' JAWAID NAWAZ KHAN GANDAPUR, J.--- Respondent/accused, Mahboob-ur-Rehman son of Ghulam Nabi resident of Berot Kalan, Police Station Bakot, Tehsil and District Abbottabad was tried by Sessions Judge, Abbottabad for having killed Muhammad Ismail son of Abdul Karim, resident of Batangi, Azad Kashmir, with a stone, on 16-10-1987 at "Maghrib time" near a "village Bandi' situated within the limits of Berot. He was accordingly charged for having committed an offence punishable under section 302, P.P.C. After the conclusion of the trial, the learned Sessions Judge by his judgment, dated 8-10-1989 acquitted the respondent/accused. Not content with the order of acquittal, the State has filed the present appeal.
2. Briefly stated the prosecution story, as disclosed at the trial, is that A.S.I. Talab Hussain (P.W.10) was present in Police Station Bakot (in his capacity as Investigating Head Constable) when in the meantime Haji Muhammad Azam, Chairman, Union Council Berot (P.W.3) turned up at the said police station and informed the said Head Constable (P.W.10) that a dead body, of an unknown person, was lying in a field near the village Bandi. On the receipt of this information the said Head Constable (P.W.10), rushed to the spot. He was accompanied by Haji Muhammad Azim (P.W.3).
There many persons were present, including Aziz-ur-Rehman (P.W.5). Of them P.W.5 told the Head Constable that he had spotted, in the first instance, a dead body in his field lying under bundle of grass. As such he raised alarm and informed the abovenamed Chairman about the unfortunate event.
3. It may be mentioned here that the dead body could not be identified. The Head Constable, accordingly, prepared Murasila (Exh.P.A./1) and sent the same to Police Station Bakot, where on its strength F.I.R. (Exh.PA.) was registered.
4. The Head Constable prepared injury sheet (Exh.P.W.2/2) and inquest report (Exh.P.W.10/1) of the deceased and sent the dead body to mortuary, where, autopsy was conducted by Dr. Nasir Kazmi (P.W.2). During the spot inspection he recovered one blood-stained handkerchief (Exh.P.1) and also a pair of Chappal vide recovery memo. Exh.P.R./1. He also took into his possession a blood-stained stone (Exh.P.3) and a few drops of blood with small grass blades, vide recovery memo. Exh.P.R./2 in the presence of P.Ws. Muhammad Azam and Aziz-ur-Rehman.
5. Until 20-10-1987, no clue of the real culprit could be found/secured nor was any suspicion expressed against any particular person.
6. Thereafter, the investigation was taken over by S.I. Muhammad Naeem (P.W.11). He took into his possession the blood-stained clothes of the deceased when the same were brought by a constable after the post-mortem examination. He then arrested the respondent/accused on 22- 10-1987 and as a result of interrogation, the accused pointed out the place where the murder was committed and also the place where he had thrown the identity card of the accused after tearing the same. The accused also produced, before the Investigating Officer, a bottle of Tibet Cream (Exh.P.7), Rs,520 (Exh.P.8) and a Seiko watch (Exh.P.6) from his residential house alleging that all these items belonged to the deceased. The S.H.O. Took all these articles, alongwith the pieces of identity card, into his possession vide recovery memo. Exh.P.R.5, in the presence of Dilpazir (P.W.4).
7. The S.H.O./Investigating Officer produced the accused before Mr. Shafiq-ur-Rehman, Magistrate 1st Class (P.W.1) for recording his confessional statement (Exh.P.W.1/1) on 24-10-1987. Subsequently, the S.H.O. Sent the blood-stained articles to the Chemical Examiner, whose report, received in this behalf, is Exh.P.W.11/4. After the completion of investigation, the local police submitted a charge- sheet under section 302, P.P.C. To the Court concerned for trial.
