ZAHOOR AHMED SHAHWANI, J.---This Jail Criminal Appeal is directed against the judgment dated 28.11.2013 passed by the learned Additional Sessions Judge-HI, Swabi, whereby appellant Qaisar Ali son of Pir Muhammad has been convicted and sentenced as follow:-- Under Sec- tion 302(b), P.P.C.To undergo life imprisonment, and to pay Rs,100000/- (one lac) to the legal heirs of the deceased, as compensation under Section 544-A Cr.P.C., or in default thereof, to undergo 6 months further.
Under tionSec- 387,To undergo five years'
P.P.C. rigorous imprisonment, and fine of Rs,5000/- or in default of payment of fine he shall have to suffer S.I. for one month.
' The benefit under Section 382-B and Section 397, Cr.P.C. Has not been extended to the accused.
' We deem it pertinent to mention here that the case of co-accused, Ijaz Ali Amir and Jawad Ahmad were bifurcated being Juvenile offender vide order/ judgment dated 28.11.2013 in case No,4/SC (J), convicted and sentenced to undergo rigorous imprisonment for five years each and to pay fine of Rs,5000/- each, or in default thereof, to undergo each, one month, keeping in view the nature of offence and in the manner in which it was committed. The accused were not given benefit under Section 382-B and Section 397 Cr.P.C. By Additional Sessions Judge-III/Juvenile Court, Swabi vide judgment dated 28.11.2013.
2. Allegation against the appellant is that on 10.11.2011 at about 2000 hours, Zaman Ali (complainant) son of Shah Zaman resident of Maneri Payan Mohallah Karam Khel District Swabi, came out from his house and was proceeding to his Hujra, when he reached at the place of occurrence, 5/6 unknown persons duly armed called him to stop and out of them three persons started firing at him, which resulted injuries to his person, due to night time he did not identify the accused persons. Complainant was brought by his relatives to casudlty, DHQ Hospital Swabi in injured condition, who was fully conscious and reported the matter in the presence of CMO. He recorded his report in the shape of murasila Ex.PA/1 and consequently registered instant case against 5/6 unknown persons under Section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The complainant later on succumbed to his injuries.
3. On arrest of the accused/appellant and completion of investigation, complete challan was submitted against him before the trial Court wherein he was formally charge sheeted to which he did not plead guilty and claimed trial.
4. To prove the guilt of accused, prosecution examined as many as fifteen witnesses. P.W-1 Iltaf Hussain, IHC is the marginal witness of recovery memos Ex.PW-1/1, to Ex.P.W1/4; P.W-2. Hussan Baehr SI, arrested accused Qaisar Ali and co-accused Jawid Ahmad on 13.11.2012 at 1715 hours during Nakabandi and issued their card of arrest Ex.PW-2/1 and Ex.PW-2/2; P.W-3 Aminullah ASI, was posted as Incharge Casualty Hospital Swabi, deposed that complainant was brought by his relatives to hospital on 10.11.2011 at 2030 hours, who was fully conscious and reported the matter to him in presence of CMO. He prepared the injury sheet of deceased (the then injured) as Ex.PW-3/1, Ex.PW-3/2 and inquest report Ex.PW3/3; PW-4 is Dr. Shah Said, who on 10.11.2011 at 0840 p.m.
Medically examined deceased (Zaman Ali) then injured and found the following:-- ' Patient has got two wounds. i. Wound on left lower chest about 1 x 1 cm in size.
Ii. Another wound on right lower chest about 2 x 1 cm in size. iii. First aid given and patient was referred to LRH Peshawar for further management.
