DR. RANA MUHAMMAD SHAMIM, J.---The appellants in the above appeal have impugned the judgment dated 6.7.1999 passed by learned Judge Anti-Terrorism Court No.1 Karachi whereby they were awarded death sentence for committing Mil& under section 7(i)(b) of A.T. Act read with sections 302(b) and 34, P.P.C. And convicted and sentenced R.I. For 10 years and to pay a fine of Rs,75,000/- each, in case of non-payment of fine to undergo R.I. For two years; for the offence under section 392 r/w 34, P.P.C., registered at P.S. Saudabad vide Crime No.123 of 1998. Since the facts of all the appeals are the same as having been arisen of the same FIR/offence and by same judgment all the appellants have been convicted,' we propose to decide all the appeals through this common judgment.
2. Brief facts out of which the above appeals have arisen are that on 30.12.1998 on telephone call from Humair Iqbal, son of the complainant, the Additional S.H.O. Reached at House. No.D.2/133 and found dead bodies of three persons Nawab Ahmed, Abrar Begum and Asif Nawab. He, thereafter came at P.S. And lodged the FIR against unknown persons.
3. During the course of investigation the appellants including accused Wasim, were arrested.
Appellant Javed also led the police party to three places from where police recovered broken plastic pistols, blood stained churies and burnt pieces of shirt and ashes while appellant Farhan had led the police to his house from where golden ornaments and prize bonds were recovered.
4. On receipt of challan the copies were supplied to the appellants while charge was framed under section 392, P.P.C. And 7(i)(a) of A.T. Act read with sections 302, 34, P.P.C. To which the appellants pleaded not guilty and thus the trial commenced.
5. The prosecution to prove its case examined following 14 witnesses:--
(1) PW-1 Dr. Noohina Hassan (Ex:9) who has produced Medical certificate of accused Asma Nawab (Ex-10), post mortem notes of deceased Abrar Begum (Ex.10/A).
(2) P.W.2 Dr. Kazi Asif Jan (Exh.11) who produced the post mortem report of deceased Asif Ahmed and Nawab (Ex.12 & 13).
(3) PW-3 Maqbool Ahmed Judicial Magistrate (Ex.14) who produced the confessional statement of the accused persons (Ex.15 to Ex.18) and memo of identification parade (Ex.19).
(4) PW-4 Syed Iqbal Hassan (Ex.20) who has produced FIR (Ex-21) and mashirnama of place of incident (Ex.22).
(5) PW-5 Nazir Ahmed (Ex.23) who has produced inquest reports and memo. Of dead bodies (Ex.24 to 229).
(6) PW-6 Taj Muhammad (Ex-30) who produced letters, two finger prints with its photographs, finger prints of accused persons and report (Ex.31 to 42)
(7) PW-7 Absar Hassan (Ex.43) who has produced memo of recoveries and sketch of pistols, knives and burnt shirt and ashes (Ex.44 to 46), mashirnama of wardat (Ex.47), mashirnama of place of recovery of plastic TT pistols and knives (Ex.48 & 49), mashirnama of identification of golden ornaments (Exh.50), list of Sr. No. Of prize bonds (Ex.51), two broken plastic TT pistols (Articles A & B), two big knives/chhuries (articles C&D), ash and burnt clothes (Articles E&F), golden earrings, one g.Olden chain with locket and one golden ring (G, H&I) and 52 prize bonds of 1000 each (Article J).
(8) PW-8 ASI Arooshah (Ex.52) who has produced arrest of accused Asma Nawab (Ex.53).
(9) PW-9 Asfar Mehboob (Ex.54).
(10) PW-10 Jamil Ahmed (Ex-55) who has Produced the mashirnama of recovery of prize bonds (Ex.56).
(11) PW-11 Bashir Ahmed (Ex.57)
(12) PW-12 Tapedar Khuda Bux (Ex.58) who has produced plan (Ex.59)
(13) PW-13 Abdul Wahid (Ex.60) who has produced chemical analyzer report (Ex.60 to 63).
(14) PW-14 Inspector Latif (Ex.64) who has produced mashirnama of arrest of accused Wasirn and Farhan and of accused Javed (Ex.66 & 67), four platform tickets of Multan, one Telicard, cash of Rs.9100, two PTA tickets, boarding ticket and two purses (Articles K to U) and three packets containing clothes of deceased (Articles V, W & X).
6. The prosecution thereafter closed its side and the statement of accused persons were recorded under section 342, Cr.P.C. In which they have denied the allegations leveled against him. Appellant Farhan in his statement took the plea that he is working in Multan and was called immediately due to illness of his mother and was arrested from his house along with co-accused Wasim on 3-1- 1999, who is the son of his sister. He further alleged that he was taken to police station where he was severely tortured by S.H.O. Mumtaz who also forcibly got his signature on a paper. He further stated that thereafter on 7-1-1999 he along with Wasim and Javed were taken to City Court where SHO Mumriz and SHO Abdul Latif got their signatures on some papers. Appellant Javed took the stand that he had refused one Shahzad, who was the driver of SHO Mumriz to repair the car he brought without any payment for doing such repair, which had resulted in a quarrel between both.
He further alleged that said Shahzad had threatened him that he will involve the appellant in a case so that he should remain in jail for life and in consequence thereof he was arrested on 31.12.1998 when Shahzad came with two other police constables at his workshop. He further alleged that he was severely beaten by the police. He also alleged that on 7.1.1999 he along with Wasim and Farhan were taken to City Court where SHO Latif got their signatures' on some papers. Appellant Mst. Asma Nawab in her statement only stated that she did not know what had happened in her house and who had killed her parents and brother.
7. The appellant Asma Nawab examined herself on oath (Ex.85) while appellant Javed Ahmed Siddiqui, Farhan Khan and accused Wasim did not opt to examine themselves on oath. As regards defence witnesses appellant Asma Nawab did not examine any witness in her defence while appellant Javed had examined Nasir Ahmed (Ex.77) and Abdul Salam (Ex.77) (sic) and appellants Javed, Farhan and accused Wasim examined Sayed Ali Raza (Ex.80), Rashid Ahmed (Ex.82) and Mukhktiarkar (Ex.83) in their defence.
8. The learned trial Court had also examined two more witnesses while exercising powers under section 161 of Qanun-e-Shahadat Order, 1984 which followed by further questions put to appellant Asma Nawab and further cross-examination of PW SHO Abdul Latif.
9. The learned trial Court in the light of material placed before it formulated the following points for determination:--
(1) Whether deceased Nawab Ahmed, Abrar Begum and Asif Nawab had received incised injuries and died on account of the said injuries?
(2) Whether the accused had caused the said injuries?
(3) Whether the accused had committed robbery from the house of the deceased and caused murders, which created terror and sense of fear and insecurity in the people?
(4) What offence, if any, the accused have committed?
10. Learned trial Court after hearing the learned counsel for the appellants and so also the State counsel and perusing the material available on record convicted the appellants, as stated above, hence these appeals.
11. Mr. Waqar Shah, learned counsel for appellant Javed Ahmed Siddiqui in Spl. ATA Appeal No 77 of 1999, has contended that appellant Javed Ahmed Siddiqui is innocent and has falsely been implicated in this case. He further contended that the only piece of evidence on which the entire prosecution case is premised against appellant Javed is the recovery of Churry and his confessional statement. He further contended that the confessional statement is inculpatory to the extent of robbery while exculpatory to the extent of murder hence the same cannot be termed as a piece of evidence for conviction for the offence of murder. He further contended that the confession as recorded is against the provisions of section 364, Cr.P.C., there was also defect in the certificate. Learned counsel further contended there was no confession as to murder by the appellant Javed hence the question of corroboration does not arise and the finding recorded by the learned trial Court is thus not tenable. Without prejudice to the above, learned counsel further contended that the motive was to commit robbery and not the murder of the innocent persons. He contended that it was a spur of moment, on instigation of Asma, that the murder was committed.
Learned counsel further contended that appellant accused Asma Nawab had been changing the version which makes her to be involved in the commission of the offence. Learned counsel further contended that the incident is unseen and the evidence of the prosecution witnesses is not confidence inspiring as the same is contradictory on material aspects and the conviction based on circumstantial evidence is not sufficient to prove the crime as against appellant Javed. In support of his contentions, learned counsel has placed reliance on:-- AIR 1952 SC 343 (354)
AIR 1931 Allahabad 1 2008 SCMR 670.
12. Mr. A.Q. Halepota, learned counsel for appellant Muhammad Farhan Khan in Spl. ATA Appeal No.79 of 1999, has contended that the FIR is blind. There is no eye-witness of the incident and the prosecution had to rely upon circumstantial evidence. Learned counsel further contended that the FIR was lodged at 11 A.M. By brother-in-law while the people were outside the house and the police was inside the house with dead bodies. The FIR is only lodged for murder and nothing was found missing at the house. The complainant is also a mashir but mushirnama was not mentioned in the FIR.
He further contended that due to publicity every one knows it is Asma Nawab's case, hence the learned trial Court appears to have influenced with the same. It has not come on record about sensation of incident and of highlighting in media.
