PLJ 2021 Cr.C. (Note) 116
[Balochistan High Court, Quetta]
Present: MUHAMMAD HASHIM KHAN KAKAR AND ABDULLAH BALOCH , JJ
MUHAMMAD JAFFAR --Appellant
versus
STATE --Respondent
Crl. A. No. 298 and M.R. No. 18 of 2015, decided on 21.10.2019.
Pakistan Penal Code, 1860 (XLV of 1860) --
----S. 302(b) --Conviction and sentence --Challenge to --Qatl -e-amd--Confessional statement --Quantum of sentence --
Confessional statement of appellant confirms that same was recorded without any coercion, pressure torture of
blackmai ling rather appellant realized his shamefaced act and due to embarrassment, he immediately agreed to
record his confessional statement --Adverting to defence plea of appellant, suffice to observe here that appellant
throughout trial has failed to take any s olid or concrete plea rather simply denied allegations and has brought on
record that due to some misunderstanding he has been booked in case, but pointation of place occurrence,
recovery of certain articles being in use of deceased, disclosure of appellan t followed by his confessional
statement as well as medical evidence are much greater than bald denial of appellant, which cannot be brushed aside in any manner --Admittedly, prosecution has succeeded in proving charge against appellant through direct,
circumstantial and medical evidence--No major contradiction or dishonest improvement has been pointed out by
defence counsel in statements of prosecution witnesses --Motive behind murders has also been established as
appellant and co -accused were fear of allegations of Siya Kari--Trial Court has discussed and dilated upon each
and every aspect of case and rightly convicted appellant --So far as quantum of sentence i.e. Capital punishment
of death is concerned, Court do not find in agreement ourselves with regard to same --Suffice to observe here that
three accused persons including appellant have been booked in crime and except appellant, both remaining accused persons are absconding, hence their pleas are yet to come on record --Besides, deceased out of her free
will and consent had kept illicit relations with appellant and absconding accused thus under these circumstances
awarding of capital punishment to appellant is unwarranted-- Appeal was dismissed. [Para 15, 16 & 17] A, C &
D
PLD 2003 SC 704 and 1995 SCMR 1793.
Confession --
----“For accepting a confession, two essential requirements must be fulfilled; first, that confession was made
voluntarily and was based on true account of facts leading to crime and, second, same was proved at trial.” Admittedly, said two essential requirements have been fulfilled in case in hand as through evidence it has not
only been established that same is voluntarily, but also it was proved at trial. [Para 15] B
2017 SCMR 986.
Mr. Obaidullah Quresh, Advocate for Appellant.
Mr. Habibullah Gul, D.P.G. for State.
Mr. Ali Ahmed Lehri, Advocate for Complainant.
Date of hearing: 23.9.2019.
J
UDGMENT
Abdullah Baloch, J. --This common judgment disposes of Criminal Appeal No. 298 of 2015 and Murder
Reference No. 18 of 2015.
The appeal has been filed by the appellant Muhammad Jaffar, against the judgment dated 16th September
2015 (hereinafter referred as, “the impugned judgment” ) passed by the learned Additional District Judge Kalat
(hereinafter referred as, “the trial Court” ), whereby the appellant was convicted and sentenced as under:
“Under Section 376(2), P.P.C, 1860 and sentenced with death on two counts for committing rape with Bibi
Nazia and Bibi Asia. The accused is further convicted under Section 302(b), P.P.C, 1860 and sentenced
with death on two counts for committing the murder of Bibi Nazia and Bibi Asia. He be hanged by the neck
till he is dead. He is also directed to pay Rs. 5,00,000/ - (Rupees five lac only) to the legal heirs of deceased
Bibi Nazia and to pay R s. 5,000,00/ - (Rupees five lac only) to the legal heirs of deceased Bibi Asia as
compensation under Section 544- A of Cr.P.C. In default of payment of fine to suffer S.I. of 02 (two) years.
The sentences so awarded shall be executed subject to confirmation by the Hon’ble High Court.”
While the Murder Reference has been made by the learned trial Court for confirmation of death sentence
awarded to the appellant or otherwise as envisaged under Section 374, P.P.C.
