2001 PLP 2181 (YLR)

(1) Whether the deceased Akbar and Nawaz died an unnatural death at the date, time and place as alleged by the prosecution? (2) Whether the accused in furtherance of their common intention abducted the deceased Akbar and Nawaz and killed them on the date, time and place as claimed by the prosecution? (3) That offence, if any, was committed by the accused persons? After having heard the learned counsel as well as learned D.D.A., the learned trial Court convicted the accused/appellants, as aforesaid and awarded them the punishment principally on consideration of their confessional statements whilst acquitting other co-accused. Mr. Aftab Ahmed Bhutto, learned counsel for the appellant in Criminal Appeal No. 138 of 1999, in support of the appeal has firstly adverted to the examination of Mst. Bashiran and submitted that she had completely resiled from the F.I.R. as she had depose& in so many words that she had not implicated the appellants/accused she has also stated that although she had filed a direct complaint against the appellants and other accused she had moved the necessary application for withdrawal of the same. Consequently per learned counsel as the complainant had resiled from her complaint, she should have been declared as hostile and cross-examined. As this was not done her statement should be accepted to be true. For this purpose learned counsel relied upon Khawand Bux v. The State 1997 PCr.LJ 280 and Habibullah v. The State PLD 1969 SC

127. Learned counsel next submitted that all the accused were produced before the Magistrate on 20-10-1993, whereas the incident is of 23-8-1993 i.e. there is a delay of two months. Similarly the accused were arrested on 16-10-1993 and there is delay of 4 days in recording their Confessional Statements. In these circumstances per learned counsel the confessional statements were of no value particularly as these were retracted by the accused and no corroborative evidence was available. Learned counsel relied on Munir Mushtaq v. Collector of Customs PLD 1999 SC 1111, Syed Ali Shah alias Shahji v. The State 1993 PCr.LJ 1118, Mst. Darya Khatoon v. The State 1995 PCr. LJ 1477. Further as regards the confessional statements of the accused, learned counsel has submitted that the reason given by the accused for killing the deceased was due to an old enmity between the parties viz. deceased Akbar and had murdered their father and he used to rape their women and also extort money from them. These are quite unbelievable since in such circumstance why should the deceased join the accused for lunch. As in per learned counsel the confession did not satisfy the accepted principles since all the accused were confined in the same room for reflection and their hand-cuffs were not removed. In support of this contention learned counsel has relied on Muhammad Riaz v. The State PLD 1994 Pesh.

102. Next learned counsel has submitted that the prosecution version regarding recovery of a blood-stained gunny bag which was allegedly used in the transportation of the dead bodies is not corroborated by the confession of the accused wherein it has been stated that plastic bags were used. Further more, the alleged gunny bag and the bicycle which was allegedly used in the commission of the crime were never produced before the trial Court and neither the gunny bag was sent for chemical analysis. Finally learned counsel has submitted that the entire case of the prosecution is based on circumstantial evidence and the confession of the accused from which they have resiled as per their statements before the Court, and therefore, in these circumstances the appeals should be allowed. Mr. Muhammad Ibrahim Soomro learned counsel appearing for the appellants in Criminal Appeal No.132 of 1999 has supported and adopted the arguments of Mr. Aftab Ahmed Bhutto. Mr. Ali Azhar Tunio learned Additional Advocate-General on the other hand has fully supported the impugned judgment. He has relied upon Mst. Naseem Akhtar v. The State 1999 SCMR 1744, wherein although there was a delay of 12 days in recording .the confessional statement this was not considered fatal to the conviction of the accused. So also he has submitted that as per the said case conviction could also be based on a retracted confession provided the merits of the case otherwise so warranted. He has also cited Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983 and Ahmed Hassan v. The State 2001 SCMR 505 for the above proposition. The learned Additional Advocate-General has further submitted that there is corroborative evidence in the shape of recovery of a knife and axe and per deposition of - the Investigating Officer Exh.20, which were so recovered from the house of one Ashraf. The learned Additional Advocate-General has relied upon Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445, for the proposition that all the technicalities are to be avoided in order to do substantial justice and also upon The State v. Farman Hussain PLD 1995 SC 1 where too there were certain discrepancies in the version of the prosecution and the complainant but still the conviction was upheld. As regards the failure of the prosecution to cross-examine the complainant once she had become hostile, the learned Additional Advocate-General has submitted that the complainant being a lady was won over by the accused as all of them belonged to the same family. For this proposition he has relied upon Darey Khan v. The State 1972 SCMR

