2012 Y L R 191
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ
BARKAT ---Appellant
versus
THE STATE ---Respondent
Criminal Jail Appeal N o.23 of 2006, decided on 15th September, 2011.
Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S.164 ---Qanun -e-Shahadat (10 of
1984), Art.37 ---Qatl-e-amd---Appreciation of evidence ---Case of prosecution mostly
rested on confession ---Magistrate had stated that he recorded the statement of accused
after observing all legal formalities ---Accused, during cross -examination, suggested that
his statement was recorded due to coercion, torture committed on him by the Tehsildar
concerned ---Accused had simply denied the recording of confessional statement by him
in his statement under S.342, Cr.P.C. ---Accused, in circumstances, had taken
contradictory stand ---Confession being an admission, was admissible under the law with
exception provided therein ---In the present case, statement was recorded by Judicial
Magistrate in the prescribed form, but it did not deem to be enough as before relying on
the same, it was to be established that the confession was made without any compulsion
or threat and was voluntary and above all truthful in nature ---Accused having denied the
recording of the confession and contents thereof, it amounted to retraction and did not
remain as substantive piece of evidence, same needed corroboration and its evident iary
value was to be seen ---Delay of six days had occurred in recording of confessional
statement, in the case, and during said period, accused remained in custody of the Police --
-Such fact raised a question about voluntary recording of statement, which wa s to be met
by the prosecution ---No explanation having come forward to that effect, some other
reliable evidence was required to corroborate the confession so made for safe
administration of justice ---Incident allegedly occurred at the house of the complai nant
and the victim ---Report of the incident was lodged without any delay by the complainant,
specifically nominating accused being the real culprit ---Complainant did not witness the
incident and he only reported the matter ---Site plan also failed to di sclose the presence of
the witnesses at or near the site at the time of occurrence of the incident ---Witness being a
chance witness, could not justify his presence ---Facts had indicated that negligent
conduct and the way adopted by Investigating Officer wh ile conducting with the matter
incompetently had failed to collect the material necessary for just decision of the case ---
Only piece of evidence, which remained, was the confes -sional statement of accused,
whereby he categorically admitted the killing of h is sister in the name of honour ---
Accused had taken a contradictory stand, which had adversely affected his own case ---
Mere fact that confessional statement recorded with delay of six days, would not be fatal,
because there was no plea that during that pe riod accused was maltreated by the Police or
he recorded his confessional statement under coercion or compulsion ---Contents of the
appeal, submitted by accused from jail, were altogether different and stated a new story ---
Contents of memo of appeal, fully corroborated the statement of accused made before
Judicial Magistrate whereby he confessed commis -sion of offence ---Certain discrepancies
were though found in the material collected and produced by the prosecution, which had
lessened the evidentiary value, but as it was established that confessional statement was
voluntary and truthful as corroborated by contents of memo of the appeal, commission of
act on the part of accused had been established ---Trial Court though had not properly
appreciated the facts, but had arrived at the conclusion, which was very much just in the
circumstances ---Judgment of the Trial Court, was upheld, in circumstances.
Atta Muhammad v. The State 2008 SCMR 649; Javed Masih v. State 1993 SCMR 1574
and State v. Minhun alias G ul Hassan PLD 1964 SC 813 ref
Ms.Noor Jehan for Appellant.
Atiq Ahmed Khan for the State
Date of hearing: 22nd May, 2006.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---It is a jail appeal, preferred by convict Barkat,
being aggrieved of judgment dated 23-2-2006 of Sessions Judge, Khuzdar, whereby he
being found guilty of the offence of murder of his sister Mst Jamila, thereby convicted for
the offence under section 302(b) Pakistan Penal Code (P.P.C.), while sentenced to suffer
imprisonment for life as T azir, and also liable to pay Rs.200,000 to the legal heirs of
deceased Mst. Jamila, and in default to further suffer imprisonment for one year. It is
contention of the appellant that the impugned order is contrary to facts, and norms of
justice. It is furt her contended that his case may be considered sympathetically, and he be
acquitted of the charge.
