' EJAZ AFZAL KHAN, J.--- On 16-8-1997 complainant Muhammad Ramzan reported the death of his brother deceased Din Muhammad by stating that he was informed by Muhammad Akbar and Razaq Hussain alias Gulo P.Ws. Who are running a hotel near the spot of occurrence; that the deceased alongwith Jamshed appellant herein came on a bike, parked it near the Hotel and after taking water there repaired towards its west with the latter; that after some minutes on hearing the report of fire, the P.Ws. Proceeded to the spot and saw the deceased running towards them who was followed by the appellant having a pistol of .30 bore in his hand; that in the meantime the deceased fell on the ground and breathed his last whereas the appellant on seeing them bolted away from the spot. The report culminated in the registration of a case against the appellant under section 302, P.P.C. Vide F.I.R. No,99 dated 16-8-1997 in the Police Station Gomal University, D.I. Khan.
The motive for the incident was the ouster of the appellant by the deceased from his employment on account of his questionable moral character.
2. The Investigating Officer proceeded to the spot, prepared the injury-sheet and the inquest report of the deceased and after dispatching his dead body to the mortuary for post-mortem examination secured blood-stained earth, two empties of .30 bore from the spot, took into possession the bike, prepared the site plan and recorded the statements of the P.Ws.
3. After the arrest and interrogation of the appellant when he willed to make confessional statement he was produced before the Judicial Magistrate who, according to his statement recorded in the Court, after fulfiling the necessary formalities recorded it, wherein the appellant admitted his guilt.
4. After the completion of investigation, the appellant was sent to the learned Sessions Judge, D.I.
Khan for trial. On being charged when he pleaded not guilty the prosecution examined as many as eleven witnesses to prove its case against him. On conclusion of the trial the learned Sessions Judge convicted and sentenced him to undergo imprisonment for life under section 302, P.P.C. And to pay compensation of Rs,1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C.
With the benefit of section 382-B; Cr.P.C. Vide his judgment, dated 15-2-2001.
5. On being aggrieved by the aforesaid judgment, the appellant filed the instant appeal to impugn his conviction and sentence whereas the complainant filed revision petition for enhancement of his sentence which are disposed of by this single judgment.
6. The learned counsel appearing on behalf of the appellant contended that the occurrence admittedly took place at 8 p.m. In the month of August in fairly dark hours, therefore, in the absence of any source of light, it was not possible for any of the P.Ws. To see and identify the appellant; that none of the witnesses charged the appellant in their statements recorded in the Court except Muhammad Akbar, that too in the cross-examination made by the prosecution itself after his being declared as hostile as such the ocular testimony being too deficient cannot connect him with the crime; that the F.I.R. Admittedly recorded after preliminary investigation, being a doubtful document cannot be vested with any air of sanctity; and that despite having remained. In police custody nothing incriminating came forth at the instance of the accused; therefore, the prosecution has miserably failed to substantiate the charge against the appellant beyond any shadow of reasonable doubt. The learned counsel next urged that even the confessional statement of the appellant will not improve the case of the prosecution as it was not recorded after fulfiling the legal formalities necessary for ensuring its voluntariness, as he was not told by the Magistrate whether he makes a confessional statement or not, he will not be remanded back to the police custody after recording it; that he was handed over to the same police and that the disclosure made in the confessional statement neither fits in with the surrounding circumstances nor conforms to the ocular testimony on the one hand and the medical evidence on the other, therefore, it is neither voluntary nor true and thus, cannot be taken into account. The learned counsel to support his contentions placed reliance on the cases of Mashal Khan and others v. The State 1997 PCr.LJ 478, Baz Gul v. The State 2001 PCr.LJ 1442 and Muhammad Israr Khan v. The State 2002 SD 512.
7. On the other hand, the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant contended that the evidence on the record is sufficient by all means to warrant conviction of the appellant, therefore, the learned trial Court by relying thereon has rightly convicted him. The learned counsel by placing reliance on the case of Mst. Robina Bibi v. The State2001 SCMR 1914 contended that the ocular evidence coupled with the confessional statement of the appellant was sufficient to warrant conviction of the appellant. By referring to the evidence of the hostile witness, the learned counsel by placing reliance on the case of State v. Abdul Ghafar 1996 SCMR 678 'contended that the testimony of a hostile witness cannot altogether be left out of account if found true and credible. The learned counsel by placing reliance on the case of Raz Muhammad v. The State PLD 2002 SC 56 contended that a confessional statement if found voluntary and true can alone be made basis for conviction, notwithstanding its retraction. The learned counsel while pressing the petition for enhancement of the sentence contended that where the Court comes to the conclusion that the case against the accused has been proved it is not supposed to labour for awarding lesser punishment in the absence of any mitigating circumstance.
8. We have gone through the record, perused the judgments cited at the bar and carefully considered the submissions of the learned counsel for the parties.
9. A perusal of the evidence on the record would reveal that none of the witnesses charged the appellant for having committed the crime except Muhammad Akbar too in his cross-examination made by the learned counsel for the prosecution after his being declared hostile. No doubt that a- witness who has been declared hostile does not become unworthy of reliance and, therefore, his evidence cannot be brushed aside if found true and credible, but since he speaks in two different voices and two different tones his evidence has to be assessed with much greater care and circumspection. May be he is telling truth when exonerating the accused or may be he is telling truth when charging him. What could be that yardstick or acid test which can enable the Court to decide which of his voices and which of his tones were true and as such worthy of reliance. The sole answer, in our view, to the question is that only those voices and tones of the witnesses can be considered worthy of reliance which are supported by the sources essentially unimpeachable because one tainted piece of evidence cannot, be taken to support or corroborate another tainted piece of evidence.
