MOHAMMAD IBRAHIM KHAN, J-.On the charges of slaughtering by committing Qatl-e -Amd of an unknown lady aged about 35/38 years, an unknown minor girl aged about 9 years and an unknown boy aged about 8 years all residents of Karachi, accused/appellant Ziarat Gul was convicted and sentenced to life imprisonment under section 302(B) PPC. The benefit of Section 382-B Cr.PC was extended to him because whereabouts of the deceased were not known no order of compensation in favour of legal heirs of deceased was passed within the meaning of Section 544-A Cr.PC. This conviction and sentence was passed through the impugned judgment of the learned Sessions Judge/Camp Court at Lahor , Swabi on 04.03.2013.
2. It is a jail appeal in respect of the convicted person Ziarat Gul sentenced in case FIR No. 904 dated 08.08.2011 charged u/s 302/34 PPC of Police Station Lahor, Swabi, duly forwarded through the office of Superintendent Central Prisoner, Haripur for lawful consideration.
3. The relevant facts are that upon receiving information by Munsif Ali ASI that dead bodies of an unknown lady and two minor children, one boy and one girl are lying in the field of Lajbar Shah which is situated at Baba Wand village Jalbai. He reached to the spot where the dead bodies of three unknown persons were lying there being slaughtered. At the time when this case was registered no one was charged while under the statement of Fazal Rehman, Sartaj and Nisar-ud-Din recorded u/s 164 Cr.PC, the accused facing trial and Umer Zada who is since then fugitive were charged. In order to bring home the charges, the prosecution examined PW-1 Mr. Asim Khan, Judicial Magistrate Lahor, PW-2 Ayub Khan IHC, PW-3 Izhar Shah Khan Inspector/SHO, PW-5 Munsif Ali ASI Police Station Permoli, PW-6 Bakht Afzal SI, PW-7 Muhammad Ali DFC, PW-8 Dr. Mohammad Ijaz, PW-9 Ghani Said SI, PW-10 Ayaz Khan HC, PW-11 Lady Dr. Rozina, PW-12 Sartaj, PW-13 Ahmad Ali SI. All the rest PWs were abandoned and after closure of the prosecution evidence, accused was examined u/s 342 Cr.PC. He was confronted to confessional statement, on denial posed his innocence.
4.Having heard pauper counsel for theaccused/appellant and learned AAG for the State, record gone through their assistance.
5.Admittedly in this case no one is charged in the FIR while under the statement of Fazal Rehman, Sartaj and Nisar-ud-Din accused/appellant was charged who on arrest when produced before the learned Judicial Magistrate is said to have recorded his confessional statement. The leave trace leading to the arrest of the accused/appellant is evident from the statement of PW 12 Sartaj who is cleaner with Nisar alias Toray The rest PWs Fazal-ur-Rehman and Nisar-ud-Din who had recorded their statements were abandoned being won over.
6. Appreciating the last seen evidence the deceased when taken to the Rashakai Inter Change there accused/appellant Ziarat Gul, Saeed Gul and Umer Zada who were relatives of Nisar driver came thereby stating that some guest have come to their house from Karachi and hired the Suzuki to drop them at Nowshera Cantt. The woman and the children were duly identified from their photographs. If the statement of this PW-12 Sartaj is taken as last seen evidence, it is too weak to disclose that whether infact the woman and the minor children who were seated with those persons who were seen with the accused/appellant. Reliance is placed on 2008 SCMR 1103, 2004 MLD 1484, 2013 PLD [Peshawar] 78.
7. Even if at all the statements of PWs Nisar and Fazal Rehman recorded u/s 164 Cr.PC were punch line leading for the prosecution thereby abandoning them, the prosecution has withheld that best evidence. In support the wisdom is contained in 2006 SCMR 1846, 1995 SCMR 1345. The confessional statement of accused/appellant which has formed basis for conviction and sentence to life imprisonment by the Court of learned Sessions Judge/Camp Court at Lahor, Swabi when is thoroughly appreciated in view of the statement of PW-1 Asif Khan Judicial Magistrate, Lahor , it suffers from material irregularities and illegalities. The learned Judicial Magistrate has admitted "It is correct that the Court seal (round shape) is not available on the confessional statement of accused self stated that statement, questionnaire and certificate bear the stamp having name and Court." "It is correct that the first page of questionnaire EXPW1/2 does not bear my signature/initial." "It is correct that I did not specifically mention in certificate EXPW1/3 that questions mentioned in questionnaire were put to accused in Pushto or any other language." "It is correct that confessional statement of accused, questionnai re and certificate do not contain anything regarding identity of accused like NIC, identification marks and NIC No., physical appearance, nor he was identified by anyone." I have not put any question to the accused regarding the nature of offence he has made confession. "It is correct that three warnings were not given to the accused."
8. It has been held in 2016 SCMR 274 [Supreme Court of Pakistan] (Azeem Khan and another Vs Mujahid Khan and others) that when the statement under sections 164 Cr.PC and 364 Cr.PC are to be recorded before Judicial Magistrate procedure and precautions to be observed by Magistrate for recording judicial confession of an accused. In support there is another ruling reported in 1999 MLD 55 [Federal Shariat Court] (Muhammad Kalam and 2 others Vs The State) whereby for recording statement S.364 (2) & (3) of the Criminal Procedure Code (v of 1898) it is mandatory to give details as has been admitted by the learned Judicial Magistrate coming forward as PW-1 and if the same is not cured it would mean the illegality which is not curable. Besides as reported in 2004 MLD 1484 [Peshawar] (Sameen Khan Vs The State and another) that while appreciating an evidence when there is no direct ocular evidence was available and whole case was hanging upon confessional statement of accused last seen evidence recoveries of incriminating articles coupled with medical evidence confessional statement of accused which had been retracted by him was of no avail as its voluntary nature was doubtful and said confessional statement was totally negated by medical evidence.
9. In this case motive behind the occurrence is shrouded in mystery. It is not known and the prosecution was unable to state the motive as to why the woman and two minor children were brutally slaughtered. Following the arrest of accused/appellant in accordance with the card of arrest EX.PW13/9 the time of arrest has been shown 17:30 on 21.02.2011 while its preparation date is 21.02.2012 there is an intervening period of one year and the time of arrest has been shown is almost six months prior to the occurrence. It has been held in YLR 2016 2020 [Peshawar] (Inayatullah Vs The State) that when the motive behind the occurrence remained shrouded in mystery which has created serious doubts in the prosecution case, the absconcion if any is not substantive piece of evidence rather it was corroborative piece of evidence where there is no direct evidence the corroborative piece of evidence was of no avail. Abscondence could neither cure the inherent defect of the ocular account nor by itself it was sufficient for the sustaining of conviction.
10. Last but not least the Investigation Officer while preparing the site plan has added Point No.5 and 6 whereby at Point No.5 accused/appellant has been shown to have slaughtered the woman and minor children but in the sketch of the plan these points have not been added when it is difficult to know that whether the accused/appellant has committed the brutal murder of an unknown woman.
11. For what has been stated the last seen evidence is the weakest kind of evidence. The contradictions between confessional statement and medical evidence, the findings of learned trial Court is not based on solid evidence which cannot form basis for a conviction. On allowing this appeal the conviction and sentence of the appellant Ziarat Gul awarded by the learned Sessions Judge Camp Court at Lahor, Swabi is set aside. The appellant is acquitted of the charge of the murder of an unknown woman. He be set free if not required in any other case.
Office is directed to send a copy of this judgment to the Superintendent Central Prisoner, Haripur for release of the appellant Ziarat Gul forthwith if not required in any other case.