PLJ 2024 Cr.C. (Note) 95
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, J.
versus
STATE etc.--Respondents
Crl. A. No. 107345 of 2017, Crl. A. No. 195472-J of 2018,
Crl Rev. No. 118764 of 2017, heard on 8.12.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-i-amd--Conviction and sentence--Challenge to--Confessional statement--Benefit of doubt--Extra-judicial confession, weak type of evidence--As per prosecution evidence, three men and one woman, a total of four persons, were riding on one two-wheeler, i.e., a motorcycle--While boarding a bus, it is impossible to recognize four persons sitting on motorcycle coming from opposite side--By chance, one could glimpse person sitting on motorcycle--These are severe infirmities that destroy credibility of witnesses’ evidence--If evidence of these witnesses is rejected as untrustworthy, nothing survives of prosecution case--The extra-judicial confession made by accused to a person who does not influence police, is not inspiring confidence, and same cannot be relied upon to prove guilt of accused--The testimony of PW-5 was doubtful--A confession is a form of admission that directly acknowledges guilt in a criminal charge--It must be in express words by accused in a criminal case of truth of guilt fact charged or some essential part of it, and a statement that contains a self-exculpatory matter cannot amount to a confession--The confession should be voluntary, not caused by inducement, threat, or promise--Whether a confession is voluntary or not is essentially a question of fact--Judicial confessions are made before a Magistrate or in Court during legal proceedings--When such a confession is retracted, Courts have held that apart from voluntary statement, it should be accurate and receive sufficient corroboration in material particulars by independent evidence--The retracted confessions had not received any corroboration indicating complicity of appellants--No voluntary confessional statement had been made by appellants in case, and confession, as recorded, would appear too unreal and could never have been acted upon--The trial Court should have seen through all this and rejected confession outright as highly unreliable and untrustworthy--Instead, he accepted it and even acted upon it--Prosecution could not prove its case against accused beyond shadow of a doubt, as there were many dents in prosecution story--The accused persons are not expected to prove their innocence to hilt--If prosecution story is doubtful, benefit of doubt must go to accused-appellants--In this backdrop, it can safely be held that prosecution has badly failed to bring home guilt of accused/appellants, and conviction passed by trial Court in circumstances is against all canons of law recognized for dispensation of criminal justice--Per dictates of law, benefit of every doubt will be extended in favor of accused appellants--The conviction and sentence trial Court recorded cannot be sustained. [Para 9, 10, 11 & 13] A, B, D, H & I
2009 SCMR 230.
Extra-Judicial Confession--
----Weak piece of evidence--It is well settled that it is a weak piece of evidence in very nature of things--It is to be proved like any other fact, and value depends upon integrity of witness to whom it is made--At same time, accused had no reason to go to witness and confess his guilt by reposing confidence in a person who did not influence police or relatives of deceased--It is most dangerous to rely upon same and convict accused without corroboration.
[Para 10] C
Rule of Corroboration--
----Retracted judicial confession--The appellants had retracted from confession--While it is true that, as a matter of law, a conviction can, in appropriate cases, be based only on a retracted judicial confession, it is equally well-settled that as a rule of prudence, Court should require corroboration of a retracted confession--The rule of corroboration would mean not only corroboration concerning crime but also about collaboration of criminal--In instant case, except for medical evidence pointing to conclusion that deceased had been done to death, which could only be corroboration regarding commission of crime, there was no other corroborative evidence in support of retracted confession--Even a motive for commission of offense by appellants had not clearly and satisfactorily been established. [Para 11] E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 164--Confessional statement--A Magistrate while recording a confession should satisfy himself in every reasonable way that confession is made voluntarily--The Magistrate should question a confessing accused to ascertain exact circumstances in which confession was made and connection of police with it--In other words, Magistrate should record confessions in as much detail as possible to obtain materials from which their genuineness can be judged and to test whether it is freely made or is outcome of suggestion--To certificate required by Section 164 of Code of Criminal Procedure, Magistrate should add a statement in his hand of grounds on which he believes that confession is genuine, of precautions which he took to remove accused from influence of police and of time, if any, given to him for reflection--The Magistrate should formally warn accused, though not necessarily in set words, that anything he said will be taken down and may be used as evidence against him, even if he retracts same. [Para 11] F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 164--Confessional statement--In such a situation, magistrate has to lodge accused persons in jail with direction to jail superintendent to produce them for recording their statements under Section 164 of Cr.P.C--In circumstances mentioned above, a judicial confession made by accused could not be considered against them--Without exceptional circumstances, a confessional statement will be Recorded within Court hours. [Para 11] G
Mr. Mehram Ali Bali, Advocate for Appellant (Shahid Imran).
Hafiz Muhammad Shahid Iqbal, Advocate for Appellant (Muhammad Ijaz).
Mr. Ejaz Ahmad Pannun, Deputy District Public Prosecutor for State.
M/s. Nasir-ud-Din Khan Nayyar and Haider Mushtaq Pasha, Advocates for Complainant.
Date of hearing: 8.12.2023.
JUDGMENT
The appellant-Muhammad Ijaz Son of Muhammad Nawaz, caste Arain, resident of Mohallah Sheikhanwala Bhera Tehsil Bhera, District Sargodha (in Crl. Appeal No. 107345 of 2017) and the appellant-Shahid Imran son of Zulifqar Shah, caste Syed, resident of Ranjhanwala Bhera, Tehsil Bhera District Sargodha (in Crl. Appeal No. 195472-J of 2018) have assailed their conviction and sentence recorded By the learned Additional Sessions Judge, Bhalwal, District Sargodha vide Judgment dated 17.10.2017 in case FIR No. 437/2012 dated 29.11.2012 Registered under sections 302, 201, 382, 34 PPC at P.S. Bhera, District Sargodha, whereby the trial Court convicted the appellants-Muhammad Ijaz and Shahid Imran under Section 302(b) PPC and sentenced them to undergo imprisonment for life as Ta’zir each with the direction to pay Rs. 1,00,000/-each as compensation to the legal heirs of the deceased under Section 544-A of Cr.P.C and in case of default in payment thereof, they would further undergo 06-months S.I each. The appellants-Muhammad Ijaz and Shahid Imran were also convicted under Section 404 PPC and sentenced to undergo 02-years rigorous imprisonment with the direction to pay Rs. 10,000/-each as a fine and in case of default in payment thereof, they would further undergo 02-months S.I each. The benefit of Section 382-B Cr.P.C was also extended in favour of the appellants. Both the sentences awarded to the appellants would run concurrently.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellants, Muhammad Ijaz and Shahid Imran, have assailed their conviction by filing separate appeals bearing Crl. Appeal No. 107345 of 2017 (Muhammad Ijaz. vs. The State, etc.) and Crl. Appeal No. 195472-J of 2018 (Shahid Imran vs. The State) respectively. It is pertinent to mention here that the complainant also filed Crl. Rev. No. 118764/2017 qua enhancement of sentence awarded to the appellants. As all the matters arise out of the same judgment of the trial Court, these are being disposed of through consolidated judgment.
