PLJ 2024 Cr.C. 873 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ.
versus
STATE and another--Respondents
Crl. A. No. 349 & M.R. No. 25 of 2019, heard on 30.9.2021.
Inadmissible Evidence--
----Each circumstance of such chain must be comprising upon an impeccable event and should not be inadmissible in evidence--The inadmissible evidence invariably breaks chain of incriminating circumstances rendering prosecution case unworthy of any credence--Fact that very oftenly false evidence is created in unseen cases of homicide, thus every component of circumstantial evidence must be scrutinized with utmost circumspective approach.
[P. 880] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 164(3)--Power to record statements and confession--The perusal of Rules and Orders of Lahore High Court, Volume-III, Chapter-13 unfolds that precautions required to be taken mainly are focused upon ensuring that confessional statement is made voluntarily by accused and is not an outcome of duress, compulsion, threat, promise or inducement--Inducement or promise gives rise to temptation of avoiding conviction prompting accused to make a confession--A threat places a frail nerved accused under fear, compelling him to admit his guilt so as to avoid some further adverse consequences--A wade through pronouncements of August Apex Court unfolds that prime consideration for admissibility of a judicial confession is its voluntary nature and secondly truth it contains--A slightest doubt about judicial confession having been made involuntarily is destined to discard it. [Pp. 881 & 882] B
Confessional Statement--
----The importance of voluntary nature of confession stands reflected from legislative wisdom behind Articles 37, 38 & 39 of Qanun-e-Shahadat Order, 1984--It evinces from above quoted Articles that confession of accused either made due to inducement, threat, promise or made in police custody is inadmissible. [P. 882] C
1992 SCMR 1983.
Confessional Statement--
----It can be extracted from above that an act or statement will be voluntary, if it is done or made with a specific intention, means, design and is not culminating from duress, inducement, threat, promise or pressure--The voluntary nature of a confession can be extracted from multiple factors, foremost out of them are (i) timespan elapsed between arrest of accused and recording of confession; (ii) seriousness with which accused was apprised about his right of not making such confession and its subsequent implications against him; (iii) precautions observed by magistrate who recorded such confession; (iv) assurance given to accused that he will not be handed over to police even if he does not make such confession; (v) satisfaction of magistrate about physical torture and (vi) reason put forth by accused for admitting his guilt through proposed confession etc--Certain shortcomings, adversely reflecting upon voluntary nature of canvassed confession of appellant Firstly, it is observed that confession of appellant was recorded on 8th day of his arrest and during this period he was twice remanded to police custody by magistrate--The question arises that if at all confession was outcome of free will and voice of conscience, why it was not made on previous two dates--The delay in making confession is generally considered a ground adversely effecting its voluntary nature. [P. 883] D
NLR 1991 SD 427.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 164--Confessional statement--The confession under Section 164, Cr.P.C. is not legally required to be made on oath as is evident from Section 5 of Oath Act, 1873 and co-accused is striped from his right to cross-examine maker of such statement and is left strayed to extract truth out of it--Due to same reason, confession of a co-accused is generally regarded as weak type of incriminating circumstance and solely cannot be used for awarding conviction to another accused--In course of judicial precedents, a rule of prudence evolved under which it is always insisted that even evidence of an accomplice, who is granted pardon under Chapter XXIV of Code of Criminal Procedure, 1898 attains acceptance, if it is strongly corroborated from independent source of unimpeachable nature on all material points--The raison d’etre behind above rule can be summed up that it is not a risk free bargain to bank upon deposition of a self-confessed criminal to hand down guilty verdict to another accused--Such confessing accused can often be unscrupulous so as to falsely saddle another accused with main allegation of committing crime in order to save his skin from rigors of his own misdeed. [P. 884] E
PLD 1949 Privy Council 90.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 39 & 40--Admissibility of evidence--A confession/admission of guilt made in custody of a police officer is inadmissible under Article 39 of Qanun-e-Shahadat Order, 1984--Article 40 is an exception and it makes admissible a fact information of which is given by an accused even in police custody--The exception so postulated in Article 40 is subject to limitation that information so furnished by an accused in police custody leads to discovery of a fact which is perceivable through human senses and previously not within knowledge of anyone--Any other interpretation of Article 40 is fallacious and incorrect owing to lack of legal knowledge and is to be discarded--Admittedly, in pursuance of alleged disclosure and pointation of appellants no fact surfaced on record, not within knowledge of police and PWs. [P. 891] F
2010 SCMR 1604.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 34 & 201--Qatl-e-amd--Conviction and sentence--Challenge to--Confessional statement--Admissibility of evidence--We have no doubt in our minds that afore-mentioned circumstance was inadmissible but still was brought on record--Court was compelled to observe here that a heavy duty is cast upon Court while recording evidence whereby Presiding Officer is under legal obligation to bring on record only admissible evidence--The judge must be vigilant and at his toes while deciding question of admissibility and to discard each fact which is inadmissible in reference to some express provision of law--On occasions, inadmissible evidence is brought on record by trial judge while dispensing to decide objection pertaining to its admissibility--Such approach frustrates legislative intent regarding admissibility of a circumstance and reflects adversely upon legal acumen of Judge--Court intend to lay emphasis that fate of a case is to be decided while having resort to due process of law and thereby only legally admissible evidence is to be brought on file--The recovery of Chhuri and report of PFSA whereby blood stains were described as human origin but found it to be of no help to otherwise frail prosecution case--Firstly rest of prosecution evidence is discarded by us and solely recovery cannot be used as foundation for raising superstructure of conviction--Secondly, no effort was made to prove that recovered weapon was containing blood of none other than two slain ladies--In this regard, through tool of DNA, prosecution could establish that blade of recovered weapon was containing blood of both victims--Two innocent ladies were butchered during this incident but still prosecution was obliged to impeccably prove guilt of both appellants--Unfortunately, prosecution failed to discharge its burden to connect appellants with crime beyond speck of any doubt--Criminal appeal accepted. [P. 892] G, H & I
Mr. Hamid Rasheed Gondal, Advocate for Appellants.
