IN THE HIGH COURT OF SINDH, AT KARACHI

Cr. Appeal No.89 of 2004

Date of hearing 12.02.2009.

MRS. QAISER IQBAL, J. Appellant Muhammad Rafiq S/O Khani Zaman has resorted to file appeal under Section 410 Cr.P.C. assailing the judgment dated 2.2.2004 passed by IInd Additional Sessions Judge Karachi West in Sessions Case No. 724/1997 Crime No. 239/1997 under section 302 PPC registered at Police Station TPX, Karachi, he was convicted and sentenced under section 302 PPC(b) PPC to life imprisonment and to pay fine of Rs. 50,000/- to the legal heirs of deceased, in case of default in payment of fine to suffer simple imprisonment for six month with benefit of Section 382-B Cr.P.C.

Precisely the facts leading to the case are as per First Information Report that on 29.9.2001 it has been reported complainant Abdul Razzak brother of deceased Mst. Perveen that her sister after divorced from her first husband was residing separately and was also serving as nurse in Malkani Hospital. About 8/9 months ago deceased intimated the complainant about marriage with accused Rafique on which complainant become annoyed and directed her not to come to his house. However, on 29.9.1997 a phone was received by him at this house that Mst. Parveen has been murdered therefore complainant went at police station and lodged the FIR against unknown culprits.

After completing the investigation police arrested the appellant and submitted the challan before the trial Court.

At the trial charge exhibit 1 was read over to the appellant to which he pleaded not guilty and claimed to be tried.

Prosecution in support of the case examined P.W.1 Abdul Razzak exhibit 3, P.W.2 Muhammad Ramzan Awan exhibit 4, P.W.3 Gul Muhammad Afridi exhibit 5, P.W.4 Talib Khan exhibit 6, P.W.5 Naseeb Zada exhibit 7, P.W.6 Noor Bux exhibit 8, P.W.7 Habibullah exhibit 13, P.W.8 DSP Zain Ali Sheikh exhibit 15, P.W.9 ASIP Nisar Mehmood exhibit 17, P.W.10 ASIP Syed Awnar Hussain exhibit 18, P.W.11 Dr. Huma Ahmed exhibit 23, P.W.12 Dr. Muhammad Muneer exhibit 25, P.W.13 Inspector Muhammad Razzak exhibit 27 and closed the side of the evidence.

Appellant in his statement recorded under Section 342 Cr.P.C denied the allegation levelled by the prosecution against him and pleaded innocent.

At the trial charge was framed and read over to the appellants against which they pleaded not guilty and claimed to be tried.

Upon appraisal of the evidence recorded by the trial Court the appellant was convicted as stated above, he has resorted to file the Criminal Appeal.

On the point of homicidal death of Mst. Perveen, prosecution has relied on testimony of Dr. Huma Ahmed, deposed on 29.09.1997, the dead body of a female was brought by SI Rahmatullah of Police Station TPX, Karachi, which was identified by neighbourers, on examination found 9 surface wound and injuries. On internal examination upon removing scalp multiple fracture were seen of fronter bone and occipital bone. On opening cranil cavity, it contained dark cotted blood of mussels and vessels of the neck are normal, on opening the thoricic cavity no free fluid or blood are seen in the chest cavity. Look normal incise all the four chambers of heart are empties, abdomen was distended 5 c.m above the umblicus. Uterus is about the size of 32 weeks gestational age on cut section inside the uterus shows a dead female fetus was found.

The doctor opined on the basis of external and internal examination that the deceased expired due to cardio respiratory failure, resulting from head injuries caused by hard and blunt substances. The time between death and postmortem was about 12 to 18 hour. The above fact surfaced in the Postmortem Report No.369/1997 (Ex.24), which has been endorsed by women Medicolegal Officer.

It has been arguing by the learned counsel for the Appellant that the doctor has conducted postmortem of an unknown deceased as neighbourers, who brought the dead body to the hospital namely Gul Muhammad Afridi and Noor Muhammad Shah, were not in a position to disclose the name of the deceased. In cross-examination, the doctor has admitted that it was wrongly mentioned in Column No.23 that time between death and postmortem was 12 to 18 hours. If the above testimony is kept in juxtaposition, inspection memo of dead body as well as place of occurrence and seizure, Ex. 5/A, inquest report, Ex.5/B. The description and the name of deceased does not transpire except that she was a lady doctor. The mystery has been resolved from FIR bearing No.239/1997, the crime was set on motion, on the complaint of Abdul Razzak, brother of the deceased, who disclosed that his sister deceased Mst. Perveen was nurse by profession and was done to death. Upon receiving such information, he lodged report. The dead body was shifted from the place of occurrence by SIP Rahmatullah in presence of witnesses namely Gul Muhammad Afridi and Noor Muhammad Shah.

