2023 Y L R 555
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
MUHAMMAD USMAN and another---Appellants
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 30 of 2020, decided on 14th June, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 201 & 34---Qatl -i-amd, causing disappearance of evidence of offence, giving
false information to screen defenders, common intention--- Appreciation of evidence ---
Sentence, reduction in ---Recovery of weapon of offence, crime empties and dead body---
Scope ---Accused were charged for committing murder of the brother of the complainant by
firing ---Pistol and crime empty were not sent to Forensic Science Laboratory for matching,
therefore, simple recovery of weapon and crime empty could not be considered as
corroborative piece of evidence ---However, the recovery of dead body of the deceased was
strong corroborative evidence ---Appeal was partly allowed and conviction of the accused
was converted from S. 302(b), P.P.C. to S. 302(c), P.P.C. and his sentence was reduced from
life imprisonment to fifteen years ---Conviction and sentence of the other accused under S.
302(b), P.P.C. was set aside and he was convicted under S. 201, P.P.C. and sentenced to suffer rigorous imprisonment for five years.
Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Sharif v. The
State PLD 2009 SC 709 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd,
causing disappearance of evidence of offence, giving false information to screen defenders, common intention--- Appreciation of evidence ---Sentence, reduction in ---Confessional
statement of accused persons ---Scope ---Accused were charged for committing murder of the
brother of the complainant by firing---Confessional statements of the accused persons recorded by the Judicial Magistrate ---Record prepared by the Judicial Magist rate as well as
his deposition proved conclusively that he took all precaution to ensure that confession was voluntarily---Accused besides admitting commission of the offence also stated about the motive ---Evidence relating to confession did not reflect inducement, threat or promise and
could not be kept out of consideration, merely on the ground that it was recorded after fifteen (15) days of arrest of the accused persons ---Appeal was partly allowed and conviction of the
accused was converted from S. 302(b), P.P.C. to S. 302(c), P.P.C. and his sentence was
reduced from life to fifteen years, in circumstances ---Conviction and sentence of the other
accused under S. 302(b), P.P.C. was set aside and he was convicted under S. 201, P.P.C. and
sentenced to suffer rigorous imprisonment for five years.
Khuda Bukhsh v. The State 2004 SCMR 331 and Shaukat Ali v. The State and others
PLD 2019 SC 577 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 201 & 34---Qatl -i-amd, causing disappearance of evidence of offence, giving
false information to screen defenders, common intention--- Appreciation of evidence ---
Sentence, reduction in ---Motive was proved--- Scope ---Accused were charged for committing
murder of the brother of the complainant by making firing--- Case of the prosecution with
regard to motive of offence was entirely based on the confessional statement of the accused --
-Admittedly, confessional statement was to be taken as a whole and not in piecemeal ---
Accused in his confessional statement specifically stated about the motive that the deceased carnally assaulted him more than once on gun point, therefore, he planned for committing his murder by taking pistol from his cousin--- Confessional statement of the accused revealed
that he alone made a plan for committing murder for which he had taken pistol from his cousin, because the deceased carnally assaulted him more than once on gun point ---No other
evidence with regard to motive of the offence was available except the confessional statement of the accused, which brought the ease of the accused within the preview of S. 302(c), P.P.C. ---Co-accused had neither been involved in the planning of the offence nor he
had taken any part in commission of the offence in furtherance of common intention--- Said
accused was well aware that the offence of murder had taken place--- Said accused by his
action and conduct concealed the evidence of commission of that offence to save the accused from being punished and thereby caused disappearance of evidence of the offence, thus guilty of offence under S. 201, P.P.C.---Appeal was partly allowed and conviction of the accused was converted from S. 302(b), P.P.C. to S. 302(c), P.P.C. and his sentence was reduced from life to fifteen years, in circumstances ---Conviction and sentence of the other
accused under S.302(b), P.P.C. was set aside and he was convicted under S. 201, P.P.C. and sentenced to suffer rigorous imprisonment for five years.
Shamoon alias Shamma v. The State 1995 SCMR 1377; Naseer Hussain v. Nawaz and
others 1994 SCMR 1504 and Muhammad Mumtaz v. Mehtab and another 2020 SCMR 200 rel.
Amir Jan Kakar for Appellants.
Ms. Noor Jahan Khaoor, Additional Prosecutor General for the State.
