TARIQ PARVEZ KHAN, J.---Zahid Iqbal son of Abdul Qadeer is accused of causing the death of Shahbaz (deceased).
2. He was tried by learned Sessions Judge, Haripur and on 24-1-2001 was convicted to life imprisonment with a fine of Rs.80,000 and in default to undergo two years' S.I. The said fine on recovery was to be paid to the legal heirs of the deceased, He has been given the benefit of section 382-B, Cr.P.C.
3. Facts, briefly stated are that Mumtaz (P.W.3) father of the deceased Shahbaz while present in the Football Ground of Staff College of T.I.P. Reported to Mehmood Khan, A.S.-I. (P.W.6) that his son deceased Shahbaz who is an apprentice in T.I.P, had left the house at about 5-00 p.m. On 10-12- 1998 and when did not return, was searched but could not be found until he received information that the dead body is lying in the Football Ground and when he came to the ground found the dead boy to be that of his son. Nobody was charged nor suspected in the F.I.R. Which was made at 7-30 a.m. On 11-12-1998.
4. Appellant Zahid Iqbal who was also an apprentice in T.I. P. And because he was found absent from his class room on 11-12-1998 was, therefore, suspected amongst others and was reportedly interrogated where he admitted his guilt before the police on 13-12-1998 and on the same day has allegedly led the police party to the recovery of .32 bore licensed pistol in his name to be the crime weapon and has also produced five live rounds of the same bore with copy of the licence.
During the spot inspection the investigating Officer had recovered two empties of .32 bore and such empties alongwith pistol recovered on the pointation of accused were sent to the Forensic Science Laboratory, the report whereof is Exh.P.W.6/8 and is in positive.
5. Accused was produced before Tahir Mehmood, Judicial Magistrate (P.W.9) on 14-12-1998 for recording his confessional statement which was accordingly recorded as Exh.P.W.9/2.
6. The confession and positive report of the Fire-Arms Expert has found favour with the learned trial Judge who has recorded the conviction of the appellant.
7. Learned counsel appearing for the appellant has assailed the judgment of conviction on the grounds that confession is the only evidence against the appellant which has been retracted, that the retracted confession is not corroborated by other circumstance, that the Magistrate recording confession has not satisfied himself regarding voluntariness of the confession, that the so---called confession was recorded in the language other than that of the accused, that only 20 minutes time was given to the accused for pondering over if he wants to make confession, that it is admitted by Mehmood Khan (P.W.6) the Investigating Officer that after the confession was recorded accused- appellant was entrusted to him and was not sent to judicial lock-up straightaway, that the confession was the outcome of duress and torture and that it is neither voluntary nor true. Learned counsel has relied on 1993 SCMR 1822; 1969 SCMR 390; 1973 SCMR 162 and PLD 1990 Peshawar 10.
8. It is argued for excluding the positive report of the Fire-Arms Expert that empties were recovered on 11-12-1998, pistol was allegedly produced by the accused on 13-12-1998 and they were together sent to the Fire-Arm Expert who has received them on 5-1-1999 whereas report was prepared on 26-1-1999, therefore, there is every possibility that the report was fabricated and empties were planted which should, therefore, be excluded from consideration.
9. Learned counsel for the complainant has vehemently argued that complainant party has got no motive to bring a false charge and in fact it was the appellant himself who volunteered to make confession where he has admitted his guilt. It is argued that confession was recorded the next day of arrest of the accused and there is no evidence that police had any ulterior motive against the appellant to coerce him for making the confession. Submission is made that even the motive has been furnished by the confessor himself and on his pointation/production crime pistol was recovered which is licensed one and has matched with the two crime empties recovered on the day of occurrence, this would be sufficient evidence for basing conviction.
He argued that where delay in making the confession is taken against the prosecution, similarly where it is promptly recorded should be taken in favour of the prosecution. Learned counsel argued that from the date of making confession until the appellant was examined by the trial Judge, confession was never retracted, therefore, it cannot be a voluntary retraction but is an afterthought.
10. Learned counsel argued that where confession is corroborated by medical evidence and the Fire-Arms Expert's Report and despite its retraction it will be legal evidence.
Learned counsel has relied on 2000 PCr.LJ 1364; 1969 SCMR 521; 1999 SCMR 1744; PLD 2001 Pesh. 1 and 1992 SCMR 950.
11. Learned Deputy Advocate-General supports the judgment of conviction and has adopted the arguments advanced by learned counsel for the complainant.
12. Facts which cannot be denied in this case are that there is no ocular account, there is no evidence of motive, there is no confession for any other circumstantial evidence like abscondence except the confessional statement of the appellant Zahid Iqbal and the positive report of Fire-Arms Expert Exh. P. W .6/8.
