2001 P Cr (PLP)

FAZAL ILAHI KHAN, C.J.‑‑‑ Ali Akbar son of Mayar Caste Baloch has challenged through this appeal, the judgment and order of learned Additional Sessions Judge, Khuzdar, dated 13‑1‑1998, whereby he was convicted under section 302(b), Pakistan Penal Code, and sentenced to life imprisonment and a fine of Rs. one lac to be paid as compensation to the legal heirs of the deceased. He was further convicted and sentenced under section 392, Pakistan Penal Code to five years rigorous imprisonment and a fine of Rs.20,000 to be paid to the heirs of the deceased, in default of payment of fine he was to suffer three months simple imprisonment.

2. It may be briefly stated on 5‑7‑1993 Muhammad Sharif son of Zarak informed the Naib‑Tehsildar Nall District Khuzdar that he was told by a teen‑ager who was grazing his cattle that dead body of a person was lying in the area known as "Samand". Lai Muhammad. Naib‑Tehsildar recorded his statement and registered a case against the unknown assailant and proceeded to the spot alongwith Levy Personnel. The dead body was recovered and sent to the doctor for post‑mortem examination. From the search of the dead body a receipt, dated 4‑7‑1993, issued by an employee of Koshak Petrol Service Station wherefrom it transpired that the deceased was taxi driver and that he had been deprived of his car after he was done to death. During the investigation statement of Abdul Nabi son of Muhammad Umar was recorded, who stated that he was student of 10th Class and also employed a sale‑man at the Petrol Pump, that on 4‑7‑1993 at about 12‑00 midnight he had supplied petrol to Yellow Cab Taxi driver and issued a receipt for 25.7 litre petrol. He had told him that he had come from Karachi and was proceeding to Makran through Nall. He was dressed in white clothes. Two other persons were sitting with him on the rare seat. The driver inquired from him about the shortest root to Makran via Nall. They then went towards the hotel. Muhammad Yousaf son of Muhammad Qasim, also an employee of the Petrol Pump made similar statement but both of them showed their inability to identify the person when photo of the deceased was shown to them. Karim Bakhsh son of Mula Salahi after he had read a news item in "fang Karachi", that a dead body of a taxi driver had been recovered by the police in area of Tehsil Nall, District Khuzdar, he came to Nall and contacted the local police as one Shah Murad his nephew and a taxi driver were missing for about 18 days. He was shown the photo of the. deceased but he was unable to identify that the dead body was that of Shah Murad. However, he informed the police‑ about the model and chassis numbers of the taxi driven by Shah Murad. That the taxi was owned by Mumtaz Ali son of Muhammad Umar Sumro and requested that in case the taxi in question is recovered then either he or the owner of the taxi car shall be informed at the address supplied to the police.

3. The case remained pending under investigation till accused/appellant was arrested in some other case in June, 1996. During investigation of that case allegedly the accused disclosed that he alongwith Munir con of Sher Muhammad and Murad Bakhsh son of Qader Bakhsh had deprived the driver of his taxi car in question after he was murdered. The accused was, therefore, arrested in the present case and subsequently produced before Khuda Bakhsh Assistant Commissioner on 30‑6‑1996 for recording his confessional statement. On completion of the investigation complete challan was put in Court against the accused. The learned Additional Sessions Judge framed charge against the accused for an offence under section 302, Qisas and Diyat Ordinance read with section 17(3), Offence Against Property (Enforcement of Hudood) Ordinance, 1979 to which the accused did not plead guilty and claimed trial.

