MUHAMMAD TARIQ NADEEM, J. Akbar alias Mohsin, appellant, faced trial in case FIR No. 544 dated 28-07-2016, under sections 365, 302, 201, P.P.C. registered at Police Station Muradpur, Sialkot, and at the conclusion of the trial, the learned trial court vide judgment dated 29-05-2017, convicted and sentenced the appellant for the charge of kidnapping and causing the murder of Muzaffar Iqbal alias Ali as under:- Under section 302(b), P.P.C.
Life imprisonment along with compensation of Rs. 2,00,000/- to the legal heirs of Muzaffar lqbal alias Ali, deceased, under section 544-A, Cr.P.C. recoverable as arrears of land revenue or in default thereof to further undergo 06 months' S.I Under section 364, P.P.C.
Life imprisonment along with compensation of Rs. 1,00,000/-; in default thereof to further undergo 06 months' S.I.
Under section 201, P.P.C.
07 years along with a fine of Rs.50,000/-; in default thereof to further undergo 04 months' S.I.
Benefit of section 382-B, Cr.P.C. was extended to the appellant.
2. Feeling aggrieved from the judgment of the learned trial court, the appellant has assailed his convictions and sentences through this appeal.
3. The prosecution story, as outlined in the written complaint (Ex.PH) of Mst. Nagma Mushtaq (PW.8) is that on 03-07-2016, she went to Dubai to see her brother namely Mansoor, leaving behind her son Muzaffar Iqbal alias Ali, aged 16 years (since deceased) with his aunt Shabnum and maternal grandmother Mst. Kaneez Fatima, in her residence at Hunterpura, Sialkot. That on 25-07-2016, her son Muzaffar Iqbal alias Ali went to nearby snooker club but did not return. He was having with some money and mobile phone with SIM No.0306-8203366 with him. She (complainant) after hearing about the incident, returned to Pakistan on 27-07-2016 and reported the matter to the police about the occurrence an 28-07-2016 through written application (Ex.PH) while suspecting that some unknown accused had kidnapped her son. On the basis of above said application (Ex.PH), formal FIR (Ex.PG) was registered under section 365, P.P.C.
4. It is pertinent to mention here that after the registration of FIR (Ex.PG), Mst. Nagma Mushtaq (PW.8) also got recorded her supplementary statement on 30-07-2016 levelling the allegation that her ex-husband (Muhammad Iqbal) met her and told that on the day of occurrence i.e. 25-07-2016 at about 08:20 p.m., he met his son/victim Muzafar Iqbal alias Ali along with the appellant Akbar alias Mohsin at Gohadpur Chowk, Sialkot. The appellant told that he was taking Muzaffar Iqbal alias Ali to his house at Kala Ghumannaan. She (complainant) suspected that Akbar alias Mohsin, appellant had committed murder of her son and his dead body had been concealed somewhere.
On the basis of supplementary statement of the complainant, the appellant was arrested. During investigation, the accused confessed his guilt and his confessional statement was recorded by Syed Mehmood Afzal Shah, learned Judicial Magistrate 1st Class, Sialkot (PW.3).
After completion of investigation, report under section 173, Cr.P.C. was prepared and submitted before the learned trial court. On indictment, the appellant pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, produced thirteen witnesses before the learned trial court. Mst. Nagma Mushtaq (PW.8) was complainant of the case and witness of extra judicial confession of appellant. Tanvir Hussain (PW.6) and Muhammad Iqbal (PW.7) were witnesses of last seen evidence. Muhammad Iqbal (PW.7) also deposed about the motive part of the occurrence.
Mst. Shabnum (PW.5) and Tayyab Akram (PW.12) were the witnesses of circumstantial evidence.
Syed Mehmood Afzal Shah, learned Judicial Magistrate 1st Class, Sialkot appeared as (PW.3), who recorded the confessional statement of the appellant. Maqsood Ahmad, HC (PW.1) was the witness of broken spectacles (P.1) taken into possession at the instance of the appellant vide recovery memo (Ex.PA). He was also the witness of a wrist watch of CASIO company (P.2) allegedly belonging to deceased, at the instance of the appellant vide recovery memo (Ex.PB). Whereas, Nafees ur Rasool, HC (PW.2) was the witness of motorcycle (P.5) and the mobile phone (P.6) taken into possession by the police from the possession of the appellant vide seizure memo (Ex.PE).
Ghulam Murtaza, SI (PW.9) and Abid Farooq, SI (PW.10) being Investigating Officers stated about the various steps taken by them during investigation of the case.
Rest of the witnesses are formal in nature. The prosecution gave up Tahir Mehmood 1092/C, Muhammad Rizwan 2132/C, Muhammad Arshad 38/HC and Kaneez Fatima, PWs being unnecessary and after tendering in evidence documents i.e. Ex.PA to Ex.PO, closed its evidence.
6. After completion of prosecution evidence, learned trial court recorded the statement of the appellant as required under section 342, Cr.P.C. wherein he controverted the allegations levelled by the prosecution against him and professed his innocence. The appellant did not opt to make statement under section 340(2), Cr.P.C. to disprove the allegations levelled against him, however, he produced certain documents i.e. Ex.DA to Ex.DM in his defence evidence.
