Noor Mohammad vs State etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

J. Cr.A. No.693-P/2010

Date of hearing: 05.03.2015

Appellant (s) : Noor Muhammad by Mr. Waqas Khan, Advocate.

Respondent (s) : Complainant in person and the State by Mr. Sikandar Hayat Shah, AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This appeal has been filed by appellant Noor Muhammad from Jail challenging the legality and propriety of the judgment dated 30.06.2010, rendered by learned Additional Sessions Judge-XIII, Peshawar, whereby he has been convicted under section 302 (b) PPC for committing murder of his sister-in-law Mst. Zalida and sentenced to undergo life imprisonment as well as to pay Rs.10,000/- or in default thereof to undergo 06 months S.I. further. Benefit of S.382-B Cr.P.C. has been extended to him.

2.Prosecution case as unfolded in First Information Report is that on 25.02.2007 at 1835 hours, Mst. Rehmat Bibi *M.Siraj Afridi P.S. D

(PW.7) reported to local police that on the fateful day she was present in her house, when at 1815 hours, her son Noor Muhammad (appellant-convict herein), entered the house and opened fire at her daughter-in-law Mst. Zalida, resultantly, she got hit and died on the spot. In addition to her, the incident is stated to have been witnessed by her son Riaz and daughter Mst. Nasreen. Oral altercation prior to incident inter-se the deceased and accused has been alleged as motive behind the occurrence. Report of the complainant was recorded in the shape of murasila Exh.PA/1, by Noor Zamin Shah Inspector (PW.3), on the basis of which FIR Exh.PA No.173 dated 25.02.2007 under section 302 PPC was registered against the appellant in Police Station Yakatoot, Peshawar. Noor Zamin Shah Inspector (PW.3), also prepared injury sheet and inquest report of the deceased Exh.PW.3/1 and Exh.PW.3/2 and shifted her dead body to the mortuary for autopsy under the escort of Constable Naseer No.1947. He arrested accused-appellant on 26.02.2007 along with crime weapon/Kalashnikov for which separate case was also registered against him.

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3.Lady Doctor Shahida Naveed conducted post- mortem examination on the dead body of the deceased and found the following injuries on her person:-

1.Firearm entry wound 5 cm in diameter on left front chest, 06 cm lateral to the nipple.

2.Firearm exit wound 1x1 cm in size on right back of chest just on the inferior boarder of scapula.

3.Firearm lacerated wound 10 x 4 cm in size on right front abdomen.

4.Firearm entry wound 0.5x 0.5 cm in diameter on right front upper arm.

5.Firearm exit wound 2x2 cm in size on right back upper arm.

6.Firearm lacerated wound 6x 4 cm in size on left front mid thigh.

7.Firearm lacerated wound 10x 8 cm in size involving the whole right ankle.

8.Firearm lacerated wound 8x8 cm in size involving the whole left ankle.

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Opinion: According to opinion of the medical Officer, the deceased died due to injuries to heart, lungs lever and intestines because of firearms.

Probable time between injury and death has been observed as “Immediate” while between death and postmortem as 09-18 hours.

4.Muhammad Azeem SI (PW.5), proceeded to the spot and prepared site plan Exh.PX on the pointation of the eyewitnesses. During spot inspection, he secured blood with the help of cotton from the place of the deceased Exh.P.5 vide recovery memo Exh.PW.5/1 and 13 empties of 7.62 bore from the place of the accused vide recovery memo Exh.PW.5/2. Vide recovery memo Exh.PW.4/1 he took into possession the last worn bloodstained attires of the deceased, sent by doctor from hospital, interrogated the appellant and produced him before the learned Judicial Magistrate for recording his confessional statement vide application Exh.PW.5/4, where he confessed his guilt. He sent the recovered empties and Kalashnikov as well as bloodstained articles to the FSL for chemical analysis for expert opinion and received reports Exh.PZ and Exh.PZ/1 in positive.

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He recorded statements of the PWs and after completion of investigation, handed over the case file to SHO, who submitted challan against the appellant/accused.

5.On receipt of challan by the learned Trial Court, accused/appellant was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as twelve witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342 Cr.P.C., wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above, hence, this appeal.

6.Learned counsel for the appellant argued that impugned judgment of the learned Trial Court is against the law, facts and evidence available on record; that the alleged eyewitnesses, namely, Mst. Rehmat Bibi and Riaz, have squarely denied their presence on the spot at the time of incident; that alleged confessional statement of the appellant *M.Siraj Afridi P.S. D

being involuntary and result of torture would not be sufficient for recording conviction, which even otherwise, does not find any corroboration from other circumstances of the case; that in absence of direct evidence, recovery of blood, bloodstained articles, autopsy report of the deceased and positive FSL reports, being corroborative pieces of evidence, would not be adequate to prove the guilt of the appellant; that prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring evidence beyond shadow of doubt, therefore, while extending him benefit of doubt, he be acquitted of the charge.

