JUDGMENT MIAN FASIH-UL-MULK, J.---Appellants Abid Ali son of Ali Farman, Tahir son of Haroon have filed Criminal Appeal No.40 of 2010 whereas appellant Saleem son of Faqir Muhammad has filed Criminal Appeal No.39 of 2010 against the judgment and order of learned Additional Sessions Judge-II, Mansehra dated 18-2-2010, whereby all the three appellants were convicted under section 302(b), P.P.C. And sentenced each to normal penalty of death with payment of, compensation of Rs. 1,00,000 under section 544-A, Cr.P.C. Payable to the heirs of deceased. The learned Sessions Judge has sent Murder Reference for confirmation of sentence. Both the criminal appeals and murder reference are disposed of by this single judgment.
2. Briefly stated facts of the case are that on 16-9-2006 complainant Khalil-urRehman's S.H.O. Of Police Station Saddar Mansehra was on gasht when at about khuftan vela' he received an information about the occurrence, on reaching spot he found a (dead body lying murdered on the road and a Taxi bearing No.3853/ADB parked near the dead body. He conducted search of the dead body and found bloodstained wallet containing an I.D. Card, driving license of deceased namely Safdar Khan son of Khalid Parvez no Potha and a sum of Rs.300. He found injuries on nose, chest right side, an injury on chest western side and. An injury on west arm near wrist having been caused with sharp weapon. He drafted murasila and sent the same through Abdul Hamid constable to Police Station for registration of case, where upon its basis case against unknown culprit(s) was registered but later on accused Abid Ali was arrested and on his disclosure about commission of offence the remaining two persons namely Tahir and Muhammad Saleem were also arrayed as accused.
3. At trial, after observing code formalities, formal charge was framed against the accused, who professed innocence and claimed trial. The prosecution in support of its case examined eleven witnesses in all.
4. On close of prosecution evidence, accused were examined under section 342, Cr.P.C., who pleaded false implication. They did not appear as their on witnesses on Oath nor produced evidence in defence. On assessm ent of evidence, the appellants were found guilty. They were convicted and sentenced as mentioned above.
5. Learned counsel for appellants mainly contended that there is no direct or circumstantial evidence which could reasonably connect the appellants with the commission of offence and learned trial court has wrongly and illegally relied upon the so-called retracted confessional statement of co-accused Abid Ali, which is neither voluntary nor true and is self-exculpatory in nature. It was also contended that no questionaire, as required by law, at the time of recording of such confessional statement has been attached by the Judicial Magistrate. It was argued that the local police kept the appellants in illegal custody for several days and were severely tortured to extort a confession favourable to prosecution. It was further argued that the recoveries shown by prosecution at the pointation of appellants were fake and fabricated. According to the learned counsel it does not appeal to mind that a person after committing the murder of some one will keep the blood-stained dagger or wear the blood-stained clothes for six/seven days so that the same may be produced/ recovered at the time of his arrest. Learned counsel went on to say that evidence produced before the learned trial Court did not justify conviction as the same is full of contradictions and discrepancies, which cast heavy doubt on the prosecution case. The charge against appellants based on prosecution evidence cannot be held proved as per requirement of law. Learned counsel concluded that prosecution has failed to prove its case beyond reasonable doubt and instead of extending benefit of doubt, the learned court has stretched the case in favour of prosecution, thus prayed for acquittal of appellant.
6. On the contrary, learned counsel for complainant argued that the trial court has considered the entire evidence in its true perspective where no material discrepancies . Or contradictions were noticed. It was argued that there is no substance in the arguments that the accused Abid Ali was kept in illegal confinement for several days as accused in his statement under section 342, Cr.P.C.
Has admitted that he was arrested on 22-9-2006. Learned counsel further submitted that if the accused alleges that confessional statement was obtained by inducement, threat or promise and, as such, it was irrelevant. Burden of proof of such allegation is on accused. Mere fact of confession being retracted does not necessarily show it being not voluntary. Learned counsel for complainant concluded that the prosecution has succeeded in proving its case beyond reasonable doubt against the appellants and learned trial court rightly convicted and sentenced them according to law. Reliance was placed on PLD 1979 Peshawar 215, 2003 PCr.LJ 1264 and PLD 1990 Pesh. 92.
7. Learned State Counsel supported the impugned conviction and adopted the arguments advanced by counsel for complainant.
8. Admittedly, it is an unseen occurrence and there is no direct or circumstantial confidence inspiring evidence, which could reasonably connect the appellants with the commission of A offence, except confessional statement of Abid Ali. As the trial court has recorded conviction of all the three appellants on the basis of confessional statement recorded under section 364, Cr.P.C.
And as the prosecution case rests upon confessional statement of one of the accused, it would be advantageous to reproduce section 364, Cr.P.C.
"364. Examination of accused how recorded.---(1) Whenever the accused is examined by any Magistrate, or by any Court other than a High Court the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or and to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his on hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(3) In 'a case in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds, to make memorandum thereof in the language of the court or in English, if he is sufficiently acquainted with latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his on hand and shall be annexed to the record. If the Magistrate is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person under section 263".
