2006 P Cr. L J 998

[Peshawar]

Before TalaatQayum Qureshi and Ijaz-ul-Hassan Khan, JJ

ISMAIL—-Appellant

Versus

THE STATE and another—-Respondents

Criminal Appeal No.937 of 2004, decided on 7thFebruary, 2006.

(a) Penal Code (XLV of 1860)—

—-S. 302(b)—Appreciation of evidence—Matter wasreported to the police with promptitude which had ruled out element offabrication—Oral testimony of complainant and his son remained sufficientlyconsistent—No material discrepancy could be brought on record during fairlylengthy cross-examination—Testimony was fully supported by Medico-legal andpost-mortem report in addition to the recovery of blood stained earth, bloodstained stick, spade and ‘Chadir’ from the spot and positive report of ForensicScience Laboratory—Accused was real nephew of complainant and no previousill-will or enmity existed between accused and complainant for his falseimplication—Prosecution case was further supported by confession of accusedvoluntarily made before Judicial Magistrate who appeared as prosecution witnessand confirmed its voluntariness—No material was available to suggest thataccused had been coerced or induced to make confessional statement—Factsbrought out in judicial confession found corroboration in materialcircumstances—Details of event given by accused in confessional statementwere strong circumstances to establish that confession was true andvoluntary—Said confessional statement was not only voluntary, but also rangtrue and fitted in circumstances of the case and was fully corroborated byrecovery of blood stained earth, stick, spade and medical evidence—No reasonwas found to disbelieve said confessional statement of accused as no illegalityhad been committed by Magistrate while recording the same—Trial Court hadrecorded a well reasoned judgment based on correct appreciation of evidence onrecord which could not be interfered with by High Court in appeal—Appealhaving been found destitute of force, was dismissed and impugned judgment wasmaintained.

Khalid Javed and another v. The State 2003 SCMR 1419;Khuda Bux and another v. The Crown 1969 SCMR 390; Ashique Hussain Chandio v.The State PLD 1992 Kar. 5 and Asfandyar Wall v. The State PLD 1978 Pesh. 38ref.

(b) Qanun-e-Shahadat (10 of 1984)—

—-Art. 37—Penal Code (XLV of 1860),S.302(b)—Confession—If confession was not confidence inspiring, use of thesame to convict a person without independent corroboration was not proper andlegal and the Courts generally refrain from passing the conviction solely onretracted confession and while following the rule of abundant caution, look tocorroboration in material particulars to ensure safe administration ofjustice—Court, if was satisfied that confessional statement though retractedwas true and voluntary, same could safely be made basis ofconviction—Retraction per se was not always a valid ground to discardjudicial confession unless and until it was proved that it was obtained throughcoercion, threat, pressure or inducement.

Mian Mohibullah Kakakhel for Appellant.

Abdur Raul Gandapur for the State.

Complainant in person.

Date of hearing: 7th February, 2006.

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.—The appellant,namely, Ismail son of Tahir Jan, aged about 18/19 years, resident of DhalBehzadi, District Kohat, was tried by learned Additional Sessions Judge, Kohat,on the allegation of having, on 8-12-2002, at `Peshin Vela’, in abandoned houseof complainant Zahir Shah, in the precinct of Police Station Sadar, Kohat,committed murder of his aunt Mst. Rehman Bibi, wife of Zahir. Shah complainant,with sharp-edged weapon. At the conclusion of trial, vide judgment, dated3-11-2004, appellant was convicted under section 302(b), P.P.C. and sentencedto suffer life imprisonment with fine of Rs.1,00,000 and in default thereof tosuffer S.I. for six months. The amount of fine, on realization was directed tobe paid to legal heirs of the deceased, as compensation under section 144-A,Cr.P.C. Benefit of section 382-B, Cr.P.C. was, however, extended to theappellant.

2. The appellant, feeling aggrieved, has filedCriminal Appeal No.937 of 2004, challenging his conviction and sentence.

3. The crime in question is alleged to have takenplace on the date, time and the place of occurrence, mentioned above and hereport about it was lodged the same day at 4-30 p.m., by complainant ZahirShah, at Liaqat Memorial Hospital, Kohat and it was recorded by A.S.-I.Muhammad Zaman (P.W.5).