7. The learned trial court vide judgment dated 29-05-2017 found the appellant guilty, convicted and sentenced him as mentioned above, hence, this appeal.
8. None has turned up to pursue the appeal on behalf of the complainant. It has been apprised by the learned Law Officer that as per report submitted by the police complainant is living in Dubai now-a-days and her sister namely Shabnum (PW.5) informed her qua the fixation of instant criminal appeal but she has not turned up despite repeated notices. This appeal pertains to the year 2017 therefore, this Court has left with no other option but to decide the instant case after hearing learned counsel for the appellant as well as learned Deputy Prosecutor General and perusal of material available on the record.
9. In the present case, the facts and circumstances of the case suggest that the alleged occurrence had not been witnessed by anyone, however, in order to prove its case, the prosecution has heavily relied upon the circumstantial evidence, which is normally considered as a weak type of evidence. It is well settled by now that in such like cases, prosecution is required to link each circumstance to the other in a manner that it must form a complete, continuous and unbroken chain of circumstances, firmly connecting the accused with the alleged offence and if any link is missing then obviously benefit is to be given to the accused. Reliance is placed upon the esteemed judgments of the Hon'ble of Supreme Court of Pakistan reported as "Muhammad Hussain v. The State" (2011 SCMR 1127), "Nasir Javed and another v. The State" (2016 SCMR 1144) and "Naveed Asghar v. The State" (PLD 2021 SC 600).
10. In an attempt to prove the accusation against the appellant and to form a complete chain of circumstances, the prosecution has relied upon the evidence of last seen, judicial confession, extra judicial confession, recoveries and lastly the motive.
11. The incident in the present case, according to the prosecution, was alleged to have taken place on 25-07-2016 within the area of Hunterpura, about 05 kilometers away from Police Station Muradpur, Sialkot and the same was reported by Mst. Nagma Mushtaq (PW.8) through written application (Ex.PH) on the basis of which formal FIR (Ex.PG) was chalked out by Tariq Mehmood, ASI (PW.2) on 28-07-2016 with the delay of 03 days. I have noted that Shabnum (PW.5) as well as Mst.
Kaneez Fatima (jettisoned PW), who being maternal aunt and maternal grandmother of Muzaffar Iqbal alias Ali (deceased) respectively and inmate of the same house were fully aware about his missing but they had not bothered to inform the police. No plausible explanation for the above- mentioned delay in reporting the matter to the police has been brought on the record. Therefore, I hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case law titled as "Pervaiz Khan and another v. The State" (2022 SCMR 393) wherein the august Supreme Court of Pakistan has held as under:- "... There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and a half hour but even then the report was lodged in the hospital at 11:15 p.m. There is no explanation as to why after reaching the hospital when both the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant...."
12. It is noteworthy that initially, on 28-07-2016, the FIR (Ex.PG) was got registered by Mst. Nagma Mushtaq, complainant (PW.8) against unknown accused person. Thereafter, on 30-07-2016, she (complainant) got recorded her supplementary statement and nominated the appellant with the assertion that on 30-07-2016, her ex-husband (Muhammad Iqbal) met and told her that on the day of occurrence i.e. 25-07-2016 at about 08:20 p.m., he met his son/victim Muzafar Iqbal alias Ali along with Akbar alias Mohsin, appellant at Gohadpur Chowk, Sialkot. The appellant told that he was taking Muzaffar Iqbal alias Ali to his house at Kala Ghumannaan. She (complainant) suspected that Akbar alias Mohsin, appellant had committed murder of her son and his dead body had been concealed somewhere. On the basis of supplementary statement of the complainant, the accused was arrested. I have noted that the statement of Mst. Nagma Mushtaq, complainant (PW.8) is totally based upon hearsay evidence and not reliable, as according to the statement of Ghulam Murtaza, SI (PW.9), on 04-08-2016, he got issued proclamation regarding missing of the victim, thus, it is strange enough when the complainant (PW.8) had already nominated the appellant on 30-07-2016 then there was no. occasion to get issue the proclamation Ex.DG. Meaning thereby that the prosecution was not certain about the involvement of the appellant in the occurrence till 04-08-2016. The Courts have always deprecated the supplementary statement, which is made with the purpose to strengthen the case of the prosecution in connivance with the police officials or some other ulterior motives to get the suspect convicted by hook or crook.
Nomination through supplementary statement has always been deprecated and disliked by the Hon'ble Supreme Court and has never been appreciated the same being afterthought. Here, I would like to refer to the cases of "Akhtar Ali and others v. The State" (2008 SCMR 6) and "Kashif Ali v. The Judge, Anti-Terrorism Court No. II, Lahore and others" (PLD 2016 SC 951).
13. As far as the first significant piece of evidence in this case i.e. evidence of last seen is concerned, the same came out from the mouth of Tanvir Hussain (PW.6) and Muhammad Iqbal (PW.7).