3. The prosecution story as alleged in the F.I.R. (Ex.PE/1) lodged on the written application (Ex. PE) of Muhammad Anayat
(PW-3)-the complainant is that he (PW-3) alongwith Mst. Saleh Bano (the deceased), the daughter of Islam Din, used to look after the agricultural land of one Riffat Pasha situated at Mouza Ranjhanwala and the financial matters of said land were looked at by Mst. Saleh Bano, the accused, Muhammad Ijaz (the appellant in Crl. Appeal No. 107345 of 2017), was a tenant on that land. On 24.11.2012 at about 10:00 a.m., Mst. Saleh Bano went to the Dera Ranjhanwala to receive a price for the paddy crop and told the complainant (PW-3) at 11:00 a.m. that she had received Rs. 1,70,000/-. At about 02:00 p.m., the complainant again contacted her and the mobile phone of Mst. Saleh Bano was powered off, and after that, the complainant got worried and started searching for Mst. Saleh Bano. When the complainant reached Adda Ranjhanwala, Abdul Baqi (given up PW) and Muhammad Umair (PW-4) met him, who told him that at about 01:00 p.m., they had seen Muhammad Ijaz (the appellant in Crl. Appeal No. 107345 of 2017), Shahid Imran (the appellant in Crl. Appeal No. 195472-J of 2018) and Ali Raza (co-accused separately tried being juvenile) while taking Mst. Saleh Bano towards Bhera on a motorcycle. Upon this, the complainant went to the residence of Mst. Saleh Bano at Bhera and she was not found there, and her mobile phone was continuously powered off. After that, the complainant contacted the accused, but they did not reply satisfactorily. On the morning of 29.11.2012 at 06:00 a.m., the complainant and PWs in search of Mst. Saleh Bano reached a deserted passage near the Motorway; they saw a human passage going towards the sugarcane crop field of one Muhammad Yar. The complainant, along with PWs, went on that passage and found the dead body of Mst. Saleh Bano lying in the sugarcane field. The complainant (PW-6) raised strong suspicion that accused persons Muhammad Ijaz, Shahid Imran (the appellants), and Ali Raza (co-accused separately tried being juvenile) had murdered Mst. Saleh Bano, after snatching Rs. 1,70,000/-, had left the dead body in the sugarcane field.
4. Based on the written application (Ex.PE) of Muhammad Anayat (PW-3)-the complainant, FIR (Ex.PE/1), was chalked out. After the registration of the case, the investigation of this case was entrusted to Mazhar Ali, S.I (PW-7), who, having found the accused/appellants guilty, prepared a report under Section 173, Cr.P.C., and sent the same to the Court of competent jurisdiction. On 04.04.2013, the trial Court formally charged the appellants, to which they pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as nine (09) witnesses.
5. After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial Court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellants’ conviction in the afore-stated terms.
6. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.
7. In the facts of the present case, there is no direct evidence to prove the commission of the crime of murder by the appellants alongwith their co-accused, and the case primarily rests upon circumstantial evidence only. It is a trite law that where the case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be, in the first instance, fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all human probability, the act must have been done by the accused. Therefore, it needs to be seen whether the prosecution has established the incriminating circumstances upon which it places reliance and whether those circumstances constitute a chain so complete as not to leave any reasonable ground for the appellant to be found innocent.
8. As per the prosecution case, Muhammad Anayat (PW-3)-the complainant and Mst. Saleh Bano (the deceased) used to look after the agricultural land of Rifat Pasha, the then Additional Inspector General of Police Punjab (not cited as witness). Mst. Saleh Bano (the deceased) went missing on 24.11.2012 at 11:00 a.m., whose dead body was recovered on 29.11.2012 at 06:00 a.m. from the sugarcane crop fields of one Muhammad Yar (not cited as a witness). After that, Muhammad Anayat (PW-3)-the complainant, reported the incident of the murder of Mst. Saleh Bano (the deceased) through the application (Ex. PE) to Mazhar Ali S.I. (PW-7) at police station Bhera, District Sargodha, who chalked out FIR (Ex.PE/1) at 06:30 a.m. The distance between the police station and the place of occurrence is 06-kilometer. Muhammad Anayat (PW-3)-the complainant also admitted during cross-examination that:
“We did not lodged any report/rapt prior to Submission of my application for registration of Case Ex.PE.”
Muhammad Anayat (PW-3)-the complainant deposed during cross-examination that he informed Rifat Pasha, whose agricultural land was managed by Mst. Saleh Bano (the deceased), in this regard during cross-examination, he (PW-3) said that:
“Till the registration of FIR, we have been searching Mst. Saleh Bano till the recovery of her dead body. Rifat Pasha owner of land managed by Mst. Saleh Bano and I was informed about the missing of deceased. I informed Rifat Pasha about the missing of deceased on 25.11.2012. I have not mentioned in my application that I had informed Mr. Rifat Pasha 25.11.2012…………… No statement of Rifat Pasha was recorded by the I.O. during investigation.”
Muhammad Anayat (PW-3)-the complainant deposed during examination-in-chief that, on 24.11.2012, Mst. Saleh Bano, deceased, went to the Dera of Rifat Pasha to receive the sale price of the paddy crop. At about 11:00 a.m., she informed him that she had received
Rs. 1,70,000/-of paddy crop. He (PW-3) again made a call to Mst. Saleh Bano on her cell phone but could not contact her as her cell phone was powered off. He (PW-3) became worried and started searching for her. Muhammad Anayat (PW-3)-the complainant also admitted during cross-examination that:
“I have not mentioned name of any person who allegedly purchased paddy crop from Mst. Saleh Bano deceased nor I have mentioned the name of any person who had allegedly paid sale price of paddy crop. …………… It is correct that we had not produce any witness during investigation allegedly who had purchased paddy crop from Mst. Saleh Bano deceased. We had not produce any proof regarding cultivation paddy crop in the shape Khasra girdawari during investigation and in my examination in chief.”
Mazhar Ali S.I. (PW-7)-the investigating officer, also admitted during cross-examination that--
“The alleged purchaser of pedi crop was never joined in the investigation nor traced or stated by the complainant during the investigation. No document regarding the cultivation of pedi crop i.e. Khasra girdowry etc has been produced by the complainant during the course of investigation.
The complainant (PW-3), deposed during examination-in-chief, and in the application (Ex. PE), he mentioned that he, along with Mst. Saleh Bano used to supervise the agricultural land of Rifat Pasha, situated in the village of Ranjhanwala. Muhammad Anayat (PW-3)-the complainant, admitted during cross-examination that:--
“It is correct that I had not mentioned detail of agricultural land owned by Rifat Pasha. It is also correct that I have not produced any proof of ownership of agricultural land of Rifat Pasha before the I.O. in the shape of ownership memo. It is correct that I had not mentioned any call data of the alleged telephonically conversation between me and witnesses as well as Saleh Bano deceased.”
