JUDGMENT.
Muhammad Parvez son of Dosham Khan, accused-appellant herein has preferred this Criminal Appeal No.28/91 challenging the judgment/order dated 17-8-1991 of Additional Sessions Judge-II, Haripur, who while convicting the appellant under section 302, P.P.C. Sentenced him to life imprisonment and a fine of Rs.10,000 or in default 2 years' R.I. And further payment of Rs.20,000 as compensation payable to the heirs of deceased or to suffer further 6 months'. S.I.
Haji Ghulam Sarwar, complainant of F.I.R. No.153 dated 11-3-1989, Police Station, Haripur, also filed Criminal Revision No.35/91 against the same judgment, praying for enhancement of sentence of life imprisonment awarded to the appellant to that of extreme penalty of death prescribed by law under section 302, P.P.C. For the offence of murder.
We propose to dispose of both the criminal appeal and revision by this single judgment.
2. The facts of the case are that Haji Ghulam Sarwar on 11-3-1989 at 8-30 p.m. Made a report to Saiful Malook A.S.I. In Civil Hospital, Haripur to the effect that Mehboob Elahi son of Ghulam Muhammad alongwith Azam son of Abdul Qadoos and one Jamrooz Afghan Refugee were his servants at the grocery shop. Mehboob Elahi, however, used to run the entire business on his behalf.
That at 7-30 p.m. He was present at his home when Muhammad Aslam informed him that some one had injured his servant, namely, Mehboob Elahi who is being taken to hospital. He rushed to the hospital and found his servant Mehboob Elahi dead having stab wound on left side of his abdomen. He, however, did not charge anybody in his report.
3. Saiful Malook, A.S.I. Police Station, Haripur P.W.13, recorded the report of Haji Ghulam Sarwar on 11- 3-1989 at 20-30 hours in the shape of Murasila and sent the same to Police Station, Haripur for the registration of the case. The Murasila Exh. PA/1 was incorporated into FI.R: Exh. PA. He prepared the injury sheet of deceased Mehboob Elahi Exh. P.W. 13/1, inquest report Exh. PW 13/2 and on 12-3-1989 prepared site plan, Exh. PB. He also took into possession Desi Ghee weighing 400 grams and 70 grams vide recovery memo. Exh.P.I/2. He also took into possession blood-stained jacket Exh.Pl, shirt Exh. P2, bearing cut marks, Jercy Exh. P3 having corresponding cut marks and woollen Banyan Exh.
P4. Vide recovery memo. Exh. P.W./1. He sent the jacket of the deceased to the Forensic Science Laboratory and the report of the Expert is Exh. P.W. 13/4 which is positive. During spot inspection he took into possession Rs.66,000 cash which was handed over to Haji Ghulam Sarwar the owner of the shop. He also recorded the statements of the P.Ws. And then the case was handed over to S.H.O. Haripur.
4. Dr. Ikramullah Medical Officer, Civil Hospital, Haripur, P.W. 11 conducted the post-mortem examination on the dead body of Mehboob Elahi deceased on 12-3-1989 at 7-25 a.m. And found the following injuries: On External Examination: A stab wound of size 2-1/2" x 2" x 3" in the left iliac fossa (lower left quadrant of abdomen).
On Internal Examination: Blood vessels mesenteric. Blood vessels, abdominal wall and peritoneum injured, stomach and its contents intact and containing food residue. Large intestine was also injured. According. To his opinion the death has occurred due to injury to the large intestine, mesentery and major blood vessels which in turn caused the haemorrhage and shock.
5. Ghulam Shabbir son of Roshan Din P.W.2 was marginal witness of recovery memo. Exh.PW-2/1 and recovery memo. Exh.PW-2/2 vide which the Investigating Officer took into possession the clothes of the accused appellant and a Chhuri, the alleged crime weapon. Jamroz son of Noor Alam P.W.3 stated that he and Azam were employed in the shop for weighing materials while Shamroz, Parvez and Dusham Khan were working as labourer in the same shop. All the labourers used to attend the shop at 7-00 p.m. And leave at 6-00 p.m. He stated that the accused-appellant alongwith Shamroz and Dusham Khan received their wages at 6-00 p.m. And left the shop. On the day of occurrence at about 4-00 p.m. Abdul Shakoor agency holder of `Ghee' came to the shop and had taken Rs.30,000 from Mehboob Elahi. One Gulzar had brought `Desi Ghee' to the shop on that very day and left the shop at 6-00 p.m. And on the next morning he came to know that Mehboob Elahi was murdered due to stabbing. He stated that after many days of the occurrence he came to know that Mehboob Elahi had been stabbed by Parvez, the accused-appellant.
Muhammad Sabir A.S.I., P.W.5 on receipt of Murasila Exh. PA/1 incorporated the same into F.I.R. Exh.
