Asjad Javaid Ghural, J. Through this common judgment, I intend to decide the titled criminal appeals under Section 410 Cr.P.C. preferred by appellants Mst. Saira Bibi and Muhammad Qasim , whereby they have challenged the vires of judgment dated 29.06.2010 passed by the learned Additional Sessions Judge, Chiniot in case FIR No.593 dated 12.07.2009, in respect of offences under Sections 302 & 34 PPC, registered at Police Station, City Chiniot whereby they were convicted and sentenced as under:- Under Section 302(b) PPC Imprisonment for life each and to pay the compensation of Rs.2,00,000/- each to the legal heirs of the deceased, in default thereof, to further undergo simple imprisonment for six months each.
They were held entitled to the benefit of Section 382-B Cr .P.C.
2. Complainant Malik Muhammad Yar has preferred Criminal Revision No.824 of 2010 seeking enhancement of sentence of respondents No.1 & 2 shall be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex.P A/1) registered on the complaint of Muhammad Yar (PW- 2) is that his son Muhammad Ramzan (deceased) was married with Mst. Saira Bibi (appellant) and they had two daughters out of the wedlock. In the preceding night of 12.07.2009, the complainant alongwith his family slept on the rooftop whereas his married son namely , Muhammad Ramzan alongwith his family slept on the rooftop of adjacent house, at 04:30 a.m. Mst. Saira Bibi woke the complainant and his son and disclosed that Muhammad Ramzan was not available at his cot and the Bathak was bolted from inside. The complainant alongwith his son Jehangir alighted from the rooftop and on inspection of the dead body of decease d Muhammad Ramzan lying on the floor, there was injuries at the left side of his chest, left flank, left wrist and on the back with sharp edged weapon.
4. Sarfraz Hussain Shah Inspector (PW-10) visited the place of occurrence, on the following morning i.e. 12.07.2007, prepared injury statement, inquest report and sent the dead body to the mortuary . He secured blood stained earth from the place of occurrence, prepared rough site plan and recorded statements of the witnesses under Section 161 Cr.P.C. He recorded the supplementary statement of the compl ainant made on 23.07.2009. On 25.07.2009 he took into possession snap of Mst. Saira Bibi, Mobile Phone, three blisters of medicine Atione and two letters from the room of Mst. Saira Bibi. He arrested the appellants on 04.08.2009. Muhammad Qasim disclosed and led to the recovery of Churra on 1 1.08.2009.
5. Dr. Mushtaq Bashir (PW-8) held autopsy on the dead body of deceased Muhammad Ramzan on 12.07.2009 and observed the following injuries:- No.1 Stab wound 5 cm x 1 cm on the left iliac fossa, intestine coming out from the wound.
No.2 Stab wound 4 cm x 1 cm on the front of left chest outer part with cut present on the vest.
No.3 Stab wound 3 cm x 1 cm of left chest with cut present on the vest.
No.4 Stab wound 1 cm x 1 cm below the injury No.3 with cut present on the vest.
No.5 Incised wound 1/2 cm x 1/2 cm on the front back of left elbow joint. W ound was muscle deep.
No.6 Incised wound 1/2 cm x 1/4 cm into skin deep on the back of left ring finger of hand.
No.7 Incised wound 7 cm x 2 cm on the front of left forearm underneath muscle was cut.
No.8 Incised wound 2 cm x 1 cm on the outer part of left upper arm lower part wound was muscle deep.
No.9 Stab wound 4 cm x 1 cm on the back middle and inner side of left chest near vertebral column.
No.10 Stab wound 1 cm x 1cm on the back of right chest inner side near vertebral column.
The cause of death was due to hemorrh age and shock due to injuries No.1, 2, 3, 4, 9 and 10 which were ante- mortem in nature and sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was immediate, whereas between death and post mortem examination 5 /2 to 10 /2 hours.
6. At the commencement of the trial, learned trial Court had framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.
7. The prosecution examined 11 witnesses besides the reports of Chemical Examiner and that of the Serologist (Ex.PL & Ex.PM). The appellants, in their statements recorded under Section 342 Cr.P.C., had denied and controverted all the allegations of fact leveled against them. The appellants neither opted to make statement under Section 340(2) Cr .P.C. nor produced any witness in their defence.
8. Learned trial Court, upon conclusion of the trial convicted and sentenced the appellants, as stated above.
Hence, these criminal appeals as well as the connected revision petition.
