2007 P Cr (PLP)

MRS. QAISER IQBAL, J.

The appellant Muhammad Zia son of Muhammad Amin, being aggrieved and dissatisfied from the judgment dated March 5, 2005 and sentence awarded by IIIrd Additional District and Sessions Judge, Karachi (East), in F.I.R. No.11 of 2000 under section 302/34, P.P.C. registered at Jamshed Quarters Police Station, Karachi, has preferred this appeal. The appellant was convicted and sentenced by the learned trial Court along with co-accused Anwar Khan son of Gul Haider Khan, as under:-- (a) convicted and sentenced both the accused Muhammad Zia and Anwar Khan to imprisonment for life and to pay fine of Rs.50,000, each under section 302, read with section 34, P.P.C. In case of default of payment of fine, the defaulting accused to undergo rigorous imprisonment for two years more; (b) both the accused were also directed to pay compensation of Rs.1,50,000 each to the heirs of the deceased Sarfraz Ahmed. In case of default of compensation, the defaulting accused to undergo rigorous imprisonment for six months more; (c) both the accused were allowed to avail benefit of section 382-B, Cr.P.C.

2. Subsequently, co-accused Anwar Khan preferred a separate appeal in this Court bearing Criminal Appeal No.156 of 2005 in F.I.R. No.11 of 2000 under sections 302, 34, P.P.C., registered at Jamshed Quarters Police Station Karachi, and this Court vide its order dated May 6, 2005, acquitted the co-accused Anwar Khan, on the basis of a compromise arrived at between the complainant and co-accused Anwar Khan.

3. Precisely, the brief facts, as disclosed in the F.I.R. lodged by complainant Muhammad Akbar on January 7, 2000, are that he received information from the house of Muhammad Naseem, situated at Fatimah Jinnah Colony, Jamshed Quarters, Karachi, on phone, to reach to his Flat bearing No.B-10, 4th Floor, Creative Apartment, Jinnah Colony, Karachi, where his brother Salem Ahmed and wife of Muhammad Naseem were present. On the query of the complainant, Mst. Sultana disclosed that her son-in-law namely Sarfraz Ahmed son of Salem Ahmed was present at home, she went away in connection with a piece of work and returned back at about 5' O clock and found the door of the house was locked from inside. The door was opened by the Chowkidar and found body of Sarfraz Ahmed, aged about 17 years, in a pool of blood, lying in the bed room. He was complainant's nephew, his throat was cut down and there were injuries on his abdomen, hence report was lodged against unknown persons for committing murder of Sarfraz Ahmed with a sharp-edged weapon, which was recorded by S.H.O. Muhammad Aslam Jagirani.

4. After registration of the F.I.R. S.H.O. Muhammad Aslam Jagirani, visited the place of Vardat, carried out the investigation, prepared inquest report of the dead body and M'ashirnarna of the place of Vardat. He recorded the statements of prosecution witnesses and upon recovery of the crime weapon, at the pointation of the appellant, identification parade was arranged before the Judicial Magistrate. The confessional statement of the appellant was recorded and subsequently he was sent along with the co-accused Anwar Khan to face the trial.

5. At the trial, a charge under sections 302, 34, P.P.C. was framed against the appellant and co-accused Anwar Khan. The appellant denied the allegations levelled against him and pleaded innocence.

6. Prosecution in support of the case, examined P.W.1 Races Ahmed, P.W.2 Muhammad Akbar (complainant), P.W.3 Muhammad Ayub, Judicial Magistrate, P.W.4 Mst. Sultana Naseem, P.W.5 Naushad, P.W.6 Rafique, P.W.7 Qamarul Islam Khan, P.W.8 Dr. Abdul Razzaq, P.W.9 Muhammad Aslam Jagirani (S.H.O.), P.W.10 Dr. Khuda Bakhsh and closed its side.

7. The appellant, in his statement, recorded under section 342, Cr.P.C. denied the allegations levelled against him and alleged that he had not committed murder of deceased Sarfraz Ahmed. He was not identified by the complainant and prosecution witnesses. He did not confess the commission of the crime before the Judicial Magistrate but under duress and coercion his confessional statement was recorded.

