IKRAMULLAH KHAN, J.---Being aggrieved by the judgment of conviction, dated 24-7-2012, rendered thereby the learned Judge, Anti-Terrorism Court-III with Powers of Juvenile Court, Peshawar, the appellant-convict has, preferred the instant appeal before this Court thereunder section 25 of Anti-Terrorism Act, 1997 against his conviction, awarded in case No, 28/12 by the learned Special Juvenile Court, Peshawar.
2. The precisely stated facts, which giving rise to the instant criminal appeal are that;--
(i) One Bakhtiar Khan (the deceased) at 2300 hours on 16-7-2011 went out of his house, to attend the person, who rang the electric bell, outside his house, but did not came back home.
(ii) Thereupon on the following day the complainant Jehandad Khan son of the deceased Bakhtiar lodged a complaint against some unknown accused for abduction of his father, in Police Post, Civil Quarter, Peshawar, which was incorporated in daily diary at serial No, 18 accordingly.
(iii) After preliminary investigation, an FIR was registered as crime No, 407 by the local Police of Police Station EAST, Peshawar on 20-7-2011, against some unknown accused.
(iv) On 31-7-2011, the appellant-accused was arrested and after investigation, the appellant and the acquitted accused were charged under sections 365-A, 302, 201, Pakistan Penal Code, 1860 read with section 34, Pakistan Penal Code, 1860 and both the accused were committed to the Anti Terrorism Court for trial.
3. The. Learned Judge, Anti-Terrorism Court-III with Powers of Juvenile Court, Peshawar on the conclusion of trial convicted the appellant and sentence him to undergo life imprisonment, with a fine of Rs, 2,00,000 however, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
For the purpose of re-appreciation of evidence as this appeal is already admitted by this Court and in order to analyze and scan the relevant evidence, statements of important P. Ws. With precision, is recapitulated here under as;--
(i) "Jehan Dad (P.W.1) stated that on 16-7-2011, some unknown person rang up their house bell, the deceased went out to attend the call but never came back home. One of his brother since abduction of the deceased, received telephonic calls of an unknown accused demanded thereof rupees Fifty Lac for release of the deceased/abductee.
On 31-7-2011, when he was in his home, the local Police brought the appellant in custody and informed him that the appellant had killed his father and had buried him therein the Hujra.
The corpse was recovered on the pointation of the appellant therefrom the Hujra but they were not allowed to witness the proceeding of exhumation.
In his statement in cross-examination, deposed that the appellant was their servant and was being employed 3/4 months prior to the occurrence.
Further stated that he came to know, about his deceased father abduction on the following day of the occurrence as, his deceased father used to stay there in the Hujra and on the night of occurrence after offering night (Isha prayer) they went inside their residential house. Also stated that when the bell was rung, the appellant was present inside the Hujra with his deceased father.
Also stated that appellant had not made extra judicial confession before them and the demand for ransom amount was made by some unknown accused.
(ii) Zeeshan Haider (P.W.2) deposed in his witness statement that on 22-7-2011, since missing of his father some one called him from phone No, 2560016, and demanded rupees fifty lac as ransom for the release of his missing father. This demand was repeated on 24-7-2011 and 29-7-2011.
On 31-7-2011, appellant was not available in their house, when they got up, and on the following day they were informed by Police that their father was murdered by the appellant and his corpse was recovered therefrom their Hujra on pointation of the appellant.
(iii) Khan Alam (P.W.3) deposed that he was engaged in business of public call office (P.C.O.) at Ramdas. The appellant used to come to his office and used to call to a mobile No, 03219024400.
After 10/12 days Police came to his shop and took him to Police station, where he recognized the appellant.
In his cross-examination deposed that as the appellant used to make call behind the close doors, which created suspicion in its mind and as such he noticed the number called to and the appellant.
Further stated that he maintained the record of his business but such record was not handed over to Police nor it was checked by the Police.
(iv) Muhammad Saeed Khan, Inspector (P.W.8) deposed that on pointation of the appellant, during Police custody he recovered a stone (P-1), two sticks (P-2) one Genthri (P-3), one Spade (P-4), one .30 bore pistol along with live cartridges (P-5).
(v) Mehar Ali Khan (P.W.10) deposed that he endorsed the site plan, slated by one Zaman Khan (S.I).
