' AFTAB AHMED GORAR, J.---By this single order 1 propose to dispose of abovesaid two Criminal Miscellaneous Applications filed under section 561-A, Cr.P.C. As in both the applications, same common order has been challenged. Through these Applications the applicants Muhammad Shahid Khattak and Rizwan Khan have impugned the order dated 19-4-2012 passed by Special Judge Anti-Corruption (Provincial) Karachi whereby she disagreed with the report submitted by police under section 173, Cr.P.C. And took cognizance of the alleged offence against the applicants.
' Precisely, the facts giving rise to the filing of instant applications are that F.I.R. No,8 of 2010 was lodged by one Muhammad Farooq Awan under sections 161/34 read with section 5(2) Act-II of 1947 against the present applicants and otheRs, ' The Assistant Director (E) DACE, Karachi submitted report under section 173 Cr.P.C. For disposal of the case. However, vide order dated 6-10-2011 the learned Special Judge did not agree with the said report and directed for submission of final charge sheet against all the accused persons. The said order was challenged in Criminal Miscellaneous Application No, 412 of 2011 and vide order dated 11-4-2012 this Court set aside the order dated 6-10-2011 and directed for passing fresh order on the final report within the four corners of law.
' The learned Special Judge vide order dated 19-4-2012 again disagreeing with the report under section 173, Cr.P.C. Took cognizance against the accused persons including the present applicants, hence this Criminal Miscellaneous Application.
' Learned counsel for the applicants contended that learned trial court has erred in law and facts while passing the impugned order; that no trap was conducted and case was registered without trap proceedings; that neither any permission was accorded by the competent authority (Anti- Corruption Committee-II) for registration of the case nor any sanction advice of the competent authority for challan of the applicant was obtained, as such the entire exercise of taking cognizance is without jurisdiction; that when the case has been decided to be dropped with the approval of competent authority, the learned trial court cannot take another view. In support he relied upon the cases reported in PLD 2002 Karachi 464 and 1989 PCr.LJ 1361. He prayed for setting aside of the impugned order and quashment of the proceedings against the applicants.
' Conversely, learned A.P.-G. Supported the impugned order contending that the learned trial court was not bound to accept the report under section 173, Cr.P.C. And had the powers to take cognizance.
' I have heard the arguments advanced by the learned counsel for the applicants as well as learned A.P.G. And perused the material available on the record.
It is now well settled that Magistrate is not bound by the report IA submitted by police under section 173, Cr.P.C. And he may or may not agree with the conclusions reached by Investigating Officer.
Nothing was provided in section 190, Cr.P.C. To prevent a Magistrate from taking B cognizance of case under clause (b) of section 190, Cr.P.C. In spite of police report The Magistrate was only required by law to apply his independent mind to the material placed before him and form his own C opinion about the matter. If any case-law is needed reference may be made to 2005 PCr.LJ 560 and 2004 PCr.LJ 1023.
So far as the contention that no trap raid was conducted and case was registered without trap proceedings is concerned, suffice it to refer to Annexure P/3 to the Criminal Miscellaneous Application which is a letter dated 10-8-2010 written by 1st Civil Judge and Judicial Magistrate, Malir, Karachi which shows that he was deputed to supervise the trap proceedings and accordingly on 9-8-2010 he associated with Mr. Abdul Aleem Bullo, Assistant Director (Executive), Directorate of ACE, Karachi arrived at the pointed place along with the complainant and mashirs and when ACE police party along with the Magistrate rushed towards Anwar Balouch Hotel firing started from inside the hotel. The Magistrate and others rescued themselves and after stoppage of firing Ass istant Director ACE dropped him at District and Sessions Court Malir. During such firing one Raja Anwar was injured and accordingly F.I.R. No, 360 of 2010 was lodged at Police Station Airport. In this view of the matter, contention of the learned counsel is totally devoid of force.
As regards the contention of the learned counsel that no permission and sanction advice was obtained from the competent authority, it may be pointed out that initially the applicant filed Criminal Miscellaneous Application wherein he had challenged, the order of the Special Judge whereby she disagreed with the report under section 173, Cr.P.C. And ordered Director ACE to direct the I.O. To submit final charge sheet against the accused persons. In the said Application no such ground was taken and only grievance of the applicant was that although the learned Special Judge had; powers to take cognizance, however she could not issue direction for submitting challan. Said application was disposed of with direction to pass fresh order within the four corners of the law and accordingly the learned Special Judge while declining the report under section 173, Cr.P.C., took cognizance in the matter. I do not find any irregularity or illegality in the said order.