8. Prosecution, in order to establish that deceased Sarfraz Ahmed, met a unnatural death, relied upon the testimony of Medico-legal Officer. Dr. Abdul Razzak, conducted the autopsy of the dead body and found following injuries on external and internal examination:-- External injuries (i) Incised wound 8 c.m. x 3 c.m. from right to left mid of neck, structure deep. (ii) Abrasion 3 c.m. x 1 c.m. right side of neck; (iii) Abrasion 3 c.m. x 1 c.m. right forearm; (iv) Abrasion 3 c.m. x 2 c.m. left hypochondria; (v) Abrasion 3 c.m. x 2 c.m. right thigh; (vi) Stab wound 3 c.m. x .5 c.m. right lower chest; (vii) Stab wound 3 c.m. x .5 c.m. left lower chest; (viii) Stab wound 3 c.m. x 1 c.m. epigastria; (ix) Stab wound 3 c.m. x_l c.m. mid of right chest. Rigor mortis fully developed. Internal injuries (i) skull bone intact; (ii) right and left carotid vessels cut trachea also cut at upper part; (iii) thorex on opening the cavity heart normal, right middle and left lower lope tea read; (iv) abdomen on opening the abdominal cavity tear at duodenum present, liver, spleen and kidneys normal.

9. From examination of the dead body, the cause of death of deceased Sarfraz Ahmed was due to shock and haemorrhage, consequent upon cut throat by sharp-edged weapon. The prosecution have not disputed the time of incident, the place of incident, the number and nature of injuries, sustained by deceased Sarfraz Ahmed.

10. Adverting to the examination of the injuries, the prosecution have relied upon the ocular accounts, furnished by complainant Muhammad Akbar. He has alleged that the police had recovered a handle of the crime weapon from the place of Vardat, situated at Flat No.B-10, 4th Floor, Creative Apartments, Fatimah Jinnah Colony, Jamshed Road, Karachi. It is urged by learned counsel for the complainant that the version of P.W. Muhammad Akbar, coupled with Mst. Sultana Naseem that she returned at her flat at about 2-00 p.m. knocked the door but the door was locked from inside, which was got opened by the Chowkidar and she entered the room and found that her grandson was lying, dead. She suspected the appellant and co-accused Anwar Khan because they were found sitting on the roof of the flat at about 3-00 p.m. On her inquiry, they disclosed that they had climbed the roof for mending the antenna.

11. In any view of the matter, as suggested by learned counsel for the appellant that no direct evidence is available, the case is based upon the circumstantial evidence comprising of (i) identification test, (ii) the motive, (iii) recovery of crime weapon, (iv) confession, (v) ocular evidence and (vi) positive report of Chemical Examiner.

12. P.W.2 Muhammad Akbar, P.W.4 Mst. Sultana Naseem, P.W.4 Naushad, P.W. Races Ahmed, P.W.7 Qamarul Islam Khan, arrived at place of Vardat after the incident was over, therefore, the complainant had proceeded to lodge the report against unidentified culprits. The testimony of P.W. Mst. Sultana Naseem relates to the last seen evidence as she saw the appellant and co-accused Anwar Khan on the roof of the building and on her inquiry they disclosed the purpose that they went to mend the antenna.

13. Adverting to the testimony, Judicial Magistrate, in whose presence identification parade of the appellant was held through P.Ws. Races Ahmed and Mst. Sultana Naseem as well as confessional statement of the appellant was recorded, suggests the motive of murder of deceased Sarfraz Ahmed.

14. Learned counsel for the State has contended that from the confessional statement of co-accused Anwar Khan, it is spelled out that the appellant was in need of money on January 17, 2000, therefore, both of them planned to commit robbery to procure golden ornaments and cash in the flat where deceased Sarfraz Ahmed was residing. Accordingly, to materialize the plan, they went to the roof of the flat and found the door of the flat was not locked. Co-accused Anwar Khan informed the appellant Muhammad Zia that there was somebody in the flat. They entered in the house and found one boy was available in the house, who inquired from the appellant what was the matter. The appellant dragged him towards the room upon which deceased Sarfraz Ahmed requested co-accused Anwar Khan to save him as the appellant would -kill him. The appellant tied the neck of deceased Sarfraz Ahmed from a cloth sheet and inflicted dagger blows on his abdomen whereas co-accused Anwar Khan tried to rescue him and sustained blow on his finger.

