PLJ 2006 SC 931
[Appellate Jurisdiction]
Present: Rana Bhagwandas; Saiyed Saeed Ashhad and
Nasir-ul-Mulk, JJ.
SHER ZAMAN--Appellant
versus
STATE and others--Respondents
Crl. A. No. 167/2002 and J.P. No. 14-Q/2002, decided on
31.5.2005.
(On appeal from the judgment dated
31.12.2001 of the High Court of Balochistan Quetta passed in Crl. A. No.
310/2000 and Crl. J. A. No. 130/2000).
(i)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 103--Recovery of dead body and
several incriminating articles on pointation of accused as witnessed by
Magistrate who had also attested/verified `mushirnama' of seizure of such
incriminating articles--Presence of Magistrate and attestation by him of
`mushirnama' lent credibility and
sanctity to recoveries as well as to "mashirnamas" of recoveries--Non-association
of public instant of S. 103 Cr.P.C. would in present case not be a circumstance
adverse to prosecution. [Pp. 940
& 941] D
(ii)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 40--Validity of
confession--Magistrate concerned had satisfied himself that the accused was
making confession voluntarily and he made efforts to find out whether
confession in question, was truthful and contained true account of
facts--Accused lady while being examined by Magistrate had made statement to
the same effect as her disclosure in F.I.R.--No further efforts were thus,
required to be made for ascertaining or verifying truth of
confession--Confession in question was thus, valid and truthful--Information or
disclosure of accused in custody of police officer would be admissible as
evidence if in consequence thereof something relating to commission of crime
was recovered--Even a statement by way of confession which distinctly relates
to any fact discovered would be admissible as evidence against accused. [Pp. 939 & 940] B & C
(iii)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 40--Judicial confession of
accused lady assailed on the ground that judicial officer on account of his
association with investigation of case, confession recorded by him would have
no legal sanctity--Presence of a Magistrate or an officer of equal rank would
be necessary whenever body of any dead person is to be exhumed--Apart from
witnessing process of exhumation of dead body, seizure of crime weapon and
other in-criminating articles and signing mushirnamas of such seizure by
Magistrate concerned had not been associated and did not participate in any
further proceeding during course of investigation--Such circumstances would not
impair or damage his impartiality and independence so as to render judicial
confession of accused lady as illegal and invalid confession. [Pp. 938 & 939] A
(iv)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 43--Judicial confession--Proof
of--Effect--Proved confession of accused in a case where other accused were
facing joint trial for the same offence can be used as evidence/proof against
person making the same while as against other accused person, such statement
can be taken as circumstantial evidence. [P.
941] E
(v)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Qanun-e-Shahadat Order (10 of
1984), Art. 43--Offence punishable with capital punishment--Retracted judicial
confession--Conviction of accused for such offence can be based on retracted
judicial confession if the same was found to have been made voluntarily,
containing true and satisfactory account of incident and fully implicating or
incriminating maker thereof, duly substantiated and corroborated by
circumstantial evidence in shape of recovery of dead body, crime weapon etc. on
pointation of accused--Confession of accused lady can be relied upon for
convicting her for offence charged with in as much as, the same stands
corroborated by very strong circumstantial evidence--Prosecution has thus
succeeded in proving charge of murder against petitioner lady beyond any shadow
of doubt, however, charge against co-accused/appellant was not
proved--Conviction of accused lady was maintained while that co-accused was set
aside. [Pp. 941 & 942] F
1991 SCMR 643; PLD 1994 SC 314; 1999 SCMR
2003; AIR 1972 SC 3; 1991 SCMR 1643; 2003 SCMR 1419; PLD 1995 SC 336, ref.
Sardar M. Ishaq Khan, Sr. ASC for
Appellant (in Crl. A. No. 167/2002).
Raja Abdul Ghafoor, ASC/AOR for State (in
Crl. A. No. 167/2002).
Mr. M. Zaman Bhatti, ASC for Petitioner
(in J.P. No. 14-Q/2002).
Raja Abdul Ghafoor, ASC/AOR for State (in
J.P. No. 14-Q/2002).
Date of hearing : 31.5.2005.