4. In support of its case the prosecution produced four witnesses in all. P.W.1 is Abdul Nabi, who in his statement under section 164, Cr.P.C. before Naib‑Tehsildar has stated that a Yellow Cab Car had arrived at their Petrol Pump on 4‑7‑1993 and that he had sold 25.7 litre petrol to its driver and had issued a receipt to him. He further stated that the driver had told him that he was proceeding to Makran, however, he was unable to identify the other two or three persons sitting with him in the taxi. Doctor Haroon Bakhsh (P.W.2) on 5‑7‑1993 medically examined the dead body and deposed that there was wound on the frontal region of the head and bleeding from the skull. That the weapon used in the offence was sharp and blunt. There was signs that the deceased had been tied with rope. The cause of death was stated to be brain injury and internal haemorrhage. Abdur Rashid (P.W.3) stated that during the days of occurrence he was posted as Naib‑Tehsildar Nall. That the case was previously investigated by Lal Muhammad, Naib Tehsildar who had registered the case against the unknown accused vide F.I.R. Exh.P.3/A. He further stated that the F.I.R. bears the signature of Lal Muhammad with which he was well‑versed. He further stated that the accused was arrested in some other case and during interrogation he admitted that he had committed the present murder alongwith two others. He was, therefore, also arrested on 25‑6‑1996 in the present case. The accused remained under arrest from 25‑6‑1996, where after he was produced before S.D.M. for recording his confessional statement. He then submitted incomplete challan against the accused. Khuda Bakhsh Sub‑Divisional Magistrate (P.W.4) stated that during the days of occurrence he was posted as Assistant Commissioner, Nall when Naib‑Tehsildar produced Ali Akbar accused before him for recording his confessional statement. According to him after completing all the formalities he recorded his confessional statement. The confessional statement was sealed and sent to the District Magistrate. The confessional statement is Exh.P.4/A, and the certificate in this respect is Exh.P.4/B. The accused was examined under section 342, Criminal Procedure Code in which he denied having made any confessional statement before the Sub‑Divisional Magistrate and pleaded innocence. The accused neither made any statement on oath in rebuttal of the prosecution case, nor volunteered to produce defence evidence.

5. The learned trial Judge relying on the confessional statement of the accused corroborated by circumstantial evidence found him guilty of the offence convicted and sentenced him to the term of imprisonment and fine stated above.

6. It was contended by learned counsel for the appellant that the learned Judge has based the conviction of the accused on the retracted confessional statement of the accused which was recorded after 15/16 days of his arrest during which he remained in police custody. It was further contended that before such statement the learned Magistrate did not assure the accused that on his refusal to make confessional statement he would not be handed over to the police and would be sent to judicial lock‑up as such he remained under duress and threat of the police at the time of recording such statement. It was further contended that even otherwise in the confessional statement having been retracted strong independent corroboration was required in order to earn conviction of the accused. The prosecution in pursuance of such confessional statement did not bother to trace and recover the taxi car although in the alleged confessional statement the accused had disclosed the name and address of the person to whom the stolen/snatched vehicle was sold. The confessional statement of the accused reads as under:‑‑ It is unfortunate that the prosecution agencies after extracting confessional statement of the accused person take it for granted that they have won the war against crime and that there is no need to find out the voluntariness and truthfulness of such confession through other circumstantial evidence with special reform to the fact stated in such statement. The agencies do not proceed scientifically and do not apply their mind to its contents. Basing reliance only on confessional statement, as stated above, has hampered and eroded the efficiency of the Investigation Agencies. In large number of cases, when confessional statement is retracted in absence of any corroborative evidence in line with the contents of the statement results in failure of prosecution case.

7. It may be pointed out that the confessional statement to a great extent not only is exculpatory but is contradictory to the prosecution evidence and is also not supported by the medical evidence. According to the medical evidence the deceased had a wound below the chin and also on the frontal region of head and that there was bleeding from the skull. No internal examination was made by the doctor, but the doctor was definite that the weapon used was sharp and blunt and the cause of death was brain injury and internal haemorrhage, while to the confessional statement the injury is attributed to Munir Ahmad his having fired at the deceased which resulted in death of the deceased. No efforts were made to cover the vehicle though the name and address of the person to whom it has sold was mentioned in the confessional statement. Similarly the objection raised to voluntary nature of the confessional statement are weighty and substantial in nature. The confession should be accepted as a whole or rejected as a whole is generally accepting a safe and time tested principle in administering criminal justice. Similarly retracting confession needs to be corroborated by reliable prosecution evidence for basing conviction thereon. However, in the light of the above the voluntariness of the retracted confessional statement is highly doubtful. The arrest of the accused is shrouded in mystery, investigation is flimsy and unreliable.

8. For the reasons stated above, we accept the appeal, set aside the judgment and order of the learned trial Judge and acquit the accused of the charge. He shall be released forthwith if not required in any other case. H.B.T./40/FSC Appeal accepted.