15. Conversely, the appellant in his confessional statement had connected co-accused Anwar Khan by stating that they had entered the flat for committing robbery where one boy was sleeping in the room. During the course of incident, Mst. Sultana Naseem pressed the doorbell. The appellant called upon the co-accused Anwar Khan to leave the spot as Sarfraz Ahmed had identified them and he would kill him. Co-accused Anwar Khan inflicted dagger blows and cut off his throat then left the spot. In the meanwhile Mst. Naseem Sultana asked them what they were doing on the roof. They replied that they were connecting the cable of' dish. It appears that there is exculpatory confessional statement on behalf of' the appellant and acquitted accused.

16. The question arises whether exculpatory confession retracted subsequently could legally be taken into consideration against the maker and if confession was found to be true and voluntary whether it need to be corroborated. In the case of State v. Minhun alias Gul Hassan PLD 1964 SC 813, while dilating on the issue, it is observed that question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and 'not to its admissibility in law. As observed by Munir, C.J. in his commentary on the Law of Evidence at page 168 (Vol.I), that "it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that it called upon to act a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot be but true".

17. The proposition that a retracted extra-judicial confession cannot corroborate a retracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilizing of one piece of tainted evidence to corroborate another piece of tainted evidence.

18. It is well-settled that Courts must look for strict compliance of section 164(3), Cr.P.C. before proceeding to determine the voluntary character of a confessional statement. While at present, dissatisfaction with the procedure adopted by the Judicial Magistrate in recording confession learned counsel for the appellant has contended that it has been recorded in utter disregard of the mandatory requirement of law, which is relied upon by the trial Court without corroboration or material particulars as no time for reflection was awarded by the Judicial Magistrate.

19. The appellant was arrested on January 24, 2000, and his confessional statement was recorded; on February 3, 2000, after seven days of the arrest and cannot be relied upon as the confession recorded after three days of the arrest of the accused was discarded in the case of Abid Hussain Shah v. State 1983 PCr.LJ 882.

20. One of the important factor, which cannot be lost sight of is that confessional statement of the appellant is not available. The original record as appears from his statement was produced but the original confessional statement of the appellant is not available nor any explanation has been furnished from any quarter as to how the original record has been substituted with true copies, which has not been exhibited, nor bore the signature of the trial Judge, as is warranted under Qanun-e-Shahadat Order, 1984. Despite of the query in this regard, no satisfactory explanation has been furnished by learned counsel appearing from both sides.

21. Conversely, learned counsel for the State contended that at the time of recording of evidence of the Judicial Magistrate, original documents were produced, exhibited and initialed by the trial Court Judge and replaced from photostat copies which .means that after the judgment was pronounced the documents were removed from the record and proceedings. It is a serious matter, which requires investigation and inquiry because admittedly at the time of recording of evidence of the Judicial Magistrate confessional statements were summoned by the trial Court from Nazarat. At this stage, in the absence of original confessional statements, a serious lapse occurred which requires strict action into the matter.

22. Learned counsel for the appellant has contended that self- exculpatory statement was recorded on oath, which is not in accordance with law. In this context, reliance is placed on the case of Tariq Pervaiz v. State 1992 PCr.LJ

995. The dictum laid down is that administration of an oath to an accused is an express statutory illegality by reason of section 5 of the Oaths Act and the same must make the confession inadmissible having been obtained in' an illegal manner and its rejection must follow as a matter of course. In this context reliance is also made to the Cases of Muhammad Bakhsh v. State PLD 1956 SC (Pakistan) .420 and Gulab Khan and another v. State PLD 1971 Kara 299.

23. Conversely, learned counsel for the prosecution has contended that mere fact that" the confessional statement of the appellant was recorded on oath, would not be sufficient to reject it, as it may only be a procedural mistake in the form of an irregularity in exercise of jurisdiction, which would not affect the evidentiary value of the confession. The rule is that notwithstanding procedural defect in recording the retracted judicial or extra judicial confession, if found to be true voluntary and confidence-inspiring, can safely be made basis of conviction. In this context, reliance has been .placed on the case of Shahzado v. State PLD 2005 SC 477, on the basis of the decision of Shariat Appellate Bench of the Honourable Supreme Court in Criminal Appeal No.53(S) of 2001 and Muhammad Anwar Choudhry v. Muhammad Majeed PLD 1964 SC 813.

