' SHAH JEHAN KHAN AKHUNZADA, J.---This appeal is directed against the judgment dated 29-1-2010 passed by the learned Additional Sessions Judge/IZQ-IV/Juvenile 'Court Swat, whereby the appellants namely Fazal Maula and Ghulam Muhammad were convicted under section 302(b), P.P.C. And each of them was sentenced to life imprisonment and to pay compensation of Rs,200000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to suffer further six months each. They were also convicted under section 404, P.P.C. And sentenced to one year each with a fine of Rs,5000 each or in default thereof to suffer three months' S.I each. The sentences were ordered to run consecutively. However, benefit of section 382(b) was extended to both the appellants.
2. The facts forming the background of the case are that on 25-6-2006 at 10-25 hrs Akhtar Jamil complainant brother- of the deceased namely Jamraiz Khan reported the matter to the police on the spot to the effect that his brother deceased Jamraiz Khan was working in Karachi and was living there with his family membeis since long and used to visit. Swat once a year during the summer season. About one month ago he left his family member at Karachi and' came to Swat all alone and was residing in his house situated in village Koza Banda in the vicinity of Police Station Kabal District Swat. He received information early in the morning today that his brother has been murdered by someone. On receipt of this information he went to the land of Bahramand where he found his brother lying murdered in pool of blood, who was fired at by unknown accused with fire arm as a result of which he was hit on the front of his chest towards right side and on the back side of his head. His deceased brother has, got no enmity with any one and the occurrence might have been seen by someone. He further stated that after his satisfaction, he will charge the culprit/culprits.
3. Subsequently on 8-7-2006 i,e, after 12/13 days of the occurrence which had occurred on 25-6- 2006 or before, the complainant Akhtar Jamil recorded his statement under section 164, Cr.P.C.
Before the Civil Judge-III/IQ Kabal, wherein he charged the present two appellants for the murder of his deceased brother Jamraiz Khan. Later on both the appellants were arrested in the case, out of whom appellant Fazle Maula allegedly made confessional statement before the Judicial Magistrate on 10-7-2006 and some recoveries were affected by the I.O. At his pointation.
4. The appellants, on completion of investigation, were challaned to the Court for trial. The copies of the relevant documents as required under section 265-C, Cr.P.C. Were supplied to them and thereafter both the appellants were formally charged separately on account of being Juvenile to which they pleaded not guilty and claimed trial.
5. In order to prove its case against both the juveniles, the prosecution examined as many as eight witnesses in each case out of whom P.W.3 is Dr. Ismail who has conducted the autopsy of the death body of Jamraiz Khan: deceased, P.W.5 is Akhtar Jamil complainant; P.W.7 is Muhammad Ghawas Khan, S.H.O. Investigating Officer and P.W.8 is Tariq Abass Khan, Judicial Magistrate Peshawar who had recorded, the alleged confessional statement of the accused Fazle Maula.
6. After closing of the prosecution evidence in both the cases in which they were tried independently, appellants were examined under section 342, Cr.P.C. Independently and both the appellants in their statements recorded under section 342, Cr.P.C. Pleaded innocence and denied the allegations made out against them. However, neither they opted to give statement within the, meaning of section 340(2), Cr.P.C. Nor opted to produce defence evidence.
7. The learned trial Judge after appraisal bf the evidence on record and hearing the learned counsel for the parties convicted arid sentenced the appellants through impugned single order and judgment referred to above impugned herein in this appeal.
8. We have heard the learned counsel for the parties and have gone through the record with their valueable assistance.
9. The prosecution had produced eight witnesses in, all P.W.1 is Dawood who is marginal witness to the recovery memos Exh. P.W.1/1 vide which the I.O. Had taken into possession one Rifle, 32 Cartridges, one Mobile set. He is also the marginal witness to the recovery memo Exh. P.W.1/2 regarding the place of occurrence pointed by appellant Fazle Maula. P.W.2 Muhammad Iqbal is a marginal witness to the recovery memos Exh. P.W.2/1 to Exh. P.W.2/5. P.W.3 is Dr. Ismail, Medical Officer who had conducted autopsy on the dead body of the deceased Jamraiz Khan. P.W.4 Muhammad Ayub had recorded the report of the complainant in shape of Murasila Exh.PA. He had also prepared the injury sheet Exh. P.W.4/1 and inquest report of the deceased and had sent the Murasila to the police station for the registration of the case through Iftikhar Hussain F.C., Akhtar Jamil complainant had appeared as P.W.5 and reiterated the same 'story as stated by him in the Murasila Exh.PA. P.W.6 is Iftikhar P.O who is the marginal witness to the recovery memo: Exh. P.W.6/1 and 6/2. Muhammad Ghawas Khan S.H.O. Appeared as P.W.7. He is the Investigating Officer of the case. This witness got recorded the statements of the complainant as well as Rahmatullah son and Mst. Zulaikha Bibi widow of the deceased recorded under section 164, Cr.P.C. Before the Magistrate on 8-7-2006 and 15-7-2006 respectively. He also prepared the site plan Exh.PB and had also effected recoveries of different articles, recorded the statements of the P. Ws. Under section 161, Cr.P.C. And produced the appellant Fazle Maula before the Judicial. Magistrate for recording his confessional statement and has also obtained the FSL report. Last witness of the prosecution is Tariq Abass Khan Judicial Magistrate (P.W.8) who has recorded the alleged confessional statement of the appellant Fazle Maula.