4. Complainant Zahir Shah is driver and plies wagonon Kohat-Peshawar Road. On the fateful day, complainant had taken passengers toPeshawar. At `Peshin Vela’ he .was informed on telephone by his relative TahirJan that complainant’s wife Mst. Rehman Bibi has been murdered and the deadbody has been removed to hospital. The complainant hurriedly rushed to thehospital and found his wife lying murdered. On inquiry, he was informed thatdeceased has been done to death by Ismail nephew of the complainant.

5. Preceding registration of case, A.S.-I. MuhammadZaman (P.W.5), prepared injury sheet Exh. P. W.2/ 1 and inquest Exh. P. W.2/2of the deceased and referred the dead body to mortuary for post-mortemexamination under the escort of H.C. Muhammad Sadiq (P.W.4). On receipt of copyof F.I.R., S.-1. Muhammad Hussain (P.W.12), proceeded to the spot and preparedsite plan Exh.P.B. at the instance of complainant Zahir Shah. He took intopossession blood-stained earth, printed `Chadir’, stick and a spade, allstained with blood, vide recovery memo. Exh.P.C. He also took into possessionlast-worn clothes of the deceased, brought from the hospital, vide recoverymemo. Exh.P.C./1.

The clothes were sent to F.S.L. Peshawar. The report(Exh.P.Z.) was placed on the file. The accused was arrested on 12-12-2002. Onthe following day i.e. 13-12-2002, he was produced in the Court of Mr.Inamullah Wazir, (P.W.8), Civil Judge/Judicial Magistrate, Kohat who recordedhis confessional statement. After completion of investigation, InspectorMushtaq Hussain (P. W. 9) submitted . challan against the accused in Court toface trial.

6. The prosecution, in order to prove the chargeagainst the appellant produced in all 13 of whom, complainant Zahir Shah(P.W.10) reiterated the contents of the F.I.R. and nominated his nephew Ismailfor the murder of his wife Mst. Rehman Bibi. Abdul Hamid (P. W.11) son of thecomplainant furnished eye-witness account of the incident.

7. Dr. Rifat Qureshi (P.W.13), Medical Officer,K.D.A., Kohat on 8-12-2003 at 3-30 p.m., conducted post-mortem examination ofthe deceased and noted a number of wounds on the forehead, top of the skull,right side of the head, below the chin and on left cheek, besides smallabrasions and superficial wounds on neck and left shoulder, caused by tip ofsome sharp object.

Probable time between injury and death was found 10to 15 minutes and between death and post-mortem 3 to 4 hours.

8. The appellant on the conclusion of prosecutionevidence, was examined under section 342, Cr.P.C. He, in his statement, deniedthe charges and professed innocence. He did not opt to lead any evidence in hisdefence or appear himself as his own witness in terms of section 340(2),Cr.P.C.

9. The learned trial Judge, after hearing the partiesand appraising the evidence, convicted and sentenced the appellant as mentionedand detailed above.

10. After having read the prosecution evidence onrecord, Mian Mohibulalh Kakakhel, Advocate, representing the appellant,submitted that the case against the appellant is totally of no evidence and theconclusions of the learned Court below on all crucial features of the case areimaginary and speculative rather than on solid tenable evidence. The learnedcounsel contended that it is a laboured judgment, which is reflective of notonly non-reading and misreading of evidence brought on record, but the samecannot stand the test of judicial scrutiny as the same is fanciful, artificialand against the weight of record. According to the learned counsel, the prosecutionstory, as given in the F.I.R., is unnatural and if Abdul Hamid (P.W.11) waspresent at the spot, he would have taken positive steps to intervene and savethe life of his mother Mst. Rehman Bibi deceased. The learned counsel alsoquestioned the legality of confessional statement and attempted to argue thatsame was outcome of third degree method. As regards the medical evidence, thelearned counsel contended that the same does not support the prosecution in anymanner because in the facts and circumstances of the present case, thestatement of doctor only indicates the time, nature and seat of the injuries orat the most it may suggest the weapon used during the occurrence but in no waycan point out the real culprit. The learned counsel further contended thatF.I.R. was lodged after delay which shows that P.Ws. were not sure about theculprit and there was consultation and meditation. Concluding the arguments,the learned counsel contended that from whatever angle the prosecution evidenceis looked at, it does not inspire confidence and, as such, the charge againstthe appellant cannot be held to have been proved beyond shadow of reasonabledoubt. The learned counsel referred to the following authorities in support ofhis contentions:

Khalid Javed and another v. The State 2003 SCMR 1419,Khuda Bux and another v. The Crown 1969 SCMR 390, Ashique Hussain Chandio v.The State PLD 1992 Kar. 5 and Asfandyar Wali v. The State PLD 1978 Pesh. 38.

