ATHAR MINALLAH, C. J.--- Through this consolidated judgment we shall answer Murder Reference No.05/2017 'The State v . Muhammad Rashid and another ' and decide the following two Jail Appeals:-- i. Jail Appeal No.101 of 2017 ' Muhammad Rashid v . The State ' ii. Jail Appeal No.102 of 2017 ' Mst T ehseen Zahra v . The State '
2. The facts, in brief, are that pursuant to the complaint (Exh.P A of Syed Wajid Ali Shah, son of Syed Shams Shah, resident of Syed Kasran, P.O. Khas, Tehsil Gujar Khan, District Rawalpindi (hereinafter; referred to as the 'Complainant ') FIR No.138, dated 22.04.2015, was registered at Police Station Barakahu, Islam abad (hereinafter referred to as the 'FIR') (Exh.P A). According to the assertions recorded in the FIR, the Complainant was informed on 22-04-2015, that the dead body of his nephew , namely , Syed Shadab Haider Shah, son of Syed Hussain Shah (hereinafter referred to as the 'Deceased '), was lying in the Emergency Ward of Polyclinic Hospital Islamabad (hereinafter referred to as the 'Hospital '). The Complainant, along with Syed Shafqat Raza, reached the Hospital at about 01:30 p.m. They identified the dead body as that of the Deceased. It was stated in the complaint that the latter was murdered by unknown persons by using a 30 bore pistol when he was meditating in an uninhabited room situated in a wooded area near the bridge on the rainwater stream on Kayani Road, Bara Kahu, Islamabad (hereinafter referred to as the "crime scene"). On receiving information, Shaukat Ali, Sub Inspector , reached the Hospital. After examining the dead body he prepared an inquest report (Exh.PC) and made an application for conducting an autopsy (Exh.PN). He completed the formalities at the Hospital and then proceeded to the crime scene where he prepared a rough site plan (Exh.PW -18/4) and collected blood stained soil vide recovery memo (Exh.PL). He took in possession ten (10) empties fired from a 30 bore pistol (Exh.P-22-32) vide recovery memo (Exh.P-K). On 24.04.2015, the Complainant recorded his supplementary statement wherein he alleged that the murder of the Deceased was committed by Muhammad Rashid and Ms. Tehseen Zahra (hereinafter referred to as the 'Appellant No.1' and 'Appellant No.2' respectively and collectively as the 'Appellants '). On 28-04-2014, the Investigating Officer received the postmortem report (Exh.P-DD/1-6). The autopsy was conducted by Dr. Tanveer Afsar Malik (PW -7) and the injuries described therein were as follows:-- i. Fire arm entry wound on the right eye literally in the zygomatic prominence superiorly with no blackening but charring marks measuring lx1 cm stained blood on it as well as bleeding from right ear. X-Ray skull was done and pellet seen overlying on left maxilla and I tried my level best but could not recover . ii. Fire arm entry wound with no blackeni ng and charring marks on the superior aspect of right side of chest 3 cm below the midclavicular area right side 2x1 cm in size with inverted edges. X-Ray chest done/abdomen pallet at the level of intervertebral disc between the T12 T1 I vertebrae recovered and handed over the police. iii. Fire arm entry wound on the anterior aspect of the right lumber region laterally measuring 2x1 cm with no blackening and charring marks. iv. Fire arm exit wound on the back of right side laterally to S1 area 2 cm lateral to S1 vertebrae measuring 1x1 cm.
