2017 Y L R 983
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
SHADI KHAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.153 of 2015, decided on 23rd November, 2016.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Anti -Terrorism Act (XXVII of 1997), S.7---Qatl -i-amd, act of terrorism ---
Appreciation of evidence ---Accused was charged for committing murder of two persons ---
Complainant confirmed the arrival of police party at the place of occurrence and presence of
accused nearby the dead bodies of deceased in armed condition---Statement of eye -witnesses
was in line with the statement of complainant--- All the witnesses had recorded their statement in
line with each other and were not derailed from their d epositions anywhere ---Witnesses correctly
narrated the whole story with regard to commission of crime and arrest of accused from the place
of occurrence and recovery of crime weapon from his possession as well as the disclosure and
confession of accused be fore them ---Prosecution witnesses had correctly identified the accused
during trial ---Witnesses had correctly stated the date, time and place of occurrence--- Defence
failed to create any dent in the evidence of prosecution in spite of lengthy cross -examination ---
Facts and circumstances established the guilt of the accused, who at the time of commission of
crime was found nearby the dead bodies, having pistol in his hand, confessed before police that
crime was committed on the basis of liaison of his deceased sister with her paramour ---Medico -
legal reports of deceased/injured fully corroborated nature of injuries, weapon of offence used in
the occurrence and locale of injuries sustained by the injured/deceased ---Medical evidence was
absolutely in line with th e ocular account and as such fully supported the case of prosecution---
Appeal against conviction was dismissed accordingly.
Akhter Ali v. State 2011 SCMR 937 rel.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Anti -Terrorism Act (XXVII of 1997), S.7---Q atl-i-amd, act of terrorism ---
Appreciation of evidence ---Recovery of weapon of offence ---Relevance---Weapon of offence
was recovered soon after the occurrence, from the possession of accused who was present at the
place of occurrence ---Defense had not disputed the recovery of crime weapon from his
possession soon after the commission of crime ---Appeal against conviction was dismissed
accordingly.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Anti -Terrorism Act (XXVII of 1997), S.7---Qatl -i-amd, act of terrorism ---
Appreciation of evidence ---Police officials as witnesses, competency of ---Accused was charged
for committing murder of two persons ---In the present case, crime was committed within the
boundary walls of house at about 2.00 a.m.---No chance of out sider to witness the crime directly
existed ---Attending circumstances suggested that it was impossible for the investigating agencies
to associate any independent witness in the prosecution case ---Even otherwise, police officials
were competent witnesses and their testimony could not be discarded merely for the reasons that
they were police officials unless or until the defence succeeded in proving dent in the statements
of prosecution witnesses and established their mala fide or ill -will against the accused ---
Admittedly, no relationship existed between the police officials and the accused nor they knew
each other before ---No reason was available for the police to falsely implicate the accused in the
crime ---Testimony of police officials was entirely indepen dent and truthful, thus their testimony
alone was sufficient to establish the charge against the accused ---Appeal against conviction was
dismissed accordingly.
(d) Criminal trial ---
----Witness ---Police officials as witnesses ---Statement of police officia ls were as good as the
statements of private witness, unless previous grudge was proved to exist between the witnesses
and culprit ---Evidence of police officials could not be discarded merely on the ground that they
were police officials.
2016 MLD 920; 2016 PCr.LJ 81; 2016 YLR 2173; 2011 PCr.LJ 511; 2011 PCr.LJ 221
and 2011 PCr.LJ 1342 rel.
(e) Criminal Procedure Code (V of 1898) ---
----S. 164--- Confession--- Retracted confession ---Validity ---Retraction of an accused from his
confessional statement was n ot enough to vitiate its evidentiary value ---Conviction could be
recorded on the basis of retracted confession---Court was to see that Judicial Magistrate prior to
recording of confession of an accused, had fulfilled all the legal formalities and adopted a ll
mandatory precautions.
Said Jehan alias Saidy v. The State 2014 PCr.LJ 1625 rel.
(f) Penal Code (XLV of 1860) ---
----S. 302(b) ---Anti -Terrorism Act (XXVII of 1997), S. 7---Qatl -i-amd, act of terrorism ---
Appreciation of evidence ---Delay in recording ju dicial confession ---In the present case,
confession of accused was recorded after the delay of twelve days ---Mere delay in recording the
confession was not enough to discard such statement, if the same was recorded voluntarily
without any coercion or dures s---No hard and fast rule had been laid down about the period
within which such statement ought to have been recorded.
