2019 Y L R 2603
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
AKHTER MUHAMMAD---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 417 of 2017, decided on 16th July, 2019.
Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), Ss. 164 & 410---Qatl -i-Amd ---
Appreciation of evidence ---Delayed confession--- Forensic report, non-production of ---Effect -
--Complainant was mother of deceased and lodged FIR against accused for committing Qatl -
i-Amd of her son--- Sole eye- witness of occurrence contradicted case of prosecution and
appellant was kept in illegal confinement of more than 21 days instead of 14 days ---On 17th
day of the occurrence, not only his extra -judicial confession was recorded but he was also
produced before the Magistrate and his confessional statement under S. 164, Cr.P.C. was
recorded ---After recording confessional statement, accused was further detained by
investigating officer for further 4 days instead of his immediate shifti ng to judicial custody---
No implicit reliance could be placed on confessional statement of accused ---Prosecution
failed to establish the death of deceased and despite recovery of crime weapon neither crime weapon was produced in court nor Forensic Science Laboratory report was obtained to affirm that same was in running condition--- Prosecution failed to establish charge against accused
through confidence inspiring evidence beyond shadow of reasonable doubt ---Trial Court
failed to extend benefit of doubt to the appellant ---Judgment of Trial Court suffered from
misreading, non- reading and mis -appreciation of evidence--- Contradictions and dishonest
improvements in testimonies of interested witnesses existed and independent corroboration lacked in material aspec ts---False implication of accused could not be ruled out ---High Court
set aside conviction and sentence awarded to accused by Trial Court and acquitted him of charge---Appeal was allowed.
Wazir Muhammad and another v. State 2005 SCMR 277; State v. Minhun alias Gul
Hassan PLD 1964 SC 813; Hakim Mumtaz and another v. The State PLD 2002 SC 590 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Sher Baz for Appellant.
Habibullah Gul, Additional P.G. for the State.
Date of hearing: 20th June, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgement disposes of Criminal Appeal No.417 of
2017 filed by the appellant Akhtar Muhammad son of Murad Han, against the judgement
dated 12th December 2017 (hereinafter referred as, "the impugned judgement") passed by learned Additional Sessions Judge, Loralai (hereinafter referred as, "the trial Court"),
whereby the appellant was convicted under Section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay Rs.300,000/ - (Three Hundred Thousand Rupees) as
compe nsation to the legal heirs of deceased Kifayat Ullah as envisaged under Section 544 -A
Cr.P.C. and in default thereof to further suffers six (6) months S.I., with the benefit of Section 382 -B Cr.P.C.
2. Facts of the case are that on 28th May 2016, the compl ainant Mst. Bahadur Jamala
lodged FIR No.04 of 2016 at Levies Station Duki, under Sections 302, 34, P.P.C., stating therein that on 25th May 2016 her son namely Kifayat Ullah boarded on a motorcycle with Zadran and went to the area of Duki -Luni; they reach ed to the area of Talao Bulanda and in
the night of 28th May 2016 they were the guests of appellant Akhtar Muhammad and stayed in his drawing room. According to complainant as informed by Zadran in the morning of occurrence they after offering prayer were waiting for tea, when in the meantime at about 5.30 a.m. he (Zadran) went out for the purpose of urine, while Kifayatullah alias Toor Gul was standing nearby his motorcycle, when all of sudden Akhtar Muhammad made firing with 303 bore rifle upon Kifayatull ah and caused his murder, who after committing the crime
decamped from the place of occurrence. Whereafter. Zadran and Abdul Samad brought the dead body of deceased, which was buried without medical examination and post mortem.
3. On completion of investigation, the appellant was charged in the trial Court, which
indicated the charge and after denial of the appellant, the prosecution produced nine witnesses. Whereafter, the appellant was examined under Section 342, Cr.P.C. However, the appellant neither recorded his statement on oath under Section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial, the trial Court convicted and sentenced the appellant as mentioned above in para No.1, whereafter instant appeal has been filed.
