' IKRAMULLAH KHAN, J.---Impugned herein is the judgment dated 04.06.2013 of the learned Additional Sessions Judge-II, Camp Court Oghi at Mansehra whereby each of the appellant, three in numbers, was not only convicted and sentenced under Section 364, P.P.C. But also under Section 302(b), P.P.C. To rigorous imprisonment for life with a fine of Rs,50,000/- and Rs,1,00,000/- respectively. The latter fine was directed to be paid to the legal heirs of the deceased as compensation or in default to undergo further six months' S.I while in case of failure of the former fine to suffer three months' S.I. However, both the sentences were ordered to run concurrent with benefit of Section 382-B, Cr.P.C., hence, the instant appeal has been preferred by the appellants while the complainant also filed Cr. Revision No, 24-A/2013 for enhancement of the above- mentioned sentences, therefore, through this single judgment we intend to dispose of both these matters, being arisen out of a common impugned judgment.
2. Briefly stated facts leading to the instant appeal are that the complainant while reporting the crime alleged that on 22.09.2010 his brother Miskeen left his house on 12.09.2010, seen by his brother-in-law, Muhammad Ameen at 07:30 A.M. With the company of Taj Muhammad (one of the accused-appellants) and an unknown person, who called his brother-in-law that he was going to Mansehra along with Taj Muhammad in connection with some work and will return at night or on the following day but when he did not return till next day i,e, 13.09.2010 and the complainant failed to contact him through his cell phone, hence, reported the matter rather disclosed that on further verification he will inform the local police, which report was registered in daily diary No, 35, however, on 30.09.2010 again the complainant went to police station and nominated the present accused- appellants along with their co-accused for kidnapping and murder of his brother Miskeen. Motive for the crime was stated to be blood feud enmity between the parties; hence, the accused- appellants were arrested and taken into custody while the co-accused namely, Muqadar, Nazeer, Shereen and Gaat are still absconders.
3. After completion of investigation, challan was submitted against the appellants before the learned trial Judge, who formally charge sheeted them to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, examined as many as fourteen (14) witnesses in all.
5. At the close of the prosecution evidence, statements of the appellants/convicts were recorded under Section 342 Cr.P.C wherein they denied the prosecution's version nd professed their innocence. They, however, did not examine themselves on oath and also abstained to produce evidence in defence.
6. At the conclusion of trial the appellants were convicted and sentenced as above, hence, the present appeal.
7. In order to prove its case the prosecution has produced and examined the following witnesses as:-- ' Mubarik Hussain, SHO, who appeared as PW-1, stated that on the report of complainant, he registered the case FIR and after completion of investigation by the I.O. Submitted complete challan before the court on 23.10.2010.
' Gulzar, IHC, who appeared as PW-2, deposed that complainant produced box of mobile bearing No, IME-1- 355519028612622 to the I.0 which was in use of the deceased while the said mobile was already taken into possession from one of the accused namely, Noor Ahmad_ ' Chanzeb, who appeared as PW-3, stated that Noor Ahmad accused was his tenant, who had given his house to him on rent for residential purposes, however, during the course of investigation, accused led the police party to the said house and in his presence got recovered the mobile and produced it to the Investigating Officer.
' Ejaz Ahmad, who appeared as PW-4, deposed that on 04.10.2010 he along with Haji Ali Mardan and police party with accused Taj Muhammad, Malook and Noor Alunad, appellants, proceeded ' towards Besham where the accused Taj Muhammad pointed out the place from where he along with his co-appellant threw the deceased into the river.
' Muhammad Amin, who is brother-in-law of the complainant, while appearing as PW-5 deposed that on the day of occurrence he was present in Baila. Said Ada and saw the deceased with Taj Muhammad accused and one other unknown person in a Suzuki Van. He further went on to say that prior to the incident too, he saw the unknown person with the deceased and, as such, he could identify him.