He further contended at the impugned judgment is mainly based on the confessional statement of appellants which is last in series of investigation. He in support of this relied upon 1985 MLD 604 and AIR 1952 SC 159. He further contended that the learned trial Court has failed to consider that the confession is not true and the same has no evidentiary value. The confession was to be recorded on the very next day of arrest but the same was recorded on 7.1.1999 in which what was stated was tutored. He further contended that there is delay. Of five days in recording of the confession and the possibility of pressuring and maltreating the appellants to give a confession cannot be ruled out. He referred to the record and submitted that the request for recording the confession was made on 6.1.1999 and on 7.1.1999 it was recorded. Learned counsel further contended that appellant Farhan has nowhere stated in his confession that murders were committed with Churries. Even otherwise the Churries were recovered on pointation of appellant Javed. He further contended that all the appellants should not have been made to sit together while reflection time is given. All were visible from the Court room. They were under the care of one clerk only. While recording confession of one accused the same could easily be heard by others. Indeed, all the accused should have been produced separately with separate time of reflection. No separate first warning was given to each appellant before recording of confessional statement. Learned counsel further contended that on confession of Wasim on third page signatures of Farhan is taken. Learned counsel further contended that the retracted judicial confession cannot be made the basis of conviction. All the accused were produced at 10:00 a.m. And were given the same time. No time for reflection was given. How to all the four accused the time for reflection was distributed. Learned counsel submits that the requirement of law is that warning must be given individually to each accused. Magistrate has not mentioned that how much time is given for reflection. Warning given to all accused is invalid in law. No assurance by the Magistrate was given to the accused that after recording of confession they will not be handed over to the same police: Confession would be tutored if the recoveries are made on the pointation of accused and police knew if the same is stated in confessional statement.
On finger prints learned counsel argued that it is alleged that left middle finger print of appellant Farhan has been lifted from Almirah, which is semi visible print. The impressions were not taken from the house articles in presence of Magistrate nor any musheernama was prepared for taking finger prints at the place of incident. It has also not come in evidence that after commission of murder and robbery who was in control of the house where the incident took place. While relying on the definition of skilled person under section 45 of the Evidence Act learned counsel contended that the Court should have asked PW-11 Bashir, a finger print expert, whether he has knowledge and skill of being expert and since this question has not been put to the said witness his evidence is to be excluded. He further contended that the defence counsel was right by not asking such question.
He further contended that the expert in his report has not given any reason of matching with finger prints. Both P.W.-6 and PW-11 are not skilled persons and may not be treated as experts. Even no question was put as to whether the finger prints of appellant Farhan were taken or not. Learned counsel contended that the evidence was subsequently created. He further contended that according to prosecution the Almirah was opened by appellant Farhan but no robbed money was recovered from him.
Learned counsel further contended that the evidence was not properly recorded by the learned trial Court in that respect learned counsel has referred to Article 47 of the Qanun-e-Shahadat Order, 1984. While relying on Article 43 of Qanun-e-Shahadat Order, 1984, learned counsel contended that appellant accused Javed after his arrest made discoveries and on his pointation recoveries of crime i.e. Burnt pieces and ashes for clothes etc. Were recovered but his evidence cannot be accepted on its face value for convicting co-accused as there is no corroboration in material aspects of the matter. The second piece of evidence is that Farhan led the , police party for recovery of pistol which was already known to the police and was not a secret as recovery from there had already been effected on pointation of Javed hence this piece of evidence may have not been used against appellant. Farhan, who alleged to have led the police to his house and produced robbed articles i.e. Prize bonds etc. He further contended that PW-9 has stated in his evidence that he saw one girl and three persons but has identified one appellant and co- appellant. Mushirnama is contradictory to the attending circumstances. The witnesses of identification parade were not examined. Learned trial Court has not considered the fact that why the criminals who have committed these murder and robbery should look back while leaving the house. He contended that if there are valid reasons, finding of learned trial Court may not be relied upon by this Court. He contended that the learned trial Court has not properly appreciated the evidence as held in AIR 1952 SC 159 and the same have created doubt in the prosecution case and it is settled law that the benefit of doubt always to go in favour of the accused as held in 1987 PCr.LJ 2173(2177). Learned counsel in support of his arguments has further placed reliance on the following cases reported in:-- 1975 PCr.LJ 70(74) A PLD 1975 SC 187 (191) C 1984 PCr.LJ 611 (616)C (619) E (620)
1985 MLD 604 (625)J (631)Q PLD 1990 Karachi 275 PLD 1987 Quetta 96 (102)B 2006 SCMR 1707 1713(E)
AIR 1976 SC 6 (73) AIR 1999 SC 3318 (Paras 18 and 19).
13. Mr. Iqtidar Ali Hashmi; learned counsel for appellant Asma Nawab in Spl. ATA Appeal No.80 of 1999, while adopting the above arguments advanced by learned counsel for other appellants, has firstly added that appellant Asma Nawab is a helpless poor, distress and unfortunate lady whose entire family has been murdered and she is behind the bars for the last about 10 years. He further submitted that had she been a witness she would have unearthed the real culprits but she has been made a victim of the dishonest investigation by the police. Learned counsel further contended that there is no evidence against appellant Asma Nawab except the confession which is not admissible in law as being not an inculpatory confession. He contended that the prosecution could not prove its case beyond any reasonable doubt and it is a settled principle of law that even if simple circumstance creates doubt, the benefit would be given to the accused but the learned trial Court has acted contrary to that. In support of his contentions he placed reliance on:-- 1999 SCMR 1345 1992 SCMR 196 (A&E)
PLD 1996 SC 1 (D)
PLD SCMR 336(B)
14. Mr. Saifullah, learned Assistant Advocate General, appearing for the State, has supported the impugned judgment by saying that the appellants do not deserve any sympathy from this court as they are involved in heinous crime. There is no dishonest investigation on the part of the police as the police got the clue from appellant Asma Nawab. Keys of Almirah were lying in the brazier of her mother, which was pointed out by appellant Asma Nawab. On the pointation of appellant Asma Nawab the place of incident was visited by the police. P.W. Asfar livlihood has seen all the accused persons coming from the house/place of incident. Ali the appellants have confessed their crime and there is no contradiction in their statements. Learned A.A.-G. Further contended that the confession of appellant Asma Nawab is exculpatory as she wanted to save herself. He contended that the circumstantial evidence is against the appellant and section 34, P.P.C. I s applicable and they have rightly been convicted. He further contended that the Magistrate has completed all the legal formalities while recording the statements under section 164, Cr.P.C. Three accused were called in chamber, given warning and reflection time and thereafter their confession was recorded and it cannot be said that the same were tutored. The signatures of accused Wasim and Javaid were obtained. On the last page only. No question was put or confronted to Magistrate that how and why signatures were obtained of accused Wasim on second page of confession of Jawed. The accused may have manipulated to sign it. He further contended that when the accused were brought they were produced in Court, confession was recorded in chamber whereas the co- accused were in Court, there is verandah in between the Court and chamber, therefore, one could not hear what was being stated by the accused . In chamber in their statement under section 164, Cr.P.C. Learned A.A.-G. Further contended that the very next day of occurrence the finger prints were preserved by PW-11 which were compared by PW-6 while the impressions of accused persons were obtained by SIP Mumraiz. PW-14 produced report of thumb impression, memo etc. But no question about these documents was asked by learned Defence counsel and the same goes unchallenged. Learned counsel further contended that even retracted confession, without corroboration, is sufficient for conviction. He further contended that it is a settled principle of law laid down by the apex Court that the administrative lapse on the part of Magistrate in recording confession can be ignored and the same is not fatal to the prosecution case so also the delay of four days in recording the same. He further contended that no one would make any admission against his/her own interest unless the same was true as in the instant case is where the appellants have recorded their confessional statements. Learned AAG further contended that inculpatory statements are also receivable under Article .40 of Qanun-e-Shahadat Order as the section itself says "whether the statement amounts to a confession or not. He further contended that -the statement of accused during the investigation is admissible in evidence by virtue of section 27 of the Evidence Act. Learned AAG further contended that the abetment also includes "help and facilitate" and thus all the appellants have rightly been convicted. He also contends that all the appellants including accused Wasim entered in the place of incident at 7 A.M. As stated by them in their confessional statements recorded under section 164, Cr.P.C. In support of his contentions he placed reliance on:-- '
PLD 1991 SC 923 1992 SCMR 1983 PLD 2006 SC 219 PLD 1960 SC 313 PLD 2007 SC 202 1972 SCMR 363 AIR 1958 SC 1958 AIR 1973 SC 264 AIR 1963 SC 1094 AIR 1966 SC 40 2002 SCMR 1173 2000 SCMR 1969 PLD 1984 FSC 55
15. We have heard the arguments of all the learned counsel appearing for the appellants and so also learned Assistant Advocate General and with their assistance have carefully examined the material available on record.
16. From the above contentions of the learned counsel it appears that the learned counsel have based their arguments mainly on Confessional statements of the appellants.
