2022 M L D 738

[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
JANNAT BIBI and 2 others---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos.233 and 237 of 2020, decided on 9th March, 2021.
(a) Penal Code (XLV of 1860)---
----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit
of doubt---Circumstantial evidence---Scope---Accused were charged for committing
murder of the son of the complainant by firing---Record showed that prosecution to
establish the charge, had produced the evidence of seven witnesses, perusal of which
reflected that the said evidence was circumstantial evidence, which was not sufficient to
hold the accused persons responsible for the murder of deceased, as the same were
lacking independent corroboration---According to complainant, at the time of
occurrence, he was present in his house when he was informed that his son was murdered
by means of firing---Said witness had failed to mention the name of person who
informed him on phone about the occurrence---Contents of FIR divulged that the
complainant had not placed him suspicion upon the accused as assailant, however, after
lapse of about 12 days, complainant nominated accused through supplementary
statement---Complainant in the said supplementary statement, had failed to mention the
source of information through which he had come to know about the assailants---
Circumstances established that the prosecution had failed to prove its case beyond any
shadow of doubt---Appeal against conviction was allowed, in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit
of doubt---Delay of about twelve days in nominating accused---Scope---Accused were
charged for committing murder of the son of the complainant by firing---Contents of
fard-e-bayan, supplementary statement as well as the statements of both the witnesses
showed that the accused had been nominated in the case absolutely on the basis of
presumptions, assumption and consultation---Statement of witnesses showed that soon
after the occurrence, they reached at the place of occurrence and the police was also
present over there and in the meantime the accused took the responsibility of murder of
deceased and also threatened the said witness for murder---Question arose that as to why
the accused was not nominated in the FIR when more particularly the witness knew the
assailant of his deceased brother---Even otherwise, after registration of FIR, said witness
kept mum and on 12th day of the occurrence the accused were nominated in the crime---
Subsequent nomination of the accused in the crime was nothing but was the result of
deliberation and consultation as well as based upon presumptions and assumptions,
which could not sustain in the eyes of law---Accused could not be convicted on the basis
of mere suspicion howsoever strong it may be---Appeal against conviction was allowed,
in circumstances.
Naseeb-ur-Rehman v. Muqarab Khan and another 2013 MLD 836 rel.
(c) Penal Code (XLV of 1860)---
----Ss.302(b) & 34---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, common
intention---Appreciation of evidence---Benefit of doubt---Extra judicial confession and
the confessional statements of the accused---Scope---Accused were charged for
committing murder of the son of the complainant by firing---In the present case, the extra
judicial confession and the confessional statements of the accused persons appeared to be
untrustworthy---Extra judicial confession of the accused was recorded and on the sixth
day of such disclosures their confessional statements were recorded---Now question
arose that if the accused recorded their disclosures then why they were not produced on
the said date before the concerned Judicial Magistrate for recording their confessional
statements---High Court observed that in order to eliminate any sort of doubt, the
Investigating Officer ought to have got recorded such confessional statements on the said
date, but it was not done so---Even otherwise, both the disclosures and confessional
statements were not corroborating other evidence---Accused, on the following day of
recording the alleged confessional statements, through their counsel approached the Trial
Court through application under S.22-A(6)(II), Cr.P.C. and apprised the situation that the
accused were tortured, but the said applications were rejected by the Trial Court---
Element of torture to the accused during investigation could not be ruled out of
consideration---Both the confessional and the extra judicial confessional statements of
the accused were also not helpful to the case of prosecution, because the same were not
corroborated by any other piece of evidence---Appeal against conviction was allowed, in
circumstances.
Muhammad Yousaf v. The State 1995 SCMR 351 and Umar Hayat v. The State 2020
YLR 1398 rel.
(d) Criminal trial---
----Medical evidence---Scope---Medical evidence is only used for confirmation of ocular
evidence regarding seat of injury, time of occurrence and weapon used in the offence, but
medical evidence itself does not constitute any corroboration qua the identity of accused
persons to prove their culpability.
(e) Criminal trial---
----Benefit of doubt---Principle---If any single or slightest doubt is created, benefit of the
same must go to the accused and it would be sufficient to disbelieve the prosecution
story and acquit the accused.
Sarwar Khan Kakar for Appellant (in Criminal Appeal No.233 of 2020) and Soorat
Khan Khetran for Appellant (in Criminal Appeal No.237 of 2020).
Mrs. Noor Jahan Kahoor, Additional P.G. for the State.
Date of hearing: 25th February, 2021.
