MEHAR ELAHI vs NADEEM AHMAD And Another
This petition for leave to appeal was filed against the judgment of a Division Bench of the Lahore High Court acquitting respondent No.1 Nadeem Ahmad of a charge under Section 302, Pakistan Penal Code 1860, and setting aside his death sentence. The trial court had convicted the respondent based on an approver's testimony, a judicial confession recorded by a City Magistrate, an extra-judicial confession, and recoveries. However, the High Court rejected all these evidentiary items and acquitted him. The Supreme Court observed that the High Court had discarded the judicial confession on dubious reasoning—specifically, merely because the magistrate noted that the accused 'appeared to be harassed' when produced, without making any explicit finding that he was tortured, maltreated, or compelled to confess. Finding sufficient grounds to re-examine the acquittal, the Supreme Court granted leave to appeal and issued non-bailable warrants against respondent No.1.
- Whether a judicial confession can be discarded solely because the recording magistrate noted the accused appeared harassed, without a finding of torture or coercion?
- Whether leave to appeal against an acquittal should be granted where the High Court relies on dubious reasoning to reject prosecution evidence?
- Section 302, Pakistan Penal Code 1860
ORDER
1. NASIM HASAN SHAH, J.--This petition for leave to appeal is directed against the judgment of a Division Bench of the Lahore High Court dated 10-2-1981 passed in Criminal Appeal No. 1018 of 1979 and Murder Reference No.291 of 1979, whereby respondent No.1 Nadeem Ahmad was acquitted of the charge under section 302, P.P.C. And the sentence of death passed against him was set-aside.
2. Nadeem Ahmad, a college student, was arrested for the murder of Karam Elahi under whom he was an apprentice alongwith one Muhammad Arif. The latter became an approver and subsequently deposed against him. The trial Judge, by his judgment dated 27-9-1979, found Nadeem Ahmad guilty of murder and sentenced him to death plus a fine of Rs.5,000 (to be paid to the heirs of the deceased or in default six months' R.I.). The convict filed an appeal against the said judgment and a reference for confirmation of the sentence of death was also made to the High Court. The learned High Court by its impugned judgment accepted the appeal and rejected the reference of confirmation.
3. To establish its case the prosecution had relied upon a judicial confession made by the respondent before the City Magistrate (Mr. Muhammad Farooq Syed), Sargodha; an extra-judicial confession before Mehar Muhammad (PW.14) and Muhammad Sharif (PW.15), the statement of the approver Muhammad Arif (PW.23) as also the recoveries. All these pieces of evidence were rejected by the learned Judges of the High Court, in our opinion, on somewhat dubious reasoning; for instance the judicial confession made before Muhammad Farooq Syed, City Magistrate, Sargodha has been discarded because the learned Magistrate who recorded the judicial confession stated, in his otherwise elaborate and straightforward statement, that the convict when he appeared before him "appeared to be harassed". Without giving any finding as to whether he had been tortured or maltreated or otherwise compelled to make a statement accepting the guilt, the judicial confession was brushed aside merely by the observation that the maker appeared to be harassed" when he was produced before the Magistrate.
4. Non-bailable warrants to issue against Nadeem Ahmad son of Muhammad Asghar, respondent No. 1.
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