2023 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through instant Criminal Jail Appeal, appellant Muhammad Anas has assailed judgment dated 06.01.2018 passed by learned 1st Additional Sessions Judge, Karachi (East) in Sessions Case No.383/2016, (re: State v. Muhammad Anas and another), arising out of FIR No.29/2012 registered at P.S Korangi, Karachi, under sections 302/34, P.P.C., whereby the appellant was convicted for the offence punts gable under section 302, P.P.C. and sentenced to undergo R.I. for life imprisonment with fine of Rs.50,000/-. In case of default in payment of fine, he was directed to further suffer S.I for 02 months. However, the accused/appellant was extended benefit of section 382-B, Cr.P.C.

2. The case of the prosecution as per contents of FIR lodged by the complainant ASI Muhammad Ashfaq is that under the roznamcha entry No.29, the complainant ASI Muhammad Ashfaq reached at Jinnah Hospital where the dead body of Maqsood Alam son of Wali Muhammad Khan aged about 38 years was lying in an emergency ward. On query, he was informed that on 98.01.2012, at about 7:30 p.m., the deceased was going on a motorcycle bearing registration No.KFE-7530, make Unique of Black Color, Zaman Town, Korangi No.4, Karachi, unknown person or persons opened firearm shot(s) upon him which hit his left arm and towards his chest, resultantly Maqsood Alam died on the spot. Then his dead body was shifted to Jinnah Hospital, where the proceedings under section 174, Cr.P.C, were conducted, therefore, a letter was given to MLO Dr. Farhat Abbas, then he returned to P.S., where he lodged FIR against the unknown accused persons. Investigation of this case was entrusted to Inspector Saeed Ghani, who conducted the investigation and started the search, but has failed to search the culprits; therefore, he submitted his report under 'A' class.

3. On 02.10.2015, Sub-Inspector Hakim Ali Khosa of P.S CTD Civil Line was informed at P.S. Korangi who made an entry on a telephone that an accused' namely Muhammad Anas son of Abdul Hai was arrested in crime No.180/2015 under section 23(i)A of Sindh Arms Act 2013, whO has confessed about the guilt of this case. On such information, SIP Ghulam Yaseen Soomro reached at CTD Civil Line and interrogated the accused, who has confessed about the guilt of the offence and has disclosed that on 28.01.2012 at Sector 35/A, Zaman Town, near Mustafa Masjid along with his companion Qamar Shah Jee (late) has committed the murder of his maternal uncle and for that purpose he has also given Rs.30,000/- to his companion Qamar Shah Jee (late), therefore, the accused Anas also arrested in this case. Then he obtained the remand of the accused and was produced the accused for his statement under section 164, Cr.P.C. Then he recorded statements of the mother of the deceased namely Asmatun Nissa so also the brothers of the deceased namely Intikhab Alam and Mansoor Alam under section 161, Cr.P.C, collected the copy of Nikahnama. He has also contacted the widow of the deceased various times for recording her statement but she was reluctant to record her statement. Since the accused Muhammad Arias during the interrogation has disclosed that he has illicit relation with her Aunt (Mumani, the widow of the deceased) due to which he got murdered his maternal uncle, therefore, the I.O. inserted section 109, P.P.C. in this case and has also included the name of Mst. Nasreen as co-accused of this case.

4. A formal charge was framed against the accused person as Ex.2 and the plea was recorded as Ex.2/A and 2/B in which they pleaded not guilty and claimed for trial.

5. In order to establish its case, the prosecution examined PW-1 Mst. Asmatun Nissa as Ex.3, PW-2 Intikhab Alam as Ex.4, he produced memo of 're-arrest and recovery as Ex.4/A, PW-3 PC Hamid Ali as Ex.5, he produced memo of inspection of the dead body, inquest report, memo of inspection of the place of incident as Ex.5/A to 5/C, PW-4 Senior Civil Judge Abdul Razzak as Ex.6, he produced an application for recording the confessional statement, and confessional statement of accused Anas as Ex.6/A and 6/B. PW-5 Mansoor Alam as Ex.7, PW-6 SIP Muhammad Ashfaq as Ex.8, he produced police letter to MLO, FIR and roznamcha entry as Ex.8/A to VC, PW-7 SIP Ghulam Yasin as Ex.9, he produced roznamcha entries as Ex.9/A and 9/B, PW-8 Inspector Saeed Ghani as Ex.11. Thereafter, the prosecution closed its side vide Ex.12.

