' CH. MUHAMMAD IBRAHIM ZIA, J. --- The titled appeal has been filed from the judgment of the Shariat Court dated 30.11.2012, whereby the appeal filed by the appellants against the judgment of District Criminal Court Bhimber, dated 30.12.2009, has been dismissed.
2. The facts precisely stated are that a case under Section 302, A.P.C. was registered at Police Station Chowki on the complaint of Mst. Shakeela Anjum. It was reported that on 23.02.2004, Zeeshan Ayub, son of the complainant, left home and did not turn up. On 24.02.2004, at 7.00 a.m., Master Khurshid informed her through his son that the dead-body of Zeeshan Ayub was lying at the place known as "Garyala-Dagala". During investigation, lmran s/o Suleman, Ghaffar s/o Abdul Ghani, Abdul Khaliq s/o Sadiq, Sajid s/o Mohammad Saleem and Irfan s/o Akhtar Hussain were apprehended by the Police. They were interrogated. The accused, Irfan was found guilty for committing the murder while rest of the accused were given benefit under Section 169, Cr.P.C. by the Police.
3. After completion of investigation, the challan was presented in the Trial Court against the said accused. Feeling dissatisfied with the investigation, Muhammad Ayub, father of the deceased, filed a private complaint against lmran sio Suleman, Ghaffar s/o Abdul Ghani, Abdul Khaliq s/o Sadiq, Sajid s/o Muhammad Saleem, Sughar Bibi wife of Suleman and Anayat Ali. The Court took the cognizance of the offence and started proceedings in the private complaint against the accused given benefit under Section 169, Cr.P.C. while keeping pending the proceedings on the report submitted under Section 173, Cr.P.C., against the accused Irfan Akhtar.
4. In the challan case, the sole accused, Irfan Akhter, was acquitted by the Trial Court vide judgment dated 12.10.2004 which order was set aside by the Shariat Court vide judgment dated 21.4.2005 with the direction to the Trial Court to dispose of the challan case alongwith the complaint case simultaneously, after recording evidence in both the cases. But despite this direction the Trial Court continued proceedings in the complaint case and finally disposed of the complaint vide judgment dated 30.7.2005 by convicting the accused Imran, Ghaffar,Abdul Khaliq and Sajid accused, while imposing upon them 14 years' imprisonment, each whereas the accused Sughran Bibi and Inayat Ali were acquitted of the charge while extending benefit of doubt.
Consequently, both the parties filed separate appeals before the Shariat Court. The learned Shariat Court vide judgment dated 20.2.2007 while setting aside the conviction order and quashing the proceedings conducted in the complaint case on 21.4.2005 once again reiterated the earlier direction dated 21.4.2005 for disposal of the cases simultaneously. A further appeal was filed before this Court which was disposed of vide judgment dated 20.3.2009 with the direction to the Trial Court to record evidence of the parties in the challan case and then dispose of the case keeping in view the evidence already recorded in the complaint case. On remand of the case, in the challan case sole accused Irfan Akhter who was already acquitted by the Trial Court could not be brought before the Court, thus, the proceedings under Section 512, Cr.P.C., were initiated vide order dated 11.5.2009. Thus, to his extent till his arrest, the challan case was kept pending and consigned to record while in the complaint case, the accused were acquitted of the charge vide order dated 30.10.2009. The appellants filed an appeal before the Shariat Court. The learned Shariat Court while concurring with the findings recorded by the Trial Court through the impugned judgment dismissed the appeal, hence, the instant appeal has been brought before this Court.
5. Mr. Zulfiqar Ahmed Raja, Advocate, the learned counsel for the complainant appellants argued the case at some length. His sole focus remained on the point that the Trial Court has violated the directions of the Shariat Court as well as this Court while conducting the proceedings. after remand of the case. Neither complete evidence has been recorded in the challan case nor after completion of the proceedings the accused has been examined under Section 342, Cr.P.C. Thus, due to gross departure from the procedural statutory provisions, the whole proceedings are illegal and liable to be quashed. He vehemently stressed that while accepting this appeal, by quashing the proceedings the case may be remanded to the Trial Court for conducting the proceedings according to the statutory provisions in the light of directions of the Shariat Court as well as this Court. On merits, he advanced the sole argument that once the Trial Court convicted the accused- respondents on the basis of some evidence, subsequently, without any major development the acquittal of accused on the face of it, is illegal. Therefore, the judgments of the Courts below are not sustainable and liable to be quashed.