Brief facts of the case are that F.I.R. No.11 of 2005, Levies Thana Awaran, was
registered on 3 -7-2005, at 6 -30 p.m., in respect of an incident, whereby one Mst. Jamila
was allegedly murdered by Barkat son of Wali Dad/present appellant, by making firing on
her with TT pistol. The matter was reported by one Wali Muhammad, being husband of
the victim Mst. Jamila. After registration of the case, the appellant was arrested, and after
completion of investigation, the case was challaned. The charge was framed on 25 -8-
2005 for the offence punishable under section 302 Pakistan Penal Code (P.P.C.). As the
accused person/present appellant raised plea of not guil ty, therefore, in order to establish
the charge eight witnesses were produced by the prosecution. But in defence the appellant
neither recorded his statement on oath, nor produced any evidence. On completion, the
trial court, through judgment dated 23-2-2006, arrived to the conclusion that the
appellant is guilty of the charge, thereby convicted him for the offence under section
302(b), P.P.C., and awarded him sentence of imprisonment for life, further liable for
payment of compensation of Rs.200,000 to the legal heirs of victim Mst. Jamila, and in
case of default has to further suffer simple imprisonment for one year. Feeling aggrieved
of his conviction, the appellant preferred, instant appeal, which is under consideration.
The learned counsel for the parties are heard at length. It was argument of the learned
counsel for the appellant that there is no eye -witness of the occasion, rather the ocular
witnesses failed to show their presence at the site. Further, the complainant is also not an
eye-witness, rather prosecution witnesses Nos.3 and 6, though asserted occurrence of the
offence in their presence, but in view of their statements their presence at the house of the
complainant is nowhere established. It was further his argument that the truthful ness of
the statements of the witnesses are to be checked, while the confession allegedly made by
the appellant needs corroboration from other evidence. But there is no such evidence,
which can corroborate the evidence of the alleged eye -witnesses, and als o of the
complainant. It is further contended by the learned counsel that the crime weapon, and
crime empties, were not sent to Forensic Science Laboratory (FSL) for chemical analysis.
In reply it was argument of the learned State Counsel to the effect th at the confessional
statement made by the appellant is voluntary, wherein the appellant has admitted his guilt,
thus reliance can be made on it. Further, the appellant while appearing before the Judicial
Magistrate admitted that he has not been tortured. I t is further argument of the learned
State counsel that the term "Ilaqa" ( ) used by the witnesses in their statements is
synonymous to nearby the house or inside the house. Further, there is recovery of crime
weapon from the possession of the appell ant. The learned State Counsel requested for
dismissal of the appeal. During course of arguments, the learned counsel for the appellant
was asked that keeping in view the circumstances of the case, why the sentence may not
be enhanced. While replying the q uery, the learned counsel for the appellant contended
that there is no ground for enhancement of the sentence, rather it is a clear case for
acquittal. He had prayed accordingly.
The case of the prosecution mostly rests on the confession allegedly made b y the
appellant before the Judicial Magistrate, who appeared as Prosecution Witness No.2
(P.W.2) Muhammad Ashraf. According to him, he recorded the statement of the accused
after observing all to legal formalities. He produced the statement as Exh.P/2 -A. D uring
course of cross -examination it was suggested that the accused/appellant got recorded his
statement due to coercion, torture committed on him by the Tehsildar concerned. But
during course of examination under section 342 Criminal Procedure Code (Cr.P. C), the
appellant simply denied recording of his confessional statement. A contradictory stand is
taken by the appellant/accused. Apart from it, the appellant either way denied giving of
said statement, whereby he admitted his guilt. Therefore, in view of the fact that the
appellant retracted from the confessional statement, the evidentiary value of the statement
so retracted is to be seen. Article 37 of Qanun -e-Shahadat Order, 1984 is relevant,
which reads as under: --
"Confessions caused by induce ment, threat or promise, when irrelevant in criminal
proceeding. A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have been caused by
any inducement, threat or promise ha ving reference to the charge against the accused
person proceeding from a person in authority and sufficient, in the opinion of the Court,
to give the accused person grounds which would appear to him reasonable for supposing
that by making it he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him."
In view of the quoted Article, the confession being an admission, otherwise admissible
under law with the exception provided therein. The procedure for re cording such a
statement/confession is provided under section 164 Criminal Procedure Code (Cr.P.C). In
present case, the statement is recorded by the Judicial Magistrate in the prescribed form.
