2017 P Cr (PLP)

NAIMATULLAH PHULPOTO, J.

Respondents/accused Anwar and Ghulam Nabi were tried by learned Additional Sessions Judge Kandiaro in Sessions case No. 32 of 1996 State v. Anwar and another for offences under sections 302, 34, P.P.C., vide crime No.10 of 1996 registered at Police Station Kandiaro. After full-dressed trial, respondents/accused were acquitted by Judgment dated 2.11.1998.

2. Brief facts of the prosecution case are that on 18.02.1996 at 9.30 pm complainant Mehro Khan Siyal lodged FIR at Police Station Kandiaro stating therein that he gave his daughter Mst. Zaheeran in marriage to Anwar son of Ghulam Nabi Siyal and Ghulam Nabi Siyal promised to give his daughter to Rehmatullah, son of complainant. It is alleged that some differences arose between the parties. They quarreled with each other. It is further alleged that on 18.2.1996, at evening time complainant, his son Ramzan and Muhammad Bakhsh were present in the house. Mst. Zaheeran came and complained her father/complainant that her husband along with his father had quarreled with her, complainant sent back his daughter Mst. Zaheeran to the house of her husband. Complainant has further alleged that on the same day, at 8.00 p.m. when he, his son Muhammad Ramzan and PW Muhammad Bakhsh went to the house of accused Anwar, where it is stated that accused Anwar and his father accused Ghulam Nabi were present. It is alleged that complainant asked Anwar as to why they have quarreled with his daughter. Much annoyance was caused to accused and they brought hatchets. It is alleged that accused Anwar caused hatchet blow on neck of Mst. Zaheeran, whereas accused Ghulam Nabi caused hatchet blow at the face of Mst. Zaheeran. After receiving hatchet injuries, she fell down, complainant and P.Ws raised cries, villagers were attracted, both accused ran away from place of vardat. Mst. Zaheeran succumbed to injuries at spot, complainant leaving behind P.Ws went to Police Station and lodged FIR, it was recorded vide crime No.10 of 1996 under sections 302, 34, P.P.C. at Police Station Kandiaro.

3. After usual investigation, challan was submitted against accused Anwar and Ghulam Nabi under sections 302, 34, P.P.C. Case was sent up to Court of Session for trial.

4. Learned Additional Sessions Judge Kandiaro framed charge against the accused under sections 302, 34, P.P.C. Accused pleaded not guilty to the charge and claimed to be tried.

5. In order to prove its case prosecution has examined P.W.1 Mehro Khan at Exh.8, who produced FIR at Exh.8-A. P.W.2 Muhammad Bakhsh at Exh.9 who produced 164, Cr.P.C. statement at Exh.9-A. P.W.3 Dr. Muhammad Daud at Exh.10 who produced post mortem report at Exh.10-A. P.W.4 Kamal at Exh.12 who produced his 164, Cr.P.C. statement at Exh.12-A. P.W.5 Rehmatullah at Exh.13 who produced his 164, Cr.P.C. statement at Exh.13-A. P.W.6 mashir Muhammad Khan at Exh.14 who produced mashirnama of place of vardat at Exh.14-A, inquest report at Exh.14-B, sketch of place of vardat at Exh.14-C, mashirnama of arrest of accused Anwar and Ghulam Nabi at Exh.14-D, mashirnama of recovery of blood stained hatchet at Exh.14-E. P.W.7 I.O. Inayatullah at Exh.15 who produced receipt of handing over the dead body to complainant Mehro Khan at Exh.15-A and Chemical Examiner's report at Exh.15-B. P.W.8 Tapedar Ghulam Shabbir at Exh.16 who produced sketch at Exh.16-A. P.W 9 Mr. Javed Ahmed Civil Judge and FCM at Exh.17 produced confessional statement of accused Anwar at Exh.17-B. Thereafter, learned D.D.A closed prosecution side vide his statement at Ex.18.

