Tariq Saleem Sheikh,J:- This appeal is directed against judgment dated 31-10-2016 passed by the learned Additional Sessions Judge, Karor , in private complaint titled "Qamar Abbas v. Rkramullah and two others " in case FIR No. 357/2015 dated 29-10-2015 registered at Police Station Karor , District Layyah, for an offence under Section 302/34 PPC.
2. Complainant Qamar Abbas (PW-9) filed a private complaint Ex.PD stating that on 29-10-2015 at about 07:30 p.m. he alongwith his brother Sammar-uz-Zaman and PWs Muzammil Abbas and Sajid Hussain were sitting in the veranda of his house after having dinner when Ikramullah called Sammar-uz-Zaman. The latter went out to see him. The Complainant and the PWs followed. The Complainant had a torch with him and there was also an electric bulb lit at the outer door. They saw Ikramullah, Ehsanullah and Appellant Ziaullah armed with pistols and abusing Sammar-uz-Zaman. The Appellant raised a lalkara that he would take revenge of the incident that took place in Rawalpindi. While they were still watching them the Appellant fired two shots at him with his pistol which hit him near his right shoulder and left side of the chest. Sammar-uz-Zaman fell down and succumbed to his injuries. The Complainant and the PWs went after the accused but they managed to escape. The Complainant alleged that the motive behind the occurrence was that Ehsanullah was a hardened criminal and the police had conducted a raid to arrest him. The accu sed suspected that Sammar-uz-Zaman had provided information about Ehsanullah to the police. He maintained that FIR No.357/2015 Ex.PE/1 purportedly registered at his instance about this occurrence did not give the true facts as the police had not recorded his version correctly . His statement Ex.PE (pursuant to which FIR Ex.PE/1 was registered) was not read over to him and he did not verify its contents. He learnt about the malafides on the part of the police when he received a copy of the FIR. He further stated that the Appellant had made an extra-judicial confession before Haq Nawaz (PW-10) that he had committed the murder of Sammar-uz-Zaman with the help of Ikramullah and Ehsanullah. He also disclosed that the deceased had sodemized him when they were together at Rawalpindi and he killed him to avenge the insult. Haq Nawaz informed him about the said confession on 20-1 1-2015.
3. The learned Additional Sessions Judge recorded the preliminary evidence and then summoned the Appellant and his co-accused and indicted them on 02-06-2016. They all denied the charge and claimed trial.
4. At the trial a total of 13 witnesses were examined out of which Muhammad Afzal/SI was examined as CW.
Complainant Qamar Abbas (PW-9) and Muzammil Abbas (PW-11) gave the ocular account and Dr. Muhammad Hussain Khan (PW-6) furnished medical evidence. PW-10 Haq Nawaz deposed about the extra-judicial confession while PW-8 Ghulam Shabbir , Area Magistrate, about the judicial confession of the Appellant. Asif Hayat/ASI (PW-3) and Zahid Abbas 738/HC (PW-7) testified about the recovery of pistol P-5, the alleged weapon of offence, alongwith live cartridges P-6/1-4 from the Appellant. Muhammad Afzal/SI (CW-1), who investigated this case, gave details of his investigation and the evidence he collected. Remaining witnesses were formal in nature. On 27-10- 2016, the learned counsel for the Complainant closed the prosecution evidence.
5. The Appellant and his co-accused were examined under Section 342 Cr.P.C. All of them rejected the prosecution evidence and professed innocence. The Appellant maintained that the Complainant had framed him due to previous enmity . He also volunteered to make statement under Section 340(2) Cr.P.C. In the witness-box he deposed that he made the statement under Section 164 Cr.P.C. before the learned Area Magistrate under duress.
Besides, he alleged that it was invalid because it was not recorded in accordance with law. He denied having made any extra-judicial confession before Haq Nawaz (PW-10) and also refuted the recovery of any crime weapon from him.
6. On the conclusion of the trial the learned Additional Sessions Judge, vide impugned judgment dated 31-10-2016, acquitted Ikramullah and Ehsanullah but convicted the Appellant under Section 302(b) Cr.P.C. for the Qatl-i-Amd of Sammar-uz Zaman and sentenced him to imprisonment for life as Ta'zir and to pay Rs.50,000/- as compensation to the legal heirs of the deceased in terms of Section 544-A Cr.P.C. and in default to undergo simple imprisonment for a further period of six months. Hence, this appeal.
