2025 PLP 1569 (MLD)

Sardar Muhammad Ejaz Khan, J.

The captioned Jail Appeal No.13/13 (40/17) has been filed against the judgment passed by District Court of Criminal Jurisdiction, Muzaffarabad, on 31.01.2013, whereby convict-appellant, Muhammad Shairf, convicted and awarded sentence:- i) Under Section 302 (a), APC death penalty on four counts as 'Qisas'; ii) Under Section 324, APC 10 years rigorous imprisonment; iii) Under Section 337 (A-ii), APC five years rigorous imprisonment with fine of Rs.5000/- as 'Arsh'; iv) Under Section 337(F-ii) APC 3 years rigorous imprisonment and fine of Rs.5000/- as 'Daman'; v) Under Section 452, APC five years rigorous imprisonment; vi) Under Section 13/20/65 A.O. one year simple imprisonment and find of Rs.1000/-, in default of payment of fine, he shall undergo one month simple imprisonment; vii) Under Section 544-A of Cr.P.C., he shall pay the armount Rs. 10,00,000/- as compensation to legal heirs of deceased, in default of payment of compensation, he shall undergo further imprisonment of six months; and viii) He was extended the benefit of Section 382 (B) of Cr.P.C. Whereas the State filed an Appeal No.118/13 (41/17) for setting-aside judgment dated 31.01.2013 pertaining to acquittal of respondent-Misbah and reference No.11/13 (42/17) was sent by the learned Court below for confirmation of death sentence of convict-Muhammad Sharif.

2. Brief facts forming background of the instant case are that on 12.11.2012 complainant, Muhammad Ilyas, submitted a written report at Police Station, Kahori, stating therein that at midnight of 11/12.11.2012 at about 12:00 A.M., Muhammad Sharif son of Abdul Latif resident of Lahore and Mst. Misbah daughter of Mehboob-ur-Rehman, having intention of murder, entered into the house of his paternal nephew, Muhammad Iqbal son of Muhammad Saeed, and injured his nephew with successive stabs of sharp edge weapon. On the super of moment, Mst. Shahnaz Bibi wife of Muhammad Iqbal and children namely Uzma Iqbal, Munaza Iqbal, Nasir Iqbal and Muharnmad Iqbal came to rescue, Muhammad Iqbal who were also brutally injured by them with sharp edge weapon. Due to which, Mst. Shahnaz Bibi and Uzma Iqbal succumbed to injures on the spot while Munaza Iqbal was rushed to hepatize. The motive behind the occurrence is that Muhammad Sharif two months before took Misbah daughter of Mehboob-ur-Rehman with him from Tariqabad and this incident took place with the abetment of Ghulam Mohi-ud-Din alias Billa, Mst. Misbah daughter of Mehboob-ur-Rehman wife of Muhammad Sharif. If some other persons are found involved in abetment, they will be nominated during investigation. During incident, a hue and cry of victims, he along with Muhammad Arshad, Muhammad Ashraf, Muhammad Ajmal, Mansoor, resident of Sangri Sangnar who were invited in the wedding ceremony saw the occurrence while after the incident, Muhammad Sharif and Misbah were trying to flee away but were caught, hence, it has been prayed for initiating proceedings under law.

3. On this report, a case illat No.65/2012 in offences under Sections 302/452, 337/109, APC, was registered against the accused-Muhammad Sharif and his wife Misbah on 12.11.2012 at Polic Station Kahori. The accused-persons apprehended by the Police. The police visited at the spot and collected articles through different recovery memos. The dead bodies of Muhammad Iqbal, Nasir Iqbal, Uzma Iqbal and Shahnaz Bibi were shifted to CMH, Muzaffarabad for autopsy where their autopsies were conducted while statements of eye-witnesses under Section 161 of Cr.P.C. were recorded and crime weapon was recovered on the pointation accused-Muhammad Sharif. Accused-Ghulam Mohi-ud-Din was exonerated under Section 169 of Cr.P.C. while Sections 452, 337/A-ii, 337/F-ii, 324, 302, 34 APC and 13/20/65, A.O. were added during investigation. The Police after investigation submitted challan under Section 173 of Cr.P.C. on 31.12.2012 and the accused-persons were examined under Section 265-D of Cr.P.C. while accused-Muhammad Sharif got recorded his confessional statement and accused-Misbah denied the guilt of offence. On this, the learned trial Court while exercising powers conferred under Section 265-K of Cr.P.C. acquitted accused-Misbah of the charges levelled against her whereas Accused-Muhammad Sharif, was convicted and awarded death sentence in offences mentioned in pre-paras vide impugned judgment dated 31.01.2013, hence, these appeals and reference.

