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Petitioner: Muhammad Jamal and other VS Respondent: The State
Court Name: Peshawar High Court Judge(s): Rooh-ul-Amin Khan Title: Muhammad Jamal and other vs The State Case No.: Crl. Appeal No.636-P/2013 Date of Judgment:2016-05-04 Reported As: 2016 PHC 37 Result: N/A
Judgment ROOH-UL-AMIN KHAN, J.- At a trial held by learned Trial Court/ Judge Juvenile Court Charsadda, appellants 1. Muhammad Jamal and 2. Rasool Shah, having been found guilty of committing the 'Qatl-e- Amd' of Hayat Ullah deceased, in furtherance of their common intention, vide judgment dated 12.11.2013, have been convicted under section 302 (b)/34 PPC and sentenced to undergo imprisonment for life as well as to pay a fine of Rs.2,00,000/- each, as compensation in terms of S.544-A Cr.P.C. or in default thereof, to undergo 06 months S.I., further. Benefit of S.382-B Cr.P.C., has been extended to them. 2. Through the instant appeal, the appellants convicts have questioned their conviction and sentence, while petitioner-complainant Wahid Ullah, through connected Cr.R. No.106-P/2015, seeks enhancement of sentences of the convicts from life imprisonment to normal penalty of death, provided for the offence. 3. Since, both the matters arise out from one and the same judgment of the learned Trial Court, therefore, we propose to dispose of the same through this common judgment. 4. The prosecution case as unfolded in First Information Report Exh.PA is that, on 10.10.2012 at 14.00 hours, Wahid Ullah complainant (PW.8), in company of dead body of his brother Hayat Ullah deceased, reported to local police in casualty of Charsadda hospital that the deceased was a watchman in Government Girls High School Prang Charsadda, who on 09.10.2012 at 16.00 hours, on receipt of persistent calls from somebody on his cell phone, he left the house but did not return home till next morning, therefore, he started search for him, during which course, he got information qua his murder in the sugarcane field of one Waseem situated at Mardan road, and when he reached there, found him shot dead by some unknown culprit/culprits. He did not disclose
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any motive behind the incident nor charged anyone by name, rather opted to nominate the actual culprit/ culprits after due satisfaction. 5. His report was recorded in the shape of murasila Exh.PA/1, by Muhammad Zaman S.I. (PW.1). He also prepared injury sheet and inquest report Exh.PW.1/1 and Exh.PW.1/2, respectively, of the deceased and shifted him to the mortuary under the escort of Mazullah No.137 for postmortem examination and sent the murasila to Police Station, on the basis of which, FIR No.1272 dated 10.10.2012, under sections 302/464/34 PPC, was registered in Police Station Charsadda. 6. Dr. Adil (PW.6), on 10.10.2012, conducted autopsy on the dead body of deceased Hayat Ullah and observed the following:- External Appearance: Normally built person. Rigor mortis developed. Injuries: 1. Firearm entry wound on his right chest supra clavicle region with charring marks measuring 1.5 cm x 1.5 cm. 2. Exist wound on his right chest posterior near medial lower border of scapula measuring 2 cm x 1.8 cm. Opinion: According to his opinion the deceased died due to sever shock caused by firearm injury to above mentioned organs. Probable time observed in between injury and death was "Instantaneous" while between death and Postmortem as "Approximately 15 hours". 7. Wilayat Khan Inspector (PW.4), conducted investigation in the case. He proceeded to the spot and prepared site plan Exh.PB, at the instance of complainant. During spot inspection, he secured bloodstained earth and grass from the place of the deceased in presence of witnesses, vide recovery memo Exh.PW.4/1. Vide recovery memo Exh.PW.4/2, he took into possession the last worn bloodstained attire of the deceased, sent the bloodstained articles to the FSL vide application Exh.PW.4/3, report whereof is Exh.PW.4/4, obtained mobile phone data of deceased's cell number Exh.PW.4/6 and Exh.PW.4/7, on the strength of which, he allegedly traced out accused Jamal and Rasool Shah (appellants-convicts) and arrested them on 24.10.2012 vide arrest card Exh.PW.4/8. He took into possession a 30 bore pistol (crime weapon) Exh.P.4, from the custody of one Waqas s/o Fayaz allegedly recovered on the pointation of the accused-appellants; prepared pointation memos of the crime spot Exh.PW.4/9 and Exh.PW.4/10, on the pointation of the accused/appellants followed by additions in the site plan with red ink Exh.PW.4/11, recovered and took into possession a Nokia mobile set and motorcycle on the pointation of accused Jamal from