ADNAN PERVAIZ vs State Ss — 2022 YLR 2259 LAHORE-HIGH-COURT-LAHORE

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ADNAN PERVAIZ VS State Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Recovery of weapon of offence---Scope---Accused were charged for committing murder of the mother-in-law and sister-in-law of the complainant through infliction of successive sharp-edged traumas---Record showed that weapon of offence chhuri was recovered and report of Forensic Science Agency whereby the blood stains were described as of human origin but found it to be of no help to the otherwise frail prosecution case---Firstly that rest of the prosecution evidence was discarded and solely the recovery could not be used as foundation for raising the superstructure of conviction---Secondly, no effort was made to prove that the recovered weapon was containing the blood of none other than the two slain ladies---Prosecution, through the tool of DNA, could establish that the blade of recovered weapon was containing the blood of both the victims which was not done---Circumstances established that the prosecution failed to discharge its burden to connect the accused persons with the crime beyond speck of any doubt---Appeal against conviction was allowed, in circumstances. Circumstantial evidence---Conviction---Scope---For securing conviction, the incriminating circumstances must be interwoven with each other so as to make an unbroken chain, the one part of which must touch the corpse and other end the neck of accused---Each circumstance of such chain must be comprising upon an impeccable event and should not be inadmissible in evidence. Confession of co-accused---Scope---Confession of co-accused is generally regarded as weak type of incriminating circumstance and solely cannot be used for awarding conviction to another accused. Ss. 302, 201 & 34---Qanun-e-Shahadat (10 of 1984), Arts. 39 & 40---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Admission and confession made in the custody of police---Scope---Accused were charged for committing murder of the mother-in-law and sister-in-law of the complainant through infliction of successive sharp-edged traumas---As per prosecution case, both the accused persons led the police and witnesses to the place of homicide and admitted their guilt---Said aspect was canvassed as a strong circumstance, corroborating the judicial confession of accused and its admissibility was urged under Art. 40 of Qanun-e-Shahadat, 1984---Confession/ admission of guilt made in the custody of a Police Officer was inadmissible under Art. 39 of Qanun-e-Shahadat, 1984---Article 40 of Qanun-e-Shahadat, 1984, was an exception and it made admissible a fact the information of which was given by an accused even in the police custody---Exception so postulated in Art. 40 was subject to limitation that the information so furnished by an accused in the police custody led to discovery of a fact which was perceivable through human senses and previously not within the knowledge of anyone---Any other interpretation of Art. 40 was fallacious and incorrect owing to lack of legal knowledge and was to be discarded---Admittedly, in pursuance of alleged disclosure and pointation of the accused persons no fact surfaced on record, not within the knowledge of police and witnesses---Circumstances established that the prosecution failed to discharge its burden to connect the accused persons with the crime beyond speck of any doubt---Appeal against conviction was allowed, in circumstances. Judicial confession--- Scope--- Prime consideration for the admissibility of a judicial confession is its voluntary nature and secondly the truth it contains. Ss. 302, 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Confessional statement, recording of---Infirmities--- Scope--- Accused were charged for committing murder of the mother-in-law and sister-in-law of the complainant through infliction of successive sharp-edged traumas---Certain shortcomings, adversely reflecting upon the voluntary nature of the canvassed confession of accused were noticed---Firstly, it was observed that the confession of accused was recorded on the eighth day of his arrest and during that period he was twice remanded to police custody by the Judicial Magistrate---Question arising that if at all the confession was outcome of free will and voice of conscience, why it was not made on the previous two dates---Delay in making confession was generally considered a ground adversely effecting its voluntary nature---Secondly, accused was ordered to be lodged in judicial custody but after recording his confession under S.164, Cr.P.C.---Till recording of S.164, Cr.P.C. statement, no order for lodging accused in judicial custody was passed---Plain review of the proceedings unfolded that firstly the confession of accused was recorded and subsequent thereto order for lodging him in judicial lock-up was passed---Said fact was not a remote possibility that order to lodge the accused in jail was delayed so as to use it as hanging sword for ensuring to get a desired statement---Unambiguously accused must be having lurking fear in his mind that he might be handed over to the police in case he did not make confession under S.164, Cr.P.C.