9. Learned counsels for the appellants have submitted in unison that the appellants are quite innocent and had nothing to do with the alleged occurrence; that the appellants were convicted and sentenced on the basis of confessional statement made by Mst. Saira Bibi at belated stage after completion of prosecution evidence, which has no evidentiary value to maintain the conviction and sentence; that learned trial Court had no authority to record statement of accused under Section 304 PPC at that very stage; that earlier appellant Mst. Saira Bibi had not pleaded guilty and thereafter before her statement recorded under Section 342 Cr.P.C. an application was preferred on behalf of appellant Mst. Saira Bibi for recording her confessional statement; that learned trial Court's jurisdiction qua recording of Mst. Saira Bibi's statement under Section 304 PPC which could only be made in the cases of Qisas and Diyat; that the statement of appellant Mst. Saira Bibi was neither true nor voluntarily recorded and the same was not in consonance with the medical evidence; that on recei ving first dagger blow, accused Muhammad Qasim and the deceased grappled with each other , which stood negated by the prosecution's own stance that appellant Mst. Saira Bibi had provided intoxicated pills to the deceased prior to his death ; that no evidence is available with the prosecution to connect the appellants with the alleged crime; that the Investigating Officer collected Call Data Record of the deceased and the appellants but no connection had been established amongst them; that only the confessional statement cannot become basis to maint ain the conviction and sentence of the appellant unless the prosecution proves its case beyond shadow of reasonable doubt. At the end, prayer for acceptance of the appeals has been made.1 1
10. Conversely , learned District Public Prosecutor appearing for the State assisted by the learned counsel for the complainant has vehemently contended that the deceased was brought into the Bethak by appellant Mst. Saira Bibi and then she alongwith her companion murdered him; that none else but appellant Saira Bibi was available in the house at the relevant time and she was responsible for the said murder; that the complainant had no enmity or ill- will against his daughter-in-law prior to alleged occurrence to falsely implicate her in the murder of his real son while letting off the real culprits; that co-convict Muhammad Qasim being brother-in -law of brother of Mst. Saira Bibi had free access in her house; that the confessional statement of Mst. Saira Bibi has much relevancy with the crime in issue; that trial Court had given sufficient time to Mst. Saira Bibi to think over prior to make her confessional statement but she remained insisted for the same and ultimately , she made the statement and confessed her guilt and she reiterated her stance in her statement recorded under Section 342 Cr.P.C. as well; that the confessional statement made by Mst. Saira Bibi was true and volunteer without any duress and coercion from any corner; that the circumstances also support her statement i.e. the recovery of weapon of offence, extra judicial confession, time, date, place, mode and manner of the occurrence in addition to medical evidence. Finally, he has prayed for dismissal of the appeals and enhancement of the appellants' sentence to the capital punishment.
11. I have heard learned counsels for the appellants, learned District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and perused the record.
12. The case of prosecution hinges upon the circumstantial evidence comprising of extra-judicial confession, recovery of weapon of offence i.e. Churra and the judicial confession made by appellant Mst. Saira Bibi before the trial Court. Complainant Muhammad Yar (PW-2) got lodged the crime report against unknown accused persons stating that on 12.07.2009 at about 4:30 a.m., Mst. Saira Bibi, the wife of his son namely , Muhammad Ramzan woke them and told that her husband was not available on the cot, they went down, opened the outer door of the Baithak and found his dead body lying on the floor having incised wounds at the left side of his chest, left buttock, left wrist and back. He and his son Jahangir had deposed only to the extent of seeing the dead body , which was lying in their Bethak and nothing else.
13. The complainant had further deposed that after about 11 days of the Qul Khawa ni of the deceased, Muhammad Afzal and Muhammad Khalid told him that when they were sitting in the Bethak of Muhammad Afzal, appellants Muhammad Qasim and Mst. Saira Bibi came there and confessed their guilt with regard to the murder of Muhammad Ramzan. Muhammad Afzal (PW-4) supplemented the complainant to the extent of extra judicial confession deposing that the appellants, after eleven days of the occurrence, came to them when he alongwith Muhammad Khalid (given up PW) was sitting in his Bethak, they made confession that they fell in love, wanted to marry each other and planned to remove the hurdle i.e. Muhammad Ramzan, Mst. Saira Bibi called Muhammad Qasim inside the Bethak and got committed her husband's murder . Thereafter , the said witness contacted the complainant to disclose the factum of extra judicial confession and also got recorded his statement before the police. During cross-examination he admitted that both the accused persons jointly confessed their guilt while sitting in his Bethak. He further admitted that he had never contested the election of councilor nor Nazim neither, he was Lumberdar of the vicinity nor member of any association of Punchayat. He admitted that many members of his family were appointed as doctors and they were man of authority, no other person was associating the accused persons at the time of alleged confession. He did not try to apprehend the accused because the accused were armed with firearm weapon at the time of their confession. It is against the human psyche and norms of our society to confess the guilt before the person relating to the deceased family just to invite trouble for himself. The unnatural conduct of both the witnesses of extra judicial confession for not apprehending the appellants neither giving information to the complainant nor the police despite having mobile phones with them, shows that the story of alleged extra judicial confession had been maneuvered and cooked-up afterwards to manage the false implication of the appellants. Even otherwise, the evidentiary value of joint extra judicial confession has been disapproved by august Supreme Court of Pakistan in many a judgments including in case titled "SHAHID HUSSAIN alias MULTANI versus THE STATE and others" 2011 SCMR 1673) wherein at page No.1675 it has been held as under:- "The learned Additional Prosecutor General, Punjab appearing for the State has, however remained unable to contradict that the alleged extra-judicial confession is a joint confession and even the alleged recoveries are joint recoveries and, thus, their evidentiary worth may be next to nothing."