But it does not deem to be enough, rather before relying on it , it is to be established at
first instance, that the confession is made without any compulsion or threat, and also
voluntary, and above all truthful in nature. Further, a conviction can be granted to the
person making the same while placing reliance on it , but independent corroboration is
also required for safe administration of justice. In present case, as the appellant denied the
recording of the confession, and the contents of the confession also, therefore, it amounts
to retracted confession, and does not remain as substantive piece of evidence, thus needs
corroboration. It is held by honourable Supreme Court in Criminal Petition "Atta
Muhammad vs. The State, reported in 2008 SCMR page 649, that: --
"11. The petitioners during trial had resiled from th eir judicial confessions. The "retracted
confession" may be treated to be sufficient to sustain conviction for the offence if the
same is found to be voluntary and true but as a rule of prudence, the same should not be
acted upon unless corroborated by som e other reliable evidence...."
It is further held by honourable Judges of the Supreme Court, while deciding Criminal
Petition titled as "Javed Masih v. State" reported in 1993 SCMR page 1574, that: --
"----. Even if the statement made before the police at the time of making the report is
excluded, the retracted confession can be taken into consideration provided it is fully
corroborated by authentic evidence as regards factum of crime and petitioner's connection
with that crime. ---"
Further, in case ti tled "State v. Minhun alias Gul Hassan, reported in PLD 1964 SC Page
813, it was held by their lordships: --
"As for the confessions the High Court, it appears, was duly conscious of the fact that
retracted confession, whether judicial or extra -judicial, could legally be taken into
consideration against the maker of those confessions himself and if the confessions were
found to be true and voluntary, then there was no need at all to look for further
corroboration. It is well -settled that as against the mak er himself his confession, judicial
or extra -judicial, whether retracted or not, can in law validly believe that it was true and
voluntary and was not obtained by torture or coercion or inducement."
Keeping in view the verdict of honourable Supreme Court , and the relevant provisions as
cited hereinabove, the evidentiary value of the confession recorded in present case is to be
seen. Though the appellant disputed his confessional statement, rather it was suggested to
the prosecution witnesses that the same has been obtained due to coercion, threat and
torture, but during course of examination conducted under section 342, Cr.P.C. he denied
recording of any such statement. As far as first plea is concerned, no evidence to the
effect has been placed on record. But it is apparent from record that there is delay of six
days in recording of confessional statement, and during said period the appellant
remained in custody of the police. This fact raised a question on voluntary recording of
the statement, which is to be met by the prosecution. As there is no explanation to this
effect, therefore, for safe administration of justice, some other reliable evidence is
required to corroborate the confession so made. Therefore, the material brought on record
apart from confe ssion is to be considered thereby analyzed to reach at a just decision.
The perusal of the material on record reveals that the incident allegedly occurred at the
house of the complainant, and the victim Mst. Jamila. The report of the incident was
lodged without any delay by the complainant Wali Muhammad, thereby specifically
nominating the appellant being the real culprit. But it is evident from contents of the
F.I.R., that the complainant had not witnessed the occasion, rather he only reported the
matter , and thereby nominated the appellant, being the real culprit committed the act.
While appearing as P.W.1, the complainant Wali Muhammad only stated that the
accused/present appellant after making firing through TT pistol murdered his wife Mst.
Jamila. But during course of cross -examination it was deposed that at the time of incident
he was at a hotel situated half kilometer away from his house. The complainant showed
presence of one Abdul Samad, Noor Muhammad, and Saeedullah with him, when he
reported the matter to the Tehsildar, but soon after, he resiled from this statement, and
stated that some other persons were present with him, but he did not remember their
names. The mentioned three persons never appeared before the court, nor their names
were ever d isclosed. The prosecution produced Jalal (P.W.3), and Ali Jan (P.W.6) as eye -
witnesses of the occasion. According to both the witnesses they were present in the area
Siri Malar Awaran, when nearly at 6 -00 O'clock in the evening Barkat/present appellant
visited the house of his sister Mst. Jamila, had quarrel, whereupon the appellant fired
thrice on her with pistol, resultantly she sustained injuries, and died thereafter, and the
accused escaped from the site. Both these witnesses though showed their pres ence at area
Siri Malar Awaran, but from their own statements, it nowhere appears that they were
present in the house of the victim, or even near the site of the incident. The site map
prepared by the Investigating Officer (P.W.8) also failed to disclose t he presence of the
witnesses at or near the site at the time of occurrence of the incident, thereby had a
chance to have a glance of the site, or to see the occurrence of the incident by remaining
in the area. Furthermore, Ali Jan (P.W.6), who disclosed hi mself to be resident of District
Awaran, with further assertion that in between distance of his house, and house of Wali
Muhammad, the place of incident, is of nearly 25 kilometers. Thus in view of his own
statement, the witness is deemed to be a chance wi tness, therefore, he has to explain the
occasion of his presence at the site at relevant time, to justify his presence, but there was
no explanation. Therefore, less reliance can be made on this piece of evidence.