4. Arguments heard. Record perused.

5. As far as the contention of the learned counsel for the appellant-Muhammad Sharif is concerned that the learned trial Court was not justified to award death penalty because no opportunity was provided to him for engaging counsel as he has claimed in his appeal that he has not confessed the guilt of offence levelled against him, hence, the trial Court handed down its judgment in a hasty manner, which may be set-aside, thus, the learned trial Court may be directed to proceed with the matter as provided under law. From deep perusal of record available on the face of file, it shows that the learned trial Court while recording confessional statement of convict appellant, Muhammad Sharif, has ignored the legal requirements of law particularly a confessional statement could only be taken into consideration if the Court is satisfied that the same was true and recorded voluntarily i.e. not obtained by torture, coercion or inducement. The superior Courts laid down the dictum that if a confessional statement of the accused is recorded, the Courts should provide a reasonable time and the rule of prudence also requires consideration regarding the surrounding circumstances of the case.

6. It is apparent on the face of record that statement under Section 265-D of Cr.P.C. of convict-appellant, Muhammad Sharif, was got recorded on 17.01.2013 even if we placed no doubt that he confessed the guilt of offence but even then the learned trial Court was duty bound to provide an opportunity of engaging counsel or give some further time and should also put a question to convict-Muhammad Sharif, regarding legal consequences of his statement as convict-appellant is an illiterate person and was not aware of the legal implication of his confession, hence, for the sake of safe administration of justice, it was enjoined upon the learned trial Court to consider the factum that whether convict-appellant had made such confessional statement voluntarily or due to torture, coercion, pressure, influence, false belief, inducement in view of surrounding circumstances of the case but record of the case does not substantiate that any such effort has been made in this regard. Thus, we are of the unanimous view that the learned trial Court failed to discharge its legal duties as provided under law while handing down the impugned judgment dated 31.01.2013, hence, the same is liable to be set-aside with the direction to the learned trial Court to decide the matter on merits in accordance with law.

7. Adverting to Appeal No.118/13 (41/13) filed on behalf of the State, the contention of the learned State counsel that case was registered against two nominated persons, convict-Muhammad Sharif and his wife Misbah and learned trial Court rightly awarded capital punishment to convict-appellant but wrongly acquitted co-accused-Misbah of the charges under Section 265-K of Cr.P.C. whereas accused-respondent, Misbah is nominated in FIR and involved in hatching the conspiracy of murder of four innocent persons, hence, it was incumbent upon the learned trial Court to provide reasonable time to prosecution for proving its case as such impugned acquittal order does not fulfill the requirement as provided under Section 265-K of Cr.P.C., which may be set-aside has some weight. For proper appreciation of the matter, Section 265-K of Cr.P.C. is reproduced as under:- "265-K. Power of Court to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence."

8. The provisions of Section 265-K, of Cr.P.C. is always conditional and can be invoked only if the Court considers that there is no probability of an accused to be convicted of any offence with which he/she is charged, but none of such grounds is available to accused-Misbah in this case because after the perusal of statements of witnesses Muhammad Ilyas, Muhammad Arshad, Muhammad Ajmal, Muhammad Ashraf and Mansoor Ahmed, it elucidates the matter that grounds for acquittal of accused while exercising powers under Section 265-K of Cr.P.C. are not available to co-accused-Misbah in presence of prosecution witnesses because prosecution produced sufficient evidence in support of its version in which she has been nominated, hence, the scheme of the above quoted Section is that the Court is empowered to acquit the accused at any stage of proceedings where there is no probability of the accused being convicted of any offence because the sole object to exercise such powers is to prevent fruitless trial. We have deeply securitized record made available on the surface of file and unanimously reached at the conclusion that learned trial Court while acquitting the accused-respondents, Misbah, travelled beyond the scope of Section 265-K of Cr.P.C. and committed grave illegality and material irregularity as such the impugned judgment to that extent is also liable to be set-aside.

9. The upshot of the foregoing reasons is that Appeal No.13/13 (40/17) filed by convict-appellant, Muhammad Sharif, is accepted and impugned judgment dated 31.01.2013 as well as his statement recorded under Section 265-D, Cr.P.C. is hereby quashed with the direction to the learned trial Court to frame charge as provided under law and thereafter, proceed with the matter in accordance with law while Appeal No.11/13 (41/17) filed by State is also accepted while setting-aside the judgment to the extent of acquittal of accused-Misbah in view of observations made hereinabove. Consequently, Reference No.11/13 (42/17) sent by the learned trial Court for confirmation of death sentence of convict-appellant, Muhammad Sharif, is answered in negative. The parties are directed to appear before the learned trial Court on 15.11.2022. A copy of this judgment shall be annexed along with the other relevant files. JK/25/AJK(H.C) Case remanded.