This Jail Appeal is directed against the judgment, dated 28-2-1996 passed by the learned Sessions Judge Thatta, in Sessions Case No,64 of 1993. whereby the appellant was convicted under section 302(b), P.P.C. and was sentenced to suffer imprisonment for life and to pay tine of Rs,25,000 (Rupees twenty-five thousand) to be paid to the legal heirs of the deceased as compensation. In case of default in payment of fine the appellant was to suffer R.I. for two years more. However, benefit of section 382-B, Cr.P.C. was extended to the appellant.
2. According to the contents of the F.I.R. in Crime No,47 of 1993 registered on 4-5-1993 at 12-30 p.m. under section 302, P.P.C. by S.I.P. Ghulam Muhammad Shoro on behalf of the State are that appellant/ accused Juman arrived at Police Station at 4-00 a.m. and informed the complainant that at 2-00 a.m. while he returned to his house from agricultural field he found deceased Siddique sleeping on the one cot with his wife Mst. Sahiban. He took thick axe available in the house and gave four sharp side blows on the head and shoulders of the deceased who died instantaneously.
The appellant/accused concealed the crime weapon in the bushes near Protective Bund and appeared at Police Station to surrender. The complainant made entry in the Roznamcha, took the accused in custody and proceeded to the place of Vardat accompanied by A.S.-I. Muzaffar Jamil and PCs Zahid Hussain and Anwar Ali. On way the complainant also took along Ali Dost and Khairu to act as Mashirs. On arrival at the place of Vardat they saw dead body of the deceased lying on the cot. According to the F.I.R. the appellant/accused produced bloodstained axe and stated before other P.Ws. that he has murdered Siddique. The crime weapon after being secured was sealed. Consequently the F.I.R. was registered by the complainant after completing all formalities.
On 6-5-1993 the accused was produced before Mukhtiarkar and F.C.M. who recorded his confessional statement.
3. Eventually the appellant/accused sent up to stand trial before learned Sessions Judge, Thatta.
Trial started against the accused after framing the charge to which he pleaded not guilty.
4. The prosecution examined P.Ws. A.S.-I. Muzaffar Jamil, Ali Dost, Medical Officer Dr. Ali Akber, P.W.
Rano, Mst. Sahiban, complianant/I.O. S.I.P. Ghulam Muhammad Shoro and Jaisaram. F.C.M. to prove the case.
5. During his statement recorded under section 342, Cr.P.C. the appellant/accused denied the allegations stating that he was arrested from his house, and that he was falsely implicated in the case at the behest of Ali Dost, and that crime weapon was foisted upon him.
6. On conclusion of the trial the appellant/accused was convicted by the learned trial Court in the terms as stated hereinabove.
7. I have heard appellant who appeared in person and Mr. Arshad Lodhi, A.A.-G. for the State. With the eminent assistance of learned A.A.-G. the impugned judgment has been examined and the evidence adduced on record has been scanned.
8. At the outset learned A.A.-G. frankly stated that he was not in a position to support the judgment.
It was conceded by him that the conviction was against the law and unsupported by the evidence on record.
9. On perusal of the R & P and the judgment it transpires that in this case the F.I.R. was lodged after completing the entire investigation. On receipt of information regarding the commission of offence, instead of registering the F.I.R. the Investigating Officer of the case. proceeded to the place of Vardat in company of the accused. He visisted the place of Vardat, prepared such Mashirnama on 4-5-1993 at 5-40 a.m. and Danishnama. Mashirnama of recovery of crime weapon was prepared on the same date at 9-30 a.m. However, the arrest of accused according to memo. of arrest was made at 12-45 though he was already in custody of the police as apparent from the contents of the F.I.R. The F A.R. was registered on 4-5-1993 at 12-30. The investigation conducted in a cognizable offence before the registration of F.I.R. thus rendered the entire proceedings patently illegal. No conviction under the law was- warranted in the case. It appears that the learned trial Judge was quite conscious of this illegality. In para. No,24 of the judgment it was observed that the Investigating Officer has committed illegality at the initial stage. It was further observed that this act of Investigating Officer S . I . P. Ghulam Muhammad Shoro is illegal, contrary to law "and further that he is not fit person to investigate such offence". Even then the learned Judge convicted the appellant. The conduct of the learned Judge to say that least was shocking. The conviction is liable to be set aside on this score alone.
