2015 PLP 1204 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Through the captioned appeal under section 410, Cr.P.C, the appellant/accused Niaz Ahmed has prayed to set aside the judgment, passed on 10-5-2005, by the learned Ist Additional Sessions Judge, Mirpurkhas, in Case/Crime No.43/2001, under section 302, P.P.C., registered with Police Station, Kot Ghulam Muhammad, whereby the appellant was convicted for an offence under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.25,000, in case of default in the payment of fine, he shall suffer R.I. for one year more. However, benefit of section 382-B, Cr.P.C. was extended to him.

2. Succinct prosecution story is that on 30-5-2001, the complainant lodged FIR, wherein he alleged that at about 9-00 a.m., his brother Rabdino narrated him the facts that someone had caused sharp side hatchet blow at the head of their brother Soomar in the field of Malhar Muhajir and that he was lying unconscious and that he saw an unidentified person while running from the place of occurrence. On such information, the complainant along with Muhammad Alam and Rabdino rushed to the place of occurrence and saw that their brother Soomar was lying unconscious due to hatchet injuries at his head. They took the injured to the hospital. The complainant lodged the FIR against unknown persons. ASI Muhammad Akram took the investigation, prepared mashirmama of injuries of injured Soomar, recorded the statements of P.Ws., prepared memo of place of occurrence and in the evening he was informed by the complainant Muhammad Hassan about death of injured due to injuries hence Section 302, P.P.C. was inserted. Autopsy of dead body was conducted by Dr. Muhammad Ashraf and then mashirmama of clothes of deceased was prepared. On 8-6-2001, accused was arrested and on his pointation crime hatchet was recovered. On 13-6-2001, his confessional statement was recorded by the Magistrate and on the same day statement of P.W. Karo under section 164, Cr.P.C. was recorded and on completion of usual investigation the challan was submitted against the accused. At trial, prosecution in order to prove its case examined as many as 13 witnesses, some of them have produced relevant documents and thereafter, the prosecutor closed its side.

3. Statement of the accused was recorded under section 342 Cr.P.C. wherein he has denied the allegations levelled against him and claimed his innocence. He claimed his false involvement in the case due to old enmity. However, neither he examined himself on Oath as required under section 340(2), Cr.P.C. nor led any defence evidence.

4. Arguments advanced by Miss Nasira Shaikh, advocate for the appellant and Syed Meeral Shah, learned D.P.G. are considered and record has also been perused in light of the case-law relied upon by the learned counsel for the appellant.

5. Miss Nasra, learned counsel for the appellant submits that despite clear discrepancies in the prosecution case and material contradictions in ocular account, medical, circumstantial evidence and defected confessional statement, the trial Court has convicted, sentenced and awarded punishment of life imprisonment to the appellant, who is behind the bars since last about ten (10) years, excluding remission period. Learned counsel placed her reliance on the following case-law:-- (i) 1983 PCr.LJ 892, (ii) 2009 YLR 1279, (iii) PLD 1982 Karachi 1000, (iv) 2007 SCMR 670, (v) 1993 SCMR 670, (vi )1988 MLD 174, (vii) 1981 PCr.LJ 434, (viii) 2008 PCr.LJ 194 (ix) 2005 YLR 106, (x) PLD 2005 SC 484, (xi) 2001 PCr.LJ 1682, (xii) 2006 PCr.LJ 84, (xiii) 2002 PCr.LJ 51, (xiv) 1988 MLD 38, (xv) 2009 MLD 49 and (xvi) 2009 PCr.LJ 506.

6. Conversely, Syed Meeral Shah, learned D.P.G. supported the impugned judgment, however, he has admitted the contradictory statements of eye-witnesses and giving false evidence by the Medical Officer, who has admitted such fact in his cross-examination.

7. The points necessary for decision of instant appeal are that:-- Point No.1:

What legal sanctity is attached to the confessional statement of accused? Point No.2:

As to whether the ocular account is in accord with medical, circumstantial and expert evidence? Point No.3:

As to whether the impugned judgment pronounced by the trial Court has been recorded in accordance with law? Confessional Statement (point No.1)