17. It is an admitted position that the confession, as recorded, is partly inclupatory and partly exculpatory. The question arises is whether on the basis of such statement conviction can be awarded. We have perused the material available on record. There are admissions and confessions of the appellants on record, one recorded before the police and the other before the Magistrate under section 164, Cr.P.C. It appears that the appellants have in their statements before the police have admitted to have committed the murder but while recording the statements before the Magistrate they all have shifted the burden as to murder to each other while admitting the robbery. In fact the circumstances, as enumerated, were totally against them and they were quite unable to prove that they were not present in the house in question as such they had no choice but to admit the robbery and shift the burden as to murder to other. Indeed, in our humble view no one would make any admission against his own interest unless the same was true. But, since this truth was to follow very serious consequences the appellants backed out from the same.
Even otherwise, in our view the appellants have failed to prove that there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false hence the appellants cannot take advantage of the same. The case law relied upon by the learned counsel for the appellants on this, score are thus not applicable to the present case as the prosecution has been able to adduce sufficient evidence bearing on the guilt of the appellants other than the confession. As regards the case reported in AIR 1852 SC 343(354), the same does not pertain to a confessional statement made before a Magistrate in a murder case hence its facts are quite distinguishable from the present case.
18. The plea that retracted judicial confession cannot be made the basis of conviction is also not supportive to the appellants in the facts and circumstances of the instant case. The basic principle behind this presumption is that the Court has to see firstly whether the accused has been able to prove that the confession was tutored and recorded under some duress or inducement and secondly the same is corroborated by other evidence. In the instant case in the impugned judgment the learned trial Court has discussed this aspect of the matter very elaborately.
Appellant Asma Nawab in her confessional statement has pointed out where the dead bodies were lying. The same is corroborated by other appellants in their confessional statement. Appellant Asma Nawab admitted that she had illicit relations with appellant Farhan with whom she had also met in privacy, the same has also been admitted by appellant Farhan and is corroborated by appellant Jawed and Wasim and so also the medical evidence proves that appellant Asma Nawab is not virgin. All the appellants have admitted the crime weapon to be two Churries, which were recovered on the pointation of appellant Jawed from a place which was stated by them in their statements. Appellant Farhan was also taken to the place of recovery, who pointed out the same place from where the recovery was effected. The places where the same were lying were in their exclusive knowledge. Availability of finger prints of appellant Farhan on Almirah also corroborates the fact, which appellants have stated in their confessional statements, that they have taken the robbed items from the Almirah. All the appellants have also clearly stated in their statements that they committed murder with two Chhurries, which has also been corroborated by medical evidence. In our humble view, these pieces of evidence are sufficient to hold that the confessions of the appellants are corroborative in nature. From, comparison of the FIR with the confessional statements of the accused will also reveal the similarity in both of them and in such circumstance in the case reported in PLD 2005 SC 477 the apex Court has held as under:-- "The occurrence disclosed by the petitioner in his confessional statement was narrated in the same manner in the FIR and this similarity of confessional statement of the petitioner with the story of FIR would strongly suggest the truthfulness of statement of complainant and also of the confessional statement of the petitioner which was found independent, true and voluntary."
19. Furthermore, we have also observed that if the plea of the appellants that they were tutored and tortured to give confessional statement is taken as true then the question arises as to why the prosecution has kept difference/ contradictions in their statements, there was no hurdle in the way of the prosecution to have a statement free from any legal/factual flaw. It has been held by the apex court in the case reported in PLD 1960 SC 313 that the retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true and that being the case, no reason whatsoever can be found for the inability felt by the learned Judges in taking the confession into consideration against the co-accused. Even in the case reported in PLD 2006 SC 30 the apex court has gone to the extent that a retracted confession either judicial or extra judicial, if is found truthful and confidence inspiring and also qualifies the test of voluntariness, the same can be used for conviction without looking for any other sort of corroboration.
20. In their arguments, learned counsel for the appellants have also taken some technical flaws in recording the confessional statements by the Magistrate. The Hon'ble apex Court in case reported in 1999 SCMR 1818 has observed that delay in recording confession by itself cannot render the same nugatory if otherwise it is proved on record that the same was made voluntarily while in the case reported in 2004 SCMR 331 the apex Court has even ignored The delay of 15 days in recording the confessional statement while in this case the delay is only 4/5 days. In the case reported in 1992 SCMR 1983 the apex Court while dealing with the question as to effect of recording of confessions of accused persons together has observed as under:- "Similarly, the fact that three accused were produced together before the Magistrate, and they were given time for reflection together and they were brought back together after lapse of reflection time, would not render their confessions defective, if the perusal of the same indicates that the accused/convicts were not tutored or coerced to make the same."
21. The plea of the learned counsel for the appellants that the confession of one accused could easily be heard by others is not supported from the material available. On record. The pleas that no reflection time was given or that separate warning to each accused was not given are not based on the evidence available on record. Even there is no restriction available in law for warning for reflection. As regards the signature of appellant Farhan on confession of Wasim is concerned, the same might be a maneuvered subsequently and, in our humble view, on this point all confessional statements cannot be discarded, Even otherwise, the defence did not put any question to clear this ambiguity, therefore, the possibility of its manipulation subsequently cannot be ruled out.
22. From the above what we have gathered from the arguments of the learned counsel is that they are agitating technicalities, which, in the light of above discussion, should not be considered and more particularly these are so minor that the same can be ignored in the facts and circumstances of the instant case.
23. Learned counsel for the appellant Farhan has also called in question the finger prints during the course of his arguments. Learned counsel has argued that it has not come in evidence that who was in control of the house in question. Indeed, this point is taken on the basis that something has been done at the place of incident in between the time of incident and the time when the fingerprints were lifted but we have noted that the defence has neither put any question from the prosecution witnesses nor the defence witnesses stated anything in this respect, therefore, this plea is not sustainable and the case law cited by the learned counsel in this regard are not attracted to the present case. Learned counsel has also admitted that no question was put to PW- 7 and PW-11 by the defence as to their expertise in the field of fingerprints hence we are of the view that their evidence cannot be discarded presuming them to be not fingerprint experts. So also the defence has not put any question as to the reasons for matching the fingerprints. We have also noted that the learned counsel has not been able to discard the finding of the learned trial Court that the evidence of PW-7 and PW-11 is free from material contradiction and thus confidence inspiring. Learned counsel has also not been able to point out as to why these witnesses have deposed against appellant Farhan and accused Wasim only and not said a single word against appellant Jawed.
25. We have also considered the arguments of the learned counsel on other points as well. We are of the view that the evidence has been properly recorded by the learned trial Court. Appellant Farhan stated in his confessional statement that all the three accused went to farm Indus Mehran where they had thrown T.T. Pistols and then Wasim went to his house and Javed had taken the Churies which he had thrown near Shabnam Bright School Model Colony. On pointation of appellant Javed broken plastic toys, blood stained churries and burnt pieces of shirt/trouser and ashes were secured. In order to further strengthen the.Case Appellant Farhan was also taken to the places of recovery who pointed out the same place where from the recovery was effected. The prosecution in support of recovery has examined PW Absar Hussain. The evidence of said witness is consistent on material aspects and the defence could not shatter his testimony during the lengthy cross-examination.
26. As regards the motive we are fortified with the recent observation of the apex Court reported in PLD 2008 SC 503 that:-- "Therefore, the old rule of failure of prosecution to prove the motive took the change through the judgment of the superior courts with the passage of time. Now-a-days, lack, absence, inadequacy, weakness, or the motive, if any, set up by the prosecution and failure to prove it or the motive is shrouded in mystery, are not the grounds to withhold penalty of death or to order, the sentence of life imprisonment, if the prosecution has succeeded to prove its case beyond any doubt or suspicion with regard to the commission of the offence."
27. We have also observed that the learned trial Court has carefully examined the evidence of defence witnesses in the impugned judgment. The learned counsel for the appellants have not been able to give a satisfactory reply as to the contradictions in the evidence of defence witnesses.
Even appellant Farhan failed to prove that he is serving at National Wood Industry Multan. The prosecution in its evidence has proved the presence of the appellants at the place of occurrence while on the other hand none of the appellants could produce any confidence inspiring evidence as to their presence somewhere else.
28. It may also be pertinent to observe that the learned senior counsel Mr. A.Q. Halepota has contended that print media. had given undue coverage to the story. Indeed, this may have two effects at the same time. First that the Court may be influenced but on the other hand it is also very common in our society and culture that if something has come on media the concerned persons become very cautious and careful. In such a situation since the print media has given vast coverage to this episode, being a stigma on moral values of our society, the inference/impression can be drawn that the Magistrate/investigating agencies had taken all precautionary measures to have a transparent and impartial proceeding as to remand, identification parade, confession statement etc. So that the Court/investigation agencies may not be scandalized.
29. Upshot of the above discussion is that the prosecution has proved its case against the appellants beyond reasonable doubt and they have been rightly convicted by the learned trial Court. There are no reasonable grounds to interfere with the judgment of conviction. The case law cited by the learned counsel for the appellants are not attracted in the light of the above discussion as each and every case is to be seen on its own merits. The case laws referred by the learned AAG are fully attracted and applicable Accordingly, the appeals are accordingly dismissed and the Reference is answered in affirmative.
(Sd.)
Dr. Rana Muhammad Shamim, J.
ALI SAIN DINO METLO, J---I have gone through the judgment of my learned brother Dr. Rana Muhammad Shamim-J (as he then was) but, with utmost regards for my learned brother, I am unable to persuade myself to agree with him.
