AMJAD ALI SAHITO, J. The appellant has impugned the judgment dated 24.09.2004 passed by the learned Additional Sessions Judge, Tando Muhammad Khan in Sessions Case No.329 of 1995 emanated from Crime No.114 of 1995 registered at P.S. Tando Muhammad Khan under sections 302, 34, P.P.C, whereby he was convicted under section 302(b), 34, P.P.C for murdering deceased Noor Muhammad and sentenced him to suffer imprisonment for life with fine of Rs.50,000/- and in case of failure to make payment of fine, he was also ordered to suffer R.I for three years more half of amount realized to be given to legal heirs of above named deceased.
2. According to complainant Mithan on 16.08.1995 at about 06:00 a.m. his elder brother Muhammad Hassan raised cries of the murder of Noor Muhammad whereupon villagers namely Muhammad Bux, Amb and others went running there and they saw Noor Muhammad was lying having hatchet injuries on his face neck and hands then they started tracking footprints with the help of foot tracker Hussain Bux which were of two persons necked footprints, they also found a paper duly lying under the coat which situated 50 paces away from the dead body of Noor Muhammad, the same paper was read over by Muhammad Siddique brother of deceased it was left by absconder co-accused Muhammad Qasim contents whereof that complainant party had destroyed his life, hence he would destroy their house. Thereafter, the complainant left Fateh Muhammad and Ibrahim over the dead body and he started tracking footprints after the lake of Deh Malan, the tracking part went ahead while the complainant went to the police post and lodged the report that the absconder co-accused Muhammad Qasim previously was engaged with the daughter of his uncle Muhammad Khan who. found him characterless got his daughter married with deceased Noor Muhammad it made absconder accused Muhammad Qasim annoyed. It is alleged that before this incident absconder co-accused Muhammad Qasim used to issue threats of murder and he along with his unknown companion caused hatchet blows to deceased Noor Muhammad at the night between Isha time at 06:00 a.m morning, hence the FIR was registered.
3. The police after registration of the FIR started the investigation, arrested the accused persons, made recovery of crime weapon from absconder co-accused Muhammad Qasim and on completing the investigation, submitted the final report under section 173, Cr.P.C., (challan) before competent Court of Law.
4. The copies of documents were supplied to the present appellant and absconder co-accused Muhammad Qasim and the charge was framed against them to which they did not plead guilty and claimed for trial.
5. In support of its case prosecution examined P.W.1 complainant Mithan at Ex.5, who produced copy of complaint registered by him at P.P Tando Ghulam Haider, FIR and chit which is said to be recovered from place of Vardat under the pillow of cot situated near the cot of deceased at Ex.5/A to Ex.5/C; P.W-2 Muhammad Hassan at Ex.7; P.W-3 Amb at Ex.8 who produced mashirnama of Vardat, mashirnama of producing a chit, mashirnama of recovered hatchet from dead body, mashirnama of clothes of deceased, mashirnama of accused at Ex.10/A to Ex.10/E; P.W-4 Mashooq Ali at Ex.14, who produced 164, Cr.P.C statement at Ex. 14/A; P.W-5 Doctor Muhammad Ali at Ex. 16, who produced post-mortem of deceased at Ex.16/A, Tapedar Muhammad Ishaq at Ex.17, who produced the sketch of place of Vardat at Ex.17/A; P.W.6 AS1 Munawar Hussain at Ex.18, who produced the receipt of handing over the dead body to the complainant, letter to the medical officer, inquest report of deceased, verification of dead body at Ex.18/A to Ex.18/D; P.W-7 AS1 Muhammad Yousuf at Ex.20, who produced the mashirnama of arrest of accused Muhammad Qasim, recovery of hatchet from accused Muhammad Qasim vide mashirnama at Ex.20/A to Ex.20/B; P.W-8 Magistrate Ubedullah Khan at Ex.22, who produced the confessional statement of accused at Ex.22/A; learned D.D.A given-up PWs Fateh Muhammad, Muhammad Hassan, Muhammad Bux, and Ibrahim vide his statements at Exs.6, 9 and 12 while he closed his side of evidence vide statement at Ex.26.
6. Thereafter statements of the accused under section 342, Cr.P.C were recorded at Ex.26, wherein he denied the allegation leveled against him by the prosecution by claiming his innocence. He while answering to question No.2 specifically mentioned his false implication in this case due to a dispute over landed property/share however neither he examined himself on oath nor led any person in his defence.
7. The learned trial Court after hearing the learned counsel for the respective parties, and appraisal of the evidence, convicted and sentenced the appellant in a manner as stated above. The conviction and sentence, recorded by the learned trial Court, have been impugned by the appellant before this Court by Way of filing the instant captioned appeal.
