2022 P Cr. L J 1126
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
NOOR AHMED alias AHMED AGHA ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 354 and Murder Reference No. 19 of 2019, decided on 15th March,
2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence --- Benefit of
doubt --- Circumstantial evidence---Scope ---Accused was charged for committing murder of
the brother of complainant ---Record showed that on 26.03.2019 at about 5:30 to 6:00 p.m.,
the victim left with the accused in order to collect his outstanding amount---At about 7:19 p.m., the victim informed the witness about the purpose of leaving with the accused and instructed him to attend his shop---Thereafter victim neither contacted with said witness nor
came back ---On 27.03.2019, the officials of levies thana informed the complainant that the
dead body of his brother/deceased was found--- Complainant reached the hospital and there
he found the dead body of his brother/deceased--- Complainant suspected that his brother had
been murdered by the accused---Witness stated in his statement that on 26.03.2019, he contacted the deceased through telephone at 5:30 to 6:00 p.m., who told him t hat he was
going to collect his outstanding amount to accused and on the next date he knew that the murder of the deceased had been committed ---Another witness stated in his statement that on
26.03.2019 at 7:30 p.m., the deceased called him through mobile phone and told that he was going to collect his outstanding amount from accused and further told that accused was not trustworthy ---On the next day he knew about the murder of the deceased having been
committed ---None of the said witnesses stated a single word in their statement, either they
had seen the accused with the deceased on 26.03.2019, and they only stated that they contacted the deceased through mobile phone who told them that he was going to collect his outstanding amount from accused ---Statement s of witnesses were not found up to the mark---
Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt ---Appeal against conviction was allowed, in
circumstances.
Imran alias Dolay v. The State and others 2015 SCMR 155; Azeem Khan and another
v. Mujahid Khan and others 2016 SCMR 274 and Naheed Akhtar v. The State 2015 YLR 1279 rel.
(b) Criminal trial ---
----Confession, retraction of ---Scope ---Retracted judicial confession could be made the basis
for awarding conviction and sentence, however, if the case was merely based on the
circumstantial evidence, then the judicial confession must be corroborated by unimpeachable, independent evidence, particularly, in a case where the accused had to be held responsible for the capital charge.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Criminal Procedure Code (V of 1898), S. 164--- Qatl-i-amd, common
intention--- Appreciation of evidence ---Confessional statement of accused---Infirmities ---
Accused was charged for committing murder of the brother of complainant ---Judicial
Magistrate while recording statement and issuing certificate had not given sufficient time for reflection before recording statement under S. 164, Cr.P.C., as it was incumbent upon her to have had given sufficient time of reflection---Judicial Magistrate did not state a single word in her statement that she had given sufficient time of reflection ---Judicial Magistrate failed to
observe the pre -cautions held to be necessary before r ecording confessional statement ---
Certificate issued by her as envisaged under S. 364(2), Cr.P.C., lacked the time of reflection---Said facts and circumstances had not only made the statement of the Judicial Magistrate unreliable but worthy of no credence too; as such, no explicit reliance could be placed
thereupon--- Perusal of the confessional statement showed that Questions put to the maker
and certificate did not suggest that handcuffs of the confessor were removed prior to making a confession ---Judicial Magistrate did not state a single word in her statement that either she
removed the handcuffs of the accused while recording the statement ---Statement under S.
164, Cr.P.C., of the accused, the same could not be said as voluntary and appeared to be inadmi ssible in the eye of law as the Judicial Magistrate, in cross -examination, had admitted
that the accused gave his judicial confession on oath and that oath administered to the accused was violative of S. 5 of the Oaths Act, 1873 ---Confession, therefore, wa s recorded in
contravention of S. 5 of the Oaths Act, 1873--- Circumstances established that the prosecution
had failed to prove its case against the accused beyond any shadow of doubt --- Appeal
against conviction was allowed, in circumstances.
