2018 Y L R 1481
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ
SHAH BAKHSH---Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No.18 of 2011, decided on 31st May, 2017.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Circumstantial
evidence ---Prosecution case was that appellant's wife and complainant's sister -in-law came to her
parent's house along with her father -in-law, and found the house loc ked---Lock was broken and
discovered the dead bodies of her parents along with that of a minor ---Accused was charged for
the murder of three persons ---Record showed that complainant had narrated in the report that he
talked to accused on the phone of his deceased father -in-law while he was in the house of
deceased, which established the presence of accused in the house of deceased---Said narration
was omitted by the complainant in his statement recorded before the court ---Said portion of
statement was disho nestly omitted by the complainant despite the fact that his minor son aged
about 8/9 years was cold bloodedly murdered in the same occurrence ---Investigating Officer had
failed to get the Call Data Record of the deceased and the complainant ---Investigating Officer
did not procure the Call Data Record of the accused which could have established the presence of accused at the place of occurrence--- Investigating Officer had failed to collect finger prints
from the blood- stained articles and did not send the sa id articles for chemical analysis ---
Complainant had admitted in cross -examination that close relatives of the deceased resided in the
neighboring vicinity but neither any close relative of the deceased nor anyone else was examined as witness of last seen evidence in respect of presence of the accused in the house of deceased at the relevant time ---Circumstances had established that evidence had totally been shattered only
because of grave criminal negligence of the Investigating Officer ---Accused was acquit ted by
setting aside conviction and sentence recorded by the Trial Court.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qanun- e-Shahadat (10 of 1984), Art. 39---Qatl -i -amd---Appreciation of
evidence ---Disclosure by accused ---Admissibility ---Disclosure memo of accused and memo of
pointation of place of occurrence would be of no avail to the prosecution's case when the alleged disclosure was not followed by any discovery ---Said disclosure, therefore, under Art. 39 of the
Qanun- e-Shahadat, 1984 was not adm issible in evidence.
(c) Administration of justice ---
----When law had contemplated to do anything in a particular manner, any deviation there -from
amounted to violation of law ---Things stipulated by the law were to be done in the same manner
and if said stipulation was not followed in letter and spirit, same would amount to violation of
law and would have no credence in the eyes of law.
(d) Criminal Procedure Code (V of 1898) ---
----S. 164--- Retracted confession ---Scope--- Retracted confession, if corro borated in material
particulars could be based for recording conviction. Daniel Boyd v. The State 1992 SCMR 196 rel.
(e) Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd---Appreciation of
evidence ---Ret racted judicial confession ---Scope ---In the present case, there was no eye -witness
of the occurrence ---No direct evidence was available to corroborate the retracted judicial
confession and medical evidence was also not in line with the retracted judicial confession---
Case against the accused was one of no evidence, in circumstances.
Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 rel.
(f) Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd---Appre ciation of
evidence ---Confessional statement ---Scope---Statement of Judicial Magistrate showed that only
fifteen minutes time was given to the accused to ponder upon before recording his confessional
statement --- Judicial Magistrate failed to append requis ite certificate with the judicial confession
of the accused ---Judicial Magistrate did not mention that the confessional statement was
recorded through interpreter upon the accused's utterance in Brahvi language which was recorded in Urdu---Judicial Magistr ate not only in his court statement but on the confessional statement
mentioned the date of recording the confession as 1.11.2009--- Record transpired that FIR was
lodged on 1.11.2009 and the accused was arrested on 2.11.2009---Disclosure as alleged by the
accused was recorded on 9.11.2009, thus, an error in respect of date on which the alleged confession was recorded severely damaged the prosecution's case---Circumstances established that Judicial Magistrate committed a gross illegality in recording the co nfessional statement of
the accused which was not curable, and vitiated the trial ---Accused was acquitted in
circumstances by setting aside conviction and sentence recorded by the Trial Court.
Ahsan Rafiq Rana for Appellant.
Ameer Zaman Jogizai, Prosecu tor General for the State.