8. Learned counsel for the appellant submits that this is an unseen incident as no one has seen the appellant While murdering deceased Noor Muhammad; that the judgment is against the law and facts of the case; that FIR does not disclose the name of the appellant even no feature and description mentioned therein while it discloses the name of absconder co-accused Muhammad Qasim to whom specific motive is alleged by the prosecution for committing this offence; that medical and ocular evidence contradicts to each other; that ocular evidence was inconsistent same does not inspire confidence hence could not be relied upon against the appellant; that no specific role of causing hatchet injuries is attributed to the appellant in the FIR. He .lastly prayed for the acquittal of the appellant from the charge.
9. While refuting the above contentions, the learned Additional Prosecutor General, Sindh for the State argued that though the name of the appellant does not transpire in the FIR however he made a confession of the crime therefore, he is involved in this case. He further argued that no material contradiction and discrepancy is pointed out by the learned defence counsel to show the false implication of the appellant in this case, therefore, in such circumstances, the learned Trial Court has rightly awarded the conviction and sentenced him following the law. He lastly prayed for the dismissal of the instant appeal.
10. I have heard the learned counsel for the respective parties and have gone through the evidence with their able assistance.
11. On careful perusal of material brought on record, it appears that the entire case of prosecution depends upon the confessional statement made by appellant Ali Akbar before the Civil Judge and FCM Tando Muhammad Khan otherwise, not a single Witness has deposed against him except the evidence of PW-5 Mashooque Ali and Civil Judge and FCM Tando Muhammad Khan. The case of the prosecution is that on the day of the incident in the early morning at about 06:00 a.m. the elder brother of deceased Noor Muhammad namely Muhammad Hassan raised a crisis which attracted the complainant and others who saw that the deceased had received hatchet injuries on the neck, head, face and both the hands. They found necked foot-prints of two persons at the wardat/place of the incident so also one paper was also found by the complainant party under the pillow of the cot which was read-over wherein it was written that you have destroyed our house, therefore, I have also destroyed your house. At the end of evidence of complainant P.W-1 Mithan it is written that his brother Fateh Muhammad demanded the hand of the daughter of Muhammad Khan for his son, which was given to deceased Noor Muhammad on this accused Qasim was annoyed and killed said, Noor Muhammad. It is important to note here that this incident was unseen and un- witnessed but the complainant has identified both the accused present in the Court and said that both the accused are same. The complainant admitted that Mst. Hakeema is his sister who is the maternal grandmother of the appellant.
12. It is important to note here that in the entire proceeding co-accused Qasim was with the present appellant but at the time of concluding the trial said Qasim fled away and the Trial Court convicted appellant Ali Akber. The complainant admitted dispute over property and in cross- examination also admitted that "The share of Mst. Hakeema in my father's land is in possession of my 2 brothers namely Muhammad Ibrahim and Fateh Muhammad." The complainant too admitted that "it is correct that the engagement of daughter of Muhammad Khan, the wife of deceased Noor Muhammad was not performed with accused Qasim. The hand of daughter of Muhammad Khan was offered to accused Qasim." The complainant was not aware at what time the incident had taken place in the night and the footprints of culprits were disappeared at the path of sim drain. Witness Muhammad Hassan also admitted that "It is correct to suggest that no any eye-witness of incident of murder of deceased Noor Muhammad had appeared to us nor before the police." He has also admitted that he has not stated to the police that the footprints available at the place of wardat/place of the incident were of accused Qasim Ali nor the footprints has disclosed to me about the said footprints.
13. The other piece of evidence was available with the prosecution in the shape of evidence of P.W- 5 Mashooque Ali, who in his evidence deposed that he was returning from his school at about 03:00 p.m. when he reached at his cattle pen then he saw both accused Qasim and Ali Akbar were standing there in his cattle pen where they were sitting in a cot. Accused Qasim at that time called him and asked him to write a chit on their behalf on a piece of paper, he wrote the chit in the Sindhi language which he has seen at Ex.5/C and said that it bears his handwriting. He scribed that chit Ex.5/C at the instance of accused Qasim at that time after seeing and reading the said chit stated that the substance of scribed chit is about revenge and dispute in between the complainant party and accused. From the perused of his 164, Cr.P.C. statement wherein he deposed that accused Qasim Rind and Ali Akbar the present appellant was his caste fellows, three weeks ago of the incident he was returning from his school and reached to village saw the accused persons in his cattle pen. It is significant to note here that neither he disclosed to the complainant party about the chit nor he has informed to any other person to believe that on the instance of the accused persons he had written a chit. In his cross-examination, he admitted that "when I had scribed the said chit Ex. 5-C. My 164, Cr.P.C., statement was recorded 10/12 days after the incident... I had not stated in my 164, Cr.P.C statement that the said chit Ex.5-C was got written me for taking revenge by accused persons from complainant party." The chit so recovered from the place of incident and claimed by PW-5 Mashooque Ali that same was written by him. The said chit was not sent to the expert to confirm that the said chit was written by said Mashooque Ali nor it was verified by the learned Trial Court to believe that it is the handwriting of P.W-5 M.ashooque Ali. On the 3rd day of the incident, the police called him at the police station. He has admitted that complainant Mithan has given his name as a witness to the police. He has also admitted that the said chit does not bear his name his parentage so also address. He also admitted that his father had not met with accused persons on the day when he had scribed chit, He has also admitted that his brother served meals to the accused persons after scribing chit at Magrib prayer on the same day. After the said meal the father of the witness and other 5/6 persons of their village chit chat with the accused persons in his cattle pen even though they have also not examined the father of PW Mashooque and another person available on the day when the chit was written to confirm the contentions of said witness.
