' IBNE ALI, J.-- By order of the Sessions Judge, Abbottabad, dated 27-2-1988, Farooq Khan, appellant herein has been convicted for offence under section 302, P.P.C. For the murder of his co-villager Muhammad Afsar Khan and sentenced to death as also to pay a fine of Rs,8,000 and half of amount of line, if recovered, had to be paid as compensation to the heirs of the deceased, or else to suffer further rigorous imprisonment for six months. By this appeal, the appellant has assailed the conviction and sentence passed on him. The learned Sessions Judge has also forwarded Murder Reference No,2 of 1988. The present judgment in Criminal Appeal No, 6 of 1988 will also dispose of the murder reference.
2. The prosecution story, unfolded by Haji Rustam Khan (P.W.5), complainant, in the report Exh.PA.
Lodged by him on 18-6-1986 at 8 a.m. In his very own words, runs thus:- "My nephew, Muhammad Afsar son of Haji Latif Khan was asleep, as usual, the previous night, in his Poultry Farm situated in Harno. Today, at morning time, Amjad son of Haji Walayat Khan, as usual, had brought tea for my nephew and he, on return, informed me in my house that Muhammad Afsar, my nephew, was lying murdered in his Poultry Farm and that the door was closed while window with iron gril was open. On this information, I came to the spot and saw that, in fact, my nephew was lying murdered on a cot in 'room'. A servant, Said Jowar son of Ghulam Qadir, caste Malyar, resident of Hanai, P.S. Topi, District Mardan was present outside the window while guarding the dead body and he too, as usual, used to reside in the Polutry Farm. My nephew had no enmity with any one. Presently no suspicion falls on any body. On gaining knowledge, I will lay charge. I accuse unknown culprit or culprits."
3. The report in above terms was reduced to writing by S.H.O. Sheikh Farid Khan, P.W.10 at the spot, where he reached on information furnished to him by some body while he was on Gasht in Harno Bazar. Purporting to act on this report, the S.H.O. Sent the same to P.S. Bangnotar, where on its basis, a case under section 302, P.P.C. Was registered on the even date, at 9 a.m. Vide F.I.R. Exh.PA. Usual Police investigation commenced and during its course, the S.H.O. Recovered from the spot a pillow Exh.P.1, quilt Exh.P.2, two white sheets Exh.P.3, Exh.P.3/1, all blood-stained vide recovery memo.
Exh.P.W.2/1. He also recovered a lantern Exh.P.4 vide recovery memo. Exh.P.W.2/2. He collected blood Exh.P.5 and some portion of brain Exh.P.6 and two cardboard Exh.P.7 and packed them except brain into separate sealed parcels vide memo. Exh.P.W.2/3. In addition, he recovered a pellet Exh.P.8 and packed it into a sealed parcel vide memo. Exh.P.W.2/4. All the above-mentioned recoveries were made in the presence of Retd. D.S.P. Muhammad Yonus (P.W.2), father-in-law of a sister of the deceased. On the same day, site plan Exh.P.W.10/1 was prepared by the S.H.O. On 1-7-1986 he alleged to have arrested the appellant and on his pointation, recovered shot-gun Exh.P.9 with its licence Exhs.P.10 and 9 cartridges Exh.P.11. He packed the gun in a sealed parcel vide recovery memo. Exh.P.W3/1. On the same day the appellant got recovered an empty shell Exh.P.12 from Ravine Harno and it was packed in a sealed parcel vide recovery memo. Exh.P.W.7/1, at 9-30 p.m. In the presence of A.S.I. Muhammad Sadiq Khan P.W.7. On 2-7-1986, the appellant was produced before M.I.C. Abdul Rehman Khan (P.W.8), who recorded his confessional statement Exh.P.W.8/1.
Subsequently, the empty and shot-gun referred to were sent to the Ballistic Expert, who opined that these were wedded together vide Exh.P.W.10/4. Also, the blood-stained articles recovered from the spot were despatched to Chemical Examiner and the result received in this behalf is Exh.P.W.10/3.
