' Riaz Ahmad Khan, C.J.--Accused/appellant Irfan son of Malang Jan resident of Hassan Garhi, Peshawar has called in question judgment dated 10.02.2011 passed by Additional Sessions Judge- XIV, Peshawar by virtue of which he was convicted and sentenced to life imprisonment under Section 302(b), PPC and also to pay Rs, 50,000/-each under Section 544-A, Cr.P.C. As compensation which was to be paid to the legal heirs of the each deceased. The convict/appellant was also convicted and sentenced under Section 382 read with Section 397, PPC to undergo ten years S.I. As well as to pay a fine of Rs, 25,000/- or in default of payment of fine to further suffer S.I.
For six months. Under Section 411, PPC he was convicted and sentenced to undergo three years S.I.
All the sentences were to run concurrently. However, benefit of Section 382-B, Cr.P.C. Was given to the convict/appellant.
2. The learned Additional Sessions Judge, according to the impugned judgment, had taken a lenient view as the convict/appellant was a juvenile and as provided under Section 12(a) of the Juvenile Justice System Ordinance, 2000, he was not awarded death sentence.
3. The Complainant Muhammad Sharif has also filed Cr. Revision No, 1/P/2011 wherein he has prayed for awarding and specifying the sentence on two counts under Section 302(b), PPC, and consecutively instead of concurrently, he had also prayed for enhancement of compensation amount under Section 544-A, Cr.P.C.
4. The appeal as well as revision petition were clubbed together. This single judgment will dispose of both the above-mentioned connected matters as they arise out of one and the same judgment and FIR.
5. Brief facts of the case are that deceased Mst. Saeeda Begum had established a furniture factory in Industrial Estate, Kohat Road, Peshawar. In the portion of the said factory she had constructed a house where she used to live alongwith her son namely Kalim Ullah Jehangiri. Her second son namely Atta Ullah Jehangiri was employed in Pakistan Navy and posted as Lieutenant at Karachi.
She being widow used to run the business herself. The whole factory including the house had one main gate. Mst. Saeeda Begum was widow of Javed Safdar Jehangiri and the business was known as Javed Enterprises. On 27.06.2009 one of the employees of the factory namely Haji Latif came to the factory but found the door closed and even after knocking the door for some time nobody opened the door so he sat outside the factory. During that time another employee namely Muhammad Sharif came there, he had keys of the lock so he opened the lock and when entered the house he as well as the other employee namely HO Latif found the dead bodies of Mst. Saeeda Begum and her son Kalim Ullah. Muhammad Sharif, employee of the factory PW.8, informed the husband of the sister of Mst. Saeeda Begum namely Dr. &Wad as well as her son Atta Ullah Jehangiri, who was at Karachi, through telephone. He also informed the police. The police came to the spot where the report was made by Muhammad Sharif who stated in the report that he was an employee in Javed Enterprises for last 25-years and was working as supervisor. On 26.06.2009 he had left deceased Mst. Saeeda Begum and her son Kalim Ullah alongwith one Irfan and Bashir in the lure Irfan's mother was maid servant in the past with deceased Saeeda egum. The above stated four persons were with the deceased Saeeda Begum and at evening time he begged leave and went to his house situated in a village. The next morning i.e, 27.06.2009 at 9:15 a.m. When he came to the factory he saw Haji Latif sitting in front of the main gate, who said that he had been sitting for last one hour and had been knocking at the door but nobody had come to open the door. Muhammad Sharif stated that he opened the door with his keys and entered the house alongwith Haji Latif. Inside the house they found the dead bodies of Mat. Saeeda Begum and her son Kalim Ullah whereas Irfan who was residing with them was not present. He informed husband of Mst. Saeeda Begum's sister namely Dr. &Wad as well as son of Mst. Saeeda Begum namely Ada Ullah at Karachi. The report was reduced into writing in the shape of Marasala Ex.PA/1 at 11:15 wherein date and time of occurrence was shown as some time in the night between 26/27-06- 2009. On the basis of said Marasala Ex.PA/1, FIR No, 524 Ex.PA was registered on 27.06.2009 at 12:15.
The police on the spot prepared injury sheets as well as inquest reports and sent the dead bodies of the deceased persons to KMC for autopsy. The dead bodies were accompanied by Constable Wilayat. On the same day La.
27.06.2009 at 1:05 p.m. Dr. Shazia PW.5 conducted autopsy of Mat. Saeeda Begum and found the following injuries on the body of Saeeda Begum: -
1. A chopped lacerated wound on right side of forehead 5x4.5 cm in size, 2.5 cm from midline, 3 cm above right eyebrow.
2. A chopped lacerated wound on right side of forehead 1.5 x 0.5 cm in size 0.5 cm from midline 4 cm above right eyebrow.
