1. This Criminal Jail Appeal has been directed against the judgment dated 23.11.2004 passed in Sessions Case No, 237/2002, whereby appellant was convicted for life imprisonment with a fine of Rs, 50,000/- In case of default to suffer S.I. for two years. It was further ordered that 50% of the whole amount, if recovered, be given to the L. Rs, of deceased Imtiaz Son of Matiullah. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
2. Case of prosecution is that on 15.07.2002, complainant Azizullah in his 154, Cr.P.C, statement stated that on 15.07.2002, he alongwith Imtiaz Ahmed left his house for work at Bahadurabad. Thereafter at about 11:00 a.m. he went to Clifton, directing Imtiaz to return to home. On the same day at about 4:45 p.m. he received a message from his wife on mobile phone that Imtiaz Ahmed has been murdered. On his arrival at home, he found deceased lying on ground in pool of blood. He had injuries on his arms and neck with some sharp edged weapon. According to the complainant, his wife informed him that his brother Aamir came to her and when Aamir was present at house, she had taken her child for tuition. After leaving the child in tuition center, she went to house of her friend. When she was present at the house of her friend, at about: 3:00 p.m. Aamir came there and informed that as Imtiaz had returned to home, therefore, he is going. On her return to home at about 4:45 p.m. she found Imtiaz dead. Household articles were lying in scattered condition and an amount of Rs,16,000/- was also missing. As per complainant, some unknown persons after entering his house had murdered his nephew Imtiaz Ahmed.
3. On the basis of this report, FIR was registered and investigation was conducted. During investigation, Inspector Ghulam Rasool, the Investigating Officer on 17.07.2002 received an unknown call at police station that Aamir is the real culprit of this crime, therefore, he should be arrested and interrogated. Entry of that call was made at No, 29 in the Roznamcha and appellant Aamir was called at police station on the same day. He was interrogated. During interrogation, he confessed the guilt in present of PW-3 Maqbool Ahmed. On the basis of his confession, he was taken in custody. During investigation, accused voluntarily led the police party and produced blood stained knife used in offence. Both knife and clothes worn by deceased were sent to the Chemical Examiner. After completing investigation, matter was challenged in Court. Prosecution examined in all about 8 witnesses viz. Azizullah, the complainant, Abdul Ghaffar, Maqbool Ahmed, Mumtaz Khan, Saima, Abdul Qadir, Dr. Muhammad Tariq, Judicial Magistrate Mrs. Sarwat Sultana and Investigation Officer Ghulam Rasool. PW-2 Abdul Ghaffar and PW-4 Mumtaz Khan have been produced as eye-witnesses of the incident According to them, on 15.07.2002 at about 3:30 or 4:00 p.m. when they both were passing through the street, they saw appellant Aamir Khan, brother-in-law of complainant, coming out of the house of the complainant with blood stained clothes. According to them, they called Aamir Khan but he did not listen to them and left the house in hurry. According to PW Abdul Ghaffar, thereafter he and PW Mumtaz Khan went to a plumber shop and at about 6:00 p.m. they came to know that complainant's nephew Imtiaz has been murdered. Their 161, Cr.P.C. statements were recorded on 17.07.2002.
4. During the course of arguments, learned counsel for the complainant as well as learned Stated Counsel Ms. Afsheen Amaan have stressed much on the deposition of these two witnesses, whereas according to learned counsel for the appellant, even if the statements of PW-2 and PW-4 are believed, they cannot be called as eye-witnesses of the incident, because none of them had seen the appellant committing murder of Imtiaz Ahmed. On the basis of their statements that the appellant while departing the house of, complainant was wearing blood stained clothes and he appeared to be in hurry in leaving the house, it cannot be assumed that he is the main culprit. As even otherwise no reason has been assigned by both these two prosecution witnesses that if they had seen appellant coming out of complainant's house in blood stained clothes and they knew complainant very well, why for two days they remained quiet and neither had informed the complainant about what they had seen on 15.07.2002 nor to the Investigating Officer. According to learned counsel for the complainant, they could not inform to the complainant because just after murder of deceased Imtiaz, complainant along with dead body had left for his native place, but this plea taken up by learned counsel for the complainant does not find support froth the record.
5. They further admitted that they had not disclosed about the incident to any person before 15.07.2(4)2 when police recorded their statement. To say that as till 17.7.2002 police had not recorded their statements, therefore, they had no chance to disclose about the incident, has no sense therein because it is quite natural that if a person is in knowledge of such a heinous offence of murder in a house of his locality, residents of which are well known to them. it is not understandable that what, restrained to them to keep themselves quiet.
