1. JUDGMENT ARSHAD NOOR KHAN. J.
2. This Acquittal Appeal has been directed against the judgment dated 27.12.2006, passed by the learned I Additional Sessions Judge, Karachi- South in Sessions Case No! 683/2005 in Crime No. 159/2005 under Sections 302/34, P.P.C. Of Police Station Balouch Colony, Karachi, whereby the respondents Nos. 2 to 4 have been acquitted from the charge.
3. The facts, as stated in the F.I.R.. Are that the complainant alongwith the father and his Bhabhi Mst.
4. Fatima alongwith her three children is residing in house No. 1050, 35-C, Mahmoodabad No. 6, Karachi and is running a barber shop near Kashmir Hotel, Manzoor Colony. It is further stated in the F.I.R. That the said house was originally allotted in his name and in the name of his deceased brother Muhammad Yousuf and some time back his' father Muhammad Shafi got half of the afore- said house transferred in his name and was inclined to dispose of his share in the said house. On 30.7.2005, at about 8.00 p.m., the complainant was present at his shop and a boy came to him and informed him that his father is not feeling well, who has been shifted to Jinnah Hospital. He, therefore, closed his shop and rushed to his house where so many people were present and saw that the corpse of his father was lying on earth, duly smeared with blood. He inquired from his Bhabhi, who informed him that she after locking the main door of the house, had gone at the house of her neighbour alongwith her children and the deceased was present in his room and when she returned,' she-found the deceased lying in the pool of blood and she raised commotion, which attracted to the people collected there, as such the statement of the complainant was recorded by the police under Section 154, Cr.P.C., which was incorporated in F I R. Book. During the course of investigation, the confessional statement of respondents Nos. 2 to 4 namely deceased accused Muhammad Yameen and Mst. Fatima were also recorded vide Exs.24B & 24C respectively. After usual investigation, challan against the accused was sent in Court to stand trial.
5. After receipt of the challan and the compliance of Section 265-C, Cr.P.C., the charge against the accused was framed on 5.4.2006, to which they pleaded not guilty and claimed trial. After framing the charge, the prosecution examined PW-1 Muhammad Younus vide Ex.8, who produced his statement under Section 154, Cr.P.C. Vide Ex.9, inspection memo, of place of incident vide Ex.10, mashirnama of arrest of accused Mst. Fatima vide Ex 11. And mashirnama of arrest of accused Muhammad Yameen vide Ex. 12 as well as mashirnama of arrest of accused Abdul Rahman vide Ex.13, PW-2 Muhammad Ameen vide Ex.16, PW-3 Haji Muhammad Ramzan vide Ex. 17, who produced inspection memo, of corpse and inquest report of the deceased vide Exs.17A and 17B respectively, PW-4 Muhammad Ameen SIP vide Ex.19, who produced roznamcha entry No. 34 vide Ex.19A, the letter addressed to MLO vide Ex. 19, receipt of delivery of the corpse vide Ex. 19, letter addressed to Edhi Centre vide Ex.19D and copy of F.I.R. Vide Ex.19E, PW-5 'lady constable Noreen, who produced roznamcha entry No. 23 vide Ex.23A, PW-6 Zulfiqar Ali Memon, Judicial Magistrate, vide Ex.24, who produced letter addressed to him vide Ex.24A, confessional statement of accused Muhammad Yameen vide Ex.24B and confessional statement of accused Mst. Fatima vide Ex.24C. PW-7 Aslam Perwaiz. SIP vide Ex.25, who produced roznamcha entry Nos. 16 & 36 vide Exs.25A & 25B respectively, letters addressed to the Chemical Examiner vide Exs.25C & 25D, the weapon, viz. Churri vide Article A, PW-9 Dr. Abdul Razzak, MLO, who conducted the autopsy on the corpse of the deceased vide Ex.28A and PW-9 Mazhar Iqbal, SIP vide Ex.29, who produced memo, of arrest of accused Tariq Saleem vide Ex.29A and the prosecution closed their side vide statement of the DDA vide Ex.13.
6. The statements of the accused were recorded under Section 342(1), Cr.P.C., wherein they denied to have committed the present offence and accused Mst. Fatima denied the recording of proper confessional statement. She also stated that she was detained in lockup for a period of 8 days and was subjected .To torture to extract her confessional statement and her arrest has been mala fidley shown on 30.7.2005. During the pendency of case before the learned Trial Court, the accused Muhammad Yameen expired, as such the proceedings against him were abated.
7. After evaluation of .The evidence available on record, the learned Trial Court was of the view that the prosecution miserably failed to establish its case against the accused beyond any reasonable doubt, as such acquitted the accused vide order impugned herein, hence present appeal.
