' DOST MUHAMMAD KHAN, J.---This single judgment shall also decide connected Criminal Appeal No,98 of 2011 entitled "Shahid v. The State and another", Criminal Appeal No,81 of 2011 entitled "Ibrahim v. The State and another" and Criminal Revision No,51 of 2011 entitled "Syed Akbar Ali Shah v. Shahid and 3 others" not only because all these appeals/revision have arisen out of the same judgment but common question of law and facts is involved therein.
2. At a trial, held by the learned District and Sessions Judge Mardan, upon conviction vide impugned judgment dated 28-1-2011 appellant of this appeal namely, Taj Wali Shah, was handed down death sentence while appellants of the connected appeals namely, Shahid and Ibrahim Khan, were awarded life imprisonment with a fine of Rs,1,00,000 each or in default to suffer further six (6) months' S.I. All the appellants have questioned their conviction and sentences through separate appeals, mentioned above, while the learned trial Judge has sent Murder Reference No,4 of 2011, seeking confirmation of death sentence of Taj Wali Shah. Similarly, Syed Akbar Ali Shah has also tiled the aforementioned revision, seeking enhancement of the sentences of the appellants on the ground mentioned therein.
' Arguments heard and record perused.
3. While making report in the Casualty Ward of Civil Hospital Mardan, Syed Akbar Ali Shah (P.W.3) alleged that on 16-12-2009 at 12:00 noon he along with his deceased son, Faheem, and newly married bride of his son Mst. Neelam, and his own wife Mst. Azwaj Bibi were going in motorcar No, 6564-LRM, driven by Shahid, appellant, to attend the lunch arranged by the parents of Mst. Neelam, his daughter-in-law, and when they reached near Takia road, the car was stopped by the driver and two persons namely, Taj Wali Shah and Ibrahim, appellants, emerged. Appellant Taj Wali Shah was armed with pistol, who brought down his deceased son, Faheem, while co-appellant Ibrahim caught hold of him and the former fired at him, as a result, he was hit and died and the accused decamped from the spot. He further added that the two appellants had once earlier come to their house to meet his deceased son and the driver Shahid was talking on cell phone with someone.
Motive for the crime shown in categorical words in the F.I.R. Was that Taj Wali Shah, appellant, was suspecting the deceased of maintaining illicit relation with his sister. While concluding the F.I.R., he stated that Shahid, driver, was guilty of abetment of the crime.
4. The occurrence, per murasila report Exh.PA/1, took place at 12:00 noon while report is shown at 12:35 hours in the hospital, any how, the case was registered in the police station at 13:20 hours vide F.I.R. No, 367 by Police Station Toru Mardan under sections 302/324/404/109, P. P. C .
5. During inspection of the crime spot two crime empties of .30-bore Exh.PA were secured vide memo. Exh.P.W.6/1. Similarly, blood was collected through cotton vide memo. Exh.P.W.6/2.
6. The second story/theory projected by the local police is that at 12:15 hours an ASI of Police Station Hoti Mardan allegedly intercepted car No,6564/LRM white colour because he had earlier received call from the SHO that the accused had escaped in the car and they be intercepted. Appellants Taj Wali Shah and Ibrahim were arrested. It is further alleged that from the possession of Taj Wali Shah one .30-bore pistol with fitted silencer and one cell phone china made were recovered. Ibrahim was. Shown to be on the driver seat. This incident took place at 12:15 hours while report in the shape of murasila Exh.P.W.10/2 was made at 12:45 hours. Recovery memo Exh.P.W.10/3 was prepared in this regard while photo copy of the site plan under section 13 A.O. In case F.I.R. No, 854 police station Hoti Mardan is Exh.P.W.10/4. The F.I.R. Is Exh.P.W.10/5. It has come in the evidence and also evident from the arrest card that Shahid appellant was arrested on the same day outside the civil hospital Mardan and across the road, from a taxi Stand i,e, at few yards from the hospital, where the police have recorded the report of the complainant.
7. The two appellants Taj Wali Shah and Ibrahim were given by Police Station Hoti to Police Station Toru and they were arrested in the murder case on 18-12-2009, however, there is no record that why they were kept in custody along with the crime weapon by the other police station for two (2) days when from the very beginning the ASI who arrested them was knowing that they were involved in the murder case and were required by Police Station Toru.
8. Thereafter, on a printed pro forma three (3) days police custody in addition to the prior three (3) days was obtained from the Judicial Magistrate Mardan which was repeated and it was on the 6th day of the occurrence that Taj Wali Shah and Ibrahim were produced before Asim Riaz (P.W.12)
Judicial Magistrate, Mardan, where Ibrahim refused but Taj Wali Shah allegedly made confession Exh.P.W.12/1. The arms expert report Exh.P.W.13/5 is received in positive, showing that the two crime empties were fired from the crime pistol.
