' Muhammad Khan son of Mian Khan caste Awan, aged about 16 years, resident of Dhok Ban Dakhli Kahil, Police. Station Pindsultani, District Attock, was tried in the Court of Additional Sessions Judge, Attock on charges under section 302/34, P.P.C. The allegation against the appellant was that he alongwith his co-accused (acquitted) Lal Khan in furtherance of their common intention committed the murder of Muhammad Akbar son of Noor Muhammad on 21-11-1988. At the conclusion of trial accused Muhammad Khan was found guilty of offence punishable under section 304, Part I, P.P.C. And co-accused Lal Khan was found innocent; hence was acquitted.
2. Muhammad Khan accused was accordingly convicted and sentenced to undergo R.I. For ten years and fine of Rs,15,000, in default of payment of fine to further undergo for two years. The amount of fine if recovered was to be paid to the legal heirs of the deceased.
3. Convict Muhammad Khan feeling aggrieved by the order of Additional Sessions Judge has come up in appeal to this Court; wherein he has challenged the conviction and sentence and assailed the judgment of the learned trial Court on various grounds particularly that the learned trial Judge erred in basing his finding on the retracted confession of the accused; while the; complainant Lal Khan has filed revision under section 439, Cr.P.C. Against the judgment of learned trial Court; to convert the sentence of Muhammad Khan accused 304, Part I to section .302/34, P.P.C. And to award him the normal penalty of death and also penalty of fine of one lac, on realisation the same may be ordered to be paid as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and to set aside the orders whereby Lal Khan son of Noor Zaman was acquitted; hence I propose to dispose of Criminal Appeal No,21 of 1990 and Criminal Revision No,56 of 1990 by this joint judgment.
4. The brief facts of the ease are that on 21-11-1988 at about 7-30 p.m., Lal Khan complainant (P.W.17) got information that Muhammad Akbar son of Noor Muhammad deceased was found lying dead in his land known as Ahal. He accordingly accompanied by Nawaz, Noor Muhammad and other family members reached the spot where dead body of Muhammad Akbar was lying in his field close to the passage leading to Kahal. There he also found bloodstained Chaddar and Sangal lying nearby the dead body of deceased. There were injuries on the left side of Muhammad Akbar deceased and under his left ear and also on the forehead. The blood was also found lying on the ground. Lal Khan had suspected that Lal Khan son of Noor Muhammad, Muhammad Khan son of Mian Khan the accused (who were tried) Karam Khan son of Ghulam Muhammad, Mian Khan son of Noor Zaman, Sikandar son of Noor Muhammad and Sher Khan son of Lal Khan his co- villagers had conjointly committed murder of Muhammad Akbar.
5. The motive behind the alleged murder is that 7/8 days prior to the occurrence, an altercation had taken place between Lal Khan and Muhammad Akbar deceased over the distribution of water.
On the next day after Fajar prayer Lal Khan accused had lodged protest before Noor Muhammad P.W.11, the maternal-uncle of Muhammad Akbar deceased in this respect and at the same time threw challenge that if they had retaliated them, Noor Muhammad would have no objection. Lal Khan complainant was thus of the view that the aforesaid six persons, Lal Khan and others, had committed murder of Muhammad Akbar. The case was registered at Police Station Pindsultani under section 302/34, P.P.C. Vide F.I.R. No,132/88 on 22-11-1988.
6. After registering the case Muhammad Ayub, visited the spot; prepared the injury statement as Exh.P.J. And inquest report Exh.P.K. Of the dead body of Muhammad Akbar deceased and sent the same to mortuary and commenced with the investigation of the case. He took possession of bloodstained earth from the spot as per memo. Exh.P.E. Sangle P.5 under memo. Exh.P.F. In the presence of Muhammad Nawaz and Ayyub P.Ws. And also seized the last-worn blood-stained clothes, Shalwar, P.1, shirt P.2 and pair of black Chappls P.3/1-2 vide memo. Exh.P.B. On the same day having been delivered to him by the Ibrat Saeed H.C.; same day got the site plan Exh.P.D. And P.D./1 prepared by Muhammad Latif Patwari (P.W.6) and prepared the rough sketch Exh.P.L. And deposited the sealed parcels with the Muharrar.