' PW-6 is Judicial Magistrate namely, Qazi Ejaz-ur-Rehman, who appeared before the court and stated that accused Taj Muhammad was brought by the police and after giving sufficient time, he recorded his confessional statement without any duress and coercion. He also affirmed the correctness of Ex.PW-6/1, Ex.PW-6/2 and Ex.PW-6/3 along with his own endorsement Ex.PW-6/4.
' The complainant Gulab appeared as PW-7, who almost narrated the same story as given in the FIR.
' Muhammad Iqbal Khan, SI, while appearing as PW-8 stated that on 15.10.2011 he arrested the co- accused Malik Aman alias Malki from the custody of Police Station Allahi District Batagram and thereafter issued card of arrest Ex.PW8/1 and then on his application Ex.PW-8/2 two days custody was obtained from Judicial Magistrate Oghi whereafter, the accused was sent to Jail.
' Muhammad Saleem appeared as PW-9, who deposed the accused Malik Aman was found avoiding his lawful arrest, thus, he was entrusted with his warrant of arrest under section 204, Cr.P.C. But due to his non-availability the same was returned unexecuted after affixing its copy on his outer door.
' Abdul Khanan, investigating officer of the case, appeared as PW-10, who stated that after entrustment of the investigation he went to the place of occurrence and prepared the site plan Ex.PW-10/1 on the pointation of Mst. Kantray Bibi wife of the deceased whereafter, he arrested the accused Taj Muhammad on 01.01.2010 and prepared his card of arrest Ex.PW-10/2. He further went on to say that during interrogation Taj Muhammad confessed his guilt and, as such, he was produced before the Judicial Magistrate for recording his confessional statement through application Ex. PW-6/4. He further deposed that after arrest of Noor Ahmad accused, on his pointation, he dig out the mobile of deceased concealed by the accused. He applied for warrant under Section 204 Cr.P.C. Against the co-accused Muqadar, Nazir, Shireen, Gaat and Malik Aman whereafter, he also applied for their proclamation under section 87, Cr.P.C. Through application Ex .
PW10/10 and Ex.PW-10/12 respectively. He produced accused Said Malook and Noor Ahmad before the' Judicial Magistrate Oghi for recording their confessional statements along with Taj Muhammad accused on 06.10.2010, who confessed their guilt without any duress and coercion.
' Nasrullah Khan, Judicial Magistrate, appeared before the court as PW-11, who deposed that the local police produced Said Malook and Noor Ahmad accused on 08.10.2010 for recording their confessional statements through application and their statements were recorded by him, whereafter he sent the accused to Jail through separate orders.
' Muhammad Iqbal Khan, SI, appeared as PW-12, who stated that accused Munir alias Ghaat was arrested by him from Batagram while accused Muqadar and Muhammad Nazir were arrested by Mubarik Shah, SHO and after obtaining their custody from the court twice when they did not confess their guilt, they were sent to judicial lock up.
' PW-13 Mubarik Khan, SHO, while appearing before the court, stated that on completion of investigation, he submitted supplementary challan against the accused Muqadar, Nazir and Munir.
' Mst. Kantaray, who is widow of the deceased, while appearing in the witness box as PW-14, deposed that on 12.09.2010 one of the accused namely, Taj Muhammad came to her house and spent about one hour outside the house whereas on the next morning after Fajjar prayer her deceased husband left for Kathai Bazar but returned within half / one hour and changed his clothes rather took Rs,4000/- from her. She further went to say that on query she was told by her husband that he is going with Taj Muhammad accused, whereafter no contact was made with him and thus, she charged the accused Taj Muhammad, Said Malook, Muqadar, Nazir, Shareen, Ghaat for abduction and murder of her husband Miskeen.
8. The whole prosecution story revolves around the following three things:-- i. The recovery of mobile set on pointation of one of the appellants namely, Noor Muhammad. ii. The confessional statements of all the three accused-appellants; and iii. The pointation of place of occurrence by all the three accused-appellants.