9. At the conclusion of investigation, charge-sheet was filed in the trial Court where the prosecution examined thirteen (13) witnesses in all, however, one of the important witness i,e, Mst. Neelam, widow of the deceased, was dropped at the trial for no plausible reason.
10. As in this case the ocular account of Syed Akbar Ali Shah (P.W.3), father of the deceased, and Mst. Azwaj Begum (P.W.4), mother of the deceased, has important role to play, therefore, we will take it for consideration in the first instance.
11. The former in the very examination-in-chief made dishonest improvement, with an attempt to patch-up the weak points like, he disclosed for the first time that Shahid, appellant, was driver of the in-laws of the deceased. He admitted that prior to the occurrence, the two appellants namely, Taj Wali Shah and Ibrahim, had come with accused Shahid to his house at Peshawar to meet his deceased son. He admitted that he had not stated in the report that he had enquired about the names of the appellants from Shahid and the latter told him their names. He admitted that he did not produce "Nikah Nama" or any other proof like invitation card that the marriage of Mst. Neelam had taken place with the deceased prior to the occurrence. He disclosed that they were carrying in the car sweets but those were not recovered by the police and also the two crates of fruits. He showed ignorance as to whether Shahid accused was arrested by the police in the hospital at the time when he was making the report and that the dead body was shifted to the hospital in a Suzuki Pickup. While handling the dead body, their hands and clothes were stained with blood and the SHO taking the report might have noticed the same but that was not mentioned in the F.I.R. He admitted that he has not explained the inter se connection/relation of the accused and their address nor the point from where they emerged on the spot. He admitted that the motive incident was relating to appellant Taj Wali Shah. He also admitted that none from the in-laws were produced.
' He also admitted that he and his deceased son was having no enmity with appellant Ibrahim and Taj Wali Shah before the occurrence. Making departure from his earlier statement, he stated that it was at the time of occurrence that Shahid told him the names of the two other accused and that Shahid accused was the driver of the in-laws of the deceased and the motorcar also belonged to them. He further added that the addresses of the two co-accused were given to him by accused Shahid and he did not know that whether Shahid was present with him while he was making the report.
12. The other eye-witness namely, Mst. Azwaj Begum (P.W.4), the mother of the deceased, stated that when they reached the crime spot, the driver stopped the car, who was earlier interacting on cell phone with someone. Shahid, accused, got down from the motorcar while the two co-accused brought down the deceased from the car, took him to some distance and after catching hold of him by Ibrahim, Taj Wali Shah fired at him with a pistol, resulting into the death of her son. They raised hues and cries as soon as she took the deceased in her lap, a Suzuki pickup came there and they shifted the dead body to the hospital.
' During cross-examination, she admitted that her statement was recorded in her house at Peshawar and that too 2/3 days after the occurrence. With the improvement, she had introduced in her examination-in-chief, she was confronted but she could not explain or give reason for the same. Unlike her husband, .She stated that only 2 KGs sweets were with them and not 4 KGs and also omitted the carrying two crates full of fruits. She added that she never accompanied the I.O.
To the spot nor point out the site plan position. She was not knowing about the make, colour and shape of mobile set phone, Shahid was using during the journey. She admitted that she did not know the addresses of the accused as they were not knowing to them and even at the time of report, the names and addresses of the two appellants namely, Taj Wali Shah and Ibrahim, were not known to them nor their names and addresses were mentioned in the report and probably the police by itself discovered and ascertained the same. She did not know about the location, the road. Adopted for journey and the vicinity where the crime took place. Deposing in double tones, she first stated that the in-laws of the deceased reached the hospital after one hour but realizing the fatal mistake, she reduced the same to 10/15 minutes. She even admitted that the names of the two appellants were not told by her to the police in her statement under section 161, Cr.P.C. And later on she came to know about their names. She further stated that it was never disclosed to the police that Faheem was suspected by Taj Wali Shah, maintaining illicit relation with his sister. She Further stated that they did not consult each other to charge Taj Wali Shah, Shahid and Ibrahim, however, the two were arrested by the police and they were made accused. She reconfirmed that the names addresses of the two appellants were not known to them and it was the police, who ascertained the same.
