' FAZAL-UR-REHMAN, J.--- Being aggrieved with the judgment, dated 30-1-1999, passed by Additional Sessions Judge, Sibi Division, Sibi, convicting the appellant for the offence under section 302, P.P.0 and sentencing him to imprisonment for life and to pay a fine of Rs,25,000 as compensation under section 544, Cr.P.C. To the heirs of deceased or in default to suffer R.I. For six months. The appellant has filed this appeal under section 410, Cr.P.C. With prayer that the judgment recorded against him be set aside.
2. Deceased Shah Nawaz resided in a Kutcha house in Basti Ghulam Mustafa. Appellant Muhammad Baqa alias Baqir also resided in the same village. It is alleged that prior to occurrence P.W.3 Yar Muhammad prohibited Raza Muhammad, Jhanda and Ismail that accused persons should not come to their village as they were criminals. It is the case of the prosecution that on the night between 3-10-1995 and 4-10-1995 at about 1-00 a.m. While deceased Shahnawaz was sleeping in his house on a cot, appellant Muhammad Baqa arrived there and opened fire with rifle upon deceased. The gun shot reports attracted his brother P.W.2 Ayub who is stated to have been sleeping on the same cot alongwith deceased and P.W.3 Yar Muhammad uncle of the deceased who came from his house. It is alleged that both the witnesses identified appellant Muhammad Baqa, acquitted accused Mirza and absconding accused Nazir and Sabir in the dark night. It is also alleged that the assailants had extended threat to them for killing them in case they came near to them. P.W. Yar Muhammad went to the office of Assistant Commissioner, Sub-Division Bhag where he made report Exh.P.3/A and the same was then incorporated in the F.I.R. Crime No,49, Levies Thana, Tehsil Bhag District Bolan under section 302, Qisas and Diyat Ordinance (Exh.P.6/A). P.W.6 Gul Hassan who was at the relevant time posted as Tehsildar Bhag took up the investigation and inspected the place of occurrence. The dead body was taken into possession vide Exh.P.4/A. The statement of injury indicating only one wound on the person of deceased was prepared vides Exh.P.4/B. The dead body was handed over to P.W. Yar Muhammad vide Exh.P.3/B without conducting any post-mortem examination as per request made by P.W. Yar Muhammad vide his application Exh.P.3/C. The blood-stained shirt of the deceased was taken into possession vide recovery memo. Exh.P.4/C. Three missed bullets were secured from the place of occurrence and taken into possession vide recovery memo. Exh.P.4-D. The site plan was prepared vide Exh.P.6. The appellant is stated to have been arrested on 11-10-1995. It is stated that the recovery of one rifle .303 bore alongwith two rounds was effected from the appellant at the time of his arrest and taken into possession vide recovery memo. Exh.P.1-A. On 16-10-1995 the appellant was produced before P.W.5 Muhammad Din, Tehsildar who recorded his confessional statement Exh.P.5. It is pertinent to note that incident took place in Bhag Tehsil and there was Magistrate working at Bhag but surprisingly the appellant was taken to Lehri where his confession was recorded. There is no explanation from the prosecution as to why the appellant was not produced before S.D.M., Bhag or Judicial Magistrate of the area but was taken to P.W. Muhammad Din, Tehsildar Lehri for getting his confessional statement recorded who subsequently, succeeded P.W.6 Gul Hassan, Tehsildar and conducted remaining investigation and challaned the appellant and co-accused Mirza (since acquitted).
3. The appellant and co-accused Mirza pleaded not guilty to the charges which were framed against them separately on 19-3-1997 and 6-10-1998 respectively, and claimed their trial. At the trial the prosecution has examined Abdul Malik (P.W.1), Ayub (P.W.2), Yar Muhammad (P.W.3), Wasam (P.W.4), Muhammad Din (P.W.5) and Gul Hassan (P.W.6). After conclusion of trial in respect of appellant and on arrest of acquitted accused Mirza the prosecution again examined the abovenamed witnesses.
4. Appellant Muhammad Baqa and co-accused Mirza disputed the case of the prosecution. They have also made their statements on oath as per provisions contained under section 340(2), Cr.P.C.
Appellant also produced D.W.1 Mst. Shahul in his defence whose statement is to the extent that Raza Muhammad, Nazar Muhammad, Ismail and Jhanda are her brothers who were residing in Basti Mustafa. According to her after teasing of Mst. Razia daughter of her brother Raza Muhammad by deceased Shahnawaz, Raza Muhammad and the sons went to kill Shahnawaz but on intervention by her and three other women by taking the Holy Qura'n the life of Shahnawaz was saved. She has further deposed that Mst. Razia was then got married with her son Muhammad Baqa and thereafter, shifted to village Basti Wagha. According to her after six months Raza Muhammad came to Basti Wagha and asked them that they should come to village Ghulam Mustafa and accordingly, they shifted to the said village. She has alleged that her brother Raza Muhammad made this plan to murder Shahnawaz and then to level allegation against Muhammad Baqa. According to her the occurrence took place after about one month when she came to know that Shahnawaz was murdered elsewhere and his dead body was thrown in the house. She then went to the house of Shahnawaz where she saw the dead body lying on a cot. She has also stated that Mst. Razia was married to another person belonging to Abro Tribe by her father Raza Muhammad when her son was in jail. According to her, her son is innocent and has falsely been involved in the case.