his house, vide memo Exh.PW.4/12. He also took recovered a shirt from a sewerage drain, allegedly squandered by accused Rasool Shah (Exh.P.5), containing 04 live rounds of 30 bore and a small knife Exh.P.6. He also recovered an empty of 30 bore Exh.P.7, vide memo Exh.PW.4/14 from the spot, sent the bloodstained shirt of accused Rasool Shah to the FSL, report whereof is Exh.PC/1, sent crime empty and crime pistol to the FSL, report whereof is Exh.PW.4/17. On 25.10.2012, he produced both the accused-appellants for recording their confessional statements before the Illaqa Judicial Magistrate, but their statements could not be recorded as such were sent to the Jail vide order dated 25.10.2012. He recorded statements of the PWs u/s 161 Cr.P.C. On 31.10.2012, he requisitioned the appellants from Jail through Zamima "Bay" and produced them once again before the Illaqa Judicial Magistrate who recorded their confessional statements. He also produced PWs Tariq, Bilal Ahmad and Wahidullah before the Illaqa Judicial Magistrate wherein they recorded their statements u/s 164 Cr.P.C. in which they charged both the accused/appellants for commission of the offence. After completion of investigation, he handed over case file to Rohanzeb Khan SHO, who submitted challan against the accused/appellants. 8. On receipt of the challan by the learned Trial Court, both the appellants were charge sheeted to which they pleaded not guilty and claimed Trial. In order to prove its case, prosecution
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examined as many as fourteen witnesses. On conclusion of the prosecution evidence, statements of the appellants were recorded under section 342 Cr.P.C., wherein they denied the prosecution allegations, retracted their confessional statements and professed their innocence. They, however, declined to be examined on oath under section 340 (2) Cr.P.C. or to produce evidence in defence. On conclusion of trial, the learned Trial Court, after hearing both the sides, convicted and sentenced the accused/appellants, as mentioned above. 9. Learned counsel for the appellants argued that it is a case of no eyewitness, while the circumstantial evidence relied upon by the prosecution, does not make a chain to link the appellants with the commission of murder of deceased. The learned Trial Court swayed by the sole retracted confessional statements of the appellants, which on the one hand, do not find any corroboration from medical evidence and other independent circumstances of the incident, while on the other hand, being involuntary and result of promptness and inducement as well as recorded against the mandate of the law, rules and procedure governing such statements. The trial Court has landed in the field of error by holding the appellants guilty of the offence on the basis of incredible assumptions. He, however, while supporting the findings of the learned Trial Court to the extent of disbelieving the various recoveries contended that these being planted against the appellants by the police for bringing the prosecution case in line with the confessional statements, have rightly been brush aside by the learned Trial Court. He submitted that the conviction and sentence of the appellants being against the law, facts and based on surmises and conjectures, are liable to be set aside. He requested for acceptance of the appeal and sought dismissal of the connected revision petition. 10. Conversely, learned AAG assisted by learned counsel for the complainant contended that prosecution has proved the guilt of the appellants up to the hilt through their voluntary confessional statements, corroborated by recovery of blood from the spot, the bloodstained garments of the deceased, positive FSL report in respect thereof, recovery of crime empty and crime pistol on the pointation of the appellants coupled with positive FSL report in respect thereof, recovery of Nokia mobile set and motorcycle used in the commission of offence. Further contended that the findings of the learned Trial Court to the extent of disbelieving the aforesaid recoveries being bad in law, are liable to be set aside. They added that prosecution has brought the appellants home guilt, whereas there is no mitigating circumstance to warrant lesser sentence, thus the learned Trial Court was not justified to award lesser sentence to the appellants. They sought dismissal of the appeal and requested for enhancement of sentence of the appellants- convicts by allowing the revision petition. 11. We have given our anxious consideration to the arguments advanced at the bar from both sides and perused the record carefully. 