Date of hearing: 7th June, 2022.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The appellants namely Muhammad Usman son
of Muhammad Anwar and Bilal Ahmed son of Khan Muhammad are aggrieved against the
judgment dated 29 -9-2020 (impugned judgment), passed by Sessions Judge Killa Abdullah at
Chaman (trial court), whereby both the appellants are convicted under section 302(b) Pakistan Penal Code (P.P.C.) and sentenced to life imprisonment each and to pay compensation of Rs.50,000/ - each to the legal heirs of the deceased Muhammad Siddique as
envisaged under section 544- A Criminal Procedure Code (Cr.P.C.) in case of default, they
shall further undergo simple imprisonment (S.I) of six (06) months.
2. Facts of the case are that an FIR No. 72 of 2018 dated 25 -9-2018 at about 9:00 PM
was registered with levies Thana Chaman, wherein the complainant Muhammad Shafique averred that on the above date at about 8:00 PM his brother namely Muhammad Saddique (deceased) age about 38 years went to place known "master plan" on his motorcycle along with appellants, where the appellants committed murder of his brother by making firing by means of pistol on his head. It was further averred by the complainant that the appellants also snatched his motorcycle and they have no previous enmity with the appellants.
3. During trial, the prosecution examined eight (08) witnesses including Investigating
Officer (I.O). When examined under Section 342 Cr.P.C, the appellants denied the allegations of the prosecution. They neither recorded their statements on oath under section 340(2), Cr.P.C nor produces any witness in their defense.
4. The learned trial court vide impugned judgment convicted and sentenced the
appellants mentioned hereinabove.
5. The learned counsel for the pauper appellants contended that it was an un- witnessed
incident and complainant was not an eye -witness of the incident. That the case of the
prosecution was based on circumstantial evidence and confessional statements of both the appellants. That no evidence has been produced by the prosecution to complete the chain of circumstantial evidence as neither pistol allegedly recovered from the appellant Muhammad Usman along with crime empties were sent to ballistic expert for matching/opinion, nor with regard to recovery of dead body of the deceased any pointation memo. has been prepared or produced. That in absence of complete chain of the circumstantial evidence connecting the appellants in commission of the offence, the sole confessional statements of the appellants cannot be relied upon, as the same were retracted by the appellants. That even otherwise, the appellants were arrested on 25 -9-2018 and alleged confessional statements were recorded on
10-10-2018 with inordinate delay of fifteen (15) days. That in absence of any other evidence,
the alleged confessional statements of both the appellants under the law can be taken as whole not in piecemeal. That motive alleged in the confessional statement by the appellant Muhammad Usman brings his case in exceptional clause of section 302(c), P.P.C.
6. The learned Additional Prosecutor General contended that according to evidence on
record, the appellants preplanned the incident and committed murder of the deceased in furtherance of common intention, which also reflects from circumstantial evidence including the confessional statements of the appellants. That the recovery of crime weapon and the dead body of the deceased on the pointation of appellant Muhammad Usman further prove the charge against the appellants. That no extenuating circumstance exist s in the instant case.
That the intention of the appellants are quite obvious as they equipped with pistol
accompanied the deceased with them and as per plan committed his murder, which has further been supported by medical evidence.
