' Mrs. Ashraf Jahan, J.--Through this criminal appeal, the appellant has invoked the jurisdiction of this Court against the judgment dated 05.06.2015, passed by the learned Additional Sessions Judge, Charsadda at Tangi, in Sessions Case No, 467 of 2013, arising out of FIR No, 467 under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered at Police Station, Tangi, whereby the appellant was convicted under Section 302(b), PPC and sentenced with imprisonment for life. Further to pay Rs,200,000/- (Rupees two lacs only) as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C, in default to further undergo six months S.I. Benefit under Section 382-B, Cr.P.C. Was extended to the appellant.
2. Brief facts of the case as mentioned in the FIR are that on 25.06.2009, complainant Noor Zada son of Khan Zada lodged report at Police Station, Tangi that his son Arshad Khan used to ply his motorcar bearing Registration No, 634/LUW 2-D Model 1995 as Taxi at Prang Ghar Adda. On the day of incident, as per routine his son left the house, after some time he received information that his son had been murdered after snatching his car by unknown culprits and his dead body was lying in the hospital. He rushed to the hospital where he found the dead body of his son Arshad Khan.
Such FIR was lodged against unknown persons. Subsequently, on 01.07.2009, the complainant got recorded his statement under Section 164, Cr.P.C. Wherein he charged the accused Hazrat Jan alongwith his wife Mst. Irshada and one Khadim for the commission of offence.
3. Initially, after investigation police submitted challan in above crime on 28.07.2009 against accused Mst. Irshada wife of Hazrat Jan, whereas names of accused Hazrat Jan and Khadim were shown in red ink in Column-II. Subsequently, after arrest of accused Hazrat Jan on 17.09.2013 by Police Station, Hayat Abad, District Peshawar, police submitted challan against him on 22.09.2013.
Charge under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 was framed against him on 22.11.2013 to which he denied and claimed trial.
4. Prosecution in support of its case examined 14 witnesses. For the sake of convenience, a brief resume of their evidence is reproduced as under:--
(i) PW.1 is Dr. Iftikhar Ahmad, who deposed that on 26.06.2009 he had conducted the post-mortem of deceased Arshad Khan. As per his findings the deceased had received fire-arm injury on his head above the right side of eyebrow and died within five seconds after receiving the injury. He produced his post-mortem report consisting of 06 sheets alongwith injury sheet and inquest report as Ex.PM/1 and Ex.PM/2.
(ii) PW.2 Muhammad Shoaib Khan, Civil Judge/Judicial Magistrate-1, Tangi, deposed that on 21.09.2013, the accused was produced before him by the I.O. For recording his confessional statement under Section 164, Cr.P.C. And he after observing all the legal formalities recorded the statement of accused, which he produced as Ex.PW-2/1, questioner as Ex.PW-2/2 and certificate as Ex.PW-2/3.
(iii) PW.3 is Rashid Khan, SHO, Police Station, Mandani. He deposed that after completion of investigation, he submitted the challan under Section 512, Cr.P.C. Against the accused, available on record as Ex.PW-2/1.
(iv) PW.4 Bashir Muhammad F.0 deposed that on 25.06.2009 had escorted the dead body of deceased Arshad Khan from Toor Khet to THQ, Hospital, Tangi for post-mortem examination. He also acted as mashir of cloths of deceased, which were handed over to him by doctor.
(v) PW.5 is Noor Ullah, SHO, Police Station, Tangi. He deposed that on completion of investigation, he submitted supplementary challan Ex.PW-5/1 against the accused facing trial.
(vi) PW.6 Tilawat Shah, S.I., Police Station, Tangi is marginal witness of the pointation memo.
Ex.PW.6/1 whereby the accused led the police party to the place of' incident and correctly pointed out the place of occurrence.
(vii) PW.7 Noor Zada son of Khan Zada is complainant and father of deceased Arhsad Khan. He supported the contents of FIR and produced the murasla dated 25.06.2009 as Ex.PA/1. He deposed that initially F.I.R. Was lodged against unknown culprits but subsequently, he got recorded his statement under Section 164, Cr.P.C. Wherein he charged the accused Hazrat Jan, his wife Mst.