2. Facts of the prosecution case are that on 21s t December 2013, at about 12:15 p.m., the complainant
Imam Hassan son of Karim Dad lodged FIR No. 30/2013 at Levies Thana, Kalat, stating therein that on the said date
at about 11.00 a.m.. his tribesmen Muhammad Alim son of Shafee Muhammad and Shakar Khan son of Yar Khan
were going to Kalat for buying household articles on their motorcycles. On the said day, due to very cold weather
both Muhammad Alim and Shakar Khan stopped their motorcycles at the area of Girap Pul and burn fire to warm
themselves. In the meanwhile, they saw the dead bodies of two women lying inside the bridge. After that
Muhammad Alim and Shakar Khan came and informed him. He along with them went there and he also saw that
two dead bodies of unknown women were lying under the bridge. It l ooks that the unknown women were killed
somewhere else by unknown accused and then they threw their dead bodies to conceal their crime.
3. After registration of FIR, the investigation of the case was entrusted to PW -15 Abdul Zahoor, 1st I.O.,
who during investigation inspected the place of recovery of occurrence and prepared site plan; recorded the statements of witnesses; he took into possession one sleeper from dead bodies; prepared inquest report; shifted the
dead bodies to hospital and took pictures of dead bodies; obtained death certificates; arrested the appellant Jaffar
Khan on 16th January, 2014 and thereafter the investigation of the case was transferred to Crimes Branch Quetta and
the investigation was entrusted to PW -16 Abdul Manaf, 2nd I.O., who during investigation recorded the extra
judicial confession of the appellant and on his pointation visited the place of occurrence and recovered a Locket of
the deceased Bibi Asia, which was later on identified by the PW Muhammad Sarwar; prepared site map; recovered
different articles of the deceased from the place of occurrence; got recorded the confessional statement of appellant under Section 164, Cr.P.C. On completion of investigation, the challan was submitted in the trial Court.
4. At the trial, the p rosecution produced seventeen (16) witnesses. The appellant was examined under
Section 342, Cr.P.C. However, the appellant recorded his statement on oath under Section 340(2), Cr.P.C., however, did not produce any witness in his defence. On conclusion of t rial, the trial Court convicted and sentenced the
appellant as mentioned above in Para No. 1, whereafter he has filed the instant appeal, while the learned trial Court
has referred the murder reference.
5. Learned counsel for appellant argued that the alle ged incident is an unseen and blind murders having no
direct or indirect evidence on record connecting the appellant with the commission of crime; that no evidence has
been produced by the prosecution to establish that Zina was committed with the deceased by the appellant; that the
impugned judgment suffers from misreading, non -reading and mis -appreciation of evidence available on record; that
the medical evidence is not only in conflict with the ocular account, but also biased and prejudicial in the circum stances of the instant case; that the disclosure of appellant whilst recorded in police custody is not admissible
as evidence under Articles 38 and 39 of Qanun -e-Shahadat Order, 1984; that the prosecution has failed to establish
the recovery of articles of the deceased on the pointation of the appellant and the story with regard to the alleged
recovery is doubtful; that the evidence produced by the prosecution was not of such a nature which could have been
made basis for recording capital punishment against the appellant; that the actual culprit of the occurrence is one
“Jaffar Khan”, while the real name of appellant is “Muhammad Jaffar”, thus mistaken implication of the appellant
cannot be ruled out of consideration; that there are glaring contradictions in the statements of prosecution witnesses,
which render the case of prosecution as doubtful, but the learned trial Court has failed to extend the benefits of such
doubts to the appellant.
6. Learned Additional P.G. assisted by the learned counsel for the complainant have supported the
impugned judgment and contended that the prosecution has produced concrete, solid and unimpeachable evidence against the appellant in the shape of medical, direct and circumstantial evidence and the defence has absolutely
failed to rebut the same; that during investigation the appellant recorded his extra -judicial confession followed by
the pointation of place of occurrence and the recovery of certain articles of both the deceased and identification of
such articles by the heirs of deceased; that the appellant voluntarily and truly without any pressure or coercion had
recorded his confessional statement under Section 164, Cr.P.C.; that the case of prosecution is supported by medical
evidence and the conviction awarded to the appe llant is based upon proper appreciation of evidence by the Court
below.
