Ejaz Afzal Khan, J.--On 2.4.2000, Ghulam Murtaza Shah was informed by one Dr. Bashir that the house of his uncle Ghulam Abbas was locked from inside and none was responding there from despite consistent knocking. He accordingly went towards the house of the deceased, entered it by climbing over the wall and after entering one of its rooms, saw his uncle, his wife Mst. Nasreen and his sister-in-law Mst. Amna, lying dead. His uncle and Mst. Amna were naked as their `shalwars' were off. On report of the incident' though a case under Section 302 PPC, was registered against unknown persons, vide FIR No, 105 dated 2.4.2000, Police Station, Saddar D.I. Khan, yet one Jhangir alias Jhanga and one Iqbal Hussain were suspected to have a hand in the commission of this crime because of strained relations.
2. The Investigating Officer after recording the report, preparing the injury sheets and inquest reports of the deceased and dispatching their dead bodies to the Hospital for post mortem examination secured blood stained earth from the places of the deceased, 4 empties of 12 bore shotgun having smell of fresh discharge, 5 pellets of the same bore from beneath the dead bodies, a double barrel shotgun belonging to the deceased containing an empty and a missed cartridges, a plastic bag containing chilies, a blood stained key and sealed them into parcel.
3. On 6.4.2000 Zarin Shah, appellant herein, on being associated with the investigation on the basis of suspicion, led the Investigating Officer to the recovery of a double barrel shotgun which he allegedly concealed in the house of Ghulam Rasool on the following day of the occurrence. The said shotgun alongwith the empties was sent to the FSL for opinion. When according to the report of FSL, the empties matched with the shotgun, he was arrested again.
4. In the second round of the interrogation he led to the recovery of his P.T. shoes one of whose laces was stained with blood and the ornaments allegedly stolen from the house of the deceased.
When he also desired to confess his guilt, he was produced before a Judicial Magistrate who accordingly recorded his confessional statement.
5. After completion of the investigation, the appellant was sent to the Court of the learned Additional Session Judge for trial who on its conclusion sentenced him to imprisonment for life with a fine of Rs, 2500b/-or in default to undergo 5 years R.I. with a fine of Rs, 25000/- or in default to further undergo one year S.I. under Section 392 PPC, and to death on three counts under Section 302(b) PPC., vide her judgment dated 18.9.2004, heince this appeal by the appellant and murder reference for the confirmation of death sentence which are disposed of by this single judgment.
6. The learned counsel for the appellant by. referring to the questionnaire of the confessional statement contended that where the, appellant admitted that he was subjected to torture and beaten by the Police, his confessional statement cannot be held to be voluntary. He next argued that where the confessional statement is not corroborated by the medical evidence and surrounding circumstances, it cannot be held to be true on any count. The learned counsel next urged that where the confessional statement was recorded on 1.5.2000 and the certificate under Section 364 of the Cr.P.C. was issued on the following day as is evident from the dates mentioned therein, it cannot never be said that it was recorded in accordance with the requirements of law that too when the learned Judicial Magistrate did not take care even to scratch the unnecessary column of its proforma. The learned counsel to support his contention relied on the cases of Muhammad Riaz and 3 others vs. The State (PLD 1994 Peshawar 102), Murtaza and 2 others vs. The State and another (1996 P.Cr.L.J. Peshawar 358) and Gul Tiaz Khan vs. The State (PLD 2004 Peshawar 299). The learned counsel by concluding his arguments submitted that where recovery was effected at the instance of the appellant before he could be accused, it being outside the scope of Article 40 of Qanun-e-Shahadat, cannot be of any significance to the prosecution.
7. As against that, the learned State counsel assisted by the learned counsel for the complainant, argued that where recovery of incriminating material goes along way to corroborate the confessional statement which besides being voluntary is true, the charge against the appellant stands proved the 'hilt; that the learned trial Court by relying on the confessional statement of the accused has rightly convicted land sentenced the appellant and that the impugned judgment being free from any infirmity merits no interfere. The learned counsel to support his contention placed reliance on the cases of Noor Ahmad vs. The State and another (2004 SCM R 796) and Khadim Hussain vs. The State (2004 P.Cr.L.J. 1102 Federal Shariat Court).
8. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
9. Since the incident is blind and has not been witnessed by any one, the Prosecution to prove its case, mainly relied on circumstantial evidence which consists in recovery of shotgun, blood stained lace, golden ornaments, positive reports of FSL and the confessional statement of the appellant.