3. On 30-04-2015, the Investigating Officer collected record relating to three cellular phones. On 08-05-2015, the recovered empties were sent to the National Forensic Science Agency (hereinafter referred to as the 'Agency ') and the latter , vide report dated 04-08-2015 (Exh.PR), gave an opinion that the empties and the recovered 30 bore pistol had matched. On 12-05-2015, the parcel containing blood stained soil wqs sent to the Agency and the latter , vide report dated 25-05-2015 (Exh.PS), confirmed the presence of human blood. On 27.05.2015, the Draftsman, namely , Malik Amir Shahzad (PW-9), visited the crime scene and prepared the scaled site plan (Exh.P-HH). On 10- 06-2015, Appellant No.2 was arrested and produced before the learned Magistrate. On 11-06-2015, she was brought to the Police Station and produced before members of the Arbitration Council. According to the prosecution story she confessed her role in the comm ission of the crime and described the manner in which the Deceased was murdered. On 12-06-2015, Appellant No.2 was produced before the learned Magistrate who ordered her judicial remand and 16-06-2015 was fixed as the date for recording her statement under section 164 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Cr.P.C.'). The statement was not recorded on 16.06.2015 and she was subsequently produced before Mr. Waqas Rasheed (PW-17) for recording her statement under section 164 of the Cr.P.C. The latter was at that time posted as Assistant Commissioner (Secretariat)/Sub Divisional Magistrate. On 19-06-2015, Appellant No.1 was arrested. On 21.06.2015, the latter led police to the place from where personal items belonging to the Deceased were recovered and taken into possession vide recovery memo (Exh.PH). On 23-06-2015, Appellant No.2 led the Investigating Officer to the place from where a 30 bore pistol and 03 live bullets were recovered. The charge was framed by, the learned trial Court vide order , dated 23-07-2015, to which both the Appellants pleaded not guilty . During the trial, the prosecution produced 18 witnesses while the appellants preferred not to be examined under oath and their respective statements were recorded under section 342 of the Cr.P.C. After the recording of evidence and affording an opportunity of hearing to the parties, the learned Additional Sessions Judge (East), Islamabad, vide judgment, dated 29-06-2017, convicted both the Appellants for committing the offence under section 302 of the P.P.C. and handed' down sentences of death. In addition, a fine of Rs.200,000/- each was also imposed on them. The learned trial Court has referred the Murder Reference No.05/2017 for our confirmation while the Appellants have preferred their respective Jail Appeals.
4. The learned counsel for Appellant No.2 has contended that the prosecution had failed to establish its case beyond reasonable doubt; the testimony of PW-1 is not reliable because he could not have identified the Appellants when there was nothing on record to show the source of light; the testimony of PW-1 does not appeal to a reasonable prudent mind; Appellant No.2 was coerced by the Investigating Officer and she was made to appear before private individuals who were purportedly performing functions of members of the Arbitration Council at the Police Station; there is no explanation available on record as to how the dead body of the Deceased was discovered at the crime scene and how it had reached the Hospital; Appellant No.2 was coerced and threatened to record her confessional statement under section 164 of the Cr.P.C. and since she did not plead guilty , therefore, it is to be treated as having been retracted ; the narration of events in the purported statement under section 164 of the Cr.P.C. shows that the statement was not made voluntarily and without fear; Appellant No.2 was in Faisalabad when the murder had taken place; motive could not be proved by the prosecution.
5. The learned counsel for Appellant No.1 has argued that; the latter has been falsely implicated in this case; he was not named in the FIR nor had the Complainant disclosed as to how and why he had nominated Appellant No.1 through a supplementary statement made after almost 04 days from the date of occurrence; recovery from the place identified by Appellant No.1 is shrouded in mystery; there is nothing on record to even remotely indicate that Appellant No.1 had carried out a body search of the Deceased and after recovering his personal items / belongings, including currency notes, the same were concealed at a place near the crime scene; the recoveries were false; there is no plausible explanation for recovery of ten empties when there were only three entry wounds on the body of the deceased and no marks on the walls of the room where the occurrence was alleged to have taken place; the prosecution had failed in establishing its case beyond reasonable doubt.