7. We have heard the learned counsel for the parties and perused the record. PW -1
complainant Muhammad Shafique narrated the facts mentioned in his first application for
registration of FIR Ex.P/1- A. He further produced his second application Ex.P/1- B. In his
first application dated 25 -9-2018, the complainant though narrated about the commission of
the offence of his brother Muhammad Saddique, without mentioning the names of the
appellants, however in his second application Ex.P/1 -B, he besides mentioned the names of
the appellants also mentioned the engine and chassis number of the motorcycle of the deceased and recovery of pistol and Rado wrist watch of the deceased from the appellants. PW-2 Gul Muhammad stated that on 25- 9-2018, he was officiating his duty at level cross
levies chowki at about 8:30 PM two persons on a motorcycle were coming from Chaman Bazar, on sighting the levies chowki, they tried to turn their motorcycle, which fell down and they apprehended the appellant Muhammad Usman, while the other escaped. During personal
search a T.T pistol and an American .9MM pistol along with magazine having two live
rounds in T.T pistol and 4 live rounds in magazine of 9 MM pistol were recovered. On further search two mobiles and one Rado wrist watch were also recovered from possession of the appellant, who told his accomplice name as Bilal Ahmed and further told that they committed murder of a person. This witness informed the high officials, whereon Assistant Commissioner along with Tehsildar also reached at the spot. On the pointation of the
appellant Muhammad Usman, they went to master plan Chaman, where the dead body of the
deceased Muhammad Siddique was lying on the road. Besides, the dead body an empty of T.T pistol was also secured. PW -3 Rehmatullah attested recovery memo. Ex.P/3 -A, on the
basis whereof blood stain cloths of deceased were taken into possession. PW -4 Zafarullah
further supported the version of the PW -2 Gul Muhammad about the apprehension of the
appellant Muhammad Usman and recovery of T.T. pistol, .9MM pistol 4 rounds and Rado
wrist watch, which were taken into possession vide recovery memo. Ex.P/4- A. This witness
further stated about the recovery of dead body of the deceased as well as securing of crime empty from the spot on disclosure of the appellant Muhammad Usman and he produced the same as Ex.P/4 -B and Ex.P/4- C respectively. He further stated that on the pointation of the
appellant Muhammad Usman the dead body and a crime empty was recovered at master plan Chaman, where a crime empty was also taken into possession, vide recovery memo. Ex.P/4-
B. He attested recovery memo. of the same Ex.P/4 -A and produced the recovered articles.
PW-5 Abdul Bari stated about arrest of appellant Bilal Ahmed and on his pointation the
motorcycle of the deceased was recovered, which was parked infront of Masjid and taken
into possession, vide recovery memo. Ex.P/5- A. PW -6 Dr. Ziauddin examined the dead body
of the deceased Muhammad Saddique and produced MLC Ex.P/6- A having following
injuries,
"On examination firearm entrance wound paretlal aver midline.
Entrance wound on Rt side of mastoid.
Entrance wound on Lt side maxilla near left eye. Abrrison on Lt side offront, multiple
minor wounds on Lt hand.
Probable case of death was massive bleeding due to brain."
8. PW-7 Faisal Hameed Judicial Magistrate recorded the confessional state- ments of the
appellants on 10- 10-2018. He produced confessional statements of the appellant Muhammad
Usman as Ex.P/7- A and notice given to the appellant Bilal Ahmed for cross -examination
Ex.P/7- B. Confessional statement of Bilal Ahmed was produced as Ex.P/7 -B including a
certificate and notice for cross -examination to the appellant Muhammad Usman as Ex.P/7- D.
PW-8 Ahmed Khan Naib Tehsildar Chaman conducted investigation and produced FIR
Ex.P/8- A, site plan Ex.P/8- B to Ex.P/8 -C and site plan of recovery of motorcycle of the
deceased as Ex.P/8 -D.
9. PW-1 Muhammad Shaffique though stated that appellants had committed murder of
his brother Muhammad Siddique, but he was not an eye -witness of the incident. Thus, the
case of the prosecution is based on circumstantial evidence i.e. recovery of dead body of the
deceased, on the pointation of the appellant Muhammad Usman, recovery of crime weapon, securing of crime empty on the pointation of the appellant Muhammad Usman and confessional statements of both the appellants Ex.P/7 -A (Muhammad Usman confessional
statement) and Ex.P/7 -C (Bilal Ahmed confessional statement). It is well settled law that
where there is no direct evidence against accused and prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only where all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of other person, there must be chain of evidence so for complete as not to leave any reasonable ground for a conclusion consistent with innocent of the accused and must be such
as to show that within all human probability, the act must have been done by the accused. In
case titled Talib Hussain v. The State (1995 SCMR 1538), the Honorable Supreme Court of Pakistan observed as under: --
"In cases where there is no direct evidence to show in what manner the offence was
committed, the Courts must examine the probabilities in the light of indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place, the articles secured (found) there, the motive for the crime and
the other surrounding circumstances proved. (State v. Manzoor PLD 1966 SC 664). In
the words of Hamoodur Rahman, J. (as he then was): "But once the circumstances
have been found to be so established they may well furnish a better basis for decision than any other kind of evidence. As Hewart, I.C.J. observed in the case of Percival Leonard Taylor, James Weaver and George Thomas Donovan (1828) 21 CA 20 'it is no derogation of evidence to say that it is circumstantial'. The circumstances from which inferences are to be drawn should not only be proved and "be incompatible
with the innocence of the accused" but "incapable of explanation upon any other
reasonable hypothesis than that of his guilt:" The same principle was followed in Mst. Sairan alias Saleema v. The State (PLD 1970 Supreme Court 56). Mere concurrence of circumstances unless based on proved facts is not enough to draw inference. The coincidence should be "un- designed" and not manoeuvred or planted. In Fazal Elahi
v. Crown (PLD 1951 FC 214) while discussing the nature and principles for assessing
circumstantial evidence the following dictum of Hewart, I.C.J. in the case of Taylor
was quoted and relied upon: -
"For the purpose of the present discussion, the emphasis of this passage lies in the
expression `undersigned coincidence'. Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."
