' ABDUR REHMAN KHAN, J.--- By the impugned judgment, dated 11-2-1992 the learned Additional Sessions Judge, Kohat, convicted and sentenced the appellant as under:-
(i) Under section 302, P.P.C. For the murder of Wahid Ali, deceased, to life imprisonment and a fine of Rs,30,000 or for failure to pay the fine to five years' R.I. 2/3rd of the fine was ordered to be paid to the legal heirs of the deceased.
' Under section 307, P.P.C. For attempting at the life of the complainant P.W.5, Ibrahim Shah, to five years' R.I. Or in default to two years' R.I. It was also ordered that out of the fine 3/4th should be paid to the injured complainant.
(iii) Under section 460, P.P.C. For lurking house-trespass to five years' R.I. And a fine of Rs,2,000 or in default to 6 months' R.I.
' All the sentences were ordered to run concurrently.
2. The report in this case was made by Ibrahim Shah (P.W.5) wherein it was stated that on the night of the occurrence he alongwith Wahid Ali, deceased, were present in the Octroi Post situated on Hangu-Thall Road when at 01-15 hours two unknown persons who could be identified if appeared before him, entered through the window in the Octroi Post. One of the said armed persons fired at the deceased who was hit and expired on the spot while the second one fired at the complainant with a shotgun causing him injury on right hand. No motive was given for the crime nor any other person was made as eye-witness.
3. In order to appreciate the factual as well as legal aspect of the case it would be necessary to give a resume of the relevant evidence examined by the prosecution at the trial.
' P.W.1, Faizur Rehman Khan, after the medical examination of the complainant found the following injuries on his person:--
(1) Fire-arm injury entry right arm 1/5" in diameter of 3" above elbow, lateral aspect.
(2) Fire-arm injury right arm entry 1/5", 4" below right shoulder joint front of right arm.
(3) Fire-arm injury 1/5" right chest interior axillary wall.
' This witness also conducted the post-mortem of the deceased, Wahid Ali, and recorded the following wounds on his body:-- "Fire-arm injury entry 1/2" x 1/2" with, burning around a hole, 1/2" from mid line, to the left just beneath the costal margin on making an exit 3/4" x 3/4" on the upper margin of the right buttock. In the mid line injuring intestines and mesenterin vessels.
' P.W.4 is Rais Khan, Police Constable, who deposed to the recovery memo. Exh.P.D./2 whereby the I.O. Took into possession a cash amount of Rs,400 Exh.P.6 as a result of the personal search of the accused-appellant.
' The complainant appeared as P.W.5 and while, to some extent, reiterated the allegations made in the F.I.R. But made these improvements therein, "who jumped over the deceased Waheed Ali and snatched away the cash from his hand. During this process the muffler of the face of the person got unveiled". And again, "The other person who had, muffled his face, fired at me with his D.B.
Shotgun with which I got hit and injured". In the F.I.R. It was not stated either by its scribe or the maker that the police had arrived before ' he was taken to the hospital while in the statement it was so stated, "the police then arrived to the spot. I was then taken to the Civil Hospital where I lodged the report in Civil Hospital, Hangu". And again in the cross-examination, "when the police arrived at the octroi post, soon after the occurrence then I was in injured condition. My injuries were seen by the police who arrived on the spot. I was then straightaway taken to the hospital".
' P.W.6 is Taimoor Shah, A.S.I., who partly investigated the case and deposed that on receipt of the information about the occurrence he went to the Emergency Room of the Hospital where the injured complainant lodged the report with him. After preparing the injury-sheet of the complainant he proceeded to the spot and found the dead body of the deceased lying there. The injury-sheet and inquest report were also prepared by him. He then took into possession blood- stained earth, four empties of 7.62 bore, one spent bullet and one deformed spent bullet through recovery memo. Exh.P.D./1. The amount of Rs,400 was also recovered by him from the personal search of the appellant.
' P.W.7 is Dost Muhammad Khan who was then S.H.O., Police Station Hangu, and who had carried on partial investigation in this case. He arrested the appellant on 31-8-1989 and arranged his identification by the complainant through Tehsildar. In short he deposed to the various steps taken by him in furtherance of the investigation.
' The learned S.D.M., Atta Muhammad Khan, who had recorded the confessional statement of the appellant appeared as P.W.9 and deposed to the confessional statement Exh.P.J.
' Muhammad Imran Qureshi, Tehsildar, appearing as P.W.11 testified to the correctness of the identification parade memo. Exh.P.F./1 and gave details about the conduct of the identification parade.
4. The accused-appellant when examined under section 342, Cr.P.C. Pleaded innocence, false involvement and described the confession as fictitious and false and while explaining the reason for his malicious implication said, "I am innocent and have been charged falsely in this case.
Besides this case, I have been charged in some other cases falsely by the police because the local police was on inimical terms with me on account of the death of a Police Officer of Police Station Hangu. The certified copies Exhs.D.1 and D.2 placed on file".