Muhammad Ismail and another v. The State 1995 SCMR 1615 and Majeed v. The State
2010 SCMR 55 rel.
(g) Penal Code (XLV of 1860) ---
----S . 302(b) ---Anti -Terrorism Act (XXVII of 1997), S.7---Qatl -i-amd, act of terrorism ---
Appreciation of evidence ---Motive, proof of ---Prosecution case was that accused committed
murder on the basis of liaison of his deceased sister with her paramour ---Said mot ive had been
deposed by the accused at the time of his arrest as well as before the Judicial Magistrate while
recording his confessional statement ---Prosecution succeeded in establishing the motive behind
the occurrence---Appeal against conviction was dism issed accordingly.
Sardar Ahmed Haleemi for Appellant.
Abdul Latif Kakar, Additional P.G. for the State.
Ghulam Mustafa Buzdar for the Complainant.
Date of hearing: 7th November, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal (ATA) Appeal
No.153 of 2015 filed by the appellant Shadi Khan son of Sahib Khan, against the judgment dated
8th May 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Special
Judge Anti -Terrorism Court -I, Quetta (hereinafter ref erred as, "the trial Court"). whereby the
appellant was convicted under section 302(b), P.P.C. R/W section 07 of ATA 1997 and
sentenced to suffer life imprisonment, with the benefit of section 382(b), Cr.P.C.
2. Facts of the case are that on 24th December 2012 the complainant Tota Khan, S.I. lodged
FIR No.12/2012 at Police Station Kaichi Baig Quetta under section 302, P.P.C., with the
averments that on the night of occurrence he along with other police officials were on patrolling
duty when at about 02.00 a .m. reached at Killi Baro and on hearing noises entered into the house
of one Shadi Khan, where in the courtyard of the house found the dead bodies of a man and
woman lying in a pool of blood and besides the dead bodies found a person duly armed with a
pistol, who disclosed his name as Shadi Khan and stated that he found his sister Yasmin with his
paramour ( ) Abdul Ghani Marri in suspicious condition and by making firing killed them. The
complainant further averred that he found a T.T. pistol .30 bore cont aining four rounds in the left
hand of deceased Abdul Ghani.
3. In pursuance of above FIR, investigation was entrusted to PW -6 Zafar Iqbal, S.I., who
during investigation visited the place of occurrence and prepared site plan; took into possession
the crim e weapon i.e. T.T. pistol; prepared inquest report under section 174, Cr.P.C.; took into
possession the blood stained clothes of deceased and blood stained earth; obtained MLC of
deceased; recorded the statements of witnesses under section 161, Cr.P.C.; pr oduced the
appellant by Judicial Magistrate for recording his confessional statement under section 164,
Cr.P.C.; on completion of investigation, challan was prepared and submitted in the trial Court;
sent the blood stained clothes of deceased as well as th e recovered pistol to FSL for expert
opinion and on receipt of reports, submitted the same through supplementary challan.
4. At the trial, the prosecution produced six witnesses. The appellant was examined under
section 342, Cr.P.C. However, neither he rec orded his statement on oath under section 340(2),
Cr.P.C. nor produced any witness in his defence. On conclusion of trial and hearing the
arguments, the trial Court awarded conviction to the appellant as mentioned above, whereafter
the instant appeal has b een filed.
5. Learned Counsel for appellant contended that the impugned judgement suffers from mis -
reading and mis -appreciation of material available on record; all the prosecution witnesses have
contradicted each other on material counts; that the prosecution has failed to produce any direct
or concrete circumstantial evidence against the appellant connecting him with the commission of
crime; that the retracted confessional statement of appellant recorded under section 164, Cr.P.C.
is not helpful to the ca se of prosecution being recorded in contravention to the relevant provision
of law and after delay of 12- days; that no one has witnessed the crime being committed by the
appellant and his involvement is based on surmises and conjectures; that the case of prosecution
is lacking independent corroboration as despite availability no eye -witness was associated in the
investigation and only the evidence of police official was produced.