In case titled Muhammad Sharif v. The State (PLD 2009 SC 709), the Honorable
Supreme Court of Pakistan observed as under: --
"The arrest of appellant itself appears to have unfolded the whole episode. He made
disclosures and provided solid clues. He led, the investigators to the place of occurrence wherefrom the dead body and other incriminating articles were recovered. He, by making confessional statement before the Magistrate solved the mystery as to how and why this all happened. The altercation that took place between the two about the payment of money, the harsh language and abuses hurled by the deceased resulting in spontaneous ugly situation of provocation taking the names of mother, sister and wife, pushing of the deceased by the appellant from the mountain and stoning him. There appears no valid justification to disbelieve Dr. Shaoib Gola AC/SDM, (P.W.6) an official who had neither any enmity with the appellant nor any reason to misstate the facts."
10. In the instant case, the pistol and crime empty were not sent for matching to FSL,
therefore, simple recovery of weapon and crime empty cannot be considered as corroborative piece of evidence as held by the Honorable Supreme Court of Pakistan in a case titled Muhammad Mansha v. The State (2018 SCMR 772), however the recovery of dead body of the deceased vide Ex.P/4 -C is strong corroborative evidence as held in case titled
Muhammad Sharif v. The State (PLD 2009 SC 709).
11. The confessional statements which the appellants made before Judicial Magistrate
Ex.P/7- A and Ex.P/7- C recorded by the PW -7 (Faisal Hameed, Judicial Magistrate Chaman)
on 10.10.2018, the record prepared by the Judicial Magistrate as well as his deposition proved conclusively that he took all precaution to ensure that confession was voluntarily. In this confession the appellant Muhammad Usman besides admitting commission of the offence also stated about the motive. The evidence relating to confession did not reflect inducement, threat or promise and cannot be kept out of consideration, merely on the ground
that it was recorded after fifteen (15) days of arrest of the appellants. Reliance in this respect is made to case titled Khuda Bukhsh v. The State (2004 SCMR 331), wherein the Honorable Supreme Court of Pakistan observed as under: --
"The contention that the confessional statement of the appellant should be rejected outrightly as it was recorded belatedly and after Court -hours, is rejected mainly on the
ground that the appellant during the entire trial did not claim that the same was extracted under duress or was tutored as given under influence or was not voluntarily made. In the similar circumstances, this Court in the case of Muhammad Yaqoob (supra) had accepted the confessional statement as true even if it was recorded after 15 days of the incident though there has been some lapses on the administrative side of the Magistrate while recording confession. As regards delay in recording the confessional statement, Investigating Officer, namely, Muhammad Ilyas and the Magistrate had furnished the explanation whereof which remained unchallenged though sufficiently cross -examined by the defence."
In case titled Shaukat Ali v. The State and others (PLD 2019 SC 577),
the accused was convicted where besides, the dead body of the deceased was recovered on
the pointation of the accused, he also retracted his confessional statement.
12. The case of the prosecution with regard to motive of offence is entirely based on the
confessional statement of the appellant Muhammad Usman. It is well settled law that
confessional statement is to be taken as a whole and not in piecemeal. Reliance in this respect is to be made to the case titled Shamoon alias Shamma v. The State (1995 SCMR 1377), Wherein the Honorable Supreme Court of Pakistan observed as under,
"However, if the Court decides to convict the accused' on the basis of his confessional statement or his plea under section 342, Cr.P.C. then it is not open to the Court to accept a part of the statement of the accused and reject another part for the purpose of convicting him for the offence. It is quite clear from the orders of the Courts below that the conviction of the appellant has been based solely on the basis of his admission / statement under section 342, Cr.P.C. In these circumstances, it was not open to the Courts below to have relied only that part of his statement under section 342, Cr.P.C. in which he admitted having killed the deceased Muhammad Yousaf and discard that part of his statement in which he stated that it was done under grave and sudden provocation as he had found the deceased in a compromise position with his wife in the early hours of morning. As earlier pointed out, the Court could either accept whole of this statement or reject the same. The Court could not take exception to the part of the statement of the accused which stated that he had seen his wife Mst. Wallan in the early hours of morning in a compromise position with the deceased Muhammad Yousaf on the ground that she escaped unhurt in the incident. We, accordingly, allow this appeal and convert the sentence of appellant from section 302, P.P.C. to section 304, P.P.C., Part II. The sentence awarded to the appellant is reduced to the period already undergone."