3. A chopped lacerated wound just on midline of forehead 2.5 x 0.5 cm in size, 2.5 cm above right eyebrow.
4. A chopped lacerated wound on left side of forehead involving midline 5x1.5 cm in size 2 cm above left. Eyebrow.
5. A chopped lacerated wound on the right side of forehead involving right eyebrow, 3 x 1 cm in size, 5.5 cm from midline.
6. A chopped lacerated wound on left side of skull measuring 5 x 1 cm in size, 9 cm above left ear, 4 cm from midline.
7. A chopped lacerated wound on left side of skull 4x1 cm in size, 8 cm above the left ear, 7 cm from midline.
8. Both eyes black.
9. Bleeding from nose.
' According to her, the deceased died due to injury to the brain and skull with heavy sharp cutting object. Probable time between injury and death was immediate whereas between death and postmortem was 918 hours.
6. The autopsy of Kam Ullah deceased was conducted by Dr. Anwarul Haq PW.7. He found the following injuries on the body of Kaleemullah deceased:-
1. A lacerated wound situated on the back of skull, in the midline, 5 x 1 cm in size, 2 cm below the top of skull and 7 cm above the base of skull.
2. A lacerated wound on the back of skull in the midline and left side, 7 x 2 cm in size, 2.5 cm above the base of skull and 3 cm from left ear.
3. A lacerated wound on the back of skull 4x2 cm in size, 3 cm above Injury No, 2.
4. A lacerated wound on the left side of skull 5 x 1 cm in size, 1 cm from midline and 8 cm above left ear.
5. A lacerated wound situated on the outer-side/back side of left forearm, 2 x 1 cm in size, 1 cm above the wrist joint.
6. Left black eye.
7. An abrasion on right side front of neck, 4 x 0.5 cm in size, 2 cm from midline and 5 cm above clavicle.
' In his opinion the deceased died due to injury to the brain and skull with heavy sharp cutting object. Probable time between injury and death was immediate whereas between death and postmortem was 918 hours.
7. On 03.07.2009 accused Irfan was arrested from the General Bus Stand, G.T. Road, Peshawar. For three days he remained in custody of police and on 06.07.2009 his confessional statement Ex.PW.13/2 was recorded by Judicial Magistrate, Peshawar PW.13.
8. On completion of investigation, challan was submitted in the Court. Charge was framed on 03.11.2009 to which the accused did not plead guilty and claimed trial. The prosecution, in support of its contentions, examined 16 witnesses. Statement of the accused was recorded under Section 342, Cr.P.C.. Wherein he pleaded innocence and false implication.
9. On conclusion of the trial and after hearing the parties, the learned trial Court convicted the accused and awarded the aforementioned sentences. Feeling aggrieved of the same, the present appeal as well as revision petition were filed.
10. Learned Counsel for the appellant stated that the convict/appellant was innocent and falsely implicated in the case, he was a poor man and could not even engage a Counsel. The confessional statement was recorded after three days, he was illiterate and could not understand anything. His confessional statement was not in accordance with law which had also been retracted. On the basis of retracted confession major penalty could not be awarded. The learned Counsel for the appellant further submitted that the convict/appellant was minor and there was no direct evidence to connect him with the alleged offence. The case was based on circumstantial evidence and prosecution was required to connect all the chains from beginning to the end which were in the present case. In such a case conviction as well as sentence awarded were against the law and facts available on the record. Learned Counsel for the appellant, in support of his contentions, referred to 2011 YLR 1207 Maqbool alias Booli vs. Shaukat Ali and another, 2009 SCMR 166 Tahir Javed VS. The State, 2011 SCMR 932 Imran alias Menu vs. The State, 2011 P Cr. L J 652 Shahid Hussain and another vs. The State, 2011 P Cr. L J 1924 Fateh Khan vs. The State and 3 others, 2014 P Cr. L J 323 Tej Wall Shah VS. The State, PLD 2015 Peshawar 1 Noor Shah Gul vs. Asim Ullah and another.
'
11. On the other hand, learned Counsel for the complainant/petitioner submitted that though the appellant was a minor and that was the reason that the case was tried by the Additional Sessions Judge who was also Juvenile Judge. It was further submitted that it was because of the age of the accused that the learned Juvenile Court had taken a lenient view and had not awarded death sentence. The learned Counsel admitted that it was a case of circumstantial evidence. He further submitted that PW.8 Muhammad Sharif, PW.9 Muhammad Bashir and PW.12 Latif Ullah, who were natural witnesses had stated in their statements before the Court that they all had seen the accused in company of deceased on 26.06.2009. All of them left the deceased and the accused in the house. The consistent statements of all these witnesses proved the fact that the accused had been last seen in the Company of the deceased. Next day in the morning he was found missing.
