' AMIR HANI MUSLIM, J.---Through this Criminal Jail Appeal, the Appellant Qasim son of Hussain Bux has impugned the Judgment, dated 9-9-1998, passed by the learned IInd Additional Sessions Judge, Khairpur Mirs, in Sessions Case No, 211 of 1993, whereby the learned Judge awarded death sentence to the appellant and also ordered him to pay a sum of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. Briefly the facts of the prosecution case, as incorporated in theF.I.R., are that on 6-8-1993, the Complainant SIP Azad Khan Korai received a telephonic message from one Seraj Ahmed Lund that while he along with his relatives were burying their relative Mevo Khan in graveyard Pir Garho', he saw a dead-body of a boy lying there. The complainant along with other police staff reached the graveyard and saw the dead-body of the boy aged about 12 years old having violence marks around his body. As per the contents of the F.I.R., sodomy was committed with the deceased and his dead body was without trouser. The mashirnama of the place of wardat and inquest report were prepared. Thereafter the dead-body was sent to Thari Mirwah Hospital for postmortem and on 7-8-1993 at 1-00 a.m. F.I.R. No, 70 of 1993 was registered at Mirwah Police Station against unknown persons.
3 . During investigation police arrested the appellant on 10-8-1993and on 11-8-1993 his judicial confession was recorded by the Mukhtiarkar and FCM Mirwah, in which the appellant confessed that he caught hold of the deceased and co-accused Gulzar alias Gulli had committed sodomy with him on account of which he died on the spot. On the basis of this confessional statement, the police also arrested accused Gulli alias Gulzar. After usual investigation both the accused were challaned and were sent-up for trial.
4. During trial, charge Exhibit 2, was framed and pleas of accused were recorded as Exhibits 3 and 4, in which accused Gulzar alias Gulli pleaded not guilty whereas accused Qasim admitted that he alone had committed murder of deceased boy Ghulam Ali by throttling him. The prosecution examined Mukhtiarkar and FCM as 'Exhibit 8, P.W. Gul Hassan father of deceased boy as Exhibit 9, mashir Bagh Ali as Exhibit 10, PC Muhammad Akram as Exhibit 11, PC Nisar Ahmed as Exhibit 12, Dr. Ansar Ali Gopang as Exhibit 13, SIP Ali Hyder Rind as Exhibit 14 and Complainant SIP Azad Khan Korai as Exhibit 15. In his evidence before the trial Court, the Magistrate produced judicial confession of accused Qasim as Exhibit 8-A, mashir Bagh Ali produced mashirnama of arrest of accused Qasim as Exhibit 10-A, mashirnama of arrest of accused Gulzar alias Gulli as Exhibit 10-B, mashirnama of recovery of account/note book and National Identity Card as Exhibit 10-C, P.C. Muhammad Akram produced mashirnama of place of wardat as Exhibit 11-A, Dr. Ansar Ali Gopang produced postmortem report as Exhibit 13-A, complainant SIP Azad Khan Korai produced mashirnama of dead-body as Exhibit 15-A, inquest report as Exhibit 15B and F.I.R. As Exhibit 15-C. Thereafter the prosecution closed its side.Vide Exhibit 16.
5. Statement of appellant Qasim son of Hussain Bux under section 342, Cr.P.C. Was recorded as Exhibit 17 in which he admitted that he himself had committed murder of Ghulam Ali and initially denied that sodomy was not committed by co-accused Gulzar alias Gulli with the deceased but subsequently answering the question resiled from earlier stand and stated that sodomy was committed upon the deceased. Accused Gulzar alias Gulli son of Nek Muhammad in his statement recorded under section 342, Cr.P.C., Exhibit 18, claimed innocence and denied the charge. After conclusion of the trial the learned IInd Additional Sessions Judge, Khairpur Mirs, while acquitting the co-accused Gulzar alias Gulli convicted and sentenced the appellant Qasim inter alia on the ground that he has committed murder of the deceased by throttling, which judgment is impugned in this appeal.
6. We have heard learned counsel for the appellant and learned A.A.-G. For the State and with the assistance of learned A.A.-G. Have gone through the material placed on record.
7. It has been contended by the learned counsel for the appellant that the name of the appellant does not transpire in the F.I.R. Nor any specific role has been assigned to the appellant in the F.I.R.
He next contended that there was no eye-witnesses to the incident and there were material contradictions in the statements of the appellant recorded by the police, the confessional statement of the appellant recorded under section 164, Cr.P.C. By the concerned Magistrate and statement recorded before the trial Court under section 342, Cr.P.C. The recovery of NIC of the father of the deceased and the notebook was effected from the co-accused Gulzar alias Gulli son of Nek Muhammad and not from the appellant, for which the trial Court has not furnished any justification while acquitting the co-accused. The medical evidence produced through. Medical Officer (Exhibit 13), who conducted the post-mortem reflected that no sodomy was committed upon the deceased but the cause of death as per the medical evidence was due to throttling. He further contended that confessional statement alone cannot be made basis of conviction, if such confession is not confidence inspiring.
