2002 PLP 1229 (SCMR)

TANVIR AHMED KHAN, J.‑‑‑This appeal with leave of the Court is directed against the judgment dated 17‑11‑1997 of a learned Division Bench of the High Court of Balochistan, Quetta, whereby Criminal Appeal No.277 of 1997 filed by the appellant was dismissed and the conviction and sentence recorded against him by the learned Sessions Judge, Dera Murad Jamali, through his judgment dated 18‑9‑1997 were maintained. The facts, in brief, necessary for the disposal of this appeal are that F.I.R. No.21 of 1996 was got registered at Police Station Dera Murad Jamali on 29‑2‑1996 at the instance of one Qurban Ali alias Qaidi alleging that he had nurgated to Ali Abad 15/16 years prior to the present incident and thereafter shifted to Ward No.8, Dera Murad Jamali, 4/5 years ago. His brother Muhammad Afzal was also residing with him. It was further case of the complainant that they had enmity with Hajan (the appellant), Amir Bukhsh and Dhola as their brother Ali Mardan was earlier murdered. They involved the complainant side in the said murder. In that connection his deceased brother Muhammad Afzal remained in Jail for about 2 and a half years. It was also stated in the F.I.R.. that they went to bed after taking their meals. The complainant was informed by his sister‑in‑law, Mst. Sumbal, that her husband Muhammad Afzal had been done to death by some unknown persons. The complainant suspected that his brother had been murdered by the appellant, Amir Bukhsh and Dhola. The appellant was apprehended on 16‑3‑1996 and, according to‑the prosecution, a carbine pistol was recovered on 28‑3‑1996 at his pointation from the bushes in Ward No.8, Dera Murad Jamali. Recovery of a .12 bore empty cartridge was also effected from the place of incident. The Investigating Agency also got recorded his confessional statement on 28‑6‑1996. After usual investigation the challan against the appellant was submitted in the Court while rest of the accused were absconded The prosecution, in order to establish its case, produced eight witnesses. When the appellant was examined under section 342, Cr.P.C. he deposed that he had been roped in this offence due to enmity and also denied recording of his confessional statement before the Tehsildar/Magistrate 2nd Class, Dera Murad Jamali.. The learned Sessions Judge, Dera Murad Jamali at Nasirabad, through his judgment dated 18‑9‑1997 convicted the appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life. The appellant was further ordered to pay Rs.2.00.000 as ' Diyat' to the legal heirs of the deceased Muhammad Afzal. Benefit of section 382‑B, Cr.P.C. was also extended to him. The appellant preferred Criminal Appeal No.277 of 1997 against his conviction and sentence recorded by the learned Sessions Judge, Dera Murad Jamali, before the High Court of Balochistan at Quetta, which has been dismissed by a learned Division Bench of said Court through the judgment impugned. Hence this appeal with leave of the Court. Leave to appeal was granted in this case on 4‑5‑1998 to consider the question "whether the retracted confession finds supports from any independent and reliable circumstantial evidence to provide sound justification for holding the petitioner guilty of the capital offence needs further examination". We have considered the contentions advanced by the learned counsel for the parties and have perused the material placed on record with their assistance. The case of the prosecution rests solely on the circumstantial evidence coupled with confessional statement of the appellant and recovery of incriminating weapon from him. As far as recovery of crime weapon is concerned, that would not be of much help to the prosecution as report of the Forensic Science Expert is in the negative. The confessional statement on which reliance has been placed by the prosecution was recorded after 13 days of the arrest of the appellant i.e. on the last day of his remand. It is to be appreciated that neither the complainant nor his sister‑in‑law Mst. Sumbal, whose name was mentioned in the F. I. R., appeared at the trial to support the case of the prosecution. The complainant, as reflected from the F.I.R., had only suspected the present appellant but he never appeared in the witness‑box to substantiate his stance. Even otherwise, the alleged confessional statement is not in line with the medical evidence as, according to the same, a pistol shot was fired by the appellant by placing it on the forehead of the deceased while no blackening was found thereon. Resultantly, taking stock of all the aforesaid circumstances of the case, we are of the view that the alleged retracted confessional statement made by the appellant is not supported by any independent and reliable piece of evidence. This appeal is, accordingly, accepted and conviction and sentence of the appellant is set aside. He shall be released forthwith if not required in any other case. N.H.Q./H‑53/S Appeal accepted.