JUDGMENT
ABDULLAH BALOCH, J.-----This common judgment disposes of Criminal Appeals
Nos.233 and 237 of 2020 filed by the appellants Janat Bibi wife of Mir Ahmed and
Muhammad Qasim, Sardar Khan both sons of Muhammad Aslam, respectively, against
the judgment dated 26th October, 2020 (hereinafter referred as, "the impugned
judgment") passed by learned Sessions Judge Sariab, Quetta (hereinafter referred as, "the
trial Court"), whereby the appellants were convicted under Section 302(b)/34, P.P.C. and
sentenced to suffer life imprisonment each and to pay compensation of Rs.150,000/-
(Rupees One Hundred and Fifty thousand) each to the legal heirs deceased Muhammad
Jabbar as envisaged under Section 544-A, Cr.P.C. The sentences awarded to the appellant
Muhammad Qasim in this case as well as in Arms case, were ordered to be run
concurrently.
2. Facts of the case are that on 3rd December 2018, the complainant Syed Abbas,
lodged FIR No.45/2018 at Police Station Shaheed Manzoor Quetta, under Section 302,
P.P.C., against unknown culprits, stating therein that on the day of occurrence at about
07.55 a.m. he received a telephonic call that his son Muhammad Jabbar, who was
Chowkidar at Sher Jan Stop was murdered by means of firing by unknown culprits. On
the basis of such information, the complainant along with his son Muhammad Asif
arrived at Sher Jan Street and found the dead body of his son laying in the pool of blood,
hence the dead body was shifted to hospital.
The appellants Qasim Khan and Sardar Khan were nominated in the case through
supplementary statement dated it December 2018.
3. After their arrest, the appellants were subjected to investigation and on completion
thereof, challaned before the trial Court, which indicated the charge and after denial by
the appellants, the prosecution produced seven witnesses, whereafter the appellants were
examined under Section 342, Cr.P.C. However, neither they recorded their statements on
oath under Section 340(2), Cr.P.C. nor produced any witness in their defence. On
conclusion of trial and after hearing arguments, the learned trial Court convicted and
sentenced the appellants as mentioned above. Whereafter they filed the instant appeals.
4. Heard the learned counsel and perused the available record. In order to establish the
charge the prosecution has produced the evidence of seven witnesses, perusal of which
reflects that the prosecution has only produced circumstantial evidence, which are not
sufficient to hold responsible the appellants for the murder of deceased Abdul Jabbar as
the same are lacking independent corroboration being produced through interested
witnesses. The circumstantial evidence has been produced through the evidence of PW-1
Syed Abbas son of Abdul Hameed (complainant) and PW-2 Muhammad Asif. According
to PW-1 (complainant) at the time of occurrence he was present in his house, when he
was informed that his son was murdered by means of firing at Sher Jan Stop. This
witness has failed to mention the name of person who informed him on phone about the
occurrence. Even otherwise, the contents of FIR divulges that the complainant has not
placed his suspicion upon the appellants as assailants, but however, after lapse of about
12-days the complainant nominated appellants Qasim Khan and Sardar Khan through
supplementary statement and even in the said supplementary statement, the complainant
has failed to mention the source of information through which he has come to known
about the assailants.
5. The statement of PW-2 Muhammad Asif made doubtful the subsequent nomination
of the appellants in the crime. According to this witness, on 1st December 2018, he was
in Jacobabad, when the appellant Muhammad Qasim through mobile No.0306-3212093
made him a phone call and threatened to commit the murder of deceased Abdul Jabbar,
whereafter he through phone informed his father (PW-1), who at the relevant time was at
Ghotki, thus on the subsequent day he and his father arrived at Quetta to enquire from
appellant Muhammad Qasim with regard to motive of his bad intention, but on the
following day i.e. 3rd December 2018 at about 07.55 a.m. they were informed about the
occurrence, thus they rushed to the place of offence and also found the police at the place
of occurrence, from where the dead body was shifted to hospital. In the meantime, again
the appellant Qasim Khan made phone call to him and took the responsibility of the
murder of deceased and further threatened him that he will also be killed alike his
brother.
6. We have minutely scrutinized the contents of Fard-e-bayan, supplementary
statement as well as the statements of both the witnesses and we have no hesitation to
hold that the appellants have been nominated in the case absolutely on the basis
presumptions, assumptions and consultation. According to own showing of PW-2 soon
after the occurrence they reached at the place of occurrence and the police was also
present over there and in the meantime the appellant Qasim Khan took the responsibility
of murder of deceased and also threatened to PW-2 for murder, then under peculiar
circumstances of the case question arises that as to why the appellant Qasim Khan was
not nominated in the FIR when more particularly the PW-2 knew the assailant of his
deceased brother. Even otherwise, after registration of FIR, this witness kept mum and on
12th day of occurrence the appellants were nominated in the crime. Subsequent
nomination of the appellants in the crime is nothing, but is the result of deliberation and
consultation as well as based upon presumptions and assumptions, which otherwise
cannot sustain in the eyes of law. The appellants cannot be convicted merely on the basis
of mere suspicion howsoever strong it may be. Reliance in this regard is placed on the
case of Naseeb-ur-Rehman v. Muqarab Khan and another, 2013 MLD 836 (Peshawar),
wherein it has been held that:
"11. The learned Trial Court has convicted appellant on the basis of circumstantial
evidence. It is established principle of law, that all pieces of the circumstantial
evidence must be so inter-connected as a chain that one end of it be at the dead
body of the deceased and the other around the neck of the accused. If any chain of
the circumstantial evidence in broken the whole prosecution case falls to the
ground. In the instant case, all pieces of circumstantial evidence are so weak and
scattered that no piece connects the other. Rather, the case is based on no legal
evidence or evidence of no legal consequence, as discussed earlier. The Trial
Court has recorded conviction against the appellant on mere assumptions and
conjectures by considering his behaviour."