6. The learned counsel who has appeared on behalf of the Complainant was heard and the latter had also submitted written arguments which were made part of the record. He has argued that; the prosecution had successfully established its case beyond a reasonable doubt; PW-1, namely , Mubarak Hussain Shah had informed the Complainant on 24-04-2015 that he saw the Appellants near the crime scene at 03:30 a.m. on 24.04.2015; he had recognized the Appellants in the light of the electric poles installed outside the Girls Higher Secondary School; the complainant had promptly recorded his supplementary statement, nominating the Appellants; Appellant No.2 had recorded her confessional statement; the presence of both the accused near the crime scene at 03:00 a.m. was established; the medical evidence corroborated the events narrated by Appellant No.2 in her confessional statement; the statement of Appellant No.2 described the actual events; the recoveries made by the Investigating Officer were led by Appellant No.1; the Agency , after examining the recovered empties and the firearm weapon, had reported that they had matched; Appellant No.2, in reply to questions Nos.10 and 13 of the statement recorded under section 342 of the Cr.P.C., had confirmed the assertions made in her statement recorded under section 164 ibid; reliance has been placed on the cases of 'Muhammad Nadeem alias Deemi v. The State' [2011 SCMR 872], 'Shehzado v. The State' [PLD 2005 SC 477], 'Nasir Mehmood and another v. State ' [2015 SCMR 423], 'Majeed v. The State' [2010 SCMR 55], 'Hassan Askari v. The State' [2011 PCr.LJ 778], 'Dr Aziza and others v. Muhammad Sarwar' [1997 MLD 2013 (Karachi)], 'Nazeer alias Wazeer v. The State' [PLD 2007 SC 202].
7. The learned State Counsel has adopted arguments advanced by the learned counsel for the complainant.
8. The learned. counsel for the parties and the learned State Counsel have been heard and the record perused with their able assistance.
9. According to the prosecution's case, on the fateful night the Deceased left his house at 11:30 pm for performing meditation (china) which he used to routinely observe in an uninhabited room built in a wooded area i.e. the crime scene. While he was in deep meditation the Deceased was murdered and his body was brought to the Hospital the next day. The evidence brought on record does not indicate how or by whom the dead body of the Deceased was discovered at the crime scene. The Complainant was informed on 22.04.2015, and he reached the Hospital at about 01:30 p.m. before the arrival of the Investigating Officer and other police officials. By then the autopsy had obviously not been performed. There is no explanation of how the Complainant got to know the type of weapon used in the crime because he had given the description in the complaint (Exh.P A). No one was named in the FIR.
On 24.04.2015 the complainant recorded a supplementary statement wherein he nominated the Appellants. The Complainant entered the witness box as PW-5 and while recording his examination-in-chief he had taken the plea that he got delayed in disclosing the names of the Appellants and their involvement in the crime because he was disturbed due to the murder of his nephew . He did not mention that this information was given to him by Mubarak Hussain Shah (PW-1) or any other person. In the cross-examination the Complainant deposed that the Deceased had told him about an illicit relationship between the Appellants and that he was tolerating it because the children were grown up. It does not appeal to reason that a nephew would have told his uncle about an illicit relationship of his wife and that he was tolerating it. The witness had also stated that he had never met Appellant No. 1 and from the testimony it is obvious that he was not aware whether the upper portion of the house had been rented out by the Deceased. The Complainant had also stated that when he brought the dead body of the Deceased to his house after completing formalities at the Hospita l, he found Appellant No. 2 to be present there. This raises serious doubts regarding the prosecution's story because, according to the deposition of the Investigating Officer, the Appellants left for Faisalabad in the morning after the commission of the offence. If that was so then it was unlikely for Appellant No. 2 to have been present at the house in Islamabad on the same day at about 03:30 pm. It is noted that Rafi Ullah, Assistant Sub Inspector PW-11, had deposed that information regarding a dead body lying at the crime scene was received by him at about 12:25 pm on 22-04-2015. There is nothing on record to suggest when and by whom