9. According to the testimony of Abdul Khanan (PW-10), who was investigating officer of the case, the appellant Taj Muhammad was arrested on 01.10.2010 whereafter he pointed out the place of occurrence on 04.10.2010 when rest of the other two appellants were not yet arrested in presence of Ejaz Ahmad (PW-4) and one other namely Haji Ali Mardan, but PW-4 while recording his statement deposed that on 04.10.2010 all the three appellants, who were in custody of the police, had pointed out the place of occurrence.
10. The deposition of PW-4 had created serious dent in the prosecution case,. A which otherwise, seems to be maneuvered one as according to PW-10 appellants Noor Ahmad and Said Malook were arrested on 05.10.2010 while their card of arrests were also issued on 05.10.2010.
11. On one hand, the deposition of PW-4 had made not only pointation of the place of occurrence by appellants highly doubtful but on the other hand it is brought on the record that appellants were arrested prior to the date i,e, 05.10.2010 and were in illegal custody of the Investigating Officer.
12. No incriminating piece of evidence had been recovered therefrom the alleged place of occurrence to substantiate the pointation, allegedly made by the appellants.
13. PW-4 has further improved his statement recorded under Section 161, Cr.P.C. Where he had not mentioned the time that when he proceeded to the place of occurrence in the company of police and appellants. Rest of the statement of PW-4 comes within the purview of Article 38 of the Qanun- e-Shahadat Order, 1984 being a confession before a police official which is otherwise inadmissible and cannot be proved.
14. PW-10 had deposed in his cross-examination that supplementary statement of the complainant (PW-7) had been recorded prior to statement of the convicts/appellants under Section 161 Cr.P.C., which casted serious doubts that how the rest of appellants were charged by complainant without any authentic source of information.
15. This kind of investigation conducted by a responsible police official cannot be termed as impartial investigation which gives a strong inference that the whole case was pre-planned and hatched to involve the appellants in order to show his efficiency and make innocent people scapegoat.
16. No extract therefrom the daily diary had been placed on record that when the Investigating Officer left the Police Station for inspection of the spot as allegedly pointed out by appellants at different dates. No entry whatsoever had been made in the concerned police station that where the alleged place of occurrence was situated, which is situated in district of Shangla.
17. It is also admitted by PW-10 that after recording of the so called confessional statements of the appellants, they were F handed over to him to be sent to judicial lockup.
18. It is also admitted by the Investigating Officer (PW-10) that accused had been produced before the learned Judicial Magistrate on 08.10.2010 without specification that one of the accused had produced before the court on 06.10.2010. PW-10 had stated in his cross-examination as under:-- "It is correct that accused Noor Ahmad and Said Malook were arrested on 01.10.2010"
Such kind of admission has made the whole prosecution story at stake as according to PW-10 card of arrest of two appellants, mentioned hereinabove, were issued on 05.10.2010 though they were in illegal custody of the police since 01.10.2010.
19. The recovery of the mobile phone, as admitted by PW10, had carried out within three days thereafter arrest of Noor Ahmad, who had arrested on 01.10.2010 but the recovery memo in this regard had been prepared on 06.10.2010 while the alleged witness PW-3 namely, Chanzeb had not mentioned the date on which the appellant Noor Ahmad had pointed out the place where the mobile set was buried.
20. No one had identified the mobile set allegedly recovered on pointation of the appellant Noor Ahmad to be the one used by the deceased (Miskeen).
21. The other piece of evidence, alleged by the prosecution against the appellant Taj Muhammad, is that of last seen of the deceased in the company of appellant Taj Muhammad and one other, unknown person by PW-05 namely, Muhammad Amin.