5. On the assessm ent of evidence the learned Additional Sessions Judge, Sibi extended benefit of doubt to Mirza and acquitted him. He, however, found the appellant guilty for the offence under section 302, P.P.C. And convicted him accordingly. It is in these circumstances that the present appeal has been filed.
6. The evidence against the appellant consisted of ocular testimony of complainant Yar Muhammad (P.W.3), Ayub (P.W.2), recovery of riffle and confessional statement of appellant. The evidence regarding recovery of crime weapon was not relied upon by the trial Judge for the reason that neither the alleged recovered articles had been sent to expert nor recovery had been witnessed by independent witnesses. It may be added that even the statement of P.W.1 Abdul Malik who is Jamadar Levies Bhag makes the recovery doubtful from the possession of the appellant as according to him he was present in Levies Thana where he was called by Tehsildar and he was told that they had recovered .303 bore riffle alongwith two rounds from accused Muhammad Baqir and recovery memo. Was prepared in the office. The second statement which was made by P.W. Abdul Malik after arrest of acquitted accused also makes the recovery doubtful. This recovery has rightly been not relied upon by trial Judge. Similarly the ocular evidence furnished by P.Ws. Ayub and Yar Muhammad was not relied upon by the trial Judge for the reason that above witnesses were closely related to deceased being brother and uncle respectively. According to trial Judge, they are interested witnesses and it was not possible to identify the accused in the mid night when there was darkness. The only evidence which was prevailed upon the learned trial Court and the appellant was convicted was his retracted delayed statement recorded by P.W. Muhammad Din who had also conducted investigation of the case. The trial Judge has expressed himself in the following terms:-- "The next piece of evidence is confessional statement of accused Baqa recorded by P.W.5 Muhammad Din the then Tehsildar on 16-10-1995 who also placed on record the confessional statement as Exh.P.5. When by the accused has admitted the killing of Shah Nawaz on account of Siah Kari. He has stated therein that 4/5 days prior to occurrence he saw the deceased in objectionable condition with his wife but he escaped therefrom. The said witness was subjected to lengthy cross-examination but could not shakened. The learned defence counsel contended that the confession is not liable to be considered for the reason that the said witness P.W.5 Muhammad Din has also conducted investigation of the case has no force for the simple reason that at the time of recording confessional statement he was not Investigating Officer of the case rather he was posted as Tehsildar, Lehri and later on account of his transfer from Lehri to Bhag he conduced the remaining investigation and no prejudice has been caused to the accused."
7. We have heard Mr. Mohsin Javed, Advocate learned counsel for appellant while Mr. Nasrullah Khan Achakzai, Advocate for State and have also examined the record.
8. We are not inclined to subscribe to the conclusion arrived at by the trial Judge regarding confessional statement and we are of the view that the confessional statement recorded by P.W.
Muhammad Din, Tehsildar, who succeeded P.W.6 Gul Hassan, Tehsildar/Investigation Officer and conducting of remaining investigation and submission of challans by him resulted in causing prejudice to the accused. There is also no explanation for recording this confessional statement after delay of five days. The perusal of the confessional statement and the appended certificate is indicative of the fact that the same has not been recorded in accordance with the provisions contained under sections 164 and 364, Cr.P.C. Which are mandatory in nature. Non-compliance with the mandatory provisions of section 364, C Cr.P.C. Is not a mere irregularity which is curable but is an illegality which is not curable. According to section 164, Cr.P.C. a Police Officer is not competent to record any statement or confession, while in the instant case the confessional statement had been recorded by the Tehsildar who has himself conducted remaining investigation in the case and challaned the appellant as in levies cases the investigation of the cases are conducted by NaibTehsildars/Tehsildars. Any admission made by an accused person before the Investigating Officer has got no value in the eye of law. Moreover, this retracted and delayed confessional statement is also not corroborated by other evidence which has already been disbelieved by the trial Court. Certainly one tainted piece of evidence cannot corroborate another tainted piece of evidence.
9. The Court has to juxtapose both conflicting evidence in order to arrive at conclusion as to which one of them is to be chosen for reliance as true. P.W.2 Ayub who is the brother of deceased in his cross-examination has admitted that Yar Muhammad, Raza Muhammad, Jhanda and Ismail pressurized Muhammad Baqa that they will kill Shah Nawaz and accused Muhammad Baqa should confess guilt as husband of Mst. Razia. He has also admitted that accused Muhammad Baqa refused to do so. It is pertinent to note that the names of Jhanda and Raza Muhammad find place in the list of prosecution witnesses but they have not been examined. When examined the evidence of prosecution and defence version in the light of the above guiding tests of the appreciation of evidence, we are of the view that it would be wholly unsafe to base conviction of the appellant on the charge of a murder on such evidence of Investigating Officer alone who recorded the confessional statement of the appellant, as he has a natural desire to get a conviction of a person who was sent up by him. The conditions for accepting confession as admissible evidence against the person making it are much more severe and strict according to the Shariah. In the circumstances of the case this confessional statement cannot be relied upon. A judgment should be based strictly on the evidence available on record. This finding of the trial Court is based on mere surmise and not on any valid evidence. We may observe that moral conviction of a Judge about the guilt of accused could not form the basis of his conviction.
10. For the foregoing reasons, we feel inclined to hold that the prosecution has failed to prove its case beyond a reasonable doubt against the appellant and he is entitled to acquittal. We, therefore, allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. Muhammad Baqa alias Baqir appellant be set at liberty forthwith if not required in any other case.