IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 549 of 2020

Appellant: Nadeem through Mr. Zulfiqar Ali Langah advocate

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

Date of hearing: 17.10.2022

Date of judgment: 17.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of prosecution that appellant committed murder of his wife Mst. Seema 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 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 Karachi East, vide judgment dated 27.10.2020, 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 police at the instance the complainant with whom he was disputed over material affairs; it was unseen incident and appellant has been convicted on the basis of his confessional statement, which was recorded on 5^th day of his arrest, therefore, same ought not to have been relied upon to base conviction. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon the case of Khalid Javed and another vs. The State (2003 SCMR 1419), it is on distinguishable facts and circumstances.

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 instant jail appeal by contending that judicial confession of the appellant has rightly been relied upon by learned trial Court and delay in its recording has been well explained.

4. Heard arguments and perused the record.

5. It was stated by complainant Rafiq Jan in his FIR that Mst. Seema was his sister and was married with the appellant; on divorce she was residing with him, yet appellant by visiting his house was taking away her, despite his objection. On 12.05.2019, he was intimated by P.W Shams-ur-Rehman that Mst. Seema has been strangulated to death by the appellant at Model Park Korangi. On such information, he proceeded to the place of incident, the police party came there and shifted the dead body of the deceased to Jinnah Hospital for postmortem. Whatever is stated by the complainant in his FIR takes support from his evidence to large extent. However, no divorce deed is brought on record. It was stated by P.W Shams-ur-Rehman that he intimated the incident to the complainant, on coming to know of same through Muhammad Rafiq and then went at the place of incident; police came there and shifted the dead body of the deceased to Jinnah Hospital for postmortem. The complainant and P.W Shams-ur-Rehman are not eye witnesses to the incident, but have narrated the facts leading to the incident. As per I.O/ASI Muhammad Asif, on information, he went at the place of incident and found the dead body of the deceased hanged with a tree; it was then shifted to Jinnah Hospital for postmortem. As per Medical Officer Dr. Zakia, the death of the deceased occurred due to asphyxia leading to irreversible shock and respiratory failure. It was stated by I.O/SIP Babar Mehmood that the appellant was arrested by him when he was found standing at Landhi Railway station. As per I.O/SIP Masroor Ahmed, the appellant confessed his guilt before him and then was produced before the Magistrate having jurisdiction for recording his judicial confession, which he did and after usual investigation he submitted charge sheet against the appellant before the Court having jurisdiction. It was stated by Mr. Ali Bux Mashori that he recorded confession of the appellant whereby he admitted his guilt by stating that he has committed murder of his wife Mst. Seema as she was of bad character. If for the sake of arguments is believed that the deceased was having bad character, even then the appellant was having no right to have killed her on such account. The judicial confession of the appellant obviously has been recorded by Mr. Ali Bux Mashori, the Magistrate having jurisdiction, being independent person, after observing all the requisite formalities, same could not be disbelieved only for the reason that it now has been retracted by the appellant and has been recorded on 5^th day of his arrest. No time limit is prescribed by law for recording a judicial confession. It obviously is appearing to be true and voluntarily. The delay in recording of judicial confession of the appellant even otherwise has been explained plausibly by Mr. Ali Bux Mashori during course of his examination. The appellant in his statement recorded under Section 342 Cr.P.C, was fair enough to state that the deceased was his wife; she was residing with him and he made judicial confession for the reason that he was promised by the Investigating Officer to be released. Such plea on the part of the appellant deserves to be ignored being after thought. Had it been so, then the appellant would have intimated Mr. Ali Bux Mashori, the Magistrate having jurisdiction, about such promise at the time when he was asked for the same. In these premises it could be concluded safely that the prosecution has been able to prove its case against the appellant beyond shadow of doubt on the basis of his 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. In view of the facts and reasons discussed above, it is concluded that no interference with the impugned judgment is called by this Court, by way of instant jail appeal, consequently, it is dismissed accordingly.

JUDGE