JUDGMENT SHER MUHAMMAD KHAN J. The dead bodies of two brothers namely Azmat All and Muhammad Ali were brought to emergency room of Civil Hospital, D.I. Khan on 6-7-2009. Another brother of the deceased Shaukat Ali, on receiving information of the incident, came to hospital and lodged the report in the shape of Murasila to Bahawal Khan S.H.O. Police Station, Cantt. At 11-30 a.m., stating therein that he was present in his home, in the meanwhile he received Information that his brothers, who were busy in their furniture shops on Bijlighar Road situated opposite to grid station, have been fired at by two unknown motorbike riders at 11-00 a.m. And are seriously injured who have been taken to Hospital. He rushed to Civil Hospital, D.I. Khan and found his brothers murdered in the hospital, who were murdered by unknown accused by indiscriminate firing with firearms. He did not charge any specific person for the murders of his brothers, however, stated that they belong to Fiqah Jafria and the occurrence is the result of religious militancy, prevailing in the area.
2. The report of complainant was drafted in shape of murasila Exh:PA/1 which was sent for registration of the case to police station, Cantt. Through Constable Muhammad Rafique No.1580.
Upon which case F.I.R. No.338 dated 6-7-2009 under section 302/34, P.P.C. Read with section 7 ATA Exh. PA was registered and the investigation of the crime was entrusted to Incharge investigation of Police Station Cantt for further investigation. Before that the S.H.O. Prepared the injury sheets and inquest reports of the two deceased, which were handed over to the doctor on duty through Constable Mumtaz No.1268.
3. The Investigating Officer visited the spot, prepared the site plan. Exh.PB, took into possession 8 empties of .9 MM bore Exhs.P-2, 3 spent bullets Exh.P-3 vide recovery memo Exh.P.W.5/2 and also recovered blood-stained through cotton from the places of deceased Azmat Ali and Muhammad Ali and all the articles were sealed into parcels Nos.2 and 3, having three stamps of A.R. On each of the parcel, which were sent for chemical examination to the FSL on the same date i.e. 6-7-2009.
The dead bodies of the deceased were handed over to the legal heirs after conducting autopsy and other legal requirements.
4. During investigation by P.W.6., on the information provided by informer of the police appellant Muhammad Maqbool alias Booli was shown to have been arrested on 17-7-2009 and after interrogation, the Investigating Officer claimed that appellant Muhammad Maqbool has not only confessed his guilt before the Magistrate but also pointed out the weapon of offence .9 MM bore pistol, which was duly recovered on his pointation and the Arms Expert report, of the same is also positive connecting appellant with the crime.
5. After completion of the investigation, complete challan was submitted against both the accused before the learned Judge Anti-Terrorism Court, D.I. Khan who after recording the prosecution evidence, statement of accused and hearing arguments of both the sides, convicted appellant Muhammad Maqbool and sentenced him to death under section 302-b, P.P.C. And 7-A Anti- Terrorism Act, 1997 each on two counts. Compensation amount of Rs.1,00,000 under section 544-A, Cr.P.C. Was also ordered to be paid to the legal heirs of each deceased and in default .Thereof simple m imprisonment for six on tihs further was awarded vide judgment/order dated 16-12-2009.
6. Appellant has challenged his conviction and sentence through the instant appeal.
7. Notices were issued to the legal heirs of the deceased, who appeared on different dates and stated at the bar that . They are not interested in pursuing the appeal filed by appellant, therefore, learned D.A.-G. Was directed to argue the case himself or appoint another State counsel.
8. Learned counsel for the appellant argued that no one is charged for the murder of the deceased in the F.I.R. The persons present, at the time of occurrence, who witnessed the occurrence, did not come forward to give number and features of the assailants. The appellant was practically arrested on 11-7-2009 and was severely tortured and kept in unlawful custody for continuous period of 6 days. Mother of the appellant filed an application under section 22-A(6) read with section 491 Cr.P.C. Before the learned Sessions Judge, D.I. Khan on 13-7-2009, where after the S.H.O.
Police Station, Cantt. D.I. Khan admitted his arrest, in case F.I.R. No.338 registered on 6-7-2009 under sections 302/34, P.P.C. Read with section 7 ATA. The application of the mother of the appellant was consigned to record room on becoming infractous, in the light of the report submitted to learned Sessions Judge, D.I. Khan by S.H.O. Police Station Cantt. He next argued that the alleged confessional statement of the appellant is the result of torture, unlawful confinement and 3rd degree methods, similarly recovery of the alleged weapon of offence, attributed to the appellant has also been procured through fictitious, illegal and manipulated manner, which could not be treated sufficient evidence for conviction on capital charge.