Irshada and one Khadim for snatching the motorcar and murder of his deceased son Arshad Khan.
(viii) PW.8 Ihsan-ud-Din son of Haji Fazal Din is the marginal witness of the recovery memo. Ex.PW- 8/1, whereby the I.O. Took into possession blood-stained earth Ex.P/1. He also acted mashir of recovery of blood-stained garments of deceased Ex.PW-8/2. Further marginal witness to the recovery memo. Ex.PW8/3 for taking into possession the accidental Motorcar No, 634/LUW, Model 1995, black color belonging to the deceased and also witness to the recovery memo. Ex.PW8/4, whereby the I.O. Took into possession blood-stained seat covers of motorcar involved in the incident.
(ix) PW.9 is Fazal Khan, S.I., Police Station, Nisatta. He deposed that accused was arrested by the local police of Police Station, Hayat Abad. Thereafter, he was transferred to Police Station, Tangi, District Charsadda vide letter Ex.PW-9/1 and Ex.PW-9/2. Subsequently, after obtaining his transit custody the accused was produced before the Illaqa Magistrate vide application Ex.PW-9/3 for remand. During custody, the accused pointed out the place of occurrence and also showed his willingness for recording his confessional statement. Accordingly, vide application Ex.PW-9/4 he was produced before the Magistrate and such statement under Section 164, Cr.P.C. Was recorded.
After completion of investigation, he handed over the case file to the SHO for submitting challan against the accused Hazrat Jan. During his cross-examination, he was shown photocopies of CNIC and domicile certificate in the name of Hazrat Jan son of Zarbullah Jan and photocopies of CNIC in the name of Mst. Farosha, Sabir and Mst. Uzma as Ex.PW-9/D-1 to D-5.
(x) PW.10 Daud Khan, S.I, Police Station, Hayat Abad deposed that on 17.09.2013, he was posted as ASI at P.P. Industrial State, Peshawar, where complainant Noor Zada alongwith Bismillah Jan, ASI produced copy of FIR alongwith statement under Section 164, Cr.P.C. And stated that absconded accused Hazrat Jan is required in the instant case, who is expected to arrive from Landikotal, Khyber Agency. After receiving such information, search of different vehicles was conducted and accused was found seated in a wagon and was arrested at the pointation of complainant and AK Such documents were prepared at the spot and accused was transferred to District Charsadda by the local police.
(xi) PW.11 is Sehat Bacha Khan, retired S.I. He deposed that on 25.06.2009, during gasht he received information regarding the murder, therefore, he rushed to the hospital at Tangi where the complainant reported about the incident. He drafted the murasla Ex.PW-11/1 and the complainant signed the same. He prepared the injury sheet and inquest report of the deceased as Ex.PW-11/2 and Ex.PW-11/3. Further deposed that he also arrested accused Mst. Irshada and prepared her arrest card on 02.07.2009, which is on record as Ex.PW.11/4. He also deposed that he remained with PW Ghuncha Gul, S.I. (now deceased) and worked with him at the same Police Station and therefore he was well acquainted with his signatures. He also indentified the signatures of dead PW on site-plan and recovery memos as Ex.PW-8/1 to Ex.PW-8/4. He further deposed that deceased Ghuncha Gul submitted applications for recording statements under Section 164, Cr.P.C. Of complainant Noor Zada and Mst. Irshada for her confessional statement. Thus, he identified all the signatures on different documents signed by the deceased S.I. Ghuncha Gul.
(xii) PW.12 Javeed son of Shamroz Khan deposed that on 25.06.2009 he received information that a dead body is lying on the road at Poor Khet. He reached at the spot and identified the deceased Arshad Khan son of Noor Zada.