The prosecution remained unable to prove that on 24.11.2012 at 11:00 am. Mst. Saleh Bano (deceased) went to village Ranjhanwala to collect paddy crop amounts. The other circumstance that also creates doubt is that Muhammad Anayat (PW-3)-the complainant, admitted during cross-examination that:
“The application for registration of case was not written by myself but it was drafted by the person outside the police station. I do not remember the identity of that person now. The said application was being written on 29.11.2012. I am not a literate person and I cannot write except my signature. The said application was not signed by me, again said I signed the said application.”
The author of the complaint (Ex. PE) has not mentioned therein that under the dictation of Muhammad Anayat (PW-3)-the complainant, the complaint was written and thereafter the same was read over to him (PW-3) and he (PW-3)-the complainant acknowledged the contents of the complaint. An entire criminal case depends on the first information rendered through a complaint before the police, and the entire evidence depends on said document. Muhammad Anayat (PW-3)-the complainant deposed during examination-in-chief and mentioned in the complaint (Ex. PE) that he went to the police station to report the incident, but before visiting the police station, Muhammad Anayat (PW-3)-the complainant got drafted the complaint (Ex. PE) from someone out of police station. Not mentioning this fact in the application/complaint (Ex. PE) indicates that Muhammad Anayat (PW-3), the complainant, had not stated the complete truth. The author of the complaint (Exh.PE) should have stated that he prepared the complaint under the instructions of the complainant. It is also not a case of the prosecution that Muhammad Anayat (PW-3)-the complainant, asked someone to prepare a complaint outside the police station. Accordingly, the complaint was prepared by “someone,” which was read over to the complainant, and after that, he (PW-3) signed the complaint. Even Muhammad Anayat (PW-3)-the complainant, had not stated that he got prepared the complaint (Ex.PE) from someone outside the police station and in his examination-in-chief before the trial Court. Therefore, these circumstances create doubt about the timing of recording FIR. Muhammad Anayat (PW-3)-the complainant deposed during examination-in-chief that:
“We have been searching Mst. Saleh Bano and on 29.11.2012 at about 06:00 a.m. I alongwith said PWs passed nearby sugarcane crop of Muhammad YarArain situated in the area of Ali Pur Syedan, near motorway interchange Bhera, side of Rawalpindi and saw a small track of human and we saw that dead body of Mst. Saleh Bano deceased was lying inside the sugarcane crop……………. leaving the said PWs Qazi Abdul Baqi and Muhammad Umair with the dead body of the deceased, I made application Ex. P.E for registration of case upon which formal FIR was registered.”
Contrary to the deposition of Muhammad Anayat (PW-3)-the complainant, Mazhar Ali S.I. (PW-7)-the investigating officer deposed during cross-examination, that:--
“There is a deserted passage which connects Sugarcane crop from where the dead body was Recovered. It is correct that dead body was Recovered on the pointation of complainant Party and thereafter, the case was registered against the accused persons.”
The evidence recorded in Urdu language of Mazhar Ali S.I. (PW-7)-the investigating officer, is as follows:-
"میری بات اس حد تک درست ہے کہ اس فصل کماد کے ساتھ نا پختہ رستہ جاتا ہے جہاں سے نعش متوفیہ بر آمد ہوئی۔ یہ درست ہے کہ نعش متوفیہ مستغیث مقدمہ کی نشاند ہی پر ہم نے قبضہ پولیس میں لی اور مقدمہ ملزمان کے خلاف درج رجسٹر ہوا۔"
The collective reading of the evidence recorded in English and Urdu languages of Mazhar Ali S.I. (PW-7)-the investigating officer reveals that, firstly, the dead body was recovered at the pointing of the complainant and secured by the police. After that, FIR was chalked out. This gets support from the deposition of Muhammad Anayat (PW-3)-the complainant who deposed during cross-examination, that:-
“I learnt about 06:00 a.m. about the death of Mst. Saleh Bano when her dead body was recovered from sugarcane crop.”
The above deposition of Muhammad Anayat (PW-3)-the complainant, and Mazhar Ali S.I. (PW-7)-the investigating officer, is supported by the inquest report (Ex. PD) prepared by Mazhar Ali S.I. (PW-7)-the investigating officer to the extent of preparation of inquest report (Ex.PD) at 06:00 am. On 29.11.2012. Column No. 3 of the inquest report (Ex. PD) related to the date and time of receiving death information and in the column No. 3, it is mentioned at 06:00 a.m. on 29.11.2012. Mazhar Ali S.I. (PW-7)-the investigating officer handed over the dead body of Mst. Saleh Bano to Abdul Razzaq 1088/C (PW-9) for postmortem examination. Dr.Syeda Ittrat Batool W.M.O (PW-2), who conducted postmortem examination upon the body of Mst. Saleh Bano deposed and mentioned in the postmortem report (Ex. PB) that finger marks on the front and left side of the neck were present, and the probable duration between the death and postmortem was 4 to 6 days. If we go backward from 29.11.2012 at 06:00 a.m. (the dead body’s recovery date and time), 4 to 6 days will become 25.11.2012 to 23.11.2012 at 11:00 a.m. So, the date and time of death could be between 23.11.2012 at 11:00 a.m. and 25.11.2012 at 11:00 a.m. The above circumstances create doubt about the time and date of the missing of Mst. Saleh Bano (the deceased).
9. The prosecution introduced two sets of witnesses to prove its case. The witnesses of the last seen are Qazi Abdul Baqi (given up PW) and Muhammad Umair (PW-4), whereas the witnesses of WajjTakar and extra-judicial confession are Khalid Fida Hussain (PW-5) and Muhammad Farooq (given up PW). Muhammad Anayat (PW-3)-the complainant stated that when he reached bus stop Ranjwanwala, he met with Qazi Abdul Baqi (given up PW) and Muhammad Umair (PW-4), the witness of last seen, who told him on his asking that they had seen Muhammad Ijaz (the appellant in Crl. Appeal No. 107345 of 2017), Shahid Imran (the appellant in Crl. Appeal No. 195472-J of 2018) and Ali Raza (co-accused tried separately being juvenile) were taking Mst. Saleh Bano (the deceased) with them on a motorbike to Bhera. After that, Muhammad Anayat (PW-3) the complainant, called the residence of Saleh Bano, where she was residing, and her cell phone was continuously powered off. After that, they contacted the elders of the accused persons named above, who did not respond. Muhammad Anayat (PW-3)-the complainant also admitted during cross-examination that:--
“It is correct that I had not mentioned name of any elder of the accused persons to whom I went alleged contacted after the occurrence.” He (PW-3) further deposed that, “I have contacted the house at Bhera where Mst. Saleh Bano occasionally used to reside when I was learnt that Saleh Bano deceased was seen lastly with the accused by the PWs. No one else reside in the house at Bhera where Mst. Saleh Bano occasionally used to reside…………. I have not mentioned the cell number of Saleh Bano at which I had tried to contact after missing of Mst. Saleh Bano.
