ROOH-UL-AMIN KHAN, J:- Through this common judgment, we, propose to decide the above mentioned appeals filed by the appellants, as the same pertain to one and the same FIR No.42 dated 22.03.3016, under sections 302/34 Pakistan Penal Code (PPC) and section 7 Anti Terrorism Act, 1997 (Act of 1997), Police Station CTD, Peshawar. The appellants facing trial in the cited case have been convicted under sections 302(b)/34 PPC and sentenced to imprisonment for life. Similarly, they have been further convicted under section 7(a) of the Act of 1997, to undergo life imprisonment. Out of them, appellant Haris Nasim, has also been held liable to pay rupees one lac, as compensation in terms of section 544-A Cr.P.C. to LRs of the deceased, vide judgments dated 09.11.2017, of the learned Anti-Terrorism Court/Juvenile Court, Peshawar. Benefit of section 382-B Cr.P.C. has been extended to them.
2. The prosecution case is that on 22.03.2016, receipt of information about murder of a person near the house of one Nasim Ahmad, situated in Phase-VII, Sector E.5, street No.11 Hayatabad, Peshawar, Abid Khan SHO along with other police officials, reached the spot and found the dead body of Abdul Latif, accompanied by his son, namely, Waqas Latif. The latter reported to SHO that his deceased father rarely visit the house of his brother, namely, Nasim Ahmad. On the fateful day, the deceased was on the way to his above named brother's house in a taxi car and when reached near his house, two unknown culprits present there on a motorbike, opened fire at him, as a result, the deceased got hit and died at the spot. On report of fire shots, cousin of complainant Talha, came out from the house and noticed the two culprits making their escape good from the spot on a motorcycle/taxi.
Disclosing no enmity with anyone, complainant charged the unknown culprits for murder of his father.
However, he disclosed that deceased was a retired I.S.I. Director, and has been murdered by the culprits with an aim of terrorism. His report was recorded by Muhammad Abid SHO (PW.5), in the shape of Murasila Exh.PA/1, on the basis of which FIR (Exh.PA) mentioned was registered against unknown culprits. On 01.04.2016, complainant recorded his statement under section 164 Cr.P.C., before the learned Illaqa Judicial Magistrate, in which he charged the present appellants besides absconding co-accused.
3. Dr. Muhammad Khalid Khan (PW.10), conducted autopsy on the dead body of the deceased and opined his death to be the result of firearm injuries to his brain, heart and both lungs.
4. Muhammad Fazal Inspector (PW.9) conducted investigation in the case. He proceeded to the spot and prepared site plan Exh.PB. During spot inspection he secured bloodstained earth from the place of the deceased, a spent bullet, 07 empties of .32 bore vide recovery memo Exh.PW.3/1. He also took into possession the last worn clothes of the deceased vide recovery memo Exh.PW.3/2 and sent the bloodstained articles to the FSL for chemical analysis. He arrested appellant Haris Nasim on 31.03.2016, vide arrest card Exh.PW.9/4 and from his personal search recovered two SIMs and CNIC vide recovery memo Exh.PW.3/3.
On the next date, his custody was obtained from the court of learned Judicial Magistrate. During interrogation, appellant Haris Nasim confessed his guilt, hence, he was produced before the learned Judicial Magistrate where his confessional statement was recorded on 07.04.2016. He also arrested co- accused Mekieel vide arrest card Exh.PW.9/7, who also confessed his guilt before the learned Judicial Magistrate on 08.04.2016. The Investion Officer also prepared sketch of guest room (Baithak) Exh.PB/1 where the appellants allegedly hatched conspiracy for committing murder of the deceased. On 12.04.2016, PW.5 produced one Mst. Humaira Durrani before the learned Judicial Magistrate, where her statement under section 164 Cr.P.C. got recorded. PW.9 also collected CDRs data of SIMs numbers of the appellants and absconding co-accused Hamayoun, which is placed on file.
5. On completion of investigation, challan under the Juvenile Justice System Ordinance, 2000, was submitted against accused Mekaeel, whereas, separate challan was submitted against major accused Haris, before the Anti Terrorism Court, Peshawar, where both the appellants were tried and conclusion of trials, were convicted and sentenced as mentioned in Paragraph No.1, vide judgments impugned herein in these appeals.
