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Official Citation: 2024 YLR 2247
Court / Jurisdiction: Federal Shariat Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: 1. Khadim Hussain Son Of Mohabat Khan and others vs The State
Ruling Summary: This decision was rendered by the Federal Shariat Court on 2023-12-31, officially reported as 2024 YLR 2247. In this matter between 1. Khadim Hussain Son Of Mohabat Khan and others and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 2247
Court Name: Federal Shariat Court Judge(s): Khadim Hussain M. Shaikh, Iqbal Hameedur Rahman (C.J) Title: 1. Khadim Hussain Son Of Mohabat Khan and others vs The State Case No.:Jail Criminal Appeal No.07-I Of 2022, Criminal Revision No.01-I Of 2023,
JUDGMENT
Reported As: 2024 F.S.C 12, 2024 YLR 2247 Result: Appeal Dismissed Judgment
JUDGMENT KHADIM HUSSAIN M. SHAIKH -J. By means of captioned Jail Criminal Appeal No.07-I of 2022 appellants Khadim Hussain, Abdur Rehman and Naseeb Ullah have called in question Judgment dated 24.11.2022, passed by the learned Additional Sessions Judge-I, Charsadda in Hadd Case No.07/HC of 2019 re-The State Vs. Khadim Hussain and others, emanating from Crime No.388 of 2018 registered at Police Station Sardhari, District Charsadda, for offences under Section 17(4) Harrabah of The Offences Against Property (Enforcement of Hudood) Ordinance, (VI) of 1979, ("The Ordinance") and Section 412 and 202 of The Pakistan Penal Code, 1860 (XLV of 1860) ("The Penal Code") whereby appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman have been convicted and sentenced to life imprisonment as Tazir as per Section 20 of The Ordinance extending them benefit of Section 382-B of The Code of Criminal Procedure, (Act V of 1898) ("The Code"), while through Criminal Revision No.01-I of 2023 re- Waris Khan Vs. Khadim Hussain and others, petitioner/complainant Waris Khan seeks enhancement of the above sentence by converting life imprisonment into death sentence awarded to appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman and whereas by means of Criminal Appeal No.01-I of 2023 re- Waris Khan Vs. Pervaiz etc.appellant/complainant Waris Khan has assailed the acquittal of respondents Pervaiz Khan son of Noor Gul and Nazir Muhammad son of Ghariat Khan. 2. Briefly, the facts of the prosecution case are that on 29.07.2018, complainant Waris Khan reported the incident through mursaila handed down by SI Safdar Rahman at the place of incident, which was later on incorporated in book under Section 154 of The Code as the subject FIR and he has
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mainly stated therein that deceased Kamran was his elder brother while deceased Salman was his nephew. It is stated that his deceased brother Kamran at Asar Vela left his house through motorcycle bearing registration No.F-1215 Mardan for the house of his sister situated at Shahdhand. After offering Maghrib prayer in the house of his sister, Kamran and Salman both proceeded to his village Kalyas on the same motorcycle, thereafter their contact with them disconnected. The complainant party, were in search of them and on the following day they were told that their dead bodies are lying at Speen Irab near Mian Nisatta Road. They went to the pointed place where they found them lying dead with their hands and feet fastened. Initially the case was registered under Section 302 of The Penal Code, but later on through Ex.PW.12/14 (Parwana Ezadgi), Section 302 of The Penal Code was deleted and Section 17 (4) Harrabah alongwith 412/202 of The Penal Code were inserted by the police in the record on 14.08.2018. During the investigation all the five accused were arrested and after usual investigation they were sent up with the challan to face their trial. After completing all the formalities, a formal charge against the accused was framed to which they pleaded not guilty and claimed their trial. 3. In order to prove its case, the prosecution examined in all 13 (thirteen) prosecution witnesses namely Anwar Khan, Farhad Ali, Rizwan Ullah No.1411, Farooq Shah ASI, Saleem Khan ASI, Dr. Waqas MO DHQ Hospital Charsadda, Safdar Rahman SI, Shoukat Khan ASI, Sheraz Firdous, Senior Civil Judge, Iftekhar Khan SI, complainant Waris Khan, Habib ul Hassan retired CIO/SI and Musafar Khan as PWs No.1 to 13 respectively and produced all the necessary documents including mursaila, inquest reports, forensic laboratory reports, postmortem reports, memos of recoveries, memo of securing clothes of deceased Kamran and Salman, arrest cards of the accused, alleged confessional statements of the three appellants namely Khadim Hussain, Naseeb Ullah and Abdur Rehman and then the prosecution closed its side. Whereafter the statements of the appellants under Section 342 of The Code were recorded, wherein they denying the prosecution allegations and recovery of alleged crime weapons, alleged robbed motorcycle, alleged robbed money and alleged robbed two mobile sets etc, professed their innocence. The accused neither examined themselves on oath under Section 340(2) of The Code, nor did they examine any person as their defence witness. At the conclusion of the trial and after hearing the parties' counsel, the learned trial Court has convicted and sentenced the appellants vide impugned judgment dated 24.11.2022 and acquitted the respondents Pervaiz Khan and Nazir Muhammad as discussed in paragraph-I supra. 4. Appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman, being aggrieved by their conviction and sentenced, complainant Waris Khan being dissatisfied with the quantum of sentence of life imprisonment awarded to the above three appellants and the acquittal of respondents Pervaiz Khan and Nazir Muhammad vide impugned judgment dated 24.11.2022 have preferred the subject Criminal Appeals and Criminal Revision. 5. The learned Counsel for the appellant has mainly contended that the names of the appellants are not mentioned in the FIR; that the occurrence in this case is an un-witnessed one and it was after more than 30 days of the occurrence, PWs complainant Waris Khan and one Siraj Khan nominated appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman ("the three appellants") respondents Pervaiz Khan and Nazir Muhammad ("the respondents") as accused in their statements under Section 164 of The Code recorded before Mr. Shaukat Ali, the learned Judicial Magistrate Charsadda on 27.08.2018; that the three empty shells secured from the place of incident were sent alongwith the three 30 bore pistols allegedly secured from the appellants at the time of their arrest on 12.08.2018; that the reports of FSL have no evidentiary value; that there are material contradictions in the evidence led by the prosecution; that the alleged confessional statements were retracted by the three appellants at the earliest moment; that the alleged confessional statements of the three appellants were also not recorded in accordance with the law and well
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settled principles; that the alleged confessional statements of the three appellants were extracted after extending threats to them by keeping their family members including women folk in wrongful restraint and the same were not with the freewill of the three appellants; that no incriminating articles whatsoever were recovered from the three appellants; that after the recording of the alleged judicial confessional statements of the custody of three appellants was handed over to the Investigating Officer; that the three appellants are innocent and they have been falsely implicated in this case by the police to show their efficiency and to release pressure of their high ups on account of the murders of two innocent persons, and, that the prosecution has failed to prove its case against the three appellants beyond reasonable doubt. Learned counsel for the three appellants have prayed that the Criminal Appeal may be allowed, the impugned judgment may be set-aside, and the appellants may be acquitted of the charge. 6. The learned counsel for respondents in appeal against acquittal filed by the complainant has mainly contended that the respondents are innocent and they have not committed the offence alleged against them; that there is absolutely no evidence to connect the said respondents with the alleged crime; that the learned trial Court rightly acquitted them of the charge; that after the acquittal the presumption of double innocence is created in favour of the respondents; and, that the Criminal Acquittal Appeal filed against the said respondents merits no consideration. The learned counsel prays for dismissal of the said criminal acquittal appeal. 7. Learned counsel for the complainant has mainly contended that the prosecution by examining 13 (thirteen) witnesses and producing all the necessary documents including post-mortem reports, memos of place of incident, recovery of three empty shells from the place of incident, recovery of robbed motorcycle, recovery of robbed money, recovery of crime weapons, inquest reports, blood stained material from the place of incident, blood stained clothes of both the deceased, postmortem reports, and Forensic Expert Reports etc, has proved its case against all the five accused beyond any shadow of doubt; and, that the learned trial Court has rightly convicted and sentenced the three appellants, but disputing the sentence of life imprisonment awarded to them and acquittal of the respondents, has prayed for dismissal of the instant appeal of the three appellants, seeks enhancement of the sentence by converting imprisonment of life awarded to them into death penalty and for setting aside of acquittal of the respondents and has prayed for awarding them the similar conviction and sentence as that of the three appellants. 8. The learned State counsel, supporting the impugned judgment dated 24.11.2012, has mainly contended that the learned trial Court after appreciating the evidence, has passed the impugned judgment and he has prayed for dismissal of the captioned Criminal Appeals and the Criminal Revision. 