According to the statements of supra mentioned PWs of last seen, on 25-07-2016 at 08:00 p.m., they were present at Gohadpur Chowk in connection with some domestic affair. In the meantime, they saw appellant along with Muzaffar Iqbal alias Ali (deceased) coming towards them on motorcycle and stopped near them. Muzaffar Iqbal alias Ali (deceased) talked to his father Muhammad Iqbal (PW.7), who inquired from them where were they going, upon which appellant told that he was taking Muzaffar Iqbal alias Ali to his own house. Then they separated and went on their way. Thereafter, on 30-07-2016, Muhammad Iqbal (PW.7) told Tanvir Hussain (PW.6) that his son Muzaffar Iqbal alias Ali (deceased) was missing. Both the PWs came to Sialkot to the mother of the victim and told her that they had witnessed the victim with the appellant on 25-07-2016.
It is noteworthy that the supra mentioned PWs have failed to justify their presence at Gohadpur Chowk Sialkot on 25-07-2016, when they allegedly seen Muzafar Iqbal alias Ali in the company of appellant.
According to Tanvir Hussain (PW.6), he was resident of Fatehwali, Tehsil Pasrur, District Sialkot and distance between Fatehwali and Gohadpur Chowk is about 70/80 Kilometers. According to the statement of Tanveer Hussain (PW.6), in connection with marriage proposal of his nephew, they had visited Sialkot on 25-07-2016. The concerned person, to whom they had to meet, was Sana Ullah but the prosecution has failed to produce the said witness during the course of investigation or before the learned trial court. Similarly, Muhammad Iqbal (PW.7) stated as under:- "...I had not told to the police in my statement, the purpose for which I came to Sialkot on 25.07.2016.
During whole investigation, I did not tell the police the specific purpose of my visit of Sialkot on 25.07.2016...."
Even otherwise conduct of Muhammad Iqbal (PW.7) was highly unnatural because being the real father of Muzaffar Iqbal alias Ali (deceased), why he allowed to go his minor son in the company of an unknown person. They both are interested witnesses and due to their unnatural conduct they cannot be termed as truthful witnesses. For the above reasons, their evidence is not worthy of reliance, therefore, I discard the same. Guidance can be sought from the case of "Zaheer Sadiq v.
Muhammad ljaz" (2017 SCMR 2007).
14. I have also noted with grave concern that the witnesses, namely Tanvir Hussain (PW.6) and Muhammad Iqbal (PW.7) have made blatant and dishonest improvements in their earlier statements before the learned trial court. Tanvir Hussain (PW.6) was duly confronted with improvements and the relevant portion of his cross-examination highlighting those improvements are as under:- "....I had recorded my statement to the police, in this case on 30.07.2016. In my statement to the police, I had mentioned the time the time as 8:00 p.m. Confronted with Exh.DA, where it is not recorded. In my statement to the police, I had stated that we were present in Gohadpur Chowk in connection with some domestic affair. Confronted with Exh.DA where the word "domestic affair" is not mentioned. I had stated to the police that both the accused and the victim stopped near us.
Confronted with Exh.DA where the word "both, the accused and victim" is not mentioned. I had recorded to the police in my statement that we separated and went our way. Confronted with Exh.DA where it is not so recorded. I had recorded in my statement to the police that I along with Iqbal came to Sialkot to the mother of the victim. Confronted with Exh.DA where the word "coming to Sialkot" is not recorded. I had recorded to the police in my statement that we told mother of the victim that on 25.07.2016, we witnessed the victim and the accused Akbar alias Mohsin. Confronted with Exh.DA where the date is not mentioned..............."
Similarly, Muhammad Iqbal (PW.7) during his cross-examination stated as under:- "..I do not remember whether in my statement to the police, I recorded time as 8:00/8:15 p.m.
Confronted with Exh.DB where the time is not mentioned. In my statement to the police I had not recorded that on 30.07.2016, I contacted Tanvir Hussain PW and told him that we had to got to Sialkot. In my statement to the police, I had not recorded that we came to the house of Sattar, Numberdar where we called complainant Nagma. I had not told to the police in my statement that Tanvir PW also told the same fact to the complainant Nagma Mushtaq. I had not recorded in my statement to the police that accused Akbar alias Mohsin had developed illicit relations with Nagma Mushtaq and since Nagma Mushtaq had gone to Dubai so the accused committed murder of her son............"
In a slew of decisions, the Hon'ble Supreme Court of Pakistan has stated that a witness is untrustworthy if he makes dishonest improvements in his statement on a material aspect of the case in order to fill up gaps in the prosecution case or to bring his statement in line with the other prosecution evidence. Reference in this respect may be made to the judgment reported as "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600). I also fortify my view from the dictum laid down in case titled as "Khalid Mehmood and another v. The State and others" (2021 SCMR 810).
