2015 PLP 519 (YLR)

SALAHUDDIN PANHWAR, J.

Through this judgment we intend to dispose of reference under section 374, Cr.P.C.; forwarded by trial court and two appeal (s), one having been filed by convict/appellant Muhammad Bux challenging his conviction awarded by learned Additional Sessions Judge, Karachi South, while other appeal has been filed by complainant Dr. Mirza Ikhtiar Baig against same judgment to the extent of acquittal of accused/respondent Farooque Mengal.

2. The learned 3rd Additional Sessions Judge, Karachi South, while passing impugned judgment dated 22nd June, 2009 in Sessions Case No. 710 of 2004 (Re-Farooque Mengal and others), has awarded death sentence to the appellant/convict Muhammad Bux under section 302(b), P.P.C.; with compensation Rs.100,000 (One hundred thousand rupees only), payable to the legal-heirs of deceased, in-default, to undergo simple imprisonment of six months. He was also convicted under section 392, P.P.C. and sentenced to undergo R.I. for a period of seven years with fine of Rs.10, 000 and in default thereof to undergo simple imprisonment of six months. Both sentences were ordered to run concurrently. By same judgment the co-accused Farooque Mengal was acquitted.

3. Succinctly, relevant facts of the prosecution case are that on 14-10-2004 at 1800 hours complainant Dr. Mirza Ikhtiar Baig lodged the F.I.R. with Police Station Clifton; contending therein that his sister Afreen wife of Farooq Mengal along with her child and husband was living at bungalow No.23/1, street No.35 Phase Extension-5. At about 12:00 O' clock Noman Ahmed son of Rashid Ahmed intimated him that "as per routine he was coming towards that bungalow, meanwhile he received a call by Farooque Mengal from Lahore that no one is picking up his telephone call so he (Noman) must go and see. When he reached at the bungalow, its door was closed and no one even responded on the pressing of bell, thus he along with an employee namely Imdad entered inside the house by breaking the kitchen door and searched all rooms but could not find anything. Thereafter, at about 1.30 noon, they entered into the bath room of the upper floor room and saw Afreen was lying in the bath tub and the tub was filled with water; with the help of accompanying person he took her out, she was found dead. There were marks on her wrists and ankles; thereafter he immediately brought her to Mid East Hospital. Further he informed that driver Muhammad Bux and his wife Zahida working in the said house were not available and the complainant reached at hospital". On arrival to the hospital he (complainant) took information about incident, circumstance and saw the dead body of his sister and hurriedly proceeded at the bungalow, observed the situation and found that some one in water tub throttled his sister to death. He had a strong suspicion that her house servant Muhammad Bux with assistance of his wife Zahida murdered her for some unknown reasons.

4. During the course of the investigation, Investigating Officer arrested the appellant/accused Muhammad Bux and his wife Zahida from Sukho-ki-Mandi, District Hafizabad; recovered robbed cash amount, gold locket, chain and rings Nokia mobile, and wrist watch etc. belonging to deceased. He also recovered the incriminating piece of rope and Ativan tablets. He also got arrested accused Farooque Mengal on 21-10-2004; confessional statement of accused Muhammad Bux was got recorded before the Magistrate. On completion of investigation the appellant Muhammad Bux, accused Zahida and Farooque Mengal were sent up to face their trial.

5. On compliance of provision of section 265-C, Cr.P.C., the charge against all three accused persons was framed to which they pleaded not guilty and claimed their trial vide their pleas, recorded separately.