4. After the completion of investigation in the manner described above, the local police submitted a charge sheet under section 302, P.P.C. To the Ilaqa Magistrate, who sent it up to the Court of the Sessions Judge for necessary action. At the trial, the appellant professed his innocence, denied the charge and ascribed the case to fabrication of evidence against him due to the influence of Retd.
D.S.P. Muhammad Yonus (P.W.2), who on account of the complainant, was not well-deposed to the appellant and his family. In order to establish its case the prosecution examined as many as ten witnesses, most of whom have been mentioned above.
5. The first and foremost question that falls to be decided is whether in respect of the death of deceased, an offence of wilful culpable homicide has been committed? In this context reference to the statement of Dr. Nazakat Karim (P.W.1) is pertinent. He has stated that he conducted autopsy on the dead body of Muhammad Afsar deceased on 18-6-1986 at 10-45 a.m. And on visual examination, found the following injuries:-
(1) A fire-arm wound 5" to 9" with communated fracture of 2/3 of the scalp, mote towardes right side, exploded out with brain tissue. (No bleeding, charring, tatooing could be visible), No pellet or wad recovered from brain tissue. No bleeding charring, tatooing could be visible.
(2) Scalp injured about 2/3rd portion of it. Scalp bone fractured communated and brain tissue exploded out from right side. On internal examination: ' The doctor found the stomach empty and normal. According to his opinion the death was caused due to damage to brain which is the vital organ, caused by fire-arm. The probable time that had elapsed between injuries and death was 5 minutes and between death and post-mortem examination 6 to 18 hours. The injury on the person of the deceased was sufficient to cause death in ordinary course of nature.
6. From the testimony of the doctor, reproduced above, it is clear enough, that whosoever inflicted the above injuries had the intention to cause death of the deceased or had intended to cause such bodily injury as was sufficient to bring about death in the ordinary course of nature. We are thus free to hold that a wilful murder has been committed in matter of death of the deceased.
7. By far the most important question that now calls for determination is whether the appellant is responsible for the offence of murder attributed to him. On this aspect of the case, there is no ocular evidence and the prosecution case, in the main, rests on the confessional statement (Exh.P.W.8/1) of the appellant, and the circumstantial evidence, such as motive, recovery of shotgun (Exh.P.9) and an empty shell (Exh.P.12) at his pointation and report (Exh.P.W.10/4) of the Ballistic Expert. Now the judicial confession (Exh.P.W.8/1) appears to have been recorded on 2-7- 1986 at 10 a.m. As deposed by Mr. Abdul Rehman Khan (P.W.8), Magistrate 1st Class, Abbottabad. An essential consideration for evaluating judicial confession retracted or not, is whether it is true and voluntary. In this context, it is necessary to go into other pieces of evidence produced by the prosecution to find out that whatever story is given by the confessing accused stands confirmed or not. The narrative part of judicial confession is set forth as under:- "I am running Karyana shop in Harno Bazar. I am the shop tenant of Muhammad Afsar deceased.
Deceased Muhammad Afsar and one Nawab had abducted my sister Mst. Saeed-un-Nisa about three/four years back. My sister is still missing and her whereabouts are not known to me.
Deceased Muhammad Afsar has sold her. Deceased Muhammad Afsar was a notorious person.
Deceased Muhammad Afsar had made attempts at my life twice. I wanted to take revenge from him. I was also feeling myself insecure from him. About 14/15 days back I went after him He was asleep in his poultry farm situated near village Harno. The door of his room was shut from inside.
Lantern in his room was on. The window of the room has iron grill (iron jal). I entered the barrel of my gun through the grill. He got up, I fired one shot at him. He was hit and fell down. I came back to my house. I threw empty shell in the Nallah. I cleared my shot gun in my house with hot water on the same night. I fired at him at about 1 a.m."