Mazhar Ali S.I. (PW-7)-the investigating officer, also admitted during cross-examination that:
“It is correct that mobile phone number of complainant as well as deceased Saleh Bano are not mentioned in FIR. It is also correct that I have not collected the call data of the mobile phone of complainant and Saleh Bano deceased. It is correct that neither the place of making stated call by the complainant nor the place of receiving stated call by Saleh Bano deceased is record of in case.”
Muhammad Anayat (PW-3)-the complainant, alongwith Qazi Abdul Baqi (given up PW) and Muhammad Umair (PW-4), kept on searching Mst. Saleh Bano and on 29.11.2012 at about 06:00 a.m., the complainant (PW-3), alongwith PWs mentioned above, passed nearby sugarcane crop of Muhammad Yar Arain (not cited as a witness) situated in the area of Ali Pur Syedan, near motorway interchange Bhera side of Rawalpindi and saw a small track of human and saw that dead body of Mst. Saleh Bano (the deceased) was lying inside the sugarcane crop, with marks of violence present on the dead body. Muhammad Anayat (PW-3)-the complainant also admitted during cross-examination that:--
“The sugarcane crop from where dead body of Mst. Saleh Bano was recovered is the land of Muhammad Yar Arain. Muhammad Yar aforementioned is not cited as PW in this case. -------------- It is correct that Muhammad Yar Arain owner of the sugarcane crop from where dead body of Saleh Bano was allegedly recovered was not produced by us before the I.O during the investigation not he had got recorded any statement during the investigation.”
Mazhar Ali S.I. (PW-7)-the investigating officer, also admitted during cross-examination that:
It is correct that Muhammad Yar owner of sugarcane crop from where the dead body of Saleh Bano was recovered has never joined the investigation. It is correct that sugarcane crop from where the dead body was recovered was surrounded by sugar cane of Syed Waqas Shah, “Chodar Rich Kaloosan” of Qamar son of Muhammad Nazir. Dead body was recovered from the mid of sugarcane crop field. No passage pass through the place from where the dead body was recovered.
Whereas Muhammad Anayat (PW-3)-the complainant, also admitted during cross-examination that:
“There is a kacha path at some distance from the place where the dead body was recovered from sugarcane crop.”
Whereas, during cross-examination, he (PW-3)-the complainant deposed that:
“No one from us is eye witness of commission of murder of Mst. Saleh Bano deceased. I have not mentioned my cell number in my application from which phone I have tried to contact Mst. Saleh Bano. No telephone data of my cell phone and that of Mst. Saleh Bano was collected by the local police during investigation.”
Admittedly, Muhammad Anayat (PW-3)-the complainant, is not the eyewitness of the incident of the murder of Mst. Saleh Bano. Muhammad Anayat (PW-3)-the complainant deposed during cross-examination that:
“No one from us is eye witness of commission of murder of Mst. Saleh Bano deceased.”
It is also admitted that for 04 days during the missing of Mst. Saleh Bano, the matter was not reported to police. As per the prosecution evidence, Mst. Saleh Bano went missing on 24.11.2012 after 11:00 a.m. Before the recovery of her dead body on 29.11.2012 at 06:00 a.m., the incident was not reported to the police about her missing. Muhammad Umair (PW-4), the witness of last seen, is admittedly a chance witness and closely related to Rifat Pasha. They were thus chance witnesses as by coincidence or chance; they were present at the place of occurrence when the incident occurred; they could not usually be where and when they professed to have been. However, if they have given reasons for their presence, they cannot be said to be chance witnesses, and their evidence cannot be discarded on that ground. In what circumstances should one be called a natural witness, not a chance witness? He (PW-4) deposed during cross-examination that:
“The distance of my land and land of Mr. Rifat Pasha is about 03 k.m. I appeared before the I.O. and made my statement about this occurrence. As Rifat Pasha is my relative so I used to visit his land situated in village Ranjhan-wala and his dera. Rifat Pasha belongs to my brotherhood but I have no close blood relation with him. Rifat Pasha has not come to the Court today. I.O. did not record statement of Rifat Pasha about this occurrence during investigation. Muhammad Anayat complainant used to visit the dera and land of Rifat Pasha. I have relations with Muhammad Anayat complainant also. Abdul Baqi PW used to visit at the land of Rifat Pasha situated in village Ranjhan-wala. ---------- I alongwith Abdul Baqi PW had gone on the dera of Rifat Pasha on 24.11.2012 as Abdul Baqi was contracting some parts of the dera of Rifat Pasha.”
Whereas, Muhammad Anayat (PW-3)-the complainant, deposed during cross-examination that:
“I am public servant and have been associating with Rifat Pasha for about 20 years. Mst. Saleh Bano was associating with Rifat Pasha before me when I joined association with Rifat Pasha. I was appointed in police department as Orderly.” He (PW-3) also said, “Abdul Baqi PW is resident of Rawalpindi and he had his business there.” During cross-examination, he (PW-3) further deposed, “I am public servant and have been associating with Rifat Pasha for about 20 years. Mst. Saleh Bano was associating with Rifat Pasha before me when I joined association with Rifat Pasha, I was appointed in police department as Orderly.”
Khalid Fida Hussain (PW-5) deposed during cross-examination that:--
“I am surveyor of private business man regarding building. Rifat Pasha is my mamozad. Rifat Pasha is not complainant or PW in this case. I temporarily reside at Rawalpindi whereas my permanent house with my family is at Bhera.”
Mazhar Ali S.I. (PW-7)-the investigating officer deposed during cross-examination that:
“The object of presence of Qazi Abdul Baqai and Muhammad Umair Piracha PWs at Adda Ranjhawana has not been mentioned in the record. Abdul Baqqi PW is resident of Rawalpindi whereas Muhammad Umair PW is resident of Bhera City. It is correct that both the above mentioned PWs Abdul Baaqi and Muhammad Umair have not been shown as owner/cultivator of Mouza Ranjhanwala. It is also correct that they had not any business whatsoever at Mouza Ranjhanwala.”
Muhammad Umair (PW-4) has failed to prove his presence at the place of occurrence. The story of last seen also becomes improbable when, during examination-in-chief, Muhammad Umair (PW-4) deposed that:
“I alongwith Abdul Baqi PW boarded bus from Bhera from Ranjhanwala to visit the dera of Rift Pasha. We saw accused Muhammad Ijaz, Ali Raza (juvenile separately tried) and Shahid Imran while taking with Mst. Saleh Bano deceased on a motorcycle towards Bhera.” (It appears that due to a typographic mistake, word “from Ranjhanwala” was written instead of “for Ranjhanwala”).
