2012 Y L R 1771
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ
MUHAMMAD LAL ---Appellant
Versus
THE STATE ---Respondent
Criminal (CNS) Jail Appeal No.24 of 2011, decided on 11t h April, 2012.
(a) Penal Code (XLV of 1860) ---
----S. 302 ---Qatl-e-amd---Appreciation of evidence ---Matter was reported without delay with
specific nomination of accused ---Complainant was not the eye -witness and the person who
informed the complainan t about the occurrence, never appeared before the court ---Recovery
of the crime weapon though was asserted, but the prosecution had failed to produce some
further evidence to establish the recovered knife being the weapon used in commission of the
offence ---Medico -legal certificate noted down several injuries being stab wounds, but it
failed to disclose the measurement of the wounds ---No direct evidence was available and
evidence collected was circumstantial in nature ---Medico -legal certificate established the fact
of unnatural death, cause of injuries inflicted through sharp object ---Report of the Forensic
Science Laboratory described the stains present on clothing of the deceased, being of human
blood, but mere presence of those reports were not sufficient and some more evidence was
required to connect the accused with commission of the offence ---Only positive piece of
evidence against accused, in the present case, was the confessional statement allegedly made
by accused; and Trial Court not only believed s aid confessional statement, but recorded
conviction of accused on its basis ---Delay of seven days in recording of confessional
statement, was to be considered carefully, because such delay could be fatal, if it was
established that confessional statement w as result of coercion, threats, undue influence and
torture ---Accused admitted making of confessional statement with plea of torture, undue
influence, but he failed to retain that plea of torture and undue influence, because he admitted
that he neither com plained, nor disclosed that fact to the Judicial Magistrate before whom he
was appearing and had full opportunity to disclose the same, but he did not avail that
opportunity ---Accused according to his own statement did not mention said fact to his father
and brother, which seemed to be unnatural ---Facts narrated in the confessional statement,
were in conformity with the facts of the case as described by the prosecution ---Evidence
collected by the prosecution, not only corroborated the confessional statement , but also
established the involvement of accused in commission of offence ---In absence of any
evidence or material that confession was the result of torture or undue influence, reliance
could be placed on the confessional statement of accused, which was r ightly done by the Trial
Court, which had properly assessed the material on record ---Accused was rightly convicted
and sentenced, in circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 164 ---Confessional statement ---Conviction on retracte d confession ---General principles
that no conviction could be based on retracted confession, or conviction could not be made
solely on basis of a confessional statement ---Exceptions ---Confession, on the first instance, to
appear voluntary and true secondly the contents of the confession were to be corroborated by
other pieces of evidence and prosecution had to produce some reliable evidence to establish
the commission of the offence; and further to connect the accused with its commission.
Manjeet Singh v . The State PLD 2006 SC 30 rel.
(c) Penal Code (XLV of 1860) ---
----S. 323 ---Value of Diyat ---While directing the payment of Diyat, the Trial Court was
required to assess the same keeping in view the financial position of the parties, but only with
the condition that it would not be less than the value of 30630 grams of silver, which was to
be assessed by the Federal Government for each financial year.
Abdul Karim Yousafzai for Appellant.
Abdul Karim Malghani for the State.
Date of hearing: 1st D ecember, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---It is a jail appeal preferred by convict Muhammad
Lal son of Rehmatullah, against judgment dated 28th April, 2011 of Sessions Judge, Zhob,
whereby he had been convicted for the offence punishable u nder section 302 Pakistan Penal
Code (P.P.C.) and awarded punishment to suffer regrious imprisonment for a period of ten
years, and also liable to pay Diyat to legal heirs of the deceased. The appeal had been
preferred with only contention that he has been falsely implicated in the case due to personal
grudge, and tribal feud. It was prayed that keeping in view his financial position, as he is
unable to pay the amount of diyat, and further keeping in view his family condition, the
conviction awarded to him be reduced, and the punishment to the extent of payment of
amount of Diyat be set aside.