10. Adverting to the evidence adduced by the prosecution in the case, it can be said with certainty that if tested on the touchstone of the established principles of law, the case in hand was a case of no evidence.
11. In the present case P.W. Mst. Sahiban was claimed to be the only eyewitness. However, she did not support the prosecution case. She categorically denied that she was examined by the police at any time. The aforesaid witness was not declared hostile. Learned trial Judge therefore, came to the conclusion that there was no ocular evidence in the case. However, learned trial Judge proceeded, to convict the appellant on the basis of circumstantial evidence viz. confessional statement of the accused and recovery of the crime weapon. According to the prosecution the accused/appellant was arrested on 4-5-1993. However he was produced before the Magistrate for recording his confessional statement on third day viz. 6-5-1993. The Investigating Officer in order to fill this weakness, stated in his deposition before the trial Court that he produced the accused before the Magistrate continuously for three days but his statement was not recorded by the Magistrate. This version of the complainant was not endorsed by the Magistrate. Even otherwise no sufficient explanation was forthcoming from the Investigating Officer as to why he did not produce the accused before any other Magistrate as admittedly there were 3/4 other Magistrates available at Thatta. It is also admitted fact that before recording confession the Magistrate did not warn the accused that he was 1st Class Magistrate and that he was recording his confession which can be used against him. There are other infirmities also in the confession. For this reason learned A.A.-G: rightly pointed out that the confession was not recorded in lawful manner.
12. The recovery of tine crime weapon was not proved. P.W. Ali Dost who was Mashir of recovery, arrest, vardat and almost everything, and at whose instance the case was alleged to have been foisted upon the appellant admitted before the Court that police obtained his signatures on all the Mashirnamas at Police Station. In view of the above, recovery was rendered valueless.
13. Apart from that the axe which is a crime weapon was secured on 4-5-1993 but the same was sent to the Chemcial Examiner on 26-1-1994. It was delivered in the office of Chemical Examiner on 3-1-1994 and was examined alongwith other parcels subsequent thereto. The inordinate and unexplained delay in sending the crime weapon the Chemical Examiner has rendered the chemical report absolutely inconsequential.
14. The bare perusal of the impugned judgment leaves no doubt to arrive at a conclusion that the learned trial Judge had serious doubts in his mind about guilt of the appellant/accused. Even then he recorded the judgment of conviction against -the appellant/accused, in gross violation of the established principles meant for dispensation or criminal justice. This approach on the part of a senior Judicial Officer, to say ,the least, is in derogation of norms of justice and quite harmful .
15.The judgment of conviction having been recorded in disregard of the law and against evidence is patently illegal. The same is set aside. The appeal is allowed and the appellant is acquitted.
16. This appeal was allowed by short order, dated 26-7-2002 and these are the reasons for the same.
17. Before parting with the judgment it may be observed that in view of the above discussion there are sufficient reasons to believe that the appellant was falsely implicated by S.I.P., Ghulam Muhammad Shoro and had to undergo agony of trial and consequent incarceration for nine (9) long years. Certainly the tribulation suffered by the appellant and the tortuous period which the appellant spent in jail could not be retrieved, yet the above-named police officer should be made answerable for the acts of omission and commission.
18. Let a copy of this judgment be sent to the Inspector-General of Police, Sindh, to ascertain as to whether the said police officer is still in service. If so, he shall be dealt with in accordance with law.
The action taken and progress made shall be reported to the Registrar of this Court. Let a copy of this judgment also be sent to Mr. Ali Nawaz Pirzada, the then learned Sessions Judge, Thatta for his information.