' The case-laws relied upon by the learned counsel are distinguishable. In PLD 2002 Karachi 464 the contention was that loduing of F.I.R. Against a civil servant at a local police station in presence of Anti-Corruption police station was without jurisdiction, while in the present case F.I.R. Lodged at Police Station ACE Karachi. In 1980 PCr.LJ (sic) point was whether Public Prosecutor without the orders of the Court under section 10(4) of Act-II, 1947 could withdraw the case against the accused, whereas there is no such point in the instant case.
For the foregoing reasons, I do not find any irregularity or illegality in the order passed by the trial court which is accordingly upheld and Criminal Miscellaneous Application, being devoid of merits, is dismissed in limine.
Application dismissed. Before Syed Muhammad Farooq Shah, J The STATE---Respondent Criminal Jail Appeal No,S-206 of 2003, decided on 20th December, 2012.
DOULAT-Appellant
(a) Criminal Procedure Code (V of 1898)--- ----S. 164---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd--- Confessional statement--- Handing over of accused to same police officer---Accused was convicted and sentenced by Trial Court on the basis of retracted confessional statement---Validity---After recording of confessional statement, Magistrate sent the accused to judicial custody through same police officer who brought him for confession---Such act of handing over accused to same police officer had detracted from sanctity of judicial confession as voluntariness of judicial confession which was essential prerequisite, had become doubtful in circumstances. [p. 228] A Muhammad Pervez and others v. The State and others 2007 SCMR 670, Muhammad Ibrahim v. The State PLD 2000 Kar. 128 and Abdul Haleem y. The State 1984 PCr.LJ 611 rel.
(b) Penal Code (XLV of 1860)--- ----S. 302(b)---Criminal Procedure Code (V of 1898), S.103---Qatl-eamd---Appreciation of evidence---Benefit of doubt---Motive, proof of--Recovery--Accused was convicted on the basis of retracted confessional statement and he was sentenced by Trial Court for committing Qatl- eamd---Validity---Two different version of motive were taken by prosecution, first motive of causing murder was that deceased being uncle of accused had developed illicit relations with his wife and when accused found them in objectionable condition, he caused murder but his wife ran away and wife of accused was not examined by prosecution to support the version of motive--- Another motive as disclosed by prosecution witnesses was that there was criminal case prior to the incident, in which deceased was involved in murder of a female relative of accused but nothing had been brought on record in such respect--- Both Mahirs/marginal witnesses did not support Mashirnama of place of occurrence, arrest and recovery; there was also non-compliance of S.103, Cr. P.C. As police did not examine any inhabitant of locality to witness recovery, arrest and place of incident etc.---Even single doubt was sufficient for extending benefit to accused---For extending benefit of doubt, it was not necessary that there should be many circumstances creating doubt and if there was one circumstance which could create reasonable doubt in a prudent mind about guilt of accused, then accused was entitled to benefit not as a matter of grace and concession but as a matter of right---High Court set aside conviction and sentence awarded to accused and he was acquitted of the charge, as prosecution failed to prove the case---Appeal was allowed in circumstances. [p, 229, 231, 232] B, E & F Iftikhar Ahmed Dar and another v. The State 1997 PCr.LJ 2026, Sobho and 2 others v. The State PLD 2004 Kar. 8; Muhammad Arif v. The State 2005 YLR 1065; Bullando and others v. The State 2011 PCr.LJ 1682; Liauat Ali v. The State 2008 SCMR 95; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Muhammad Arif v. The State 2010 SCMR 1122; Muhammad Rafiq v. The State 2009 YLR 1279; Saeedullah alias Bacha v. The State 1988 PCr.LJ 19; Falak Sher v. The State 1989 PCr.LJ 2107; Muhammad Abbas v. The State 2007 YLR. 45; Allah Ditta v. The State 2006 PCr.LJ 84; Muhammad Nawaz and another v. The State 2009 PCr.LJ 506; Muhammad Ramzan and another v. The State 2009 PCr.LJ 533; Muhammad Pervaiz v. The State 2006 PCr.LJ 221; Khalid Mehmood and others v.
The State 2011 SCMR 664 and Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.
(c) Criminal trial--- ----Motive of enmity---Scope---Enmity is double edged weapon if prompts one to cause harm to his adversary, the same can be a factor with other to rope in him falsely. [p. 231] C
(d) Criminal trial-- --Benefit of doubt always favours accused. [p. 231] D Miss Nasira Shaikh for Appellant.
Shahzada Saleem Nahyoon,A.P.G. For the State. Date of hearing: 20th December, 2012.