Judgment
Saiyed Saeed Ashhad, J.--This judgment
will dispose of Criminal Appeal No. 167 and Jail Petition No. 14-Q of 2002
involving common questions of law and facts which have been filed on behalf of
accused Sher Zaman and Mst. Zarlashta who were convicted by the learned
Sessions Judge, Musakhail at Loralai for an offence under Section 302 (b)/34
PPC and sentenced to undergo imprisonment for life. In addition,
accused-appellant Sher Zaman was also sentenced to pay a fine of Rs. 1,00,000/-
which when deposited was to be paid to the children of deceased Babul Khan as
compensation under Section 544-A Cr.P.C. or in default of payment to undergo further
RI for 5 years. The learned Sessions Judge also extended the benefit of Section
382-B Cr.P.C. to both the accused. Being aggrieved and dissatisfied with the
judgment of the learned Sessions Judge, both accused Sher Zaman and Mst.
Zarlashta filed criminal appeals against their conviction before the
Balochistan High Court which vide judgment dated 31.12.2001 while dismissing
the appeals reduced the sentence of imprisonment of appellant Sher Zaman in
default of payment of fine of Rs. 1,00,000/- from 5 years RI to 6 months RI.
2.
Accused Sher Zaman feeling aggrieved and dissatisfied with the judgment
of the High Court filed Crl. Petition for Leave to Appeal No. 5-Q/2002 while
Mst. Zarlashta filed Jail Petition No. 14-Q/2002. Leave to appeal was granted to
accused Sher Zaman, inter-alia, to examine the following points:--
(i) As
to whether confessional statement made by Mst. Zarlashta, co-accused can be
used against the petitioner in terms of Article 43 of the Qanun-e-Shahadat
Order as well as the judgments in the cases of Muhammad Noor and another v.
Member-I, Board of Revenue, Balochistan and others (1991 SCMR 643), Arif Nawaz
Khan and 3 others v. The State (PLD 1994 SC 314) and Faqirullah v.
Khalil-uz-Zaman and others (1999 SCMR 2203)?
(ii) As
to whether confessional statement recorded by Abdul Hameed Magistrate, who
remained associated with the investigation during the course of effecting
recoveries of incriminating articles from the house of Mst. Zarlashta, can be
treated a confessional statement recorded by him lawfully in terms of Section
164 read with Section 364 Cr.P.C. if so, to what effect"?
3.
The brief facts of the prosecution case as stated in the FIR lodged by
PW1 Lal Khan ASI are that on 14.5.2000, petitioner Mst. Zarlashta came to
Police Station Musakhail at about 12.00 noon and made a disclosure to above
said Lal Khan, ASI to the effect that she alongwith appellant Sher Zaman had
committed the murder of her husband-deceased Babul Khan by means of knife and
thereafter they buried the dead body in a room of the house. It is the case of
the prosecution that motive for the murder of Babul Khan deceased was that Mst.
Zarlashta had developed illicit relations with appellant Sher Zaman and on one
night, when appellant Sher Zaman was in the house of deceased Babul Khan having
illicit liaison with petitioner Mst. Zarlashta, deceased Babul Khan woke up on
which appellant Sher Zaman ran away. Deceased Babul Khan inquired from
petitioner Mst. Zarlashta the identity of the person but inspite of physical beating,
she did not divulge the name of appellant Sher Zaman. This fact was disclosed
by petitioner Mst. Zarlashta to appellant Sher Zaman on which he went the house
of deceased Babul Khan at about 4.00 p.m. in the evening of the day of incident
and handed over some pills to petitioner Mst. Zarlashta for putting the same in
the tea to be taken by the deceased who mixed the same in the tea which was
taken by deceased Babul Khan at about 7.00 p.m. whereafter he went in a deep
sleep. At about
4.
On the next day i.e. 15.5.2000, petitioner Mst. Zarlashta was produced
before the Assistant Commissioner (PW5 Abdul Hamid) who recorded her
confessional statement (Ex. P/O) and also appended his certificate thereto.
Thereafter, I.O./SHO Hamidullah arrested appellant Sher Zaman and after
obtaining Chemical Analyst Report submitted challan (Ex. P/RP) before the
learned Sessions Judge, Musakhail who framed charge against both the accused
under Section 302/34 PPC to which they pleaded not guilty and claimed to be
tried whereafter the prosecution was directed to adduce evidence in support of
its case.
5.
Prosecution examined PW-1 Lal Khan ASI who reiterated the contents of
the FIR which have already been reproduced in the paragraph containing the
facts of the case. PW 2 Dunia Gul stated that he was informed by one of his
relative Rehmat Khan that deceased Babul Khan was missing on which he went to
Zhob to search for him and inquired about the deceased from his relative at
Zhob who told him that deceased Babul Khan had not come. He further stated that
he inquired from petitioner Mst. Zarlashta about the whereabouts of deceased
Babul Khan who told him that deceased had gone to Zhob. On 14.5.2000, he was
informed that dead body of the deceased Babul Khan had been found whereafter he
was called by the police and he identified the dead body.
