P L D 2009 Quetta 1 (PLP)

AKHTAR ZAMAN MALGHANI, J.

By this common judgment we intend to dispose of Criminal Appeals No.38 of 2007, 42 of 2007 and 43 of 2007 arising out of the same F.I.R.

2. Briefly stated, facts of the case are that on 12-7-2006 a case under sections 295, 295-B and 34, P.P.C. was registered in police station, Sibi on the report of Syed Imdad Hussain Shah vide F.I.R. No.49/2006, wherein; it was alleged that on the said date he received information about coming out of obnoxious odor from shrine Syed Sikandar Shah, whereupon; he informed Mutawali Muhammad Rafiq and Moulvi Hafiz Asadullah who came to shrine and found that some one had stained Holy Quran and shrine with filth, a case was accordingly registered. During investigation appellants were arrested. According to prosecution case appellants Rab Nawaz, Liaquat and Niaz confessed their guilt before Judicial Magistrate, wherein; they also involved appellant Jagdesh. After usual investigation challan was submitted before Additional Sessions Judge, Sibi, however; during trial appellant Liaquat and Niaz Muhammad were found to be minor, as such; police was directed to submit a separate challan before Juvenile Court against them, which was accordingly done, but both cases were tried by the same Presiding Officer.

3. On commencement of trial charge was read over to appellants, to which they pleaded not guilty. Whereafter; prosecution in both the cases produced ten witnesses. At the end of prosecution evidence appellants were examined under section 342, Cr.P.C. wherein; they denied all the allegations. Except appellant Jagdesh, none other recorded statement on oath. No witness was produced by appellants in defence.

4. On conclusion of trial, learned Additional Sessions Judge/ Juvenile Court found all the appellants guilty under section 295 and sentenced them to two years' R.I, whereas; they were awarded imprisonment for life under section 295-B, P.P.C. Both the sentenced were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extend in their favour.

5. We have heard learned counsel for appellants as well as learned Assistant Advocate-General. Learned counsel for the appellant Jagdesh vehemently contended that there was no evidence on record against his client except so called confessional statement of appellant Rab Nawaz which was recorded with unexplained delay of 16 days making the same doubtful. He further argued that even otherwise such confessional statement was result of torture as admitted by Rab Nawaz, therefore; it was neither voluntary nor true. He next argued that no conviction can be based on the retracted confessional statement of co-accused until and unless same is corroborated by some independent evidence which is lacking in the instant case, hence; appellant Jagdesh was liable to be acquitted of the charge. Learned counsel for appellants Rab Nawaz, Liaquat and Niaz vehemently contended that there was no evidence to implicate appellants in the commission of offence except their so called confessional statements, which was retracted and having been recorded after delay of fifteen days were liable to be excluded from consideration. He further contended that the confessional statements were contradictory to each other, which shows that same were neither true nor voluntary. He next argued that learned Additional Sessions Judge erred in law by relying upon the so called disclosure which was made before police and not admissible in evidence. On the other hand, learned Assistant Advocate-General supported the judgment and contended that confessional statements of appellants were voluntary and true which were corroborated by the disclosure and they were rightly found guilty by learned trial Court.

6. We have carefully considered the contentions put forth by the parties learned counsel and have also gone through the impugned judgment as well as evidence on record. In order to substantiate the accusation, prosecution produced ten witnesses. P.W.1 lodged report Exh.P/2 and he had not implicated the appellants in his statement. P.W.-2 Muhammad Sudeer is witness to the alleged disclosure of appellant Rab Nawaz, wherein; he admitted to have committed the offence through his younger brother Liaquat and his friend Niaz at the behest of appellant Jagdesh who paid Rs.10;000 to him for that purpose. P.W.-3 Hafiz Asadullah after receiving information from Imdad Hussain went to shrine of Sikandar Shah where he found walls of shrine as well as Holy Quran stained with human filth. He also submitted an application on 13th July, 2006 wherein he suspected appellants Liaquat, Rab Nawaz and one Tiloo to have committed the offence. P.W. Khameesa Khan deposed that on 13-7-2006 on the pointation of people of the area they arrested two persons namely Liaquat and Niaz who admitted to have committed the offence and also pointed out place of occurrence. A memo. was accordingly prepared, signed by him. P.W.-5 Nazir Ahmed is also witness to the alleged disclosure of Liaquat and Niaz admitting commission of offence. P.W.-6 Dilawar deposed that about 6-7 months back he found donkey-cart of Liaquat and Tiloo parked near shrine. He also went into shrine, whereupon; both the accused ran away after pushing him aside. On next day he came to, know about the incident, then he informed Imdad Shah about presence of two accused in the shrine one day prior to occurrence. P.W.-7 Syed Ghulam Qadir Shah Bukhari Judicial Magistrate recorded confessional statements of appellants Rab Nawaz, Liaquat and Niaz. P.W.-8 Dr. Muhammad Ali medically examined Jagdesh Kumar and Rab Nawaz in order to ascertain their mental status and found them normal. P.W.-9 Muhammad Boota and P.W.-10 Jan Muhammad are Investigating Officers of the case.