6. To substantiate its case, prosecution examined following witnesses:- P.W.1: Anwar-ul-Hassan Siddiqui, the Civil Judge and JM Bhiria as Exh.14 who produced application moved by I.O dated 21-10-2004 before the District and Sessions Judge Karachi (South) as Exh.14-A and order thereon as Exh.14-B; confessional statement of accused Muhammad Bux as Exh.14-C, copy of Jail warrant as Exh.14-D, envelop and letter dated 26-11-2004 at Exh.14-E and 14-F respectively; P.W.2: Dr. Mirza Ikhtiar Baig as Exh.15 who produced memo of dead body as Exh.16/1, inquest report as Exh.16/2, statement under section 154, Cr.P.C. as Exh.16/3, receipt of dead body as Exh.16/4, F.I.R. as Exh.16/5; P.W.3: Noman Ahmed as Exh.17. P.W.4: Rano Khan Solangi as Exh.19. He produced memo of inspection of place of occurrence and recovery dated 14-10-2004 as Exh.19-A, memo of arrest of accused Muhammad Bux and Mst. Zahida and recovery dated 16-10-2004 as Exh. 19-B, memo of pointation of place of occur-rence and recovery/seizure dated 19-10-2004 as Exh.19-C, memo of recovery of crime article dated 19-10-2004 as Exh.19-D, memo of identification of deceased's belongings dated 19-10-2004 as Exh.19-E. He also produced empty bottle of imperial Wine and Glass (Articles A & B), seized under memo Exh.19-A. He produced mobile phone, purse containing Rs.11,450 and watch as Articles C & F, cash of Rs.150,000 as Article-G, a ladies watch, two golden rings, , one pair of Balies (ear rings) one chain having locket marked with 'Allah' as Articles H/1 to H/6, seized under memo of recovery and arrest (Exh.19-B). He also produced incriminating articles i.e. three pieces of ropes as Article I/1 to I/3, Ativan tablets as Article I/3, ATM card No. 402583003-10070287 as Article J/1, Cheque book in the name of Mumtaz bearing account No.0031-0100956 of Bank Al-Falah as Article 'K' a cheque dated 14-10-2004 amounting to Rs.200,000 bearing signature of one Mumtaz as Article 'L', seized under memo of pointation (Exh.19-C and 19-D). He also produced two suit cases (Articles M and N) one trouser, shirt, under garments, night suit, two pairs of sandals as Articles O/1 to O/7 under memo of identification of articles (Exh.19-E). P.W.5: Muhammad Arif as Exh.21. P.W.6: Farhia, the bank officer of Al-Falah Bank as Exh.22. She produced the photocopy of NIC of accused Muhammad Bux as Exh.22-A, Cheque No.CD-0366780 dated 14-10-2004 of amounting to Rs.280,000 as Exh.22-A, Account opening form dated 23-9-2003 as Exh.22-C, Specimen signature card as Exh. 22-D and 22-E, statement of account dated 1-1-2004 to 30-10-2004 as Exh.22-F, application for ATM card as Exh.22-G a photo copy of NIC of deceased as Exh.22-H. P.W.7: Dr. Kousar Parveen as Exh.23. She produced Post mortem report No.592/04 of deceased as Exh.23-A, death certificate as Exh.23-B, the letter dated 14-10-2004 addressed to MLO JPMC as Exh.23-C, supplementary Post Mortem report and final cause of death dated 4-3-2005 as Exh.23-D, request letter to the Chemical Examiner dated 3-2-2005 for 5 of alcohol in article No.4 in the blood sample of Post Mortem Report No. 592/04 dated 14-10-2004 as Exh.23-E and Medico legal report of accused Zahida dated 19-10-2004 as Exh.23-F P.W.9 (mistakenly P.W.8 was numbered as P.W.9) SIP Muhammad Afzal Baig as Exh.27. He produced the memo of arrest of accused Farooque Mengal dated 21-10-2004 as Exh.27-A. P.W.10: HC Zafar Iqbal as Exh.29. P.W.11: Inspector Bashir Muhammad Khan as Exh.30. He produced a letter for inspection place of occurrence as Exh.30/1, covering letter dated 25-10-2004 along with the finger prints of accused Muhammad Bux and Mst. Zahida as Exh.30/2, comparative chart as Exh.30/3 and opinion report as Exh.30/4; P.W.12: Qudisa Begum as Exh.32. P.W.13: Mst. Shireen Saleem as Exh.34. P.W.14: Abdul Rashid as Exh.35. P.W.15: ASI Muhammad Sabir as Exh.36. P.W.16: SIO Muhammad Fayyaz as Exh.37. He produced photocopy of application dated 24-12-2004, addressed to the court of Vth ADJ (south), letter to obtain opinion Exh.37/2 and opinion of PDSP as Exh.37/3 and order of DIG for further investigation as Exh.37/4 and letter issued by TIO as Exh.37/5; P.W.17: SIP Mehboob Ellahi as Exh.39.

7. The statement of accused person (s) namely Muhammad Bux (appellant/convict) and Farooque Mengal (respondent in acquittal appeal) were recorded under section 342, Cr.P.C respectively, wherein they professed their innocence and claimed prosecution case to be false. However, none of the accused persons came forward to examine himself on Oath or to lead evidence in his defence, as provided under section 340(2), Cr.P.C.

8. Learned counsel for the appellant/ convict has, inter alia, argued that incident is unseen; there is no direct evidence against the appellant/convict; there are material contradictions which make the prosecution case doubtful and while arguing so he referred as: (i) P.W.3 Noman stated that door of bath room was locked and entry was made after breaking it but no such thing was disclosed by I.O.; (ii) Deceased was lying inside the tub; (iii) Per medical evidence she was raped but clothes were not torn; (ii) As per P.W.5 Sabir he came in hospital but examination of dead body reflects that she was dry, inquest report does not disclose. Thus the prosecution brought conflicting statement regarding time of arrival of dead body in hospital and even prosecution produced no roznamcha entry. He also pleaded that the confessional statement is not in conformity with post mortem report regarding manner of offence and its timing because as per confessional statement deceased was given wine and Ativan tablet but no such thing was found in her post mortem, therefore, such confessional statement cannot be considered to be volunteer one. He next contended that after confessional statement the convict Muhammad Bux was handed over to same police which is also sufficient to bring clouds over such confessional statement. He lastly argued that convict was not put a question regarding his presence at place of incident hence learned trial court judge was not legally justified to draw an inference against the appellant/convict Muhammad Bux from any such evidence. In support of his contentions he placed reliance on the case-laws reported as 1995 SCMR 127 (Mehmood Ahmed and others v. The State and another), 2011 MLD 811 (Naveed Abbas v. The State), 1999 SCMR 1220 (Muhammad Khan v. The State), 2001 SCMR 624 (Muhammad Iqbal v. The State), 1993 SCMR 1602 (Muhammad Ilyas v. The State), 2011 SCMR 1127 (Muhammad Hussain v. The State), 2010 PCr.LJ 157 (Wahab Ali v. The State), 2005 SCMR 277 (Wazir Muhammad v. The State), 2011 SCMR 629 (Sabir Ali v. The State), 2012 PCr.LJ 1438 (Muhammad Ayoob v. The State), 2008 SCMR 329 (Muhammad Shafi v. Muhammad Raza), 2007 SCMR 670 (Muhammad Pervez and others v. The State), 2008 SCMR 580, 2008 SCMR 1103 (Altaf Hussain v. Fakhar Hussain), PLD 2013 Sindh 223 and 2012 SCMR 419 (Muhammad Ashraf v. the State).