6. Learned Additional Prosecutor General assisted by the learned counsel for complainant
side while supporting the impugned judgment have contended that the prosecution through
consistent and concrete ocular medical and circumstantial evidence has succeeded in proving the
charge against the appellant, who was caught red- handed from the spot along with crime
weapon; that the prosecution evidence cannot be disbelieved solely for the reasons that the PWs
are police officials; that the appellant during investigation confessed his guilt by voluntarily
recording his confessional statement under section 164, Cr.P.C. and the concerned Judicial
Magistrate while recording his confessional statement has observed all the legal formalities; that
the appellant has failed to place on record any material suggesting his false implication by the
police ; that the appellant has failed to take any specific plea with regard to his false implication.
7. Heard the learned counsel and perused the available record with their able assistance.
Perusal of record reveals that the unnatural death of deceased Abdul G hani son of Gul Din and
Yasmeen wife of Wali Muhammad is not disputed. The defence admitted the unnatural death of
deceased, but pleaded false implication. PW -4 Dr. Ali Mardan, Medical Legal Officer Civil
Hospital Quetta, examined both the deceased and con firmed that both they received multiple
injuries on their person. The nature of injuries were fresh caused by fire arm and according to the
opinion of Medical officer the probable cause of death of deceased were damage to vital organs
of chest and neck and severe bleeding by firearm and homicidal. PW -4 issued death certificates
Ex.P/4 -A and Ex.P/4- B, which establishes the unnatural death of deceased.
8. Now diverting to the prosecution evidence, the complainant of the case appeared as PW -
1, who reiterated t he contents of his fard- e-bayan Ex.P/1- A. The statement of PW -1 confirms the
arrival of police party at the place of occurrence and presence of appellant nearby the dead
bodies of deceased in armed condition and its recovery by the police. The statement of PW-2 is
in line with the statement of PW -1, who along with PW -1 was patrolling the area and confirmed
that soon after receipt of information, they reached at the place of occurrence and found the
appellant nearby the dead bodies having pistol in his hand and disclosure of the appellant at the
spot with regard to murder of both deceased on the allegations of liaison. PW -2 is also recovery
witnesses of pistol recovered from the appellant and deceased Abdul Ghani as well as the
witness of empties recovered fr om the place of occurrence. PW -3 is the recovery witness of
blood stained earth, clothes. PW -5 Allah Muhammad Judicial Magistrate, has recorded the
confessional statement of appellant. PW -6 is the Investigating Officer of the case, who counted
the steps ta ken by him during course of investigation.
9. We have scrutinized the statements of all the witnesses with utmost care and caution and
have observed that all the witnesses have recorded their statements in line with each other and
nowhere they have been de railed from their depositions. They correctly narrated the whole story
with regard to commission of crime and arrest of the appellant from the place of occurrence and
recovery of crime weapon from his possession as well as the disclosure and confession of the
appellant before them. All the witnesses have correctly identified the appellant in the Court. The
witnesses have correctly stated the date, time and the place of occurrence, where both the
deceased were murdered and the arrest of the appellant was cau sed nearby the dead bodies. The
statements of all the witnesses were subjected to lengthy cross by the defence counsel, but the
defence has failed to create and dent in the prosecution story. It has been observed that
unsuccessful effort was made by the defence counsel to scandalize or distrust the statements of
the prosecution witnesses by making basis the minor discrepancies or contradictions, but in our
view those are not adequate to throw aside the entire prosecution evidence as a whole or to
believe th at the appellant has falsely been involved in the crime, when otherwise the appellant
has failed to place on record any single iota of evidence suggesting that his involvement in the
crime is on account of previous enmity or any ill -will on the part of prosecution witnesses. These
police official witnesses prima -facie had no motive or grudge to substitute the real culprit with
an innocent within such short -span of time. This also eliminates chances of claim of substitution
of the culprit particularly when t he death of the deceased in claimed manner i.e. at place of
incident with fire -arm, is never disputed. We would like to take advantage of the case of Akhter
Ali v. State 2011 SCMR 937, wherein it is held that: --
'10. We have considered the arguments put forth by the learned counsel for the parties
and perused the record. The appellant was apprehended immediately after the occurrence
by the P.Ws who have absolutely no motive to implicate the appellant. The defence plea
is unfounded besides being an afterthou ght. We have found no reason to take any
exception to the findings of the trial Court as well as of the appellate Court. Therefore,
this appeal fails and is hereby dismissed.'