Gulab Khan and another v. The State PLD 1971 Kar. 299; Muhammad Bakhsh v. The
State PLD 1956 SC (Pak) 420; Azeem Khan v. Mujahid Khan and another 2016 SCMR 274; Muhammad Parvez and others v. The State 2007 SCMR 670; Muhammad Ali v. The State 2008 PCr.LJ 87 and M uhammad Yousuf v. The State 1995 SCMR 351 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Criminal Procedure Code (V of 1898), S. 164--- Qatl-i-amd, common
intention--- Appreciation of evidence ---Delay of fifteen days in recording the confessional
statement of accused ---Effect ---Accused was charged for committing murder of the brother
of complainant ---Record showed that accused was produced before the Judicial Magistrate,
fifteen days after his arrest for recording his statement under S. 164, Cr.P. C.---Such delay
had not plausibly been explained by the prosecution, which had highly injured its credibility, and the same could not be accepted as confidence inspiring against the accused ---
Circumstances established that the prosecution had failed to pro ve its case against the
accused beyond any shadow of doubt ---Appeal against conviction was allowed, in
circumstances.
Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003
SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Pato and another v. The
State 2012 MLD 1358 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Recovery
of weapon of offence on the pointation of accused and crime empties ---Reliance--- Scope---
Accused was charged for committing murder of the brother of complainant ---Another
circumstantial piece of evidence relied upon by the Trial Court was the recovery of .30 bore
pistol allegedly recovered from the place of occurrence on the pointation of the accused ---
Prosecution case was that during the course of the investigation, the accused disclosed about
the occurrence and on his pointation .30 bore pistol along with two magazines and two live cartridges were recovered near the place of occurrence--- Pistol recovered from near the place
of occurrence, i.e., pond of rainy water on the pointation of accused was inconsequential ---
Facts remained that there was a positive ballistic report (which was not exhibited in the case) and the same was placed on the record by the Investigation Officer in the case of 13- E of
Arms Ordinance, 1965 against the accused before the Trial Court ---In the present case, it was
obligatory upon the Investigating Officer to have had sent the two crime empties recovered from the crime scene as soon as possible/without any delay to the Forensic Science Laboratory without waiting for the recovery of the crime weapon---Record showed that the crime empties were secured from the crime scene on the day of the murder of the deceased
but re tained the same in its possession, whereas the crime weapon allegedly recovered on the
next day, whereafter the empties and alleged crime weapon were sent together along with two empties to the Forensic Science Laboratory for ballistic analysis, which had diminished its evidentiary value because it gave rise to manipulation and padding---Investigating Officer sent the said parcels on 01.04.2019, whereof question arose that in between such period of time, commencing from 28.03.2019 up till 01.04.2019, where the said parcel of the empties and pistol were kept lying, creating suspicion into the recovery itself ---Prosecution had failed
to offer an explanation to such effect, therefore, the entire proceedings had become dubious --
-Neither the alleged recovered pis tol nor empties and report of firearm expert were produced
before the Trial Court ---Circumstances established that the prosecution had failed to prove
its case against the accused beyond any shadow of doubt ---Appeal against conviction was
allowed, in circu mstances.
Naqeebullah and others v. The State 2020 MLD 1492 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Call Data
Record ---Scope ---Accused was charged for committing murder of the brother of
complainant ---Investigating Authority had taken into possession the CDR data of the
deceased's mobile and there was nothing on record in respect of the CDR of the accused who
had not called the deceased, further, it was not clarified as to whether the
telephone/SIMNumber was in the name of the deceased and accused, as the same fact had not been established through the record--- Even assuming the location of the mobile of both
the accused and deceased in the same area on 26.03.2019 might be for othe r reason and not
for the offence; therefore, just by placing mobile data on the record would hardly be of any
use to the prosecution--- CDR produced and relied by the prosecution was neither attested nor
signed by the issuing authority, nor any witness was either associated during the
investigation nor produced before the court, thus also could not be relied on as a valid piece of evidence ---Circumstances established that the prosecution had failed to prove its case
against the accused beyond any shadow of doubt ---Appeal against conviction was allowed, in
circumstances.
(g) Criminal trial ---
----Medical evidence--- Scope ---Medical evidence was only confirmatory or supporting in
nature and was never held to be corroboratory evidence to identify the culprits.
