' JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).--- This Criminal Shariat Appeal by leave of this Court is directed against the judgment, dated 14-12-1994 of learned Federal Shariat Court whereby Criminal Appeal No, 122/1/1994 filed by appellant Asif Mahmood and Criminal. Revision No, 29/1/1994 filed by complainant Ghulam Abbas Arif were dismissed and the death sentence of appellant awarded by trial Court was confirmed.
2. Precisely stated, the facts of the case are that Crime No,129 was registered on the application, dated 29-7-1989 of Ghulam Abbas, real brother of deceased at Police Station Kallar Kahar, District Chakwal, which is reproduced in verbatim: "I am employee in State Life Insurance Corporation, Ghulam Mustafa deceased is my real brother and runs a shop of repairing T.V./V.C.R. At Bhoun Road, Chakwal. Yesterday on 28-7-1989 shop was closed on account of Friday and on 28-7-1989 Ghulam Mustafa my real brother demanded Suzuki Car No,5566-MRB from a close relative namely Imran Feroz son of Muhammad Feroz Caste Bhatti resident of Basti Allah Wali, Chakwal by visiting his house, as he has to go to Bhoun Road with a customer in connection with certain work and that he would come back soon. At about-6-30 in the evening Ghulam Mustafa went away with the car but did not return after a lot of time. I along with Shaukat Mahmood son of Mehdi Khan and Imran Feroz son of Muhammad Feroz reached the area lying within village Khai at about 1-30 in the day today on 29-7-1989 in his search, so the dead body of Ghulam Mustafa was found in an agricultural field."
3. On 29-7-1989 autopsy of dead body of the deceased Ghulam Mustafa was conducted by Dr. Zahid-ul-Hassain, Medical Officer, District Headquarter Hospital, Chakwal who noticed (seven) sharp-edged weapon injuries.
4. On 3-9-1989 at about 6-00 a.m. Appellant Asif Mahmood surrendered himself before Mian Muhammad, Inspector at Bus-Stand Kallar Kahar and during interrogation in the presence of P.Ws.
Ajmal Lodhi and Muhammad Ashraf led to the recovery of TV/VCR, two cassettes, driving licence of deceased, wrist watch, registration book of car, transfer letter and .The key of the car from an iron trunk lying in a room of his house situated at village Sadwall. On 9-9-1989 appellant led the police party to the field in the area of Village Khai and dug out from there a blood-stained dagger and his blood-stained clothes.
5. On completion of investigation, appellant was sent up to face trial under sections 302, 411 Pakistan Penal Code and section 17(4) of the Offence Against Property (Enforcement of Hudood), Ordinance, 1979 (hereinafter referred to as "the Ordinance") before the learned Additional Sessions Judge, Chakwal.
6. The prosecution, in order to establish its case, examined .18 P.Ws. In all.
7. In his statement recorded under section 342, Cr.P.C. Appellant denied the case of the prosecution and claimed innocence. He also examined himself on oath as required under section 340(2), Cr.P.C.
And produced two defence witnesses, namely, Shaukat Nawaz Tiwana, Deputy Superintendent Jail (D.W.1) and Farukh Saeed, Ahlmad (D.W.2) in his defence and also produced the cutting of Daily "Jang" Rawalpindi, dated 6-8-1989.
8. On conclusion of trial appellant was found guilty of the charges and was convicted, under section 302, P.P.C. And was sentenced to death with a fine of Rs,25,000 or in default to undergo further R.I. For three years, under section 392, P.P.C. He was sentenced to seven years' R.I. And a fine of Rs,10,000 or in-default to undergo R.I. For one year. Fine, if realized, was ordered to be paid to the legal heirs of deceased Ghulam Mustafa. He was also convicted under section 411, P.P.C. And sentenced to two years R.I. The sentences awarded under sections 392 and 411, P.P.C. Were ordered to run concurrently.
9. Feeling aggrieved, appellant assailed the judgment in appeal bearing Criminal Appeal No,122/I of 1994 before the learned Federal Shariat Court whereas complainant Ghulam Abbas Arif also filed Criminal Revision No,29/I of 1994 for enhancement of compensation and for conviction and sentence under section 17(4) of. The Ordinance. Both were dismissed vide impugned judgment.
10. We have heard Sardar Latif Khan Khosa, learned Advocate Supreme Court for appellant, Raja Abdur Rehman, learned A.A.-G. Punjab for the State and Sardar Muhammad Ishaq Khan, learned Senior Advocate Supreme Court for the complainant and have gone through the record and the proceedings of the case in minute particulars.