8. Having reproduced the judicial confession from start to finish, we are now obliged to see whether the story narrated therein by the appellant is worthy of acceptance in the context of other evidence and circumstances of the case. To begin with, the confession recites two-fold items of motive, firstly that deceased and Nawab (P.W.4) had abducted his sister Mst. Saeed-un-Nisa about three or four years back and her whereabouts are still not known. And secondly, that the deceased had made attempts at his life twice. The first item of motive is sought to be proved by the evidence of Nawab (P.W.4) and Haji Rustam Khan (P.W.5). The former has stated that a sister of appellant had run away from the house of her husband in 1981 and the witness in hand was suspected for her abduction by the appellant while the deceased pleaded for his innocence and this annoyed the appellant. This witness is a close relative of the deceased and, on his own showing, was examined by police fourteen days after the occurrence and further stated that no report was made by anyone regarding the abduction and that the allegation in this behalf was false. Although he was threatened, nevertheless, no untoward incident occurred on that account between him and the appellant. Likewise, Haji Rustam Khan (P.W.5) has stated during the trial for the first time that the appellant suspected Nawab (P.W.4) for elopement of his sister prior to this occurrence and that he felt annoyed with the deceased who was pleading innocence of Nawab (P.W.4) in this regard. This witness did not allege this motive in the report (Exh.PA./1) lodged by him. It is a matter of common experience that incident like abduction gains notoriety in a village and if, in fact, appellant's sister had been abducted, that would have become known to every one in village, including the complainant Haji Rustam Khan (P.W.5) who was expected to have mentioned this all important incident in the report. It appears that incident of abduction has been created by evidence of doubtful nature, though in reality, no such event had occurred at all. As against this, the appellant in confessional statement has charged the deceased also for abduction, though it is not alleged by other witnesses alluded to nor does it stand proved by any independent source. The introduction of such motive by appellant has created a doubt in our mind that either it is false or it could be at the instance of someone else under duress. Similarly the second item of motive, as disclosed in confession, that two attempts at life of the appellant were made by the deceased, is not alleged by the prosecution nor is it supported by any other evidence on record. Yet the Investigation Officer (P.W.10) has stated that appellant had enmity with Mst. Bani Begum, a relative of the deceased party, but he himself demolishes the truth of his assertion by observing that her complaint against the appellant was, on inquiry, found baseless. It follows that the appellant had no compelling reason or cause to kill the deceased and that motive set up in confession stands self-condemned by its own absurdity and inherent falsity.
9. Coming to the place, manner and time of attack, as mentioned in the confession, it is stated that the appellant entered the barrel of his gun through the iron grill in the window of room, upon which the deceased got up and fired one shot, hitting and felling him down. In the site plan (Exh.P.W.10/1), the culprit, whoever he was, is shown at point No,2 inside the room while the deceased is shown on cot at point No,1. This is inconsistent with the position of the appellant, as depicted in confession, outside the window, where no footprints were existing or found. Again, it is worthy of note that distance between points 1 and 2 is put at 4 feet in the site plan, but nature, extent and size of injuries sustained by the deceased discloses that firing was done from a distance of more than twelve feet. According to medical evidence, not a single entrance on the deceased had marks of charring, which would have been found, if shot was fired from a distance of four feet as shown in the site plan. Therefore, far from supporting the confession as regards the place and distance of firing, the medical evidence falsifies the assertions therein in this behalf. Nowhere in the site plan, is it mentioned from where cardboard pieces were picked out. The investigation officer has not shown the height of cot on which deceased was lying. However, in the site plan (Exh.P.W.10/1), a pellet was shown to have been recovered from a wall at a height of two feet and one inch from ground floor, meaning thereby that the shot has travelled from above downwards. On the contrary, appellant, in his confession, states that deceased got up and thereafter he was fired at. If that be so, then shot would have hit him on his chest and pellet found on greater height of wall than shown in the site plan. In that setting, the assailant and the victim could be at the same level if fired from inside the room or if fired from outside window, the shot having travelled from below upwards.
Neither of the two positions is consistent with either the site plan and medical evidence or the confessional statement. The matter does not rest here. The doctor stated time between death and post-mortem was from six to eighteen hours. The autopsy was conducted on 18-6-1986 at 10-45 a.m. According to confession occurrence took place at 1 a.m. On 18-6-1986 but according to the doctor, the occurrence had taken place about 18 hours before he carried out his post-mortem examination. And if the doctor's estimate be correct, it would follow that the occurrence did not take place at 1 a.m. On 18-6-1986 but several hours earlier. This evidence, which is not challenged by the prosecution, in no way shows that the time of occurrence as stated in confession corresponds with the one given by the doctor. Thus the time, manner, distance and place of firing as narrated in the confession stands contradicted by medical evidence and site plan at every step and in all points of compass.