' SYED MUHAMMAD FAROOQ SHAH, J.---Vide impugned judgment, pronounced on 20-10-2003 by learned Sessions Judge, Mirpurkhas (Muhammad Iqbal Arain) in case Crime No,92 of 1993, registered at Police Station Kunri, the appellant Doulat was convicted for an offence punishable under section 302(b), P.P.C. And sentenced to suffer R.I for life, he was also directed to pay an amount of Rs,50,000 as compensation to the L.Rs, of deceased Mir Hassan, in case of default in payment of compensation, accused will have to suffer R.I for period of six months more, however he has been given behefit as provided under section 382-B, Cr.P.C. Being aggrieved and dissatisfied by the impugned judgment, the appellant Doulat submitted jail appeal against his conviction and prayed for justice and mercy. It is a hand written appeal transmitted to this Court by Superintendent Central Prison, Hyderabad along with letter No,J.B/17590, dated 31-10-2003.
2. Perusal of the impugned judgment and available record transpires that conviction of the appellant was recorded by the learned Sessions Judge, in view of the retracted confessional statement by the appellant and on sole testimony of P.W Lal Bux.
3. While proceeding with the case in hand, it would be appropriate to narrate the prosecution story which-starts from the report lodged by complainant Yaro at P.P Talhi on 31-12-1993 which was subsequently incorporated in 154, Cr.P.C., book wherein he has stated that on 31-12-1993 at about 0500 hours one Saleh Gurgage r/o Water Course No,15, informed him that at 8-30 p.m. Doulat (appellant) committed the murder of his cousin namely Mir Hassan alias Mir, who was a shepherd, by causing hatchet blows to him in the land of Leemon, near the houses and further informed the complainant that he was sent by Rasool Bux to inform him about the incident. On such information, complainant proceeded to the place of occurrence and foufid dead body of Mir Hassan having hatchet injuries on his head, back and other parts of the body. It is alleged that complainant proceeded to the police station and lodged report. The motive given by the complainant in the F.I.R.
Was that earlier deceased Mir Hassan alias Mir had committed murder of Mst. Nabeela, the relative of accused Doulat, Malook and Akbar about 6/7 years back and that case was pending in the Sessions Court, Mirpurkhas and apart from this, the accused was suspecting the deceased Mir Hassan to have illicit terms with his wife.
4. After the registration of F.I.R., the police started investigation and on completion of usual investigation, submitted challan in the Court. Charge was framed on 30-1-1995, wherein accused pleaded not guilty and claimed to be tried. In support of its version, prosecution examined as many as 10 witnesses and thereafter, prosecution closed its side by producing chemical expert's report.
Statement of accused has also been recorded under section 342, Cr.P.C. And in his defence, he has examined DW's Muhammad Ayoub and Gul Muhammad and thereafter, learned defence counsel closed his side.
5. It appears that learned trial Court by appreciating the prosecution evidence awarded conviction.
The appellant is continuously inside the jail since last more than thirteen years, without remission.
6. I have considered the arguments advanced by Miss Nasira Shaikh, learned counsel representing the appellant and Mr. Shahzada Saleem Nahyoon, learned A.P.-G. For the State and have also carefully perused the material available on record and the case law cited from both the sides.
7. Learned counsel for the appellant at the very outset contended that there is inordinate delay in lodging the F.I.R. And the confessional statement of appellant was recorded after six days which has no. Material value in the light of settled case-law of the superior Courts. Regarding the confessional statement, learned counsel submitted that the Magistrate has not followed the necessary steps permissible under the law, which appears from his statement. Learned counsel further emphasized that there is only evidence of prosecution witness namely Lal Bux who allegedly saw the accused while committing the offence, in the torch light, which is also a weak type of evidence as held by the superior Courts. She has further emphasized that complainant is not the eyewitness of this case and he was informed by P.W. Rasool Bux about the alleged incident.
Learned counsel further argued that both the marginal witnesses of mashirnamas did not support the prosecution. Mashir Shah Muhammad (Exh.12) has been declared hostile and co-mashir could not be examined by the prosecution due to his death, therefore, it is a case without substantial evidence. She has also pointed out the lacunas in medical examination including duration. Learned counsel has placed reliance on the cases reported as Muhammad Pervez and others v. The State and others (2007 SCMR 670), Muhammad Ibrahim v. The State (PLD 2000 Karachi 128), Iftikhar Ahmed Dar and another v. The State (1997 PCr.LJ 2026),- Sobho and. 2 others v. The State (PLD 2004 Karachi 8), Muhammad Arif v. The State (2005 YLR 1065), Bullando and others v. The State (2011 PCr.LJ 1682), Liauat Ali v. The State (2008 SCMR 95), Mehmood Ahmed and 3 others .v. The State and another (1995 SCMR 127), Muhammad Arif v. The State (2010 SCMR 1122), Muhammad Rafiq v. The State (2009 YLR 1279), Saeedullah alias Bacha v. The State (1988 PCr.LJ 19), Falak Sher v. The State (1989 PCr.LJ 2107), Muhammad Abbas v. The State (2007 YLR 45), Allah Ditta v. The State (2006 PCr.LJ 84), Muhammad Nawaz and another v. The State (2009 PCr.LJ 506), Muhammad Ramzan and another v. The State (2009 PCr.LJ 533) and Muhammad Pervaiz v. The State (2006 PCr.LJ 221).
