' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of the Criminal Appeal No.13 of 2000 and Confirmation Case No.3 of 2000 as they arise out of a common judgment.
2. The present appeal is directed against the judgment dated 23-1-2000 passed by the learned Additional Session Judge, Sanghar in Sessions Case No.217 of 1996 (State v. John and another) under sections 302, 34, P.P.C. Of Police Station Sanghar. Under the impugned judgment, the learned Judge convicted the appellants under section 302(b) of P.P.C. And sentenced each of them to death. As the trial Court had awarded death sentence, therefore, the reference under section 374, Cr.P.C. Has been sent for confirmation of the death sentence.
3. The facts giving rise to the present appeal are that on 1-10-1996 the complainant Munir, his brothers Munawar, Aftab and deceased Nadeem Perveez were present in their house. The appellants were their relatives and used to visit their house. At about 2-00 a.m. In the night, the appellants went to the house of the complainant and made a call. At that time the deceased Nadeem Perveez was sleeping in the house. The complainant saw the appellants John armed with a gun and Habib armed with a pistol. The appellants called the deceased on the pretext to accompany them to visit the fields. Thereafter the appellants and the deceased went away together. After about half an hour the complainant and P.Ws. Heard firearm reports, therefore, they -went to the lands. They saw the appellants running away. They reached culvert of a water course where they saw the deceased Nadeem Perveez lying dead with fire-arm injuries on his person.
Thereafter the complainant and his brothers Munawar and Aftab went back to the house and made a telephone call to their cousin George who came in the morning and advised them to lodge the report. Therefore, at 8-00 a.m. The complainant lodged the report. The police started investigation. They went to the place of incident and saw the dead body lying on the culvert of the watercourse. Two empty cartridges and blood-stained earth were recovered from there. The Investigation Officer recorded the statements of witnesses. The appellants were arrested. They voluntarily produced their weapons from their houses, which were secured and sealed. The appellants were produced before the Magistrate for recording their judicial .Confessions where their confessions were recorded. The properties were sent to Ballistic Expert for examination and report. After completing the usual investigation the appellants were challenged in the Court.
4. On 9-4-1997, a charge under sections 302, 34, P.P.C. Was framed against the appellants but they pleaded not guilty.
5. In support of the case, the prosecution examined the following 7 witnesses:-- {{TABLE}} S.No. P.W.No. Name of witness Brief summary of evidence P. W .1 , . Munir Complainant/brother of the deceased. On the call of the appellants he saw them taking away the deceased with them. After half-an- hour of their departure, he heard fire-arm reports. He and P.Ws. Went to the scene of incident where they saw the deceased lying dead and the appellants- running away from there. He lodged the report.
P.W.2 Munawar Brother of- the deceased. His evidence is same as that of P.W.1.
P.W.3 Dr.Hotoo Mal Medical Officer. He received the dead body on 1-10-1996 at 12-30 p.m. For conducting the post- mortem examination which was started at 2-30 p.m. He found 10 injuries on the person of the deceased, out of them 9 injuries were caused by fire-arm weapon. One injury was abrasion. He opined that the deceased died because of the said injuries. The time between death and injuries was instantaneous and between death and post-mortem was 9 to 12 hours. Positive in respect of only Single Barrel Gun produced by the appellant Johan.
P . W .4 Mehmood Tapedar. He prepared the sketch of the place of incident.
P.W .5 Akhtar Mashir of the inquest report, place of incident, securing of two empties from the said place, securing of blood- stained clothes of the deceased, arrest of the appellants and production of gun and pistol by the appellants.
P.W.6 Muhammad Azeem Judicial Magistrate.
He recorded the judicial confessions of the appellants.
P.W. S.-I.P.
Ghulam Sarwar Investigating Officer. He gave the details of the investigation and produced the Ballistic Expert report, which is {{TABLE}}
6. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant John in his further statement stated as under:-- .
"I am innocent and falsely implicated in the case. In fact Shama suspected illicit relations of deceased with his sister Meena. Manoel is elder brother of Shama and married with sister of complainant. Previously, Shama has attempted to kill deceased twice by fire-arm weapon, but due to our interference he could not succeed and then third time, he made attempt to kill the deceased by means of Pajero Jeep of Khuda Bux Rajar but deceased and we saved us and the jeep hit in tree.
