1. ' RAHMAT HUSSAIN JAFFERI, J.---Brief facts giving rise to the present appeal are that on 17-5-1999, the deceased who was driver of Suzuki Van and was plying the same between Gambat and Ranipur left his house be perform his duty on the Van. He did not return till 19-5-1999, therefore, complainant Momin Ali, his brother along with P.W.3 Eidal and P.W.4 Nawab Ali went to Bus stop Gambat in search of deceased. They did not received any information about the deceased at the said Bus stop, therefore, they went to Ranipur, where they came to know that on previous date deceased had gone with the appellant Muhammad Yakoob and acquitted accused Nadeem towards Hingorja as the Suzuki was hired by them. On receipt of said information, the complainant and the P.Ws. Went to Hingorja where the came to know that a dead-body was lying in the graveyard of Pir Mashaikh and a Van was parked there, therefore, they went to the said graveyard where they found the dead-body of deceased Ghulam Shabbir laying in the Babul trees. The dead- body had injuries, therefore, the complainant leaving the P.Ws. At the place of incident went to police station and lodged the report at 12-00 Noon.
2. ' The complainant alleged the motive for commission of offence that the appellant was engaged with Mst. Zamiran, cousin of the deceased, but the appellant tried to commit Zina with her, therefore, the uncles of the complainant refused to give the hand of Mst. Zamiran to the accused, hence the incident. The police after registration of the case arrested the appellant and acquitted accused Nadeem. The appellant made his judicial confession, produced blood-stained Chhurry and his clothes before the police. After completing the investigation, the police challaned the appellant and co-accused Nadeem in the Court of law.
3. ' The learned Additional Sessions Judge, Gambat tried and convicted them for offence punishable under section 302(b), P.P.C. And sentenced them to suffer imprisonment for life and pay Diyat amount of Rs,20,000 each to be paid to the legal heirs of the deceased. The benefit of section 382- B, Cr.P.C. Was extended to them under the impugned judgment dated 15-6-2002. Pending adjudication of the appeal the appellant Nadeem entered into compromise with the legal heirs of the deceased, such compromise application was filed which was accepted by this Court and co- accused Nadeem was acquitted vide order dated 28-6-2004. The appeal has proceeded against the appellant.
4. ' I have heard the Advocate for the appellant, Asstt. A.-G. For the State and perused the record of this case very carefully.
5. ' The learned Advocate for the appellant has stated that there is no eyewitnesses of the incident; that the prosecution has relied upon the evidence of deceased last seen alive with the appellant and examined P.W.3 Eidal and P.W 4 Nawab but their evidence is highly improbable and not supported by the complainant, therefore, the same is unbelievable. He has further argued that the prosecution has relied upon the judicial confession of the appellant but the appellant has retracted from it, therefore, it is required to be corroborated by the other pieces of evidence, but the said pieces of evidence are lacking in the case, hence, it is not sufficient to convict the appellant. He has further stated that the trial Court did not put the judicial confession to the appellant in the statement recorded under section 342, Cr.P.C., therefore, the said piece of evidence cannot be relied upon for convicting the appellant. He has further contended that the prosecution has relied upon the recovery of blood-stained Chhurry and clothes of the appellant, but the same were not sealed at the place of incident, therefore, they carry no weight. He has requested for acquittal of the appellant.
6. ' The learned Asstt. A.-G. Has stated that the prosecution has relied upon the above three pieces of evidence; that the evidence of deceased last seen alive with the appellant has not been supported by the complainant, though the P.W.3 and P.W.4 were with the complainant and searched for the deceased. As regards the confession he has stated that the same is not supported from the evidence on the record and was also not put to the appellant in his statement recorded under section 342, Cr.P.C., therefore, the same cannot be used against the appellant for convicting him.
7. He has further stated that the blood-stained articles were not sealed at the place of their recoveries, therefore, the Chemical Analyzers report carries no weight. He has not supported the impugned judgment.
8. ' I have given due consideration to the arguments, gone through the evidence with the assistance of learned Advocate for the appellant and found that the case of prosecution rests on four pieces of evidence (i) Motive, (ii) deceased last seen alive in the company of appellant (iii) Judicial confession (iv) and recoveries.
9. ' First of all I take up the motive. The prosecution alleged that the appellant was engaged with Mst.