Ch. Yasir Mehmood Chatha, Advocate for Complainant.
Mr. Sajjad Hussain Bhatti, DPG for State.
Date of hearing: 30.9.2021.
Judgment
Ch. Abdul Aziz, J.--Adnan Pervaiz alias Munno & Shaukat Mehmood (appellants) along with another co-accused, namely Anjum Pervaiz involved in case FIR No. 385/2017 dated 30.12.2017 registered under Sections 302,201 & 34, PPC at Police Station Jatli, were tried by learned Additional Sessions Judge, Gujjar Khan. Trial Court vide judgment dated 16.03.2019 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms:-
(1) Adnan Pervaiz (appellant)
(i) Under Section 302(b) read with Section 34, PPC to suffer death sentence on two counts as Ta’zir for qatl-i-amd of Zainab Bibi & Natasha Fiaz. He was also directed to pay compensation of Rs. 300,000/-under Section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in default whereof to further undergo six months S.I.
(ii) Under Section 201 read with Section 34, PPC to suffer rigorous imprisonment for 7-years with fine of Rs. 50,000/-and in default whereof to further undergo six months S.I.
(2) Shaukat Mehmood (appellant)
(i) Under Section 302 (b), PPC to suffer death sentence on two counts as Ta’zir for qatl-i-amd of Zainab Bibi & Natasha Fiaz. He was also directed to pay compensation of Rs. 300,000/-under Section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in default whereof to further undergo six months S.I.
(ii) Under Section 201 read with Section 34, PPC to suffer rigorous imprisonment for 07-years with fine of Rs. 50,000/-and in default whereof to further undergo six months S.I.”
Challenging their conviction and sentence, Adnan Pervaiz alias Munno & Shaukat Mehmood (appellants) filed Criminal Appeal
No. 349 of 2019, whereas trial Court sent reference under Section 374, Cr.P.C. which was numbered as Murder Reference No. 25 of 2019, for the confirmation or otherwise of death sentence awarded to them. Both these matters are being disposed of through this single judgment.
2. Succinctly stated the facts of the prosecution case as disclosed by Noor Hussain (PW.11) in FIR (Exh.PA) are to the effect that he was resident of Mastala Post Office Ahdi, Tehsil Gujjar Khan and was serving in FWO Islamabad; that on 30.12.2017 at about 2:30 p.m., he was present in his house due to the demise of his mother; that he received information that his mother-in-law Mst. Zainab Bibi and sister-in-law Natasha Fiaz had been done to death in their house; that after the receipt of such information, he along with Allah Ditta and Tahir Sultan reached the house of his in-laws and saw the dead bodies of Zainab Bibi and Natasha Bibi smeared with blood; that many residents of the locality were present there and that Mst.Zainab Bibi and Natasha Fiaz were slain by unknown accused for unknown reasons.
3. After the receipt of information about the occurrence, Muhammad Sharif SI (PW.15) reached the spot where Noor Hussain (PW.11) got recorded his statement (Exh.PL), which was sent to the police station through Imtiaz Ahmed 2101/C for the registration of formal FIR. He then inspected the dead bodies, prepared inquest reports (Exh.PG & Exh.PK), applications for their post-mortem examination (Exh.PF & Exh.PJ) and sent the dead bodies to THQ Hospital Gujjar Khan for autopsy. From the spot, he also took into possession blood stained earth vide memos Exh.PT & Exh.PU. He also secured pair of lady shoes (P.14/1-2) vide memo. Exh.PN. He arrested accused Adnan Pervaiz, Anjum Pervaiz and Shaukat Mehmood on 14.01.2018, who during investigation made disclosure about the commission of crime and subsequently on their pointation and disclosure got identified the place of incident separately through Exh.PO, Exh.PP and Exh.PQ. During interrogation on 17.01.2018, Adnan Pervaiz (appellant) made disclosure and in pursuance thereof led to the recovery of Chhuri (P.1) which was taken into possession vide memo. Exh.PV.