I also produced herewith certified copy of certificate of Assistant Superintendent C.P. Hyderabad as Exh. 16-A .Remand order Exh.16-B, letter of police for confession Exh.15-C and certificate of Nawab Shah Filling Station, Skrand Road Nawab' Shah Exh. 16-D, showing Munawar Micheal on duty on 1-10- 1996. Deceased was our friend. We used to move about together. Shama restrained us from moving with the deceased, but we refused. 10 days prior to present incident sister of complainant was married with my brother Waris and this also annoyed them and they issued threats for dire consequences. Shama have killed deceased and involved us falsely in the case. Co-accused is my nephew.
7. In the statement, he produced a letter issued by Assistant Superintendent Central Prison Hyderabad showing the appellants admitted in Jail on 6-10-1996. Remand order of the Judicial Magistrate dated 3-10-1996 showing the appellants remanded to Judicial Custody from 3-10-1996 to 5-10-1996. An application moved by the S.H.O. For obtaining certified copy of the confessions of the appellants. The appellant Habib adopted the statement of appellant John. The appellants did not examine themselves on oath or lead any evidence in their defence.
8. After considering the material available on the record, the learned trial Judge convicted the appellants as, mentioned above under the impugned judgment.
9. The appellants were dissatisfied with the said judgment; therefore, they-have preferred the present appeal.
10. We have heard the Advocate for the appellants, State Counsel and perused the record of this case very carefully.
11. The learned Advocate for the appellants has stated that the evidence of the complainant and the P.W. Munawar on the point of deceased last seen alive with appellants is very weak type of evidence which requires strong corroboration but the same is lacking; that the prosecution has alleged that the P.Ws. Saw the appellants running away from the place of incident at 2-00 a.m. In the night but no source of light has been shown by the prosecution to prove the identification of the appellants. He has further stated that the motive alleged in the F.I.R. Was that the appellants were suspecting the deceased having illicit terms with Mst. Marriam alias Goshi, sister of the appellants, but the said motive has not been proved, therefore, it has adversely affected the prosecution story; that the witnesses came to know about the incident in the morning and then after consultation, they have involved the appellants in this case. On the proposition that evidence of last seen is a very weak type of evidence he has relied upon Nazo v. State 1977 SCMR 20, Ghulam Mustafa v. State PLD 1991 SC 718. He has further stated that the recoveries of weapons are doubtful as the appellants were in illegal custody from 3-10-1996, because the Judicial Magistrate had remanded the appellants to judicial custody but the police kept them in their custody and then produced them before the Magistrate on 5-10-1996 for recording their judicial confessions; that such confessions while in illegal custody has lost its importance. On the above proposition, he has relied upon PLD 1990 (W.P.)Kar. 817 and Additional A.G. v. Abdul Majeed PLD 1965 Quetta 20. He has further stated that empty cartridges were secured from the place of incident on 1-10-1996 but the same were sent to Ballistic Expert alongwith the gun and pistol after more than 1-1/2 years of the incident for which the prosecution have failed to furnish any explanation as such the report of Chemical. Analyser has lost its importance. He has relied upon Muhammad Shall v. State PLD 1968 Lah. 869, Muhammad Hassan v. State PLD 1982 Lah. 577 and Muhammad Youths Khan v. State 1992 SCMR 545.
12. On the other hand the learned State Counsel has stated that the P. Ws: 1 and 2 saw the appellants being taking away the deceased with them, who have fully supported the prosecution case; that both the witnesses had seen the appellants running away from the place of incident just after the incident; that the evidence of both the witnesses is supported and corroborated by the confessions of the appellants and recoveries, therefore, the prosecution have proved the case against the appellants. He has further stated that mere delay in sending the property to Ballistic Expert is not sufficient to discard the evidence of prosecution and relied upon Muhammad Mushtaq v. State PLD 2001 SC 107. He has further stated that on 3-101996 the Judicial Magistrate did not remand the appellants to judicial custody as the Investigating Officer deposed that the Judicial Magistrate remanded the appellants to police custody. He has supported the impugned judgment.
13. We have considered the arguments and found that the case of the prosecution rests upon the following pieces of evidence:--
(I) Motive.
(II) Deceased last seen alive with the appellants.
(III) The P.Ws. Saw the appellants running away from the Wardat.
(IV) Judicial Confession.
(V) Recoveries.
(I) Motive.
14. The prosecution alleges that the appellants were suspecting that the deceased had illicit terms with Mst. Marriam alias Goshi, the sister of the appellant John. Therefore, this incident took place.
The complainant Munir in his deposition did not speak about the motive. P.W.2 Munawar stated that the appellants were suspecting the deceased having illicit terms with Mst. Marriam. Therefore, this incident took place. The prosecution did not examine any other witness on the above point.
