Full Judgment Text & Judicial Ruling

2017 P Cr. L J Note 154 [Lahore] Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ DAVID MASIH alias FAISAL and others---Appellants Versus The STATE and others---Respondents Criminal Appeals Nos. 402-J and 2743 and Murder Reference No. 595 of 2010, heard on 15th September, 2015. (a) Penal Code (XLV of 1860)--- ----Ss. 302, 392, 412 & 34---Criminal Procedure Code (V of 1898), Ss. 164 (3)----Qanun-e-Shahadat (10 of 1984), Art. 129 (g)----Qatl-i-amd; robbery; dishonestly receiving stolen property in the commission of dacoity; common intention---Appreciation of evidence---Power to record statements and confessions---Court may presume certain facts---Last seen evidence---Extra judicial confession---Judicial confession, retracted---Circumstantial evidence---Requirements---Recovery when inconsequential---Accused persons were alleged to have murdered the deceased and snatched his taxi, mobile along with cash---Trial Court convicted the accused and sentenced one of them to death along with imprisonment and sentenced the other to undergo life imprisonment---No direct evidence and no eye-witnesses regarding alleged snatching of the car and commission of murder existed, and prosecution had based its case on circumstantial evidence on the dimensions of last seen evidence, extra judicial confession, judicial confession and recovery---Plea of last seen advanced by the prosecution was an afterthought and concocted version, which could not be believed---Prosecution had given up one of the two witnesses of last seen, for which adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 was to be drawn against the prosecution---No reason existed to believe that the accused had made extra judicial confession before said witnesses as he was not acquainted with them---Alleged extra judicial confession had been revealed to the Investigating Officer with an inordinate delay of one day---Prosecution had given up one of the two witnesses before whom the extra judicial confession was allegedly made---Prosecution had failed to establish the ingredients of extra judicial confession---Inherent defects in testimony of the prosecution witness had made the extra judicial confession doubtful and fatal for the prosecution---Prosecution witness had made improvements in his version during cross-examination---In order to act upon a judicial confession, the same must be shown to be voluntary and true; and in addition, when the accused retracted from the judicial confession, there should have been general corroboration---Accused, while making the judicial confession, had not been told that nothing would be done to him by the police authorities even if he did not make any confessional statement nor any certificate had been given stating therein the reasons for his satisfaction as to his belief that the confession was voluntary as required under S. 164(3), Cr.P.C.---Element of torture and threat during physical remand on part of the police could not be excluded in said circumstances---No evidence was available to corroborate the retracted judicial confession either with regard to the commission of the crime or with regard to the identity of the accused---Retracted judicial confession could not be said to have been corroborated by the extra judicial confession by the same accused---Recoveries of gold ring was of no avail as the complainant had not mentioned in his complaint that the ring had been removed and stolen by the accused---Recovery of pistol, in absence of recovery of crime empties, was immaterial---No witness of the alleged occurrence existed and the prosecution case was one of blind murder---Conviction and the sentences awarded to the accused by Trial Court were perverse and based on misappreciation of evidence---High Court, setting aside the convictions, acquitted the accused---Appeals were accepted accordingly. [Paras. 14, 15, 16, 17, 18, 19 & 20 of the judgment] Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCMR 1416; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Wazir Muhammad and another v. The State 2005 SCMR 277; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Saif Ullah and 2 others v. The State 2015 PCr.LJ 820; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Sarfaraz Khan v. The State 1996 SCMR 188 and Khalid Javed and another v. The State 2003 SCMR 1419 rel. (b) Criminal trial--- ----Circumstantial evidence---Requirements---Circumstantial evidence should be like a chain whose one end should point to the accused and the other to the deceased. [Para. 19 of the judgment] Sarfaraz Khan v. The State 1996 SCMR 188 ref. (c) Criminal trial--- ----Extra judicial confession, proof of---In order to prove the extra judicial confession, prosecution is bound to establish essential ingredients that the extra judicial confession is in fact made; that, the confession is made voluntarily; that it is truly made; and that the motivating force behind the confession is proved. [Para. 16 of the judgment] Wazir Muhammad and another v. The State 2005 SCMR 277 ref. (d) Criminal trial--- ----Last seen evidence--- Scope--- Last seen evidence, being circumstantial evidence, is weak type of evidence and the same must be corroborated through independent, confidence inspiring and unimpeachable evidence. [Para. 15 of the judgment] Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCMR 1416 ref. Ms. Nighat Saeed for Appellant No.1. Ali Hussain Mohsin for Appellant No.2. Humayoun Aslam, D.P.