(xiii) PW.13 Munir Khan, DFC, Police Station, Sardheri deposed that he was entrusted with the warrant of arrest of accused Hazrat Jan son of Purpul and Khadim. He searched for the said accused persons in their villages and surrounding areas but they were not available. Therefore, he reported that the accused had absconded after commission of offence and avoiding their lawful arrest.
Thereafter, lie was entrusted with proclamation notice under Section 87, Cr.P.C. Issued against the aforementioned accused Hazrat Jan which he also returned alongwith report as Ex.PW-13/1 to Ex.PW13/8.
(xiv) PW.14 Wakil Muhammad son of Muhammad Said acted as marginal witness to the recovery memos Ex.PW-14/1 to Ex.PW-14/3, he supported the case of prosecution to the extent of preparation of all above memos and his signatures upon them.
5. After completion of evidence prosecution closed its side. Statement of accused Hazrat Jan was recorded under Section 342, Cr.P.C, wherein he denied the case of prosecution and taken the defence that he is not accused Hazrat jan son of Purpul but his father's name is Zarbullah Jan.
Besides, he also contended that co-accused Mst. Irshada had never been his wife. Furthermore, he had taken the stand that confessional statement was not volunteer but was the result of pressure, promise and threats of the I.O. During the police custody. At the same time neither he wished to record his statement on oath under Section 340(2), Cr.P.C. Nor examined any witness in his defence. In support of his stance he relied upon the photocopies of CNICs and domicile certificate as Ex.PW-9/D-1 to Ex.PW-9/D-5 on record.
6. It is pertinent to mention that co-accused Mst. Irshada was earlier tried and convicted under Section 201, PPC. She did not file appeal against her conviction and sentence and was released from jail after undergoing sentence of seven years.
7. We have heard learned counsel appearing for the appellant and learned Assistant Advocate General, KPK for State.
8. It is contended by the learned counsel for the appellant that it is a case of no evidence, neither the appellant had committed the said offence nor he has any concern with the alleged crime.
There is no direct evidence against the appellant except the so called confession, which was the result of coercion and pressure upon the appellant by the police. In fact the appellant is not the actual culprit as his father's name is Zarbullah Jan, while the name of actual culprit is Hazrat Jan son of Purpul. It is further pointed out by the learned counsel that the appellant during proceeding has produced photocopy of his CNIC, domicile and the photocopies of CNICs of his wife, brother and mother. Per learned counsel neither the co-accused Mst. Irshada was the wife of appellant nor he had any relation or concern with her. No recovery has been affected from the appellant, therefore, the prosecution has failed to prove its case beyond any shadow of doubt. Thus the conviction of the appellant merely based upon surmises and assumptions, is liable to be set aside.
In support of his submissions he has relied upon the following case law:--
1. Faizullah and others versus the State and others 2012 SCMR 524
2. Maqsud Ahmad alias Sudi versus The State 2012 Y.L.R 1954
3. Sarfraz Khan versus The State and 2 others 1996 SCM R 188
4. Muhammad Afzal and 2 others versus The State 2015 Y.L.R 1699
9. Conversely, it is contended by the learned Assistant Advocate General, KPK for State that the appellant was arrested on 17.09.2013 by the local police of Peshawar and on the same date he was produced before the Mao Magistrate. Thereafter, he was produced on 21.09.2013 before the Civil Judge/Judicial Magistrate for recording of his confessional statement but no where he has taken the stand that he was not the son of Purpul. On the contrary, he got recorded his confessional statement under Section 164, Cr.P.C. Per State counsel co-accused Mst. Irshada, who was arrested in the above crime earlier had been convicted on 31.01.2011 and she did not prefer 'r any appeal and was released after serving out her sentence. He pointed out that the deceased was the son of complainant, who had no enmity with the present appellant, therefore, why he would involve a factitious person in the murder case of his son. Therefore, in the above circumstances, the trial Court has rightly convicted him for the murder of deceased Arshad Khan son of Noor Zada. Hence, the appeal is liable to be dismissed.
10. We have considered the arguments advanced before us and have perused the case record.
11. The moot point for deciding the present appeal is that as to whether the present appellant can be held responsible for robbing the vehicle and causing murder of deceased Arshad Khan son of Noor Zada.
