1. ' IFTIKHAR HUSSAIN BUTT, J.---The appeal has been addressed against the judgment of District Criminal Court Kotli passed on 29th of November, 1994 through which the deceased-appellant was sentenced and convicted under section 5 of Islamic Penal Law (Enforcement) Act, 1974 and was ordered to pay Rs,2,33,300 as 'Diyat'.
2. ' The facts precisely stated are that the complainant Khalid Mehmood lodged F.I.R. At 4-30 p.m. On 2nd June, 1990 at Police Station Sensha while contending therein that Muhammad Ajaib happens to be his brother-in-law who left his residence on April 10, 1990. He had told that he is going to the house of Muhammad Saleem at Rata Dudyal. After some days when Muhammad Ajaib did not come back home then his sister called the complainant and asked him to find him out. The complainant with Muhammad Ashraf went to village Rata to know the where abouts of Muhammad Ajaib, where he met Muhammad Saleem who told him that on 14th of April, 1990 Muhammad Ajaib accompanied with Gul Dad met him in Sandala Bazar village Khatharar.
3. Muhammad Saleem gave him lift on his motorcycle up to Pallana-Nakha while Muhammad Ajaib was holding some luggage which was packed in a bag. After a while Gul Dad also reached there and both of them went towards Balwal. The complainant further stated that on 5-5-1990 he and Ashraf went at Gul Dad's residence situated in village Balwal but Gul Dad was not at home. They stayed at his residence and when on the next day Gul Dad came home they asked him about Muhammad Ajaib but he did not tell them anything. The complainant doubts that Gul Dad has committed the murder of Muhammad Ajaib in the trible area or has kidnapped him because Muhammad Ajaib and Gul Dad were involved in illegal business of the arms. On this report Muhammad Anwar S.I. Police (P.W.13) registered a case under section 364 of P.C. And investigation has handed-over to Muhammad Saddique A.S.I. Police. During the investigation it was found that Gul Dad convict and Kamal Hussain has committed murder of Muhammad Ajaib and the dead body was thrown into the river. On the pointation of the accused two photos of deceased P-5, his watch P-6 and his ring P-7 were recovered and taken into possession vide recovery memo. Exh.P.C.
4. On 5-6-1990.
5. ' While 30-bore pistol P-2 with magazine and a 7-mm rifle P-I with magazine were also recovered vide recovery memo. Exh.P.D. On the same day. On 12-6-1990 a cash of Rs,4,800, an identification card, a receipt of arms licence P-4 and a white cap P-3 were recovered and taken into possession on instance of Gul Dad convict vide recovery memo. Exh.P.E. All the above mentioned recoveries were witnessed by Khalid Mehmood (P.W.2) and Abdul Ghani (P.W.5). On 18-6-1990 Gul Dad convict made a confession Exh.P.D. Which was recorded by Sheikh Muhammad Khalil (P.W.9). At this the offence under section 364, P.C., was deleted and a case was registered under section 5, Islamic Penal Law (Enforcement) Act, 1974 read with section 34, P.C. On 19-6-1990 an interim challan was presented before District Criminal Court Kotli which was treated as a complete challan by the trial Court on 28-8-1990. However, a complete challan was also instituted before the trial Court on 10-9- 1990 wherein Kamal Hussain the principal accused was shown as an absconder. The statement of convict was recorded under section 242 of Cr.P.C. On 10-12-1990 but the accused denied the guilt.
6. The prosecution produced Khalid Mehmood (P.W.2), Muhammad Saleein Raza, (P.W.3), Abdul Ghani (P.W.5), Shaukat Khan (P.W.6), Mehrban (P.W.7), Khizar lqbal (P.W.8), Muhammad Ashraf (P.W.9), Niaz Ahmed Patwari (P.W.10), Sheikh Muhammad Khalil S.D.M. (P.W.11), Raja Muhammad Latif D. S. P.
7. (P .W .12), Muhammad Anwar Khan Si (P.W.13) and Syed Arif Hussain Kazmi S.I. Police (P.W.14) to prove its case. On the completion of the prosecution evidence the statement of accused under section 342 of Cr.P.C., was recorded whereby the accused again denied the guilt and refuted the recoveries but did not opt to produce the defence evidence. The trial Court after hearing the arguments of the learned counsel for the parties passed the impugned judgment on 29-11-1994.
8. Hence this appeal.
9. ' During the pendency of the appeal Gul Dad convict expired and his legal heirs have challenged the impugned order. The legal heirs of the deceased-appellant were arrayed as party in the appeal vide order, dated 28-9-1999.
10. ' Mirza Muhammad Nisar, the learned counsel for the appellants vehemently argued that F.I.R., was lodged after a delay of 27 days but no plausible explanation was given by the prosecution.