Date of hearing: 30th May, 2017.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This judgment shall dispose of
Criminal Jail Appeal No. 18 of 2011, which has been filed by the appellant through
Superintendent Central Jail Mach, wherein the appellant has challenged his conviction and sentence recorded by the learned Sessions Judge Kalat at Mastung ("trial court") vide judgment dated 18.05.2010 ("impugned judgment"), whereby the appellant was convicted under Section
302(b), P.P.C. on three counts and sentenced to suffer rigorous imprisonment for life. The
appellant was also directed to pay compensation amount of Rs.300,000/ - to the legal heirs of the
deceased Muhammad Wafa, Mst. Dur Bakht and Abdul Rehman, in default thereof the appellant
was further directed to suffer six months simple imprisonment with benefit of section 382- B,
Cr.P.C.
2. This appeal was initially filed through Superintendent Central Jail Mach and was
registered as jail appeal. On 22.06.2011 Mr. Ahsan Rafiq Rana, A dvocate was appointed as
counsel for the appellant at State expenses, however on 30.07.2012 Mr. Dawood Kasi, Advocate (Martyred) entered appearance on behalf of the appellant, therefore the services of Mr. Ahsan Rafiq Rana, Advocate were discharged. Again Mr. Ahsan Rafiq Rana, entered appearance and filed power on behalf of the appellant.
On 17.04.2014 a notice for enhancement of sentence was issued by the beach when the
following order was passed: --
"The perusal of impugned judgment reflects that the appellant has been found guilty of triple murder, but has been awarded imprisonment for life, so we would like to issue notice to appellant as to why, the sentence awarded to him may not be enhanced as contemplated by law.
Learned counsel for the appellant waives notice, so office to fix matter in the first week
of May 2014."
3. PW-1/Complainant Muhammad timer submitted a report before SHO PS City Mastung
on 1.11.2009 which states as under: --
4. The appellant was arrested on 02.11.2009 and during investig ation his disclosure/extra -
judicial confession was recorded on 09.11.2009 and his judicial confession under section 164,
Cr.P.C. was recorded by the Judicial Magistrate, Mastung (according to record judicial confession was recorded on 10.11.2009 but in the statement same is shown to have been
recorded on 01.11.2009). On completion of investigation, challan was submitted before the trial
court. After fulfilling the requisite formalities, charge was framed and read over to the appellant to which, he did not plead guilty and claimed trial.
The Prosecution in order to substantiate the allegation produced as many as nine
witnesses. On conclusion of prose -cution's side, the appellant was examined under section 342,
Cr.P.C., in which he once again professed his innocence. How -ever he did not opt to record his
statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any defense witness. The trial court on completion of the trial convicted the appellant and sentenced him vide impugned judgment as mentioned above, hence this appeal.
5. Mr. Ahsan Rafiq Rana, learned counsel for the appellant at the very outset contended that
this is a case of no evidence as such the judgment passed by the trial court is not sustainable in the eyes of law; that despite the fact that the prosecution witnesses remained inconsistent throughout the trial the trial court has recorded conviction against the appellant, which is against the principles of justice; that the prosecution story is based on hear -say evidence, which would
otherwise require strong corroboration through independent, cogent, confidence inspiring and reliable evidence, in absence whereof the whole prosecution case loses its sanctity and veracity; that there are material contradictions in the testimonies of the prosecution witnesses to render the whole case against the appellant doubtful, therefore under such circumstances too, there was no occasion for the trial court to record conviction against the appellant. He finally urged that since there is sufficient doubt in the prosecution in addition to many illegalities and improprieties therein therefore, the impugned judgment is not sustainable and the appellant is liable to be acquitted of the charge.
6. The learned PG strongly opposed the contention and stated that the prosecution has
successfully established the case against the appellant beyond any shadow of doubt and the trial court has rightly convicted the appellant. He urged for dismissal of the appeal.
