' ASSADULLAH KHAN CHAMKANI, J.---This Criminal Appeal has been filed against the judgment dated 25-4-2013 passed by learned Additional Sessions Judge/Izafi Zilla, Qazi, Swat at Kabal, whereby the appellants, namely, Mst. Bakht Saba and Mst. Nargis, involved in case F.I.R. No, 257 dated 17-10-2012 under sections 302/34, P.P.C. Registered at Police Station, Shah Dherai, District Swat, were convicted and sentenced as under:-- ' Under section 302(b), P.P.C. To life imprisonment with fine of Rs, 20,000 each as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of deceased or in default thereof to undergo S.I. For six months. However, benefit of section 382-B, Cr.P.C. Was extended to them.
2. Brief facts of the case are that on 17-10-2012 Sher Afzal, the brother of deceased, namely, Mir Afzal, lodged a report that he and his deceased brother were residing separately. The deceased was having strained relation with his sons, namely, Gul Faraz and Ali Khan and they had gone to Kashmir in connection with earning their livelihood. He was present in his house when received information that his brother Mir Afzal had killed by his wife Saba and daughter-in-law, namely, Nasreen. Motive of the occurrence was disclosed as land dispute. The report of the complainant was written in shape of Murasilla ExPA/1 and sent it to Police Station for registration of the case and, as such, the above referred F.I.R. Was registered.
3. Dr. Fazlullah (P.W.9) examined the dead body of the deceased and prepared his report marked as ExPM. Investigation was entrusted to Muhammad Ismail (P.W.6), who recorded the statements of P.Ws. Under section 161 Cr.P.C. Mst. Nargis was, later on, also nominated as an accused. Accused Bakht Saba and Nargis confessed their guilt before Judicial Magistrate.
4. After completion of investigation, challan in the case was submitted under section 173 Cr.P.C. The accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution examined ten witnesses in support of its case. Statements of accused were also recorded under section 342 Cr.P.C, wherein they claimed innocence, however, they did not opt either to produce defence evidence or to be examined on oath as their own witnesses under section 340(2) Cr.P.C.
On conclusion of trial and from the assessment of evidence, the Trial Court found the appellant- convicts Mst. Bakht Saba and Mst. Nargis guilty of the offence; therefore, they were convicted and sentenced, as mentioned above, while Mst. Nasreen was acquitted of the charged vide the impugned judgment.
5. The convict-appellants felt aggrieved of the judgment of conviction, impugned the same through instant criminal appeal.
6. Learned counsel for appellants contended that the occurrence took place at night time and is unseen. He further submitted that there is sufficient delay in lodging of the report with n6 plausible explanation, He contended that complainant is brother of the deceased and he is also not an eye- witness of the occurrence. He further argued that the prosecution abandoned P.Ws. Raza Khan and Faizullah, therefore, withheld its best evidence. Learned counsel also expressed his dissatisfaction with confession because the appellants were speaking Pashto while the Magistrate, who recorded the confession, was Urdu speaking. According to him, the appellants were arrested on 17-10-2012 but dishonestly shown their arrest by the Police on 19-10-2012, therefore, the appellants remained for four days in police custody and the same were also retracted, therefore, it has been recorded in utter disregard of the mandatory requirements of law and, as such, it can neither be called voluntary nor true. He further submitted that both the appellants belong to fair sex were most likely to have been persuaded by police, by coercion, inducement or torture to give the confessional statements, therefore according to him, the findings of Trial Judge are based on mis-appreciation of evidence on record and has erred in relying on retracted confession. He argued that, though, a "lathi" is shown to have been recovered but the same has been planted, therefore, has no intrinsic value and cannot be relied upon as corroborative piece of evidence because according to FSL report the blood on the "lathi" was not sufficient for further examination. Learned counsel contended that the Court below has not appreciated the evidence on record on its true perspective and its findings are based on conjecture and surmises. He concluded that there are sufficient materials on the record which create doubts in the prudent mind regarding the guilt of the appellants; therefore, the convict-appellants are entitled to be extended benefit of doubts and deserve acquittal.