Added thereof section 365-A, Pakistan Penal Code, 1860 thereto the FIR, as appellant had demanded ransom from P.W.2, arrested the appellant and on the same day of arrest, on his pointation, recovered the corpse (purified body) of the deceased from the Hujra of the complainant party, whereof prepared the recovery memo (PK/1), recorded proceeding of exhumation by a video camera, whereas, the appellant was present there on place of occurrence in hands-cuffs in custody of Police and other persons present over there. The CD was produced before the Court as (PD), injury sheet (P.W.10/13), sketch of the place wherefrom the dead body was recovered as (113/1). Placed on record the DATA of incoming and outgoing calls of the mobile phone used by the complainant brother (P.W.2) and the phone installed therein the PCO run by P.W.3, deposed in his cross-examination, that the digging of the soil was made by the four sons of the deceased, in presence of Jawad Javed, Shahab Ahmad and Zahoor Shah.
(vi) Malik Muhammad, Judicial Magistrate (P.W.11) who recorded the confessional statement of the appellant and reiterated what he had performed therein recording the confessional statement of the appellant.
(vii) Jawad Javed (P.W.12) deposed that in his immediate presence there in the Hujra, the appellant pointed out the place, wherefrom the dead body of the deceased was recovered and he attested recovery memo (PK/1) as a witness.
(viii) Dr. Iftikhar Ahmad (P.W.13) who deposed that he conducted post-mortem examination of the dead body and found the injuries, on the body of deceased mentioned therein the post mortem report (PM). In cross-examination deposed that the time between death and post mortem probably was 12 to 18 days and no fire arm injury was detected by him on the dead body.
4. On conclusion of the trial the learned trial Court held the appellant guilty on the basis of its confessional statement, recovery of the dead body and some articles used for excavation and dumping of the soil, wherefrom the corpse of the deceased was taken out.
5. The learned counsel for the appellant made his arguments and contended thereof that, the trial Court has not appreciated the evidence in its true perspective, as the recovery of the dead body on the pointation of the appellant is doubtful as no inmate of the house watched this so-called recovery; that the P. Ws. Are at variance on this point; that there was no proof. Of ransom amount either demanded by the appellant, as P. W.1 and P.W.2 have themselves in their Court statement have admitted that appellant never phoned them for the purpose; that on the night of occurrence, when the deceased went outside the house/Hujra, when the outside bell rang thereof, the appellant was present at the moment inside the Hujra and remained with the complainant party till 31-7-2011, when arrested on the same day by Police; that the Hujra and the house of the complainant party is adjacent and within one boundary, how the deceased was buried there in the Hujra in presence of all the inmates of the house which fact is not attractive to a prudent mind; that no fire arm injury was found on the dead body; that the confession is not corroborated by other circumstantial evidence and such like confessional statement recorded thereafter 4 days since arrest of the appellant is not free from doubt; that appellant was forced to record such statement which is inadmissible piece of evidence; that the appellant was juvenile but the whole proceeding was conducted in utter violation of the Juvenile Justice System Ordinance, 2000, which has been made all the recoveries planted against and assigned to the appellant, illegal.
6. On the other hand, the learned counsel for the complainant and the learned Law Officer made their submissions that; no interference is warranted in the judgment of conviction as, the appellant has confessed his guilt before a competent Court of law in this regard; that the corpse was recovered on the pointation of the appellant and also the articles used thereof for burying the corpse and digging the soil; that prosecution has fully succeeded in bringing the guilt of accused to home.
7. We anxiously considered the contentions of all the learned counsel and carefully perused the record with the able assistance of the learned counsel.
8. Prior to pass any finding on the merit of this appeal, it would be not out of context to give reference to various contradictions, floating therein the statement of various prosecution witnesses, and the lacunas fall thereof:--
(a) Arrest of the appellant.---The appellant was apparently arrested on 31-7-2011, on the complaint of the complainant party, when they disclosed the name of the appellant and nominated him in the case as stated by P.W.10 (Mehr Ali Police official). This statement has been contradicted by the complainant party P.W.1 and P.W.2. According to their depositions the Police brought the appellant to their Hujra in custody and informed them that the appellant had committed the murder of their father.
(b) RECOVERY OF DEAD BODY.---The dead body was recovered on the pointation of appellant in immediate presence of four sons of the deceased, therefrom the Hujra of the complainant party and they dig out the soil as stated by P.W.10 in his statement recorded before the trial Court. But this statement is contradicted by both P.W.1 and P.W.2 (the complainant party both sons of the deceased) that they were not allowed to watch over the process of exhumation, however they were told that the corpse was recovered therefrom their Hujra, buried there under the place, where the cage of pigeons was placed.
(c) CONFESSION.---The appellant in his confessional statement has not disclosed the time and date of occurrence. The offence as stated had been committed by the appellant in the house of the deceased and the appellant made fire on from back side of the deceased who fell to ground and thereafter the appellant, inflicted stone injuries on the head of the deceased, who thereafter expired on the spot and was buried there in the Hujra near the cage of pigeons and went to his house, at night son of the deceased inquired about his father, he went to the house of complainant and disclosed his ignorance of the matter and on the next day made a telephonic call to P.W.2 (Zeeshan) and demanded ransom amount of Rs, 50,00,000.