22. According to him, he had seen the deceased in the company of appellant Taj Muhammad while they were present in a Suzuki van on 12.09.2010 and on the same day he was contacted by the deceased Miskeen on his mobile phone, which information was further communicated by him to the complainant that deceased had gone with appellant Taj Muhammad but neither the DATA of mobile of the deceased, allegedly recovered on pointation of appellant Noor Muhammad, nor that of PW-5 or the complainant was placed on record, in order to substantiate on one hand that the mobile so recovered was under use of the deceased and on the other hand give support to the version of PW-5 that he had seen the deceased with appellant Taj Muhammad and one other. No identification test was conducted by the Investigation Officer in order to recognize the other accused, who was seen by PW-5 with the deceased, despite the fact that he had stated that he could identify him.
23. Since 12.09.2010 till 25.09.2010 neither PW-5 nor the complainant even in his complaint/application to the police had disclosed the name of the appellant Taj Muhammad that the deceased was seen by PW-5 with him.
24. The presence of PW-5 at a place, called Baila Said Abad, at early in the morning is also not satisfactorily explained as the complainant had left his house at 07:30 A.M. But on the same time, he was allegedly seen by PW-5, travelling in a Suzuki van, at another place far away from the house from where the deceased had left for unknown destination.
25. Such belated statement cannot be believed without great caution and care where no other eye-witness account is available.
26. The last piece of evidence, which had led, the conviction of the appellants, is their alleged confessional statements, recorded by Judicial Magistrates, who appeared before the court as PW- 06 and PW-11 on 06.10.2010 and 08.10.2010 respectively.
27. The only legal proposition either to accept or reject these confessional statements would be the test that as to whether all the confessions were voluntarily recorded in accordance with the law.
28. As stated hereinabove, that it has come out therefrom mouth of the witnesses of the prosecution themselves that all the appellants were under custody of police since 01.10.2010 meaning thereby that at least two of the appellants had remained in illegal custody of police, therefore, application of third degree treatment cannot be ruled out of consideration.
29. The appellant Taj Muhammad had been twice produced before the Judicial Magistrate and two times police custody had been granted on 02.10.2010 for three .Days and on 05.10.2010 for one day respectively and it was 06.10.2010 when his confessional statement was recorded.
30. The confessional statement of appellants Noor Ahmad and Said Malook purportedly recorded on 08.10.2010 whereas the order sheet of the even date scribed by the learned Magistrate is worth perusal wherein he himself had admitted that appellants were produced by local police turn by turn and thereafter recording of the alleged confessional statements it was handed over to the concerned Investigating Officer in original while copy of the same was kept by the steno of the court, which is itself an illegal act, performed by the learned Magistrate.
31. It is also to be noted, which could not be denied by prosecution itself, that not only the questionnaires but also the certificate, issued by the learned Judicial Magistrate, bore the name and seal of one Mohsin Ali Turk Senior Civil Judge/ Judicial Magistrate, Mansehra, however, the same was struck down and name of the learned Magistrate Ejaz-ur-Rehman was scribed on pointing pen by hand and also official stamp,
32. No certificate in view of Section 164, Cr.P.0 has been affixed there on the confessional statement of appellant Taj Muhammad, however, it has been given separately where very clearly the name of Mohsin Ali Turk is visible while the learned Magistrate, who had allegedly recorded such confessional statements, his name is missing.
33. It is settled principle of law that confession must not only be voluntary but it must also be true and to ascertain its truthfulness, it is necessary to examine and compare the confession with the rest of the prosecution evidence to exclude any possibility or probability of any ,doubt qua its true character. Reliance is placed on the case law reported as PLD 2005 SC 30 titled "Manjeet Singh v.
The State".
34. No doubt, sole confession could be made basis for conviction if it was actually made before the competent forum and was made voluntarily, thereafter removing all kinds of apprehension of giving back custody to police, torture, coercion and inducement but retracted confession where the presence of police was itself palpable on record, during recording of confession, such tainted piece of evidence cannot be made the sole ground for conviction of an accused where the same was not corroborated by the attending circumstances of the case under consideration. Reliance may be made on 2012 PCr.LJ 1699 Federal Shariat Court titled "Said Rasool v. Sajid and 03 others" .