9. We have considered the submissions of learned counsel for the parties and have gone through the evidence brought on the record with their assistance. 10. From a perusal of the record, it would be seen that the names of the three appellants and the respondents do not find place either in the mursaila or in the FIR; the incident involved in this case was an unseen one and no one claimed himself to be an eye witness of the occurrence during the investigation, which has been admitted by PW.12 Investigating Officer, stating that "it is correct that the occurrence is unseen; it is correct that there is no eye witness of the occurrence nor during my investigation any independent eye witness came forward in order to verify the scene of occurrence to be witnessed by them"; the incident was shown to have taken place on 28.07.2018 and report whereof as mursaila was made on 29.07.2018, which was culminated into FIR the same date on 29.07.2018 and it was after more than 30 days of the incident, complainant Waris Khan ("PW.11 the complainant") and PW Siraj Ahmed (not examined) first time named the three appellants and the respondents as accused on the basis of hearsay evidence, stating that they
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were searching for the real accused and now they are fully satisfied that the three appellants and the respondents have committed the offence involved in this case, but they have not shown any source of their satisfaction relating to the involvement of the three appellants and the respondents in the commission of the offence, in their supplementary statements before the police and in their statements under Section 164 of The Code recorded before Mr. Shaukat Ali, the learned Judicial Magistrate Charsadda on 28.08.2018 and there is no plausible explanation for such an inordinate delay of more than 30 days in naming the three appellants and the respondents as accused, which itself robs their credibility in view of well settled law that the credibility of the witness is looked with serious suspicion if his statement during investigation is recorded with delay without offering plausible explanation and there is plethora of judgments of the Superior Courts wherein it has been held that even one or two days unexplained delay in recording the statements of the witnesses without offering explanation would be fatal to the prosecution and testimony of such witnesses cannot be safely relied upon. Reliance in this context is placed on the case of MUHAMMAD ASIF VS. THE STATE [2017 SCMR 486], wherein the Hon'ble Supreme Court of Pakistan has held that: "There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the statements of eye witnesses would be fatal and testimony of such witnesses cannot be safely relied upon". 11. Apparently, the learned trial Court has convicted and sentenced the three appellants in the wake of their nomination as accused in the statements under Section 164 of The Code of PW.11 the complainant and PW Siraj; the alleged confessional statements of the three appellants; medical evidence; alleged recovery of snatched amount; alleged recovery 2023 of crime weapons; alleged recovery of robbed motorcycle; and, the alleged recovery of two mobile sets and FSL reports etc. 12. Patently, the complainant and/or PW Siraj (not examined) were not the eye witness of the occurrence and even no one else appeared and claimed himself to be eye witness of the incident during the course of investigation; PW.11 the complainant did not nominate the three appellants and/or any other person in his report which was handed down as mursaila on 29.07.2018 and it was after more than 30 days of the incident, PW.11 the complainant and PW Siraj Ahmed (not examined) first time named the three appellants and the respondents as accused in their supplementary statements before the police and in their statements under Section 164 of The Code recorded before Mr. Shaukat Ali, the learned Judicial Magistrate Charsadda on 28.08.2018 on the basis of hearsay evidence, stating that they were searching for the real accused and now they are fully satisfied that the three appellants and the respondents have committed the offence involved in this case and there is no plausible explanation for such an inordinate delay of more than 30 days in naming them as accused; when PW.11 the complainant in his evidence has stated that "later on, we came to the village and we were in search of real culprits. After our own satisfaction and being satisfied from the investigation of the police we charged the accused facing trial namely Khadim Hussain, Naseeb Ullah, Abdur Rahman for the murder of the deceased while Pervaiz was charged for abetment", but no source of their satisfaction about the involvement of the three appellants and the respondents has been disclosed by him, which is even admitted by PW.12 Investigating Officer, stating that "it is correct that the source of satisfaction has not been shown by the complainant regarding involvement of the accused in the instant case", and whereas PW Siraj, who having nominated the accused on the basis of hearsay evidence in his statements under Section 161 and 164 of The Code as discussed supra, was to be examined by the prosecution to substantiate such aspects of its case, but instead of examining him, the prosecution abandoned him taking plea that he was mentally sick vide statement dated 02.07.2020 of the prosecutor available at page 128 of the paper book in Jail Criminal Appeal No.07-I of 2022, but no proof about PW Siraj's such ailment was produced and even no prescription and/or a laboratory report etc, which could show such ailment of PW Siraj was brought on the record. In such view of the matter, it
