' EJAZ AFZAL KHAN, J.--- On 11-3-1990 at 10 a.m. While patrolling in their official vehicle, the deceased Ghulam Muhammad Khan, S.H.O. Police Station Shahbaz Gari alongwith Javed Khan, Muhammad Younas and Sher All constables stopped the vehicle near the fields of Shahi Kapura. No sooner did they alight from the vehicle then they saw two persons going towards the south, one of whom was armed with a Topak. When the S.H.O. Asked them to stop, the one who was armed with a Topak fired at him which, however, went amiss. He then directed his constables to fire at the aforesaid persons but in vain. At last, after getting the rifle of Javed Khan P.W.16, the S.H.O. Himself set out to apprehend the persons but in that tug of war, on being fired at by the armed persons got hit, fell on the ground and eventually succumbed to his injuries. The assailants despite desperate chase could not be tracked down. On the report of Javed Khan P.W. a case under sections 302/307/353/34, P.P.C. Was registered vide F.I.R. No,164, dated 11-3-1990 in the Police Station Shahbaz Gari against unknown persons who could be identified on their being sighted.
2. During the course of investigation it transpired that Isteraj acquittedco-accused and Farzand Ali, a deserter from the Army, appellant herein, were the persons responsible for the whole affair resulting in the death of the deceased. The former on being tried by the learned Additional Sessions Judge was acquitted under section 265-K, Cr.P.C. As no role was assigned to him while the latter being already absconder was declared proclaimed offender and perpetual warrants of arrest were directed to be issued against him side; order, dated 18-3-1993. On being arrested from a jail in Karachi and interrogated during the course of investigation, the appellant allegedly made a confessional statement. On the completion of the investigation he was forwarded to the Court of the learned Sessions Judge for trial. On being charged when he pleaded not guilty, the prosecution examined as many as 18 witnesses to prove its case against the appellant.
3. P.W. 1 performed the post-mortem examination on the dead body of the deceased and found the following:-- External examination:
(1) Fire-arm entry wound 1/3" x 1/2" in diameter 4" below the left elbow on the dorsal aspect.
(2) F.A. Lacerated wound probably exist wound 4" x 4" in diameter with protrusion of muscular and fatty tissue with fracture of radius and ulna and lower end of humerous (left side).
(3) F.A. Entry wound (left side) front of neck below mandible. Internal examination: Thorax Larynx and trachea and blood vessels were found injured.
Abdomen Phyarynx and oescophagus injured., stomach contained semi-digested food.
' In his opinion, cause of death was shock produced by haemorrhage and axphexia due to fire-arm injury to trachea, larynx and major survical vessels. Probable time between injury and death was ten to twenty minutes while between death and post-mortem within two hours. Shirt and Jercy bearing marks of F.Arms belonging to the deceased alongwith post-mortem report were handed over to local police."
' P.W.2 identified the dead body at the time of the post-mortem examination. P.W.3 being a marginal witness, testified to the correctness of recovery memos. Exh.P.C., Exh.P.C./1, Exh.P.C./2, Exh.P.C./3 and Exh.P.C./4 whereby the blood-stained earth, one empty of 7 mm rifle Exh.P.1 from the spot, 13 empties of 7.62 bore Exh.P.2 from the place of Younas Khan, F.C., one shirt Exh.P.3, Jercy Exh.P.4, shoulders Exh.P.5 and name plate Exh.P.6 belonging to the deceased produced by Maqsood Ali, F.C. And deserter roll of the appellant produced by Mir Akber Shah, Moharrir were taken into possession by the Investigating Officer and sealed into different parcels. P.W.4 escorted the dead body from Surgical Ward D.H.Q. Hospital, Mardan to mortuary and after the post-mortem examination, its report alongwith the blood-stained garments handed over to the Investigating Officer. P.W.5 furnished circumstantial evidence by deposing that on the day of occurrence Farzand Ali came to his shop for dressing as he was having an injury on his leg which he refused to dress because, he sustained that in an encounter with the police. P.W.6 partially investigated the case.
P.W.7 recorded the confessional statement of the appellant Exh.P.Z, testified to its correctness and that of the questionnaire Exh.P.Z./1 and the Certificate Exh.P.Z./2. P.W.8 prepared injury sheet Exh.P.M./2 and inquest report Exh.P.M./3. P.W.9 on receipt of Murasila incorporated the same into F.I.R. Exh.P.A. P.W.10 is witness to memo. Exh.P.W./10/1 whereby the appellant, in his presence, pointed out the places of the scene of occurrence. P.W.11 recorded the statements of the P.Ws. Under section 161, Cr.P.C. P.W.12 arrested the appellant and shifted him to Mardan after observing the requisite formalities. P.W.13 partially investigated the case and took into possession one 7 mm rifle alongwith its licence from Ghulam Haider a maternal-uncle of the appellant vide memo.
Exh.P.W.13/1. P.W. 14 medically examined the appellant and found the following:-- "(1) A wound 1/4 x 1/4 inch in diameter. The wound was healed and was present on the right calf.
The injury was simple in nature and the kind of weapon was not given because the wound was healed. Similarly probable duration between injury and examination could not be given for the same reason in the medico-legal report Exh.P.N."