6.
PW-3 is Dr. Hafiz Muhammad Rafiq Jaffar who performed post-mortem
examination on the dead body of the deceased Babul Khan and opined that the
throat of the deceased was cut with a sharp edged weapon as a result of which
all the blood vessels of neck were cut. He further opined that probable cause
of death was due to cut of throat and profused blood loss.
7.
PW 4 Muhammad Hussain, Head Constable is the witness of disclosure memo
(Ex. P/T) prepared by SHO when petitioner Mst. Zarlashta went to Police Station
Musakhail on 14.5.2000 as well as of memos of recoveries of dead body, crime
weapon, blood stained earth, Chadar, chattai, spade, lantern, darri and quilt.
In his evidence in the Court he stated that on 14.5.2000 he alongwith PW-1 Lal
Khan was present in Police Station Musakhail when petitioner Zarlashta came
there and made disclosure of committing murder of her husband deceased Babul
Khan alongwith appellant Sher Zaman and recovery of dead body in the room of
her house. He further stated that he alongwith PW-6, SHO, PW-1, ASI Lal Khan,
PW-3 Dr. Hafiz Muhammad and PW-5 Abdul Hamid Assistant Commissioner went to the
house of petitioner Mst. Zarlashta from where the dead body of the deceased
Babul khan was recovered after digging the floor and the aforesaid crime
weapon/incriminating articles were produced by her. He testified to the
memos/mushir namas of recoveries and seizure of the aforesaid articles Ex. P/B
to Ex. P/H & P/J to L and admitted his signatures thereon as well as of
co-mushir Ata Muhammad, constable. He further deposed that all the articles
were sealed into parcel.
8.
PW-5 Abdul Hamid Assistant Commissioner had accompanied SHO, Dr. Hafiz
Muhammad Rafiq Jaffar and ASI Lal Khan to the house of petitioner Mst.
Zarlashta and from one of the rooms of the house, the dead body of the deceased
Babul Khan was recovered by digging the floor of the room on the pointation of
petitioner Mst. Zarlashta. He also stated regarding production of crime weapon
and other incriminating articles and seizure thereof and preparation of mushir
namas Ex. P/B to H and P/J to L. He further stated that on 15.5.2000 ASI Lal
Khan produced petitioner Mst. Zarlashta before him for recording her confession
u/S. 164 Cr.P.C. where upon he after satisfying himself that petitioner Mst.
Zarlashta was willing to make a confession voluntarily and without any
inducement or coercion recorded her statement. He stated that after recording
the statement he obtained the thumb impression of petitioner Mst. Zarlashta,
signed the statement himself and certified the same. He produced the same as
Ex. P/Q testifying to its veracity and admitted his signature thereon as well
as thumb impression of the petitioner Mst. Zarlashta.
9.
PW-6 Hameedulla SI had carried out the investigation in the case and
after completion thereof submitted Challan against both petitioners Mst.
Zarlashta and appellant Sher Zaman which was forwarded to the Court of learned
Sessions Judge Musakhail for trial against the above two accused. Both the
accused in their statements u/S. 342 Cr.P.C. completely denied all the
prosecution allegations appearing against them in the evidence as well as their
involvement in the above crime.
10.
Petitioner Mst. Zarlashta in her statement u/S. 342 Cr.P.C. stated that
she would not give evidence on oath but subsequently she made a statement on
oath on 25.9.2000 wherein she gave an absolutely different version of the
incident than what she had disclosed before PW-1 Lal Khan ASI at Police Station
Musakhel and in her confession recorded by PW-5 Abdul Hamid. In her statement
on oath she tried to absolve herself of the murder by stating that it was
appellant Sher Zaman who had committed the murder in the room of her house
after sending her to another room from where she heard the noise of her
husband. She was cross-examined by the learned counsel for the appellant Sher
Zaman as well as by the District Attorney and in her cross-examination to the
District Attorney, she admitted that on her pointation police had got recovered
dead body of deceased.
11.
We have heard the arguments of Mr. Muhammad Zaman Bhatti, ASC, Sardar
Muhammad Ishaq Khan, Sr. ASC on behalf of petitioner Mst. Zarlashta and accused
Sher Zaman, respectively and Raja Abdul Ghafoor, ASC/AOR on behalf of the
State.
12.
