MALIK HAQ NAWAZ, J.---The appellant stood trial in the Court of Sessions Court Chilas District Diamer on the charges under section 302, P.P.C. vide FIR No. 20/2008 dated 14-10-2008 registered at Police Station Tangir, District Diamer.
2. The brief facts of the case as narrated in the FIR exhibit PW-4/B are that on 14-10-2018 (sic) at about 23:55 hours PW Afraidi while appearing before SHO Police Station, Tangir reported that on the said date at about 1800 hours accused Abdul Wadood came to his house and took deceased Abdul Manan to his own house on the pretext of some job. At about 23:50 hours, it was informed that his brother Abdul Manan has been murdered in front of the house of one Bakht Jamal son of Mehzoob resident of of Shumari by opening shots with fire arm. Consequent upon the information, he and his father proceeded to the place of occurrence where they found the dead body of Abdul Manan lying in front of the house of Bakht Jahan. The probability as shown in the FIR was that deceased Abdul Manan was murdered by accused Abdul Wadood and the said Bakht Jahan or he has been killed by some other person at the instance of the said two persons.
3. In order to prove the case prosecution examined 10 PWs while one PW was abandoned as unnecessary. The gist of the evidence of the PWs from 1 to 10 been given in the judgment of the learned trial Court dated 15-10-2012 from paras 7 to 16 which are reproduced for ready reference:--
7. Abdul Ghafar PW-1 who is the father of the deceased stated that it was evening time that a brother and a nephew of the accused called deceased Abdul Manan from his house to the house of the deceased with pretext of some important job. His deceased son went to the house of the accused along with the said two persons. At about 10:11 p.m. they heard reports of firing. His daughter Mst. Soni Kuli PW-6 told that accused Abdul Wadood has murdered Abdul Manan. On receipt of this information, he proceeded to the house of the accused where he saw the dead body of his son was placed on a charpayee whereas many people including the police were gathered there. The police told to the PW to go back to his house and he accordingly went back.
When he reached at his house the dead body of the deceased was brought there. During cross- examination testified that on next day of the occurrence matter was reported to police and then the police came and recorded his statement. At the time of occurrence PW Afraidi was at Gali Tangir and he came to his house on next day of the occurrence.
8. Abdul Rauf PW-2 stated that it was about 4:05 p.m. accused Abdul Wadood invited him and his deceased brother in his house while at that time he was at Shumari Bazaar. He regretted saying that on next day he had to proceed to Nallah Chashi. At evening time when he came to his house, he found the deceased and PW-1 in the house and the deceased was taking dinner. A little while after he went to the house of his uncle adjacent to his own house. When he came back to his house his deceased brother was not present there. On enquiry, he was told by PW-1 that deceased Abdul Manan was taken to the house of accused Abdul Wadood. He further told that the accused had sent on bother and one cousin for inviting the deceased to his house at about 10 p.m. his sister Mst. Sone Kuli PW-6 came there and told about the murder of the deceased. They went to the house of accused Abdul Wadood where they saw the dead body of the deceased lying in the house of the accused. With the assistance of other people, he shifted the dead body to their house.
9.Tajuddin PW-3 stated that he was marginal witness of memo Exh. PW-3/A vide which the police took the dead body of deceased Abdul Manan in their possession. He was marginal witness of Exh.
PW-3/B vide which the dead body of the deceased was identified by the complainant. He was marginal witness of memo Exh. PW-3/C vide which the police took in possession the blood stained earth from the place of occurrence. He was marginal witness of memo Exh. PW-3/D vide which the police took in possession 7 empty shells from the place of occurrence. He was marginal witness of memo Exh. PW-3/E vide which the police took in possession blood stained shirt from the body of the deceased he is marginal witness of memo Exh. PW-3/F vide which the police handed over the dead body to the L. Rs.
10.Afraidi PW-4 in his statement has stated that two years and 11 months before accused Abdul Wadood present in Court took his deceased brother Abdul Manan from his house to his own house in the house with pretext of an important business. His sister PW Sone Kuli was already in the house of the accused. At about quarter to 11 p.m his sister came and informed that accused Abdul Wadood has murdered Abdul Manan. He and his father etc. went to the house of the accused and saw the dead body of Abdul Manan deceased was placed in verandah of the house of the accused. Police already reached there. In his presence the police took in possession the blood stained earth from the place of occurrence, took in possession the blood stained clothes of the deceased, took in possession 7 empty shells of Kalashnikov and thereat after police handed over the dead body to them and they shifted it to their house. He identified the dead body to police. The shots fired at the deceased were hit on his chest. The police prepared inquest report Exh. PW-4/A is correct. On his verbal report FIR No. 20/2008 Exh. PW-4/B was registered. His signature appearing on the FIR is correct. During cross-examination, he testified that the FIR was registered at the place of occurrence on his verbal report.