6. Learned counsel for the complainant as well as learned State Counsel have also referred statement. of Maqbool Ahmed in whose. presence. according to prosecution, appellant has admitted his guilt during interrogation but his admission of accused in presence of a police officer doing interrogation has no evidentiary value. Off and on at number of times, it, has been observed that a confession before police is no confession. Article 37 of Qanun-e-Shahadat provides that no confession made to police officer shall be proved against a person accused of any offence. Even otherwise, statement of PW-2 Maqbool Ahmad does not inspire any confidence therein, because as per his statement, appellant's mother after arrest of appellant had sent him to police station to look into the matter. As per his statement, when he went to police station, appellant during interrogation in his presence confessed about the commission of offence with the detail of motive behind that murder. Although statement of Maqbool Ahmad finds support from the statement of Investigating Officer only to the extent that on 17.07.2002 PW-2 Maqbool Ahmed was available at police station as he himself came there for his own work: But now far statement of PW-3 is reliable, can be gathered from his statement. He is the only witness, who has tried to prove motive hehind this murder. The story as set up by PW-3 makes a case of grave provocation. According to him, deceased charged appellant's sister Mst. Saima as corrupt, which provoked him. Motive. as disclosed by PW-3 does not corroborate with statement of Investigating Officer Ghulam Rasool nor it support the so called confession of appellant before Investigating Officer. .
7. It is observed in the case of Daniel Boyd (Muslim name Saifullah) and another vs. The State (1992 S.C.M.R. 196) that "if a witness is not found to be straightforward. upright, and smooth with precision all along in his version. it will be imprudent to place implicit reliance upon him.'
8. Contents of Entry No, 34 of 15.07.2002 and of FIR giving description of place of incident further creates suspicion. As per Entry No, 34 of 15.07.2002, incident took place near Rana Medical Centre, Khando Goth, Block-B, North Nazimabad, Karachi, whereas as per FIR., it took place inside house of C/3, Block "B", Khando Goth, Nazimabad, Karachi. These inconsistent pleas taken by prosecution doubts veracity of prosecution witness. as to the actual place of incident. Observation made in the case of Habib Alias Habibur Reitman and another vs. The Slate reported in 2004 YLR 206 would he relevant, stating that: "It is one of the settled provisions of law that in order to do complete justice and to ensure that real culprit may not escape legal punishment the grain is to be sifted from chaff. But if it is found that if could not be possible to sift the grain from the chaff and the testimony of a witness is not confidence-inspiring then it will be unsafe to record the conviction. In Muhammad Khan and another V. The State 1990 S.C.M.R 1220, Hon'ble Supreme Court has directed that conviction must be based on unimpeachable evidence and certainty of guilt, and that any doubt arising in the prosecution case must be resolved in favour of the accused." Besides, this confession before the Investigating Officer, confessional statement got recorded through Magistrate on 22.07.2002 has been much relied upon by the prosecution. While examining the same, it is found that confession made in 164, Cr.P.C. statement was on the basis of inducement of police to appellant that if he will confess the guilt, he will be released. It is further found that before recording 164, Cr.P.C. statement, Judicial Magistrate .being a lady, had physical examination of the appellant through Court staff and has reported that the marks of belt on back side, arms and legs were found. In her statement on oath, she has further stated that besides the marks of violence found on the body of the appellant on examination by one .of office bearer, she herself had seen the marks on appellant's arms. In view of such confessional statement with inducement of police and putting him in pressure of maltreatment. Learned counsel for the appellant has referred. the case of Asif Mahmood vs. The State (2005 S.C.M.R 515) observing that for placing reliance on confessional statement, it is well settled principle the it would not only be true, voluntary and believable butt should be without fear, favour or any inducement.
9. In rebuttal to it, learned counsel for the complainant has referred the case of Haq Nawaz and others vs. The State and others (2000 S.C.M.R. 785), but observation made therein supports the case of appellant rather than of complainant, as it is observed therein that "it is settled principle of law that the confession of accused be based even on a retract confession. If the Court is satisfied that the confessions was made voluntarily. However, as a rule of caution and prudence, Court looks for other evidence and material on record of the case to seek corroboration of the retracted confession before convicting the accused" because suspicion howsoever strong it may be, by itself cannot take place of proof unless direct of substantive evidence is available. Conviction must be based on unimpeachable evidence and certainty of guilt. Any doubt arising in prosecution case must be resolved in favour of the accused. According to learned counsels for the complainant and State, as the confession made by the appellant before the Investigating. Officer has been retraced in his 164, Cr.P.C. statement. Therefore, the same is to be believed, as in answer to a question that whether he is giving statement because of any inducement, threat or promise by police or anyone else, which induce him to make this confession, he answered "No" and again in answer to the question that what are the circumstances which are inducing him for confession, he says "my own conscious" with further detail of the motive behind that murder. But while referring these portions of 164, Cr.P.C statement, learned counsel for the complainant as well as State Counsel has ignored the statement made by the appellant that the said statement was made because he was induced that he will be released if confessed.