12. So far as, the fact regarding unnatural death of deceased Arshad Khan is concerned, it is established from the evidence of complainant, Dr. Iftikhar Ahmed and other prosecution witnesses that deceased, who used to ply taxi Bearing No, 634/LUW, 2-D Model 1195, died after receiving fire- arm injury. The case of prosecution to this extent is not challenged by the present appellant but his case is that he is not the actual culprit.
13. For dilating upon this issue, it would be appropriate, if all the relevant facts of the case are examined in a sequential manner. The perusal of original record reveals that in this case, FIR was lodged on 25.06.2009 under Section 17(4) of the Offences, Against Property (Enforcement of Hudood) Ordinance, 1979. After investigation, challan was submitted on 28.07.2009 against the co- accused Mst. Irshada wife of Hazrat Jan, whereas names of present appellant and one Khadim were shown in red ink in colum No, II. The accused Mst. Irshada got her confessional statement recorded under Section 164, Cr.P.C. And named present appellant as main culprit. The case concluded into conviction of Mst. Irshada. Whereas present appellant alongwith Khadirn was declared as proclaimed offender and perpetual non-bailable, warrants of their arrest were ordered to be issued. Subsequently, on 17.09.2013 the present appellant was arrested by Hayat Abad police and challan against him was submitted on 22.09.2013. During his custody of 21.09.2013 he was produced before the Civil Judge and Judicial Magistrate-1, Tangi where he got recorded his confessional statement under Section 164, Cr.P.C., therefore, the only substantial evidence available in the present case against him is, his confessional statement, which was subsequently retracted.
14. Be that as it may, as the substantive piece of evidence again appellant is his own confessional statement, therefore, the evidence brought on record by the prosecution witnesses is to be scrutinized thoroughly. In other words in such like cases Court has to sift the grain from the chaff to ascertain falsehood. The appellant has not denied his arrest, production before the Magistrate for recording statement under Section 164, Cr.P.C. But he has taken the stand in his statement recorded under Section 342, Cr.P.C. That it was due to aressure, threat and promise of I.O.
Otherwise, he is not the real ulprit.
15. With this backdrop when the evidence brought on record is e. Amined, it is observed that the evidence of PW Mohammad Shoaib K an, Civil Judge/Judicial Magistrate at Tangi, is of material value a recorded the confessional statement of the appellant. He was cross-examined at length but not a single question or suggestion from the appellant's side was put to this witness about the incorrect identity of present appellant or to the effect that his father's name is different am he is not the real culprit. Similarly, the evidence of P.W. Rashid Khan, SHO, Police Station, Mandani, who submitted challan under Section 512, Cr.P.C. Against the appellant was not challenged at all in cross-examination. Same is the position in respect of evidence adduced by P.W. Noor Ullah Khan, SHO, Police Station at Tangi, who produced the supplementary challan against the appellant Hazrat Jan, his cross-examination is only to the extent that he has submitted supplementary challan against accused Hazrat Jan son of Purpul but there is no such suggestion that the present accused is not the real culprit.
16. Similarly, the evidence of P.W. Tilawat Shah, S.I. Police Station at Tangi, who is the marginal witness of the pointation memo, whereby appellant led the police party to the place of occurrence and correctly pointed out the various points, reveals that at the time of his cross-examination his evidence was not challenged to the effect that the appellant is not the real culprit. Thereafter, evidence of complainant Noor Zada was recorded on 17.07.2014 and for the first time such suggestion was put to him during his cross-examination that the present appellant is not the real culprit. It is important to notice that if as per case of appellant he was not the real culprit then why he did not raise such plea or produced any document in respect of his identity during investigation and especially when twice he was produced before the Illaqa Magistrate, one at the time of his arrest for transit custody and secondly at the time of recording of his confessional statement under Section 164, Cr.P.C. Thus it is evident that at the time of evidence of Magistrate who had recorded his confessional statement, coupled with the evidence of two Investigating Officers and one mashir no such plea was raised and their evidence in respect of attributing present appellant with commission of crime was not challenged at all. Therefore, it seems that the plea of incorrect identity or false implication is nothing but an afterthought and cannot be relied upon in the facts and circumstances of the present case.