4. Heard the learned counsel and perused the available record. Perusal of record reveals
that the FIR was lodged on the complaint of PW -1 Mst. Bahadur Jamala, who is the mother
of deceased and also complainant of the case. Though this witness is not the direct witness of
the occurrence and she only lodged the FIR, but her contradictory statement has significantly effected the case of prosecution. This witness in her examination in chief mostly reiterated the contents of her fard -e-bayan, but her examination in chief is silent about the exact date
and time of occurrence. According to this witness she was informed about the incident on the day of occurrence at about 10/11 a.m., whereafter the deceased was brought in her house at the time of Zohar prayer and the de ceased was buried at the time of Asar prayer. However,
she has admitted in her cross -examination that on the third day of occurrence she filed fard-
e-bayan for lodging of FIR. To the contrary the contents of FIR showing the date of
occurrence as 28th May 2 016 at about 5.30 a.m. Being so, if the occurrence had taken place
on 28th May 2016 and the fard- e-bayan was filed before tehsildar for recording the FIR on
the third day of occurrence, then under such circumstances of the case the FIR should have
been lod ged on 30th May, 2016, but instead it was lodged on 28th May 2016. This has
created reasonable doubts with regard to exact date and time of occurrence as well as the date
of lodging of FIR and it appears that in order to fill -up the lacuna the FIR was lodged on the
preceding date.
5. Adverting to the statements of PW -2 Himatullah and PW -3 Abdul Samad, suffice to
observe that both the witnesses had not witnessed the crime directly rather both the PWs were informed subsequently about the occurrence and therea fter they had taken the deceased
to his native village and burial of deceased was taken in their presence. The evidence of PW -
1, PW -2 and PW -3 being hearsay evidence and not helpful to the case of prosecution in any
manner.
6. The star witness of the prose cution is PW -5 Zadran, whose statement is contradictory
to the statements of remaining witnesses on material aspects and he has also made dishonest improvements from his earlier deposition. This witness has failed to mention the exact date or time of occur rence. He has also failed to mention the date on which his statement was
recorded by the trial Court. According to PW -5 about ten months ago from the date of
incident he along with Kifayatullah went to Mekhtar in connection of some domestic work and in the night stayed in the house of appellant Akhtar Muhammad, when in the early
morning the occurrence had taken place. This portion of his statement is in contradictory to the case of prosecution, as according to the contents of FIR and the statement of PW- 1 the
deceased along with PW- 5 left their village on 25th August 2016, while the occurrence had
taken place in the early morning of 28th August 2016. To the contrary the statement of PW -5
reveals that on the date when they left their house, in the night they stayed in the house of the appellant. Admittedly, the statement of PW -5 is contradictory to the case of prosecution on
material aspects and without looking for any other aspect of the case, the sole contradictory statement of direct eye -witness of the occu rrence cannot make basis for awarding or
maintaining the conviction of the appellant.
7. So far the extra judicial confessional whilst recorded in police custody is concerned,
suffice to observe here that the said statement was recorded on 13th June 2016, while the appellant was arrested on 28th May, 2016, meaning thereby that the said statement was recorded on the 17- day of his arrest. It is well established principle of law that the conviction
can be granted and maintained by the Courts on the sole basis of extra -judicial confession of
an accused, once it is established through record that such disclosure was infact made voluntarily and truly, but in the case in hand the said disclosure was recorded after expiry of remand period of 14- days, thus the same d oes not satisfy a prudent mind that either it was
true or volunteer and without torture or coercion or inducement, when more particularly it is very easy to procure the extra judicial confession of an accused as it can be cultivated at any time, therefore, it is considered as a weak piece of evidence and Court would expect
sufficient and reliable corroboration for such type of evidence. Hence, no weight can be given to such disclosure recorded during illegal confinement of an accused. Reliance in this regar d is placed to the cases of Wazir Muhammad and another v. State 2005 SCMR 277,
wherein it was held that:
"There is no cavil with the proposition that the extra -judicial confession is a very
weak type of evidence and no conviction could have been awarded without having
strong corroboration which aspect of the matter hardly needs any comments because
the statement of Muhammad Ashiq (P -W.2) itself is not worthy of credence and once
it is disbelieved no corroboration could be sought from his statement and question of corroboration becomes immaterial."