9. On the other hand, learned counsel for the complainant argued that confession is volunteer because the convict did not examine himself on Oath nor specifically denied it; recovery of gold ornaments, cash, mobile phone, leading by convict to place of occurrence, availability of finger print marks on glass, couple with encashment of cheque by convict are sufficient to make an unbroken chain of corroborative pieces of evidence against convict, therefore, the learned trial court judge has rightly convicted the appellant/ convict. He placed reliance on the case-laws, reported as Mehmood Ahmad v. State (1995 SCMR 127) and 1995 SCMR 1220.

10. Learned A.G.P. adopted the arguments, as advanced by learned counsel for the complainant while adding the reference to Article 43 of Qanun-e-Shahadat.

11. In acquittal appeal, the learned counsel for the appellant/complainant, inter alia, while referring to Article 43 of Qanun-e-Shahadat Order, 1984, argued that circumstantial evidence can, be used against abettor; Per P.W.3 Noman respondent/ accused Farooque Mengal phoned him while inquiring about Afreen Baig, such attitude itself was quite natural; further he (Farooque Mengal) insisted that deceased Afreen Baig shall go back to her home; prosecution also brought material on record which proved hatching of conspiracy by respondent/accused Farooque Mengal which prima facie proved that he (Farooque Mengal) was guilty of conspiracy hence was liable to be awarded conviction as such. He placed reliance on the case-law, reported as PLD 2003 SC 704 (Sh. Muhammad Amjad v. The State), 2003 PCr.LJ 1264 (Sain Gul Wali Khan v. The State) and 2011 PCr.LJ 1062 (Muhammad Bilal v. The State).

12. Learned counsel for the accused/respondent Farooque Mengal has argued that presumption of innocence has been stamped by trial court; no name of respondent was mentioned in F.I.R.; evidence of alleged conspiracy is un-natural and introduced at belated stage of investigation; confession of co-accused cannot be used against the respondent/ accused when the same stood retracted. He concluded that acquittal of the accused/ respondent Farooque Mengal is not open to any exception. He has relied upon the case-laws PLD 2009 SC 53 (Muhammad Tasaweer v. Hafiz Zulkarnain), 2012 SCMR 1768 (State of Rajasthan v. Shera Ram alias Vishnu Dutta), 2010 SCMR 1972, 2003 PCr.LJ 107 (Akbar Khan v. The State), 2008 SCMR 1221 (Ghulam Qadir v. The State), 1993 SCMR 1822 (State v. Muhammad Naseer), 2007 SCMR 670 (Muhammad Pervez v. The State) and 2003 SCMR 1419 (Khalid Javed v. The State).

13. Heard the counsel and perused the record as well as case-law cited at Bar.

14. Before discussing the matter in hand, it would be significant to mention here that at no material times it has been claimed either by the convict Muhammad Bux or respondent/accused Farooque Mengal that death of the deceased Afreen Baig was natural one thus the claim of the prosecution that it was a murder (un-natural death) is not disputed which also finds support from medical evidence. Further, what remains to be examined is that whether the prosecution has brought sufficient material on record against convict Muhammad Bux and accused/respondent Farooque Mengal or that learned trial court judge committed any illegality in appreciating such material.

15. First we would like to examine the impugned judgment regarding the conviction awarded to appellant/convict Muhammad Bux.

16. Scanning of the record makes it clear that incident was an unseen incident as such the prosecution case rests upon the circumstantial evidence. The record reveals that it was the specific claim of the prosecution that the appellant/convict Muhammad Bux was the servant with deceased Afreen and his (Muhammad Bux) wife namely Mst. Zahida (absconding accused)was maid servant and both used to reside with Mst. Afreen Baig. Therefore, let's see what the convict/Muhammad Bux stated in this respect in his statement, recorded under section 342, Cr.P.C. The convict Muhammad Bux responded to question No.2 as under:-- Q.No.2: That while you working as driver your wife was working as the house maid Aya. You are Baloch by caste and so Farooque Mengal. What have you to say? Ans: Yes sir. I was driver of Mst. Afreen Baig and my wife Mst. Zahida deputed to look after a special child namely Fahaum The above position makes it an undisputed fact that not only the prosecution but also as per convict Muhammad Bux, he was driver/servant and his wife (absconding accused Mst. Zahida) was deputed for care of a special child, therefore, this leads to an undisputed fact that both appellant/convict Muhammad Bux and his wife Mst. Zahida should have been present in the house/place of incident at the time of incident, particularly in absence of male member of the family i.e. accused/respondent Farooque Mengal. The position, being so, also becomes clear from reply of convict Muhammad Bux, which he gave with reference to question No.4, put to him during his statement under section 342, Cr.P.C. Same is reproduced hereunder:-- "It is correct to this fact only that on 12-10-2004 I along with Mst. Afreen dropped Farooque at Karachi Airport for departure to Lahore ...

17. We can safely add here that since circumstantial evidence is based upon the facts relating to occasion, cause or effect, motive, preparation and previous or subsequent conduct which always lead to certain logical consequences/presumption and legal presumption whereof could be inferred under the Articles 21 and 129 of the Qanun-e-Shahadat Order, 1984. If, once the prosecution succeeds in establishing a circumstance, the court will be legally justified to presume existence of consequential logical effect against accused unless the same is disproved. In other words according to the common course of human affairs, the degree of probability that the occurrence of the facts proved is so high that the contrary cannot reasonably be supposed.

