HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.367 of 2017

Appellant              :         Manzoor   Hussain    son   of   Allahditta,

through Mr. Rasheed Ashraf, Advocate.

Respondent          :         The  State  through  Mr.  Abdullah Rajput,

Deputy Prosecutor General, Sindh.

Date of hearing     :        30.10.2019

Date of Judgment :        30.10.2019

J U D G M E N T

Abdul Maalik Gaddi, J.– Appellant Manzoor Hussain son of Allahditta was tried by the learned X^th Additional District and Sessions Judge, Karachi (West), in Sessions Case No.981 of 2012 (re. State v. Manzoor Hussain), arising out of Crime No.386 of 2012 registered at police station Saeedabad, Karachi, under Section 302, PPC. After full dressed trial, by judgment dated 21.07.2017, the appellant was convicted under Section 302(b), PPC and sentenced him to suffer imprisonment for life and to pay fine of Rs.200,000/- (Rupees Two Lac only) and in case of default in non-payment of fine, it was further ordered that appellant shall suffer S.I. for six (6) months more. Hence, he has come in appeal.

2.       Precisely, the facts of the case as unfolded in the FIR lodged by the complainant namely, SIP Chaudhry Muhammad Aslam posted at police station Saeedabad on 21.07.2012 at 2015 hours alleging therein that on 19/20/21.07.2012 at unknown time, present appellant killed his daughter namely, Mst. Farzana by pressing her throat/neck at his House No.5243, Dawood Goth, Karachi, on account of prestige as her daughter Mst. Farzana got married without consent of her father (appellant) in the Faisalabad with one Kamran on which accused was annoyed.

3.       The charge was framed on 24.10.2012 at Ex.2 against the accused by the learned trial Court, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.2/A.

4.       At trial, in order to establish accusation against appellant/accused, prosecution had examined the following witnesses:-

i.        PW-1 SIP Chaudhry Muhammad Aslam at Ex.3, who produced roznamcha entry No.14, memo of inspection of dead body inquest report, application made to civil hospital, medical report, roznamcha entry and copy of FIR at Ex.3/A to Ex.3/G respectively;

ii.       PW-2 Bilal Hussain (mashir) at Ex.4, who produced memo of vardaat and memo of arrest of accused at Ex.4/A and Ex4/B respectively;

iii.      PW-3 Dr. Saadat Fatima at Ex.7, who produced MC at Ex.7/A;

iv.      PW-4 Mr. Ishaque Ahmed Nizamani, Judicial Magistrate at Ex.8, who produced Judicial Confessional Statement of accused at Ex.8/A;

v.       PW-5 Investigating Officer namely, SIP Moula Bux at Ex.9, who produced sketch of vardaat, roznamcha entry, application to chemical analyzer and chemical report at Ex.9/A to Ex.9/D respectively.

These witnesses were cross examined by the Counsel for appellant. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.10.

5.       Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.11, in which he has denied the allegations as leveled by the prosecution by stating that he is innocent and prayed for justice. However, accused neither examined himself on Oath nor led any evidence in his defence.

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 as detailed in the introductory para of this judgment.

