2002 P Cr (PLP)

3. The instant accused Ghulam Hussain had been arrested in F.I.R. No. 182 of 1994. His confessional statement was recorded on 23‑11‑1994 and as a result of his confessional statement he alongwith other accused has been subsequently challaned.

4. A charge under section 302(b)/34, P.P.C. was framed against the accused and others to which they pleaded not guilty and claimed trial.

5. In order to bring home guilt to the accused prosecutior, examined P.W.1 Muhammad Aslam, Constable, P.W.2 Muhammad Bashir, A.S.I., P.W.3 Hakeem Ghazanfar Ali, P.W.4 Arnjad Mehmood, P.W.5, Riaz Hussain, P.W.6 Maqsood Ahmad, ' P.W.7 Muhammad Ishaq, P.W.8 Hafiz Rashid Ahmad, P,W.9 Muhammad Hussain, P.W.10 Muhammad Afzal, P.W.11 Irsaaf Hussain, P.iN.12 Akhtar Ali, PJV.13 Khadim Hussain, P. W.14 Muhammad Latif, P. W.15 Tariq Masood Bhatti, M.I.C., P.W.16 Muhammad Tauqeer M.I.C., P.W.17 Muhammad Afzaf. The learned D.D.A. produced reports of Chemical Examiner Exhs.P S. to P.V. and reports of Serologist Exh.P.W. to Exh.P.Z. and thereafter closed his evidence.

6. When examined under section.342, Cr.P.C. the instant accused denied the prosecution version and stated that he has been implicated in this case falsely. He further stated that he was never produced before any Magistrate nor he made any confessional statement. His other co‑accused Muhammad Ahmad Khalid (since acquitted) denied the prosecution version.

7. After going through the evidence, the learned trial Court disbelieved the oral as well as other evidence produced by the prosecution in support of its stand but relying upon the confessional statement of the accused/appellant, passed the impugned judgment.

8. The appellant has felt aggrieved of the said judgment and filed the instant appeal. .

9. Arguments have been heard and record perused.

10. Since the impugned judgment has been passed on the basis of so called confessional statement of the appellant so arguments, have been heard do this score alone.

11. Stand of the learned counsel for the appellant is that admittedly the confession on the basis of which instant judgment has been passed has not been recorded in the instant case but the same has been recorded in F. I. R. No. 182 of 1994, that even the original confessional statement has not been brought on record and only a photostat copy (attested copy of the same) has been brought on record through the statement of Tariq Masood Bhatti, M.I.C. P.W.15. He further contends that the said Magistrate has not been moved directly for recording confessional statement but the application was moved before the District Magistrate who directed him to record the statement and consequently he recorded confessional statement of the accused/appellant. He further contends that the confessional statement when retracted cannot be made a base for passing an order of conviction unless prosecution brings on record some other independent evidence to connect the accused with the commission of said offence. In support of his contention he placed reliance upon Dilbar and another v. The State PLD 1994 FSC 24, Minhon and another v. The State 1997 PCr.LJ 528 and Haq Nawaz v. The State 1999 PCr.LJ 1381. He further contends that it was incumbent upon the Magistrate to put certain question before, recording confessional statement of the accused/appellant but the said questions have not been put to him as is evident from the confessional statement. He thus submits that even the legal requirements have not been complied with while recording confessional statement and even on this score so‑called confessional statement alone cannot be made basis for passing an order of conviction, hence placed reliance on Minhon and another v. The State 1996 PCr.LJ

528. So far as the production of attested copy of confessional statement Exh.P.R is concerned, he submitted that it was also not its accordance with law and placed reliance on Muhammad Fazil v. The State 1984 PCr.LJ 1669. Besides the facts enumerated above in the confessional statement he submitted that even if the confessional statement Exh.P.R. is taken into consideration it nowhere involves the appellant in the commission of any offence, as he nowhere inculpates himself for the murder of the deceased. On the other hand, he has put the blame on the shoulders of his co‑accused who has been acquitted by the learned trial Court. He thus submits that prosecution has failed to bring home guilt to the accused and the order of conviction is not sustainable in the eyes of law.

12. Conversely impugned judgment has been supported by the learned A.A.‑G. To supplement his contention he submitted that even order of conviction can be based on the basis of retracted confession and placed reliance on Wazir Khan v. The State 1989 SCMR

446. He thus submitted that the learned trial Court was justified in relying upon even the retracted confession of the accused/appellant.

13. It is evident from the facts stated above that initially the complainant named Abu Bakar and Muhammad Ahmad Khalid alongwith two other persons to be responsible for causing the murder of the deceased. The abovenamed two persons alongwith Bashir Ahmad Shad and Munir Ahmad were joined in the investigation of this case and having been arrested they were finally got discharged on 29‑9‑1994. It is thereafter that the confessional statement (Exh.P.R.) of Ghulam Hussain was got recorded on 23‑11‑1994. On the basis of this confessional statement Ghulam Hussain, Ijaz alias Fauji and Ali Sher were also involved alongwith Muhammad Ahmad Khalid. Out of these four persons Ijaz alias Fauji died as a result of police encounter whereas Ali Sher is still proclaimed offender. However, vide judgment under appeal Muhammad Ahmad Khalid has been acquitted and there 'is no appeal against his acquittal filed by the State.

14. The impugned judgment reveals that the learned trial Court has disbelieved the oral evidence produced by the prosecution and has simply relied upon the confessional statement of the accused/ appellant. Admittedly the accused/appellant has even retracted from so‑called confessional statement Exh.P.R. Thus there is no evidence on record p against the accused/appellant except. his confessional statement. It is also a fact that confessional statement has not been recorded even in the instant F.I.R. and the same has not been recorded in another case pertaining to F.I.R. No.182 of 1994. It is also a fact that even the original confessional statement was not brought on record, nor was shown to the Magistrate concerned at the time of bringing it on record. It is also a fact that while recording the confessional statement the required questions were not even put to, the accused/appellant as highlighted in the judgment referred above. The only independent evidence against the accused/appellant is the retracted confession which cannot be made a base for passing an order of conviction unless and until the same stands corroborated by some other independent evidence which admittedly is lacking in the instant case.

15. For what has been stated above, it is proved that the judgment under appeal is not sustainable in the eyes of law, on the touchstone of the authorities referred at the bar on behalf of the learned counsel for the appellant. Accordingly the appeal is accepted and the impugned judgment is set aside. The appellant is ordered to be released forthwith if not required in any other case. J.A.M./G‑124/L Appeal accepted.