(h) Criminal trial ---
----Evidence ---Corroboration--- Principle ---One tainted piece of evidence could not
corroborate another tainted piece of evidence.
Muhammad Mansha v. The State 2018 SCMR 772 rel.
Sarwar Khan Kakar and Muhammad Khalid Kakar for Appel lant (in Criminal Appeal
No. 354 of 2019).
Muhammad Saleem Lashari, Kamal Khan Kakar and Waleed Baloch for the
Complainant (in Criminal Appeal No. 354 and Murder Reference No. 19 of 2019).
Mrs. Noor Jahan Kahoor, Additional Prosecutor General for the Sta te (in Criminal
Appeal No. 354 and Murder Reference No. 19 of 2019).
Sarwar Khan Kakar and Muhammad Khalid Kakar for Accused (in Murder Reference
No. 19 of 2019).
Date of hearing: 8th March, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant Noor Ahmed alias Ahmed Agha, son
of Para Din, had allegedly committed the murder of Syed Muhammad Shahid, brother of the complainant Syed Zulfiqar Ali son of Syed Badar -ud-Din on 26.03.2019 at 8:10 p.m., near
Shadezai Saranan Phattak by way of firing. For the commission of the said offence, he was booked in case FIR No.10 of 2019 registered at Levies Thana Saranan District Pishin on 27.03.2019 at 9:15 a.m. After a regular trial, the appellant was convicted vide judgment
dated 25.09.2019 ("here inafter the "impugned judgment") passed by Court of Model
Criminal Trial Court/Additional Sessions Judge, Pishin, ("hereinafter the "trial Court") of the
charge under section 302(b), P.P.C. and was sentenced to death as Tazir and to pay compensation of Rs.2,00,000/ - (Rupees Two Lac Only) to the legal heirs of deceased.
Besides the instant appeal, a Murder Reference No.19 of 2019 has also been sent by the
learned trial court. These are being decided through this single judgment.
2. We have heard the learned counsel for the appellant as well as the learned Additional
Prosecutor General ("APG") duly assisted by the learned counsel for the complainant and
have gone through the record with their valuable assistance. It has been argued by the learned counsel for t he appellant that the impugned judgment suffers from misreading and non-
reading of evidence; that the incident is unseen and there is no direct evidence connecting the appellant towards the commission of offence; that the alleged recovered pistol has been dispatched for analysis with unexplained delay; that there is contradiction amongst the statements of prosecution witnesses; that the statement under section 164, Cr.P.C., of the accused/appellant was recorded by Judicial Magistrate on oath with delay of 15 days without any explanation; that there is no incriminating evidence available against the accused/appellant with the commission of offence; that there are material irregularities and
illegalities in the impugned judgment, which is liable to be set asid e. He lastly urged for
acquittal of the appellant.
3. Conversely, learned counsel for the complainant, assisted by the learned State
counsel, strongly opposed the contention of learned counsel for the appellant and contended
that the prosecution has succes sfully proved its case against the appellant through
confidence -inspiring evidence; that the appellant has admitted his guilt by recording his
confession statement before the Judicial Magistrate; that the prosecution has produced sufficient incriminating e vidence against the appellant and the learned trial court has rightly
convicted the appellant for commission of the offence. He lastly urged for dismissal of the appeal.
4. After cautious analysis of the evidence on record and considering the pros and cons so
put forth by the learned counsel for the parties, we have gathered that the prosecution's entire case rests upon the circumstantial evidence. The unfortunate episode of murder of a young man of 26 years for no valuable purpose is a drastic and unbearab le trauma, having a
stigmatic effect upon his family members and society. However, the courts have to decide the fate of a crime committed by a felon on the basis of impeachable evidence and not at the cost of emotions.
