1999 PLP 2646 (MLD)

Dacoity--Offence of

Acquittal from charge of

Challenge to

Although appellants were not previously known to complainant and eye-witnesses, yet no identification parade was held--There is no judicial guarantee that appellants and none else had committed dacoity in house of complainant-Held: If there is only one circumstance which creates a reasonable doubt in a reasonable and prudent mind about identify of accused, that may be sufficient for his acquittal--Held further: No except on can be taken to acquittal of appellants, of charge under section 395 & 397 of P.P.C. PLJ 1990 Cr. C. 47: This is Single Bench Judgment of the High Court of Peshawar which reads at heading (iii) as under:-- "S. 302-Evidence, appreciation of

Recovery evidence not believed- Discrepancy in motive statement--Ocular evidence hardly believable-- Recovery of fire arms rightly disbelieved by trial Court--No identification test of accused--Held: Prosecution has miserably failed to substantiate its case against appellants--Conviction and sentence, set aside--Appellant acquitted. " Mst. Jamila Bibi has deposed that out of four muffled culprits when entered the room after breaking the door, one could be identified by her because his mole was removed by her. In view of the following rulings, she should have described this fact at the earliest opportunity when her statement under section 161, Cr.P.C. was recorded or when F.I.R. was lodged:-- 1993 SCMR 585: This ruling at heading 'B' enunciated by Supreme Appellate Court reads as under:-- "S.302. Special Courts for Speedy Trials Act (IX of 1992), S.13(5)- Appeal against acquittal--Appreciation of evidence

Identification test had no value for want of description of accused in F.I.R.

Ocular evidence was unreliable." PLD 1995 SC 1: In this case the relevant ruling is at heading. 'C' which reads as under:-- "(c) Criminal Procedure Code (V of 1898)

S. 162

Qanun-e Shahadat (10 of 1984), Arts. 22 & 153

Identification parade

When essential

If witness gets of momentary glimpse of accused and claims that he would be able to identify him, then after arrest, identification test becomes very essential which is to be conducted strictly according to guidelines and legal requirements enunciated by law." 1996 SCJ 490: In this case the Hon'ble Supreme Court of Pakistan has enunciated the following ruling at heading 'B':-- "(6) Identification Test-- Identification test would be necessary when accused is not named in F.I.R. and only description is given." In view of the above mentioned rulings and the circumstances of the case I have come to the conclusion that none of the two appellants were ever identified and in case appellant Jamil Ahmad was identified in the trial Court after two years B and three months, this identification itself shall be termed as a mock proceeding and shall not be considered as a legal piece of evidence. Even others in this respect the deposition of Mst. Jamila Bibi is not inspiring confidence and her identification of appellant Jamil Ahmad is hereby declared to be a piece of evidence not admissible legally.

9. The second contention of Malik Rab Nawaz Noon, learned counsel for the appellants, is that there are material and substantial conflicts coming the C witnesses for prosecution. For example, Muhammad Ishaq (P.W.12), I.P. and I.O. has deposed that it is correct that in F.I.R. the complainant had not made any reference to the firing on his another son of Muhammad Anwar, whereas Anwar Khan (P.W.3) is deposing that one of the muffled culprits had fired towards him and the bullet crossed the door and touched the wall of his residential room. In another conflict to which reference is made is again between P.W.12 (the I.O.) and Mst. Jamila Bibi (P.W.6). P.W.12 is deposing that he had recorded the statement of Mst. Jamila Bibi at the time of the incident, but Mst. Jamila is replying to certain suggestions that the police had recorded her statement on the second or third day of the incident. The learned counsel for State has contended that these are not that type of discrepancies which dislodge the entire story of the prosecution. I also agree with the point of view of the learned counsel' for State in this respect in view of the fact that it is not necessary that all the details are inserted in the F.I.R. and that Mst. Jamila Bibi has also deposed that police had recorded her statement twice, but she does not remember the exact dates. May be her statement recorded on the second or third day of the incident got recorded her narration which concerns the second statement under section 161, Cr.P.C. Consequently this contention is repelled.

