2022 PLP 738 (MLD)

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.