In case titled Naseer Hussain v. Nawaz and others (1994 SCMR 1504), Wherein the
Honorable Supreme Court of Pakistan observed as under,
"The confessional statement in the case being the only material on which
appellant/accused was convicted, had to be either accepted as a whole by the Court or rejected as a whole. It was not open to the learned Judge in Chambers to accept only a part of the confessional statement of the appellant /accused and reject the other part while maintaining his conviction under section 304, Part I, P.P.C. and enhancing his sentence. The confessional statement reproduced above clearly makes out a case of grave and sudden provocation and as such the learned Judge in Chambers was not justified in holding that the case was not one of sudden and grave provocation though it may have involved family honour, and on that basis enhancing the substantive sentence of the appellant under section 304, Part 1, P.P.C. from 3 years to 10 years' R.I. We, accordingly, allow this appeal, set aside the judgment of the learned Judge in Chambers and reduce the sentence of the appellant to the period already undergone."
13. In the instant case, the appellant Muhammad Usman in his confessional statement
Ex.P/7- A specifically stated about the motive that the deceased carnally assaulted him more
than once on gun point, therefore, he planned for committing his murder by taking pistol from his cousin Muhammad Ayub. The relevant portion of his confessional statement is as under,
14. The reading of whole confessional statement of the appellant Muhammad Usman
reveals that he alone made a plan for committing murder for which he had taken pistol from
his cousin Muhammad Ayub, because the deceased carnally assaulted him more than once on gun point. There is no other evidence with regard to motive of the offence except the confessional statement of the appellant Muhammad Usman, which bring the case of the appellant within the preview of section 302(c), P.P.C. Reference in this respect is to be made to case titled Muhammad Mumtaz v. Mehtab and another (2020 SCMR 200), wherein the trial court convicted the accused under section 302(b), P.P.C. and sentenced him to imprisonment for life, the learned High Court alter such conviction into section 302(c), P.P.C. The Honorable Supreme Court of Pakistan observed as under: --
"Respondent's confessional state -ment, though retracted subsequently, is prosecution's
mainstay; going by his words, he was carnally assaulted by the deceased for more than once; despite resistance, the deceased insistingly treaded the lusty course and it is in this backdrop, according to the prosecution itself, that the respondent
exasperatingly embarrassed, took the most drastic step in the face of no other possible
motive. In the absence of any other evidence, the respondent made his breast clean and as such his narrative is to be received in its totality. Incident though most unfortunate, nonetheless, the deceased cannot be credited as being entirely blameless and as such interference by this
Court at this point of time, particularly when the respondent had already served out the
sentence would be far from being expedient."
15. Whereas the case of the appellant Bilal Ahmed is concerned, he has neither been
involved in the planning of the offence nor he has taken any part in commission of the
offence in furtherance of common intention. He was well aware that the offence of murder had taken place. He by his action and conduct concealed the evidence of commission of this offence and to save the appellant Muhammad Usman from being punished and thereby
caused disappearance of evidence of the offence, thus guilty of offence under section 201,
P.P.C.
In view of above stated reasons, the appeal is partly allowed and conviction of the
appellant Muhammad Usman is converted from 302(b), P.P.C. to 302(c), P.P.C. and his
sentence is reduced from life to fifteen (15) years, however compensation is intact. The conviction and sentence of the appellant Bilal Ahmed under section 302(b), P.P.C. is set aside and he is convicted under section 201, P.P.C. and sentenced to suffer rigorous imprisonment (R.I.) for five (5) years and fine of Rs.50,000/ - in default whereof to further
suffer simple imprisonment for six months. Benefit of section 382- B, Cr.P.C. also extended
to both the appellants.
JK/95/Bal. Order accordingly.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.