The questionnaire annexed thereto, the confessional statement is not in the hand writing of the learned Magistrate but it reveals that the learned Magistrate has subscribed it only. The certificate given by the learned Magistrate is also of the same kind, the learned Magistrate has done nothing more or less except has crossed the words occurring there as (she) (Pushto) and (English).
(d) IDENTIFICATION OF APPELLANT.---The P.W.3 had identified the appellant present therein the Police Station, after 10/12 days when the calls were made by the appellant.
This witness has not proved the fact that he owned the business of the P.C.O. Concerned. The bills placed on record to the phone number 25600165-5, was in the name of "Al-Sayed Telecom (Pvt.)
Ltd. Customer" I.D. Is 0223802560016 and the address is Durrani Call Centre c/o M. Aftab Customer Service, Near Amin Hotel, G.T. Road, Peshawar.
The particulars mentioned therein duplicate bill placed on record does not corroborate the statement of P.W.3. The record of PCO concerned has also not been produced in evidence to corroborate the version of P.W.3.
No explanation has been offered thereof by the prosecution that why the said identification was not made in the presence of a Magistrate.
(e) The complainant party though familiar with the voice of appellant, in unequivocal terms has stated that some unknown person phoned P.W.2 for demand of ransom amount.
(f) The recovery of the dead body was not conducted in the immediate presence of a Magistrate, and the prosecution has not offered good reasons for non-association of the Magistrate.
(g) The post mortem report does not substantiate and corroborate the factum of the confessional statement as no fire arm injury was detected on the corpse.
(h) The weapon of offence, recovered there on the pointation of appellant from the house of one Col. (Retired) Amanullah who was also not examined by the prosecution.
(i) The pistol recovered thereof has not been sent to Forensic Science Laboratory for the purpose, that it was in working condition.
(j) The arrest of the petitioner, cast serious doubt to the effect that the appellant was in illegal custody of Police from the first day of the occurrence and had by using 3rd degree treatment, forced the appellant to give a parrot tongue confessional statement, which has not been corroborated by other circumstantial evidence.
(k) The recovery of the dead body therefrom the Hujra is seriously doubtful as what was the compelling circumstance that the inmate of the house, sons of the deceased were not allowed to watch over the proceeding of exhumation.
9. It is also highly doubtful and not attractive to a prudent and reasonable mind that the deceased was murdered there inside the house, but none of the inmate heard the firing, noticed the digging of the soil, and there after since 16-7-2011 till 31-7-2011 did not notice the fresh soil over their in the dwelling Hujra, whereof the deceased was buried.
10.The most crucial point in the whole case is, that according to P.W.1 and P.W.2, the appellant not went outside the Hujra with the deceased and remained there in the Hujra for the whole night of occurrence, then so, the whole confessional statement become doubtful, as the deceased went out of house and never come back to the house on the night of occurrence.
11. The post mortem report also not corroborate the 'prosecution version on the point of time of death of the deceased as it has been opined therein the post mortem report that deceased was put to death within 16-18 days and deceased was medically examined on 31-7-2011 whereas the occurrence took place on 16-7-2011.
12. As far as the recovery of some Article in the shape of Gentri, spade, sticks and stone is concerned these were not helpful to the prosecution, as these items are normally available in houses and if these were not owned by the complainant party even then cast serious doubt in prosecution case, that the place of occurrence, Hujra of the complainant was visited by various Police officials right from the 2nd day of occurrence but neither the Police nor the complainant party noticed such articles though were lying openly there in the Court yard of the Hujra.
13. No any blood was detected either on the stone or the stick recovered therefrom the Hujra whereas the occurrence took place.
14. The prosecution case is full of contradiction and the manner and mode of the occurrence as alleged by the prosecution is highly doubtful and the evidence produced in support of its case is not confidence inspiring one.
15. Confessional statement is not to be accepted as a substantial piece of evidence to place conviction on it alone unless it is corroborated in each and every detail by other corroborative circumstantial evidence.
16. The Courts are always vigilant in the matter, that the prosecution shall prove in all the circumstances that the confessional statement extracted thereof, was free of all kinds of coercion, treat, promise and was voluntary. Reliance be placed on "Muhammad Parvez v. State" (2007 SCMR 670).
17. Retracted confession, shall not be accepted as a gospel truth, the Court shall carefully scrutinize such a confessional statement that whether all the formalities required thereof for recording of such statement was fulfilled by the Court, who has recorded such a statement of a juvenile accused. Reliance be placed on "Muhammad Ali v. State" (2008 PCr.LJ 87).