10. The evidence of first and foremost importance in this case is that of confessional statement. Is it voluntary? Does it ring true and fit in with the surrounding circumstances are the questions having tremendous bearing on the fate of this case.
11. The record reveals that the appellant led to the discovery of shotgun on 6.4.2000 before he could be charged by any one for his involvement in the crime. Similarly he led to the discovery of all the incriminating articles so called including ornaments and P.T. shoes with blood stained lace on 27.4.2000 and thereby owned and admitted his crime. When desired recoveries as alleged by the Prosecution were made at the instance of the appellant and the crime was admitted by him, why was he retained in Police custody till 1.5.2000? The only reasonable inference to be drawn in the circumstances of the case would be that this period which indeed commenced from 6.4.2000 was used for inducing him to make a confessional statement and thus the story of his re-arrest on 26.4.2000 appears to be more of a `Darama' than an actual fact. This inference is further supported when he is answer to a question put by the Magistrate before recording his confessional statement stated in no uncertain terms that he was tortured and beaten by the Police. When it is evident from the attending circumstances in general and answer of the appellant in particular that he was tortured and beaten, the confessional statement so made may be anything except voluntary.
12.A perusal of the confessional statement would show that the purpose behind the visit of the appellant to the house of the deceased was to seek his elderly intervention for persuading complainant Murtaza to sell his house to him and not to a stranger. If so, there was no occasion for the appellant to got there at night, that too, with a shotgun in his hand. How that mission which was essentially peaceful could take an un-though of turn. If for one reason or another, the said object was not achieved, there was no reason for killing the deceased, his wife and sister-in-law and disgracing them in the way it was done. It in all probabilities appears to be a crime committed by a man having implacable vengeance against the deceased. The fact that deceased Abbas Shah married as many as six wives and divorced most of them, may assume relevance in this background what for his sister-in-law was staying in his house is a question which may unravel another mystery. The fact that why the deceased Abbas Shah was having strained relations with his in-laws may provide another angle of vision for looking at this unfortunate episode. The mystery takes yet another mystical turn when swabs taken from the vagina of deceased Mst. Amna were found stained with semen.
13.Where did the incised wound found on the right arm of the deceased come from which according to the medical evidence could be caused by an axe or dagger while according to the confessional statement of the appellant, he was not armed with either nor any of them was used by him in the commission of the crime. What were the circumstances which necessitated the use of the shotgun by the deceased wherein an empty and missed cartridge were found at the time of its recovery from the spot. Who did all this has not altogether been adverted to in the confessional statement. It thus follows that the confessional statement is neither voluntary, nor rings true nor fits in with the surrounding circumstances of the case, therefore, it is not worthy of reliance. The judgments cited by the learned counsel for the appellant at the bar may be referred with advantage.
14. Recovery of shotgun in the manner it is alleged by the prosecution also appears to be doubtful and cannot be of much consequence when the confessional statement which is bed-rock of the Prosecution stands eroded notwithstanding positive report of FSL, when manipulation of empties at the hands of Police is too common a phenomenon and they despite proving the use of the shotgun in the crime, do not prove that it was used by the appellant.
15. Recovery of golden ornaments will also do little to improve the case of the prosecution firstly because there is no allegation that the ornaments have been stolen from the house of the deceased, secondly because no proof has been brought on the record to show that they belonged to the deceased and thirdly because no identification parade was held to establish their origin or ownership.
16.Recovery of blood stained lace too will prove nothing against the appellant when grouping of the blood has not been done and a stain of human blood can be produced by a prick. Needless to say that circumstantial evidence can only form basis for conviction when it is incompatible with the innocence of the accused do the one hand and incapable of explanation on any other reasonable hypothesis than that of his guilty on the other which is not the case here. The judgments cited at the bar by the learned State counsel being distinguishable have no relevance to the case in hand.
17.The nutshell of the above discussion is that the charge against the appellant has not been proved beyond any shadow of reasonable doubt, therefore, we do not feel persuaded to maintain his conviction.
18.For the reasons discussed above, this appeal is allowed, conviction and sentence recorded by the learned trial Court are set aside and the appellant is acquitted of the charge. He be set free forthwith, if not required in any other case. Murder Reference is thus answered in negative.