Materially, the link created from evidence adduced by prosecution creates a specific conclusion that Mst. Perveen had met a homicidal death on account of injuries sustained by her.

Learned State counsel has highlighted following features arising out of the evidence produced by the prosecution against the Appellant:-

1. Confession of the Appellant recorded by DSP Zain Ali Shaikh.
2. Recovery of crime weapon comprising of a pipe.
3. Bloodstained clothes of the accused secured after occurrence.
4. Medical report depicting that the deceased was pregnant at the time of commission of her murder.

Adverting to the point of confessional statement of the Appellant recorded by DSP Zain Ali Shaikh (Ex.15) depicts that the Appellant had produced before him by the Investigating Officer Razzak as he was prepared to give his confessional statement. He explained to the Appellant that his statement will be used during the trial. The Appellant stated that he was fallen in love with one girl namely Mst. Perveen, she has contracted marriage with him secretly. After marriage, differences arose between them, the Appellant caused pipe blow on her head. She died due to injuries, in routine the Appellant went to his duty in Pearl continental Hotel. The deceased had chewed middle finger of the Appellant at the time of incident of his right hand. He had produced such statement (Ex.16). In cross-examination he has stated that the confessional statement was recorded under his instructions after three days of the arrest of the accused, in presence of Investigating Officer and the Reader of DSP, such statement was recorded. From the statement of the Appellant under Section 342 Cr.P.C, it is revealed that the question pertaining to the confessional statement was not put to him by the learned trial Court.

Learned counsel for the State has contended that the confessional statement was recorded by the Deputy Superintendent of Police without complying the legal formalities. This fact was borne out from his statement he had recorded. Confession of the accused in presence of his Reader as well as Investigating Officer admittedly. In absence of direct evidence, confessional statement would not bear strong requires deep scrutiny, which cannot be acted upon, as it was recorded after three days of the occurrence. It is settled law that the delay of over 24 hours would be fatal for the acceptance of the confessional statement in law if the prosecution had failed to explain the delay in recording the statement as held in the case of Naqibullah vs. The State (PLD 1978 SC. 21) and Khan Muhammad vs. the State (1981 SCMR 597). The accused remained in police custody before and after recording of his confessional statement after about three days, and the District Police had taken an hour to record the confessional statement of the convict.

The above pleas were taken into consideration in the case of Muhammad Pervez vs. The State (2007 SCMR 670), as well as in the case of Muhammad Yousuf vs. Muhammad Idrees & others (2004 MLD Lahore 910), where all the four ingredients essential to believe an extra judicial confession are setup. Firstly, that the extra judicial confession was in fact made, secondly, that was voluntarily made, thirdly, that it was truly made and fourthly that the motivating force behind it was proved, because an accused cannot be believed to open his mouth with regard to the performance of his criminal acts unless and until there is a reason behind it. This view is based upon the dictum laid down in the case of Sarfraz Khan vs. The State (1996 SCMR 188).

The learned trial Court while convicting the Appellant has placed reliance on the confessional statement in absence of direct evidence. Prolong detention of the Appellant in police custody from the face of it casted shadow, as the Appellant was not remanded to judicial custody, after his confessional statement was recorded. Deputy Superintendent of Police was influenced by extraneous material available on record, omitted to perform his duties in utter disregard to the norms prescribed under Chapter 13, Volume 3 of the High Court Rules and Orders for discharging his solemn duties. The learned trial Court ought to have recorded the question of admissibility of confessional statement in the statement recorded under Section 342 Cr.P.C, no opportunity was afforded, it cannot be conveniently held in the circumstances of the case if kept in juxtaposition to the statement of the Appellant, by affording to rebut evidence levelled, by the prosecution against him.

In the case of Khalid Javed and another vs. the State (2003 SCMR 1419), the proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them and then examine the statement of the accused under Section 342 Cr.P.C, the statement under Section 340 (2) and defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under Section 342 Cr.P.C is exculpatory, then he must be acquitted. If the statement under Section 342 Cr.P.C believed as a whole, constitutes some offence punishable under the Code/law then the accused should be convicted for that offence only. In case of counter version, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factor favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question viz. is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case. If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly.

