SARDAR TARIQ MASOOD, J.---Through this appeal, by leave of the court, appellant Hayatullah impugns the judgment dated 22.05.2012 passed by the Federal Shariat Court whereby Criminal Appeal No, 4/Q of 2011 filed by him was partly allowed and his sentence of death under section 302(b), P.P.C., awarded by the learned trial court, was converted into imprisonment for life. Criminal Appeal No, 5/Q of 2011 filed by him was dismissed as not pressed/withdrawn.
2. Briefly, the facts of the case are that the appellant was indicated in case FIR No, 01 of 2006 registered under sections 17/4 Harrabha, Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. However, after investigation, co-accused Saifullah, Haji Muhammad and Sadullah were discharged under section 169, Cr.P.C. The learned trial court, after a full-fledged trial vide judgment dated 30.12.2006, convicted the appellant under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay Diyat amount to the legal heirs of the deceased Faizullah. Further convicted him under section 392, P.P.C. and sentenced to suffer ten years' R.I. with a fine of Rs.50,000/- and in default thereof to further undergo six months' SI. The appellant was also tried in Arms case No, 17 of 2006 by the same trial judge and was convicted under section 13-E of the Arms Ordinance,. 1965 and sentenced to three years' S.I. with fine of Rs.10,000/- or in default thereof to further undergo two months' S.I. vide judgment dated 30.12.2006. The benefit of section 382-B, Cr.P.C. was also extended to him in both the judgments. Being aggrieved of the said convictions, appellant Hayatullah filed Criminal Appeal No, 4-Q of 2011 before the Federal Shariat Court against his conviction under section 302(b), P.P.C. which was partly allowed and his sentence of death was modified into imprisonment for life and the order of diyat was set aside. However, the appellant was directed to pay Rs.100,000/ - (Rupees One lakh only) as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased Faizullah or in default thereof to further undergo imprisonment for six months' SI. However, appellant's appeal i,e, Criminal. Appeal No, 4-Q of 2011 against his conviction and sentence under section 392, P.P.C. was accepted. Criminal Appeal No, 5-Q of 2011 filed by the appellant against his conviction and sentence under section 13-E of the Arms Ordinance, 1965 was dismissed being not pressed/withdrawn vide impugned judgment dated 22.05.2012. Hence this appeal by leave of the court granted on 20.04.2017.
3. We have heard the learned counsel for the appellant as well as the learned State counsel and perused the record with their able assistance and observed that Faizullah, the younger brother of the complainant, left his house on 09.02.2006 on a motorcycle for Pishin and did not return till night.
He was searched by the complainant and ultimately on 11.02.2006 the complainant found his dead-body near Killi Sher Jan. The FIR was chalked out against unknown persons. The sniffer dogs were arranged which lead the police to the house of one Jamal Din. The wife of Jamal Din told the police that on 10.02.2006 Saifullah and Haji Muhammad came to her house on a motorcycle and went back. Consequently. Saifullah and Haji Muhammad were arrested but subsequently they were discharged under section 169, Cr.P.C.
4. There is no direct evidence against the appellant Hayatullah. According to Ghulam Muhammad S.I. Crime Branch, the investigation of this case was entrusted to him on 20.02.2006 and he took the accused Hayatullah along with the case file and arrested him on 21.02.2006. This fact indicates that Hayatullah was already under the custody of the police and his arrest was shown on 21.02.2006.
The main evidence which was unfortunately relied upon by the trial court and the Federal Shariat Court was a confession before the I.O. under the supervision of DSP Rasool Bakhsh. A memo of disclosure was prepared on the same day. It is astonishing that the trial court while recording the statements of the witnesses (police officials) regarding the confession before the police, recorded each and every word of the appellant before the police and also exhibited the memo of disclosure.
The said statement before the police and the said memo of disclosure were absolutely inadmissible hit by Article 39 of the Oanun-e-Shahadat Order, 1984. In order to give a cover of Article 40 of Qanun-e-Shahadat Order, 1984, the investigating officer recovered a pistol on the same day and all the witnesses claimed that thereafter the appellant pointed out the place of occurrence and the place from where the dead-body was earlier recovered. We are conscious of the fact that after making such disclosure before the police no new fact was discovered because it is already in the knowledge of the police on 11.02.2006 that the deceased had received a bullet injury and from the place of occurrence an empty of .30 bore pistol was also recovered. So the recovery of pistol after the said disclosure was not a new fact or not a fact which was not in the knowledge of police. Likewise, the place of occurrence and the place where dead-body was thrown while dragging it from the said place, was already in the knowledge of the police and such pointing out of the place after said disclosure is worthless, irrelevant and inadmissible as the said place was already in the knowledge of the police and a site plan of the same place had already been prepared on 11.02.2006. Likewise, the memo of pointing out of the place from where the motorcycle was recovered is also irrelevant as the motorcycle was recovered much prior to the disclosure and pointing out of the said place which was already in the knowledge of the police.
5. So far recoveries from the accused are concerned, we have observed that the amount of Rs.98,000/- was recovered from different persons although on the pointing out of the accused. The statements of said persons were never recorded and there is no evidence on the file that it was the same amount, which according to prosecution, was robbed from the deceased. It was never the case of the prosecution that the deceased was having such huge amount with him when he left the house. Much reliance was placed on the recovery of pistol from the appellant and empty from the place of occurrence, we observe that the empty was recovered on 11.02.2006 and pistol was recovered on 22.02.2006 and till the recovery of the pistol the empty was not sent to the firearm expert and the empty and the pistol both remained together in the Malkhana and thereafter transmitted to the office of the Forensic Science Laboratory. So the recovery is inconsequential.
