DR. FIDA MUHAMMAD KHAN, J.---This appeal jointly filed by Zahir Khan s/o Malik Karim Khan, Faiz Muhammad alias Faizab son of Agha Muhammad and Muhammad Sadiq Shah son of Mola Dad Shah, all residents of Harnai, is directed against the judgment dated 16-5-1996 passed by the learned Additional Sessions Judge, Sibi, whereby he has convicted them all under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the said Ordinance) and sentenced them to death each. A Murder Reference for the same has also been forwarded. We are disposing of both the matters by this single judgment.
2. Briefly stated the case of prosecution as disclosed on the statement of Bakhat Muhammad on 15-1-1995, at about 10.30 p.m., is to the effect that he was employed as a cleaner in Truck No,LIT- 7857 with one Abdul Khaliq driver of the same vehicle. On that night at about 9.15 p.m., he alongwith said Abdul Khaliq and Noor Muhammad was going, in the said truck, to Sakhi Shahbaz Qalandar via Harnai. When they reached near Domale Nadi Pumri Mour Harnai they saw three armed persons having taken positions nearby the curve of mountains. The driver Abdul Khaliq tried to speed up the truck. However, one of the armed persons sitting on the right side of the road fired at the driver who lost control and the truck went off the road down in a Nalah. The driver got injured, with two bullet injuries, one at the frontal portion of neck and the other at right arm. Nazar Muhammad who was sitting beside him also got injured. All the three aforementioned persons had muffled their faces and, therefore, he could not identify them. One of them got into the truck and snatched an amount of Rs,2,000 from the pocket of Nazar Muhammad and then all of them made good their escape. After half an hour a truck reached from Sanjavi side wherein he took both the injured to hospital at Harnai. He lodged F.I.R. at P.S. Harnai where on the basis of his statement, F.I.R. was registered against unknown persons. Investigation was carried out and resultantly the three appellants/accused were arrested and, on completion of necessary investigation, challaned to face the trial.
3. At the trial the prosecution examined eleven witnesses in all. P.W.1 is Bakhat Muhammad. He is the complainant who, with some additions and variations, retierated the statement as mentioned hereinabove. P.W.2 is Dr. Agha Hussain M.O. He made a deposition in the following words:-- "On 15-1-1995 at about 10.30 p.m. deceased Abdul Khaliq was brought to hospital. He was seriously injured. I examined him and found the following external injuries on the person of deceased:-- (1)Bullet wound of exit and entrance on the right radius and viva, Radius and viva were fructured.
(2)There was bullet on the left davicle (above) and exit wound was below the right scapula. The deceased was unconscious. I gave first aid to deceased and referred him to Quetta.
Remarks.--Injuries were grievous. I produce certificate Exh.P/B it is same, correct and bears my signature.
On 15-1-1995 at about 10.30 p.m. injured Nazar Muhammad was also brought to hospital alongwith deceased. I found cut wound on the head about 3" long. I gave first aid to the injured. The injury was simple. The injured and deceased were brought to Hospital by Bakht Muhammad. I produce certificate of Nazar Muhammad Exh.P/C it is same, correct and bears my signature."
P.W.3 is Khair Bux constable. On 16-1-1995 he alongwith Muhammad Aslam A.S.I. and Abdullah Jan constable went to the place of incident where six empties of kalashnikov and blood-stained pieces of mirror of truck were found lying. The same were secured by Muhammad Aslam A.S.I. and recoveries memos. Exh.PD and Exh.PE were prepared. Both the said recovery memos. bear his signatures. P.W.4 is Dr. Muhammad Amin Mengal, Surgeon Medico-legal, Civil Hospital Quetta. On 16-1-1995 he was posted as head Medico-legal Department and Police Surgeon, Civil Hospital Quetta, when Abdul Khaliq had been admitted there in Neuro Surgical ward as a case of gun-shot injury in unconscious condition who, thereafter, on 18-1-1995, expired in the night at 12.30 a.m. and his heirs took away his dead body without post-mortem. On the request of S.H.O. Harnai, he prepared certificate on the basis of ward chart. The probable cause of death was stated by him to be injury to the skull and spine due to fire-arms. He produced certificate Exh.PF which was issued under his signature. P.W.5 is Syed Abdullah Chemical Expert, Forensic Science Laboratory Quetta.