18. In such an eventuality the convict Muhammad Bux was under an obligation to have explained his absence but the perusal of the statement of the convict Muhammad Bux and cross-examination, conducted by defence, makes it clear that convict Muhammad Bux never denied this fact nor came with any plea that he and his wife were not present in the bungalow (place of incident). Thus all the above circumstances make a complete picture to the extent that:-- (i) Only four persons (i.e. deceased Afreen Baig, her special child, convict Muhammad Bux and his wife Mst. Zahida) were present in the bungalow/place of incident at time of occurrence; (ii) Only Muhammad Bux and his wife Mst. Zahida, being servants and present in the house, could logically and presumably have excess to room of the deceased Mst. Afreen Baig; (iii) Only Muhammad Bux and his wife Mst. Zahida could have come out of the room having pushed the button of lock;

19. The post mortem report of the deceased suggests injuries on person of the deceased as follows:-- (1) Contioug (contusion) Bluish colour 2 c.m. In which around right wrist; (2) Constusion (contusion) bluish colour 2 c.m in which around left wrist; (3) Contusion 2 c.m in which Bluish colour in circling the right ankle; (4) Contusion Bluish colour 2 c.m in which around left ankle; (5) Laceration 1.5 c.m into one c.m on inner serface of lower lip along with bruising of gum of lower jao (jaw); (6) Laceration 1 c.m x 1 c.m on inner surface on left angle of mouth. The above injuries on person of the deceased have never remained disputed nor has the other side come with the plea of those being self-suffered. Nature and placing of the injuries make it clear that victim Afreen was murdered; hence, this circumstance leads to a legal presumption against the convict Muhammad Bux and his wife Mst. Zahida for having done so.

20. Further, the discussed circumstances of the instant case lead to a logical consequence that the convict Muhammad Bux and his wife Mst. Zahida who:-- (i) were the only persons except deceased present at time of incident; (ii) were having excess to bed-room of deceased; (iii) had tied deceased so also subsequent event(s) leading to death of deceased; (iv) had left the place of incident/ house though it should have been they to have noticed incident and reported it to police, complainant party or anybody else ; Particularly, for the reasons that they neither attempted to disprove and even least attempted to deny that: (i) they (convict Muhammad Bux and his wife) were present at place of incident on fateful day; (ii) they never claimed that somebody else had come and remained there; (iii) they never denied un-natural death of deceased; (iv) they never challenged the injuries on person of the deceased to have happened;

21. Though, the image appears to be complete, however, since we are conscious of the legal position that before relying on circumstantial evidence to hold a conviction great care and caution is required to be taken , therefore, we would like to examine meticulously other pieces of evidence so as to see whether the above picture finds any further corroboration or otherwise. Here we would like to make another aspect clear which requires clarification and a little explanation. In the instant case, as per evidence of the Investigating Officer and Medical Officer, it is surfaced that deceased was also found to have been subjected to rape. Here re-production of relevant portion of evidence of I.O. and that of conclusion of the medical officer will make things further clear:- P.W. Mehboob Ellahi (Exh.39): "It is correct that after post mortem report received it was transpired that Zina was committed with deceased Afreen Baig. On this point. I have made no investigation or on this point during whole proceeding not the complainant party pressed for doing so nor I have applied any proper section of law"( p 290) P.W. Dr. Kousar Parveen Exh.23: "On the basis of findings found during post mortem examination and chemical examination findings. I am of opinion that death has occurred due to cardio respiratory failure. She has been subjected for the act of smothering leading to cardio respiratory failure. She has been subjected for the act of rape" The above evidence couple with production of Post Mortem report, it is also surfaced that the victim was also subjected to rape however; the prosecution did not pursue with the same from beginning till conclusion of the case. We are mindful of the legal position that prosecution is not legally justified to stick with some part of the incident or to part with other because it is the demand of the safe administration of justice and fair trial that each should come with truth, least apparent one. However, since it is an unseen incident therefore, prosecution was never expected to have brought direct evidence in respect of the manner of offence but the surrounding circumstance (s) only. In case(s) revolving around circumstantial evidence the prosecution cannot be expected to give complete picture of manner of incident because guilt is based on surrounding circumstances leading to an undeniable theory of guilt. Since the version of the Dr. Kousar Parveen regarding rape upon deceased was never challenged by defence therefore, the learned trial court judge could have legally presumed against convict Muhammad Bux, but since accused were not inducted, in such section thus learned trial court judge has rightly not awarded any conviction on this count hence no Pre-Judice could be claimed or insisted. We would also attend to defence plea that per post mortem report there were found no symptoms of use of alcohol and Ativan tablets hence prosecution story was doubtful. For this, it would suffice to say that in matter (s) of unseen incident the theory of manner of incident is presumed from surrounding circumstances. As already said that in case(s) circling round the circumstantial evidence the prosecution is not strictly expected to prove the manner of incident but to prove surrounding circumstances which build an un-broken chain of links, excluding all probabilities, that it can be none other but the accused who committed the offence. Thus failure of any part of such theory shall cause no effect if, otherwise, circumstantial evidence is proved to be complete.