The matter was also investigated by Naseer-ud-Din SI (PW.16). During investigation, on 21.09.2018 Adnan Pervaiz (appellant) also got recovered burnt clothes (P.16) from the land owned by Muhammad Ishfaq, which were taken into possession vide memo. Exh.PW. On 22.01.2018, accused persons were produced in the Court of Area Magistrate before whom Shaukat Mehmood (appellant) made statement under Section 164, Cr.P.C. After complying with legal formalities, report under Section 173, Cr.P.C. was got submitted in the Court.
4. Prosecution in order to prove its case against the appellants produced sixteen PWs, which include Dr. Faiza Malik (PW.6) who on 03.12.2017 conducted autopsy of both the deceased, namely Natasha & Zaniab Bibi and issued their Postmortem Reports No. 75/2017 & 76/2017 (Exh.PE & Exh.PH), Muhammad Imran (PW.7) and Fiaz Ahmed (PW.8) who narrated about the evidence of Wajtakar/coming across and Muhammad Sharif SI (PW.15) & Naseer-ud-Din SI (PW.16) who conducted the investigation of this case. The remaining PWs, more or less were formal in nature.
5. After conclusion of prosecution evidence, the learned trial Court examined the appellants under Section 342, Cr.P.C. who refuted the allegations levelled against them and pleaded their innocence. The appellants neither made statement under Section 340 (2), Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-sated, hence the instant criminal appeal and murder reference.
6. It is contended by learned counsel for the appellants that as per admitted facts, the actual murder occurrence went unwitnessed and the case was registered against unknown persons; that later on the appellants were implicated in the case merely on the basis of doubts and suspicions; that the appellants were handed down guilty verdict on circumstantial evidence, the major portion of which was comprising upon inadmissible evidence, one of which was pointation of the place of occurrence without discovery of any new fact; that two witnesses, namely, Muhammad Imran and Fiaz Ahmed who deposed about an event, which was in the nature of Wajtakar, are chance witnesses; that even otherwise, their police statements were recorded much after the registration of FIR but were made to look as if recorded on the first day of registration of FIR; that the most important chain of circumstantial evidence is the statement under Section 164, Cr.P.C. of appellant Shaukat Mehmood but due to numerous legal shortcomings it is destined to be discarded from consideration and that the chain of circumstantial evidence is incomplete but still appellants were handed down guilty verdict. With these submissions, it was urged that conviction awarded to the appellants be set-aside.
7. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the appellants were found guilty of committing the murder of two innocent ladies; that admittedly, the appellants are not nominated in the crime report but this aspect goes in favour of the prosecution case and reflects the bona fide of complainant because if he had any reason to falsely implicate them in the case, he should have nominated them in FIR; that the guilt of appellants is established from the unbroken chain of circumstantial evidence, which includes the evidence of Wajtakar and inculpatory judicial confession of appellant Shaukat Mehmood; that since 164, Cr.P.C. statement of Shaukat Mehmood was recorded in consonance with legal requirement, thus is alone sufficient for upholding the judgment of conviction; that the recovery of weapon of offence effected from Adnan Pervez appellant is another factor, which pointed towards his guilt; that the appellant Shaukat Mehmood also got recovered articles removed from the crime scene, which provides corroboration to the case of prosecution and that since the guilt of the appellants was established beyond shred of any doubt, thus conviction awarded to them calls for no interference.
8. Arguments heard. Record perused.
9. The case finds its roots in an incident having taken place on 30.12.2017 in which two ladies, namely, Zainab Bibi and Natasha Fiaz were murdered with extreme brutality through infliction of successive sharp-edged traumas. The crime scene is the place of abode of both the slain ladies and the actual homicide incident went unwitnessed. The case of prosecution is in everlasting silence as to how the veil was lifted from the tragedy but complainant Noor Hussain (PW.11) reached the spot after receipt of information of the incident from an undisclosed source and reported it to police through his statement (Exh.PL) at about 5:45 p.m. Till that time since the identity of the assassins was not known as the incident remained unwitnessed, thus in the FIR (Exh.PA) none was arrayed as accused not even as suspect.