Furthermore, it was a sole statement of the aforesaid witness and the prosecution withheld the material witness namely , Muhammad Khalid, who accompanying Muhammad Afzal at the time of making extra-judicial confession by the appellants, had not been produced before learned trial court to supplement Muhammad Afzal for the reasons best known to the complainant. The only inference could be drawn according to Article 129-g of Qanoon-e- Shahadat Ordinance, 1984 that "had he been produced before the learned trial court, he would not have supported the prosecution version qua the extra judicial confession" .
14. Safdar Hussain Shah, Inspector (PW-10)/I.O. claimed that he had recovered the weapon of offence i.e. Churri from appellant Muhammad Qasim during investigation but the said recovery was shown from the residential house of the complainant where beside the complainant his other family members were also residing. He had stated that at the time of recovery , it was blood stained and the place of recovery (Bethak) was not owned by Muhammad Qasim. When the accused led them for the purpose of recovery , door of Bethak was open and in the said house, at the time of recovery , the complainant and his sons were residing. Admittedly , the Churri was not sent to the office of Chemical Examiner and Serologist to verify as to whether it was stained with huma n blood or not. In this backdrop, the recovery of weapon of of fence from appellant Muhammad Qasim remained inconsequential.
15. Another piece of evidence was recovery of different articles from the room belonging to the deceased and his wife i.e. pictures of Muhammad Qasim and Mst. Saira Bibi connected with safety pin, a cell phone where the name (Qasim) was reflecting at the screen, 3 leaves of tablets "Ativan" and two leaves of letter written upon them "love you QS". Learned counsel for the complainant has much emphasis that these articles establish direct link of love between both the appellants and due to this very reason, they killed the deceased. These articles were neither recovered in the presence of appellant Mst. Saira Bibi nor in pursuance of her disclosure, so it would be unsafe to connect the said articles against the appellants with the murder in issue. So far as the recovery of cell phone is concerned, it has nowhere been brought on record that the same was under the use of appellant Mst. Saira Bibi or someone else. However , in her confessio nal statement, she made clear that the cell phone was given to her by her real brother . The prosecution has also failed to make any connection of three leaves of tables "Ativan" with this murder . Though it has been alleged that the appellant had intoxicated the deceased with tables yet it stood negated during the cross examination of the appellant conducted by learned counsel of her co accused while deposing that "on receiving the first dagger blow, appellant Muhammad Qasim and the deceased grappled with each other ". The question arises, if he was unconscious after taking pills then how he was in a position to come down from the rooftop, went inside the Baithak and grappled with appellant Muhammad Qasim. Meaning thereby , the deceased was not given any intoxicated pills prior to his murder and even no such element of intoxication came on surface in postmortem examination report. The tablets allegedly recovered from the house of deceased could not be used against the appellants in any manner .
16. Two leaves of letter containing "love you QS" were produced by the prosecution (P-4/1-2) in order to establish that the appellants? had love contact prior to the occurrence. Amazingly , these leaves were not sent to the Hand Writing expert and without getting expert report, how could it be linked with the said appellant. All these articles being common pattern could easily be maneuvered and arranged just to show that the appellant had love contact prior to this murder . The prosecution has failed to make connection of all these articles with the murder in issue.
17. The most crucial and substantive piece of evidence was that the appellant Mst. Saira Bibi made confessional statement before the trial Court and took the same plea in her statement recorded under Section 342 Cr.P.C. It has been observed that at the verge of recording statement under Section 342 Cr.P.C., learned counsel for appellant Mst. Saira Bibi made an application seeking permission to make her confessional statement under the impulsion of her inner conscious. Learned trial Court recorded the said statement on 22.06.2010 with the observation that no specific stage for recording confessional statement under the provisions of Section 364 Cr.P.C. & Section 304 PPC has been provided under the Statute. Before making any comment upon the legality of confessional statement, Section 304 PPC is reproduced hereunder for ready reference:-
(1) Proof of qatl-i-amd liable to qisas shall be in any of the following forms, namely:-
(a) The accused makes before a court competent to try the offence a voluntary and true confession of the commission of the of fence; or
(b) By the evidence as provided in Article 17 of the Qanoon-e -Shahadat, 1984 (P .O. No.10 of 1984).