-G. for the State. Rana Mushtaq Ahmad for the Complainant. Date of hearing: 15th September, 2015. JUDGMENT SARDAR MUHAMMAD SARFRAZ DOGAR, J.---David Masih alias Faisal son of Hameed Sarwar, Imran son of Muhammad Nawaz, Asmat Ali Shah son of Hazer Ali (since acquitted) and Jahangeer son of Munir Ahmed (since acquitted) were tried by learned Additional Sessions Judge, Toba Tek Singh, in case FIR No.185/2008, dated 08.9.2008, in the offences under sections 302, 392, 412, P.P.C., Police Station Chutiana, District Toba Tek Singh for committing Qatl-i-amd of complainant's brother Riasat Ali. The learned trial court, vide judgment dated 03.11.2010, convicted David Masih alias Faisal and Imran and sentenced infra:- David Masih alias Faisal: i) Death under section 302(b) read with 34, P.P.C. as Ta'zir for committing Qatl-i-amd of Riasat Ali deceased and to pay compensation to the tune of Rs.100,000/-, to the legal heirs of deceased Riasat Ali under section 544-A, Cr.P.C., and in default thereof, to further undergo four months' S.I. The convict was ordered to be hanged by his neck till he is dead. ii) Nine years' RI under section 392, P.P.C., and to pay fine to the tune of Rs.50,000/-, and in default thereof, to further undergo two months' S.I. iii) Five years' RI under section 412, P.P.C., and to pay fine to the tune of Rs.10,000/-, and in default thereof, to further undergo one month's S.I. Imran: i) Imprisonment for Life under section 302(b) read with section 34, P.P.C., and to pay compensation to the tune of Rs.100,000/-, as compensation under section 544-A, Cr.P.C., to be paid to the legal heirs of deceased, and in default thereof, to further undergo four months' S.I. ii) Nine years' RI under section 392, P.P.C., and to pay fine to the tune of Rs.50,000/-, and in default thereof, to further undergo two months' S.I. iii) Five years' RI under section 412, P.P.C., and to pay fine to the tune of Rs.10,000/-, and in default thereof, to further undergo one month's S.I. These sentences were ordered to run concurrently with the benefit of section 382-B of Cr.P.C. All the remaining accused were acquitted of the charges bestowing them benefit of doubt. 2. Feeling aggrieved, David Masih alias Faisal (convict) has lodged Criminal Appeal No.402-J of 2010 and Imran (convict) has filed Criminal Appeal No.2743 of 2010 against their convictions and sentences. The State has also approached this Court with Murder Reference No.595 of 2010 seeking confirmation of death sentence awarded to appellant David Masih alias Faisal. We intend to dispose of all the above said matters through this single judgment. 3. Precisely, the prosecution case as set forth in the complaint (Exh.PH) lodged by Sajjad complainant (PW-10), on the basis whereof formal FIR (Exh.PH/1) was recorded, is that he is resident of Mohallah Kausarabad Pir Mehl and is taxi driver; that his brother Riasat Ali was also taxi driver; that they both used their owned white coloured car bearing registration No.MNV-921 Model 1998 `Toyota Corolla 2od' as taxi car; that Riasat Ali used to drive the taxi car in the night, whereas; the complainant Sajjad in day shift; that on 7.9.2008, at about 11:00 p.m., the complainant found Riasat Ali present at Taxi Stand Pir Mahal along with two unknown persons when he was returning after Travi Prayer; that the said unknown persons had gone with Riasat Ali in his taxi car; that complainant's paternal uncle (chacha) Sh. Muhammad Arshad (given up PW) was also along with him; that on the next morning, the said Riasat Ali did not turn up home, whereupon; complainant along with his paternal uncle Sh. Muhammad Arshad (given up PW) reached the taxi stand where Amjad Ali taxi driver met them and informed that some unknown persons had murdered Riasat Ali, and also took their taxi car along with them, and his dead body was lying on the road side situated in Chak No.339/GB; that they reached at the place of occurrence where dead body was present; that they found that there was firearm injury on the head of the deceased; that unknown accused also robbed the cash amount and mobile phone of the deceased. 