12. We do agree with the very first argument of learned counsel for the appellants that it is a case of no eyewitness, as none has come forward to furnish the ocular account of the incident. The prosecution has built up its case on the foundation of confessional statements got recorded by the appellants and circumstantial evidence in corroboration thereof in the shape of cell phone data of the deceased and accused, recovery of crime weapon i.e. 30 bore pistol, a 30 bore crime empty from the spot, on the alleged pointation of the accused, positive FSL report in respect thereof, recovery of motorcycle and a Nokia mobile set from the house of accused Muhammad Jamal, coupled with medical evidence. It is to be noted that the learned Trial Court has disbelieved the circumstantial evidence/ recoveries and by relying and believing upon the retracted confessional statements of the appellants recorded their conviction. 13. Since, conviction of the appellants has been recorded on the basis of their retracted confessional statements; therefore, we would like to take it firstly for discussion so as to determine
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the voluntariness, credibility and admissibility of the same and that as to what extent these find corroboration from other strong independent circumstances. 14. As manifest from the record the appellants have been shown arrested on 24.10.2012. Wahid Ullah complainant (PW.8), deposed that when he visited Police Station, he noticed the accused- appellants in custody with muffled faces, who confessed their guilt before him in Police Station. He admitted that on the disclosure of the police he came to know about their names, thus, charged them in his statement under section 164 Cr.P.C. This stance of the complainant clearly proves that he without any proof, reason or motive, charged the appellants at the instance of the police so much so that he even did not bother to see the faces of those muffled persons. This disturbing aspect of the case is sufficient proof of implication of the accused-appellants in the case by the complainant in random manner on the ipse dixit of police. 15. Learned Judicial Magistrate, recorded the confessional statements of the appellants on 31.10.2012. We have strong reservations qua voluntariness, credibility and admissibility of the confessional statements of the appellants, because of the procedure/ exercise adopted by the Magistrate in recording the same as well as the episode narrated by the appellants therein. It appears from the record that after arrest of the appellants on 24.10.2012, they were put up before the learned Illaqa Judicial Magistrate Charsadda on the next date i.e. 25.10.2012, for recording their confessional statements, wherefrom they were sent to Jail without recording their statements on the following grounds as noted down by the Magistrate in his order. The relevant part of his order read as under:- "Since both the accused are apparently under the age of majority, therefore, some questions were put to them in order to determine their intelligence preference. The questions are as follows:- Q. Do you know me? A. Both the accused replied in negative. Q. Do you know what I am working here? A. Both the accused showed their ignorance. Q. Do you know the consequences of your confessional statement which you are going to make before me? A. Both of them replied in negative. In view of the above it is declared that both the accused are not only under age but they are also not capable to exercise their intelligence preference. Though both the accused during the course of inquiry expressed their willingness to record confession, but in my view the confessional statements in these circumstances would not be legally valid. Hence, both the accused are sent to Judicial Lockup for thinking over the consequences of making confession before the Court. The accused be produced on 08.11.2012". While going through the aforesaid order, it can be safely stated that the direction of the Judicial Magistrate qua re-production of the accused-appellants on 08.11.2012, particularly when they were not at all capable to make statements, is illogical against the law and procedure, and secondly, their re-production before the Magistrate on 31.10.2012, prior to 08.11.2012, viz without any plausible explanation on the part of the learned Judicial Magistrate and the Investigating Officer, is a strong circumstance to create doubt in a prudent mind that the appellants remained in jail under extreme pressure and influence of the police and as such they were induced to follow the track of investigation officer; the pre-dated application of the investigation officer for summoning the accused for recording their confessional statement, without any report of Superintendent Jail or any clue or indication to the investigator, regarding willingness of appellants for making confession, brings the act of prosecution under serious clouds of doubt. Such a statement can never be considered as voluntary confession. The learned Judicial Magistrate though have put some questions to the accused-appellants, as were put to them at first instance, which, no doubt,
