MUHAMMAD AKRAM Versus THE STATE

1. This appeal is directed against the judgment, dated 28‑5‑1994 of the learned IInd Additional Sessions Judge, Larkana, whereby he convicted the appellant under section 302, P.P.C. and sentenced him to imprisonment for life and also a fine of Rs. 10,000 and in default whereof to undergo further R.I. for six months. Fine, if realised, be paid as compensation .to the legal heirs of the deceased. He was, however, awarded benefit of section 382‑B, Cr.P.C. in the computation of his sentence.

2. Precisely, the case of the prosecution is that the appellant, a doctor by profession, appeared before A.S.I. Mumtaz Ali Siyal of Police Station 'Naseerabad on 28‑4‑1993 at about 1‑20 p.m., who recorded his statement by which he had stated that he had a clinic in Naseerabad Town and Mst. Akhtarunnisa daughter of Maulai alias Deen Muhammad Massan was his wife and they had two sons and a daughter out of the wedlock. He further stated that his brother Muhammad Aslam resides in America since last 15 years being a computer engineer and he used to ask the appellant to come to America for further education but his wife was not allowing him to go there and on such refusal he made up mind to kill her. About a month prior to the incident he purchased a pistol from one unknown Pathan in the sum of Rs. 700 and kept the same in his clinic. On the day of incident while sitting in the clinic he made up mind to proceed to America and for that purpose he went to his house to seek permission from his wife and if she refused she should be done to death. The appellant called his wife to his bed‑room and asked her to allow him to go to America but she refused and got annoyed and also insulted him, upon which he got enraged and took out the pistol from the fold of his trouser and kept the same on her chest and fired, who fell down and died at the spot. He produced the said pistol before the police.

3. The said A.S.I. after recording the statement in verbatim in presence of H.C. Manzoor Ali Bhutto and W.H.C. Mukhtiar Ahmed incorporated the same in 154, Cr.P.C. book. He secured the pistol from the appellant's possession and found the same loaded with an empty in presence of the Mashirs and then prepared a memo of Wardat in presence of Mashirs Gada Hussain and Khalil‑ur‑Rehman. Thereafter, he recorded the statements of P. Ws. and after completing the investigation put up charge‑sheet against the appellant before the Court of law.

4. A formal charge under section 302, P.P.C. (Qisas and Diyat Ordinance, 1989) was framed against the appellant to which he pleaded not guilty and claimed trial.

5. The prosecution at trial examined A.S.I. Mumtaz Ali, P.C. Deedar Ali, H.C. Manzoor Ali, Dr. Thakurdas and P.W. Gada Hussain.

6. The appellant in his statement under section 342, Cr.P.C. denied the prosecution case and claimed to be innocent and he also denied his recording of statement before A.S.I. Mumtaz Ali and production of unlicensed country‑made pistol with an empty inside. According to him, his wife had committed suicide and when he went to inform such fact to police he was detained and was kept in police lock‑up at the behest of A.S.I. Nisar Ahmed, his brother‑in‑law, the brother of the deceased, who cooked up this false case against him. He further stated that police visited the Wardat first and secured pistol from there and then called A.S.I. Nisar Ahmed from Larkana and with his consultation above forged documents were prepared. He did not examine himself on oath as required under section 340(2), Cr.P.C. and also did not examine any person in defence.

7. The learned trial Court framed the following points for

(1) Whether Mst. Akhtarunnisa died due to unnatural death by receiving a fire‑arm injury?

(2) Whether the accused is responsible for causing the murder of his

(3) Whether the accused produced the country‑made pistol loaded with an empty cartridge before the police?

(4) Result.

8. On the assessment of evidence the learned trial Court found the appellant guilty and convicted him and sentenced as abovementioned.

9. I have heard Mr. Azizullah K. Shaikh, the learned counsel for the appellant and Mr. Jawed Akhtar, the learned Advocate appearing on behalf of the Advocate‑General, Sindh, for the State, at length and have gone through the record and proceedings of the case.

10. It is contended on behalf of the appellant that the case of prosecution at the very outset is false and concocted and has been managed at the behest of A.S.I. Nisar Ahmed, brother of deceased. According to him the initial statement of the appellant recorded at police station by A.S.I. Mumtaz Ali in presence of H.C. Manzoor Ali Bhutto and W.H.C. Mukhtiar Ahmed has got no value and is inadmissible in evidence. According to him his statement cannot be termed to be a confession in view of Article 37 of Qanun‑e -Shahadat, by which his statement before police cannot be termed to be a confession of the accused. Even if this is treated as a statement before the police, the same is also inadmissible in evidence. He further contended that if the appellant had committed the offence as alleged, he should have volunteered himself and would have got recorded his confessional statement before the police. This fact further gets support from the statement of Investigating Officer examined at trial, who has categorically said that the appellant refused to record his confession though asked to do so. In support of this contention the learned counsel has relied upon decisions reported in AIR 1939 PC 49, PLD 1965 SC 366 and 1992 SCMR 1451. He further contended that the said statement of the appellant before the police could not be relied upon to be independent in nature as the same has neither been recorded in presence of independent persons available at police station nor got signed from them. Prosecution witness Manzoor Ali stated at trial that the moment the appellant appeared at the police station, so many persons were coming and going at police station. According to him the factum that the deceased had committed suicide is supported by medical evidence of. P.W. Dr. Thakurdas, who, in his cross‑examination, has said that receipt of injury is vulnerable from the right hand. There is possibility that the injury could be caused by the victim herself by using her right hand. He lastly contended that the statement of accused recorded at trial has not been signed by the appellant which is a mandatory provision of law and in absence of such the same is to be taken out of consideration.