14. During the investigation, the accused/appellant was produced before Civil Judge and FCM Tando Muhammad Khan for recording his confessional statement. It was informed to the learned Judge that on 15/16.08.1995 the incident took place and the accused was arrested on 04.09.1995 the handcuffs of the accused were removed and he was asked whether he has been given any inducement or pressurize or threats which he replied in negative and further disclosed that he is willing to confess of his own accord. He was given a reflection time and at that time he remained in the Judge's chamber. The perusal of the confessional statement reflects that accused Qasim was a friend of appellant Ali Akbar and he has asked him that he intends to get revenge from deceased Noor Muhammad, as such, he had requested him to support him thereafter Qasim brought the hatchet and on that, they went to the Otaq of Raees Abdul Kareem from where Qasim has got written a chit for the revenge on the way they also received one hatchet. At night time, they reached there and saw that Noor Muhammad was sleeping on the cot and his brother was also there Qasim gave hatchet blows on the head of Noor Muhammad thereafter they both ran away from the place of the incident.
15. Neither the chit has disclosed the name of the appellant nor IF other witnesses implicated the present appellant. The entire evidence of the prosecution's case is based upon the judicial confessional allegedly made by the appellant, which is only a material piece of evidence in the prosecution case, therefore, I would also dealt with this piece of evidence. Keeping in view the High Court Rules, lay down a binding procedure for taking required precautions and observing the requirements of the provision of Section 364 read with Section 164, Cr.P.C by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shredded out and he/she is to be provided full assurance that in case he/she is not guilty or is not making a confession voluntarily that in that case, he/she would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he/she is in safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court, must be kept outside the Court and beyond the sighed of he accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him/her and answers given, be recorded in the words spoken by him/her. The statement of the accused be recorded by the Magistrate with his hand and in case there is a genuinely compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he/she would correctly type or write the true and correct version of the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he/she makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read over and explained to him in the language the accused fully understands and thereafter a certificate, as required under section 364, Cr.P.C concerning these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process, at no occasion, he/she shall be handed over to any police official/officer whether he/she is Naib Court wearing a police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession made by the accused.
16. In the instant case, Recording Magitrate PW-10 Ubedullah Khan did not observe the least precautions required under the law. The Magistrate even did not follow the guideline as provided by the Hon'ble Supreme Court of Pakistan in the case of Azeem Khan and others v. Mujahid Khan and others (2016 SCMR 274).
17. The Magistrate has deposed in his examination-in-chief that on 05.09.1995 he was posted as Civil Judge and FCM Tando Muhammad Khan on the same day the appellant Ali Akbar was produced before him and he has given refection time about four hours but he has not informed accused if you (accused) will not confess the guilt your custody will not be handed over to the police officials but you will be sent to Jail. In cross-examination he admitted that the confessional statement form is printed one. He has also admitted that "It is correct to suggest that have not mentioned in certificate that contents of the confessional statement were accepted by the accused thereafter he put his L.T.I on it. It is correct that before signed certificate I put sign on confessional statement and obtained the L.T.I of accused.... It is correct that in a certificate I have not mentioned that the statement of accused was made by him before me voluntarily, so also the contents of statement full and true. It is correct that second warning in the confessional statement of accused is not mentioned... I can not say whether he is illiterate or literate. It is correct that I have not mentioned in confessional statement of accused that accused is without fear of any danger, while giving his statement before me... It is correct that it is not mentioned in confessional statement that accused was sit in my chamber. It is correct that identification mark of accused is not mentioned in the confessional form. It is not mentioned in the printed form that I got verified the CNIC of accused who confess before me. It is correct in my certificate the word of "verbatim" is not mentioned by me for translation from Sindhi to Urdu and Urdu to Sindhi. Vol: states that it has been mentioned in the certificate that I understand Sindhi language but can not write properly."