878. In rebuttal Mr. Bhutto has submitted that in any event delay in recording the confession is not explained. Furthermore, the confession was not voluntarily given and thus there should be some corroboration which is again absent. He has cited Haq Nawaz v. The State 2000 SCMR 785 and Ghulam Khan v. The State 2001 PCr.L.J. 435, in this regard. Finally learned counsel has submitted that an adverse inference must be drawn from the non-production of the Mashirs without valid reasons for which he has relied on The State v. Farman Hussain PLD 1995 SC

1. He has also relied upon Muhammad Anwar and another v. The State 1999 SCMR 729 for the proposition that where even if a dead body is recovered but it is not identified; then no conviction could be made on this basis. In the present case no dead body was recovered at all which puts the case of the accused on a better footing. I have heard learned counsel for the appellants as well as the learned Additional Advocate-General and have perused the record. My conclusions are as under:-- It would be seen that as per well- settled law on judicial confessions, if the same is given without any coercion or delay then it is to be accepted provided there is no material present on the record from which a Court of law could be pursuaded to hold otherwise. However, even if there is delay or certain lapses are made on the administrative side on the part of the Magistrate regarding the confession, the same may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on the part of Magistrate that have not in any way adversely affected the voluntariness of truthfulness of the confession and also that the confessions were not tutored and were, in fact, given voluntarily as has been laid down by the Hon'ble Supreme Court in the case of Haq Nawaz v. The State (supra). However, in the case of a retracted confession the Hon'ble Supreme Court, as a matter of prudence, has laid down that even though the same could be accepted tin the basis that it was voluntary and true, it should not be acted upon unless corroborated by some other reliable evidence and material particulars. See Muhammad Yakoob v. The State and Mst. Naseem Akhtar v. The State (supra). The facts of the cases would show that the conviction of the accused is based entirely on their confessions whereby they had admitted to have murdered the deceased which were subsequently retracted. Consequently it would now have to be seen whether such confessions particularly as they were retracted by the appellants/accused can stand the test of independent corroboration etc. as per the settled law laid down by the Hon'ble Supreme Court. In this connection it would be seen that the confessions of the appellants/accused totally with each other. As per Exh.10 which is the confession of accused Nazeer there was enmity between the accused party and the deceased inasmuch as about 8/10 years ago his father had been murdered at the instigation of deceased Akbar by Aslam. Ashraf and Bashir who had also stolen a sum of Rs.35,000 alongwith a golden ring and wrist-watch which belonged to his father. Thereafter, Akbar and his party had been terrorising the accused party inasmuch ' as Nazeer's niece Sughran had been raped by Akbar and his party and thereafter killed and so also Akbar had been extorting money from the accused patty. Thereafter, Nazeer alongwith the appellants and co-accused had decided to kill Akbar and Nawaz. On the day of incident Nazeer had met Akbar and Nawaz in the market place when all three of them went to Ilyas's house where Akbar started taking heroin powder. Then Nazeer went out to bring some soft drinks and on the way he met his brothers Mushtaq and Sarwar who accompanied him back to Ilyas's house. Thereafter, all four viz. Mushtaq, Sarwar, Ilyas and Nazeer attacked the deceased with daggers and killed them. Then they wrapped the dead bodies in a plastic sheet and at about 10/11 p.m. threw the bodies in a nearby canal alongwith the daggers. Thereafter, the accused went to the Shrine of Baba Salahuddin and then escaped into the mountains. After some time they went back to Tando Allahyar and started to earn their living as labourers when the Police had arrested them on 16-10-1995 and produced them for recording their statements before the concerned Magistrate. The abovesaid confessional statement of Nazeer had been corroborated in material particulars by the confessional statements of appellants Ilyas and Ghulam Sarwar as well as by co-accused Haider alias Shareef in his statement under section 164, Cr.P.C. As far as the actual recording of the confessional statements are concerned by the Magistrate I do not find that any administrative irregularity has been committed. I come on the record that the concerned Magistrate who has produced the confessional statements as Exhs.10, 11 and 12 that before recording of the same, the accused's handcuffs were removed as required under the law and they were also given enough time viz. 2 hours to reflect and it was explained to them that they were not bound to record their confessional statements. They were also informed by the learned Magistrate that in case they do so the same would be used against them. So also the learned Magistrate