PA. Sarwar son of Walayat Khan P.W.7 stated that he run a vegetable shop in Sherapwala Gate Darband Addah. On the fateful day he went to the shop of his brother Said Rosan situated in front of the shop of the deceased, he heard hue and cry of Mehboob Elahi deceased crying that he had been stabbed and that the culprit had run away. He alongwith brother of the accused appellant put the deceased in a Suzuki and took him to Civil Hospital, Haripur. In his cross-examination he, however, stated that he did not state before the police that the brother of the present accused had taken Mehboob Elahi then injured to the hospital in a Suzuki. Muhammad Aslam son of Mir Hussain P.W. 8, stated that his servant Ilam Din told him that a quarrel had taken place with ~Mehboob Elahi who in injured condition was placed on a Suzuki by Sarwar and Tahir Khan. He rushed to the house of Haji Ghulam Sarwar and Informed him about the occurrence. He stated that the present appellant was arrested by the police at the time of funeral ceremony of the deceased and was kept in the police custody for 10/11 days. He, however, stated that although his shop in contiguous to the shop where Mehboob Elahi was stabbed but he is not eye-witness of the occurrence.
Ihsanullah Khan EAC P.W. 9 stated that on 21-3-1989 he recorded the confessional statement Exh.PW 9/1 of Parvaz accused-appellant after observing all the legal formalities. Haji Abdul Shakoor son of Haji Abdul Sattar P.W.12 stated that he is dealer of Ghee Corporation of Pakistan and supply Dalda Ghee to different persons- in the bazar. On the fateful day Mehboob Elahi deceased informed him to take Rs.30,000 from him which he took in presence of Shamarez, Parvez (present accused-appellant) and at evening time he heard that Mehboob Elahi has been murdered. Safdar Zaman. A.S.I. P.W.14 conducted partial investigation, arrested the accused-appellant and on his pointation recovered weapon of offence `Chhuri' Exh.P9. He also prepared the sketch Exh.PW-14/1 to this effect. On 20-3-1989 the accused-- appellant also led the police party in the presence of marginal witnesses to the upper story of his house and produced 9halwar Exh.P6, shirt Exh.P7 and Chaddar Exh.P8, which he took into possession vide recovery memo. Exh.PA2/1. He also prepared the sketch of these places Exh.PW-14/2 wherefrom the aforesaid articles were recovered and recorded the statement of the P.Ws. In his cross-examination he, however, stated that he arrested the accused-appellant on 20-3-1989 and not on 12-3-1989. He stated that the `Chhuri' was recovered from an open place situated in a thick Abadi and at that time it was not blood-stained.
Mir Zaman Sub-Inspector Crime Branch, Peshawar P.W.10, stated that during those days he was posted as S.H.O. Police Station, Haripur. He partly investigated the case and submitted complete challan against the accused-appellant. The accused-appellant; however, did not plead guilty and claimed trial. The learned Additional Sessions Judge-II, Haripur taking into consideration the confessional statement of the accused --appellant sentenced him to suffer imprisonment for life and a fine of Rs.10,000 or in default of payment of fine to suffer further 2 years' R.I. He was also sentenced to pay Rs.20,000 as compensation to the legal heirs of the deceased or in default to suffer further 6 months' S.I.
6. Learned counsel for the appellant contended that admittedly the occurrence is an unwitnessed one and. None was specifically charged for the offence in the F.I.R. The complainant Haji Ghulam Sarwar P.W.4 was himself not present at the spot and he lodged the report after the receipt of information from Muhammad Aslam P.W.8 about the occurrence. According to the F.I.R. The deceased after having been stabbed by unknown assailant succumbed to his injury on the way to the. Hospital. He submitted that the only evidence in the case is the confessional statement which was recorded on 21st March, 19$9. He questioned its voluntariness and genuineness as according to him the same was recorded after keeping the accused-appellant in police custody for 10/11 days. However, it was retracted--on the very next day of its recording. As far as the recovery of `Chhuri' is concerned he stated that according to the recovery memo. Exh.PW-2/2 the same was recovered at the instance of the accused from a vacant plot and the recovery was witnessed by one Ghulam Shabbir P.W.2 who in his cross-examination has admitted that he belongs to Kot Najibullah which was at the distance of 10 miles from the place of occurrence. According to the recovery memo. The `Chhuri' was allegedly recovered on 20-3-1989 whereas according to the witness it was recovered after 3/4 days of the occurrence. He also admitted that the place of recovery of `Chhuri was open and accessible to everybody. Haji Ghulam Sarwar complainant P.W.4 stated that accused Parvaz was-taken into custody by the police on the day of funeral ceremony of the deceased and after 10/13 days he came to know that accused Parvaz made a confessional statement whereas in the memo of inquiry in an answer to a question as to how long he remained in police custody the answer was that since yesterday. He also referred to the statement of Haji Ghulam Sarwar P.W.4 on the record regarding arrest of accused on the day of funeral ceremony of the deceased and' he further stated that the accused remained in the police custody for 10/13 days. P.W.13 Saiful Malook A.S.I. Police Station, Haripur who investigated the case stated that he took into possession Rs.66,000 from the cash box wrapped in three bundles and handed over the same to complainant Haji Ghulam Sarwar. He stated that the scene of occurrence was situated in the bazar which is thickly populated area of Haripur and is surrounded by the shops. According to Safdar Zaman P.W.14 he arrested the accused on 20-3-1989. He denied that the accused was detained in the Police Post City, Haripur from 12-3-1989 to 20-3-1989 and his formal arrest was not shown.