10. Now remains the question of the evidentiary value of the judicial confession of the appellant Ali Ahmed. The counsel for appellants has attacked this judicial confession made before Naseer Ahmad (P.W.11), Tehsildar, Mastung and Second Class Magistrate. The first objection is that appellant Ali Ahmad was made to appear before the above mentioned Magistrate Second Class to make statement under section 164, Cr.P.C. on 11-4-1995, whereas accordingly to P.W.12 (the I.O.) this appellant was arrested on 27-3-1995 i.e. 14 days after the arrest. This delay in recording the confessional statement is fatal to the evidentiary value of the said statement. In this context reliance has been placed on 1998 PCr.LJ. 383., which is a Full Bench judgment of this Court. There is no explanation of this delay in recording the statement. Naseer Ahmad (P.W.11), the Recording Magistrate, had admitted during cross that he had asked the appellant Ali Ahmad as to how many days he was kept in the custody, but he does not remember about the reply. Then further he has replied to other questions that he had himself sent this appellant to the judicial custody after the confession. He has denied that he has no knowledge that in fact on 11-4-1995 the appellant was sent to the judicial custody by the District Magistrate. He has further admitted that he does not remember as to who was giving remands to this appellant and he has also shown his ignorance that in fact the appellant was arrested on 27-5-1995. He has also shown his ignorance that this appellant was shifted to Quetta on 12-11-1995. This piece of deposition of the Recording Magistrate has been falsified by Ghulam Mustafa (D.W.1 for accused Ali Ahmad), Senior Clerk, District Jail Quetta who has deposed on oath that appellant Ali Ahmad was shifted by the Deputy Commissioner on 12-4-1995 and this appellant according to the record of the Jail was serialised at serial No.1071. This witness also produced original record. A photo copy of which is on the file which Exh.D/21. This deposition of the defence witness as well as the record of the Jail produced by him clarifies that in fact appellant Ali Ahmad was not sent to the judicial custody after having got recorded his statement in the nature of judicial confession which confession in itself cannot be termed as totally inculpatory. Once a person who is delivered back to the police after having given judicial confession is in fact illegally delivered and the fate of such confession is covered by the following rulings:-- PLD 1960 (W.P.) Kar. 674: The relevant ruling is at heading (e) which reads as under:-- "(e) Confession

Accused making confession delivered back to police custody--Voluntary nature of confession vitiated

Confession without any evidentiary value

Criminal Procedure Code (V of 1898), S.

164. After the recording of confession the accused person should be sent to judicial custody, and they should in fact be informed before hand that whether they make a confession or not, they shall not be delivered back to police custody. If the confessing accused is sent back to police custody after he has made a confession, such a course seriously vitiates the voluntary nature of the confession. Where the voluntary nature of confession is doubtful, it can hardly be credited with any evidentiary value at all.

11. Since appellant Ali Ahmad has also examined himself on oath under section 340(2), Cr.P.C. and has clearly repudiated on oath the confessional statement and has deposed further that he was taken before Tehsildar by S.H.O. under duress and in the presence of S.H.O. his signature was obtained on the confessional statement under compulsion and upto the time he was in the police custody he was being tortured and after the recording of the confessional statement under torture and compulsion he was taken to Quetta and was kept in the police custody at police station Civil Lines where also he was tortured upto 5-12-1995 and then he was sent to the judicial custody. During cross the prosecution has not been able to dislodge him. Consequently, then, following rulings have been cited which apply on such situation when the confession is r repudiated on oath by the maker of the confessions:-- 1993 PCr.LJ 1118. PLD 1987 Quetta 96 PLD 1981 Kar. 98. 1986 PCr.LJ 1153. On the other hand, the learned counsel for the State has contended in this regard that the confession of Appellant Ali Ahmad is inculpatory and in this confession he has also involved appellant Jamil Ahmad to be one of the accomplices, therefore, this case will fall within the meaning of explanation 2 to thirdly of section 107, P.P.C. which reads as under:-- "

107. Abetment of tithing.

A person abets the doing of a thing who-- Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 2.

Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act, In this context he has relied on 1995 PCr.LJ

449. The relevant ruling of which reads as under:-- "(b) Confession .. Mere fact that confessional statements were recorded after about a month of arrest of accused would not make them doubtful when they were not only inculpatory but where also corroborated by independently and uninterested witnesses who were present at spot and were victims of robbery." 1998 MLD 944 (a) Qanun-e-Shahadat (10 of 1984)

Art. 37

Confession--Conviction on confession alone

Where a Court believes a confession, Judicial or extra judicial, retracted or unretracted, to be voluntary and true, it can convict the accused on its sole basis." I find this line of arguments by the learned counsel for State not coherent with the circumstances of the present case because the so-called judicial confession of appellant Ali Ahmad is neither corroborated by independently and interested witnesses who were present at the spot and were victim of the offences nor I can G believe this type of confession which has clearly been retracted and does not sound to be voluntary and true. Explanation 2 to thirdly of section 1907, P.P.C. is not clearly coming up in the circumstances of the present case in spite of the deposition of Akbar Khan (P.W.2) has simply deposed that appellant Ali Ahmad had asked him as to whether his brother deceased Muhammad Akram will go to the duty in Kalat or not and on the Eid Day. Such questions are usually asked by those who are near and dear and in a neighbourhood of the same smaller village and kilies and especially when they meet on the religious ceremonial occasions. This single sentence of Akbar Khan (P.W.2) cannot be considered as coming up in corroboration with the retracted confessional statement taken under duress and incurable illegalities have been committed before and after the recording of the confessional statement.

12. In view of the above mentioned discussion I do not find enough material to involve the appellants in the commission or abetment of the offences. L The prosecution has not been able to prove the offence beyond reasonable doubt. The case against appellants is highly doubtful and the benefit of doubt is extended to them. Consequently, the impugned judgment is set aside and the appeal accepted. The appellants, namely, Ali Ahmad son of Gul Muhammad 1 Caste Sarkazai, resident of Tindalan, Mastung and Jamil Ahmad son of Fatz Muhammad, resident of Killi Tarkha, Quetta may be released from the jail in case not wanted in any other case. H.B.T./10/FSC Appeal accepted