13. Imtiaz Shah, F.C. (P.W.5) admitted that accused Shahid was arrested in front of the hospital where the report was lodged. He is witness to the recovery memo. Exh.P.W.5/1 and Exh.P.W.5/2 through which the crime empties and blood was secured and also memo. Exh.P.W.5/3 through which .30-bore pistol and three (3) live rounds in separate parcels were taken into possession along with the memo. With regard to the motorcar Exh.P.W.5/4. In further cross-examination, he disclosed that the pistol etc. Were handed over to the I.O. By Muharrir of Police Station Hoti. He admitted that the case property i,e, motorcar was not present in the Court to exhibit it. Same is the statement of Qadar Nawab, ASI (P.W.6).
14. Zahir Shah, SI (P.W.8), who recorded the murasila report, admitted that although in the F.I.R. He has mentioned sections 302/324/ 404/109, P.P.C. But in the injury sheet, prepared at the same time, only section 302, P.P.C. Was mentioned.
15. Mian Shakeel Ahmad, ASI (P.W.10) stated that on 16-12-2009 he was informed by SHO Police Station Hoti Mardan that after committing the crime in the limits of Police Station Torn at Takia road, the accused decamped in the motorcar bearing No,6564-LRM, hence, he laid a barricade in front of the police station and stopped the car, arrested the accused and effected the recoveries from them. In the cross-examination he denied the suggestion that the arrest was falsely shown by him and why his two constables have been made witnesses to the recovery memo, being his subordinate belonging to the same police station.
16. Zaka Ullah, FC (P.W.11) is marginal witness to the recovery memos. With regard to the car, .30- bore pistol and cell phones recovered from the two appellants, however, in the cross-examination, he admitted that on both sides of the spot where they made the arrest of the two appellants, there are shops and houses and he signed the recovery memo. In middle of the road. He added that it was 12-30 p.m. When he signed the recovery memo. And he was unable to read and explain the contents of the recovery memo Exh.P.W.10/3.
17. Asim Riaz (P.W.12) Judicial Magistrate stated that he recorded confession of Taj Wali Shah, who was produced before him on 22-12-2009 at 11:30 hours and he gave thirty (30) minutes time to the accused to think over it.
' In the certificate, it is squarely mentioned that the accused, after spending thirty (30) minutes, was summoned to the Court and because he was willing to confess thus, dictated his confession to the KPO and it was recorded by the KPO on computer. Same was the case of the Certificate and questionnaire which are on printed pro formas.
18. The words "he was summoned to the Court after thirty (30) minutes" appear very alarming because it strongly suggest that when accused Taj Wali Shah was first produced, he was given thirty (30) minutes to ponder over the matter and was given back to the police, taken out of the Court room otherwise, summoning again the accused to the Court was never required, if in case he was kept there for thirty (30) minutes inside the Court, providing him friendly atmosphere to regain courage and to shed out all fears from his mind, the police had infused in his mind, but it is very strange rather shocking that after remaining six (6) days in police custody, he was given only thirty
(30) minutes time and that too, as it appears from the certificate, he was sent out of the Court and was re-summoned again on expiry of thirty (30) minutes time. This is no way of recording confession of an accused in a murder case because once accused in a murder case is entrusted to the custody of Magistrate, the Magistrate is required to clear his Court Room from all the police officials/officers in uniform or in plain clothes and the accused be provided chair and dice, also disclosing to him that he was in the safe and secure hands of the Magistrate and shall not entertain any fear of the police also infusing into him courage and confidence and providing assurance that in case he did not make a confession, he would not be handed over back to the police. Simply filling of printed pro forma or dictating such important matters to the KPO is not a faithful obligation under the law because the Magistrate has shown highly irresponsible attitude while dealing with such sensitive matter and has violated the clear instructions of the High Court, contained in the High A Court Rules.
19. In the confession, Taj Wali Shah, appellant, stated that he was having friendly relation with Shahid co-accused, the driver of the in-laws of the deceased, and that Shahid accused had fallen in love with Mst. Neelam but Mst. Neelam was married to the deceased which caused irreversible shock to him. He further stated that on the day of occurrence, Shahid phoned him that he was bringing deceased Faheem and Mst. Neelam, his newly wedded wife from Peshawar; thus, he accompanied him while going towards Peshawar. He told me about the plan that he will bring the car on Takia Road, would park it on the road side and then they both would jointly kill Faheem (the deceased) by faithfully fulfilling their mutual friendship obligation. Shahid gave a pistol to appellant, Taj Wali Shah, for accomplishing the job. Further confessed that on return when they reached Takia Road (crime spot), Shahid got down from the car and informed the former through phone time by time. At this stage, Ibrahim met him and being friend of Taj Wali Shah he too without reluctance joined the killer and accompanied him to the spot and when the car, carrying the deceased and Mst. Neelam, was spotted there, they went to the car and brought down Faheem.