11. Syed Mir PW-5 stated that on verbal report of Afraidi PW-4, he registered FIR 20/2008 at Police Station, Tangir against accused present in court. His signature appearing on the FIR is correct.
After registration of the case he visited the place of occurrence. First of all he prepared site plan Exh. PW-5/A, drafted site inspection note Exh. PW-5/B, prepared in quest report Exh. PW-4/A, took in possession the dead body of deceased Abdul Manan under memo Exh.PW-3/A identified by a brother of the deceased vide memo Exh.,PW-3/B, took in possession blood stained earth and secured the same under memo Exh. PW-3/C, took in possession 07 empty shells vide memo Exh.PW-3/D, took in possession blood stained shirt of the deceased under memo Exh.PW-3/E handed over the dead body for burial vide memo Exh.PW-3/F he search the person of the accused Bakht Jahan vide memo Exh.PW-5/C further investigation of the case was then assigned to ASI Abdul Ghani. During cross-examination, he testified that the FIR was lodged by the complainant coming at police station and he registered the same there. After lodging the FIR he and other police party proceeded to place of occurrence along with the complainant but they left the complainant in his house on way. When he reached at the place of occurrence the dead body was already shifted to his house. Till the transfer of investigation of case from him no PW appeared before him for recording statements under section 161, Cr. P. C.
12. Mst. Soni Kuli PW-6 who is real sister of the deceased stated that on the day of occurrence she was in the house of Bakht Jahan at Shumari to stay for night. At evening hours deceased Abdul Manan also came there. The said Bakht Jahan is the uncle of the accused. Accused also came in the house of Bakht Jahan. Bakht Jahan went out from his house holding a kalashnikov in his hand and within 5/10 minutes the accused too went out from the house and while going out he gestured to deceased Abdul Manan that he should also come out. When deceased Abdul Manan stood up for going out from the room she prohibited him but the accused again insisted the deceased for coming out to discuss some matter resultantly the deceased went out and within one minute she heard 03 reports of firing. She stood to go out but the inmates of the house did not allow her rather told that Bakht Jahan usually opens fires at evening time. This time out from the house and saw the dead body of deceased brother lying in verandah of the house of Bakht Jahan and the accused as they reside in the same house having common verandah. She proceeded to village Charchal to inform about the occurrence to his father etc, During cross- examination, this PW has stated that when they were going back to the house of her father along with the dead body, PW Afraidi meet them on way. She has not seen the accused firing at deceased. At the time of firing one Jan Alam was present on the spot.
13. Muhammad Aman PW-7 stated that on 10-10-2008, he was at Shumari Bazzar that police along with the accused came there. He and PW Blair accompanied the police. The accused went in his house and then came back holding a SMG rifle in his hand. He handed over the said rifle to Police as crime weapon. The Police secured the gun under memo Exh.PW-7/A. He and PW Blair signed the memo as marginal witnesses. 14.Mr. Muhammad Yousaf PW-8 stated that at time of occurrence he was performing the duties of Civil Judge cum Judicial Magistrate Tangir at Chilas. On 22-10-2008 PW Syed Mir produced the accused and one PW Jan Alam before him for recording their statements under section 164 Cr.P.C.
He recorded their statements vide Exh.PW-8/A and Exh.PW-8/B.
15.Abdul Ghani SIP PW-9 in his statement says that on 16-1-2008, the investigation of the case was entrusted to him whereas up to that date the investigation was carried out by IP Syed Mir (PW-5). He recorded statements of some PWs under section 161, Cr. P. C. and released accused Bakht Jahan under section 169, Cr. P. C. In presence of PW Jan Alam the accused confessed about the in hand murder committed by him. He recovered a rifle from the accused and registered a separate case FIR No.21/2008 Exh.PW-9/A and prepared site plan Exh.PW-9/B in respect of the said recovery.
16.Jan Alam PW-10 stated that on 14th October, 2008 me, accused Abdul Wadood present in Court and deceased Abdul Manan had gone to bring grapes to house of Abdul Wadood at about 11 p.m. When we returned to the house of accused present in Court, the accused opened 03 fires on the deceased at his door by Kalashnikov/SMG. After the occurrence, I went to the house of accused and the accused told me that he should not tell any information regarding the occurrence to any person and deceased died on the spot.
