HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.108 of 2014

Criminal Appeal No.71 of 2014

Criminal Appeal No.72 of 2014

Confirmation Case No.05 of 2014

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Ghulam Qadir Leghari

J U D G M E N T

Date of Hearing: 20^th April 2016

Date of Announcement: 27^th April, 2016

Appellants: Riaz Khan son of Abdul Rehman through Mr. Qadir Hussain Khan, advocate (in Cr. J.A. No.108/2014)

Attiq-ur-Rehman son of Gohar Rehman through Mr. Jehanzeb Khan, advocate (in Cr. Appeal No.71/2014)

Mst. Naseem alias Amna wife of Arshad Mehmood through Mr. Tariq Bin Nazeer, advocate (in Cr. A. No.72/2014)

Respondent: The State through Mr. Saleem Akhtar Burriro, Additional Prosecutor General Sindh

NAIMATULLAH PHULPOTO, J.— Appellants Atiq-ur-Rehman, Riaz Khan and Mst. Naseem alias Amna were tried by learned III Additional Sessions Judge, Karachi West for offence under Sections 302/34, PPC. Vide judgment dated 10.03.2014, appellants Atiq-ur-Rehman and Riaz Khan were convicted under section 302(a), PPC and sentenced to death and to pay compensation of Rs.200,000/- each to be paid to the legal heirs of the deceased under section 544-A, Cr.PC. In case of default in payment of compensation, they were ordered to suffer S.I. for six months more. Trial Court made reference to this court for confirmation of death sentence. Appellant Mst. Naseem alias Amna was convicted under section 302(b), PPC and sentenced to imprisonment for life. Appellants were extended benefit of section 382-B, Cr.PC. By this judgment, we dispose of aforesaid appeals as well as reference made by the trial Court.

2. Brief facts of the prosecution case are that complainant Mst. Naseem alias Amna lodged F.I.R. on 16.08.2010 at 0700 hours at Police Station Baldia Town, Karachi, alleging therein that she was residing in House No.4720, Sector 15/16, Gulshan-e-Mazdoor, behind Naval Colony, Saeedabad, Karachi. It was rented house. Husband of the complainant had retired from the Army. Complainant married with Arshad Mehmood 7/8 years back with the consent of the parent. Prior to marriage, family of Arshad Mehmood (now deceased) was residing at District Khaniwal, Punjab. There was enmity of Arshad Mehmood over the land with Muhammad Naeem and others. It is further alleged that about 8/9 years back, Naeem and others had committed murder of the brother-in-law of the complainant, namely, Muhammad Aziz. On account of such enmity, deceased shifted to Karachi. It is further alleged that on 16.08.2010, husband of the complainant, namely, Arshad Mehmood was sleeping. All of sudden, four persons having their faces muffled entered into the room through roof. Complainant and her two sons were pushed to another room. Complainant has further stated that two culprits were having pistols in their hands and one was carrying knife/churra. It was 0200 hours. Accused cut throat of her husband. Complainant remained silent due to fear. When the incident was over, complainant came out of the room and raised hue and cry, which attracted the persons of the neighbouring area. They informed the incident to police. Police arrived at the spot. Complainant lodged F.I.R. against four unknown persons. It was recoded by SI Muhammad Hanif Gujar vide Crime No.707/2010 dated 16.08.2010 under sections 302/34 PPC.

3. Investigation Officer inspected the place of wardat in presence of mashirs, prepared such mashirnama, inspected dead body, prepared inquest report and sent dead body for postmortem examination and report. Accused Riaz Khan and Attiq-ur-Rehman were arrested on 31.08.2010. On the pointation of the accused IO recovered sharp-edged weapon on same day from the house of the deceased. During, interrogation by IO Mst. Naseem Amna alias Shakila wife of deceased was also found involved in the commission of offence. She was also arrested on 31.08.2010. During interrogation accused Riaz Khan and Attiq-ur-Rehman prepared to make confession and they were produced before Judicial Magistrate on 06.09.2010 and their confession was recorded. After usual investigation, challan was submitted against accused Attiq-ur-Rehman, Riaz Khan and Mst. Naseem alias Amna u/s 302/34, PPC.

