2017 P Cr (PLP)

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.

Appellant/convict Abdul Manan has preferred Criminal Appeal No. 216 of 2014 and the appellant/convict Shughla Bibi has filed Criminal Appeal No. 218 of 2014 against their conviction, while the trial court has sent the Murder Reference bearing No. 08 of 2014 under section 374, Cr.P.C. for information of sentence of death or otherwise. Since in these cases the impugned judgment has been assailed on basis of common questions of law and facts, therefore, same are being disposed of by means of this single judgment. The Additional Sessions Judge- IV, Quetta (the "trial Court") vide judgment dated 18.08.2014 (the "impugned judgment") in Sessions Case No. 31 of 2012 convicted the appellants Abdul Manan son of Hayatullah and Shughla Bibi widow of Mir Waise, under section 302(b) of the Pakistan Penal Code, 1860 (P.P.C.) and sentenced them to death with direction to pay compensation of Rs.2,50,000/- to the legal heirs of the deceased in equal shares excluding the appellant/convict Shughla Bibi, in default whereof to further suffer imprisonment for one year. The appellant/convict Shughla Bibi was also convicted and sentenced under section 201, P.P.C. to suffer imprisonment for seven years with fine of Rs.10000/- (ten thousands), in case of default to further suffer S.I for 06 (six) months. The benefit of section 382-B of the Criminal Procedure Code, 1898 (Cr.P.C.) was also extended in their favour.

2. The brief facts of the case, as stated in FIR No.12/2012 registered with Police Station Pashtoonabad, Quetta on Fard-e-Bayan of the complainant (appellant Shughla) are that on 28-02-2012, on the fateful night she heard firing and came out from her room, when she saw a person came out of her husband's room with muffled face and ran away from the house. She went inside her husband's room and saw him lying in a pool of blood, who died afterwards. Thus, the FIR was lodged against unknown person. However, subsequently on supplementary statement of PW-1 Ahmed Zia (the son of the deceased) appellant Abdul Manan was arrested and on his disclosure, appellant Shughla (the complainant/widow of the deceased) was also arrested, both of them were interrogated for murder of the deceased.

3. After completion of investigation, challan of the case was submitted before the Sessions Judge, Quetta, and transmitted to the file of the trial Court. On 05.06.2012 charge was read over to the appellants, to which they did not plead guilty and claimed trial. The prosecution led its evidence and produced the following witnesses: i) PW-1 Ahmed Zia, produced supplementary statement Ex.P/1-A. He deposed that his father was murdered by Abdul Manan, but exonerated his mother from the allegation. ii) PW-2, Izhar-ul-Haq, ASI produced first disclosure memo dated 18.3.2012 of Abdul Manan as Ex.P/2-A, pointation memo Ex.P/2-B and disclosure of Shughla Bibi dated 19.3.2012 as Ex.P/2-C. iii) PW-3 Naqeebullah SI, produced site inspection memo Ex.P/3-A, recovery memo of eight empties Ex.P/3-B and recovery memo of blood stained pillow Ex.P/3-C. iv) PW-4 Hafeezullah, SI produced disclosure memo dated 25.3.2012 of the appellant Abdul Manan as Ex.P/4-A, recovery memo of T.T pistol of .30 bore, two live cartridges Ex.P/4-B and recovery memo of Shalwar and blood stained Banyan of the deceased Ex.P/4-C. v) PW-5 Dr. Ali Mardan Mengal, Medico Legal Officer Sundeman Provincial Hospital Quetta produced death certificate of the deceased Mir Waise Ex.P/5-A and medical certificate of the appellant Abdul Manan Ex.P/5-B and medical certificate of the appellant Shughla Bibi Ex.P/5-C. vi) PW-6 Sultan Muhammad, IP, the investigation officer of the case, he produced Fard-e-Bayan Ex.P/6-A, FIR No.12 of 2012 Ex.P/6-B, site sketch Ex.P/6-C, Inquest Report Ex.P/6-D, entrustment receipt of the dead body Ex.P/6-E, incomplete challan Ex.P/6-F, Chemical analysis report in respect of blood stained pillow Ex.P/6-G and map in respect of place of recovery of the pistol Ex.P/6-H. vii) PW-7 Khalid Mehmood, SI produced application for chemical analysis Ex.P/7-A and Firearms examination report Ex.P/7-B and complete challan Ex.P/7-C. (During trial three private witnesses were given-up by the counsel for the complainant on 21-12-2012). On closure of prosecution side, the appellants were examined under section 342, Cr.P.C. wherein they once again professed their innocence, however, they neither opted to record their statements on oath under section 340(2), Cr.P.C. nor produced any defense witness. On conclusion of trial the appellants were convicted under section 302(b), P.P.C. and sentenced to death.