8. It has further been contended by the learned counsel for the appellant that there was absolutely no material on record to connect the appellant with the commission of crime except the confession of the appellant, hence he has prayed for the acquittal of the appellant.
9. In support of his above contentions, he learned counsel for the appellant has relied upon the following case-law on the point of confession of the appellant:-
(1) Rahim Bakhsh v. Crown (PLD 1952 FC 1); and (ii) Haq Nawaz v. State (2000 SCM R 785)
10.. The learned A.A.-G. Has not supported the impugned judgment and has submitted that the appellant was solely convicted on the ground that he admitted his guilt before the trial Court, which evidence was insufficient to prove the guilt of the appellant beyond the reasonable doubt.
11. The confession of the appellant Qasim before the Magistrate and the trial Court has been made an integral and substantial part of the prosecution case. However, confessional statement made by appellant Qasim before Magistrate is contradictory to the statement made by him before the trial Court. In the former statement the appellant admitted that co-accused Gulzar alias Gulli committed sodomy with the deceased Ghulam Ali. But the appellant in his statement recorded under section 342, Cr.P.C. Before the trial Court stated that "we also committed sodomy upon the deceased". In the same statement recorded under section 342, Cr.P.C. The appellant stated that "no act of sodomy was committed by me with Ghulam Ali. Co-accused Gulzar alias Gulli was also with me but 1 alone committed Qatl-i-Amd of Ghulam Ali by throttling him." Therefore, the failure on the part of the trial Court to frame the question seeking explanation of the appellant about material contradiction pertaining to sodomy destroyed entire prosecution story and the confession in the given circumstances ought to have been discarded by the trial Court. Where a confession or admission is the sole basis of the judgment convicting the appellant, the failure to question him about its voluntariness would presume to have prejudiced the case of the accused. In the case in hand, the appellant has admitted his guilt, which was made the basis while passing the impugned judgment. In the confessional statement before the Mukhtiarkar and during his examination under section 342, Cr.P.C. The appellant has stated that he and Gulli had committed Sodomy upon the deceased, which statement was not supported by the medical evidence. The appellant under section 342, Cr.P.C. Has resiled from earlier statement under section 164, Cr.P.C. By exonerating co- accused from whom police has received NIC and account/note book of P.W. Gul Hassan (father of the deceased).
12. In the face of this material, the trial Court was duty bound to disbelieve the confessional statement and statement under section 342, Cr.P.C., by which the appellant had admitted his guilt for more than two reasons (i) that as per the medical evidence no sodomy was committed upon the deceased and (ii) the appellant under section 342, Cr.P.C. Had B exonerated the co-accused.
The confessional statement of the appellant lost its legal value, once the medical evidence belying the appellant that sodomy was not committed upon the deceased was produced by the prosecution. Moreover the legality of the confessional statement becomes doubtful when the appellant was neither given warning or notice before such statement was recorded by the Mukhtiarkar.
13. The story narrated by the appellant in the confessional statement does not correspond to the medical evidence. The formulation of the questions Nos. 1 and 2 under section 342, Cr.P.C. And their answers by the appellant were self-contradictory and findings in the impugned judgment based this material without unearthing the truth were erroneous.
14. There is further material contradiction in the deposition of P.W. Azad Khan, SIP, of P.P. Satharja of PS Thari Mir Wah as far a; Exh.13/A 'Mushirnama of recovery and Exh.15/A Postmortem report are concerned. In the deposition of P.W. Azad Khan, it has come on record that Shalwar and Chappal of the deceased were sealed on the place ofwardat in presence of the Mushirs. In the Exh.15/A, in the Postmortem report, it has come on record that at the time when body of the deceased was brought to the Hospital for postmortem, he was wearing Nasi Shalwar, white shirt and white sponge chappals. This material contradiction belies the prosecution story that the body was recovered in presence of the Mashirs.
15. We have gone through the case of Rahim Bakhsh (supra), wherein he Hon'ble Federal Court had observed that "it would be most unfair to the accused and it would amount to a violation of a fundamental principle of natural justice if he is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking for his explanation when he was examined in Court." In the present case, though the appellant besides his confessional statement had also admitted his guilt before the trial Court, but no explanation was either sought from the appellant in regard to the material contradiction referred to hereinabove, nor any justification was offered by the trial Court while passing the impugned judgment. The other authority referred to by the learned counsel for the appellant is also on the same point of law.
16. We are fortified with the view of the Hon'ble Federal Court in the above case so also in the case of Haq Nawaz (ibid) that the conviction of the appellant was solely dependent upon his admission before the Mukhtiarkar and the trial Court in absence of eye-witness. The entire prosecution story is dependent upon circumstantial evidence and material contradictions in prosecution story pointed out hereinabove are sufficient to give benefit to the appellant. Accordingly, we hold that material brought on record by the prosecution was neither confidence inspiring nor sufficient to convict the appellant. The impugned judgment, therefore, is set aside.
17. Above are the reasons of our short order, dated 16-3-2006, by which we had allowed the appeal in the following manner:- "For reasons to be recoded later on appeal is allowed. Appellant shall be released forthwith if not required in any other case.
' Addl. Registrar will issue release writ to the Jail Authority directly today.
' Confirmation case is declined."