On 24-5-1995 he was posted as Chemical Expert F.S.L. Quetta. On the same day he received one sealed parcel sent by S.H.O. P.S. Harnai. He opened the parcel which was containing one blood- stained mirror. After chemical examination it was found stained with human blood. He issued certificate Exh.PG which bears his signature. P.W.6 is Syed Sultan Shah, Tehsildar Mawand. On 26-2- 1995 he recorded confessional statements of accused Muhammad Sadiq Shah and Faiz Muhammad who had been produced before him by the Harnai police. The said statements are Exh.PJ and Exh.PL. After recording their statements he sent them to judicial lock-up. P.W.7 is Abdul Wahab. He made a deposition in the following words:-- "I do not remember the date. This incident took place about one year back. On the day of incident I alongwith Abdul Khaliq, Nazar Muhammad and Bakht Muhammad driver started in a truck from Sanjawi to Harnai. At the time of incident truck was being driven by Abdul Khaliq. When we reached at Doomila, situated towards Sanjawi from Harnai, it was about 9.30 or 10.00 a.m. night. Two persons were standing at the start of mountain near road while one was standing in a ditch. When we reached there, they started firing upon us from driver side. This firing hit to Abdul Khaliq and the truck was stopped. Nazar Muhammad and Bakht Muhammad alighted from the truck. One person out of these who made firing, came to driver seat and demanded amount from me to whom I replied that I have no money with me. Another truck also reached there, by means of which we took Abdul Khaliq to Harnai Hospital. After some period I was called by S.H.O. and made to identify the culprits in an identification parade. I identified all the three accused persons present in this Court in that parade. Abdul Khaliq succumbed to those injuries later on."
P.W.8 is Abdul Majeed. He is paternal uncle of deceased Abdul Khaliq. He deposed as mentioned hereinunder:-- " The deceased Abdul Khaliq who was a truck driver proceeded from Sinjavi towards Harnai on his truck at about 3.30 a.m. Abdul Wahab and Bakht Muhammad were accompanying Abdul Khaliq while Nazar Muhammad was picked up on the way. At about 11.30 p.m. on the same date we received information through Sinjavi petrol pump that they had received information on telephone that Abdul Khaliq was ambushed on the way by the dacoits and that he had received injuries. It was also informed that injured Abdul Khaliq had been removed to Quetta. I had gone to Quetta where Abdul Khaliq had died on 18-1-1995. After about one month of this incident I received information that the dacoits involved in this incident have been arrested by Harnai police. I had then taken Abdul Wahab my son to Harnai Police Station and requested the police to conduct identification parade of the arrested persons through my son Abdul Wahab. The identification parade was held and Abdul Wahab had picked out three persons. The accused present in Court are the persons who were pick out by Abdul Wahab during the identification parade. The police had recorded my statement."