4.After evaluation and thread bare scanning of the prosecution evidence the learned trial Court found the accused guilty and awarded him life imprisonment under section 302(b), P.P.C. The convict was also directed to pay amount of Rupees three lac to be paid to the legal heirs of deceased as provided under section 544-A, Cr.P.C. or in default thereof he was directed to further undergo rigorous imprisonment for the period of one year. The appellant was also convicted under section 13(b) Arms Ordinance-1965 and sentenced to undergo 04 years imprisonment however, the benefit of 382(B), Cr.P.C. was extended to the accused.
5.Being aggrieved from the order/judgment of learned trial Court the petitioner has filed the instant appeal under section 410, Cr.P.C. challenging the validity of impugned judgment on multiple grounds.
6.The learned counsel for the appellant submitted that the FIR was lodged after preliminary investigation and prosecution is not certain as, and when the FIR was lodged in Police Station. Per learned counsel, PW-1 Abdul Gafar who is father of deceased stated in unequivocal terms that at the time of occurrence PWs Afraidi was in Gali Tangir and came to his house on the following day of occurrence. The learned defence counsel forcefully argued that the names of PWs are not mentioned in FIR and the statement of so called eye-witness (PW-10) Jan Alam was recorded on 18-10-2008 after many days of the occurrence and his statement on this score alone is to be ruled out of consideration as no explanation for late recording of the statement of the PW is available on record, whereas he remained in the village after the occurrence. The learned counsel further stated that recoveries are also fake and planted and cannot be legally used against the appellant as these were not sent to Forensic Science expert for expert opinion. The learned counsel pointed out some contradictions in the statements of PWs and submitted that the appellant be acquitted from the charges as the prosecution failed to prove its case beyond reasonable doubt. The learned counsel further submitted that postmortem on the dead body of deceased was not conducted.
Recovery is also planted and statement of PW Jan Alam and accused under section 164, Cr.P.C. are false and result of pressure and were obtained by applying third degree measures. The learned counsel relied on 2007 SCMR 162, 2007 SCMR 670, 2009 SCMR 230, 2008 SCMR 6, 1993 SCMR 550, PLD 2008 Lahore 268, 2009 PCr.LJ 1119, 198(sic) SCMR 570, PLD 1971 Lahore 850, PLD 1978 Supreme Court 21, 2002 PCr.LJ 2021, 2010 SCMR 374, PLD 2002 Supreme Court 1048, 2009 PCr.LJ 1226, 2008 SCMR 1221, 2009 SCMR 120, 2010 PCr.LJ 1296, 2009 PCr.LJ 199, PLD 2002 Supreme Court 781 to support his contention.
7.On the other hand the learned Dy. Advocate General submitted that the FIR was lodged within 15 minutes of the occurrence and there is un-rebutted evidence on record that few hours before the occurrence the deceased was taken to the house of accused in presence of his father namely Abdul Gaffar who was examined as PW-1. The learned Dy. Advocate, General further contended that the dead body of deceased was found lying in the house of accused for which no earthly explanation has come on record and the accused was under moral and legal obligation to dispel the recovery of dead body of deceased Abdul Manan in his house. The learned Dy. Advocate General vehemently argued that the parties are closely related and no reason has been brought on record by defence for false implication of the present appellant. On the strength of above submission, the learned Dy. Advocate General prays that the conviction recorded by the trial Court be maintained. The learned Dy. A.G referred, PLJ 2006 SC 1050 and PLD 2004 SC 343 in support of his arguments, and prayed that the judgment of the trial Court be maintained.
8. We have heard both the parties at a considerable length and perused the relevant record with their able assistance. The FIR in the instant case seem to have been lodged promptly as evident from the bare reading of the FIR which transpired that the appellant is 'not directly charged in the FIR for murdering the deceased Abdul Manan rather it finds mentioned in the FIR that since the appellant took the deceased Abdul Manan to his house at about 18:00 hours on the pretext of some urgent work and the complainant party received information of death of Abdul Manan and later on they found the dead body in the house of the appellant, therefore, the complainant raised a finger of suspicion against the appellant/accused. If for the sake of arguments the FIR would have been lodged after preliminary investigation then the contents of FIR would have been different than the present one. It is pertinent to mention here Abdul Gaffar father- of the appellant was examined in the trial Court as PW-1 on 09-09-2011 and his age was mentioned 80 years. One can hardly expect from such an old age person to remember and narrate the thing in composed and coherent manner. As evident from the record that the parties are closely related. PW-6 Mst. Sone Kuli admitted in her statement that the real sister of appellant is in the wedlock of her son. During the arguments before the Court it was also admitted that sister of deceased Abdul Manan is also in the wedlock of the father of the present appellant and both the ladies are still living in the same house as co-wives. Now almost all it is settled proposition of law that corroboration is a rule of prudence and not a rule of jurisprudence. If from the attending circumstances of a particular case the mind of Court is satisfied that the accused has committed the murder and there was no previous enmity existing between the parties and they are so closely related, no corroboration would be required for conviction of an accused. When the Court is satisfied that the substantive evidence is natural, reliable and trustworthy then C supportive evidence will not be a legal requirement.