Even otherwise recovery alone is not sufficient for conviction and it is always termed as a corroborative piece C of evidence. It is settled law that one tainted piece of evidence can't corroborate another tainted piece of evidence.
6. While going through the evidence adduced by the prosecution, we observe, with great concern, that inadmissible evidence has been brought on the record in the shape of admission of the appellant before police, memos of pointing out of place of occurrence and place from where the motorcycle was recovered which were already known to the police and the complainant party.
Such inadmissible pieces of evidence, according to law, should not be brought on the record.
Astonishingly, the whole disclosure was incorporated/dictated by the trial court when witnesses were giving evidence. Neither the prosecutor nor the defence made any objection upon bringing the said inadmissible pieces of evidence on record. The trial court while recording the statement of police officials, who recorded the confession of the appellant Hayatullah about the commission of the crime, had totally ignored Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984 according to which this type of evidence was inadmissible as no new facts were discovered on the ID admission/disclosure of the appellant. The pointing out of the place of incident and the place of recovery of motorcycle cannot be termed as discovery as a consequence of information received from the appellant within the meanings of Article 40 of the Qanun-e-Shahadat Order, 1984 as the said places were already in the knowledge of the police and the complainant party so it was also inadmissible evidence. The memos about pointing out of place of occurrence without recovery prepared by the investigating officer should not be allowed by the trial court to bring on the record but unfortunately such pieces of evidence were allowed to be brought on the record although were inadmissible.
A heavy responsibility lies upon the court as well as the prosecution and defence counsel to be alert so that inadmissible evidence should not come on the record. If any party tender such evidence during the trial the other party should immediately raise objection to the admissibility of such evidence and the court should decide the same then and there before proceeding further and prevent it from coming on the record if it is found to be inadmissible in evidence. It is the duty of the trial judge to check such evidence without waiting for any such objection from either side because the judge is required to be vigilant and to play an active role while recording the evidence of witnesses.
It is the duty of the court to make distinction between admissible and inadmissible evidence and only admissible evidence should be allowed to come on record. If any inadmissible evidence is brought on the record then it will expose the ability and knowledge of law of the prosecutor and defence counsel. If the trial judge allows to bring the inadmissible evidence on record then it must reflect adversely regarding the knowledge of law and the ability of said Judge. We have observed that in certain cases the case files were found filled with inadmissible, evidence which is ultimately to be discarded. It is the duty of the court to stop the witness at the moment he utters inadmissible evidence and should not allow to bring on record such inadmissible evidence.
We have also observed that although sometime objection was raised by either party regarding the inadmissibility of such piece of evidence but the court while admitting the evidence at that time reserves the question of law as to its admissibility till the end of the trial and while delivering the judgment no such question of admissibility is usually F decided. It is the duty of the trial court to decide the objection then and there and not to defer the same till the end of the trial.
7. We are also surprised that the trial court and the Federal Shariat Court had relied upon absolutely inadmissible evidence and convicted the appellant in this case without any admissible evidence. The approach of Federal Shariat Court in Para-14 was alien to the settled principle of law.
The appellate court observed as under:- "If the appellant is innocent, he had a fair chance to prove his innocence by producing evidence in his defence."
This approach is against the settled principle of law as it is not the accused who is required to prove his innocence rather it is the duty of the prosecution to prove the case against the accused beyond any shadow of doubt. The prosecution has to stand on its own legs and no premium can be extended to the prosecution if accused does not produce any defence evidence or opts not to appear in his defence. The burden of proving the case never shifts from prosecution.
8. As already discussed above, it is highly shocking that both the courts below convicted the appellant Hayatullah on the basis of inadmissible evidence who after the conviction by the trial court remained in death cell from 31.12.2006 till the decision by the Federal Shariat Court on 22.05.2012, when death sentence was altered to imprisonment for life and he is still behind the bars.
The findings of both the courts below are not sustainable. Hence, while allowing this appeal, the convictions and sentences, awarded to the appellant Hayatudlah by the learned trial court and upheld by the learned Federal Shariat Court are set aside. Consequently, appellant Hayatullah is acquitted of the charge. He shall be released forthwith if "not required to be detained in connection with any other case.
9. Before parting with this judgment, we want to bring on record our concern and displeasure about the manner in which the trial in question has been conducted. Learned trial Judge has allowed the evidence to come on record which was not admissible which indicates the ignorance of the basic provisions of the law on the part of the Prosecutor, defence counsel and the learned trial judge. It also indicates the lack of control of the learned presiding officer over the proceedings being conducted by him. Likewise, even learned Federal Shariat Court has ignored the basic principles governing for appraisal and re-appraisal of the evidence. We are expecting from the learned presiding officers to be vigilant while recording the evidence during trial and should not allow to either of the parties to bring inadmissible evidence on the file.' The learned presiding officers should realize that they are answerable and accountable to Allah Almighty and also to the High Court/Federal Shariat Court for illegalities and irregularities done by them and the learned High Court under section 439, Cr.P.C. is quite competent to examine the correctness of the order passed by them and may take serious action against them.
10. Copy of this judgment shall be sent to the Registrar of all the High Courts who shall send the same to the learned Sessions Judges throughout their respective provinces for circulation to all the learned presiding officers within their respective jurisdiction for guidance and compliance.