2017 P Cr. L J 594
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
HIDAYATULLAH ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.262 of 2015, decided on 29th December, 2016.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Allegation against
accused was that he murdered his wife allegedly on account of spending an extra night with her
parents ---Ocular account was furnished by complainant and private prosecution witnesses ---
Complainant had stated that he found injuries on the head as well as on different parts of body of
his deceased daughter ---Prosecution witnesses, who had given bath to the deceased affirmed the
statement of complainant with regard to presence of injuries on the person of deceased---
Statements of the witnesses and the complainant had established the fact that none of them
(witnesses) had witnessed the crime ---Witnesses had only seen the injuries on the person of
deceased and presumed that deceased had been murdered ---Despite of the said fact, complainant
failed to report the matter to police in time ---Due to such delay in reporting the matter to police,
investigating agency could not collect any incriminating piece of evidence from the place of
occurrence i.e. blood- stained earth, blood- stained clothes of the deceased and even no recovery
of crime weapon was effected due to the fault of the complainant party ---No proceedings under
S. 174, Cr.P.C. could be carried out and the deceased wa s not examined by the Medical Officer
soon after the occurrence ---Conduct of complainant was not appealable to a prudent mind---
Daughter of complainant was murdered in brutal manner and the murderer himself disclosed the
fact of murder, but complainant had not reacted to the same and had buried the deceased without
even making any hue and cry or pointing finger upon the accused---Naming of accused in the
fard-e-bayan along with the names of witnesses who had given bath to the deceased or that laid
the deceased in grave was doubtful, benefit of which would resolve in favour of accused---
Accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by
Trial Court.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd---Appr eciation of evidence ---Benefit of doubt ---Delay in lodging
FIR---Occurrence had taken place on 23rd September 2012---Complainant/father of the deceased
and his relatives were well aware of the fact of unnatural death of deceased and injuries so
received on the person of deceased, but despite that fact not only the complainant kept quiet, but
all the prosecution witnesses being closely related to the complainant party kept complete silence
till 18th October, 2012---Matter was reported to the police after the delay of about twenty five
days of the occurrence, when deceased had already buried without medical examination or post -
mortem---Conduct of complainant and his relatives for not reporting the matter to the police in
time had not only delayed the registrat ion of FIR for 25- days, but also the law had not been set in
motion in conducting the investigation of the case as 25- days were sufficient enough time for a
culprit to eliminate the evidence ---Circumstances suggested that possibilities of consultation and
deliberation for nominating the accused in the crime by the relatives during the intervening
period could not be ruled out, thus no implicit reliance could be placed on the version mentioned
in the FIR ---Accused was acquitted, in circumstances, by setting aside conviction and sentences
recorded by Trial Court.
(c) Criminal Procedure Code (V of 1898) ---
----S. 154---Delay in lodging FIR ---Effect ---Element of delay in registering the FIR was treated
with caution and care as there were chances to involve the innocent person in the crime.
Mst. Shehnaz alias Asma alias Rani and another v. State 2010 PCr.LJ 231 rel.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Medical
Examination ---Necessity ---Deceased was not medically examined soon after her alleged murder -
--Deceased was buried and after 45 days of her burial, her dead body was exhumed in presence
of Judicial Magistrate --- Deceased was thereafter examined by two doctors ---Statements of both
the doc tors/witnesses showed that dead body of deceased was putrefied ---Immediate medical
examination of the deceased was necessary to corroborate the medical evidence with the ocular
testimony of witnesses, who allegedly seen the injuries on the person of the de ceased at the time
of giving bath to her ---After lapse of considerable long period and due to petrification, most of
the wounds were not visible ---Medical testimony was absolutely in conflict with the ocular
evidence ---Accused was acquitted, in circumstances, by setting aside conviction and sentences
recorded by Trial Court.
(e) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd--- Appreciation of evidence--- Judicial confession before Magistrate,
recording of ---Violation of procedure by Magistrate while recording of confession ---Evidentiary
value ---Confessional statement of accused was recorded after 13 -days of the arrest of the
accused ---Longer the police custody of accused, lesser was the evidentiary value of his
confession---Record showed that Judi cial Magistrate had not turned out all the persons from the
court room at the time of recording the confessional statement of the accused ---Reader of the
court was present in the Court Room, whereas defence had alleged that said Reader was close
relative o f the complainant party, thus violation had been committed by Judicial Magistrate in
recording the confession of accused ---Contents of said confessional statement did not
corroborate with other pieces of evidence ---Accused was acquitted, in circumstances, by setting
aside conviction and sentences recorded by Trial Court.
Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.
(f) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd--- Appreciation of evidence ---Benefit of doubt ---Record showed that
infirmities a nd discrepancies in the case of prosecution were found---Judgment reflected that the
same was result of mis -reading and non- reading of evidence available on record ---Facts and
circumstances of the case had created doubts in the case of prosecution--- Prosecution had failed
to prove the charge against the accused beyond any shadow of doubt ---Accused was acquitted, in
circumstances, by setting aside conviction and sentences recorded by Trial Court.
Abdullah Khan Kakar for Appellant.
Abdul Latif Kakar, Addit ional Prosecutor General for Respondent.
Date of hearing: 15th December, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.262 of
2015 filed by the appellant Hidayatullah son of Abdul Shakoor, against the judgment dated 20th
August, 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions
Judge Pishin (hereinafter referred as, "the trial Court"), whereby the appellant was convicted
under section 316, P.P.C. and sentenced to suffer twenty (20) y ears' R.I. and to pay Diyat amount
of Rs.10,00,000/ - to the legal heirs of deceased, with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 19th October, 2012 the complainant Muhammad Azeem son
of Muhammad Jan Kakar lodged FIR No.26/20 12 at Levies Station Barshore district Pishin
under section 302, P.P.C. stating therein that about one year and nine months back, the second
marriage of accused -appellant was solemnized with Mst. Zarina; that Mst. Zarina with
permission of her husband (acc used/appellant) came to her parents' house, but spent a night more
in her parents' house, hence on her return the accused- appellant beaten her with stick/pipe on the
pretext as to why she spent a night more in her parents' house, due to which she died; tha t at the
time of giving bath to deceased by Bibi Maryam, Bakht Bibi, Moura and Bibi Feroza, they found
injuries on the head of deceased. It is further averred that even at the time of funeral/burial
Muhammad Yousaf Naik Muhammad, Niaz Muhammad, Abdullah, M uhammad Naeem had
seen blood stains on the head side of Kafan. The uncle of deceased had also fought with the
brother of accused Hidayatullah at the time of funeral/burial of deceased, but they were removed
by Mehmood and Niaz Muhammad.
3. In pursuance of above FIR, investigation was entrusted to PW - 12 Hameedullah, Naib
Risaldar, who during investigation inspected the site and prepared site map; recorded the
statements of witnesses under section 161, Cr.P.C.; arrested the accused Hidayatull ah on 23rd
October, 2012; exhumed the dead body of deceased from grave under the supervision of Judicial
Magistrate and got conducted post mortem of deceased; obtained post mortem report; got
recorded the confessional statement of appellant under section 1 64, Cr.P.C. and on completion of
investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced seven (15) witnesses. The appellant was examined
under section 342, Cr.P.C. The appellant also recorded his statement on oath under section
340(2), Cr.P.C., but has not produced any witness in his defence. On conclusion of the trial, the
trial Court convicted and sentenced the appellant as mentioned in para -1 above, whereafter
instant appeal has been filed.
5. Learned counsel fo r appellant stated that the FIR has been lodged after delay of 25 -days
without any plausible or justifiable reasons; that the appellant has been involved in the case on
the basis of mere assumptions and presumptions and no direct evidence is available on r ecord
connecting the appellant with the commission of crime; that the retracted confessional statement
of the appellant was recorded after 13- days of his arrest and even the required legal formalities
were not observed whilst recording the same, thus the s ame has lost its evidentiary value; that the
prosecution has failed to effect the recovery of crime weapon; that all the prosecution witnesses
made contradictory statements to each -others and even made dishonest improvements to their
earlier deposition; th at the impugned judgment is result of misreading and mis -appreciation of
material available on record.
6. On the other hand, the learned Additional P.G. while supporting the impugned judgment
contended that the prosecution has proved the case against the a ppellant beyond any shadow of
doubt; that the case of prosecution is supported by medical evidence along with ocular testimony
and the confessional statement of the appellant; that the impugned judgment has been delivered
after proper appraisal of material available on record and the same is not open for any
interference by this Court.