8. PW, Mr. Abdul Sattar, Judicial Magistrate at Kot Ghulam Muhammad, who recorded the confessional statement of accused, deposed in his testimony that on 13-6-2001, when he was posted at the mentioned place, ASI Muhammad Akram of Police Station Kot Ghulam Muhammad handed over a letter to him for recording confessional statement of accused Niaz Muhammad. The accused was produced before him at 12-00 noon. He got the handcuffs of accused removed and made him to sit in his chamber as there was rush in the Court room. First of all, he introduced himself to accused that he was Magistrate and that whatever he records will be his statement and will be reduced in writing and will be used against him and that he (Magistrate) will be a witness against him. He gave him reflection time of 90 minutes and thereafter, he inquired from the accused that as to whether he has been pressurized by the police to record his confession or if he has been maltreated by the police for recording his confession but he replied that he was recording his confession voluntarily, without any pressure or inducement. He put all these questions before reflection and after reflection period he warned the accused that he was not bound to record his confession and if he will make such confession, the same will be used against him but the accused showed his willingness to record his confessional statement voluntarily. Then he recorded the confessional statement of accused in Urdu language and after recording his confessional statement, he read over and explained the same to accused who admitted it to be correct and put his signature on it and after recording of the confessional statement, the accused was remanded to judicial custody in District Jail Mirpurkhas. In cross-examination, the Magistrate has stated that it is not mentioned in the certificate appended to confessional statement that contents of such statement were read over and explained to accused in Sindhi language. He has also admitted that there is no mention of second warning in the confessional statement. While recording the impugned judgment, the trial Court has discarded the evidentiary value of such confessional statement on the ground that the Magistrate did not disclose that he had read over and explained the confession to the accused in his language and it shows that accused had made the confession on Oath which is not admissible. The observation of learned trial Judge is strictly in accordance with law, more particularly, learned counsel for the appellant while placing reliance on the cases of Hamzo and another v. The State (1983 PCr.LJ 892), Muhammad Rafiq v. The State (2009 YLR 1279), Dost Muhammad v. The State (PLD 1982 Karachi 1000) and Muhammad Parvez and others v. The State (2007 SCMR 670), submits that unexplained delay of five days in recording the confessional statement is fatal to the prosecution case. In the case of Hamzo and another, as supra, the judicial confession recorded three days after arrest of accused was ruled out of consideration. In the case of Muhammad Rafiq, as supra, the confessional statement having been recorded after three days of the occurrence could not be acted upon. In a Division Bench ruling of this Court, delivered in the case of Dost Muhammad, mentioned supra, the confessional statement recorded in Urdu language whereas accused was Sindhi speaking and there was nothing to show that such statement was read over to and explained to accused in Sindhi language and the accused was not given second warning after allowing him time for deliberation was not considered voluntarily and without observing necessary legal formalities in circumstances. In a larger Bench ruling of Hon'ble Supreme Court (Shariat Appellate Jurisdiction), 2007 SCMR 670, the judicial confession recorded with unexplained delay was considered fatal to the prosecution.

9. Whatever mentioned above, in light of the aforementioned case-law, the delay of five days in recording the confessional statement of accused after his arrest, without any sufficient reason and plausible cause and that too, recorded on oath, not in the language of accused, is having no legal sanctity, hence the point in discussion is answered accordingly. Point No.2. (Ocular account)

10. Admittedly, complainant Muhammad Hussain is not an eye-witness of the incident, to whom his brother Sultan had disclosed about the occurrence. However, in cross-examination he has stated that P.W. Karo told P.W. Rabdino that accused Niaz caused hatchet injuries to his deceased brother Soomar and ran away. P.W. Rabdino, brother of the deceased stated that when his brother was loading the fire woods in donkey cart and the cart had entangled in bushes, when accused Niaz Muhammad came on the back side of deceased Soomar and suddenly gave him sharp side hatchet blow at the head of his brother Soomar and has also given back side of hatchet blow to his brother Soomar as well. Then he rushed and to inform his brother Alam and Sultan who came and took the injured to the hospital who succumbed to the injuries in hospital. In cross-examination, he has stated that the accused Niaz was grazing his buffalos at the place of wardat and at that time no other person was present to intervene and rescue his brother Soomar. He has denied that the police has recorded his statement under section 161, Cr.P.C. The evidence of P.W. Alam is hearsay to whom Rabdino has informed about the incident. P.W. Sultan was also informed by his brother Rabdino. He was also cross-examined wherein he has stated that his brother told them that one person had caused hatchet injury to their brother Soomar and ran away. P.W. Karo, however stated that on the day of incident he was grazing the goats near Puran Malar Ji Gheel and accused Niaz was also grazing buffalos where deceased Soomar was collecting fire wood and loaded the same in his donkey cart. He heard a noise and saw that deceased Soomar was sitting on his donkey cart when accused Niaz gave him hatchet blow with its sharp side on the head of deceased Soomar. He left the goats and went to Rabdino, who was coming towards Soomar along with meals for his brother Soomar and he narrated the above incident to Rabdino, the brother of deceased and after some time Hussain, brother of deceased and other villagers came at the place of incident. By this way, P.W. Karo has contradicted the evidence of P.W. Rabdino who posed himself to be the only eye-witness of the incident as according to him nobody was found present there, except the deceased and accused. However, P.W. Karo has given a contradictory statement while deposing that he was the only person who was grazing his goats at the place of incident and after the incident he rushed to inform the incident to P.W. Rabdino. Both eye-witnesses contradicted each other, therefore, their evidence is not trust worthy, being inconsistent to each other. Moreso, it appears that both these witnesses did not try to overpower the only assailant, who was having hatchet only and no effort or resistance was made by them to save the victim who went away safely, which looks very unnatural, as usually all villagers are found armed with hatchets, for their safety purpose and being Sindhi tradition, hatchet do not require license; all these facts show their presence at the scene of occurrence, doubtful. (Medical evidence)