6. Thereafter, statements of the accused under section 342, Cr.P.C. were recorded at Ex.13 and 14 respectively, wherein they denied the allegations, claimed to be innocent and prayed for justice. The appellant examined himself on oath in terms of section 340(2), Cr.P.C. as well his defense witness namely Shamshad Ahmed in disproof of the charge.

7. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated due to enmity; that there is no eye witness of the alleged incident and the entire prosecution case rests upon the retracted confessional statement; that the confessional statement of the appellant has not been recorded in accordance with the law, which suffers from illegalities and deviations, therefore, it is doubtful and cannot be said to have been recorded voluntarily by the appellant without any pressure, coercion or duress on the part of police/complainant party. Learned counsel lastly contended that the whole prosecution case is full of doubts and when a single doubt is created in the prosecution case, which always goes in favour of the accused, therefore, he prayed for acquittal of the appellant.

8. On the other hand, learned A.P.G. Sindh has vehemently opposed the contentions as advanced by the learned counsel for the appellant and contended that there is no illegality or irregularity in the impugned judgment, therefore, it does not require any interference by this Court. He prayed for dismissal of the instant appeal.

9. Heard and perused the record.

10. In the instant case, the motive behind the murder of the deceased as shown by the prosecution was the liaison of appellant with the wife of the deceased and she was also made co-accused in this case, however, she was acquitted by the learned trial court, finding no evidence against her and convicted the appellant as stated above. The incident is stated to have taken place on 28.01.2012 and the police came to know regarding the murder of the deceased through the MLO JPMC where the dead body of the deceased was lying having gunshot injury. Subsequently, the case was disposed of under the "A" class. It will be worthwhile to describe here that as per evidence of SIP Ghulam Yaseen of PS Awami Colony when on 02.10.2015, he was posted at PS Korangi in investigation branch, SI Hakim Ali Khoso made an entry on the telephone that appellant Muhammad Anas arrested in crime No.180/2015 under section 23-1(i), SAA, 2013 is confined at CTD, who during interrogation admitted his guilt of instant crime, as such, he called the brothers of deceased namely Intikhab Alam and Mansoor Alam at PS and proceeded to CTD Civil Line and with the permission of CTD Incharge took out the appellant from lockup and interrogated him. He further deposed that the appellant admitted that on 28.01.2012 he along with his set off Qamar Shahjee committed the murder of his maternal uncle Maqsood Alam at Korangi No.4; therefore, he arrested him under the memo of arrest with the signatures of Intikhab Alam and Mansoor Alam, whose statements were also recorded. On the next day, he produced the appellant before Judicial Magistrate and obtained remand; according to him, when the appellant was produced before Judicial Magistrate, he voluntarily admitted his guilt and shown his willingness to record his statement under section 164, Cr.P.C. and accordingly the confessional statement of accused was recorded. He further deposed in his deposition that he recorded a statement under section 161, Cr.P.C. of mother of deceased namely Asma-un-Nisa, who disclosed that her son was murdered at the instigation of Nasreen wife of the appellant. It would be very essential to note that at the initial stage when on 29.01.2012, SIP Saeed Ghani of PS Korangi prepared the memo of inspection of the place of incident (Ex:05/C) wherein he disclosed that the incident took place due to resistance of deceased with culprits/robbers on snatching of mobile phone.

11. Prosecution witnesses namely Mst. Asmun Nissa, Intikhab Alam and Mansoor Alam have deposed that the appellant Murdered the deceased, however, they remained mum for three years and eight months till confession of the appellant before police and Magistrate. Even they have also deposed against the appellant after knowing from police that appellant has admitted his guilt that he has committed the murder of deceased through one Qamar Shah on payment of Rs.30,000/-. Therefore, I believe that there is no evidentiary value of these witnesses keeping in view article 71 of the Qanun-e-Shahadat, 1984, which provides that oral evidence must, in all cases whatever, be direct, however, in the instant case, evidence of these witnesses is termed as hearsay evidence, which in the eyes of law cannot be based as corroboratory until and unless is supported by incriminating articles coupled with strong direct evidence. There is also no recovery from the appellant. Further, police officials are also not eyewitnesses of the incident, therefore, the same has too no weight.