7. Heard the learned counsel and perused the available record. Record reveals that the case
has been registered on the complaint of PW -1 Muhammad Azeem, who is the father of deceased
Bibi Zarina. According to the complainant, his daughter had come to his house for attending
marriage ceremony for four days, but spent five days and thereafter returned to her house. On
23rd September, 2012 at about 11.00 a.m. he received an infor mation that his daughter Zarina
has died, hence on such information he proceeded to the house of appellant, where the appellant
himself disclosed that since his daughter had spent a day more to his house, therefore, he killed
her by hitting on her head wit h Danda/stick and pipe, due to which she received injuries on her
head. PW -1 further stated that he saw his daughter and found injuries on her head as well as on
different parts of body. PW -1 stated that the deceased was given bath by PW -4 Bibi Maryam,
PW-10 Bakht Bibi and PW 15 Bibi Feroza. The ladies appeared in the Court and affirmed the
statements of PW -1 with regard to presence of injuries on the person of deceased Zarina. PW -1
in his fard -e-bayan mentioned the names of persons, who allegedly seen blood stains on the head
of deceased namely PW -2 Muhammad Yousaf, PW -3 Naik Muhammad, PW -7 Niaz
Muhammad, PW -8 Abdullah, and PW -13 Muhammad Naeem. All the witnesses appeared in the
Court and stated about the injuries received by the deceased and the quarrel to ok place in
graveyard in between the brother of appellant and the uncle of deceased. PW -1 further stated that
the uncle of deceased quarreled with the brother of appellant Janan in graveyard, but the
inhabitants namely PW -7 Niaz Muhammad and Mehmood intervened and it was agreed that at
the first instance to bury the deceased and thereafter the matter will be decided during Fateha.
8. The statements of all the above referred witnesses including the statement of complainant
has established the fact that none of them had directly witnessed the crime rather they only saw
injuries on the person of deceased and presumed that the deceased was murdered. Furthermore,
according to prosecution story on the day of occurrence i.e. 23rd September, 2012 the
complainant/PW -1 and his relatives were well aware of the fact of unnatural death of deceased
and the injuries so received on the person of deceased, but despite such fact not only the
complainant being the father of deceased kept mum, but all the above referred remaining
witnesses being closely related to the complainant party also kept complete silence till 18th
October, 2012 and the matter was reported to the police after delay of about 25- days of the
occurrence, when the deceased had already buried without medical examination or post -mortem.
The conduct of the complainant being father of the deceased and his relatives for not reporting
the matter to the police in time has not only delayed the registration of FIR for 25 -days, but also
the criminal law has not been set i n motion in conducting the investigation of the case properly
as 25 -days is sufficient enough time for a culprit to eliminate the evidences. Due to delay so
occasioned in reporting the matter, the investigating agency could not collect any incriminatory
piece of evidence from the place of occurrence i.e. blood stained earth; blood stained clothes of
deceased and even no recovery of crime weapon was effected due to fault of the complainant
party. Besides, no proceeding under section 174, Cr.P.C. could be car ried out and the deceased
was also not examined by the Medical Officer soon after the occurrence. Hence, the possibilities
of consultation and deliberation for nominating the appellant in the crime by the relatives during
the intervening period is not rule d out of consideration. The element of delay in registering the
FIR is treated with caution and care as there are chances to involve the innocent persons in the
crime. The Hon'ble Federal Shariat Court in case titled Mst. Shehnaz alias Asma alias Rani and
another v. State, reported in 2010 PCr.LJ 231, has held as under:
"23. It is, therefore, clear that registration of crime report precedes initiation of
investigation. In other words registration of first information report is a condition
precedent to the l aunching of the investigation. Such a measure would rule out the
possibility of deliberation, consultation and enquiry, before furnishing the information.
The element of delay in lodging the crime report is treated with caution because there is a
tendency to involve innocent people during the interval. The longer the intermission the
greater are the chances of false implication. Investigation that follows the registration of a
crime report has more value than the investigation which precedes registration of FIR. It,
therefore, means that ordinarily there can be no investigation in a cognizable case without
first registering the crime report. Having registered the case the police officer can proceed
with the investigation without a formal permission from the Court which has the
territorial jurisdiction to try that case."
9. Furthermore, the conduct of the complainant being father of the deceased is unnatural, it
is not appealable to a prudent mind that once innocent daughter has been murdered in brutal
manner and the murderer himself disclosing the fact of murder, but the complainant/PW -1 has
not reacted to the same and simply he along with the murderer of his daughter and other relatives
have buried the deceased without even making any hue and cries or pointing finger upon the
appellant. The naming of the appellant in the fard- e-bayan along with the names of witnesses
who had given bath to the deceased or that laid the deceased in grave is absolutely doubtful. The
narration of fard -e-bayan itself is suggestive of the fact that the same has been prepared after due
consultation and deliberation. Hence, no implicit reliance could either be placed on the
statements of complainant or the remaining witnesses, who are closely related to each other.
