1. DOST MUHAMMAD KHAN, J.----Appellant Muhammad Shafiq aged about 29/30 years has been convicted by the learned Judge Anti-Terrorism Court, Kohat vide judgment dated 31-7-2002 and sentenced to death under section 302, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 on the charge of murder of Waqar Ali aged about 25/26 years. He was also sentenced to pay a fine of rupees one lac or in default of payment of fine to undergo the imprisonment for seven years. The fine, on recovery, was ordered to be paid to the legal heirs of the deceased. The learned trial Judge has also sent Murder Reference No.13 of 2002 for confirmation of the sentence. However, co--- accused Zakir Hussain and Altaf Hussain were acquitted through the impugned judgment.
2. Briefly, facts of the instant crime are that Waqar Ali deceased disappeared and went missing on 4- 4-2002 at about 12-30 noon and when he did not return home, his brother Saif Ali complainant (P.W.7), therefore, reported this incident to Police Station Usterzai Payan, District Kohat on 5-4-2002 at 15-35 hours which was recorded at Serial No. 13 in the daily diary by Arif Hussain, M.H.C. (P.W.12) which is Exh.P.A. In the said report he quoted Taimoor Khan P. W. (not produced) and Abdul Wahab (P. W.13) having disclosed to him that on 4-4-2002 at noon time when the deceased was in their company near Railway Line the appellant and leis two acquitted co---accused came there and took the deceased with him and went away towards the Hill side while the latter are stated to have returned from midway and went to their homes.
3. Further story of the crime unfolded in the First Information Report is that Muhammad Firdous, S.-I.
4. (P.W.1) the Investigating Officer while preparing the Murasila report proclaimed that on inquiry f under section 156(2), Cr.P.C. On the above daily diary report wherein the appellant and the two co- accused were suspected for the incident, therefore, his suspicion also fell on them. When he learnt that the appellant had gone to Peshawar Airport for going abroad so to thwart his such attempt, he assigned the task of laying hands on him to Muhammad Raees Khan, A.S.-I. (P.W.4) who caught hold of him at the airport and brought him to Police Station Usterzai, District Kohat where he was detained. Further disclosed m the report that it was on 6-4-2002 when the appellant during detention divulged that he had killed the deceased in the Hill side while the two acquitted co- accused returned home during the transit before reaching the crime spot. In consequence of this disclosure, the appellant led him and the police-party to the crime spot wherefrom the dead body was discovered bearing signs of burns, therefore, he prepared the injury-sheet, inquest report and despatched it for autopsy to Civil Hospital, Usterzai and on completion of Murasila report also sent it for registration of the case besides preparing the pointation/recovery memo. Further improvements in the case took place when the Investigating Officer and the police-party were led by the appellant to the house of P.W. Muhammad Yar (not produced) who produced the crime rifle of 7.62 bore to him which too was taken into possession vide memo. Exh.P.A./5.
5. On 7-4-2002 the appellant and his two accomplices were produced for the first time before the Magistrate requesting for police custody which was allowed and on the expiry of the same the appellant alongwith the two acquitted co-accused was produced before the same Magistrate on 8-4-2002 where he made the confession of his guilt which is Exh. P. W.9/2.
6. After completion of investigation, challan against the appellant and the two acquitted co-accused was submitted for trial before the learned Judge Anti-Terrorism Court, Kohat where at the conclusion of trial vide the impugned judgment dated 31-7-2002 the appellant was convicted and sentenced as above while his two co-accused were acquitted.
7. On appeal to this Court in the first instance a Division Bench vide judgment dated 10-9-2002 held that it was a crime of ordinary nature, therefore, was not triable by the Special Court under the Act thus, while setting aside his conviction and sentence the case was remanded for re-trial by the Court of Session. However, this judgment was set aside by the Honourable Supreme Court of Pakistan vide judgment dated 25-10-2002 in Cr. P.L.A. No.112-P of 2002 and the case was remanded to this Court for decision on merits.
8. We have heard Mr. Muhammad Zahoorul Haq, learned counsel for the appellant, Mr. Fazkhr-e- Azam learned counsel for the complainant and Malik Muhammad Jan, D.A.-G. For the State and have carefully gone through the entire evidence on record.
9. There is no ocular account in the instant case and the same is based on the following items of evidence:--
(i) The confessional statement of the appellant.