It is noteworthy that Mst. Shabnum (PW.5), who was sister of Mst. Nagma Mushtaq, complainant (PW.8). She (PW.5) along with her mother, and children was residing at Gohadpur where her sister Mst. Nagma Mushtaq, complainant (PW.8) and her children were also resided. On 25-07-2016 at evening time about 7:00/8:00 p.m., her sister's son Muzaffar Iqbal alias Ali went outside the house at nearby Snooker Club. He had his mobile phone bearing SIM No.0306-820336 and some pocket money with him, who did not return home. They started search for him but he could not be traced out. On.the following day, they telephonically contacted his mother Mst. Naghma Mushtaq, complainant (PW.8). On her return, she (PW.8) got registered FIR against unknown accused on 28- 07-2016 regarding the missing of her son. Muhammad Iqbal (PW.7) ex-husband of her sister Mst.
Nagma Mushtaq, complainant (PW.8) told her sister (PW.8) that he had witnessed Muzaffar Iqbal alias Ali with appellant on the day of his missing i.e. 25-07-2016.
Similarly, Tayyaba Akram (PW.12) during his examination-in-chief deposed as under:- "...Stated that 11.07.2016 9:00 p.m., I was present in the house of my mother situated at Maliyanwala Tehsil Sambrial. My mobile phone number is 0336-4683789. The accused Akbar alias Mohsin on the above date at 9:00 p.m contacted me on my mobile phone from his mobile phone No.0302- 6174334. He told me that Nagma Mushtaq (the complainant) had gone to Dubai and she was not contacting him (the accused) on what's app. The accused further asked me that I should contact Nagma Mushtaq and should ask her to contact the accused. I replied to the accused that if Nagma Mushtaq was not willing to contact him, then he (accused) should not disturb me. I forbade him not to make any phone call in future. The accused then asked me that if Nagma Mushtaq would not contact him, in near future, some untoward regarding son of Nagma Mushtaq namely Muzaffar alias Ali, would happen due to which, Nagma Mushtaq shall have return to Pakistan in exigency. I also gave my statement to the police after 1 or 1-1/2 month of the said phone call...."
Moreover, she (PW.12) during his cross-examination stated as infra:- "..On the same day i.e. 11-07-2016, 1 told the complainant Nagma Mushtaq about mobile call of the accused Akbar alias Mohsin who replied that she was not willing to contact the accused. I also told the complainant that accused wanted to talk to her regarding something about her son Muzaffar alias Ali. The whole information as I stated in my examination in chief was told by me to the complainant Nagma Mushtaq through what's app contact. I told the same story to my mother-in-law afterwards, after missing of the victim Muzaffar alias Ali. I also told the same facts to Shabnum...."
In the light of above mentioned statement of Tayyaba Akram (PW.12), it is crystal clear that she has already disclosed to Mst. Nagma Mushtaq, complainant (PW.8) qua her receiving phone call from Akbar alias Mohsin, appellant on 11-07-2016 that he had threatened about Muzaffar Iqbal alias Ali (deceased) when Mst. Nagma Mushtaq complainant (PW.8) had already been informed then whey he had not got registered FIR against the appellant and why the names of witnesses of last seen i.e. Tanveer Hussain (PW.6) and Muhammad Iqbal (PW.7) and witnesses of circumstantial evidence i.e. Mst. Shabnum (PW.5), Tayyaba Akram (PW.12) were not incorporated in the FIR. These facts are E sufficient to shatter the credibility of prosecution case.
I have also noticed that Mst. Kaneez Fatima (jettisoned PW), who was happened to be a maternal grand-mother of Muzaffar Iqbal alias Ali (deceased) and also real mother of Mst. Nagma Mushtaq, complainant (PW.8), had filed an application under sections 22-A, 22-B, Cr.P.C. (Ex.DD) in the court of learned Ex-Officio Justice of Peace, Sialkot for the registration of second FIR with the different story that on 25-07-2016 at Maghrib prayer time, Akbar alias Mohsin, appellant come at her house and inquired about her grand son Muzaffar Iqbal alias Ali (deceased), who was present outside the house on a shop. On calling Muzaffar Iqbal alias Ali (deceased) hurriedly came at home and after preparation went along with the appellant. It was further asserted by Mst. Kaneez Fatima (jettisoned PW) that her elder daughter Shabnum Andleeb have illicit relations with Akbar alias Mohsin, appellant and Nasir Butt, Ex-SHO, Police Station Muradpur as well as two other unknown persons and they had kidnapped and murder her grandson.
In the light of the statements of supra mentioned PWs, it is crystal clear that Mst. Nagma Mushtaq, complainant (PW.8) was already well aware about the facts disclosed by above referred PWs, before the registration of FIR (Ex.PG) and even names of witnesses of last seen evidence as well as Mst. Shabnum (PW.5) and Tayyaba Akram (PW.12) should have been mentioned in the FIR but the prosecution evidence stated otherwise.
In view of above, I am of the considered view that the prosecution has cooked up a false and fabricated story afterwards. Even otherwise, there is contradictory stance qua the abduction and murder of Muzaffar Iqbal alias Ali (deceased) and the prosecution evidence in this respect is under the clouds of doubt. It is well settled by now that last seen evidence is always considered to be week type of evidence, unless corroborated by some other independent evidence. In this respect, the reference can be made to the cases of "Fayya z Ahmad v. The State" (2017 SCMR 2026) and "Muhammad Abid v. The State" (PLD 2018 SC 813).