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have been answered by the appellants correctly, but mere rational answers of these questions by the appellants would not be sufficient to meet their capability to make statements as observed by the learned Judicial Magistrate at first instance. The learned Judicial Magistrate ought to have asked them as to how and through which sources, they learnt the answers of the questions, when at first instance they were not able to answer the same. He has also not brought anything in writing that as to how he got satisfied about the capability and understanding of the appellants to make statements, when at first instance, he had declared them not capable to exercise their intelligence preference. Similarly, the Magistrate has not furnished any justification as to why the appellants were produced prior to the date fixed by him for their re-production. All these disturbing circumstances are sufficient for holding that the confessional statements of the appellants are not only involuntary, but are against the mandatory procedure of the law and prima facie seem to be the result of influence or promise. Besides, the confessional statements of both the appellants are ditto copy with slight variation in their names, parentages and words. This aspect of the case also creates doubt in our mind because human beings cannot be expected to record tape-recorded statements. The confessional statements of the appellants in a cyclostyle manner, is another proof that it has either been copied from their statements recorded by the investigator under section 161 Cr.PC or had properly tutored and learnt to appellants word by word. Moreso, the confessional statements of the appellants have not been recorded by the Magistrate with his own hand writing, rather recorded on computer in Urdu through some official of the Court. The circumstances on the basis of which the learned Judicial Magistrate recorded these statement on his dictation through official of the Court, have not been mentioned by him in the certificate. No special note has been furnished by him with regard to administering oath to the official of the Court with regard to recording of the true version of the confessional statements of the appellants. Thus, the way and procedure adopted by the learned Magistrate for recording the confessional statements is squarely against the principles set forth by the Hon'ble Supreme Court in case titled, "Azeetu Khan and another Vs Mujahid Khan and others" (2016 SCM R 274).
16. Yet there is another aspect, the age of accused-appellant Muhammad Jamal mentioned in his confessional statement is 12/13 years and that of accused Rasool Shah as 15/16 years. The juvenility of the accused-appellants have not been objected by the prosecution, therefore, both have been tried by the Juvenile Court. Though "child" has not been defined specifically in Qanun- e-Shahadat Order, 1984, however, according to sub-section (b) of S.2 of the Juvenile Justice System Ordinance, 2000, "child" means a person who at the time of commission of an offence has not attained the age of eighteen years, thus, both the appellants falls within the definition of "Child". According to Article 3 of the Qanun-e-Shahadat Order, 1984, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Since, confessional statement of an accused in the Islamic Law is considered the first authentic evidence against the accused, therefore, it would not be against the law to weight the confessional statements of the appellants in terms of Article 3 of the Qanun-e-Shahadat Order, 1984, as words "all persons" used in article 3 of the Order, 1984, provide a wide scope which in our view cannot be restricted only to a witness of the prosecution because statement of a witness does fall within the meaning of evidence and same would be the status of confessional statement of an accused, which is also considered as evidence of accused against his own interest. In this view of the matter when the appellants being not able to understand the questions put to them and to furnish rational answers of the questions by their tender age, were not competent to testify, hence, on this score too, their confessional statements are liable to be discarded straight away from consideration.