4. Mr. Muhammad Aslam Chishti, Advocate, learned counsel for appellant Shughla Bibi contended that the impugned judgment is contrary to law and facts and against the norms of justice; that the appellant Shughla Bibi was the complainant of the case, who was subsequently implicated on the alleged disclosure of appellant Abdul Manan; that no recovery whatsoever was effected from the appellant; that PW-1 in his cross-examination had admitted that the appellant is innocent, however while recording conviction against the appellant, the trial court had failed to consider this aspect of the case; that the prosecution's case is of no evidence simply because the alleged firing was not witnessed by anyone; that except PW-1, the remaining witnesses are police officials; that the alleged disclosure of the convict/co-accused Abdul Manan (appellant in Criminal Appeal No. 216 of 2014) has no evidentiary value in the eyes of law, therefore, same cannot be made basis for recording conviction against the appellant Shughla Bibi; that the impugned judgment is also violative to the dictum laid down by the Hon'ble apex Court because of glaring contradictions and improvements in the statements of the prosecution witnesses. He referred the statement of PW-1, and added that the only witness in the case had exonerated the appellant, thus, except the disclosure of principal accused, no evidence was available against her on basis whereof, no conviction could have been recorded against the appellant. He urged with vehemence for acquittal of the appellant. Mr. Ahsan Rafiq Rana, Advocate for the appellant Abdul Manan contended that the statements of the prosecution witnesses are not in line with each other, so much so, there were dishonest improvements in their statements; that all the prosecution witnesses were police personnel and except PW-1 Ahmed Zia, who is son of appellant Shughla Bibi, there was no independent witness to support the prosecution case, which is yet another aspect of the matter, ignored by the trial court; that the weapon alleged to have been recovered from the possession of appellant at the relevant time along with the cartridges were sent to the Firearms Expert with the delay of more than six months; that throughout the trial proceedings the prosecution had failed to establish that the deceased was murdered by the appellant Abdul Manan, therefore, declaring the appellant guilty of capital charge was totally uncalled; that the appellant was not nominated in the FIR, therefore, to prove the appellant's involvement needs strong circumstantial and corroborative evidence, which was not available with the prosecution; that the alleged recovery of pistol also does not render any support to the prosecution because all the proceedings were in the knowledge of the police officials before the recovery was effected on alleged disclosure of the appellant. He finally urged that since the impugned judgment is based on mis-reading and non-reading of the material available on record as well as on mis-interpretation of law, while there was no occasion for the trial Court to record the conviction, therefore, the same is liable to be set aside and the appellant is liable to be acquitted of the charge.

5. Conversely, Mr. Abdul Sattar Durrani, learned APG, contended that the prosecution has proved the guilt of the appellants to the hilt, he supported the impugned judgment and added that disclosure of the appellant followed by recovery is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984, thus conviction recorded by the trial court does not warrant any interference by this court.

6. Heard. Record perused.

7. In this case initially, the FIR No.12 of 2012 was lodged with PS Pashtoonabad, Quetta on Fard-e-Bayan of appellant Shughla Bibi, averring therein that on stated date, time and place, her husband was sleeping in his room when she heard gunshot fires and when came out, she saw a person with muffled face was running from their house, when she went inside her husband's room, she saw her husband being severely injured was died on the spot. The said report of Shughla Bibi was recorded by the police at about 2:00 a.m. (night). The police officials after registration of FIR under section 302, P.P.C., proceeded to the place of occurrence and after inspecting the site, prepared the site map (Ex.P/6-C), the inquest report under section 174, Cr.P.C. (Ex.P/6-C). The dead body was sent to the Civil Hospital, Quetta and was subsequently handed over to the brother-in -law of the deceased vide entrustment receipt Ex.P/6-E. During the investigation eight empty shells with a bullet's lead of TT pistol and the blood stained pillow of the deceased were also secured in separate parcels. Meanwhile, on 16.3.2012 the deceased son's viz Ahmed Zia (PW-1) submitted a supplementary statement (Ex.P/1-A), in which he stated that he on his own inquiry had come to know that his father was murdered by our neighbor Abdul Manan son of Hayatullah, thus on his supplementary statement, the principal accused Abdul Manan was arrested on 18.3.2012. After his arrest the appellant Abdul Manan made a disclosure before the police, wherein he narrated the scenario of the crime, and stated that in fact he was having secretive intimacy with the deceased's wife (complainant) and on her instigation, he murdered the deceased at his home. After the disclosure the appellant also pointed out the place of occurrence, however, about the crime weapon he stated that after committing the crime he threw the pistol on the roof which on next morning was not found. On his disclosure the co-convict Shughla Bibi was arrested on 19.3.2012, her alleged disclosure was recorded by the police, and she was arrested in the case as a co-accused. After her arrest, sections 420, 201 and 34, P.P.C. were also inserted in the FIR.