7. As per prosecution Muhammad Ayyub, S.I. P.W.15 arrested Muhammad Khan and Lal Khan accused on 7-12-1988. Muhammad Khan accused in police custody then led the police party on 9- 12-1988 to the recovery of hatchet P.6 from his residential house in the presence of Shabbir Hussain, P.W.12, and Mazhar-ul-Haq, P.W.13, vide memo. Exh.P.G. Muhammad Ayub S.I. (P.W.15) moved an application on 10-12-1988 (Exh.P.D.) before Mian Abdul Ghafoor Bhatti, A.C./Magistrate 1st Class as Duty Magistrate and got the confessional statement of Muhammad Khan, accused. The said P.W.
Also got Lal Khan accused discharged on 11-12-1988 vide his application Exh.P.M.
8. At the very outset, Muhammad Khan accused alone was duly charged to which he did not plead guilty and claimed to be tried. The learned trial Judge after recording the statement of Fateh Khan, P.W. Summoned the other accused, that is, Lal Khan on 7-12-1989 to face the trial alongwith Muhammad Khan, accused. Accordingly both the accused were duly charged and both denied the charge and pleaded to be tried.
9. Muhammad Khan and Lal Khan co-accused (acquitted) when confronted with the prosecution case, both of them pleaded innocence and claimed trial. Muhammad Khan accused in his statement under section 342, Cr.P.C. Stated that he has been falsely implicated in the case due to suspicion and previous enmity. According to him, a year before the occurrence his father and Lal Khan co-accused (acquitted) had cultivated Jawar crop on the Shamlat land situated in Village Ban Kahil, Muhammad Akbar, deceased, Nawaz, P.W., Fateh Khan, P.W. And his brother Sultan Khan had cultivated Til crop and on that account an altercation had taken place between the parties, Fateh Khan, P.W., being the tenant of Malik Abdullah of whom Sardar Bashir Hussain P.W. Is the Manager had falsely implicated him on account of suspicion and in substitution of the real culprit, who could not be traced out and got his statement recorded under section 340(2), Cr.P.C. Wherein he confirmed his stand and stated that he did not give voluntary statement Exh.P.N./3 (statement under section 164, Cr.P.C.) rather the same was given due to torture and duress exerted by Muhammad Ayub S.1./P.W. On him and he did not lead to the recovery of blood-stained hatchet, Exh.P.6 and was cross-examined by the prosecution. Lal Khan, co-accused (since acquitted) in his statement under section 342, Cr.P.C. Stated that he has been falsely involved in the case due to enmity and supported the statement of Khan Muhammad, accused.
12. The prosecution through the testimony of Noor Muhammad (P.W.11) and Lal Khan complainant (P.W.17) sought to establish the motive, Fateh Khan P.W.8 appeared as an eye-witness while Muhammad Riaz (P.W.9) and Muhammad Shafique P.W.10 were examined by the prosecution as Wajtakkar witnesses to the occurrence. Mian Abdul Ghafoor Bhatti A.C. (P.W.16) deposed that he had recorded confessional statement Exh.P.N. Of Muhammad Khan accused after observing all possible precautions as presented under the law. Bashir Hussain and A.S.I. Mazhar-ul-Haq (P.W.13) appeared as recovery witnesses of Exh.P.6 hatchet, P.W.4 Dr. Aniq-ur-Rehman conducted the postmortem examination on the dead body of Muhammad Akbar son of Noor Muhammad deceased on 22-11-1988 at about 4 p.m. Which was brought to him by Ibrat Saeed H.C. P.W.3 and was identified by Mawaz and Lal Khan P.Ws. According to Doctor it was the dead body of a young man aged about 35/36 years of average built person. He found 4 injuries on the dead body of Muhammad Akbar, deceased. The doctor opined that the death was due to shock and cartiopulmonary failure due to injuries Nos.1 and 2 which were collectively and as well as severally sufficient to cause death in the ordinary course of nature. It was also opined by the doctor that probable time between injury and death was between 5 to 10 minutes whereas between death and post-mortem was about 12 to 24 hours.
