' In brief the facts, relevant for the disposal of this Criminal Revision Petition (No,7 of 1991) are that Faridoon deceased was posted as L.H.C. In Police Station, Khanpur in the year 1987. It was on 26-12- 1987 that he was sent to Abbottabad in connection with some official duty at 7-45 a.m. Since he did not go back to Police Station, Khanpur, till 28-12-1987, therefore, he was marked absent. His whereabouts were not known till 1-1-1988 in spite of the fact that hectic efforts, in this respect, were made by S.H.O. Farid Khan (P.W.1). After the matter was reported to the D.S.P., an enquiry was set up under section 156(3), Cr.P.C. On 4-1-1988.
2. The S.H.O., Farid Khan (P.W.1), keeping in view the previous enmity and criminal litigation between the deceased and accused Farid, during the course of inquiry, arrested him on 6-1-1988. The accused was subjected to thorough interrogation as a result of which he admitted to have killed the deceased, because of a dispute over the property, and stated that he could point out the place where the dead body of the deceased could be found.
3. After this disclosure, S.H.O. Farid Khan (P.W.1), drafted Murasila under section 302, P.P.C. And sent the same to Police Station Mirpur, where, on its basis, a case was registered under section 302/201/202/109/34, P.P.C. Against the accused (Farid) on 6-1-1988, vide F.I.R. No,12 (Exh.PA.).
4. In consequence of the registration of the case, S.I. Naeem (P.W.10) took over the investigation of the case. He recovered the head and trunk of the dead body of the deceased, from different places (fields) allegedly at the pointation of the accused, vide; recovery memo. Exh.P.W.4/1. He also prepared the site plan (Exh.P.B.) in this respect in the presence of Manzoor Hussain (P.W.4).
Exh.P.W.10/1 and pointation memo. Exh.P.W.6/1 were also prepared. He also collected the following:--
(1) Blood-stained stones and pebbles Exh.P.1 vide recovery memo. Exh.P.W.4/2.
(2) Blood-stained stone Exh.P.2. Vide recovery memo. Exh.P.W.4/3.
(3) Blood-stained stone Exh.P.3 vide recovery memo. Exh.P.W.4/4.
(4) Blood-stained earth Exh.P.4 vide recovery memo. Exh.P.W.4/5.
(5) Blood-stained earth (from another place) Exh.P.5 vide recovery memo. Exh.P.W.4/6 and
(6) Ash Exh.P.6 vide recovery memo. Exh.P.W.4/7.
5. The Investigating Officer (P.W.10) got the trunk of the dead body identified by Ali Asghar (P.W.9), brother of the deceased, vide memo. Exh.P.W.4/8. He also got the head of the deceased identified by the same witness (brother of the deceased) vide memo. Exh.P.W.4/9. The pointation memos. In respect of the recovery of the trunk as well as the head were prepared in the shape of Exh.P.W.4/10 and Exh.P.W.4/11 respectively.
6. The autopsy was conducted by Dr. Amjad Hussain of D.H.Q. Hospital, Abbottabad (P.W.8).
7. The accused also led to the recovery of stick Exh.P.7 from his house vide recovery memo.
Exh.P.W.6/2. Besides, pick-axe Exh.P.8 (at the instance of accused Miandad and Iqbal since acquitted) vide recovery memo. Exh.P.W.6/3 in the presence of Abdur Rehman (P.W.6). Pointation memo. Exh.P.W.4/5 was made in respect of pick-axe. A pair of Chappal (Exh.P.7) was also recovered at the instance of Iqbal accused and pointation memo. (Exh.P.W.6/4) was prepared in this respect.
8. All the abovementioned recoveries, it may be noted, were made on 6th and 7th January, 1988 and the pointation memos. In respect thereof were prepared on 12th January, 1988. Farid accused was, however, produced before the Ilaqa Magistrate, Qaim Khan (P.W.3) for recording his confessional statement on 13-1-1988 whereas the other accused, Muhammad Iqbal, was produced, for the said purpose, before Ilaqa Magistrate Abdul Wahab Khan (P.W.5).
9. After completing the investigation of the case, in hand, in the manner described above, the local police submitted complete challan under section 302/201/202/109/34, P.P.C. Against accused Farid and his two companions i,e, Miandad and Iqbal in the Court of Sessions Judge, Abbottabad, for trial.
