Dr. Khurshid Iqbal, J.-
1. The instant appeal is directed against the judgment, dated 30.11.2021, passed by the learned Additional Sessions Judge/Izafi Zilla Qazi of Tehsil Matta, District Swat, whereby he has acquitted the respondents/accused from the charges leveled against them. The respondents/accused were tried u/ss. 302/311/ 200/201/34, PPC, read with section 15-A.A, having been charged in a case registered vide FIR No. 704, dated 03.11.2019, at Police Station Shaheedan Wenai, District Swat.
2. Facts shortly are that the complainant reported to the local police in emergency ward of Matta Hospital that three years ago, his sister/the deceased Mst. Maryam Bibi was married to one Khurshid s/o Gul Haidar, a resident of Alai Banda, Swat. Out of their wedlock was born one child, namely, Romaisa, aged about 8/9 months. Her husband has gone to Saudi Arabia some 8/9 months ago. On the eventful day, he was present in his home, when he received a phone call from one Khalid s/o Gul Haidar that someone had killed his sister by firing at her. Pursuant to such information, when he rushed to the place of the occurrence, he found her lying dead. He was informed by mother-in-law of the deceased that at about 03:05, a.m., she left the house for defecation . On hearing the sound of fire shot, she went out from the house and found Mst. Maryam Bibi, being killed. Initially, no one was charged for the commission of the offence in hand. However, during the investigation, it came to light that complainant of the case, namely, Saddam Hussain and brother-in-law of the deceased Khalid (informer) have killed Mst. Maryam Bibi on the pretext of honour. Accordingly, they were involved in the case in hand.
3. After completion of the investigation, challan was submitted against them before the learned trial Court. Copies were supplied to the accused u/s. 265-C, Cr.P.C. Charge was framed against them, to which they pleaded not guilty and claimed trial.
4. The prosecution examined as many as twelve (12) PWs. Statements of the respondents/accused u/s. 342, Cr. PC, were also recorded, in which they were afforded an opportunity of evidence in defence and/or statements on oath but they did not avail it.
5. After hearing arguments of the learned A.P.P and learned defence counsel, the learned trial Judge acquitted the respondents-accused through his impugned judgment passed on 30.11.2021.
6. We have heard arguments of the learned Assistant Advocate General, for the State and perused the record.
7. There is no direct evidence in the instant case. The report was initially lodged by Saddam Hussain, brother of the deceased Mst. Maryam Bibi, on 03.11.2019. The time of the occurrence mentioned in the murasila was 03:05, the early hours of the day. SHO Hayat Khan (PW-3) deposed that the informer informed him that the respondents-accused were the real culprits. He, thus, arrested both of them on 03.11.2019, the day of the occurrence. He deposed that the information he got was that both have committed the murder in the name of honour. However, he admitted that he could not collect any evidence in this regard. Though, initially no such evidence was found, the I.0/Inspector Rahim Khan (PW-8) somehow or the other found one Muhammad Ayaz and interrogated him. He produced the aforesaid Muhammad Ayaz before the Judicial Magistrate on 06.11.2019, three days after the occurrence. Muhammad Ayaz in his statement recorded u/s. 164, Cr.P.C., stated that about an year before the occurrence while he and his father were working as labourers in the house of the respondent-accused Khalid Khan, he cultivated relationship with the deceased, He bought a cellphone for the deceased on which he would talk to her. He stated that the cellphone was registered in his name. He further stated that while he remained in telephonic contact with the deceased but never met her and that he has never been in any other immoral relationship with her. He came to know on 03.11.2019 that she was killed by someone. Neither parents and brothers of the deceased nor did the family members of her husband came forward to charge the aforesaid Muhammad Ayaz. PW-8 deposed that mother and brother of the deceased charged the present respondents-accused but there is no such statement to this effect nor did anyone amongst them come forward as a PW at the trial.
8. The site plan was prepared initially at the instance of the respondent-accused Saddam Hussain.
Later on, when the respondents were involved as accused persons, they made pointation regarding which necessary additions were made. However, there is no circumstantial evidence with the prosecution to support its charge against the respondents-accused.
9. We would now examine the confessional statements recorded by both the respondents- accused. As noted above, the respondents-accused were arrested on the eventful day. They were produced before the Judicial Magistrate for recording their confessional statements on 06.11.2019.
The record reveals that they were produced before the learned Judicial Magistrate the same day and at the same time. The respondent-accused Khalid Khan stated that on the night of the occurrence, he called his co-accused Saddam Hussain, brother of the deceased, who stayed with him in the bethak() of his house. Around 3 O'clock in the morning, he woke up the deceased and asked her to come to the bethak. As she came downstairs, he fired three shots at her with a pistol that belonged to his brother. He added that he committed the murder in collusion with the respondent-accused Saddam Hussain and his father Shahab Uddin because they thought the character of the deceased was not good.