Mr. Muhammad Zaman Bhatti, ASC assailed the judgment of the Balochistan
High Court on several grounds, as under:--
1.
That the learned Division Bench of the High Court had erred in accepting
the confessional statement of petitioner Mst. Zarlashta as proper and valid
inspite of the fact that it suffered from following illegalities and
infirmities:--
(i) that
PW-5 while recording the confession of petitioner Mst. Zarlashta did not
observe and fulfill all the legal formalities and requirements necessary to be
complied with before and after recording the confessional statement;
(ii) that
PW-5 Abdul Hamid Assistant Commissioner remained deeply associated with the
investigation of the accused therefore he could not be said to be an
independent and impartial person. Consequently confessional statement recorded
by a partisan magistrate would have no sanctity in the eye of law; and
(iii) that
PW-5 did not satisfy himself whether accused/petitioner Mst. Zarlashta had made
the statement voluntarily without any inducement or coercion from any quarter
and that the account given by her was true;
2.
that the learned Division Bench of Balochistan High Court committed
grave illegality in relying on the evidence of PW-1 Lal Khan in Court which was
made on the basis of the information/disclosure made by petitioner Mst.
Zarlashta and treating the same as evidence in violation of well settled
principle of criminal administration of justice that statement made to a police
officer is inadmissible and cannot be treated as evidence for deciding the
guilt of an accused; and
3.
that Balochistan High Court also fell in error in accepting the evidence
of PW-1 Lal Khan ASI and PW-4 Muhammad Hussain Head Constable relative to
recoveries of the dead body, crime weapon and other incriminating articles
allegedly on the pointation of petitioner Mst. Zarlashta without insisting for
a strict compliance of Section 103 Cr.P.C. in the face of the evidence that
several persons from the adjoining houses had come to the house of deceased
Babul Khan and witnessed the scene of incident.
13.
Sardar Muhammad Ishaq Khan appearing on behalf of accused/appellant Sher
Zaman adopted the arguments of Mr. M. Zaman Bhatti, ASC and additionally
submitted that both the trial Court and Balochistan High Court committed grave
illegality in convicting appellant Sher Zaman on the basis of confession of
co-accused Mst. Zarlashta in as much as it was not only against the provisions
of the Qanun-e-Shahadat Order and the Criminal Procedure Code but also against
pronouncements made by this Court in a large number of cases to the effect that
confessional statement of an accused cannot be used a substantive evidence
against co-accused for convicting him and in the absence of any substantive or
direct evidence, whatsoever, against appellant Sher Zaman, the confessional
statement of petitioner Mst. Zarlashta would not be of any assistance to
establish the guilt of appellant Sher Zaman. He further submitted that the
disclosure made by petitioner Mst. Zarlashta before PW.1 ASI Lal Khan in
pursuance whereof dead body of deceased Babul Khan as well as crime weapon and
other incriminating articles were recovered could neither be used against
appellant Sher Zaman nor would advance the prosecution case against him.
14.
Learned counsel for the State supported the judgment of Balochistan High
Court and submitted that there was no illegality or infirmity in the judgment
and both the accused had rightly been convicted on the basis of evidence and
material on record.
15.
The arguments of the learned counsel for the parties have been
considered, prosecution evidence has been minutely appraised, and the relevant
provisions of law as well as the judgments of the trial Court and Balochistan
High Court have also been examined.
16.
Primary evidence available to the prosecution in this case is the
judicial confession of petitioner Mst. Zarlashta recorded by PW-5 Abdul Hamid
Assistant Commissioner. It was contended that judicial confession of petitioner
was not valid and proper as it was not recorded in consonance with legal requirements
necessary for recording judicial confessions. From perusal of the evidence of
PW-5 Abdul Hamid, it transpires that PW-5 categorically stated that all the
legal requirements and formalities necessary to be observed for recording of
judicial confession were complied with by him. There is thus no reason for
disbelieving the above circumstance. In view of the above, this contention is
devoid of force.
17.
