MUHAMMAD FARRUKH MAHMUD, J.-Asif Waseem alias Fauji, Javed Iqbal, Khalid Hassan Mujadadi and Muhammad Masoom were booked in case F.I.R. No.299 registered at Police-Station Satellite Town, Gujranwala, on 16-5-1998 for offences under sections 302/324/452/ 34, P.P.C. Accused Muhammad Masoom did not join the investigation and was, as such, declared proclaimed offender (PO). The rest of the accused were tried by Mr. Muhammad Tanvir Mir, learned Additional Sessions Judge, Gujranwala, who, vide judgment dated' 28-11-2001, while acquitting Khalid and Javed Iqbal, coaccused convicted and sentenced Asif Waseem alias Fauji as follows:--
(I) For offence under section 302/34, P.P.C. To death on three counts plus payment of rupees one lac to the legal heirs of the deceased as compensation, in default whereof to undergo six months'
S.I.;
(II) For offence under section 324/34, P.P.C. To suffer ten years' R.I. Plus payment of Rs.30,000 as compensation to the injured P.W. Farooq Ahmad, in default whereof to undergo one year R.I.;
(III) For offence under section 324/34, P.P.C. To undergo R.I. For ten years' plus payment of Rs.30,000 to Mst. Naureen Bibi injured P.W. As compensation, in default whereof to suffer R.I. For one year; and
(IV) For offence under section 449, P.P.C. To undergo R.I. For ten years and also to pay a fine of Rs.30,000 , in default whereof to suffer R.I. For one year.
All the aforesaid sentences imposed upon Asif Waseem were directed to run concurrently.
2. Asif Waseem alias Fauji, convict/appellant, has challenged his above noted convictions and sentences through the instant appeal. Murder Reference No.863 of 2001 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. We propose to decide both these matters through this judgment.
3. The brief facts of the prosecution per complaint Exh.PD recorded at the instance of Mst. Naureen Bibi, complainant/P.W.l, which based the registration of formal F.I.R. Exh.PD/1, are that the complainant, who was living in a rented house situated in Street A-one Bakerywali, Khokharke, Gujranwala, had two daughters and five sons. Her elder daughter Saima was aged about 17/18 years, Six months prior to the occurrence, Masoom alias Allama, a boy of her Mohallah, enticed away Saima and contracted Nikah with her. The complainant complained about this Nikah to Maulvi Khalid Hassan who exchanged hot words with her. The complainant brought her daughter to her house; sent her to Quetta in the house of her sister and demanded her divorce from Masoom alias Allama who was annoyed upon that, Masoom had been extending threats to the complainant. On 16-5-1998 at about 9-00 p.m. The complainant, her sons Muhammad Ali, Muhammad Hassan, adopted brother Farooq Ahmad and Mst. Zubaida, her Mohallahdar, were sitting in the courtyard of her house, while her husband Muhammad Ayub had just gone to fetch cold drink from a shop, when all of a sudden two persons Muhammad Masoom alias Allama and Muhammad Javed' Iqbal, both armed with Kalashnikovs, entered her house from.The main gate and while raising Lalkara that they would teach a lesson for hiding his wife and demanding her divorce, they started indiscriminate firing, as a result of firing Muhammad Hassan and Muhammad'
Ali died at the spot, whereas the complainant Mst. Naureen, Farooq Ahmad and Mst. Zubaida Bibi sustained injuries on their persons. The incident was also witnessed by Muhammad Ayub, the husband of the complainant/ P.W.12, Muhammad Yaqoob-her Dewar and Muhammad Ashraf/P.W.2, who were present in the street near the main gate of the house. The offence had been committed on the abetment of Khalid Mujaddadi.
4. According to Ghulam Ali, HC/ P.W.17, on 16-5-1998, he was posted as Additional Moharrer at Police Station Satellite Town, Gujranwala, and he could identify the signatures and'hand writings of Khawar Latif, S.H.O., who had initially investigated the case and was not available as he had gone abroad. The said S.H.O./ Investigating Officer (10) after registration of the case, went to the spot; collected blood stained earth through memo. Exh.PS; prepared rough site-plan of the place of occurrence (Exh.PT). He prepared injury statement (Exh.PU/1), inquest report (Exh.PU/2) in respect of Muhammad Ali- deceased and injury statement (Exh.PV/,1) and inquest report (Exh.PV/2) in respect of Muhammad Hassan-deceased and sent the dead bodies of Muhammad Ali and Muhammad Hassan for post-mortem examination. The ( said 10 drafted application for permission to record the statement of Mst. Naureen Bibi. He got prepared scaled site-plan Exh.PQ from the draftsman.