10. The case of prosecution has further been strengthened from the recovery of c rime weapon
i.e. T.T. pistol from the possession of appellant soon after the occurrence, who otherwise was
present at the place of occurrence nearby the dead bodies. The defence has also not disputed the
arrest of the appellant or recovery of crime weapon from his possession soon after the
commission of crime.
11. According to the contention of learned defence counsel that the prosecution has failed to
produce any direct evidence against the appellant and the appellant has been arrested on the basis
of mere presumptions, suffice to observe here that the crime was committed within the boundary
walls of house of appellant during the midnight and all the witnesses present within the boundary
wall of the house were belonging to the same family of the appellant a nd thus there is no
possibility at all that the family members of the appellant's family may come forward to give
testimony against the appellant. However, the facts and circumstances of the case establish the
guilt of the appellant, who at the time of commission of crime was found nearby the dead bodies,
having pistol in his hand and admission before the police that the crime was committed on the
basis of liaison by his deceased sister with his paramour, hence the contention of the learned
defence counsel is without any substance.
12. Now coming to the next contention of the learned counsel for the appellant that the
prosecution has only produced the evidence of police officials and no independent witness was
associated in the investigation or examined in t he Court. As discussed in the preceding para that
the crime was committed within the boundary walls of house, hence there was no chance of
outsider to witness the crime directly and with regard to non- association of a private witness
from the neighbours et c. it has become impossible for the investigating agencies to associate any
independent witness in the prosecution cases. Even otherwise, the police officials are competent
witnesses and their testimony cannot be discarded merely for the reason that they are police
officials unless or until the defense succeeds in giving dent to the statements of prosecution
witnesses and prove their mala fide or ill -will intentions against the appellant. Furthermore the
statements of police officials are as good as the statements of private witness, unless through
evidence it has been proved that previous grudge had existed in between the parties. Whereas, in
the case in hand, the admitted position of the case is that neither there had existed any
relationship in between th e police officials and to that of the appellant nor earlier they knew each
other, thus there was no occasion for the police to falsely implicate the appellant in the crime.
The testimony of police officials is entirely independent and truthful, therefore, their testimony
without looking for any other corroborative evidence, would alone be sufficient to establish the
charge. Even otherwise, there is no bar upon the police officials to become witness of any crime.
It has further been observed that the police officials in the present case were the natural witnesses
of the crime, who at the relevant time were patrolling the area and soon after commission of
crime reached at the spot and caught red -handed the appellant, hence their presence at the spot
could not be disputed. Reliance in this regard is placed on the case of Muhammad Mushtaq and
another v. State 2008 SCMR 742, whereby the Hon'ble Supreme Court has observed that the
police officials are also competent witnesses and their testimony cannot be discarded merely for
the reason that they are the employees of police force. Reliance can also be placed from the cases
reported in 2016 MLD 920, 2016 PCr.LJ 81, 2016 YLR 2173, 2011 PCr.LJ 511, 2011 PCr.LJ
221, 2011 PCr.LJ 1342. Hence, in view of above legal and fa ctual position the objection of the
learned defence counsel is absolutely without any substance.
13. So far as the contention of defence with regard to non- admissibility of confessional
statement of appellant under section 164, Cr.P.C. on the ground that t he same was retracted and
recorded after delay of 12 -days, is concerned, suffice to observe here that mostly in all the
criminal cases it is a common practice that once the confessional statement is recorded during
investigation by an accused, it is retrac ted during trial of the case, but solely retraction of an
accused from his confessional statement is not enough to vitiate its evidentiary value. Even the
conviction only be made on the basis of retracted confession. At the most, with regard to its
admissi bility, the Court has to see that the concerned Magistrate prior to recording the confession
of an accused, had fulfilled all the legal formalities and adopted all mandatory precautions to
shed out the signs of fear taught by the Investigating Agency and w arning had been given to
accused that such statement will be used against him as evidence or that he was to be provided
full assurance that in case of his denial he will not be handed over to police and if the recorded
Magistrate it sure that such statemen t is being recorded voluntarily without any pressure,
coercion, blackmailing or torture, then under circumstance he will commence recording of the
same.