6. We have heard the exhaustive arguments of learned counsel for the parties and perused the record with their able assistance. It appears from the record that occurrence in this case has taken place on 22.03.2016 at 19.30 hours, which has been reported by complainant Waqas Latif (PW.8) at 2000 hours. From his report it is manifest that he is not eyewitness of the occurrence and he has also admitted this fact in his statement. As per report of complainant, it was his cousin Talha, who on the report of fire shots, came out from house and witnessed the culprits decamping from the spot by a "motorcycle Taxi". Complainant has not uttered a single word that occurrence was narrated to him by his cousin Talha. The complainant has mentioned in his report that the culprits decamped from the spot by motorcycle taxi. What he has mentioned is that the culprits were waiting near the spot on a "motorbike" and when the deceased reached at the spot in a taxi motorcar, the culprits opened fire at the deceased. He has not disclosed the features and descriptions of the culprits in his report. Driver of the Taxi motorcar who dropped the deceased at the spot, was an important impartial witness, but he has not been cited as a prosecution witness. PW Mst. Humaria Durani, who allegedly was residing in basement portion of the house of Nasim Ahmad (brother of the deceased) on rental basis was got examined under section 164 Cr.P.C., but, later on, she was abandoned by the prosecution on the ground that she has abandoned her abode from the said rental house. Similarly, PW Talha, who allegedly had witnessed the culprits decamping from the spot, has also been abandoned by the prosecution for no good reason. In the circumstances, an adverse inference within the meaning of section 129 (g) of Qanun-e-Shahadat Order 1984, will be drawn against the prosecution that had the above named witnesses been produced, they would have not supported the prosecution case. Even otherwise, perusal of statement of Mst. Humaria Durani, recorded under section 164 Cr.P.C., reveals that she is not the eyewitness of the occurrence. According to her statement she was present in the house when heard the report of fire shots, and she later on, came to know that Abdul Latif has been murdered by someone.
7. It is manifest from the record, rather an admitted fact that it is an unseen occurrence, as none has come forward to furnish the ocular account. The prosecution case hinges on confessional statements of the appellants and circumstantial evidence in the shape of recovery of empty shells from the spot and positive FSL report in respect thereof showing the empties to have been fired from one and the same weapon and cell phone data of the appellants coupled with CDR report in respect thereof. The learned trial Court while recording conviction of the appellants on capital charge has got persuaded by the confessional statements of the appellants, so adverting to confessional statements of the appellants, record would reveal that complainant in his statement recorded under section 164 Cr.P.C. on 01.04.2010, has charged the appellants by name for the first time, but as per arrest card of appellant Haris Nasim, he has been shown arrested on 31.03.2016 i.e. a day prior to statement of the complainant. Complainant while appearing as PW.8, has not uttered a single word about recording of his any supplementary statement under section 161 Cr.P.C., meaning thereby that after arrest of the appellant Haris Nasim, the complainant charged him at the instance of police. Appellant Mekaeel has been shown arrested on 01.04.2016, whereas, confessional statements of appellant Haris Naseem has been recorded on 07.04.2016 and that of Mekaeel on 08.04.2016 i.e. on 08 day of their arrest. During this period of 08 days, the appellants admittedly remained in police custody. Factum of remaining in police custody is also evident from answers of the appellants to questions No.6 of their confessional statements, wherein they have disclosed before the recording Magistrate that they have remained for in police custody for 09/10 days. As regards torture, record divulge that juvenile appellant Mekaeel has submitted an application to the learned Justice of Peace, Peshawar through his father Ayaz Mehmood on 18.05.2016, on the ground he had been arrested by the CTD, Peshawar , on 29.03.2016 in the instant case, but his arrest has been shown on 01.04.2016, as well as that during custody he was subjected to torture, which resulted in to paralysis of his both hands. The learned Justice of Peace referred him to Standing Medical Board for examination, report of which is Exh.PW .9/X-3, and read as under:- "The Standing Medical Board is of the opinion that the accused is having weakness of both upper limbs. On examination he is having flaccid paralysis of both upper limbs with right more than the left deep tendon reflexes are absent. His Nerve Conduction study from CMH Peshawar supports his diagnosis of plexopathy C5, C6, C7 (right) and C5, C6 (left). These changes are well explained on the local trauma to the neck and shoulder resulting in Brachial Plexopathy , probably within the last 2-3 months. His age according to physical appearance and educational record is 16 years"
In view of the above report, the learned Justice of Peace while accepting the application under section 22-A Cr.P.C. directed registration of FIR against the Investigation Officer (PW.9). The order of the Justice of Peace was challenged through a writ petition by PW.9, which is still pending adjudication before this Court. The above fact indicates that how the minor accused/appellant was dealt during custody and how confession was extracted from him. Even otherwise, a look over the confessional statements of the appellants reveals that these are ditto copies of their statements recorded by the I.O. under section 161 Cr.P.C. Similarly, the confessional statements of both the appellant are also the same with slight variation of names, recorded by the learned Judicial Magistrate. In their confession, the appellants have not specifically disclosed the date, day and time of occurrence. Besides, this Court in case titled, "Muhammad Jamal and other Vs the State" decided on 04.05.2016, while dealing with the confessional statement of juvenile accused has observed the following:- "The confessional statement of a child is required to be evaluated carefully. It is natural phenomenon, rather inflexible reality that the child always sway by what other may tell him as he/she is easy prey to tutoring. In criminal cases the juveniles are significantly more likely than adults to succumb to the intense pressure of investigation process by making involuntary and false confession. They face many difficulties due to their immaturity and lack of cognitive abilities which cause them (younger suspect) to make impulsive decision without considering the consequences of their actions. It is well known that the attitude of children to reality and truth differs widely from that of adult, thus the standpoints of both cannot be measured on equal yardstick".