13. It is an admitted fact that P.W.11 Noor Muhammad is the maternal-uncle of the deceased, Lal Khan P.W.17 is the son of Noor Muhammad P.W.11; while P.W.9 Muhammad Riaz and P.W.10 Muhammad Shafique are Khalazad cousins of the deceased and as such they are all closely related inter se and to the deceased.
14. The learned trial Judge observed that Lal Khan P.W.17 did not claim first hand information about the incident covering the aspect of motive and Noor Muhammad P.W. Also appears to be not clear about the motive 4nd his statement under section 161, Cr.P.C. Was recorded by the Investigating Officer for the time on 29-11-1988; with the delay of 8 days hence reliance could not be placed on his testimony; in the light of law laid down in PLD 1960 (W.P.) Kar. 697, 1989 PCr.LJ 92 and 1974 PCr.LJ 400 held that the prosecution story of motive sponsored through Noor Muhammad and Lal Khan P.Ws. Appeared to be afterthought story have not been substantiated on the record. The learned trial Court also discarded the ocular testimony rendered by Fateh Khan P.W.8 as not inspiring confidence on the ground that for the first time he opened his tongue before the police on 1-12- 1988 when his Statement under section 161, Cr.P.C. Was recorded with the lapse of 10 days.
15. The learned trial Judge also discarded the testimony of Muhammad Riaz P.W.9 and Muhammad Shafique P.W.10, who had appeared as Wajtakar witnesses as unreliable as they kept silence till 1- 12-1988 when for the first time their statements were recorded by the police.
16. The learned trial Judge discarded the recovery of blood-stained hatchet Exh.P.6 on the ground firstly that Bashir Hussain P.W., Mazhar-ul-Haq, A.S.I. And Muhammad Ayyub S.I. P.Ws. Had differed one another on the material point as to whether the hatchet Exh.P.6 was stained with blood or not secondly it was recovered from the residential house jointly owned by Muhammad Khan accused his father and brothers; which could not be considered as having been recovered exclusively from the possession of the accused.
17. The learned trial Judge held that the confessional statement of Muhammad Khan accused was voluntarily one and free from blamishes of compulsion, inducement, thwart or promise as the learned Magistrate Abdul Ghafoor Bhatti P.W. Observed all possible precautions as provided under section 164/364, Cr.P.C. And the High Court Rules before recording confessional statement of the accused.
18. Hence on the basis of confessional statement Exh.P.N./3 of Muhammad Khan accused corroborated by medical evidence and the seizure of blood-stained earth; held him guilty of charge of the murder of Muhammad Akbar deceased whereas acquitted Lal Khan by giving him benefit of doubt.
19. The learned counsel for the accused/appellant argued that the prosecution had to discharge the burden of proving its case against the accused as charged beyond reasonable doubt and the conviction of appellant/accused simply on the ground of confessional statement which has been retracted is against the established principles of administration of criminal justice as the prosecution failed to prove the motive beyond reasonable doubt and that the witnesses were inimical towards the accused and are related to the deceased. Further, contended that the prosecution failed to produce a single material independent witness as the evidence of so-called eye-witness was discarded by the learned trial Judge, the ocular evidence is contradictory to the medico-legal report as there were four injuries as against two injuries mentioned by P.W.6 Fateh Khan eye-witness and the prosecution miserably failed to prove recovery of incriminating hatchet P.6 beyond reasonable doubt. The learned counsel vehemently argued that Muhammad Khan accused was in fact arrested on 25-11-1988 and not on 7-12-1988 as confirmed by the P.Ws. And was detained illegally for 12 days by the police when his arrest was shown on 7-12-1988 and later on his confessional statement was got recorded as a result of torture and duress exerted by the Investigating Officer on the accused; such a confessional statement is inadmissible in evidence and should have been excluded from consideration on such score alone.