2. The case of the prosecution is that there were illicit relations between . Appellants Asma and Farhan and that Farhan, with the help of his friend appellant Jawed, sister's son Waseem, and abetment of Asma, committed robbery and murders of Asma's parents and brother in their house, situated in Malir colony, Karachi. The facts, having been narrated in the judgment of my learned brother, need not be repeated.
3. The prosecution produced and - relied upon the evidence of confessions, - finger prints, identification, recovery of crime weapons, recovery of burnt shirt, G recovery of stolen property, pointation of the place of incident, and pointation of the places of recovery.
4. At the very outset, it may be pointed out that there is no eye-witness of the incident. The case of the prosecution is mainly based upon the judicial confessions.
The other pieces of evidence are produced to corroborate the confessions.
5. For a confession to be admissible in evidence, it is necessary that it should be free and voluntary.
A confession which is not free and voluntary cannot be legally relied upon even if it be true. For the purpose of relying upon a free and voluntary confession, it is necessary that it should be true as well. It is not necessary that all voluntary confessions be true. There can be many reasons such as mistake of fact, mistake of law, motives of love, hate, fear, hope, vanity etc. For a voluntary confession to be untrue. Thus, for a confession to be relied upon it is necessary that it should be both voluntary as well as true. It cannot be relied upon if there be doubt about its truth or voluntariness.
6. The other principle, which the Courts mostly follow, is that conviction is not to be based upon a retracted confession, unless materially corroborated by other evidence. This principle, which is called principle of prudence, is seldom deviated.
7. Repudiation of confession itself, casts doubt, about its truth and voluntariness. For the purpose of relying upon a retracted confession it is necessary to keep in mind the methods of policing prevailing in our country, particularly in the province of Sindh, where third degree methods are still in vogue.
8. True and voluntary confessions are supposed to be the out come of penitence and remorse on the part of the confessors, but it is difficult to comprehend that confessions are made mostly in those cases in which there is no or meager evidence and seldom in the cases in which evidence is otherwise sufficient and clear. It is also important to notice that the confessors repudiate their confessions as soon as they are brought before the trial court.
9. One of the reasons advanced by the prosecution for the repudiation of confessions is that conscience of the confessors becomes dull on their coming into contact with the devils of prison. At our police stations also, all are not angels! In blind cases of sensational nature, police has to show their efficiency also. A court of justice needs to be very cautious in relying upon a repudiated confession, particularly in a blind case of sensational nature. The present case, in which three members of a family were brutally slaughtered in the month of Ramzan in the city of Karachi, was undoubtedly of sensational nature.
10. The Federal Shariat Court, in the case of Ansar Mahmood and others versus the State, reported in 2004 PCr.LJ 754, expressed its reservations in relying upon a retracted confession in the following words:-- "A confession is an evidence of the person making it against himself. In case, at a later stage, the, said person denies to have made such confession voluntarily, on that occasion he is either speaking the truth or telling a lie. If he is speaking the truth, it means that the confession was not voluntarily made and it loses its value. If he is telling a lie, he is not a truthful witness and conviction cannot be based on the evidence of a person who is not a truthful witness. In both the cases, therefore, a retracted confession is practically useless."
11. In the present case, not only the confessions were repudiated as soon as the appellants were brought before the trial court but they also appear to be neither voluntary nor true. The other pieces of evidence produced to corroborate the confessions also appear to be padding on the part of police.
12. Confession of appellant Asma was recorded after seven days of her arrest, of Jawed, after six days and of Farhan and Waseem, after, four days of their arrest. Mere delay in recording a confession may not be sufficient to discard it but there must be some plausible explanation for the delay. A voluntary and true confession is supposed to be the outcome of repentance. In absence of any explanation, one needs to ponder why the confessors repent only after they remain in the custody of police for several days. It must also be noticed that generally confessions are made in the cases in which there is no evidence or meagre evidence against the confessors, and'not in the cases in which there is sufficient and clear evidence against them. It can also not be ignored that in sensational cases, police is always under a tremendous pressure to detect the crime.
13. For the purpose of ensuring voluntary nature of a confession, the most important precaution, which a Magistrate is required to take, is that he should remove the fear of police from the mind of the confessor by assuring him that he shall not be handed over back to police even if he did not make the confession. In the present case no such assurance was given to the appellants. Neither record of the confessions nor deposition of the Magistrate shows that the assurance was given to them. In the case of State v. Haji Khan, reported in 1975 PCr.LJ 70 (Karachi), a Division. Bench of this Court approved rejection of confession on the ground that the Magistrate had not assured the confessor that he would not be handed over back to police. In the case of Abdul Haleem v. The State, reported in 1984 PCr.LJ 611 (Karachi) Mr. Justice Ajmal Mian (as his lordship then was) speaking for another Division Bench of this Court, after thoroughly discussing the law on the subject, laid down guidelines for the Magistrates recording confessions and observed that the Magistrates would be well advised to inform the accused whether he made the confession or not he would not be given back to police. In the case of Syed Azeem Shah v. The State, reported in PLD 1987 (Quetta) 96, a Division Bench of Baluchistan High Court also ruled out of consideration a confession which was recorded after five days and in which the Magistrate recording confession had not assured the confessor that he would not be handed over back to police whether he made the confession nor not. In the case of Daniel Boyd (Muslim name Saifullah) and another versus The State, reported in 1992 SCMR 196, the Supreme Court also emphasized to follow the above guidelines.
14. The truth of the confessions made by the appellants is also highly doubtful, which too seems to be due to their involuntary nature. The confessions are contradictory to each other on all material aspects and also to the other pieces of evidence produced to corroborate them. Each of the four confessors has tried to save himself/herself and implicate the others. The so called confession of appellant Asma is in fact a plea of innocence and not a confession. According to her, she had opened the outer door of the house because appellant Farhan had told her that he would come to persuade her parents to agree for her marriage with him but quite contrary to his promise, he, on 'entering into the house with his two companions, took her hostage on gunpoint, committed the robbery and the murders and threatened her that in case she took their names' she too would meet the same end. By no stretch of imagination, her such statement can be treated as confession.
15. The term 'Confession' has not been defined either in the Qanun-e-Shahadat, 1984, or in the Code of Criminal Procedure, 1898. According to its dictionary meaning and juristic interpretation, confession means 'a statement made by an accused which must either admit in terms the offence or at any rate substantially all the facts which constitute the offence'. Appellant Asma neither admitted to be party to the offences she was charged with, nor she admitted any fact constituting an ingredient of the said offences and, therefore, her statement cannot be termed as confession.
16. The trial court has convicted appellant Asma mainly because of her admission of illicit relations with appellant Farhan. First, the admission of illicit relations is not clear. She stated that Farhan had committed excess upon her, which means he had raped her. She did not admit that she was a consenting party. Secondly, the appellants were not charged for committing adultery nor the illicit relationship between them was an ingredient of the offences of robbery or murders they were charged with. It was not even motive for the commission of the crime. Neither any of the confessors nor any of the witnesses has stated that illicit relationship between Asma and Farhan was the motive for the offence. Nor such motive seems to be plausible. They were sui juris and if they wanted to marry they could have married through Court, as Court marriages are not uncommon in the city of Karachi. There was no occasion or need for taking such a drastic action. Moreover, if the murders were committed to clear way for the marriage, there was no reason for committing the robbery of small magnitude and that too before the commission of murders. If at all they wanted to take away anything from there, they could have done so without any risk of resistance after committing the murders.
17. The other hypothesis is that the appellants wanted to commit robbery only and decided to commit murders just after the commission of robbery when Asma felt that the deceased had suspected her involvement in the commission of robbery. It is also not a plausible hypothesis. If they wanted to marry, they would not have taken the risk of annoying Asma's parents by committing robbery from them. It was not a big robbery and in case they were too needy, theft would have been the safe course.
18. The third hypothesis regarding motive, indicated in the confession of Farhan, is that Asma's father had died during the process of tying him and, therefore, presumably, they killed all of them to eliminate the witnesses of the crime. This hypothesis is also not plausible as, according to the medical evidence, her father had died due to cutting of his throat and not due to tying. In such circumstances, it cannot be said that any of the appellants had motive to kill the deceased.
Indeed, the motive of the gruesome crime is shrouded in mystery.
19. The best way of testing truth of confessions of more than one partner in a crime is to see whether they tally with each other. If they do not tally and vary 'on material aspects of the crime, their truth become doubtful. A confession also becomes doubtful if it is found inconsistent with the facts and circumstances of the case. In the present case, all the four confessors have given different versions about every material aspect of the case.
20. Asma stated that one day before the incident Farhan had called her on telephone and had told her that in the morning of the day of incident he would come to persuade her parents to agree for her marriage with him. She further stated that as soop as she opened the door Farhan entered into the house along with his two companions Waseem and Jawed and took her hostage by placing pistol on her temple. Farhan contradicted her and stated that Asma used to insist him for committing dacoity from her house and one day before the incident she had called him on telephone and had asked him to commit the dacoity and on the next day when they reached there they found the outer door open as per the programme settled with Asma. According to him, on entering the house they found Asma standing in the drawing room. Jawed and Waseem have yet given a different version. According to them, on reaching near the house of the deceased they found Asma standing on the roof of the house when Farhan asked her to open the door on which she came down and opened the door.