12. Now reverting to the retracted confessional statement of the appellant, which was recorded before Judicial Magistrate and Judicial Magistrate, Karachi East in his deposition deposed that on 03.10.2015, SIP Ghulam Yaseen Soomro filed an application for recording confessional statement of accused Muhammad Anas Khan in crime No.29/2012 under sections 302, 34, P.P.C. of PS Korangi and on his application, he recorded confessional statement after removing the handcuffs of the accused. However, in his cross-examination, learned Magistrate admitted as under:- "It is correct to suggest that the application of the I.O. does not contain the time. It is correct to suggest that my order also does not contain time. It is correct to suggest that at the time of passing order on the application I ordered to remove the handcuffs of the accused. It is not in my knowledge that how many police officials brought the custody of accused. It is correct that I have directed the I.O. to leave the Court room. It might be he was present at the corridor. It is correct to suggest that staff room has two sides doors and any person easily entered into the staff room from both sides doors and any person easily entered into the staff room from both sides doors. It is not in my knowledge that law provides two hours for reflection to the accused. It is correct to suggest that the accused was remained in Court room after he was granted time for reflection. It is correct to suggest that normally any person can entered into the Court room without any permission. It is correct to suggest that whole body of the accused was not examined by me. It is correct to suggest that the accused did not disclose about the place of arrest. It is correct to suggest that the accused remained silent for about 3 years and 10 months about the murder of deceased. It is correct to suggest that police has kept the accused in his custody for about three months. It is not in my knowledge that whether the accused was tortured and was compelled to confess about his guilt. It is correct to suggest that it was stated by the accused Anas in his confessional statement that the accused Nasreen stated him that if you kill my husband Macisood Alam then I will not marry you. It is correct to suggest that as per the statement of accused there is no role of accused Nasreen in the murder of deceased."

13. After recording the evidence of the prosecution the appellant in his statement under section 342, Cr.P.C. has denied the allegation and pleaded innocence. When a question regarding confessional statement was put to him, he answered as under:- "Q. No.

03. You have heard the prosecution evidence wherein it has been alleged that on 3.10.2015, you accused Muhammad Anas were produced before the court of learned XV Judicial Magistrate, Karachi East, for your confessional statement, wherein you have confessed the guilt of offence of commission of murder of Maqsood Alam. What you have to say? Ans. I stated what I was told by the police to say before the Magistrate.

14. Appellant Muhammad Anas examined himself on oath and his defense witness namely Shamshad Ahmed. In his statement, the appellant stated that on 19.09.2015 at about 2.30 a.m. to 3.00 a.m., he was sleeping at his house; suddenly five to six police officials came in civil dresses and picked him from his house. Then they took him to CTD Civil Line, where they started to beat him and asked about selling the shop. They kept him at CTD for about 4/5 days where they used to beat him mercilessly and pressurized him to confess the guilt of murder. They also issued threats to kill him in the encounter. He also deposed that he is innocent and has not committed any offence, therefore, they brought him at CTD Civil Line and again started torture. Police obtained two days remand from the court and brought him to CTD where he was tortured by them, with threats to kill him. He further deposed that on 3.9.2015, he was again produced before the court where due to torture he has lost his resistance power, therefore, he has given a confessional statement before the Court due -to fear and pressure of police. DW Shamshad Ahmed also supported the version of the appellant about his arrest on 19.9.2015.

