MOHAMMAD ISHAQ KHAN, J.--This Cr. Appeal has been filed by the State under section 417 Cr.P.C.
Against the judgment of Additional Sessions Judge, Peshawar, whereby he acquitted the accused- respondents i.e. Mumtaz Khan, Behram Khan and Fazlullah from the charges under section 302/307/148/149, P.P.C. Levelled against them by Humayun, complainant vide F.I.R. No. 256 dated 22-10-1979 of Police Station Suburb, Tehsil and District Peshawar.
2. It may be mentioned here that on 18-11-1985 the statement of Mr. Ihsanullah Khan, S.H.O. P.S. Badaber was recorded on oath in this Court who had brought the death certificate, Ex.HC/1, in respect of Fazlullah, one of the accused-respondents, who has died his natural death on 22-6-1982, i.e. During the pendency of the appeal. Therefore, vide order dated 18-11-1985 the case against accused Fazlullah was abated.
3. The prosecution case as disclosed in the First Information Report lodged by Humayun (PW19) on 22-10-1979 at 1300 hours at P.S. Suburb, Peshawar, is that he along with his brother Habibullah Khan, Sub-Inspector Police, Crimes Branch and his relation Khanzad Gul (P.W.20) were present in their quarter situated in Hamid Abad when at about 1200 hours somebody from outside shouted that people had come. On hearing this Humayun, P.W.19 came out of the room along with Habibullah Khan deceased and Khanzad Gul (PW.20) and saw Fazlullah, (since dead) Fazal Rahim (absconding accused), and another person (whose name the complainant did not know) who had ascended the first storey of the quarter and were present in its courtyard, duly armed with tamachas. Habibullah Khan, deceased, enquired from them as to what was the matter. On this Fazal Rahim, the absconding accused (a Police Constable of P.S. Dabgari) attacked Habibullah Khan and caught hold of him and commanded his co-accused to kill Habibullah. Upon this Fazlullah, accused, fired a few shots one after the other with his pistol at Habibullah, hitting and dropping him to the ground. The said accused also fired at PW Humayun and Khanzad Gul but they escaped unhurt. Thereafter, the accused decamped from the spot. Humayun and Khanzad Gul, P.Ws., chased the culprits and when they came down stairs to the road side they spotted 3 other persons standing duly armed to help accused Fazlullah and Fazal Rahim. They all fled away towards Ghalla Godown. The remaining 4 persons, who were not known to the lodger of the FIR could be identified if brought before him.
4. Motive for the offence is that close to the venue of occurrence there are 8 quarters belonging to the complainant and his brother Tehsinullah PW. One quarter was occupied by them and the remaining 7 quarters were given on rent to different persons including Aqal Meena, a T.V. Artiste, Shaheena and Tasleema, dancers. On 20-10-1979 at night time Fazlullah (since dead) and Fazal Rahim (constable) came to the house of Aqal Meena and both of them exchanged hot words with Mst. Aqal Meena. Mst. Aqal Meena called Habibullah Khan, deceased, and complained that she was being teased by Fazlullah and Fazal Rahim, accused. Habibullah Khan, deceased, went to the quarter of Mst. Aqal Meena and advised both Fazlullah and Fazal Rahim not to tease her and the other dancers. Upon this, Fazlullah and Fazal Rahim exchanged hot words with the deceased and warned Habibullah Khan that they will soon see to him and hence the present incident.
5. The report of the complainant (P.W.19) was recorded by Sarbiland Khan (P.W.16) vide F.I. R. No. 256 dated 22-10-1979, Ex.PA. Since the dead body of the deceased was brought to the Police Station by the complainant, therefore, Sarbiland Khan, S.H.O. (P.W.16) prepared the injury-sheet of the deceased, Ex.P.D. And inquest report, Ex.P. D. /1. The dead body was, thereafter sent to the mortuary for post-mortem examination under the escort of Bach& Khan, P.W.12.
6. Dr. Liaqat Ali, Medical Officer, Police Hospital, Peshawar, of 22-10-1979 at 3 p.m. Performed the autopsy on the dead body of the deceased Habibullah Khan and found the following injuries on his person:- External Examination:
(1) A fire arm entry wound 1/4" x 1/4" on the left 9th intercostal space posteriorly 3" from the median line. Charring marks present.
(2) Fire arm entry wound 1/4" x 1/4" on the left 10th intercostals space posteriorly 4" from the median line. Charring marks present.
(3) Fire arm entry wound 1/4" x 1/4" on the left gluteal region (buttock).