7. In support of this appeal, the learned counsel for the Appellant contended that it was a blind murder and the Complainant had falsely implicated the Appellant in this case. He argued that, firstly , the ocular account was not reliable as it was riddled with material contradictions. Secondly , the prosecution had failed to establish that there was any light at the place of occurrence. The torch and the electric bulb which were alleged to have lighted the spot were neither produced before the Investigation Officer nor he took the same into possession himself. Thirdly , the identity of the assailants was doubtful because there was darkness and it was not possible for the eye-witnesses to recognize them. Fourthly, the evidence of extra-judicial confession furnished by Haq Nawaz (PW-10) was fabricated. Fifthly, the judicial confession was coerced from the Appellant. Even otherwise, it was not admissible because it was not recorded in accordance with law. And lastly, pistol P-5 was not recovered from the Appellant and the police foisted it on him to buttress the prosecution case. He prayed that this appeal may be accepted and the Appellant may be acquitted.
8. On the other hand, the learned Deputy District Pubic Prosecutor assisted by the learned counsel for the Complainant controverted the aforementioned contentions. He argued that the prosecution had proved its case to the hilt. The motive behind the murder of Sammar-uz-Zaman was the incident that took place in Rawalpindi. The deceased had committed sodomy with the Appellant and the latter killed him in vengeance. The ocular account was corroborated by the medical evidence, recovery of the crime weapon and the judicial and extra-judicial confessions of the Appellant. He submitted that although the Appellant had retracted from his judicial confession but it could be relied upon to record a conviction against him as it was proved that it was true and voluntary and was corroborated by other evidence. He prayed that this appeal may be dismissed and the impugned judgment be upheld.
9. I have considered the contentions raised by both the sides and have examined the record.
10. The ocular account was furnished by Complainant Qamar Abbas (PW-9) and Muzammil Abbas (PW-12). In the witness-box Qamar Abbas reiterated the contents of his private complaint Ex.PD. He stated that Sammar-uz- Zaman deceased was his real brother . On 29-10-2015 at about 07:30 p.m. he, the PWs and the deceased were sitting in the veranda of his house after having dinner when Ikramullah called the deceased and the latter went with him. The Complainant and the PWs heard some noise outside whereupon they also got out to see what was there.
The Complainant stated that within his view the Appellant fired two pistol shots at Sammar-uz-Zaman and killed him. Muzammil Abbas deposed on the same lines. Admittedly , night had fallen and it was dark. The eye-witnesses alleged that Qamar Abbas was having a torch and there was an electric bulb installed at the outer door which illuminated the crime scene and they identified the Appellant in that light. In his cross-examination Qamar Abbas admitted that he the other eye-witnesses were 15/16 karams from the actual place of occurrence. One wonders whether the witnesses could identify the assailant in such light from that distance. More importantly , neither the said torch nor the bulb were produced before the Investigation Officer or the learned trial Court. The Site Plan Ex.PB too does not show any bulb at or near the crime scene. In such situation in the cases cited as "Sardar Bibi and another v. Munir Ahmed and others " (2017 SCMR 344) and "Arshad Khan v. The State " (2017 SCMR 564), the Hon'ble Supreme Court of Pakistan held that the identification of the accused was not free from doubt.
11. Dr. Muhammad Hussain Khan (PW-6) conducted autopsy on the dead body of Sammar-uz-Zaman deceased.
He found four injuries on him out of which Injuries No. 1 & 3 were entry wounds and Injuries No. 2 & 4 respectively were their exit wounds. The Medical Officer opined that they were caused by firearm and damaged the deceased' s vital organs, triggered massive bleeding internally which led to respiratory and hypovolemic shock and eventually resulted in his death. In his estimation the time between injuries and death was immediate while the duration between death and post-mortem was within two hours. Inasmuch as the identification of the Appellant at the time of occurrence is highly doubtful, medical evidence would not be of much avail to it. There is ample case-law that medical evidence is confirmatory in nature. It may confirm ocular account with regard to the seat of injuries, the nature of injuries and the kind of weapon used in the occurrence but cannot identify the culprits. Reference may usefully be made to "Altaf Hussain v. Fakhar Hussain and another " (2008 SCMR 1103), "Muhammad Yaqoob v.
Manzoor Hussain and 3 others " (2008 SCMR 1549 ), "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others "
(PLD 2009 SC 53), "Muhammad Aslam v. Sabir Hussain and others " (2009 SCMR 985), "Muhammad Saleem v.