7. Heard. Record perused.
8. It is the prosecution's case that the appellant's wife and the complainant's sister -in-law
Mst. Parveen came to her parent's house situated in Killi Khwasam, Mastung along with her
father -in-law Haji Khan Kurd (father of appellant) on 31.10.2009, where the house was found
locked, therefore, they went to the neighboring, house and after having tea, her father -in-law left
for his house, while she stayed overnight in the neighbor's house and next day went to her relative Ghulam Rasool to inquire about her parents, but she was told that they had not come there, on which she went to Khadkoocha to her sister's house (complainant's wife) and apprised them about disappearance of her parents. Her brother -in-law/complainant Muhammad Umer in
suspicion went to her parent's house, where, after breaking the lock they entered the house and found the dead bodies of Muhammad Wafa, Mst. Dur Bakht and minor Abdur Rehman lain in a blood pool covered in blankets. It was observed that the deceased had been done to death by means of sharp weapon. It was a lso alleged by the complainant that in between the night of
Thursday and Friday, he and his wife called the deceased on mobile phone, when they came to know that Shah Bakhsh (appellant) son of Haji Khan, their brother -in-law and son- in-law of the
deceased Muhammad Wafa was also present there and he too talked to them on phone. It was
also alleged that Shah Bakhsh and his wife Mst. Parveen were quarrelsome, thus the complainant
was sure that said Shah Bakhsh along with his other companions has murdered his f ather -in-law
and mother -in-law along with minor Abdur Rehman (son of complainant).
9. The disclosure of appellant Ex.P/8- A and challan Ex.P/9- G show that the appellant was
informed by the complainant on telephone about culpable homicide of the deceased and on his
query he was invited to Mastung for offering Fatiha. On his arrival he was arrested on 02.11.2009. The record shows that on receiving information and after submission of the application for registration of FIR by the complainant, PW -9/Ali Ahmed, IP /SHO proceeded to
the place of occurrence and after shifting the dead bodies to the Civil Hospital Mastung he prepared visual sketch of the site (Ex.P/9- B) and also recovered a blood- stained pickax from the
kitchen of the deceased's house.
10. PW-1 Muhamma d Umer appeared before the court and iterated his stance as mentioned
in his report Ex.P/1- A and deposed that due to previous strained relationship between the
appellant and his (appellant's) wife, he suspected the appellant for the murder of the deceased
however PW -1 dishonestly omitted the allegation of presence of the appellant at the deceased's
house in between the night of Thursday and Friday when he talked to his father -in-law and the
appellant on phone.
11. PW-2 Muhammad Ibrahim who was allegedly acc ompanying the complainant, appeared
and supported the complainant's version with regard to breaking the house -lock of the deceased
at the time of recovery of the dead bodies. He also produced the recovery memo of three blood stained pillows as Ex.P/2- A, re covery memo of blood stained pickax Ex.P/2- B, recovery memo
of blood stained clothes of the deceased as Ex.P/2 -C.
12. PW-3 Amjad Khan, Judicial Magistrate appeared and produced confessional statement of
the appellant recorded under section 164, Cr.P.C. as Ex.P/3 -A.
13. PW-4 Dr. Abdur Rasheed Jamali, police surgeon appeared and produced the post -mortem
reports of the deceased Muhammad Wafa Ex.P/4 -A, minor Abdur Rehman Ex.P/4- B and Mst.
Dur Bakht Ex.P/4- C. The witness has noted following seats of injuries on person of the deceased.
"On 2.11.2009 at about 10- 00 a.m. the dead body of Muhammad Wafa son of Abdul
Rehman was brought by ASI Pir Muhammad. I conducted internal post -mortem of dead
body and found following injuries on his person: --
1. Dead body wearing half white Shalwar Qamees.
2. Body was full putrefied.
3. Bulging of eyes.
4. Protruted the tongue.
5. Incised wound about 10 x 6 c.m. bone deep and fracture, brain matter expelled out, from left temporal region to left volt of skull.
6. Incised wound a bout 6 x 4 c.m. from left mandible, lower half of left ear to occipital
region, bone deep and fracture, in which brain matter expelled out.
7. Incised wound about 10 x 6 c.m. on left occipital region, bone deep and fracture, brain
matter expelled out.
CAUSE OF DEATH:
Severe injuries to vital organ (Skull - brain) and immediate death.
WEAPON JUSED[sic]:
Sharp edged weapon.
The time between death and postmortem within four days.
Then I issued certificate as Ex.P/4 -A which bears my signature.