On 16-5-1998, Muhammad Younas, retired SI/P.W. 14, got conducted post-mortem examination on the dead body of Mst. Zubaida Bibi, who was injured during the occurrence and had died. He also prepared his injury statement Exh.PN and inquest report Exh.PP. On 30-7-1999, Saeed Ahmad, A.S.- I./P.W. 16, arrested Javed Iqbal/accused. On 30-7-1999, he got Asif Waseem alias Fauji/appellant in case F.I.R. No.483 of 1998 under section 382, P.P.C. And interrogated him. On 2-8-1999, the 10 got recorded the statement of the appellant under section 164, Cr.P.C. From Ghias-ud-Din/Magistrate (P.W.18). On 12-9-1999, the appellant led to the recovery of pistol P-4 which was taken into possession vide memo. Exh.PE. After completion of investigation, the appellant along with his co- accused was challaned to face the trial.
5. To prove its version at the trial, the prosecution produced eighteen witnesses. After tendering in evidence the report of Forensic Science Laboratory Exh.PY, the prosecution closed its side. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false involvement due to suspicion. He further stated that he was not even named in the F.I.R. Or even in the statements of witnesses recorded under section 161, Cr.P.C. As to the judicial confession, he stated that he never appeared before the Magistrate nor made any statement. The police obtained his signatures on a blank paper, which was subsequently incorporated into Exh.PX/1.
However, neither the appellant appeared as his own witness under section 340(2), Cr.P.C. Nor did he produce any witness in defence.
6. Learned counsel for the appellant submits that the appellant was not named in the F.I.R.; that no identification parade was held to establish the identity of the appellant as accused; that the judicial confession was not voluntary; that it is proved from the record that after the confession the appellant was again handed over to the police; that the Magistrate, who recorded the confession, did not take the necessary pre-cautions prescribed by the law; that the retracted judicial confession was not supported by any other reliable evidence; that the recovery of pistol was, in fact, effected in a case relating to offence under section 382, P.P.C.; that the statements of P.Ws.
And the statement of the appellant made during confession were contradictory to each other; and that the prosecution case was replete with doubts.
7. On the other hand, learned Additional Prosecutor General for the State has relied upon the judicial confession made by the appellant before the Magistrate, which was supported by the medical evidence and corroborated by the evidence of recovery.
8. We have heard the learned counsel for the parties and have also perused the record.
9. Undeniably, the appellant was not named in the F.I.R. Nor P.W.Ll and P.W.12 Muhammad Farooq.
And Muhammad Ayub named the appellant in their statements recorded under section 161, Cr.P.C.
It is not a case where according to the prosecution the principal accused was accompanied by another who was not previously known to the witnesses nor it. Is a case where the accused was known by two names. In the instant case Masoom alias Allama/principal accused (since absconder) was stated to be accompanied by Javed Iqbal. All the three witnesses P.W.l, P.W.Ll and P.W.12 had not only named Javed Iqbal in F.I.R. And in their statements recorded under section 161, Cr.P.C. But they have also given full particulars of Javed Iqbal, his parentage, his caste and his address. None of them stated earlier that except for Muhammad Masood, Javed Iqbal, any body else accompanied the two. The injuries were also attributed to Masoom (absconder) and Javed Iqbal (since acquitted). All the witnesses for the first time named the appellant as accused when their statements were recorded before the learned trial Court. P.W.?1 Farooq Ahmad, who had received injuries during the occurrence, stated that he did not know Asif Waseem previously and came to know the name of Asif Waseem after going through the statement recorded under section 161, Cr.P.C. Muhammad Ayub/P.W.12, who is husband of the complainant Mst. Naureen Bibi, conceded during cross-examination that the name of appellant was not mentioned in his statement recorded under section 161, Cr.P.C. Exh.DA, as he was not aware of the name of Asif Waseem. Mst. Naureen complainant, who had received injuries during the occurrence, firstly stated that Asif was not known to her previously and she came to know about the name of the appellant after his arrest. Then she stated that the face of the appellant was known to her prior to the occurrence. In case, the appellant was known by face by the complainant, then she must have given his particulars in the F.I.R. No identification parade was ever held to establish the identity of the appellant as accused. All the P.Ws. Have given different versions regarding the role of the appellant The complainant stated that the two accused were armed with Kalashnikovs, while Farooq Ahmad stated that appellant was armed with a pistol, whereas according to Muhammad Ayub, one of the accused was carrying pistol but which of the two was armed with Kalashnikov was not specified. The prosecution also produced Muhammad Arshad as P:W.13, who stated that on the fateful night he had seen Allama along with the appellant coming out of the house of Mst-.
