' MALIK HAMID SAEED, J.--- Accused/appellant, namely, Abdur Rahim son of Faqir Zaman, resident of Village Mira Khel, Tehsil and District Bannu was tried under section 302, P.P.C. For committing the murder of Mir Shad Ali Khan by the learned Additional Sessions Judge, Bannu. He was found guilty of the offence and on conviction sentenced to death with a fine of Rs,20,000 to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., or in default to suffer six months' S.I. Through the instant appeal, the convict has challenged his conviction and sentence, while sister and aunt of the deceased have filed Criminal Revision No,10 of 1995 for enhancement of the compensation adequately and the learned trial Judge through Murder Reference No,1 of 1996 seeks the confirmation of death sentence awarded by him to the convict/appellant. Since all the three matters are the outcome of one and the same judgment, therefore, we propose to dispose it of through this single judgment.
2. The prosecution's case in brief is that the deceased (then injured) had lodged a report to Guldar Ali Shah,. A.S.-I. (P.W.4) at District Headquarters Hospital, Bannu which was recorded in shape of a Murasila-cum-dying declaration, wherein the appellant was charged for effectively firing at him when he along with P.W. Ghulam Saeed (now dead) had gone to the fields known as "Zarhi Gul" to attend the call of nature. The Murasila was, thereafter, sent to the Police Station Ghoriwala for registration of the case, as the injured by then had succumbed to the injuries and F.I.R. No,77, dated 27-4-1987 under section 302, P.P.C. Was accordingly registered. The said A.S.-I. Had prepared the injury sheet (Exh.P.M./1) of the injured who was examined by Dr. Nafeesud-Din (P.W.12) and found the following injuries on his person:-- Internal examination:
(1) 10 fire-arm entry wounds on the left lumber region in an area of about 4" (two inches diameter on the back) each measuring about 1/2" x 1/2".
(2) Five fire-arm exit wounds on the front of the left lumber region in an area of about two inches diameter, each measuring about 1/4" x 1/4". These wounds correspond to five entry wounds on the back. Five foreign bodies palpable in the same area. Patient was in shock.
' Nature of injury was kept under observation and probable time between injury and examination was 1 to 4 hours.
3. The injured, however, died on the next day, i,e, 28-4-1987 and the same doctor conducted autopsy on his dead body at 9-00 p.m. And on external examination had found the same injuries as noted above. Internally, his abdomen, walls, peritoneum, stomach and its contents, small and large intestine, spleen and left kidney were found injured.
4. After the occurrence, the appellant remained fugitive from law for a sufficient long period and was arrested on 13-1-1994.
5. In order to prove its case, the prosecution produced thirteen witnesses, besides the solitary eye- witness named Ghulam Saeed who has since been dead and whose statement recorded under section 164, Cr.P.C. During investigation was transferred to the record of present case within the meanings of Article 47 of Qanun-e-Shahadat vide order-sheet, dated 5-12-1994 on the request of Public Prosecutor.
6. Guldar Ali Shah (P.W.4), as stated earlier, had recorded the Murasila- cum-dying declaration on the report of injured deceased, prepared injury-sheet (Exh.P.M./1) and afterwards inquest report (Exh.P.M./2). He had taken into possession a shirt, a Banyan vide recovery memo. Exh.P.C. And one phial containing three pellets sent by the Doctor vide memo. Exh.P.C./1. The case was later on investigated by Amir Sher Khan, S.H.O. (P.W.11) who had prepared the site plan (Exh.P.B.) at the instance of Ghulam Saeed, recorded statements of the P.Ws. Under section 161, Cr.P.C. Took into possession a Chaddar with blood-stained having cut marks belonging to the deceased, .Had applied to the Ilaqa Magistrate for issuance of warrants and proclamations. P.Ws. 1 to 3 are formal in nature while P.W.5 had arrested the appellant and submitted supplementary challan against him. P.W.6 had deposed about ascendance of the accused while P.W.7 had witnessed the recovery memo. Exh.P.C./2. Abdul Rahim Khan is a witness to recovery memo. Exh.P.C. While P.W.9. Namely, Rashid Ahmad Qasuria had recorded confessional statement of the accused. P.Ws.10 and 11 had partly investigated the case.
