OMAR SIAL, J.---This appeal has been filed against a judgment dated 7-10-2009 passed by the learned 2nd Additional Sessions Judge, Khairpur. In terms of the said judgment the Appellant was convicted and sentenced as follows. a) For an offence under section 302(b), P.P.C.: Life imprisonment and a fine of Rs. 50,000 payable to the legal heirs of the deceased (or S.I. of six months more in default); b) For an offence under section 201, P.P.C.: Five years' R.I. and a fine of Rs. 10,000 (or R.I. of two months more in default).
2. Brief facts of the case as narrated in the FIR are that on 13-11-2004, Asghar Ali Chang lodged a report with the police station that on 12-11-2004 he was with Sabir Hussain and Muhammad Aslam having tea at a hotel when at about 8:00 p.m. they saw Muhammad Amir (the complainant's brother) drive past on his motorcycle with two other persons sitting at the rear of the motorcycle.
Soon after Amir crossed them, the complainant and the two others heard a gun shot. However, they did not think much of it and went home. Amir did not return that night. In the morning the complainant along with Muhammad Hasan went looking for Amir. At some point they saw a track of motorcycle wheels which they followed for some distance. When they reached the end of the track they saw blood marks and marks of something being dragged on the ground. They then followed the dragging marks and discovered the dead body of Amir in a land where cotton was being grown. The complainant filed an FIR under sections 302, 201, 404 and 34 for the murder of his brother which was given crime number 112 of 2004. The Appellant was arrested on 23-11-2004.
3. The charge in the case against the Appellant was framed on 3-12-2005 to which the Appellant pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined eight witnesses. PW-1 Dr. Ghous Bux was the doctor who conducted the post mortem of the dead body. PW-2 PC Ali Hassan was the person who had handed over the dead body to the complainant. PW-3 Asghar Ali was the complainant. PW-4 Sabir Ali was one of the persons who was having tea with the complainant when they saw Amir drive by and also one of the persons who accompanied the complainant when he went to search for Amir. PW-5 Abdul Wahab was the Tapedar who prepared the site sketch. PW-6. Sardar Ali was a witness to the memo of site inspection, the memo of recovery, the memo of seizure of the deceased's clothes, the inquest report, the memo of arrest, the memo of recovery and the memo of seizure of the sandals of the Appellant. PW-7 Zulfiqar Ali Shaikh was the Judicial Magistrate who recorded the statements under section 164, Cr.P.C. of the Appellant as well as two witnesses. PW-8 Nazar Hussain Shah was the investigating officer of the case.
5. The Appellant recorded his statement under section 342, Cr.P.C. on 11-7-2009. He pleaded his innocence and stated that he was not produced before the magistrate for the purposes of recording a confession; that he was arrested on the second day of the incident and that he and his entire family including the women were maltreated in the police station. He produced three witnesses in his defence, DW-1 Akhtar Hussain was the brother of the Appellant. DW-2 Gul Baig Islam was a correspohdent of the newspaper Kawish. DW-3 Parvez Akhtar was a correspondent of the newspaper Awami Awaz.
6. On 7-10-2009 the impugned judgment was announced.
7. I have heard the learned counsel for the Appellant as well as the learned APG. The complainant and his counsel remained absent despite several notices. My observations are as follows.
8. This was a blind FIR. The persons sitting on the motorcycle behind the deceased when he was seen by the witnesses were not identified. The Appellant lives in the same neighborhood as the complainant party therefore it can be safely presumed that had the complainant and the other two eye-witnesses seen him riding with the deceased he would have been identified in the FIR. This was, however, not the case. It remains shrouded in mystery how the Appellant then got involved in this case. The investigating officer quite conveniently deposed that he received information that the Appellant was the person who had committed the murder. Be that as it may, no identification parade was held in order for the witnesses to identify the Appellant.
9. It appears from the record that a couple of days after the incident, the entire family of the Appellant, including the women, were picked up by the police. Some other persons belong to the Chang tribe were also detained (the deceased was also from the Chang tribe). A newspaper clipping of the 17-11-2004 edition of a local newspaper published a report that twenty seven persons had been detained by the police. The reporter of this news deposed in court that the said report was correct, and accurate. He further deposed that the complainant of this case (Asghar Ali) had told him that the police had not detained the correct persons and that according to one of the detainees the real culprits of the crime were Aziz and Zakir Chang. In his cross-examination this witness deposed that he did not know the Appellant but to the contrary, it was the complainant who was his relative and was known to him.
10. On 23-11-2004 the Appellant was shown to have been arrested. The entire recovery was made the same day and the judicial confession of the Appellant was also obtained the same day. The same witness was cited in all the memos which were prepared by the police. The Appellant's brother on 24-11-2004 sent a telegram to the Senior Judge of this Bench narrating the whole ordeal the Appellant and his family went through at the hands of the police. He specifically stated that the police brutally tortured them from the day they were picked up after the incident (as reported in Kawish newspaper). The family was allowed to leave after the Appellant was booked in the crime and he agreed to make a confession. The brother deposed that the first thing he had done after being released from the captivity of the police was to send the telegram. The prosecution's own witness PW-4 Sabir Hussain also deposed that "police arrested accused Imtiaz and his brothers on the third day of the incident". Keeping the entire evidence in mind and the manner in which events have unfolded as well as the narration of events by the brother in his telegram, I am of the considered view that the defence version sounds true and that of the prosecution false.
