-Extra judicial confession was recorded by I.O. in presence of PW and police personnel when they were under arrest is nullity in eye of law--Recovery of certain articles are result of conjectures and surmises-

 PLJ 2021 SC (Cr.C.) 203

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302--Qatl-i-Amd--Extra judicial confession--No direct evidence is available which connects appellants--Extra judicial confession was recorded by I.O. in presence of PW and police personnel when they were under arrest is nullity in eye of law--Recovery of certain articles are result of conjectures and surmises--Only provisional external examination of dead body of deceased was conducted without any postmortem report--Occurrence took place in month of May, whereas finding of doctor qua time, and cause of death do not commensurate keeping in view condition of dead body--Accused was acquitted.                         [Pp. 206 & 207] A, B, C & D

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302--Qatl-i-Amd--Post-mortem report--Finding of medical officer qua cause of death only from external observation has no legal sanctity.                                                        [P. 207] C

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302--Qatl-i-Amd--Post mortem report--Finding qua cause of death, time of death and manner of death cannot be substantiated without post mortem examination.             [P. 207] C

Mr. Ahsan Rafiq Rana, ASC for Petitioners.

Mr. Walayat, Additional P.G. Balochistan for State.

Date of hearing: 25.11.2020.

 PLJ 2021 SC (Cr.C.) 203
[Appellate Jurisdiction]
Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ.
GUL MUHAMMAD and another--Petitioners
versus
STATE through Prosecutor-General Balochistan--Respondent
Crl. P. No. 27-Q of 2018, decided on 25.11.2020.
(Against the order dated 20.03.2018 passed by High Court
of Balochistan, Sibi Bench at Quetta in Criminal Jail
Appeal No. 18 of 2015)

Order

Sayyed Mazahar Ali Akbar Naqvi, J.--The petitioners have invoked the jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment dated 20.03.2018 passed by learned single bench of High Court of Balochistan, Sibi Bench at Quetta in Criminal Jail Appeal No. 18/2015 with a prayer to set-aside the conviction awarded to the petitioners in the interest of safe administration of criminal justice.

2. The petitioners were allegedly saddled with the responsibility of the murder of Muhammad Judial son of the complainant while committing his murder by means of throttling, asphyxia, respiratory arrest against motive to take away motorcycle of the deceased. The petitioner called him on the eve of Eid, mixed some intoxication in the soft drink, then took him to Saim Shakh where he was murdered and dead body was thrown into Saim Shakh. On the statement of the father of the deceased namely Abdul Wahid, a case bearing FIR No. 28/2014 dated 15.05.2014 offence under Section 302/34, P.P.C. registered with Police Station Shaheed Malik Muhammad Ali, District Jafarabad. During course of investigation carried out by the local police, the petitioners were found involved in the crime alleged against their consequently their names were placed in column No. 03 of the report under Section 173, Cr.P.C. The challan of the case was sent to the Court of learned Illaqa Magistrate where the matter was referred to the Court of learned Sessions Judge in terms of Section 190(2), Cr.P.C. On receipt of the challan under Section 173, Cr.P.C., the learned trial Court framed charge which was read-over to the petitioners to which they pleaded not guilty hence claimed trial. The prosecution in order to establish the prosecution case led evidence of seven (07) prosecution witnesses. After conclusion of the prosecution evidence, the accused persons were examined under Section 342, Cr.P.C. Accused persons however denied to appear on oath under Section 340(2), Cr.P.C., they even opted not to produce any defence. Learned trial Court after conclusion of the trial, found the accusation against the petitioners proved while holding them guilty under Section 302(b)/34, P.P.C. As a consequence, accused Gul Muhammad son of Shah Mir and Ghous Bux son of Arz Muhammad were convicted under Section 302(b)/34, P.P.C. and were sentenced to suffer life imprisonment as Tazir each, with a further direction to pay Rs.1,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of non-payment of said amount, further they were to undergo simple imprisonment for six months each. The benefit of Section 382-B, Cr.P.C. was also extended to the petitioners. The judgment of the learned trial Court was assailed before the High Court of Balochistan (Sibi Bench) at Quetta through Criminal Jail Appeal No. 18/2015 which was adjudicated and decided by a single bench of High Court. The judgment of the learned trial Court was maintained hence, the instant petition before us.

3. At the very outset, it is argued that the prosecution has failed to adduce any evidence which is sufficient to record conviction in case of capital punishment. Further contends that both the Courts below have not appreciated the evidence in its true legal perspectives. Contends that cases falling within the category of circumstantial evidence should be interlinked so conjointly that it do not miss any link to break the net around the neck of the culprits. Contends that extra judicial confession is always treated as weak evidence and no conviction can be recorded on the basis of said evidence alone. Contends that recoveries of articles are inadmissible evidence and it does not advance the case of the prosecution in any manner. Lastly it is argued that the conviction and sentence recorded by the courts below is not sustainable in the eye of law especially autopsy was not conducted and it is further argued that in absence of any finding qua the cause of death conviction and sentence under Section 302, P.P.C. is squarely against the law.

