' MIAN MUHAMMAD AJMAL, J.--- State through the Advocate-General N.-W.F.P. Has filed this appeal under section 417, Cr.P.C. Against the judgment of Sessions Judge, Abbottabad, dated 7-12-1989 whereby he acquitted the respondents of the charges under section 302/202/109, P.P.C., in case F.I.R. No,784, dated 13-9-1988 Police Station Cant. Abbottabad.
2. Muhammad Haroon complainant on 9-9-1988 at 12-30 noon reported to P.W.7 in his house which was recorded at Mad. No,18 of the daily diary, Police Post City Abbottabad (Exh.P.W.7/1), that due to "Juma" holiday he was sleeping in his house and was awakened by his wife Mst. Rukhsana Bibi at 12-00 noon who informed him that his driver Wali Muhammad due to fire shot was lying in injured condition in his room. On receiving this information he went to the room of the driver and found him in injured condition and Mst. Zuhra Bibi wife of Abdur Rehman resident of Phullan Di-Bandi alongwith her baby was sitting beside him and weeping, and a .12 bore shotgun belonging to late Ghulam Muhammad (uncle of complainant) was also lying there. He raised alarm on which his neighbored' driver Jalal Baba reached there. He informed the police Post City Abbottabad on telephone regarding the occurrence. He, however, did not charge anybody in his report for the murder of Wali Muhammad.
3. Mian Jawaid Hussain S.I. (P.W.7) recorded the report of Muhammad Haroon in daily diary, dated 9-9-1988 (Exh.P.W.7/1 and sought permission for inquiry under section 156(3), Cr.P.C. Which was allowed and the inquiry was conducted by him. Thereafter he got incorporated the report into F.I.R.
(Exh.P.A) and proceed to the spot, prepared site plan (Exh.P.E.), recovered shot-gun (Exh.P.A.), a piece of cloth blood-stained (Exh.P.3), two empties (Exh.P.2) one teapot along with two cups (Exh.P.4), one pair of boots (Exh.P.5), one pair of shoes (Exh.P.6) vide recovery memo. (Exh.P.W.2/1).
' He also recovered one shirt (Exh.P.7), one jacket (Exh.P.8) belonging to deceased having cut marks and pellets (Exh.P.9) one cartridge (Exh.P.10) vide recovery memo. Exh.P.W.2/2. He also took into possession Rs,2,276 (Exh.P.11) one match box (Exh.P.12), Cigarettes packet (Exh.P.13), Driving License (Exh.P.14) one Key of Motor Car (Exh.P.15) vide recovery memo. Exh.P.W.2/3. He prepared injury sheet (Exh.P.W.7/4) and sent the dead body for post-mortem examination, prepared the inquest report (Exh.P.W.7/6). He also took into possession two notes of Rs,10 (Exh.P.16) vide recovery memo.
Exh.P.W.3/1. He prepared the site plan on the potation of Khisro and also got recorded the confessional statements of Mst. Zuhra Bibi and Khisro.
4. Dr. Amjad Rehman, Medical Officer D.H.Q. Hospital, Abbottabad (P.W.6) on 9-9-1988 at 4-30 p.m.
Conducted the post-mortem examination of Wali Muhammad and found the following injuries on his person:-- External examination: A wound on the left side of umbilicus measuring 7 x 6 c.m. Margins were reged up. Tissue was present. No blackening or other marks were loss seen around the wound.
Internal examination: ' Left iliac vessels injured, walls of the abdomen were found injured. Small intestines in the left side were found injured and cut into pieces. Descending colon injured and cut into pieces. Left kidney shows small hole of pellet wound. Left iliac bone torn into pieces.
' In the opinion of the doctor the fire shots was made from front slightly and from close range.
Probable time that elapsed between injuries and death was 3 to 4 hours and between death and post-mortem examination 1-1/2 hours.