5. The learned counsel arguing for the appellant submitted that the confession of the appellant being the result of coercion and inducement and also being illogical, unreasonable and inconsistent with the other evidence on record cannot be relied on and be made basis of conviction. In this context he referred to the date of arrest and the date of recording of the confession. He also pointed out the omission of important questions which were legally required to be put to the appellant while recording his confessional statement and also referred to the unusual manner of producing the appellant some time before one Magistrate and at another before another Magistrate to prove that after his refusal to make confession before one Magistrate he was then produced before another and the intervening period was spent in forcing him to confess his guilt. This submission was opposed by the learned counsel for the State who supported the conviction on the strength of this confession. We considered this aspect of the case and are inclined to agree with the learned counsel for the appellant that a confession recorded in such a doubtful and illegal manner could hardly be relied on for conviction. The appellant was arrested in this case on 31-8-1989 and he remained in police custody for 14 days till 14-9-1989, the date on which his confession was recorded. Although it is not a rule of universal application that a confessional statement recorded during police custody must always be excluded from consideration but the surrounding circumstances in each case are required to be looked into as to whether such a confession should or should not be relied upon. In this case the Investigating Officer (P.W.7) stated that when the .Accused for the first time was produced before the Magistrate on 1-9- 1989 he did not make any confession. Similarly, after expiry of seven days police custody when he was again produced he refused to make confession and then again seven days police custody was obtained and then the present confession was allegedly made. It is also in the statement of the learned Magistrate before whom the confession was made that earlier on two occasions the accused was produced before another Magistrate from police custody. The prosecution was, therefore, at least required to have explained as to what was the necessity for obtaining the initial police custody of seven days and what necessitated its extension for further seven days but we find that the record is completely silent on this point. The learned Magistrate who recorded the confession appeared as P.W.9 and stated, "I had not put the question regarding the police custody of the accused. It is correct that I also did not verify as for how much period the accused who was going to confess his guilt was kept in detention i,e. Police custody". It was further stated by him that "it is correct that I did not affirm the ouster of police officials from my Court to examine the accused, in the portion of questionnaire and answer. However, I have fully explained this, in my certificate given at the foot, thereat". Moreover, if the confessional statement is looked into it would appear to be a cock and bull story entirely unreasonable and unnatural. Therein he attributes firing at the deceased to his co-accused Sher and Muhammad Yousaf and does not give him any role as for the murder. Moreover, the case as put in the F.I.R. And the statement of the complainant in Court is that only two persons perpetrated the offence whereas in the confession three accused (including himself) have been held responsible for the crime. The accumulative effect of all these factors renders the veracity of the confession as doubtful and we are of the view that it would not be safe to rely on such a confessional statement for conviction.
6. It was next submitted that the prosecution case is that the deceased and the complainant were fired at when they were present in the room of the Octroi Post but no recovery of any empty was made from there. It is pertinent in this context that the recovery of 4 empties of 7.62 bore was made from point No, 5 which lies outside the room on the road side. In the evidence the appellant is alleged to have fired with shotgun but neither any empty of this bore was recovered nor any pellet was found in the room. If one looks at the site plan then it appears that from point No,5 which is outside the room and from where 4 empties of 7.62 bore were recovered firing was made through the window at the deceased. In any case it has not been alleged that either there was an electric light or moonlight in or around the place of occurrence, therefore, mistake in identity would also be there particularly when the occurrence occurred at mid-night and in absence of light it would not have been possible when the appellant was a complete stranger to the complainant. It is also worth noticing that the circumstances resulting into the occurrence as given in the F.I.R. Were tntirely changed by the complainant in his statement in Court. In the F.I.R. It was stated that two unidentified persons who could be identified if brought before him entered the room through the window and one of them fired at the deceased while the other fired at him with shotgun.
However,.In the Court statement the complainant stated that after the two persons entered the room who jumped over the deceased Waheed Ali and snatched away the cash from his hand and that "during this process the muffler of the face of the person got unveiled. He fired at the deceased with which he got hit and fell on the ground, and expired on the spot. The other person who had, muffled his face, fired at me with his D.B. Shotgun with which I got hit and injured". This vital improvement created in the story without any justifiable reasons also creates doubt in the prosecution case. The medical evidence also does not support the ocular account as the distance between the two places where the deceased was present and from where he was fired at has been shown to be three paces in the site plan which would come to 7-1/2 feet but there has been shown burning around the injuries of the deceased which would not be possible for that much distance. The recovery of Rs,400 from the appellant as supporting evidence is also ridiculous because nothing was mentioned about snatching of the amount from the deceased in the F.I.R.
And even subsequently too in the statement the particulars of the amount have not been given, therefore, it is not known as to how could this amount be linked with the offence. Moreover, the clandestine manner in which the identification was conducted also belies the prosecution case. In this respect the relevant portions of the statements of the witnesses who were concerned with the confessional statement are referred to. The complainant (P.W.5) said that for the purpose of identification he was taken straightaway from his house to the office of the Tehsildar. P.W.6 stated, "accused was brought from the Havalat of Police Station to the Court of Tehsildar for his identification". And again, "I did not bring the accused through the main gate of Tehsil which is the only entrance. Voluntarily added, he was arranged to be brought on the roof of the Tehsil building from the roof of the Havalat to the Tehsil premises as the building of the Police Station and that of Tehsil are situated adjacent". P.W.7, S.H.O., stated that the accused was brought for identification parade through the established thoroughfare entering through main gate of Tehsil. The Tehsildar who conducted this parade stated that the accused was not brought by P.W.6 but he was in the judicial lock-up at that time and that the accused was not brought through the roof of the Police Station Tehsil Building.
7. Needless to say that the case against an accused must be proved beyond doubt but, however, in the present case we find the serious and grave defects in the prosecution case as indicated above and, therefore, the conviction of the appellant on such evidence was not justified.
Consequently, while giving benefit of doubt to the appellant we accept this appeal, set aside the impugned judgment and acquit him.