4. On the other hand, learned Law Officer has controverted the contentions on the ground that the deceased was done to death in a brutal manner. He was last seen by two prosecution witnesses who made their statements before the Court. Further contends that the statement of two witnesses is corroborated by the collection of CDRs of the mobile phone of the petitioners which fully established the presence of the petitioners at the spot. Contends that extra judicial confession is also available on the record which further strengthen the prosecution case. Lastly, it has been contended that recoveries affected from the petitioners are in fact belongings of the deceased, therefore, the prosecution has succeeded to prove the guilt of the petitioners beyond any reasonable doubt hence, the judgments of the courts below are fully justified under the law.

5. We have heard the learned counsel for the parties and gone through the record.

The complainant Abdul Wahid lodged the aforesaid crime report on 15.05.2014 wherein he narrated that son of the complainant was done to death in a brutal manner within the premises of Saim Shakh falling within the boundary of Police Station Shaheed Malik Muhammad Ali, District Jaffarabad. It is the case of prosecution that son of the petitioner Muhammad Judial left his home on 13.05.2014 at 02:00 p.m. on his motorcycle for selling of seeds of chickpeas to Jiyani Dip. Two of the cousins of the deceased namely Muhammad Siddique and Muhammad Qasim came across on the same day at 04:00 p.m., thereafter the cell phone of the deceased was found not responding however on 15.05.2014 at about 01:00 p.m., information was received by the complainant that dead body of an unknown person is found in Saim Shakh water drain. The complainant immediately responded and found that it was dead body of his son. As a consequent, the matter was reported to the police regarding murder of son of complainant against the unknown person. During course of investigation, the petitioners were taken into custody on the basis of extra judicial confession and disclosure of certain articles belonging to the deceased which were allegedly covered by the Investigating Officer during course of investigation. It is the case of prosecution that mobile phone belonging to the petitioners when examined through CDRs, their positioning was found close to the place of occurrence hence, both the courts below found the said evidence available on the record sufficient to found the petitions guilty of the offence and as such, they were convicted as mentioned above. Perusal of the record reveals that the dead body of the unfortunate deceased was recovered from the Saim Nala. The doctor who appeared as PW-06 namely Shoukat Ali gave cause of death throttling, asphyxia, respiratory arrest. It was only external examination of the body wherein it has been mentioned that the body was completely "putrefied very foul smell about two to three days back death". On external examination, it was found that there was no blood stained or bullet wound on the person of the deceased.

6. There are plethora of judgments on the subject that the strength of circumstantial evidence has been highlighted however the basic judgment which leads to the conclusion of all other judgments is mentioned in Siraj v. The Crown (PLD 1956 Federal Court 123) (Appellate jurisdiction). The relevant para is as under:

"The evidence against the appellant was wholly circumstantial, but the learned Judges held that the proved circumstances were incompatible with the innocence of the appellant. It is obvious that if, on the facts, held proved by the High Court, no hypothesis consistent with the innocence of the appellant can be suggested, the conviction must be upheld. If, however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case will to be treated as one of the no evidence and the conviction and the sentence will in that case have to be quashed."

It is admitted fact that there is no direct evidence available on the record which connects the involvement of the petitioners in the occurrence alleged against them even otherwise the learned trial Court has relied upon the extra judicial confession which was recorded by the Investigating officer in the presence of PW-03 Shabir Ahmad 995/C. It is strange enough that the extra judicial confession recorded in the presence of police personnel when they were under arrest and at the time of making statement they ware also in handcuffs. This practice of recording extra judicial confession by the police officials in presence of police officers is nullity in the eye of law and no credence can be extended to this piece of evidence. As far as the recovery of certain articles belonging to the deceased are concerned, it is sufficient to mention that recovery of all those articles are result of conjecture and surmises and without any legal backing hence, do not advance the case of the prosecution especially when all those piece of evidence were denied by the accused while making their statement under Section 342, Cr.P.C. Another very crucial point which requires determination is that only provisional external examination of the dead body of the deceased was conducted without any postmortem report available on the record and it is not even claimed by the prosecution that the autopsy was conducted over the dead body of the deceased. The finding of the Medical Officer qua the cause of death only from external observation has no legal sanctity. It is the requirement of law that the finding qua the cause of death, time of death and manner of death cannot be substantiated without post-mortem examination hence, the observation given by the Medical Officer appearing as PW-06 has no legal sanctity especially when the doctor himself is not certain about the time of death. It is an admitted fact that the occurrence has taken place in the month of May whereas the finding given by the doctor qua time and cause of death do not commensurate keeping in view the condition of dead body as disclosed by the doctor observed during external examination. Possibility cannot be ruled out that the deceased was done to death earlier to the date disclosed in the crime report. Accumulative effect of the whole aspects taken into consideration by us and the law laid down by this Court, we are of the considered view that the case of the prosecution is pregnant with so many doubts which conjointly leads to only one conclusion that the prosecution has miserably failed to establish the case against the petitioners otherwise

to extend benefit of doubt so many circumstances are not required to be brought forth. in this regard, guidance has been sought from a judgment reported as Tariq Pervez v. The State (1995 SCMR 1345).

7. As a consequence, this petition is converted into appeal and same is allowed. The petitioners are ordered to be acquitted of the change in case FIR No. 28/2014 dated 15.05.2014 offence under Section 302/34, P.P.C. registered with Police Station Shaheed Malik Muhammad Ali, District Jaffarabad and they are directed to be released forthwith, if not required in any other case.

(K.Q.B.)          Petition allowed