9. It is evident from record that the questionaire is not available wherefrom it could be gathered as to whether such questions or answers were recorded by learned Magistrate or not and if any questions were put to the accused making confession, what were his answers to such questions. In absence of questionaire and its answers which are part of confessional statement and mandatory in nature would make the so called confessional statement incomplete and weak evidence which cannot be safely made a basis for awarding capital punishment to three persons. The narrative part of confessional statement does not bear any time or date which is not only exculpatory in nature but also contradictory to the statement of P.W.3, who stated in his deposition " that on 22-9- 2006 accused Abid Ali son of Ali Zaman while in handcuffs led police party to his house, where in the courtyard a place looking like 'veranda' he entered along with the police party from an alcove, he took out a dagger (P1) having suspected stains of blood and produced the same to the I.O. At the time of production of dagger, he further stated that with this dagger he has committed the murder of deceased Safdar". Learned trial court while relying on a case titled Naseem Akhtar v.
State reported in 1999 SCM R 1744 held that any lapse on the administrative side on the part of a Magistrate recording a confession may not be fatal as to the evidentiary value of such confession but failed to notice that there is a proviso mentioned in the judgment of apex Court observing "provided the court is satisfied that the lapse on his part has not in any way adversely affected the voluntariness or truthfulness of the confession". (underlining is ours). Further in the instant case this was not a lapse on administrative side on the part of Magistrate but explicit violation of subsection
(1) of section 364, Cr.P.C. In the case of Bagh Ali v. Muhammad Anwar and others (1983 SCM R 1292) it was observed by the apex Court in the following words:-- "The other piece of evidence as the judicial confession having been retracted. The court had to determine whether it was voluntarily and freely given. However, the High Court found that the confession was recorded by an Honorary Magistrate in a place used by him as his Chamber as well as his court. There was no record of the usual warning being administered to the accused before time was given to him for reflection and finally the accused was given in custody of the police after recording the confession. Admittedly, the High Court found the version disclosed in confessions as contrary to the prosecution story............................... These are valid consideration for rejecting the confession as unworthy of credence and reliance."
10. In yet another case of Murtaza and 2 others v. State (1996 P Cr. L J 358), his Lordships Justice Sardar Muhammad Raza held in the following words:-- "In the circumstances, it is not believable that the accused would make a confession in the normal course. Obviously a question would arise in the mind of the court as to why at all the accused were going to make a confession. Such question was never asked by the learned Magistrate before recording the confessional statement. An answer to such question can provide many clues regarding the truth or voluntariness of the confessional statements. No such question is asked."
Before starting to take down the confessional statements, it is incumbent upon the Magistrate to remove all signs of fear from the mind of the accused. To assure this, the law requires that the accused be apprised of the fact that whether or not they make a statement before the Magistrate after their having been produced before him, they will not be handed over to police and instead be remanded to judicial custody. The manner in which the question was asked, is very material and requires to be reproduced as follows:-- "Do you understand that after making statement before me, you will not be remanded to police custody but will instead be sent to judicial lock-up?."
The very manner of the question would suggest that it gives an impression that the statement shall have to made by the accused and it is only thereafter that they would be sent to the judicial lockup and not if they do not make a statement. The question is utterly wrong and it does not dispel the fear of police in the mind of the accused. I, therefore, hold that the confessional statements were never voluntary and it bear no evidentiary value.
As the confessional statements are the only material evidence used against the appellants and as those are not voluntary, therefore, the conviction cannot be based on such solitary statements which are subsequently retracted at trial."
11. Last but not the least in the case of Khalid Javed and another v. The State (2003 SCM R 1419), their Lordships in para. 27 of the judgment observed:-- "The prosecution is left only with the recoveries of dagger and Churri Articles P.7 and P-19 and now the burden is, upon it to prove through other evidence that these articles being crime weapons were used for the murder of deceased. This could not be done without matching the stains of blood allegedly available on these articles.. One may pose a question to himself as to how would it be possible for the prosecution to match the blood group of deceased with the blood available on these articles because these articles were recovered on 28-2-1993 and 3-3-1993 respectively from appellants whereas deceased was buried on 10th January, 1993. The answer to this query is that at the time of post-mortem the concerned doctor should have got determined her blood group from Chemical Analyser for future use during investigation and trial of the case. Such practice can be adopted invariably in all the criminal cases.
Under these circumstances position would be the same with regard to the blood-stained clothes recovered from the possession of the appellants. Even otherwise it is most probable to conceive that an accused person who is allegedly involved for commission of capital charge he would try to destroy the crime weapon at the first available opportunity instead of keeping the same into safe custody for a long period so that police after arrest may use the same as evidence against him.
Similar is the position with regard to blood-stained clothes allegedly recovered from the possession of appellants. Although appellants have not disputed the fact that their clothes were blood-stained when they were shifting the dead body of Ghazala Naveed into the ambulance after the commission of the offence but it is yet to be proved by the prosecution that these are the same clothes which were stained with her blood. Be that as it may in absence of the evidence that the blood-stained clothes matched with the blood group of deceased Ghazala Naveed it would not be in the interest of justice to connect the appellants with the commission of the offence."
The principle laid down in the above-referred case applies on all four corners to the case in hand.
12. In view of the above, it appears that the prosecution has suppressed material facts and the occurrence is shrouded in mystery, as under what circumstances, in what manner, at what time and by whom the deceased was done to death. Thus, it can be safely concluded that either it is a case of no evidence or the occurrence did not take place in the manner as shown. The prosecution has failed to prove its case against the appellants beyond any shadow of doubt and by extending benefit of doubt, the appellants are acquitted of the charge.
13. Consequently, both the criminal appeals are allowed. Conviction and sentence recorded by the trial Court is set aside and appellants are acquitted of the charge. They shall be set free forthwith if not required in any other case. Murder Reference is answered in negative.