22. The prosecution brought the recovery from possession of the convict Muhammad Bux and his wife Mst. Zahida at the time of their arrest and on pointation of convict Muhammad Bux with a clear stand that these were the belongings of the deceased Afreen Baig which the convict Muhammad Bux and his wife Mst. Zahida took away after committing the murder. Here we would like to refer the relevant portions of P.W. (mashir) Rano Khan Solangi which are:-- "The accused Muhammad Bux and Zahida were recovered from the house. Police recovered from the possession of accused Muhammad Bux Rs.11,450 from his pocket, one wrist watch, one mobile phone from the personal search of accused, Mst. Zahida, one Ring of deceased Afreen Baig and one locket with mark Allah, Rings of golden and silver colours" "I produce the Mobile Phone and purse containing Rs.11,450, one watch which I produce as Article C.D. AND F respectively" "I produce the articles recovered from the accused Mst. Zahida which is a ladies watch, two golden rings, one pair of ballies and one Chain having locket, the name marked Allah as Articles H/1 to H/6. The articles recovered from the possession of accused Mst. Zahida belonging to deceased Afreen Baig" (Underlining and bold letters have been supplied for emphasis) The above evidence makes it clear that these articles were not only claimed to have been recovered from possession of the convict Muhammad Bux and his wife Mst. Zahida but also with the claim that these belonged to deceased Afreen Baig. Now we would like to examine what the defence stated in cross-examination of this witness relating to such stand, which is as follows:-- Cross by counsel for accused Farooque Mengal: "It is incorrect to suggest that Article mentioned in Exh.19/E were not recovered from the possession of accused at Suka ki-Chowki at the time of their arrest and these articles were foisted upon the accused. It is correct that it is mentioned in Exh.19/E that the articles mentioned therein were identified by complainant Akhtiar Baig and I and P.W Ishtiaque Baig the brother of deceased were the mashir of Exh.19/E. It is incorrect to suggest that neither the articles were recovered from the accused persons nor complainant identified the articles". Cross by counsel for accused Muhammad Bux and Zahida: "The articles recovered from the custody of the accused persons at Soka ki Mandi were identified by her brother here at Karachi on 19-10-2004" Such specific claim of the prosecution has never been denied specifically by the convict Muhammad Bux and Mst. Zahida from whom such recovery was claimed, therefore, legal presumption can well be drawn within principle of law that what is not denied is to be taken as correct. However, what the defence never denied even by a single suggestion is that these articles did not belong to the deceased Afreen Baig. This also appears to be quite illogical that the complainant party went on to implicate an innocent (Muhammad Bux) by delivering the valuable articles of deceased at the cost of real culprits particularly when the convict Muhammad Bux and his wife have, undisputedly, been the old servants of the family of the complainant party and no serious enmity or consideration for such false implication has been pleaded by convict Muhammad Bux. We are conscious that in our society exaggeration (s) are made by widening the net yet the substitution of culprits by blood-relation is not believable. Reference can be made to the case of Khizar Hayat v. The State reported in 2011 SCMR

429. The convict Muhammad Bux during his statement, recorded under section 342 Cr.P.C., came with a specific plea while responding to question No.16 that:-- "It is incorrect .. to Punjab. I was arrested from Karachi on 14-10-2004 along with my wife from the house of maternal uncle of my wife ." However, he did not examine such maternal uncle or any of the people of the area to give a little shoulder to such stand when he had opportunity within meaning of 265-F (4) to (7) of the Code.

23. We are conscious of the position that Investigating Officer did not observe the procedure strictly while making arrest of convict Muhammad Bux and his wife from Soka-ki-Mandi. For this it would suffice to say that any irregularity on part of Investigating Officer should not result in prejudicing the complainant's case, especially in heinous cases. This is so for the simple reason that it is not the complainant but the Investigating Officer who is supposed to be aware with requirement of law and procedure therefore; if he fails to follow then it should not result in penalizing the victim party. Thus we are of the considered view that the prosecution established the recovery of the articles of the deceased Afreen Baig from possession of the convict Muhammad Bux and his wife Mst. Zabida which, provides a further link towards connection of the convict Muhammad Bux towards commission of the offence.

24. There is also recovery at the pointation of the convict Muhammad Bux. For which the prosecution claimed through Investigating Officer P.W.17 Mahboob Elahi and P.W.Rano Khan Solangi (Exh.19) that convict Muhammad Bux volunteered to produce the rope, used in commission of the offence and also led police to pointed place. Such discovery can well be proved within meaning of the Article 40 of the Qanun-e-Shahadat Order for which the prosecution is required to establish two ingredients i.e. (i) there must be statement/information by accused and (ii) which should lead to discovery/recovery. Reference, if any can be made to the case of Mst. Askar Jan and others v. Muhammad Daud reported in 2010 SCMR 1604. For this prosecution claims the custody of the convict Muhammad Bux from 16-10-2004 at 1545 hours with further claim that on 19-10-2004 the convict Muhammad Bux volunteered to produce crime weapon which the convict Muhammad Bux did produce by leading the police party. The recovery of rope on pointation of the convict Muhammad Bux was discovery of the material at his own pointation/information and since there were visible marks of roping the deceased therefore, it was rightly believed by learned trial court judge as one of corroborative link.