24. Adverting to the recovery of crime weapon, learned counsel for the appellant has contended that nothing incriminating was secured from the possession of the appellant as the recovery of the dagger was at the instance of co-accused Anwar Khan, recovered on January 26, 2000 from the store of House No.252. The blade of the dagger was clean and it was not found to bear the stains of blood whereas handle of the dagger was secured from the place of incident, therefore, recovery cannot be used against the appellant.

25. It is further contended by the learned counsel for the appellant that motive is double-edged weapon, which can be used in both ways, the prosecution have failed to establish the motive. Conversely, the identification parade was also not held in accordance with the law, by the Judicial Magistrate through P.Ws. Raees Ahmed and Mst. Sultana Naseem, maternal-grandfather and mother of the deceased Sarfraz Ahmed. It is further contended that the trial Court in the statement of the appellant, recorded under section 342, Cr.P.C. did not put the material questions, which pertain to the last seen evidence though P.Ws. Races Ahmed and Mst. Sultana Naseem, thereby the mandatory requirement of law has not been complied with.

26. Learned counsel for the State has contended that compliance of the provisions of section 342, Cr.P.C. in accordance with its terms, was essential and departure therefrom was not permissible, if some prejudice was shown to have been caused to accused. The prosecution have relied upon the last-seen evidence but record is silent to the effect that such question was not put to the appellant in course of his statement recorded under section 342, Cr.P.C. and this was the only corroborative evidence to the retracted exculpatory confession. The object of examination of the appellant under section 342, Cr.P.C. was to explain the circumstance, which could tend to incriminate him or adversely affect, thus, examination of accused was not a here formality, as is held in the case of Muhammad Ayub v. State 2000 PCr.LJ 527.

27. Learned counsel for the State has also relied on the case of Fazal Elahi v. State 2006 PCr.LJ 390, dilating on the issue regarding the examination of the accused under section 342, Cr.P.C. It has been observed that no consequential error shall be held unless the case of the accused is prejudiced on account of inadequate examination under section 342, Cr.P.C. which cannot be made a ground for setting aside the conviction unless prejudice,. causing miscarriage of justice to him is shown to have occurred particularly in a case where he was represented by a counsel. This view is also fortified by the apex Court of judicial hierarchy in S.A.K. Rehmani v. State 2005 SCMR 364.

28. There is yet another aspect of the case requires consideration. The appellant and co-accused Anwar Khan, per prosecution, have committed robbery in the house of Mst. Sultana Naseem. The investigation agency did not recover any incriminating article from the possession of either of the accused. Last seen evidence consisting of the testimony of P.Ws. Races Ahmed and Mst. Sultana Naseem. The material questions were not put to the appellant in his statement, recorded under section 342, Cr.P.C. The confessional statement, the basis of the sentence awarded to the appellant, does not ring true because the appellant had implicated the co-accused Anwar Khan in the commission of crime whereas co-accused had implicated the appellant for committing murder of deceased Sarfraz Ahmad. In the absence of direct evidence, in a case of circumstantial evidence chain was required to be connected with another chain. The prosecution have miserably failed to prove the charge against the appellant on the basis of evidence, free from all inferences and doubts. The motive is shrouded in mystery and cannot be used as a corroborative piece of exculpatory confession. I am convinced that prosecution have failed to prove the charge beyond all shadow of doubts. It is well-settled principle of law that if only one circumstance creates doubt, that is enough to extend benefit of doubt in favour of the accused.

29. Taking into consideration all attending circumstances of the case, I am inclined to extend benefit of doubt in favour of the appellant. Accordingly, the appeal is allowed and the appellant is acquitted from the charges. The impugned judgment and sentence awarded to the appellant are hereby set aside. The appellant is in custody. He may be released forthwith if not required in any other custody matter.

30. A copy of this judgment be sent to Member Inspection Team, High Court of Sindh, Karachi, to hold a thorough enquiry into the matter about the substitution of original documents, i.e. confessional statement of appellant and co-accused Anwar Khan and report compliance to this Court within a period of one month so that action can be taken against those persons who arc involved in the said misdeed, in accordance with law. Criminal Appeal No.143 of 4005 stands disposed of. H.B.T./M-177/K Appeal allowed.