8. Adverting to the confessional statement of the appellant, as observed in the preceding
para the appellant was attested on 28th May, 2016 and he was produced before PW -8
Khadim Hussain, Judicial Magistrate Duki for recording his confessional statement on 13th June 2016 i.e. 17- day of his illegal confinement. At the most, with regard to its admissibility,
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 warning 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 Levies and if the recorded Magis trate is sure that such statement is being recorded voluntarily without any
pressure, coercion, blackmailing or torture, then under circumstance he will commence
recording of the same. More astonishing fact of the case is that whilst answering the questions, the appellant has brought on record that he was tortured by the Levies. Anyhow,
after recording such confessional the appellant was not shifted to judicial custody, but the
Judicial Magistrate once again handed over the appellant the investigating offic er and the
Investigating Officer after getting recorded the confessional statement of the appellant kept him in illegal confinement of further four days and thereafter sent him to judicial custody. No reliance at all could be placed either on the extra jud icial confession as well as upon the
confessional statement of the appellant, when otherwise the Judicial Magistrate has failed to adhere the relevant provisions of law that the appellant was in illegal confinement, thus instead of shifting the appellant t o judicial custody or taking any legal action against the I.O.,
the Judicial Magistrate has proceeded not only to record such confessional statement, but more astonishingly and surprisingly he once again handed over the custody of the appellant to I.O. who further detained him in illegal confinement till 17th June 2016. The confessional
statement of an accused can only be admissible under the law, once the Court has satisfied that the same has been recorded voluntarily, while the above narrated facts clearl y diminishes
the elements of volunteer and true confession in the case in hand. Thus, for such reasons, we would hold that the confessional statement is inadmissible in evidence is therefore, ruled out of consideration. The Hon'ble Supreme Court of Pakista n in the case of State v. Minhun alias
Gul Hassan reported in PLD 1964 SC 813, has held that
"As far the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, 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 now well -settled that as against the maker himself his confession,
judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement."
9. With reference to the above, it is necessary to mention here that the comparative
study of Sections 61, 167 and 173, Cr.P.C. has made it clear that after arrest of an accused,
the Investigating Agency can detain him for the purpose of inves tigation for a period of 24
hours at the maximum under section 61, Cr.P.C. and if during such period, the Investigating
Agency fails to complete investigation, the Magistrate considering the progress of the case only on well -founded reasons may authorize detention of accused in police custody not
exceeding from 14 -days, as a whole, while the provisions of section 167, Cr.P.C. provides
that on completion of maximum period of police remand, the accused becomes entitled for
trial, and challan/final report unde r section 173, Cr.P.C. is to be submitted before the
competent Court of jurisdiction through Public Prosecutor. The investigation carried out after
expiry of the remand period is illegal and the Investigating Officer has exceeded from its jurisdiction and authority by detaining the appellant for a period of 21- days. The learned
Remanding Judicial Magistrate has also not ensured and directed the Investigating Agency for submission of challan under section 173, Cr.P.C. and he has failed to take notice of unne cessary delay. Admittedly, the extra judicial confession as well as the confessional
statement of the appellant was recorded after expiry of physical remand period, thus the same cannot be taken into consideration as incriminatory pieces of evidence. The H on'ble Supreme
Court of Pakistan in the case of Hakim Mumtaz and another v. The State PLD 2002 SC 590 has held as under:
"However, our emphasis is that notwithstanding the fact that before or after completion of investigation period prescribed under secti on 167, Cr.P.C. if it is not
possible to submit final report, the Investigating Agency should strictly adhere to the provisions of section 173(1), Cr.P.C. and must submit interim challan through Public Prose cutor for trial and the accused arrested in the case should not be kept in custody for indefinite period without any legal justification." [BOLD ADDED]
10. The most important feature of the case is that the prosecution has failed to establish
the unnatural death of the deceased. As observed above from t he statements of PW's, the
deceased was buried without conducting of any medical examination or post -mortem.