8. On the other hand, learned A.P.-G. Supported the impugned judgment delivered by learned Sessions Judge, Mirpurkhas and contended that sole testimony of a single witness is sufficient to award the conviction and in this respect he has placed reliance on two citations of Supreme Court reported as Khalid Mehmood and others v. The State (2011 SCMR 664) and Allah Bakhsh v. Shammi and others (PLD 1980 SC 225).
9. To ascertain the legal sanctity attached to the confessional statement, one has to follow the wisdom and guidelines as laid down by the superior Courts, which in this case is found not available. The learned trial Court accepted the confessional statement of the appellant recorded by Magistrate though it appears that trial Court has misread the cross-examination of Magistrate Malik Javed (Exh.11), wherein he has admitted that he has not mentioud that he had informed the accused that he was a Judge and F.C.M. Further stated that, "It is correct that even after the accused was brought again before me after relaxation time, I have not informed the accused that I was Judge and F.C.M till I had completed about five questions. It is correct that I have recorded my first question in English and its answer as given by accused was also recorded in English language. It is correct that I had written all my questions in English language which I had put to the accused. It is correct that I had not mentioned in the body of confessional statement that I had put to accused questions in Sindhi and then recorded in English. A.S.-I. Mehmood left the Court premises after handed over accused to the Court. I had sent the accused to judicial custody through the same A.S.-I."
10. Confessional statement (Exh.11-B) reveals that all questions were recorded in English and their replies are in Sindhi.
11. Suffice to say that in view of the admission of the Magistrate that after recording confessional statement, he sent the accused to judicial custody through same police officer who had brought accused to A him for confession, such act of handing over accused to same police officer had detracted from sanctity of judicial confession as voluntariness of judicial confession which was essential pre requisite had become doubtful, as held in the case of Muhammad Ibrahim v. The State (PLD 2000 Karachi 128). Unexplained delay of six days, is fatal to acceptance of judicial confession. In the case of Muhammad Pervez and others v. The State (2007 SCMR 670), a full Bench of honourable Supreme Court (Shariat Appellate jurisdiction) held that "Delay of over 24 hours would normally be fatal to acceptance ,of judicial confession and prosecution failed to explain the delay in recording of confessional statement."
12. Aforementioned statement of Magistrate shows that he has not followed the mandatory requirement for recording the confessional statement under section 164(3) of Cr.P.C. In a D.B.
Citation reported as 1984 PCr.LJs611, Karachi, in the case of Abdul Haleem v. The State, a procedure for recording the confessional statement is provided, which should be followed by all Magistrates at the time of recording confessional statement. It would be advantageous to reproduce the relevant part of the judgment for guidance of all Magistrates to follow the directions at the time of recording confessional statement:- "Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. Before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously, with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for their guidance. Magistrate would be well-advised to follow the procedure which is given below:- "As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following question should be put to him:-
(i) For how long have you been with police?
(ii) Has any pressure been brought to bear upon you to make confession?
(iii) Have you been threatened to make confession?
(iv) Has any inducement been given to you?
(v) Why are you making this confession?
(vi) Have you been maltreated by police?
After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such question to him, as are given in the printed form and then he should proceed to record his confession in verbatim".
13. As far as the motive is concerned, two different versions have been taken by the prosecution.
The first motive of causing the murder of Pir Bux was that deceased being uncle of appellant developed illicit relations with his wife Moraan and when accused found them in objectionable condition, he caused murder of Pir Bux but his wife ran away. Mst. Moraan has not been examined by the prosecution to support the version/motive. Another motive as disclosed by the prosecution witnesses is that there was a criminal case prior to this incident, in which the deceased was involved in murder of Mst. Nabeela, the relative of accused but nothing has been brought on the record in this respect.
14. Both the mashirs/marginal witnesses did not support the mashirnama of place of occurrence, arrest and recovery and moreso, there is also non-compliance of section 103, Cr.P.C. As police did not examine any inhabitant of the locality to witness the recovery, arrest, place of incident etc. And the learned counsel for the appellant agitated benefit of doubt due to inordinate delay in lodging the F.I.R, contradictory evidence of prosecution witnesses as well as on retracted confessional statement, as discussed supra.