P.W.9 is Muhammad Aslam A.S.I. On 15-1-1995 at about 10.30 p.m. he received information that one injured person was brought in the hospital at Harnai. He went over there and found that one Abdul Khaliq was injured and was in unconscious condition. He recorded the statement Exh.PA made by Bakhat Muhammad who was accompanying the injured person. He also recorded the statement of Nazar Muhammad injured at the hospital. He prepared memo. Exh.PN in respect of the injuries on the person of Abdul Khaliq. On 16-1-1995 he inspected the place of incident at Harnai Sanjavi road and also prepared a sketch of the place of incident. He recovered six empty bullets of China-made kalashnikov rifle in presence of witnesses Abdullah and Khair Bakhsh and secured the same vide Exh.PD. He also recovered blood-stained pieces of glass from the place of incident and prepared recovery memo. Exh.PE. He separately sealed the empties and the pieces of mirror. On 24-1-1995 he handed over further investigation of the case to S.H.O. Police Mir Ali Nawaz. On 22-2-1995 Mir Ali Nawaz recovered one Kalashnikov rifle P3 from levies muharrir Saeed Ahmad Shah under a recovery memo. which he produced as Exh.PQ. The rifle was made into a parcel in his presence. On 27-5-1995, after receipt of chemical and forensic expert report he prepared the challan Exh.PR in this case which bears his signature. Chemical Examiner's report is Exh.PG. He deposed that the accused present in the Court are the same who were sent up by him under challan. P.W.10 is Muhammad Iqbal Inspector, Forensic Expert Crime Branch Quetta. On 24-1-1996, he made a deposition in the following words:-- "On 25-1-1995 I was posted as Inspector fire-arms expert.... On that date I received two sealed parcels Nos.2 and 3 from S.H.O. police, Harnai. I opened the parcel No,2 which contained six empty bullets of 7.62 MM bore kalashnikove. The parcel No,3 contained one 7.62 MM bore Kalashinkove No,56-36019624 alongwith one magazine. For the purpose of testing I fixed five bullets of 7.62 bore through the kalashnikove received from the S.H.O. Police Harnai, in the laboratory. I then conducted the microscopic examination of the tested/fired bullets with the crime empties, in respect of the marks over them. According to examination the marks on both the varieties of empties were found to be identical. I came to the conclusion that the crime empties contained in parcel No,2, were fired from the kalashnikove contained in parcel No,3. I issued a certificate in this respect, which I produce as Exh.P/S, which is same, correct and bears my signature. After examination I had returned the kalashnikove alongwith crime empties to the concerned S.H.O. police."
P.W.11 is Ali Nawaz S.I. He deposed as mentioned hereinunder:-- "I had taken over the charge as S.H.O. Police Harnai on 24-1-1995. Muhammad Aslam A.S.I. Police had made initial investigation in this case. I took over the investigation of this case on 25-1-1995. On 18-2-1995 one Sharbat who was arrested in a different murder case crime No,29 of 1994 disclosed the names of the accused involved in this case to be Zahir Khan, Muhammad Sadiq Shah and Faiz Muhammad alias Faizak. On 18-2-1995 I arrested accused Zahir Khan and Muhammad Sadiq Shah in this case. Both these accused are present in Court today. The accused Zahir Khan who is levies Jamadar informed me that his service rifle was deposited by his uncle before the levies Muharrir under the order of A.C. Harnai. On 22-2-1995 I wrote a letter to the A.C. that the said rifle may be handed over to me for the purpose of investigation. I produce the letter written by me to the A.C.
Harnai as Exh.P/T which is same. In response to this letter, one Saeed Ahmed Shah levies Muharir produced one Kalashnikove rifle before me which I took into possession before witnesses A.S.I.
Muhammad Aslam and Head constable Khalid Shahzad and prepared such recovery memo. I see the recovery memo. Exh.P/Q which is same, correct and bears my signature as well as the witnesses. I sealed the rifle into parcel. On 22-2-1995 I arrested accused Faiz Muhammad alias Faizak who is present in Court today. On 25-2-1995 I held the identification parade of all the three accused persons through P.W. Abdul Wahab. I had prepared such memorandum which I produce as Exh.P/U which is same, correct and bears my signature as well as signature of witnesses Haibat Khan and Noor Bag. I recorded the statements of accused Muhammad Sadiq Shah and Faiz Muhammad under section 161, Cr.P.C. on 25-2-1995. On 26-2-1995 I produced accused Muhammad Sadiq Shah and Faiz Muhammad before A.C/S.D.M. Harnai for purpose of recording judicial confession under section 164, Cr.P.C. The A.C. directed the Tehsildar Harnai to record the judicial confession of both the accused persons. On the same day I produced both these accused persons Muhammad Sadiq Shah and Faiz Muhammad before the Tehsildar Harnai who recorded the judicial confession of these accused persons. On 9-3-1995 I received the injury certificate of Nazar Muhammad and Abdul Khaliq. Injured Abdul Khaliq had died at Civil Hospital Quetta. On 4-4-1995 I received post-mortem certificate in respect of Abdul Khaliq from police surgeon Quetta. On 4-4- 1995 I prepared the interim challan in this case which I produce as Exh.P/V which is same. The accused present in Court are same."