On the sa me date and time the dead body of Abdul Rehman son of Muhammad Umer
brought by ASI Pir Muhammad. I conducted the internal post mortem of dead body and found following injuries on his person: --
1. Dead body wearing half white Shalwar Qamees.
2. Body was f ull putrefied.
3. Eyes were bulging and tongue was protruded.
4. Incised wound about 9 x 4 c.m. from right temporal just above right ear extend to occipital region, bone deep with fracture, in which brain matter expelled out.
CAUSE OF DEATH:
Severe injur ies to vital organ (Skull -brain) and immediate death. WEAPON JUSED
[sic]:
Sharp edged weapon.
The time between death and postmortem within four days.
Then I issued certificate as Ex.P/4 -B which bears my signature.
On the same date at about 10- 30 a.m. th e dead body of Mst. Dur Bakht wife of
Muhammad Wafa was brought by ASI Pir Muhammad. I conducted the internal post mortem of dead body and found following injuries on his person: -
1. Wearing pink colour Shalwar qamees with Balochi emendry post mortem done with
the help of a senior staff nurse.
2. Total body was putrified
3. Eyes were bulging and tongue was protruted.
4. Incised wound 10 x 5 c.m., from right parital to right vault of skull bone deep and
fracture and brain matter expelled out.
5. Incised w ound 8 x 3 c.m., from nose right eye to right temporal, bone deep and
fracture.
6. Incised wound 4 x 2 c.m. on left cheek, bone deep and fracture.
CAUSE OF DEATH:
Severe injuries to vital organ (Skull -brain) and immediate death.
WEAPON USED: --
Sharp edged weapon.
The time between death and postmortem within four days.
Then I issued certificate as Ex.P/4 -C".
14. PW-5 Safar Khan, ASI who was accompanying the IP/S HO Ali Ahmed, appeared and
deposed in respect of recovery of dead bodies, blood stained pickax and produced memo of site inspection Ex.P/5- A.
15. PW-6 Mst. Parveen (wife of appellant) appeared and deposed that about four months ago
she was present in her h ome at Maro Dasht when she came to know that her parents and nephew
had been murdered. This witness did not support the prosecution's case and apparently resiled from her statement recorded under section 161, Cr.P.C., therefore, her statement recorded at t he
trial being relevant is reproduced herein below: --
16. PW-7 Ghulam Sarwar SHO appeared and produced a supplementary challan with regard
to death certificates of the deceased as Ex.P/7 -A.
17. PW-8 Shah Muhammad, SI appeared as witness to the extra -judicial
confession/disclosure of the appellant and produced the same as Ex.P/8- A. He also produced
memo of pointation of place of occurrence made by the appellant as Ex.P/8 -B.
18. PW-9 Ali Ahmed, IP/SHO appeared as investigation officer of the case, who produced
the FIR (Ex.P/9- A), visual sketch map of the place of occurrence (Ex.P/9- B), inquest reports of
deceased (Ex.P/9 -C, Ex.P/9 -D and Ex.P/9- E). He also produced memo of pointation of place of
occurrence (Ex.P/9 -F) and the challan (Ex.P/9- G). He also depos ed that the appellant was
arrested on 02.11.2009 from Mastung and on 10.11.2009, was produced before the learned
Judicial Magistrate for recording his judicial confession.
19. On perusal of case file it reveals that the prosecution's case solely hinges upo n the
retracted judicial confession of the appellant and except said piece of evidence, even the
circumstantial evidence gathered and recorded by the investigation officer were not brought on record during trial. The most important part of the complainant' s statement as narrated in his
report (Ex.P/1 -A) which could have established the presence of the appellant in the deceased's
house, was omitted by the complainant in his statement recorded before the court. He in his
report Ex.P/1- A stated that
But thi s portion of statement was dishonestly omitted by him, despite the fact that his
minor son aged about 8/9 years was also cold bloodedly murdered in the same occurrence. The
investigation officer has also failed to properly investigate the culpable homicide of three human
beings and he in utter disregard to his legal and moral obligation did not bother to avail the Call
Data Record (CDR) of the deceased and the complainant. He even did not procure the CDR of appellant's cell phone which could have establishe d his (appellant's) presence at the place of
occurrence. The investigation officer has also failed to collect finger prints from the blood stained pickax, from the tea cups and kettle found in the deceased's house. Even he did not bother to send the blood stained articles for chemical analysis report.
