' SARDAR MUHAMMAD RAZA KHAN, J.--- State through Advocate-General, N.-W.F.P. Has filed, under section 417, Cr.P.C. This appeal against the judgment, dated 10-10-1989 of the learned Sessions Judge, Abbottabad whereby, with reference to F.I.R. No,201, dated 20-5-1986 of Police Station Havelian, he had acquitted Manzoor Hussain son of Sawal Khan resident of Noorpur Saithi of Kala Kahar District Chakwal of the charges under section 302/404, P.P.C.
2. Vide another order of the same date the respondent Manzoor Hussain was also acquitted of the charge under section 13, A.O. Against which also another Criminal Appeal No,12 of 1990 is filed. Both the appeals shall be decided through this single judgment.
3. On 20-5-1986 at 11-30 a.m. One Sher Ahmed son of Khanizaman aged 70 of Police Station Langra who also happened to be the Vice-Chairman of Union Council Langra, lodged a report that a short while before the lodging of report, he along with Ashraf and Khan Afsar had been coming to Havelian Bazar for making sundry purchases. A few boys were standing near old Daur bridge who informed Sher Ahmed that a dead body was lying down in the dry portion of Daur river. Sher Ahmed went to the spot and found the dead body of a young man. Apparently there was no injury but blood was found underneath the head.
4. The police opened inquiry under section 174, Cr.P.C. And ultimately the prosecution came out with the story that the deceased, subsequently identified to be Zulfiqar Ali son of Alemsher of District Khoshab was a truck driver of Truck No,1469-KB while the accused was his cleaner. That he had brought a rice load from Khoshab for Khaki District Mansehra and had delivered the same at about 9-00 p.m. At Khaki on 19-5-1986. After unloading the truck at Khaki both, the driver and the conductor, started backward journey. At late midnight they reached Havelian where the driver suggested that the truck be washed in the river Daur below. The cleaner Manzoor Hussain started washing truck while the driver fell asleep on the sandy ground. As the driver was carrying money, the cleaner got overpowered by the lust for money and hence gave an iron bar blow to the sleeping driver and also fired three revolver shots at him with which he died on the spot.
5. The respondent Manzoor Hussain dugged a place nearby, concealed the revolver under the gravel and sand and drove the truck away with intention to sell the same as well at Bara. When he reached Hassanabdal, he met an accident and his truck turned turtle on G.T. Road in front of the hotel of one Abdur Rashid (P.W.7). He was rescued by the hotel owner and other people present there taking Sehri meals as the month of Ramz,an it was. The cleaner left the truck there, handed over the documents to Abdur Rashid and left for his village to inform the owner which the accused claimed, was his maternal-uncle. Gul Amir of Jamra District Chakwal (P.W.2) claiming to be the owner of the truck came to Hassanabdal and informed that Manzoor Hussain cleaner after having murdered the driver had sped away with the truck and had met that accident.
6. Oh 31-5-1986 Sardar Muhammad Akram, A.S.-I. (P.W.5) arrested Manzoor Hussain from Havelian Bazar. The .Accused was interrogated and he made a confession before a Magistrate on 3-6-1986 giving details of occurrence as narrated above. He also led to the discovery of the revolver on 2-6- 1986 and was also identified by P.W. Abdur Rashid and Muzaffar Shah in two separate identification parades held on 31-5-1986 and 1-6-1986 respectively.
7. Such being the case of the prosecution, it relied upon the confession, of the accused, the two identification parades, the discovery of revolver, the last seen evidence provided by Karayana Merchants of Khaki and the circumstantial evidence of the incident of accident that had taken place at Hassanabdal. We would now appreciate all the above, circumstances.
8. Coming to the discovery of revolver, we would say at the very outset that it is highly improbable.
The accused from his confessional statement appeared to be a clever man with a complete criminal mens rea. It does not appeal to reason that at a time when no body was around to apprehend him and when he had to travel back all alone, he would conceal the revolver when it was directly needed at the relevant time for his own protection. At the most he could have thrown it any other time whenever he apprehended danger. An iron bar stained with blood was thrown by him in the truck. This also does not appeal to reason because the thing which was blood-stained and was incriminating should have been concealed by him or thrown by him somewhere whereas the revolver should have been retained by him. The conduct does not appear to be normal. The discovery seems to be highly improbable as well as unnatural. P.W.13 is a witness of recovery but his statement under section 161, Cr.P.C. According to him was never recorded. We, therefore, discard the discovery of revolver being highly improbable and unnatural.