The next contention advanced by the learned counsel relative to the
validity of judicial confession was that PW-5 Abdul Hamid was not an impartial
or independent officer on account of his association with the investigation of
the case, he had indeed become a part of the prosecution agency and confession
made to the police or an officer associate with police would have no legal
sanctity. From the evidence of PW-1 Lal Khan and PW-5 Abdul Hamid, only part
which can be assigned to PW-5 Abdul Hamid is of supervising the recovery of
dead body as well as of the dead body of deceased Babul Khan and other incriminating
articles on pointation of petitioner Mst. Zarlashta from the house of deceased
Babul Khan. He had also attested mushir namas of recoveries and seizure of
above articles which were prepared by PW-1 Lal Khan in presence of PW-4
Muhammad Hussain and Atta Muhammad constables. Presence of a Magistrate or an
officer of equal rank is always necessary whenever a body of a dead person is
to be exhumed. Apart from witnessing the process of exhumation of dead body,
seizure of crime weapon and other incriminating articles and signing the mushir
namas of
such seizure, he had not been associated and did not participate in any
further proceedings during the course of investigation. The above circumstances
would not impair or damage his impartiality and independence so as to render
judicial confession of petitioner Mst. Zarlashta as invalid and illegal
confession. This contention also lacks force and does not require
consideration.
18.
The next contention with regard to the validity of the judicial
confession was that PW-5 Abdul Hamid had not taken upon himself the duty of
satisfying that petitioner Mst. Zarlashta was making the confession voluntarily
and that it contained true facts/accounts of the incident. From perusal of the
confession of the petitioner Ex. P/Q, it transpires that before recording the
confession, PW-5 he had put several questions, which appear on the opening page
of the confession of petitioner Mst. Zarlashta. From the answers given by
petitioner Mst. Zarlashta to the above questions, it can reasonably be inferred
that petitioner Mst. Zarlashta made her confession voluntarily. Relative to the
question whether PW-5 had made efforts to find out whether confession was
truthful and contained a true account of the facts, it may be observed that
while recording confessional statement of petitioner Mst. Zarlashta, the facts
of the prosecution case were within his knowledge as per FIR recorded on the
disclosure petitioner Mst. Zarlashta in pursuance whereof recovery of dead body
and many incriminating articles including the crime weapon was affected on her
pointation. Petitioner Mst. Zarlashta while being examined by PW-5 had made
statement to the same effect as her disclosure in the FIR. No further efforts
were required to be made for ascertaining or verifying the truth of the
confession. This contention too has no force.
19.
The next ground agitated by the learned counsel for the accused was that
reliance on the evidence of PW1 Lal Khan was wrongly placed for deciding the
fate of the case. It was submitted that PW1 Lal Khan had lodged the FIR on the
basis of disclosure made by petitioner Mst. Zarlashta regarding the commission
of an offence and that confession of an accused made to a police office
regarding commission of crime is inadmissible in evidence. This contention is
devoid of force. Article 40 of the Qanun-e-Shahadat Order lays down the
principle whereby information received from an accused relative to the
commission of an offence may be proved. It will be proper for a clear
understanding to reproduce Article 40 as under:--
"40.
How much of information received from accused may be proved.
When any fact is deposed to as discovered
in consequence of information received from a person accused of any offence, in
the custody of a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved".
20.
From a bare perusal of Article 40, it transpires that any information
conveyed or disclosed by an accused to a police officer which actually leads to
the discovery of some fact which fact was unknown to the police officer before
such disclosure was made or information was conveyed, for the first time was
derived from the accused; and further that the discovery of the fact related to
the commission of the offence, then such information whether it amounts to
confession or not may be proved. The information or disclosure of the accused
in custody of a police officer would be admissible as evidence if in
consequence thereof something relating to the commission of the crime is
recovered. Even a statement by way of confession which distinctly relates to
the fact discovered is admissible as evidence against the accused as held by
the Supreme Court of India in the case of The Delhi Administration vs.
Balakrishan (AIR 1972 SC 3). For relying on any fact from the disclosure or
information by the accused as evidence for connecting him with the crime, it is
also necessary that the accused should be in police custody and that the facts
disclosed or found on the basis of such disclosure or information were not
known to the police. For the purpose of Article 40, the word
"custody" does not necessarily mean detention or confinement and if
the accused comes in contact with the police officer or approaches the police
station, he will be deemed to be in custody as his freedom/movement would be
restricted. This contention is, therefore, without any substance.
21.
The next contention advanced by the learned counsel for the accused was
that the various recoveries alleged to have been made on pointation of
petitioner Mst. Zarlashta were not beyond suspicion and doubt as the same were
not made in compliance with the provisions of Section 103 Cr.P.C. inspite of
fact that several persons from the adjoining houses had gathered at the place
of incident, but none of them was asked to witness the recoveries and to act as
mashir of recovery. It was further submitted that the provisions of Section 103
Cr.P.C., were mandatory and their violation without any plausible and tangible
explanation would render the recoveries illegal and of no value. No doubt that
provisions of Section 103 Cr.P.C. are mandatory and persons from the locality
are required to be associated for witnessing the search but departure from this
mandatory provision would not per se vitiate the recovery and invalidate the
conviction where such non-association was not malafide or there was no malice
on the part of the police ruling out the possibility of false implication.