7.Conversely, learned AAG contended that appellant is directly and singularly charged by none else but by his own mother Mst. Rehmat Bibi and brother Riaz for murder of his sister-in-law; that incident has taken place inside the house of the PWs; that deceased and PWs being inmates of one and the same housel, their presence at the time of the incident does appealable to prudent mind; that no doubt during their court statements, PWs denied their presence on the spot at the time of incident, but the same is mere concession extended by them *M.Siraj Afridi P.S. D

to the appellant being their close blood relation; that even if the testimony of both these PWs are excluded from consideration on account of contradictions and concession, there is voluntary confessional statement of the appellant recorded by learned Judicial Magistrate on 28.02.2007 i.e. after one day of his arrest; that though the appellant has retracted from the same, but recovery of blood from the place of the deceased, her bloodstained garments coupled with positive Serologist report, the unnatural death of the deceased with firearm as per autopsy report, recovery of 13 crime empties of 7.62 bore from the place of the appellant and recovery of Kalashnikov from his possession as well as positive FSL report qua the empties and weapon of offence, corroborate the confessional statement of the appellant, and in such circumstances, conviction can be recorded on sole retracted confession of the appellant; that confession of the appellant has not been questioned by the defence in statements of the learned Judicial Magistrate and the I.O. to prove the same as involuntary. He contended that prosecution has proved the guilt of the appellant upto the hilt through cogent and *M.Siraj Afridi P.S. D

confidence inspiring evidence and the learned Trial Court was justified by holding him guilty of the offence, therefore, the impugned judgment being well reasoned and based on proper appreciation of evidence is not open to any interference.

8.We have heard the exhaustive arguments advanced from both the sides and perused the record carefully.

9.In this untoward incident the appellant has been charged for committing the murder of his sister-in-law Mst. Zalida. The incident took place at 06.15 p.m, which has been reported at 06.35 p.m. i.e. after 20 minutes of the incident by Mst. Rehmat Bibi (PW.7), who is mother of the appellant, therefore, question of any mistaken identity, concoction fabrication or substitution does not arise as no mother can be expected to charge her real son for a murder by sparing the real culprit. The appellant is directly and singularly charged by his own mother in her initial report and brother of the appellant, namely, PW Riaz substantiated her version in initial stage of the case. However, both these eyewitness, when appeared in the witness box during trial, they denied their presence on the spot at the time of incident. Admittedly, *M.Siraj Afridi P.S. D

both the witnesses being real mother and brother of the deceased, their retraction from their earlier stance is apparent to save the skin of the appellant. The learned Trial Court, held their statements as concession towards the appellant. A look over the statement of Mst. Rehmat Bibi (PW.7) reveals that in her examination in chief she reiterated the same story as set forth by her in her initial report. She, however, in cross- examination deposed that she being a working lady was present in the house of her master in Gulbahar where she came to know about the incident through children of the Mohallah. She categorically stated that she was not present at the time of occurrence. She also denied preparation of site plan at her instance. Similarly, PW Riaz deposed that when he came back to house from work the incident had already taken place.

He deposed that he was not eyewitness of the incident. In view of the above contradictions in the statements of the eyewitnesses, their testimony cannot be belied and relied upon.

10.Now we are left with the confessional

statement of the appellant recorded by learned Judicial *M.Siraj Afridi P.S. D

Magistrate. No doubt, appellant has retracted the same alleging it to be involuntary and result of torture but as per ratio of judgment of the Hon’ble Supreme Court in case titled, “Manjeet Singh Vs the State” (PLD 2006 Supreme Court 30), retracted confession either judicial or extra-judicial, if found truthful and confidence inspiring as well as qualified the test of voluntariness, can be used for conviction without looking for any other sort of corroboration. In the judgment supra the apex court while further dilating upon the evidentiary value of the retracted confession held that no rule of criminal administration of justice existed to the effect that the court having found the retracted confession voluntary and true, must look for the corroboration and that in absence of corroborative evidence, conviction cannot be maintained. Retraction of a Judicial or extra-judicial confession itself is not an infirmity to be considered sufficient to withhold the conviction, because the evidentiary value of a confession is not diminished by the mere fact that it was retracted by the *M.Siraj Afridi P.S. D

maker at the trial. Independent corroboration from other source direct or circumstantial, therefore, cannot be insisted in every case as a mandatory rule, rather the rule of corroboration is applied by way of abundant caution and in a case depending entirely on the confessional statement of a person or only on the circumstantial evidence, this rule is applied more cautiously.

