MUHAMMAD HASHIM KHAN KAKAR, J.--Appellant Muhammad Essa and co-accused Amir Muhammad had allegedly murdered Mst. Gul Ghutai, who happened to be the wife of appellant Muhammad Essa inside the appellant's matrimonial home in new Muhajir Camp Saranan, in the area of Levies Thana Saranan, District Pishin, at about 2:00 a.m. during the night between 28/29-5-2019, in the backdrop of a motive based upon strained relationship between the spouses. For commission of the said offence they were booked in case FIR No. 18 of 2019, registered at the said Levies Thana, during the following morning at 4:00 a.m. After a regular trial co-accused Amir Muhammad was acquitted of the charge, whereas, appellant Muhammad Essa was convicted, vide judgment dated 24th September 2019 ('the impugned judgment ') by the Model Criminal Trial Court/Additional Sessions Judge, Pishin (' the trial Court' ) of the charge, under Section 302(b) P.P.C., and was sentenced to death as Ta'zir and to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased. Besides the instant appeal, a Murder Reference No.18 of 2019, has also been sent by the trial Court. These are being decided through this single judgment.
2. We have heard the learned counsel for the appellant as 'well as the learned Additional Prosecutor General, duly assisted by the learned counsel for the complainant and have gone through the record with their valuable assistance. It has been argued by the learned counsel for the appellant fiat the prosecution had failed to prove its case against the appellant beyond reaso nable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. In the contrary , learned Prosecutor General, maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the instant appeal deserves to be dismissed.
3. The occurrence in this case had taken place during a night in the month of May, inside the house of appellant, which remained unwitnessed. The appellant Muhammad Essa,who happened to be the son-in-law of complainant, Saeed Alam, along with co-accused. Amir Muhammad has been nominated in the FIR, on the basis of suspicion.
Prosecution case is founded upon an application (Ex.P/1-A) of Syed Alam (PW-1), received by Tehsildar Haji Muhammad Akram, on 29-5-2019 at 4:15 a.m. at Levies Thana Saranan, which was culminated in formal FIR (Ex.
P/10-A). According to the complainant, his daughter Gul Ghutai, married appellant Muhammad Essa and on the day of incident, he was informed by co-accused Amir Muhammad regarding the death of his daughter . After receiving such information, he proceeded to the house of appellant and came to know that his daughter was committed to death by the accused persons.
4. As stated above, the occurrence in this case had taken place at midnight i.e. 02:00 a.m. in the month of May, and the place of alleged occurrence was inside the house of appellant, situated at New Mahajir Camp Saranan, at a distance of about 3 k.m. from Levies Thana, Saranan. An FIR in respect of the incident in question had been lodged after about two hours and 15 minutes and, thus, a possibility regarding deliberation and cooking-up a false story could not safely be ruled out of consideration. As stated above, there is no eye-witness of the occurrence and the whole case of the prosecution has been structured upon the sole confessional statement of appellant Muhammad Essa (Ex.P/8-B), recorded by Zil-e-Huma, Judicial Magistrate-II, Pishin (PW-8). A bare perusal of confessional statement reveals that it was made on oath. The question as to what is the effect of administering oath to an accused C before his confessional statement is recorded, came up for consideration before the Hon'ble Supreme Court of Pakistan, in the case of "Muhammad Bakhsh v. The State PLD 1956 SC (Pak) 420, wherein after considering the provision of sections 342 and 164, Cr.P.C., Section 5 of the Oaths Act, 1873 and Sections 24 and 132 of the Evidence Act, has observed:-- "The administration to him of an oath or affirmation is thus opposed to public policy and any infringement of the provision prohibiting the Court from puttin g him under oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel. We have, therefore, no doubt that the statement under section 164 of the Criminal P.C. was obtained from the prisoner in an illegal manner and that its rejection must follow as a matter of course from that illegality".