21. Regarding the commission of robbery, all have given different versions. Asma claimed to be innocent. According to her Farhan on getting key from her mother on gunpoint had taken out prize bonds of Rs.100,000/-, cash of about rupees six or seven thousand and ornaments viz earrings, ring and locket from the almirah. Farhan contradicted her and stated that Asma had taken out prize bonds of Rs.52,000/-, cash of Rs.8,000/- and earrings from the almirah and had handed over the same to him. Jawed has stated that Farhan had taken out some goods from the almirah and had later Q on told him at his house that there were prize bonds of Rs.52,000/- and had not told him anything about the ornaments. Waseem stated that Farhan had taken out prize bonds of Rs.52,000/- and cash of Rs.8,000/- from the almirah, while the gold ornaments i.e. The chain and the ring were brought and given to him by Asma.
22. Regarding murders also all have given different versions. Asma stated that Farhan and his friends had killed her parents and brother with a knife after sending her to another room. Farhan stated that on the insistence of Asma he had slaughtered her brother and father; while Jawed had slaughtered her mother. If, according to him, Asma's father had died while he was being tied, there was no need to slaughter him. Jawed stated, that it was Farhan, who had proposed to kill all of them as they knew him, on which he (Jawed) had seriously protested and had tried to go out but was prevented by Farhan. According to him, Farhan and Waseem had slaughtered the three deceased. Waseem stated that Farhan had slaughtered the three deceased. However, the trial Court acquitted Waseem of the charge of murders mainly on the ground that his confession was not corroborated by other evidence.
23. In presence of material contradictions in the confessions, their truth becomes highly doubtful.
The prosecution has tried to corroborate the confessions by introducing other pieces of evidence but they too do not inspire any confidence. They appear to be padding on the part of police. Two doubts do not make one belief.
24. The medical evidence shows that the three deceased had died due to cutting their throats and appellant Asma was not virgo intacta. It does not identify the culprits. Character of appellant Asma is also not a fact in issue and as mentioned above her illicit relations with appellant Farhan are not even the motive for the commission of the crime.
25. The trial court has heavily relied upon the evidence of finger prints experts, Inspector Taj Muhammad (PW-6) and SIP Bashir Ahmed Khan (PW-11) for convicting appellant Farhan.
According to these witnesses, the finger prints taken by them from the mirror of the almirah lying in the house of the deceased tallied with specimen impression of the left middle finger of appellant Farhan. The other finger print taken by them from a panel of the door of the house tallied with the specimen impression of right middle finger of Waseem, who has been acquitted of the charge of murders. There are more than one reason for not relying upon this piece of evidence. First, there is nothing on record to show that Inspector Taj Muhammad and Sub-Inspector Bashir Ahmed Khan were experts of finger prints. They neither claimed to be the experts nor disclosed anything about their qualifications or experience. Secondly, they have not given any reason for their opinion. They have not disclosed the characteristics of similarity. An opinion of expert without reasons carries np evidentiary value. In this regard reference may also be made to the cases of Manzoor alias Mujan v. The State, reported in 1979 (Karachi) 276 and Nawab alias Nawabi v. The State, reported in 1985 PCr.LJ 2217 (Lahore). Thirdly, there is no evidence to show that any specimen impression was obtained from the appellants. Inspector Taj Muhammad and Sub-Inspector Bashir Ahmed Khan had not obtained any specimen from the appellants.
The specimens (Exhs.-37-A, 38 and 39) simply bear signatures of S.H.O. Mumraiz Khan, who was not examined and no other witness has claimed that the specimens were obtained in his presence.
26. The evidence of recovery of crime weapons which too has been heavily relied upon by the trial court also does not inspire any confidence. S.H.O. Mumraiz Khan, who had made the recoveries, was not examined and out of the two private attesting witnesses of recovery one, namely, Muhammad Jamil (PW-10) has not said a single word about the recovery of weapons and the other, namely, Absar Hassan (PW-7) has half-heartedly supported the prosecution. Absar Hassan is son of the complainant, while Muhammad Jamil is also relative of the deceased and used to visit police station in connection with the present case.
27. According to the prosecution, the two toy pistols and the two kitchen knives used in the commission of the crime were subsequently thrown away by appellants Farhan, Jawed and Waseem in different grounds i.e. Indus Mehran and Jannat-ulBarkat. It is further the case of the prosecution that on 3.1.1999 appellant Jawed had led S.H.O. Mumraiz Khan to the recovery of two kitchen blood stained knives from the compound of a mosque known as Jannat-ul-Barkat and two broken plastic toy pistols from another compound known as Indus Mehran. In his cross- examination, Absar Hassan stated that the articles were picked by police but at that time he has present at his car and had not gone with police to the place from where they were picked and appellant Jawed was also standing with him and police after securing the articles had brought them before him at the car and had informed him that they had secured the said articles. In such circumstances, it cannot be said, with any-degree of certainty, that the weapons were recovered on the pointation of the appellant.
28. It is hard to believe that the culprits would take the risk of using toy pistols in the commission of such a pre-planned heinous crime in the house of the deceased situated in a thickly populated area of Karachi. In view of the evidence which has come on record it will be highly unsafe to rely upon the recovery of weapons. The first attesting witness of the recoveries, namely, Muhammad Jamil has not only not supported the recovery of weapons, but he has also been disbelieved by the trial court in respect of the recovery he supported i.e. Recovery of the stolen property. It is also worth to mention that in his confession recorded on 07.01.1999 i.e. Four days after the alleged recovery, appellant Jawed did not say that any weapon was recovered at his instance.
29. As mentioned above, recovery of stolen property viz prize bonds of Rs.52,000/- , a pair of ear- tops, a locket with chain and a ring from the house of appellant Farhan on his pointation on 7.1.1999 has been disbelieved by the trial court, as Muhammad Jamil the only private attesting witness of the recovery stated that the recovery was made at about 1:15 p.m., while, according to the Magistrate, he was produced before him for recording his confession and holding test identification parade at 10:00 a.m. On the same day and was all along present in his court at least upto 3:30 p.m.
When the test of identification parade was held.
30. The recovery cf burnt shirt from a third ground on the pointation of appellant Jawed is also devoid of any evidentiary value. The first attesting witness of the V recovery, Muhammad Jamil, did not say a single word about it and the other attesting witness, Absar Hassan, stated that he could not say whether the burnt cloth piece was of shirt or of trousers and also could not say to whom it belonged. In his confession also, there is no mention of burning his shirt or its recovery at his instance.
31. The evidence of identification of the appellant by Afsar Mehboob (PW-9) has been disbelieved by the trial court after a detailed discussion. According to this witness, on the day of incident, at about 9:15 a.m., he had seen three boys, followed by a girl, going together near RCD ground. On 7.1.1999, he identified the three boys to be appellants Jawed, Farhan and Waseem in a test identification parade and identified the girl at the time of giving evidence in court on 12.6.1999 to be appellant Asma. The trial court specially noted his conduct and demeanor while he identified appellant Asma. According to the trial court, only eyes of the appellant were visible while her entire face and body were covered with Niqab' (veil), and the witness, without waiting for a moment, identified her. She was not put to his identification at any time before that and no test identification parade was held regarding her during the investigation. Moreover, it is not the case of the prosecution that appellant Asma, after the commission of the offence, had accompanied the remaining appellants.
32. The evidence of pointing out the place of incident and places of recovery of weapons by appellant Farhan and Waseem on 7.1.1999, is so devoid of any evidentiary value, as those places had already been inspected by police and no secret was discovered on their pointation.
33. In view of the above facts, circumstance, and reasons, I am of the considered opinion that the prosecution has miserably failed to prove the charges against the appellants and the trial court has clearly erred in convicting them. I would, therefore, allow their appeals, set aside their convictions and sentences, reject reference for the confirmation of death sentence and acquit them.
34. In view of the difference of opinion, the matter may be placed before the Chief Justice for nominating another. Judge for his opinion as required under section 429 of the Code of Criminal Procedure, 1898.
(Sd.)
Ali Sain Dino Metlo, J.
Irshad Ahmed Jatoi for Appellant (in Spl. ATA Cr. Appeal No.77 of 1999).
Muhammad Iqbal Awan, A.P.G. For Respondent (in Spl. ATA Cr. Appeal No.77 of 1999).
M.A. Kazi for Appellant (in Spl. ATA Cr. Appeal No.79 of 1999).
Muhammad Iqbal Awan for Respondent (in Spl. ATA Cr. Appeal No.79 of 1999).
Javed Chahtari for Appellant (in Spl. ATA Cr. Appeal No.80 of 1999).
Muhammad Iqbal Awan, A.P.G. For Respondent (in Spl. ATA Cr. Appeal No.80 of 1999).
Date of hearing: 24th November, 2014.
ABDUL RASOOL MEMON, J.-These appeals have been referred to me under section 429, Cr.P.C. For decision by the Hon'ble Chief Justice due to difference of opinion between learned members of the D.B. Who had earlier heard it, one of the learned member was of the view that the conviction of appellants should be maintained and the reference made by the trial court be replied in affirmative while the other Judge had concluded that appeals of appellants should be accepted and they be acquitted.