6. Mr. Mehmood Ahmed, Additional Advocate- General owned and supported the arguments advanced by the learned counsel for the complainant.
7. Conversely, M/s. Abdul Majeed Mallick and Arahad Majeed Mallick, Advocates, the learned counsel for the accused-respondents while defending the impugned judgment submitted that the argument of the learned counsel for the appellants is misconceived. The Trial Court has conducted the proceedings according to the instructions of the Court. Both the times the instructions given by the Shariat Court in this case appear to be contrary to the previous settled principles of law that when regarding the same incident, before the Trial Court, in addition to challan case, a private complaint is filed, the proceeding will be conducted in the private complaint while exonerating the challan case with the complainant. Whereas in the instant case, novel direction has been given for recording the evidence in challan case as well as private complaint which on the face of it amounts to adversely affecting the principles of administration of justice and create confusion and contradictions in the case. It is further argued that as in the complaint case the evidence has already been completed, the statements of accused under Section 342, Cr.P.C. were recorded, moreover, the accused also produced the defence evidence including the police officials who conducted the investigation, whereas in the challan case, the sole accused was Irfan Akhter who has absconded and his case is consigned to record till his arrest. Thus, neither any prejudice is caused to the prosecution nor in this perspective there was any err or the legal requirement to record the statements of the accused recorded under Section 342, Cr.P.C. afresh. For the sake of argument if at all it was necessary, it is the accused who as to raise this objection and not the prosecution or the complainant It is further argued that the complainant has himself failed to prove any case against the accused-respondents. The prosecution story is self-contradictory, lacking any legal evidence, thus, the acquittal of the accused in this state of affairs, is quite in accordance with law. So far as the argument of learned counsel for the appellants that on the basis of same evidence previously the accused were convicted, is concerned, the same was set aside by the Appellate Court, thus, it shall be deemed non-existent. There is no legal bar for the Trial Court on remand to differ the previous judgment rather the Trial Court has to pass fresh order after proper appreciation of evidence according to law, hence, the Trial Court has rightly done the same while acquitting the accused. Both the Courts below have passed the orders after due appreciation of the material brought on record.
8. We have paid our utmost attention to the respective arguments of the learned counsel for the parties and carefully examined the record. The main argument of the learned counsel for the appellants that after recording the evidence the fresh examination of the accused under Section 342, Cr.P.C. was necessary, appears to be misconceived. In the complaint the whole proceedings were completed in the first round of litigation.. A direction was given for recording evidence in the challan case which was not against the accused party which was not against the accused who are party in this appeal rather sole accused was Irfan Akhtar who has absconded and the case against him is consigned to record till his arrest, therefore, the question of recording fresh statement under Section 342, Cr.P.C. does not arise.
9. Another important legal proposition raised from both sides relates to the procedure for conducting the proceedings in the challan case and private complaint regarding the common incident. In the present case although the incident is one and the same but the sets of accused is different. In challan case the sole accused Irfan Akhtar is the complainant witness in the complaint.
Keeping in view this peculiar feature of the case as in complaint the proceedings were already completed, whereas due to acquittal of sole accused, Irfan Akhtar, before completion of the whole prosecution evidence in challan case, initially the Shariat Court and subsequently this Court directed for recording of evidence and completion of proceedings in the challan case which is a proper course of law in the peculiar circumstances of this case. As it has been mentioned hereinabove that the challan case due to absconsion of the sole accused, Irfan Akhtar, is consigned to record till his arrest, thus, the Trial Court was left with no option except to proceed with the complaint case independently. Although, according to settled practice and procedure, when there are challan case and private complaint regarding the same incident, the trial has to be conducted firstly in the complaint case. In this regard the authoritative judgment is reported as Nur Elahi v. The State and others [PLD 1966 SC 708], wherein it has been observed as follows:--- "The question how the two cases should be proceeded with so as to cause to prejudice to either party, is one of difficulty in the circumstances mentioned and has caused as some concern. The learned Advocate-General suggested that we might issue direction similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the Trial Judge decide to hear first the case based on the Police version, to summon the witnesses supporting the counter version as Court witnesses under Section 540-A of the Code of Criminal Procedure, so that the record contains all the relevant evidence.