---Such aspect alone was sufficient to expose the frailty of acclaimed voluntary nature of the confession under consideration---Thirdly, while recording the confession of accused neither any question about police torture was asked nor he was physically examined by the Judicial Magistrate---Said omission gained importance when seen in the context that accused took specific defence that he was coerced by torture to make such confession---Fourthly, it was evident from the proceedings as well as the deposition of Judicial Magistrate that the accused was not even asked about the date of his actual arrest and the time he had spent in the police custody---Said questions were essentially required to be asked in accordance with High Court (Lahore) Rules and Orders, Vol. III, Chap. 13 from the accused making confession under S. 164, Cr.P.C.---Failure of Judicial Magistrate to physically examine the accused was also a factor which lessened the acclaimed voluntary nature of the confession---Upon failure of Judicial Magistrate to enquire from the accused about physical torture---Circumstances established that the prosecution failed to discharge its burden to connect the accused persons with the crime beyond speck of any doubt---Appeal against conviction was allowed, in circumstances. Ss. 302, 201 & 34--- Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence--- Non-justification for the presence of witnesses at the spot---Chance witnesses---Scope---Accused were charged for committing murder of the mother-in-law and sister-in-law of the complainant through infliction of successive sharp-edged traumas---According to the evidence of wajtakar/coming across furnished by two witnesses, they had seen both the accused persons near the well with stains of blood on their clothes and a blood stained Chhuri in hand---As per admitted fact, it was a deserted place and both the witnesses failed to offer any specific reason of their presence, thus by all means they were chance witnesses---No doubt the testimony of a chance witness could meet acceptance provided his acclaimed presence was followed by a confidence inspiring and reasonable explanation---Circumstances established that the prosecution failed to discharge its burden to connect the accused persons with the crime beyond speck of any doubt---Appeal against conviction was allowed, in circumstances. Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Contradictions in the statements of witnesses--- Scope--- Accused were charged for committing murder of the mother-in-law and sister-in-law of the complainant through infliction of successive sharp-edged traumas---Admittedly, the contents of confession so made by accused were contradicted from the statements of other prosecution witnesses as well as from record---Firstly, it was observed that witnesses of wajtakar claimed to have witnessed both the accused persons near the well on the day of occurrence while having a blood stained Chhuri---In statement under S.164, Cr.P.C. accused was specific in saying that after making an exit from the house of deceased, he bisected himself from co-accused, thus apparently there was no occasion for said two witnesses to have seen them together in altogether different vicinity---Secondly, accused stated nothing in his confession about burning of blood stained clothes---Even otherwise, though as per prosecution case, co-accused got recovered half burnt blood stained clothes but those were never forwarded to Forensic Science Agency for tracing the blood stains and ascertaining their origin---Said fact was even candidly conceded by Investigating Officer his cross-examination--- Thirdly, it was noticed that S.164, Cr.P.C. statement of accused was recorded but nothing as such was mentioned by Investigating Officer in the case diary of that day---Fourthly, it was noticed that though the accused persons were nominated in the case on the very first day of its registration through the supplementary statement of complainant but still Call Data Record of 14-mobile phone numbers was requisitioned by Investigating Officer through written application---Question would arise that if at all veil was lifted from the identity of the actual culprits then why Call Data Record of those 14-mobile phones was procured---Things got more complex for the prosecution when seen in the context that Investigating Officer admitted that on the day of occurrence deceased through Call Data Record of her mobile phone was found in contact through four calls but no effort was made to ascertain the identity of that person---Fifthly, Investigating Officer also admitted unambiguously that on the day of occurrence the presence of co-accused through his Call Data Record was not found in the village, where the homicide incident occurred---Sixthly, the story of crime put forth in the confession of accused appeared to be self-contradictory in nature---Moreover, it emerged from S.164, Cr.P.C. statement that co-accused tried to engage accused as hired assassin and though accused went to the crime scene but claimed to have done so under the fear of co-accused---Last, motive behind the crime was canvassed as refusal of deceased to tie matrimonial knot with co-accused which irked him---Regarding that motive, no evidence whatsoever was led either during investigation or at trial stage, thus it remained unproved---All the said factors left the confession of accused as uncorroborated, thus it was forced to hold that prosecution failed to prove that statement under S.164, Cr.P.C. contained nothing but truth---Circumstances established that the prosecution failed to discharge its burden to connect the accused persons with the crime beyond speck of any doubt---Appeal against conviction was allowed, in circumstances.

ADNAN PERVAIZ vs State Ss — 2022 YLR 2259 LAHORE-HIGH-COURT-LAHORE

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