10. Another question which emerges for our consideration is whether there is any unimpeachable source available on the record supporting those voices and tones of the hostile witness which are favorable to the prosecution. A keen analysis and examination of the record would irresistibly necessitate a negative answer to the question as there is nothing independent or unimpeachable on the record as can tend to lend support to the testimony of the hostile witness, therefore, we are of the firm and considered view that his testimony in the circumstances of the instant cases cannot be considered for holding the appellant guilty of the offence, he is charged with.
11. The F.I.R. There is no denying the fact, being the basic document in a criminal case is vested with much greater sanctity but where it was admittedly recorded after preliminary investigation it loses its sanctity and even the probative worth and as such becomes a suspect D document rather than the one giving a natural, spontaneous and straightforward account of the occurrence. The statement of P.W. Muhammad Akbar is quite clear in this behalf who unreservedly admitted in his cross-examination that the Investigating Officer after seeing the dead body and inspecting the spot recorded the report of P.W. Muhammad Ramzan. Similarly the statement of P.W. Ramzan is more elaborate in this connection who too admitted in his cross-examination that the S.H.O.
Recorded the report after spot inspection and recovery of empties and a broken striker of pistol, therefore, we hold that this document does not deserve that sanctity, it otherwise could have and is thus, not worthy of credence in a case involving capital punishment, moreso when none of the witnesses bothered to report the incident. It was held in the case of Mashal Khan and others v. The State (supra) that where the F.I.R. Was recorded after preliminary investigation, if cannot E be treated either sacrosanct or authentic. The very failure of the eyewitnesses so-called to report the incident will further prove that they were neither natural nor probable witnesses of the occurrence nor their F. Presence at the crucial time appeals to reason particularly when they had no doubt as to the identity of the deceased as well as that of the assailant.
12. Now we are to see whether the confessional statement of the appellant was voluntarily made and legally recorded and as such rings true. The answer to this question, in our view, would be in the negative. Firstly because the Magistrate recording the confessional statement, as is apparent from the memorandum of the confessional statement, has not given any time for reflection to the appellant which is sine qua non for removing the impression caused by inducement, threat or promise and for ensuring its voluntariness. Even in his statement recorded in the Court the Magistrate did not state that he had given any time for reflection to the accused. It might be argued that the statement of the Magistrate in the Court that he fulfilled all the formalities is sufficient to prove that he had given time to the accused for reflection. We are afraid this argument would be untenable on the face of it because the record should contain a full account of the steps taken to ensure the voluntariness of the confession because the purpose behind the preliminaries to recording a confession is not merely to satisfy the Magistrate but also the Court who will hear the case. Where neither the record nor the statement of the Magistrate recorded in the Court shows that the accused was given sufficient time to compose himself, it cannot be held to be voluntary on any count or by any attribute. It was held in the case of State v. Muhammad Naseer 1993 SCMR 1822 that where the record shows that the accused hardly had any time at his disposal to think over before recording his confessional statement, such confessional cannot be held to be voluntary. In the case of Ghulam Muhammad v. The State PLD 1971 Lah. 850, his Lordship Mr. Justice Ataullah Sajjad of Lahore High Court as he then was while referring to the High Court Rules and Orders (Lahore) Vol.III, Chap.XIII, R. And various other judgments held that at least half an hour's time should be given to a confessor for composing himself before recording his confessional statement. Secondly because it does not conform to the medical evidence as according to it, the deceased was hit twice by the pistol firstly by accident and secondly with design but strangely enough there is only one injury on the person of the deceased and thirdly because it does not fit in with the surrounding circumstances because according to the motive mentioned in the F.I.R. The appellant was ousted from his employment by the deceased from his fields on account of his questionable conduct whereas according to the confessional statement it was the questionable conduct of the deceased who was having illicit relation with the wife of the appellant which on being complained against resulted in his ouster therefrom. Whether the motive set up in the F.I.R.
Was correct or the one mentioned in the confessional statement was correct, in either of the cases riding of the deceased and the appellant on a bike, drinking and smoking Charas together was highly unbelievable unless something was brought on the record to show that the difference between them were because of some misunderstanding, that it was removed and that they started afresh from square one. We are, therefore, constrained to hold that the confessional statement of the appellant being inconsistent with the prosecution version cannot be held either voluntary or true and as such it is not safe to record conviction on this piece of evidence. The judgments cited at the bar by the learned counsel for the complainant are, therefore, distinguishable as confessions in those cases were voluntarily made and legally recorded after fulfiling the formalities of law and rang true notwithstanding their restriction which is not the case here.
13. When seen against this background we are of the firm and considered view that the prosecution has miserably failed to bring guilt home to the appellant beyond any shadow of reasonable doubt.
14. For the reasons discussed above, we allow this appeal, set aside the conviction and sentence recorded by the learned trial Court and acquit the appellant of the charge. He be released forthwith if not required in any other case. For the same reasons, criminal revision for enhancement of sentence is dismissed.