4. The appellants/accused made statements under section 342, Cr.P.C. wherein they denied the allegation and pleaded innocence. They stated that they had been falsely involved in the case and that they did not take any part in the alleged crime. They declined to make statement on oath or produce any evidence in defence.
5. We have heard the learned counsel for the parties and have perused the record with their assistance. Learned counsel for the appellants submitted that the statements of P.Ws. are contradictory in material particulars, that the proof required for conviction under Hadd punishment as provided under section 7 of the said ordinance is not available on record, that the judicial confessional statements recorded by the trial Court are not in accordance with the legal requirements and that the recovery of Kalashnikove, in circumstances, is highly doubtful. Learned counsel for the complainant submitted that the incident is not disputed, that the case of prosecution is established by the evidence of impartial witnesses and the necessary corroboration required for confession made by two of the appellants is available on record. Learned counsel who represented the State supported the conviction and sentences.
6. We have thoroughly analysed the record in the light of submissions made by learned counsel for the parties. It transpires from the record that the appellants have been convicted under section 17(4) of the said Ordinance and have been awarded death sentence as Hadd. However, the learned Trial Court has not completed the legal requirements provided for award of Hadd punishment in section 7 of the said Ordinance which reads as under:-- (a)........................
(b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of-Tazkiya Al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the occurrence;...."
Although two of the appellants/accused namely Muhammad Sadiq Shah and Faiz Muhammad alias Hanifak have made confessional statements, the same have been retracted. Both the appellants have denied in their statements under section 342, Cr.P.C. to have recorded any confessional statements. The contents of said confessional statements are mainly exculpatory in nature wherein both the said appellants have attributed firing of kalashnikov to co-accused Zahir Khan which resulted in the death of Abdul Khaliq driver. Besides being exculpatory in nature, the confessional statements do not appear to be true and trustworthy account of the actual occurrence and appear to be similarly worded to corroborate the contents disclosed by one appellant with the other. Syed Sultan Shah Tehsildar who recorded the said confessional statement on 26-2-1995 has appeared as P.W.6. However, the cross-examination portion of his statement, reveals that the said confessional statements were not recorded by him according to the established principles of law. Its relevant portions are mentioned hereinunder:-- "It is correct that I did not ask both the accused that in case they give or do not give confessional statements, they will not be handed over to police. I did not ask accused that for how long they are in police custody without remand. I did not ask them that for how long they are in police custody.......It is correct that I did not issue certificate in the case of accused Sadiq Shah. It is correct that I did not ask accused as to whether they are giving statements under inducement or promise....It is incorrect that police obtained its photo copies from the city rather I myself made to get its photo copies. It is correct that I supplied these photo copies to police as they requested for it...."
Moreover, it is noteworthy that the said confessional statements were made on 26-2-1995 by Muhammad Sadiq Shah appellant who was arrested on 18-2-1995 and Faiz Muhammad alias Hanifak appellant/accused who was arrested on 22-2-1995. Besides considerable delay in recording of the statements by P.W.6, as is evident from the above, it is also worth-mentioning that by then the police officials had obtained all the necessary details of the occurrence which had taken place on 15-1-1995. Besides having been retracted the said confessional statements find no corroboration. The only corroboration brought by evidence on record is recovery of a kalashinkove bearing No,56-36019624. However, the said kalashnikov was not recovered from any of the appellants and definitely not from the appellants who have made confessional statements.