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can safely be said that PW Siraj has not come forward to support the prosecution case and thus an adverse inference in this regard, could legitimately be drawn, under the illustration (g) to article 129 of the Qanuan-e-Shahadat Order, against the prosecution, even otherwise, the statements under Section 164 of The Code purported to be of PW.11 the complainant and PW Siraj (not examined) available at pages 257 and 258 respectively of the paper book contain the same words, phrases, full stops and commas etc, which from its face is outcome of copy paste process; a copy of the order dated 27.08.2018, passed by Mr. Shaukat Ali, the learned Judicial Magistrate-I Shabqasdar/MOD, Charsadda while recording the aforesaid statements under Section 164 of The Code of PW.11 the complainant and PW Siraj (not examined), available at page 259 of the paper book, would reveal that at the time of recording of the said statements the accused were not present; and, no notice or any document for production of the accused before the learned Judicial Magistrate was statements of the PWs before him. In such view of the matter, the subject Section 164 of The Code of PW.11 the complainant and PW Siraj (not examined) dated 27.08.2018 were recorded without giving them any notice despite their being in custody. This fact of their being in custody before recording the alleged statements of PW.11 the complainant and PW Siraj (not examined) was also admitted by PW.12 Investigating Officer, stating that "on 27.08.2018 the statement of complainant Waris Khan and one Siraj was recorded under Section 164 Cr.P.C, it is correct that this statement was recorded after 28/29 days of the occurrence, prior to this statement accused were arrested in the instant case". Sub-section (1-A) of Section 164 of The Code envisages that such statement be recorded by Magistrate in the presence of the accused, and the accused is given an opportunity of cross-examining the witness making the statement. The word presence used in the above provision of law implies actual physical presence of the accused at the time of recording of the statement of witness under Section 164 of The Code by affording him an opportunity of cross-examining the witness; further Section 265-J of The Code provides that the statement of a witness duly recorded under Section 164 of The Code, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes. Moreover, Mr. Shaukat Ali the learned Judicial Magistrate-I Shabqasdar/MOD, Charsadda, before whom, the aforesaid statements under Section 164 of The Code were recorded, was also not examined by the prosecution although his examination was essential so as to substantiate the recording of such statements under Section 164 of The Code of PW.11 the complainant and PW Siraj (not examined) have no value in the eye of law. 13. In so far the alleged confessional statements of the three appellants is concerned, the circumstances under which the same were recorded are to be examined carefully, as for placing reliance on the confessional statement of an accused it is well settled principle of law that it should not only be true, voluntary and believable, but it should be without fear, favour or any inducement and it must be consistent and coherent to the facts and the circumstances of the prosecution case; it is reiterated that the statement of an accused becomes confession only when it is recorded in compliance of provisions of Section 164 and 364 of The Code and necessary precautions and formalities are observed; the conviction can be based on sole confessional statement of accused provided the same is voluntary and true and necessary precautions and formalities are adhered to; the Court can accept a retracted confession after making inquiry into all the material points and surrounding circumstances and satisfying itself fully that the confession cannot be, but be true, and it is corroborated by clear, cogent and independent evidence; the corroboration of the retracted confession with the other pieces of evidence in the case that would establish the link of accused with the commission of offence with which he is charged; mere delay in recording confession, in principle, is not fatal to the prosecution when the confession is proved to
