10/11/21, 8:55 PM 2021 S C M R 381

2021 S C M R 381
[Supreme Court of Pakistan]
Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed
Mazahar
Ali Akbar Naqvi, JJ
GUL MUHAMMAD and another---Petitioners
Versus
The STATE through Prosecutor-General Balochistan---Respondent
Criminal Petition No. 27-Q of 2018, decided on 25th
November, 2020.
(Against
the order dated 20.03.2018 passed by High Court of Balochistan, Sibi
Bench at
Quetta in Criminal Jail Appeal No. 18 of 2015)
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common
intention---Reappraisal of evidence---
Benefit of doubt---Case based on
circumstantial evidence only---No direct evidence
was available on the record
which connected the involvement of the accused
persons in the occurrence---As
far as the recovery of certain articles belonging to
the deceased from the
accused persons was concerned, recovery of all such articles
were the result of
conjecture and surmises and without any legal backing hence,
they did not
advance the case of the prosecution especially when all such pieces of
evidence
were denied by the accused persons while making their statements under
S. 342,
Cr.P.C.---Prosecution had failed to establish its case against the accused
persons---Petition for leave to appeal was converted into appeal and allowed
and
accused persons were acquitted of the charge against them.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common
intention---Reappraisal of evidence---
Extra-judicial confession before
police---Admissibility---Trial Court had relied
upon the extra judicial
confession of accused persons which was recorded by the
Investigating officer
in the presence of police officials, when the accused persons
were under arrest
and in handcuffs---Such practice of recording extra judicial
confession by the
police officials in presence of police officers was nullity in the
eye of law
and no credence could be extended to such piece of evidence---
Prosecution had
failed to establish its case against the accused persons---Petition
for leave
to appeal was converted into appeal and allowed and accused persons
were
acquitted of the charge against them.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-i-amd, common
intention---Reappraisal of evidence---
Provisional external examination report
of dead body prepared without any final
post mortem report---Effect---Finding
of the Medical Officer qua the cause of death
only from external observation of
the dead body had no legal sanctity---
Requirement of law was that the finding
qua the cause of death, time of death and

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manner of death could not be

substantiated without post-mortem examination---In
the present case only
provisional external examination of the dead body of the
deceased was conducted
without any postmortem report available on the record and
it was not even
claimed by the prosecution that the autopsy was conducted over the
dead body of
the deceased---Even otherwise the occurrence had taken place in the
month of
May whereas the finding given by the doctor qua time and cause of death
did not
commensurate keeping in view the condition of the dead body as disclosed
by the
doctor observed during external examination---Possibility could not be ruled
out that the deceased was done to death earlier than the date disclosed in the
crime
report---Prosecution had failed to establish its case against the accused
persons---
Petition for leave to appeal was converted into appeal and allowed
and accused
persons were acquitted of the charge against them.
Ahsan
Rafiq Rana, Advocate Supreme Court for Petitioners.
Walayat,
Additional P.G. Balochistan for the State.
Date
of hearing: 25th November, 2020.
ORDER
SAYYED
MAZAHAR ALI AKBAR NAQVI, J.---The
petitioners have
invoked the jurisdiction of this Court under Article 185(3) of
the Constitution of
Islamic Republic of Pakistan, 1973 against the judgment
dated 20.03.2018 passed
by learned single bench of High Court of Balochistan,
Sibi Bench at Quetta in
Criminal Jail Appeal No.18/2015 with a prayer to
set-aside the conviction awarded
to the petitioners in the interest of safe
administration of criminal justice.
2. The
petitioners were allegedly saddled with the responsibility of the murder of
Muhammad Judial son of the complainant while committing his murder by means
of
throttling, asphyxia, respiratory arrest against motive to take away motorcycle
of
the deceased. The petitioner called him on the eve of Eid, mixed some
intoxication
in the soft drink, then took him to Saim Shakh where he was
murdered and dead
body was thrown into Saim Shakh. On the statement of the
father of the deceased
namely Abdul Wahid, a case bearing FIR No.28/2014 dated
15.05.2014 offence
under section 302/34, P.P.C. registered with Police Station
Shaheed Malik
Muhammad Ali, District Jafarabad. During course of investigation
carried out by
the local police, the petitioners were found involved in the
crime alleged against
their consequently their names were placed in column
No.03 of the report under
section 173, Cr.P.C. The challan of the case was sent
to the court of learned Illaqa
Magistrate where the matter was referred to the
court of learned Sessions Judge in
terms of section 190(2), Cr.P.C. On receipt
of the challan under section 173,
Cr.P.C., the learned trial court framed
charge which was read-over to the petitioners
to which they pleaded not guilty
hence claimed trial. The prosecution in order to
establish the prosecution case
led evidence of seven (07) prosecution witnesses.
After conclusion of the
prosecution evidence, the accused persons were examined
under section 342, Cr.P.C.
Accused persons however denied to appear on oath
under section 340(2), Cr.P.C.,
they even opted not to produce any defence. Learned
trial court after
conclusion of the trial, found the accusation against the petitioners
proved
while holding them guilty under section 302(b)/34, P.P.C. As a

