MUHAMMAD HASHIM KHAN KAKAR, J.---Din Muhammad appellant along with co-accused Muhammad Qasim, Meer Hazar alias Meer Ahmed, Mohammad Ashraf, Zehri Khan and Arz Muhammad in furtherance of their common intention had allegedly murdered the appellant Din Muhammad's wives namely Mst. Bibi Khadija and Mst. Bibi Mehram inside the appellant's matrimonial home killi Muhammad Tawa Lamboj in the area of levies Kalat, District Kalat at about 2:30 a.m. on 24.8.2016 in the backdrop of a motive based upon the allegation of "Siyakari". With the said allegations the appellant and his co-accused were booked in FIR No. 17/2016 registered at the above mentioned levies station and after a regular trial, the appellant Din Muhammad was convicted by the trial court for an offence under section 302(b), P.P.C. read with section 34, P.P.C. and was sentenced to life imprisonment on two counts and to pay compensation of Rs. 4,000,00 to the legal heirs of deceased persons, hence the present appeal.
2. The occurrence in this case had taken place at 2:30 a.m. in the end of August. The place occurrence of was inside the house of appellant and according to the site plan Ex.P/9-A, there was no other house/shop anywhere close to the place of occurrence. An FIR in respect of the incident in question had been lodged after about 12 hours that too by a person who had not witnessed the occurrence and thus, possibility regarding deliberations before lodging of the FIR could not safely be ruled out of consideration. The ocular accou nt furnished by Mst: Saira (PW- 15) is neither straightforward nor confidence inspiring. She is third wife of the appellant Din Muhammad and as per her evidence, she saw only the dead bodies of her two co-wives early in the morning, who were slaughtered by unknown persons. Though she had deposed regarding the incident, yet without raising a finger of accusation towards the appellant and subsequently was also declared hostile by the prosecutor .
3. As stated above, there is no eye-wit ness of the occurrence and, the whole case of prosecution has been structured upon the confessional statement of appellant Din Mohammad, recorded by (PW-5) Judicial Magistrate, Hizbullah Khan on 10th May, 2018. He has produced the confessional statement (Ex.P/5-B) and stated that the accused Din Muhammad was produced by the police under the letter/written request Ex.P/5-A and his confession was recorded by him accordingly . It reveals from the record that accused. Din Muhammad who made confessional statement was in Levies custody from 1-10-201'8, as mentioned in challan by the investigating officer and he was produced before Magistrate for recording his confessional statement on 10-10-2018, after a delay of 9 days which is fatal. We have noticed that in the instant case, the magistrate had not given warning to the accused that in case he makes 'confession or does not make confession, his custody will not be handed over to the levies authorities. It is also admitted by the magistrate in his evidence that he had not physically examined the accused in order to determine any torture/violence by the levies authorities for extracting confession. While recording the confessional statement the magistrate has not correctly complied with the requirement of sections 164 and 364, Cr.P.C. To our mind the requirement of confessional statements are that it shall be free from inducement, threat, coercion and the same shall be true and voluntary . We have noticed that the confessional statement of accused Din Muhammad has not been recorded as per required procedure and same is retracted one, suffering from legal defects and cannot be relied upon for considering the same to award conviction.
4. Besides not administering the required warning, the magistrate has also failed to provide sufficient time to the accused for reflection before recording his confessional statement, which was requirement under the prescribed statute and its failure is suf ficient to vitiate confession.
5. It is by now well settled that a retracte d judicial confession' recorded under section 164, Cr.P.C., in absence of any independent corroboration could not suffice all by itself for recording or upholding F the accused persons' conviction. The medical evidence furnished by PW-4 Dr. Saadia is also not in line with the version of prosecution, as the medical report is completely silent with regard to poisoning exact cause of death and nature of injuries as to whether the same were post or anti-mortem.
6. The defence also focused on the weakness of motive. It is case of the prosecution that the crime in question has been committed on account of "Siyakari" but nothing material has been brought on record to prove the same.
There is nothing on record to establish that deceased Khadija and Marhem Bibi were on illicit terms with anyone. It has remained far from being established. We are mindful of the fact that absence or weakness of motive would not render case of the prosecution false or fabricated and it is not requirement of law to prove the same by all means, however , if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against its case. Likewise, recovery of crime weapon from the place of occurrence is also of no avail to the prosecution for the reasons that neither the same has been effected from the possession of accused nor it has been sent to Forensic Science laboratory in order to ascertain as to whether it stained with human blood or otherwise.
7. Reverting to the next contention of Mr. Yahya Baloch, learned Additional Prosecutor General, that the deceased Mst. Khadija and Bibi Merhem were vulnerable dependents of the appellant and, thus, some part of the onus had shifted to the appellant to explain the circumstances in which his wives had died unnatural deaths in his house during the fateful night which part of the onus had not been discharged by the appellant. This contention has also no legs to stand for the reason that the Hon'ble Supreme Court has answered the same in the case "Asad Khan v.
The State " (PLD 2017 SC 681) wherein it has been clarified that the above-mentioned shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. The relevant part whereof speaks as under: "4. It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524 ) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborat ed and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however , been held in the case of Abdul Majeed v. The State (2012 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement."
8. In view of above discussion, we are of the view that on the basis of evidence led by the prosecution neither any case is made out against the appellant nor conviction recorded by the trial court is sustainable under the law.
Consequently , this appeal is accepted. The impugned judgment dated 27.6.2019, passed by the learned Sessions Judge, Kalat in Sessions Case No.02/2019 be set aside. While extending benefit of doubt the appellant Din Muhammad son of Ghulam Mustafa is acquitted of the charge in FIR No. 17/2016, levies station, Kalat. Appellant is in custody and he shall be released forthwith if not required in any other case. These are the reasons of our short order dated 30.03.2020.