18. The confessional statement was recorded on the 6th day of arrest, which highly injured its credibility and cast doubt to be accepted as a confidence inspiring evidence against the appellant.
19. In case of "The State v. Kalab Ali and 2 others" (2010 GBLR 256) it was held that;-- "Before recording the confession is to provide to the confessing accused an environment of absolute freedom from all inside and outside hostile factors which cause or endue fearful consequences in his mind, in case he refuses to make it, unless all the signs of such fear as shaded from his mind the only inference to be drawn would be that it was not made voluntary, therefore, such confession would be irrelevant and inadmissible in evidence and cannot be made the sole basis for conviction for a capital charge."
In case of "Asif Zaheer and another v. State" (2010 YLR 3191) it was held that;-- "Retracted judicial confession---Courts generally refrains from basing conviction solely on retracted confession and have always sought for some reliable corroborative evidence regarding material particulars in the confessional statement."
In case of "Patoo and another v. The State" (2012 MLD 1358), it was held by the Hon'ble Balochistan High Court that:- "Where delayed retracted confessional statement of accused lacked corroboration in material aspects, and was not supported by reliable evidence or strong corroborative circumstances, intrinsic worth of the confessional statements, would remain suspicious and for such reasons, same could not form the basis of conviction of accused."
20. As far as recovery of articles allegedly used in the commission of offence, particularly the stone and the two sticks, no evidence was adduced in this regard that crime weapons were stained with human blood. Mere securing of weapon at instance of accused not a circumstance against him, thereunder Article 40 of the Qanun-e-Shahadat Order, 1984. Reliance be made on the case of "Mah Gul v. State" (2009 SCMR 4) and the case of "Muhaiyimad Jamail v. The State" (2010 MLD 1586).
21. In dispensation of criminal justice, the rock bed and elementary principle is that no one would be convicted for a crime unless his guilt was proved beyond reasonable doubt by the prosecution through reliable and legally admissible evidence. Dubious and shaky kind of evidence could not be treated as substantive evidence. To convict an accused on capital charge there shall be confirmed authentic, direct evidence, which shall appeal to logic and reason.
22. Admissibility and credibility of evidence are two different matters and one should not be mixed up with the other.
23. In the present case, the appellant was arrested, whereof the P.W.10 prepared his card of arrest on 31-7-2011 at 10-00 a.m. (P.W.10/1), interrogated the appellant and thereafter, when the appellant confessed his guilt before the Police thereafter this witness, applied thereto the Judicial Magistrate for recovery of the dead body which was denied thereof by the Judicial Magistrate, and then the D.C.O was contacted who allowed the exhumation. Certainly would have consumed enough time in this proceeding but P.W.12 has stated that the Police along with the appellant came there into the Hujra at 10-30 a.m., which is not attractive to a reasonable mind. The place of arrest is also not mentioned therein the card of arrest. Such kind of recoveries in a mechanical order always had been considered by the superior Court doubtful.
24. Such kind of information conveyed to Police by an accused in custody of Police and the recoveries made thereto in consequence of such information amounts to confession or otherwise, amount to be an admissible evidence but it has to be proved before the trial Court beyond reasonable doubt.
25. But from the analysis of the statement of P.W.10 and P.W.12, the statement given to Police by the appellant in custody, and the proceeding conducted thereafter the arrest of the appellant and the time disclosed by the P.W.12 in his statement, does not reconcile and reasonable one. Reliance may be placed on "Mst. Askar Jan and others v. Muhammad Daud" (2010 SCMR 1604).
26. It is an axiomatic and universally recognized principle of law that conviction must be based on unimpeachable evidence and certainty of guilt. In case any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance be made on the case of "Muhammad Khan and another v. The State" (1999 SCMR 1220).
27. It is also consistent view of the superior Courts that whenever doubt is floating on the surface of record, particularly in criminal cases, where accused faces trial on capital charges, its benefit must go to the accused not as a matter of grace but as of right. Reliance be made on "Muhammad Akram v. The State" (2009 SCMR 230).
28. Islam also recognized the well established principle of law that benefit of doubt shall always goes in favour of the accused and not that of the prosecution.
29. The Holy Prophet (P.B.U.H) has quoted as;- "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent, and it is better that ten guilty persons be acquitted rather than one innocent person be convicted." Reliance be placed on "Ayub Masih v. The State" (PLD 2002 SC 1048).
30. After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal filed by the appellant/convict bearing No,421-P of 2012 is allowed, the impugned judgment is set aside and the appellant is acquitted of the charges, for which he was tried, by extending him the benefit of doubt. He be released forthwith if not required to be detained in any other case.
31. These were the reasons of our short order of even date.