He admitted having committed the murder in presence of the respondent No. 2. The latter while confessed to his guilt in such a way that he stayed in the house of the respondent No. 1. The respondent No. 1 woke him up at 03:00, a.m. The respondent No. 1 went upstairs, brought his sister downstairs and fired at her with a pistol in his presence. He added that he shouted at him not to put her to death but the respondent No. 1 did not listen to him. He denied to have colluded with the respondent No. 1. He admitted that in-laws of the deceased were doubting her character. He further added that he told them that he would advise the deceased but of no avail.
10. The learned Judicial Magistrate, who recorded the confessional statements of both the respondents-accused was examined as PW-9. While under cross-examination, he admitted that in the certificates he issued in respect of the confessional statements, he did not mention whether he had made both the respondents-accused sit together or separately while they were given time to think about their pleading guilty.
His deposition shows that he did not record the statements under his own handwriting, rather dictated them to the I.T. official in English. His testimony shows that he read over what he called each and every word of the confessional statements to the respondents-accused, which they acknowledged as correct and then he signed.
He did not clarify that the statements were recorded in English. His statement further shows that the respondents-accused gave their statements in Pushto language, which he dictated in English.
The certificates he issued show that while the respondents-accused gave their statements in Pushto language, the same was translated into Urdu language. The certificates do not show in which language the statements were read over to them. If at all, the statements were recorded in English, the learned Judicial Magistrate was bound to have read them to the respondents-accused in their own language Pushto. It would have been much better had the Judicial Magistrate recorded the confessional statements in Pushto, the mother language of the respondents- accused. It is not appealing to reason that while the respondents accused gave their statements in Pushto, they were recorded in English and were read over to them in Urdu. The certificates are also silent on whether the respondents-accused fully understood Urdu or not. The learned Judicial Magistrate did not afford them an opportunity whether they would like to consult a lawyer before recording their confessional statements. We are of the opinion that the learned Judicial Magistrate did not satisfy his judicial conscience that the confessions were voluntary and true. Even otherwise, both the respondents-accused retracted from their confessional statements by pleading not guilty to the charge framed against them and denying from them in their statements recorded u/s. 342, Cr. P.C. Though conviction may be recorded even on a retracted confession, however, it is must that such a confession shall be corroborated by independent, cogent and convincing evidence, which is missing in the case in hand. Moreover, the major legal heirs of the deceased submitted affidavit before the learned trial Court for exonerating the respondents-accused. It is settled law that retracted confession should not be acted upon unless corroborated in material particulars.
Guidance is sought from Hashim Qasim and another v. The State (2017 SCMR 986). In this case, august the Apex Court held: "The confession of appellant, Khayam Khurshid, recorded on 9.3.2007 by the Magistrate, namely, Shah Waliullah (PW 15) is the most suspicious piece of evidence in the whole case, besides having been retracted one. It might be right, as was argued by the learned counsel for the complainant, that retracted confession, if corroborated by independent evidence of reliable nature, can be made basis for conviction on a capital charge but it must be subject to the above cardinal principles."
In the case titled as Muhammad Ismail and others v. The State (2017 SCMR 898), it was observed: "The only other piece of evidence remaining in the field was a judicial confession allegedly made by Muhammad Iqrar, Khalid Hussain and Shakir Ali appellants before a Magistrate under Section 164, Cr.P.C. but admittedly the said judicial confession had been retracted by the appellants before the trial Court and in the absence of any independent corroboration such retracted judicial confession could not suffice all by itself for recording or upholding the appellants' convictions."
11. It is worth observing that an accused person, as a matter of right, is presumed to be innocent before the trial Court unless the charge is proved against him/her. Acquittal at the trial gives rise to double presumption of innocence for an accused. An appellate Court needs to be cautious while considering the evidence and should avoid reversal of an acquittal, unless it finds that the acquittal is perverse, conjectural, arbitrary, jurisdictionally defective and prompted by mis-reading or non-reading of evidence.
Even if a contrary view is formed on re-appraisal of evidence, it should not be used to disturb an acquittal, provided convincing evidence is available on the record to reverse acquittal. In this respect, reference may be made to the judgment of the Hon'ble Apex Court rendered in the case of Jehanair v. Aminullah & others (2010 SCMR 491). In this case, it was observed: "It is well-settled by now that there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably each the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the forgoing searching light, should be found wholly as artificial, shocking and ridiculous". The view taken by this Court in Ghulam Sikandar v.
Mamaraz Khan PLD 1985 SC 11 is well-known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally". This principle was also followed in Muhammad Iqbal v. Sanaullah PLD 1997 SC 569, State v. Farman Hussain PLD 1995 SC' 1, Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11, Ahmad v. Crown PLD 1951 FC 107, Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426, State v.
Bashir PLD 1997 SC 408, Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, Shahzado v.
State PLD 1977 SC 413; Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Khadim Hussain v.
Manzoor Hussain Shah 2002 SCMR 261."
12. In light of the above discussion, we have reached to the conclusion that the learned trial Judge has rightly acquitted the respondents-accused from the charges leveled against them.
Resultantly, the instant appeal is devoid of any merit. It is, therefore, dismissed in limine.