8. I have heard Mr. Muhammad Rashid, learned counsel for the appellant, Mr. Muhammad Ayaz- Khan, learned counsel for the State, Mr. Dilawar Hussain, learned counsel for respondents Nos. 2&3 and Mr. Amanullah Khattak, learned counsel for respondent No. 4.
9. Mr. Muhammad Rashid, learned counsel for the appellant, vehemently contended that the learned lower Court did not consider the confessional statements of the accused Mst. Fatima and deceased accused Muhammad Yameen, which fully connect all the accused in the present crime and the said confessional statements have not been disproved by the accused by leading any independent evidence before the learned lower Court. He further contended that the evidence available on record has not been considered by the learned lower Court in its true perspective and the recovery of the blood-stained churri from the spot, as per confession of accused Mst. Fatima, was handed over to the co-accused by her, was secured from the spot, which has not been used against the accused as corroborative piece of evidence. According to him, the learned lower Court did not consider the motive of the respondent in committing the murder of the deceased as Mst.
10. Fatima and Abdul Rahman wants to grab the property of the deceased, for which certain litigation was also going on before the Courts, as such the involvement of the present accused was fully established because of the motive over the property in between the deceased and the accused, as such the learned lower Court was not justified in acquitting the accused from the charge.
11. M/s. Amanullah Khattak and Dilawar Hussain, learned counsel for the Respondents/accused have vehemently contended that the whole case of the prosecution hinges upon the circumstantial evidence and the case based on circumstantial evidence requires careful scrutiny as all the chains must be linked with each other so as to establish the case of the prosecution, but in the present case no evidence is available on record to link the chain of the crime with each other and the confessional statement of the accused has not been supported and corroborated with the independent evidence brought on record by the prosecution and that mere recovery of the churri used in the commission of the crime from the spot could not be used against the accused, nor the same is corroborative piece of evidence to connect the accused in the present crime, as such the case of the prosecution was not free from doubt and the learned lower Court rightly acquitted the accused from the charge.
12. Mr. Muhammad Ayaz Khan, learned counsel for the State, also supported the judgment passed by the learned lower Court.
13. I have considered the arguments advanced by the learned counsel for the parties and have gone through the entire evidence available on record.
14. Admittedly the case of the prosecution rests upon the circumstantial- evidence as no ocular evidence is available on record. The incident of murder of deceased Muhammad Shafi was committed in his house when he was present alone and when the respondent Mst. Fatima who is the daughter-in-law of the deceased, returned to her house, she found him lying in the pool of blood. The complainant was informed at his barber shop and he rushed to the house and he was informed by the accused Mst. Fatima that she had gone to the house of neighbours and on her return, she found the deceased lying dead. Complainant Muhammad Younus in his statement before the learned lower Court has also affirmed the contents of his statement under Section 154, Cr.P.C. (Ex.9) and from his evidence it is evident that nowhere he even suspected in his Bhabhi at the initial stage of incident and he was informed by the I.O. That he suspects in her. He has also deposed so in his statement before the lower Court. His evidence is, therefore, completely silent to involve any of the accused in the present crime. The I.O. In his statement before the learned lower Court has stated that PW-2 Muhammad Ameen informed him that on 30.7.2005 he was sitting on the shop of barber situated opposite to the house of the deceased and he saw two persons coming out from his house, whereas PW Muhammad Ameen in his statement before the learned Trial Court has stated that on 30.7.2005, he was present at Faisalabad, as such the said piece of evidence created by the I.O. Has not been confirmed or affirmed; by PW-3 Muhammad Ameen. All the prosecution witnesses, who have been examined by the prosecution, have not- directly implicated the present accused in the present crime.
15. The prosecution mainly relied upon the confessional statement of accused Mst. Fatima (Ex.24C) and confessional statement of deceased accused Muhammad Yameen (Ex.24B). I have also gone through the confessional statements of both these accused. Accused Mst. Fatima in her confession statement (Ex.24C) has confessed that there was dispute in between her and her father-in-law over her house as her father-in-law was forcing her to transfer portion of her house in his favour, to which she was not inclined. She had also consulted with Abdul Rahman, who advised her to eliminate her father-in-law, as such on his pursuance she paid Rs. 60,000/- to him for elimination of the deceased and that her father-in-law also used to commit,Zina upon her and on the fateful day of incident Tariq Gujjar and Yameen came to her house and her father-in-law was lying under the affairs of the medicines and accused Yameen caught hold the legs of the deceased and Tariq Gujjar inflicted churri blow on the neck of the deceased and another churri blow was inflicted on the abdomen and they both went away from there. In the confessional statement of deceased accused Muhammad Yameen, the similar, injuries have; been stated by him, to have been inflicted by Tariq Gujjar, as such from the confessional statement of both the accused it appears that two churri blows were /allegedly inflicted to the. Deceased. The said assertion contained in the confessional Statement of both the accused has not been supported with the medical evidence available on record. As per medical evidence available on record the deceased sustained as many as nine injuries. The injuries sustained by the deceased and noted by PW-8 Dr. Abdul Razzak, MLO, at the time of autopsy on the corpse of the deceased, are usefully quoted hereinbelow for the sake of convenience:- "(1) Stab wound 3 cm x 0.5 cm above right cervical cavity deep at mid.