7.       Mr. Rasheed Ashraf, the learned Counsel for appellant contended that appellant is innocent and has been falsely implicated by the police; that the learned trial Court has erred in law and fact while deciding the case and the impugned judgment is suffering from non-reading and misreading of evidence/record, hence, the same is liable to be set-aside; that while deciding the matter learned trial Court has erred in law and did not take into consideration that there was no direct evidence against the appellant; that while deciding the matter learned trial Court failed to consider that the prosecution case was only based upon the story narrated by a person named Bilal [son in law of the appellant] which story was based upon presumption and not on cogent evidence; that while deciding the matter learned trial Court failed to consider that the said Bilal on whose presumption the story of prosecution was cooked did not support the prosecution version before the Court during evidence; that while deciding the matter learned trial Court also failed to consider that the appellant was arrested in this case on 23.07.2012 and prosecution without seeking permission from the trial Court moved an application to the judicial magistrate for recoding of 164, Cr.P.C. statement after delay of seven (7) days and the said statement was retracted at the time of framing of charge by the appellant; that while deciding the matter learned trial Court has failed to take into account the delay of seven (7) days in recording of Judicial confession of the appellant which would suggest that the confessional statement was tutored one and was result of mental torture/pressure. Such judicial confessional has no value as the same has been retracted by the appellant. In the case of Minhon & another v. State reported in 1996 P.Cr.L.J. 528, it was held that retracted confession should not be acted upon and made the basis for conviction, unless it is corroborated in material particulars. In the present case, there is no corroborated material which could implicate the appellant in the crime. Hence, the statement under Section 164, Cr.P.C. recorded by the judicial magistrate has no value in eyes of law; that the prosecution alleged that the deceased lady was married with one Kamran resident of Faisalabad, but the prosecution has failed to bring any evidence about her marriage before trial Court, nor examined the alleged husband of the deceased, therefore, the story narrated in the FIR is highly doubtful, fictitious and false, therefore, this appeal may be allowed as prayed. In support of his contentions, learned Counsel for the appellant has relied upon the case laws reported as PLD 1978 Supreme Court 21 [Naqibullah and another v. the State]; 1995 SCMR 351 [Muhammad Yousaf v. The State]; 1995 SCMR 599 [Ata Muhammad and another v. the State]; 2001 SCMR 56 [Munir Ahmed alias Munni v. the State]; and 2009 SCMR 230 [Muhammad Akram v. the State].

8.       Mr. Abdullah Rajput, learned Deputy 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.       I have heard the learned counsel for the parties at a considerable length and perused the evidence and documents on record with their able assistance.

10.     It is very unfortunate incident in which one innocent lady namely, Mst. Farzana, aged about 20/22 years old has lost her life at the hands of her father (appellant) at his house by pressing her throat/neck. The incident took place on 19/20/21.07.2012, whereas, the FIR was lodged on 21.07.2012 by SIP Chaudhry Muhammad Aslam of police station Saeedabad, Karachi. Apparently, there is a delay of about two (2) days in lodging of FIR, but the delay in lodging of FIR has also been satisfactory explained in FIR. In this case, prosecution has examined in all five (5) witnesses including complainant, who produced FIR of the incident narrating the facts of the incident. Dr. Saadat Fatima, who conducted postmortem of the deceased Mst. Farzana, who in her evidence, confirmed the death of Mst. Farzana as unnatural and caused due to throttling/strangling. PW Ishfaq Ahmed Nizamani, the then Civil Judge, who recorded the confessional statement of the appellant, who in his evidence confirmed that before recording confessional statement of the appellant, he observed all legal formalities and according to him, the confessional statement was voluntary and without any pressure. PW Bilal Hussain, who is said to be mashir of the case, produced memo of arrest and recovery, in which it is mentioned that blood stained white sheet and blood stained earth was taken into police custody for conducting chemical examination and sealed up and finally, investigating officer was examined, who after investigation submitted the challan before the Court of law.

11.     No doubt in this matter, PW Bilal Hussain has been declared hostile. On perusal of evidence and documents so brought on record, it reveals that the alleged incident took place inside the house of the appellant and this fact has been found proved through an FIR at Ex.3/G and memo of place of inspection dated 21.07.2012 at Ex.4/A.

12.     It also appears from the record that accused/appellant Manzoor Hussain voluntarily appeared before the police station on 23.07.2012 by admitting his guilt and thereafter, he has made his judicial confession before the Judicial Magistrate on 31.07.2012. It further appears from the record that though there is no direct evidence against the appellant, but there is strong circumstantial evidence available on record to connect the appellant in this case. The cause of death of deceased through medical evidence shows that it was made due to pressing of throat. Dead body of the deceased Mst. Farzana was also recovered from the house of the appellant and the motive behind the incident was that deceased Mst. Farzana got married without consent of her father (appellant) in Faisalabad with one Kamran, on which appellant/accused annoyed and when the deceased Mst. Farzana came back to her home, the appellant annoyed and killed her by throttling her neck. Motive was also proved because the appellant/accused in his confessional statement accepted this fact.