7. Learned A.A.-G., appearing on behalf of the State, assisted by learned counsel for the complainant, on the other hand, argued that the appellant Bakht Saba was nominated as an accused in the first report by the complainant for the killing of her husband and she also named her co-accused, namely, Mst. Nargis of having hands in the commission of offence. They submitted that both the appellants have confessed their guilt, which has also been supported by the medical report, blood stained articles, FSL report and motive. They argued that the prosecution proved its case against the accused-appellants beyond any shadow of doubt and further submitted that though there are minor discrepancies in the evidence of prosecution but the same were not fatal to the prosecution case and supported the conviction and sentence awarded to the accused- appellants. However, learned A.A.-G. Frankly admitted at the bar that the confessional statements have not been recorded in accordance with mandatory provisions of sections 164, Cr.P.C. And 364, Cr.P.C.
8. We have carefully heard the arguments of learned counsel for parties and have also thrashed out the entire record besides minutely perusing the impugned judgment passed by learned Trial Court.
9. The record reveals that complainant when appeared as P.W.10 did not support the contents of Murasilla because he stated in his examination in chief that on 17-10-2012 he received information regarding the death of his brother, namely, Mir Afzal, so, he went to the house of accused where his brother was lying dead. He further stated that he informed the Police Station, and on his information, the police came and took the accused to the Police Station while the dead body of deceased was taken to Hospital at Kabal, for Postmortem examination, subsequently, the dead body was handed over to him and he lodged report to the police, whereas according to Murasilla, S.H.O. Amir Rehman (P.W.3,) on receipt of information, visited the place of occurrence where he recorded the report of complainant Sher Afzal in shape of Murasilla. It has not been mentioned in the Murasilla that it was the complainant, who informed the police regarding the occurrence. There is also delay in lodging of the F.I.R. Because the occurrence is alleged to have been taken place at midnight while report has been A lodged at 10.15 hours on 17-10-2012. Complainant stated in his examination in chief that he received information regarding the death of his brother at 7.30/8.00 a.m whereas the distance between place of occurrence and Police Station is 10/12 k.m. There is no explanation regarding such delay. The conduct of the complainant immediately after the incident is contrary to the natural course of human conduct because he did not make efforts either to take the dead body of his brother to hospital or Police Station rather he was waiting for the arrival of police to the spot, therefore, consultation and deliberation in lodging of the report could not be rule out.
10. The story of prosecution becomes further doubtful as they did not produce Raza Khan and Faizullah, who had allegedly helped the accused while shifting the dead body of the deceased to the house rather abandoned them in spite of the fact that they were important witnesses to provide support to the case of prosecution, therefore, presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 could fairly be drawn in circumstances of the case in favour of the convicted appellants as the prosecution withheld its best evidence.
11. The only incriminating evidence in the account of appellants is their retracted judicial confession.
There is no cavil with the legal proposition that while evaluating the confessional statement main object of law is to ensure the voluntariness and truthfulness of the statement. It would be a right place to mention here that a greater duty is casted upon the Magistrate recording confession to be satisfied that such confession is voluntarily made and to that end he must make an inquiry before recording the confession. In the present case, both the appellants-convicts are female and could easily be persuaded by the police for giving such statements, therefore, on such eventuality, the concerned Magistrate was required to have shown more vigilance while recording their confessions but it is regretted to observe that no serious attempt appears to have been made by P.W.5 before recording such confessions regarding its voluntariness and truthfulness for the following reasons:-- ' Firstly, the record reveals that the appellants were arrested on 19-10-2012 while the complainant stated in his examination in chief that the police came to the spot on his information and took the accused to the Police Station. The complainant further admitted in his cross examination that on the day of report the accused were taken by the police to the Police Station at 11/12.00 hours. We have also perused Ex.P.W.4/1 vide which the police took into possession a cell phone from the possession of convict-appellant Bakht Saba belonging to deceased Mir Afzal, which shows that digit "17" has been replaced by digit "19" by making over-writing on the date beneath the signature of Sub-Inspector. The appellants in their statements under section 342, Cr.P.C. Also stated that they remained in police custody from 17-10-2012 till 20-10-2012 and were physically tortured by the police, which create doubts regarding story of prosecution in making arrest of the accused.