4. The complainant (PW-10) was on way to police station to report the matter when he met with Muhammad Aslam Khan SI (PW 12) at bus-stand Chak No.30/GB and submitted written complaint (Exh.PH) and after completion of police karwai sent the same to the police station through Imran 1037/C, whereupon formal FIR (Exh.PH/1) was chalked out by Muhammad Aleem A.S.I. (PW-5). Thereafter, investigation came up before Muhammad Aslam Khan (PW-12) who visited the spot, where the dead body of deceased Riasat Ali was lying, inspected the dead body, prepared injury statement (Exh.PE) and inquest report (Exh.PF). He sent the dead body for autopsy. He collected blood stained earth and small pieces of blood stained stones from the spot and taken into possession vide recovery memo. (Exh.PI). He prepared un-scaled site plan (Exh.PN). He recorded the statements of Amjad and Arshad P.Ws. under section 161, Cr.P.C. on the spot. Muhammad Latif (PW-1) prepared scaled site plan of place of occurrence (Exh.PA and Exh.PA/1) on 13.9.2008, which were handed over to the Investigating Officer by him. On 20.10.2009, he recorded the statements of Muhammad Sajjad, Muhammad Ashraf Khan and Muhammad Siddique Piara (P.Ws.) under section 161, Cr.P.C. wherein they nominated the accused David Masih, Jahangir, Muhammad Ameen and Muhammad Akmal. At that time said accused were already in police custody in another case at Police Station Sahianwala, District Faisalabad. The custody of the appellant-David Masih was got transferred on 10.12.2008 by the order of Judicial Magistrate Faisalabad in this case. During investigation on 19.11.2008, David Masih appellant got recovered gold ring (P-6), which was taken into possession vide recovery memo. (Exh.PK) and on the same day he deposited the gold ring (P-6) with the Moharrar of the Malkhana. On 24.11.2008, David Masih appellant got recovered an unlicensed pistol .30 bore (P-4) and two bullets (P-5/1-2), which were taken into possession vide recovery memo (Exh.PJ). On 26.11.2008, David Masih was produced before the Illaqa Magistrate where he made confessional statement. The complainant exonerated Akmal and Ameen accused before Judicial magistrate, so, they were got discharged. On 19.12.2008, he arrested Imran accused and on 29.12.2008 Imran accused got recovered mobile phone Nokia (P-7) from his residential house, which was taken into possession vide recovery memo. (Exh.PL). On 19.1.2009, he obtained non-bailable warrants of arrest of accused Badshah Khan (since P.O.). On 30.1.2009 Asmat Ali Shah was under his custody, when some unknown persons brought stupni of the car at the police station and gave it to Asmat Ali Shah accused. He took the same into his possession vide recovery memo (Exh.PM). He has also deposited the stupni to Moharrar of the Police Station Chutiana. During investigation, he found the accused David Masih, Imran and Jahangeer guilty and submitted report under section 173, Cr.P.C. by placing their names in column No.3 of the report. Later on, accused Asmat Ali Shah was found involved in the case to the extent of receiving amount of Rs.5,000/- as commission for the sale of snatched car. 5. After submission of the challan in the court, accused were formally charge sheeted under sections 392, 302, 412, 34, P.P.C. to which they did not plead guilty and claimed to be tried. 6. Prosecution has produced as many as 13 witnesses to prove its case. Muhammad Amjad (PW-7), Sajjad complainant (PW- 10) and Muhammad Siddique Piyara (PW-11) have furnished ocular account. Muhammad Sabir (PW-8) and Muhammad Akhtar Umer (PW -19) were recovery witnesses. Mr. Amad ud Din Civil Judge/Judicial Magistrate 1st Class Okara (PW-13) has furnished evidence with regard to recording judicial confession of appellant David Masih. 7. Dr. Muhammad Javed Iqbal, Medical Officer, RHC, Chak No.316/GB (Chutiana), (PW-4) conducted post mortem examination on the dead body of Riasat Ali (deceased) on 8.9.2008 and observed following injuries on his body:- INJURIES 1. A fire arm entrance wound .6 cm x .6 cm back and left side of the head. 2. A fire arm exit wound .7 cm x .9 cm right side of the head. 3. An abrasion 1 cm x 1 cm back of the right leg. 4. An abrasion 1 cm x .5 cm back of the left knee joint. OPINION The medical officer was of the opinion that cause of death is rupture of brain, which is vital organ of the body and was sufficient to cause death in ordinary course of life, however, pieces of heart, lung, liver and stomach were taken, sealed and sent to Chemical Examiner, Govt. of Punjab Lahore for detection of poison probable duration between injuries and death was about 1 to 2 hours and between death and post mortem examination was 8 to 10 hours. 8. Rest of the witnesses are of formal nature, therefore, there is no need to be discussed. Learned DDPP given up PW Ashraf Ali Khan being won over and Muhammad Arshad being un-necessary vide his statement dated 13.7.2010. Learned DDPP tendered in evidence report of the Chemical Examiner Exh.PP and of Serologist Exh.PQ and closed the prosecution evidence. 