Shabbir Ahmed and others " (2016 SCMR 1605 ) and "Hashim Qasim and another v . The State " (2017 SCMR 986 ).
12. The prosecution heavily relies on the extra-judicial and judicial confessions of the Appellant in support of its case. I first take up the former. Haq Nawaz (PW-10) deposed that on 19-11-2015 he went to the Morr of Chak No. 82/ML on some errand. The Appellant, who was previously known to him, met him there at 02:00 p.m. and disclosed that his paternal aunt (Phuphu) Naziran lived in Tiba Samtia and he used to visit her. There he got acquainted with Sammar-uz-Zaman deceased who took him to Rawalpindi for labour where they lived together.
One night Sammar-uz-Zaman gave him sleeping pills and when he drowsed he committed sodomy with him.
Thereafter, he came back to his native town and decided to take revenge. Finally, he conspired with Ikramullah and Ehsanullah and killed Sammar-uz-Zaman on 29-10-2015. Haq Nawaz further deposed that the Appellant had requested him to ask the Complainant to pardon him. The testimony of Haq Nawaz does not inspire confidence at all. It is settled law that extra-judicial confession must be received with utmost caution. In "Abdul Latif v. Crown" (PLD 1952 FC 113), the Federal Court held that an extra-judicial confession can be relied upon only when there are exceptional circumstances to show that it was actually made and was true. In "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), the Hon'ble Supreme Court of Pakistan held: "It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct....Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off, (ii) to ventilate the suffocating conscience, and (iii) to seek help when actually trapped by investigation.
Boasting off is very rare in such like heinous offences where fear dominates and is always done before an extreme confidant as well as the one who shares close secrets. To make confession in order to give vent to one's pressure on mind and conscience is another aspect of the same psyche. One gives vent to one's feelings only before a strong and close confida nt....Another most important and natural purpose of making extra-judic ial confession is to seek help from a third person. Help is sought firstly , when a person is sufficiently trapped and secondly , from one who is authoritative, socially or of ficially .
13. In the instant case, it is observed, PW Haq Nawaz was a resident of Chak No. 79-C/TDA in District Layyah while the Appellant belonged to District Bhakkar . They were not related and there is no evidence that they even knew each other . Haq Nawaz was a simple labourer who did not exercise any influence. The Appellant was also not in a morass where he could need anybody' s help. According to Haq Nawaz himself the meeting between him and the Appellant was perchance. Thus it cannot be said that the Appellant approached him to ventilate his suffocating conscience. There is no palpable reason to explain why the Appellant would make a confession to Haq Nawaz. Even otherwise, in "Muhammad Aslam v. Sabir Hussain and others " (2009 SCMR 985) and "Azeem Khan and another v. Mujahid Khan and others " (2016 SCMR 274), the Hon'ble Supreme Court held that evidence of extra judicial confession is a weak type of evidence and conviction on capital charge cannot be recorded on its basis alone.
14. It is pertinent to point out that the Appellant allegedly made similar confession before Muhammad Asif Hayat/ASI (PW-3) and Zahid Abbas 738/H C (PW-7) who were members of the Special Homicide Investigation Unit and were present when the Appellant was arrested on 22-11-2015. The said confession is also inadmissible in evidence under Article 38 of the Qanoon-e- Shahadat Order , 1984.
15. Now I advert to the judicial confession . The Appellant was arrested on 22-11-2015. PW-8 Ghulam Shabbir , Area Magistrate, testified that the Appellant was produced before him in police custody and he recorded his confessional statement Ex.PH on 23-11-2015. The Appellant retracted from the said confession alleging that he made it under duress. He now claims that it is inconsequential. He also assails it on the legal plane on the ground that it was not recorded in accordance with law. He contends that it is liable to be rejected right away and cannot even be used for the collateral purpose of corroborating the other prosecution evidence. In order to appreciate these contentions and to evaluate the worth of the Appellant' s confessional statement Ex.PH it is necessary to refer to the law on the subject.
16. Section 164 Cr.P.C. read with Section 364 Cr.P.C. and Chapter 13 of Volume III of the Lahore High Court Rules and Orders lay down the procedure which the Magistrates are required to follow while recording a confessional statement. This may be summarized as under:
(a) Section 164 Cr.P.C. deals with the recording of statements and confessions at any stage before the commencement of an inquiry or trial. Section 342 Cr.P.C. deals with the examination of accused persons during the course of an inquiry or trial. Section 364 Cr.P.C. prescribes the manner in which the examination of an accused person is to be recorded.