11. On 23-11-2004 the judicial confession of the Appellant was recorded and the arrest and involvement of the Appellant in the crime made public. On 3-12-2004, the complainant recorded a section 164, Cr.P.C. statement in which he did not name the Appellant as the person who had committed the crime. Indeed, the newspaper Awami Awaz reported in its 30-1-2005 edition (as deposed by the reporter of the news) that hundreds of people of the Chang tribe led by the complainant had made a protest demanding that the real killers of the deceased be arrested. In trial as well the complainant deposed that it is correct to suggest that I have not identified the two persons who were sitting on the motorcycle with my brother when my brother crossed us." He also deposed in trial that "I was not called at the police station for identification of the persons arrested as suspect."
12. This entire case is based on the alleged recoveries made and a judicial confession of the Appellant. I will first address the recoveries. As mentioned above all recoveries and the judicial confession are made on 23-11-2004. At 7:30 a.m. the Appellant is arrested. At 8:10 a.m. the motorcycle taxi is recovered. At 8:25 a.m. a shawl he is said to be wearing while on the motorcycle with the deceased is recovered. At 8:40 a.m. an old sandal of the Appellant is recovered from a shoe shop. At 9:30 a.m. the pistol used in the crime is recovered and at 11:30 a.m. the Appellant records his confession before the judicial magistrate. Some exemplary work by the police. The motorcycle recovered was not produced in trial. No description of the pistol was given and the same was not sent for ballistic examination to even determine whether it is the same weapon the discharge of which killed the deceased. Even after lying in a cotton field for ten days the barrel according to the prosecution smelled of gun powder. The story regarding the sandal allegedly given by the Appellant is that after murdering the deceased he went and bought new sandals from a shop. He left his old sandals behind in the shop. One of the old sandals was recovered. The fact that a shop keeper held on to an old sandal of a customer for ten days and that his shop was open at 8:40 a.m. in the morning is in itself absurd. As regards the shawl recovered, the Appellant is said to have told the police that he was wearing a shawl on the day he murdered the deceased and that he then threw away the shawl. There are no blood marks on the shawl when recovered. The recovery of the shawl also makes little sense. Recoveries made appear to have been foisted on the Appellant.
13. The judicial confession made by the Appellant is another piece of evidence that was relied upon to convict and sentence the Appellant. The Hon'ble Supreme Court in Azeem Khan v. The State reported at 2016 SCM R 274 while commenting on section 164 has held that the "fundamental logic behind the same was that, all signs of fear inculcated by the investigating agency in the mind of the accused were to be shed out and he was to be provided full assurance that in case he was not guilty or was not making a confession voluntarily then in that case, he would not be handed over back to the police." It appears that the magistrate in the current case did very little to comply with the letter and spirit of recording judicial confessions. He did not explain to the Appellant who he was until the second last question he put to the Appellant. The Appellant was not even told that he will not be handed over to the police after his confession. Indeed, the magistrate after recording the confession handed over the Appellant to the same police which had brought him for the purposes of taking him for judicial remand -- "I remanded accused to judicial lockup through the same police which had brought the accused". The Appellant was seventeen at the time of the incident. The magistrate did not ask him his age. Subsequently (on 30-12-2004), the magistrate also recorded the statements of two witnesses, namely, Sabir Hussain and Muhammad Aslam.
Their statements were not recorded the same day. The statements ostensibly recorded by the magistrate are an exact copy of the section 161, Cr.P.C. statements of the witnesses recorded earlier. The version of the Appellant that he was never produced before a magistrate appears correct. In any case, in view of the manner in which the supposed confession was recorded completely corrodes its evidentiary value and cannot be relied upon to convict and sentence the Appellant.
14. Witnesses who do not identify the Appellant even though they are from the same neighborhood; no description of the accused in the FIR; no identification parade held; refusal of the complainant to identify the Appellant in trial; evidence that the Appellant was in police custody for at least seven to eight days before his arrest is shown; repeated protests by the complainants that the police had not arrested the actual culprits; extremely doubtful and at places absurd claims of recoveries; non-production of the motorcycle' in trial; dishonest investigation; a prosecution story that does not sound credible; an incompetent manner, to say the least, of recording a confession; a retracted confession; no entries being produced by the investigating officer to record his departure from or arrival to the police station in connection with the arrest of the Appellant; all make me form the view that the prosecution failed to prove its case against the Appellant beyond reasonable doubt.
15. Above are the reasons for my short order of 3-5-2017 in terms of which I allowed the appeal, acquitted the Appellant of the charge(s) and as he was present on bail ordered that his bail bonds be cancelled and surety released.