2. This ill-fated incident took place on 30.12.1998 in the house of deceased persons in which almost whole family viz. Father, mother and son, was slaughtered. Appellant Asma Nawab, is the daughter of said unfortunate family.
3. C.W-I Humair Iqbal s/o complainant informed police through telephone about the death of three persons and availability of their dead bodies in house No. D.2/ 133. Such report was recorded by Inspector Abdul Latif Additional SHO PS Saudabad in roznamcha vide entry No. 11, and then along with SHO Mamrez Khan proceeded to the place of incident where complainant Syed Iqbal Hassan, who was also informed about the incident by his son Humair Iqbal, reached and on seeing the dead bodies he recognized them and disclosed his relationship with deceased Abrar Begum, as his sister-in-law, deceased Nawab Ahmed her husband and deceased Asif Nawaz their son.
Complainant lodged FIR against unknown accused.
4. Inspector Nazeer Ahmed S.D.I prepared death report under section 174, Cr.P.C. And shifted dead bodies to JPMC for postmortem examination, where he also prepared inquest reports of all three dead bodies in presence of mashirs Aijaz Ahmed and Afsar Ahmed. Further investigation was conducted by SHO Mamrez. Khan, who inspected the place of incident and on next day, arrested accused Asma Nawab (daughter of deceased couple). On 02.01.1999 he arrested accused Javed also on whose pointing, recovered broken toys plastic pistols, blood stained CHURRIES, burnt pieces of shirt and ashes. On 03.01.1999 accused Farhan and Wasim were also arrested. On the pointing by accused Farhan, gold ornaments and prize bonds were recovered. On 07.01.1999, he got recorded confessional statements of all four accused before the concerned Magistrate and their identification parade also through witness Azhar Mehboob. The rest of investigation was conducted by Additional SHO Abdul Latif and on completion of the same, case was sent up in court.
5. At the trial, the accused pleaded not guilty, professed their innocence and refuted the prosecution allegations so also retracted their confession. Prosecution in order to prove its case produced (14) P.Ws. Statements of accused under section 342 Cr.P.C. Were recorded wherein they asserted to have been falsely implicated by SHO Mamrez Khan and their signatures were obtained forcibly on some papers. Though all the four appellants stated to examine themselves on oath but only appellant Asma Nawab stepped into witness box. However, appellant Javed examined two DWs, namely, Nasir Ahmed (Ex.77) and Abdul Salam (Ex. 78). Appellants Farhan and Wasim also produced three D.Ws, namely, Syed Ali Raza (Ex. 80), Rashid Ahmed (82) and Mukhtiar (83) whereas accused Asma Nawab did not examine any witness in her defence. Thereafter court witnesses, namely, Syed Hussain Iqbal and Irshad Hussain were examined as C.W No. I and C.W No. 2 earned Judge Special. Court-I, Anti-Terrorism Karachi on 06.07.1999 found the appellants guilty for the commission of robbery and convicted them under section 392, P.P.C. Read with section 34, P.P.C.
And awarded them sentence to suffer R.I. For ten years and to pay fine of Rs. 75 thousands each and in default of payment thereof two years' R.I more. Appellant Farhan, Javed and Asma were further convicted under section 7(i)(b) ATA read with sections 302(b) and 34, P.P.C. And awarded death sentence on three counts. All the three appellants were further ordered under section 544-A to pay compensation of Rs.150,000/- each to the legal heirs of deceased and in case of non- payment of compensation, to suffer R.I for six months.
6. I have heard learned counsel appearing on behalf of appellants except Waseem, who was awarded sentence R.I. For 10 years, which was served out by him as such his appeal was not pressed and vide order dated 30.6.2008, same was dismissed as not pressed. Learned A.P.G. For the state and have gone through the case papers.
7. The thrust of arguments of learned appellants counsel is that the incident was un-witnessed and alleged judicial confessions of appellants being extracted on torture and retracted should not have been believed to award capital punishment of death; that prosecution has failed to establish the chain of so called circumstantial evidence to connect the accused, the evidence as to identification parade has already been disbelieved by the trial court and that finger prints expert being weakest piece of evidence ought not to have been believed and that the punishment awarded to appellants is uncalled for in the instant case as the prosecution has failed to prove the motive for the commission of offence, therefore, they are entitled to acquittal and by remaining in Jail continuously for sixteen (16) years are at least entitled to conversion of death sentence to life imprisonment. Learned counsel for the appellants have placed reliance on the following case law:- - Dhani Bakhsh v. The State (PLD 1975 Supreme Court 187), Imran Bashir Farooqi v. The State (1990 PCr.LJ 677), Bahadur Khan v. The State (PLD 1995 Supreme Court 336), Mir Zaman and 5 others v.
The State and others (2012 SCMR 580), Fazal-Ur-Rehman and another, v. The State (2014 YLR 1142), Taj Wali Shah v. The State (2014 PCr.LJ 323), Sarat Chandra Mitra and another v. Emperor (S.C. 7 Ind.
Case 641), A.N.Ray and I.D. Dua JJ v. The State of Gujrat (AIR 1970 Supreme Court 1266), Babu and others v. The State of Uttar Pradesh (AIR 1965 Supreme Court 1467), Niaz Muhammad alias Niazi v.
The State (1996 PCr.LJ 394).
8. Conversely, learned APG contended that as there was no enmity of complainant party and police with accused, therefore, they were not nominated in the FIR from the inception and on disclosure made by the accused/appellant themselves, they were implicated in the case; That the judicial confessions of appellants were recorded in accordance with law and contained certificate of voluntariness, as such, it is an strong piece of evidence which can be used against the accused; that the evidence of finger prints expert remained un-rebutted and unchallenged; that her own statement indicates that appellant Asma was present at the time of incident and all appellants with their common intention committed the murder of three persons; that blood stained CHURRIES got recovered by appellant Javed were found stained with human blood and robbed property was got recovered by appellant Farhan and that all the PWs were independent witnesses having no aim/object to implicate the appellants having committed murder of three human lives are not entitled to acquittal and in such like cases, an exemplary punishment is warranted which would not only meet the ends of justice but would also be deterrence for like misdeed persons lastly he has prayed for dismissal of appeals. In support of his contention he has relied upon The State v. Minhun alias Gul Hassan (PLD 1964 Supreme Court 813), Khan Muhammad and others v. The State (1999 SCMR 1818), Sain Gul Wali Khan v. The State (2003 PCr.LJ 1264), Sh.Muhammad Amjad v. The State (PLD 2003 Supreme Court 704), Ajab alias Rajab and another v. The State (2004 MLD 180), Muhammad Amin v. The State (PLD 2006 Supreme Court 219), Manijeet Singh v. The State (PLD 2006 Supreme Court 30), Sheraz Tufail v. The State (2007 SCMR 518), Ghulam Nabi v. The State (2007 SCMR 808).
9. The un-natural death of all three deceased by cutting their throats with sharp edged weapon and the place of incident are not denied and disputed, as such, this aspect of the case needs no further discussion. Obviously the entire prosecution case is based on circumstantial evidence viz, judicial confession of all the four accused, their identification by PW Afsar Mehboob, recovery of crime weapons so also robbed property and medical evidence.
10. It is settled principle that accused could be convicted and sentenced on the basis of circumstantial evidence provided no link of Chain is found missing and all circumstances must lead to the guilt of accused. Reliance is placed on case of Sh. Muhammad Amjad v. The State (PLD 2003 SC 704). I have gone through the evidence so far brought on record, which reveals that C.W-I Syed Humair Iqbal is the first person, who breaks the news of this horrible incident. According to this witness on 30.12.1998 at 9.30 a.m when he was about to leave his home, accused Asma Nawab (his cousin from mother side) came at his home and informed that she had gone to college and on return found her father, mother and brother lying murdered. She took him to her home and showed the dead bodies, who then informed the police and his father (complainant). He further stated that she was not in her college uniform but was wearing ordinary clothing. This witness has given forthright account of the incident whatever he had been told by accused Asma Nawab and seen by him on her pointing. Nothing was brought on record to doubt his statement. From his evidence it appears that accused Asma Nawab disclosed the fact of incident to this witness without raising hue and cry or being in shock. It is unbearable for the close relative like a daughter to be in such alert senses to narrate a terrible story. It indicates that the accused Asma Nawab was already well aware of the details of the incident when she went to inform her cousin (C.W I Humair Iqbal) and was ready to face the adverse situation for her. Though, medical evidence simply states the number and seat of injuries, the weapon used, probable time of occurrence and other ancillary details but it cannot identify the assailants, who inflicted those injuries, which has to be established either through direct ocular account or through circumstantial evidence but in this case the timing of death of deceased persons as disclosed in the medical evidence also leads to the inference that accused Asma was present in her home at the time of incident. The evidence of Dr. Qazi Asif Jan, who had conducted autopsy of male deceased persons reveals that postmortem of deceased Asif Ahmed was conducted on 30.12.1998 at 2.45 p.m. Wherein Rigor mortis were found to have developed over both eye lids, face, both arms and both legs of the deceased. As per Q 3.06 of Parikh's Text book of Medical Jurisprudence and Toxicology for class rooms and court rooms revised Edition 2013 (Page 3.15), development of Rigor mortis upto legs takes 9 to 11 hours, as such, in view of above medical evidence, the time of incident could be said to be between 5.45 or 6.45 a.m. It is admitted position that accused Asma Nawab lived in the same house with her parents and brother (deceased persons) and admittedly she was present in her home on the night of incident. Accused Asma Nawab stated in her statement under section 342, Cr.P.C. That on the day of incident she left home for college at 7.30 a.m. And when returned back at 9.45 a.m. She found her parents and brother lying murdered. If this statement is accepted as such, even then the time of death of deceased as calculated above on the basis of medical report shows that not only she was present in her home and was very much aware what happened at the time of incident.
