Criminal Appeal No.466of2018
Appellant : FarooqZaman son of Mir Zaman
through Mr. Muhammad HafeezSandhu,
Mr. Hussain BuxBaloch,
Additional Prosecutor General Sindh
Complainant Hamza son of AmeerBux
Date of hearing : 12.09.2019
Date of Judgment : 12.09.2019
J U D G M E N T
Abdul MaalikGaddi, J.–Through this Criminal Appeal, the Appellant has assailed the legality and propriety of the Judgment dated 20.08.2018 passed by the learned Xth Additional District & Sessions Judge Karachi West in Sessions Case No.219/2017, (Re: State v/s. FarooqZaman and Others) in crime No.186/2016 of P.S. Gulshan-e-Maymar, registered U/s. 302/376/34 PPC, whereby the learned Trial Court after full dressed trial convicted and sentenced the Appellant as stated in Point No.3 of the impugned Judgment. For the sake of convenience it would be proper and relevant to reproduce the finding of the Presiding Officer of the trial Court in the said point which reads as under:-
“23. The outcome of the discussion made hereinabove is that the prosecution has successfully proved the charge against the accused FarooqZaman son of Mir Zaman beyond any shadow of reasonable doubt. Accused FarooqZaman son of Mir Zaman is convicted U/s. 265-H(ii) Cr. P.C. for the offence punishable U/s 302 (b) of Pakistan Penal Code . He is sentenced to imprisonment for life in addition to fine of Rs.01,00,000/-. Further the accused FarooqZaman son of Mir Zaman is also convicted for the offence punishable U/s. 376 PPC and he is sentenced to imprisonment for life in addition to fine of Rs.01,00,000/-. Both payments of fine shall be paid to the legal heirs of the deceased as compensation in terms of section 544-A Cr. P.C., if recovered, in case of default the accused shall undergo simple imprisonment for further period of six months each. The accused is also entitled for benefit of Section 382-B Cr.P.C.. Both conviction shall run concurrently. The present accused is remanded to Jail Custody with conviction warrant under the direction to serve the sentences imposed upon him in terms of this Judgment and return the conviction warrants after its execution as provided u/s. 400 Cr. P.C. Let the copy of Judgment be supplied to the accused on free of costs as provided u/s. 371 Cr. P.C. issue life time warrant of arrest against the absconding accused Badshah Afghani and case against absconding accused Badshah Afghani be kept on dormant file till his arrest and appear before this Court.”
2. Precisely, the facts of the prosecution case, as unfolded in the FIR lodged by Complainant Hamza son of AmeerBux at said Police Station on 27.12.2016 at about 1500 hours, alleging therein that his daughter namely Parveen aged about 25/30 years old was disappeared from the house and after searching it,he came to know that accused Murad, Sobho and Barad have abducted her and confined her in some place. It is further mentioned in FIR that he was informed by some reliable source that dead body of his daughter Parveenwas available in the area of Gulshan-e-Maymar and then he went there and after hectic efforts he recovered the dead body from the house where accused named above used to reside. After completing of legal formalities challan was submitted in Court by Investigating Officer.
3. Charge against Appellant was framed on 09.03.2017 at Ex.1 for the said offences to which he pleaded not guilty and claimed to be tried vide his plea on record at Ex.2.