10. Statement under Section 342, Cr.P.C. made by appellant before the learned trial Court is also material in this context, where in an answer to Question No, 4 about confessional statement, before the Judicial Magistrate, he has, answered that "I was beating mercilessly by police and had detained my mother and sister at police station. Police had threatened and pressurized me to record my statement before Judicial Magistrate. They had threatened me to involve my inmates in false case alongwith me Magistrate had seen marks of violence on my body. My confession was not voluntarily". It is a settled principle of law that retracted confession can also be used as a corroboration piece of evidence of proving prosecution theory but that should be without fear, favour or any inducement. Reliance is placed on the case of Asif Mahmood vs. The State (2005 S.C.M.R. 515). In rebuttal, complainant has relied on the case of Muhammad Gul and others vs. The State (1991 S.C.M.R. 942), Javaid Masih us. The State (NLR 1993 SCJ 393) and Manjeet Singh vs. The State (PLD 2006 SC 30), but the principle laid down in all referred citations is that: "There is no cavil to the general rule that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particulars and the Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession but it is not an inflexible rule that retracted confession cannot be made basis of conviction without independent corroboration rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person. The law is that a retracted confession can be legally taken into consideration against the maker, if the confession is found true and voluntary and can also be use as sole evidence for conviction without any corroboration if the Court is satisfied about its voluntary character and truthfulness" In the present case besides the evidence, discussed above, it is further found that although according to prosecution, during investigation appellant himself led the police party and has produced crime weapon used by him in the commission of offence. Memo of recovery of crime weapon has been produced through PW-2 Maqbool Ahmed. Contents of this memo of recovery prepared on 17.07.2002, show that the crime weapon was produced by the appellant from the corner of a carpeted road of Nazimabad No, 7.PW Maqbool Ahmed and PC Muhammad Iqbal are mashirs of this recovery. On a query from learned counsel for the complainant as well as from learned State Counsel that as to whether place of recovery of crime weapon which is a public place having access of number of persons passing through the road can be said to be in exclusive possession of appellant, no satisfactory reply came out of their mouth but they still insisted that it was recovered on the pointation of appellant, therefore, it is a sufficient proof of guilt in against to the appellant but these arguments advanced by learned counsel for the complainant as well as State Counsel are worthless. To meet such a situation learned counsel for the appellant has referred the case of Ghularn Akbar and another vs. The State (2008 S.C.M.R. 1064) observing that the recovery of stolen property from a place not exclusively owned by appellant much reliance cannot be placed on such a recovery and it has no evidentiary value. Apart from it is not imaginable that a knife thrown two days back with no particular identification will remain there and was not e taken alongwith the garbage as normally road are daily swept. Although according to prosecution, blood, stained weapon as well as clothes of deceased worn by him at the time of incident, were sent to the Chemical Examiner and as per Chemical Examiner's Report, they were having blood stained, but report of Chemical Examiner only to the extent that the articles contained human blood, is not sufficient to meet the purpose of such examination because such report of Chemical Examiner would had been material if it would had been reported by him that the blood found on the weapon match with the blood of deceased Imtiaz Ahmed found on his clothes at the time of incident. I do find support to my view from the case of Khalid Javed and another vs. The State (2003 S.C.M.R. 1419), where in it is observed that: "Prosecution has also produced evidence of incriminating articles to connect appellants with the commission of offence i,e, recovery of crime weapons namely Churri and dagger as well as blood stained clothes. According to report of Chemical Analyser Exh. P/U the clothes were found to be stained with human blood. It is to be noted that prosecution has failed to bring on record evidence whether these articles were stained with blood but it failed to bring on record evidence whether these articles were stained with blood which matches with blood group of deceased Ghazala Naveed." In present case, in absence of any report of Chemical Examiner that blood found on crime weapon, assuming is to be used in commission of offence, match with that of deceased, prosecution has failed to prove its use in the incident of this case. Learned counsel for the appellant with reference to the statement of PW-5 has further argued that at about 3:00 p.m. while leaving the house of complainant, appellant came to the house of friend of her sister Mst. Saima and informed her that he is leaving the house as Iintiaz came to house, but Mst. Saima in her statement has not disclosed that at the time when appellant came to her to inform about his going, he had any blood mark on his clothes. If it is assumed that Mst. Saima being sister of appellant had concealed this fact, then also no satisfactory and sound evidence has been brought on record by prosecution of implication of appellant in commission of offence of this case. On the basis of hearsay evidence and unreliable statement of PW-2 and PW-4, whose 161 Cr.P.C. statement too were recorded after delay of two days without any explanation have to be ruled out of consideration. In the case of Muhammad Khan vs. Maula Bakhsh and another (1998 S,C.M.R. 570) AND Syed Saeed Muhammad Shah and another vs. The State (1993 S.C.M.R. 550), it is observed that: "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation." It is dangerous to convict a person in heinous offence of murder on an unreliable evidence.
11. Implication of appellant is also on the basis of telephonic massage received by Investigating Officer without any satisfactory proof. Even during investigation prosecution failed to bring any trustworthy evidence against appellant. In view of the foregoing reasons, I am of the view that prosecution has failed to prove guilt against the appellant. The whole case is based on hearsay and unreliable evidence with improvement from time to time with no creditability. These are the reasons for the short order announced on 04.12.2008, whereby appellant was acquitted from the charge levelled against him and the appeal of the appellant was allowed.
12. Judgment dated 23.11.2004 was set aside with release of appellant forthwith, if not required in any other custody matter.