11. Mr. Abdur Rauf Gandapur, Advocate, appearing onbehalf of the State, controverted the contentions so raised and argued that itwas a case of promptly lodged F.I.R.; that P.Ws. had no enmity whatsoever, withthe appellant so there was no question of his false implication and that theconclusion drawn and the reasons advanced by the trial Court show fairevaluation of evidence, which is in accordance with the settled principles incriminal cases.

12. We have heard at length the arguments of learnedcounsel for the parties and have also perused the record with their.assistance. The prosecution in support of its case against the appellant hasrelied upon ocular account of the incident, confession of the appellant,recoveries from the spot and medical evidence. P.W. Zahir Shah complainantreiterated the contents of the F.I.R. and charged his nephew Ismail appellantfor the murder of his wife. P.W. Abdul Hamid deposed that on the day ofoccurrence he was present in the house along with his mother, sister andbrothers, when the accused came and knocked at the door. On opening the door,his mother asked the accused as to why he had come. The accused and his motherwent to the adjacent house of the complainant, where altercation took place, inconsequence whereof, accused hit his mother with the spade. She raised hue andcry. He went there and saw the accused standing with the spade in his hand. Onseeing him, accused made good his escape. It was `Peshin Vela’. They removedthe deceased to the hospital. Tahir Jan, father of the accused, informed thecomplainant regarding the occurrence.

13. The occurrence having taken place on 8-12-2002 at`Peshin A Vela’, the matter was reported to the police in Liaqat MemorialHospital, Kohat with promptitude which rules out the element of fabrication.The oral testimony of complainant and his son remained sufficiently consistent.No material discrepancy could be brought on record during fairly lengthycross-examination. The testimony is fully supported by the medico-legal andpost-mortem report in addition to the recovery of blood-stained earth,blood-stained stick, spade and `Chadir’ from the spot and positive report(Exh.P.Z.) of F.S.L. Peshawar. It may be noticed here that appellant is realnephew of the complainant. There is no previous ill-will or enmity between theaccused and the complainant for false implication.

14. The prosecution case is further supported by theconfession of appellant voluntarily made before the Judicial Magistrate, whoappeared as P.W.8 and confirmed its voluntariness. There is no material to suggestthat the appellant has been coerced or induced to make confessional statement.The facts brought out in the judicial confession find corroboration in materialcircumstances. There is no cavil with the proposition that if the confessionwas not confidence inspiring, the use of same to convict a person withoutindependent corroboration is not proper and legal and the Courts generallyrefrain from passing the conclusion solely on retracted confession and whilefollowing the rule of abundant caution look to corroboration in materialparticulars to ensure safe administration of justice. The Court, if issatisfied, that the confessional statement though retracted was true andvoluntary, the same can safely be made basis of conviction. Retraction per se,is not always a valid ground to discard judicial confession unless and until itis proved that it was obtained through coercion, threat, pressure orinducement. The details of event given by the appellant in confessionalstatement are strong circumstances to establish that confession was true andvoluntary. This confessional statement is not only voluntary but also ringstrue and fits in the circumstances of the case and fully corroborated by therecovery of blood-stained earth, stick, spade and medical evidence furnished byDr. Rifat Qureshi. There is no reason to disbelieve this confession statementof the accused as no illegality has been committed by Magistrate whilerecording the same. We are fully satisfied that the fear of police was totallyremoved from the mind of the accused and the confession made by him was freefrom extraneous influence, such as the threat, promise or inducement.

15. In view of the above discussion, we find that thetrial Court has recorded a well-reasoned judgment, based on correct’appreciation of evidence on record and cannot be allowed to be interfered withby this Court. The appeal having been found destitute of force is dismissed andthe impugned judgment is maintained.

H.B.T./68/P???????????????????????????????????????????????????????????????????????????????????????? Appealdismissed.