8. At the trial, the accused pleaded not guilty, professed his innocence and refuted the prosecution allegations and submitted that he was falsely implicated in the case without any reason with ulterior motive. When examined under section 342, Cr.P.C. The respondent/accused asserted that he was arrested on 18-10-1987 from his Village Berot and remained in police custody until 24-10- 1987. He further stated that during the said period he was subjected to duress and coercion and constant threat of torture, if he did not make a confession. Regarding the recoveries, allegedly effected at his pointation, he pleaded that the same were planted against him.
9. The accused, however, did not produce any evidence in his defence nor did he offer himself as a witness to stand the test of cross-examination by the prosecution and to rebut the prosecution allegations made against him.
10. In order to prove its case the prosecution, therefore, produced as many as 11 witnesses, most of whom have already been mentioned above.
11. It may be mentioned, at the very outset, that in the instant case, there is no ocular evidence nor is there any evidence to indicate that the deceased was last seen in the company of accused shortly before the death. No evidence worth the name is available on the file to suggest that the accused was seen, by any body, near about the scene of occurrence. Similarly there is no iota of evidence to show that the accused was spotted, by any one, decamping from the spot. This is one aspect of the case. The other feature of the case in hand is that although the deceased had received extensive fracture of the skull starting from the front of the head to the back on right side, measuring nine inches (9"), together with another depressed fracture of left side of the skull, nevertheless only blood-stained straw and grass and one blood-stained stone were recovered from the spot. In other words no pool of blood was found on the spot. It, therefore, appears that the deceased was killed some where else and his dead body was subsequently thrown in the lands belonging to Aziz-urRehman (P.W.5). Beside this, grass was found over the head of the deceased.
Nowhere has Aziz-ur-Rehman (P.W.5) stated that grass, used as a covering of head of the deceased, was cut by him or was stacked in his field prior to the occurrence. In these circumstances, the venue of the occurrence cannot be ascertained with legal certitude. It is because the throwing of dead body in the filed of the witness in question (P.W.5) might have smeared the stone and the grass with blood, already lying there. It cannot be equally held with certainty that the stone recovered from the spot was in fact used in the commission of the crime because the second injury on skull did not tally in size with the first injury on right side of skull as indicated above. Besides the two skull injuries, as many as eight, other abrasions have been found on various parts of the dead body of the deceased with different sizes. The irresistible conclusion, therefore, would be that the deceased was done to death by more than two different assailants armed with separate blunt weapons. All this is inconsistent with the contents of pointation memo.
(Exh.P.R./4) wherein it has been alleged as under:-- {{URDU TEXT}}
12. Needless to mention that in the above mentioned memo. The seat of injury has not been disclosed at all. The case forged against the accused by the prosecution, on the basis of this memo. (Exh.P.R./4), allegedly prepared at the instance of the accused, is further shattered/falsified by the medical evidence. This contradiction/conflict has not been resolved at all. It looks that the place of occurrence was already in the knowledge of the police and pointation, without any recovery, cannot be called/termed as "re-discovery' by any stretch of imagination. This circumstance cannot advance the prosecution case an inch forwarded and therefore, it must he brushed aside.
13. It is interesting to note that much has been made of the recovery of three pieces (Exh.P.5) of identity card of the deceased from the bushes situated near road side as well as of Seiko Watch (Exh.P.6), a bottle of Tibet Cream (Exh.P.7) containing therein and currency note of Rs,520, recovered from the box which was lying inside the house of the respondent/accused at the instance and pointation of the accused/respondent on 22-10-1987. No person, worth the name, has turned up to say that these articles either belonged to the deceased or were found on the person of the deceased before his death. Significantly no attempt, whatsoever, was made by the prosecution to get these articles identified, as that of the deceased by his son Jawaid Iqbal (P.W.8), when he put himself in the witness-box, to identify the dead body of the deceased. These articles, it may be mentioned with advantage, are of common pattern and are used/worn by villagers. No special marks of identification existed on these articles to show that these were owned/possessed by the deceased. There is nothing on the record to prove that these articles were taken away from the person or the dead body of the deceased before/after his death. Again there is clear contradiction between the evidence of Dilpazir (P.W.4) and S.1. Muhammad Naeem S.H.O. (P.W.11) regarding the place of recovery of the pieces of identity card (Exh.P.5). The former says that these pieces were recovered from the house of the accused/respondent, whereas S.H.O. Muhammad Naeem (P.W.11) stated that these were recovered from the bushes near the road side. This contradiction has, undoubtedly, made the whole recovery highly doubtful, as evidenced vide Exh.P.R.1/5. No reliance can, therefore, be placed on such a suspicious recovery and as such, we, hereby discard the same from our consideration.