5. The record transpires that no one came forward to furnish ocular accounts to 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) on the pointation of the
accused/ appellant from the place of occurrence, confession statement of the accused/appellant, Call Data Record (DCR) and circumstantial evidence in the shape of last wearing cloth of deceased, recovery of bullet empties, bloodstained earth from the place of
occurrence and medical evidence. As such, the circumstantial evidence brought forward needs to be scanned and appreciated on the yardsticks enumerated by the Apex Courts
through various judgments reported in the cases of Imran alias Dolay v. The S tate and others
(2015 SCMR 155), Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274)
and Naheed Akhtar v. The State (2015 YLR 1279).
6. In view of the reported judgments referred hereinabove, we have derived that the
circumstantial evidence r equires to be appreciated on the dictum that in such like matters,
while appreciating the evidence and holding an accused guilty of the charge, the facts of the case must be consistent with guilt of the accused, chain of evidence must be complete in all respects leaving no reasonable ground about the innocence of the accused. The suspicious,
however, strong, cannot be given preference upon the proof. The chain of events shall not break, which must be conclusive beyond any shadow of a doubt.
7. The occurrenc e, in this case had taken place on 26.03.2019 at 8:10 p.m., at an open
place, i.e., near Shadezai Saranan Phattak. The appellant has been nominated in the FIR, on the basis of suspicion. The prosecution case is founded upon an application (Ex.P/1- A) of
Syed Zulfiqar (PW -1) received by the Tehsildar Saranan on 27.03.2019 at 9:10 a.m., at
Levies Thana Saranan District Pishin, which was culminated in the formal FIR (Ex.P/15 -A).
According to the complainant, his brother, namely Syed Muhammad Shahid (deceased) w as
running a business of mobile accessories, on 25.03.2019 Noor Ahmed Agha (accused/appellant) entered in a business transaction with the victim and purchased mobile accessories of Rs.9,99,850/ -. The accused informed the victim that he was purchasing these
accessories for running a separate business from his brothers. On 26.03.2019 at about 5:30 to 6:00 p.m., the victim left with the accused in order to collect his outstanding amount; at about 7:19 p.m., the victim informed Syed Najeebullah (PW -2) about the purpose of leaving
with the accused and instructed him to attend his shop; thereafter victim neither contacted
with Najeebullah nor came back. On 27.03.2019, the officials of levies thana Saranan informed him that the death body of his brother Syed Muhamm ad Shahid (deceased) was
found in the area of Saranan. He reached to civil hospital Pishin, and there he found the death body of his brother (deceased). In such circumstances, he suspected that his brother had been murdered by the accused/appellant, namely Noor Ahmed Agha. PW -2 Syed Najeebullah
stated in his statement that on 26.03.2019, he contacted the deceased Syed Muhammad Shahid through telephone at 5:30 to 6:00 p.m., who told him that he is going to collect his outstanding amount to Noor Ahmed Agha an d on the next date he knew that the murder of
the deceased had been committed at the area of Saranan. Muhammad Huzaifa (PW- 3) stated
in his statement that on 26.03.2019 at 7:30 p.m., the deceased called him through mobile phone and told that he is going to collect his outstanding amount from Syed Noor Ahmed and
further told that Syed Noor Ahmed was not trustworthy, on the next date, i.e., 27.03.2019 he knew about the murder of the deceased Syed Muhammad Shahid has been committed at Shadezai Saranan Phattak.
8. None of the above witnesses stated a single word in their statements; either they saw
the accused/appellant with the deceased on 26.03.2019, and they only stated that they contacted the deceased through mobile phone who told them that he is going to co llect his
outstanding amount from Syed Noor Ahmed Agha at Saranan. Unfortunately, after due care and anxious analysis of their statements, we failed to find them up to the mark.
9. The complainant (PW -1), (PW -2) and (PW -3) were trying to involve the accuse d on
the basis that "the accused/appellant entered into a business transaction with the victim and
when the victim went to Saranan to collect his outstanding amount from the appellant, and the appellant committed the murder of the deceased. On the other ha nd, allegedly, the
accused/appellant got recorded his confessional statement under section 164, Cr.P.C., and
later on, the same was retracted during the trial. In his confessional statement the
accused/appellant stated that his wife is an illicit term with the deceased, which is why he
committed the murder of the deceased Syed Muhammad Shahid.