After the arrest of the accused, articles belonging to the deceased were recovered from the possession of the accused and in addition to that the accused made a voluntary confession. As such the case was proved beyond any shadow of doubt and all the circumstances led to the conclusion that the accused/convict had committed the offence. The learned Counsel further submitted that the learned trial Court was required to convict the appellant on two counts but had erred to convict the ippellant on one count. The learned Counsel prayed that even the compensation was not in accordance with law and the same was required to be enhanced.
12. We have heard the learned Counsel for the parties and have also perused the record.
13. In the present case initially no one was charged. It is a case of circumstantial evidence. In such like cases .Evidence should be consistent with the hypothesis of the guilt of the accused. Every chain should be linked with each other and if any chain link is missing then the benefit of the same has to be given to the accused. The accused in the instant case was formally charged by PW.6 Atta Ullah Jehangiri, who is the second son of Mst. Saeeda Begum deceased. There is nothing available on the record to show that he had charged the accused in writing prior to his arrest. However, in his statement before the Court he submitted as follows: "After my due satisfaction and inquiry I came to know that my mother and brother have been murdered by our private servant Irfan son of Malang Jan presently r/o Hassan Ghari, Peshawar and he has also taken away amount of Rs, 70,000/-in cash, golden ornaments of different kinds weighing 96 tolas, two laptops with CD players, mobile phone of my mother Nokia 1200, Digital Camera, flash light and purse of my deceased brother Kalim Ullah containing his NIC and other important documents by snatching the same. I charge the accused facing trial for the commission of the offence."
' Infact, this witness was required to give a written statement showing the details of the articles lost, to the police prior to the arrest of the accused but nothing to that effect is available the file.
14. The accused was arrested from a bus stop on 03.07.2009. On 29.06.2009 i.e, prior to the arrest of accused, the. I.O. Had submitted an application for recording statement of Atta Ullah Jehangiri PW.6 under Section 164, Cr.P.C. Before the Magistrate. The application is available at file as Ex.PW.
16/7 but the said statement was not brought before the Court and not exhibited. Now it is not known as to what was the statement recorded by Atta Ullah Jehangiri before the learned Magistrate. PW.6 Atta Ullah Jehangiri, second son of Mat. Saeeda Begum in his statement before the Court submitted that Irfan, the private servant had taken away amount of Rs, 70,000/- in cash, golden ornaments of different kinds weighing 96-Tolas, two laptops with CD players, mobile phone of his mother Nokia 1200, digital camera, flash light and purse of his deceased brother Kalim Ullah containing his NIC and other important documents by snatching. It is not known as to what was his source of information and how he came to know that these articles had been taken away by accused/appellant.
15. The accused was arrested at bus stop, at the time of his arrest two laptops with bags and chargers, one tape-recorder small size Panasonic with four small cassette, one camera Kodak with charger, one flash light, one calculator, two mobile sets Nokia, one mobile set Sony Ericson in broken condition and 29000 rupees were recovered from him. However, from his personal possession Rs, 1000/- was recovered.
16. The strange thing is that in respect of the recoveries from the accused recovery memo.
Ex.PW.16/2 was prepared which was attested by Muhammad Sajid and Riaz Ahmad PW.11. Now it is not known that if accused Irfan was arrested at a bus stand what were these two witnesses doing at the bus stand. According to the statement of the I.O. PW.16 the accused was arrested on spy information that he was present at bus stand. As such it cannot be believed that at that particular time these two witnesses were also present. If the accused was brought to the police station the two witnesses were called and then recovery memo. Ex.PW.16/2 was prepared then this recovery memo. Cannot be believed.
17. There is absolutely nothing on record to show that actually deceased Saeeda Begum had Rs, 70,000/- in her purse or 96-Tolas gold ornaments were already available in the house. No gold ornaments were recovered from the accused. PW.6 Atta Ullah Jehangiri in his statement before the Court submitted that he had produced the empty boxes of laptops to the police whereas the laptops were allegedly recovered in bags from the accused. The recovery as such has become doubtful.
18. As far as confessional statement is concerned, for the sake of convenience, the same is reproduced herein below: "Prior to the occurrence I used to work in the house of Kalim Ullah. Now a days I am working in medical store. 3/4 days ago, I had a quarrel with my mother and brother so I left the job at medical store and came to the house of Kalim Ullah. Prior to the occurrence at afternoon I went to the medical store and stole 20-intoxicating tablets and straight away went to the house of Kalim Ullah.