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be true and voluntary, but if there are circumstances which would cast shadow of doubt on its genuineness then it should be excluded from consideration and delay in recording of the judicial confession in such a case would be fatal. 14. From the material brought on the record, it would be seen that the three appellants whose confessional statements were allegedly recorded, by denying the charge framed against them and pleading not guilty, had retracted their alleged confessional statements at the earliest stage of the case, and they in their statements under Section 342 of The Code, have also denied to have confessed their guilt before the learned Judicial Magistrate. 15. Furthermore, the alleged confessional statements of the three appellants produced at Ex.PW.9/1 to Ex.PW.9/9 reveal that the same besides being vague in nature, lacking in material particulars, are also self-destructive and contradictory to the prosecution case; for, the ages of the three appellants are not mentioned therein and even the date and time of the incident was also not disclosed therein, per prosecution while arresting the three appellants, three 30 bore pistols with live cartridges etc were shown to have been recovered from them on 12.08.2018 and then the alleged snatched money of Rs.1850/-, Rs.1300/- and Rs.1300/- was shown to have been recovered from appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman respectively, but the aforesaid alleged recoveries etc have not been mentioned in the alleged confessional statements of the three appellants, although the same were recorded after the aforesaid alleged recoveries. The alleged confessional statements would reveal that the same are more or less in the same sequence, containing almost the same words and phrases, which in ordinary course was not possible unless copied from each other or referred to at the time of their recording. 16. Apparently, PW.9 the learned Judicial Magistrate recorded the alleged confessional statements of the three appellants, in a slipshod manner dealing with this case in a casual and perfunctory way although it involves capital punishment, for, neither repeated time for reflection nor proper warnings as required by sub-section 3 of Section 164 of The Code and in view of well settled principles laid down by the learned Superior Courts for recording confessional statement of an accused, were given to the three appellants before recording their alleged confessional statements, furthermore, PW.12 Investigating Officer produced all the three appellants together before PW.11 the learned Judicial Magistrate for recording their confessional statements and the three certificates under Section 364 of The Code, depict that only 30 (thirty) minutes time was shown to have been given to each appellant, which rendered the alleged confessional statements involuntary and invalid on this score alone. PW.9 the learned Judicial Magistrate, is shown to have recorded their alleged confessional statements each containing three pages by consuming only 15 minutes in each alleged confessional statement as is evident from the certificates appended on the foot of the alleged confessional statements, that being incomprehensible does not appeal; the learned Judicial Magistrate has stated that after recording the alleged confessional statements the custody of the three appellants was handed over to Naib Qasid of the Court for committing their custody to jail and PW.12 Investigating Officer, who was present in the Court, has stated that "I have examined medically the accused facing trial before producing to Judicial Magistrate for recording their confessional statement and before sending them to Jail; I have not medically examined the accused facing trial from doctor; on 15.08.2018 I remained in the court premises for about two to three hours; It is correct that I have produced all the four accused at the same day and time before the judicial magistrate concerned for recording their confessional statement; the witness volunteered that three accused had confessed their guilt while one accused refused to confess his guilt". PW.9 Mr. Sheraz Firdous, the learned Senior Civil Judge Batagram, who recorded the alleged confessional statements of the three appellants, has made material admissions in his evidence by stating that "it is correct that the questions and answers
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in the questionnaire were not in my hand writing. Self-stated that the questions were dictated by me to KPO and thoroughly asked from all the accused and thereafter the same were written by the KPO in my presence; I do not remember that whether the accused were associated by their relatives or any counsel etc; it is correct that a particular question regarding that what are the reasons for wishing to make a confessional statement has not been asked; it is correct that the questions and answers in the questionnaire are in English language; self-stated that as mentioned above the accused was explained in his mother language and thereafter the same were scribed in English; It is correct that the answers given in the questionnaire are in affirmative…
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