10. Having given our anxious consideration to the foregoing background of the matter of
the murder of the deceased contained in the FIR, as well as in view of the sta tements of the
prosecution witnesses on the one hand and the retracted confession of the appellant on the
other, it has been observed that there are two sets of evidence on record. The first set of evidence, as already discussed, consists of FIR, court sta tements of the complainant, PW -2
and PW -3, and the second and crucial set of evidence consists of the confessional statement
of the appellant before the Judicial Magistrate -II, Pishin, recorded under section 164, Cr.P.C.
The statement of the appellant reco rded under section 164, Cr.P.C., has not corroborated with
the FIR as well as the statement of the complainant (PW- 1) and so- called witnesses.
11. The prosecution has mulled upon the retracted confessional statement of the
appellant, maintaining that it ca n solely be based on holding the appellant guilty of the
charge. There is no cavil in the proposition that the retracted judicial confession can be made the basis for awarding conviction and sentence but to be on the 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.
12. The touchstone of a judicial confession can be tested on the following points: -
"(a) Volun tarily 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."
13. Perusal of the evidence, the prosecution produced PW -11, Mst. Zi l-e-Huma (Judicial
Magistrate -II, Pishin) reveals that the appellant Noor Ahmed alias Ahmed Agha was
produced before her on 11.04.2019, who recorded his confessional statement. Keeping in view the yardstick, evidence of learned Judicial Magistrate (PW- 11) and confessional
statement (Ex.P/11 -B) of the appellant Noor Ahmed alias Ahmed Agha has to be scanned.
The maker of confession was arrested on 27.03.2019, while confession was recorded on 11.04.2019. There is a delay of fifteen days in recording the confes sional statement of the
accused effect of which has to be determined, keeping in view the facts and circumstances of the case.
14. Coming to the voluntariness of the judicial confession, allegedly made by the
appellant Noor Ahmed alias Ahmed Agha, we have cautiously examined the testimony of
Mst. Zil -e-Huma (PW- 11) Judicial Magistrate -II, Pishin, and perused the aforesaid
questionnaire, confessional statement and certificate. The Mst. Zil -e-Huma (PW -11), the then
Judicial Magistrate -II, Pishin, while recor ding statement and issuing of the certificate has not
given sufficient time for reflection before recording statement under section 164, Cr.P.C., as
it was incumbent upon her to have had given sufficient time of reflection with three intervals,
henceforth by not doing so. The (PW -11) did not state a single word in her statement that
either she has given sufficient time of reflection. The (PW- 11) failed to observe the pre -
cautions held to be necessary before recording a confessional statement. Moreover, the certificate (Ex.P/11 -B) issued by her as envisaged under section 364 (2) Cr.P.C., lacks the
time of reflection.
15. The above facts and circumstances have not only made the statement of Mst. Zil -e-
Huma (PW -11), the then Judicial Magistrate -II, Pishin, unre liable 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. Mst. Zil -e-Huma (PW-11), the then Judicial Magistrate -II, Pishin,
stated during cross -examination that;
16. When the accused/appellant allegedly got a recorded statement under section 164,
Cr.P.C., he was shifted to judicial lockup, and his brother filed an application before the Judicial Magistrate -II, Pishin, for a medical check -up of the appellant. The learned Judicial
Magistrate -II, Pishin, allowed the said application and on the basis of said application, the
accused/appellant was examined by Dr. Abdul N aeem, Medical Superintendent District
Headquarter Hospital, Pishin, and the Medical Superintendent was produced by the accused before the court as DW -3, who produced certificate (DOC -12) i.e., medical certificate dated
17.04.2019, according to which follow ing injuries were found on the person of
accused/appellant.