4. Charge was framed against accused by learned IIIrd Additional Sessions Judge, Karachi (West) at Ex.2. Accused Atiq-ur-Rehman, Riaz Khan and Mst. Naseem alias Amna pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined Ishtiaq Ahmed (PW-1), Muhammad Nasir (PW-2), Muhammad Sharif (PW-3), Dr. Jagdesh Kumar (PW-4), Mr. Rasool Bux Meerjat, Judicial Magistrate (PW-5), SIP Muhammad Hanif Gujar (PW-6), PC Muhammad Anwar (PW-7).

6. Trial Court on the conclusion of trial, after hearing learned counsel for the parties and on the assessment of the evidence vide judgment dated 10.03.2014 convicted and sentenced appellants as stated above.

7. Learned counsel for the appellants argued that incident was un-witnessed and F.I.R. was lodged by Mst. Naseem, wife of deceased, who was subsequently joined as accused in this case. It is also argued that judicial confession was recorded after six days of the arrest of accused Riaz Khan and Atiq-ur-Rehman. It is argued that Judicial Magistrate had not observed all mandatory pre-cautions before recording judicial confession of accused, it was not voluntarily. It is argued that recovery of the churry was on joint pointation of accused Riaz Khan and Atiq-ur-Rehman from house of deceased, such piece of evidence was inadmissible in evidence. It is also argued that Muhammad Sharif, mashir of recovery, has not supported the prosecution case and was declared hostile. SI Muhammad Yaseen has not been examined by the prosecution and its benefit would go to the accused. In support of contentions learned counsel for the appellants relied upon the cases of AZEEM KHAN and another versus MUJAHID KHAN and others (2016 SCMR 274) and SHABBIR AHMAD v. The STATE (2011 SCMR 1142).

8. Mr. Muhammad Saleem Buriro, learned Additional Prosecutor General Sindh conceded to the contentions raised by learned counsel for the appellants and admitted that Judicial Magistrate had not recorded confession of accused while observing the precautions, as required by the law. He has also pointed out that evidence of recovery of churry has already been disbelieved by the trial Court. Mr. Buriro did not support the impugned judgment of the trial Court.

9. We have carefully heard the learned counsel for the parties and perused the entire evidence.

10. The facts of this case in detail as well as evidence produced before the trial Court find an elaborate mention in the judgment passed by trial Court dated 10.03.2014, therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

11. The fact that deceased died unnatural death is proved on record. Prosecution examined PW-6 Dr. Jagdesh Kumar (PW-4). He has deposed that on 16.08.2010 he was performing his duty at Civil Hospital, Karachi, in the night shift. A dead body of one Arshad Mehmood, aged about 45 years was brought for conducting postmortem examination and report.

From the external examination of the dead body, MO found following injuries:

Surface wounds and injuries:

1. Incised wound 20cm x 10cm x structure deep, bone cut left side of the neck, only right side muscle and skin attached.

2. Incised wound 8cm x 10 3cm x muscle deep on the right upper arm.

3. Incised wound 25cm x 8cm x bone exposed on left dorsal lumber Ringer latterly.

4. Incised wound 05cm x 1cm x muscle deep, left side of the abdomen posteriorly.

5. Incised wound 06cm x 1.5cm trachea deep on interiorly of neck.

Internal examination:

Head: No significant abnormally detected, only viscera is congested.

Neck: Injuries already mentioned in column 13 in PM report. Left side of the neck structure cut, only right side muscle and skin attached.

Thorax: No any significant abnormally detected, only visceras are congested. (Note: Pieces of lungs and heart sent for chemical examination for detection of poison and drug)

Abdomen: Stomach contain digested food material, small intestines contain semi-digested food particals. Liver spleen, right kidney intact and congested, left kidney damages, cavity full of blood.

Cause of death: In the opinion of Dr. death occurred due to cardio respiratory failure, heamorrhagic shock, acute neck and abdomen injuries, insulting sharp edge weapon. Time between injuries and death within minutes and time between death and postmortem 3 to 5 hours.

12. Learned advocate for the appellants did not dispute unnatural death of the deceased. We, therefore, hold that deceased died by means of sharp edged weapon injuries as described by the medical officer.