7. In his statement recorded under section 342, Cr.P.C. The appellant denied the charge while under section 340(2), Cr.P.C. He claimed to be innocent and falsely roped-in with the connivance of elders of his village with whom he had strained relations.
8. The prosecution had mainly relied upon the dying declaration of the deceased then injured and confessional statement of the appellant.
9. Mr. Dost Muhammad Khan, Advocate representing the appellant, while arguing the case on 18-3- 1997 had drawn our attention to Application No,10 of 1997 placed on file wherein request for requisitioning of record from District Jail, Banriu was made to verify .The entry and exit of the appellant to the extent that whether after recording his confessional statement, the appellant was remanded to judicial lock-up. Entry of the appellant in District Jail, Bannu on 18-1-1994 was found available, and its copy placed on record. His main thrust was that the dying declaration of the deceased then injured and confessional statement of the accused/appellant are not in consonance with the requirements of law on the subject being based on wrong footings and hence the conclusion drawn by the learned trial Judge was challenged to be the result of miscarriage of justice.
10. In reply, learned counsel for the State assisted by counsel for the complainant supported the impugned judgment and opposed the contentions of the appellant's counsel on variety of grounds. Their stand was that the appellant had confessed the crime coupled with the statement- cum-dying declaration made by the deceased and hence no exception could be taken from the conclusion drawn by the learned trial Judge. Rather, the compensation awarded by the learned trial Judge was prayed to be enhanced adequately.
11. We have minutely considered the respective arguments of the learned counsel for the parties and perused the record carefully.
12. The prosecution's case mainly rests on the dying declaration of the deceased and confessional statement of the appellant.
13. So far the secondary evidence of the solitary eye-witness named Ghulam Saeed (since dead) is concerned which was not considered by the trial Court and discarded on the ground that the questioned statement was though recorded under section 164, Cr.P.C. By a Magistrate but could not be considered under Qanun-e-Shahadat, because neither the witness was cross-examined nor any opportunity was given to the accused to cross-examine him, which was also not disputed by both the State and complainant's counsel and hence was ignored.
14. It is an admitted fact that the occurrence had taken place at dark hours of night, i.e, Prosecution has brought nothing on record about identification of the accused. There is even no reference about any source of light or whether it was a moon-lit night which could be made base for identification of the accused by the deceased and the eye-witness Ghulam Saeed.
15. Statement of said Ghulam Saeed recorded under section 164, Cr.P.C. Is rightly discarded by the trial Court because such a statement being devoid of testing the test of cross-examination by the accused could not be transferred at trial so as to use it as against the accused.
16. The site plan prepared at the instance of said Ghulam Saeed (now dead) indicates that the distance between points Nos.1 and 3 was five single paces which comes approximately to thirteen feet. The occurrence is stated to have taken place at dark hours of the night and seat of injury sustained by the deceased is on his back and in such a situation a very serious question arises about identity of the assailant when the doctor had too confirmed the fact that the deceased was fired at from the back. It has been laid down by the Superior Courts that dying declaration by itself is sufficient to sustain conviction thereon provided the following conditions are fulfilled:-
(i) Whether there was no chance of mistaken identity;
(ii) Whether deceased was capable of making statement;
(iii) After how long time after sustaining the injury the deceased made the statement?
(iv) Whether the statement rings true?
(v) Whether it was free from promptness of outside?
(vi) Whether deceased was a man of questionable character?
17. As discussed above, identity of the accused in the given situation was highly doubtful. Firstly because no mode of light was brought on record to confirm the identity of the accused/appellant.
Secondly the distance between the deceased and the accused was shown to be about 12/13 feet and Thirdly that the deceased, according to the medical report, Sustained seat of injuries at his back* which all goes' to create doubt about identification of the assailant. The occurrence, as per site plan, had taken place ( which comes about 8-00 or 8-30 p.m. While the dying declaration was recorded at 10-00 p.m. After about 1-1/2 or 2 hours of the occurrence and according to the post- mortem report, wall, peritoneum, stomach small and large intestines, spleen and left kidney of the deceased were injured. It again appeal to reasons that whether a patient injured in such a condition could retain his senses after a time period of 1-1/2 or 2 hours after receipt of injuries to which the answer would certainly be in negative. Further, at the time of examination of the deceased then injured, he was in shock/coma and could not speak coherently. In such an eventuality, his dying declaration required independent corroboration, which in the present case is lacking. P.W. Ghulam Saeed, in his statement recorded under section 164, Cr.P.C. Had stated that he accompanied the deceased to the hospital but his name does not figure in the medico-legal report and even in his statement recorded under section 161, Cr.P.C. On the same night of occurrence, there is no mention that he had accompanied the deceased to the hospital which give rise to the presumption that he was not present at the time of occurrence.