20. The learned counsel for the complainant vehemently pleaded that the prosecution has fully proved its case beyond any doubt, the recovery of P.6 should have been believed even in the light of Serologist report, the statement of P.W.8 Fateh Muhammad being an independent and natural eye-witness should have been accepted; the testimony of P.W.9 Riaz and P.W.10 Muhammad Shafique as Wajtakar witnesses is worth acceptance as they have no previous enmity with the accused; merely being relative of the deceased should have not been discarded. The learned counsel vehemently contended that the prosecution in its fairness got recorded the F.I.R. If the complainant had any mala fide; would have got recorded F.I.R. Otherwise; hence prayed for conversion of sentence of Muhammad Khan accused to death penalty and to set aside the order whereby Lal Khan was acquitted.
21. The learned State counsel supported the sentence awarded by the learned trial Judge and opposed the plea of learned counsel for the complainant on the plea that the occurrence took place due to and the accused being of tender age has already been awarded justified sentence for his guilt.
22. I have heard the learned counsel for the parties at length and have gone through the record and evidence with their able assistance. A perusal of the prosecution version from the very beginning has highlighted the fact that the prosecution story runs around suspicion P.W.17 Lal Khan, the complainant, deposed that he got information on 21-11-1988 at about 7-30 p.m. That the deceased was found lying dead in his land, apparently the deceased had sustained injuries on the left side of his head and under his left ear and on the forehead. Lal Khan had suspected Lal Khan son of Noor Muhammad, Muhammad Khan son of Mian Khan etc. Cojointly committed the murder of Muhammad Akbar, deceased.
23. Further the Wajtakkar witnesses, that is, Muhammad Riaz, P.W.9 deposed that on 21-11-1988 Muhammad Khan accused and Lal Khan accused (since acquitted) were seen while going towards the place of occurrence armed with hatchets whereas Muhammad Shafique deposed that he had seen them while returning to their houses armed with hatchets; their evidence is also based on suspicion; it is due to speculation and suspicion that for the first time they revealed this fact before the police on 1-12-1988 though they had been visiting the spot but kept silent.
25. The contention that the accused was arrested on 25-11-1988 is not without force; P.W.17 Lal Khan, the complainant on cross-examination deposed that Muhammad Khan accused, "however, was arrested on the 4th or 5th day of occurrence" proves it, indeed the Magistrate observed all possible precautions as provided under sections 164, 364, Cr.P.C. And the High Court Rules but failed to question the accused as regards his stay with the police and also about torture exerted on him; further since the confessional statement has been retracted, as intended by the learned counsel cannot be relied upon without corroboration from independent source. The learned counsel's contention that "corroboration' as interpreted by their Lordships in case Nazir and 2 others v. The State PLD 1962 SC 269 "does not necessarily mean 'word' of an independent witness, but anything in circumstances" while tends to satisfy Court that witness has spoken truth"; hence in the case in hand the blood stained earth as well as the human blood-stained hatchet recovered at the instance of the accused in corroboratory evidence. The recovery of hatchet P.6 has been rightly discarded by the learned trial Court as according to P.W.15 Muhammad Ayyub S.I. There is no mention about the hatchet P.6 being bloodstained in the statements of Bashir Hussain and Mazhar-ul-Haq P.Ws.; according, to Mazhar-ul-Haq P.W.13, "the hatchet was not stained with anything" and as per statement of P.W.2 Muhammad Pervaiz, Constable the parcel containing blood-stained hatchet was delivered to Aftab Ahmad, Constable P.W. On 2-1-1989 for onward despatch to the Chemical Examiner, but he could not give precisely any reason as to why the parcel was not despatched alongwith parcel containing blood earth on 9-12-1989; creates doubts and the recovery become doubtful. Further, by merely collecting bloodstained earth from the spot by itself will not establish the identity of the accused. Further, the mandatory provision of section 103, Cr.P.C. Was not complied with regard to recovery of hatchet P.6 as none of the residents of the village Dhoke Bank Khal though present at the time of recovery of hatchet P.6 was asked to join recovery proceedings but P.W.12 Bashir Hussain was made a recovery witness who resided at a distance of 40 miles from the place of recovery.
