2008 P Cr (PLP)

SYED HUSSAIN MAZHAR KALEEM, J.

Above titled appeal is directed against the judgment passed by Additional District Court of Criminal Jurisdiction, Muzaffarabad, dated 31-1-2005, whereby the appellant was convicted and sentenced to 14 years' R.I. under section 302, A.P.C.

2. Necessary facts for disposal of the appeal are that a case under section 302, A.P.C. was registered at Police Station Chikkar on the complaint of Rehmat Din. It was reported that complainant Barber by profession was present in his shop in Chikkar Bazar. One of his employees Muhammad Basharat informed him that his daughter-in-law and grand daughter had been murdered. Upon this he came at the place of occurrence and saw deceased were killed by cutting throat. Mst. Zahida Bibi was lying dead on floor while the dead body of Samia was on cot. He also noticed that some one tried to set the house on fire but failed.

3. During investigation, Rehmat Din complainant was found guilty for the offence of murder of daughter-in-law and grand daughter. After necessary investigation, challan was submitted before Additional District Court of Criminal Jurisdiction, Muzaffarabad and on conclusion of trial, the Court convicted and awarded 14 years' R.I. to the appellant for each of the murder through the impugned judgment. Hence this appeal.

4. Learned counsel for the appellant argued that it was a blind murder. The case was not properly investigated. On account of public pressure to trace and arrest the culprit, the police concocted a story. Due to enmity and hostile relations Faqar Din real brother of the appellant provided connivance to the police and consequently the appellant was roped in a false case. The occurrence was not witnessed by anybody. The last-seen evidence was doubtful as the statement of P.W. Faqar Din was recorded 9 days after the occurrence and no reasonable justification regarding delay was given by the prosecution. Recovery of weapon of offence was not proved beyond any doubt and it was not clear from the statements of P.Ws. that whether it was recovered from a box or from a rack at the top of a room of the house. The learned counsel contended that retracted confession recorded under section 164, Cr.P.C. was fake and fabricated. There was nothing on record to prove that the appellant was taken to the Court of Magistrate for making the statement. No witness was asked to identify the person who made the confessional statement. Even otherwise the manner in which the statement was recorded was against the provisions of section 164, Cr.P.C. The learned counsel submitted that the trial Court failed to appreciate that the prosecution story was highly doubtful. The chain of circumstantial evidence was not linked with each other. The evidence regarding last-seen, recovery etc. was not worth consideration and the confessional statement relied upon by the trial Court was not confidence-inspiring, thus, the impugned judgment being incorrect and against the facts of the ease was not sustainable, therefore, by accepting the appeal, the same may be set aside and the appellant be acquitted of the charge.

5. On the other hand, it was argued that prosecution proved its case against the appellant beyond any reasonable doubt. He was seen at the place soon after the occurrence by P.W. Faqar Din. Weapon of offence blood-stained knife was recovered at his instance. The confessional statement of the appellant recorded under section 164, Cr.P.C. was inconsonance with the prosecution version and it was proved during trial that due to strained relations with Zahida Bibi the appellant killed her and also committed the murder of Mst. Saima Bibi as she saw him killing her mother. According to learned Advocate-General it was a cold blooded murder. The prosecution case was proved through last-seen evidence, recoveries and corroborated by confessional statement of the convict-appellant. The chain of the circumstantial evidence was linked with each other. Minor discrepancies appearing in the deposition of prosecution witnesses were not worth consideration. The trial Court after considering all legal aspects of the case arrived at a correct decision. The impugned judgment being correct and in accordance with law needs no interference, therefore, the appeal may be dismissed.

6. I have heard the learned counsel for the parties and gone through the record of the case.

7. From perusal of the record it transpires that on 19-8-2002 Muhammad Basharat informed the convict-appellant that some one murdered his daughter-in-law and grand daughter, upon which he reported the matter to the police. On 26-8-2002 P.W. Faqar Din father of Mst. Zahida Bibi deceased recorded his statement wherein he expressed his doubt about involvement of the convict-appellant in the occurrence; consequently he was arrested by the police. During investigation weapon of offence knife and blood-stained piece of cloth were seized at his instance. Motive behind the occurrence was that Mst. Zahida Bibi deceased alleged Mst. Saima daughter of the appellant for writing love letters to Muhammad Suleman which instigated the convict for commission of the offence. On 10-9-2004 P.W. Bashir Ahmad Mughal, Additional Deputy Commissioner, Hattian Bala recorded his confessional statement under section 164, Cr.P.C. The trial Court by putting reliance on the above mentioned facts convicted the appellant. The above mentioned facts indicate that the whole prosecution story was based upon the doubt expressed by P.W. Faqar Din, recoveries and confessional statement of the accused.