35. In the case titled "Muhammad Parvez and others v. The State" reported as 2007 SCM R 670 the apex court has held that delay of four days in recording such statement could not be made basis for conviction of the accused.
36. High degree of responsibility, care and duty cast upon the court of Magistrate while recording confession to be satisfied that confession has been voluntarily made and as such he shall remove therefrom the court room all police official either in uniform or otherwise, to believe the accused that he is not forced and would not be handed over to police at any cost, even if he did not confess but in the case in hand both the accused were produced to Magistrate at the same time as it is crystal clear therefrom his own certificate too that the appellants were produced to him at 11:30 AM but the statement were recorded turn by turn, meaning thereby that while recording statement of one of the appellant, other was handed over to the police.
37. The provision contained in Section 364, Cr.P.C. Prescribed in a mandatory tone that how a confession be recorded by a Magistrate. Subsection (2) of Section 364, Cr.P.C. Has made it mandatory that a Magistrate, who is to record confession of an accused, shall certify under his own hand that the examination is taken place in his presence and hearing and that the record contains full and true account of the statement made by the accused. The questions put to the accused and the answer given by him shall be distinctly and accurately recorded but in the case in hand, the confession of appellant Taj Muhammad was on printed form stamped by another Magistrate meaning thereby that all the proceedings were, if any, conducted in cursory and mechanical manner just to fulfill the formalities and not to satisfy himself that the confession was true, voluntary and without inducement or promise or torture. Reliance can be placed on the case law reported as 2005 SCM R 515 titled "Asif Mehmood v. The State".
38. The provisions of Sections 164 and 364, Cr.P.C. Are mandatory and any illegality occasioned thereof is not curable in view of the case law reported as 1998 M LD 288 Federal Shariat Court titled "Gul Jehan v. State".
39. The Magistrate is bound to record his statement that the confession was voluntary and in its true perspective, as envisaged thereunder Section 364, Cr.P.C., and is not supposed to fulfill just a formality by giving a formal certificate, already in typed form. It has not been mentioned anywhere by the learned Magistrate that the appellants were conversant with Urdu or that he translated the true version to the appellants in Urdu.
40. All the questions put to the accused were in English, but the learned Magistrate has not mentioned anywhere that he had translated these questions to the accused in their own language.
41. As discussed hereinabove, the prosecution has not proved its case beyond reasonable doubts by producing any trustworthy reliable and confidence inspiring evidence and the whole case revolves around the confessional statements of appellants but keeping in view the illegal custody of the appellants, it cannot be said that the confessions were voluntary and true while there is no iota of circumstantial evidence which least said or treated to be that the confessional statements were corroborated.
42. Prosecution is legally bound to prove its case beyond any reasonable doubts and in case of evn a single doubt on part of the prosecution its benefit shall have to be extended to the accused that the confessional statements were corroborated.
42. Prosecution is legally bound to prove its case beyond any reasonable doubts and in case of even a single doubt on part of the prosecution its benefit shall have to be extended to the accused.
43. It is also an admitted fact on the face of record that all the three appellants, who are not connected inter-se by any common factor, having no direct or indirect motive for commission of the offence, while some of the co-accused, who had some connection with the old enmity with the complainant side, on account of insufficient evidence were acquitted by the learned trial court, therefore, the conviction and sentences awarded to the present appellants cannot be sustained.
44. For what has been stated above, this appeal is. Allowed. The conviction and sentences of the appellants awarded to them in case FIR No, 347 dated 30.09.2010 registered under Sections 364/302/34, P.P.C. At Police Station Oghi District Mansehra by the learned Additional Sessions Judge-II, Camp Court Oghi at Mansehra vide impugned judgment dated 04.06.2013 are set-aside and they are acquitted of all the charges, leveled against them. They are released forthwith, if not required in any other case.
45. So far as Cr. Revision No, 24-A/ 2013 filed by the complainant for enhancement of sentence of the appellants is concerned, the same is dismissed.
' These are the detailed reasons for our short order of the even date.