26. It is established on record that the accused was arrested much earlier to 7-12-1988 but was under the illegal custody of the police. In case of Muharram v. The State 1968 PCr.LJ 1550; accused was actually arrested on 28-1-1966, but for unknown reasons his arrest was not shown in investigation . Papers until 30-1-1966 and the confession was recorded on 1-2-1966 which was later on retracted in trial Court, it was held that such confession cannot be regarded as voluntary. The intention of learned counsel for the complainant that mere fact that the accused remained in police custody for about 12 days before making confession could not raise a presumption that such confession was made by inducement, threat or promise and relied upon Muhammad Karim v.
The State PLD 1976 Pesh.
135. The facts of the above case are not applicable to the case in hand as in that case accused was lawfully in the custody of police while in the present case the accused was detained illegally; where torture, inducement and promise cannot be ruled out.
27. It was held in case Javed Iqbal v. The State PLD 1975 Pesh. 230 that even if a retracted confessional statement is found to be voluntary and true, still the demand of prudence would be not to make it the sole basis of convictions unless it is corroborated by some circumstance aliunde.
In case Nadir Hussain v. The Crown 1969 SCM R 442 it was held that retracted confession should not be acted upon unless corroborated in material particulars. Their Lordships in case The State v.
Minhun alias Gul Hussain (sic) laid down the principle which hold the field in even today that 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 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, and lastly where the Investigating Officer fails to give any satisfactory explanation for retaining the accused in his custody for more than the statutory period of 24 hours, which was sufficient as held in case Manzoor v. The State PLD 1973 Lah.
714 to show that undue presence might have been put on him during the period so such confession can be excluded from consideration on this score alone.
28. The outcome of the above discussion is that the prosecution could not prove motive, ocular testimony is contrary to the medico-legal report, the Wajtakkar evidence is highly unbelievable, the recovery of incriminately hatchet P.6 is not beyond shadow of doubt and the confessional statement has not been corroborated as the version of eye-witnesses and of Wajtakkar are apart pole. There is a delay of 10 hours in lodging the F.I.R. The statement of Fateh Khan P.W., an eye- witness was recorded after ten days; similarly the statements of Wajtakkar P.Ws. Were also recorded ten days though they had been visiting the spot regularly and are Khalazad of the deceased the accused Khan Muhammad remained in illegal custody of the police without any explanation and the mandatory provision of section 103, Cr.P.C.. Were not complied with in regard to recovery of P.6.
29. I am of the view that neither the motive for the occurrence had been proved as observed by the trial Judge through direct evidence and the immediate cause of murder had been brought on the record which remained shrouded in mystery. The contention that the accused took plea of which is plausible keeping in view his tender age; carries no weight as it is well-settled principle of eventual jurisprudence that prosecution has to succeed on its own merits and has to prove the case against accused beyond reasonable doubts and every doubt is to be resolved in favour of the accused.
As the prosecution story is based upon suspicion, speculations and presumptions, it is well-settled principle of law that suspicion by itself, however strong it may be is not sufficient to take place of proof and warrant a finding of guilt of the accused. The prosecution has to succeed on its own merits and doubt is to be resolved in favour of the accused as held by their Lordships of the Supreme Court in the case of Muhammad and another v. The State 1994 SCM R 1614.
' In my view, on the evidence in this case, as it stands, there is no satisfactory legal basis on which conviction of the appellant can safely be maintained. I am, therefore, constrained to set aside the conviction and sentence of the appellant by accepting this appeal. The appellant is on bail, his bail bond shall stand discharged.