On the other hand though the statement of Mst. Parveen (wife of appellant) was recorded
under section 161, Cr.P.C., which could have brought sufficient corroboration to other circumstantial evidence in respect of pre and post murder behavior of the appellant but she too
was declared hostile to the prosecution, when she disowned her statement recorded under Section 161, Cr.P.C. PW -1/complainant admitted in his cross -examination that close relatives of the
deceased namely Abdul Ghafoor, Hazoor Bakhsh and Ghulam Rasool were also residing in the neighboring vicinity. Astonishingly, when the appellant was allegedly in his in- laws' house since
28/29 October, 2009, then why, neither the aforesaid neighboring relatives nor anyone else was
examined as witness of last seen evidence at least in respect of presence of the appellant in the deceased's house at the relevant time. Thus, the probable circumstantial evidence has totally been shattered only because of grave crimin al negligence of the investigation officer.
20. The disclosure memo of the appellant Ex.P/8- A and memo of pointation of place of
occurrence Ex.P/8 -B were also of no avail to the prosecution's case for a valid reason that the
alleged disclosure was not foll owed by any discovery, therefore, under Article 39 of the Qanun-
e-Shahadat Order 1984 was not admissible in evidence. Whereas Ex.P/8- A (pointation memo)
was also not helpful to the prosecution as the place of occurrence was well within the knowledge of the police and the other witnesses.
21. Adverting to the judicial confession of the appellant recorded under Section 164 Cr.P.C.
by PW -3 Amjad Khan, Judicial Magistrate, it is painfully observed that the Judicial Magistrate in
his on oath statement before the trial court deposed that on 01.11.2009 when he was posted as
Judicial Magistrate, Mastung, the appellant was produced before him for recording his judicial confession. He also stated that after recording the statement (Ex.P/3 -A) he also appended his
certificate with the judicial confession of the appellant. Unfortunately in his cross -examination in
reply to question posed by the defense counsel, he stated that he had provided fifteen minutes to
the appellant to think/ponder. He also admitted that he does not know Barahvi language and further admitted that 'it is correct to suggest that the appellant does not know Urdu language and his statement was recorded through interpreter'. He also admitted that he did not mention the said
facts in his certificate appended with the confessional statement of the appellant. (emphasis
provided)
22. In order to better understand the controversy it would be instructive to reproduce the
provision of section of 164, Cr.P.C., which runs as under: --
164. Power to record statemen ts and confessions .--(1) Any Magis -trate of the first
class and any Magistrate of the second class specially empowered in this behalf by the
Provincial Government may, if he is not a police -officer, record any statement or
confession made to him in the course of an investi -gation under this Chapter or at any
time afterwards before the commencement of the inquiry or trial.
[(IA) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross -examining the witness making the
statement].
(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the cases. Such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no magistrate shall record any such confession unless, upon questioning the person making it, he has reasons to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such
record to the following effect:
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any con -fession he may make may be used as evidence against him and I believe that
this confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him."
The procedure for recording the statement under sections 164 and 342, Cr.P.C. has been
enumerated under section 364, Cr.P.C. which provides as under: --
364. Examination of accused how record .---(1) Whenever the accused is examined by
any Magistrate or by any court other than a High Court the whole of such examina -tion,
including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English, and such record shall be shown or read to him or, if he does
not under -stand the language in which it is written, shall be interpreted to him in a
language which he under -stands, and he shall be at liberty to explain or add to his
answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall
be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate
or Judge shall certify under his own hand that the examination was taken in his presence
and hearing and that the record contains a full and true account of the statement made by
the accused.
(3) In a case in which the examination of the accused is not recorded by the Magistrate or
Judge himself he shall be bound as the examination proceeds, to make memorandum thereof in the language of the Court or in English, if he is sufficiently acquainted with latter language, and such memorandum shall be written and signed by the Magistrate or
Judge with his own hand and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply t o the examination of an accused
person under section 263."
23. It is well settled that when the law contemplates to do anything in a particular manner any
deviation there -from amounts to violation of law. Things stipulated by the law are to be done in
the same manner and if said stipulation is not followed in letter and spirit it will amount to
violate the law and will have no credence in the eyes of law.