11. Sardar Latif Khan Khosa, Advocate Supreme .Court learned counsel for the appellant contended that the incident is un-witnessed one and entire case of the prosecution hinges upon circumstantial evidence. He vehemently attacked upon the veracity of judicial confession said to have been made by the appellant. According to him the said confessional statement is neither voluntary nor true or believable, as it has been recorded after 12 days of the arrest of the appellant.
Irrespective of above appellant had retracted the same at the very earliest possible opportunity by sending an application in writing from jail objecting that his signatures were obtained on blank papers by police under pressure. Above all, the fact, which was published in Daily "Jang" dated 6- 8-1989, was not rebutted by the prosecution, wherein the police apprehended appellant and same went unchallenged. He further contended that in such circumstances the voluntariness of confession and its genuineness becomes doubtful and is not trustworthy particularly when it lacks independent corroboration from any other piece of evidence. He ,lastly contended that articles said to have been recovered from the appellant are of common pattern thus no intrinsic value, can be attached to the same.
12. On the other side, learned counsel for the complainant controverted the above contentions of appellant's counsel and argued that the prosecution has fully established its case by producing strong circumstantial evidence in the shape of confessional statement of appellant, extra-judicial confession, last seen evidence, recoveries and medical evidence. According to him, the delay in recording the confessional statement of appellant would not be fatal to the case of prosecution as the appellant on his own accord and voluntarily confessed the guilt and narrated the entire episode without any coercion or duress.
13. Learned counsel for the State also defended the impugned judgment and contended that the same being well-reasoned does not warrant any interference.
14. In order to ascertain the varsity of the confessional statement, the circumstances under which it is recorded are to be examined carefully. For placing reliance on confessional statement, it is well- settled principle that it would not only be true, voluntary and believable but should be without fear, favor or any inducement. As regard the instant confession statement, it would be essential to examine the background under which it was recorded. As referred above, in Daily "Jang", Rawalpindi, dated 6th August, 1989, appellant was apprehended by the police and entire episode was narrated therein, whereas according to the police record, he voluntarily appeared before the police on 3-9-1989 at Bus-Stand, Kallar Kahar at about 6-00 a.m. On the same day, he was produced before the Magistrate and four days remand was obtained. He was again produced on 7-9-1989 for another remand, which was allowed for a period of four days. On its expiry, he was again produced for obtaining third remand on 11-9-1989, which was granted upto 13-9-1989. On which date, he was remanded to judicial custody. As per statement of P.W Mian Muhammad, Inspector/Investigating Officer while appellant was being shifted to Jail, he told him that he wanted to make confessional statement. Accordingly, he was produced before the Magistrate and the said confessional statement was recorded. From the statement of Magistrate Rao Zafar Abbas, it transpires that he did not record the confessional statement in accordance with the High Court Rules so much so, he was not confident as to whether the handcuffs were removed or not.
According to him, he did not recollect that the father of appellant had moved application on 2-9- 1989 for medical checkup of appellant and about his illegal confinement from 30-7-1989 to 1-9- 1989. The voluntariness of the above said confessional statement loses its evidentiary value for the fact that even as per police record, appellant appeared voluntarily on 3-9-1989 whereafter about three remands were obtained and it was after remanding him to Jail, he was brought back for recording the confessional statement. After remanding to judicial custody, the apprehension of fear or torture, maltreatment, inducement etc. In fact vanishes. In such circumstances, it is quite unbelievable as to what prompted him to confess the guilt leaves serious doubt to its being voluntary, genuine, true or believable.
15. As regards the question of recovery of TV and VCR etc. From a trunk kept inside the house jointly owned by appellant, his father, sister and other inmates also requires a serious consideration. In these circumstances, it cannot be said with certainty that the said articles were recovered from his exclusive knowledge and possession.
16. The factum of recovery of blood-stained dagger and bloodstained clothes after a period of about more than one month from inside the earth also diminishes the possibility of presence of blood over them particularly when the same were buried inside the earth.
17. About last seen evidence, the only statement of P.W. Aziz Akhtar on that aspect also cannot be relied upon as according to his own saying he had arrived at the time of recovery of dead body where except police, so many other persons were also present. He wanted to disclose the facts about the incident to the police and complainant but they were reluctant to hear the same. By not disclosing the same at that moment and disclosing after sufficient time, cannot be believed to be true.
18. From the entire analysis of the evidence, it does not attract the mind of a prudent man to believe that appellant aged 21 years would be able to overpower deceased aged 25 years and inflict as many as seven sharp-edge weapon injuries and commit his murder. From the nature of injuries and their location, it does not seem to be a job of one man. The prosecution has miserably failed to prove its case beyond any reasonable doubt against appellant, therefore, benefit of doubt is extended in his favor.
19. Above are the detailed reasons of our short order, dated 2-11-2004 whereby appeal was allowed and appellant was acquitted from all charges. He was ordered to be released from jail forthwith if not required in any other case.