11. According to him, the complainant doubted on 5-5-1990 that Gul Dad has committed the offence but despite of the fact F I.R., was not lodged till 2-6-1990 and the complainant kept mum for 27 days. He has also drawn our attention towards the cutting of the date of F . I . R . Exh P . A and submitted that F.I.R., cannot be relied upon because it is not genuine. In this respect he referred the statement of Muhammad Anwar A.S.I. (P.W.13) whereby he deposed before the Court that when F.I.R. Exh.P.A. Was lodged before him, the cutting was not there but after his departure the alleged cutting was made therein by somebody. The learned counsel for the appellants also contended that the trial Court failed to appreciate the statement of convict, recorded under section 164, Cr.P.C., in its true perspective because it was not voluntary and despite of the Court's order the convict was detained in Police Station instead of judicial lock-up. He further submitted that all the recoveries were made before 12-6-1990 when the confession was recorded. Furthermore, the said confession is not corroborated by the alleged recoveries. The learned counsel pointed out that according to the confession Gul Dad stated that he and the deceased stayed at the residence of Muhammad Saleem (P.W.2) but Muhammad Saleem (P.W.2) did not confirm this statement and deposed before the Court that he met Gul Dad and the deceased in Sandala Bazar. He also submitted that in his confession the convict stated that when he and deceased were going on Khaire Road then some persons who were going along with their camels asked about their identity and the convict told them that his name is Gul Dad but both the abovementioned persons Shaukat (P.W.6) and Mehrban (P.W.7) did not corroborate the confession and they were declared hostile by the prosecution. The learned counsel has also taken us to this portion of the statement of Khalid Mehmood (P.W.2) whereby he deposed that Muhammad Saleem (P.W.3) had told him that convict and deceased met him in Sandala Bazar. In the light of the abovestated depositions the learned counsel laid stress on the point that the retracted confession of the convict has not been corroborated by any independent evidence, thus, cannot be taken into consideration. The learned counsel also agitated that recoveries have also not been proved by cogent and convincing evidence, therefore, cannot be relied upon. He maintained that when the ring, watch of the deceased, a pistol and 7-mm rifle were recovered and taken into possession from northern room of his house on 5-6-1990 then as to why the cash, identification card, a receipt of licence and white cap of the deceased were not recovered on the same day which were taken into possession on 12- 6-1990 after 7 days of the first recovery. He submitted that the convict did not state about the recovery of the ring, watch, Identification Card, cap and receipt of licence in his confession, therefore, the recovery evidence is not confidence inspiring and cannot be relied upon. The learned counsel also argued that the dead body of the deceased was not recovered, rather the Investigating Agency did not try to find out the dead body. In this respect he referred the statement of Muhammad Niaz Patwari (P.W.10) whereby he deposed that when the convict pointed out the place, where he threw the dead body at the time of the preparation of site plan Exh.P.H., the police personnels did not go down and did not try to recover the dead body. According to him it is yet to be proved that Muhammad Ajaib was done to death or is still alive. Finally, he submitted that the order of conviction is bad in law and 'the prosecution story has not been proved beyond reasonable doubt but the trial Court ignored this aspect of the case, therefore, the impugned judgment may be set aside and order of acquittal be passed in favour of the deceased convict. In support of his contention he relied upon the following case-law:---
(i) PLD 1968 Peshawar 23,
(ii) 1969 PCr.LJ 1586,
(iii) PLD 1972 Karachi"292 and
(iv) (URDU TEXT)
12. ' In reply, Mr. A.R. Karnahi, the learned counsel for the State, supported the conviction, and the sentence and argued that the prosecution has proved the commission of crime against the convict beyond reasonable doubt. He also contended that the convict caught hold of the deceased whereas the principal accused shot fire which pit the deceased who fell down and then both of the accused-persons dragged him and buried him in the mud, on the bank of the river. He further submitted that retracted-confession of the convict is sufficient to prove his guilt. Finally, he prayed to uphold the impugned judgment. In support of his arguments he referred 1996 SCR 196.
13. ' We have very carefully attended to the submissions made at the bar, in the light of material available on the record. The case-law has also been perused.
14. At the outset we have to observe that as the convict-appellant had retracted his confession, thus, no conviction can be sustained on such a confession unless it is corroborated by independent evidence in material particulars. It is not only a well-settled rule of prudence but has almost hardened into a rule of law. Furthermore the prosecution version of motive, by itself, is not sufficient to corroborate the confession of the convict-appellant. There is also a very material discrepancy in the prosecution story that the dead body of the deceased was not recovered, therefore, we have examine (firstly), as to whether the confession was made under duress and the pressure was brought on the accused for making the retracted confession or it was made voluntarily. (Secondly), whether the evidence of recoveries is sufficient to corroborate the retracted confession.