(4) There are scratches marks on both the knee joints anteriorly.
On internal examination chest wall both the plurae, right and left lungs, blood vessels, peritoneum, diaphragm, small and large intestines were found injured. Stomach was found healthy and empty..
In the opinion of the doctor, the death was due to internal bleeding which was caused by fire-arm injuries to the lungs.
7. P.W.21, Zaman Khan, S.H.O., P.S. Suburb, who investigated the case after it was registered by Sarbiland Khan, P.W.16, visited the spot and prepared the site-plan, Ex. PB with all its foot notes etc. He also took into possession the blood, vide memo. Ex.P.C./4. The I.O. Also took into possession five empties of .32 bore having fresh smell of discharge, Ex.P.4, three spent bullets, Ex.P.5 and one cartridge of .32 bore, Ex.P.6, vide recovery memo. Ex.PC/l. The I.O. Then took into possession some broken pieces of tea-cup, Ex.P8, vide memo. Ex.PC/3, from the roof of the second storey. He also recovered some concrete pieces, Ex.P7. Used in the floor of the house, where the occurrence took place, vide memo. Ex.PC/2.
8. During the investigation of the case Bacha Khan, P.W. 12, brought the clothes of the deceased, i.e. Shirt, Ex. P.10, Shalwar, EX.P.11 and Banyan, Ex.P.12, which were taken into possession by the I.O. Vide memo. Ex.PC/6. The I.O. Also took into possession a small bottle, Ex.P.9, brought by Bacha Khan. PW 12, containing two spent bullets recovered from the dead body of the deceased by the Medical Officer, vide memo. Ex. PC/5. The I.O. Also took into possession a Datsun Pick-up (PRC 6478) from the hujra of one Mohibullah, resident of Musazai, vide recovery memo. Ex.PC/7. He also took into possession the Attendance Register of the Poultry Farm where Mumtaz accused was employed. He also took into possession the application of Mumtaz, accused, submitted for leave. The blood- stained clothes were sent to the Chemical Examiner whose report is Ex. PK. Similarly the pistol, Ex.PC/10, allegedly recovered from Fazlullah, accused, along with crime empties/bullets were also sent to the Arms Expert, whose report is Ex.PC/14.
9. The I.O. Produced Fazlullah, Mumtaz and Behram, accused, for identification parade. Since rest of the accused. Were not traceable, therefore, he obtained warrants under section 204, Cr.P.C. And proclamations u/s 87 Cr.P.C. Against the accused. The I.O. Got recorded the confessional statements of the two accused namely Mumtaz and Behram by Mr. Shah Hussain Afridi, Magistrate Ist Class, Peshawar. After recording the statements of the PWs and completing the investigation in all respects the S.H.O. Of the concerned Police Station submitted complete challan against the accused for trial.
10. To prove its case, the prosecution examined 22 witnesses in all including the police officials. The appellants when examined at the trial denied the charges levelled against them and pleaded innocence. They stated that they were falsely charged because of the fact that the deceased was a Sub-Inspector of Police, as such the Police was interested in getting the conviction of all the accused. They also stated that a close relative of the deceased was posted as Magistrate Ist Class, Peshawar, namely Mr. Shah Jehan Khan, hence the prosecution went out of its way to prove and establish the guilt of the accused because of this. They further stated that the alleged identification parades were all farce and that they had made no confessional statements before the Magistrate.
11. We have considered the arguments advanced by the learned counsel for the parties with care.
The learned Addl. Advocate-General has assailed the Judgment of the trial Court on many grounds. However, it may be mentioned here at the very -outset that out of the three respondents, Fazlullah died and the case against him stood abated due to his death during the pendency of the appeal, who was one of the principal accused. Presently, we are left with the case of Mumtaz and Behram, accused, against whom the State has preferred an appeal a/s 417 Cr.P.C. And wants their conviction and sentences u/s 302/307/148/149 PPC. The points for determination before us are the confession, abscondence, identification parade and common object of the accused-respondents.
Therefore, we would like to discuss them respectively.
12. Regarding the confessional statements of the accused---respondents it may be mentioned here that the confessional statement of Mumtaz accused was recorded on 29-10-1979 and that of Behram accused was recorded on 4-11-1979 by the same Magistrate as a Magistrate on duty. The Magistrate concerned when examined at the trial has stated in his cross-examination that he had enquired from accused Mumtaz as for how many days he was in police custody and the accused gave him an answer that he remained in police custody for some days which were less than 15 days but he did not record this fact in the certificate of the confession. He further admitted that he had also enquired from accused Mumtaz as to why was he making a confession. In reply Mumtaz accused said in Pushto that it is the desire of his heart but he had not recorded his aforesaid desire.