15. The next piece of evidence relied by the prosecution was in shape of judicial confession of the appellant before Syed Mehmood Afzal Shah, learned Judicial Magistrate 1st Class, Sialkot (PW.3). To determine the factum whether judicial confession of the appellant has been recorded. by the supra mentioned Magistrate after observing the formalities required under the law or not, it would be appropriate to have glance over the section 164, Cr.P.C. which is reproduced as under:- "164. Power to record statements and confessions.---(1) Any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Provincial Government may, if he is not a police-officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.
(1A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity to cross-examining the witness making the statement.
(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reasons to believe that it was made Voluntarily, and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect.
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him...."
Whereas section 364 Cr.P.C. provides the mode through which the examination of an accused person is recorded. The questions put to the accused and the answers given by him should be distinctly and accurately recorded. For relevance section 364 Cr.P.C. is reproduced infra:-
364. Examination of accused how recorded.---(1) Whenever the accused is examined by any Magistrate or by any court other than a High Court the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined or, if that is not practiceable of the Court or in English, and such record shall be shown or read to him or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(3) In a case in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound as the examination proceeds, to make memorandum thereof in the language of the Court or in English, if he is sufficiently acquainted with latter language, and such memorandum shall be written and signed by the Magistrate or Judge with his own hand and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person under section 263."
Likewise, according to Rules and Orders of the Lahore High Court, Lahore (Volume III, Chapter No.13), the following instructions have been issued for the guidance of Magistrates for recording confessions of an accused. For ready reference, the same are also described as under:-
13. Instruction about recording confessions:---(i) The following instructions have been issued by the Punjab Government for the guidance of Magistrates recording confessions (Punjab Government Circular letter No. 6091-J-36/39829 (H.-Judl.) dated the 19th December 1936, to all District Magistrates in Punjab);-
(a) Accused should be left for some time away from influence of Police.---In order to ensure that a statement or confession under section 164 of the Code of Criminal Procedure is made voluntarily, the following precautions should be taken. Before the Magistrate proceeds to record the confession, he should arrange so far as is compatible with his safety and that of his staff and with the safe custody of the prisoner - that the latter is left for some time (say, for half an hour) out of the hearing of police officers or other persons likely to influence him.
(b) Confession recorded should not be handed over to the Police.---The Magistrate who records a confession under section 164, Criminal Procedure Code, should not hand over the document after completion to the Police Officer in charge of the prisoner, but should forward it, as required by subsection (2) of that section, direct to the Magistrate by whom the case is to be enquired into or tried.
(c) Copy of recorded confession may be given to Police.---These instructions do not prohibit a Magistrate who recorded a confession or statement from allowing the Police to take a copy of it before it is forwarded to the trial Magistrate; and Magistrates should always permit the Police to take a copy if they express a desire to do so. When permission is so given, the Police copy should be written out by a Police officer or clerk from the dictation of an officer of the court, in the actual presence of the Magistrate who recorded the confession.
Time and labour can be saved if the Magistrate recording a confession makes a carbon copy, which can subsequently be made available for Police purposes, or alternatively dictate a copy to an official of the court at the same time as he himself writes the original...."
I am further fortifying my view from the dictum laid down by august Supreme of Pakistan reported as "Muhammad Ismail v. The State" (2017 SCMR 713) wherein Apex Court has dilated upon the most important factors and required standards of confession, may be cited below:- "It should be ensured,
(i) that the accused is in full senses and understands the consequences of making a confession;
(ii) that, the confession was not a result of any duress, coercion or any promise by the prosecution, to be made an approver;
(iii) that, during transit of the accused by the police from and to the Trial Court from the prison, on each "Paishi" no threat or pressure was applied by the escorting police guard or incharge thereof;
(iv) what were the actual facts, which induced the accused to confess after facing trial, during which he pleaded innocence all the way;
(v) the court recording the confession has to ensure that the mental capacity of the accused is not diminished due to any illness and if some indication of abnormality is suspected by the Court, it is better to refer the accused to the Standing Medical Board to ascertain the true cause thereof;
(vi) While recording the confession, the same safeguards and precautions be adopted, by directing the Public Prosecutor, the complainant's counsel, the Naib Court and all other officials to leave the Court. If need be, the counsel who represents him, may be given an opportunity to be present inside the Court during the whole process, if the accused person, on asking by the Trial Judge, so demands;
(vii) the handcuffs of the accused be removed and he be provided a chair on the dais. He may be given some time to think over the making of the confession and in that regard particular questions be put to him, as to why he was making the confession when he has already pleaded innocence and claimed trial at the time, the formal charge was framed;
(viii) the Trial Judge shall explain to the accused that, in case of making confession, he has to face a capital sentence in a murder case or any offence punishable with death;
(ix) the entire record of all the questions and answers recorded, be properly maintained and thereafter, a proper certificate be appended thereto, showing the satisfaction of the Trial Judge that the accused person was not mentally sick and he was making the confession voluntarily, based on true facts and that, there was no other compelling reason behind that.