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consequence,
accused Gul Muhammad son of Shah Mir and Ghous Bux son of Arz
Muhammad were
convicted under section 302(b)/34, P.P.C. and were sentenced to
suffer life
imprisonment as Tazir each, with a further direction to pay Rs.1,00,000/-
as
compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased,
in
case of non-payment of said amount, further they were to undergo simple
imprisonment for six months each. The benefit of section 382-B, Cr.P.C. was also
extended to the petitioners. The judgment of the learned trial court was
assailed
before the High Court of Balochistan (Sibi Bench) at Quetta through
Criminal Jail
Appeal No.18/2015 which was adjudicated and decided by a single
bench of High
Court. The judgment of the learned trial court was maintained
hence, the instant
petition before us.
3. At
the very outset, it is argued that the prosecution has failed to adduce any
evidence which is sufficient to record conviction in case of capital
punishment.
Further contends that both the courts below have not appreciated
the evidence in its
true legal perspectives. Contends that cases falling within
the category of
circumstantial evidence should be interlinked so conjointly
that it do not miss any
link to break the net around the neck of the culprits.
Contends that extra judicial
confession is always treated as weak evidence and
no conviction can be recorded
on the basis of said evidence alone. Contends
that recoveries of articles are
inadmissible evidence and it does not advance
the case of the prosecution in any
manner. Lastly it is argued that the
conviction and sentence recorded by the courts
below is not sustainable in the
eye of law especially autopsy was not conducted and
it is further argued that
in absence of any finding qua the cause of death conviction
and sentence under
section 302, P.P.C. is squarely against the law.
4. On
the other hand, learned Law Officer has controverted the contentions on
the
ground that the deceased was done to death in a brutal manner. He was last seen
by two prosecution witnesses who made their statements before the court.
Further
contends that the statement of two witnesses is corroborated by the
collection of
CDRs of the mobile phone of the petitioners which fully
established the presence of
the petitioners at the spot. Contends that extra
judicial confession is also available
on the record which further strengthen
the prosecution case. Lastly, it has been
contended that recoveries affected
from the petitioners are in fact belongings of the
deceased, therefore, the
prosecution has succeeded to prove the guilt of the
petitioners beyond any
reasonable doubt hence, the judgments of the courts below
are fully justified
under the law.
5. We
have heard the learned counsel for the parties and gone through the
record.
The
complainant Abdul Wahid lodged the aforesaid crime report on 15.05.2014
wherein
he narrated that son of the complainant was done to death in a brutal
manner
within the premises of Saim Shakh falling within the boundary of Police
Station
Shaheed Malik Muhammad Ali, District Jaffarabad. It is the case of
prosecution
that son of the petitioner Muhammad Judial left his home on
13.05.2014 at 02:00
p.m. on his motorcycle for selling of seeds of chickpeas to
Jiyani Dip. Two of
the cousins of the deceased namely Muhammad Siddique and
Muhammad Qasim came
across on the same day at 04:00 p.m., thereafter the cell