5. Khan Afsar IHC (P.W.2) is marginal witness to recovery memo. Exh.P.W.2/1 vide whin the Investigating Officer took into possession one single barrel shotgun (Exh.P.1) from the house of Haroon from the room of Wali Muhammad deceased along with one empty cartridge (Exh.P.2) giving fresh smell of discharge and blood-stained clothes (Exh.P.3), cups (Exh.P.4), pair of shoes (Exh.P.5), vide recovery memo. Exh.P.W.2/2 and Exh.P.W.2/3. Ayaz Khan, S.I. (P.W.3) is marginal witness to recovery memo. Exh.P.W.3/1 vide which the Investigating Officer had taken into his possession two currency notes of Rs,10 from Anwar Zeb son of accused Mst. Zuhra Bibi. Sadiq Hussain (P.W.4) incorporated the report into F.I.R. Exh.P.A. And recorded the statement of P.W. Ali Asghar under section 164, Cr.P.C. Muhammad Haroon (P.W.5) reiterated the story as already reported by him. Mst. Farzana (P.W.8) stated that on the day of occurrence, she was preparing milk for her child and in the meanwhile a lady came there and inquired about her husband and also disclosed that their driver has shot himself dead. She informed her brother-in-law who went out and found Wali Muhammad lying in injured condition. He told her sister-in-law that a woman had fired at him. He asked to take off his shoes which were removed by the woman present there.
Thereafter his brother-in-law informed the police on telephone. After conclusion of the prosecution evidence both the accused were examined under section 342, Cr.P.C. Who claimed innocence and false charge. The learned Sessions Judge, Abbottabad on appreciation of available evidence while giving benefit of doubt acquitted them.
6. Learned Assistant Advocate-General contended that respondent No,1 was associated with the investigation of the case under section 156(3), Cr.P.C. And was arrested on 13-9-1988. She thereafter confessed her guilt on 14-9-1988 inculpating her with the omission of the crime. He further submitted that the presence of the accused-respondents in the house of the complainant is proved by their exculpatory confessional statements which are fully corroborated by other evidence on the record, hence their acquittal deserves to be set aside and they be convicted and sentenced
7. Learned counsel for the respondents on the other hand submitted that the so-called confession was retracted immediately and the same being an extracted and procured one through third degree method cannot be relied upon. He submitted that the gun found from the spot with which the deceased was done to death belonged to the uncle of P.W. Muhammad Harpoon which would suggest that the offence was not committed by the appellants but by Muhammad Harpoon etc. And in this regard he referred to the applications of the brother of deceased namely, Muhammad Ashraf which were addressed to the Deputy Inspector-General of Police and Senior Superintendent of Police, Abbottabad, wherein he charged Muhammad Harpoon and other for the murder of his brother. He vehemently defended the acquittal order.
8. After hearing the learned counsel for the parties and going through the record of the case we are of the view that there is no sufficient material on the record which could warrant the interference into the acquittal order. The perusal of the death certificate would show that the deceased when examined by the doctor at 1-15 p.m., was fully conscious and well-oriented. His pulse was recorded 80 per minute whereas the B.P. Was 100/60. According to the doctor the patient's statements were asked to arrange blood immediately so that laparotomy could be done but they took long time and by the time the blood was arranged, the patient was clinically in shock, hence laprotomy could not be done and he died due to excessive bleeding. This would show the gross negligence on the part of the attendants which contributed to the death of the deceased.
Had the deceased been provided timely medical aid, there might have been a chance of his survival. We are at a loss to understand as to why the police or for that matter the doctor did not record the statement of the injured person who was fully capable of doing so. Mst. Zuhra Bibi, appellant had gone to the house of P.W. Muhammad Haroon only to lodge a protest against the deceased for his inducing a raid on her house but there she, after the murder of Wali Muhammad was taken into custody. Mian Javed Hussain, S.I. (P.W.7) admitted that she was associated with the investigation of the case from 9-9-1988 to 13-9-1988 and was not produced before any Magistrate.