11.Taking the confessional statement of the appellant at the touch stone of the principle laid down by the apex court in the judgment (supra), suffice it to say that incident took place on 25.02.2007 and the appellant has been arrested on the next day i.e. 26.02.2007 along with Kalashnikov/weapon of offence. The apellant recorded his confessional statement on 28.02.2007 i.e. on third day of his arrest. In his confessional statement, the appellant, besides, admitting his guilt categorically stated that he was not beaten by the police and that he is confessing his guilt voluntarily. For convenience his statement is reproduced below :-

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“Deceased Mst. Zalida was the wife of my brother, she was immoral and having a

loose character, having some immoral

relation with someone in her village. I repeatedly warned her, but she was

constantly ignoring my advice. At last I took a Kalashnikov and murdered her, then I came to police Station and surrendered my arrest, there I remained for 3 days. No beaten was given to me by the police. This is my volunteer statement without any

pressure and inducement”.

12.Tila Muhammad Judicial Magistrate, who recorded confessional statement of the appellant appeared as PW.11. In his examination-in-chief he deposed that on production of the appellant before him, he was given 1 1⁄2 hours time to think over his statement and that the appellant was made understand that he was not bound to make a confession and if he does so it will *M.Siraj Afridi P.S. D

be used against him as a piece of evidence. He deposed that he also disclosed his identity before the appellant as a Judicial Magistrate and that after observing all legal formalities, he recorded the confessional statement of the appellant Exh.PW.11/1 which bear his signature and thumb impression of the appellant. This PW has been subjected to cross-examination by the defence, but not a single suggestion has not been put to him to question the voluntariness of confessional statement of the appellant.

The appellant has also not uttered a single word in his confessional statement about any torture of the police rather categorically stated that he is voluntarily recording the statement.

13.Muhammad Azeem SI (PW.5), who conducted investigation in the case and interrogated the accused, has also been cross-examined by the defence but even not a single question has been put to him about any torture or pressure on the appellant to compel and induce him for recording his confessional statement. In view of *M.Siraj Afridi P.S. D

the above circumstances, we are of the firm view that confessional statement of the appellant is voluntary free from any coercion, duress and torture.

14.During spot inspection the I.O. secured blood through cotton from the place of the deceased and her bloodstained last worn garments vide recovery memo Exh.PW.5/1 and Exh.PW.4/1 in presence of marginal witnesses, which were sent to the FSL and report of the Serologist Exh.PZ/1 is in positive, which establishes murder of the deceased on the crime venue. He also sent 13 crime empties along with recovered Kalashnikov from possession of the appellant to the FSL, report whereof Exh.PZ depicts that these empties have been fired from the said Kalashnikov. All these pieces of evidence, corroborate the confessional statement of the appellant.

Firearms injuries on the person of the deceased on different parts of her body which commensurate with the number of the recovered empties and her unnatural *M.Siraj Afridi P.S. D

death as per autopsy report, with firearms further corroborate the confessional statement of the appellant.

15.For what has been discussed above, we while taking into consideration and believing the sole confessional voluntary statement of the appellant corroborated by strong circumstances of the incident, discussed above, held him guilty of murder of Mst. Zalida his sister-in-law, therefore, he has rightly been convicted and sentenced by the learned Trial Court under section 302 (b) PPC. Resultantly, this appeal being without any substance stands dismissed and conviction and sentence of the appellant recorded by the learned Trial Court vide impugned judgment are maintained.

Announced.

JUDGE

JUDGE

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maintained that the learned Trial Court has the jurisdiction to entertain the suit and in case of decision of issue of the jurisdiction in favour of the petitioners, after conclusion of trail, it would be respondent to suffer and she is ready to face the consequences of such scenario. He while supporting the impugned orders, sought dismissal of the instant petition.

5.Come what may, the issue raised, being a mixed question of law and fact, can properly be resolved, after recording pro and contra evidence of the parties by the learned Trial Court. In view of the above, the impugned orders of both the courts below are set aside and the matter is remanded to the learned Trial Court with the direction to frame a specific issue (qua) jurisdiction, if already not framed, to afford an opportunity to the parties for leading *M.Siraj Afridi P.S. D

their evidence and then to decide the suit on merits in accordance with law. The learned Trial Court shall conclude the trial as early as possible, but not later than 4 months, on receipt of the record. Office shall ensure *M.Siraj Afridi P.S. D

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