IJAZ-UL-HASSAN KHAN, J:--- Appellant Gul Tiaz Khan and non-appellant Mst. Basam Zada alias Gidari, were tried jointly by learned Sessions Judge, Lakki Marwat, on the allegation of having on 24- 7-1996 at 0130 hours, committed murder of Mir Qadir Khan by firing in his house situated in village Mama Khel. At the conclusion of the trial, vide Judgment dated 6-10-1999, appellant and his co- accused Mst. Basam Zada alias Gidari having been found guilty, were convicted under section 302(b)/34, P.P.C., and sentenced to suffer life imprisonment with benefit of section 382-B, Cr.P.C.
Feeling aggrieved, appellant Gul Tiaz Khan has filed instant Jail Criminal Appeal No,129 of 2003, challenging his conviction and sentence.
2. The occurrence which resulted into murder of Mir Qadir Khan deceased is alleged to have taken place on 24-7-1996 at 0130 hours in the house of deceased in village Mama Khel distant 4/5 kilometers from Police Station, Naurang. The F.I.R (Exh.PA) was lodged the same day at 0830 hours on the report of complainant Gul Tiaz and it was recorded by Bashar Khan, (P.W.8), the then SHO, Police Station, Naurang.
3. The prosecution story as reflected in the F.I.R is, that on the night of occurrence i,e, 24-7-1996 Gul Tiaz Khan, complainant, stepbrother of deceased, was asleep in the Baithak of Habib Khan in village Mamakhel along with Habib Khan. At about 1-15 a.m. Mst. Basam Zada, widow of the deceased, knocked at the door of the Baithak. When the complainant opened the door, Mst. Basam Zada called him to the house stating that there were thieves. When at about 1.30 a.m., he entered the house, Mst. Basam Zada told him that they will kill Mir Qadir Khan. On his refusal, Mst. Basam Zada picked up .12 bore DB shotgun and fired at Mir Qadir Khan who was sleeping in the room. With the firing, Mir Qadir Khan died. Mst. Basam Zada dragged the dead body of Mir Qadir Khan outside the entrance door and asked the complainant to fire 4/5 shots from the rifle in order to give impression that Mir Qadir Khan has been killed by some unknown assailant. Motive as disclosed in the F.I.R was stated to be that Mst. Basam Zada had developed love affairs with complainant and she wanted to remove the deceased from her way.
4. After recording the report, S.H.O. Bashar Khan (P.W.8) proceeded to the spot and on reaching there, prepared injury sheet (Exh.PM/1) and inquest report (Exh.PM) of the deceased and sent the deadbody to the mortuary for P.M. Examination under the escort of Sar Anjam. On the arrival of Malik Rashid Khan P.W., he prepared site plan (Exh.PB), recovered empty shell of .12 bore, took into possession bloodstained earth, one DB shotgun and two empties produced by Habib ur Rehman and sealed the same into parcels in presence of marginal witnesses. During the spot inspection, he also took into possession one empty shell of 12 bore on the pointation of Gul Tiaz from the roof of residential Kotha, a chadar at the instance of Gul, Tiaz from the residential room of Mst. Basam Zada and a Charpoy. The S.H.O. Produced both the accused before Judical Magistrate, Lakki Marwat and got recorded their confessional statements on 25-7-1996. The shotgun and the empty were sent to the Laboratory for test and the result of Laboratory is (Exh.PK/1). Exh.PK is the result regarding blood-stained earth. On completion of investigation in the manner described above challan was submitted against the accused in Court.
5. At trial, the prosecution produced nine witnesses in all to prove its case. The accused in their statements recorded under section 342, Cr.P.0 denied the charge and pleaded false implication at the instance of their enemies. They, however, did not prefer to make a statement on Oath under section 340(2), Cr.P.0 nor produced defence evidence. In answer to a question about confessional statement, appellant Gul Tiaz Khan maintained:- "As earlier stated I had not made the report to the police in the way, in which it was, after my report, I was arrested by the police and beaten severely and they obtained my thumb-impression on blank paper. I have made no confession before the Magistrate." In reply to another question as to what is his statement and why he is charged, the appellant stated.