15. ' Coming to the first point, Sheikh Muhammad Khalil (P.W.11) deposed before the Court that the accused was brought before him by police on 16-6-1990 on which he 'issued an order to detain the accused in judicial lock-up and to produce him in the Court on 18-6-1990 but instead the accused was detained in the Police Station and sent to judicial lock-up on 17-6-1990. Thus, when the accused, despite the Court's order, remained in police custody, such confession cannot be treated voluntary and it was certainly made under duress and pressure of the police.
16. ' We may point out here that there are two Court's orders issued by Sheikh Muhammad Khalil (P.W.11) appearing on pages 23 and 24 of Court file (URDU TEXT) which show that on 17-6-1990 the accused was ordered to be detained in judicial lock-up and to be produced in the Court on 18-6- 1990 and the next order shows that on 18-6-1990 the accused was ordered to be detained in judicial lock-up and to produce before the Court on 19-6-1990. But according to the prosecution version the confession was recorded on 18-6-1990. Thus, the whole story of confession is shrouded in mystery which cannot be believed.
17. ' There is also another aspect of the case that the accused lodged a complaint to torture before Sessions Judge while he visited the judicial lock-up. The Sessions Judge issued an order of his medical examination, the accused was medically examined and his scrotum was found injured.
18. ' It might be useful to mention here that the accused was arrested on 5-6-1990 and the confession was recorded on 18-6-1990 after delay of 13 days which loses the evidentiary value because the principle that longer the police custody of an accused lesser the evidentiary value of his confession, is applicable with full force in the present case.
19. We may also observe here that according to the complainant the doubt was arisen on 5-5-1990 that the deceased was killed or kidnapped but he did not lodge F.I.R. Till 2-6-1990, thus, F.I.R., was lodged after one month and twenty days of the disappearance of the deceased and after 27 days of the doubt of the complainant but no reasonable and plausible explanation of convincing nature was given by the prosecution. We must note here that the Courts have always viewed F.I.R., with grave suspicion when there has been unexplained delay in giving it, therefore, the considerable delay in the F.I.R., casts heavy doubt that the prosecution fabricated a viable case against the deceased-convict.
20. ' It will not be out of place to mention here that a cutting is found in F.I.R. Exh.P.A. Which is confirmed by Muhammad Anwar S.I. (P.W.13) but no reasonable explanation was given by the prosecution in this respect, thus, it makes the prosecution case very doubtful.
21. ' Let us now deal with the second point of objection about recoveries, raised by the learned counsel for the appellants. The recovery witnesses Khalid Mehmood (P.W.2) and Abdul Ghani (P.W.4) belong to KhuttaRawalpindi, Pakistan who are closely related to the deceased and no respectable of locality was associated with the recoveries although it has come in the prosecution evidence that at the time of the recovery the respectable of locality were present there. The alleged recovery was made from a box which was not locked and found open. In such state of affairs these recoveries are of no avail against the convict.
22. ' It will be relevant to note here that the prosecution witnesses do not corroborate the confession on the material particulars of the case. As it has been argued by the learned counsel for the appellants that the convict with deceased Ajaib stayed at Muhammad Salem's house (P.W.3) but Muhammad Saleem did not corroborate this fact and deposed that the convict and Ajaib deceased both had met him in Sandala Bazar. Likewise it was stated in the confession that Shaukat (P.W.6) and Mehrban (P.W.7) met the convict and the deceased when they were going with their camels but both the (P.Ws.) refuted the prosecution version, they denied their presence and meeting with the convict and the deceased and were declared hostile but even though they did not support the prosecution story.
23. It is very important to note here that it is also laid down in Fiqa that the confession should be free from blemishes of compulsion, inducement or threat and if it is found that a G confession was made by threat or 'Ikra'(URDU TEXT) than it cannot be made basis for conviction in this respect a reference can be made to {{URDU TEXT}} ' I do not feel inclined to discuss the case-law referred by the learned counsel for the parties in detail because of distinguishable facts. It is admitted principle of criminal law that each criminal case has its own facts and in light of those facts each case has to be decided.
24. ' In this view of the matter the retracted confession has not been corroborated by credible independent evidence which cannot be taken into consideration and there is no other evidence whatever either to corroborate that confession or to implicate the convict in the occurrence, thus, on such type of inconsistent and vague evidence the conviction and sentence cannot be sustained. Therefore, the prosecutions have failed to prove beyond reasonable doubt the guilt of convict and the appeal of his legal heirs has, therefore, to be allowed.
25. ' On the above premises of the reasoning we allow the appeal, set aside the conviction and sentence passed against the deceased-convict.