By Zulfikar Khalid Maluka (Senior Partner at Josh and Mak International
Whether in view of the observations of the Full Bench of the hon’ble Supreme Court, reported as PLJ 1993 SC 91, that the duty of the prosecution to prove the case against the accused beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false, the Federal Shariat Court was right to observe on page-122 of the impugned judgment that since the accused persons have failed to substantiate the defence plea, therefore, the trial court had rightly taken the confessional statement into consideration for conviction? PLJ 1993 SC 91
Whether the confession in a Hadd case could be recorded by a Magistrate who is not competent to try that case? If not, whether the confession in the instant case recorded by the Magistrate is legal one? PLD 1988 FSC 58(FB), 1992 P.Cr. L.J.412, 2001 P.Cr, L.J.578
Whether a co-accused on the basis of retracted confession, and that too which is tainted one because of a result of torture established on record, could be convicted on the basis of the same? Coupled with this proposition is that whether one tainted piece of evidence can corroborate another tainted piece of evidence? PLD 1964 SC 813, PLJ 1981 SC 52
Whether the so-called recovery forming the circumstantial evidence, were rightly appreciated by the courts below?
Recoveries for corroboration relied up[on by the Courts below are:
Cheque, Churri, Keys, Wrist watch and in one case an amount of Rs,1700/–
Whether the learned Federal Shariat Court was right to observe that since the confession recorded by a Magistrate was a public document under Article 91, therefore, it was sacrosanct, and it was duty of the accused person to disprove it? And whether the judgement of learned Federal Shariat Court militates against the judgement of Hon’bale Shariat Bench of Supreme Court and reported: PLD 1994 SC 314.
15 minutes time given insufficient PLD 1971 Lahore 850, 1993 SCMR 1822
Condonation of delay, NLR 1981 Cr.(SC) 1, 1986 SCMR 536
Once the retracted confession is thrown out of consideration, a co-accused cannot be convicted on that basis: 1990 MLD 581, PLJ 1993 SC 91, NLR 1981 Cr.(SC) 1, 1986 SCMR 536, 1990 MLD 581, PLD 1994 SC 314., PLD 1971 Lahore 850, 1993 SCMR 1822, PLD 1964 SC 813, PLJ 1981 SC 52, PLD 1988 FSC 58(FB), 1992 P.Cr. L.J.412, 2001 PCr, L.J.578
1968 SCMR.64 – Abdullah Khan Vs. Karam Dad
Pending Appeal, High Court granted bail to appellant u/sections 426 Cr. PC in a murder case. The Supreme Court refused to interfere in the discretion exercised by the High Court. Accused in that case was attributed to the role of Lalkara (which is equated to abetment i.e. in PLD 1967 SC page-340, Supreme Court held that person shouting Lalkara could be guilty of abetment).
PLD 1971 SCMR.657
No limitation laid down in section 426 that the Appellate Court could not grant bail prior to calling for record and perusing same. In this case High Court had released the accused sentenced for transportation for life on bail u/section 426.
PLD 1970 Karachi .15
Abetment – sustaining charge of abetment, some evidence of overt act or omission necessary. Mere motive not sufficient evidence of abetment.
PPLD 1996 SC.241
This was a bail matter wherein it was held as to abetment:
“There can be no two opinions that the case of a conspirator or abettor not present on the spot stands at lower footing than the case of the accused instigating his companion to commit the crime being himself present on the spot. Furthermore, it is very easy to set up accusation of abetment/instigation/conspiracy/lema; needless to say when parties are inimically depressed the possibility of false implication of opponent is very much there…”
1994 P Cr. LJ. 984 (DB)
Accused were empty handed but they were present at the spot, sentence of imprisonment for life awarded to the accused was suspended.
1994 P Cr. LJ.1516
Sentence of imprisonment for life awarded to the accused was not legal and whether the same could be sustainable at the time of final hearing of appeal needed serious considerations, therefore, sentence of life imprisonment was suspended.
1978 SCMR 149
- 426 : Sentence, suspension of – Bail – Appellate Court’s discretion to grant bail after suspending sentence pending decision of appeal- Not fettered or restricted by reference either to conviction or to sentence passed by trial court – contention that first respondent having been sentenced to life imprisonment for offence of murder could not be released on bail pending decision of appeal, held, misconceived –(sentence – bail). (p.150)A.
NLR 1996 Cr.LJ 123 (DB)
Ss. 109, 302, 365A : Commission of offence of abetment. Abettor should be present at time of commission of offence or prior to its commission, he should be shown to be engaged in conspiracy in pursuance to which offence was committed. Charge u/ss 302, 365A, 109 on the basis of sole testimony of a witness and in absence of any evidence of conspiracy by accused with dacoits to cause murder of abductee, would be groundless and conviction/ death sentence recorded on such charge would be illegal.