25. There is also evidence in shape of finger-print of the convict Muhammad Bux on the glass, recovered from the place of incident as P.W. Bashir Muhammad Khan stated that:-- "Later on, I compared the finger print of accused Muhammad Bux with the impression on the glass I produce the comparative chart as Exh.30/3 and the finger prints of accused Muhammad Bux tally with the finger prints on the glass." This also prima facie proves a corroborative piece of evidence against the presence of the convict Muhammad Bux at place of incident. The convict Muhammad Bux never claimed this to be a fabricated evidence, however, he came with suggestion while cross-examining this witness that "It is correct that normally in common house the dependant living there in the house touch the articles lying in the room." This otherwise goes to confirm that convict Muhammad Bux confirms his presence at the place of incident at the relevant time.

26. Now we would come to another piece of evidence which is the retracted confessional statement of the convict Muhammad Bux. It would be germane to mention here that mere retraction from confession by an accused cannot by itself be made a ground for its rejection, the only requirement in this respect is to ensure that it was voluntary, true and fits in the prosecution story. Hence, the duty falls upon the prosecution to prove that when it (confession) was made it was voluntary, true and conscious of its maker. In the instant case the convict Muhammad Bux has retracted from his confession therefore, let's examine legality and applicability thereof. The defence has claimed that it was managed because it was not recorded by the Magistrate concerned. For this it would be relevant to refer to Exh.14/A wherein the Investigating Officer requested to learned Sessions Judge, Karachi sought for nominating Judicial Magistrate to record confessional statement on the ground that "As the case pertains to Qisas and Diyat/Hudood Ordinance" and since as per evidence of the Investigating Officer "It is correct that the accused Muhammad Bux was not produced before Illaqa Magistrate Rajesh Kumar for recording statement under section 164, Cr.P.C., therefore, he had approached to Sessions Judge for appointing another Magistrate for such purpose. This shows that considering the offence to be one of Qisas and Diyat/Hudood Ordinance he did not produce the accused before concerned Magistrate (Rasjesh Kumar). Let it be as it may, it is not a disputed position that confession of the convict Muhammad Bux was recorded by P.W. Mr. Anwarul Hassan Siddiqui whose status as Civil Judge and J.M. is not disputed and since under section 164 of the Code the words "Any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf have been used therefore, this irregularity cannot be taken as a sole ground to disbelieve the confession.

27. Further, the confession statement of the convict Muhammad Bux appears to be in line with circumstantial evidence coupled with recovery. The confession statement of the convict Muhammad Bux so also evidence of the P.W. Anwarul Hassan Siddiqui would show that the convict did not complain about any maltreatment, pressure or coercion at the time of his confessional statement, the convict Muhammad Bux undisputedly committed to judicial custody on the date of his confession yet he did not make any application/complaint on his reaching to judicial custody and even not complained about such fact when he was being produced before court of law. However, as per answer of the convict Muhammad Bux to question No.5 (342 Cr.P.C. statement) stated that on 6-12-2004 he made an application for retracting from confession. Since every caution should be taken while examining the voluntariness of a confession therefore, at this juncture it would be pertinent to examine the document Exh.23/D, produced by lady doctor, which reveals that on 19-10-2004, accused Zahida wife of accused Muhammad Bux was medically examined and such certificate was issued and after examination detail is surfaced as under: "General condition-conscious (1) Contusion 6cm x 5cm on post surface of right gluteal region - bluish green in colour. Moments are normal. (2) Abrasion 2cm x 1cm, scab formation on posterin part of right knee joint. Moments are normal. (3) C/o pain in head 0/6. No mark of injury visible. (4) C/o Backache and lower abdominal pain. H/O 10 days overdue O/E P/V bleeding seen. OS closed. (1) 337 L (ii) OTHER HURTS (2) JURH GHAYR JAIF DAMIYA." (3) INJURY NO.3 NULL AND VOID. (4) INJURY NO.4 RESERVED FOR ULTRA-SOUND REPORT." Thus it is well established that accused Zahida wife of accused Muhammad Bux was in injured condition during custody and on 3rd day i.e. 21-10-2004, the confessional statement of appellant was recorded. Although, such plea of pressure and maltreatment, and forcible confessional statement is not agitated by appellant side at this stage nor at the time of recording statement under section 342, Cr.P.C. statement but on the contrary appellant has taken different stance that such confessional statement is managed by the police with the help of Magistrate. He even, claimed that he has not signed upon such confessional statement. It would be relevant to reproduce the question and answer No(s).5 and 19 of appellant in 342, Cr.P.C. statement, same are as under:-- "Q.No.5 That on 21-10-2004 you made a judicial confession before Judicial Magistrate P.W.1 Ansarul Hassan Siddiqui wherein you voluntarily confessed killing of Afreen Baig with the help of your wife Mst. Zahida alias Googi. What you have to say? Ans. The above said Judicial confession dated 21-10-2004 was fabricated one. I never recorded above said statement under section 164, Cr.P.C. I never stated that I killed Afreen with help of my wife Mst. Zahida. My application for restrecture of statement from so-called confessional statement along with my affidavit which is attested by Superintendent Central Prison Karachi and application for medical check up of my self dated 6-12-2004 is already on file of this case at Pages Nos.167, 169, 173 and 175 (original seen on file)." "Q.No.19: That you were arrested on 21-10-2004 while in police custody on your pointing bungalow No.23 St. No.10 Phase V DHA Karachi Farooq Mangal was arrested. What you have to say? It is false and fabricated allegation against me. I have no knowledge of the arrest of Farooq Mangal. I never accompanied to police of such arrest. Police badly torture me I lost my senses and when I was put in judicial prison of Central Prison I was under treatment of Jail Doctor and for about 25 days then above fact was brought in my knowledge that Farooq Mangal also arrested in the case and one so called confessional statement was prepared by police with assistance of complainant and Magistrate namely Anwarul Hassan Siddiqui." Further, in cross of Magistrate it is suggested that "it is not correct that when accused was produced in my chamber Mr. Raza Hashmi Advocate DSP Zahid H. Shah and complainant Ikhtiar Baig was sitting with me. It is not a fact that the draft of confession statement was produced by Mr. Raza Hashmi Advocate which I had copied in this confessional form." Though, appellant has not taken such stance in 342, Cr.P.C. statement regarding injuries caused to his wife accused Zahida and that confessional statement was result of such coercion but judicial propriety demands that under these circumstance such aspect i.e. injuries caused to the accused Zahida (wife of appellant) and his custody with police before and at time of such confessional statement, cannot be ignored hence it would not be safe to rely on such retracted confessional statement. However, exclusion of confessional statement does not cause any effect upon the chain of unbroken links of surrounding circumstances/ relevant facts which, otherwise, have proved the guilt of convict Muhammad Bux.