10. Charge was framed which were read over and explained to the accused who pleaded not guilty and claimed innocence. They repudiated the allegations levelled against them by the prosecution and stated that they were involved in the case falsely and on the basis of enmity. They also retracted from their confessional statements.
11. The prosecution in order to prove their case examined as many as 10 witnesses, almost all mentioned above. The accused did not produce any evidence in their defence.
12. After considering the evidence produced by the prosecution the learned Sessions Judge, vide, his judgment, dated 13-2-1991 acquitted all the accused.
13. Since the State has not filed appeal against acquittal of the respondent, that is why All Asghar (P.W.9), the brother of deceased, had lodged this petition privately. The refusal of the State to challenge the vires of the judgment of the learned Sessions Judge vide which he acquitted all the accused and that failure of the complainant to challenge the acquittal of the other two accused i,e, Miandad and Iqbal, has left a scar on the prosecution case. v Needless to mention that an appeal and a revision petition, when directed against the acquittal, are governed by separate consideration and different legal incidents. In respect of revision petition from acquittal, where the State has not considered it fit to challenge the verdict of acquittal the Court should be very hesitant to interfere with the verdict of the trial Court, unless non A interference would put a stamp of validity on an absolutely unjust and illegal order. If the inference drawn by the trial Judge is reasonably possible after the consideration of the evidence in its totality, then the contention that a different view could have been taken on the same evidence, would not provide any justification to this Court to reverse the order of acquittal. The Court would indeed come to the aid of an aggrieved litigant, if he is able to show that the order of acquittal is either perverse or is based on illogical and speculative reasoning. I have to, accordingly, see as to whether any element of the like nature has marred the decision.
14. It may be stated at the -very outset that in this case the principle evidence, in the absence of any ocular testimony and creditworthy circumstantial evidence, is only furnished by the confessional statement (Exh.P.W.3/3) of accused Farid. As mentioned above, this confessional statement was recorded by M.I.C. Qaim Khan (P.W.3) on 13-1-1988 almost seven days after the day of his (accused Farid) arrest. In order to appreciate the story as set up by the prosecution, it is necessary to reproduce the narrative of the confession, in the very words of the accused, as under:-- {{URDU TEXT}}
15. This confession was retracted by the accused at the earliest opportunity with serious allegations against the conduct of the Investigating Officer.
16. Mufti Muhammad Idris, Advocate learned counsel for the petitioner, in the matter of assessing the evidentiary value of the retracted confession, has drawn my attention to a well-settled principle of law which is that a retracted confession could legally be taken into consideration, against its maker, I provided such a confession is found to be true and voluntary. In such a case there was no need to look for further corroborative evidence and that it could in law, form the sole basis of conviction of the maker. He, further, urged that the confession (Exh.P.W.3/3) being voluntary and true could not be excluded by the Sessions Judge. According to him, in the circumstances, the learned Sessions Judge has not only acted with material irregularity but also illegally and has fallen into an error. The learned counsel for the petitioner, in support of his contention, placed reliance on the following cases:--
(1) The State v. Mushtaq Ahmad PLD 1973 SC 418.
"(c) Precedent---Value of---Everything said in a judgment, more particularly in a criminal judgment---To be understood as having been said with reference to facts of that particular case."
(2) Syed Sharifuddin Pirzada v. Sohbat Khan PLD 1972 SC 363.
(a) "Criminal Procedure Code (V of 1898), S.164---Confession, judicial---Mere fact that person making confession remained in police custody for sometime---Does not lead to conclusion that confession was tutored---Directions contained in Federal Capital of Sindh Circular, Chap. VI, Part C that person from whom confession taken should be asked, how long he had been in police custody---Direction, contained in Circular, merely directory in nature and its irregularity does not vitiate confession---Full opportunity given to accused to explain circumstances in which they were making confessions---Confessions, held, made voluntarily and could be relied upon."
(3) Syed Kabir Hussain Shah v. The State PLD 1984 SC (AJ&K) 82.
"(j) ----Recovery of piece of dead body---Identity of deceased---Pieces of dead body of deceased recovered and subsequently head was also seized---Recovery witness fully acquainted with deceased and had identified parts of body--- Parts of body recovered at instance of accused were that of deceased and none else."
(k) ----Pieces of dead body---Recovery of---Validity of---Pieces of dead body recovered from a jungle at a considerable distance from place of occurrence outside territory of Azad Jammu and Kashmir---It would not have been possible for police to go and find pieces of dead body at such distance---Recovery witnesses found to be truthful---Held: There is no fault with recovery of pieces of dead body of deceased which was result of 'pointing out' of accused alone."