Furthermore, as the complainant has not wi tnessed the occasion, therefore, the source of
his knowledge about occurrence of the incident is to be disclosed, but there is nothing on
record to explain the same. Keeping in view the mentioned facts, it can safely be
concluded that the alleged eye -witne sses, in fact, had not witnessed the occasion, nor
even the complainant had seen the occurrence of the offence, which in the circumstances,
is an unwitnessed incident. Further, the mere assertion about their presence in the area
Siri Malar, does not amount physical presence of the two witnesses at the site. During
course of arguments the learned State Counsel tried to explain term "area" being place of
incident. But nothing of the sort was asked from the witnesses, nor any clarification was
sought by the tr ial court to the effect, when the witnesses were in attendance before the
Court.
In present case, according to the prosecution, recovery of the crime weapon was effected on
pointation made by the accused/appellant during course of investigation. The Inve stigating
Officer P.W.8 Ahmed Khan, in order to affirm the recovery, while recording his statement
stated that on 10 -7-2005 on the disclosure made by the accused, he and other Levies Staff,
along with the accused, went to the house of Noor Muhammad, from w here the accused
discovered the pistol, along with three live cartridges and two magazines, which were taken
into custody. The seizure memo of crime weapon has been produced as Exh.P/3 -B by P.W.3
Jalal. It was his (P.W.3) statement that on 10 -7-2005 he alo ng with Noor Muhammad were
present in the Tehsil, accused Barkat made disclosure about the crime weapon, whereupon in
vehicle the accused was taken to the house of Noor Muhammad, being accompanied by them
(witness), where the accused handed over the pistol to the Tehsildar. The seizure memo
Exh.P/3 -B it was signed by the witnesses Jalal (P.W.3), and one Noor Muhammad. Though
the recovery is asserted to be made from the house of said Noor Muhammad, but this fact is
found missing from the contents of the seiz ure memo Exh.P/3 -B. Further, the details
regarding the portion of the house from which said recovery was made, and existence of
relationship between the accused, and Noor Muhammad. It is quite strange that the alleged
recovery is effected from house of one Noor Muhammad, a third person, having shown no
connection with the accused, with no further explanation of the circumstances, which make
possible for the appellant to have an access to the house of Noor Muhammad, and succeeded
in hiding the crime weapon. Furthermore, said Noor Muhammad, being an important witness
in the circumstances, but had neither included in the calendar of witnesses by the
Investigating Officer, nor produced before the court during trial. Furthermore, the seizure
memo, and even the wi tnesses of the recovery of crime weapon are completely silent about
the specific portion of the house, from where the recovery was effected. Furthermore, the
occasion of presence of Jalal (P.W.3), and Noor Muhammad at Tehsil, at the time when
alleged discl osure was made by the accused/ appellant has also not been explained. In
addition, during course of cross -examination Jalal (P.W.3) admitted that the proceedings in
respect of recovery of crime weapon was held in presence of Wali Muhammad, the
complainant , and Noor Muhammad, and him. But contrary to this statement, Wali
Muhammad (P.W.1) while recording his statement remained completely silent, even the
Investigating Officer (P.W.8) have not spoken a word to the effect. The facts mentioned
hereinabove raise d question on recovery of the crime weapon. These facts clearly indicated
the negligent conduct and the way adopted by the Investigating Officer while conducting
with the matter incompetently thereby failed to collect the material necessary for just decisi on
of the case, which is highly unfortunate.
The record further reveals that crime empties, two in numbers, were shown to be
recovered from the site on 3 -7-2005, thereby seized, and the crime weapon was also
recovered and seized on 10 -7-2005, but both the crime empties, and the crime weapon
were not sent for chemical analysis. To overcome this deficiency, this fact was tried to be
brought on record during trial that the case property has been lost on 19 -10-2005, being
snatched by unknown persons, while in the way to produce before the court, where
proceedings were pending, and F.I.R. to the effect was lodged on 21 -10-2005. Apart from
it, the question remains that why during in between period the material was not sent for
chemical analysis?, as a su fficient time was available from the date of the incident i.e. 3 -
7-2005 till date of its lost i.e. 21 -10-2005. But there was no explanation to the effect,
which is unfortunate that a strong piece of evidence was not collected by the Investigating
Officer. Even the map of the site Exh.P/8 -A, prepared by the Investigating Officer, does
not disclose availability of empties at the site.