9. Learned State- counsel on the other hand, vehemently argued in support of the Prosecution case and defended the conviction and sentence awarded to the appellant by trial Court. He argued that the Investigating Officers had no enmity with appellant to falsely implicate him in such like heinous offence. He next argued that the eight empties of .9 MM bore were recovered on 6-7-2009 i.e. The date of occurrence and the weapon of offence was recovered on pointation of -the appellant on 20-7-2009, therefore, the positive FSL report; fully connects the appellant with the crime. He lastly argued that it was brutal murder of two innocent brothers and the investigating agency have successfully investigated the case and collected. Sufficient incriminating material against the, appellant which has been rightly believed by the trial Court, therefore, prayed that the appeal may be dismissed and conviction and sentence may be maintained.
10. We have gone through the entire record with the help of learned counsel of the parties.
11. Admittedly this is an occurrence, committed at day time in Bijlighar road opposite to grid station, where so many. Disinterested and natural witnesses were present but none, -of them provided information regarding the number of the assailants and their features. Complainant Shaukat. Ali, brother of the deceased was also admittedly away from the place of occurrence at the relevant time. The prosecution case mainly is based on the alleged confessional statement of the appellant, recovery of .9 -MM bore pistol from the house of the 'appellant on his pointation and the FSL report regarding the empties recovered from the spot on the day of occurrence, wherein it has been opined- that the same were fired with .9 MM bore pistol. If all the above mentioned pieces of evidence have been collected in accordance with law and the guidelines set forth by the apex Court, then: of course, the judgment/ order of conviction of the trial court would be based on sound footings; otherwise it will not be maintainable.
12. First of all we take the confessional statement of the appellant, recorded by Judicial Magistrate Mr. Irshad Ahmad Khan on 21-7-2009. His statement, during trial was recorded as P.W.9. Who stated that on 21-7-2009 the local police headed by Salahuddin Khan Kundi Circle Officer/ I.O. Produced accused Maqbool alias Booli before him for recording his confessional statement and after observing all the legal formalities his confessional statement was recorded and then the appellant was handed over to the Naib Court for sending him to Judicial Lock up along with Jail Warrant.
13. But in his cross-examination he admitted, "Accused Maqbool was produced before me on 21-7- 2009 for recording his confessional statement in three cases i.e. Case F.I.R. No.300 dated 7-6-2009 of Police Station, Cantt. F.I.R. No.337 dated 6-7-2009 and the instant case. Firstly I recorded his statement in case F.I.R. No.300. I might have consumed five minutes in putting questions to the accused and obtaining his answers and reducing it into writing and 20 minutes in recording his confessional statement and five minutes each in preparation of certificate and jail warrant and thereafter the accused was handed over to Naib Court. Thirty minutes time was given as a whole to the accused for thinking in all the above mentioned three cases. Naib Court was present in the Court at the time of preparation of jail warrant of accused. After recording the confessional statement of accused he was still present in the Court when in the meanwhile S.H.O. Of Police Station City along with Circle Officer came and requested that physical custody of accused facing trial should be given to him in five other cases which was allowed and the accused facing trial was taken by them from the Court Room. As the custody of accused was given to the S.H.O. Police Station City in five other cases, therefore, he was not sent to the jail and the jail warrant prepared by the Naib Court remained with him. Steno was also present in the Court at the time of recording confessional statement of accused. However, the confessional statement is not in his handwriting."
14. The attested copy of the application submitted by Mst. Dilshad Bibi mother of the appellant on 13-7-2009 under sections 22-A(6) and 491, Cr.P.C. Lodging complaint therein against the police officials of District D.I.Khan that they have arrested the appellant on 11-7-2009 from the bazaar and is in their custody without any order of the Court till 17-7-2009, which became intracfuous on 18-7- 2009 in the light of the statement of S.H.O., Police Station, Cantt. Wherein it was conceded that the appellant has been arrested by them in case F.I.R. No.338 dated 6-7-2009. The above mentioned judicial document is ample proof of the fact that the appellant was arrested by the local police on 11-7-2009 but his arrest was shown on 17-7-2009 when the matter was brought into the notice of the Court.
5. In the case of Murtaza and 2 others v. The State 1996 PCr.LJ 358 it has been held that fear of accused must be removed 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 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 honourable Justice (R) Sardar Muhammad Raza, as then he was, held that the confessional statements were never voluntary and it bears no evidentiary value because the very manner of the question would suggest that it gives an impression that the statement shall have to be made by the accused and it is only thereafter that they would be sent to the judicial lock-up 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.
16. The apex Court in the case of Muhammad Pervaiz and another v. The State and others 2007 SCMR 670 has held that the confession would not fall in the category of voluntary confession of accused when after recording confessional statement of the accused he was handed over back to police and remained for 24 hours before and after recording of the confessional statement and the Magistrate had taken only one hour to record confession of the accused.
17. The honourable Lahore High Court in the case of Hafiz Muhammad Arshad v. The State PLD 2007 Lahore 324 also held that where the accused is sent back to police custody after making confession, such a course seriously vitiates the voluntary nature of the confession and the same being doubtful therefore, has no B evidentiary value at all.
