IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 77 of 2021

Appellants: Yaqoob Khan and Saifullah through Mr. Shams-ul-Hadi advocate

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 15.11.2022

Date of judgment: 15.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants in furtherance of their common intention, committed murder of Muhammad Asif by causing him injuries with sharp cutting weapon, for that they were booked and reported upon. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to undergo life imprisonment and to pay compensation of Rs.500,000/- each to the legal heirs of the deceased with benefit of section 382(b) Cr.P.C by learned I-Additional Sessions Judge/MCTC Malir Karachi vide judgment dated 11.11.2020, which is impugned by the appellants before this Court by preferring the instant appeal.

2. It is contended by learned counsel for the appellants that their names are not appearing in FIR though, it is lodged with delay of about 02 days and their confessional statements being retracted and doubtful have been obtained by the police after subjecting the appellants to torture and have been believed by learned trial Court without assigning cogent reasons, therefore, they are entitled to be acquitted. In support of his contentions, he relied upon cases of Hajan Khan vs. The State (2002 SCMR 1229) and Muhammad Siddique and others vs. The State (2021 SCMR 1409).

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl.P.G for the state by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that on arrest from the appellants have been secured the knife which they allegedly used in the commission of incident and the prosecution has been able to prove its case against the appellants beyond shadow of reasonable doubt. In support of his contentions he relied upon case Muhammad Ashraf vs. The State (2001 P.Cr.L.J 412).

4. Heard arguments and perused the record.

5. It was stated by the complainant that on 14.04.2020 his son Muhammad Asif after leaving his home did not return till late night, it was intimated to him on 15.04.2020 by his neighbor Abu Bakar that he has seen a dead body on a Facebook, which is appearing of his son. Such Abu Bakar has not been examined by the prosecution. It was further stated by the complainant that on such information, he went at P.S Quaidabad, there he was shown a photograph, which he identified to be of his son Muhammad Asif and then acknowledged the delivery of his dead body from Chippa mortuary and on 16.04.2020, he lodged formal report of the incident with police at P.S Quaidabad. On investigation, as per I.O/SIP Hafeez Tanoli, the appellants were arrested and they on inquiry disclosed before him to have committed the murder of the deceased by causing him knife injuries. If for the sake of arguments, it is believed that the appellants actually made such disclosure before said I.O/SIP, even then same could not be used against them as evidence being inadmissible in terms of Article 39 of Qanun-e-Shahadat Order, 1984. It was further stated by said I.O/SIP that the appellants then led him to recovery of knife from the place of incident. It was from corn field, which obviously was open to everyone and was not owned by either of the appellant, therefore, such recovery is to be judged with doubt. It was further stated by the said I.O/SIP that appellants were produced by him before Mr. Nadeem Ali Burriro, the Magistrate having jurisdiction for recording their confessional statements, which they did and then they were remanded to judicial custody. Evidence of Mr. Nadeem Ali Burriro, the Magistrate who recorded confessional statements of the appellants is silent with regard to the narration made by the appellants. It however, was stated by appellant Yaqoob in his confessional statement that the deceased was done to death by appellant Saifullah by causing him knife injuries. Contrary to him, it was stated by appellant Saifullah in his confessional statement that the deceased was done to death by appellant Yaqoob by causing him knife injuries. By making such statements, they implicated each other, those are exculpatory in nature. Obviously the confessional statements could only be used against its maker and same cannot be extended to somebody else in terms of Article 43 of the Qanun-e-Shahadat Order, 1984. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellants in commission of incident beyond shadow of doubt.

6. In the case of Faqir Ullah vs. Khalil-uz-Zaman and others (1999 SCMR 2203), it has been held by Hon’ble Apex Court that;

“18. The first question is whether the confessional statement of the convict was to be accepted in toto or might have been accepted in part. The basic principle of Islamic Law is provided in Majellah-al-Ahkam-al-Adliyyah, (section 78) that the Bayyinah or evidence is a proof whose implications may extend to others while the confession is a proof whose implications are limited to the one who makes it. Under this principle the confessional statement of a person can only inculpate himself and no other person can be inculpated merely because some other person has made any admission. This principle is based on the well-known incident reported by almost all the compilers of the Ahadith in which the Holy Prophet (p.b.u.h.) punished a person with Hadd on the confession of the commission of Zina. But in spite of the fact that he had mentioned a particular woman by name with whom he had admitted to have committed Zina, the Holy Prophet (p.b.u.h.) did not convict the woman on the basis of this confession by the co-accused. He appointed a judicial officer to investigate and to independently find out whether the woman had committed Zina or not. The Holy Prophet (p.b.u.h.) directed the judicial officer to punish the Woman only, on her own free and independent admission. On the basis of this Hadith and several other Ahadith, Muslim Jurists have developed the principle that the implications of the confession of a person are confined to himself and cannot be extended to some body else. It also means that the confession made by a person may be accepted to the extent to which it affects himself and may be rejected to the extent to which it implicates some body else.”

7. In the case of Muhammad Mansha vs. The State (2018 SCMR 772), it has been held by the Hon’ble Apex court that;

“4….Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".

8. In case law which is relied upon by learned Addl. P.G for the state, it is held by Hon’ble Federal Shariat Court that the conviction could be based on confessional statement provided it is found to be voluntary and true. In the instant matter the appellants have implicated each other for commission of incident by making such statements before Magistrate, those being exculpatory and violative of Article 43 of the Qanun-e-Shahadat Order, 1984 could hardly to be treated as their confessions.

9. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence with which they were charged, tried, convicted and sentenced by learned trial Court; they are in custody to be released forthwith if not required to be detained in any other custody case.

10. The instant appeal is disposed of accordingly.

JUDGE