(4) Abdus Samad v. The State PLD 1964 SC 167.
"(b) Evidence Act (I of 1872)---Recovery of remains of dead body at instance of accused from a 'very lonely place' four miles away---In the absence of *other reason for police to go to such place, held, that accused himself led police to place of recovery.
(d) Criminal trial---Evidence---Murdered child last seen in company of accused---Accused having exclusive knowledge of place where remains of child were found---Sufficient to establish charges of kidnapping and murder."
(5) The State v. Minhun alias Gul Hussain PLD 1964 SC 813.
"(b) Criminal Procedure Code (V of 1898), S. 164---Confession--Retracted or unretracted--- Judicial or extra-judicial---Can legally be taken into consideration against maker thereof--- Corroboration not needed if confession true and voluntary---Can validly be made sole basis of conviction---Weight and evidentiary value of confession, however, 'is a different matter from admissibility. Of same--Making sole basis of conviction depends upon facts of particular case--- Retracted extra-judicial confession cannot corroborate retracted judicial confession-I-Evidence Act (I of 1872), S.24.
' Retracted confession, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. As against the maker himself, his confession, judicial or extrajudicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion of inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law.
' Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true.
' The proposition that a retracted extra-judicial confession cannot corroborate a retracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilizing of one piece of tainted evidence to corroborate another piece of tainted evidence."
(6) Faqira v. The State 1973 SCM R 532.
(a) Penal Code (XLV of 1860), Ss.302/149 & 201---Murder appeal---Circumstantial evidence--- Deceased last seen in company of accused---Extra-judicial confession by co-accused, brother of accused appellant---Victim's dead body unearthed from bed of a watercourse at pointing out of co-accused---Blade of crime hatchet dug out from a place near accused's house and shirt and shoes of deceased duly identified by makers as those of deceased, also dug out an accused's pointing out---Co-accused producing Kassi used for burrying dead body of victim---Spot of murder blood-stained---Post-mortem report confirming death caused by three heavy blows of sharp-edged weapon---Circumstantial evidence, held, sufficient to prove offence of murder and disposal of dead body beyond doubt."
(7) Abdur Rashid and others v. The State PLD 1962 SC 249.
"(d) Retrial---When not improper---Trial Court's conclusion (in judgment of acquittal) not supported by 'balanced statement of relevant facts or by truly reasoned arguments'---Retrial order held to be correct."
17. On the other hand, Mirza, Abdullah Jan, Advocate, learned counsel for the acquitted accused, has vehemently asserted that, as a rule of prudence, it is always proper and just that such retracted confession should be corroborated in material particulars and that it is the duty of the Court to inquire into all material points and surrounding circumstances. He further stated that the Court has to satisfy itself fully that the confession must:--
(1) conform to requirements of law, and
(2) be voluntary and true.
' According to the learned counsel for acquitted accused the confession (Exh.P.W.3/3), in the case in hand, is replete with factual as well as legal infirmities and therefore, cannot be considered as valid evidence by any means. Reliance was placed on the following cases:--
(1) Abdul Haleem v. The State 1984 PCr.LJ 611 (Karachi).
"(e) Criminal Procedure Code (V of 1898), S. 164(3)---Confession--Voluntary character of confessional statement---Court must look for strict compliance of S.164(3), Cr.P.C.---Procedure to be followed in recording confession by Courts reiterated.
' Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. Before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for their guidance. Magistrate would be well-advised to follow the procedure which is given below:- ' As soon as accused is produced for confession, his handcuffs should be removed and all the Police Officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him:--
(i) For how long have you been with police?
(ii) Has any pressure been brought to bear upon you to make confession?
(iii) Have you been threatened to make confession?
(iv) Has any inducement been given to you?
(v) Why are you making this confession?
(vi) Have you been maltreated by police?
' After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim."
(f) Criminal Procedure Code (V of 1898)- ' S. 164---Retracted confession not to be acted upon and be made basis for conviction unless same is corroborated in material particulars.
(2) Majid v. The State 1988 PCr.LJ 903. "(d) Confession--- ' Retracted judicial confession not recorded in accordance with prescribed procedure---Should not be relied upon."
(3) Rukan Zaman v. Khizar Hayat 1988 SCM R 950.