Furthermore, the object of associating independent persons of the locality to
witness the recovery is to lend sanctity and credibility to such recovery. In
the present case, the recovery of dead body and several incriminating articles
on pointation of accused Mst. Zarlashta were witnessed by PW5 Assistant
Commissioner Abdul Hamid who had also attested/verified the mushir nama of
seizure of such incriminating articles. Presence of PW5 and attestation by him
of the mushirnamas lent credibility and sanctity to the recoveries as
well as to the mashirnamas of recoveries. Thus non-association of public would
in the instant case not be a circumstance adverse to the prosecution.
22.
According to the contention of Mr. Sardar Muhammad Ishaq Khan, Sr. ASC
on behalf of accused Sher Zaman that a proved judicial confession in a case
where more than one accused are facing trial can legally be used as substantive
evidence only against the maker thereof, reference may be made to Article 43 of
the Qanun-e-Shahadat Order as under:--
"43.
Consideration of proved confession affecting person making it and others
jointly under trial for same offence. When more persons than one are being
tried jointly for the same offence, and a confession made by one of such
persons is proved.
(a) such
confession shall be proof against the persons; making it; and
(b) the
Court may take into consideration such confession as circumstantial evidence
against such other person".
From a bare perusal of the above Article
43, it is absolutely clear that a proved confession of an accused in a case
where other accused are facing joint trial for the same offence can be used as
evidence/proof against person making it and as against other accused person, it
may be taken into consideration as circumstantial evidence. Pronouncements to
the above effect have been made by this Court in the cases of Muhammad Noor and
another v. Member-1, Board of Revenue, Balochistan and others (1991 SCMR 643),
Arif Nawaz Khan and 3 others v. The State (PLD 1994 SC 314) and Faqirullah v.
Khalil-uz-Zaman and others (1999 SCMR 2203) in the case of Khalid Javed and
others versus The State (2003 SCMR 1419), this Court reiterated its
views/pronouncements in the afore cited judgments.
23.
The next question which arises for determination is whether the judicial
confession of the petitioner Zarlashta which was retracted by her subsequently
could be relied upon as substantive evidence for establishing her guilt. In
this regard it is to be observed that conviction of an accused for an offence
punishable with capital punishment can be based on retracted judicial
confession if it is found to have been made voluntarily and containing a true
and satisfactory account of the incident and fully implicating or incriminating
the maker thereof duly substantiated and corroborated by circumstantial
evidence in the shape of recovery of dead body, crime weapon etc. on the
pointation of the accused, as held by this Court in case reported as Bahadur
Khan versus The State (PLD 1995 S.C. 336). The Judicial confession of petitioner
Zarlashta has been found to be voluntary, free from coercion, undue influence
and inducement. It has also been found to be true in view of the attending
circumstances of the case in which the maker of the confession made a
disclosure before the police officer at police station of having murdered
deceased Babul Khan and relating to the recovery of dead body of
deceased Babul Khan,
crime weapon and
other incriminating articles. In
the circumstances retraction of confessional statement of petitioner Zarlashta
is not of much importance and it can be relied for convicting her for the
offence charged with because it stands corroborated by very strong
circumstantial evidence referred to herein above.
24.
For the foregoing facts, reasons and discussion it is held that the
prosecution has succeeded in proving the charge of murder against petitioner
Zarlashta beyond any shadow of doubt but failed to establish the charge against
appellant Sher Zaman. Accordingly, conviction of accused Zarlashta by the trial
Court and upheld by the Balochistan High Court was based on proper reading of
the evidence and documents on record and does not suffer from any illegality or
infirmity. The same does not require any interference. However both the trial
Court and Balochistan High Court committed serious illegality in holding
accused Sher Zaman guilty of murder of Babul Khan and convicting him for the
same as there is no evidence against him warranting his conviction.
25.
Vide short order of 31.5.2005 Jail Petition No. 14-Q of petitioner
Zarlashta was dismissed refusing her leave to appeal while Cr. Appeal No.
167/2002 arising out of Cr. PLA 5-Q/2002 filed by Appellant Sher Zaman was
allowed acquitting him and setting aside his conviction for reasons to be
recorded. These are the reasons for the said short order.
(Aziz Ahmad Tarar) Order accordingly.