1988 P Cr (PLP)

4. The learned trial Court on consideration of material on record believed the statement of Muhammad Latif (approver) coupled with the retracted judicial confessions Exs.PF and PG of Munir and Shabbir appellants and convicted them under section 302/34, PPC and sentenced them as indicated above, hence this appeal.

5. As indicated above the prosecution adduced following evidence at the trial in support of its case:- (i) extra-judicial confession made by the appellants before Muhammad Rafiq and Sultan P.Ws; (ii) statement of Muhammad Latif (approver) who appeared as PW.2 and (iii) judicial confession Exs.PF and PG of the appellants recorded by Syed Faqir Anwar-ud-Din, Assistant Commissioner (PW3). on 1-2-1981. It is important to note that in this case dead body of the deceased and the weapon of offence have not been recovered. The occurrence took place about 11 years before the arrest of the appellants. The prosecution's main stay is testimony of approver and the retracted judicial confessions of the appellants. According to the prosecution, the appellants were arrested on 31-1-1982 and were produced before Syed Faqir-Anwar-ud-Din (PW3) for recording their confessional statements on 1-2-1982. What is to be seen is that whether the confessional statements Exs.PF and PG had been made, voluntarily by the appellants; and that whether they were recorded in accordance with law?

6. Section 164 Cr.P.C. and Chapter 13 of Volume-III of High Court Rules and Orders lay down procedure for recording statement of a confessing accused which also provides checks and balances to eliminate the recording of involuntary confession. These provisions have been considered at length by a Division Bench of this Court in the case of Mst. Said Begum v The State P L D 1958 (W.P.) Lah. 559 and made following instructive observation:

"We think that the Magistrate will be advised to adopt the following procedure in this connection. As soon as a person is produced before a Magistrate for getting his confession recorded, his handcuffs should be removed and all the police officers shall be turned out of the court-room, and he should be informed that he was before a Magistrate and that whether he made any statement or not, he shall not be handed back to the police, but will be sent to the judicial lock-up. He should then be given sufficient time to ponder over the matter. Then he should be warned that he was not bound to make any statement and if he did so, it may be used as evidence against him and then the following questions should be put to him:- (1) For how long have you been with the police? (2) Has any pressure been brought to bear upon you to make a confession? (3) Have you been threatened to make a confession? (4) Has any inducement been given to you? (5) Have you been told that you will be made an approver? (6) Why are you making this confession? Then if the Magistrate is satisfied that the prisoner is making the confession voluntarily, he should put the set questions as given in the printed form and then record the confession".

7. In the instant case the appellants were brought to the Court on 1-2-1982 direct from the police custody for getting recorded their confessional statements and then after recording their statements they were handed over to the police. Syed Faqir Anwar-ud-Din, Megistrate First Class (PW3) while appearing in Court admitted that he did not specifically question any one of the appellants as to for how long they had been in police custody and that whether they had been tortured or induced to make confessional statement or not. He further admitted that he did not question them as to why they were making the confessional statement? He made no secret of the fact that he did not assure the appellants that they would not be handed over to the police no matter whether they make confessional statement or not? This would show that not only the confessional statements recorded by the Magistrate do not appear to be voluntary, rather they were not recorded in accordance with law. For these reasons I would hold that these confessional statements are inadmissible in evidence and are therefore, ruled out of consideration.

8. Next comes the statement of Latif (PW2) the approver. He supported the prosecution case at the trial but his interest in deposing against the appellants is quite obvious, i.e., that he was assured to be not prosecuted but in case he resiled he would face the trial. A bare reading of his statement appears to be nothing but a fiction. According to him it happened 12 years ago when the appellants and the approver were kids of 11/12 years ago. I would not believe that Muhammad Munir (deceased) a young man of 17 years of age had an affair with Mst. Safia (sister of Munir appellant) who admittedly was 8/10 years old during the days of occurrence and that the tender aged appellants in order to do away with him drew up such a well thought-over and scientific plan and then executed it by decoying the deceased to the bank of canal at night time and then kept it secret for twelve long years. The approver (PW2) on his own showing was employed as a school teacher and served at many places for 5/6 years before his arrest. Assuming that he kept mum because of the threat of appellants during his childhood but why he remained silent for six years after he became adult and started service as a teacher in school. The statement of approver to my mind suffers from inherent improbabilities and does not satisfy judicial mind to convict the appellants on a capital charge on the basis of above story told by him.

9. Dead body of the missing boy has also not been found. It is in evidence that the police had attempted to collect some human bones from a grave yard obviously on an attempt to show that they were bones of the missing boy but the people of the Ilaqa protested against conduct of police in digging out bones of their fore-father who had been buried there. Likewise. the evidence of extra-judicial confession sought to be proved through Muhammad Rafiq (PW7) and Muhammad Suleman (PW8) being weak type of evidence cannot be safely relied upon when the judicial confession and the approver's statement have already been rejected by me.

10. The result is that the evidence on record falls far short of bringing home the murder charge to the appellants and consequently I would set aside their conviction and sentence recorded by the trial Court and acquit them. They be released forthwith if not wanted in any other case. Criminal Revision No. 73/84 of 1984/BWP praying for enhancement of sentence fails automatically. S.A./M-380/L Order accordingly.