10. A wade through the record reveals that the case of prosecution hinges upon circumstantial evidence, the main component of which is the exculpatory retracted judicial confession of Shaukat Mehmood (appellant), the evidence of coming across/Wajtakar, the pointation of the crime scene made by the appellants, the recovery of blood stained burnt clothes and weapon of offence effected on the pointation of Adnan Parvaiz (appellant). It needs no elaboration that there is no impediment to raise the structure of conviction on the circumstantial evidence if it is compatible with the guilt of the accused and excludes all hypothesis of his innocence. For securing conviction, the incriminating circumstances must be interwoven with each other so as to make an unbroken chain, the one part of which must be touching the corpse and other end the neck of accused. Each circumstance of such chain must be comprising upon an impeccable event and should not be inadmissible in evidence. The inadmissible evidence invariably breaks the chain of incriminating circumstances rendering the prosecution case unworthy of any credence. We are not oblivious of the fact that very oftenly false evidence is created in unseen cases of homicide, thus every component of circumstantial evidence must be scrutinized with utmost circumspective approach. In the case reported as Laxman Naik v. State of Orisa (AIR 1995 Supreme Court 1387), the Hon’ble Supreme Court of India laid down following principles for appraising the circumstantial evidence:
“According to the standard proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime”.
11. The mainstay of prosecution case is the retracted judicial confession of Shaukat Mehmood (appellant) which on a close look is also found to be exculpatory in nature but was explicitly relied for awarding conviction to both the appellants. The murder incident occurred on 30.12.2017, whereas the appellants were arrested on 14.01.2018 and the statement of Shaukat Mehmood (appellant) was recorded under Section 164, Cr.P.C. on 22.01.2018 by Raja Abdul Hafeez Judicial Magistrate (PW.14). In order to make credible the judicial confession of an accused, it is incumbent upon prosecution to prove during trial that such confession was made voluntarily and contains true account of the crime. Even the plain reading of Section 164 (3), Cr.P.C. unfolds that a legislative emphasis is laid upon a magistrate to ensure that the confession is made voluntarily. Due to this reason, the magistrate is essentially required to give a memorandum at the bottom of the confession about his belief that the accused admitted his guilt voluntarily. For reference sake, the provision of Section 164 (3) along with memorandum is being referred hereunder:
“164. Power to record statements and confessions.
(1)
(3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reasons to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:
“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.”
Similarly, the perusal of Rules and Orders of the Lahore High Court, Volume-III, Chapter-13 unfolds that precautions required to be taken mainly are focused upon ensuring that the confessional statement is made voluntarily by the accused and is not an outcome of duress, compulsion, threat, promise or inducement. It needs no emphasis that inducement or promise gives rise to temptation of avoiding conviction prompting the accused to make a confession. Likewise, a threat places a frail nerved accused under fear, compelling him to admit his guilt so as to avoid some further adverse consequences. A wade through the pronouncements of August Apex Court unfolds that prime consideration for the admissibility of a judicial confession is its voluntary nature and secondly the truth it contains. A slightest doubt about the judicial confession having been made involuntarily is destined to discard it. The importance of voluntary nature of confession stands reflected from the legislative wisdom behind Articles 37, 38 & 39 of Qanun-e-Shahadat Order, 1984. It evinces from the above quoted Articles that the confession of accused either made due to inducement, threat, promise or made in police custody is inadmissible. The Hon’ble Supreme Court of Pakistan in case reported as Ch. Muhammad Yaqoob and others v. The State (1992 SCMR 1983) while dilating upon the voluntary nature of a confession observed as under:
“The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same.”
In another case reported as Sh. Muhammad Amjad v. The State (2004 SCJ 33), the Hon’ble Supreme Court of Pakistan while pondering upon the legal worth of a confession held as under:
“In criminal cases great responsibility rests upon the Courts to determine if the confession is voluntary and true or is lacking within the scope of either term “Voluntary” and “True”. If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary. Voluntary and true are two different terms related with confession and each of them has its own significance.”
In the above backdrop, a pressing need is felt by us to embark upon the actual meaning of word “voluntary” which with some change is defined in Section 39 of Pakistan Penal Code, 1860 as “voluntarily” in following manner:
“A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means he knew or had reasons to believe to be likely to cause it.”
The expression “voluntary” is defined in Black’s Law Dictionary Tenth Edition, in more exhaustive and comprehensive manner in following terms:
“(1) Done by design or intention,
(2) Unconstrained by interference; not impelled by outside influence.
(3) without valuable consideration or legal obligation;
(4) Having merely normal consideration.”
