IJAZ-UL-HASSAN, J.---This judgment will dispose of Criminal Appeal No.127 of 2001 directed against the judgment dated 12-4-2001 passed by learned Sessions Judge/Zilla Qazi, Malakand, Camp Dargai in Sessions Case No.5 of 2000 whereby Amin Gul son of Taza Gul, resident of Deh Bagar Dara, Malakand Agency, having been found guilty of murder of his co-villager Taj Muhammad, was convicted under section 302, P.P.C. And sentenced to suffer life imprisonment with a fine of Rs.50,000 or in default to undergo further S.I. For two years. The appellant, was however, acquitted of the charge under section 324, P.P.C. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The crime in question is alleged to have taken place on 14-4-1998 at 13-45 hours at a 'Khwar' near Bagar Dara Mosque and the matter was reported to the police the same day at 14-30 hours by complainant Rashid Khan, brother of the deceased. The report was recorded by Rehman's Afzal (P.W.6) Muharrir, Malakand Levys.
3. Facts in brief as narrated by complainant Rashid Khan in F. I. R. (Exh.P.A.) are that on tile morning of the day of occurrence complainant went to open his shop. Taza Gul and his son Amin Gul duly armed were standing near the shop. They threatened the complainant not to open the shop. The complainant contacted elders of the locality to settle the matter and refrain the accused from threatening the complainant. The elders asked the complainant and the accused to assemble at 15-00 hours for resolution of the dispute. The complainant alongwith his brother Taj Muhammad (deceased) and Hakimur Rehman's, P.W. Was on the way and when they reached near 'Khwar', they found the accused standing there. Having seen the complainant and his brothers, the accused started firing with which Taj Muhammad was hit and died there and then. However, the complainant and his brother Hakimur Rehman's P.W. Escaped unhurt. The complainant, his brother and many others were stated to have witnessed the occurrence. Explaining the motive it was disclosed that the complainant and his brothers had constructed a shop over the land belonging to the accused and had been regularly paying rent. The dispute over the said construction was stated to be the motive leading to the incident.
4. Rehman's Afzal (P.W.6) after s recording the F.I.R. (Exh.P.A.) at the instance of complainant Rashid Khan, proceeded to the spot and on reaching there prepared site-plan (Exh.P.B.). He recovered blood-stained earth and sand from the spot and sealed the same into parcel vide recovery memo.
(Exh.P.C.) in the presence of Azmat Shah and Jehan Bacha witnesses. He also recovered from the spot three empties of Kalashnikov vide recovery memo. (Exh.P.C/1). The last-worn clothes of the deceased were also taken into possession by him vide recovery memo. (Exh.P.C/2). The dead body was referred to Dr. Khurshid Ali Khan (P.W.1), Medical Officer, Civil Hospital Batkhela. He examined the same vide his report (Exh. P.W.1/1) and found four injuries on the corpse caused by fire-arm.
After examination, the dead body was handed over, to legal heirs of the deceased. As accused Amin Gul disappeared after the occurrence, warrants of arrest and proclamation were obtained against him. Blood-stained earth and blood-stained Shalwar and Qameez of the deceased were dispatched to F.S.L., Peshawar. Report of the expert (Exh.P.K.) is positive. After completion of investigation, challan was submitted in Court.
5. In order to prove its case the prosecution has examined as many as ten witnesses including the Medical Officer, Investigating Staff of Malakand Levys and other relevant persons. The eye-witness account of the incident has been furnished by P.W. Rashid Khan maker of the report and his brother Hakimur Rehman's, P.W.
6. On the conclusion of the prosecution evidence, accused-appellant was examined under section 342, Cr.P.C. To enable him to offer explanation with regard to his involvement in the case. He denied the allegations and claimed to have been falsely charged on mere suspicion. In answer to a question, regarding. Absconcion, he stated that at the relevant time he was in Saudi Arabia in connection with labour and that he was arrested by E.A.C., Malakand and brought to Pakistan. He also denied having made confessional statement and maintained that he was kept in custody and that his confessional statement was recorded without fulfilling the legal requirements: He opted not to make statement on oath as envisaged by the relevant provision of section 340(2), Cr.P.C. In disproof of accusation brought against him. He produced no evidence in defence.
7. Believing the prosecution evidence, learned trial Judge pronounced verdict of guilt against the appellant as aforementioned.