As per prosecution evidence, three men and one woman, a total of four persons, were riding on one two-wheeler, i.e., a motorcycle. While boarding a bus, it is impossible to recognize four persons sitting on the motorcycle coming from the opposite side. By chance, one could glimpse the person sitting on the motorcycle. These are severe infirmities that destroy the credibility of witnesses’ evidence. If the evidence of these witnesses is rejected as untrustworthy, nothing survives of the prosecution case. The analysis and appreciation of Muhammad Anayat (PW-3)-the complainant, Muhammad Umair (PW-4), and Khalid Fida Hussain (PW-5) failed to establish any reason for their presence at the scene of the crime at the relevant time as much as Atta Ullah (PW-3)-the eye witness had not stated a single word for going to his village from Pindi Bhattian. In the afore-referred circumstances, I find that the prosecution has not been able to prove its case against the appellants beyond any shadow of a doubt.
10. To prove the evidence of Wajj Takar and extra-judicial confession, the prosecution produced Khalid Fida Hussain (PW-5). Khalid Fida Hussain (PW-5) deposed during examination-in-chief that:
“On 24.11.2012 I alongwith Muhammad Farooq PW, when were returning from graveyard of our family after offering Fatiha on the graves of my parents, it was about 02:00 p.m. when we were passing nearby interchange Bhera Rawalpindi side I and Muhammad Farooq PW saw that accused Muhammad Ijaz and Shahid Imran alongwith Ali Raza (juvenile separately tried) were running out from sugarcane crop of Allah Yar. The accused were earlier known to me. On the night of 29/30 1 learnt that Mst. Saleh Bano deceased has been murdered. I informed about the said facts to Muhammad Anayat complainant. The accused mentioned above have committed the murder of Mst. Saleh Bano deceased. I appeared before the I.O. and made my statement on 30.11.2012.”
Khalid Fida Hussain (PW-5), to prove his presence near the sugarcane crop of Muhammad Yar, stated that he was coming back from the graveyard of their family after offering Fatiha on the graves of his parents. The prosecution witnesses have made dishonest improvements in their statements before the Court. The material improvements/discrepancies/contradictions in the prosecution evidence had been brought on the record by the defence. Khalid Fida Hussain (PW-5) deposed during cross-examination that:
“I had stated before the I.O my purpose of passing near the sugarcane of Muhammad YarArain from where dead body of Saleh Bano was recovered, confronted with Ex.D.A where it is not recorded in any context.”
Khalid Fida Hussain (PW-5) is also the witness of extra-judicial confession. He (PW-5) deposed during examination-in-chief that, on 01.12.2012 at about 04:30 p.m., Shahid Imran, Muhammad Ijaz, and Ali Raza made extra judicial confession before him in the presence of Muhammad Farooq (given up PW). The defence confronted the statement under Section 161 of Cr.P.C. of Khalid Fida Hussain (PW-5) made before police with the statement made in the Court. Khalid Fida Hussain (PW-5) deposed during cross-examination as under:
“I have stated in my statement before the I.O that accused had come to my house and made extra judicial confession separately, confronted with Ex.D.A where the name of Ijaz is mentioned separately whereas name of other accused is not mentioned separately. --------- I had stated before the I.O. that accused known to me confronted Ex.D.B where it is not recorded that accused Shahid Imran, Ali Raza and Muhammad Ijaz were known to me prior to the instant occurrence. It is correct that I had not mentioned any source of information regarding murder of Saleh Bano in my statement before the I.O and in my examination in chief. I had stated before the I.O. that accused made extra judicial confession separately before me and Muhammad Farooq PWs confronted with Ex.D.B where separately extra judicial confession was not mentioned in any context.”
Khalid Fida Hussain (PW-5) made material improvement in his statement made before the police and deposed before the Court, which was brought on the record by the defence. The reason assigned by the prosecution for the presence of Khalid Fida Hussain (PW-5) at the place of recovery of the dead body and confession of the guilt by the appellants was found to be an improved statement before the Court. There was no reason for the appellants alongwith his co-accused Ali Raza (co-accused tried separately being juvenile) to confess the offence entailing capital punishment. The extra-judicial confession made by the accused to a person who does not influence the police, is not inspiring confidence, and the same cannot be relied upon to prove the guilt of the accused. The testimony of Khalid Fida Hussain (PW-5) was doubtful. There is no doubt that conviction can be based on extra-judicial confession, but it is well settled that it is a weak piece of evidence in the very nature of things. It is to be proved like any other fact, and the value depends upon the integrity of the witness to whom it is made. At the same time, the accused had no reason to go to the witness and confess his guilt by reposing confidence in a person who did not influence the police or relatives of the deceased. It is most dangerous to rely upon the same and convict the accused without corroboration. No valid reason was assigned why the accused confessed before Khalid Fida Hussain (PW-5). In these circumstances, the extra-judicial confession was unreliable and unacceptable without corroboration through independent evidence. It was, thus, improbable and unnatural for the accused-appellant to make the alleged extra-judicial confession before Khalid Fida Hussain (PW-5) and Muhammad Farooq (given up PW). The evidence of Khalid Fida Hussain (PW-5), to the effect that appellants made extra judicial confession before him and Muhammad Farooq (given up PW) regarding the commission of the offence, is neither reliable nor creditworthy and hardly inspires confidence in the mind of the Court.
11. A confession is a form of admission that directly acknowledges guilt in a criminal charge. It must be in express words by the accused in a criminal case of the truth of the guilt fact charged or some essential part of it, and a statement that contains a self-exculpatory matter cannot amount to a confession. The confession should be voluntary, not caused by inducement, threat, or promise. Whether a confession is voluntary or not is essentially a question of fact. Judicial confessions are made before a Magistrate or in Court during legal proceedings. When such a confession is retracted, the Courts have held that apart from the voluntary statement, it should be accurate and receive sufficient corroboration in material particulars by independent evidence. The appellants had retracted from the confession. While it is true that, as a matter of law, a conviction can, in appropriate cases, be based only on a retracted judicial confession, it is equally well-settled that as a rule of prudence, the Court should require corroboration of a retracted confession. The rule of corroboration would mean not only corroboration concerning the crime but also about the collaboration of the criminal. In the instant case, except for the medical evidence pointing to the conclusion that the deceased had been done to death, which could only be corroboration regarding the commission of the crime, there was no other corroborative evidence in support of the retracted confession. Even a motive for the commission of the offense by the appellants had not clearly and satisfactorily been established. The prosecution failed to prove that the appellants were their tenants and that they cultivated the agricultural land of one Riffat Pasha in the Ranjhanwala village. A judicial confession must be perfectly voluntary, accurate, and trustworthy to be acted upon. Section 164 of the criminal procedure code is the mode in which a confessional statement is recorded. Every Magistrate must