The recording Magistrate committed successive illegalities one after other as P.W-10 Ubedullah Khan while recording confession has not observed the legal formalities which are the binding procedure for taking required precaution and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. From the perusal of confessional statement Ex.22/A, it appears that even Magistrate was not sure whether he has recorded the statement of the appellant in open Court or in a chamber. From the face of evidence, it appears that on 05.9.1995 the appellant was produced by Incharge P. P Tando Ghulam Hyder at about 10:15 a.m. for recording a confessional statement but the learned Magistrate did not bother to inquire from I.O of the case how he was arrested the accused nor from the appellant when he was arrested by the police.
18. In my view, the confessional statement for the reasons recorded above is of no legal worth to be relied upon and is excluded from the consideration, more so, when the appellant has retracted at the trial. The confession of this nature, which was retracted by the appellant, cannot mutually corroborate each other on the principle that one tainted piece of evidence, cannot corroborate the other tainted piece of evidence. The confession of the appellant appears to be untrue because the same is clashing the story set-up by the prosecution witnesses in the case. Reliance is placed in the case of Muhammad Bakhsh v. The State (PLD 1956 SC 420).
19. After recording the evidence, the prosecution closed the side and thereafter the statement of the appellant was recorded under section 342 Cr.P.C wherein the different questions were put to the appellant but he had denied the allegations leveled against him. The provisions as contained in section 342, Cr.P.C was enacted to safeguard the interest of the accused for the simple reason that the prime object of the section is to enable the accused to explain any circumstance appearing against him/her in the evidence. The intention of the provision is in furtherance of the ends of justice and to enable the Court to decide the question of the guilt of the accused. The whole object of enacting this section is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused so that he/she may be able to give such explanation as he/she desired to give. In the instant case, no question was put to the appellant that on 04.09.1995 you was arrested by the police and was produced before the Magistrate for recording your confessional statement; that you along-with co-accused Qasim caused hatchet injuries to the deceased Noor Muhammad thereby he done to death. Not a single question was put to the appellant from the evidence of PW- 10 Ubedullah Khan Civil Judge and FCM Tando Muhammad Khan. Only he and P.W Mashooque, Ali have deposed against the appellant and he confessed before said Magistrate. As such this piece of evidence cannot be used against the appellant, hence the evidence of PW10 Ubedullah Khan, Civil Judge is discarded. No question was put to the accused person concerning the motive set up by the prosecution at the time of recording his statements under section 342, Cr.P.C. Section 342, Cr.P.C mandates that all incriminating evidence is to be put to the accused in-his statement under that section and the evidence which as not been confronted to the accused, the conviction cannot be based on such evidence and such evidence has to be rejected or accepted in toto. If any incriminating piece of evidence is not put to the accused in his statement under section 342, Cr.P.C., for his explanation, the same cannot be used against him for his conviction. It is settled law that if any incriminating piece of evidence was not put to the accused in his statement recorded under section 342, Cr.P.C for his explanation then the same could not be used against K him/her for his/her conviction. Reliance is placed in the case of Qaddan and other v. The State (2017 SCMR 148), Muhammad Shah v. The State (2010 SCMR 1009) and Muhammad Fayaz v. The State (2012 SCMR 522).
20. It is a settled proposition of law that the prosecution is bound to prove its case beyond a shadow of a doubt. If a reasonable doubt arises in the prosecution case, the benefit of same must be extended to the accused not as grace or concession, but as a matter of right. Likewise, it is also a well-embedded principle of criminal justice that it is not necessary that there must be so many doubts in the prosecution case if there is a reasonable doubt arising out of the prosecution evidence pricking the judicious mind, the same would be considered sufficient for giving its benefit to the accused. In this respect, reliance can be placed upon the case of Mohammad Mansha v.
The State (2018 SCMR 772);- "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v. The State (2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."
21. The learned trial court has not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding that the appellant is guilty of the offence. Resultantly, the instant Criminal Jail Appeal was allowed, consequently, the conviction and sentence awarded to the appellant vide impugned Judgment dated 24.09.2004 by learned Additional Sessions Judge Tando Muhammad Khan in Sessions Case No.329 of 1995 emanating from Crime No.114 of 1995, under sections 302, 34, P.P.C registered at P.S Tando Muhammad Khan was set-aside and the appellant was acquitted from the charge vide short order dated 12.09.2022. He was present on bail his bail bonds were cancelled and surety discharged directing the office to return surety papers to the surety in person after proper verification and identification.
22. These are the reasons of the short order dated 12.09.2022.