' P.W-5 Ijaz Ali, SI registered the present case on 10.11.2011 at 2100 hours vide FIR Ex.PA, he received telephonic message from Aminullah IHC that injured Zaman Ali who has been referred by the doctor from DHQ Swabi to LRH Peshawar, succumbed to his injuries on way and his dead body has been brought back to Swabi hospital, he recorded this information at the daily diary at serial No,15 dated 10.1L2011 and changed section 324, P.P.C. To 302, P.P.C. Which is Ex.PW-5/1, he also arrested co-accused Ijaz Ali and Amir on 13.11.2011 at 2100 hours and issued their card of arrest as Ex.PW-5/2 and Ex.PW5/3, also recovered .30 bore pistols from each of them which were found unlicensed so murasila was sent to police station , where case FIR No,1523 dated 13.11.2011 was registered against both the accused, attested copy is Ex.PW5/4 and took into possession the said pistols vide recovery memo Ex.PW5/5; P.W-6 Ghani Said SI, who presented 30 bore pistols to the Investigating Officer; P.W-7 Jalil Ahmad is the marginal witness; P.W-8 Umar Ali, identified the dead body of deceased; P.W-9 Muzamil No,912/C, marginal witness of Qameez, Shalwar and Banyan which are Ex.P1 to Ex.P3; P.W-10 Abdul Hussain Mohmand, Judicial Magistrate who recorded the confessional statements on 16.11.2011 of all the accused according to law vide Ex. PW-10/2, PW-10/5, PW-10/8 and PW-10/11; all the accused confessed their guilt; P.W-11 Niaz Ali the paternal cousin of the deceased who put the injured in the vehicle and took him to the DHQ Hospital Swabi; P.W-12 Nazir Khan, the brother of complainant (deceased), he charged the accused for the murder of his brother; P.W-13 Muhammad Fayyaz Inspector, who after completion of investigation, submitted challan against the accused; P.W-14 Hidayat-ur Rehman Khan SI, the Investigating Officer of the case, who recorded the statements of Nazir Khan and Niaz Ali under section 161, Cr.P.C, vide his application Ex.PW14/1, he received the custody of accused who were produced by him in the court for obtaining their police custody which was allowed for two days vide his application Ex.PW14/2, he recorded statements of PWs and accused vide his application Ex.PW14/3 and Ex.PW-14/4, he has received medical and FSL reports and placed on record along with attested copies of FIR which were Ex.PW-14/5 to Ex.PW14/15; P.W-15 Mira Khan ASI was also the Investigating Officer, recovered from the spot one empty of .30 bore Ex.P8, prepared site plan Ex.PB, recorded statements of PWs under section 161, Cr.P.C.
5. After close of the prosecution evidence, statement of accused/appellant Qaisar Ali was recorded under Section 342, Cr.P.C., wherein he denied the prosecution allegation and professed his innocence. He however, did not opt to be examined on oath under Section 340(2), Cr.P.C. Nor wished to produce evidence in defence.
6. On conclusion of trial, learned trial Court after hearing both the sides convicted and sentenced the accused/appellant as mentioned above, hence, this appeal.
7. Learned counsel representing the appellant submits that the appellant has not been directly nominated in FIR but the complainant party charged the convict/ appellant in their statements recorded under section 164, Cr.P.C. After delay of two days; that complainant, PW-11 and PW-12 are close relatives. PW-11 is paternal cousin and PW-12 is brother of complainant being interested witnesses are not worthy of reliance; that the medico legal report of the deceased negates the version of complainant as well as contents of FIR; that the recovery of .30-bore pistol and other articles on the plantation of the accused is doubtful; learned counsel further submits that the crime empties were not immediately dispatched to the FSL which resulted manipulation, moreover, the record and evidence are silent about the safe custody of the crime articles hold such deficiency on the part of prosecution reacts its case; that the accused have not made confession before Judicial Magistrate, as neither they were produced nor signed the confession, and Judicial Magistrate has not adopted the proper procedure required for recording the confessional statement; further states that the statement of injured/complainant and PWs suffer from discrepancies, inconsistencies and improvement; that there exists material contradiction in the contents of case FIR and statements of the PWs recorded under Section 164, Cr.P.C. And in the Court during the trial; that prosecution miserably failed to prove its case against the appellant; that the case of prosecution is full of doubt, therefore, the benefit of doubt may be extended to the appellant as matter of right; he lastly submits that the learned trial Court without appreciation of evidence convicted and sentenced the appellant which is not sustainable in the eye of law and the appellant is entitled to clean acquittal.
8. The learned Assistant Advocate General appearing on behalf of the State argued that the FIR has promptly been lodged after the occurrence, without any consultation or fabrication. The recovery of human blood from the spot confirmed the venue of occurrence, and multiple recoveries weapon of offence .30 bore pistol, blood stained clothes, pellets and blood stained earth etc, were effected during investigation and were sealed into parcel immediately; the medico legal report of the deceased supported the case of prosecution; that the FS L report regarding the crime weapon and empties are matching and positive; further states that the accused made volunteer confession before Judicial Magistrate, which is a solid exculpatory confession where the genuineness of documents of confession statements is otherwise proved; he lastly submits that the prosecution has proved its case against the appellant beyond any shadow of doubt, that there is no chance of false charge, as the complainant would have charged the accused at the first instance in the FIR, had there been any malice. The involvement of accused/appellant in this case is fully established; he sought dismissal of the appeal.
9. We have heard the learned counsel for the appellant as well as learned Assistant Advocate General, Khyber Pakhtunkhwa appearing on behalf of the State.
10. According to prosecution story that on 10.11.2011 at about 2000 hours, Zaman Ali (complainant) son of Shah Zaman resident of Maneri Payan Mohallah Karam Khel District Swabi, came out from his house and was proceeding to his Hujra, when he reached at the place of occurrence, 5/6 unknown persons duly armed called him to stop and out of them three persons started firing at him, which resulted injuries to his person, due to night time he could not identify the accused persons and later on injured Zaman Ali (complainant) succumbed to his injuries. Case was registered on report of complainant against unknown accused persons. Thereafter PW-11 and PW- 12 got recorded their 164 Cr. P. C . Statements before Judicial Magistrate and nominated the convict/ appellant.