As the above procedure was not adopted, therefore, it was incorrectly construed by the Courts below as confession of the accused. Under the law, it may be treated as an admission of the appellant, however, on the basis of admission alone, accused person cannot be awarded a capital punishment because admission, as has been defined by Article 30 of the Qanun-e-Shahadat Order, 1984, is only a relevant fact and not a proof by itself, as has been envisaged in Article 43 of the Order, 1984, where a proved, voluntary and true confession alone is held to be a proof against the maker therefore, both the Courts below have fallen in error by treating this halfway admission to be a confession of guilt on the part of the appellant.
13. It is a bedrock principle of law that, once a Statute or rule directs that a particular act must be performed and shall be construed in a particular way then, acting contrary to that is impliedly prohibited. That means, doing of something contrary to the requirements of law and rules, is impliedly prohibited. Therefore, it is held that the admission of the appellant cannot be a substitute for a true and voluntary confession, recorded after adopting a due process of law and it cannot be made the sole basis of conviction on a capital charge...."
Now, I advert to the statement of Syed Mehmood Afzal Shah, learned Judicial Magistrate 1st Class, Sialkot (PW.3), who during his cross-examination stated as under:- "On 13.08.2016, during summer vacation I was performing as duty Magistrate. On the said day, I alone was performing duty as Magistrate 1st Class, for Tehsil Sialkot. It is correct that there are 12 police stations of Tehsil Sialkot and on the said date, I alone performed duty as duty Magistrate 1st Class for all the said police stations. It is incorrect to suggest that during vacations, we have to face more rush of work as compared to other normal days. Presently I am performing routine duty as Judicial Magistrate for three police stations. While considering three police stations versus twelve police stations, for remand of the accused persons, the rush of work obviously would be more for the twelve police stations. It is correct that statement under section 164, Cr. P. C. is recorded after observing the provisions of section 364, Cr.P.C. and the High Court Rules and Orders. It is correct that while recording statement under section 164, Cr.P.C., the statement of the accused should be recorded in full, in the language in which he is examined. It is correct that as per record of statement under section 164, Cr.P.C. when five questions were put and answered by the accused, he was under custody. It is correct that in this area, normally the language understandable for the accused is either Urdu or Punjabi. No such questions or answers in Urdu have been recorded by me while recording statement of the accused. It is correct that there is no question written in Urdu and Punjabi which I asked from the accused showing that he was appearing before Magistrate for recording of his statement, volunteers that I asked the said question from the accused in Urdu but translated it in English language. It is correct that record of statement under section 164, Cr.P.C. does not show that I asked questions from the accused in Urdu and translated it on record in English. It is incorrect to suggest that my above volunteer portion is incorrect. As per record, there is no question and answer in Urdu or Punjabi stating to the accused "that you are not bound to record your statement under section 164, Cr.P.C." volunteers that I verbally asked the above-said question from the accused in Urdu but translated it on record in English. It is correct that record of statement under section 164, Cr.P.C. does not show that I asked question from the accused in Urdu and translated it on record in English. It is incorrect to suggest that my above volunteer portion is incorrect. The same is the position with the question "that on the basis of your statement under section 164, Cr.P.C., you can be convicted and punished by the court". The questions Nos.4 and 5 and their answers regarding any pressure or inducement while recording statement under section 164, Cr.P.C. and as to free consent of the accused, are also in English language and I verbally put those questions to the accused in Urdu and then translated on record in English. It is correct that record of statement under section 164, Cr.P.C. does not show that I asked question from the accused in Urdu and translated it on record in English. It is incorrect to suggest that my above volunteer portion is incorrect. No statement of stenographer is part of record of statement under section 164, Cr.P.C. showing that questions and answers from the accused were in Urdu or Punjabi. As per record of statement under section 164, Cr.P.C. showing that questions and answers from the accused were in Urdu or Punjabi. As per record of statement under section 164, Cr.P.C., no question from the accused was asked showing that since how long time, he was in police custody. While recording statement of the accused, I did not put any question or give any assurance to the accused suggesting that if he did not make confession, he would not be returned to the police custody. While recordirg statement of the accused, I made no question from the accused whether he had been tortured by the police. I did not physically examined the body of the accused to trace out any signs of violence on his body. Through no other source but from the accused himself, I satisfied myself as to voluntariness of the accused is making the statement. It is correct that statement of the accused and the record of the statement under section 164, Cr.P.C. does not bear the signatures of the accused but I obtained the thumb impressions of the accused on his statement under section 164, Cr.P.C. Since thumb impressions were sufficient to meet the legal requirements so, I did not obtain his signatures. It is correct that the portion of statement containing questions and answers does not bear date underneath my signatures but this page on top of it bears the date as 13-08-2016. It is correct that next page on which statement in Urdu of the accused is recorded does not bear the date. Prior to recording statement under section 164, Cr.P.C. of this case, I earlier also recorded the statements under section 164, Cr.P.C. of this case, I earlier also recorded the statements under section 164, Cr.P.C. of males and females. It is correct that on third page of the statement where certificate is recorded, in second para "D/O (daughter of)" is written and on next line the word "her" is written, volunteers that due to computer mistake, the above said words were written instead of "S/O and "his". It is correct that till today, no rectification of the above computer mistake as stated in my volunteer portion has been made. It is incorrect to suggest that as per certificate given in the statement under section 164, Cr.P.C. the same suggests that I recorded the statement of some female.............