10. Apart from the above, it transpires from the evidence of investigation officer that he had been interrogating the appellant from 29-6-1986. This means that he was in his custody since then. But Muhammad Iqbal (P.W.3), a witness of his own selection and choice, has categorically stated that appellant had remained in the police station four or five days prior to his formal arrest effected on 1-7-1986. In legal parlance, custody does not necessarily mean custody after formal arrest but includes a state of affairs in which accused can be said to have come into the hands of a police officer or have been under some form of police surveillence or restriction on his movements by the police. If the testimony of Muhammad Iqbal (P.W.3), is taken into consideration, as it should be, the formal arrest of the appellant was shown on 1-7-1986 by the investigating officer intentionally to avoid the necessity of taking statutory remand within 24 hours of his arrest. There is thus no doubt that the appellant had been in illegal custody for several days when he was produced for the recording of his confession, which also reflects on the voluntary nature of confession particularly in the context of the facts and circumstances listed in foregoing paragraphs. Therefore, the confession of appellant merits to be excluded from our consideration.
11. Nevertheless, the learned Assistant Advocate-General has placed great reliance on the corroborative evidence of the recovery of shotgun (Exh.P.9) and empty shell (Exh.P.12) which were found by Ballistic Expert wedded with each other vide his report (Exh.P.W.10/4). Once the confession is ruled out of consideration, then there is no evidence to establish the fact in issue that the appellant is the author of crime or has killed the deceased and in the absence of a proof of principal fact the recovery cannot be pressed into service as a confirmatory circumstance because the fact about which one is to seek corroboration does not exist. Notwithstanding, it may be mentioned that arrest of the appellant had taken place after about 9 days of the occurrence.
A.S.I. Muhammad Sadiq (P.W.7) has admitted in his evidence that empty was recovered from a Kotha distant one or two furlongs from village Sarbana of which the appellant is a resident and that empty was pointed out by flash of torch at about 9-30 p.m. And that from 10 a.m. On 1-7-1986 till 9-45 p.m. The S.H.O. Had been preparing papers in the dark hours. It is not a natural conduct for a person to preserve incriminating article for so long and for such distance unless he wanted to make public demonstration of, the crime attributed to him. It is surprising that the investigating officer could not find a single distinterested and respectable witness from the area or locality to witness the recovery. Statutory requirement of section 103, Cr.P.C. That two or more respectable inhabitants of the locality should attend the recovery or search has not been complied with. If Muhammad Iqbal (P.W.3) could be summoned by Parwana as alleged, then Lambardar or Councillor could be equally procured by the S.H.O. To witness the recovery. This reflects badly on the credibility of Investigating Officer and his sole word is not orthy of acceptance. Same applies to A.S.I. Muhammad Sadiq (P.W.3). Furthermore it is not clear from evidence of Investigating Officer as to when did he despatch the articles to or when were they received by Ballistic Expert, from whose report, in turn, it appears that the gun and empty were not sent in sealed parcels, nor were all the test empties sent back. However, the basic fact remains that the incriminating gun and cartridges continued to be in possession of the Investigating Officer and as such, we cannot rule out possibility of planting an empty to make out a case against the appellant. These jarring features completely destroy the evidentiary value of the opinion of Ballistic Expert. Thus, the recovery relied upon must be discarded and we do so.
12. The upshot of the discussion given above, is that the prosecution has miserably failed to bring home the charge to the appellant by production of any clear, cogent and credible evidence. The deceased was a person of desperate character, as is admitted by the Investigating Officer. The possibility of the deceased having been killed at uncertain time by unknown enemy cannot be excluded. We, therefore, accept the appeal, set aside the conviction and sentence passed on the appellant. The murder reference is answered in the negative. We acquit the appellant and he shall be set at liberty forthwith, if not required in any other case.