IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Jail Appeal No. 504 of 2019
Appellant: Abdul
Qayoom through Mr. Muhammad Imran Meo advocate
The State: Through
Mr. Khadim Hussain, Additional Prosecutor General Sindh
Complainant: Muhammad
Ramzan through M/s Muhammad Faheem Zia, Pervaiz Ahmed Bhatti and Sawan
advocates
Date of hearing: 11.10.2022
Date of judgment: 17.10.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that the appellant committed
murder of his wife Mst. Robina by strangulating her throat, for that he was
booked and reported upon. After conclusion of trial, he was convicted under
Section 302(b) PPC and sentenced to undergo imprisonment for life as tazir and to pay compensation of
Rs.500,000/- to the legal heirs of the deceased and in default whereof to
undergo simple imprisonment for 06 months with benefit of Section 382(b) Cr.P.C,
by learned Ist Additional Sessions Judge/ MCTC Karachi West, vide judgment
dated 12.07.2019, which is impugned by the appellant before this Court by
preferring the instant Jail Appeal.
2. It is contended by learned counsel for
the appellant that the appellant being innocent has been involved in this case
falsely by the complainant in order to satisfy his matrimonial dispute with him;
there was no eye witness to the incident, conviction and sentence have been
recorded against the appellant on the basis of his retracted confessional statement, which
has been recorded with delay of about 10 days to his arrest. By contending so,
he sought for acquittal of the appellant. In support of his contentions, he
relied upon the case of Naqibullah and
another vs. The State (PLD 1978 S.C 21).
3. Learned Addl. P.G for the State and
learned counsel for the complainant by rebutting the above contentions have
sought for dismissal of the instant jail appeal by contending that the
confessional statement made by the appellant was true and voluntarily and it
has rightly been relied upon.
4. Heard arguments and perused the record.
5. It is inter-alia stated by complainant Muhammad
Ramzan that Mst. Robina was his sister and was married with the appellant, who
was intending to marry his cousin, therefore, was not maintaining good
relations with her and then committed her murder by strangulating her throat by
giving it cover of suicide by hanging her dead body with a grill. Whatever is
stated by the complainant takes support from evidence of P.Ws Shahzad Ali,
Muhammad Imran and Masood Akhtar. No doubt they have not actually seen the
incident, but they have narrated the facts leading to the incident. As per
I.O/SIP Akbar Zaman the rope which allegedly was used in commission of the
incident by the appellant was secured by him. His evidence to that extent takes
support from evidence of P.W/mashir Muhammad Shafi. On arrest, the appellant has
confessed his guilt before I.O/SIP Muhammad Sabir and then before Mr. Sohail
Ahmed Mashoori, the Magistrate having jurisdiction, by stating that there arose
quarrel between him and his wife on sale of her gold ornaments; on the night of
incident, when she was found sleeping, he committed her murder by strangulating
her throat and then hanged her dead body with the grill, to give it cover of
suicide and then intimated her relatives accordingly. The judicial confession
of the appellant obviously is recorded by Mr. Sohail Ahmed Mashori after
fulfilling all the requisite formalities, as such, it is appearing to be true
and voluntarily. No doubt, it has been recorded on 10th day of
arrest of the appellant yet there appears no justification to disbelieve it on point
of time, for the reason that no time limit is prescribed by law for recording
the same. It was recorded when the appellant was found ready to make it. The
appellant during course of his examination under Section 342 Cr.P.C when was asked
about his confessional statement, stated that he was pressurized by the
Magistrate to give such statement. The Magistrate being independent person, was
having no reason to have pressurized the appellant to make confessional statement,
therefore, it could not be disbelieved on having been retracted by the
appellant. In these circumstances, it could be concluded safely that the
prosecution has been able to prove its case against the appellant beyond shadow
of doubt mainly on the basis of own judicial confession.
6. In the case of Ghulam Qadir and others vs. The State (2007 SCMR 782), it has been held by the Hon’ble Apex Court
that;
“7. The confessional statements
of the appellants were, recorded by the Magistrate on 22-8-1998, seven days
after their arrest. Undoubtedly some delay was caused in recording these
statements. Delay in recording judicial confession becomes relevant to
determine its voluntariness. However delay, without more, does not render the
confession in-voluntary.(See Muhammad Yaqoob v. The State 1992 SCMR 1983).”
7. The case law which is relied upon by the
learned counsel for the appellant is on distinguishable facts and
circumstances. In that case, the accused were not enquired by the Magistrate if
they were tortured by the police and why they are making confessional
statement. In the instant case all the requisite formalities have been observed
by the Magistrate before recording confessional statement of the appellant.
8. In view of the facts and reasons
discussed above, it is concluded that no case for interference with the
impugned judgment is made out, by this Court, by way of instant jail appeal, it
is dismissed accordingly.
JUDGE