13.     Confessional statement on record has also found supported by the circumstantial evidence as discussed above. Learned Counsel for the appellant has criticized the confessional statement on the ground that there was delay of about seven (7) days in recording the confession; that it was not voluntary and true and that only one hour i.e. 11:30 a.m. to 12:30 p.m. was given to the appellant for reflection.

14.     No doubt there is a delay of seven (7) days in recording the confession, but this by itself is not sufficient to discard the same. The Hon’ble Supreme Court of Pakistan in the case of Nabi Baksh v. State reported in 1999 SCMR 1972 held that delay in recording the confessional statement by itself is not sufficient to affect its validity. However, no hard and fast rule can certainly be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation. Reliance in this respect is placed in the case of Muhammad Yaqoob v. State reported in 1992 SCMR 1983.

15.     I have examined the confessional statement with the able assistance of the learned Counsel for the parties and found that the then Civil Judge after performing requirements of law and giving a time of an hour recorded the same and he was of the opinion that the confession was voluntary and true. I have also gone through the case of Gul Jamal v. State reported in 1980 SCMR 654, it was held that no hard and fast rule as to how much time is to be allowed to the accused for reflection before confession is recorded. However, period of time depends on each case. In the present circumstances of the case, I find that the period given by the Civil Judge for reflection purposes to the appellant was sufficient and it has not caused any prejudice to the appellant. Learned Counsel for the appellant has pointed out some lapses while recording of confessional statement of the appellant, but in my view, the lapses pointed out having no bearing. Even otherwise, any lapse by Magistrate in recording the confession cannot always be treated as fatal to the evidentiary value of confession when the Court is satisfied that lapse on the part of the Magistrate has not in any way adversely affected the voluntariness or truthfulness of the confession. On perusal of confessional statement, I did not find any infirmity in the confessional statement which is corroborated by the strong circumstantial evidence. Even otherwise, 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. During the course of arguments, learned Counsel for the appellant has also argued that during recording of confessional statement at police station, son of the appellant was under arrest and this confessional statement was made because of that reason. Reverting to this contentions, it is suffice to say that when the confessional statement was being recorded. the appellant did not mentioned this fact in it. Not only this, the accused/appellant in his statement under Section 342, Cr.P.C. has also not lead evidence in this regard. In this regard, I am supported with the case of State v. Minhun alias Gul Hassan reported in PLD 1964 SC 813, wherein the Hon’ble Supreme Court of Pakistan has been held as under:

"As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession, whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well-settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly A form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement."

In this case, learned trial Court has properly appreciated the evidence according to the settled principles of law connecting the appellant in the commission of crime. Judicial confession of the accused/appellant was voluntary, which was corroborated by medical evidence and other pieces of evidence as discussed above. No evidence has been produced by the accused/appellant in his defence. Prosecution witnesses had no motive to falsely implicate the accused/appellant in this heinous crime. Appellant/accused has committed murder of her daughter in a brutal manner. It is settled law that conviction can be awarded on circumstantial evidence, provided that circumstances constituted a chain and its no link is missing and their combine effects are that the guilt of the accused is established beyond any shadow of doubt.

16.     As observed above, in this case, the prosecution through documents and evidence on record established the strong circumstantial evidence. During the course of arguments, I have specifically asked the question from learned Counsel for the appellant to point out any illegality in recording of confessional statement of the appellant, he has no satisfactory answer with him.

17.     For whatever has been discussed above, I hold that prosecution has proved its case against the appellant beyond any shadow of doubt. Trial Court has appreciated the evidence according to the settled principles of the law. Judgment of trial Court requires no interference. Resultantly, the appeal is dismissed along with listed application, if any. However, the appellant is entitled for the benefit of Section 382-B, Cr.P.C. The case laws cited by learned Counsel for the appellant have been perused and considered by me, but do not find applicable to the facts of the present case. Even otherwise, in Criminal Administration of Justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently, as held by the Hon’ble Supreme Court of Pakistan in the case of The State v. Haji Kabeer Khan reported as PLD 2005 Supreme Court 364 and Muhammad Faiz alias Bhoora v. The State and another reported as 2015 SCMR 655.

18.     This appeal was heard and dismissed in open Court through short order dated 30.10.2019 and these are the detailed reasons thereof.

JUDGE

Faizan A. Rathore/PA*