2. Brief facts of the case are that pursuant to F.I.R. No. 109 of 2010 it was reported by
one Mir Wali son of Sahib Jan, that he had been informed by one Abdul Bari son of Jamal -
ud-Din that his (complainant's) brother namely Nadir Khan had been killed by Muhammad
Lal (present appellant) and Fazal Qadir, at watercourse near Bypass. On information he
reached there, found the dead body of his brother. After registration of First Information
Report (F.I.R), investigation was made, and the police report was submitted for trial. The trial
court while commencing the proceedings framed charge on 3rd November, 2010 to the
effect: --
"That on 10 -9-2010, you and Fazal Qadir, i n furtherance of your common intention,
committed murder of Nadir Khan and thereby you committed the offence of Qatl -e-Amd
punishable under section 302/34 of the Pakistan Penal Code and with in the cognizance of
this court".
The appellant being accu sed denied the charge, whereby the prosecution was directed to
produce evidence. Thereby seven witnesses appeared from the prosecution side. While in his
defence the appellant only recorded his statement on oath, but did not opt to produce any
witness. The trial court on completion of trial through judgment dated 28th April, 2011
arrived to the findings that the appellant is guilty of the charge, but due to mitigating
circumstances, as noted in the judgment, the quantum of sentence was decided to be ten (10 )
years rigorous imprisonment, with liability of payment of Diyat amount to the legal heirs of
the victim. Feeling aggrieved of the conviction order, the instant appeal has been filed by the
appellant raising only one ground that he had been falsely involv ed in the instant case, with
prayer for reduction in period of imprisonment, and exemption from payment of Diyat
amount keeping in view the financial position of him and his family.
3. Learned counsel for the appellant while arguing the matter contended that the
prosecution based its case solely on the confessional statement of the accused/ applicant,
which in fact was recorded with the delay of 7/8 days, that too without any reasonable cause.
It was further his argument that the delay in recording of con fessional statement was fatal,
therefore cannot be relied upon. It was further his argument that there was no direct evidence
about commission of the offence, rather the only piece of evidence against the appellant was,
his alleged confessional statement, which in fact was retracted, therefore, no conviction can
be made on a retracted confessional statement. But, the trial court failed to consider this legal
preposition and recorded findings which are in contravention of law. It was further argument
of the learned counsel that there were several contradictions in the evidence produced by the
prosecution, but there was lack of due consideration on the part of the trial court. The learned
counsel pointed out the fact that the S.H.O. received information about commission of the
offence at 10 -00 p.m. while the complainant got information about the incident at 11 -00 p.m.
which creates doubt. Further, the medical evidence is not in conformity with the complaint.
Furthermore, the time, and date of the incident was a lso not correctly described by the
witnesses, and the most important witness of the occasion Abdul Bari was never produced
during the course of trial. Therefore, all these facts create reasonable doubt. Learned counsel
lastly contended that the trial court failed to ascertain the diyat amount, which is to be paid,
thus committed an illegality. While replying to the argument, the learned State counsel was of
the view that the accused was specifically nominated in the F.I.R., while the material on
record was properly appreciated by the trial court. It was further his argument that after
proper appreciation of evidence, conviction was rightly granted to the appellant; therefore, no
interference is required.
4. From the facts of the case it is evident that the complainant Mir Wali, who appeared
as prosecution witness No.1 (P.W.1), is not the eye -witness of the occasion; rather it is an
unseen incident. Because the complainant/P.W.1 was informed about the occurrence by one
Abdul Bari son of Jamal -ud-Din, that La l Muhammad, and Fazal Qadir killed Nadir Khan
brother of the complainant near watercourse at Bypass. It is apparent that the matter was
reported without any delay with specific nomination of the present appellant along with Fazal
Qadir being involved in co mmission of the offence. The Investigating Officer, A.S. -I., Saeed
Ahmed, while appearing as P.W.7 stated that though he arrested Fazal Qadir, but due to no
evidence, the said Fazal Qadir was discharged, while exercising powers under section 169
Criminal P rocedure Code (Cr.P.C). During course of trial no material was brought on record
from which the involvement of Fazal Qadir in commission of offence can be ascertained.