It has been further held by this Court in the judgment (Supra) that:- "The courts are under laden duties not only to adjudge that the confessor was competent to make confession but also to ensure that the confession must be voluntary without any coercive measures or promisedth something in exchange by the investigator and if it is found that the child was threatened, coerced or induced through promise something in exchange or if he was incapable of understanding his rights, the Court must exclude the confession as involuntary".
8. No crime weapon has been recovered on the pointation of the appellants. Confessional statements of appellants recorded by the Magistrate, in light of the peculiar facts and circumstances, discussed above being involuntary and result of torture is the most suspicious piece of evidence in the whole case, besides having been retracted one. It might be right that retracted confession, if corroborated by independent evidence of reliable nature, can be made basis for conviction on a capital charge, but it must be subject to thorough judicial scrutiny. It is trite law that for accepting a confession, two essential requirements must be fulfilled i.e. the confession was made voluntarily, it was based on true account of facts, leading to the crime and the same was proved at the trial. The Hon'ble Supreme Court in case titled, "Azeem Khan and another Vs Mujahid Khan and others" (2016 SCMR 274) has given strict guidelines for the Magistrate, recording confession, to be followed without any exception, which has also not been followed and complied with by the learned recording Magistrate in this case.
9. The learned counsel for the appellants put much emphasis on the date of arrest of appellant Mekaeel.
According to him it is proved on record that he had been taken into custody by local police on 29.03.2016, whereas his arrest has been shown on 01.04.2016. In view of the arguments of learned counsel for the appellant, record was searched which revealed that the appellant at the time of occurrence was a matric student, and he was appearing in the examination scheduled by the Board of Intermediate & Secondary Education, (BISE)
Peshawar w.e.f. 15.03.2016 to 02.04.2016. The appellant being a science student appeared in the papers of English, Urdu, Islamyat, Pakistan studies and Math, scheduled on 16, 18, 21th, 24, 26, March 2016, respectively, however, he could not appear in papers of Chemistry and Physic, scheduled on 31 March and 2 April, 2016. The above facts can be affirmed from the detailed marks Certificate of the appellant, issued by the BISE, Peshawar dated 04.06.2016 (Exh.D.2). For the first time, the appellant was charged by name by the complainant in his statement under section 164 Cr.P.C. on 01.04.2016. Non-appearance of juvenile appellant in the paper on 31 March, 2016, is sufficient proof to create serious doubt in arrest of juvenile appellant as shown by the prosecution, as the occurrence had taken place on 22.03.2016.
10. Since, no crime weapon has been recovered either from direct or indirect possession of the appellants or on their pointation, therefore, positive FSL report with regard to 07 crime empties and a spent bullet of .32 bore being fired from one and the same weapon would not advance the prosecution case. Similarly, CDR data of mobile SIMs of the appellants, which could only be sufficient to show contact of the numbers, but without any solid proof in respect of conversation made by the appellants on the same with regard to hatching conspiracy or committing the crime, would not be sufficient to be made a basis for their conviction.
Recovery of blood from the spot and the bloodstained garments of the deceased coupled with post mortem report may prove the unnatural death of the deceased with firearm, but by no stretch of imagination these pieces of circumstantial evidence can tell the name (s) of the culprit (s). An iota of circumstantial evidence of the standard that all the circumstances so inter-linked, making out a single chain, an unbroken one, where one end of the same touches the dead body and the other the neck of the accused, has not been brought on record by the prosecution. It is settled law that any missing link in the chain in case of circumstantial evidence would destroy the whole and would render the same unreliable for recording a conviction on a capital charge.
Reference is made to the cases of Muhammad Aslam v. The State (PLD 1992 SC 254) and Ch. Barkat Ali v.
Major Karam Elahi Zia (1992 SCMR 1047).
11. Judged from all angles and considered from all aspects after fair reappraisal of evidence, we are of the firm and considered view that the prosecution has miserably failed to establish its case against the accused through cogent and confidence inspiring ocular or circumstantial evidence beyond shadow of reasonable doubt. The prosecution evidence is full of contradictions and pregnant with doubts, benefit of which is to be given to the appellants not as a matter of grace or concession but as a matter of right. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter oftk' tk' tk' tk' st nd st right and not of grace. Reference is made to the case titled "Azhar Iqbal v. The State" (2013 SCMR 383) & "Muhammad Akram v. The State" (2009 SCMR 230). It is golden principle of law that the Court should let off hundred guilty but should not convict one innocent person. Reliance placed on "Ayub Masih v. The State" (PLD 2002 SC 1048 ).
12. Accordingly , both the appeals are allowed. The impugned judgments of the learned trial Court dated 09.11.2017, wherein conviction and sentences of the appellants have been recorded, are set aside. The appellants are acquitted of the charge leveled against them. They be set at liberty forthwith, if not required to be detained in any other case.