(ii) The recovery/discovery of dead body of the deceased at the instance of the appellant.
10. (i.e) The statement of Abdul Wahab (P. W.13) witness of last seen evidence.
(iv) The medical evidence.
(v) The recovery/discovery of the crime weapon.
(vi) Positive report of the Fire-arms Expert.
11. The confession of the appellant is relied upon both by the prosecution and the learned trial Judge as a main piece of evidence against the appellant, therefore, let us consider it first.
12. According to the evidence the appellant had returned from abroad sometimes ago on leave and on the expiry of the same he was leaving the country on 5-4-2002. He was taken into custody by Muhammad Raees Khan (P.W.4) deputed by P.W.1 the Investigating Officer and was brought to the Police Station where he was detained. Although no formal arrest card in view of section 54, Cr.P.C.
13. Was made/prepared but the fact remains that such detention/restriction imposed on him under the law certainly amounts to arrest because liberty and free movements of the appellant were curtailed. In support of the above view we take guidance from the judgment of the apex Court in the case Ch. Muhammad Yaqoob and others v. The State and others (1992 SCM R 1983) wherein their Lordships enunciated and laid down the following law:-- "Police custody does not necessarily mean custody after formal arrest but also includes some form of police surveillance and restriction."
14. At the time of arrest the arresting A.S.-I. Was not having the warrant of arrest nor for the custody in transit from Peshawar to Kohat of the appellant any such warrant was obtained from the competent Court and the thus remained in illegal detention till 7-4-2002 the date on which his remand custody was obtained from the Illaqa Magistrate, Kohat.
15. While appearing as P.W.9 Syed Zamrud Shah the learned Magistrate squarely admitted in the cross-examination that the appellant was produced before him at twelve noon and he was ready to make the confession but he was handed over to the police and was left with them till 14-15 hours where-after he was produced before him again and thereafter he recorded his confession. Again he did not remember as to how much time for reflection was given to the appellant and further admitted that he recorded the confession in the side room and keeping in view the time of recording the confession, certainly it was recorded after the Court hours.
16. Now keeping in view the above stated and admitted facts it is proved beyond the access of denial that after questioning the appellant on his first appearance he was given back to the same police officer who earlier produced him. The procedure adopted by the learned Magistrate is certainly in disregard of the mandatory provision of law as well as the High Court Rules thus it is to be seen as to whether such confession can be held to have been made voluntarily or not.
17. Now from the above a legitimate inference can be drawn that the appellant on his first appearance has refused to make a confession, therefore, he was given back to the police and he remained for about two and a half hours thereafter in its custody. It is another question as to where he was kept during this period and what treatment was given to him because there is nothing on record to explain this mysterious circumstance which is also a big question mark.
18. Why the recording of confession was delayed till the expiry of the Court time and what was the reason for recording the same in the retiring room. All these questions are of fatal consequence for the prosecution and makes its case absolutely doubtful and unreliable for recording a conviction and giving a capital punishment on such retracted confession.
19. The object behind legal and judicial insistence which is emphatic and firm, in meticulous observance of all the essential/prescribed formalities and precautions before recording the confession is to provide to the confessing accused an environment of absolute freedom from all inside and outside hostile factors which cause or induce fearful consequence in his mind in case he refuses to make it. Unless all the signs of such fear are shedded from his mind the only inference to be drawn would be that it was not made voluntarily, therefore, such confession would be irrelevant and inadmissible in evidence and cannot be made the sole basis for conviction on a capital charge. The combined effects of sections 164 and 364, Cr.P.C. Read with Articles 41 and 43 of the Qanun-e-Shahadat Order, 1984 are that before relying on confession of an accused two essential legal requirements must be fully and objectively satisfied; firstly, that the confession is made voluntarily and is true and; secondly, that the same must be proved at the trial. In the absence of these legal requirements having been fully secured and satisfied such e confession cannot be considered as a legal piece of evidence.
20. Keeping in view the illegal arrest and detention of the appellant and the manner in which his confession was recorded lead us to a firm conclusion that it was not made voluntarily, the story mentioned therein with reference to the motive that the appellant's mind received such an impulse making his blood boil to an irreversible extent in killing the deceased and that too when the deceased was having brothers and other close relatives is a fact apart.