10. In the case in hand the statement of PW namely Jan Alam (PW-10) under section 164, Cr.P.C. was recorded by the learned Judicial Magistrate Mr. Muhammad Yousaf on 22-10-2008 and the learned Judicial Magistrate was examined as (PW-8) in the trial Court on 02-11-2011. The learned Judicial Magistrate also recorded confessional statement of the appellant under section 164, Cr.P.C. which was exhibited in the trial Court as Exh.P.W-8/B. The appellant was provided opportunity to engage a counsel to cross-examine PW Jan Alam whose statement under section 164, Cr.P.C. was being recorded by the PW-8. As evident from the record that the appellant did not opt either to engage a counsel or to cross-examine the PW himself. The statement of PW Jan Alam under section 164, Cr.P.C. has been exhibited as Exh. P.W 8/A. However the statement of the appellant Exh. P.W-8/B is not recorded in accordance with law and just a waste piece of paper. The learned Judicial Magistrate was absolutely unaware about recording of a confessional statement of a accused under section 164, Cr.P.C. The statement of accused under section 164, Cr.P.C. is a substantive piece of evidence if the learned Judicial Magistrate would have taken a little pain to go through the provisions of section 164, Cr.P.C. The situation would have been different recording of confession of an accused is not an empty formality but sacred/solemn duty. The dispensation the Justice is a solemn and sacred duty and the Judges, who are assigned with such duties are responsible to discharge their duties with due diligence without any fear or favour. Conviction could be based on confession alone, provided the mind of Court is satisfied that it is true and voluntarily in nature and has been made by the accused without any inducement or pressure and these ingredients or adjudged by the trial Court and Appellate Court from the thread bare scrutiny of confession. When the appellate Courts find, that though the confession is genuine but necessary precautions were not taken, then it would be highly dangerous to relying on such a confession. Therefore, it is high time that guide lines be laid down for recording of a confession of statement of an accused under section 164, Cr.P.C. For the guidance of the learned Judicial Magistrates recording statement of an accused under section 164, Cr.P.C. the guidelines have been provided in 1984 PCr.LJ 611 which are reproduced as under:-- "Criminal Procedure Code (V of 1898).
Section 164 (3) confession---Voluntary character of confessional statement-Court must look for strict compliance of S.164(3), Cr.P.C,--- procedure to be followed in recording confession by Courts reiterated---[confession].
Courts must look for strict compliance of sub section (3) of section 164, Cr. P. C. before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrate who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession it reiterated for their guidance. Magistrate would be well-advised to follow the procedure which is given below:-- As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turn out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would' be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter.
Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following question should be put to him:- (i)For how long have you been with police?
(ii)Has any pressure been brought to bar up on you to make confession?
(iii)Have you been threatened to make confession?
(iv)Has any inducement been given to you?
(v)Why are you making this confession?
(vi)Have you been maltreated by police?
After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim."
11. The confessional statement of the accused is not up to the mark and ruled out of consideration but we find no ambiguity in our mind that there is abundant evidence on recorded that it was the accused who committed the murder of deceased Abdul Manan. As held supra the accused has not discharged the burden regarding recovery G of dead body from his house and he failed to explain the circumstances to dispel the onus/burden which under law he was bound to do. Article 121 of Qanun-e-Shahadat, 1984 is reproduced as under:-- 121---Burden of proving that case of accused comes within exception.When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence, of such circumstances.
12. The recovery of dead body of the deceased Abdul Manan from the house of appellant/accused Abdul Wadood is a strong piece of corroboratory evidence, which cannot be lightly ignored and no suggestion has been put to any PW even to I.O. to extract anything in favour of the accused.
13.The accused was convicted by the trial Court vide judgment dated 15-10-2012 and was awarded life imprisonment under section 302(b). The Court was directed to pay Rs.300000/- (three lac) to be paid to the legal heirs of the deceased Abdul Manan under section 544-A, Cr.P.C. and in default he was directed to further under go one year R.I. He was further convicted under section 13(b) Arms Ordinance, 1965 and was awarded 4 years R.I. and the weapon of offence bearing
(SMG) bearing No. XR-2270 was confiscated in favour of State.
14.We see no infirmity in the impugned judgment, of the trial Court dated 15-10-2012, which is upheld and Criminal Appeal bearing No. 41/2012 filed by the appellant is dismissed being meritless.