take adequate care and precaution to see that an accused person is about to make a confession voluntarily before he proceeds to record the same. Confession should be recorded in the open Court and during Court hours except when unusual circumstances require a different procedure, for instance, when an available record would be detrimental to the public interest or when the recording of the confession in the open Court is rendered impracticable because the Court is closed for two or more successive days on account of holidays. A Magistrate while recording a confession should satisfy himself in every reasonable way that the confession is made voluntarily. The Magistrate should question a confessing accused to ascertain the exact circumstances in which the confession was made and the connection of the police with it. In other words, the Magistrate should record the confessions in as much detail as possible to obtain materials from which their genuineness can be judged and to test whether it is freely made or is the outcome of suggestion. To the certificate required by Section 164 of the Code of Criminal Procedure, the Magistrate should add a statement in his hand of the grounds on which he believes that the confession is genuine, of the precautions which he took to remove the accused from the influence of the police and of the time, if any, given to him for reflection. The Magistrate should formally warn the accused, though not necessarily in set words, that anything he said will be taken down and may be used as evidence against him, even if he retracts the same. About the statements under Section 164 of the Code of Criminal Procedure recorded by Mr. Mumtaz Ahmad Mughal, Civil Judge (PW-6) is that the appellants were produced before him on 12.12.2012 with the application (Ex. PF) for recording confessional statements of the appellants and their co-accused Ali Raza (separately tried being juvenile). There is nothing to show in the order passed on that day that the appellants were asked as to whether they wanted to make confessional statements, and no warning had been given to them that they were not bound to confess and that if they confessed, it might be used against them even if it was retracted later on. The appellants were produced before Mr. Mumtaz Ahmad Mughal, Civil Judge (PW-6), on 12.12.2012, and he recorded the confessional statements of the appellants one by one. I would quote below all that Mr. Mumtaz Ahmad Mughal, Civil Judge (PW-6), had recorded in the confessional statement (Ex. PG) of Muhammad Ijaz (the appellant in Crl. Appeal No. 107345 of 2017) dated 12.12.2012 at 04:01 p.m.:
"اب بعد از انکوائری ملزم کو کمرہ عدالت میں علیحدہ بیٹھا کر دوبارہ سوچنے کا موقع دیا جار رہا ہے اور نوٹس دیا گیا ہے۔"
Mr. Mumtaz Ahmad Mughal, Civil Judge (PW-6), had recorded in the confessional statement (Ex.PI) of co-accused Ali Raza (separately tried being juvenile) dated 12.12.2012 at 04:35 p.m.:
"اب دوبارہ ملزم سید علی رضا کو کمرہ میں علیحدہ میں بیٹھا کر مزید سوچنے کا موقع دیا جا رہا"
Mr. Mumtaz Ahmad Mughal, Civil Judge (PW-6), had recorded in the confessional statement (Ex. PJ) of Shahid Imran (the appellant in Crl. Appeal No. 195472-J of 2018) dated 12.12.2012 at 05:10 p.m.:
اب ملزم شاہد عمران کو کمرہ عدالت میں علیحدہ بیٹھا کر مزید سوچنے کا موقع دیا جا رہا۔
The order does not show that the necessary warning and caution had been administered to the appellants. In the confessional statement, however, the learned Special Judicial Magistrate had recorded that he had disclosed his identity to the appellants and warned thein that they were not bound to confess and that if they confessed, their confession might go against them. As had been deposed by Mr. Mumtaz Ahmad Mughal, Civil Judge (PW-6), the Court timing was from 08:00 a.m. to 3:30 p.m. The appellants had been produced separately before him at 04:00 p.m. on 12.12.2012 onward. The confessional statements under Section 164 Cr.P.C. (Ex. PG, Ex. PI, and Ex. PJ)) reveal that after giving the necessary caution, the appellants separately were seated in the Courtroom under his charge and this process started and continued beyond the Court hours till 5.30 P. M. The appellants, in their confessional statements under Section 164 Cr.P.C. (Ex. PG, Ex. PI, and Ex. PJ)) were certainly not able to give specific dates and times for different occasions i.e. about abduction and murder of Mst. Saleh Bano. The confessional statement under Section 164 Cr.P.C. (Ex. PG) of the appellant-Muhammad Ijaz will read as under:
"اب دوبارہ ملزم کو بلوا کر انکوائری کی گئی ہے لیکن ملزم محمد اعجاز اپنا اقبال جرم قلمبند کروانے پر بضد ہے جو کہ قلمبند کیا جاتا ہے۔
بیان ازاں محمد اعجاز ولد محمد نواز قوم آرائیں عمر 19 سال پیشه زمیندارہ سکنہ شیخاں محله بھیرہ تحصیل بھلوال ضلع سرگودھا۔ بلا حلف
بیان کیا کہ ہم صالح بانوں کے مزارعہ ہے وہ ہمیں تنگ کرتی تھی اور مال مویشی زمین میں پڑتے تھے تو ہمیں سخت تنگ کرتی تھی کہتی تھی کہ میں تمھاری ٹانگیں توڑ دونگی۔ پھر اس نے کہا کہ صالح کو مار دو میں نے علی رضا شاہ اور شاہد عمران کو بلوایا میں نے کہا کہ میں دھکا دونگا اور تم بھی مارنا ہم تینوں نے دوپٹہ سے پھند ابنا کر صالح بانو کا گلا دبا کر مار دیا اور پھر کمادمیں موٹروے پر پھینک آئے ہم نے صالح بانوں کے پیسے ایک لاکھ روپیہ نکالا تھا جو میں نے پولیس کو برآمد کر وا دیے ہیں۔ ہم سے غلطی ہو گئی ہے معاف کر دیا جائے۔"
The confessional statement under Section 164 Cr.P.C. (Ex. PI) of co-accused Ali Raza (separately tried being juvenile) will read as under:
"بیان ازاں سید علی رضا ولد ذو الفقار علی شاه قوم سید عمر 16 سال پیشه زمینداره سکنه لوکڑی سیداں رانجھا بھیرہ تحصیل بھلوال ضلع سرگودھا۔
بلا حلف بیان کیا کہ صالح بانوں کو میں نے ہمراہ اعجاز وشاہد عمران ملزمان مل کر پھندا دے کر مار دیا ہے۔ وجہ یہ ہے کہ محمد اعجاز جو کہ صالح بانوں کا مزارعہ تھاوہ کہتا تھا کہ وہ تنگ کرتی ہے اور میں سخت تنگ ہوں آؤ مل کر مار دیتے ہیں اس نے کہا کہ میں دھکا دیتا ہوں تم پھر مل کر مار دینا پھر سر کا دوپٹہ سے گلہ میں صالح بانوں کے ڈال کر کماد میں لے گئے اور گلہ دبا کر مار دیا۔ میں نے ہمراہ محمد اعجاز نے دوپٹہ پکڑ کر گلہ دبا کر صالح بانوں کو ختم کر دیا ہے۔ شاہد عمران کماد کی فصل کے باہر کھڑا پہرہ دیتا رہا۔ ہم سے غلطی ہو گئی ہے معاف کیا جائے۔"
The confessional statement under Section 164 Cr.P.C. (Ex. PJ) of the appellant-Shahid Imran will read as under:
"بیان ازاں شاہد عمران ولد ذو الفقار علی شاه قوم سید عمر 18 سال پیشہ کیف کھیوڑہ فیکٹری میں کام کرتا ہوں۔ سکنہ لوکڑی سیداں رانجھا بھیرہ تحصیل بھلوال ضلع سرگودھا۔ بلا حلف۔
بیان کیا کہ صالح بانوں محمد اعجاز کی مالکہ تھی۔ اعجاز نے کہا کہ بہت تنگ کرتی ہے اس کا بندو بست کرنا پڑے گا۔ پھر صالح کو مار دینے کو اس نے محمد اعجاز کو کہا تو اعجاز نے ہمیں کہا کہ تم بھی آجاؤ اور مل کر مار دیں گے۔ پھر محمد اعجاز نے اس کو دھکا دے دیا اور وہ گر گئی اور محمد اعجاز و علی رضا نے اسے دوپٹہ کا پھندا بنا کر گلا دبا کر مار دیا میں پہرہ دیتا رہا اور پھر کماد کی فصل کماد میں پھینک دیا۔ ہم نے صالح بانوں کے پیسے -/ 70000 روپے ہمارے سامنے محمد اعجاز نے لیے اور بعد میں چابیاں محمد اعجاز کے پاس تھیں اس نے ایک لاکھ روپیہ اٹھالیا۔ غلطی ہو گئی ہے معاف کیا جائے۔"
While making a confessional statement, the appellants put their thumb marks on their statements, showing that they are illiterate. The appellants, in their separate statements, had not stated the mode and manner, place of abduction and murder, date, and time when they abducted and murdered Saleh Bano. Mr. Mumtaz Ahmad Mughal, Judicial Magistrate Section-30 (PW-6), who got recorded statements of the accused under Section 164 of Cr.P.C., deposed during cross-examination that:
“It is correct that when I recorded the Statements of accused Ali Raza and Ijaz and Shahid Imran in those days, Court timing were 8:00 am till 3:30 pm. According to the Statements of the accused, they were in Formal police custody two days earlier when the statements u/S. 164 Cr.P.C. was recorded. It is correct that when the police produce the accused they were in police custody even to According to police record. According to the record, the statements of above said accused Person were recorded by me after the Court Timings. It is correct that the accused persons did not state time, date and place of the alleged occurrence.”