7. Heard the learned counsel and perused the available record. In order to substantiate the charge, the
prosecution has produced the evidence of sixteen (16) witnesses consisting upon ocular, circumstantial and medical
evidence. Initially, the FIR was lodged on the complaint of PW -1 Imam Hassan, according to him on 21st
December, 2013 he was present in his house, when PW -8 Muhammad Alim and one Shakkar Khan informed him
about lying of t wo dead bodies of ladies under the bridge. Hence, he (PW -1) accompanied them and found the dead
bodies, whereafter he informed the Levies, they came at the site and took the dead bodies of deceased to Hospital.
PW-2, PW -3 and PW -4 are the witnesses of phot ographs of dead bodies taken at Civil Hospital Kalat as well as
recovery witness of shoes of deceased. Accordingly, PW -5 Allah Bakhsh being the father of deceased Bibi Nazia
and uncle of Bibi Asia identified the dead bodies at Civil Hospital Kalat. PW -6 Gh ulam Sarwar is the uncle of
deceased Asia, who narrated the story of missing of his niece and further stated that he identified the Locket of
deceased Asia in Crime Branch Police Station. In his cross -examination PW -6 has brought on record that the said
Locket was purchased by him for the deceased.
8. Now adverting to the statement of most important witness of prosecution, who is PW -7 Bibi Haleema
being the mother of deceased Asia. This witness has brought on record the past relations of the deceased with appellant. According to this witness her deceased daughter Asia had relations with one Jaffar, who for the last one
year had been talking with him on mobile phone, however, on getting information she refrained her, whereafter she
stopped talking with him. A ccording to this witness she along with her husband and daughter Asia came to Kohing
to the house of her brother, from where her daughter accompanied her niece Bibi Nazia and went outside, but they
did not return home. Hence, she (PW -7) went to the house of paternal Aunt of Jaffar, who on seeing them became
worried and stated that you (PW -7) should search for them and they will also do the needful. PW -7 further brought
on record that thereafter they came to know that her daughter and niece were raped and br utally murdered.
9. The statement of PW -7 is sufficient to establish the past relations of Bibi Asia with the appellant. Since,
PW-7 had already known the relations of her daughter with appellant and that’s why on missing of her daughter, she
directly went to the house of Jaffar’s Aunt to inquire about the whereabouts of her daughter and niece and according
to PW -7 the Aunt of appellant on seeing her became worried. Such assertions of PW -7 not only established the past
relations of the appellant with deceas ed Asia, but also the knowledge of both the families about such relations. Thus,
the contention of the learned counsel for the appellant that the actual culprit is “Jaffar Khan”, while the real name of
appellant is “Muhammad Jaffar”, who was booked in the crime due to some misunderstanding, is without any
substance.
10. Now adverting to medical evidence, suffice to state here that the medical examination of deceased Bibi
Nazia and Bibi Asia was carried out by PW -10 Dr. Shireen Gul, Lady Medical Officer, Dis trict Headquarter
Hospital Kalat and after examination she issued MLCs as Ex.P/10- A and Ex.PW/10- B, respectively. Perusal of
MLC of Bibi Nazia establishes the fact that Central cyanosis positive with whole neck and around the neck
Cyanosis, bruised; one forehead lacerated wound about 3x4 cm; whole body bruised on the both buttocks and lower
abdomen also lacerated and bruised and rigor mortis develop on the whole body due to cold weather and oldness of
dead bodies. PW -10 has further opined that Hymen rupture d and oozing of blood on anal region and on the Shalwar
also. Likewise, the MLC of deceased Bibi Nazia reflect that she had also received similar nature of injuries on her
person. PW -10 has opined the cause of death as suffocation and strangulation while t he private parts of both
deceased shows that they were subjected to forcible sexual intercourse and raped from both sides. PW -15 Abdul
Zahoor, 1st I.O. also examined the dead bodies and observed multiple injuries/ bruises on the dead bodies and recorded the details in inquest reports.