Therefore, this act of discharge remain in field. The fact that both Fazal Qadir and app ellant
were arrested on 10th September, 2010. But to the extent of the appellant the Investigating
Officer while recording his statement as P.W.7 contended that the accused was handed over
to the police by the elders of the area. Recovery of the knife, bei ng used in commission of
offence was also asserted by the prosecution, and produced it as Art/P -11. P.W.4 A.S. -I.,
Muhammad Rahim is a marginal witness of the recovery memo Exh.P/4 -A. The Medico -legal
Officer Dr.Saba Khan, appeared as P.W.2, who produced t he Medico -legal Certificate (MLC)
as Exh.P/2 -A. This Certificate disclosed six (6) stab wounds on the body of the victim.
P.W.5 Allah Wasaya, being Patwari prepared the site map Exh.P/5 -A; it bears date 15th
September, 2010. It was also the case of the prosecution that the appellant accused got
recorded his confessional statement on 17th September, 2010. The Judicial Magistrate
Farmanullah Khan (P.W.6) produced the confessional statement Exh.P/6 -A. The
Investigating Officer appeared as P.W.7, described the evidence collected by him. This
witness also prepared the site map Exh.P/7 -B. The trial court while relying on these pieces of
evidence recorded conviction, which is hereby challenged by the appellant.
5. The perusal of the evidence on record reveals that P.W.1 Mir Wali, the complainant is
not the eye -witness. The person, who informed the complainant about occurrence of the
incident namely Abdul Bari never appeared before the court. The perusal of the case file
reveals that process were issued for sai d Abdul Bari, being one of the witnesses of the
prosecution, but the process remained unserved with report that he has left for Afghanistan.
An important witness did not appear before the court. Further, the recovery of the crime
weapon Art.P -11 is asserte d but the prosecution failed to produce some further evidence to
establish the recovered knife being the weapon used in commission of the offence. Though
the Medico -legal Certificate noted down several injuries being stab wounds but failed to
disclose the measurement of the wounds, as depth and width of the wounds are not recorded
therein, which helps in to connect the recovered knife being the object used, which caused
death of the victim Nadir Khan. In view of the admitted position that no direct evidence is
available, rather the evidence collected is circumstantial in nature. The Medico -legal
Certificate Exh.P/2 -A established the fact of unnatural death, cause of injuries inflicted
through sharp object, while the report of the Forensic Science Laboratory (F.S.L) Exh.P/7 -C,
described the stains present on clothing of the deceased and on stones, being of human blood.
But, mere presence of these reports are not sufficient. Rather, some more evidence is required
to connect the appellant in commission of the of fence.
6. In view of the stated facts the only positive piece of evidence against the appellant is
the confessional statement Exh.P/6 -A, allegedly made by him (appellant). The trial court not
only believed this confessional statement, but recorded convic tion on its basis. While
analyzing material on record it appeared that the accused/appellant was arrested on 10th
September, 2010, being an admitted fact, and he remained in custody of the Police till
recording of the confessional statement, which was made on 17th September, 2010. There
was delay of seven days in recording of the confessional statement. The delay so occurred is
to be considered carefully, because the delay in recording of the statement can be fatal, if it is
established that the confessiona l statement was result of coercion, threatening, undue
influence and torture. And if it is established no reliance can be made on it, nor conviction
can be recorded on its bases. In present case the prosecution asserted that the appellant, being
the real c ulprit, voluntarily, and with his free -will recorded confessional statement before the
Judicial Magistrate, Zhob, Farmanullah Khan. This Judicial Magistrate appeared as P.W.6,
and stated categorically that the statement was recorded with free will and cons ent of the
accused, and sufficient time was given to the accused for thinking, with no complain of
torture or maltreatment. In rebuttal the appellant did not deny the recording of the
confessional statement, rather it was his suggested plea that he was thr eatened and induced by
the Investigating Officer that if he (appellant) recorded his confessional statement, he would
be set free. It was further suggested that the appellant/accused was tortured in order to get
Fazal Qadir free from commission of the offe nce. The appellant, while answering to question
No.10, during course of examination conducted under section 342, Criminal Procedure Code
(Cr.P.C), deposed that:
"Q. No.10. Is it correct that on 17 -9-2010, your confessional state -ment under section 164,
Cr.P.C. Exh.P/6 -A was recorded by Judicial Magistrate, Zhob who appended his certificate as
Exh.P/6 -B to it?"