21. So far as the evidence on the point of recovery/discovery of dead body of the deceased at the pointation of the appellant is concerned, the same is bereft of all the legal credentials both on legal and factual premises. As discussed above this piece of evidence was collected during the time when the appellant remained in illegal custody/detention of the police and on this score alone the same cannot be relied upon. However, if believed as hinted upon by the prosecution that the appellant was arrested as an accused in the case on 6-4-2002 after the discovery of the dead body at his pointation then from this angle too this exercise offends against the provisions of Article 40 of the Qanun-e---Shahadat Order, 1984 which for proper understanding is reproduced below:-- "40. How much of information _received from accused may be proved.---When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved."
22. It is the stand of the prosecution that the appellant was made as an accused after the discovery of the dead body at his alleged pointation and was arrested. His arrest card prepared also shows the date as 6-4-2002 thus keeping in view the statutory provision when he was not treated as an accused immediately before the discovery of the dead body nor he was under arrest then the above recovery/discovery does not in any manner fulfil the requirements of the law and is, therefore, irrelevant and inadmissible thus on legal plan it cannot be acted upon.
23. We have also before us the statement of P.W.8 Sardar Ali on the above point who in the cross- examination has stated that about 50 persons of the area had already reached the spot where the dead body was lying before the arrival of the police and him in the company of the appellant. No doubt being a retired clerk of D.C. Office possessing some experience and wisdom he has corrected himself in the next line on this point but such disclosure made cannot be ignored because it is conclusive in its effect and is not a result of slip of the tongue thus when the presence of the dead body on the spot was in the advance knowledge of the police and the people of the area the recovery of the same cannot be held to be at the pointation of the appellant because, his exclusive knowledge about it, is not established.
24. The next item before us is the last seen evidence deposed to by P.W.13 Abdul Wahab which is worth perusal. He has disclosed that he was detained in the Police Station .For three days alongwith abandoned P.W. Taimoor and was also brought to the Court in handcuffs for recording his statement under section 164, Cr.P.C. In view of this statement it cannot be held that he has deposed voluntarily and indeed was the witness of the last seen evidence rather this piece of evidence seems to be procured one. He has also disclosed that he was threatened by the police that a bottle would be inserted in his private part if he did not comply. Such frighting disclosure, is more than enough reason to discard his testimony altogether. He has also stated that he had never disclosed about the last seen evidence to Saif Ali P.W.7 the brother of the deceased as mentioned in the daily diary report.
25. So far as the recovery of crime rifle is concerned, the same equally is, not in accord with law and Article 40 of the Qanun--e-Shahadat Order, 1984 as it was produced to the Investigating Officer by one Muhammad Yar P.W. (not produced) and was not a discovery at the instance of the appellant.
26. It is yet another begging question that the degree of intimacy in between them has not been explained in any manner so that to draw a legitimate inference that Muhammad Yar was a person of fair confidence for the appellant and the alleged crime weapon was, therefore, left with him for concealment. Again this rifle was not sealed into parcel there and then and it is also not clear from the record as to by whom and when it was despatched to the Firearms Expert and who was the carrier. When the entire exercise in this regard is surrounded by grave doubts and the safe transmission of the gun is equally not established then it is highly unsafe to rely on this piece of evidence too, moreso when the empties recovered from the spot have also not been indicated in Column No.23 of 'the inquest report which were found close to the dead body.
27. The medical evidence m the above circumstances is left with no legal importance and, therefore, is of no legal worth to be considered as the same in no way identifies the culprit.
28. From the appraisal of evidence and the discussion made above it is established that the investigations in the case were conducted not in a fair manner and dishonesty has been committed at different successive stages in procuring false evidence and in this background judicial mind would remain disturbed to record the verdict of guilt against the appellant and to award a capital punishment on the basis of same.
29. Before concluding this judgment is essential to point out that the learned trial Judge has not mentioned in the impugned judgment that the appellant be hanged by his neck till he is dead thus mandatory provision of section 368, Cr.P.C. Has been violated and the impugned judgment to this extent is legally creptic.
30. As discussed above and judged from all angles we are firm in our view that the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubts, therefore, while extending him the benefit of doubts we acquit him from the charge levelled against him thus he be set free forthwith if not required in any other case. The appeal is accordingly accepted and the Murder Reference is not confirmed.
31. Above are the reasons for our short order dated 15-1-2003.