24. Now the question of prime importance before us is whether the evidentiary value of
retracted judici al confession can be pressed into service for recording conviction against the
appellant. Therefore, keeping in view the seat of injuries noted by the medical witness PW -4 it
would be helpful to reproduce the alleged confessional statement of the appellant which speaks
as under: --
On perusal of aforesaid retracted confession and for considering its evidentiary value, the
principles enumerated by the Hon'ble Apex Court in Haq Nawaz's case (2000 SCMR 785) are
helpful to understand the controversy, therefor e it is instructive to reproduce the relevant passage
there- from, which stipulates as follows: --
Mere fact that the appellant retracted his confession at the trial, in the circumstances, could not lead to the conclusion that the confession was involuntary. It is a settled law
that the conviction of an accused can be based even on a retraced confession, if the Court is satisfied that the confession was made voluntarily. However, as a rule of caution and prudence, the Court looks far other evidence and materi al on record of the case to seek
corroboration of the retracted confession, before convincing the accused (Muhammad Gul v. The State (1991 SCMR 942). It is also well settled that the retracted confession can also be used as a corroborative piece of evidenc e for proving prosecution theory
(Muhammad Akram v. The State (1995 SCMR 1359). The following broad principles
were laid down by this Court in the case of Ch. Muhammad Yaqoob v. The State (1992
SCMR 1983) to evaluate the evidentiary value of a confessional statement:--
From the above -cited cases, inter alia, the following principles of law are deducible:--
That if a statement of fact made by an accused in a confession is of the nature that if it is
assumed to be true, it would negate the offence alleged to be confessed, it is called an
exculpatory confession.
(ii) That a statement of an accused that contains self -exculpatory matter cannot amount to
confession.
(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence,
if the Court is of the view that the same is voluntary and is true, but as a rule of prudence,
it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particula rs.
(iv) That though the confession of a co -accused cannot be made foundation of conviction
but it may be used in support of other evidence.
(v) That the confession of a co -accused is an evidence of a weak character.
(vi) That under Islamic Jurisprudence, in order to make a confession reliable, it should be
voluntarily made and not on account of any coercion, duress or violence.
(vii) That any delay in recording of a confession may or may not be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others (Supra), this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confessions for the reaso ns that the Court was satisfied that the retracted
confessions were not tutored and were, in fact, made voluntarily.
(viii) That any lapse on the administrative side on the art of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the
Court is satisfied that the lapses on his part have not, in any way, adversely affected the
vluntariness or truthfulness of the confession.
(ix) That if an accomplice's evidence is not corroborated in material respect it cannot be
acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice."
In view of aforesaid principles it can safely he held that retracted confession if
corroborates in material particulars can be based for recording conviction and for rendering this view we have been supported by the dictum laid down by the Hon'ble Apex Court in the case of Daniel Boyd v. The State (1992 SCMR 196), relevant portion whereof runs as under: --
"19. As regards the confess ion made by Daniel Boyd (Saifullah) is concerned. it cannot
be relied upon for any purpose for the following reasons: --
(1) It is retracted and retracted confession must be corroborated by other evidence which is lacking in the case.
(2) The printed form i s in Urdu and we do not know whether there was any translation of
the question on the front page of the confession (available on page 27 of the Print Book).
(3) There is nothing to show that Farukh Sair, Magistrate, who recorded the confessional statement had disclosed to him that he was a Magistrate. Again, no question has been put
to him that for how long he remained in police custody and whether any pressure was brought on him by the police for making the confession.
The test whether the confession was admissible in evidence as having been recorded
according to law and is being true and voluntary was considered in a case reported PLD 1958 (W.P.) Lah. 559 as follows: --
"The language of subsection (3), does not admit of any ambiguity. It is mandatory provision of law, which requires that the warning should be given before the recording of
the confession. It obviously means that the warning is to be given before commencing the
recording of the confession. It will be a meaningless warning, if i t is given half an hour,
or an hour or a few hours earlier. The very object will be frustrated if the warning is not
given at the commencement of the recording of the confession.
It must be a real endeavour on the part of the Magistrate to find out if the confession is being made voluntarily.