The confessional statements of the accused persons reveal that strangulation was made by putting the Dupatta of the deceased around the neck of Saleh Bano, and the same was pressed. At the same time, medical evidence reveals that strangulation was made by pressing fingers around the neck of Saleh Bano. As per confessional statements, the accused persons were tenants of Rifat Pasha, but the prosecution failed to establish that the accused/appellants were his tenants. Muhammad Anayat (PW-3)-the complainant, and Mazhar Ali S.I. (PW-7)-the investigating officer, admitted that Rifat Pasha had not joined the investigation. As per the prosecution case, Mazhar Ali S.I. (PW-7)-the investigating officer, arrested the appellants alongwith their co-accused Ali Raza (separately tried being juvenile) on 12.12.2012. On the same day after interrogation and after effecting recoveries from the accused persons, Mazhar Ali S.I. (PW-7)-the investigating officer, produced the appellants alongwith their co-accused Ali Raza (separately tried being juvenile) before Mr. Mumtaz Ahmad Mughal, Civil Judge (PW-6) for recording statements under Section 164 of Cr.P.C. of the accused/appellants. Mazhar Ali S.I. (PW-7)-the investigating officer deposed during cross-examination that:
“I presented accused Ijaz, Shahid and Ali Raza for their statements u/S. 164 Cr.P.C. before Area Magistrate on 12.12.2012. The statements u/S. 164 Cr.P.C of above said accused was recorded by learned Area Magistrate at about 1:30-02:00p.m. ----------- After arrest, accused persons Ijaz, Shahid and Ali Raza were brought to police station. Then they were produced before Area Magistrate. I made the entry regarding the arrest of accused persons in Roznamcha in police station. Whole the proceedings relating to arrest, recovery and recording of statements u/S. 161 and 164 of Cr.P.C, were conducted by me on the same day i.e. 12.12.2012. Accused Ijaz was tenant of the same landlord namely Riffat Pasha of which the deceased Saleh Bibi was servant. I did not record the statement of Riffat Pasha during whole of my investigation. -------------- The time of recording statements u/S. 164 of Cr.P.C by learned Area Magistrate is mentioned as 04:35 p.m. of Ali Raza and 05:10 p.m. of Shahid Imran accused. It is correct that at the time of recording statements u/S. 164 of Cr.P.C the accused persons were already under arrest. ---------------"
The perusal of the statements would lead one to a reasonable conclusion that the appellants had been made to say about certain aspects of the prosecution case, including recoveries from them. In his confessional statement, each appellant stated that he was in custody for two days. Mr. Mumtaz Ahmad Mughal, Civil Judge (PV-6), admitted during cross-examination that:
“It is correct that when I recorded the statements of accused Ali Raza and Ijaz and Shahid Imran in those days Court timing were 8:00 am till 3:30 pm. According to the statements of the accused, they were in formal police custody two days earlier when the statements u/S. 164 Cr.P.C. was recorded. It is correct that when the police produce the accused they were in police custody even to according to police record. According to the record, the statements of above said accused person were recorded by me after the Court timings. It is incorrect that the accused persons did not state time, date and place of the alleged occurrence.”
The accused persons were produced before Mr. Mumtaz Ahmad Mughal, Judicial Magistrate Section 30 (PW-6), for recording their statements under Section 164 Cr.P.C., wherein they specifically answered the question that they were in custody for two days. In such a situation, the magistrate has to lodge the accused persons in jail with the direction to the jail superintendent to produce them for recording their statements under Section 164 of Cr.P.C. In the circumstances mentioned above, a judicial confession made by the accused could not be considered against them. Without exceptional circumstances, a confessional statement will be recorded within Court hours. It had not been done in this case, and no exceptional circumstances had been shown. I thus find that no due care had been taken by Mr. Mumtaz Ahmad Mughal, Civil Judge (PW-6), before and while recording the confessional statement to ensure it was being made voluntarily. The retracted confessions had not received any corroboration indicating the complicity of the appellants. For the reasons mentioned above, I believe that no voluntary confessional statement had been made by the appellants in the case, and the confession, as recorded, would appear too unreal and could never have been acted upon. The trial Court should have seen through all this and rejected the confession outright as highly unreliable and untrustworthy. Instead, he accepted it and even acted upon it.