(2) Stab wound 2 cm x 1 cm mid of left chest near sternum.
(3) Stab wound 2 cm x 1 cm mid of epigastrium cavity deep.
(4) Incised wound 4 cm x 2 cm right iliac fossa cavity deep.
(5) Stab wound 2 cm x 0.5 cm right lumber region cavity deep.
(6) Incised wound 3 cm x 0.5 cm left lower forearm skin deep.
(7) Incised wound 3 cm x 0.5 cm left upper forearm skin deep.
(8) Incised wound 2 cm x 0.2 cm mid of forearm skin deep.
(9) Incised wound 2 cm x 0.2 cm mid of neck."
16. A perusal of the medical evidence of Dr. Abdul Razzak, MLO reproduced above, shows that the deceased had sustained as many as nine injuries, as such the medical evidence is completely in derogation with the confessional statements of the accused. It is settled principle of law that the confessional statement of the accused must be supported and corroborated through some independent and reliable evidence to rely upon it for conviction of the accused. In the present case, the medical evidence is the evidence which could support the confessional statements of the accused, if it was truly recorded by them, but, as discussed above, the accused in their confessional statements have deposed only two injuries inflicted by co accused Tariq Guijar, which does not find support from the medical evidence. Apart from the medical evidence, no other evidence is available on record to corroborate the confessional statements of the accused, as such the confessional statements could not be treated as sufficient and reliable . Evidence to convict the accused. Even otherwise accused Mst. Fatima has made exculpatory confession statement and exculpatory confessional statement could not be used against the co-accused for the purpose of conviction.
17. The confessional statements of both the accused were recorded by PW-6 Zulfiqar Ali Memon, Judicial Magistrate. In his statement, the learned Magistrate deposed that on 8.8.2005, an application was submitted before him by the 1.0. For the purpose of recording confessional statements of the accused Mst. Fatima and Muhammad Yameen. He removed the hand cuffs of the accused Muhammad Yameen and made him sit in the chamber and allowed him time for reflection from 11.45 a.m. To'2.05 p.m. And he allowed the time for reflection to accused Mst. Fatima from 1.00 p.m. To 3.00 p.m. And after completion of all the legal as well as procedural formalities, recorded .The statements of the accused under Section 164, Cr.P.C. The learned Magistrate in his evidence has not stated that when the accused were produced before him, he introduced himself to be a Magistrate to the accused and he also did not inform them that they have been produced before him for the purpose of recording of their confessional statements, for which they are not bound to record and, in case, if they inclined to record their confessional statements, the said confessional statements may be used as evidence against them and that they will not be sent in the police custody, in case, if they are recording their confessional statements or not. It is also not deposed by the learned Magistrate that he inspected the body of the male accused to ascertain as to whether any torture was committed on him or not to extract his confessional statement. AH these requirements must be complied with by the learned Magistrate prior to recording of the confessional statements of the accused and, in case, if after compliance of all these requirements .
18. And on completion of reflection period, if the accused still inclined to record the confessional statements, then the said confessional statements may be recorded. In absence of fulfilment of all the aforesaid requirements it could not be said that the confessional statements of the accused were willful and voluntary, as such the confessional statements of the accused (Exs.24B & 24C) have no lawful sanctity and no reliance could be placed on such confessional statements of the accused, which have not been recorded properly by the learned Judicial Magistrate.
19. The recovery of the churri used at the time of commission of the offence also could not be used as piece of evidence against the present accused as admittedly the said churri was not secured at the instance of any accused but it was secured lying near the corpse by the I.O., therefore, it could not be said that the said churri was recovered at the instance of the accused.
20. The accused have been found innocent by the learned Trial Court while acquitting them from the charge, as such their innocence becomes doubtful when the judgment of acquittal was recorded in their favour by the learned lower Court and no illegality has been pointed out by the learned counsel for the appellant, nor any misreading or non-reading of evidence is apparent on the face of record. The legality, validity and sanctity of the confessional statements of the accused have also been correctly adjudged by the learned Trial Court, as such no case for interference has been made out to reverse the findings of the learned lower Court. The appeal has, therefore, no merit and the same is hereby dismissed summarily.