11. It is an admitted fact that appellant/convict was not nominated in the FIR but PW-11 and PW-12 in 164,. Cr.P.C. Statements which were recorded after lapse of two days before Judicial Magistrate, implicated the appellant with the commission of alleged offence. The deposition of State PWs with regard to nomination of appellant are not convincing and reasonable because neither source was disclosed nor any witness in this regard was produced, therefore, the evidence of said PWs with regard to nomination of appellant is kept out of consideration.
12. It is an admitted fact that it is an un-witnessed incident, but the case of the prosecution rests on judicial confession and recovery of crime weapon recovered from possession of appellant and matching report issued by Fire Arms Expert in respect of crime weapon pistol recovered from appellant and empty secured from the place of occurrence.
13. The material piece of evidence is the judicial confession made by appellant before concerned Judicial Magistrate. According to PW Abdul Hussain Mohmand Civil Judge/Judicial Magistrate that on 16.04.2011 appellant Qaisar Ali got recorded his confessional statement which was voluntarily one as, it was recorded After satisfying himself that accused/appellant was willing to record his confessional statement voluntarily. But the confessional statement is not helpful to the case of prosecution because the same has been recorded by Judicial Magistrate not observing the requirements of the provision of Section 364 read with Section 164, Cr.P.C., by not adhering to procedure laid down in the High Court Rules. As recording Magistrate though has put question to the appellant that in case of not making a confession in that case he would not be handed over back to the investigation police, but the Recording Magistrate has not acted upon the same.
Because the PW-10 Judicial Magistrate in his deposition stated that after recording confession of the appellant he was handed over to Naib Court of the court in order to consign him to judicial custody. But the second investigating officer (PW-14) when appeared before the Court while replying a question stated that accused/appellant along with other accused after recording their confessional statements by Magistrate were handed over back to him for transmitting them to jail/judicial custody. From the deposition of investigating officer (PW-14) it is crystal clear that Recording Magistrate after recording alleged confession of the appellant handed over him back to the investigating officer for consigning him to jail/judicial custody. Since the Recording Magistrate has not complied with the High Court Rules, while recording the alleged confession inadmissible which cannot be relied upon for the safe administration of justice, being not a volunteer one. The alleged judicial confession made by appellant is also not in line with the incident as reported by the deceased/complainant. According to the confession that on resistance by deceased he was fired at the appellant. But the report made by deceased/ complainant on the basis of which FIR was registered not discloses that deceased/ complainant had made resistance or accused persons had attempted to rob any article from him, that the alleged confession made by accused are of stereotype and tailored one; it further makes the judicial confession doubtful. Reliance is placed on authority reported as (Azeem Khan and others V. Mujahid Khan and others 2016 SCM R 274)
14. The other material piece of evidence collected by prosecution against the appellant is the recovery of alleged crime weapon empty secured from place of occurrence and Fire Arms Expert Report (Ex.P/K) but the same too are not helpful to the case of prosecution. According to prosecution evidence the appellant was arrested and crime weapon pistol was recovered from his possession. Thereafter the recovered crime weapon was taken into possession as a case property in this main case and alleged crime weapon pistol was sent to Fire Arms Expert for matching along with an empty secured from the place of occurrence was found to have been fired with the alleged pistol which was recovered from the possession of appellant. But the recovery of pistol is highly doubtful and cannot be relied upon because when the crime weapon pistol taken into possession as a case property in the case in hand was not sealed in a parcel when recovered from possession of appellant in Arm case and admittedly the crime weapon pistol was produced by Moharrar of the police station to the investigating officer of the case in hand as open. As such the matching report issued by Fire Arms Expert with respect to alleged recovery of crime weapon pistol and empty collected from the place of occurrence loses its legal sanctity and kept out of consideration for the safe administration of justice.
15. It may not be out of place to mention here that appellant has already been acquitted of the charge in Arm case registered against him on allegation of alleged recovered pistol.
16. The learned trial Court has placed reliance on judicial confession and Fire Arms Expert report and made a base for conviction of the appellant. But the judicial confession made by appellant and Fire Arms Expert report have already been declared involuntarily one and doubtful, the same therefore, cannot be made a base for conviction of appellant. The benefit of doubt if any arises must be extended in the favour of accused/appellant. (Reliance placed on case law of Munawar Hussain v. The State (1993 SCM R 785). The case of the prosecution is highly doubtful and prosecution has been unable to establish its case against the appellant adducing reliable and concrete evidence convicted and sentenced the appellant Qaisar Ali by means of impugned judgment dated 28.11.2013 which is not sustainable in the eye of law as such this Jail Criminal Appeal filed by appellant Qaisar Ali son of Pir Muhammad, is hereby accepted and the impugned judgment dated 28.11.2013 is set aside and appellant is acquitted of the charge. The appellant shall be released if not wanted in any other case. 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.