Shahid accused told deceased's identity to them and asked to faithfully perform the friendly obligation by killing him, therefore, Taj Wali Shah fired shots with pistol at Faheem, which was given to him earlier by Shahid while Ibrahim caught hold of deceased, as a result Faheem died on the spot. He then asked Ibrahim to drive the car and when they were in transit, they were arrested by the police of another police station. If one goes through the statement of the accused made before the police, the confession with little variations seems to be copy of the said statement of the accused and why we are of the considered view that the Magistrate has indulged in careless dispensation of justice while performing such important duty and recording confession of an accused in a murder case.
20. So far as the ocular account of the above two witnesses is concerned, besides suffering from many infirmities, dishonest improvements and because both have made departure from the story of the F.I.R. And being mutually inconsistent, we have no hesitation to hold that both the said witnesses were not present with the deceased when he was done to death and in fact they were setup false eye-witnesses at a later stage by the police, and why the police managed to take the F.I.R. In the hospital because Faheem died on the spot and in all probabilities his dead body should have been taken to the police station instead of hospital.
21. The long history of precedent case law contains caution and warning note that F.I.R. In a murder case lodged at the crime spot or somewhere else outside the police station is always suspicious, giving rise to an inference that it was arranged deliberately to procure the witnesses and to setup them false eye-witnesses. Moreover, active concealment of true facts and by way of distortion, both the so-called eye-witnesses have corrupted their testimony while deposing on oath at the trial. In addition thereto, their testimony clearly comes in conflict with, the confessional statement of accused Taj Wei Shah besides a different story is given with regard to the mode of occurrence and the motive for the crime but also presence of both the witnesses have been excluded, therefore, we entertain no amount of doubt to hold that both the eye-witnesses were not present with the deceased when he was killed thus, the ocular account, being absolutely unreliable and of no legal worth, is discarded and disbelieved.
22. Now we are left with the confession of accused-appellant, Taj Wali Shah. As earlier discussed, the Magistrate, who recorded the confession, gave only thirty (30) minutes time for pondering over the same which was not at all a reasonable time because of six (6) days long duration of police custody of the accused but the most fatal blow given to it is the entries made in the certificate issued under section 364, Cr.P.C. Which squarely speaks that after giving thirty (30) minutes time to the accused, he was sent out of the Court. In all probabilities, he was given back in custody of the local police because he could not be let free without handcuffs to stay away from the Court for thirty (30) minutes. In this way even the little pre-caution, observed in the first round, was put to waste when the accused was given back to the police for thirty (30) minutes whereafter he was re- summoned to the Court, therefore, in our view, the confession cannot be held to have been made voluntarily by the accused under the given circumstances. Moreover, the story tailored therein appears to be traditional chicanery of the police. How much deep intimacy existed between Shahid and Taj Wali Shah, appellants, when the later readily agreed to kill an innocent person on account of friendship with the former and because for the cause and annoyance of co-accused Shahid as Taj Wali Shah was attributed no personal motive in the F.I.R. That the deceased was suspected of having illicit relation with his sister. No man of a little sanity on the earth would opt for such brutal killing of an innocent person for the cause of another simply on the ground of friendship and when Shahid co-accused himself was having the motive to kill the deceased in view of the facts mentioned in the confession then, how such job was entrusted to Taj Wali Shah, appellant.
23. The autopsy report Exh.P.M. Would show that both the entry wounds were having charring marks thus, a legitimate inference could be that the deceased was fired at from a distance of nine (9) inches at the most because in view of the medical jurists charring marks range in the case of pistol could be caused only from distance of nine (9) inches which is the maximum range. This would lead to another inference that probably an inmate of the car sitting on the next seat had fired at the deceased from a very close range, causing charring marks around both the entry wounds.
After he was killed, the dead body was thrown out of the car and the car was driven away. This would also cut the prosecution case from the root level because once the deceased was brought down from the car and was caught hold of by co-accused Ibrahim, who was not party to the conspiracy at the preparatory stage to commit the crime but as has appeared in the statement, he abruptly gave company to Taj Wali Shah accused while his close intimacy/unbreakable friendship with Shahid, is still a mystery.
24. In the site plan the distance shown between points Nos.2 and 4 is five (5) feet which is much beyond the range of charring marks, therefore, there is a sharp conflict between the medical evidence, the site plan position and the confession of the accused.