9. At the conclusion of prosecution evidence, learned trial court recorded the statement under section 342, Cr.P.C. of the appellants as well as of all the acquitted accused whereby they denied each and every piece of prosecution evidence while pleading their innocence. However, in reply to question with regard to judicial confession, David Masih alias Faisal convict/appellant stated as under:- "My confession was recorded on Oath which is illegal and unlawful. It cannot be given the status of confession as held by Hon'ble Higher Courts of Pakistan. Such citation would be tendered before Hon'ble court at the time of arguments. In cross-examination learned Judicial Magistrate conceded that it was exculpatory statement by me in concocting my co-accused Imran only. Muhammad Aslam Khan SI has brought me before the said JM in custody and after the said confession I was handed over to him. Thus I was terrified that he would torture again as he has done so during my physical remand. No such question was posed by JM to me whether I was tortured by the Investigating Officer before making my confession according to his wishes. I was not asked that after recording my confession I would not be handed over to Muhammad Aslam SI and it was done so by said Judicial Magistrate. I was under custody with Nishat abad police Faisalabad where from I was got transferred on 10-12-2008 by the order of JM FSD who granted one day physical remand. Thereafter on the following day further physical remand was obtained from JM T.T. Singh. My fourteen remand was terminated on 24-10-2008 but was kept in illegal confinement even thereafter on 25-10-2008 and 26-10-2008. I was produced before the Judicial Magistrate on 26-10-2008 to record my confession which was recorded on Oath. There was no sanctity attached to such confession. It was a confession under compulsion, tortured by the Investigating Officer and under Oath." In reply to the question "Why this case against you and why the PWs deposed against you" David Masih alias Faisal convict/appellant simply stated as under:- It was an unseen occurrence and the culprits could not be traced. The local police particularly SHO and Investigating Officer of this case were under enormous pressure from the higher police officer to trace the culprits or face the music. I and my co-accused were made scapegoat in this case. In reply to the question "Why this case against you and why the PWs deposed against you" Imran convict/appellant stated as under:- "The IO of the case Muhammad Aslam Khan SI apprehended me from general bus stand Pir Mahal on 12-12-2008. My arrest was fictitiously shown on 14-12-2008. An altercation took place between me and Muhammad Aslam SI at bus stand Pir Mahal, he abused me but I did not pocket his insult and gave him slaps. Being infuriated from such insult said Muhammad Aslam Khan SI became vindictive and had roped in this case falsely." 10. All the accused, however, neither produced any defence evidence nor opted to make any statement on oath in terms of section 340(2), Cr.P.C. 11. It is argued by learned counsel for the appellants that the ocular account produced by the prosecution admits material inconsistencies; that the PWs are interested witnesses inter-se related as well as related to the deceased; that the PWs namely Sajjad (PW-10) and Muhammad Arshad (given up) are chance witnesses on the dimension of last seen evidence and their testimonies lack intrinsic value and inherent worth, therefore, cannot be safely relied upon; that no independent private witness from the locality was produced by the prosecution to prove the charge; that the alleged recovery of pistol .30 bore from the appellant David Masih is false, fabricated and planted upon him and was also not referred to the Forensic Science Laboratory; that no empty of pistol .30 bore was recovered by the Investigating Officer from the place of occurrence, therefore, the recovery of alleged weapon of offence from David Masih appellant is inconsequential failing to furnish any corroboration to the prosecution version; that it was an unseen occurrence and there was no corroboration with regard to the extra judicial confession for the purposes of entangled the appellants with the commission of alleged offences; that the complainant and P.Ws have not supported the prosecution case; that there are material contradictions in the statements of the witnesses; that the prosecution had failed to produce any independent, cogent, unimpeachable and entrenched evidence against the appellants, and the learned trial Court has not applied its judicious mind while convicting the appellants. Further argued that the confessional statement made by the appellant David Masih has not been corroborated by any independent evidence, even otherwise, the modus operandi of the confessional statement recorded by the learned Judicial Magistrate, was not in line with the judgment laid down by the Hon'ble Supreme Court of Pakistan, which vitiate all the proceedings of the confessional statement; that the confessional statement was made under coercion, and specific question which was required to be put for checking the value of the truthfulness of the confession was not properly put on the appellant David Masih; that the confession made before the learned Judicial Magistrate is also illegal because it was admittedly recorded on oath and the custody of the accused on the that day was also unauthorized as 14 days physical remand had already lapsed; that the said confession of the appellant David is of exculpatory nature so is inadmissible in evidence; that David Masih accused is not acquainted with Muhammad Siddique Payara (PW-11), therefore, the question of making of extra judicial confession before such witness does not arise; that the prosecution has not been able to prove the charge against the appellants beyond any shadow of doubt, therefore, the appellants are entitled to acquittal. 