28. The defence has pointed out number of irregularities in investigation; contradiction regarding arrival of dead body at hospital; manner of arrival of witnesses at hospital, complainant at place of incident; timing difference of medical store and even attacked upon encashment of cheque by convict Muhammad Bux from Bank but these things have not been of any help for the defence to shatter following material facts and circumstances:- (i) the convict Muhammad Bux and his wife Mst. Zahida were the only persons available at place of incident; (ii) they had excess to room of the deceased; (iii) they were found missing from the house after incident though they should have been present under normal circumstances; (iv) there has been recovery of robbed/ theft articles of deceased from their possession; (v) death was un-natural one; (vi) deceased was tied as there were such marks on her person; (vii) rope was recovered on pointation of convict Muhammad Bux; These make an unbroken chain of circumstances which prima facie establish the guilt of the convict Muhammad Bux hence we are of the view that the learned trial court judge committed no illegality while holding the convict Muhammad Bux as guilty.

29. As regard the case of Naveed Abbass v. State (2011 MLD 811) relied by learned counsel for the convict Muhammad Bux it would suffice to say that circumstances of this case are entirely different from the case in hand because in that case accused were not named in F.I.R., there was extra judicial confession, however the ratio of this case is based on the dicta of honourable Supreme Court in case of Sarfraz Khan v. The State reported in 1996 SCMR 188, which supports the conviction against Muhammad Bux; obiter is as under:-- " .. it is well-settled that circumstantial evidence should be so inter-connected that it forms such continuous chain that its one end touches the dead body and other neck of the accused there by excluding all the hypothesis of his innocence..."

30. Now we would revert to the acquittal appeal filed against acquittal of the accused/respondent Farooque Mengal. However, before discussing the merits of the case we would like to refer the principle (s) for interference in judgment of acquittal by appellate court. For same we refer to the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta (2012 SCMR 1768) wherein it was held that: "

12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the Constitution of India and section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court." In case of Muhammad Tasaweer v. Hafiz Zulkarnain (PLD 2009 SC 53), it is held that:- "

11. Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others (2003 SCMR 477). "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading non-reading of evidence.... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible".

31. The scanning of material makes it quite clear that there is no direct evidence against the respondent Farooque Mengal except that of retracted confession of convict Muhammad Bux and belatedly introduced witnesses to extent of alleged words of conspiracy.

32. However, what is not disputed is that respondent Farooque Mengal had left Karachi before date of incident and even was not in Karachi when alleged incident took place. As regard legality of the retracted confession statement of convict/ co-accused Muhammad Bux against the respondent Farooque Mengal, it would suffice to say that such retracted confession statement will stand clear from the following case-laws:-- In the dictum of Nasreen Akhtar v. State reported in 2000 SCMR 1634, it is observed that:- "Mere fact that co-accused had retracted the extra judicial confession would not by itself lessen its evidentiary value when the retracted extra judicial confession has been fully corroborated in material particulars by recovery evidence of crime weapons, medical evidence and opinion of Handwriting Expert". In the case of Naseem Akhtar v. State reported 1999 SCMR 1744, it is observed as under:-- "The High Court has referred to a judgment of this Court in the case of Muhammad Yaqoob v. State (1992 SCMR 1983) which has been relied upon by learned counsel for the complainant. One of the principles reiterated in the said judgment is that any lapse on the administrative side on the part of a Magistrate recording a confession may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapse on his part has not, in any way, adversely affected the voluntariness or truthfulness of the confession. We do not find any significant or material lapse on the part of P.W.1 in recording the confessions of the two appellants. One or two minor omissions cannot be termed as lapses to affect the evidentiary value of the said confessions. Though confession of co-accused might not, by itself, be sufficient to corroborate the retracted confession of another accused, but in the presence of other evidence the confession of co-accused could be used as further corroboration" In the case of The State v. Asfandyyar Wali reported in 1982 SCMR 321, it is held that:- Confession of co accused, held, not evidence against another accused, more so when retracted and uncorroborated". The above case-laws leave nothing ambiguous that a sole retracted confession of co-accused cannot be made basis for convicting the accused, however, this could at the best be used a corroborative piece of evidence.