Now, the learned Magistrate was duty bound under the law to fulfil the mandatory legal requirements of a confessional statement by bringing on record in writing everything said by an accused person during the course of his confession and by not doing so in the present case, it can be said with certainty that the confessional statements of the accused had not been recorded in a proper way coupled with the fact that the confessional statements of the accused seem not to have been made voluntarily because while giving statements u/s 342 Cr.P.C at the trial, they retracted from their confessions bys saying that one Shah Jehan, M.I.C., a close relative of Habibullah deceased, was also sitting on dais with Mr. Shah Hussain Afridi, Magistrate, when they were brought to the Court room of Shah Hussain Afridi, Magistrate where the I.O. Obtained their thumb-impressions and signatures in presence of the aforementioned persons. In Ghulam Mohammad etc. v. The State PLD 1982 Lah. 428 their Lordships have observed as under:- "S. 164. Judicial confession retracted, evidentiary value of--A retracted judicial confession--Seldom makes basis of conviction unless corroborated materially. Confession even if voluntary, held must be proved to be true before being acted upon."
The, learned counsel appearing on behalf of the accused-respondents, also laid great stress on the point that as the confessional statements of the accused had been recorded on solemn affirmation, therefore, the same are illegal. In support of their contention they referred to an authority reported in Muhammad Bakhsh v. The State PLD 1956 SC (Pak.) 420 wherein their Lordships have observed as under:- "(b) Confession--On Oath--Illegal--Not admissible or relevant."
By reason of Section 5 of the Oaths Act (X of 1873) the administration of an oath to an accused person is an express statutory illegality which must make the confession inadmissible.
The administration to an accused person of an oath or affirmation is opposed to public policy and any infringement of the provision prohibiting the Court from putting him under oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel.
Where the confession of an accused, recorded under section 164 read with section 364, Criminal P.C. Was taken down under an oath: Held, that the confession was obtained in an illegal manner and its rejection must follow as a matter of course from this illegality.
The Magistrate who had recorded the confessional statements of the accused has also admitted in his cross-examination at the trial that he had recorded the name of the accused, his parentage and his residence along with the following words "u/s 364 Cr.P.C. On S.A." Thus, keeping in view the above cited authority, we are of the view, that the confessional statements of accused Mumtaz and Behram were obtained in an illegal manner and as such had rightly been held as inadmissible by the learned Additional Sessions Judge.
13. The next point requiring determination is the abscondence of the accused soon after the occurrence. In this case the occurrence took place on 22-10-1979 while Mumtaz, accused, was arrested on 26-10-1979 and Behram, accused, on 3-11-1979. Thus, there is 5 days abscondence of accused Mumtaz and 12 days abscondence of accused Behram in the case. From the perusal of the record it is evident that the two accused-respondents are not directly charged in the F.I.R.
Furthermore, the proclamation under section 87/88 Cr.P.C, and proceedings under section 204 Cr.P.C. Had been initiated against one Behram son of Aqil Khan and not against the present accused Behram, whose parentage is quite different from that who was proceeded against under section 204 Cr.P.C. Therefore, we are of the view that abscondence of the accused-respondents in the above mentioned circumstances is of no help to the prosecution because proclamations a/s 87/88 Cr.P.C. Were not at all obtained against Mumtaz accused as he was arrested by the Police only 5 days after the occurrence while proclamations against Behram u/s 87/88 Cr.P.C. Were obtained against another Behram son of Aqil Khan and not against the present accused Behram son of Kooch Mohammad. Therefore, the proceedings against him become irrelevant. In Rab Nawaz v . The State PLD 1976 Lah 1240 their Lordships have observed as under:- "Ss. 87 & 88-- "Abscondence"--Meaning--Abscondence of accused to be proved by prosecution by positive evidence---Person can legally be said to have absconded only after obtaining proclamation under S.87 or S.88."