4. In order to substantiate its case, the prosecution has examined witnesses namely PW-1 Complainant Hamza at Ex.03 who produced copy of FIR at Ex.3/A, memo of arrest at Ex.3/B, memo of inspection at Ex.3/C & Ex.3/D. PW-2 Sub Inspector Muhammad Sharif Khan at Ex.4 who produced roznamcha entry at Ex.4/A, memo of inspection of dead body at Ex.4/B, inquest report at Ex.4/C, letter dated 25.12.2016 at Ex.4/D, roznamcha entry at Ex.4/E, letter to MLO at Ex.4/F, letter to Incharge Edhi Centre at Ex.4/G, roznamcha entry at Ex.4/H, letter dated 27.12.2016 at Ex.4/J and roznamcha entry atEx.4/K. Thereafter prosecution examined PW-3 ASI Mazhar-ul-Haq at Ex.5. PW-4 MLO ZakiyaKhursheed at Ex.6, who produced medical certificate at Ex.6/A, death certificate at Ex.6/B and chemical report at Ex.6/C, statement of giving up for prosecution witness at Ex.7. Thereafter prosecution examined PW-5 Mukesh Kumar (Judicial Magistrate) at Ex.8 who produced letter dated 04.01.2016 at Ex.8/A and statement U/s. 164 Cr. P.C. at Ex.8/B. Lastly prosecution examined PW-6 ASI/IO Ghulam Muhammad at Ex.9, who produced roznamcha entry at Ex.9/A to 9/C, letter to Chemical Branch at Ex.9/D, roznamcha entry at Ex.9/E, memo of recovery of mobile phone at Ex.9/F and roznamcha entry at Ex.9/G. These witnesses were duly cross examined by learned counsel for the Appellant.
5. The statement of Appellant/accused was recorded U/s. 342 Cr.P.C. at Ex.10 in which he denied the allegations leveled against him by the prosecution and further stated that he is innocent and has been falsely implicated in this case. However, he did not examined himself on oath or examine any defence witness to disprove the prosecution case.
6. Learned Presiding Officer of the trial Court after assessment of evidence, documents on record and after hearing the parties convicted and sentenced the Appellant/Accused as detailed in the introductory part of the Judgment.
7. Learned counsel for Appellant has argued that Appellant is innocent and he has been falsely implicated in this case by the police due to malafide intention. He further argued that the name of the Appellant is not mentioned in FIR and there is no eye witness of the incident and prosecution examined all prosecution witnesses but the said witnesses have not supported the prosecution case and there are material contradictions in between them on material particulars of the case. He also argued that the Complainant who is the father of the deceased Parveen has also did not implicate the present Appellant in this case and during his evidence he was declared hostile. He further submits that the Judicial confession of the Appellant recorded before the concerned Magistrate was not voluntarily and that the confession of Appellant was extracted from him by subjecting him to torture during the police custody preceding the recording of confession and there is also no corroborative evidence on record to prove that the confessional statement was voluntarily as nothing was recovered from the Appellant, as such in this circumstances, no reliance could be placed on the retracted confession. However, during the course of argument he also reiterated the same facts and grounds which he has urged by him in this appeal and prayed that accused being innocent may be acquitted from the charge.
8. Conversely, Mr. Hussain BuxBaloch, Addl. Prosecutor General Sindh while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the Appellant beyond the reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentence awarded to the Appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Hence he prayed that this appeal may be dismissed.
9. Complainant of the case namely Hamza son of AmeerBux is present submits that he has not given the name of the Appellant in the FIR and the Appellant is innocent but Police involved him in this case after releasing the real culprits whose names were given by him in FIR.
10. I have heard the learned counsel for the parties at a considerable length and perused the evidence and documents on record with able assistance of parties advocate.
11. After going through the record I have come to the conclusion that prosecution has failed to prove its case against the Appellant for the reasons that the FIR was lodged by the Complainant Hamzaon 27.12.2016 after the delay of about 20/25 days of the incident but no explanation for such inordinate delay has been explained therefore on this ground false implication of the Appellant in this case with due deliberation and consultation at the hands of police could not be ruled out. Appellant is not named in FIR. It appears from the record that this incident is un-witnessed incident. However it appears from the record that Complainant lodged FIR against accused Murad, Sobho and Barad and the dead body of Mst. Parveen (deceased) daughter of Complainant was recovered from the house of the said accused situated in Ibrahim Goth near Afghan Camp, Gulshan-e-Maymar Karachi. As per record it also appears that I.O. of the case after due investigation placed the names of the said accused in column No.2 with blue ink having no sufficient evidence against them and in this regard I.O. of the case has also submitted his reportu/s. 497(ii) Cr. P.C. approved by SSP Investigation for letting off these accused and as per record Mr. Mukesh Kumar Judicial Magistrate Karachi West approved/accepted the report of Investigating Officer and passed order dated 19.01.2017 for releasing these accused from the charge. However, present accused has been challaned in this case. It may be mentioned here that the order of releasing the said accused has not been challenged by either party before any superior forum having jurisdiction.