18. Even the Investigation Officer has not bothered to verify the plea taken by the deceased in his dying declaration that after easing himself he was fired at by the appellant and there is also no reference in the site plan about the presence of stool, which could be made a corroborative piece of evidence for believing Ahe dying declaration.
19. Faced with such a situation like the instant one, the august Supreme Court in its judgment reported as PLD 1965 SC 151 in the case titled Abdul Razik v. The State while dealing with section 32 of Evidence Act (I of 1872) has held as under:-- "(c) Evidence Act (1 of 1872)--- ----S. 32---Dying declaration---Credibility---Believing or disbelieving witness is question merely of 'ordinary human judgment'---Aids to formation of such judgment not available in case of dying declaration---To accept - such statement without considering 'surrounding circumstances', 'totally inconsistent with safe dispensation of justice'---Accepting such statement on consideration of opinions expressed in precedent cases regarding-similar declarations, accompanied by words indicating reliance on 'some principle of law', held, to be 'no less dangerous'---'Careful scrutiny, applied to all physical circumstances' appearing from evidence, only way of arriving at conclusion that statement is worthy of belief."
So, in the circumstances, in our opinion when all the matters are considered minutely, the identity of the accused/appellant becomes highly doubtful and when all the same are taken together, the dying declaration of the deceased too becomes shaky.
20. Leaving aside the above factors, the conviction of the appellant rests only on his confessional statement which was subsequently retracted. Mr. Rashid Ahmad Qasuria (P.W.9) who had recorded his confession had not enquired from the appellant about torture by the police and had deposed that he was posted as S.D.M./A.C., Bannu at the time of recording confessional statement of the appellant who was produced by the police before him with an application (Exh.P.W.5/1) and after observing all the coddle formalities had recorded the said statement. Though the said Magistrate had asked the specific question about period remaining in police custody to which reply of the appellant was "three days", but had not particularly asked him about police torture nor had physically examined him to verify the same fact.
21. In his confessional statement (Exh.P.W.9/1), Abdul Rahim accused disclosed that one Mst. Mino, daughter of Sher Ajaz was his beloved and he had given rupees one and a half lacs through one Attaullah Jan and he was engaged with said Mst. Mino. Mir Shad Ali deceased who was his friend also was in love with the same girl and had asked him (the deceased) to give up the said lady, so that he (deceased) could marry her. Therefore, one day when they both were going for Tamasha, deceased Mir Shad Ali sat for urination and after easing himself when he came towards the accused, he fired at him with .12 bore pistol, with which he was injured and died later on. However, subsequently at the trial, the accused denied having confessed his guilt before any Magistrate rather stated that he was never produced before any Magistrate and while in police custody was brought to Kachery for production before Alizaman Khan, Ilaqa Magistrate where his counsel arrived for his legal aid and the police then took him to S.P. Office and after keeping him there for a sufficient time, his thumb-impression was obtained on certain papers written in English in presence of the officials of the Prosecution Branch.
22. Before us, the learned counsel for the appellant vehemently criticized the manner and method of recording the so-called confessional statement of the appellant on the ground that though the Ilaqa Magistrate was very much present at the relevant time, but even then the accused was produced before P.W.9 who along with the Investigating Officer when questioned during trial were both unable to answer the question of not producing the convict before the Ilaqa Magistrate. He argued that since P.W.9 was not familiar with the "Pushto language", therefore, the confessional statement was recorded with assistance of his Steno but in utter violation of subsection (3) of section 364, Cr.P.C. The learned Magistrate has given no memorandum to this effect with the confessional statement which is necessary for the same. For ready reference, subsection (3) of section 364, Cr.P.C. Is reproduced as under:-- "In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English. If he is sufficiently acquainted with the later language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand and shall be annexed with the record. If Magistrate or Judge is unable to make memorandum as above required, he shall record the reason of such inability."
