1. ' ATA-UR-REHMAN, J.---This judgment will dispose of the Criminal Jail Appeal No,35 of 2000, Special A.T.A. No,1 of 2000, and Criminal Reference No, 4 of 2000 arising out of the judgment dated 30-11- 1999, passed by Mr. Liaquat Hussain, Judge Anti-Terrorism Court, Sukkur, in Special Case No,34 of 1999, whereby the appellant was sentenced to death and to pay Diyat amounting to Rs,1,75,000 to the legal heirs of deceased under section 302(b), P.P.C., imprisonment for life under section 377, P.P.C., and also sentenced to death under section 7 of A.T. Act of 1997, in Crime No,120 of 1999 of P.S.A. Section, Khairpur.
2. ' Charge against appellant was framed by the trial Court on 30-10-1999 which reads as under:-- "That you on or about in-between 18-7-1999 at 20-00 hours to 19-7-1999 at 06-00 hours, committed carnal intercourse, against the order of nature with a minor boy Rashid aged about 10/11 years at Civic Centre 1st floor store room Deh Khairpur Village No,1 and thereby committed an offence punishable under section 377, P.P.C., within the cognizance of this Court.
3. ' I further charge you that on above date, time and place, committed Qatl-e-Amad by intentionally causing death of Rashid and thereby committed an offence punishable under section 302, QAD and within the cong'nizance of this Court.
4. ' I further charge you that on the above date, time and place, your act striked terror and erupted a sense of fear by causing brutal death of Rashid, as such your act comes within the definition of Terrorism, which is punishable under section 7(1)a, within the cognizance of this Court."
5. ' The appellant pleaded not guilty to charge and claimed to be tried.
6. ' The prosecution in support of its case examined P.W.1 Ghulam Nabi at Exh.9 who produced the F.I.R.
7. (Exh.9-A), P.W.2 Ashfaque Ali at Exh.10, P.W.3 Khubchand at Exh.11 who produced post-mortem report, chemical examiner's report and certificate as Exh.11-A, 11-B and 11-C, P.W.4 Mst. Shahida at Exh.12, P.W.5 Ali Nawaz Exh.13 who produced Exh.13-A, P.W.6 Abdullah at Exh.14 who produced memo.
8. Of scene of offence, inquest report and memo. Of scene of offence as Exh.14-A, 14-B and 14-C, P.W.7 Saleem Raza as Exh.15. The prosecution gave up P.W. Muhammad Ramzan vide statement Exh.16 and examined P.W.8 Mian Aijaz Rabani, Civil Judge and FCM, Khairpur at Exh.17 who produced confessional statement of appellant as Exh.17-A, P.W.9 Mehar Ali Shah at Exh.18 who produced memo. Of arrest as Exh.18-A, P.W.10 Akhtar Ali at Exh.19 who produced letter addressed to Mukhtiarkar and FCM, Khairpur by S.H.O., P.A. Khairpur for preparing sketch of Wardat by the Tapedar, and sketch of Wardat as Exh.19-A, P.W.11 Manzoor Hussain Exh.20 who produced letter for recording confessional statement of appellant as Exh.20-A and chemical examiner's report as Exh.20-B and Station Diary as Ex.20-C. The prosecution gave up P.W. Ali Hussain vide statement Exh.21, and closed its side vide statement Exh.22.
9. ' Statement of the appellant was recorded under section 342, Cr.P.C. At Exh.23 and he wished to be examined on oath. The appellant submitted application for summoning defence witnesses vide Exh.23 A. Later, vide statement Exh.23-B the counsel for the appellant informed that the appellant did not want to examine himself on oath. However, he examined D.W.1 Muhammad Ali at Exh.24, D.W.2 Muhammad Hayat at Exh.25, D.W.3 Ammer Bux at Exh.26, D.W.4 Muhammad Haroon at Exh.27 in his defence and vide statement Exh.28 he closed his side.
10. ' After hearing the learned counsel for the parties, the learned trial Court convicted and sentenced the appellant as stated above.