It can be extracted from above that an act or statement will be voluntary, if it is done or made with a specific intention, means, design and is not culminating from duress, inducement, threat, promise or pressure. The voluntary nature of a confession can be extracted from multiple factors, foremost out of them are (i) the timespan elapsed between arrest of accused and recording of confession; (ii) the seriousness with which accused was apprised about his right of not making such confession and its subsequent implications against him; (iii) the precautions observed by the magistrate who recorded such confession; (iv) the assurance given to accused that he will not be handed over to police even if he does not make such confession; (v) the satisfaction of the magistrate about physical torture and (vi) the reason put forth by the accused for admitting his guilt through the proposed confession etc. In the instant case, we have noticed certain shortcomings, adversely reflecting upon the voluntary nature of the canvassed confession of Shaukat Mehmood (appellant) Firstly, it is observed that the confession of Shaukat Mehmood (appellant) was recorded on the 8th day of his arrest and during this period he was twice remanded to police custody by the learned magistrate. The question arises that if at all the confession was outcome of free will and voice of conscience, why it was not made on the previous two dates. The delay in making confession is generally considered a ground adversely effecting its voluntary nature. If any reference in this regard is needed that can be made to the case reported as Arif Nawaz Khan and three others v. The State (NLR 1991 SD 427), wherein a Full Bench of Hon’ble Federal Shariat Court observed as under:
“In the instant case, it is established from the record that the accused Arif Nawaz was arrested on 08.08.1988 and twice the remand was taken for three days each and on the last day when the second remand was going to expire the accused is alleged to have been produced before P.W.3, a First Class Magistrate the confession, as such, was recorded after about 6 days of arrest on 15.08.1988. The delay in recording the confession remains unexplained. It cannot, of certain, be said that the confession, if at all made by the accused, was voluntary.”
Secondly, we have noted from Exh.PX that on 22.01.2018 Shaukat Mehmood (appellant) was ordered to be lodged in judicial custody but after recording his confession under Section 164, Cr.P.C. We want to reiterate here that according to the instructions/guidelines contained in Rules and Orders of the Lahore High Court Lahore, Volume-III, Chapter-13, the magistrate is bound to apprise the accused that if he makes the confession or not, he will not be remanded to police custody. The afore-mentioned requisite intimation to accused is not a simple formality, rather is a compulsory requirement and is aimed at ensuring that the confession is made voluntarily. Due to the foregoing reason, the accused is to be informed with all seriousness about his entitlement to be lodged in judicial lock-up even if he refuses to make a confession. In the instant case, we have noticed from Exh.PX that till recording of 164, Cr.P.C. statement, no order for lodging Shaukat Mehmood in judicial custody was passed. Plain review of these proceedings unfolds that firstly the confession of Shaukat Mehmood was recorded and subsequent thereto order for lodging him in judicial lock-up was passed. This is not a remote possibility that order to lodge the accused in jail was delayed so as to use it as hanging sword, for ensuring to get a desired statement. In the given circumstances, unambiguously Shaukat Mehmood (appellant) must be having lurking fear in his mind that he may be handed over to the police in case does not make confession under Section 164, Cr.P.C. This aspect alone is sufficient to expose the frailty of acclaimed voluntary nature of the confession under consideration. Thirdly, we took note of the fact that while recording the confession of Shaukat Mehmood (appellant) neither any question about police torture was asked nor he was physically examined by the Magistrate (PW.14). This omission gains importance when seen in the context that Shaukat Mehmood (appellant) took specific defence that he was coerced by torture to make such confession. Fourthly, it is evident from the proceedings (Ex.PY/1-3) as well as the deposition of Raja Abdul Hafeez Judicial Magistrate (PW-14) that the appellant was not even asked about the date of his actual arrest and the time he had spent in the police custody. These questions were essentially required to be asked in accordance with Rules and Orders of the Lahore High Court, Volume III, Chapter 13 from the accused making confession under Section 164, Cr.P.C. It needs no emphasis that a confession recorded under Section 164, Cr.P.C. entails adverse consequences for the accused and at trial can even be used for awarding conviction. The Magistrate must understand and bear in mind the legal sensitivity of a confession under Section 164, Cr.P.C., thus record it in absolute observance
and conformity with the guidelines laid down in this regard so as to ensure that it was made with free will and not due to some external pressure. The Hon’ble Supreme Court of Pakistan in the case of Azeem Khan and another v. Mujahid Khan and others (PLJ 2016 Supreme Court 123) in reference to the omission of Magistrate regarding a question about the duration of accused in police custody observed as under:
“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.”
Similarly, the failure of Magistrate to physically examine the accused is also a factor which lessens the acclaimed voluntary nature of the confession. In a recent pronouncement reported as Muhammad Bilal and another v. The State (2021 SCMR 1039) the observation of Hon’ble Supreme Court of Pakistan on account of its relevancy to the proposition in hand is mentioned hereunder:
“It has also been admitted by the I.O. and the Judicial Magistrate that the appellant was not medically examined after completion of three days police custody. In these circumstances, it cannot be said with certainty the alleged confession was made voluntarily. This has time and again withheld by this Court that confession should be voluntary, based on true facts and corroborated by other evidence available on record.”
Similarly, upon failure of Magistrate to enquire from the accused about physical torture, the Hon’ble Supreme Court of Pakistan of Mst. Miran and another v. Abdur Rehman and another (2004 SCJ 646) discarded the confession so recorded.