11. It has further been observed that the medical examination of the appellant was carried out by PW -13
Dr. Ali Mardan, Police Surgeon, Bolan Medical Complex and after examination, he issued MLC of appellant as Ex.P/13- A, wher ein he has opined that the appellant was potent and able to perform act of Zina (sexual intercourse).
Besides, the semen samples of the appellant were also taken and the same were sent to FSL for examination along
with the Shalwar Qameez and Chaddar of deceased Bibi Asia as well as a piece of cloth (Gadda Cover). After
examination, the FSL issued report Ex.P/16 -C and opined that the above said articles excluding the Chaddar of
deceased were stained with human sperm.
The multiple bruises on the persons of both deceased would reflect not only their sexual assault and brutal
murder, but also their attempt to rescue themselves from the clutches of the culprits, but being ladies they failed in
their attempts. Though the defence has not disputed the unnatural deat h and forcible sexual intercourse/rapes of
deceased, but pleaded false implication of the appellant.
12. The medical evidence so produced by the prosecution is sufficient to establish that the both the
deceased were raped/sexually assaulted from both sides by the appellant along with his co- accomplices and the
sexual assaults were forcible. The deceased made their attempts to rescue themselves from the clutches of the
culprits, but being ladies they failed in their attempts. Besides, the medical examination of the appellant has also
confirmed that he is potent and able to perform sexual intercourse.
13. The case of prosecution has further been strengthened from the disclosure of the appellant Ex.P/11- A,
perusal of which reflects that the appellant has disclo sed that he had past illicit relations with the deceased Asia and
he used to call the deceased in a garden situated backside of her house and committed Zina with her on many
occasions. On 8th December 2013 the deceased was called on backside ground of her house, who along with her
cousin Bibi Nazia came over there, while as per plan both were taken in a Indus Corolla vehicle to the Baitak of absconding accused Aftab situated at Mangochar and the appellant along with absconding accused Aftab and Asadullah co mmitted Zina with them till 20th December 2013. Whereafter, he along with absconding accused
consulted that if the deceased were left alive; the allegations of Siya Kari will be leveled against them, as such, they
planned to commit their murders. Hence, initially he committed Zina with Asia, whereafter he called absconding
accused Aftab and Asadullah. Absconding accused Aftab stood on the feet of Asia, while he and Asadullah put her Chaddar around her neck and strangulated her. Whereafter, they went to othe r room where Bibi Nazia was present
and they also strangulated her. Whereafter, they put their dead bodies in the boot of Car and threw the same under the bridge.
14. The perusal of above disclosure of the appellant confirmed that he has provided all the i nformation of
the crime in detail. The appellant disclosed the names of his co -accomplices and the place of occurrence, which facts
earlier were not in the knowledge of the prosecution. The appellant in the said disclosure has also disclosed the manner in which the deceased were picked in a vehicle and were taken to the place of occurrence i.e. the Baitak of
absconding accused Aftab. The appellant has also brought on record the manner in which the deceased were
murdered by strangulation and such fact has al so been corroborated by medical evidence. Even otherwise, nothing
has come on record that the disclosure of the appellant was the result of coercion, undue influence rather the facts
and circumstances of the case would disclose that the same was voluntary, thus the disclosure of the appellant is
admissible under Article 40 of Qanun- e-Shahadat Order, 1984. In the case titled Muhammad Amjad v. The
State PLD 2003 SC 704, the Hon’ble Supreme Court held as under:
“Further it is noted that as per Article 40, corr esponding to Section 27 of the Evidence Act, when any fact
is revealed in consequence of information received from any accused in custody of a police officer, such
information whether it amounts to a confession or not as it relates distinctly to the fact t hereby discovered,
may be proved. The information supplied by the appellant under Article 40 ibid relating to incriminating
articles is admissible.”