13. We will start from the stage as to how the appellant was arrested. It has come in evidence of the Investigating Officer that because the appellant was a co-apprentice with the deceased in T.I. P.
And as he was found absent on 11-12-1998 from his class, which has created doubt in the mind of the Investigating Officer regarding involvement of the appellant in the crime.
On 12-12-1998 the quarter of the uncle of the appellant was raided for the arrest of the appellant but he was not found as the quarter was locked and the police was informed that appellant is not available in the Colony. However, on the next day i.e. 13-12-1998 appellant was arrested and he during interrogation is alleged to have admitted the guilt.
On the very day of arrest but in evening appellant is alleged to have led the police party to the '
Baithak' of the quarter which was under his occupancy and from the draws of the table is said to have produced a .32 bore licensed pistol with five live rounds.
Apparently the confession Exh.P.W.9/2 appears to have been recorded on the next day of the arrest of the appellant but we have to see that under what circumstances it was recorded and whether it fulfils the legal requirements which are necessary for our satisfaction to draw an irresistible conclusion that it was voluntarily made.
14. It has been admitted by Mehmood Khan (P.W.6) that prior to the arrest of the present appellant some rather suspects were also arrested and on complaint filed against him by such suspects on inquiry the D.I.-G. Suspended P.W.6. Where there is element of dishonest investigation and arrest followed by suspension of P.W.6, the arrest of appellant on suspicion and coercing him to make confessional statement cannot be ruled out.
15. We have gone through the statement of Tahir Mehmood, Judicial Magistrate who has recorded the confession and has admitted that only twenty minutes time was given to the accused before making confession to think over it. Such short span, of time cannot be held sufficient to remove the pressure of the police from the mind of a person who has been in police custody for more than 24 hours without any remand.
It is in evidence of P.W.6 that after I the confession was recorded which was about 12 or 12-30 noon, accused was handed overt back to him. When after the confession is recorded and the confessor is handed over to the same police officer who has produced him for recording confession, such confession cannot be accepted to be voluntary confession. P.W.6 Mehmood Khan, A.S.-I. And P.W.9, Tahir Mehmood, Judicial Magistrate are both in consistent as to the time when the appellant was produced for recording his confession. According to Mehmood Khan, he has taken the accused to the Court of Magistrate for confession at 9-10 or 10-00 a.m. Whereas according to the confession Exh.PW.9/2 the accused was produced before the Magistrate at 12-00 noon.
The original confession which is on record also indicates that the certificate attached thereto is and nothing is recorded by the in his hand, therefore, adopting a mechanical process in preparing the certificate without application of independent mind would be another factor' reflecting on the involuntariness of the confession.
16. Confession must not only be voluntary but must be true but we do not find any truth in this confession. The pistol alleged to be the crime weapon though allegedly taken into possession on pointation of accused on 13-12-1998 is not given to the confessor in the body of his confession.
According to the confession three fire shots were made hitting the deceased whereas according to the medical report deceased has sustained two fire-arm entry wounds.
Motive was given in -the confession but no evidence was produced by the prosecution in support thereof.
17. To reach a just conclusion we have gone through the police record and the motive which is given by the confessor appears to be the brain-child of Investigating Officer because prior to the arrest of the accused he had already recorded that deceased was a sodomist and might have been killed by Zahid Iqbal appellant either because he himself was subjected to sodomy or some other close relative of him. This would show that motive is the creation of the mind of the Investigating Officer which was to be put into the mouth of the appellant.
18. Where the confession is neither voluntary nor true and both are subject to doubts and when same is retracted and when there is no other evidence led by the prosecution it will be unsafe to base conviction thereon.
19. The other connecting evidence against the appellant is the report of Fire-- Arms Expert, which is circumstantial evidence and is taken as corroboration but provided there is other evidence.
Pistol was allegedly recovered on 13-12-1998 but it was received by the Fire-- Arms Expert on 5-1- 1999 i.e. After 22 days and the empties were already with the police, therefore, such delay in the despatch of crime empties and pistol where police was also dishonest as given by us in the preceding paras., we cannot accept the genuineness of such report.
There is yet another aspect of the case that when on 13-12-1998 the police went to the Baithak of the accused where he was arrested, police has not recovered any pistol but they took him to the Police Station, interrogated him and thereafter he led the policy party to the same ' Baithak' wherefrom he was arrested.
For the reasons stated above, we allow this appeal. Conviction and sentence of the appellant are set aside and he is acquitted of the charge. He be set free from jail forthwith, if not required in any other case.
Criminal Revision No.27 of 2001 As we have allowed the appeal of the respondent, therefore; this criminal revision for enhancement of the sentence has become infructuous and is dismissed as such.