Naureen Bibi. During cross- examination, he admitted that he did not know the name of Asif before his arrest and had not participated in any identification parade. Furthermore, according to complainant, nobody was present in the street at the time of occurrence. It is more than obvious that due to some misunderstanding all the P.Ws. Substituted Asif Waseem for Javed Iqbal, who was also tried. The role assigned to Javed Iqbal was ascribed to Asif Waseem. It appears that they were persuaded to shift-the liability by the Investigating Officer. In the circumstances, the statements of eyewitnesses vis-a-vis the appellant are worthy of no credence and their evidence qua the j) appellant is rejected.
10. During investigation, on the application of the 10 dated 31-7-1999, confessional statement of appellant was recorded by Ghias-ud-Din, Magistrate/ P.W.18, on 2-8-1999. The same was retracted by the appellant during trial. According to Articles 37 and 41 of the Qanun-e-Shahadat Order, 1984, the confession made by an accused-person is irrelevant in criminal proceedings if making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person and the confession would only be relevant when the impression caused by any such inducement, threat or promise had been fully removed in the opinion of the Court. Before recording the confession, the Magistrate was duty- bound to ensure that the confession was made voluntarily and the accused making confession was not tortured; was not under any coercion; and was not under the threat of his being handed over to the police after the recording of his statement. The instructions of the High Court reflected in various judgments are very clear on that regard. In the instant case, the appellant was got identified by the police officer who had produced the appellant before the Magistrate. The appellant was never asked whether he owned a national identity card or not. He was not given sufficient time to consider whether he should make confession or not but most importantly, according to P.W.18, he handed over the accused to the Police Officer, who had produced the appellant before the Magistrate. However, a direction was issued to the Police Officer to send the appellant on judicial remand. The Magistrate admitted that he did not check whether the accused was sent to judicial lock-up or not. Before recording his statement, the Magistrate neither asked from the appellant as to how long he had been in police custody nor asked him the reasons behind making the confession. It may be noted here that no incriminating evidence was available against the appellant at the time of making of confession so as to compel him to make the confession.
Saeed Ahmad, A.S.-L/P.W.16, had arrested the appellant and he had moved application for recording or statement of the appellant under section 164, Cr.P.C. He stated in his examination-in- chief that instead of 2-8-1999 when the statement of the appellant was recorded, the appellant was sent to judicial lock-up on the next date, i.e, 3-8-1999. He also stated that he had arrested the appellant in case F.I.R. No,483 of 1998 registered under section 382, P.P.C. During cross-examination, he stated that before getting Asif Waseem out of jail or even afterwards there was no material against accused Asif Waseem connecting him with the offence under section 382, P.P.C. It appears that throughout the appellant remained in police custody even after recording of confession, as P.W.16 conceded that he had not obtained the remand in this case but had obtained remand in the case registered under section 382, P.P.C. It is further supported by the fact that according to P. W.16, he got the custody of Asif Waseem out of jail and obtained his physical remand on 8-9-1999 and after four days on 12-9-1999, he effected recovery of pistol at the instance of the appellant. The learned trial Court has wrongly held that in his confessional statement, the appellant had clearly admitted that he along with Muhammad Masoom alias, Allama committed the Murders of Muhammad Ali, Muhammad Hassan and Mst. Zubaida Bibi. This finding of the learned trial Court is available at page 99 of the paper book, i.e, page 25 of the impugned judgment. Bare perusal of the statement of appellant Exh.PX/1, available at pages 126 to 128 of the Paper Book, would have made clear to the learned trial Court that according to the statement, the appellant along with Allama fired at the mother-in-law of Allama. The appellant never confessed that he went inside the house and caused firing. The statement further reveals that the boy who received bullet shot outside the house was also fired at by Masoom and not by the appellant. In these circumstances, no reliance can be placed upon the judicial confession.
11. As far as recovery of pistol is concerned, the same was not effected during the investigation of this case. Furthermore, no empty was recovered from the spot and no witness from public was associated with the recovery proceedings.
12. As regards the motive, there is no evidence against the appellant.
13. In the above noted circumstances, in our considered opinion the prosecution case is replete with doubts. This appeal is allowed. The judgment passed by the learned trial Court is set aside to the extent of the appellant. He is acquitted of all the charges and would be released forthwith if not required in any other case. The death sentence is not confirmed. The Murder Reference is answered in the negative.