nor conviction recorded by the trial court was sustainable --
-Appeal was accepted.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl -i-amd---Wife/vulnerable depe ndent of accused (husband) dying within
confines of his house ---Burden of proof---Scope ---Shifting of some part of the onus to the
accused might not be relevant in a case where the entire case of the prosecution was not
reliable and where the prosecution failed to produce any believable evidence.
Asad Khan v. The State PLD 2017 SC 681 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 164--- Confessional statement, requirements of--- Scope ---Requirement of confessional
statement is that it shall be fr ee from inducement, threat, coercion and the same shall be true
and voluntary.
(d) Criminal Procedure Code (V of 1898)---
----S. 164--- Retracted judicial confession --- Independent corroboration---Scope ---Retracted
judicial confession recorded under S. 164, Cr.P.C. in the absence of any independent
corroboration cannot suffice all by itself for recording or upholding the accused persons' conviction.
(e) Penal Code (XLV of 1860)---
----S. 302---Qatl -i-amd---Failure to prove motive ---Effect ---Absence or weakness of motive
does not render case of prosecution false or fabricated and it is not requirement of law to
prove the same by all means, however, if the prosecution asserts a motive but fails to prove the same then such failure on the part of prosecution may react against its case.
Jameel Ramzan and Jameela Kakar for Appellant.
Muhammad Younas Baloch, Deputy Prosecutor General for the State.
Date of hearing: 30th March, 2020.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Din Muhammad appellant along
with co -accused Muhammad Qasim, Meer Hazar alias Meer Ahmed, Mohammad Ashraf,
Zehri Khan and Arz Muhammad in furtherance of their common intention had allegedly murdered the appellant Din Muhammad's wives namel y Mst. Bibi Khadija and Mst. Bibi
Mehram inside the appellant's matrimonial home killi Muhammad Tawa Lamboj in the area of levies Kalat, District Kalat at about 2:30 a.m. on 24.8.2016 in the backdrop of a motive based upon the allegation of "Siyakari". Wit h the said allegations the appellant and his co -
accused were booked in FIR No. 17/2016 registered at the above mentioned levies station and after a regular trial, the appellant Din Muhammad was convicted by the trial court for an offence under section 302(b), P.P.C. read with section 34, P.P.C. and was sentenced to life imprisonment on two counts and to pay compensation of Rs. 4,000,00 to the legal heirs of deceased persons, hence the present appeal.
2. The occurrence in this case had taken place at 2:30 a.m. in the end of August. The
place occurrence of was inside the house of appellant and according to the site plan Ex.P/9-A, there was no other house/shop anywhere close to the place of occurrence. An FIR in
respect of the incident in question had been lodged after about 12 hours that too by a person
who had not witnessed the occurrence and thus, possibility regarding deliberations before
lodging of the FIR could not safely be ruled out of consideration. The ocular account
furnished by Mst: Saira (PW -15) is neither straightforward nor confidence inspiring. She is
third wife of the appellant Din Muhammad and as per her evidence, she saw only the dead
bodies of her two co- wives early in the morning, who were slaughtered by unknown persons.
Though she had depose d regarding the incident, yet without raising a finger of accusation
towards the appellant and subsequently was also declared hostile by the prosecutor.
3. As stated above, there is no eye -witness of the occurrence and the whole case of
prosecution has bee n structured upon the confessional statement of appellant Din
Mohammad, recorded by (PW -5) Judicial Magistrate, Hizbullah Khan on 10th May, 2018.
He has produced the confessional statement (Ex.P/5- B) and stated that the accused Din
Muhammad was produced by the police under the letter/written request Ex.P/5- A and his
confession was recorded by him accordingly. It reveals from the record that accused Din
Muhammad who made confessional statement was in Levies custody from 1 -10-201'8, as
mentioned in challan by the investigating officer and he was produced before Magistrate for
recording his confessional statement on 10- 10-2018, after a delay of 9 days which is fatal.