"(b) ----S. 302/34---Judicial confession of accused inconsistent with prosecution case and not reliable---Motive as given in prosecution case varying with one given by accused in his confessional statement---According to accused he fired at deceased from behind whereas medical evidence showing that shot was fired from front-- Confessional statement was more of an exculpatory nature rather than a statement implicating its maker---Incised injury on person of deceased not explained---Prosecution, held, failed to prove its case against accused."
(4) Farooq Khan v. The State 1989 PCr.LJ 1520 (Peshawar)
"(b) ----S. 302-judicial confession, whether worthy of credence---Time and manner of occurrence, distance and place of firing as narrated in confessional statement, contradicted by medical evidence and site plan---Accused remaining in illegal custody for several days before recording of his confession---Confession, held, could not be termed as voluntary and merited to be excluded from consideration in circumstances.'"
(5) The State v. Mushtaq Ahmad PLD 1973 SC 418 "(c) Precedent---Value of--Everything said in a judgment, more particularly in a criminal judgment---To be understood as having been said with reference to facts of that particular case.'
(e) Benefit of doubt---Doctrine elucidated.
' Law allows to persons accused of criminal offences the benefit of "reasonable"' and not of imaginary doubts. What is reasonable doubt is not a question of law, it is essentially a question of human judgment by a prudent person to be found in each case, in the light of day to day experience in life, after taking in account fully all the facts and circumstances appearing on the entire record". It is antithesis of a haphazard approach of reaching a fitful decision in a case."
(6) Yar Muhammad and 3 others v. The State 1992 SCM R 96. "(b) Penal Code (XLV of 1860)--- ' Ss.302/323 /149 & 148---If there was any discrepancy in prosecution evidence or if the same required some clarification or explanation, then prosecution must explain and clarify the same failing which benefit would go to accused.
(c) Criminal Procedure Code (V of 1898)--- ----S. 103---Penal Code (XLV of 1860), Ss.302/148, 323/149 & 148---Unless from the facts and circumstances of the case it was not possible to obtain Mashir of the same locality where the recovery and arrest was made, prosecution might pick up any other person to act as such, otherwise it was the duty of the Investigating Agencies to pick-up Mashir from the locality itself.
(e) Criminal Procedure Code (V of 1898)--- ----S. 417---Appeal against acquittal---Unless the judgment of trial Court was perverse, completely illegal and on perusal of evidence no other conclusion could be made except that the accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice, High Court would not exercise jurisdiction under S.417, Cr.P.C.---High Court in exercising such jurisdiction was always slow unless it felt that gross injustice had been done in the administration of criminal justice."
(7) Amanatullah and another v. The State 1986 PCr.LJ 523 (Quetta).
"(c) Visible inconsistency existing between confession and medical evidence---Medical evidence belying prosecution version regarding time of incident---Such inconsistency, held, was sufficient to destroy base of prosecution case as a whole and to demolish its full structure---Conviction and sentence of accused set aside in circumstances."
(8) Ghulam Qadir and another v. The State 1976 PCr.LJ 1332 (Karachi). ----S. 302---Murder---Evidence, appreciation of---Prosecution story resting mainly on circumstantial evidence and retracted confession---Nothing on record to indicate that deceased remained with accused till his murder and evidence regarding recovery of dead body not straight- -Recovery of blood-stained clothes of accused not worthy of credit---Retracted confessional statement also belied by medical evidence---Conviction and sentence set aside, in circumstances."
18. Learned counsel for the parties heard in detail. I have also gone through the record of the case as well as the case-law cited at the Bar carefully.
19. The main point to be determined in this case is as to whether the confession (Exh.P.W.3/3), relied upon by the prosecution, meets the standards laid down by the superior Courts in this regard. This point can be resolved adequately by looking at the recitals of the confession itself in the light of the other evidence available on the record and to find out if it has a ring of truth in it. I has to be seen, very carefully, that it is consistent with the medical evidence (in respect of the manner of assault, weapon used etc.), time of occurrence and the motive alleged and that it fits in the circumstances attending the crime. If the answer is in the negative then in that case the retracted confession has to be rejected straight away and if it forms the principal evidence, it is not necessary to examine the other supporting evidence. In the instant case, there is no ocular evidence at all. It is regrettable that the circumstantial evidence is equally not trustworthy. The retracted confession which forms the basis of the prosecution case, therefore, requires close scrutiny and critical examination.