6. The statements of accused were recorded under section 342, Cr.P.C. at Exhs.19 and 20, in which accused denied the prosecution allegations and claimed innocence. Accused did not lead any defense and declined to give statement on oath in disproof of the prosecution allegations.

7. Learned Trial Court after hearing the learned counsel for the parties and assessment of evidence acquitted the accused by judgment dated 02.11.1998, mainly for the following reasons.

32. From the above discussion and perusal it appears that though at the time of incident other persons were available but in spite of that they were not cited as witnesses by the prosecution and only relative i.e. sons and close relatives were introduced. On this point the apex Court in his Judgment reported in 1971 SCMR 326 has held that: (g) Penal Code (XLV of 1860) S.302

Murder

Evidence

Ocular testimony coming from mouths of very closely related witnesses (Brothers and mother of deceased) corroboration of such testimony to be insisted upon out of abundant caution. (P.335) H".

33. In view of the above cited authority it is clear that the Supreme Court have held that Ocular evidence of the close relatives is to be scrutinized with great care and caution. In the case in hand eye-witnesses are closely related to the deceased and their ocular evidence is not corroborated by any independent source therefore it cannot be relied upon. Even otherwise all the witnesses have been given the contradictory evidence and their evidence is not consistent therefore it is not safe to rely on such evidence. Some of the witnesses have said that post mortem was conducted on the spot and some of the witnesses have deposed that the post mortem was conducted in the hospital. On this point honourable Supreme Court has held in the case law reported in PLD 1982 SC 429 and PLD 1976 SC 695, that under rule 23.36 of the Police rules the permission of District Magistrate for conducting the post mortem outside the mortuary is necessary but in the instant case such permission was not obtained and thereby the rules were not followed and rather doubt has been created in the mind of the Court as to whether the post mortem was actually conducted by the Medical Officer or not as some of the witnesses have deposed that the post mortem was conducted on the spot and some of the witnesses including I.O. in his examination in chief has deposed that it was conducted in the Hospital but thereafter in the cross-examination he has changed his version and has deposed that post mortem was conducted on the spot as the body was not in a position to be moved from the place of incident but he has not followed the Police rules and he did not obtain permission from the District Magistrate.

34. Now the only evidence available with the prosecution is retracted confession of accused Anwar on the point that superior Courts have held that delay in recording the confession is always fatal to the prosecution therefore such type of confession which are recorded after the considerable delay are to be considered and scrutinized with great care and caution. Some of the witnesses have stated that accused were arrested on the next day of incident i.e. 19.2.1996 and some of witnesses have stated that accused Ghulam Nabi was arrested on 8th or 10th day of incident and accused Anwar was arrested on 3rd or 4th day of incident. When the accused Anwar was produced before the Civil Judge and FCM for recording his confession, he has stated before the Court that he was arrested on the following day of the incident which shows that the accused Anwar was all along in the wrongful confinement of the Police. It is very interesting to note that the 164, Cr.P.C. statements of the witnesses were recorded by Civil Judge and FCM on 25.3.1996 in presence of accused but even on that date the accused was not prepared to make confession and finally on 2.4.1996 he was again produced before Civil Judge and FCM who recorded his confession. The learned Magistrate while recording the confession has ignored to mention that accused was asked that he was not bound to make confession and if does not make confession he will not be handed over to same Police. He has also not mentioned that the hand cuffs of the accused were removed and he has also failed to satisfy the Court as to why he was satisfied that the confessional statement is voluntarily in spite of the fact that the accused disclosed before the Magistrate that he was arrested on the following day of incident. The incident took place on 18.2.1996. On this point the reliance is placed on the case law reported in 1984 PCr.LJ 611 wherein their Lordships have held that:- "Accused, an Urdu speaking person and confession recorded in Sindhi

No trace of evidence present to indicate that the confession was readover and explained in Urdu". (e) Criminal Procedure Code (V of 1898) S. 164(3)