Besides putting the set questions the magistrate is required to make a real endeavour to find out the voluntary nature of the confession, it is a solemn duty which should be performed with great care and caution, and not mechanically.
Magistrate will be well advised to adopt the following procedure recording a confession: -
As soon as a person is produced before a Magistrate for getting his confession recorded, his handcuffs should be removed and all the police officers shall be turned out of the Court room, and he should be informed that he was before a Magistrate and that whether he made any statement or not, he will not be handed back to the police, but will be sent to the judicial lockup. He should then be given suffi cient time to ponder over the matter.
Then he should be warned that he was not bound to make any statement and if he did so,
it may be used as evidence against him and then the following questions should be put to him:--
(1) For how long have you been wit h the police?
(2) Has any pressure been brought to bear upon you to make a confession?
(3) Have you been threatened to make a confession?
(4) Has any document been given to you?
(5) Have you been told that you will be made an approver?
(6) Why are you making this confession?
Then if the Magistrate is satisfied that the prisoner is making the confession voluntarily, he should put the set questions as given in the printed form and recorded the confession. The job is, no doubt, thankless and somewhat tedi ous, but it must be remembered that on
it depends the fate of the prisoner.
The record of the confession must be so prepared that the Court dealing with such a
confession should have no difficulty in finding for itself whether the confession was
made voluntarily or not."
If the above warning and questions are not put to the accused then the so- called
confession is inadmissible in evidence and is not voluntary in nature. In the present case, these questions were not put to appellant Saifullah before recordin g of the confession and
no warning was given to him, therefore, the confession is not admissible in evidence. In a
case reported in PLD 1964 SC 813 it has been laid down as follows: -
"Unless a retracted confession is corroborated in material particulars, i t is not prudent to
base a conviction in a criminal case on its strength alone. It is the duty of the Court that is
called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself full y that the confession cannot but be true."
25. Case in hand was a blind murder case, the judicial confession whether retracted or not,
was not a direct piece of evidence and same being corroborative piece of evidence requires independent corroboration through direct evidence or by means of other circumstantial evidence. Admittedly, there was no eye -witness of the occurrence, therefore, no direct evidence was
available to corroborate the retracted judicial confession but the fact with regard to presence of the appellant in the deceased house at the relevant time could be termed as a valid piece of
circumstantial evidence but the complainant has dishonestly and intentionally omitted the said portion of his statement, while recording his on oath statement befor e the court. On the other
hand the pre and post murder behavior of the appellant could be another circumstantial factor to prove his guilt but PW -5 Mst. Parveen, did not support the prosecution in this respect and
therefore was declared hostile. Despite of her being subjected to lengthy cross -examination,
nothing beneficial to the prosecution could have been extracted from her statement.
26. The last but not the least, the medical evidence being another piece of circumstantial
evidence could have brought sufficient corroboration to the retracted confession of the appellant but same did not support the version given by the appellant in his confessional statement whereas, in the retracted confession the appellant has allegedly confessed the murder of the deceased but was silent in respect of pickaxe blows to each deceased. The post -mortem reports
show three blows on the face and skull of deceased Muhammad Wafa and Dur Bakht. However, it speaks about only one blow of pickaxe on person of minor Abdur Rehman, thus it can be
concluded with clarity that medical evidence was not in line with the retracted judicial confession, therefore, while excluding the said piece of evidence the case against the appellant will become one of no evidence. Reference is made to the case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329). For facility of reference relevant portion thereof is reproduced herein below: --
"4 . There is no cavil to the proposition that a conviction can be based on retracted judicial confession pr ovided it is corroborated by independent circumstantial evidence. In
the instant case, however, the medical evidence is in conflict with the version given in the judicial confession."
The confessional statement being retracted in nature was not corroborat ed by the medical
evidence as it has already been observed herein above that judicial confession whether retracted
or not is a corroborative piece of evidence, which requires independent corroboration through
direct evidence or through other circumstantial evidence but these important and vital links of the
chain of corroborative evidence were also missing, on basis whereof conviction recorded against the appellant was not sustainable.