14. Regarding the identification parade of the accused-respondents it may be mentioned that it was not conducted in a proper way. The identification parade of Behram Khan accused was conducted in the Court room of PW3 Karim Bakhsh, Naib-Tehsildar on 4-11-1979. This witness when examined at the trial admitted in his cross-examination that 10 persons, who were put in the identification parade, were collected by his peon from the premises of his office. He also admitted that accused Behram was brought to his office in custody. Similarly, the identification parade of accused Mumtaz and Fazlullah was conducted by P.W.4 Wazir Shah, Naib Tehsildar. The accused were identified by Said Raza, P.W.14, and then by P.W. Damsaz, Mst. Nishat, PW Nazar Hussain and Mst. Khurshid, but only Said Raza (P.W. 14) was produced before the trial Court to stand the test of the cross---examination on this score while rest of the persons were not produced at all. Besides this, it may be stated here that the identification parade at the instance of P.W.3 and P.W.4 was held after a long time and the delay in holding the identification parade has not been explained by the prosecution. Accused Mumtaz was arrested on 26-10-1979 and his identification parade was held on 11-3-1980 i.e. After a delay of more than 4 months. In these circumstances, we also agree with the conclusion of the learned Addl: Sessions Judge who found that since the delay could not be explained by the prosecution, therefore, the evidence of identification could be ruled out of consideration on the ground of delay.
15. Now, we come to the last point of common object to see whether Section 148/149 PPC are applicable against the present accused---respondents in the circumstances of the case or not. To arrive at a correct conclusion we would like to discuss the evidence of the prosecution only to the extent of the involvement of the present accused in the case. P.W.19, Humayun, brother of the deceased and lodger of the First Information Report, in his statement at the trial stated that on the direction of Fazal Rahim, absconder, Fazlullah, since dead, fired 3 shots with a tamacha at the deceased as a result of which he was hit and fell to the ground. Fazlullah accused and an unknown companion then fired shots at him and Khanzad Gul, P.W. But they escaped unhurt and that while chasing the accused they saw 3 more persons waiting for the accused party on the road side. This witness also admitted in his cross-examination that he had never seen Behram accused before the occurrence because Behram accused had not visited the house of Mst. Aqal Meena with his co-accused. As against this, P.W. Khanzad Gul in his cross-examination has admitted that accused Behram also used to accompany the co-accused whenever they visited the house of Mst. Aqal Meena.
P.W. 14 Said Raza, who was driver of the Datsun Pick-up, has stated in his statement at the trial that his taxi was hired by Shaukat, absconder, and one unknown person (Mumtaz) on payment of Rs.40 and when they left village Musazai, they saw 5 other persons, armed with fire arms, on the road proceeding towards Peshawar City who also boarded his vehicle which was brought to a place near Ghalla Godown where all the occupants left his Datsun except Mumtaz who remained with him near the vehicle. He further stated that after about 10 minutes the persons came back running and Mumtaz accused at pistol point ordered him to drive the car towards Surezai Bala where they got down from the vehicle. In his cross-examination he deposed that he had not named accused Mumtaz in his statement before the Police recorded under section 161 Cr.P.C. Because he did not know the name of accused Mumtaz and that it was later on that he came to know about his name.
Here it is interesting to note that accused Mumtaz is the resident of village Surezai and P.W. Said Raza is the resident of village Musazai, quite adjacent to each other, but this witness did not know the name of accused Mumtaz till recording of his statement a/s 164 Cr.P.C. As we have already discarded the evidence of identification, therefore, in our view, there is no direct evidence against the present accused-respondents to show that actually they were also the members of the unlawful assembly formed by the other accused at the time of occurrence because they are not directly charged by the complainant in the First Information Report. Even the prosecution has miserably failed to establish motive against the present accused-respondents because it was Fazlullah and Fazal Rahim, accused, and not the present accused-respondents, who used to visit the house of Mst. Aqal Meena and used to tease her whereupon the deceased exchanged hot words with Fazlullah and Fazal Rahim, accused, whereafter the present occurrence took place.
Therefore, on a careful examination of the entire prosecution evidence against the present accused-respondents, we are of the view, that the presence of Mumtaz and Behram, accused- respondents, at the time and place of occurrence is shrouded in mystery. As such, we hold that the prosecution case is not free from reasonable doubts the benefit of which must go to the accused- respondents.
16. The upshot of the above discussion is that the prosecution has miserably failed to bring home the charges against the accused---respondents beyond any shadow of reasonable doubt. The findings of the learned trial Judge are neither perverse nor capricious. Therefore, we while maintaining the order of acquittal passed by the learned trial Court would dismiss the present appeal being without any force.
17. The accused-respondents are hereby discharged from the obligation of their bail bonds and allowed to go.
18. This judgment will have no effect on the case of the absconders, if and when arrested and tried by a competent Court.