14. It is now well-established rule of law that a conviction for murder cannot be allowed unless fact of death is proved either by direct evidence of A unimpeachable nature or by circumstantial evidence of strong character. The evidence produced in respect of the recoveries, relied upon by the prosecution, lacks the requisite standard/quality and, therefore, cannot be pressed against the accused to connect him with the commission of the crime.
15. By process of elimination, there remains only the confessional statement (Exh.P.W.1/1) of the accused/respondent which needs to be considered by us carefully. It is an admitted fact that the accused was arrested in this case on 20-10-1987. He pointed out the place of murder to the Investigating Officer on 20-10-1987. On that very day, the accused/respondent took the Investigating Officer to his house and produced before him certain articles (as mentioned above) which allegedly belonged to the deceased. The fact, if taken to be true, would show that the accused/respondent had virtually admitted his guilt before the Investigating Officer on the day of his arrest. The Investigating Officer did not produce the accused before the Magistrate for getting his confessional statement recorded on that day. He, on the other hand, produced the accused before the Magistrate on the 5th day of Nis arrest for the said purpose. Indeed the Investigating officer has nowhere offered any explanation for the said inordinate delay in producing the accused before the Magistrate for recording his confession. We are, therefore, of the considered view that there was no evidence worth the name, connecting the accused with the crime, before the said confession. Over and above this, the Magistrate who recorded the confessional statement of the accused, also did not bother to probe into the matter as to why the accused did not confess his guilt before him on the day when he was produced before him by the Investigating Officer for obtaining his remand. There is a chain of judicial pronouncements wherein it has been held time and again that where there was an undue delay in the recording of judicial confession, as was in the case in hand, no reliance could be placed on the same as it had no evidentiary value at all.
16. Again, the confession made by the accused is in minute detail, as to the facts of the prosecution case as a whole, suiting all the links. This very circumstance, by itself, gives an idea that such a confession is definitely the result of tutoring which must have emanated from the investigating agency which is well-conversant with the requirements of law. It may be stated here that, in our opinion, the confessional statement is inherently defective as it has serious flaws, for instances, it speaks of only two injuries whereas the doctor found 8 other wounds on the dead body of the deceased. This mystery has not been unfolded as it has not been explained as to who had caused those injuries. Similarly the mode and the manner in which these injuries were inflicted has not been explained. Same is true about the weapons used for inflicting these injuries.
17. Even the motive alleged in the confession is too hazy and far-fetched and can hardly inspire confidence. It could not have prompted the accused to kill the deceased straightaway. The story given in the confession is more of a fiction than reality. In the circumstances we cannot avoid the conclusion that the retracted confession is not supported by any credible evidence. On the contrary, it stands contradicted not only by the medical evidence but also by the other P.Ws. And other circumstances highlighted above. We are, therefore, of the view that the confessional statement was rightly rejected by the learned Sessions Judge.
18. Needless to mention that where, in acquitting the accused, the trial E Court has not violated any rule of law and has not ignored any material fact, while appreciating the evidence on record, its inference did not suffer from any legal or factual infirmity, has correctly commented on the credibility of witnesses and has evaluated the circumstantial evidence in detail, then in that case there is no justification for us to interfere with the order of acquittal even if a different view could be taken, though it is not so possible in this case.
19. For the reasons enumerated above we are of the considered opinion that the State appeal merits no consideration and the same is accordingly dismissed.
20. The above are the reasons for the short order announced on 24-11-1994.