27. The statement of PW -3/judicial magistrate shows that only fifteen minutes' time was
given to the appellant to ponder upon before recording his confessional statement, while in addition the Judicial Magistrate's failure to append the requisite certificate with the judicial confession of the appellant, he has also failed to mention that the confessional statement was recorded through interpreter upon the appellant's utterance in Brahvi language which was recorded in Urdu language. Since the statement of this witness was very material to decide the fate of the case and he in h is examination -in-chief deposed that he had appended the certificate
with the statement but in the paper book prepared by the office there was no such certificate, therefore, to avoid the possibility of judicial error, we have sent a requisition for calling the original record of the case file. On receipt of original file of the case we have gone through the same but could not find any such certificate therein. It has further been observed that PW -
3/Judicial Magistrate not only in his court statement but in the confessional statement (Ex.P/3 -A)
mentioned the date of recording the confession as 01.11.2009. On the other hand the challan
Ex.P/9 -G and the statement of PW -9/investigation officer as well as record of the case show that
the FIR was lodged on 01.11.2009 and the appellant was arrested on 02.11.2009. His alleged
disclosure Ex.P/8- A was recorded on 09.11.2009. Thus, an error in respect of date on which the
alleged confession was recorded severely damaged the prosecution's case, when it was wrongly stated in on oath statement of the witness. Though, the witness being judicial officer had ample
opportunity to rectify or clarify the error in his court statement but he was adamant and his unattended attitude made him fall in static obliviousness with regard to his obligation as a
judicial officer.
The Judicial Magistrate was bound to render the certificate after recording the statement
under Section 164, Cr.P.C. and he was also bound to mention that the statement was recorded with the help of interpreter bec ause the appellant was not familiar with Urdu language or with
the language of the court. The failure on the part of Judicial Magistrate by not appending the requisite certificate with judicial confession, a gross illegality has been committed by him, thus
the said illegality was not curable, which amounted to vitiate the whole trial.
28. The failure on the part of judicial magistrate/PW -3 to observe the requisite formalities
before recording the confessional statement has actually ruined the whole prosecut ion case.
Though he deposed in respect of appending the certificate with the retracted judicial confession of the appellant but neither the said certificate was available on record nor he could advance any plausible and satisfactory explanation in respect of non -availability of said certificate in the
envelope (Article- 11) in which the said confession was sealed. This glaring illegality has further
shattered the prosecution case as a whole.
In view of above discussion failure on the part of judicial magist rate to append the
requisite certificate subject to sub -sections (2) and (3) of section 364, Cr.P.C. was a gross
illegality, which is not curable under section 533, Cr.P.C. Moreover, because of wrong mentioning of the date of recording the alleged judicial confession of the appellant and failure to
mention that same was recorded through interpreter, the judicial confession cannot be considered
as conclusive proof of the guilt of the appellant. In this behalf reliance is placed on the cases of Mst. Ameeran K hatoon v. Mst. Shamim Akhtar and others (2005 SCMR 512) and Muhammad
Kalam v. The State (1999 MLD 55).
29. Thus, the aforesaid discussion brings us to irresistible conclusion that on basis of
evidence led by the prosecution neither any case is made out against the appellant nor the conviction recorded by the trial court is sustainable under the law. Consequently, this appeal is accepted. The impugned judgment dated 18.05.2010 passed by the learned Sessions Judge Kalat Division at Mastung in Sessions Murder Case No. 29 of 2009 is set aside. While extending benefit of doubt the appellant Shah Bakhsh alias Babey son of Haji Khan, caste Kurd is acquitted of the charge in FIR No. 110 of 2009 Police Station City, Mastung under sections 302 and 34, P.P.C. The notice of enhancement of sentence issued to the appellant is hereby withdrawn.
30. Before parting with this judgment we are dismayed to observe here that only because of
criminal negligence committed by the investigation officer and gross illegality committe d by the
then Judicial Magistrate, Mastung, the culpable homicide of three human beings has been shattered and went scot free from the ordain of law and principles of justice. Therefore, copy of this judgment be sent to DIG/CPO Quetta for information and necessary action against Ali Ahmed, IP/SHO and to the Inspection Branch of this court with direction to place the same before the Hon'ble Chief Justice on administrative side.
JK/94/Bal Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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