1. Large bruises covering both buttocks bluish black in color (aging about 3- 4 days).
2. Bladder is tender and patient complains of burning urination for 3- 4 days.
17. The statement of the then Ju dicial Magistrate -II, Pishin, and medical certificate
(DOC -12) shows that the appellant was subjected to torture. Torture by the police even on
the first day casts serious doubt about the voluntariness of the confession. Admittedly, a questionnaire of 164, Cr.P.C., the appellant did not state to the then Judicial Magistrate -II,
Pishin, about torture, but subsequently, when he was in judicial lock- up. He filed an
application before the then Judicial Magistrate -II, Pishin. Re -action of all persons in such
eventualities will not be the 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 submits to the
desire and dictate of the person in authority. The confession statement of the appellant was not voluntarily, and the same was recorded due to torture and create a serious doubt about the voluntariness of the confession.
18. Perusal of t he confessional statement (Ex.P/11- B) questions put to the maker and
certificate (Ex.P/11 -B) do not suggest that handcuffs of the confessor were removed prior to
making a confession. The Judicial Magistrate did not state a single word in her statement that
either she removed the handcuffs of the appellant while recording the statement. It has been stated earlier that the appellant was arrested on 27.03.2019; he was produced before the learned Judicial Magistrate on 11.04.2019, i.e, fifteen days after his ar rest 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 the same cannot be accepted as confidence inspiring against the appellant. Reliance is placed 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 Pato and another v. The State 2012 MLD 1358.
19. On perusal o f statement under section 164, Cr.P.C., of the accused/appellant, the same
could not be said as voluntarily and appears to be inadmissible in the eye of law as the learned Judicial Magistrate- II, Pishin, (PW -11), in cross -examination, has admitted that the
accused/appellant gave his judicial confession on oath and this oath administered to the accused is violative of section 5 of the Oaths Act, 1873 (hereinafter "the Act"). Confession is recorded in contravention of section 5 of the Oaths Act, and in this r egard, we are supported
with the case of Gulab Khan and another v. The State (PLD 1971 Karachi 299). In this authority, it has been held as under: -
"Statement purporting to be confession reciting that accused after administration of warnings was asked to give statement which he believed to be true before God -
Confession, held, recorded on oath notwithstanding its being administered in a way different from one followed when examining witness and hence irrelevant".
20. The question as to what is the effect of the administering oath to an accused before
his confessional statement is recorded came up for consideration before the Hon'ble Supreme Court, in the case of Muhammad Bakhsh v. The State (PLD 1956 SC (Pak) 420), wherein after considering the provision of sections 342 and 164 Cr.P.C. Section 5 of the Oaths Act
and sections 24 and 132 of the Evidence Act, has observed: -
"The administration to him of an oath or affirmation is thus opposed to public policy and any infringement of the provision prohibiting the Court from putting him under
oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel. We have, therefore, no doubt that the statement under section 164 of the Criminal P.C., was obtained from the prisoner in an illegal manner and that its rejection must follow as a matter of course from that illegality".
21. The confession should be recorded in the manner provided for a statement of an
accused and not in the manner provided for recording evidence. If it is recorded in the
manner provided for recording evidence by administering the oath, then it loses its character insofar the maker is concerned. The fact of administering oath at the recording of confession virtually means that the maker is compelled to give evidence against him, placing him in the status of a witness at the stage of the investigation, in violation of Article 13(b) of the
Constitution of Islamic Republic of Pakistan, 1973, read with section 5 of the Oaths Act,
1873. Administering oath for recording confessi on will only mean recording evidence of the
maker for use in a subsequent stage against the maker, which is prohibited under the law.
While holding this view, we are fortified from the dictum, laid down by the Hon'ble Supreme Court, in the case of Azeem Kh an v. Mujahid Khan and another (2016 SCMR 274); wherein
after discussing in detail the precautions, required to be observed by the Magistrate, while recording the confession of an accused, has held: -
"In the instant, case, the Recording Magistrate namely, Ch. Taufiq Ahmed did not
observe least precautions, required under the law. He was so careless that the confessions of both the appellants were recorded on oath, grossly violating the law, the same therefore, has rendered the confession inadmissible which cannot be safely
relied upon keeping in view the principle of safe administration of justice".