13. Undeniably, it was un-witnessed night time incident. Whole prosecution case is based upon the confession of the accused. Perusal of confessions of accused Atiq-ur-Rehman and Riaz Khan, reveal that same are of no legal worth to be relied upon for the reasons that in the questionnaire, mandatory questions were not put to both the appellants like duration in police custody and that accused would not be given back to the police if they would refuse to give statement. From the perusal of evidence of Magistrate, it appears that he had not asked about the period from accused they remained in police custody. Magistrate has stated that he recorded confession of accused Riaz Khan and Attiq-ur-Rehman but it was not made clear to the appellants that whether they make confession or not, they would not be given back in the custody of the police. Honourable Supreme Court in the case of Azeem Khan and another versus Mujahid Khan and others (2016 SCMR 274), has laid down the principle regarding pre-cautions to be observed by the Magistrate for recording judicial confession of an accused. Relevant portion is reproduced as under:-

“15. Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused.

14. Even at the cost of repetition, it will be worthwhile to mention here that Mr. Rasool Bux Mirjat, learned Judicial Magistrate, recorded confession of accused Attiq-ur-Rehman and Riaz Khan on 06.09.2010. He deposed as under:-

“On 06.09.2010 I was posted as Civil Judge and J.M. III Karachi West. On the very day I was on duty in my court and IO moved an application for recording confessional statement of both accused namely Riaz Khan and Atiq ur Rehman and his application was allowed and time of reflection was given to accused for 2 to 3 hours, i.e. from 11:00 a.m. to 01:00 p.m. The custody of accused persons was kept separately from police in my chamber during their time of reflection and after completion of 02 hours I first recorded the statement of accused Atiq ur Rehman u/s 164, Cr.PC. The hand cuffs of accused were removed prior to sending them in my chamber and accused Atiq ur Rehman was asked certain questions mentioned in the statement u/s 164 Cr.PC, who replied that he voluntary wants to confess his offence due to fear of Almighty Allah and stated that he and co accused Riaz Khan had committed murder of Arshad at his home in presence of Mst. Naseem Amina. After recording statement u/s 164 Cr.PC of accused Atiq ur Rehman I obtained his signature and issued certificate with my own hand writing and remanded him to judicial custody. After recording statement of accused Atiq ur Rehman I had recorded statement u/s 164 Cr.PC of accused Riaz Khan he was also given 03 hours reflection time and after 03 hours his statement was recorded as per his consent his hand cuff were also removed and asked that whether he is voluntarily giving his statement who replied in affirmative and stated that due to fear of Almighty Allah he admitting his guilt that he along with co accused Atiq ur Rehman committed murder of of one Arshad in presence of Mst. Naseem Amina @ Shakeela on 16.08.2010 at his house. The accused persons were asked that they are not bound to confess their guilt or get recorded their statements and they were warned that same statement will be used against you as evidence in the trial Court, despite of that they voluntarily given their confessional statements separately. I produced application of IO along with my order as Ex.10/A. I also produced the statement of accused Atiq ur Rehman u/s 164, Cr.PC as Ex.10/B, which is same correct and bear my signature. I also produced statement of Riaz as Ex.10/C, which is same correct and bears my signature. The accused persons present in the Court are same.”

15. In the present case, from the evidence of Civil Judge and Judicial Magistrate it appears that he did not observe the mandatory pre-cautions as laid down in the case of AZEEM KHAN and another vs. MUJAHID KHAN and others (2016 SCMR 274). Fundamental logic behind the same is that, all signs of fear inculcated by the IO in the minds of the accused are to be shaded out. Magistrate in his evidence has stated that he provided 2/3 hours for reflection to the accused, thereafter, he separately recorded confession of the accused. We are of the considered view that sufficient time for reflection was not given to the accused. After expiry of 2/3 hours Magistrate was required to administer the second warning and he had to give assurance to the accused that they were in safe hands, it was not done in this case. Question was not put to the accused that since when they were in the police custody. Assurance was not provided to accused that in case they would not make confession, voluntarily, they would not be handed over back to police. Crime involved capital punishment. Magistrate recorded confession of accused in a very casual manner. Such careless dispensation would considerably diminish the voluntary confession made by accused. The questionnaire would also show that many mandatory questions were not put to the accused. These infirmities are of serious in nature, diminishing the voluntary nature of the confession to naught. In the case of Azeem Khan and another (supra) it has been held as follows:

“19. …………………… The questionnaire would show that many mandatory questions were not put to the appellants like duration of police custody and that they would not be given back to the police whether they record the confession or not. This is another infirmity of a serious nature, diminishing the voluntary nature of the confession to naught.”