"I am innocent and falsely charged. On the night of occurrence, I was sleeping in my house, i,e, the crime house along with my deceased brother and his wife my co-accused Mst. Basam Zada. At mid-night some one knocked at the outer gate of our house, my deceased brother got up to respond to the call, on opening the gate he was fired upon by some unknown person. I have no connection whatsoever with the commission of offence." Mst Basam Zada, co-accused, also denied having made confessional statement and stated that she was severely beaten by the police and her thumb-impression was obtained on a blank paper.
In answer to another question as to what is her statement and why she has been charged, she replied:- "I am innocent and falsely charged. I originally belong to Mandhuri Petal Shah District Bannu and 14/15 years ago I fell in love with the deceased Mir Qadir Khan and due to which we were committed to the Jail as I eloped with my deceased husband and my uncle Mir Hakim Shah registered a false case against us and spent one year and four months in Jail and after our release we contracted marriage and shifted to Village Mamakhel. My parents were in search of the deceased as well as myself. On the night of occurrence the door was knocked. My husband went outside, after putting on the electric bulb. On opening the door he was fired by someone. I also rushed towards the deceased, there. I saw two persons namely Mir Atlas and Mir Hassan running with DB shotguns. Previously my Nikah was performed with Hassan, upon which he was annoyed and committed the offence. I have given similar account to the police charged the above two persons before the police and in spite of that my arrest was made in the present case."
6. Dr, Naimatullah Khan (P.W.6), Medical Officer, Civil Hospital, Naurang on 24-7-1996 at 7.45 a.m., conducted post-mortem examination, on the dead body of the deceased and found the following on external examination:-
1. One entrance wound .4 CM x 4 CM in the left axillary line and 7th intercostals space charring marks present. On internal examination, walls, ribs, cartilages, pleura, lungs, both left and right, pericardium and heart were found injured. In the opinion of doctor, the death of the deceased occurred due to damage to the vital organs i,e, heart, lungs and profuse hemorrhage.
Probable time between injuries and death was found 5-15 minutes whereas between death and post-mortem was 4/1/2 to 5/1/2 hours.
7. After hearing the arguments of the learned counsel appearing on behalf of the State as well as the accused, scanning the record and appreciating the evidence brought on the record, learned trial Judge proceeded to hold that prosecution has been successful in establishing its case against the accused. He convicted and sentenced the accused, as noted and mentioned above.
8. Mr. Ehsanul Haq Malik, Advocate appearing on behalf of the State before opening arguments, raised an objection to the effect that appeal having been filed on 26-12-2003 against Judgment dated 6-10-1999 is barred by time and merits outright dismissal. The submission is misconceived.
Having regard to the facts and circumstances of the case, we condone the delay in the interest of justice and propose to dispose of the appeal on merits.
9. Challenging the validity of impugned judgment Mr. Farooq Akhtar, Advocate for the appellant, contended inter alia, that there is no reliable evidence on record to sustain conviction; that prosecution case is highly discrepant and unreliable; that confessional statement which is the outcome of pressure and coercion and exculpatory in nature does not prove the complicity of the appellant in the commission of crime; that motive advanced by the complainant is improbable and that reports of Chemical Examiner and Serologist, FSL, N.-W.F.P., Peshawar (Exh.PK) and of Fire Arms Expert (Exh.PK/1) do not in any way connect the appellant with the offence. To substantiate the pleas, he placed reliance on Riaz Hussain v. The State (2001 SCMR 117), Mir Mat Khan alias Matokai, v. The State (2002 PCr.L.J 1914 (Peshawar), Muhammad Ilyas and 3 others v. The State (1989 PCr.L.J 226) and Shah Pasand v. The State (1989 PCr.L.J 1966).
10. While opposing the aforesaid contentions of learned counsel for the appellant and supporting the impugned conclusion of the trial Judge whole heartedly, learned counsel appearing for the State contended that prosecution had fully established its case against the appellant beyond reasonable doubt and the impugned conviction and sentence awarded to him is the result of proper appreciation of evidence brought on record which needs no interference. He also reiterated that perusal of the statement of the Magistrate who recorded the confession of the appellant would show that he confessed his guilt voluntarily and free from any outside pressure or influence.
