2005 P Cr (PLP)

TARIQ PARVEZ KHAN, J.

This tragic incident occurred on 12-10-1999 at late evening time. In the melee Tehseenullah lost his life whereas Isam Khan (P. W.14) sustained fire-arm injuries. The deceased and the injured are brothers inter se. They are having their jewllery shop in Main Bazar Ouch, District Dir. It was stated by Isam Khan complainant in his report made to Anwar Sher (P.W.3) that at the eventful time he along with his brother deceased and a bag containing gold, left their shop for their house. When reached near the house of one Nek Muhammad, were confronted by three persons, out of the three one was having a beard and the bearded man made a fire shot with pistol at deceased Tehseenullah who was hit and the same missile after causing exit wound hit the complainant as well. He further stated that the bag containing gold was either fallen on the spot or taken away by the accused. None was charged in the F.I.R., however, it was stated that the deceased and their other brother Jehan Bakht was owing outstanding amount against two different people.

2. Later during investigation six persons were accused of this crime including the two appellants.

3. We are now seized of two appeals, one filed by Bakht Roidar bearing No.403 of 2004 and the other through Superintendent of Jail tiled by Zair Hakeem bearing No.423 of 2004 because the two appellants have been convicted and sentenced on 21-5-2004 as under: Convicted under sections 109/396/34, P.P.C. and sentenced to life imprisonment with a fine of Rs. one lac each, in default to suffer two years' R.I. each. Convicted under sections 109/397/34, P.P.C. to ten years' R.I. with a fine of Rs.50,000 each in default further R.I. for one year each with benefit of section 382-B, Cr.P.C.

4. Prosecution in this case examined 19 witnesses. None but P.W. 14 is the star-witness and to some extent Zarin Bakht (P.W.12).

5. Learned trial Judge has disbelieved all the circumstantial evidence collected during investigation and tend to be proved at the trial which include the recovery of cash amount taken into possession through memo. Exh.P.W.6/1 and Exh.P.W.6/2. It has also disbelieved the recovery of golden ornaments taken into possession through memo. Exh.P.W.6/3 because the cash amount and the golden ornaments were not recovered from the personal possession of either of the appellants but were produced by others on different dates that too in the police station.

6. The trial Judge has mainly relied on the confession of two accused recorded on 11-9-2000 by Fazal Karim P.W.B. The confessional Bakht Roidar is Exh.P.W.8/4 and that of Zair Hakeem is Exh.P.W.8/5. They were arrested on 6-9-2000 and 2-9-2000 respectively.

7. We have read the two confessions. Both have though admitted their association with the absconding co-accused but to the extent of having conspired to commit the offence of Haraba. But when it comes to the question of real participation in the crime, both the confessors stayed back in their respective houses and did not accompany the culprits who have committed the main crime.

8. The complainant even in his Court statement deviated from his stance as taken in the F.I.R. and stated that they were attacked by three persons who all have muffled their faces.

9. No test identification parade was held in respect of the' two appellants during entire investigation.

10. P.W.19 Muhibullah came up with the version that Zair Hakeem accused was previously known to him and since he was indebted to him in the tune of Rs.1,000, therefore, on a particular evening he went to demand the money which Zair Hakeem dated that he is working on some plan/scheme and after the accomplishment of the said secret scheme he would return the loan. He further stated that the next day he came to know about the occurrence. 10-A. We cannot believe P.W.19 who is resident of village Wazir Abad Dargai Malakand whereas the occurrence has taken place in District Dir Tehsil Ouch. He further admitted that he was also one of the suspects in this case and was detained by the police.

11. The confession of an accused can be used against the co-accused provided it is proved against the maker and if proved against the maker can be taken as circumstantial evidence against the co-accused. Neither of the accused has been asked in 342, Cr.P.C. statements about the confession of the co-accused. No question is put to either of the accused. There are even no such circumstantial evidence through which the appellants can be connected with the commission of the crime irrespective of the fact that the confessions are totally exculpatory.

12. When the confessions are held to be exculpatory not put to each of the accused and were recorded after considerable delay and when they were not corroborated by any independent evidence they could not have been made basis for conviction and sentence. This appeal is, therefore, allowed. Conviction and sentence of the appellants are set aside and they are acquitted of the charge. They be set free from jail forthwith, if not required in any other case. H.B.T./446/P Appeal allowed. ***