Court staff was present in court room including Reader, Naib Court, Stenographer and Naib Qasid, when statement of the accused was recorded. The police officer/I.O along with other police officials were outside the court room. During the time of recording statement under section 164, Cr.P.C. the police men remained outside the court room. I did not send the accused to the judicial lockup for one day, prior to recording of his statement under section 164, Cr.P.C. for removing any apprehension of pressure or inducement. There might be the chances of pressure or inducement of police upon accused in such like cases but not in all the cases...."
Contrary to above, Abid Farooq, SI/Investigating Officer (PW.10) during his cross-examination stated that he was out of the court room and the accused was inside the court room. The accused was handcuffed. Relevant portion of his statement reads as under:- ".....On 13.08.2016 at about 11:30 a.m. the accused was produced in the court of learned Judicial Magistrate. It took about 3 to 4 hours in the proceedings of recording of statement of the accused under section 164, Cr.P.C., I was out of the court room and the accused was inside the court room.
The accused was handcuffed. I handed over the accused to Naib Court and the court derived me and the police party out of the court. At the time of recording of statements under section 164, Cr.P.C. I and my companions were outside the court room. The door of the court room was closed.
The court room was not absolutely shut because other cases were also being taken up by the court....
In view of above discussion, I have noticed that the learned Judicial Magistrate has not observed the legal formalities required under the law for recording judicial confession of the appellant. It is not disputed that the judicial confession attributed to the appellant had been retracted by him before the learned trial court and thus, the said confession could not be relied upon in the absence of any independent corroboration. In the absence of evidentiary certainty, it would be unsafe to maintain the convictions on moral satisfaction that certainly cannot equate with legal proof. All these state of affairs led me to irresistible conclusion to discard this piece of evidence. Reliance is also placed upon the cases titled as "Hashim Qasim and another v. The State" (2017 SCMR 986), "Muhammad Azhar Hussain and another v. The State and another" (PLD 2019 SC 595) and "Sadi Ahmad and another v. The State" (2019 SCMR 1220).
16. Now I would like to discuss the extra judicial confession allegedly made by the appellant before Mst. Nagma Mushtaq, complainant (PW.8), when the appellant was in jail and the complainant on the asking of her mother went to jail to inquire from appellant about the missing of her son where appellant said that:- "he had done whatsoever with his son. Further elaborates that he categorically said that "he had committed the murder of my son."
It is noteworthy that when the judicial confession of appellant was already penned down by Syed Mehmood Afzal Shah, learned Judicial Magistrate 1st Class, Sialkot (PW.3) then the appellant had no need to confess his guilt before anyone, particularly before Mst. Nagma Mushtaq, complainant (PW.8) at a later stage. According to her statement, Mati ur Rasool alias Master Guddu, resident of Village Kala Ghumanan was also present during her first meeting in jail with the appellant but during trial said Mati ur Rasool alias Master Guddu was examined as CW.1 on the application of appellant and in his statement, he totally negated the stance of Mst. Nagma Mushtaq, complainant (PW.8) by stating that the complainant party earlier had a suspicion that Muhammad lqbal (PW.7) was behind the missing of Muzaffar Iqbal alias Ali. After the meeting, they decided to trace out the victim Muzafar lqbal alias Ali from Madrissas etc. and from his father Muhammad Iqbal (PW.7). The complainant at that time felt satisfied from the appellant.
Even otherwise, Ghulatn Murtaza, SI/Investigating Officer (PW.9) during his cross-examination stated that complainant, her mother Kaneez Fatima and sister Shabnum did not nominate any person as an accused in their statements, before him. He further stated that the above said ladies also did not show any suspicion against any person. No motive was also asserted by the above said ladies before him. Relevant II lines of his statement reproduced as under:- "....It is correct that the complainant, her mother Kaneez Fatima and sister Shabnum did not nominate any person as an accused in their statements, before me. It is correct that the above said ladies also did not show any suspicion against any person. No motive was also asserted by the above said ladies, before me...."
In view of the matter, I may observe here that the evidence of extra judicial confession can be concocted easily and for this valid reason, it is always looked doubtful and suspicious. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character, but when other evidence lacks such attribute, it has to be excluded from consideration. Extra judicial confession of the appellant when examined in this perspective neither rang true nor agreed with truth or fit in with the circumstances of the case. I have not been satisfied by the prosecution with such queries to believe the said evidence, hence, no implicit reliance can be placed on the evidence of extra judicial confession for the purpose of conviction. Even otherwise, the evidentiary value of extra judicial confession has been declared a weak type of evidence by august Supreme Court of Pakistan in plethora of judgments including in cases titled as "Imran alias Dully and another v. The State and others" (2015 SCMR 155), "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274), "Mst. Asia Bibi v. The State and others" (PLD 2019 Supreme Court 64), "Wajeeh-Ul-Hassan v. The State" (2019 SCMR 1994) and "Gul Muhammad and another v. The State through Prosecutor-General Balochistan" (2021 SCMR 381).