"Ans: --recorded by the police after torturing and under influence."
7. In view of the same, it is apparent that the appellant took a specific p lea of being
tortured, and put under undue influence by the Police. In addition in reply to question No.14
that why the prosecution witnesses deposed against him, it was his reply that it was "with
mala fide intention just to harass him." The appellant thr ough this reply tried to emphasize his
plea taken earlier. In his statement on oath he (the appellant) stated that on 20th Ramazan, he
went for shopping, and on his return at 1 -00 a.m. it was informed that his younger brother
was apprehended by the pol ice, whereupon in the morning at 10 -00 a.m. he went to Police
Station, where he was taken into custody, and his brother was set free. Since then he
remained in custody for 11/12 days, whereby he was tortured, and pressurized to confess the
murder, but he r efused. It was further his statement that before his arrest, Abdul Bari and
Fazal Qadir were under investigation, but during course of cross -examination he admitted
that he was produced before a Magistrate. But he denied that he with his free -will made
statement before the Magistrate. Apart from this denial it was his statement, that at the time
he was under influence, and torture and he was not in his proper senses. He further stated that
he did not disclose the fact to the Magistrate, that the police had tortured him. He admitted
the suggestion that he did not disclose plea taken by the appellant, the fact of recording of
confessional statement is not denied. But the only explanation given by the appellant was to
the effect that he made the statement due t o torture and under compulsion of the police.
8. In view of the narrated facts, it is a retracted judicial confession. Though there are
general principles that no conviction can be based on retracted confession, or conviction
cannot be made solely on bas is of a confessional statement, But with certain exceptions. On
the first instance it appeared to be voluntary and true. Secondly the contents of the confession
are to be corroborated by other pieces of evidence. Therefore, it is the prosecution who has to
produce some reliable evidence to establish the commission of the offence and further to
connect the accused person with its commission. In case of retracted confession help can be
taken from the judgment made in Criminal Petition titled as Manjeet Singh v. The State,
reported in PLD 2006 SC 30, whereby their lordship provide complete guideline in such like
cases. It was held: --
"The Court should be very careful in ascertaining the true character of the confession
for conviction and must consider the re asons given for retraction of the confession to find out
the truth in such reason before making use of the confession for conviction."
"This is settled law that a retracted confession either judicial or extra -judicial, if is
found truthful and confidenc e inspiring and also qualifies the test of voluntariness, can be
used for conviction without looking for any other sort of corroboration."
It is further held that
"There is no cavil to the general rule that it is not prudent to base the conviction in a
criminal case only on the strength of retracted confession without independent corroboration
in necessary particulars and the Court is under obligation to inquire into all the material
points and surrounding circumstances to satisfy itself regarding the truthfulness and
voluntariness of the confession but it is not an inflexible rule that retracted confession cannot
be made basis of conviction without independent corroboration rather the rule of
corroboration is a rule of abundant caution which is insist ed only to exclude any possibility of
doubt qua the guilt of a person. The law is that a retracted confession can be legally taken
into consideration, against the maker, if the confession is found true and voluntary and can
also be used as sole evidence fo r conviction without any corro -boration if the Court is
satisfied about its voluntary character and truthfulness."