8. A careful consideration of the deposition of P.W. Faqar Din shows that on 19-8-2002 he awoke at 4 a.m. to offer Morning Prayer and saw the convict-appellant standing in "Veranda" of house of the deceased. At 5-00 a.m. when he came to his shop the accused sent Muhammad Basharat to inform him that his daughter Mst. Zahida Bibi was set on fire, upon which he came at the place of occurrence and saw the dead bodies. He further deposed that prior to the occurrence Muhammad Suleman who was working in Barber shop of the convict-appellant and was ousted by him, came to P.W. and asked for job but he refused lest it may annoy the accused. In the meantime Mst. Saima who had been writing love letters to Muhammad Suleman had unpleasantness with Mst. Zahida. On 8-8-2002 both of them accused each other for writing letters. Mst. Zahida Bibi called Muhammad Suleman and asked him to clarify the matter. Upon which he stated on oath that letters were written by daughter of the appellant. Thereafter the convict shifted in another house and nourished a grudge against the deceased which resulted into the unfortunate incident. During cross-examination the P.W. admitted that Mst. Zahida Bibi informed him about the incident which took place between her and Mst. Saima Bibi on 8-8-2002 and he was not a witness to the episode. His statement was recorded on 26-8-2002 wherein he expressed his doubt about involvement of accused in the occurrence and he was arrested. Prior to that Muhammad Suleman was also apprehended and remained in the custody of police for 8 days.

9. The above mentioned statement clearly shows that the P.W. was not a witness of the story regarding motive. Muhammad Suleman who was a witness and part of the episode was not examined as he died before giving statement, however, a love letter written to someone whose name starts with "S" written by an unknown girl was brought on record but there was nothing to establish that it was written by Mst. Saima to Muhammad Suleman. Moreover, the same was not tendered in evidence, thus, no proof in support of the alleged motive was available on record.

10. According to the prosecution case, recovery of weapon of offence was effected upon accused on 28-8-2002. Seizure of memo. Exh.P.I. shows that it was lying in a rack on the top of opening door of the room from where it was seized in presence of P. Ws. Munir Ahmad Qadri and Jamil Qadri. The deposition of the attesters show that it was recovered at instance of the accused appellant from a box while seizure memo. Exh.P.L. through which weapon of offence was sent to Civil Medical Officer, C.M.H., Muzaffarabad for Expert opinion also reveals that it was seized at instance of the appellant from a wooden box. Thus, the contradiction that whether it was seized from a box or from the rack, casts serious doubt about the recovery of weapon of offence.

11. The prosecution claimed that at the time of occurrence the convict-appellant used a cloth to cover his body for committing the offence, it was blood-stained and after the occurrence he hid it behind a box in his house. The said cloth was seized through recovery memo. Exh.P.G. on 2-9-2002. It was hard to believe that an accused alleged for hatching conspiracy and committing murder of his daughter-in-law and grand daughter and attempt to set the house of the deceased on fire shall preserve a piece of evidence against himself for more than 12 days.

12. It was evident from the record that on 10-9-2002 incomplete challan was submitted before District Court of Criminal Jurisdiction, Muzaffarabad and it was made over to Additional District Court of Criminal Jurisdiction, Muzaffarabad for disposal under law. The appellant was sent to judicial lock-up. According to the prosecution case the confessional statement of the appellant was recorded by Mr. Ghulam Bashir Mughal, Additional Deputy Commissioner, Hattian Bala on the same day but surprisingly no evidence indicating that the appellant showed his willingness or made a request to the Magistrate for recording the statement was brought on record. Even deposition of Investigating Officer did not indicate that the confessional statement of the convict was recorded and it was also shrouded in mystery that who brought the accused before the Magistrate for the purpose.

13. It may also be stated here that while recording confessional statement Exh.P.Q. the convict-appellant was not identified by anybody. His identity card or any other source of identification was not mentioned in the statement. No proof that the person who made the confessional statement, was the convict-appellant was available on trial Court's file and particularly in view of the fact that at time of examination under section 342, Cr.P.C. the convict categorically stated that neither he appeared before the Magistrate nor made any statement under section 164, Cr.P.C., his wife was tortured and he was forced to sign plain papers, the validity of retracted confessional statement needs serious consideration.

14. The trial Court while convicting the appellant failed to appreciate that P.W. Faqar Din was father of Mst. Zahida Bibi deceased, he was inimical towards the convict-appellant, motive alleged by him was not proved during trial, thus, doubt expressed by him was not substantiated. The recovery of weapon of offence was doubtful and seizing of blood-stained cloth at instance of appellant was fake and suspicious. It was not established beyond doubt that the accused made any confessional statement and even otherwise the same was not recorded in accordance with the provision of section 164, Cr.P.C., thus, the retracted confessional statement was not credible document and the prosecution story being highly doubtful was not worth consideration, therefore, the convict-appellant was entitled to the benefit of doubt.

15. In light of the facts listed above, the appeal is accepted and the appellant is acquitted of the charge. H.B.T./4/Sh.C.(AJ&K) Appeal accepted.