8. The prosecution in order to substantiate the charge, produced PW-1 Ahmed Zia, the son of the deceased, who stated that "on fateful night, he was at home, when on hearing the gunshot fires, he came out from his room and saw his mother was crying, who told him that somebody has murdered his father." On 16th March, 2012 he submitted his supplementary statement before the police, produced as Ex.P/1-A, wherein he stated that "according to his information and inquiry his father was murdered by accused Abdul Manan." This witness was examined on 24th September, 2012, but the cross-examination was conducted only to the extent of the appellant Abdul Manan, because the co-convict Shughla was not represented by her counsel. Subsequently an application under section 540, Cr.P.C. was moved on behalf of appellant Shughla, which was accepted by the trial court vide order dated 11.12.2013; that after appointment of defense counsel on 30.12.2012, PW-1 Ahmed Zia was cross-examined by the learned counsel for the appellant Shughla. The statement/cross-examination of PW-1 consists of two parts, which reads as under: The cross-examination conducted on 24-09-2012 on behalf of appellant Abdul Manan: The cross-examination conducted on 30-12-2012 on behalf of appellant Shughla Bibi: The examination-in-chief and the cross-examination of PW-1, shows that he initially nominated his neighbor Abdul Manan as perpetrator of the crime, subsequently on the alleged disclosure of appellant Abdul Manan, Shughla Bibi was also arrested as co-accused. In his earlier cross-examination, PW-1 disclosed that he had seen his mother talking to Abdul Manan on call-phone and her mother told him that she and Abdul Manan had murdered his father. He also stated that on 16.3.2012 he saw her mother talking to Abdul Manan, but on subsequent stage on 30.12.2012 when he appeared in cross-examination, he stated that his mother is innocent and he had implicated his mother on the instigation of his maternal uncle. He also admitted that her mother has no nexus with this case and voluntarily stated that in fact his father was murdered by the appellant Abdul Manan. Except the statement of PW-1, the rest of the prosecution witnesses are corroborative in nature and have no direct nexus with the case. Therefore, the prosecution's case mainly rests upon the supplementary statement of PW-1 (Ex-P/1-A), the alleged disclosures of the appellants (Ex-P/2-A and Ex-P/2-C) and the firearm expert report (Ex.P/7-B).

9. When minutely considering the statement of Ahmed Zia (PW-1), it reveals that in his supplementary statement dated 16.3.2012, he did not nominate his mother, however in his cross-examination he made certain disclosures which were not part of his supplementary statement. At subsequent stage, he again exonerated his mother, therefore, statement of this witness was not free from doubt and required independent corroboration.

10. The first disclosure memo of the appellant Abdul Manan Ex.P/2-A was recorded on 18.3.2012, when in respect of crime weapon, it was recorded by the police that after committing the murder of Mir Wais, he had thrown the pistol on his roof which was missing on the following day. The disclosure memo of Mst. Shughla Bibi Ex.P/2-C was recorded on 19.3.2012, which was replica of the disclosure made by the appellant Abdul Manan. It is rather astonishing that again on 25.3.2012 the appellant Abdul Manan disclosed that be can recover the pistol which he had kept in his house. In this case two disclosures on two different occasions were recorded, but on both the occasions no private witness(es) was/were associated with the police personnel. It has also been observed that the empty shells, which were recovered on 28.2.2012 were kept with police till recovery of pistol on 25.3.2012. There is yet another aspect of the prosecution's case, which creates serious doubts in a prudent mind that until the pistol was not recovered, the empties and bullet's lead of TT pistol were not sent to the firearms expert for analysis. The said case property remained in the police Malkhana and sent for expert's opinion on 7th September, 2013, it calculates that the case property was sent for examination after 1-1/2 years. The cognizance in this case was taken on 16.04.2012, when production-warrants of the accused persons were issued for 25-04-2015. Meaning thereby, that the accused persons were facing trial and the prosecution evidence was still awaited, when prosecution was trying to improve the case. The inordinate delay for sending the crime empties and recovered pistol to the Firearms expert has caused a serious doubt in the prosecution case. It has further diminished rather destroyed the prosecution case, when the recovered pistol and crime empties were sent together, therefore, keeping in view this aspect of the case, the said piece of evidence had lost its sanctity. Reference in this behalf is invited to Ali Sher and others v. The State (2008 SCMR 707).