15. In view of the prosecution' evidence and circumstances mentioned above, no legal sanctity is attached to the retracted confessional statement particularly lacunas in prosecution evidence creates doubt and always fatal to the prosecution, which facts rather illegalities have been admitted by the Magistrate who recorded theconfession. Mashir of recovery, arrest and other memos did not support the prosecution case and admittedly there remains only evidence of P.W.
Lal Bux without independent corroboration, therefore, his evidence is to be evaluated cautiously.
16. P.W. Lal Bux (Exh.7) stated that "On 30-12-1993 at 8-30 p.m. I was present at my house, I heard cries from the side of Toorio crop of Lemoon. I went there I saw present accused, he inflicted hatchet injuries to deceased Mir Hassan who fell to ground. Again says that accused Doulat had already felled deceased by giving hatchet injuries. I did not go near the accused, I then went to Rais Rasool Bux and informed about the incident. I then returned to my house. In the morning I heard that Mir Hassan fell by giving hatchet injuries. Police recorded my statement on 31-12-1993.
My 164, Cr.P.C. Statement was recorded before Civil Judge & FCM, Umerkot on 6-1-1994, I produce it as Exh.7-A. It bears my signature. Accused present in Court is same."
17 . In his cross-examination, P.W. Lal Bux stated that "he cannot say whether night was dark or there was moon light. Further stated that other people of the village did not come to the place of wardat and he had seen the accused from the distance of one acre and did not go near to him due to fear. He has categorically stated that except accused and deceased Mir Hassan no body was present at the place of wardat." He has further deposed in cross-examination that "after informing Rasool Bux he returned to his house and went to sleep and his statement was recorded under section 161, Cr.P.C. At Police Station Kunri when accused was already in custody of police. He has further admitted that in the morning he came to know that Mir Hassan was murdered and he was informed by one Yaroo complainant." He produced his statement recorded under section 164, Cr.P.C. On 6-1-1994 (after six days of incident) in which he has stated that he saw the occurrence in the torch light while committing the murder of Mir Hassan. In this view of the matter, the credibility of this witness is highly doubtful, worth no confidence, therefore, the citations relied upon by learned A.P.G. Are not attracting in the circumstances of present case.
18. It is settled proposition in law that benefit of every doubt is to be resolved in favour of the accused. So, the motive setup by the prosecution in this case is not such thing that it necessarily be viewed alone in favour of prosecution. It rather, equally could be with the complainant party to involve them. The prosecution could not use the motive part of its story to corroborate its ocular account. The background of enmity definitely existed between the parties. Anyhow, enmity is a double edged weapon it prompts one to cause harm to his adversary and the same also can be a factor with other to rope in him falsely.
19. Suffice to say that the Trial Court while attending the plea of the appellant/accused facing trial by reading the evidence may judge credibility and demeanor of the witnesses in view of the principle that every person is presumed to be innocent unless proved guilty. On reappraisal of the evidence on record a different view may be drawn with regard to manifest wrong, perversity or uncalled conclusion from facts provided on record, as material evidence has been misread blatantly to an extent that miscarriage of justice has occasioned. The appellant has served almost more than half of the awarded sentence, though there was No sufficient corroboratory evidence brought by the prosecution on record to award him conviction.
20. In view of above, I reached at the irresistible conclusion that there are sufficient lacunas in the case of prosecution and it is settled that ID benefit of doubt always favours the accused. It is not attracting to prudent mind that after seeing such heinous offence of brutal murder, a person without informing other inhabitants of the locality or to his Nekmard or to his family and friends, can easily sleep it his house. The story narrated by prosecution witness Lal Bux appears to be concocted and is not inspiring confidence, therefore, on his sole testimony conviction could not be recorded. The learned trial Court has seriously erred to examine the deficiencies and lacunas 'in the case of prosecution as it is settled that even a single doubt is sufficient for extending benefit to the accused.
21. For what has been discussed above, it is settled that for E extending benefit of doubt it is not necessary that there should be many circumstances creating doubt and if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. as discussed above, in the instant case there are sufficient circumstances which create doubt upon the prosecution case. the conviction cannot be recorded merely on probabilities and prosecution has to prove its case beyond any shadow of doubt, which the prosecution has miserably failed to prove in the instant case. Resultantly, the appeal is allowed and the conviction and sentence awarded to the appellant is set aside. The appellant is in jail. Office is directed to issue release writ. The concerned Superintendent Jail is required to release the accused/appellant forthwith, if not required in any other case.