11. ' We heard the learned counsel, perused the record and proceedings of the case, the evidence of prosecution witnesses, statements of the appellant his witnesses and the impugned judgment. For reasons to follow hereunder we allow the two appeals, and set aside the conviction and sentence awarded by the trial Court and also decline to confirm the death sentence.
12. A perusal of the evidence of the prosecution witnesses shows that none of them had in fact directly/implicated the appellant with the guilt of the offence. The best evidence available with the prosecution is that of judicial confession of the appellant and on his pointation the recovery of blood-stained piece of brick from the scene of offence. Even the prosecution has agreed to this proposition that there are only the above two pieces of evidence which are to be considered .By us.
13. In relation to the recovery of the blood-stained piece of brick, it is found that there were two inspections of the place of incident, one on 19th immediately after the incident when the dead body of the deceased and also a blood-stained piece of brick were recovered and second on 22nd when another blood-stained piece of brick was recovered on the pointation of the appellant. The prosecution has not been able to explain as to why that piece of blood-stained brick was not found and recovered by the police on 19th and was recovered on 22nd at the pointation of the appellant.
14. It is not the case of the prosecution that the said piece of brick was concealed and lying in a place from where they could not find the same on 19th and the same could only be found on the pointation of the appellant. The recovery of second brick at the pointation of the appellant thus does not create a confidence. Such evidence being corroborative in nature could only-be relied upon if there is some other direct evidence connecting the appellant with the crime. So far as the judicial confession of the appellant is concerned, the learned trial Court and also the learned A.A.- G., have heavily relied upon it.
15. ' According to confessional statement on 18-7-1999 in the night at about 8/9 0' clock the victim came into contact with the appellant, who enticed him to go with him on the roof after paying him Rs,50 with intention to commit sodomy upon him. It is further alleged that while he was committing sodomy the victim raised cries whereupon the appellant put his hand on his mouth and then with the piece of brick lying there inflicted two or three blows on the head of the victim as a result of which he died; and that the appellant threw the brick on the roof and came down quietly. If this confessional statement is kept in juxtaposition with the Mashirnama of place of Wardat Exh.14-A and inquest report Exh.14-B, it is found that they are not in consonance with each other. According to Mashirnama Exh.14-A the police found two Shalwars. One Shalwar was worn by the victim while the other was used for strangulating. It appears that the victim apart from being hit on the head was also strangulated with a sash of the other Shalwar and when the police recovered the dead body and untied the sash they found swollen contusion marks on the neck of the victim. However, the judicial confession is absolutely silent and there is no mention about strangulating the victim by the appellant. Another thing is that in the confessional statement the appellant had stated that he had given Rs,50 to the victim but Exh.14-A Mashirnama of dead body is silent about any recovery of cash of Rs,50 from the clothes of the deceased. The medical report simply states about the injuries caused by piece of brick and no mention is made there of the strangulation. It is also to be noted that the appellant admittedly was produced for medical examination and he was found by the doctor to have three days old five injuries on different parts of his body. This fact supports the version of defence that the appellant was in fact arrested on 19th July, and thereafter was physically assaulted before his production before the Magistrate for recording his judicial confession. Another fact which renders the judicial confession doubtful is that the Magistrate did not examine the body of the appellant to ascertain as to whether there were any marks of violence on his person. In addition to above, the Magistrate also failed to put certain important questions/warnings to the appellant before recording the confession e.g. If he did not make the confession he would not be given in police custody. Reliance is placed on 1992 SCM R 196 (Daniel Boyd v. The State). In these circumstances, the confessional statement of the appellant cannot be said to be free from doubt or voluntary and conviction cannot be based upon the same. There is no other piece of evidence against the appellant.
16. ' The learned A.A.-G., however has opposed the appeals and prayed for confirmation of death sentence as awarded by the learned trial Court. But he has not been able to rebut the above facts and the defects in the prosecution case.
17. The appellant who is said to be in jail be released forthwith if not required to be detained in any other case.