22. Besides the aforementioned illegality, committed by the learned Judicial Magistrate -
II, Pishin, while recording the statement of the appellant under section 164, Cr.P.C.,
admittedly, the said judicial confession had been retracted by the appellant before the learned trial court, and in the absence of independent corroboration, such retracted judicial confession could not suffice all by itself for recording or upholding the appellant's
conviction.
23. The courts are always vigilant. The prosecution shall prove in all the circumstances
that the confessional statement or extract thereof was free of all kinds of coercion, threat, promise and voluntary. Retracted c onfession shall not be accepted as Gospel's truth. The
court shall carefully scrutinize such confessional statement to ascertain as to whether all the formalities required thereto of the recording of such statement were fulfilled by the court, which is recording such statement of an accused. Reliance is placed on the case of Muhammad Parvez and others v. The State (2007 SCMR 670), Muhammad Ali v. The State (2008 PCr.LJ 87). In the case of Muhammad Yousuf v. The State (1995 SCMR 351) it was held as under: -
"Section 302---Retracted confession ---Courts generally refrain from basing
conviction solely on retracted confession and have always sought for some reliable corroborative evidence regarding material particulars in the confessional statement".
24. Another circumstantial piece of evidence relied upon by the learned trial court, is the
recovery of 30 bore pistol allegedly recovered from the place of occurrence on the pointation of the appellant. As per the prosecution case on 28.03.2019, during the course of the investigation, the accused disclosed about the occurrence and on his pointation .30 bore pistol along with two magazines and two live cartridges were recovered near the place of occurrence. The recovery of pistol recovered from near the place of occurr ence, i.e., pond of
rainy water from appellant on his pointation is also inconsequential. We are conscious of the
fact that there is a positive ballistic report (which was not exhibited in the case in hand), and
the same was placed on the record by the inv estigation officer in the case of 13- E of Arms
Ordinance, 1965 against the appellant before the trial court (Ex.P/4- A) but the same has been
found to be violative of the directions of the Hon'ble Supreme Court and this court held that the recovered empties should not be retained by police and wait for the recovery of crime
weapon. It has categorically been held that sending empties and crime weapons together for
ballistic analysis makes the entire process suspicious and highly doubtful. In this case, too, i t
was obligatory upon the investigation officer to have had sent the two crime empties
recovered from the crime scene soon as possible without any delay to the FSL without waiting for the recovery of the crime weapon. Moreso, apparent from the record that the
crime empties were secured from the crime scene on 27.03.2019 on the day of the murder of the deceased but retained the same in its possession, whereas the crime weapon was allegedly recovered on 28.03.2019, whereafter the empties and alleged crime weapon were sent together along with two empties to the FSL for ballistic analysis, which has diminished its evidentiary value because it gives rise to manipulation and padding.
25. Above all, the investigating officer sent the said parcels on 01.04.2019, whereof
question arises that in between such period of time, commencing from 28.03.2019 up till
01.04.2019 where the said parcel of the empties and pistol were kept lying, creating
suspicion into the recovery itself. As the prosecution has fail ed to offer an explanation to
such effect, therefore, the entire proceedings have become dubious. This court, in the case title Naqeebullah and others v. The State (2020 MLD 1492) held that;
"Another circumstantial piece of evidence relied upon by the lea rned trial Court, is
the recovery of 8 empties of .30 bore TT pistol and 7 empties of megaroof pistol from
the spot, and two pistols, allegedly recovered from the shop of appellant Sadiqullah. As per prosecution case two pistols 30 bore bearing No.33337 an d TT pistol bearing
No.31009244 were recovered from the possession of appellant Sidiqullah on 24th May 2016, however, from the place of incident 8 empties of TT pistol and 7 empties of megaroof pistol were recovered. Both the recovered pistols and the empt ies were
sent to the Punjab Forensic Science Agency with the delay of four months, but there is no explanation in respect of the safe custody of the empties, alleged crime weapons in the Custody of the Investigating Authority. Furthermore, it is noted that the FSL
report contains the fact that the empties sent for analysis have been identified to have been fired from the .30 bore pistol and TT pistol, but astonishingly, the empties so recovered from the spot and sent to the expert were of megaroof pistol, w hich cannot
match with .30 bore pistol. It is also noted with grave concern, that the FSL report also contains an entry of 9 MM empties, but the entire record is silent about the recovery and use of such weapon, which further creates serious doubt in the prosecution version. The delay so caused in sending the recovered alleged crime
weapon for chemical analysis is unexplained and also there is no explanation in respect of the safe custody of the crime weapon within the custody of the Investigating Authority . Moreover, sending crime" empties along with alleged
recovered pistols, created a serious doubt, as why the crime empties were retained by the Investigating Officer till recovery of pistols, then sending them together has created serious doubt when possib ility of manipulation cannot be ruled out".