the dead body was discove red at the crime scene. The deposition of Mubarak Hussain Shah (PW-1) also does not inspire confidence nor has his conduct in failing to promptly inform someone after witnessing the Appellants together at odd hours on the fateful day been explained. The latter had deposed that while he was going towards Bari Imam on 22-04-2015 at about 03:00 a.m. he saw the Appellants near the crime scene. The said witness was living in the same street (mohalla) where the Deceased and Appellant No.2 were esiding and he knew them well. There is no explanation as to why it took him almost three days to wait and inform the Complainant regarding the involvement of the Appellants. Moreover , the un-scaled site plan (Exh.PW -18/4) nor the scaled site plan prepared by the Draftsman (Exh.P-H H) shows any source of light to support the statement, which makes his deposition doubtful. The witness admits that he had attended the funeral prayers of the deceased but opted not to inform anyone regarding the presence of the Appellants near the crime scene at 03:30 a.m. on the date of occurrence. The deposition is not corroborated, rather it was negated by the Complainant. The deposition of Farhat Iqbal Raja, son of Raja Amanat Khan (PW-2), also does not inspire confidence and thus cannot be relied upon. His statement is not corroborated by the testimony of the Complainant. The presence of private individuals in the Police Station, purportedly acting as members of the Arbitration Council, is not contemplated under the procedure prescribed in the Cr.P.C. The learned Magistrate, namely Waqas Rasheed (PW-17), had conceded in his deposition that he had not mentioned that, while recording the statement of Appellant No.2 under section 164 of the Cr.P.C, all the persons present in the court room had left. Even if, for the sake of argument, the statement of Appellant No. 2, recoded under section 164 of the Cr.P.C, is treated as not having been retracted, still it cannot be relied upon because it was not corroborated by independent evidence and the learned Magistrate had not put to her the relevant mandatory questions. The observance of the mandatory requirements for recording a statement under section 164 of the Cr.P.C. was also doubtful. Appellant No. 2 had not pleaded guilty and her reply to the question in her statement under section 342 of the Cr.P.C. regarding her earlier recorded confessional statement was evasive.
It is difficult for a reasonable prudent person to accept that Appellant No.1, after killing the Deceased, would have carried out a body search of the latter and then conceal the recovered personal items, including currency notes, near the crime scene. The recovery of the personal items of the Deceased and the recovery of the weapon are shrouded in mystery . The Investigating Officer had collected ten empties from the crime scene while, according to the medical evidence, there were only three entry wounds on the body of the Dece ased. There is nothing on record to explain the existence of the remaining seven empties at the crime scene. The description of the commission of the crime is solely mentioned in the statement of Appellant No. 2 which was recorded under section 164 of the Cr.P.C. By not pleading guilty she had in fact retracted her statement. Moreover , the statement, nor any part thereof, was corroborated by independent evidence. According to the statement, Appellant No.1 had removed a brick from the wall and had fired at the Deceased. Then he entered the small room and fired in the chest of the Deceased. By then the Deceased was, lying on the ground. It, therefore, indicates that the Deceased must have been shot from a close distance but this is not supported by medical evidence. The un-scaled or scaled plan did not refer to any brick having been removed from the wall. The evidence does not explain the existence of seven empties because the autopsy report confirmed three entry wounds while the Draftsman, who had deposed as PW 9, had stated in his testimony that he had not observed any marks of gun shots on the walls of the small uninhabited room. The Investigating Officer, in his deposition, had also stated that there were no signs of any brick having been removed from the wall. He also did not disclose as to how the Comp lainant had received information about the involvement of the Appellants. The Draftsman, who prepared the scaled site plan (Exh.P-HH), conceded that he did not show any source of light. PW-11, namely Rafi Ullah, ASI, deposed that he had received information at about 12:25 p.m. to the effect that a dead body was laying in the uninhabi ted room i.e. the crime scene.