Similar view has also been taken from the case of Zakir Khan and others v. The State 1995 SCMR 1793, wherei n it
has been held that:
“In fact Article 40 operates as a proviso to the preceding Articles. However, in order to make any such information admissible, what is required to be established by the prosecution is that any Article or
such other evide nce discovered during the investigation of a case in consequence of information supplied
by the accused connects him with the crime. The information supplied by one accused in this case led to
another accused which in consequence of the information supplie d by the latter, led to the discovery of
incriminating evidence against him, connecting each of them with the crime. There being no doubt about the admissibility of such evidence under Article 40 of Qanun -e-Shahadat, the Court was only left to
consider suf ficiency of such evidence against each of the appellants to connect him with the crime. Such
evidence, as pointed out earlier, was therefore, admissible under Article 40 of Qanun- e-Shahadat.”
15. The case of prosecution has further been strengthened by the confessional statement of the appellant
under Section 164, Cr.P.C. recorded by PW -14 Muhammad Ali Kanrani, Judicial Magistrate Khuzdar. The perusal
of confessional statement of appellant Ex.P/14- B and C reveals that prior to recording the statement, the l earned
Judicial Magistrate had fulfilled all the legal requirements by introducing him before the appellant and also brought
into his knowledge the consequences of such confessional statement and had also given sufficient time to the
appellant to review his decision of recording such confessional statement, but despite such facts the appellant was
ready to get recorded his confessional statement and the learned Judicial Magistrate got appended the thumb
impressions of the appellant on the said statement. The contents of such confession have fully been corroborated by
the disclosure of the appellant. The perusal of confessional statement of the appellant confirms that the same was
recorded without any coercion, pressure torture of blackmailing rather the appe llant realized his shamefaced act and
due to embarrassment, he immediately agreed to record his confessional statement. Thus, there is absolutely no reason available for us to disagree or disbelieve such confessional statement, which on the face of it appe ars to be
recorded in accordance with law, voluntarily and truly without any fear or torture. The Hon’ble apex Court in the
case of Hashim Qasim v. The State 2017 SCMR 986, has held that, “For accepting a confession, two essential
requirements must be fulf illed; first, that the confession was made voluntarily and was based on true account of
facts leading to the crime and, second, the same was proved at the trial.” Admittedly, the said two essential
requirements have been fulfilled in the case in hand as through the evidence it has not only been established that the
same is voluntarily, but also it was proved at the trial.
16. Adverting to the defence plea of the appellant, suffice to observe here that the appellant throughout the
trial has failed to take an y solid or concrete plea rather simply denied the allegations and has brought on record that
due to some misunderstanding he has been booked in the case, but the pointation of place occurrence, recovery of certain articles being in the use of the deceased, the disclosure of the appellant followed by his confessional
statement as well as the medical evidence are much greater than the bald denial of the appellant, which cannot be
brushed aside in any manner. Admittedly, the prosecution has succeeded in proving the charge against the appellant
through direct, circumstantial and medical evidence. No major contradiction or dishonest improvement has been
pointed out by the learned defence counsel in the statements of prosecution witnesses. The motive behind the
murders has also been established as the appellant and co -accused were fear of allegations of Siya Kari. The learned
trial Court has discussed and dilated upon each and every aspect of the case and rightly convicted the appellant.
17. So far as the quantum o f sentence i.e. Capital punishment of death is concerned, we do not find in
agreement ourselves with regard to the same. Suffice to observe here that three accused persons including the
appellant have been booked in the crime and except the appellant, both the remaining accused persons are
absconding, hence their pleas are yet to come on record. Besides, the deceased Bibi Asia out of her free will and
consent had kept illicit relations with the appellant and absconding accused Asadullah, thus under these
circumstances awarding of capital punishment to the appellant is unwarranted.
18. For the reasons discussed hereinabove, while upholding the conviction of convict -appellant Muhammad
Jaffar Son of Muhammad Raza under Sections 376(2) and 302, P.P.C., his sente nces of death on two counts each are
converted into R.I. for life on two counts each and the remaining sentences shall remain intact. The sentences shall
run concurrently with the benefit of Section 382(b), Cr.P.C.
With the above reduction of sentences, Cr iminal Appeal No. 298 of 2015 is dismissed, while the Murder
Reference No. 18 of 2015 is answered in negative.
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