has certified on the confessional statements themselves that these were taken in her own handwriting and that the same are correct. The certificate so given by the learned Magistrate, is corroborated in her examination-in-chief and she could not be shaken in cross-examination regarding her testimony even though suggestions were put to her that she had been influenced by one Allah Bux Channa, Inspector of Police who was at that time posted at Police Station S.I.T.E. and who was her relation which she has denied: Consequently I am of the opinion that in the circumstances of the case no exception can be taken as to the manner and methodology adopted by the learned Magistrate in recording the confessional statement. However, it remains to be seen that as the statements were retracted by the accused whether they can stand up to the test of independent corroboration. In this regard the first piece of evidence as per the prosecution is the blood stained gunny bag and the bicycle recovered from the house of accused Muhammad Shareef alias Haider and from a field at the pointation of appellant Ilyas respectively vide Mashirnama of recovery Exh.16 and Exh.17 dated 25-8-1993 and 19-10-1993 respectively. This piece of evidence is not at all mentioned either in the confessional statements of the appellants or by co-accused Haider alias Shareef in his statement under section 164, Cr.P.C. As per the confessional statements of the appellants the bodies of the deceased were wrapped by them in a big plastic sheet and thrown into the canal alongwith the daggers used to murder them. Nowhere has it been admitted by the appellants that they used the gunny bag or the bicycle to transport the dead bodies. Similarly in the statement under section 164, Cr.P.C. of Haider alias Shareef he has not stated that the gunny bag and bicycle were used to transport the dead bodies and so also in fact the gunny bag itself was not sent for chemical examination in order to ascertain whether it was blood-stained or not. The next piece of evidence are the allegedly blood-stained walls of a. room in appellant Ilyas house as well as the freshly cemented floor of the said room vide Mashirnama Exh.21 again, in the absence of positive evidence by way of chemical analysis etc., it cannot be said that indeed the said stains were of human blood. Finally there is the recovery of a blood-stained hatchet, pieces of rope and a dagger without handle from the house of one Ashraf Arain. In the first instance, it has not been established as to how Ashraf Arain was connected with the crime as nothing has been mentioned in the appellants' confessional statements whether they had left these alleged crime weapons in Ashraf's house. Secondly, yet again there is no chemical report as to whether the stains were of human blood. It would also be seen that on a close examination of the confessional statements themselves it is quite strange as to how the deceased who were allegedly on inimical terms with the appellants would go to the house of appellant Ilyas for a social gathering. This aspect of the matter does not appeal to common sense and reasons. Next it would be seen that there is a delay of four days in recording of the confessional statements which has also not been explained by the prosecution which further thrusts doubt on the authenticity of the same. So also when the complainant had resiled from the F.I.R. she should have been declared hostile and cross-examined which was not done. Again this raises further doubt in the facts and circumstances of the case coupled with the fact that the dead bodies of the deceased were never recovered. Further it would also be seen that the confessional statements themselves do not tally with the F.I.R. since nowhere in the F.I.R. has it been mentioned that the deceased who were related to the appellants had any past enmity amongst themselves. On the other hand the motive for the alleged crime is said to be a money dispute between the deceased and the accused. Similarly in the F.I.R. it is stated that Ilyas, Haider and Nazeer had come to fetch the deceased for lunch whereas in Nazeer's confessional statement it is recorded that Nazeer had met the deceased in the market place and then all three went to the Ilyas house again why should the accused who were at daggers drawn with the appellants accept the latter's invitation for lunch? As observed above Nazeer's confession has been corroborated by the others. I am conscious of the fact that an F.I.R. is merely a report which sets into motion the machinery, which finally results in the conviction or acquittal of the accused and consequently it is not necessary that the same tally with the prosecution's case. However, in the circumstances of the present case, where the prosecution version is riddled with uncertainties, the F.I.R. can be taken into consideration, indeed when the complainant herself has resiled therefrom. For all the foregoing reasons, in my view, the confessional statements which have been relied upon by the prosecution are not free from doubt and I would, therefore, allow these appeals and acquit the appellants/accused. They shall be released forthwith if not wanted in any other crime. H.B.T./1-40/K Appeals allowed.