Confession

Voluntarily character of confessional statement Court must look for strict compliance of S.164(3), Cr.P.C. Procedure to be followed in recording confession by courts reiterated (Confession). Court must look for strict compliance of subsection (3) of section 164, Cr.P.C. before proceeding to determine the voluntary. Character of the Confessional statement. It has of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for the guidance. Magistrate would be well advised to follow the procedure which is given below: "As soon as accused is produced for confession, his hand cuffs should be removed and all the Police officers should be turned out from the Court room. Thereafter the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the Police who had produced him before the Court but would be remanded to Judicial lockup. He should then be given sufficient time to ponder over the matter. Thereafter he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. The following questions should be put to him: (i) For how long have you been with police? (ii) Has any pressure been brought to bear upon you to make the confession? (iii) Have you been threatened to make confession? (iv) Has any inducement been given to you? (v) Why are you making this confession? (vi) Have you been maltreated by Police? After recording the accused's answer to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he, should then put such question to him, as are given in the printed form and then he should proceed to record his confession in verbatim. (f) Criminal Procedure Code (V of 1898) S. 164

Retracted confession not to be acted upon and be made basis for conviction unless same is corroborated in material particulars. (Confession-Conviction) (P.619) F. (g) Criminal Procedure Code (V of 1898) S. 164

Confession silent about recovery

Held such recovery will not lend any corroboration to confession-recovery judged independently of confession. Proves nothing against accused except that accused had knowledge of items recovered (Confession-Recovery) (P.620) G. (h) Penal Code (XLV of 1860) S. 302/34. Criminal Procedure Code (V of 1898) S.164/Murder/Conviction of accused mainly based on confessional statement of co-accused, confession of co-accused not believed. Held, since confession had not been believed in respect of its maker, such confession cannot be used and made basis for conviction of co-accused (Confession-Conviction) (P.620) I. In view of above quoted authority it appears that confession is not voluntary and cannot be relied upon. Now I am coming to the point of recovery according to the I.O. the accused was arrested on 24.3.1996 and recovery was effected on 1.4.1996 and the same was sent to the Chemical Examiner at Karachi but during his deposition I.O. retracted from his earlier statement and stated that the property was sent to the Chemical Examiner Sukkur at Rohri that too on 18.6.1996 after delay of about 2 months and 17-days for that he has not given any plausible explanation. Above conduct of the prosecution shows that they have not taking the care of the case properly and rather Investigating Officer spoiled the case by giving the contradictory replies therefore his evidence on the point of recovery is doubtful and cannot be relied upon. In view of the above discussion I am of the humble view that both the points are answered as not proved"

8. Being aggrieved and dissatisfied with the acquittal judgment recorded by the trial Court, appellant/complainant Mehro Khan filed appeal against acquittal. By this Judgment we intend to dispose of aforesaid appeal against acquittal.

9. The evidence produced before the Trial Court finds an elaborate mention in the impugned judgment passed by learned Additional Sessions Judge Kandiaro dated 02.11.1998. Therefore, the same may not be reproduced here so as to avoid duplication and unnecessary reproduction.

10. Mr. Sardar Akber F. Ujjan learned advocate for appellant/ complainant argued that incident had occurred on 18.2.1996 at 8.00 p.m. and FIR of the incident was promptly lodged at Police Station. It is contended that ocular evidence was corroborated by medical evidence. Recoveries were also made from the acquitted accused. He next argued that accused Anwar made judicial confession before Civil Judge and Judicial Magistrate Kandiaro on 02.04.1996. There was huge evidence against respondents/accused to connect them in the commission of offence but trial Court acquitted the accused on artificial grounds. Lastly he has argued that prosecution evidence was not appreciated by the trial Court according to settled principles of law. In support of his contention he has relied upon the cases of Muhammad Iqbal v. The State (PLD 2001 Supreme Court 222), Ahmad Hassan and another v. The State (2001 SCMR 505), Bashir Ahmed v. The State (2004 PCr.LJ 1326), Fazal Rehman and others v. The State (PLD 2004 Supreme Court 250), Nooh v. The State (2004 YLR 3260), Muhammad Ali and others v. The State (NLR 2007 Criminal 499), Baba Charia and others v. The State (2007 Cr.LJ 796), Muhammad Ilyas v. The State and another (2011 PCr.LJ 966), Muhammad Azeem v. The State (2014 PCr.LJ 967) and Irfan Hussain v. Allahdin and another (2014 PCr.LJ 312).