15. After careful perusal of the evidence of the learned Magistrate and statement of the appellant, it will be appropriate to keep the same in juxtaposition to come on a convincing view. The appellant alleges torture on his person at the hands of police to confess offence, however, learned Magistrate who recorded the confessional statement of the appellant in his evidence stated that it is not in his knowledge that whether the accused was tortured and compelled to confess about his guilt and admitted that whole body of the accused was not examined by him. In such circumstances, I very seriously observe that this aspect was not taken into consideration by the learned trial Court coupled with the fact of the acquittal of co-accused Mst. Nasreen as the motive behind the murder of the deceased, though denied by the appellant, was terms of the appellant with co-accused. The courts are required to render the judgment after the application of a judicious mind. Particularly, the trial courts should remain conscious as the trial court may well assess the evidentiary value of the statements of the witnesses because the evidence of the witnesses is recorded in the presence of the trial court. It is a fundamental duty of the court to see that the case of the accused should not be prejudiced in any manner whatsoever. The fundamental principle of the law that the safe reliance on circumstantial evidence can only be placed in the evidence adduced by the prosecution is trustworthy and confidence-inspiring but in the case, in hand, it is not worthy of credence and that too has not come from an independent source, which cannot be relied upon for conviction and sentence for the reason that the prosecution has only relied upon the confessional statement of the present appellant which is not creditworthy as the same was retracted. The appellant alleged torture after his arrest in the custody of police and such like confessional statement as stated above cannot be relied upon and is not worth consideration. The retracted confessional statement needs independent corroboration to earn the conviction and sentence but it is lacking. The prosecution needs to make the appellant, however, the accusation against the appellant is merely based on his retracted confessional statement; and if it is so, it shall make the case of the prosecution doubtful. The benefit of which is to be extended to the accused. I have no hesitation to observe that when the entire case of the prosecution rests upon the circumstantial evidence, extreme care and caution is required to be taken for reaching a just decision of the case. In this regard, I am fortified with the guidance of the Hon'ble Apex Court of Pakistan in the case of "Sarfrar Khan v. The State" reported in 1996 SCMR 188 whereby the Hon'ble Supreme Court of Pakistan observed as under:- "...... It is well settled that the circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby, excluding all hypothesis of his innocence......"

16. Belatedly confessional statement of the appellant was recorded and that too not in accordance with section 164, Cr.P.C. would be discarded and shall not be taken into consideration at all. It is evident that the rule of admissibility of a confessional statement prescribes no time as to the recording of the confession of an accused and simpliciter delay in recording of confession may not be fatal to the case of the prosecution but at the same time, the court is under a legal obligation to examine the same keeping in view the circumstances of the case. The court is to satisfy itself as to whether the confession is voluntary, true and is recorded in accordance with law and whether it can be relied upon, notwithstanding that there may be some delay in recording the confessional statement, but generally the delay in recording a confession makes it doubtful. Therefore, if the statement is recorded after torture in the police custody, it is always viewed with suspicion .as no method has so far been invented to test the statement on the touchstone of truthfulness and voluntariness. It is settled principle of recording the confessional statement that if the confessional statement is recorded with a nominal delay after the arrest of the accused, it should not be ruled out of considerations and if there is an unexplained delay for a considerable period after the incident, the same should not be taken into consideration without any independent corroboration.

17. The statement of the learned Magistrate, who recorded the confessional statement of the appellant, clearly shows that the appellant was not provided an atmosphere free from fear so that he could get his statement recorded truthfully and voluntarily. There is no basic difference existing between confession and a retracted confession, what is required to be seen is that the element of truth should have not been missed and it is a question of fact which is to be adjudicated upon by the court keeping in view the attending circumstances of a particular case. If the confessional statement of the accused is found voluntarily, a conviction can be recorded, but the rule of caution requires that a retracted confession must be supported by some other independent evidence connecting the accused with the crime. It is also judicial consensus that the retracted confession is always open to suspicion and cannot be acted upon unless it is corroborated by available independent, trustworthy and thorough truthful witnesses, In the circumstances of the case, I hold that the confessional statement in question is not free from duress and coercion as the appellant was tortured in custody as claimed by him has gone unchallenged and un-rebuttal and confirmed from the statement of learned Magistrate, who stated that he has not examined the whole body of appellant. Even though it is not a rule of law that confession whether retracted or not, could not be the sole basis for conviction but the principle of procedure and rule of caution required that a retracted confession must be supported by some other connected evidence, which in the instant case is missing.

18. Another aspect of the case is that a confessional statement can be relied upon where supportive evidence of recoveries, effected at the instance of the accused, had been proved on the record as well as medical evidence. The scrutiny of the record shows that there was no supportive evidence available on the record connecting the accused with the crime for reliance on confessional statement. The trial Judge has mentioned' in the impugned judgment that co-accused Qamar Shah Jee has died, for whom it is stated that he has murdered deceased at the instance of the appellant.