12. In a wrestle with the proposition in hand, we have noticed that in his confessional statement Shaukat Mehmood (appellant) attributed to Adnan Pervaiz (appellant) not only the design to commit the crime but also burdened him with the allegation of inflicting all Chhuri blows to both the deceased. Though, Shaukat Mehmood admitted his presence at the spot but attributed it to the threats of co-convict Adnan Pervaiz (appellant) and canvassed himself as a reluctant participant by claiming to have not caused even a single scratch to either of the two deceased. In fact, Shaukat Mehmood (appellant) made an endeavour to exonerate himself from the charge of murder by minimizing his own role in killing both the deceased. The aforementioned features inexorably make the confession of Shaukat Mehmood as exculpatory in nature. The question of paramount importance arises that to what extent an exculpatory retracted confession can be used against a co-accused and in what circumstances. According to Article 43 of the Qanun-e-Shahadat Order, 1984, a proved confession can be used against its maker as a proof and against other accused as circumstantial evidence only. For the clarity of proposition, we consider it appropriate to reproduce in verbatim Article 43, which is as under:
“43. Consideration of proved confession affecting person making it and others jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such person is proved.
(a) such confession shall be proof against the persons; making it; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person.”
The language of Article 43 is explicit in sense and leaves no room for discussion that confession of a co-accused is not an independent evidence rather is a circumstance, which if fits into the chain of other incriminating events can be used for awarding conviction. Even otherwise, the confession of an accused is to be used only as a circumstantial evidence against co-accused after subjecting it to a strict and cautious appraisal. The confession under Section 164, Cr.P.C. is not legally required to be made on oath as is evident from Section 5 of the Oath Act, 1873 and the co-accused is striped from his right to cross-examine the maker of such statement and is left strayed to extract truth out of it. Due to same reason, the confession of a co-accused is generally regarded as weak type of incriminating circumstance and solely cannot be used for awarding conviction to another accused. In the course of judicial precedents, a rule of prudence evolved under which it is always insisted that even the evidence of an accomplice, who is granted pardon under Chapter XXIV of the Code of Criminal Procedure, 1898 attains acceptance, if it is strongly corroborated from independent source of unimpeachable nature on all material points. The raison d’etre behind above rule can be summed up that it is not a risk free bargain to bank upon the deposition of a self-confessed criminal to hand down guilty verdict to another accused. Such confessing accused can often be unscrupulous so as to falsely saddle another accused with the main allegation of committing the crime in order to save his skin from the rigors of his own misdeed. The Privy Council in case reported as Bhuboni Sahu v. The King (PLD 1949 Privy Council 90) while dilating upon the admissibility of a confession against co-accused gave following observation:
“Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence then the evidence of an approval which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to prove. Clearly, there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Their lordships think that the view which has prevailed in most of the High Courts in India, namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct.”
13. The confession of Shaukat Mehmood (appellant) pertains to offence of qatl-i-amd, which is placed in Chapter XVI of the Pakistan Penal Code, 1860 and through necessary implication of Section 338-F, the provision of this Chapter along with matters ancillary or akin thereto are to be interpreted in accordance with the injunctions of Islam as laid down in Holy Quran and Sunnah. In Islamic Jurisprudence, there is a consensus that since after making confession about the commission of crime, an accused becomes fasiq, thus his deposition loses purity and cannot solely be used for the conviction of another accused. The confession of co-accused is never considered credible enough to attain acceptance against some other delinquent and can only be used against its maker. In the absence of any other proof, such confession cannot be used for awarding conviction to a co-accused. The view so formed by us is fortified by the following sayings of Holy Prophet ﷺ
“عن ابي هريره و زيد بن خالد انهما قالا ان رجلا من الاعراب آتى رسول الله صلى الله عليه وسلم فقال يا رسول الله ! انشدك الله الا قضيت لى بكتاب الله فقال الخصم الآخر وهو أفقه سنه: نعم فاقض بيننا بكتاب الله و أء زن لي -فقال رسول الله صلى الله عليه وسلم قال: ان ابني هذا سنسكسان عسيفا على هذا فزني بامراته واني اخبرت ان على ابنى اد الرجم فا فتيت سنه بمانه شاه ووليدة -فسالت اهل العلم فاخبروني انما على ابنى جلد مائة وتغريب عام و ان على امراة هذا الرجم فقال رسول ال صل الله عليه وسلم والذي نفسي بيده لا قضين بينكما بكتاب الله الوليدة والغنم رد و علی ابنک جلد مائه و تغريب عام و اغد يا انيس ! الى امرأة” هذا فان اعترفت فارجها”
Translation: It has been related on the authority of Abu Hurarirah and Zaid Ibn-e-Khalid that while they were with the Holy Prophet, a man stood up and said (to the Prophet), “I beseech you by Allah that you should judge as according to Allah’s laws. Then the man’s opponent who was wiser than him, got up saying, (to Allah’s Apostle), judge us according to Allah’s laws kindly allow (to speak).” The Prophet said, “Speak” He said, “This my son was a labourer working for this man and he committed an illegal sexual intercourse with his wife, and I gave one hundred sheep and a slave as a ransom for my son’s sin. Then asked a learned man about this case and he informed me that my son should receive one hundred lashes and be exiled for one year, and the man’s wife should be stoned to death.” The Prophet said, “By Him in whose Hand my soul is, I will judge you according to the laws of Allah. Your one hundred sheep and the slave are to be returned to you, and your son has to receive one hundred lashes and be exiled for O Unais’ Go to the wife of this man, and if she confessed, then stone her to death. “Unais went to her and she confessed. He then stoned her to death. It is important to note that the Prophet one year announced the sentence for the male culprit and ordered Unais to go to the woman and stone her to death if she confessed.”