We have noticed that in the instant case, the magistrate had not given warning to the accused
that in case he makes 'confession or does not make confession, his custody will not be
handed over to the levies authorities. It is also admitted by the magistrate in his evidence that
he had not physically examined the accused in order to determine any tor ture/violence by the
levies authorities for extracting confession. While recording the confessional statement the
magistrate has not correctly complied with the requirement of sections 164 and 364, Cr.P.C. To our mind the requirement of confessional statem ents are that it shall be free from
inducement, threat, coercion and the same shall be true and voluntary. We have noticed that
the confessional statement of accused Din Muhammad has not been recorded as per required
procedure and same is retracted one, suffering from legal defects and cannot be relied upon for considering the same to award conviction.
4. Besides not administering the required warning, the magistrate has also failed to
provide sufficient time to the accused for reflection before recording his confessional statement, which was requirement under the prescribed statute and its failure is sufficient to vitiate confession.
5. It is by now well settled that a retracted judicial confession recorded under section
164, Cr.P.C., in absence of any inde pendent corroboration could not suffice all by itself for
recording or upholding the accused persons' conviction. The medical evidence furnished by PW-4 Dr. Saadia is also not in line with the version of prosecution, as the medical report is
completely sil ent with regard to poisoning exact cause of death and nature of injuries as to
whether the same were post or anti -mortem.
6. The defence also focused on the weakness of motive. It is case of the prosecution that
the crime in question has been committed on account of "Siyakari" but nothing material has been brought on record to prove the same. There is nothing on record to establish that
deceased Khadija and Marhem Bibi were on illicit terms with anyone. It has remained far
from being established. We are mindful of the fact that absence or weakness of motive would
not render case of the prosecution false or fabricated and it is not requireme nt of law to prove
the same by all means, however, if the prosecution asserts a motive but fails to prove the
same then such failure on the part of the prosecution may react against its case. Likewise,
recovery of crime weapon from the place of occurrence is also of no avail to the prosecution
for the reasons that neither the same has been effected from the possession of accused nor it
has been sent to Forensic Science laboratory in order to ascertain as to whether it stained with human blood or otherwise.
7. Reverting to the next contention of Mr. Yahya Baloch, learned Additional Prosecutor
General, that the deceased Mst. Khadija and Bibi Merhem were vulnerable dependents of the appellant and, thus, some part of the onus had shifted to the appellant to expl ain the
circumstances in which his wives had died unnatural deaths in his house during the fateful
night which part of the onus had not been discharged by the appellant. This contention has
also no legs to stand for the reason that the Hon'ble Supreme Court has answered the same in
the case "Asad Khan v. The State" (PLD 2017 SC 681) wherein it has been clarified that the
above -mentioned shifting of some part of the onus to the accused may not be relevant in a
case where the entire case of the prosecution it self is not reliable and where the prosecution
fails to produce any believable evidence. The relevant part whereof speaks as under:
"4. It had been held by this Court in the case of Arshad Mehmood v. The State (2005
SCMR 1524) that where a wife of a person dies an unnatural death in the house of
such person there some part of the onus lies on him to establish the circumstances in
which such unnatural death had occurred. In the later case of Saeed Ahmed v. The
State (2015 SCMR 710) the said legal position had been elaborated and it had been
held that an accused person is under some kind of an obligation to explain the
circumstances in which his vulnerable dependent had met an unnatural death within
the confines of his house; It had, however, been held in the case of Abdul Majeed v.
The State (2012 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be
convicted merely because he did not explain the circumstances in whi ch his wife or
some vulnerable dependent had lost his life. In such a case the entire burden of proof
cannot be shifted to him in that regard if the case of the prosecution itself collapses.
The present case is a case of the latter category wherein the ent ire case of the
prosecution has been found by us to be utterly unbelievable and the same stands
demolished and, thus, we cannot sustain the appellant's conviction and sentence
merely on the basis of an inference or a supposition qua his involvement."
8. In view of above discussion, we are of the view that on the basis of evidence led by
the prosecution neither any case is made out against the appellant nor conviction recorded by
the trial court is sustainable under the law. Consequently, this appeal is acce pted. The
impugned judgment dated 27.6.2019, passed by the learned Sessions Judge, Kalat in Sessions Case No.02/2019 be set aside. While extending benefit of doubt the appellant Din Muhammad son of Ghulam Mustafa is acquitted of the charge in FIR No. 17/2016, levies station, Kalat. Appellant is in custody and he shall be released forthwith if not required in any other case. These are the reasons of our short order dated 30.03.2020.
SA/59/Bal. 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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