5. The confession should be recorded in the manner provided for statement of an accused and not in the manner provided for recording evidence. If it is recorded in the manner provided for recording evidence by administering oath, then it loses its character insofar the maker is concerned. The fact of administering oath at the recording of confession virtually means that the maker is compelled to give evidence against him, placing him in the status of a witness at the stage of investigation, in violation of Article 13(b) of the Constitution of Islamic Republic of Pakistan, 1973, read with section 5 of the Oaths Act, 1873. Administering oath for recording confession will only mean the recording of evidence of the maker for use in subsequent stage against the maker which is prohibited under the law. While holding this view, we are fortified from the dictum, laid down by the Hon'ble Supreme Court, in the case of "Azeem Khan v. Mujahid Khan and others" 2016 SCMR 274, wherein after discussing in detail the precautions, required to be observed by the Magistrate, while recording confession of an accused, has held:- In the instant case, the Recording Magistrate namely . Ch. Taufiq Ahmed did not observe least precautions, required under the law. He was so careless that the confessions of both the appellants were recorded on oath, grossly violating the law, the same therefore, has rendered the confession inadmissible which cannot be safely relied upon keeping in view the principle of safe administration of justice."
6. Similarly , a Division Bench of Lahore 'High Court, in the case of "Manzur v. The State, PLD 1973 Lah. 714, while considering the question of prejudice in case of recording confession of accused on oath observed as under:- "We cannot see how an accused person can be said not to have been prejudiced when evidence which the law expressly says shall not be taken against him has been so taken, and the finding is influenced by that evidence.
The law so, jealously guards against inadmissible evidence that where a verdict or finding has been influenced by such evidence it enjoins the superior Courts to exclude it and to reweigh the remaining evidence in order to decide whether it can sustain the verdict of findin g. We have, therefore, no hesitation in holding that the confession cannot be taken into consideration in deciding the question of the appellant's guilt."
7. Besides the afore mentioned illegality , committed by the learned Judicial Magistrate, Pishin, while recording the statement of appellant under section 164, Cr.P.C, admittedly the said judicial confession had been retracted by the appellant before the learned trial court and in absence of an independent corroboration, such retracted judicial confession could not suffice all by itself for recording or upholding the appellant's conviction. The proceedings of recording of the judicial confession deposed about by the learned judicial magistrate also show that it had never been mentioned in those proceedings that before recording the confession the handcuf fs of the appellant had been removed or any time for reflection was provided.
8. The medical evidence furnished by PW-9, Dr. Aisha, Lady Police Surgeon, is also contrary to the alleged confession as well as prosecution case. PW-9 deposed that on 29-5-2019, dead body was brought by Tehsildar , Muhammad Akram and she after conducting postmortem, prepared her report Ex. P/9-A The report does not purport the cause of death and it is stated therein that the same will be given after receiving the report of chemical analysis. The report of chemical analysis Ex. P/9-B is also only to the effect that no drug/poisons were detected in blood, liver and stomach contents. In such view of the matter , there was no occasio n with the said witness to opine that the cause of death was due to Asphyxia, smoothling and Homicidal in manner .
9. There is another aspect of the case. As stated earlier besides the appellant one other person, namely , Amir Muhammad was also indicted in this case, who was acquitted by the learned trial Court, which was not assailed either by the complainant or State and, as such, his acquittal attained finality . It is well settled by now that if a set of witnesses is disbelieved to the extent of some accused, the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration, which is lacking.
10. Reverting to the contention of learned Additional Prosecutor General, that the deceased Gul Ghutai died unnatural death, inside the house of appellant, who happened to be her husband, thus, some part of the onus lies on him to establish the circumstances, in which such unnatural death had occurred. The contention has no leg to stand for two reasons, firstly , the prosecution has failed to establish the unnatural death of deceased and secondly , the honorable Supreme Court has answe red the same in the cases of "Abdul Majeed v. The State" 2011 SCMR 941 and "Nasrullah v. The State" 2017 SCMR 724, wherein, it has been clarified that the prosecution is bound to prove its case against an accused beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it, then the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else, who would have committed that murder .
For what has been discussed above, we are of the considered opinion that the prosecution had failed to establish its case against the appellant beyond any shadow of doubt, thus, extending the benefit of doubt he is acquitted of the charge and he shall be released immediately if not required to be detained in any other case. Accordingly , this appeal is accepted and Murder Referen ce No.18 of 2019 is answered in negative and death sentence is not confirmed.
These are the reasons of our short order dated 6th April 2020.