He stated that he has read Police Rule 26.18-A, which provides that whenever a woman is associated in the investigation, the Deputy Inspector-General and Senior Superintendent of Police have to be informed through special diary but he did not mention the fact of information having conveyed to Deputy Inspector-General of Police and Senior Superintendent of Police in the daily diary. Section 46, Cr.P.C. Provide that the Police Officer or other person making the arrest shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action. If any person to be arrested surrenders or submits to the custody either by word or action, he shall be deemed to be under arrest and such a person under Article 10 of the Constitution of Pakistan read with section 61 of Cr.P.C. Has to be produced before a Magistrate within a period of twenty-four hours, and no person can be detained in custody beyond the said period without the authority of a Magistrate. And if anybody is detained without such authority, his confinement is detained without such authority, his confinement shall be illegal and without any lawful authority. Mst. Zuhra Bibi was produced before a Magistrate on 14-9-1988 who before recording her confessional statement filled in routine the answers in Photostat form of memorandum of enquiry which contained the last question about her remaining in police custody and the answer recorded is two days. Whereas she in her application (Exh.D.1) whereby she retracted from her confessional statement stated that she was taken into custody on eventful day and detained along with her milk suckling baby in police post where she was subjected to torture to confess the murder. It is the duty of a Magistrate to check and verify factual position from the record viza-a-viza the answers of the confessor to see whether the confessor is making a voluntary statement or is simply towing the police line. Since the confession was got recorded during illegal confinement, hence it stands vitiated and has no legal A value at all. It has become common practice with the police that they take a person into custody under the garb of associating him with the investigation of the case without following the procedure laid down in Police Rules, and after achieving their objectives, they show the detente's arrest in the record according to their own convenience. This practice is highly deprecated being against the fundamental rights of a citizen as embodied in Article 10 of the Constitution of Islamic Republic of Pakistan and the law enunciated in section 61 of the Code of Criminal Procedure, thus a person taken into control in a case shall be deemed to be under arrest from the day on which he submits to or is taken into custody by the police and has to be produced before a Magistrate within twenty-four hours, failing which his custody shall be illegal and without lawful authority. So far as confession of Khisro appellant No,2 is concerned, it too is no better than the confession of his co-accused, appellant No,1 . Moreover his confessional statement being self-explanatory; cannot be regarded as a confession.
9. Muhammad Haroon (P.W.5) complainant has not conducted in a befitting and prudent manner in the whole affair. In ordinary course, after the receipt' of information of the occurrence, he should have gone to the police station to lodge the report about the same but instead he informed police post city on telephone, whereupon Mian Jawaid Hussain S.I. (P.W.7) went to the spot where he recorded the report of the complainant (P.W.5) in daily diary at Mad 18, which after inquiry was incorporated into F.I.R. Exh.P.A. What prevented the complainant in reporting the matter in police station, if seen in the light of the applications of Muhammad Ashraf brother of the deceased, would suggest that he had guilty conscious and apprehended his own and his brother's involvement in the crime? The investigation in the case does not appear to have been properly and faithfully conducted as the oppressed ones were kept in illegal confinement and were made to confess whereas the privileged were set escort free. The crime weapon belonged to the uncle of the complainant which according to the one confessor, was brought by the deceased from the upper story while according to the other, deceased went inside the house and brought the gun. Whereas complainant stated that he had kept the .12 bore shotgun in a room of servant quarter but his statement is falsified by the site plan where no servant quarter has been shown but there is only a room for driver adjacent to the gate. His statement is also not worth credence with regard to keeping the gun in servant quarter as legally it is not permissible to allow anybody to keep or retain the gun of another unless specially authorized by the competent authority.
10. It is still a mystery that when the gun was brought by the deceased himself, how it reached the hands of the lady accused. According to the postmortem report deceased was a young man having strong body aged about 36/40 years whereas Zuhra Bibi accused who was younger than the deceased, as her age recorded by Magistrate was 25/26 years while trial Court assessed it 35 years, could snatch the gun from a stronger man.
11. Admittedly there is no direct or ocular evidence against the accused and the confessional statements have been discarded having no legal value, thus prosecution failed to prove the charges against the appellants. The trial Court has properly appreciated the material on the record and the conclusion drawn by it seems to be well-reasoned and well-founded to which no exception Is taken. Consequently this appeal is dismissed.