9. The last seen evidence provided by Firdous (P.W.9) and Muzaffar Shah (P.W.10) who are the shop-keepers from Khaki and who allegedly had seen the accused at the time of unloading the rice bags at Khaki. About Firdausi (P.W.9) it is inconceivable that he, according to him identified the driver and the cleaner from their color whereas he never remembered the color of the truck. P.W.
Muzaffar Shah stated that the laborers who had done the unloading were Khan Wali, Zar Wali and two others called from the market while P.W. Firdausi clearly stated the names of the laborers to be Hazrat Ali, Sabir and Younas. Their statements are so controversial that we are not satisfied about their having identified the accused at the time of unloading and in the dark of the night. It isI8 not safe to rely upon the last seen evidence in the instant case.
10. Next we revert to the confessional statement, dated 3-6-1986 Exh.P.W.14/1 recorded by Muhammad Tahir (P.W.14) Magistrate 1st Class. A close perusal of entire evidence on record and a close appreciation of circumstances of the case would indicate that this confessional statement was neither voluntary nor it rang true. We could not reconcile with the fact that if the accused had a loaded revolver with him, what was occasion to use an iron bar first while the victim had already been asleep. It is also not reasonable that the incriminating article like iron bar would be thrown by the accused in the truck white the revolver which could be used for self protection was concealed in the river bed. The accused had a clear mind to sell the truck at Bara but it is not known as to why at Hassanabdal bifurcation he turned towards Rawalpindi and met an accident on G.T. Road. It is also not understandable as to why in this whole affair Hassanabdal police was not informed of the occurrence, the truck was never handed over to it and the documents of the truck also were delivered by the accused to an unknown person like Abdur Rashid hotelwala.
11. The accused at the time of occurrence appears to be a young boy of about 20 years of age. He should have thanked his stars that he safely reached his village. It is unbelievable to note that he would once again come to Havelian simply to know as to what is happening after his commission of murder. We cannot reconcile with the fact that he was arrested at Havelian on 31-5-1986 and also as to how the police officials identified him to be the accused. From the evidence on record and particularly from the statement of Abdur Rashid hotel owner of Hassanabdal it stands proved that the accused had already stood arrested on 23-5-1986. It is admitted by the Investigating Officer that he was for the first time produced before the Magistrate on 30-6-1986 without having been produced before any Magistrate within 24 hours of his arrest with reference to section 61 of the Cr.P.C. According to Abdur Rashid, the owner of the truck who had met him on the 3rd day of accident, had informed that the accused stood arrested in the village. This 3rd day comes on 23- 5:1986. The illegal detention of the accused from 23-5-1986 to 3-6-1986 when he was produced for his confessional statement, is completely unaccounted for. Rather, it is positively concealed by the Investigating Agency. We have not the least doubt in holding that during these nine or ten days of illegal detention the accused was manhandled by the police. The confessional statement, therefore, is a result of coercion and torture besides being untrue and unnatural. It is also taken out of consideration.
12. The statement under section 164, Cr.P.C. Of Abdur Rashid hotelwala was recorded on the same day and place when the accused was already present inside the Court of the Magistrate is, therefore, highly doubtful. It has come in evidence that the accused had been in unlawful custody of the police for ten to eleven days during which the witnesses have been coming in contact with the Investigating Officer and thus, the strong possibility cannot be ruled out that they had seen the accused during the prolonged intervening period. The identification parade has also not been conducted in a transparent and fool proof manner.
13. The whole discussion has led us to believe that the case has not been proved against the accused beyond any shadow of reasonable doubt. The benefit of doubt was rightly extended to the respondent-accused by the learned trial Court. Both the Criminal Appeals Nos.11 of 1990 and 12 of 1990 filed by the State are hereby dismissed. The impugned judgment, dated 10-10-1998 is upheld and the acquittal of respondent Manzoor Hussain is maintained. He is absolved of the liability under the bail bonds furnished before this Court.