According to law, when a person is taken into control in a case shall be deemed to be under arrest from the date on which he submits to or is taken into custody by the Police and he cannot be detained by police for more than twenty-four hours without a special order of Magistrate under section 167 Cr.P.C. And if he is not produced before a Magistrate within the specific period his custody shall be illegal and without lawful authority. When women accused remaining in police custody for 3/4 days, then there is every possibility of having been persuaded by police by coercion, inducement or torture to give the confessional statements, therefore, such confession deserve little consideration.
' Secondly, the appellants were speaking Pashto while the Magistrate, who recorded the confession, was of Urdu speaking. Adil Mir, Judicial Magistrate, (P.W.5) in the first line of his cross-examination stated that he was not understanding Pashto and requested learned counsel for appellants to ask questions from him in Urdu. He further stated that he had not examined the accused to ascertain as to whether they were maltreated or not. He further stated in his cross examination that accused did not know Urdu while. He was not understanding. Pashto; therefore, he recorded the confessions through his Steno, namely, Sheraz, He admitted that he has not me this fact in the confessional statements. As there was complete disorder in verbal communication between the Magistrate C concerned and the appellants and even the said Sheraz has not been produced, therefore, it cannot be said with certainty that the said Magistrate satisfied himself regarding voluntariness of the confessional statements. Wisdom is sought from the case title Abdul Haleem v. The State (1984 PCr.LJ 611).
' Thirdly, according to certificates Ex.P.W.5/6 and Ex.P.W.5/3 neither the questionnaire nor their statements were read over to the appellants before obtaining their thumb -impressions on the confessional statements and the concerned Magistrate utterly violated the procedure as contained in section 164(3) Cr.P.C. According to this section, the following memorandum should be given at the foot of the confessional statement:- I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that his confession was voluntarily made. It was taken into my presence and hearing and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him."
No doubt, conviction can be based on the retracted confession alone but if it is found voluntary, true and confidence inspiring. Honourable Supreme Court in a case titled Bahadur Khan v. The State (PLD 1995 SC 336) it has been held that retracted confession has to be accepted only if it is corroborated by clear, cogent and independent evidence. Court is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true.
12. In Criminal Procedure Code, there is a specific procedure to be followed while recording the confession under sections 164/364, Cr.P.C. But in the instant case, the-Magistrate, who recorded the confession, has not fulfilled the mandatory provisions of law and even the memorandum of the confessional statements are not in accordance with the mandatory requirement of sections 164/364(3), Cr.P.C, which in the present form is not the type of evidence that could be made basis for recording conviction on a the confessional statements of the appellants-convicts are not curable and same render the confessional statements inadmissible. In the circumstances discussed above, it can safely be held that the retracted confession was not voluntary, so, no reliance can be placed on the same.
13. It is patent and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. It is now settled that a single circumstance creating reasonable doubt in a prudent mind is sufficient for acquittal of accused not as a matter of grace but as a matter of right.
' For what has been discussed above, we find that evidence led against the present appellant is not sufficient for maintaining conviction and sentence. The appellants are, therefore, extended the benefit of doubt, consequently, this appeal is allowed, conviction and sentence recorded by the learned trial Judge is set aside and the appellants are acquitted of the charge. They be set at liberty forthwith, if not required in any other case.
' These are the reasons of our short order announced on 11-10-2013.