' Murtaza son of Akhtar Biland, Jamil son of Aqil Wazir and Hazrat Gul son of Said, all of Zarifee Banda Takht Bhai, Mardan have come up in appeal against the judgment, dated 18-5-1995 of Mr. Mukhtar Ahmed Khan learned Additional Sessions Judge, Mardan at Takht Bhai whereby the appellants having been convicted under section 377, P.P.C. Were sentenced to four years' R.I. And a fine of Rs,1,000 in default of payment whereof they were to suffer imprisonment for three months.
The initial charge also included section 302/34, P.P.C. Under which the learned Judge had acquitted the accused already on 21-11-1994 on account of compromise between the parties.
2. Brief background of the case is that on 15-9-1993 Lal Muhammad son of Said Imam complainant vide Murasila Exh.P.A./1 lodged a report that 11/12 days prior thereto he was present in the house with his son Taj Muhammad aged 13/14 when at 12-00 noon accused Murtaza and Jamil who had friendly terms with Taj Muhammad, came and took Taj Muhammad along. When Taj Muhammad did not return home till evening, the father started search of his son. After about 12 days he heard that a decomposed and eaten up dead body was found in the "Jowar" crop of one Asal Din. He went there to find only a skull and a few human bones. He identified a brown trouser and black "Chappal" to be those of his son.
3. The two persons mentioned in the F.I.R. Alongwith another Hazrat Gul were soon arrested and they made confessional statements before the Magistrate on 30-9-1993 upon which a case was registered under section 302/377/34, P.P.C. Such statements of Jamil, Hazrat Gul and Murtaza are Exh.P.W.1/1, Exh.P.W.1/4 and Exh.P.W.1/7. Let us see as to what evidence remains on record qua the conviction under section 377, P.P.C.
4. The dead body was so decomposed and eaten up by animals that only bones were available and hence no medical opinion was or could have been given regarding the commission or otherwise of offence under section 377, P.P.C. The prosecution is lacking medical evidence in support.
5. Lal Muhammad complainant while appearing as (P.W.8) has also seriously damaged the case of prosecution by denying his having last seen his son in the company of the accused. Although it was a concessional statement in connection with compromise but it could have been recorded in a comparatively much better mode without losing a case qua section 377, P.P.C. Be that as it may, one thing stands settled that the prosecution has also lost the statement of complainant that otherwise might have constituted a piece of "last seen evidence".
6. One Zahir Khan is examined (P.W.2) as another independent witness who had last seen the deceased in the company of the accused. A close scrutiny of the statement of Zahir Khan (P.W.2) would suggest that he has not disclosed as to what was the day when he had last seen the deceased in the company of the accused. This is most material because from that one can compute the time lag between the last seen and the subsequent occurrence. It is a settled principle of law that last seen evidence is weak form of evidence and weaker it becomes when the time lag between occasion of last seen and the subsequent death of the deceased becomes larger and larger. The witness admits that after a few days of his having seen the deceased in the company of the accused, he was told by his children that Taj Muhammad was killed. It is not known as to how many these few days were, because the period of disappearance of the deceased ranged from 11 to 12 days. I, therefore, hold c that the aforesaid gap being quite considerable, it has rendered the last seen evidence still more weak.
7. The conduct of P.W. Zahir Khan is also doubtful and not above board. He has friendly term with the father of the deceased yet, despite having heard about the death, he never disclosed his having had seen the deceased in the company of the accused before any one, not even his father, till his statement was recorded before the Investigating Officer. He kept the information from the father of the deceased merely because the latter had not asked it. Zahir Khan (P.W.2) is not a reliable witness who should be believed in a case of capital charge.
8. Last are the confessional statements of the accused wherein they confessed of having committed sodomy upon the deceased but they are unanimously silent regarding his having been brought from the house of the complainant within the knowledge and view of the latter. There are some material defects in the recording of confessional statements. If one looks into the gravity of the charge, both the charges of murder as well as sodomy are heinous charges, one of them involving moral turpitude as well. In the circumstances, it is not believable that the accused would make a confession in the normal course. Obviously a question would arise in the mind of the Court as to why at all the accused were going to make a confession. Such question was never asked by the learned Magistrate before recording the confessional statement. An answer to such question can provide many clauses regarding the truth or voluntariness of the confessional statements. No such question is asked.
9. Before starting to take down the confessional statements, it is incumbent upon the Magistrate to remove all signs of fear from the mind of th& accused. To assure this, the law requires that the accused be apprised of the fact that whether or not they make a statement before the Magistrate after their having been produced before him, they will not be handed over to police and instead be remanded to judicial custody. The manner in which the question was asked, is very material and requires to be reproduced as follows:-- "Do you understand that after making statement before me, you will not be remanded to police custody but will instead be sent to judicial lock-up?"
' The very manner of the question would suggest that it gives an impression that the statement shall have to be made by the accused and it is only thereafter that they would be sent to the judicial lock-up and not if they do not make a statement. The question is utterly wrong and it does not dispel the fear of police in the mind of the accused. I, therefore, hold that the confessional statements were never voluntary and it bear no evidentiary value.
10. As the confessional statements are the only material evidence used against the appellants and as those are not voluntary, therefore, the conviction cannot be based on such solitary statements which are subsequently retracted at trial.
11. Consequently the appeal is accepted, the impugned conviction and sentence, dated 18-5-1995 is set aside and the appellants Jamil, Hazrat Gul and Murtaza are hereby acquitted of the charge under section 377, P.P.C. If not required to be detained in any other case, they are directed to be released forthwith.