12. As far as the alleged recoveries of Rs. 1,20,000/-in the shape of 20 notes valuing Rs. 5000/-(P-6/1-20), Rs. 20,000/-in the form of 20 notes of Rs. 1000/-denomination (P-7/1-20), nine keys (P-8/1-9), purse (P-9), Nokia cell phone (P-10), two wrist watches (P-11/1-2), one diary (P-12) and photocopy of identity card (P-13) of the deceased on the pointing of the appellant Muhammad Ijaz (the appellant in Crl. Appeal No. 107345 of 2017) secured by Mazhar Ali S.I. (PW-7)-the investigating officer vide recovery memo (Ex. PN) on 12.12.2012; the recovery of Rs. 20,000/-in the shape of Rs. 5000/-(P-14/1-4) and motorcycle (P-15) bearing registration No. 9955-FDM on the pointing of the Shahid Imran (the appellant in Crl. Appeal No. 195472-J of 2018) secured vide recovery memo (Ex. PO) on 12.12.2012; and recovery of the Rs. 25,000/-in the shape of five notes valuing Rs. 5000/-(P-16/1-5), which the investigating officer (PW-7) took into possession through recovery memo (Ex. PQ) on the disclosure of Ali Raza (co-accused separately tried being juvenile) on 12.12.2012 are concerned, admittedly in the complaint (Ex. PE), FIR (Ex. PE/1) and the prosecution witnesses, i.e. Muhammad Anayat (PW-3)-the complainant, Muhammad Umair (PW-4), and Khalid Fida Hussain (PW-5) have not mentioned the colour, make, model and registration number of the motorcycle used in the incident, domination of currency notes, and the complainant had not mentioned in the complaint
(Ex. PE), FIR (Ex. PE/1) nor deposed during Court statement the nine keys (P-8/1-9), purse (P-9), Nokia cell phone (P-10), two wrist watches (P-11/1-2), one diary (P-12) and photocopy of identity card (P-13) of the deceased were also missing. Whereas, during cross-examination, Muhammad Anayat (PW-3)-the complainant deposed during cross-examination that:
“I had not mentioned the number of motorcycle at which accused now present in the Court were taking Mst. Saleh Banu when PWs saw her in their company…………….. The looted money recovered from the accused persons is of dramatically of ordinary currency. I have not mentioned my cell number in my application from which phone I have tried to contact Mst. Saleh Banu. No telephone data of my cell phone and that of Mst. Saleh Bano was collected by the local police during investigation.”
Mazhar Ali S.I. (PW-7)-the investigating officer, also admitted during cross-examination that:
“The registration number, make and mark of motorcycle allegedly used by the accused persons for taking Saleh Banu deceased is not mentioned in FIR………………. It is correct no weapon of offence has been recovered from Ali Raza and Shahid Imran accused persons. It is correct that I have not recorded any identification marks of currency notes allegedly recovered from the accused persons Ali Raza and Shahid Imran. I have also not mentioned the number of currency notes allegedly recovered from the accused persons Ali Raza and Shahid Imran.”
Muhammad Umair (PW-4) deposed during cross-examination that:
“I have not mentioned any number of the motorcycle on which accused were taking Mst. Saleh Bano and were seen by mself and Abdul Baqi………………It is correct that I have not stated before the I.O. about the registration number of alleged motorcycle and its make model and colour.”
Mazhar Ali S.I. (PW-7)-the investigating officer also deposed during cross-examination that:
“Whole the proceedings relating to arrest, recovery and recording of statements u/S. 161 and 164 of Cr.P.C, were conducted by me on the same day i.e. 12.12.2012. Accused Ijaz was tenant of the same landlord namely Riffat Pasha of which the deceased Saleh Bibi was servant. I did not record the statement of Riffat Pasha during whole of my investigation………….It is correct that I had not annexed proof of ownership of motorcycle P15 with the police file.”
So, the prosecution could not establish the recoveries of Rs. 1,20,000/- in the shape of 20 notes valuing Rs. 5000/-(P-6/1-20), Rs. 20,000/- in the form of 20 notes of Rs. 1000/-denomination (P-7/1-20), nine keys (P-8/1-9), purse (P-9), Nokia cell phone (P-10), two wrist watches (P-11/1-2), one diary (P-12), photocopy of identity card (P-13), the recovery of Rs. 20,000/-in the shape of Rs. 5000/-(P-14/1-4), motorcycle (P-15) bearing registration No. 9955-FDM and Rs. 25,000/-in the form of five notes valuing Rs. 5000/-(P-16/1-5), with the deceased. The testimony of Muhammad Anayat (PW-3)-the complainant, Muhammad Umair (PW-4), and Khalid Fida Hussain (PW-5) is not trustworthy to rely on for corroboration of the alleged confession made by the appellants to complete the chain of circumstances. If the above evidence is kept aside, no other evidence can even remotely connect or point toward the appellants’ guilt. Besides, till the preparation of the site plan, the names of the accused and witnesses were not in the picture. Mazhar Ali S.I. (PW-7)-the investigating officer deposed during cross-examination that:
“That the deceased was an old lady aged 70 to 75 years at the time of her death.” He (PW-7)-the investigating officer, also admitted, “it was correct that no blood relative of said deceased Saleh Bano is a witness in this case. The deceased Saleh Bano’s residence has been mentioned in Bhera City, whereas the agricultural land of one Riffat Pasha is situated in the village of Ranjhanwala. Mazhar Ali S.I. (PW-7)-the investigating officer, also admitted during cross-examination that, “I have not mentioned names of PW’s of recovery of dead body of Saleh Bano as well as the accused persons on rough site plan prepared by me. ------------- Khalid Fida Hussain and Muhammad Farooq PW’s joined investigation before me and I recorded their statements w/s 161 Cr.P.C. and they had nominated the accused persons in the instant case. The statements of above said PW’s u/S. 161 Cr.P.C are available on the record but the nomination of the accused in the said statements is not mentioned.”
This creates serious doubt about the genuineness of the recoveries from the appellants.
13. From the facts and circumstances narrated above, I am persuaded that the prosecution could not prove its case against the accused beyond the shadow of a doubt, as there were many dents in the prosecution story. The accused persons are not expected to prove their innocence to the hilt. If the prosecution story is doubtful, the benefit of the doubt must go to the accused-appellants. In this backdrop, it can safely be held that the prosecution has badly failed to bring home the guilt of the accused/appellants, and the conviction passed by the trial Court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. Per the dictates of the law, the benefit of every doubt will be extended in favor of the accused appellants. The conviction and sentence the learned trial Court recorded cannot be sustained. Reliance has been placed on the case reported as Muhammad Akram v. The State (2009 SCMR 230), wherein the Hon’ble Supreme Court of Pakistan had held that even a single circumstances creating reasonable doubts in a prudent mind about the guilt of the accused makes his entitled to its benefit, not as a matter of grace and concession, but as a matter of right
14. Resultantly Criminal Appeal No. 197345 of 2017 and Crl. Appeal No. 195472-J of 2018 are accepted Conviction and sentence recorded by the trial Court vide judgment dated 17.10.2017 is set aside as a consequence of which, Muhammad Ijaz and Shahid Imran-appellants are ordered to be acquitted of the charge in case FIR No. 437/2012 dated 29.11.2012 registered under sections 302, 201, 382, 34 PPC at P.S. Bhera, District Sargodha. The appellants-Muhammad Ijaz, son of Muhammad Nawaz, and Shahid Imran, son of Zulfiqar Shah, are in jail. They (the appellants) are directed to be released forthwith if not required in any other case.
15. So far as Crl. Rev. No. 118764 of 2017 seeking enhancement in the sentence of Respondents No. 1 and 2 inflicted by the trial Court is concerned, for the afore-stated reasons, the same has no weight, which is accordingly dismissed.
(A.A.K.) Appeal accepted
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