Keeping in view the principles so laid down, the material on record is to be assessed
in present case. The appellant admitted making of co nfessional statement with plea of torture,
undue influence. But he failed to retain this plea because he in addition admitted that he
neither complained, nor disclosed this fact to the Judicial Magistrate before whom he was
appearing and had full opportun ity to disclose the same. But he did not avail the opportunity,
that too without disclosing any reason. In addition, the appellants according to his own
statement did not mention this fact to his father or brother, which seemed to be unnatural. Nor
he ever tried to produce them before the court for confirmation of his own statement.
Furthermore, it is observed that the facts narrated in the confessional statement are in
conformity with the facts of the case as described by the prosecution. He described the place
of occurrence as near watercourse situated at Bypass, where the incident happened. This fact
got support from the material on record, as the dead body of the victim was recovered from
the watercourse near Bypass. He further described the crime weapo n as knife, from which he
inflicted injuries to the body of the victim. He further stated that he twice or thrice gave
blows to the victim, which got support from the Medico -legal Certificate, wherein at least six
injuries were noted, and the nature of the injures are described as stab wounds with some
sharp object. Furthermore, during course of cross -examination of his statement on oath, he
admitted the recovery of knife from his possession with assertions that he kept the knife for
cutting of vegetables i n his pocket. Though knife was not got examined by the Expert, but it
is not fatal in the circumstances. Because Medico -legal Certificate described the object used
as sharp. The evidence collected by the prosecution not only corroborate the confessional
statement, but also establish involvement of appellant in commission of the offence. In view
of his own admission, and in absence of any evidence or material that the confession was
result of torture or undue influence, reliance can be made on this statement which was rightly
done by the trial court.
9. The trial court properly assessed the material on record and while considering
circumstances as noted herein above. The appellant was lightly convicted. As far as quantum
of sentence is concerned, it is prop er in the circumstances, therefore, needs no further
reduction. As far as payment of Diyat amount is concerned, the trial court has failed to
mention the specific amount in the judgment, which is to be payable by the appellant. Section
323 of Pakistan Pena l Code (P.P.C.) describes the value of Diyat, which is to be fixed by the
trial court, while making order to same effect. Section 323, P.P.C. reads as under: --
"Section 323. Value of Diyat (1) The Court shall, subject to the injunctions of Islam
as lai d down in the Holy Qur'an and Sunnah and keeping in view the financial position of the
convict and the heirs of the victim fix the value of diyat which shall not be less than the value
of thirty thousand six hundred and thirty grams of silver.
(2) For th e purpose of subsection (1), the Federal Government shall, by Notification in
the official Gazette, declare the value of silver on the first day of July each year (or) on such
date as it may deem fit which shall be value payable during a financial year."
10. In view of the same, while directing the payment of Diyat, the trial court is required to
assess the same keeping in view the financial position of the parties. But only with condition
that it shall not be less than the value of 30630 grams of silver, which is to be assessed by the
Federal Government for each financial year. Therefore, as the offence pertains to year
2010/2011, the notification issued to the effect will be relevant, whereby the value of 30630
grams silver is declared as Rs.1,465,163 (R upees one Million four hundred sixty five
thousand one hundred sixty three only). As there is no evidence about the financial position
of the convict and the heirs of the victim, therefore, it deemed appropriate to fix the amount
of Diyat as Rs.1,465,163, and the appellant is bound to pay the amount to the legal heirs of
the deceased Nadir Khan. It is further ordered that the payment of Diyat amount be made in
three equal instalments payable in month of July of each year, and till payment of diyat
amount, t he convict/appellant be kept in jail as per requirement of section 331, P.P.C.
The judgment of the trial court is upheld with addition and alteration. The appeal
stands disposed of.
H.B.T./28/Q Appeal dismissed.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,
let us know.