11. Admittedly, complainant Iqbal Hassan is not an eye-witness of the incident but he had immediately reached on place of incident/wardat and had also acted as one of the mashirs of Inspection of warrant.
The evidence of complainant disclosed the scenario of place of incident. He deposed that deceased Nawab was found with his throat cut mouth shut with cloth and tap, hands and feet tied, was lying murdered in the same way in drawing room, while deceased Mst. Abrar Begum and her son Asif Ahmed were found murdered in bed room in the same way. He produced memo of inspection of place of incident (Ex. 22), which reflects that throats of all three deceased were cut with sharp edged weapon. Deceased Asif had no shirt worn, blood was found oozing from all deceased. Bed and Pillow of deceased Mst. Abrar were stained with blood. Besides that scissor was also found lying there and was taken into custody so also blood stained cloths. The evidence of complainant was fully supported by P.W. 7 Absar Hussain who had also acted as mashir of Inspection of dead bodies and place of incident. From the above evidence the way incident took place shows that same was possibly not an act committed by a single person.
12. The prosecution case is primarily based on the confessional statements of appellant produced at Ex.15, 16, 17 and 18. Learned counsel for appellant contended that judicial confessions were extracted from the appellants by applying third degree methods, therefore, the same were inadmissible. He further argued that appellant Asma Nawab was arrested on 31.12.1998, appellant Javed on 01.01.1999. Waseem and Farhan on 03.01.1999 while they were produced before Magistrate on 07.01.1999 after about 04 to 06 days, therefore, their confessions cannot be said voluntarily and true.
13. I have minutely gone through the relevant record. It has come on record that on the next day of incident when accused Asma was interrogated, she could not keep secret this heinous offence and exposed the facts of incident before police on the basis whereof appellant Javed, Farhan and Waseem were arrested and on showing to make a confessional statement, were produced before JM-6 Karachi (East). The Magistrate, who recorded the confessional statements of accused, has categorically stated that before recording the confessional statements of accused persons, he had not only observed all the legal formalities and provided sufficient time to them to think over the matter before making judicial confession and having satisfied that it was being made by the accused persons voluntarily, he recorded the same. Learned counsel for accused could not point out any flaw or defect in the manner in which the confessional statements were recorded. The testimony of the Magistrate would show beyond any doubt, that the admission to guilt made by the accused were not the result of coercion, under influence, inducement or promise but were made by them out of their free will. Further Perusal of confessional statements of appellants shows that were specifically questioned by the Magistrate with regard to application of third degree methods but they had answered the question in negative. The record indicates that each and every answer recorded in confessional statements was authenticated by the appellants themselves by putting their respective signatures, therefore, in absence of any evidence the presumption would be towards its truthfulness. The mere fact that confessional statements were made on 4th or 6th day of their arrest would not be indicative of any doubt regarding voluntariness. Reliance is placed on 2007 SCMR 808 and 1999 SCMR 1818.
14. There is no denial of the fact that the appellants retracted their confession but the reason given in the confessional statements is in line with the medical evidence and finds strong corroboration from other evidence produced by the prosecution. Hence, it would be advantageous to have a cursory look at the confessional statement of accused Farhan which is reproduced hereunder:- {{URDU TEXT}}
15. It would be worthwhile to mention here that in confessional statements all other appellants had not denied the happening of incident and are consistent with accused Farhan's statement with the exception that it was accused. Farhan who had cut the throats of all three deceased, therefore, their statements have also to be considered as circumstance against each others in terms of Article 43 of Qanun-e-Shahadat Order, 1984 which envisages that when more persons then one are being tried jointly for same offence and confession made by one of such persons is proved, the Court may take into consideration such confession as circumstantial evidence against such other persons.
16. The author and witness of the confessional statements under section 164, Cr.P.C. Mr. Maqbool Ahmed Memon Judicial Magistrate has fully supported the proceedings when he stepped into the witness box. He has deposed that on 07.01.1999 four accused, namely, Asma, Farhan, Javed and Waseem were produced before him along with letter by SHO P.S. Saoodabad for recording their confessional statements. He further deposed that accused were taken into custody of court and after observing legal formalities recorded confessional statements of accused one by one after providing them required time turn by turn for reflection and before recording their confessional statements he had introduced himself to them and disclosed his identity as Magistrate and told that they were not bound to make the confession. On query, if they were maltreated and pressurized by police to make the confession, they replied in negative and stated that were going to confess their guilt due to their conscious malign them. The Magistrate has further deposed that after certain queries to satisfy himself if accused were confessing voluntarily or not and from the replies given by the accused persons, he was satisfied that accused were confessing voluntarily, therefore, he recorded their confessional statements in verbatim and after reading over contents thereof, which they admitted and put their signatures thereon. The Magistrate has mentioned in certificate of confessional statement of accused that he was satisfied that the confessions made by accused persons were voluntarily.
17. It may be mentioned here that the proceedings conducted by Judicial Magistrate, cannot be doubtful until and unless proved contrary as provided under Article 129 of Qanun-e-Shahadat presumption is attached with it as official act performed regularly and mere denial is not sufficient to ignore or exclude it from consideration.
18. The factum of confessionals statement being true is further supported by medical evidence.
Confessional statements of accused persons reflect that deceased were done to death by accused by cutting their throats after tying their hands and feet and so closing mouth also. As per .Post mortem reports, throat of all three deceased were found cut with sharp edged weapons, it further reflects that mouth, hands and feet of deceased Abrar Begum were opened by doctor who conducted her post mortem, and further autopsy notes of deceased Nawab Ahmed and Asif Ahmed shows that ligature mark over both wrist/ankle joint laterally were found as such medical evidence is also coincide with the confessional statements of accused. Not only that but the contents of confessional statements that accused Farhan had terms with accused Asma are supported by the evidence of Dr. Noohina Hussain (Ex. 09), She had examined accused Asma on 04.01.1999 and no violence mark was found on her person. This lady doctor clearly stated that hymen of accused Asam was torn, old and healed mark was found present, vaginal wall was in healing stage, which admitted two fingers and one finger lose. She after examination opined thataccused Asma Nawab was not found mtacta. It is pertinent to mention here that the evidence of Dr. Noohina Hussain went unchallenged and un-rebutted as she was not cross-examined by defence. It is settled law that if defence has failed to cross-examine witness about specific portion of his statement of examination-in-chief, such un-challenged statement would be deemed to have been admitted by defence, reliance is placed on case reported in 2007 SCMR 518.
19. Confessional statements of accused, are also supported by evidence of PW SIP Bashir Ahmed.
He took finger prints of culprits from mirror of cupboard (Almirah) lying in the room of deceased's' home (Ex. 33) and from the panel of door of the home (Ex. 34), which were examined by PW Taj Muhammad Incharge Finger Prints. The specimen impression of the left middle finger of accused Farhan tallied with finger prints taken at Ex. 33 and the specimen impression at Ex. 34 matched with the finger prints of accused Farhan, it established the presence of these accused at the place of incident.
20. There is also another strong piece of evidence viz recovery of crime weapon and robbed property, which supports the confessional statements. As per prosecution version accused Javed after his arrest had disclosed to have committed the offence with the help of other accused. In pursuance of the disclosure he had led the police and mashirs to the recovery of crime weapon, two CHURRIES as per memo of recovery and sketch drawn thereon but in evidence big knives is used as well as two toy pistols from garbage near Shamim Bright School Janat-ul-Baqat in Model Colony and Indus Mehran. The CHURRIES were stained with blood which were sealed on spot and sent to chemical examiner. Accused Wasim and Farhan also led to disclosure of said places wlierefrom crime weapon had been recovered. PW (13) Wahid Bux Chemist examined at Ex. 60, he produced report of chemical examiner at Ex. 61 which disclosed that both CHURRIES were stained with human blood. Besides that on the pointing of this accused Javed burnt pieces of his shirt and ashes were also recovered from Soodi Colony, for which it could be said that it might have contained some mark of evidence (blood stained) which he had destroyed the said piece of evidence.
Accused Farhan also led police and mashir to recovery of robbed property viz. 52 prize bonds of Rs.
1000/ - gold chain with locket, one gold ring and two small earrings, from his home, vide memo of recovery at (Ex. 56) produced by (P.W 10) Jamil Ahmed. Suggestions that he had connection with police hence he deposed in the case was denied by him. No suggestion was given to this witness if robbed property was not recovered in his presence on the pointing of accused from his house.