On the same point, another Hadith of Holy Prophet ﷺ is being quoted hereunder with profound respect:
عن سعد الساعي على انبى صلى الله عليه وسلم ان رجلا اتاه اثر عنده اله زنى يامراة أسماها له فبعث رسول الله صل الله عليه وسلم إلى المراة فسئا لها عن داك فانكرت ان تكون زنت فجلده الحد وتركها۔
Translation: “It has been related on the authority of Sa’d al-Sa’idi that a man came to the Prophet and confessed that he had committed adultery with a woman named by him. The Prophet sent for the woman and enquired from her about it. She denied the allegation. The Prophet punished the male but acquitted the female.” (Ibn Qudamah Al-Mughni, printed Riadh, Vol: VIII, page 193. (This Hadith is stated in Al Sunan, Abu Da’ud.¹
14. It is appropriate to reiterate here that a confession under Section 164, Cr.P.C. attains acceptance, if it is made voluntarily and contains nothing but truth. The truth of a confession is to be adjudged while analyzing it in reference to the other prosecution evidence. Admittedly, the contents of confession so made by Shaukat Mehmood are contradicted from the statements of other prosecution witnesses as well as from record. Firstly, it is observed that Muhammad Imran and Fiaz Ahmed (PW.7 & PW.8) claimed to have witnessed both the appellants at 2:30 p.m. near the well of Sultan on the eventful day while having a blood stained Chhuri. In the 164, Cr.P.C. statement Shaukat Mehmood was specific in saying that after making an exit from the house of deceased, he bisected himself from Adnan Pervaiz, thus apparently there was no occasion for Muhammad Imran and Fiaz Ahmed (PW.7 & PW.8) to have seen them together in altogether different vicinity. Secondly, Shaukat Mehmood stated nothing in his confession about burning of blood stained clothes. Even otherwise, though as per prosecution case, on 21.01.2018 Adnan Pervaiz (appellant) got recovered half burnt blood stained clothes (P.16) through Exh.PW but these were never forwarded to PFSA for tracing the blood stains and ascertaining their origin. This fact was even candidly conceded by Naseer-ud-Din SI (PW.16) during his cross-examination. Thirdly, it is noticed by us that 164, Cr.P.C. statement of Shaukat Mehmood (appellant) was recorded on 22.01.2018 but nothing as such was mentioned by Naseer-ud-Din SI (PW.16) in the case diary of that day as is evident from the following extract:
“I had not mentioned anywhere in police record dated 22.01.2018 that I took the accused to learned Area Magistrate for judicial confession.”
Fourthly, it is noticed that though the appellants were nominated in the case on the very first day of its registration i.e. 30.12.2017 through the supplementary statement of complainant but still Call Data Record of 14-mobile phone numbers was requisitioned by Muhammad Sharif SI (PW.15) through written application dated 14.01.2018. The question arises that if at all veil was lifted from the identity of the actual culprits on 30.12.2017 then why CDR of these 14-mobile phones was procured. The things get more complex for the prosecution when seen in the context that Naseer-ud-Din SI (PW.16) admitted that on the eventful day Natasha (deceased) through CDR of her mobile phone was found in contact through four calls with SIM No. 0333-5416897 but no effort was made to ascertain the identity of such this person. Fifthly, Naseer-ud-Din SI (PW.16) also admitted unambiguously that on the day of occurrence the presence of Adnan Pervaiz through his CDR was not found in the village, where the homicide incident occurred. Sixthly, the story of crime put forth in the confession of Shaukat Mehmood (appellant) appears to be self-contradictory in nature. It emerges from 164, Cr.P.C. statement that Adnan Pervaiz (appellant) tried to engage Shaukat Mehmood as hired assassin and though Shaukat Mehmood went to the crime scene but claimed to have done so under the fear of Adnan Pervaiz. Last but not the least, motive behind the crime was canvassed as refusal of Natasha (deceased) to tie matrimonial knot with Adnan Pervaiz which irked him. Regarding this motive, no evidence whatsoever was led either during investigation or at trial stage, thus it remained unproved.