10. It has come on r ecord that the deceased was not medically examined soon after her
alleged murder rather she was buried and after 45 -days of her burial her dead body was exhumed
in presence of Judicial Magistrate and thereafter she was examined by PW -5 Dr. Aisha Faiz and
PW-6 Dr. Ghulam Haider. According to statements of both the witnesses the dead body of
deceased was putrefied. The immediate medical examination of the deceased was necessary to
corroborate the medical evidence with the ocular testimony of witnesses, who al legedly seen
injuries on the person of the deceased at the time of giving bath to her, but this has not been done
so rather the post mortem of deceased was conducted after 45 -days of her alleged murder and in
this manner after lapse of considerable long pe riod and due to petrification the most of the
wounds were not visible, hence the medical testimony is absolutely in conflict with the ocular
evidence.
11. Now adverting to the confessional statement of the appellant under section 164, Cr.P.C.,
perusal of w hich disclose the fact that the same was recorded after 13 -days of the arrest of the
appellant. Admittedly, the longer the police custody of an accused, lesser is the evidentiary value
of his confession. Even otherwise, it has come on record that PW -11 Asm a Mushtaq, Judicial
Magistrate, has not turned out all the persons from the Court Room at the time of recording the
confessional statement rather one Naseebullah, Reader, was present in the Court Room, whereas
the defence has alleged that the said person w as the close relative of the complainant party. Even
otherwise, the contents of such statement do not corroborate with other piece of evidence.
Reliance is placed to the case of Azeem Khan v. Mujahid Khan, 2016 SCMR 274. Relevant
portion thereof reads as u nder:
"15. Keeping in view the High Court Rules, laying down a binding procedure for taking
required precautions and observing the requirements of the provision of section 364 read
with section 164, Cr.P.C. by now it has become a trite law that before recording
confession and that too in crimes entailing capital punishment, the Recording Magistrate
has to essentially observe all these mandatory precautions. The fundamental logic behind
the same is that, all signs of fear inculcated by the Investigating Agen cy in the mind of
the accused are to be shedded out and he is to be provided full assurance that in case he is
not guilty or is not making a confession voluntarily then in that case, he would not be
handed over back to the police. Thereafter, sufficient ti me for reflection is to be given
after the first warning is administered. At the expiry of that time, Recording Magistrate
has to administer the second warning and the accused shall be assured that now he was in
the safe hands. All police officials whether in uniform or otherwise, including Naib Court
attached to the Court must be kept outside the Court and beyond the view of the accused.
After observing all these legal requirements if the accused person is willing to confess,
then all required questions formulated by the High Court Rules should be put to him and
the answers given, be recorded in the words spoken by him. The statement of accused be
recorded by the Magistrate with his own hand and in case there is a genuine compelling
reason then, a special n ote is to be given that the same was dictated to a responsible
official of the Court like Stenographer or Reader and oath shall also be administered to
such official that he would correctly type or write the true and correct version, the
accused stated and dictated by the Magistrate. In case, the accused is illiterate, the
confession he makes, if recorded in another language i.e. Urdu or English then, after its
completion, the same be read -over and explained to him in the language, the accused
fully underst and and thereafter a certificate, as required under section 364, Cr.P.C. with
regard to these proceedings be given by the Magistrate under his seal and signatures and
the accused shall be sent to jail on judicial remand and during this process at no occasi on
he shall be handed over to any police official/officer whether he is Naib Court wearing
police uniform, or any other police official/officer, because such careless dispensation
would considerably diminish the voluntary nature of the confession, made by the
accused."
12. The reappraisal of the evidence reveals of infirmities and discrepancies in the case of
prosecution. The perusal of impugned judgment reflects that the same is result of mis -reading
and mis -appreciation of evidence available on record. The facts and circumstances of the case
have created doubts in the case of the prosecution. The prosecution has miserably failed to prove
the charge against the appellant beyond any shadow of doubt.
For the above reasons, the appeal is accepted. The impugne d judgment dated 20th
August, 2015 passed by the learned Sessions Judge Pishin is set aside and the appellant
Hidayatullah son of Abdul Shakoor, is acquitted of the charge under section 302(b), P.P.C. in
FIR No.26/2012 at Levies Station Barshore district P ishin. The appellant being in custody, is
ordered to be released forthwith, if not required in any other case.
JK/17/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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