10. Zamiran, cousin of the deceased but the appellant tried to commit rape with her, therefore, Panjal, father of the deceased has refused to give the hand of Mst. Zamiran to the appellant, hence the incident. In order to prove the said motive, the prosecution examined three witnesses P.W.2 complainant Momin Ali, P.W.3 Eidal and P.W.4 Nawab. They gave the same details of the motive to the extent that Mst. Zamiran cousin of the deceased was engaged with the appellant and he tried to commit Zina with her. On the remaining part, the evidence of P.Ws. Is not unanimous as the complainant deposed that deceased's father had refused to give the hand of Mst. Zamiran to the appellant, therefore, the appellant issued threats to the deceased that he would see him. Whereas P.W.4 deposed that because the appellant tried to commit Zina with Mst. Zamiran, therefore, the deceased had restrained the appellant from visiting her house, hence, the appellant was annoyed with him and thereafter Bandal and Qaiser uncles of the deceased had refused to give the hand of Mst. Zamiran to the appellant. Whereas P.W.3 Eidal deposed that after the appellant attempted to commit rape with Mst. Zamiran the deceased and his father restrained the appellant from visiting her house till Rukhsati was performed, therefore, the appellant was annoyed and murdered the deceased.
11. ' From the above position it is clear that all the three witnesses gave contradictory statements with regard to motive for committing the murder of the deceased by the appellant, as such their evidence is unsafe to rely upon therefore, the prosecution has failed to prove the motive.
12. ' As regards the second point, the prosecution examined two witnesses P.Ws.3 and 4. Their evidence reveals that one. Year prior to recording of their statements they were going to Hingorja. They reached Hingorja town from their village and met with appellant and acquitted accused. At that time the deceased was also found present with them. The deceased informed them that the appellant and acquitted accused were going to give him Goats from their village, therefore, they went away. Thereafter they started going towards Sami but on the way their Suzuki Van became out of order and was stopped therefore, they left the Suzuki and proceeded further on foot. When they reached at graveyard of Pir Mashaikh they found the appellant having Chhurry in his hand and acquitted accused Nadeem having knife coming out from the said graveyard and thereafter they went to Pippery. Their evidence further reveals that in the night time the complainant came to them and informed them that the deceased did not return, therefore, they started searching the deceased. They went to Ranipur where they came to know that deceased had gone to Hingorja with his Suzuki Van therefore they went to Hingorja where they came to know that one Suzuki was parked near graveyard a Pir Mashaikh. Thereafter, they went there and found Suzuki of the deceased parked and the dead-body of deceased was lying in the graveyard with injuries on various parts of body. They remained there and complainant went to police station for lodging the report.
13. ' In order to support the version of the P.Ws, the prosecution examined complainant he gave the same details of the incident as already mentioned in the earlier part of the judgment. He specifically stated that on 19-5-1999 he along with P.W.3 Eidal and P.W.4 Nawab first went to Bus Stop Gambat to search the deceased, but they did not receive any information about him, therefore, they went to Ranipur where they came to know that on the previous day deceased had gone with appellant and acquitted accused towards Hingorja as the Suzuki was hired by them, thereafter, they went to Hingorja and came to know that a dead-body was lying in the Pir Mashaikh graveyard.' When they reached there they found the Suzuki Van of deceased parked and the dead-body of the deceased was lying in the bushes with injuries.
14. ' From the evidence of complainant and P.Ws. It is clear that all the three P.Ws. Since long period were in search of the deceased, but it is surprising to not that both the P.Ws. Did not disclose the facts that they saw the deceased with the appellant on the previous day and that the deceased was going with them to get goats from their village. Not only the P.Ws. Allegedly seen the deceased with the appellant but they also allegedly saw the appellant and co-accused with knife and dagger coming out from the graveyard. According to P.W.5 at that time the clothes of the appellant and acquitted accused were blood-stained, but this fact was not deposed by P.W.3.