8. Appearing on behalf of the appellant, Khawaja Muhammad Khan, Advocate bitterly criticised the impugned judgment to the extent of conviction of the appellant and contended that learned trial Court has made a subjective approach to the case and has not considered prosecution evidence to its legal perspective. He also maintained that the appellant and his father Taza Gul (acquitted co-accused) have been assigned similar role of firing in the F.I.R. But the ocular account of the incident furnished by complainant Rashid Khan and his brother Hakimur Rehman's P.Ws. Has been disbelieved in respect of Taza Gul acquitted co-accused whereas same set of evidence has been believed qua the appellant and made basis of conviction. Additionally, he submitted that the ocular testimony stands belied by medical evidence and the site-plan prepared in this case and non-transmission of alleged recovery of three empties of 7.62 bore from the spot to the Arms Expert, for ascertainment of the fact whether fired from one weapon or more of the same caliber, has made the prosecution case doubtful. Adverting to confessional statement and abscondence, he maintained that the appellant has not made any confession at all that is why it has been retracted from the very inception of the case and the appellant had not absconded after the occurrence and he has explained his absence legitimately. In support of the submissions, reliance was placed on the following rulings:-- (1)Tariq Khan v. The State 1997 SCM R 254.
(2)Rehmat alias Rehma Masih v. The State 1995 SCM R 733.
(3)Abdur Rahim v. State 1997 PCr.LJ 1274.
9. Conversely, Mr. Imtiaz Ali, learned Additional Advocate-General assisted by Mr. Muhammad Ijaz, Advocate for the complainant wholeheartedly supported the impugned judgment, regarding conviction of the appellant and reiterated that the case of the appellant is distinguishable from the case of the acquitted co-accused and rule of consistency is not applicable in the case. Reliance has been placed on Mulla Riaz Ahmad v. The State 2002 SCM R 626, Sharafat Ali v. The State 1999 SCM R 329 and Niaz v. The State PLD 1960 SC 38.
10. We have heard at length the arguments of learned counsel for the parties in the light of the material on file and the case-law cited at the bar.
11. The prosecution case mainly rests on the ocular testimony of complainant Rashid Khan and his brother Hakimur Rehman's, P. Ws. Medical evidence, motive, recoveries, confessional statement of the appellant and absconsion of the appellant from 14-4-1998 to 27-8-1999.
12. A perusal of the record would show that prior to the trial of the appellant, Taza Gul, father of the appellant was tried for the offence in question and found not guilty, was extended benefit of doubt and acquitted of the charge of the murder of Taj Muhammad deceased through judgment dated 16-1-1999 recorded by Mr. Khan Akbar Khan, the then learned Sessions Judge/Zilla Qazi, Malakand at Batkhela. The same set of evidence has been believed and made basis of the conviction of the appellant per the impugned order. We find that the case of the appellant is at par with the acquitted co-accused and therefore following the rule of consistency the appellant should have been extended the benefit of doubt which was granted to the acquitted co-accused in the case.
The case set up by the prosecution against the appellant being at par, the acquittal of Taza Gul in the case has not been challenged either by the State or by the complainant through any appeal or revision.
13. It is true that delay in recording the confession by itself cannot render the confession negatory, if otherwise it is proved on record that the same was made voluntarily and not obtained by coercion, threat, pressure etc. In the instant case, we find that the appellant remained in confinement in Saudi Arabia for about nine months. He was brought to Pakistan and he remained in police custody for nine days. The appellant has retracted the confessional statement. The possibility of the confessional statement having been extracted from the appellant through coercion, threat, pressure or third degree method, cannot be excluded in the circumstances of the case. There is no supportive evidence on record to lend corroboration to the confessional statement. So far as the absconsion of the appellant is concerned, that too does not promote the prosecution story. The absconsion in the absence of corroborative evidence is of no avail to the prosecution.
14. It is very important to observe that while passing an order of conviction of an accused for murder the Court has not only to be satisfied that the murder has been committed but it must also be satisfied that accused committed the murder. Before recording an order of conviction or the facts and circumstances of the case have to be taken into consideration and the golden principle of criminal dispensation of justice must be borne in mind. There is no cavil with the proposition of law that except in the cases where by means of a special enactment onus to prove the guilt or otherwise has been placed upon the accused, ordinarily under the general law it is the duty of the prosecution to establish its case independently without any shadow of doubt.
15. In the result and for the foregoing reasons, we feel no difficulty in holding that l the case of the appellant is at par with the acquitted co-accused and he was also entitled for finding of acquittal.
Resultantly, we accept the appeal and set aside the impugned judgment of conviction. The appellant shall be released forthwith if not involved in any other criminal case.
16. We had, by our short order dated 18-6-2003, accepted the appeal and set aside the impugned order dated 12-4-2001 for reasons to be recorded later. Above are the detailed reasons.