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phone of the deceased

was found not responding however on 15.05.2014 at about
01:00 p.m., information
was received by the complainant that dead body of an
unknown person is found in
Saim Shakh water drain. The complainant immediately
responded and found that it
was dead body of his son. As a consequent, the matter
was reported to the
police regarding murder of son of complainant against the
unknown person.
During course of investigation, the petitioners were taken into
custody on the
basis of extra judicial confession and disclosure of certain articles
belonging
to the deceased which were allegedly covered by the Investigating
Officer
during course of investigation. It is the case of prosecution that mobile
phone
belonging to the petitioners when examined through CDRs, their positioning
was
found close to the place of occurrence hence, both the courts below found the
said evidence available on the record sufficient to found the petitions guilty
of the
offence and as such, they were convicted as mentioned above. Perusal of
the record
reveals that the dead body of the unfortunate deceased was recovered
from the
Saim Nala. The doctor who appeared as PW-06 namely Shoukat Ali gave
cause of
death throttling, asphyxia, respiratory arrest. It was only external
examination of
the body wherein it has been mentioned that the body was
completely "putrefied
very foul smell about two to three days back
death". On external examination, it
was found that there was no blood
stained or bullet wound on the person of the
deceased.
6. There
are plethora of judgments on the subject that the strength of
circumstantial
evidence has been highlighted however the basic judgment which
leads to the
conclusion of all other judgments is mentioned in Siraj v. The Crown
(PLD 1956 Federal
Court 123) (Appellate jurisdiction). The relevant para is as
under-:
"The
evidence against the appellant was wholly circumstantial, but the learned
Judges held that the proved circumstances were incompatible with the
innocence
of the appellant. It is obvious that if, on the facts, held proved by
the High
Court, no hypothesis consistent with the innocence of the appellant
can be
suggested, the conviction must be upheld. If, however, such facts can
be
reconciled with any reasonable hypothesis compatible with the innocence
of the
appellant, the case will to be treated as one of the no evidence and the
conviction and the sentence will in that case have to be quashed."
It is admitted fact that there is no direct
evidence available on the record which
connects the involvement of the
petitioners in the occurrence alleged against them
even otherwise the learned
trial court has relied upon the extra judicial confession
which was recorded by
the Investigating officer in the presence of PW-03 Shabir
Ahmad 995/C. It is
strange enough that the extra judicial confession recorded in the
presence of
police personnel when they were under arrest and at the time of making
statement they ware also in handcuffs. This practice of recording extra
judicial
confession by the police officials in presence of police officers is
nullity in the eye
of law and no credence can be extended to this piece of
evidence. As far as the
recovery of certain articles belonging to the deceased
are concerned, it is sufficient
to mention that recovery of all those articles
are result of conjecture and surmises
and without any legal backing hence, do
not advance the case of the prosecution
especially when all those piece of
evidence were denied by the accused while

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making their statement under section

342, Cr.P.C. Another very crucial point which
requires determination is that
only provisional external examination of the dead
body of the deceased was
conducted without any postmortem report available on
the record and it is not
even claimed by the prosecution that the autopsy was
conducted over the dead
body of the deceased. The finding of the Medical Officer
qua the cause of death
only from external observation has no legal sanctity. It is the
requirement of
law that the finding qua the cause of death, time of death and
manner of death
cannot be substantiated without post-mortem examination hence,
the observation
given by the Medical Officer appearing as PW-06 has no legal
sanctity
especially when the doctor himself is not certain about the time of death. It
is an admitted fact that the occurrence has taken place in the month of May
whereas
the finding given by the doctor qua time and cause of death do not
commensurate
keeping in view the condition of dead body as disclosed by the
doctor observed
during external examination. Possibility cannot be ruled out
that the deceased was
done to death earlier to the date disclosed in the crime
report. Accumulative effect
of the whole aspects taken into consideration by us
and the law laid down by this
Court, we are of the considered view that the
case of the prosecution is pregnant
with so many doubts which conjointly leads
to only one conclusion that the
prosecution has miserably failed to establish
the case against the petitioners
otherwise to extend benefit of doubt so many
circumstances are not required to be
brought forth. in this regard, guidance
has been sought from a judgment reported as
Tariq Pervez v. The State (1995
SCMR 1345).
7. As
a consequence, this petition is converted into appeal and same is allowed.
The
petitioners are ordered to be acquitted of the change in case FIR No. 28/2014
dated 15.05.2014 offence under section 302/34, .P.C. registered with Police
Station
Shaheed Malik Muhammad Ali, District Jaffarabad and they are directed
to be
released forthwith, if not required in any other case.
MWA/G-20/SC Petition
allowed.

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