15. However the fact remains that the condition of the appellant and acquitted accused was such from which the P.Ws. Could have been alarmed. Further more it has come on the record through P.W.4 that they inquired from appellant, acquitted accused and they disclosed to them that they had killed their enemy, though this fact has not been disclosed by the P.W.3 in his statement. In presence or these facts when these two P.Ws. Came to know that the deceased was missing then it was natural for these witnesses to have informed the complainant that they saw the deceased with the appellant and acquitted accused. Non-disclosure of such facts to the complainant creates doubt in the veracity of the witnesses. Further more if the P.Ws. For any reason did not disclose such facts to the complainant but when they found the dead-body of the deceased with incised and stabbed injuries on the body, then the P.Ws. Should have been alarmed from the fact that 'they saw the appellant and acquitted accused Nadeem coming out with dagger, Chhurry and blood-stained clothes from the place where the dead-body was recovered and should have been able to make two and two together to form an opinion that the appellant and co-accused might have murdered the deceased and in such circumstances the P.Ws. Should have narrated the said facts to the complainant and then the complainant could have named the accused in the F.I.R. At least as suspects. Non-disclosure of such facts either before starting the search of the deceased or after the recovery of the dead-body manifestly establishes the fact that the P.Ws. Have cooked up this story in order to involve the appellant. Finding these defects in the evidence of decease last seen alive in the company of the appellant, the learned Asstt. A.-G. Has rightly not supported this piece of evidence and I fully agree with him.
16. ' As regards the confession, the prosecution examined P.W.8 Magistrate Ghulam Nabi, his evidence reveals that on 1-7-1999 the police produced the appellant before him for recording the confession.
17. After performing all the legal formalities he recorded the confession of the appellant which he produced as Exh.12/B. The confession of the appellant reveals that about 3 and 3-1/2 years of recording the confession, he was engaged with Mst. Zamiran but Rukhsati did not take place. The confession further reveals that about 2, 2-1/2 months prior to recording the confession in the evening time he found deceased and Mst. Zamiran embracing with each other near the hedge of the house, therefore, he was annoyed. On the day of incident he and acquitted accused Nadeem took the deceased with them on the pretext to give Goats to him and took him to the graveyard of Pir. Mashaikh, where acquitted accused caught hold of the deceased and he caused injuries with small Chhurry (Kitchen knife) and then the deceased died there, thereafter he and Nadeem went to their houses and he produced the blood-stained clothes and Chhurry before the police.
18. ' The appellant retracted from judicial confession. It is well-settled principle of law that retracted judicial confession, if it is found to be true and voluntarily then is sufficient to convict the accused without any corroboration but as a rule of procedure and prudence the confession requires to be corroborated on material particulars.
19. ' Keeping in view the above position of law, I have examined the confession and found that in the confession the appellant gave the motive that he found the deceased and Mst. Zamiran embracing each other. The said fact is neither supported nor corroborated by any piece of evidence available on record, but on the contrary the P.Ws. Alleged that the appellant tried to commit Zina with Mst. Zamiran, therefore, he was either restrained from coming to the house or refused to give the hand of Mst. Zamiran to him. Thus the motive alleged in the confession has not been corroborated. As regards the injuries caused to the deceased, the confession shown that acquitted accused caught hold of the deceased, whereas he had caused small Chhurry injuries to the deceased. Thus the injuries should have been stabbed injuries on the person of the deceased but the medical officer found incise and stab, two types of injuries on the person of the deceased.
20. The Medical Officer P.W.6 Dr. Bashir Ahmed Memon found the following injuries on the person of the deceased:--
(i) Incised wound 10 c.m. x 4 c.m. Muscle deep lying from infront of left ear up to upper part of left lateral side of neck.
(ii) Incised wound 4 c.m. x 0.5 c.m. x scalp deep on left side of parietal region.
(iii) Stab wound 5 c.m. x 3 c.m. x lying deep up to lung (rt) causing fracture of 5th rib on front of right side of chest.
(iv) Incised wound 4 c.m. x 2 c.m. x bone deep causing the fracture of 8th rib on the lower side of the left chest.
(v) Incised wound 4 c.m. x 3 c.m. Bone deep causing the fracture of 7th rib on the right side of front of the chest.
(vi) Stab wound 8 c.m. x 5 c.m. Liver deep causing the fracture of 8th, 9th ribs on right hypochondrium.
(vii) Stab wound 7 c.m. x 4 c.m. Abdominal cavity deep with the portion of peritoneum out at epigastric region of the abdomen.
(viii) Incised wound 5 c.m. x 3 c.m. Muscle deep on left Iliac region of abdomen.
21. ' Stab wound 5 c.m. x 3 c.m. Lying deep 8 c.m. On back of left lumber region.
22. ' Stab wound 8 c.m. x 5 c.m. x deep 8 c.m. On back of right lower chest with fracture of 9th rib.
23. ' Incised wound 4 c.m. x 1 c.m. x muscle deep on front of left wrist joint.
24. ' Thus the above aspect of the confession has also not been fully corroborated by the medical evidence.