11. Yet another aspect which has caused a very serious doubt in the prosecution case, when subsequently another disclosure was recorded on 25.3.2012, which was followed by recovery of pistol. To authenticate the disclosure and pointation of appellant followed by recovery of T.T-pistol, the prosecution witness (PW-4) Hafeezullah S.I appeared. He after reiterating the contents of recovery memo Ex-P/4-B, in cross-examination stated that: The afore-referred part of the witness's statement created very serious doubt about recovery of the crime weapon. This witness has totally diminished the possibility of recovery of T.T pistol, because he being Mashir of recovery memo did not know, who pointed out the place of recovery; though it was understood but ignorance shown by PW-IV has created another doubt in the prosecution case. Moreover he stated that a person namely Shah Wali (brother-in-law of deceased) was also accompanying them, but the said person was also not cited as witness, therefore an adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984 against the prosecution appears.

12. Now adverting to the other aspect of the case which relates to the disclosure of the accused person, the trial court observed and treated the same as a confessional statement, the said disclosure can never be termed as a confessional statement of the accused, rather it was an extra judicial confession which was made before the police, as far as the statement/disclosure memo of co-convict Shughla Bibi is concerned same is absolutely out of consideration being inadmissible in evidence, because same was not followed by any sort of discovery or recovery. The statements/disclosures of the accused Abdul Manan cannot be used against the Shughla Bibi because she was arrested on 19.3.2012 and disclosure of the principal accused was recorded on 18.3.2012. The trial court has miserably failed to understand rather to distinguish the two provision of Qanun-e-Shahadat Order whereby Articles 38 and 39 of Qanun-e-Shahadat Order, 1984 ("the Order 1984") provide that the confession made before the police is not admissible in evidence. This view is supported from the dictum laid down by the Hon'ble apex Court in case of "Mst. Irshad Bibi v. Iftikhar and others" (2008 SCMR 841), therefore it is instructive to reproduce the relevant passage therefrom: "It is well-settled that conviction order based on an extra-judicial confession as well if prosecution succeeds in establishing that such statement has been made truly and voluntarily and in this case from circumstantial evidence then prosecution is bound to produce individual corroborated evidence. Reference in this behalf can be made to the case of Bahadur Khan v. The State PLD 1995 SC

336. Since in the instant case the respondents have categorically denied the allegation and extra judicial confession, before both the witnesses P.W. Irshad Bibi and Muhammad Manawar, in the absence of corroboration, is not acceptable."

13. In the case of principal accused Abdul Manan, we find that he was convicted by the trial court on the evidence of discovery of T.T pistol from his house. As, it has discussed earlier that the prosecution has produced two disclosures of accused Abdul Manan, first recorded on 18.3.2012, which was not followed by any recovery/discovery, and second recorded on 25.3.2012 which was followed by recovery of T.T pistol from his house. It was stated by PW-4 Hafeezullah that T.T pistol was produced by the accused from his bed, he also stated that other inmates of house are also residing there. It is astonishing to note that the accused Abdul Manan was arrested on 18.3.2012, when after his disclosure, he was brought to the place of occurrence for pointation only. Again on 25.3.2012 he was brought to his house adjacent to the house of the deceased, when he recovered the T.T pistol. The question arises that police did not search the house of the accused on 18.3.2012 and till 25.3.2012, the T.T pistol was lying on his bed which was not removed by any other inmate of the house; that the accused was at large from 28.2.2012 and he too did not remove the T.T pistol, which was subsequently recovered on his pointation from his bed. The discovery of any fact on the information of the accused in custody of police is admissible under Article 40 of the Order 1984, which reads as under:

40. How much information received form accused may be proved. When any fact is deposed to as discovered in consequence of information received form a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The perusal of above Article reveals that it is founded on the principle if the statement or information of the accused amounts to confession or otherwise, is supported by the discovery of a fact, it may be presumed to be true and not to have been extracted. It comes into operation only (i) if and when certain facts are deposed to as discovered in consequences of information received from accused persons in police custody; and (ii) if the information relates distinctly to the fact discovered. However in any case such information either oral or recorded by the police is required to be proved by the prosecution through evidence. No doubt, the information permitted to be admitted in prosecution through evidence. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered, but the information to get admissibility need not to be so truncated as to make it insensible and incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he concealed the article is not indicative of the information given. Thus, in order to apply Article 40 of the Order 1984, the prosecution must establish that information given by the accused led to discovery of some fact deposed by him and the discovery must be of some fact, which the police had not previously known and it was first time derived from the information given by accused. It is also imperative to note that the recovery of article cannot be termed as discovery, when it was not recovered from any hidden place and if in normal course, the investigation officer/agency was able to see it and take its possession, without any statement of the accused for pointing it out. Reference in this behalf is invited to Mst. Askar Jan v. Muhammad Daud (2010 SCMR 1604). In view of above discussion, the recovery of T.T pistol, which was not hidden in any secret place, but from room of a jointly owned house, on pointation of the accused is not free from doubt.

14. The manner and procedure in which the criminal case was built up, has caused a very serious prejudice to the appellants, and it was a sheer violation of fundamental rights under Article 10-A of the Constitution of Islamic Republic of Pakistan 1973, which guarantees the right of fair trial to the accused. The statement of PW-1 cannot be relied for recording the conviction because firstly, it was based on surmises and conjectures secondly, he alleged that his mother was talking on call-phone with principal accused but unfortunately their Call-Data-Record (CDR) was not brought on record nor their cell phones were shown to have been recovered, which could provide a link that on 16.3.2012, the Shughla Bibi was talking with principal accused Abdul Manan when seen by her son PW-1 Ahmed Zia; that PW-1 on three occasions introduced entirely divergent stances, such as, his supplementary statements (Ex-P/1-A) recorded by police was silent about involvement of his mother, even in examination-in-chief he did not utter single word against his mother but in cross-examination involved her towards crime, but again on re-calling, exonerated her mother and exclusively involved principal accused Abdul Manan, thus variance(s) observed in his statement(s) lead(s) to the inference that PW-1 was not worthy of credence, therefore his statement cannot be relied for recording the conviction and for safe administration of justice. Moreover, the sanctity and veracity of supplementary statement has clearly been discarded by the Hon'ble apex Court in number of judgments and it is by now well settled that supplementary statement being afterthought evidence cannot be made basis for conviction; that the evidentiary value of the extra-judicial confession (disclosure) before police is also out of consideration in view of dictum laid down in the judgments supra, while the inconsistency in two disclosures casts further doubt in the prosecution case. Reference can be made to the case of The State v. Syed Abdul Qayum (2001 SCMR 14), Falak Sher alias Sheru v. The State (1995 SCMR 1350) and case of Abid Ali alias Ali v. The State (2011 SCMR 161); that the firearm expert report (Ex-P/7-B) is of no avail to the prosecution due to unexplained delay of more than 1-1/2 years coupled with sending together the crime empties and T.T pistol to the firearm expert. The prosecution case suffers from certain infirmities and irregularities on basis whereof the conviction/capital punishment recorded against the appellants is not sustainable. Hence it can safely be concluded that prosecution being full of doubts is not worthy of credence for holding the conviction in view of the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case "Falak Sher alias Sheru v. The State" (1995 SCMR 1350).

15. Thus, in view of above discussion it can safely be concluded that prosecution case was based on surmises and conjectures, when there was no evidence against the appellants to connect them towards the crime. Consequently both the appeals bearing Nos.216 and 218 of 2014, are accepted, the impugned judgment dated 18.08.2014 passed by Additional Sessions Judge-IV Quetta, in Sessions Case No. 31 of 2012, FIR No.12 of 2012, under section 302-Q & D, 420, 201 and 34, P.P.C. registered with Police Station Pashtoonabad, Quetta is set aside and while extending benefit of doubt the appellants are acquitted of the charge. The appellants being in custody are ordered to be released forthwith if not required in any other custody-case. The Murder Reference No.08 of 2014 is answered in negative. JK/61/Bal. Appeals accepted.