Keeping in view the above discussion, on basis of the facts as noted, the incident seemed
to be un -witnessed, as none of the witness established his presence at the site. Further, the
fact of making disclosure thereby effecting recovery of crime weapon are highly doubtful.
Moreover, an important witness namely Noor Muhammad was neither associated with the
investigation, nor produced before the court during course of trial, that too, without any
explanation. As far as medical evidence is concerned, it is helpful only to the extent of
establishing the fact that the victim met with an unnatural death due to fire arm injuries,
and nothing more.
The trial court, while relying on medical evidence, concluded that the injuries caused to
the body of the victim are sufficient in ordinary course of nature to cause death, and
whoever caused it had intention to cause such nature of inju ries. It may be so, but the
prosecution has to show something more, thereby to establish involvement of the
accused/appellant in commission of the offence. Though P.W.3 Jalal and P.W.6 Ali Jan
appeared as eye -witnesses, and P.W.3 also appeared as witness o f disclosure, and
recovery of crime weapon. The variations and discrepancies, noted hereinabove, lessen
evidentiary value of their statements. In the circumstances the only piece of evidence,
which remains, is the confessional statement of the appellant, w hereby he categorically
admitted the killing of his sister in the name of honour. It is to be noted that the appellant
at first instance suggested to the prosecution witnesses that the statement alleged is not
voluntary. But in examination made under provi sions of section 342, Cr.P.C. he
altogether denied recording of his statement. The appellant had taken a contradictory
stand, which adversely affected his own case. The Judicial Magistrate, P.W.2, who
recorded the confessional statement, deposed that the a ppellant did not disclose any
maltreatment of the police towards him. The mere fact that the confessional statement
recorded with delay of six days will not be fatal in the circumstances, because there is no
plea that during the period he was maltreated by the police, or he recorded his statement
under coercion or compulsion. Rather while replying question at Serial No.6 of the pro
forma to the effect that whether he had been subjected to maltreatment by the police, the
answer of the appellant was in negati ve. Due to the contradictory stand as taken by the
appellant, the onus shifted on the appellant to establish that either he had not recorded his
confessional statement or he was forced to record it. But nothing has been suggested to
the prosecution witness es, nor any evidence was produced in defence, nor even he
(appellant) appeared as his own witness to establish the contrary, and discharge the
burden. Apart from these facts, the contents of the appeal, submitted by the appellant
from jail, are altogether different, and states a new story. The appeal preferred rests on
four grounds, which are produced hereunder: --
This portion of memo. of appeal is to be read with the contents of the statement of the
appellant/accused recorded under provisions of se ction 164, Cr.P.C. Exh.P/2 -A, which is
to the effect:
Keeping in view both the documents, the contents of memo. of appeal fully corroborate
the statement of the appellant made before Judicial Magistrate, whereby he confessed
commission of the offenc e. Further, the way in which the narration has been made in
memo of appeal is of a nature that as if the appellant is trying to justify his act of killing
his sister Mst. Jamila, and needs assent of the court for the act, which is unfortunate. In
view of t he matter, the memo of appeal shall be deemed to be the best corroborative piece
of evidence, which otherwise established the confession made by the appellant, during the
course. He impliedly admitted his guilt before this court too. The assertion made in memo
of appeal destroyed his own case, thereby provided a support to the case as made out by
the prosecution.
Though there are certain discrepancies in the material collected, and produced by the
prosecution, which surely lessen the evidentiary value, bu t as it is established that the
confessional statement was voluntary, and truthful, as corroborated by the contents of
memo of the appeal, thereby establish the commission of the act on the part of the
appellant. Though the trial curt has not properly appr eciated the facts, but fortunately
arrived to the conclusion, which is very much just in the circumstances.
In view of above discussion, the appeal being devoid of merits is hereby dismissed. The
judgment dated 23 -2-2006 of the trial court is upheld.
H.B.T./118/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,
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