19. In the alleged confession, the appellant had shown himself involved to the extent of making conspiracy with co-accused Mst. Nasreen (since acquitted); however, no concrete material or cogent evidence was collected by the Investigating Officer during investigation for making conspiracy by the appellant as well co-accused Mst. Nasreen regarding commission of the instant offence. The perusal of evidence reveals not a single iota of evidence was collected whether the appellant as well co-accused Mst. Nasreen had gathered on a particular place, time and date and such their conversation was heard or witnessed by any of the witness/relative or any other person having nexus with the crime through which it could be believed that the appellant had hatched a conspiracy to get remove the deceased, his maternal uncle; rather in his statement under section 342, Cr.P.C., he has categorically answered to a question that whatever was tutored to him by the police he had deposed it before the Magistrate at the time of recording his alleged confession. When basic ingredients for constitution of a conspiracy are lacking in this case and none of the P.Ws had uttered a single word from their mouth concerning conspiracy allegedly hatched by the appellant as well co-accused Mst. Nasreen, therefore, the chain with regard to the making conspiracy in respect of the -murder of the deceased cannot be termed to have been established on the part of the appellant. As far as his confession is concerned, he had deposed to the extent that at the time of the alleged incident he was accompanied by co-accused Qamar Shah Jee and on his direction, he had fired upon the deceased who subsequently succumbed to his injuries and died if presumed to be true even then it cannot be believed in toto to maintain conviction against the appellant on the ground the confession allegedly made by him, which was retracted subsequently besides no witness was examined from the Mosque or the road where alleged murder was committed. The person, who allegedly caused the murder of the deceased, was not arrested therefore was not examined by the police to believe that he had committed the murder of the deceased at the instance of the appellant after having compensation of Rs.30,000/- as alleged. The co-accused Mst. Nasreen has been acquitted on the basis of the same set of evidence while maintaining the conviction against the appellant by the trial Court upon the base of evidence which has been disbelieved in respect of co-accused is beyond the approach of prudent mind. In my view and in view of the reappraisal of the evidence adduced by the prosecution before the trial Court, particularly, the version of co-accused Mst. Nasreen that she would not support the, appellant in case of causing the murder of the deceased, her husband. The charge to the extent of section 109, P.P.C. has not been established safely.

20. Furthermore, though the appellant has denied the connivance of co-accused Mst. Nasreen for the murder of the deceased but the stance of prosecution appears to be the basis of the murder of the deceased due to terms of the appellant with co-accused; however, learned trial Court has acquitted co-accused. Therefore, the 'Rule of consistency' demands that if an accused has been extended a certain benefit, other accused charged with similar allegations is also entitled to the same concession/treatment. In this connection, it would be advantageous to refer to a judgment of Hon'ble Supreme Court passed in the case of "Mohammad Asif v. The State" reported in 2017 SCMR 486 wherein it was held as under: "It is a trite rule of law and justice that once prosecution evidence is disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case." In another case reported as "Umar Farooque v. State" (2006 SCMR 1605) Hon'ble Supreme Court held as under:- "On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted." Yet in another case reported as "Mohammad Akram v. The State" (2012 SCMR 440) the Apex court acquitted the accused in the said case, holding that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge. In this view of the matter, I am of the firm opinion that the 'rule of consistency' would be applicable to the instant case. Needless to emphasize that it is a well-settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Stiperior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as "Wazir Mohammad v. The State" (1992 SCMR 1134), it was held by the Hon'ble Supreme Court as under:- "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Hon'ble Supreme Court as under:- "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case Before, the case is established against the accused by. prosecution, the question of burden of proof on the accused to establish his plea in defence doe's not arise."

21. The accumulative effect of the above said admissions/contradictions, as well as infirmities/legal flaws in the prosecution case, is that severe dents have been put and serious doubts have been created in the prosecution case. It is a well-settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well-settled principle of law that the accused is entitled to be extended benefit of the doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Hon'ble Supreme Court held as under:- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

22. For the foregoing reasons, by short order dated 04.03.2021 instant appeal was allowed and the impugned judgment dated 06.01.2018 passed by learned 1st Additional Sessions Judge, Karachi (East) in Sessions Case No. 383/2016, (re: State v. Mohammad Anas and another), arising out of FIR No.29/2012 registered at P.S Korangi, Karachi under sections 302/34, P.P.C. was set aside to the extent of conviction of appellant only. Consequently, the appellant was ordered to be released forthwith, if his custody was not required in any other criminal case by the jail authorities. Above are the reasons for said short order. JK/H-130/Sindh Appeal allowed.