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17. It should not be surprising that young minds are more vulnerable and susceptible to outside pressure and power of suggestion. Due to their difficulty in weighing long term consequences, their limited understanding of the prevailing juvenile criminal justice system coupled with current fashion and style of investigation the confessional statement of juvenile are required to be subjected to closest scrutiny and can only be accepted if the Court comes to the conclusion that at the time of recording confession he was acquainted with the status, job description and legal position of judicial officer; the question posed to him by the judicial officer and he was capable to give rational answer to it. When guilty party is a child there are more hoopes for the prosecution and investigator to jump through because generally a rustic villager under the age of 18, due to immaturity, deficient of cognitive abilities and psychological skill, lack the qualification to make impulsive decision without considering the consequences in long run. Inability to comprehend difficult and confusing situation always cause many young suspect to make improper decision which are not in their best interest. In this part of the world, particularly in rural area kids are taught from birth to respect the adult and are punished when they do not obey the command of elder. In such a situation, if the elder is a police officer having a stick in his hand then the situation would be more severe and intense for a juvenile to dissent with the view point of investigator. Unless he clearly understand his right to do so, it is difficult to imagine any juvenile would ever comprehend that he could choose to simply ignore an officer's wishes to speak to him and unilaterally end the encounter. Here, at the cost of repetition, it may be stated that the confession of accused person is suspicious evidence even if it was made without external pressure having been exerted on the accused. In many cases the confession is irrational act and taking irrational steps itself making a confession raises a suspicion regarding veracity of the confession. This suspicion is not merely theoretical, rather it has been proved several times by human experience, particularly in case of child accused, it is, therefore, the confessional statement of a child required to be evaluated carefully. It is natural phenomenon, rather inflexible reality that the child always sway by what other may tell him as he/she is easy prey to tutoring. In criminal cases the juveniles are significantly more likely than adults to succumb to the intense pressure of investigation process by making involuntary and false confession. They face many difficulties due to their immaturity and lack of cognitive abilities which cause them (younger suspect) to make impulsive decision without considering the consequences of their actions. It is well known that the attitude of children to reality and truth differs widely from that of adult, thus the standpoints of both cannot be measured on equal yardstick. It is also undeniable fact that police investigation agency in our country has not acquired the reputation of proof against the temptation of attempting to secure confession by questionable methods. The courts of law and judicial officer administering criminal justice are, therefore, expected to devote due attention to all the safeguard provided for insuring their true voluntary character. The Judicial Officer administering criminal law should not ignore that in civilized and free society it is largely through justice that the position of the liberty of subject and of the rule of law is measured. The courts are under laden duties not only to adjudge that the confessor was competent to make confession but also to ensure that the confession must be voluntary without any coercive measures or promised something in exchange by the investigator and if it is found that the child was threatened, coerced or induced through promise something in exchange or if he was incapable of understanding his rights, the Court must exclude the confession as involuntary. In case in hand admittedly the accused being juvenile when produced before the Judicial Magistrate were not capable to know the official position of Magistrate as well as were not aware of the consequences of their self incriminating statement, but subsequently, when brought from Jail on "Zamima Bay" were sufficiently able with their fluent tongue to identify the officer as "Judicial Magistrate". The eloquence in the language of accused, who being were not acquainted with the word "Magistrate", by using the word "Judicial Magistrate" attracts the stares of person to
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the state of incertitude and unbelievable situation. The Magistrate, at such a stage should have recorded his opinion as to how the adolescents became conversant or well informed and articulate by using the word "Judicial Magistrate", however by not doing so inference has to be drawn that these are not the words spoken by accused, rather penned by the Magistrate from his brain side and, in such a situation, the statement recorded by a Magistrate cannot be equated with a voluntary confession. 18. The Investigating Officer has taken a lot of pain and labour hard for collecting tainted pieces of the circumstantial evidence in corroboration of the confessional statements, but it is a famous saying that a man can tell lie, but circumstances not. Because, the confessional statements of the appellants, as stated earlier, is in cyclostyle manner, therefore, we would like to reproduce statement of one of them for adjudging the same with the circumstantial and medical evidence. Since the motive which allegedly became the foundation of the incident revolves against accused Muhammad Jamal, therefore, we would like to select his confessional statement, which read as under:- "Stated that, I, and accused Rasool Shah are close friends. Two/three days prior to the occurrence, I and accused Rasool Shah remained absent from our school. I was introduced by Rasool Shah with deceased Hayat Ullah in Charsadda…
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