7. Prosecution in order to substantiate the accusation relied upon the disclosures of appellants Rab Nawaz, Niaz and Liaquat, ocular testimony of P.W. Dilawar and confessional statements of appellants Rab Nawaz, Liaquat and Niaz. So far disclosure made by appellant Rab Nawaz or pointation of place of occurrence by appellants Niaz and Liaquat are concerned, being admission of guilt during police custody are not admissible in evidence as consequence to such disclosure neither any recovery nor discovery of incriminating articles has been effected, on the other hand the facts disclosed in the disclosures were already in the knowledge of police. In the judgment reported in PLD 1995 FSC 20, it was observed as under:-- "The place of occurrence was known to everyone and even the site-plan had been made earlier on 26-10-1992, whereas the alleged pointation by Ahmed Sher is on 9-11-1992. This fact about the place where the incident had taken place cannot be treated as a discovery to bring it within the four corners of Article 40." Learned Additional Sessions Judge/Special Judge relied upon the so called disclosure made by appellant Rab Nawaz by bringing it within the purview of Article 40 of the Qanun-e-Shandat Order, 1984 as according to him new facts were discovered through such disclosure, which conclusion in view of the language of Article 40 was wrong because under the said Article so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered can be proved against the accused. In the instant case facts disclosed by appellant Rab Nawaz or by Niaz and Liaquat were already in the knowledge of police and nothing new was discovered or recovered relating to crime on their pointation. Similarly; statement of Dilawar would also be of no help to the prosecution, because according to him he saw appellants Niaz and Liaquat inside the shrine one day prior to the occurrence which was not unusual for them being Muslims and only on that basis they could not be said to have committed the offence nor such piece of evidence could be used against them as a corroboratory piece of evidence. The main thrust of the prosecution is upon retracted confessional statements of Rab Nawaz, Niaz and Liaquat which were recorded after a delay of fifteen days. It is true that mere delay in recoding of confessional statement alone is not sufficient to discard such confessional statement, if it is otherwise found truthful and voluntary by Court but where there is no other evidence on record except the confessional statement, it requires close scrutiny and "un-explained delay can cast doubts in voluntariness of such statement. In the instant case according to police own showing the appellants confessed their guilt by making disclosure and pointing out place of occurrence on 13-7-2006 but surprisingly despite such admission they were not produced before the Judicial Magistrate soon thereafter. Both investigating officers admitted that after their so called disclosure no further investigation was carried out in the case during the, intervening period. Possibility cannot be ruled out that the appellants were kept in police custody in order to extract confession. The fact that at the time of recording of confessional statement appellant Rab Nawaz complained about torture of police and requested the Magistrate to immediately transfer him to judicial custody, also shows that he was under threat. He also in answer to a question stated that they had no nexus to other people during police custody which also indicate that confessional statements of appellants were not voluntarily but result of torture, duress and threat. The main object of putting certain questions before recording confessional statements is to judge as to whether accused is confessing his guilt voluntarily or otherwise. In the instant case answers given by appellant Rab Nawaz would certainly show that confessional statements were not voluntarily. Similarly; truthfulness of the facts narrated in such confessional statements are also doubtful as these confessional statements are not only contradictory to each other but also to prosecution version as setup by it in the so called disclosures. For example according to appellant Liaquat he did not enter into the shine and remained outside and the act of defiling and desecrating the shrine and Holy Qur'an was done by co-accused Niaz, whereas; according to Niaz both of them entered into shrine and stained the shrine as well as Holy Qur'an with filth. Similarly; according to disclosure made by Rab Nawaz he was paid Rs.5,000 in advance and Rs.5,000 afterwards but according to his confessional statement appellant Jagdesh paid him Rs.10,000 in advance. In view of such material contradictions in the confessional statements it could not be safely concluded that the same were truthful. It may further be noted that all the three appellants have retracted their concessions, therefore; under the rule of prudence strong independent corroboration is required which is lacking in the instant case. Even confessional statements as discussed earlier did not corroborate each other. In the light of above discussed factors it would be highly dangerous to sustain conviction of imprisonment for life on the basis of such tainted pieces of evidence, as such; we are inclined to set aside both the judgments dated 28-2-2007 passed by Additional Sessions Judge, Sibi and Special Judge/Juvenile Court and acquit the appellants of the charge. They be set at liberty forthwith, if not required in any other case. H.B.T./2/Q Appeal allowe