All the afore-mentioned factors left the confession of Shaukat Mehmood (appellant) as uncorroborated, thus we are forced to hold that prosecution failed to prove that 164, Cr.P.C. statement contains nothing but truth.
15. We have also meticulously examined the evidence of Wajtakar/coming across furnished by Muhammad Imran and Fiaz Ahmed (PW.7 & PW.8). According to these witnesses, they saw Adnan Pervaiz and Shaukat (appellants) on 30.12.2017 at about 2:30 p.m. near the well of Sultan with stain of blood on their clothes and a blood stained Chhuri in hand. As per admitted fact, it was a deserted place and both the witnesses failed to offer any specific reason of their presence, thus by all means they are chance witnesses. No doubt the testimony of a chance witness can meet acceptance provided his acclaimed presence is followed by a confidence inspiring and reasonable explanation. In arriving at such conclusion, we are enlightened from the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Hon’ble Supreme Court of Pakistan while dealing with a case of chance witness observed as under:
“A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.”
16. As per prosecution case, both the appellants led the police and PWs to the place of homicide and admitted their guilt. This aspect is canvassed as a strong circumstance, corroborating the judicial confession of Shaukat Mehmood and its admissibility is urged under Article of 40 of Qanun-e-Shahadat Order, 1984. Before dilating upon the admissibility of afore-mentioned circumstance, we consider it appropriate to mention here that a confession/admission of guilt made in the custody of a police officer is inadmissible under Article 39 of Qanun-e-Shahadat Order, 1984. Article 40 is an exception and it makes admissible a fact the information of which is given by an accused even in the police custody. The exception so postulated in Article 40 is subject to limitation that the information so furnished by an accused in the police custody leads to discovery of a fact which is perceivable through human senses and previously not within the knowledge of anyone. Any other interpretation of Article 40 is fallacious and incorrect owing to lack of legal knowledge and is to be discarded. Admittedly, in pursuance of alleged disclosure and pointation of the appellants no fact surfaced on record, not within the knowledge of police and PWs. In this regard, reliance is placed upon the case reported as Mst. Aksar Jan and others v. Muhammad Daud and others (2010 SCMR 1604) wherein the Hon’ble Supreme Court of Pakistan held as under:
“Thus, in order to apply Article 40 of the Order, the Prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was derived from the information given by the accused. Reference is also invited to Jafar Husain v. State of Maharashtra (AIR 1970 Supreme Court 1934).”
We have no doubt in our minds that the afore-mentioned circumstance was inadmissible but still was brought on record. We are compelled to observe here that a heavy duty is cast upon the Court while recording evidence whereby the Presiding Officer is under legal obligation to bring on record only the admissible evidence. The judge must be vigilant and at his toes while deciding the question of admissibility and to discard each fact which is inadmissible in reference to some express provision of law. On occasions, inadmissible evidence is brought on record by the trial judge while dispensing to decide the objection pertaining to its admissibility. Such approach frustrates the legislative intent regarding the admissibility of a circumstance and reflects adversely upon the legal acumen of the learned judge. We intend to lay emphasis that fate of a case is to be decided while having resort to the due process of law and thereby only the legally admissible evidence is to be brought on file.
17. We have also considered the recovery of Chhuri (P.15) and report of PFSA (Exh.PHH) whereby the blood stains were described as human origin but found it to be of no help to the otherwise frail prosecution case. In this regard, firstly we are of the view that rest of the prosecution evidence is discarded by us and solely the recovery cannot be used as foundation for raising the superstructure of conviction. Secondly, no effort was made to prove that the recovered weapon was containing the blood of none other than the two slain ladies. In this regard, through the tool of DNA, the prosecution could establish that the blade of recovered weapon was containing the blood of both the victims.
18. We are mindful of the fact that two innocent ladies were butchered during this incident but still the prosecution was obliged to impeccably prove the guilt of both the appellants. Unfortunately, the prosecution failed to discharge its burden to connect the appellants with the crime beyond speck of any doubt. For the reasons mentioned hereinabove, we accept Criminal Appeal No. 349 of 2019 filed by Adnan Pervaiz alias Munno & Shaukat Mehmood (appellants) while extending benefit of doubt in their favour and the stand acquitted of the charge and in consequence whereof their conviction and sentence is set-aside. They are in custody; be released forthwith if not required to be detained in any other criminal case.
19. Resultantly, Murder Reference No. 25 of 2019 is answered in the NEGATIVE and death sentence awarded to Adnan Pervaiz alias Munno & Shaukat Mehmood (convicts) on both the counts is NOT CONFIRMED.
(A.A.K.) Appeal accepted
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