(2) The provisions of sub-section (1) shall, mutatis mutandis, apply to a hurt liable to qisas.
Though the case was adjourned to reconsider the mater yet the fact remains that under what provision of law and at which stage, the said statement could be recorded. The appellant neither opted to confess her guilt before learned Magistrate under Section 164 Cr.P.C. during investigation nor did she plead guilty at the time of framing of charge under Section 265-E Cr.P.C. At the advance stage of trial when the evidence of prosecution was complete and the case was going to be fixed for recording the statement of accused under Section 342 Cr.P.C., filing of application on behalf of appellant Mst. Saira Bibi through her learned counsel for making confessional statement was beyond imagination. At the time of framing of charge under Section 265-D Cr.P.C. the trial Court may convict an accused if he pleads guilty under sub section (2) of Section 265-E Cr.P.C. and once he pleads not guilty the trial Court should record the prosecution evidence as envisaged in Section 265-F Cr.P.C. and thereby the statute has safeguarded the right of an accused to be dealt with in accordance with law .
18. The procedure adopted by the learned trial Court in recording the confessional statement under Section 304 PPC at the verge of recording statement of accused under Section 342 Cr.P.C., cannot be perpetuated by this court because the provisions of Section 304 PPC can only be put into force in cases of Qisas and Diyat and if the same is found to be true, volunteer and confidence inspiring the accused should be liable to Qisas and Diyat and not Ta'zir. Learned trial Court while disbelieving the extra judicial confession, convicted and sentenced the appellants merely on the basis of the aforesaid judicial confessional and that too, recorded at the belated stage. It is established principle of law that if the judicial confession is recorded with undue delay, the same shall have no legal consequences as has been held in case titled "Muhammad Riaz versus The State (PLD 1994 Peshawar 102)" as under:- "There is a string of authorities that if there is undue delay in the recording of the judicial confession as it is in the instant case, no evidentiary value can be placed thereon."
19. It was the duty of the prosecution to prove the case beyond any shadow of reasonable doubt and when the prosecution fails to establish the charge, the accused's statement cannot become basis for recording conviction and sentence. The law is very much clear at the point that if the prosecution fails to prove its case against an accused, the statement of accused recorded under Section 342 Cr.P.C. should be taken in its entirety as enshrined in cases titled "Waqar Ahmed versus Shaukat Ali and others" (2006 SCMR 1139) and "Azhar Iqbal versus The State" (2013 SCMR 383).
The relevant portion of the later judgment at page No.384 is reproduced as under:- "It has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under Section 342 Cr.P.C. wherein he had advanced a plea of grave and sudden provocation.
It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased."
In the case in hand the prosecution had completely failed to establish guilt of the appellants to the hilt. Appellant Mst. Saira Bibi posed herself as an accomplice stating that her co-accused had murdered the deceased. How such statement can be relied upon against her co-accused namely , Muhammad Qasim without any independent connecting material.
20. From the aforesaid discussion, it is concluded that the prosecution has failed to substantiate the charge of murder against the appellants to the hilt. The witness of extra-judicial confession has already been discarded by the learned trial Court and the recovery of weapon of offence i.e. Churri remained inconsequential as discussed in the preceding paragraph. The recovery of other articles i.e. pictures of the appellants 01 each, one mobile phone, three Ativan tablets and two love letters containing love you QS' from the appellant's house by the investigating officer on 28.07.2009 during inspection of her room was nothing but an abortive attempt of the police to establish love-contact between both the appellants. All these articles were neither recovered on the disclosure nor pointing out by any of the appellants.
The Call Data Record of cell phones of the deceased and both the appellants could not establish any nexus amongst them. The practice adopted by the trial court in recording the confessional statement of accused other than the proof of qisas and diyat was neither legal nor in the interest of natural justice, which alone cannot be made basis to maintain the conviction and sentence of the appellant. During cross-exam ination appellant Mst. Saira Bibi had stated that she was not allowed to meet with her daughters and time and again the impression was given that she could only be allowed to see her daughters if she makes confession.
21. The epitome of above discussion is that Crl. Appeals No.320-J & 1912 of 2010 are allowed , the conviction and sentence of the appellants are set aside and they are acquitted of the charge by giving the benefit of doubt to them. They are directed to be released from jail forthwith, if not required to be detained in connection with any other case.
22. For the reasons recorded hereinabov e, Crl. Revision No.824 of 2010 seeking enhancement of sentence of respondents No.1 & 2 is without any merit, the same stand dismissed in limine.