' He, therefore, objected that the aforementioned requirements of law have not been fulfilled by the Magistrate, as no details whatsoever are given that he does not know Pushto language and as such the services of his Steno wer utilized for the purpose.
23. The contention that conviction of the accused is liable to be set aside on the sole ground that the confessional statement recorded by the Magistrate did not contain a memorandum as required under section 364(3), Cr.P.C. Under which he was bound to give details about recording of the said statement if the same is not recorded by himself is immaterial and not persuaded us as noncompliance of the requirement of writing of a memorandum under section 364(3), Cr.P.C.
Would not cause any prejudice to the accused. It is mandatory for the accused to manifest that in fact he had been prejudiced in his defence resulting in, miscarriage of justice and not only the apprehension of such prejudice. Coming to the present case appellant was represented by a counsel and was aware of the nature of the proceedings against him. After perusal of the record, we are of the view that accused was not prejudiced in any way by not recording of memorandum by the learned Magistrate with the confessional statement. Mere omission to write a memorandum with confessional statement in accordance with the requirement of section 364(3), Cr.P.C. Is curable under section 537, Cr.P.C.
24. It is true that mere remaining in police custody of an accused for some time would not render the evidentiary value of his confession inadmissible, but it is equally true that longer the police custody of an accused lesser the evidentiary value of his confession. Besides, the retracted confession (Exh.P.W.9/1) is not supported by any evidence on material particulars. In this context, it is pertinent to note that in his confession the accused has agitated a motive by stating that he and the deceased both were in love with one Mst. Mino daughter of Sher Ajam, but strangely enough the Investigating Officer had not bothered to explore the same. It was further in his confession that he had paid a sum of Rs, one and half lacs one Attaullah Jan for payment to Sher Ajam, father of his beloved named Mst. Mino, but none of them was brought in the witness-box by the Investigating Officer to confirm the same. Non-verification of the motive by the I Investigating Officer further weakens the prosecution's case.
25. It is a settled law of evidence that unless a retracted confession is not corroborated in material particulars, conviction cannot be based on its basis. Courts are duty-bound, while administering justice in criminal cases and while acting upon retracted confessions to keep in mind all the material points and prevailing circumstances duly corroborated by independent evidence and to satisfy itself that the confessional statement rings true and made voluntarily.
25-A. Applying the aforesaid principle in the case in hand as well, it was incumbent upon the prosecution to have established that the confession made by the appellant was true duly corroborated in material particulars and the evidence brought on record.
26. Taken together the confessional statement of the appellant with the rest of evidence available on record, we are firm in our mind that the prosecution has miserably failed to bring anything on record which could be used as corroborative piece of evidence towards the so-called confession.
Even the alleged eye-witness to the occurrence named Ghulam Saeed mentioned in the dying declaration is not named in the confessional statement of the appellant.
27. Viewing the prosecution's case from whatever angle, we are constrained to hold that the confessional statement of the convict was not true and made voluntarily having no support of circumstantial or direct evidence. The contention of learned counsel for State and complainant that the recoveries of blood-stained Chaddar, five pellets from the dead body of the deceased and statement of P.W.4 could be taken as corroborative evidence towards the confessional statement of the appellant and dying declaration of the deceased. However, we are not inclined to consider it accordingly for the reasons discussed earlier.
28. The argument that the appellant had remained in ascendance for sufficient long time after the occurrence is also devoid of any meritable consideration. Abscondence, per se, is no ground for sustaining conviction thereon, because people do abscond whether charged rightly or wrongly.
Nonetheless, it could be taken into consideration provided there is substantial evidence of unimpeachable character or strong circumstantial evidence to connect the accused with the commission of the offence.
29. For what has been stated above, we are left with no option but to accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge brought against him.
He shall be set at liberty forthwith if not wanted in any other case.
29-A. In consequence, the criminal revision filed for enhancement of the compensation awarded to the legal heirs of the deceased is dismissed and the murder reference submitted for confirmation of the death sentence awarded to the convict-appellant is answered in negative.