According to PW -8 the dead body of the deceased was exhumed on 4th June 2016 in his
supervision and presence as is evident from Certificate Ex.P/8 -A and Dr. Noor Baloch,
Police Surgeon examined the dead body. However, the prosecution has failed to produce the said doctor or place his medical evidence on record. In absence of any medical evidence it cannot be presumed on the mere words of the prosecut ion witnesses that the deceased was
died due to unnatural death.
11. Another material aspect of the case is that the Investigating Officer in his statement
has brought on record that the appellant was arrested along with the crime weapon i.e. rifle and als o recovered crime empties from the place of occurrence. The Investigating Officer
while examining in the Court as PW -9 admitted in is cross -examination that the recovered
Rifle along with empties were sent to FSL for matching and analysis, but failed to place on record the analysis report of FSL. Nothing has come on record that the said recovered Rifle was function or in running condition or that the recovered empties were matched with the said Rifle. In absence of any positive report of FSL, the mere words of the Investigating
Officer are not enough to hold that the recovery of crime weapon was effected and the empties were fired from the said Rifle. Under the peculiar circumstances of the case, we have no hesitation to hold that the prosecution has failed to establish the recovery of the crime weapon from the possession or on pointation of the appellant.
12. The overall reappraisal of the entire prosecution evidence would establish the fact that
the prosecution has failed to substantiate the charge against the appellant through confidence
inspiring evidence. On the one hand, the sole eye -witness of the occurrence contradicted the
case of prosecution on material counts, while on the other hand the appellant was kept in
illegal confinement of more than 21- days instead of 14- days and on the seventeenth day of
occurrence, not only the extra judicial confessional was recorded, but also he was produced
before Magistrate and his confessional statement under Section 164, Cr.P.C. was also
recorded on the 17- day of his arrest and more particularly after recording confessional
statement the appellant was further detained by the Investigating Officer for further four days instead of his immediate shifting in judicial custody. Thus, no implicit reliance could be placed upo n the confessional statement of the appellant. Furthermore, the prosecution has
failed to establish the unnatural death of the deceased and even despite recovery of crime weapon neither the crime weapon was produced in the Court nor the FSL report was obta ined
to affirm that the same was in running condition. Admittedly, the prosecution has badly failed to establish the charge against the appellant through confidence inspiring evidence and beyond shadow of reasonable doubts and the learned trial Court while delivering the
impugned judgement has failed to extend the benefits of such doubts in favour of appellant, bare reading of impugned judgement reflects that the same is suffering from misreading, non- reading and misappreciation of evidence in its true since and perspective. Thus, in view
of contradictions and dishonest improvements in testimonies of interested witnesses, which are lacking independent corroboration in material aspects of the case, the false implication of the appellant cannot be ruled out of consideration as the appellant throughout the case has
taken the plea of his false implication. The above legal defects in the prosecution case were not considered while passing the impugned judgment. It is well settled principle of law that a wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and to society, because the real offender is not brought
to justice, wrongly conviction undermine the credibility of the legal system, whenever witnesses are mistaken, it is rarely because they lie or misrepresent the facts. Needless to emphasize that accused was entitled to be extended benefits of doubt as a matter of right, but the same was withheld. Even an accused cannot be deprived o f benefit of doubt, merely
because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts apparent from the case record. Reliance in this regard is placed on the case of Tariq P ervaiz v. The State 1995 SCMR 1345, wherein
the Hon'ble Supreme Court has held that, "The concept of benefit of doubt to an accused is deep -rooted in our country. For giving him benefit of doubt it is not necessary that there
should be many circumstances c reating doubt if there is a circumstance which creates
reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons the appeal is accepted, the impugned judgment dated 12th
December 2017 passed by learned Additional Sessions Judge, Loralai is set aside and while extending the benefit of doubts, the appellant Akhtar Muhammad son of Murad Han, is acquitted of the charge u nder Section 302(b) Q&D. The appellant being in custody, is
ordered to be released forthwith, if not required in any other case.
Above are the reasons of our short order dated 20th June, 2019.
MH/64/Bal Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.