11. On the other hand, Syed Mushtaque Hussain Shah learned advocate for respondents/accused Anwar and Ghulam Nabi argued that findings of Trial Court are based upon sound reasons. He argued that it was night time incident. P.Ws were chance witnesses, they had not explained their presence in the house of the accused at the time of incident. Mr. Shah next argued that source of identification of accused at night has not been disclosed by the witnesses at trial. It is also argued that accused were produced before Magistrate by police for remand and recording of 164, Cr.P.C. statements of P.Ws but accused were not prepared to make confessional statement. Mr. Shah contended that confession recorded later on was not voluntarily, but it was result of inducement and threat. He has argued that appreciation of evidence in the case of the conviction and in the case of appeal against acquittal are entirely different. In support of his contentions, he has relied upon the cases of Sikandar v. The State (PLD 1963 Supreme Court 17), Haji Ahmed and 2 others v. The State (1971 SCMR 326), Abdul Ghani and 3 others v. The State (1976 PCr.LJ 1462), Paryal and another v. The State (1978 PCr.LJ 380), Aminullah v. The State (PLD 1982 Supreme Court 429), Abdul Hakeam and another v. The State (PLD 1982 Karachi 975), Mr. Yahya Bakhtiar Advocate v. The State (PLD 1983 Supreme Court 291), Abdul Haleem v. The State (1984 PCr.LJ 611), Shabbir Ahmed v. The State (PLD 1995 Supreme Court 343), Muhammad Inayat v. The State (1998 SCMR 1854), Khadim Hussain v. Manzoor Hussain Shah and 3 others (2002 SCMR 261), Muhammad Mansha Kausar v. Muhammad Asghar and others (2003 SCMR 477), Asif Mehmood v. The State (2005 SCMR 515) and Muhammad Nawaz and others v. The State and others (2016 SCMR 267).

12. Mr. Abdul Rehman Kolachi A.P.G argued that there was huge evidence against accused to connect them with the commission of the offence. Learned A.P.G further argued that respondent/accused Anwar killed his wife, sentence should be deterrent. Trial Court has committed gross misreading of the evidence and recorded acquittal on ridiculous grounds. He argued that there was ocular evidence against the accused that was corroborated by the medical evidence, recovery and confession of the accused Anwar. He has submitted that acquittal may be converted to the conviction of the accused.