33. As per the confession of co-accused/convict Muhammad Bux the respondent Farooque Mengal has been alleged to have conspired the offence and to prove the conspiracy the prosecution examined the P.W.Qudsia Begum, P.W.Shireen Saleem, and P.W. Abdul Rasheed. P.W. Qudsia Begum's evidence could at the most prove that accused/ respondent Farooque Mengal had repeatedly called deceased Afreen Baig to return to her house. Without prejudice to the fact that no such phone record has been produced by the prosecution to prove this allegation, it can be said that accused/ respondent Farooque Mengal wanted her wife (deceased Afreen Baig) to remain at house in his absence as it were accused/ respondent Farooque Mengal and deceased were residing in such house. P.W.Shireen Saleem happened to be real sister of the deceased Afreen Baig, who claimed to have heard accused/ respondent Farooque Mengal demanded Rs.2 Crore from deceased with further threat that if she fails accused/respondent Farooque Mengal will kill both deceased and her child. However, it is a matter of record that P.W. Shireen Saleem did not disclose any such thing to anybody which is quite unbelievable. However, it is a matter of record that complainant party never claimed to have given such amount to deceased then there appears no reason/ motive for respondent/accused to go to such an extent. 33(sic) It was the P.W. Abdul Rasheed who had brought on record that he had heard the accused/respondent Farooque Mengal to have hatched conspiracy with convict Muhammad Bux for murder of the deceased but his presence at such time was never plausibly established by prosecution. Here it would be material to refer to the evidence of P.W. Muhammad Fayyaz (second I.O. Ex-37) wherein he admitted that:- "From 29-12-2004 I recorded the statement under section 161, Cr.P.C. of Mst. Shireen Saleem, Nizamuddin, Abdul Rasheed and Mst. Sonia." In his cross-examination he admitted that:-- "My investigation was only to extent of four P.Ws. which I have recorded their statement under section 161, Cr.P.C. and rest of the investigation in respect of death of Mst. Afreen Baig." "I have recorded the statement/ conducted further investigation of this case after 2-1/2 months of occurrence. P.Ws. namely Mst. Shireen Saleem, Abdul Rasheed, Nizamuddin and Mst. Sonia were produced by the complainant of this case namely Mirza Ikhtiar Baig at his own house and I was called by him at his house where I recorded their statement". The above admission of the said P.W. is sufficient that introduction of such evidence was not only belated but even manner of introduction of same is not natural and confidence inspiring hence the same was rightly not believed by the learned trial Court Judge.

34. Regarding the quantum of sentence, it is settled proposition of law that if circumstantial evidence is linking all the aspects leading to the incident, and connecting the accused beyond any reasonable shadow of doubt, under such circumstances, normal sentence provided under section 302(b), which is death or life, anyone can be awarded by assigning the reasons/justification. On this proposition, we have scanned impugned judgment, and have reached on the conclusion that it is well reasoned and in accordance with law and does not warrant any interference. Besides, it is settled proposition of law that on the basis of circumstantial evidence, if case is proved death sentence can be awarded, reference can be made to the case of Hamid Mehmood v. The State reported in 2013 SCMR 131, wherein, while referring to the case of Muhammad Latif honourable apex court has held that:--

18. An attempt has also been made by the learned counsel to contend that the sentence of death could not be awarded only on circumstantial evidence. In the case of Sh. Muhammad Amjad v. The State (PLD 2003 SC 704), it was held that:-- In the case, reported as Muhammad Latif v. The State (PLD 2008 SC 503), it was held by this Court, as follows:-- "

11. As far the contention of the learned counsel that upon circumstantial evidence, one cannot be convicted and awarded the penalty of death, this plea is also misconceived because there is no bar or hindrance to pass the sentence upon a killer of three human beings when the chain of guilt is found not to be broken and irresistible conclusion of the guilt is surfacing from the evidence, which is connecting the accused with the commission of that offence without any doubt or suspicion. If the circumstantial evidence brought on the record is of such nature then the conclusion would be in the shape of conviction and no other conclusion shall be drawn by any stretch of imagination in such a case, for the guilt of the accused, penalty of death or life imprisonment shall be a normal event. The following judgments can be cited with benefits for this proposition:-- In case of Jaffar Ali v. The State, reported in 1998 SCMR 2669, honorable apex court has held that:- After careful examination of the record, we are satisfied that overwhelming circumstantial evidence has been brought against the appellant. The contention of the learned counsel for the appellant that without direct evidence the appellant cannot be sentenced to death, is without force. If the circumstantial evidence connects the accused with the offence without any reasonable doubt, the same can form basis of the capital punishment. This position is accepted by the Islamic jurisprudence also. Al-Majallah which has been the code of Islamic Laws, promulgated by the Ottoman Caliphate and has remained in force for centuries in different parts of the Islamic world; has recognized the circumstantial evidence even in the case of murder. In the case of, Sh. Muhammad Amjad v. The State reported in PLD 2003 SC 704, it is held that:-- "The case of the prosecution rests upon the circumstantial evidence recoveries of incriminating articles, admissions and the appellant's written statement in his own handwriting. Now it is a settled proposition of law that death sentence can be awarded on circumstantial evidence, provided all circumstances constituted a chain and its no link is missing and their combined effect is that the guilt of the accused is established beyond any shadow of doubt"

35. In view of above discussion, we of the clear view that the impugned judgment of the learned trial court is well reasoned and all material pieces of evidence have properly been appreciated by the learned trial court and same is accordingly maintained. Consequently, the appeal of the convict Muhammad Bux is dismissed, reference is answered as affirmative, while appeal filed against acquittal of Farooque Mengal is dismissed. HBT/M-11/Sindh Order accordingly.