17. Admittedly, in the Criminal Justice System, it is for the prosecution to prove its case beyond any shadow of doubt and it cannot take advantage of any weakness of the defence but it will be relevant to mention that the accused at the time of his statement recorded under Section 342, Cr.P.C. Has relied upon the photocopies of some CNICs including photocopy of his CNIC and domicile however the original have not been produced. Moreover, date of issue in his CNIC's is 20.11.2013, which is after two months of his arrest, whereas the CNIC of others show the year of issue 2009.
18. It is well settled legal position that conviction can be recorded on the basis of retracted confessional statement if it is found confidence inspiring, voluntary and having not been obtained by coercion, inducement or torture. Reference in this regard may usefully be made to the following reported judgments:--
1. Khuda Bakhsh versus The State 2004 SCMR 331;
2. Muhammad Gul and others versus The State 1991 SCMR 942.
3. The State through A.G., N.-W.F.P., Peshawar versus Waqar Ahmad 1992 SCMR 950;
4. Wazir Khan versus The State 1989 SCMR 446;
5. Muslim Shah versus The State PLD 2005 SC 168;
6. Muhammad Ashraf versus The State 2001 P.Cr.L.J. 412;
7. Emperor versus Lal Bakhsh AIR 1945 Lah.43.
8. Dadullah versus The State 2015 SCMR 856
19. Besides, for better appreciation, it would be appropriate to examine the intrinsic value of the pieces of circumstantial evidence collected against the appellant, which finds support with the medical evidence. Irrespective of the above, the factum of confessional statement being true is further supported by the evidence of Judicial Magistrate, who is unequivocal terms deposed before the trial Court that all the legal formalities were fulfilled before recording of confessional statement of the appellant. To that effect, he appended certificate categorically mentioning that due care and caution was taken and the appellant at his own volunteered to give detailed narration of the incident, which was recorded by him verbatim. .
20. It is important to note that the complainant who is father of deceased Arshad Khan had neither any enmity with the appellant nor had any motive to falsely implicate him, hence his statement was rightly believed by the learned trial Judge.
21. The next question to be considered is that when confession is read as a whole what offence appears to have been committed. It is held in the case of Ayaz Ahmad versus Allah Wasaya and others 2004 SCM R 1808 that solitary judicial confession, if made basis for conviction, must be relied upon in toto without any pick and choose.
22. In view of above discussion, it appears that prosecution has succeeded in establishing the charge of snatching of vehicle and murder of Arshad Khan against the appellant. Thus the contentions raised by the learned counsel for the appellant are devoid of any force, whereas the case law cited by him is also distinguishable and not applicable to the facts and circumstances of present case.
23. An important aspect of the case which skipped from the sight of trial Court is that as per impugned judgment, due to lack of evidence required for Hadd, instead of 17(4) Harraba, the accused was convicted under Section 302(b), PPC and sentenced for life imprisonment. Whereas we are of the firm opinion that on the basis of prosecution evidence discussed above, beside murder, charge of snatching motorcar also stood proved against the appellant, which in absence of standard evidence required for conviction for Harraba attracts the provisions of Section 392, PPC.
Therefore, the present appellant is to be convicted on this account as well.
24. For what has been discussed above, we are of the considered view that the trial Court has rightly convicted the appellant and sentenced him with imprisonment for life under Section 302(b), PPC and to pay compensation under Section 544-A, Cr.P.C. Besides, the appellant is also convicted under Section 392, PPC for seven years R.I. And to pay fine of Rs,50,000/-, in case of non-payment of fine to 'urther undergo S.I. For three months. Both the sentences to run ;oncurrently. The benefit under Section 382-B, Cr.P.C. Will remain tact. Accordingly, appeal stands dismissed. 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.