' P.W.15 witnessed the recovery of 7 mm rifle bearing No,4174 Exh.P,7 alongwith its licence vide recovery memo. Exh.P.W. 13/1, prepared the site plan Exh.P.B./1, recorded police statements of the marginal witnesses, moved an application Exh.P.W.15/1, for recording their magisterial statements, vide application Exh.P.W.15/2, obtained order from Illaqa Magistrate vide application Exh.P.W.15/3 for sending the empties to the Ballistic Expert, sent the same as well as rifle thereto vide application Exh.P.W.15/4 and on receipt of his report Exh.P.W.15/5 placed it on file. He also testified to the correctness of the injury sheet Exh.P.N./1 whereby the appellant was sent to the hospital for medical examination. P.W.16 furnished ocular account of the incident, testified to the correctness of Murasila Exh.P.A. P.W.17 also furnished ocular account of the incident. P.W.18 investigated the whole case, took into possession the articles mentioned above, sent the empties to the Arms Expert vide application Exh.P.W.18/1, blood-stained uniform and blood-stained earth to the serologist for analysis vide application Exh.P.W.18/2, on receipt of his report placed it on the file which is Exh.P.W.18/3 and applied for warrants under section 204, Cr.P.C. And proclamation notice under section 87, Cr.P.C.
Vide application Exh.P.W.18/4 and Exh.P.W.18/5.
4. On the close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C.
Who pleaded innocence and denied his involvement in the commission of the crime.
5. On the completion of the trial, the learned Sessions Judge sentenced the appellant to imprisonment for life with a fine of Rs,50,000 or in default to undergo one month's R.I. Under section 302, P.P.C., 3 years' R.I. With a fine of Rs,5,000 or in default to undergo 6 months' R.I. Under section 307, P.P.C. And 2 years' R.I. With a fine of Rs,5,000 or in default to undergo 6 months' R.I. Under section 353, P.P.C. With the benefit of section 382-B, Cr.P.C., vide judgment, dated 4-9-1996.
6. On being aggrieved by the judgment of the learned Sessions Judge, the appellant filed this appeal.
7. The learned counsel for the appellant contended that the evidence furnished by the eye- witnesses of the incident does not by any means point to the involvement of the appellant in the crime as neither he has been named nor description of his-features and characteristics have been given in the F.I.R. He next contended that though it has been mentioned in the F.I.R. That the assailant could be identified on his being sighted yet no identification parade was held to identify the assailant. While referring to the evidence of Nadir Khan, he contended that his evidence too, does not point to the conclusion that he was responsible for the casualty as it is not the case of the prosecution that the appellant sustained any injury during the course of the alleged encounter. He further contended that the only evidence which can connect the appellant with the crime is the confessional statement of the appellant but that also cannot be relied upon in a case involving capital punishment, firstly because it runs counter to, the ocular testimony and secondly because extraction of confessional statement in a case of police encounter is a matter of common occurrence. He by summing up his arguments contended that questions which are essential rather imperative to ensure the voluntariness of a confessional statement have not been put to the appellant, therefore, its voluntariness is not above board.
8. The learned counsel for the State contended that the circumstantial evidence coupled with the confessional statement of the appellant is sufficient to bring guilt home to the appellant, moreso when there is a prolonged noticeable abscondence to his discredit and that the trial Court in view of this evidence has rightly recorded the conviction of the appellant which deserves no interference.
9. We have given anxious thought and consideration to the arguments of the learned counsel for the parties and have perused the record with their able assistance. As far as the ocular testimony is concerned that does not give any cue or clue as to the involvement of the appellant in the commission of the crime, that is why it has been discarded by the trial Court and rightly so.
Moreover, the absence of description regarding the features of the appellant in the F.I.R. And the absence of identification parade are the factors which would seriously damage the probative worth of the ocular evidence if it has any. Similarly the circumstantial evidence furnished by P.W.
Nadir Khan is not of the type which can be held compatible with the guilt of the appellant or incapable of explanation on any other reasonable hypothesis except his guilt. The only important evidence connecting the appellant with the crime which can be considered for a while is the confessional statement of the appellant. Before we consider its evidentiary value, it is worthwhile to examine whether it was true, voluntarily made, legally recorded and fits in with the surrounding circumstances? A perusal of the record would show that the questions whether he would make confession or not he would not be sent back to the police custody; whether he was subjected to any inducement, threat or promise and for how long he remained in police custody, which are essential to ascertain the voluntary character of a confessional statement have not been asked.
Besides this, there is nothing on the record to show that the Magistrate recording the confessional statement disclosed his identity as a Magistrate. The statement in the confession that he made a mistake and that he be pardoned shows that it was recorded without removing the impression caused by any inducement, threat or promise which is a mandatory requirement of Article 41 of Qanun-e-Shahadat Order. Similarly the statement that the appellant was fired at first and injured by the police party and that he in a state of panic retaliated negates the prosecution version because it has never been a case of the prosecution that the appellant was fired at first and injured by the police party. We, therefore, hold that the confessional statement of the appellant was neither true, nor voluntary, nor legally recorded nor it fits in with the attending circumstances of the case. Similarly the recovery of empties from the spot on the day of occurrence and 7 mm rifle from the maternal-uncle of the appellant after the lapse of three years and their belated despatch to the Ballistic Expert would not prove anything against the appellant. The statement of P.W. Javed Khan that the appellant after firing at the deceased sought refuge in a nearby house by scalling over its wall and he by immediately following him in the house could not find him there in spite of the fact that it had no exit is nothing but a cock and bull story which further makes the whole version highly doubtful and unworthy of any credence. The argument of the learned State Counsel that there is a prolonged noticeable abscondence to the discredit of the appellant will not per se prove the case of the prosecution because abscondence at the most can be taken as corroborative of the charge and not the evidence of the charge.
10. As a sequal to what has been discussed above, we accept this appeal, set aside the impugned conviction recorded and sentence imposed by the learned Sessions Judge, Mardan dated 4-9- 1996 and the appellant Farzand Ali is acquitted of the charge under section 302/34, P.P.C. He is directed to be released forthwith, if not required in any other case.