(b) Statements or confessions made in the course of an investigation can be recorded only by a Magistrate of the First Class or a Magistrate of a Second Class who has been specially empowered by the Provincial Government.
However , it is not necessary that the Magistrate recording the confession should be the Magistrate having jurisdiction in the case.
(c) The confession must be recorded and signed in the manner provided in Section 364 Cr .P.C.
(d) Before recording any confession the Magistrate should explain to the person making it that he is not bound to make the confession and that if he does so it may be used as evidence against him.
(e) A Magistrate should not record any such confession unless upon questioning the accused person he is satisfied that he is making it voluntarily . For this purpose he should put him the questions stipulated in Clause (5) of Chapter 13 of Volume III of the Lahore High Court Rules and Orders and record his answ ers thereto. If the answers are ambiguous he may put him such further questions as may be necessary . In order to determine whether the confession is voluntary the Magistrate should consider inter alia the period during which the accused person has been in police custody . He should also ensure that the confession is not the result of any undue influence or ill- treatment.
(f) In order to further ensure that a confession under Section 164 Cr.P.C. is made voluntarily , before he proceeds to record the confession the Magistrate should allow the accused person some time (say, for half an hour) to ponder and during that period he should be kept out of the hearing of police officers and other persons likely to influence him.
(g) The memorandum set forth in Section 164(3) Cr.P.C. must be appended at the foot of the record of the confession.
17. Clause (3) of Chapter III of the High Court Rules and Orders further stipulates:
(i) Under Article 91 of the Qanun-e-Shahadat Order , 1984, a Court is bound to presume that a statement or confession of an accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate, is genuine, and that the certificate or note as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such statement or confession was duly taken. The words "taken in accordance with law" occurring in this section are very important and it is essential that in recording a statement or confession under Section 164 Cr.P.C., the provision of that section shall be strictly followed. The evidential value of a confession depends upon its voluntary character and the precision with which it is reproduced.
(ii) The mere fact that a confession is retracted does not render it inadmissible in evidence but the Court has to scrutinize any such confession with the utmost care and accept it with the greatest caution. Experience and common sense in fact shows that in the absence of some material corroboration it is not safe to convict merely on a retracted confession unless from the peculiar circumstances under which it was made and judging from the reasons alleged or apparent of retraction there remains a high degree of certainty that the confession notwithstanding its having been resiled from is genuine.
18. Superior Courts in our country have elucidated the above-mentioned law relating to judicial confessions in a number of cases. Some of the illuminating judgments in this regard include "Rahim Bakhsh v. Crown " (PLD 1952 FC 1), "Dhani Bakhsh v. The State " (PLD 1975 SC 187), "Sh. Muhammad Amjad v. The State " (PLD 2003 SC 704), "Allah Nawaz v. The State " (2009 SCMR 736), "Majeed v. The State " (2010 SCMR 55), "Azeem Khan and another v. Mujahid Khan and others " (2016 SCMR 274), "Rahim Bux Jamali, M.P.A. v. The State " (1991 MLD 2001 ), "Muhammad Farooq v. The State " (1995 MLD 551) and "Muhammad Ali and others v. The State " (2002 P Cr.LJ 1631) . The following principles may be culled from these judgments:
(i) In criminal cases great responsibility rests upon the Courts to determine whether the confession is voluntary and true or is lacking within the scope of either term "voluntary" and "true". If the confession is the result of any direct or indirect inducement, threat or promise from a person in authority , it would be treated as not voluntary .
(ii) In order to determine whether confession is voluntary or not, attending circumstances must be subjected to very close, minute and rigid scrutiny . Voluntariness and truthfulness of confession is to be evaluated on the considerations viz., the character and duration of custody; as to whether confessor was placed in a position to seek advice of his relatives or his lawyers; nature and quantum of proof which was available against confessor before he confessed and whether confessions were consistent with evidence which was available at the time when confession was made.
(iii) The Magistrate is bound to apprise the accused that he is before a Court free from the clutches of the police and that whether or not he makes a confession, he would not be remanded to police custody. The accused, as of right, is to be informed of the legal consequences of his making a confession and is to be given sufficient time to reflect. He is to be warned before and after such reflection that he was not bound to make a confession. After doing all such necessary formalities, the Magistrate would start taking down the statement of the accused. Fear of police and his likelihood of the return to police custody are the first and foremost things to be completely washed away from the mind of the accused before that his confessional statement is recorded.
