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Petitioner: Adnan Pervaiz and another VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Ch. Abdul Aziz Title: Adnan Pervaiz and another vs The State and another Case No.: Criminal Appeal No. 349 and Murder Reference No. 25 of 2019 Date of Judgment:2021-09-30 Reported As: 2022 YLR 2259, PLJ 2024 Cr.C. 873 Result: Appeal allowed
JUDGMENT
JUDGMENT CH. ABDUL AZIZ, J. Adnan Pervaiz alias Munno and 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 and 34, P.P.C. 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, P.P.C. to suffer death sentence on two counts as Ta'zir for qatl-i-amd of Zainab Bibi and 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, P.P.C. 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), P.P.C. to suffer death sentence on two counts as Ta'zir for qatl-i-amd of Zainab Bibi and 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, P.P.C. 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 and 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
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2101/C for the registration of formal FIR. He then inspected the clean bodies, prepared inquest reports (Exh.PG and xh.PK), applications for their post-mortem examination (Exh.PF and 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 and Exh.PU. He also secured pair of lady shoes (P.14/1-2) vide memo Exh.PN. He arrested accussed 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.P0, 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 and Zaniab Bibi and issued their Postmortem Reports Nos. 75/2017 and 76/2017 (Exh.PE and 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) and 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 or 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.
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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 ease 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 and 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.
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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 (PLD 2003 SC 704), 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 3 others v. The State (PLD 1991 FSC 53), 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
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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 (2016 SCMR 274) 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 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…
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