26. It is worthwhile to mention here that neither the alleged recovered pistol nor empties
and report of firearm expert were produced before the learned trial court as an article in this
case; however, the pistol , empties and FSL report were produced in the case of 13- E of Arms
Ordinance, 1965, which was pending before the trial court against the appellant. The pistol and magazines were produced as Article P/3 to Article P/6 in the said arm case by Allauddin,
Khas adar, was appeared as PW- 2 and during cross -examination, he stated that;
27. The statement made by the above witness during cross -examination and the alleged
pistol produced before the court is crystal clear that the pistol was not in working condition;
in such circumstance, the report of FSL produced by the prosecution in the arms case is also
doubtful.
28. Adverting to the other evidence in the shape of CDR data, it is noted that the
investigating authority has taken into possession the CDR data of the deceased's mobile, and there is nothing on record in respect of the CDR of the appellant Noor Ahmed alias Ahmed Agha who has not called the deceased. Further, it was not clarified as to whether the telephone/sim number was in the name of the deceased Syed Muhammad Shahid and accused/appellant, as the same fact has not been established through the record. Even assuming the location of the mobile of both the appellant and deceased were in the same area on 26.03.2019, that may be for other reason and not for t he offence; therefore, just by placing
mobile data on the record would hardly be of any use to the prosecution. It is also to add here
that the CDR produced and relied by the prosecution was neither attested nor signed by the issuing authority, nor any wit ness was either associated during the investigation nor
produced before the court, thus also cannot be relied on as a valid piece of evidence.
29. The unnatural death of the deceased has not been questioned; therefore, the medico
legal evidence needs not b e brought under scrutiny for it does not lead to identify or connect
the appellant the crime, particularly in the peculiar circumstances of the instant case. The Hon'ble Supreme Court of Pakistan in the case of Hashim Qasim and another v. The State (2017 S CMR 986) has held that medical evidence was only confirmatory or of supporting
nature and was never held to be corroboratory evidence to identify the culprits in this case as well the medical evidence has no corroborative value to connect the appellant wit h the crime.
In the instant case, the murder of the deceased has not disputed, and there is no eye -
witness of the occurrence; therefore, the medical evidence has no corroborative value and need not be scanned with regard to the conformity of the injuries received by the deceased.
30. Undeniably, one tainted evidence cannot corroborate the other tainted evidence, as in
this case. The Hon'ble Supreme Court of Pakistan, while extending the benefit of the doubt to the appellant in the case of Muhammad Mansha v. The State (2018 SCMR 772), observed in
the following words: -
"Needless to mention that while giving the benefit of doubt to an accused it is not
necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the case of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v.
The State (2014 SCMR 749)."
In view of the above discussion, the trial court has failed to properly analyze the
prosecution evidence, especially the confessional statement of the appellant according to the principles laid down by the Superior Courts; therefore, this appeal is allowed, the judgment
dated 25.09.2019 passed by learned Model Criminal Trial Court/Additional Sessions Judge, Pishin, is set aside, consequent upon the appellant is acquitted of the charge in FI R No.10 of
2019 dated 27.03.2019 registered under sections 302, 34, P.P.C. at Levies Thana Saranan District Pishin. The appellant is in custody. He is directed to be released forthwith if not required in any other case.
Murder Reference No.19 of 2019 is a nswered in Negative.
JK/78/Bal. Appeal allowed.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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