14. Careful perusal of confessional statement of appellant establishes the fact that the learned
Judici al Magistrate before recording such statement had introduced himself before the accused
and also explained the consequences of such statement during trial of the case being used against
him, besides assuring the appellant that he is in safe custody and the reafter being satisfied he
commenced with recording the confession, therefore, mere retraction of the appellant from the
confessional statement is not enough to effect its validity. However, delay of eleven days in
recording of confessional statement which had been retracted by accused in his statement under
section 342, Cr.P.C., by itself, was not sufficient to affect its validity; because conviction could
be based on confession alone, even though retracted, if the same was found to be true and
voluntary. Reliance in this regard is placed on the case of Said Jehan alias Saidy v. The State
2014 PCr.LJ 1625. The relevant portion is reproduced herein below: --
"... There is no cavil with the legal proposition that while evaluating the confessional
statement main object of law is to ensure the voluntariness and truthfulness of the
statement. If a statement is found to have been made voluntarily, without duress, coercion
and inducement and simultaneously rings true, there is no hurdle to accept the same
irrespecti ve of delay (if any), if recorded within the period of legal physical remand with
police. No doubt, there is delay in recording of confessional statement for about (3) days
and the same has also been retracted by the appellant in his statement under sectio n 342,
Cr.P.C., but mere delay in recording the confessional statement or subsequent retraction
by the accused from his confessional statement, by itself is not sufficient to affect its
validity because it has now been settled that conviction can be based on confession alone
even though retracted, if the same is found to be true and voluntary."
Similarly, the Hon'ble Supreme Court of Pakistan with regard to delay in recording
confession statement in case of Muhammad Ismail and another v The State, 1995 SCM R 1615,
held as under: --
" delay for recording confession per se is no ground to discard it unless it is proved or
emerges from the circumstances that it was obtained by coercion, threat, pressure etc.
Indeed, the learned Magistrate after observing formali ties recorded his confession and
certified that it was true and voluntary."
15. In the case in hand the appellant was arrested on 24th December, 2012, while his
confessional statement was recorded on 4th January 2013 i.e. after delay of 12- days, but mere
delay of 12- days in recording the confession is also not enough to question mark the validity of
such statement, but the same was recorded voluntarily without any coercion or duress. Even
otherwise, no hard and fast rules have been laid down about the perio d within which such
statement ought to have been recorded. The Hon'ble Supreme Court in case titled Majeed v. The
State, 2010 SCMR 55, whereby the confessional statement was recorded after delay of 12 -days
has held as under: --
"10. No doubt there was delay of 12 days in recording the confession but this by itself is
not sufficient to discard the same. This Court in the case of Nabi Bakhsh v. State 1999
SCMR 1972 held that delay in recording the confessional statement by itself is not
sufficient to affect its validity. However, no hard and fast rule can certainly be laid down
about the period within which the confessional statement of the accused ought to be
recorded during investigation. Reference is also invited to Muhammad Yaqoob v. State
1992 SCMR 1983."
16. The ocular account, furnished by the prosecution has also got corroboration from the
alleged motive, which has been stated to be the allegation of 'Saya kari, as dual murder of a lady
and her alleged paramour was committed by the appellant. The said motive has been deposed by
the appellant at the time of his arrest as well as before the Judicial Magistrate while recording his
confessional statement. Hence, successfully the motive behind the occurrence has also been
established.
17. It has been observed that during trial the appellant has neither taken any specific plea
with regard to his false implication nor has become his own witness by recoding his statement on
oath rather he has simply denied the allegations and pleaded his innocence, whereas to the
contrary the prosecution has produced solid and concrete evidence against the appellant
connecting him with the commission of crime, thus the entire prosecution evidence cannot be
discarded on the basis of mere bald denial of the appellant.
18. The reappraisal of the evidence available on record on the shape of ocular, medical,
circumstantial, it is concluded that the prosecution has successfully proved the charge against the
appellant beyond any shadow of reasonable doubt; that the appellant was caught red- handed
along with the crime weapon; that all the witnesses remained firm in their deposition; that they
fully supported the prosecution version and the defence has failed to cause any dent in the same;
that the trial Court after proper appraisal of evidence available on record has rightly awarded
conviction and sentence to the appellant; that the appellant has failed to point out any mala fide
on the part of the prosecution witness for his false implication; that the appellant has failed to
point out any m aterial contradiction and discrepancy which could benefit the defence version;
that there is no error of law, misreading or non- reading of evidence in judgment passed by the
trial court calling for interference by this Court.
For the above reasons, the appeal being devoid of merits is dismissed.
JK/10/Bal 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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