13. After hearing learned counsel for the parties and going through the record, we have come to the conclusion that learned trial Court has rightly acquitted the accused for the reasons that it was night time incident. Eye-witnesses were not inmates of the house and they have not shown probable cause of their presence in the house of accused where incident took place. Source of identification of accused has also not been disclosed as it was night time incident. Trial Court in its judgment has observed that other persons had also gathered, at the time of incident but no one has been examined by the prosecution at trial. Eye-witnesses of occurrence were interested and inter-related, their testimony required independent corroboration, it was lacking in this case. To carry conviction on capital charge ocular evidence must come from unimpeachable source or must be supported by some strong circumstances. As regards to the Judicial confession of the accused Anwar, it is admitted fact that after arrest of the accused Anwar he was produced before learned Civil Judge and FCM for police custody remand and recording of 164, Cr.P.C. statements of P.Ws but on that day accused was not prepared for recording confession but at some later stage, according to prosecution case accused Anwar agreed to make Judicial confession and it was recorded. Trial Court for the valid and sound reasons has rejected such confession. Moreover confession has been retracted by accused at trial. We have come to conclusion that Civil Judge and FCM Kandiaro had committed successive illegalities in recording confession of the accused as highlighted by the trial Court, it reflected that Magistrate had acted on the desire of the police and compromised his judicial obligations. Such careless attitude of Magistrate provided premium to the Investigating Agency. Civil Judge a FCM did not put mandatory questions to the accused persons and did not inform accused Anwar that he would not be given back to the police whether he made confession or not. Reliance is placed upon the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). Trial Court has rightly held that confession of the accused was untrue and contradicted the prosecution story on material particulars of the case, particularly recovery of weapon. Since ocular evidence has been disbelieved by the trial Court and confession of the accused has also been found to be untrue and made under coercion. Medical evidence would not be sufficient to connect the accused in the commission of the offence for the reasons that medical evidence could not point out the accusing finger towards the culpirts implicated in this case. In the case of Muhammad Usman and 2 others v. The State 1992 SCMR 489, the principles of considering the acquittal appeal have been laid down by Honourable Supreme Court as follows: It is true that the High Court was considering an acquittal appeal and, therefore, the principles which require consideration to decide such appeal were to be kept in mind. In this regard several authorities have been referred in the impugned judgment to explain the principles for deciding an acquittal appeal. In the impugned judgment reference has been made to Niaz v. The State PLD 1960 SC (Pak.) 387, which was reconsidered and explained in Nazir and others v. The State PLD 1962 SC

269. Reference was also made to Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Khan and 6 others v. The Crown 1971 SCMR

264. The learned counsel has referred to a recent judgment of this Court in Yar Mohammad and 3 others v. The State in Criminal Appeal No.9-K of 1989, decided on 2nd July, 1991, in which besides referring to the cases of Niaz and Nazir reference has been made to Shoe Swarup v. King-Emperor AIR, 1934 Privy Council 227 (1), Ahmed v. The Crown PLD 1951 Federal Court 107, Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426, Ghulam Mohammad v. Mohammad Sharif and another PLD 1969 SC 398, Hamifuddin Khan v. The State 1972 SCMR 672, Khalid Sahgal v. The State PLD 1962 SC 495, Gul Nawaz v. The State 1968 SCMR 1182, Qazi Rehman Gul v. The State 1970 SCMR 755, Abdul Rasheed v. The State 1971 SCMR 521, Billu alias Inayatullah v. The State PLD 1979 SC

956. The principles of considering the acquittal appeal have been stated in Ghulam Sikandar's case which are as follows:-- "However, notwithstanding the diversity of facts and circumstances of each, case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:- (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well accepted presumptions: One initial, that till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (3) In either case the well-known principles of reappraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to, the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable-person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

13. In another case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo (1993 SCMR 585), it is held that while evaluating evidence, difference is to be maintained in appeal from conviction and acquittal, it is observed as follows: "

14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed." From the ratio of all the above pronouncements, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors, of grave misreading or non-reading of the evidence; such judgment should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgment that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusion should not be upset except when palpably perverse, suffering from serious and material factual infirmities. Reliance is also placed upon the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 Supreme Court 11), The State and others v. Abdul Khalique and others (PLD 2011 Supreme Court 554), The State v. Anwar Saifullah Khan (PLD 2016 Supreme Court 276) and Javed Akber v. Muhammad Amjad and Jameel @ Jeela and another (2016 SCMR 1241). From the scanning of the evidence available on record and findings of the trial Court as stated above, we have no hesitation to hold that trial Court while applying judicial mind rightly appreciated the evidence and passed acquittal judgment and findings of the trial Court are neither perverse nor speculative. No misreading, non-reading or gross miscarriage of justice has been pointed out. As such while relying on the above cited authorities we have come to conclusion that acquittal recorded by the trial Court vide judgment dated 02.11.1998 requires no interference. Consequently, appeal is without merit and same is dismissed. Bail bonds and sureties of respondents Nos.1 and 2 shall stand discharged. WA/M-159/Sindh Appeal dismissed.