(iv) All police officials whether in uniform or otherwise, including Naib Court attached to the Court, must be kept outside the Court and beyond the view of the accused.
(v) Confessional statement recorded under Section 164, Cr.P.C., on oath is violative of Section 5 of the Oaths Act, 1873, which prohibits administration of oath to an accused person. Such a confession is inadmissible.
(vi) Any lapse on the part of Magistrate in recording confession cannot always be treated as fatal to the evidentiary value of confession, if Court is satisfied that the said lapse has not in any way adversely affected the voluntariness or truthfulness of the confession.
(vii) Delay in recording the confessional statements of an accused by itself is not sufficient to adversely affect its validity. However, no hard and fast rule can be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation.
(viii) Judicial confession which is self-exculpatory cannot be used against the co-accused.
(ix) A judicial confession is to be rejected or accepted as a whole.
(x) Retracted judicial confession is seldom made a basis of conviction without being materially corroborated.
(xi) Judicial confession is sufficient for conviction if it is voluntary and true and requires no corroboration but as a rule of procedure the Court is required to seek corroboration of the same on material particulars.
19. Perusal of the record shows that the Appellant' s confessional statement Ex.PH violates the law in more than one ways. The learned Area Magistrate recorded the same on oath and in the presence of police officials. PWs Qamar Abbas and Muzammil Abbas both confirmed that the police officials were in the court room when the learned Magistrate took down his statement. In the circumstances, the said confession is inadmissible and cannot be relied upon.
20. The Investigation Officer, Muhammad Afzal/SI (CW-1), deposed that he took into possession two empty cartridges and two live cartridges from the crime scene on 29-10-2015. As per Forensic Report Ex.PM these empties matched with pistol P.5 which was recovered at the instance of the Appellant. On 22-11-2015. Admittedly recovery of pistol P.5 alongwith live cartridges P.6/1-4 and one empty was witnessed by Muhammad Asif Hayat/ASI (PW-3) and Zahid Abbas 738/HC (PW-7) who were police officials. The Investigation Officer did not associate any independent witness with the recovery proceedings as required under Section 103 Cr.P.C. The prosecution has not given any explanation for this violation. Therefore, the said recovery would be of no avail to the prosecution.
21. In the private complaint Ex.PD the Complainant mentioned two motives. He stated that Ehsanullah was a habitual offender and the police had conducted a raid to arrest him. The Appellant and his co-accused were under the impression that Sammar-uz-Zaman deceased had provided information about him to the police. Secondly , the Appellant wanted to take revenge from the deceased for committing sodomy with him at Rawalpindi about 2 /2 years prior to the incident. At the trial the prosecution did not lead any evidence to prove the first motive except a bald statement of Complainant Qamar Abbas in his examination-in-chief . On the other hand, the second motive was sought to be proved by the extra-ju dicial confession of the Appellant before Haq Nawaz (PW 10) and police officers Muhammad Asif Hayat/ASI (PW-3), Zahid Abbas 738/HC (PW-7) and his extra-judicial confession before Ghulam Shabbir , Area Magistrate (PW-8). Since I have already discarded their evidence and there is no other material available on record, I am inclined to hold that the prosecution has not been able to prove the motive.
22. On reappraisal of evidence I have concluded that the prosecution case is riddled with doubts. It is a cardinal principle of criminal jurisprudence that it is not necessary that there should be many circumstances creating doubt before the benefit of doubt can be extend ed to an accused. Even a single circum stance is sufficient if it makes a prudent mind doubtful about this guilt. It is also trite that the benefit of doubt where it is admissible must be extended to the accused as of right and not as a matter of grace. Reference in this regard is respectful lly made to "Tariq Pervez v. The State " (1995 SCMR 1345 ), "Allah Bachaya and another v. The State " (PLD 2008 SC 349), "Muhammad Akram v. The State " (2009 SCMR 230) and "Hashim Qasim and another v. The State " (2017 SCMR 986).
23. In view of the foregoing, this appeal is allowed and the impugned judgment dated 31-10-2016 is set aside.
Benefit of doubt is extended to the Appellant and he is acquitted of the charge. The Appellant is in jail. He shall be released forthwith if he is not required to be detained in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.