On the basis of above rule based upon the principle laid down by the Apex Court in the case of Ashiq Hussain alias Muhammad Ashraf vs. The State (PLD 1994 SC. 879), direct ocular account is not available. The confessional statement was liable to be recorded as early as possible in one of the case reported as Syed Sharifuddin Pirzada vs. Sohbat Khan & 3 others (PLD 1972 SC. 363). The full bench of the High Court of Balouchistan observed that no doubt confessions obtained after a long period of detention in police custody have rightly been looked upon with suspicion and that casts a duty on the Court to scan the confession and other evidence deeper and to look for any other evidence which may taint the confession itself, but surely a short period of detention in police custody for 24 hours preceding the recording of confession would not make it inadmissible. The next important question, which the Court is required to satisfy, is whether a true confessional statement has been recorded. Unfortunately, no question was put to the Appellant in his statement recorded under Section 342 Cr.P.C, therefore, allegations levelled by the prosecution could not be rebutted. It is well settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted can in law validly form sole basis of his confession, if the Court is satisfied and believes that it is true and voluntary and was not obtained by torture coercion or inducement. The Appellant in his statement on oath stated that he was subjected to severe beating by police, his hands were tied and so much so his signatures were obtained on blank paper. Surprisingly remand order was obtained by Investigating Officer from concerned Magistrate, the Appellant was not produced for the purpose of recording his confessional statement, whereas a different forum was adopted for such recourse no explanation has been furnished.

Adverting to the crime weapon used in the commission of murder comprising of iron pipe, secured under the beneath of PIDC Bridge by the Investigating Officer, which was wiped out with shalwar and towel both these articles were secured in presence of Gul Muhammad Afridi and Noor Muhammad Shah. P.W. Gul Muhammad Afridi deposed that the Appellant accompanied police party while in custody produced towel and a Shalwar of white colour underneath the PIDC Bridge from deep garbage, which was secured under mashirnama as Ex. 5/C while P.W Talib Khan and Naseebzada are mashirs of recovery of iron pipe used in the commission of crime Ex. 6/A. According to Talib Khan, the iron pipe had bloodstains while co-mashir Naseebzada deposed that iron pipe produced in Court was not in bloodstained when secured by the police, it was bloodstained. This fact was not disclosed in his statement under Section 164 Cr.P.C. P.W Naseebzada went on to say that police arrested him alongwith more than forty persons in connection with investigation of the case later released.

The Investigating Officer has admitted that he had recovered towel and shalwar from common place under the bridge, one and half kilometer away from place of incident. The crime weapon was not sent to Chemical Examiner for examination, as it was not stained with blood. The only evidence which has been emphasized by the prosecution is cut on the hand of Appellant as during scuffled the deceased had given a bite on his hand, he was sent for treatment in the Civil Hospital.

P.W Dr. Muhammad Munir had examined the Appellant and stated that probable duration of injury was about 2 to 3 days due to human bite.

Motive behind incident that the deceased was having illicit relationship with one Ali, could not be established as evidence led by the prosecution does not support the alleged motive in the absence of direct or indirect evidence. The testimony of the Complainant brother of the deceased is hearsay as he was not an eyewitness. He was supposed to disclose the names of those persons from whom he had received information about occurrence as well as alleged motive.

The FIR is normally considered as corner stone of prosecution case unless it is created by some malafide intention, or a wrong version of the Complainant was recorded by the Investigating Agency.

In a blind murder, where no direct ocular evidence is available reappraisal of evidence is necessary at the time of postmortem, the doctor ought to have determined the blood group of the deceased from chemical analyzer. So far as recovery of bloodstained seized clothes of the Appellant are concerned, the bloodstained clothes could not be matched with blood group of the deceased, thus ample evidence was not adduced by the prosecution to create a link in a case of circumstantial evidence where each piece of chain is required to be connected in or strong. The version of the prosecution rings to truth to the effect that the recovery of iron pipe, bloodstained shalwar used for wiping the blood and the mark of bite of the deceased does not create link for coming in irresistible conclusion as the motive is shrouded in mystery.

The basic principle of law is that the conviction must be based on evidence beyond any shadow of doubt. This principle is enshrined in the Hadith of Prophet Muhammad (peace be upon him) because damage caused from erroneous sentence is irreversible. It is better to acquit guilty persons that to punish an innocent one had been proclaimed by the Prophet of Islam, which became the guiding principle for the safe administration of justice. Reliance has been placed upon the case of The State vs. Tariq Mahmood (1987 P.Cr.L.J 2173), in which undisputed Hadith has been relied upon, which is produced herein below:-

For the foregoing reasons, I do not uphold the conviction awarded to the Appellant, which is hereby set aside. He is acquitted from the charges levelled against him, directed to be released forthwith if not required in any other custody case.

Cr. Appeal No.89/2004 stands allowed in the above terms.

JUDGE

MUBASHIR