20. The prosecution story starts on the morning of 26-12-1987 when a mutation, in respect of land measuring 40 Kanals, purchased by accused Farid from one Muhammad Afzal, was presented before the Tehsildar at Qalandarabad for attestation. The mutation in question was rejected on an objection raised by the deceased. This mutation has not been procured by the Investigating Officer, i,e,, either by S.I. Farid Khan (P.W.1) or by S.I. Naeem Khan (P.W.10). Even an attested copy of the said mutation was not brought on record to verify the correct position. On the other hand, Abdul Qayum, Patwari (P.W.2), when in the witness-box, stated that Mutation No,8846 entered in favour of accused Farid and his brother Rafiq in respect of 79 Kanals and 9 Marlas of land by Muhammad Afzal Khan vendor was rejected on 9-3-1988 and that nothing happened in his presence about the reason or objection, if any, for rejection of the mutation. The Patwari's evidence establishes_ the following two important facts:--
(1) That the deceased had nothing to do with the said mutation or the land mentioned therein nor was the mutation put up for attestation before the Tehsildar or rejected by him on 26-12-1987, and
(2) that mutation was rejected on 9-3-1988 when the deceased was no longer present in the land of the living.
' Thus the story of the prosecution for the presence of both, the accused and the deceased, in relation to the mutation, at Qalandarabad on the morning of 26-12-1987 vanishes/disappears in the air. With it, the averment made in the confession by the accused that he and the deceased had travelled in a Suzuki together from Qalandarabad to their village Kalidhar becomes highly doubtful and improbable. It must be borne in mind that the accused respondent had charged the deceased, his two brothers, Ali Asghar (P.W.9), F.C. Muhammad Akbar and their two close relations Ijaz and Idalat Khan for setting fire to his maize crop. In this respect a criminal case was registered against them under section 435/427/34, P.P.C. Vide F.I.R. No,189, dated 1-10-1987 (Exh.P.W.1/7) lodged in Police Station Mirpur. This fact has also been admitted by All Asghar (P.W.9) as well as S.I. Fareed (P.W.1). In the presence of such enmity, it is unbelievable that the deceased and the accused/respondent would travel together. In the circumstances their meeting together at Qalandarabad or coming to their village together in a Suzuki, as alleged by the prosecution, stands unproved. Keeping in view the above exposition of facts, I am convinced in my mind, that this portion of confessional statement is inherently false and is definitely the by-product of sheer manipulation.
21. Coming to the next portion of the confessional statement, I am fully convinced that it is also not worthy of belief. For instance, the statement to the effect that on the way the accused/respondent when protested and asked the deceased as to why was he teasing him, he was abused and kicked by him, that, as a consequence thereof, the accused/respondent gave a stick blow on his head followed by a blow of stone, breaking the head of the deceased into pieces and killing him on the spot instantly. This manner of assault is belied/contradicted by the medical evidence, which discloses as many as seven injuries, out of which two incised and cut injuries, on the head, were caused by heavy sharp-edged weapon like axe, fracturing all the bones. Beside this, half of the nose of the deceased and adjacent part of cheek was also missing and this too was an incised injury. This is not the prosecution case, nor is it alleged in the confessional statement that an axe or a knife was used by the accused/respondent for causing these incised wounds of such magnitude.
It appears that the deceased was attacked by two other persons one armed with an axe and the other carrying a knife. Who could they be is left to guessing alone.
22. Immediately after giving the manner in which the accused/respondent had killed the deceased, as mentioned above, it was mentioned that after killing the deceased, the accused/respondent waited for some time and then taking out a knife from the deceased's pocket, cut his neck separating the head from the trunk which were then concealed in different fields. This is not consistent with post-mortem report. The doctor, who conducted autopsy is positive that all the injuries including the severance of head are ante-mortem. In other words, cutting of neck was integral part of the homicidal attack. No injury was inflicted on the dead body after the death of the deceased.
23. In addition to above, the bruises on head, chin and thigh of the deceased, caused by stick have not been explained by the prosecution. To sum up, the death of the deceased was caused by use of three different weapons, as explained above. Surely the accused/respondent could not use three different weapons at one and the same time. This also makes his participation in the transaction highly doubtful. The mode of killing and the weapon uses, as deposed by the doctor, does not fit in the pattern of injuries described in the confession. The material contradictions between the medical testimony and the confessional statement gives a fatal blow and strikes at the basis of the truthfulness of the confession Exh.P.W.3/3.