Similar procedure was directed to be adopted during the trial of the complaint case. After considering all aspects of the matter we hold that a fair procedure would be for the learned Trial judge to take up the complaint case first for trial. During that case the learned Trial Judge may call the witnesses mentioned in the Police challan, if they were not already examined on behalf of the complainant, as Court witnesses under Section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision 'could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If the trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under Section 494 of the Code of Criminal Procedure, in the Police challan case. It would be easy for him to take such a decision after the whole evidence has been threshed out in the first trial. If the first case ends in an acquittal, he might still have to consider whether the Police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross-examination of the relevant witnesses, as permitted by law."
10. The above enunciated principle has been followed in number of cases by this Court. When we examine the case in hand on the touchstone of the enunciated principles, we do not find any departure in conducting the proceeding in the case by the Trial Court. Although the sole accused in the challan case was acquitted by the Trial Court vide order dated 12.10.2004 but for appearance of all the witnesses of the challan case, the Trial Court completed the process and recorded their statements in the private complaint. Thus, after due completion of the process of recording the evidence, the case was finally disposed of. It is also of worth mentioning that even some of the prosecution witnesses namely, Akram Hussain, retired D.S.P, Yasin Qureshi, S.S.P., Khizar Hayat, S.P. and Raja Nasrullah Khan, D.S.P., appeared as defence witnesses. Therefore, neither any violation of the Court's direction has been committed by the Trial Court nor any prejudice has been caused to the complainant party. The argument of the learned counsel for the appellants that the proceedings have been conducted in violation of statutory law and direction of this Court, appears to be without any substance, hence, stands repelled.
11.On the merits of the case the counsel for the appellants have advanced the sole argument that as on the basis of same evidence in the previous round the Trial Court convicted the accused but subsequently acquittal of the accused is against law. This argument is not of worth consideration for the reason that the previous conviction order has been set aside by the Appellate Court, thus, it shall be deemed non-existent. Moreover, on remand, there is no bar for the Trial Court to decide the case afresh according to law after proper appreciation of evidence.
12.According to the peculiar facts of this case while keeping in view the prosecution story except the absconded accused, Irian Akhar, there is no ocular evidence of the incident. The whole story revolves around the confessional statement of Irian Akhtar, firstly recorded during the investigation, where in, he disclosed the whole story and stated that he has committed the murder of the deceased on the basis of which the case was challaned against him. According to prosecution's own story subsequently during the trial of the case after connivance with the appellants, he changed his stance and second exculpatory statement was recorded under Section 164, Cr.P.C., in which he implicated accused-respondents for commission of the alleged offence and following his statement, the private complaint was filed and with the help and assistance of the complainant party he had succeeded in getting acquittal order in the challan case.
13.It is celebrated principle of law that for awarding conviction in criminal cases, the commission of offence has to be established beyond the shadow of doubt through legal and admissible evidence. In the present case by excluding the Irfan Akhtar's exculpatory statement, there remains no evidence to connect the accused-respondents with the commission of offence.
14.The statements of the witnesses recorded in the complaint case as pointed out by the Trial Court are not of such standard which can be believed for awarding conviction. Keeping in view the depositions made by the witnesses and their overall conduct we have not found any justification or reason to differ from the conclusion drawn by the Trial Court.
15.So far as the question of admissibility of the statement of Irian Akhtar is concerned, keeping in view the version brought on record by the investigating agency and the conduct of Arlan Akhtar, firstly recording the confessional statement for the commission of offence by himself and subsequently after holding a meeting with the appellants by changing of the stance and implicating the accused, on the face of it makes his statement doubtful. According to celebrated principle of law without corroboration through independent source the statement of such-like person cannot be relied for awarding conviction in criminal cases. Even otherwise, according to settled principle of law the statement of an accomplice cannot be made ground for awarding punishment to another accused but it can only be having the binding force to the extent of the person who made the confessional statement.