11. Medical Officer Dr. Muhammad Ashraf has given contradictory statement in his examination in chief and cross-examination. He has deposed in examination in chief that he examined the injured/deceased and conducted his postmortem but he did not open thorax and abdomen of the dead body. However, in cross-examination, he has completely resiled/contradicted his examination in chief by deposing in the following words:-- "It is a fact that when deceased was brought in injured condition at Taluka Hospital at about 8-45 a.m., he had not examined him. It is a fact that I have not opened thorax of dead body of deceased. It is a fact that I have not opened the abdomen of dead body of deceased. It is a fact that I cannot say whether food in the abdomen of deceased was digested or not. It is a fact that I cannot say whether there was internal bleeding or not. It is a fact that I had not collected blood clots from the injuries of deceased. It is a fact that I had wrongly stated in my examination in chief that I had examined the injured but in fact the injured was examined by Dr. Dildar Hussain."

12. Perusal of the R&Ps of the trial Court reveals that the Medical Officer Dr. Muhammad Ashraf has not produced the original postmortem report. The aforementioned statement of the Medical Officer is untrustworthy as the Medical Officer has admitted that he had given wrong statement in his examination in chief that he had examined the injured but in fact the injured was examined by Dr. Dildar Hussain. It is an admitted position that the said Dr. Dildar Hussain has not been examined by the prosecution. The medical evidence of Dr. Muhammad Ashraf is having no evidentiary value, who himself admitted about his wrong statement, as mentioned supra, therefore, the case of the prosecution is without any medial corroboration, which aspect has not been considered or evaluated by the trial Court as neither the Medical Officer was served with show-cause notice for giving false evidence nor the Doctor Dildar Hussain who examined the injuries on the person of deceased was examined.

13. Ocular testimonies and medical evidence are not trustworthy, more particularly, by no stretch of imagination the medical evidence may be treated as inspiring confidence. (Circumstantial evidence)

14. Tapedar P.W. Changan Lal who prepared the sketch of place of wardat, stated that he was shown the place of wardat by Constable Manzoor, Khaliq and P.W. Karo and Yar Muhammad. In cross-examination, he has stated that when he prepared the sketch of wardat there was no jungle available. The village of Malhar which would be about 8-00 acres away from the place of wardat. He has further stated that he did not notice the wheel marks of donkey cart at the place of incident nor he saw the blood stain at the place of wardat. Statement of Tapedar reveals that either he has prepared the sketch at belated stage or that he did not visit the place of occurrence. The mashir Muhammad Hassan who acted as mashir of injuries, place of occurrence, dead body, inquest report, recovery of clothes of dead body, memo of arrest, memo of recovery of hatchet, stated in cross-examination that he accompanied the police in Government mobile upto the place of wardat and stated that he had shown the place of wardat to the police. Police did not secure anything from place of wardat and that whenever the police required, he was called along with co-mashir Yar Muhammad and cited them as mashir. Further stated that all along they two mashirs were present along with police and after arrest of accused and recovery of hatchet, they both mashirs came along with police at police station. This piece of evidence of the prosecution shows violation of section 103, Cr.P.C. as admittedly police did not call inhabitant of the locality to act as a mashir of place of occurrence, recovery of crime hatchet, arrest of the accused but whenever need arises police called the mashir Muhammad Hassan to act as a mashir of all the mashirnamas. Point in discussion is answered accordingly. Point No.3.

15. The analysis of the evidence in detail would show that the trial Court was misled in accepting the direct evidence, medical evidence and circumstantial, though the ocular account of both witnesses is in conflict to each other. Medical evidence due to admission of giving false evidence by the medical officer is not believable and was not worthy of credit; the confessional statement has been discarded by the trial court having no legal sanctity. It appears that the trial Court in complete departure to the principle of appraisal of evidence, has drawn conclusion of the evidence which would not be reasonably acceptable in the given facts and caused miscarriage of justice. The conviction awarded to the accused being not based on sounds principles of criminal administration of justice is not sustainable and consequently, the appeal is allowed and the impugned judgment is set aside. The Superintendent Central Prison Hyderabad is directed to release the appellant forthwith, in the instant case, if not required in any other case. HBT/N-11/Sindh Appeal allowed.