7. The learned counsel for the complainant defended the judgment/order of the trial Court and submitted that the confessional statement is a genuine document and the same can be relied upon and on this sole evidence the conviction can be based. Learned Assistant Advocate--- General also adopted the similar arguments.
8. We have heard the learned counsel for the parties and have gone through the record of the case.
9. It is admitted by both the sides that except for the confessional statement and recovery of `Chhuri' there is no other incriminating evidence connecting the accused appellant with the offence so we are to deal with the confessional statement which needs close scrutiny as the same has been made the sole basis for conviction. Muhammad Aslam P.W. 8 is a material witness in the case as he is one who informed the complainant Haji Ghulam Sarwar P.W.4 about the occurrence.
The informer through and through has been deposing that he was not an eye-witness but- after the occurrence had taken place he had gone to the site and managed to shift the injured to the hospital. Although the injury was received by the deceased on the abdomen and he remained alive according to the doctor for half an hour but there is noting on the record to suggest that the deceased himself had made any dying declaration charging any body for having attempted at his life. The informer and the complainant both have unequivocally stated that the accused was taken into custody by the police on the day on which funeral ceremony of the deceased took place but on the contrary the police has shown his arrest on 20-3-1989. The accused when came into the hands of the police and remained under its surveillance in any form, he would be deemed in police custody and it is illegal and unlawful to keep a person under detention beyond twenty-four hours without orders of a Magistrate under section 167, Cr.P.C. Under section 46, Cr.P.C for arrest of a person, the police official may actually touch or confine the body of a person unless he surrenders to custody either by words or action. If a person submits to police or police takes over the control on him, he would be deemed to be arrested within the meaning of section 46, Cr.P.C. It is thus obvious that the appellant was kept in illegal detention from 12-3-1989 to 20-3-1989 for extortion of confession. The Magistrate who recorded the confessional statement had not made any endeavour to ascertain the actual date of arrest but stated that he recorded the confessional statement in proper manner although he did not put any question except questions contained in the questionnaire to ensure about the voluntariness of the confession. The Magistrate admitted that he did not check the accused physically to find out about the application of any violence by the police. He also did not remember whether he checked the medical certificate about the examination of the accused before recording the confession. He also stated that he did not know whether the accused was Kohistani and could understand `Pashto'. The conduct of the Magistrate shows that he had not observed the required formalities while recording the confessional statement. We have also gone through the statement of the accused recorded under section 161, Cr.P.C. Allegedly made on 20-3-1989 and found that the same corresponds to the statement made before the Magistrate. It seems that Magistrate who had admitted that the accused was produced alongwith the Police file and he had gone through the same, it appears that he has signed a document already prepared by the police. Since the conduct of the police in not showing the formal arrest of the accused from the date on which he was actually arrested vis-a-vis the conduct of the Magistrate who recorded the confessional statement, the confessional statement seems to be tailored and in-genuine document on which the conviction cannot be based.
Moreover the confessional statement does not rind any corroboration from any other quarter. The recovery of Chhuri is also highly doubtful. It has been alleged that Chhuri Exh. P9 was recovered at the instance of the appellant on 20-3-1989 from an open plot of Qazi Khalid. P.W. 2, marginal witness 'of the recovery memo. Exh. PW2/2 admitted that he was, co-villager of the deceased as they belonged to Kot Najibullah which was at a distance of ten miles from the place of occurrence.
He stated that the recoveries were made after 3/4 days of the occurrence whereas on record they have been shown to be on 20-3-1989. The marginal witness also admitted that the place wherefrom the Chhuri was recovered was open and accessible to every body, and at the time of the alleged recovery local people of Mohallah were also present. Although local witnesses were available at the relevant time but they were not made witnesses to the recovery but the co-villager of the deceased who happened to be a resident of a village 10 miles away from the scene of occurrence was made a witness of recovery. Moreover Chhuri which is commonly available was not blood-stained when it was allegedly recovered from an open place accessible to everybody, hence in such circumstances it is not possible to believe the prosecution about the recovery of the alleged weapon of offence. Therefore. This is to be excluded from consideration.
10. In view of the above we would accept this appeal and set aside the conviction of the appellant.
Consequently he should be set at liberty if not wanted in any other case.
11. As the appeal riled by the accused appellant against his conviction has already been accepted, therefore, the Criminal Revision No.35 of 1991 filed for the enhancement of his conviction is dismissed.