11. On the other hand, the learned State Counsel in the first instance before tea break did not support the judgment and supported the case of the appellant and stated that his case is covered under the benefit of doubt and had no objection if the appellant is acquitted. But when the matter was again taken at 11 a.m. after tea break, as the learned counsel for the appellant had to produce some case‑law, the learned State Counsel stated contrary to what he argued earlier and supported the judgment but could not produce any case -law in rebuttal to the one produced by the appellant's counsel.

12. This case mainly hinges on two important legal points. The first point agitated that initial statement of the appellant recorded by A.S.I. Mumtaz Ali at Police Station Naseerabad should not be acted upon as being inadmissible in evidence, has got sufficient force. The reasons for the same firstly are that it is a simple statement before the police which is inadmissible A in evidence and secondly, the said statement cannot even be equated with confession as the same has not been recorded before any Magistrate but was recorded by A.S.I. in presence of two police Mashirs, namely, H.C. Manzoor Ali Bhutto and W.H.C. Mukhtiar Ahmed. It further loses its value as the same was not got signed from the persons of locality who were visiting police station at the time the appellant appeared there, which fact is supported by P. W. Manzoor Ali in his evidence at trial. Article 37 of Qanun‑e‑Shahadat stipulates that no confession made to Police Officer shall A/1 be proved as against a person accused of any offence. It is pertinent to note here that if the statement of the appellant before police was voluntarily and true, then he should have been immediately produced before a Magistrate having jurisdiction where his confessional statement should have been recorded. By not doing so, inference can be drawn that the appellant was not willing to confess his guilt. This gets support from the statement of P.W. Mumtaz, Ali, Investigating Officer of this case; according to him, the appellant was produced before the Mukthiarkar and F.C.M., Malir on the next day of recording of F. I. R., but he did not admit the guilt and refused to make confession.

13. In such circumstances it would be highly unsafe to rely upon the said statement. The defence version put, forth by` the appellant in his statement under section 342, Cr.P.C. merits consideration and should not have been ignored by the learned trial Court. It has come on record that A.S.I. Nisar Ali was the brother of deceased and had arrived at police station immediately after the incident though he was posted at Larkana, about 20 miles away from Naseerabad. The version that case was cooked up at his behest has sufficient force and the defence plea that deceased had committed suicide carries weight.

14. From the admission of P.W. Dr. Thakurdas made during his cross -examination to the effect that there were possibilities of deceased having fired the fatal injury by using her right hand further strengthens the above defence version.

15. Admittedly the statement of the appellant under section 342, Cr.P.C. has not been got signed by him, which is a mandatory requirement of section 364(2), Cr.P.C. This amounts to an illegality not curable under C section 537, Cr.P.C., as such it would be termed as if the statement was never recorded at trial.

16. Admittedly a mandatory provision as laid down under section 364(2), Cr.P.C. has not been complied with in this case by not getting the statement of the appellant signed by him before the trial Court. In these circumstances it can be held that statement under section 342, Cr.P.C. of the appellant has not been recorded in this case. By observing this the important piece of evidence having not been put to the appellant under section 342, Cr.P.C., the same cannot be considered for the purposes oil conviction against him.

17. In the case of Pakala Narayana Swami v. Emperor AIR 1939 PC 47, it has been held that the words of section 162, Cr.P.C. are plainly wide enough to exclude any confession made to a Police Officer in course of investigation whether a discovery is made or not. Even otherwise the statement of a person recorded by police under section 162, Cr.P.C. if reduced into writing, be not got signed by the person making it. Here the statement of appellant was not only reduced into writing by police, but was got signed by him as such the same even cannot be equated with one section 162, Cr.P.C.

18. The Honourable Supreme Court in the case of Muhammad Saleh v. The State PLD 1965 SC 366, has termed the statement of appellant Muhammad Saleh, made before police which was incorporated in 154, Cr.P.C. Book reporting his own crime (murder), was found inadmissible in evidence on account of inculpatory nature.

19. The Honourable Shariat Appellate Bench in the case of Noor ul Haq v. The State 1992 SCMR 1451, has laid down a dictum that person charged with a criminal offence is to be saddled with the liability only if prosecution has established its case against him beyond all reasonable doubt. Plea taken by an accused may be false, but he cannot be convicted on such false plea.

20. For what has been discussed above, I am of the considered opinion that the prosecution has failed to prove the case against the appellant beyond any shadow of doubt. Resulting the appeal is accepted, the appellant is acquitted from the charges and his conviction and sentence is also set aside. He is on bail, his bail and bond stand discharged.

21. N.H.Q./M‑87/K Appeal accepted.