He added that retraction would not ipso facto make the confession untrue and doubtful as it is settled principle of law that a retracted judicial confession if it is found confidence inspiring would alone be sufficient to sustain conviction. He further added that judicial confession made by the appellant has been found free from any outside pressure and influence and being voluntary, was also seeking ample corroboration from the medical evidence, recoveries and motive. The unimpeachable character of direct and circumstantial evidence brought on record would establish the murder charge against the appellant beyond all reasonable doubts and the finding of guilt arrived at by the trial Court would be unexceptionable. Additionally, he urged that the defence has not projected even through slightest insinuation about the innocence of the appellant or involvement of some other person in the commission of crime. In this regard, reliance was placed on Mehboob Ali alias Maqbali v. The State (2000 PCr.L.J 823 (Peshawar).
11. The prosecution evidence having been carefully perused, we find that appellant's counsel has rightly argued that the prosecution evidence suffers from infirmities and improbabilities and could not be made a basis of conviction of the appellant. It is well-settled principle of the safe administration of criminal justice that an accused has only to show a dent having created in the case of the prosecution and that he is entitled to benefit of even a single doubt found in the evidence of the prosecution and that he has not to show that its case suffers from more than one doubt. 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 the accused committed the murder. Before recording an order of conviction all 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.
12. It may be observed here that prosecution case largely depends on confessional statements of the appellant and co-convict Mst. Basam Zada. The appellant having been arrested on 24-7-1996, made his confession on the following day i,e, 25-7-1996 and it was recorded by P.W. Younis Ali Khan, Judicial Magistrate, Lakki Marwat. He appeared in Court and confirmed having recorded confessional statement of the appellant. From perusal of confessional statement of the appellant, we are satisfied that fear of police was not removed from the mind of accused and the confession made by him is not free from extraneous influences such as threat, promise or inducement. The confessional statement is not voluntary and suffers from various defects and infirmities. The confessional statement has been retracted by the appellant which is enough to make it involuntary and diminish its intrinsic value. Thus, we find that the confession of the appellant is not worth reliance. In criminal cases great responsibility rests upon the Courts to determine if the confession is voluntary and true or is lacking with the scope of either term "voluntary" and "true". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority it would be treated as not voluntary. Voluntary and true are two different terms related with confession and each of them has its own significance. A confession which is voluntary is admissible in evidence even though it may be incorrect in its contents. As against above, a confession which is not voluntary is not admissible though it may be true. Whether a confession is voluntary and true is a question of fact and is to be determined keeping in view the attending circumstances of each case. Voluntariness of confession and of being true are totally distinct.
Voluntariness relates to its admissibility, while its truth is looked into for the purpose of assessing its value. Therefore, for proving confession it should be both voluntary and true. It is well-settled principle of law that the retracted confessional statement has to be relied upon in its toto or excluded in its entirety. It cannot be partly relied, upon and the portion exonerating the accused cannot be discarded. There should be some direct or indirect evidence implicating such a person with the crime before a confession made by the accused could be adverted to in adjudging the guilt of that person.
13. In the final analysis of evidence, we are of considered view that in this case prosecution has failed to prove the case against the appellant beyond doubt. No doubt the occurrence had taken place in which Mir Qadir Khan deceased was shot to death but not in the manner asserted by the prosecution. There is no corroborative evidence to supplement the prosecution version.
Prosecution can seek support from motive, medical evidence, recoveries and confession, but each piece of evidence is defective and failing in intrinsic value. Hence, not fit for reliance to corroborate the prosecution story, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another tainted piece of evidence. We, therefore, hold that it is a fit case in which benefit of doubt can be given to the accused.
14. We may observe here that although Mst. Basam Zada, co-convict, is not before us in appeal but she has also been convicted on the basis of the evidence disbelieved by us, qua appellant Gul Tiaz Khan. In the circumstances, we feel that benefit of our judgment should be given to her also in order to do complete justice in the case. The view we have taken finds support by the dictum laid down in the cases of Saeed ur Rehman and 10 others v. Government of Punjab, Lahore and 3 others (1972 SCMR 2001), Muhabbat Ali and another, v. The State (1985 SCM R 662) and Waqar Zaheer, v.
The State (PLD 1991 SC 447).
15. For what has been discussed above, while allowing this appeal, we set aside the impugned Judgment of conviction and sentence and acquit the appellant as well as his co-accused Mst.
Basam Zada of the charge. They shall be released forthwith from Jail if not required in any other case.
16. Above are the detailed reasons of our short order dated 1-7-2004.