However, if the complainant party knew that the appellants were suspecting the deceased having illicit relations with Mst. Marriam, the sister of appellant John, then the complainant and P.Ws.
Would not have allowed the deceased to go with the appellants during odd hours of night at 2-00 a.m. Particularly when it is alleged that the appellants were armed with deadly weapons such as gun and pistol. It has come in the evidence that the deceased and the appellants had friendly relations. Thus, it is very unsafe to rely upon the solitary statement of P.W. Munawar without any corroboration. In the above circumstances, the prosecution have failed to prove the motive beyond reasonable doubt.
(II) Deceased last seen alive with the appellants.
15. On this point the prosecution relied upon the evidence of P.Ws.1 and 2. They are brothers. Their evidence reveals that they were present in the house alongwith deceased Nadeem Perveez when on 1-10-1996 at 2-00 a.m. The appellants took away the deceased with them. On the above point both the witnesses were cross-examined in which they denied the suggestion of the appellants that they did not take the deceased with them. Their evidence on the above point has not been shaken by the . Defence, as such; the prosecution have proved that the appellants had taken away the deceased with them on the night of incident.
(III) P.Ws. Saw the appellants running away from the place of incident.
16. On this point, the prosecution relied upon the evidence of P.Ws.1 and 2.
' They both deposed that half-an-hour of the departure of the deceased with the appellants, they heard fire-arm reports. Therefore, they went there and saw the appellants running away from the place of incident. The deceased was lying dead with fire-arm injuries on the culvert of the watercourse. It is pertinent to point out that the alleged incident took place at the odd hours of night viz. At 2-00 a.m. The place of incident is a culvert of watercourse outside the Padri Village. The prosecution did not show any source of light at the said place or alleged that it was a moonlight night, or any evidence was produced to show that the P.Ws. Had identified the appellants on torchlight or any other source of light. In such situation, it is highly improbable that the P. Ws. Would have been able to identify the two persons running away at a distance of about 1-1/2 acres away from the P. Ws. As stated by the P.Ws. Munawar. Thus the prosecution have failed to prove this aspect of the case.
(IV) Judicial Confession.
17. The prosecution alleges that the appellants were arrested on 2-10-1996 and their confessions were recorded on 5-10-1996 before the Magistrate. In support of the case, the prosecution examined P.W.6 Muhammad Azeem (Judicial Magistrate). He stated that on 5-10-1996 the police brought the appellants before him for recording their judicial confessions. After completing the required formalities, he recorded the confessions of the appellants. The confessions have been produced as Exhs.13-B and 13-C. The confession of appellant Johan (Exh.13-B) shows that he has implicated himself whereas the confession of appellant Habib is self-exculpatory. However, the Magistrate was inquired as to whether the appellants were produced before him on 3-10-1996 for granting remand; to which, he showed his ignorance as he did not remember the said facts. -
18. The case of appellants is that on 3-10-1996, the appellants were produced before the Judicial Magistrate for obtaining the police remand but the Judicial Magistrate did not grant remand of police custody. Instead, there of the Magistrate remanded the appellants to judicial custody.
However, the police did not hand over the custody of the appellants to jail authorities but kept their custody with them. Thereafter, the police produced the appellants before the Magistrate on 5-10- 1996 for recording their judicial confessions. As such, the confessions were recorded while the appellants were in illegal custody of the police. The said facts were put to S.-I.P. Ghulam Sarwar (P.
W. 7) but he denied the same. The appellants produced the certified true copy of remand order granted by the Magistrate on 3-10-1996 in their statement recorded under section 342, Cr .P.0 . As Exh. 16-B. A perusal of the said order shows that the appellants were remanded to judicial custody for 3 days i.e. From 3-10-1996 to 5-10-1996. The Investigating Officer (P.W.7) admitted that after 3- 10-1996, the custody of the appellant remained with his. As such, the appellant were in illegal custody of the Investigating Officer in violation of Judicial Magistrate's Order (Exh.16-B). In such situation, the illegal custody of the appellants has adversely reflected upon the judicial confessions. A Division Bench of this Court in a case of Hamzo v. State PLD 1960 (W.P.) Kar. 817 observed that where a person, before his confession was recorded, had been detained by the police for two days without having obtained a remand and no attempt was made by the prosecution to explain the illegal detention by the police, it was held that the confession at the appearance of having been improperly obtained. As such the confessions have lost their due importance.