18. The above mentioned manner of recording the confessional statement of the accused/appellant, in the light of the judgments referred to above, leaves no room for any doubt that the confessional statement of the appellant was not recorded in the manner required by procedural law and is not voluntary, therefore lost its evidentiary value and is of no help to the prosecution, therefore, we have no option except to exclude it of consideration.
19. The second piece of evidence, against the appellant is the alleged recovery of .9 MM bore empties from the spot on the day of occurrence and pistol of the same bore, allegedly recovered on pointation of the appellant from his house and the positive FSL report therein. The memo of recovery of pistol Exh.P.W.6/1 reveals that the pistol Exh.P-1 and 20 live rounds were sealed into parcel No.4 containing seal of A.R., which were sent to laboratory, the FSL report Exh.PW6/5 shows that the .9 MM bore pistol number Nil was sent in Parcel No.4, which was received in laboratory on 29-7-2009 along with five .9 MM bore crime empties. The same pistol on the same day by the same Investigating Officer was recovered in case F.I.R. No.300 registered on 7-6-2009 and the same was shown to have been sealed in Parcel No.5. It does not appeal to common sense that how one and the same weapon w as sealed at the same time in two separate parcels having different numbers.
20. P.W.8. Akbar Ali DSP/CO investigation of Police Station City D.I. Khan, during cross-examination stated that he sent blood-stained earth, crime bullets and, empties of .9-MM bore to laboratory on 6-7-2009 and it was also admitted that the same were received in the laboratory on 29-7-2009 but he could not say that where these incriminating articles remained from 6-7-2009 to 29-7-2009.
Similarly, P.W.6 Salahuddin Khan Kundi Circle Officer Police Station, Cantt. D.I. Khan stated that it is correct that after arrest of accused facing trial and prior to recovery of pistol on his pointation I had not recorded his statement under section 161, Cr. It was also admitted by him that he was in knowledge about the residence of accused Maqbool prior to the recovery of pistol. P.W.7 Bahawal Khan is marginal witness. To the recovery memo Exh.P.W.6/1, who was serving as S.H.O. Police Station Cantt. D.I. Khan. He also shown the arrest of accused on 17-7-2009 and took the NIC of the accused into possession but did not prepare any recovery memo because in the NIC the address of the appellant is mentioned "Mohallah Alamsher House No.95/1, D.I. Khan". The recovery was made from a house in Basti. Dinpur, U.I. Khan. P.W.7 also in his cross-examination admitted that I was in the knowledge prior to the arrest of accused Maqbool that he has already left his abode of Mohallah Alamsher and that at that time he was residing in Basti Dinpur, D.I. Khan. Vide recovery memo Exh.P.W.6/1 the I.O. Had taken into possession one pistol .9-MM bore Exh.P-1 along with its magazine and spare magazine containing 10/10 rounds of .9 MM- bore, recovered and produced by appellant Maqbool from a white colour box, lying in residential room of his house, at a time when the appellant was handcuffed. In parcel No.4 the pistol and 20 rounds were sealed in his presence on 20-7-2009. During cross-examination' the witness was confronted with the photocopy of recovery memo Exh.P.W.6./1, which did not contain the number of parcel, which was exhibited in his statement as Exh.P.W.1/D-1, . Leading us to the conclusion that the recovery memo Exh.P.W.6./1 was tampered and the parcel number was inserted later on.
21. Under Article 40 of the Qanun-e-Shahadat Order 1984, the compliance of section 103, Cr.P.C. Is not mandatory when the place of recovery is only in the knowledge of the accused but when the I.O. Knows the place of recovery before it is disclosed to him by the accused then the compliance of section 103, Cr.P.C. Is required as held by the apex Court in the case of Muhammad Farooq and another v. The State 2006 SCMR 1707. It is also astonishing that how the appellant disclosed the place of pistol to the I.O. When by that time his statement was not recorded under section 161, Cr.P.C.
22. In absence of any direct, reliable corroborative evidence, the belated and retracted confessional statement and recoveries are only corroborative piece of evidence and not capable to bring home charge against accused.
23. Unless substantive or direct evidence is available conviction cannot be based on any other type of evidence how convincing it may be. Guidance has been sought from the judgments of the apex Court delivered in the cases of Mah Gul v. The State `2009 SCMR 4, Bahader Khan v. The State PLD 1995 Supreme Court 336.
24. In the light of above stated factual and legal aspects we do not agree with the findings of the learned trial Court to uphold the conviction of the appellant, therefore, we accept the appeal of the appellant, set aside the judgment/order dated 16-12-200% and acquit the appellant of the charges levelled against him. He be set free forthwith if not required in any other case.
25. As we have accepted Criminal Appeal No.129 of 2009 and have set aside the conviction of appellant through detail judgment of today, therefore, the Murder Reference No.14 of 2009 is answered in negative.