However , there is no explanation as to how and by whom the body was discovere d lying at the crime scene. The motive was indeed not proved by the prosecution and the reference of witnesses to the relationship between the Appellants cannot be relied upon.
10. The learned counsel for the Complainant has argued at great length regarding the reliability of the statement recorded by Appellant No.2 under section 164 of the Cr.P.C. and her replies to questions put to her in this regard while recording her statement under section 342 ibid. There is no cavil to the proposition that it is settled law that a voluntary and true statement recorded under section 164 of the Cr.P.C. requires no corroboration and may be sufficient for handing down a conviction but, as a rule of precaution, courts seek corroboration of the same on material particulars. A confessional statement is to be accepted or rejected as a whole. A statement under section 164 of the Cr.P.C. is considered a weak form of evidence while that recorded under section 342 ibid is treated as more reliable. As a principle of safe administration of justice, conviction is not recorded on the sole basis of confession and it is inevitable for the prosecution to prove its case beyond a reasonable doubt. A confessional statement recorded on oath is violative of law and thus it renders the same as inadmissible. There are mandatory requirements which are required to be fulfilled by the Magistrate recording a statement under section 164 of the Cr.P.C. and the same have been highlighted in great detail by the august Supreme Court in the case titled Azeem Khan and another v. Mujahid Khan and others' [2016 SCMR 274]. A confessional statement recorded under section 164 of the Cr.P.C. may be retracted later. However , even a retracted confessional statement, if corroborated by independent evidence of unimpeachable and reliable nature, could form the basis for convicting an accused.
The corroboration of a retracted statement under section 164 of the Cr.P.C. by some independent evidence is mandatory for handing down conviction. The delay in recording a confessional statement, by itself, may not be sufficient to affect its reliability but there is no hard and fast rule for prescribing a period regarding the validity of such a statement. In a nutshell, it is inevitable for the acceptance of a statement recorded under section 164 of the Cr.P.C. that two requirements must be fulfilled i.e. (i) the confession was made voluntarily and the facts narrated are a true account of a reliable nature and (ii) the facts so narrated in a confessional statement were proved by the prosecution during trial. The reliance on a statement under section 164 of the Cr.P.C. is thus dependent on the satisfaction of the court that it was made voluntarily and without any duress or fear. Moreover , the court has to be satisfied that the facts narrated therein are corroborated through independen t evidence brought on record.
Reliance for. these principles and law is placed on the cases of 'Hashim Qasim and another v. The State' [2017 SCMR 986], 'Azeem Khan and another v. Mujahid Khan and others' [2016 SCMR 274], 'Dadullah and another v. The State' [2015 SCMR 856], 'Nasir Mehmood and another v. The State' [2015 SCMR 423], 'Majeed v. The State' [2010 SCMR 55], 'Allah Nawaz v. The State' [2009 SCMR 736], 'Manjeet Singh v. The State' [PLD 2006 SC 30] and 'Muhamamd Shafi v. Muhammad Raza and another' [2008 SCMR 329]. We are not convinced that the statement of Appellant No.2 could be relied upon on the touchstone of the above principles and law .
11. We have carefully gone through the entire evidence and we are satisfied that, for the reasons discussed above, reasonable doubt exists regarding the guilt of the Appellants. The prosecution was not able to prove its case beyond a reasonable doubt. The depositions of the prosecution witnesses have not been found to be confidence inspiring and reliable to justify handing down convictions. We, C therefore, allow both the appeals i.e. Jail Appeal No.101/2017 titled 'Muhammad Rashid v. The State' and Jail Appeal No.102/2017 titled 'Mst. Tehseen Zahra v.
The State ' by extending the benefit of doubt and, consequently , judgment, dated 29-06-2017, whereby the Appellants were convicted and sentenced to death, is hereby set aside. The Murder Reference No.05/2017 titled 'The State v. Muhammad Rashid and another' is thus answered in the negative . The appellants shall be released forthwith if not required to be incarcerated in any other case.