24. Coming to the other features of the confession, the picture becomes all the more bleak. It is significant and must be taken note of that the accused/respondent had made the disclosure about the killing of the deceased to S.I. Farid Khan (P.W.1) and Si. Muhammad Naeem (P.W.10) on 6- 1-1988 and told them that the dead body of the deceased could be recovered at his instance. In other words he had virtually admitted that he had murdered the deceased. Strangely, he was kept in police custody for 7 days after his arrest and thereafter produced before the Magistrate for recording his confessional statement. It may be mentioned that all the alleged recoveries, in this case, were made by S.I. Muhammad Naeem (P.W.10) on or before 6-1-1988.
25. Strangely, no explanation has been offered by the Investigating Officer as to why the accused/respondent, after he had allegedly admitted his built, was kept in police custody/detained for a period of 7 days. The inordinate delay on the part of the Investigating Officer in producing the accused/respondent before the Magistrate for recording his confession, on the face of it, indicates that the accused/respondent was not all willing to make a confession and that ex facie the confession had been obtained/extracted as a result of torture and duress. Even the Magistrate was told by the accused that during his police custody, he was beaten. In the circumstances, I am of the view that the confession was neither voluntary nor was it true in its contents.
26. Apart from the above, it may be noted that the accused was not asked by the Magistrate if he wanted to meet his near relatives or wanted to consult a lawyer, before making the confession. He was also not questioned if any promise, threat or inducement was held out to him. The accused/respondent was put several questions but the answers received in response thereof were not recorded in his words. In my opinion, the Magistrate has failed to record the confession in accordance with the legal requirements of law. For this reason and the reasons enumerated above, the confession does not merit consideration and is excluded from consideration.
27. It is in the evidence of Manzoor Hussain (P.W.4) that many persons had already gathered at the spot before the recovery of the dead body. The spot was already known and in fact the parts of the dead body were spotted by the villagers before the arrival of the police.
28. No reliance can be placed on the evidence relating to the recoveries made on 6-1-1988 at 8-30 p.m. From the lands of Faqir Muhammad, Qalandar and Gul Zaman, situated in Village Kalidheri.
The Patwari was not summoned to show that the lands mentioned in the site plan (Exh.P.B.) in fact belonged to the persons mentioned above. Even the attesting witness Manzoor Hussain (P.W.4) is ignorant about the owners of the lands from where the recoveries were allegedly effected. This witness has admitted that he had close friendly relations with the deceased, his brothers as well as Ali Asghar (P.W.8). Naturally this witness is a biased witness. He has been imported from an area which is situated at a distance of 4 miles from the spot. It, therefore, appears that the police had already discovered the dead body from different fields. Since the police had the knowledge, therefore, the recovery of the dead body cannot be legally traced to and linked with the information of or pointation by the accused/respondent. The recovery is also marred by non- compliance of the provisions of section 103, Cr.P.C.
29. Further, it has been admitted by the attesting witnesses that no parcel, in respect of the recovery of blood-stained earth, stone and ashes, was prepared on the spot. In a way he has expressed his ignorance as to when and at what place the parcels were prepared. The credence of the, alleged recoveries as deposed by S.I. Muhammad Naeem (P.W.10), therefore, stands demolished. Since the main evidence furnished by the confession has been held to be inherently defective and false, as such, the recoveries effected in this case cannot be taken into account on the basis of their legal infirmities.
30. There is yet another aspect of the case and that is that the doctor who carried out the post- mortem examination on the dead body of the deceased on 7-1-1988 at 9-00 a.m. Categorically opined that the death was instantaneous and immediately. According to him the time between the death and post-mortem was about 10 to 13 days with difference of 2 to 3 days on either side of such duration. It may be noted that if the margin of difference is kept in mind, then in that case the deceased had expired between 29-12-1987 to 31-12-1987. This fact also introduces an element of doubt and uncertainty in respect of the date (26-12-1987) on which the deceased was killed.
31. To sum up, it can be safely said that the learned Sessions Judge had rightly appraised and appreciated the evidence produced by the prosecution in accordance with the law. The petitioner has himself not challenged the acquittal of the other two accused which would certainly mean that both of them were involved in this case falsely. In the circumstances, how on the same evidence, available on record, the respondent could be held guilty of killing the deceased. The evidence has been rightly found to be tainted and incredible by the learned Sessions Judge. The impugned judgment of the learned Sessions Judge is unexceptionable and accordingly I am not inclined to interfere with the same in revisional jurisdiction. In view of the abovementioned discussion I am clear in my mind that this revision petition is without any merit and is resultantly dismissed.