16.In criminal cases, there are certain basic requirements for relying on the exculpatory or inculpatory statements for conviction. The foremost is that such statement should be voluntary without any coercion or inducement and also confidence inspiring and corroborated by other reliable cogent evidence. In the instant case, the factor of inducement cannot be ruled out as Irfan Akhter, changed his statement after meeting with the complainant-appellants and prior to his appearance as witness in challan case, he was acquitted in the challan case with the consent of the complainant-party. Such-like uncorroborated evidence lacking standard of confidence inspiration, free and without any coercion or inducement cannot be relied for conviction. The latest view in this regard is adopted by this Court in the case reported as The State v. Mst. Falawat Jan & another [1992 SCR 366] wherein it is held that:--- ' It is settled principle of law that a retracted confession can be acted upon against its maker if the same is materially corroborated by other independent evidence. So far as the co-accused are concerned, the same can be considered if other reliable evidence in support of the charge is available on the record."
The same view was adopted in the case reported as Siddiqullah v. The State and another [PLD 2009 Pesh. 1], wherein, it has been observed as under:--
1. The entire record was scrutinized with care, which revealed that there is no evidence against the appellants, entire direct, or indirect, except the retracted confessional statements of the appellants Abdul Rafiq alias Rafiq, and Juma Khan, which were recorded during police custody by P.W. Abdul Ghaffar, Illaqa Qazi (Criminal), Boni, Chitral. Admittedly, this witness had also granted police custody of the appellants. Similarly, he did not mention the time of recording the confessional statements of both the appellants. It appears from the confessional statements that the makers did not attribute any role to themselves in the commission of the offence. The confessional statements are, therefore, exculpatory in nature. The confessional statement of appellant, Abdul Rafique, was recorded after four days of police custody, while that of appellant Juma Khan was recorded after eleven days of police custody. This delay in recording confessions was not explained. Thus the confessions were certainly not voluntary. Indeed, under Article 43 of Qanun-e- Shahadat Order, 1984, on the basis of confessional statement alone, conviction can be recorded, and it may be used against co-accused, provided it is proved, inspiring confidence, and corroborated by the other reliable, and cogent evidence. The corroborative evidence is lacking in this case, and we do not deem it safe to rely only on the retracted,and un- corroborative confessional statements for the conviction of the makers, and the co-accused.
Needles to say that no other incriminating evidence is available against the appellants to connect them with the crime. In the circumstances, the prosecution was unable to prove its case against the appellants to the hilt, and they were not liable to conviction. The convictions and sentences of the appellants recorded by the Trial Court are, therefore, not sustainable which are here set aside."
' Some broad principles regarding of value of the confessional exculpatory or in culpatory statement has been discussed by the apex Court of Pakistan in the case reported as Haq Nawaz & others v. The State and others [2000 SCM R 785]. It will be useful to reproduce here the relevant portion of the judgment as under:--- "19. From the above-cited cases, inter alia, the following principles of law are deductible:--
(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.
(ii)That a statement of an accused that contains self-exculpatory matter cannot amount to confession. (iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.
(iv)That through the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.
(v)That the confession of a co-accused is an evidence of a weak character.
(vi)That under Islamic Jurisprudence, in order to make a confession reliable, it should be oluntarily made and not on account of any coercion, duress or violence.
(vii) That any delay in recording of a confession may or may not be fatal as to the evidentiary value of retracted confession as in the case of Syed Sharifuddin Pirzada v. Sohbat Khan & 3 others (supra), this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confession for the reasons that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily. (viii) That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.
(ix)That if an accomplice's evidence is not corroborated in material respect it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.
20.The legal position which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same."
17.When the exculpatory statement of Irfan Akhter is judged on the touch stone of the enunciated principles, there remains no hardship to held that the same does not fulfil these conditions, hence, cannot be made basis for awarding the punishment.
' In the light of hereinabove discussed reasons the appellants have failed to make out any case for interference by this Court, therefore, finding no force this appeal stands dismissed.