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: 20th April 2016
Date of Announcement: 27th 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