Moreover, accused Attiq ur Rehman and Riaz Khan were arrested on 31.08.2010 but their judicial confession was recorded on 06.09.2010. In view of above infirmities we are unable to rely upon such type of judicial confession.

16. Other piece of evidence was recovery of knife/churry on the pointation of accused Atiq ur Rehman and Riaz Khan from the house of the deceased, which had been found by the Chemical Examiner stained with human blood. According the prosecution case, accused during interrogation prepared to give churry used by them in the commission of offence and led the police party and private mashirs Rana Ishtiaq Ahmed and Muhammad Sharif to the house of the deceased on 31.08.2010 at 1920 hours and produced sharp edged weapon. SI Muhammad Yaseen prepared such mashirnama, sealed the same and sent to the chemical examiner. Mashir Muhammad Sharif has deposed that police did not recover churry in his presence and he was declared hostile. Co-mashir Rana Ishtiaq Ahmed has deposed that on 31.08.2010 SIP Muhammad Yaseen brought two accused at Gulistan-e-Mazdoor and he acted as mashir. Both accused went in House No.4720 and took out one churry lying under the wood and handed over to police. We are unable to rely upon evidence of recovery of churry for the reasons that mashir Muhammad Sharif has been declared hostile and SIP Muhammad Yaseen has not been examined by the prosecution on the ground that after retirement he has shifted to some unknown place. So a presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the SIP Muhammad Yaseen been examined in the Court his evidence would have been unfavourable to the prosecution. Reliance is placed upon the case of RIAZ v. The STATE (2010 SCMR 846). Relevant portion is reproduced as under:-

“Having heard the learned counsel for the appellant, the learned Deputy Prosecutor-General, Punjab and perusing the record of the case with their assistance, we find that the statement of the complainant is in conflict with the medical evidence, as according to the complainant the deceased was fired upon from a distance of 3 Karams (16-1/2'), whereas the Medical Officer found a .wad lying near the liver inside the body of the deceased. This aspect of the case clearly shows that the gun was fired from a very close range, probably by putting its barrel on the body of the deceased. Thus, there is conflict between the medical and oral evidence. Furthermore, the statement of the complainant is neither supported nor corroborated by any piece of evidence. One of the eye-witnesses Manzoor Hussain was available in the Court on 29-7-2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution.”

18. Moreover, the recovery of churry was on the joint pointation of accused from the house of the deceased. Recovery of the churry has not been proved by the prosecution by cogent evidence. Rightly reliance has been placed by learned counsel for the appellant on the case of SHABBIR AHMAD versus The STATE (2011 SCMR 1142).

19. Mst. Naseem Amna alias Shakila has been convicted by the trial Court on the basis of confession of co-accused. It is settled law that co-accused cannot be convicted on “sole” basis of confession of fellow accused, much less on retracted confession, if there were no other evidences against the co-accused. No incriminating pieces of evidence have been brought on record against appellant Mst. Naseem Amna alias Shakila.

20. In this case, F.I.R. was lodged by Mst. Naseem alias Amna, thereafter, during investigation complainant has also been joined as accused and trial Court has convicted her in this case. From the facts of the case it appears that evidence which has been brought on the record was insufficient to record the conviction in this case. Finding of the trial Court was based on mere surmises and not on any evidence. There was no cogent evidence available on record to establish charge against the accused. There are several circumstances in the case which create doubt in the prosecution case. In the case of AYUB MASIH versus STATE (PLD 2002 Supreme Court 1048), Honourable Supreme Court of Pakistan has held as under:

“We have come to the irresistible conclusion that the defiling words highlighted in the F.I.R. certainly constitute the offence under S.295‑C, P.P.C. but the prosecution had failed to prove its case against the appellant beyond any reasonable doubt. The appellant is, therefore, entitled to the benefit of doubt which was withheld by the two Courts without the support of sound reasons. It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a 'rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

21. We are, therefore, clearly of the opinion that case against the appellants has not been proved beyond any reasonable doubt. Trial Court has failed to appreciate the evidence according to the settled principles of law, as such, for the above stated reasons, appellants/accused are entitled to the benefit of doubt.

22. In the result, conviction and sentence recorded against the accused by the trial Court are set aside and reference made by learned III Additional Sessions Judge, Karachi (West) is not accepted. The appeals are allowed and the appellants shall be released forthwith unless wanted in connection with some other case.

J U D G E

J U D G E

Gulsher/PS