7. So far the extra judicial confession and the confessional statements of the
appellants Qasim Khan and Janat Bibi is concerned, the same appear to be untrustworthy.
The extra judicial confession of the appellants was recorded on 21st December 2018,
while on the sixth day of such disclosures their confessional statements were recorded on
26th December 2018. Now question arises that if the appellants were recorded their
disclosures on 21st December 2018 then as to why they were not produced on the said
date before the concerned Judicial Magistrate for recording their confessional statements.
In order to eliminate any sort of doubt the Investigating Officer ought to have got
recorded such confessional statements on the said date, but it was not done so. Even
otherwise, both the disclosures and confessional statements are not corroborating any
other priece of evidence. Besides, on the following day of recording the alleged
confessional statements, the appellants through their counsel approached the learned trial
Court through application under Section 22-A(6)(II), Cr.P.C. and apprised the situation
that the appellants were tortured, but the said applications were rejected by the trial
Court. Hence, the element of torture to the appellants during investigation cannot be
ruled out of consideration. Thus, both the confessional and the extra judicial confessional
statements of the appellants are also not helpful to the case of prosecution, because the
same are not corroborating any other piece of evidence. We are conscious of the fact that
a retracted confession is sufficient to make the basis of recording a conviction, but Court
as a rule of procedure seeks corroboration of the same on all material particulars.
Reliance in this regard is placed on the case of Muhammad Yousaf v. The State, 1995
SCMR 351, wherein it was held as under:
"13 ...It need not be pointed out that prosecution has to prove that the confessional
statement is voluntary in order to be used as evidence which it failed to prove
beyond any reasonable doubt.
For the reasons stated above we are inclined to hold that the occurrence is
unwitnessed and the appellant was apprehended on suspicion like others and
made to confess which has been retracted. The confessional statement is neither
voluntary nor supported by any reliable corroborative piece of evidence.
Resultantly this appeal is accepted"
Similar view has been taken on the case of Umar Hayat v. the State, 2020 YLR 1398
(Peshawar) 14, wherein it was held as under:
"The evidentiary value of this confession can be viewed yet from other angle. Since
the said confession was retracted, therefore, the same would require further
corroboration from the record qualifying to be a valid ground for conviction. In
this regard, reliance is placed on the judgment of the Hon'ble apex Court titled
"Nadir Hussain v. The Crown" (1969 SCMR 442), wherein it was held that:-
"Retracted confession should not be acted upon unless corroborated in material
particulars."
8. The medical evidence in this case has been furnished by PW-4. Dr. Aysha Faiz,
Police Surgeon, Medical Officer, who confirmed the unnatural death of deceased.
However, the fact remains that medical evidence is only used for confirmation of ocular
evidence regarding seat of injury, time of occurrence and weapon used in the offence, but
medical evidence itself does not constitute any corroboration qua the identity of accused
person to prove their culpability.
9. The reappraisal of the statements of all the witnesses being interested and being
blood relations have drawn a different sketch of the occurrence creating doubts in the
case of prosecution. The requirement of the criminal case is that prosecution is duty
bound to prove its case beyond my reasonable doubt and if any single and slightest doubt
is created, benefit of the same must go to the accused and it would be sufficient to
disbelieve the prosecution story and acquit the accused, but the benefit of such doubts
were withheld by the trial Court in favour of appellants, hence rendered the impugned
judgement illegal being suffered from misreading, non-reading and m is-appreciation of
evidence.
For the above reasons, the appeals are accepted. The impugned judgement 26th
October 2020 passed by learned Sessions Judge Sariab, Quetta is set-aside and the
appellants Janat Bibi wife of Mir Ahmed and Muhammad Qasim, Sardar Khan both sons
of Muhammad Aslam, are acquitted of the charge under Section 302(b)/34, P.P.C. The
appellants being in custody; shall be released forthwith, if not required in any other case.
JK/76/Bal. Appeals accepted.