17. As far as recovery of CDR (P.3/1-57) is concerned, which simply depicts the number of caller as well of recipient, location, duration of call and not more than this, even there is no evidence that what was the conversation made between the caller and recipient. The said document does not bear attestation of IT Branch of DPO Office. Even according to the prosecution version, the mobile phone of the victim after the occurrence was not responding and allegedly the same was drowned in the canal water along with the dead body. Ghulam Murtaza, SI (PW.9) during his statement stated that he collected no record to confirm who was the owner of the above said mobile phone number. He further stated that during his investigation, no written proof was presented to him that the Muzaffar Iqbal alias Ali (deceased) was owner of the said mobile phone number. Even otherwise, according to him, in the statements under section 161, Cr.P.C. none of the witnesses told that in whose name the said SIM was registered. He further stated that he did not record the statement of the person, who had printed out the data from the computer of the said mobile phone number. The prosecution has failed to collect the proof of ownership from the concerned company in order to ascertain that on whose name the SIM was registered. No voice record transcript has been brought on the record. It is well settled by now that CDR is not conclusive proof of involvement of accused in the commission of crime. Reliance is placed upon the case titled as "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274), wherein, it has been held as under:- "The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record.
Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner."
18. So far as the recovery of motorcycle (P.7) vide seizure memo (Ex.PE) is concerned, no registration number, colour, its company name has been described in the FIR (Ex.PG), nor in the supplementary statement of the complainant. Even the statements of the prosecution witnesses are silent in this regard. In this way, recovery of motorcycle at the pointation of appellant is inconsequential and not helpful to the prosecution case. I fortify my view from the dictum laid down in the case titled as "Naveed Asghar v. The State and another" (PLD 2021 SC 600).
19. With regard to the recovery of broken spectacles and wrist watch on the pointation of the appellant, vide seizure memos (Ex.PA and Ex.PB) are concerned, the same do not connect the appellant with the commission of offence because, I have noted that the witnesses of said recovery memos are police officials and no independent witness was examined by the prosecution. Thus, the Investigation Officer while effecting the recovery of supra mentioned articles at the instance of the appellant has committed a violation of section 103 Cr.P.C., even no identification memo was prepared by the Investigating Officer, which further creates doubt with regard to the abovesaid recoveries. Reliance is placed upon the case law titled as "Muhammad Ismail and others v. The State" (2017 SCMR 898).
Whereas, the evidence qua last seen had already been disbelieved by me due to the reasons mentioned earlier, in that backdrop, supra mentioned recoveries at the pointation of appellant are highly doubtful and not believable. Reference in this regard may be made to the case law titled as "Ghulam Akbar and another v. The State" (2008 SCMR 1064).
20. Now the only piece of evidence left with the prosecution is the evidence of motive, although no motive has been described in the FIR (Ex.PG) as well as in supplementary statement of the complainant dated 30-07-2016 but the same was described by Muhammad Iqbal (PW.7) that he had a suspicion that appellant had committed murder of his son Muzaffar Iqbal alias Ali and had concealed his dead body somewhere. Later on, he came to know that the appellant had illicit relations with Mst. Nagma Mushtaq, complainant (PW.8) and since she had gone to Dubai, so he committed murder of her son because he wanted to marry Mst. Nagma Mushtaq, complainant (PW.8). I have noted that it was only an oral assertion Muhammad Iqbal (PW.7) and no substantial evidence in shape of documentary evidence has been led by the prosecution to prove the motive part of the occurrence. In this way, the prosecution has miserably failed to prove the motive part of the occurrence. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused.
Reliance is placed upon the cases titled as "Muhammad Ilyas and another v. Ameer Ali and another" (2020 SCMR 305), "Liaqat Ali and another v. The State and others" (2021 SCMR 780), "Najaf Ali Shah v. The State" (2021 SCMR 736) and "Khalid Mehmood and others v. The State and others" (2021 SCMR 810).
21. It is also well established principle of law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In case of "Naveed Asghar and 2 others v. The State"
(PLD 2021 SC 600), the Hon'ble Supreme Court of Pakistan, in paragraph No.33, was pleased to observe as under-- "33....The prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession. The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments [hudood] when there are doubts"; and" Drive of the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment". A three-member Bench of this Court has quoted probably latter part of the last mentioned saying of the Holy Prophet (peace be upon him) in Ayub Masih v. State in the English translation thus: "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
22. For the foregoing reasons, Criminal Appeal No.47718 of 2017 is accepted and Akbar alias Mohsin, appellant is acquitted of the charge by extending benefit of doubt to him. He is in jail, be released forthwith if not required 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.