19. Apart from above facts, the appellant John has retracted from his judicial confession. In the case of Bahadar Khan v. State reported in PLD 1995 SC 336 it has been held that retracted confession should be accepted only when it is corroborated by clear, cogent and independent evidence. It is a rule of prudence and the corroboration should be on material particulars connecting the accused with the crime. It has further been held in a case of Muhammad Akram v.
State reported in 1995 SCMR 1359 that before accepting a retracted confession the Court must satisfy itself that the confession was voluntary and true and that it is corroborate by some independent direct or circumstantial evidence to ensure safe administration of justice.
20. According to the judicial confession of appellant John.. He caused one fire-arm injury to deceased. But, the Medical Officer found 9 fire-arm injuries on the person of the deceased. Out of them, two were on the backside of the body of the deceased, whereas seven injuries were on his front side and there was one abrasion. A single fire-arm shot cannot cause the said nine fire-arm injuries. Some of them were on backside and some of them were on the front side of the deceased.
Therefore, the medical evidence does not corroborate the judicial confession on the above point but, it contradicts the same. As such, the judicial confession cannot be ,safely relied upon.
21. The confession of the appellant Habib is self-exculpatory. Therefore, it is not coming within the scope of confession. A Division Bench of this Court in a case of Pervaiz Iqbal v. State reported in PLD 1976 Kar. 583 has held that self-exculpatory confession, cannot be regarded as a confession for a confession essentially requires that the maker should also tar himself with the same brush and it is of little value even against its maker. Thus, the prosecution have failed to prove this piece of evidence.
(V) Recoveries.
22. On this point the prosecution relied upon the evidence of P.W.5 Mashir Akhtar and P.W.7 S.-I.P.
Ghulam Sarwar. They both deposed that the appellants voluntarily produced the gun and pistol from their houses. The empties were secured from the place of incident. The S.H.O. Stated that he sent the said articles to Ballistic Expert for examination and report. The report Exh.14-A is positive about the gun secured from the appellant John.
23. It is the case of the prosecution that the police secured the empties on 1-10-1996. They arrested the appellants on 2-10-1996. The appellants produced their respective weapons on 3-10-1996. The empties and the weapons were sent to Ballistic Expert together through a letter dated 26-3-1998.
As such, the Ballistic Expert received the articles after more than 1 year of the recoveries. Thus, there is inordinate delay in sending the property to the Ballistic Expert. The prosecution have not furnished any explanation for such delay. Had there been delay of days or one or two months, then it could have been ignored. But the delay of more than one year and five months cannot be ignored easily without explanation because it amounts to inordinate delay. We are aware of the fact that mere delay in sending the property to Ballistic Expert is not enough to discard the report of Ballistic Expert as held in Muhammad Mushtaq (supra). In the reported case, the delay was only of one month. However, in the present case the delay is of about more than one year and five months.
The prosecution was required to explain such delay but they failed to furnish the same.
Furthermore, the crime weapon and the crime empties were sent together, which has also adversely affected the report, if, viewed in the light of unexplained inordinate delay of more than one year and five months of sending the property. It has been held in the case of Muhammad Younis Khan v. State PLD 1992 SC 149 that the revolver recovered from appellant, and crime empty recovered from spot having been sent together to Laboratory, its incriminatory value is destroyed.
Thus under these circumstances, it is very unsafe to rely upon such type of recoveries.
24. After scrutinizing the evidence available on the record, we are of the considered view that the prosecution have proved that the deceased was last seen alive with the appellants. Beyond that, the prosecution could not prove any other piece of evidence against the appellants. L has been held in a case of Naqibullah v. State reported in PLD 1978 SC 21 that deceased last seen alive in the company of accused is a weak type of circumstantial evidence for basing conviction. It has further been held in a case of Karamat v. State 1972 SCMR 15 that mere fact that the accused was last seen with the deceased is not enough to sustain conviction of murder and that no link in the chain of circumstances should be broken. Similar view was also taken in the cases of .Nazo and Ghulam Mustafa (supra).
' Thus the conviction cannot be based on the solitary evidence of deceased last seen alive with the appellants in the present circumstances of the case.
25. After considering the material available on the record, we are of the considered view that the prosecution case is highly doubtful, therefore, the appellants are entitled for the benefit of doubt which is accordingly given to them. Consequently, the conviction and sentences awarded to the appellants under the impugned judgment are set aside.
26. Above are the reasons of our short order dated 22-10-2003 by which we had allowed the appeal and dismissed confirmation case.