25. ' As regards the production of bloodstained clothes and Chhurry by the appellant, it will be notices that such piece of statement is available as a last line in the confessional statement of the appellant, I have minutely gone through the said line and fond that space in between the said last line and wcond last line of the confession is not the same as the spaces of lines shown in the remaining part of the confession. I further noticed that the discrepancy of space in the last line appears for the reason that there was no sufficient space left in between the signature of the Magistrate, the second last line of the confession and the signature of the appellant. In order to fit a line in the said space, it appears that the line has been introduced in between the said space, therefore, this discrepancy of space in lines has occurred that also creates doubt that the said line might have been added subsequently.
26. ' Nevertheless the prosecution in order to prove the recoveries of bloodstained Chhurry and clothes of the appellant, examined P.W.5 Ghous Bux mashir of such recoveries and P.W.7 SIP Investigating Officer. P.W.5 deposed that on 19-6-1999 the appellant was arrested from Pir Mashaikh and produced Chhurry and clothes from his house but he did not state that such articles were sealed in his presence at the places of recoveries. Whereas statement of P.W.7 SIP Abdul Razak shows that on 30-6-1999 he arrested the appellant from near his village and then he produced the Chhurry and clothes. He also did not state that he had sealed the said articles at the places of recoveries.
27. ' From the above statements it is clear that both the witnesses gave different dates and places of arrest of the appellant as according to P.W.5 the appellant was arrested on 19-6-1999 from Pir Mashaikh. Whereas the Investigating Officer stated that the appellant was arrested on 30-6-1999 from near his village. Furthermore both the witnesses did not state that the articles were sealed at the places of their recoveries. This is the major defect in the prosecution version, because property is required to be sealed at the place of recovery, so as to eliminate its tampering at subsequent stage. However, the Investigating Officer did not state as to when and where he sealed the articles, if the same were sealed at the place other than the place of their recoveries. In these circumstances there is no guarantee that the articles were in the same condition when they were received by the Chemical Analyzer. The prosecution is required to prove that when the articles were received by the Chemical Analyzer they were in the same condition in which they were recovered. The said fact can only be established from the fact that the articles were sealed at the places of their recoveries without such proof the report of Chemical Analyzer (Exh.11/D) has lost it's importance which is normally attached to such report. Reliance is placed on a D.B. Decision in which I was one of its members and author of the judgment, delivered in Criminal Appeal No,392 of 2004 decided on 13-7-2006 where the above question was examined thoroughly and it was held that when the witnesses did not state before the trial Court that the property was sealed at the place of its recovery though such fact was mentioned in the Mashirnama of recovery, then the expert report lost its importance and the report was not relied upon on the ground that such fact in the Mashirnama was out of the scope of section 103, Cr.P.C. Therefore, not protected under Article 49 of Qanun-eShahadat Order, 1984, hence it was found to be inadmissible evidence. Therefore, it has also not been proved that the articles allegedly produced by the appellant were blood- stained, hence such aspect of the confession has also not been corroborated. Finding the above defects in the recoveries the learned Asstt. A.-G. Has not supported the same.
28. ' It is pertinent to point out that conviction can be based on evidence which is put to the accused in the statement recorded under section 342, Cr.P.C. So as to obtain his explanation. However, if any piece of evidence is not put to the accused in the said statement then it cannot be used against him for convicting him. In the present case the learned trial Judge did not put any question to the appellant about the confession, therefore, the said piece of evidence was not required to have been used against the appellant for convicting him. I am aware of the fact that on this ground the case can be remanded to the trial Court to put such question to the appellant and obtain explanation from him. However, I find that such exercise will be futile, as I have already pointed out that the confession is not getting any corroboration from the evidence available on record, therefore, it would be unsafe to rely upon the same, hence the case is not remanded to the trial Court. Furthermore this is a very old case as the incident took place in year 1999, 7 years have passed, if the case is remanded to the trial Court then again it will take more years to complete and meet its logical end, therefore, it will amount to the abuse of process of law, as such, this is not a fit case which should be remanded to the trial Court.
29. ' After considering the material available on the record, I am of the considered view that the case of the prosecution is highly doubtful against the appellant. The learned Asstt. A.-G. Has also not supported the prosecution case. In these circumstances while passing the short order dated 11-8- 2006 I gave benefit of doubt to the appellant and allowed the appeal. These are the reasons of the said short order.