At the night I prepared tea for them and in tea I mixed 10 intoxicating tablets. After taking tea they got unconscious and went to sleep. Then I tied hands and feet of Kalim Ullah and brought a knife from the kitchen. When I tried to hit them with knife my hands started trembling so I kept the knife under the foam and took the gun which was lying on the table. I gave a blow to Kalim Ullah with the butt of the gun and then took the knife and put the same on the throat of Kalim Ullah as a result of which he got injured. He called his mother and then I gave a blow to his mother with the butt of the pm 2/3 times as a result of which she also became speechless, then again I hit Kahn' Ullah 4/5 times with the butt of the gun as a result of which he fell down and became speechless. Then I went to bath room to take a bath. After taking bath, I came back, again I heard the voice of Kalim Ullah's mother. I, at once, hit her 4/5 times so she also became speechless. Then I took two laptops lying in the room and got Rs, 2500/- from the purse of Kalim Ullah and dollars from the purse of his mother. I also took two mobiles then locked the main gate and left the place."
' This statement was thumb impressed by the accused which was recorded on 06.07.2009. On the first page of the statement the words RO & AC were printed but at the next page of the statement nothing was shown that the statement was read over to the accused and it was accepted as correct. This statement was produced before the Court by the Magistrate and exhibited as Ex.PW.13/2, Questionnaire was Ex.PW.13/1 and certificate was Ex.PW.13/3. The questionnaire as well as the certificate were in English and already in printed form. The questionnaire, however, was filled in English and thumb impressed by the accused. The same was the position with the certificate.
19. The confessional statement in the first instance was recorded after three days and for those three days the accused had remained in custody of the police. The statement itself is not confidence inspiring for the reason that it has not been proved that the accused had actually been working at some medical store. Secondly the accused was illiterate. It is not known as to how he recognized the tablets which caused intoxication and unconsciousness. Again the story that he went to medical store, stole the intoxicating tablets and easily came out is unbelievable. According to the confessional statement he had tied the hands and feet of the deceased Kalim Ullah but this statement is not proved by the medical evidence. Furthermore, in the confessional statement it has been stated that he had injured the throat of Kalim Ullah but according to the medical report no injury was available on the throat of Kalim Ullah deceased and he had not been killed with a knife.
In addition to that the medical report shows that deceased Kalim Ullah had received all injuries at the back of his head. In the confessional statement there is nothing about the articles mentioned by PW.6 which were taken away by the accused. According to the confessional statement, the accused had killed the deceased with the butt of the gun whereas according to the medical report the deceased had been done to death with heavy sharp object. As such the confessional statement is not corroborated by the medical evidence. The learned Counsel for the complainant/petitioner submitted that conviction can be recorded even on the basis of confessional statement alone if the confessional statement is voluntary and without duress. The contention is correct but in the present case the confessional statement was retracted and the Honorable Supreme Court in a judgment reported as 2008 SCMR 649 has held that retracted judicial confession should not be acted upon unless corroborated by some other reliable evidence.
In the present case the confession is not confidence inspiring for the reason that the accused is a minor child of 15-years, illiterate, the statement itself is doubtful, the certificate is in English and it is not known as to whether it was actually read over to the accused or not. The same is the position with the questionnaire, which was in printed form, already available with the Magistrate. In such like circumstances, the confessional statement cannot be taken alone and corroboration of the same is required. Since the confessional statement is not corroborated by any other independent evidence, so we do not feel inclined to accept the confessional statement.
20. The contention of the learned Counsel for the complainant/petitioner that accused was last seen in the house of the deceased and three witnesses namely Muhammad Sharif PW.8, Muhammad Bashir PW.9 and Latif Ullah PW.12 have deposed in this respect, may be correct, but again one point has not been explained that if the door was locked from the outside then how PW.8 Muhammad Sharif was having the keys and how he could open the door. Learned Counsel for the complainant/petitioner in this respect submitted that in fact Muhammad Sharif was having additional key and with that key he had opened the door. The record does not support the contention' of the learned Counsel as there is nothing on record to show that the witness had additional key. There is also nothing on record that the accused while leaving the house had locked the door. No key had been recovered from the possession of the accused, the site plan shows only one main gate and is totally silent about the nature of the lock.
21. In view of the above mentioned facts and circumstances, the case of prosecution is full of doubts. There is no consistency in the evidence and thus giving the benefit of doubt to the accused, we allow the instant Jail Criminal Appeal, set aside the judgment dated 10.02.2011 of the learned Additional Sessions Judge-XIV, Peshawar and acquit the appellant of the charges leveled against him. The accused be set free if not required in any other criminal case.
22. Resultant, the revision petition filed by the complainant is also dismissed.