21. So far the motive is concerned, it has been noted that initially it was not set up by the prosecution in FIR as no person was nominated as an accused. In fact, the clue of motive was given out by accused themselves for the commission of this heinous crime of murder of three human beings when they confessed their guilt before I/O and Magistrate. In fact the real motive is known to the accused and not to the other persons who conceived those actions by their own opinion or from hearing. In case of Muhammad Akbar and another v. The State (PLD 2004 SC 44) wherein it was held by Apex Court that when prosecution proves its case through reliable and trustworthy evidence beyond any doubt inadequacy or weakness of motive or where motive was alleged but not proved, would become immaterial and would not adversely affect prosecution case and normal penalty of death can be imposed on the assailants if there were no mitigating or extenuating circumstances for lesser penalty. It was further held that "motive shrouded in mystery" by itself is not a mitigating circumstances for awarding lesser sentence and this theory has been discarded. In the case of Muhammad Amin alias, Irfan and another v. The State (2004 SCMR 1676)
Hon'ble Supreme Court while discarding the motive held that lack of motive or weakness thereof is immaterial to withhold the normal penalty of death in murder cases when trustworthy evidence and squarely brought home the guilt against the accused beyond any doubt. In the case in hand though accused tried to give impression that they had come to commit robbery and eliminated the witnesses of the crime but at the time of postmortem examination gold earrings were found to be worn by deceased Mst. Abrar, which was not snatched by the culprits it indicates that the intention of 'crime was apparently not only robbery but something more beyond this. Furthermore, if they wanted to commit only robbery, they could have taken away more valuable things than shown to have robbed but not. It is important to note that accused appellant Asma left the door opened during such odd hours of late night of incident, this indicates the plan behind her intentions and to act upon those she intentionally kept the door opened when co-accused reached and she paved the way to them to make gruesome attack on her family. No doubt accused Asma was suijuris and if she wanted to marry with accused Farhan they could have married through court, which has become a routine of the.Day, but it has come on record that on coming to know about illicit relationship of accused Asma with accused Farhan, mother of Asma restrained her from meeting with him. The way all the three deceased were killed and violently slaughtered after tying hands and feet of them show brutal murder and all these lead to the inference that the motive behind the murders was last degree of anger to eliminate the deceased family from their way.
22. As against the evidence produced by the prosecution nothing is brought on record by the defence to make the same as doubtful except simple suggestion made to C.W-I that he along with his friends committed murders of deceased due to their refusal to accept his marriage proposal with appellant Asma, which he denied. However, accused in their statements under section 342, Cr.P.C. Or even accused Asma in her statement on oath have not taken plea if there had been any proposal of marriage of C.W-I Humair Iqbal with appellant Asma. Appellant Waseem adopted the statement of co-accused Farhan. In his statement under section 342 Cr.P.C. Accused/appellant Javed pleaded that he had exchanged hot words with one Shahzad driver of SHO Mumraz Khan, who had issued him threats of involving in case and due to that reason he was implicated in this case. He produced two witnesses, namely, Nasir Ahmed and Abdul Salam DW.I and DW. 2 in his defence. The qidence of both these DWs is with regard to a quarrel of accused Javed with the driver of police man. Accused Farhan in his statement asserted that when he along with his brother in law Niaz Hussain and co-accused Waseem was present in his house at Model Colony at about 12-00 a.m. (mid night) police came there and took away him and co-accused Waseem to PS where he was tortured. He further stated that his mother Noor Jehan, sister Nargis, brother Iqbal and nephew Muhammad Ali were called at PS and after severe torture obtained his signature forcibly on a paper by SHO Mumraz Khan. He also produced four witnesses, namely, Syed Ali Raza, Rashid Ahmed and Mukhtiar, who had appeared as D.W. Nos.03 to 05 in defence evidence.
D.W.No.-03 Syed Ali Raza stated that on 31.12.1998 he was arrested by Saoodabad police where several persons including brother, sister and nephews of accused Farhan, who is his class fellow, were brought by police and kept them at PS for four days, thereafter, he was released on 03.01.1999 at 7 or 7.30 p.m. In fact it is not the case of accused Farhan, he himself in his statement under section 342, Cr.P.C. Stated that on 03.01.1999 at 12-00 mid night he was arrested by police, thereafter, his family was called at PS, whereas D.W No. 04 Rashid Ahmed stated that accused Farhan was arrested on 03.01.1999 at 12 or 12-30 p.m. In day time and before his arrest mother and sister of accused Farhan had been arrested by police and on the next day of his arrest they were released. The evidence of both the above DWs 3 and 4 is quite contradictory with the statement of accused Farhan and have not supported to his defence version. Even they have not said a single word that appellant Farhan was tortured. The evidence of DW No. 05 is simply with regard to service of accused Farhan and Wasim in National Wood Industries Multan and their presence in factory till 01.01.1999 when they said to have taken leave, but no such record of said factory is produced to support his version, he could not produce proof to show if he was Manager of said factory. Furthermore, this appellant had not taken plea of ilibi at initial stage during investigation, as such, the evidence of this DW No. 05 does not appear to be trustworthy and believable.
23. Accused/appealnt Asma Nawab examined herself on oath as DW No. 06 wherein she stated same facts as that of her statement under section 342, Cr.P.C. That on the day of incident she left home at 7.30 a.m. For college and after obtaining admission form returned at 9.45 a.m when she found a crowd of people and came to know about death of her parents and brother and on seeing them she went unconscious. This contention of accused Asma has already been discussed and disbelieved here-in-above. Apart from above it is established fact that winter vacation of schools, colleges and universities is always from 20th December to 31st December and during that period educational institutions remained closed, as such, there was no any question of admission.
However, she has not produced copy of admission form nor witness from college staff to support her version. It is also settled law that it is duty and obligation of accused to prove the specific plea taken by him/her in terms of Article 121 of Qanun-e-Shahadat in this regard reliance is also placed on case of Anwar Shamim and another v. The State (2010 SCMR 1791). Though accused Asma has taken an specific plea of her going to college at the time of incident but she could not prove it.
However, none of the accused has taken plea that prosecution witnesses had any direct motive to falsely implicate them and no any sort of evidence is produced by them to corroborate their version and in no way they have established their false implication by police, as such, defence plea is totally baseless and concocted one.
24. Considering the case from all angles, I am of the opinion that prosecution Q has successfully established the charge Q against the appellants. The case of appellant/accused Waseem was bit different as from all the above noted segments of evidence led to the conclusion that he had participated in the commission of crime to the extent of robbery and was rightly convicted under section 392, P.P.C. By the trial Court and sentenced him to suffer R.I. For 10 years, which has already been served out by him and has already been released from the Jail and that was reason for not pressing his appeal.
25. So far case of appellants Asma, Farhan and Javed is concerned, the events and circumstantial evidence proved that they had committed heinous crime of brutal murder by cut throats of three human beings in furtherance of their common intention, thus, they are vicariously liable for punishment of murders. It was contended that appellants/convicts, have remained in jail continuously and their appeals are being disposed of after a considerable time, therefore, keeping in view this circumstance lessor punishment may be considered. I am not in agreement with this submission. In case of Khurram Malik and others v. The State and others (PLD 2006 SC 354), it was held that plea of life expectancy is per se not a valid ground for awarding lessor punishment.
26. There is no cavil with the proposition laid down in the case law relied by the learned counsel for appellants but in my humble view 'the same are not relevant to facts and circumstances of this case. However, it is settled law that each and every case is to be decided on its own merits and circumstances and everything said in a Judgment, more particularly in a criminal judgment to be understood as having been said with reference to facts of that particular case. Reliance is placed on a case of The State v. Mushtaq Ahmed (PLD 1973 Supreme Court 418).
27. In view of above facts and circumstances, the normal penalty of death sentence imposed by the trial court upon these three appellants Asma, Farhan and Javed was proportionate to the gravity of offence. Consequently all titled appeals are dismissed and the Reference No.23 of 1999 made by the trial court is accepted.
28. As the Judges of Division Bench composing the Court of Appeal who were equally divided in opinion are no more Judges of this Court, the office may therefore, obtain orders from Hon'ble Chief Justice for formation of Special Bench in line with the practice adopted in a case of Mir Muhammad v. District Magistrate Nawabshah, (PLD 1965 Karachi 494) for pronouncement of the judgment and further orders.
(Sd.)
Abdul Rasool Memon, J.
Javaid Chattari for Appellant. Irshad Ahmed Jatoi for Appellant.
Ali Haider Saleem APG for the State.
There was difference in opinion between the learned Members of the Bench which originally had decided these appeals and answered the reference, therefore, the Bench vide its order dated 26.11.2008 directed that the matter be placed before the Hon'ble Chief Justice for nominating another Judge for his opinion in terms of section 429 of the Code of Criminal Procedure, 1898. The Hon'ble Chief Justice thereafter referred the matter accordingly and through instant judgment the Referee Judge has concurred with the learned Member of the original bench who while accepting the Reference No.23 of 1999 directed confirmation of death sentence and had dismissed all the three cited appeals. Since both the learned Judges who originally had heard these appeals are no more available on Bench, therefore, on 24.01.2015 Hon'ble Chief Justice has constituted this Bench to announce the verdict of the Court.
ORDER OF THE COURT By virtue of the majority opinion Reference No.23 of 1999 is accepted confirming the death sentence awarded to all the three appellants while dismissing their listed appeals.