12. Contrariwise, learned Deputy Prosecutor General for the State assisted by the learned counsel for the complainant has defended the impugned judgment by arguing that prosecution has proved its case; that the prosecution witnesses remained stuck with their statements, that as per Article 43 of the Qanun-e-Shahadat Order, 1984, the confessional statement which was made by the appellant David Masih before the learned Judicial Magistrate is the conclusive proof of the commission of the offence; that the prosecution case mainly rests on the extra judicial confession made by David Masih before Muhammad Siddique Payara (PW-11) a local politician figure; that the last seen evidence is also there to corroborate the evidence; that the medical evidence is in line with the ocular account; that the element of common object is there in commission of crime. Further argued that the testimonies of prosecution witnesses are in line and corroborative to each other on the vital ingredients of the case; that minor and immaterial inconsistencies in the testimonies of eye-witnesses are ignorable and do not affect the merits of the prosecution case; that medical evidence fully corroborates the prosecution case without any material discrepancies; that single firearm injury to the deceased is specifically attributed to David Masih appellant causing death of Riasat Ali; that the prosecution has brought the guilt home to the accused through reliable ocular account supported by medical evidence, therefore, the learned trial court has rightly convicted David Masih and sentenced him to capital punishment of death in accordance with law which does not call for any interference by this Court; that the learned trial court has rightly convicted and sentenced Imran but has fallen in grave error while acquitting the remaining accused actively participated in the occurrence and vicariously liable for the commission of willful murder of Riasat Ali (deceased); that the appeals lodged by the appellant against their convictions and sentences having no merit deserve dismissal. 13. We have heard the learned counsel for the parties as well as the learned Deputy Prosecutor General for the State and carefully gone through the record. 14. Admittedly this is an unseen occurrence. There is no direct evidence with the prosecution and there is no eye-witness of the alleged snatching of car and commission of murder of Riasat Ali. Prosecution has based its case on circumstantial evidence on the dimensions of last seen, extra judicial confession, judicial confession and recovery. 15. On the plea of last seen prosecution has examined Sajjad complainant (PW-10), who is real brother of Riasat Ali deceased. He has deposed that on 07.9.2008, he along with his uncle Muhammad Arshad (given up PW) was coming back after offering Traveeh prayer. When they reached near taxi car stand Pir Mahal, they observed that his taxi car was being plied by Riasat Ali deceased, one unknown person was sitting on the front side beside Riasat Ali and the other unknown person occupied the rear seat. The taxi car passed from near them and went away. On next day, Muhammad Amjad Ali imparted information to them that some unknown persons have snatched their taxi car and also murdered his brother Riasat Ali. Cross-examination upon Sajjad-complainant (PW-10), however, rendered his testimony highly doubtful. While facing cross-examination, he (PW-10) deposed that he had mentioned in the complaint (Exh.PH) that one of accused was sitting on front seat and other on the rear seat. We have noticed that the Sajjad-complainant (PW-10) has not mentioned this fact in his complaint (Exh.PH). This material contradiction render his testimony highly doubtful and not worthy of any credence. It is, therefore, obvious that the plea of the last seen advanced by the prosecution is an afterthought and a concocted version which cannot be believed. Reliance is made upon Mst. Reshman Bibi v. Sheerin Khan and others (1997 SCMR 1416). Last seen evidence being a circumstantial evidence was a weak type of evidence and must be corroborated through independent, confidence inspiring and unimpeachable evidence, but in this case, the prosecution has given up the other witness of last seen namely Muhammad Arshad being…

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