Allegedly the same kalashnikov had been issued to Zahir Khan appellant/accused who is stated to be levies Jamadar. The said kalashnikov was deposited by uncle of Zahir Khan accused, as alleged by P.W.11, with the levies Moharrir, under the orders of A.C. Harnai. In response to a letter written by Ali Nawaz S.H.O. on 22-2-1995, addressed to the said A.C., Saeed Ahmad Shah levies Moharrir produced the said kalashnikov rifle before him which he took into possession in the presence of witnesses i,e,, A.S.I. Muhammad Aslam and H.C. Khalid Shahzad. He prepared recovery memo.
Exh.PQ and sealed the said rifle in a parcel. However, neither the said Saeed Ahmad Shah was examined nor the allotment register was produced to show that the said kalashnikove was actually issued to Zahir Khan appellant/accused. No document has been produced either before the trial Court to establish connection of Zahir Khan appellant with the same. It is also noteworthy that according to P. W.11, as mentioned above, the said kalashnikov was produced by Saeed Ahmad Shah levies moharrir which had been deposited with him by uncle of Zahir Khan. The said uncle of Zahir Khan accused has also not been examined. Even his name has not been mentioned. It is also noteworthy that the empties from the place of occurrence were secured and taken into possession on 16-1-1995 whereas the said kalashnikov was taken into possession on 22-2-1995 and was sent to the forensic science laboratory on 24-5-1995. Although according to the said report Exh.PS, six 7.62 MM bore crime empty shells marked as (C1 to C6) had been fired from the kalashnikov, the number of kalashnikov given therein is 56-36019624 and not 56-35019624, as shown in the recovery memo.
Exh.PQ. These numbers do not tally with each other. Thus, the difference in number of said kalashnikov in FSL report, Exh.PS, and recovery memo. Exh.PQ, is noteworthy besides the delay in sending the same to the said laboratory, with no reason whatsoever for the same.
7. The prosecution has introduced P.W.7 Abdul Wahab who identified the appellants/accused in an identification parade before the S.H.O. According to this P.W., on the day of incident he was accompanying Abdul Khaliq, Nazar Muhammad and Bakhat Khan in the said truck from Sanjavi to Harnai. He has given details of this unfortunate occurrence. However, the report Exh.PA lodged by Bakhat Khan, immediately after the occurrence, has no reference to his presence in the truck, on the said date, at the place of occurrence. Moreover according to Exh.PA the three assailants had muffled their faces and, therefore, the complainant could not recognise them. Strangely P.W.7 also admits that the culprits had muffled their faces at the time of incident. Nazar Muhammad, who according to Exh.PA was accompanying the complainant and deceased Abdul Khaliq in the said truck and had also got injured, has not been produced. The evidence of P.W.7, thus, lacks corroboration. His presence at the time and place of occurrence is also highly doubtful and his testimony does not ring true and is as such worthy of no credence.
8. The upshot of the above discussion is that the case of the prosecution mainly rests on the confessional statements made by two appellants/accused namely Muhammad Sadiq Shah and Faiz Muhammad alias Hanifak but, besides having been retracted, these statements have not been recorded in accordance with the legal requirements. Moreover, they are not corroborated by any recovery from both these appellants/accused. The only recovery that allegedly corroborates their confessional statements is recovery of kalashnikov but the said kalashnikov, alleged to have been issued to other co-accused Zahir Khan who has not made any confession, is not free from doubt.
The evidence of P.W.7 Abdul Wahab in respect of identification of the accused before the S.H.O. is also highly doubtful.
9. Consequently, for the aforesaid reasons, we have come to the conclusion that the prosecution evidence in respect of the involvement of the three appellants/accused is doubtful and cannot be made basis for any conviction, not to speak of death sentence under section 17(4) of the said Ordinance. Therefore, we allow this appeal, set aside the conviction and sentences of the appellants Zahir Khan son of Malik Karim Khan, Faiz Muhammad alias Hanifak son of Agha Muhammad and Muhammad Sadiq Shah son of Mola Dad Shah, awarded on 16-5-1996 by the learned Additional Sessions Judge, Sibi, and acquit them of the charge. They shall be released forthwith if not wanted in any other case. The Murder Reference is answered in negative.