10. The evidence produced by the prosecution as discussed above reveals that no ocular evidence is forthcoming on record against both the appellants and the entire prosecution case in which both appellants were tried separately on account of being Juveniles, hinges upon the retracted alleged confessional statement of Fazle Maula appellant, recovery of crime weapon, Rifle, 32 cartridges and one mobile set at his pointation and positive FSL report and the trial Court after placing reliance upon the recoveries of the different articles from the spot, recovery of Rifle, mobile set and recovery of crime weapon i,e, Pistol at the pointation of the appellant Fazle Maula, positive report of Arms Expert in respect of empties and the Pistol as the crime weapon, the statement of the complainant Akhtar Jamil- brother of the deceased recorded during the investigation and the confessional statement of Fazle Maula appellant, convicted and sentenced both the appellants and awarded . The punishment details of which have been mentioned in the earlier part of this judgment.
11. We would like to appraise and appreciate the above mentioned pieces of evidence one by one to see, as whether the prosecution has become able to prove its case against the appellants or not: First of all we will take up for discussion the statement of the complainant Akhtar Jamil who appeared as P.W.5 before the trial Court. Since he.Is not eyewitness of the, occurrence therefore, his evidence is of no use to prosecution. Moreover, he had charged none in the F.I.R., but had charged, both the appellants for the murder of his deceased brother in his statement recorded under section 164, Cr.P.C. After about 12/13 days of A the occurrence and for this belated statement he has neither furnished any plausible explanation nor had disclosed source of his satisfaction. Hence, this belated statement without plausible explanation for it in the absence of disclosure source of satisfaction has totally lost its evidentiary value therefore, the same cannot be relied upon..
12. Thereafter, we would like to appraise and thrash out the retracted alleged confessional statement of appellant Fazle Maula recorded by Tariq Abas Judicial Magistrate P.W.8 consisting of three pages Exh.P.W.8/1 to 8/3 to see as to whether the same is inculpatory, voluntary and true and had been recorded by the said Magistrate after fulfilling the requisite formalities for recording aforesaid statement of the accused/appellant and thus the same can be safely relied upon for warranting conviction of the appellant or not. Bare perusal of the statement of the appellant Fazle Maula recorded by P.W.8 in shape of confessional statement shows that the same is exculpatory in nature. Moreover, the learned Magistrate P.W.8 had totally/completely failed to observe and fulfil requisite formalities required for recording confessional statement of accused on account of the following reasons:-
(i) The learned Magistrate has failed to give sufficient time to the said accused/appellant for pondering over his guilt before recording his statement.
(ii) He has failed to give 'him second and third warning before recording his statement.
(iii) The said Magistrate has also failed to award the said accused an opportunity to meet his counsel or relative.
(iv) Moreover, inspite of the fact that the appellant Fazle Maula told the said Magistrate that 'the police had for turned him but even then he recorded his statement in shape of confession and it is also not mentioned in his certificate under section 164 read with 364, Cr.P.C. That the accused/appellant was not handed over to the said police officer who produced him before the said Magistrate fbr recording his confessional statement after recording his confessional statement for remanding him to judicial lockup. So in view of the above legal infirmities and non- fulfilment of requisite formalities the so called confessional statement of the accused/appellant recorded by Tariq Abass Judicial Magistrate P.W.8, being exculpatory, and retracted cannot at all be called as voluntary judicial confession in the eye of law and thus the same has no legal effect and in this view of the matter the learned trial Court has wrongly and illegally placed reliance on it for warranting conviction of accused/appellants and thus the conviction of the appellants so recorded on the basis of the above illegal, unjustifiable and, unwarranted confession of the trial Court is not at all sustainable, and is liable to be set aside.
13. The third piece of incriminating evidence with the prosecution is the recovery of crime weapon i,e, Pistol, at the pointation of appellant Fazle Maula. But perusal of the evidence produced by the prosecution leads us to draw an inference that the so called recovery of the crime weapon at the pointation of accused/appellant Fazle Maula is not at all established because prosecution has itself admitted in its evidence that the said-Pistol was produced by brother of appellant Fazle Maula and at that time the appellant Fazle Maula was not present. Thus in this view of the matter prosecution has failed to establish recovery of Pistol i,e,, crime weapon. At the pointation of appellant Fazle Maula beyond reasonable doubt. Hence, the so called recovery of the Pistol i,e, crime weapon is of no consequence and as the prosecution has failed to establish the recovery of crime weapon at the pointation of appellant Fazle Maula, hence positive FSL report in this regard seems totally fabricated and maneuvered, on which no reliance can be placed.
14. The last piece incriminating evidence with prosecution is the recovery of Rifle 32 cartridges and mobile set at the pointation of Fazle Maula. If for the sake of arguments we believe that these articles were recovered at the pointation of appellant Fazle Maula, even then the same are of no use to the prosecution because the prosecution has failed to prove through reliable evidence that those articles were the belongings of the deceased as no such evidence in shape of identification of those articles from the complainant or close relative of the deceased at proper identification parade conducted by competent authority is forthcoming cm record. So in the light of above discussion we are of the considered view that prosecution has totally failed to establish its case against both the appellants beyond any reasonable shadow of doubt.
15. Consequently, this appeal is allowed, conviction and sentence of Fazle Maula and Ghulam Muhammad awarded to them by the learned Additional Sessions Judge/Izafi Zilla Qazi-IV, Swat by his single impugned judgment and order dated 29-1-2010 are set aside and both the appellants are acquitted from the charges levelled against them. They are set at liberty forthwith if not required in any other case.
' The above are the reasons of our short order announced on 20-9-2012.