25. In the case of "Imran Bashir Farooqi v. The State" (1990 PCr.LJ 677) the Hon'ble Federal Shariat Court has held that judicial history presents abundant warning against danger of placing too much reliance on uncorroborated and retracted confession in a case involving capital punishment.
26. There is another intriguing aspect of the case which shall not go unnoticed because the murder occurrence took place at 12:00 noon the SHO might have got information at least half an hour later but it is strange enough and absolutely unbelievable that he passed on information with a bullet speed almost at 12:00 noon or five (5) minutes thereafter to Mian Shakeel Ahmad, ASI (P.W.10) that the two accused namely, Taj Wali Shah and Ibrahim, had escaped towards the side of Police Station Hoti and within fifteen (15) minutes at 12:15 hours they were intercepted and arrested with the crime weapon, cell phone and the car. This appears to be a concocted story being the result of dishonest investigation. No man of little prudence on the earth would believe that Shahid, the principal initiator of the crime, at whose behest the tragedy was enacted, accompanied the dead body to the hospital and was arrested there and then while Taj Wali Shah and Ibrahim drove away the car. If he was indeed the mover of the tragedy, he would have definitely accompanied the two co-accused in the same car but he opted to accompany the so-called eye-witnesses and the dead body to the hospital albeit, it was clearly mentioned in the F.I.R. That he was actively involved in the crime.
27. It is yet to be proved that the car belonged to whom because there is only oral evidence that it was belonging to the in-laws of the deceased but no one from the in-laws appeared to own the same or Shahid as their driver of the car, being their employee. So much so that even Mst. Neelam was dropped at the trial on account of sickness with no medical certificate produced in the Court to substantiate the plea thus, legitimate to draw an inference must be that the in-laws of the deceased were not ready to support the pattern of the charge levelled against the accused by the complainant as they were suspicious about its truthfulness and correctness.
28. Once the confession is rejected, being unnatural, clashes with ocular account and not fairly corroborated through trustworthy and unimpeachable corroboratory evidence, no capital punishment can be awarded on such retracted confession because of the rule B of caution and warning and also of prudence exercised in the administration of criminal justice. Similar view was held by the Hon'ble Supreme Court in the case of "Bahadur Khan v. The State" (PLD 1995 SC 336).
29. It also runs counter to natural human behavior and conduct that accused Taj Wali Shah opted to travel in the car of the deceased in-laws, holding in his hand the crime weapon, knowing well that there are always police check posts as well as numerous "Nakabandees"/barricades on roads in the area where all incoming and outgoing vehicles are checked. The crime spot is situated at a lonely place surrounded by fields with standing crops and when there was none to prevent them then, why the two co-accused did not adopt that route being more safe and secure enough to make good their escape and why they tagged the car and pistol with them, carrying a dangerous incriminating evidence alongside, to be used against them at the trial thus, this appears to be a tailored and concocted story to provide false support to the already discarded unbelievable ocular account, moreso, when these recoveries were witnessed by no public witness albeit, the same were effected in a busy bazaar area surrounded by shops and houses.
30. In the case of "Gulistan etc. v. The State" (1995 SCM R 1789) it is held that dishonest preparation of F.I.R. By the Investigating Officer, the Court shall remain on guard. It was further held that the entire prosecution evidence in a case of this nature shall be appreciated with great care and caution, lest an innocent person might not be sent to gallow.
31. Once we have disbelieved the mode and manner of recoveries and the arrest of the appellants in the above stated manner then, on this account alone the arms expert opinion where the pistol and the crime empties were sent with six (6) days delay also could not be relied upon and is discarded.
32. Judged from all angles and keeping in view the combined study and careful reappraisal of the entire evidence in the above manner, we are of the considered view that the prosecution has failed to prove the guilt of all the three (3) appellants beyond any shadow of doubt thus, extending them the benefit of doubt, they deserve acquittal from all the charges.
' Needless to remark, as held by the apex Court, that it is not bundle of doubts but only one doubt if found reasonable, would entitle an accused person to acquittal.
' Accordingly, this and the connected appeals, mentioned above, are allowed. Conviction and sentences of the appellants namely, (1) Taj Wali Shah, (2) Shahid and (3) Ibrahim Khan, recorded by the learned trial Judge vide impugned judgment dated 28-1-2011 are set aside and they are acquitted of all the charges levelled against them. They be set at liberty forthwith, if not required in any other case. The Murder Reference, sent by the trial Judge for confirmation of death sentence of one of the appellants namely, Taj Wali Shah, is answered in the negative while criminal revision, for enhancement of sentences of the appellants, has become infructuous and is dismissed.
' These are the detailed reasons for our short order of the even date. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.