12. As observed above that the Appellant is not named in the FIR and this incident is un-witnessed incident as admitted by the Complainant as well as learned APG. It further reveals from the record that the Appellant was arrested on 27.12.2016 and according to the police investigation and document so brought on record that two mobile phones in broken condition and one Q-mobile which was allegedly in used of the deceased Parveen was recovered on the pointation of the Appellant from a house situated at Ibrahim Goth in presence of mashirsHamza son of AmeerBux and Behram son of Hamza on record at Ex.9/F. As observed above Complainant of the case who is also mashir of recovery of mobile phone did not implicate the Appellant in this case where as co-mashir Behram son of Hamza has not been examined in this case to connect the Appellant in connection with the murder of deceased Parveen who is their daughter and sister respectively. No tangible evidence on record showing that the alleged broken mobile phones recovered at the pointation of the Appellant were in used of deceased Parveen as in this connection no SIM record has been produced by prosecution. I have gone through the Mashirname of Arrest and recovery with accused Murad and Sobhoas well as Mashirnama of Place of incident and recovery on record at Ex.3/B, Ex.3/C and 3/D in which Complainant Hamza has been shown as mashir but as observed above he did not implicate the present Appellant in this case, therefore serious doubt arises with regard to involvement of the present Accused/Appellant in this case.
13. I have gone through the evidence of Police officials who are either investigate the matter or remained co-mashir but their evidences have also been found contradictory on each other on material particular of the case, when these contradiction were brought into the notice of learned APG for explanation he has no satisfactory answer with him. No independent private witness has been examined in this case to prove the allegations. Therefore, in this circumstances the evidence of the Police officials cannot be safely relied upon for maintaining the conviction. Now I come to the evidence of MLOs examined in this case on record and says that there is no dispute with regard to unnatural death of the deceased Parveen.
14. There is no direct evidence against the Appellant on record. No independent witness has been cited in this case to corroborate the version of the prosecution. Recoveries on the pointation of the Appellant if any, through mashirnamas has also not been established as stated above.
15. The only evidence against Appellant is that during investigation he has admitted his guilt by making his confessional statement before Mr. Mukesh Kumar Judicial Magistrate Karachi West and the copy of confessional statement has been produced by the said Magistrate in his evidence at Ex.8, 8/A and 8/B, as such according to the learned APG this is the strong piece of evidence against the Appellant, as such he was of the view that even retracted confession can validly form basis of conviction if corroborated materially from other facts and circumstances of the case against the makers. During the course of argument I have specifically asked the question from learned APG to point out the facts and circumstances which materially corroborated and involvement of the Appellant in this case but again he has no satisfactory answer with him.
16. It appears from the record that the Appellant during trial has resiled his judicial confession. The “retracted confession” and as per law the judicial confession if ring true and is voluntary can be made the sole basis for the conviction of the maker thereof. However, if the same is retracted, even then its evidentiary value is not diminished if the same gets corroboration from other facts and circumstances of the case. In other words in such eventuality independent corroboration from the other evidence, direct and circumstantial is essential. But here in this case no direct or circumstantial evidence (corroborative evidence) is on record to prove the involvement of the Appellant in this case. Therefore, merely on the basis of confessional statement of the Appellant’s conviction could not be maintained in the present scenario of the case.
17. Keeping in view of the above, I am of the firm view that the Presiding Officer of the learned trial Court acted erroneously, in the matter, with misconception and misinterpretation and dispose of the matter purely on non-appreciation and non-application of the required norms of law and that of justice. Consequently, I allow this appeal, set aside the impugned Judgment and acquit the Appellant from the above charge. He is in custody therefore Jail Authorities are directed to release the Appellant forthwith from the above case, if he is not required in any other case.