2012 PLP 1358 (MLD)

??????????? NAEEM AKHTAR AFGHAN, J.

This judgment shall dispose of Criminal Appeal? No. 204 of 2011 filed by the appellants/convicts Patoo and Moula Baldish both sons of Sabza against the judgment impugned dated 20th August, 2011 passed by learned Additional Sessions Judge, Lasbela at Hub, whereby both the appellants have been convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life as Tazir with compensation of Rs.50,000 (Rupees Fifty Thousand Only) each to be paid to the legal heirs of deceased Din Muhammad and in default thereof, to further undergo S.I. for six months each with benefit of section 382-B, Cr.P.C. 2.???????? Brief facts of the prosecution case are that vide F.I.R. No 54/86 dated 14th June, 1986 report was lodged with Thana Hub by Muhammad Alam (P.W.9) under section 302/34, P.P.C. against the appellants/ convicts stating therein that he is originally resident of Bela and works as Operator in Feroz Textile Mill, Hub. His duty was from 11-00 p.m. to 7-00 a.m. On the day of occurrence, after performing his duty when he came out of the gate of the company, Mitha Khan (P.W.5) an employee of the said factory, at about 7-30 a.m, told him that the person armed with axe fleeing away in a truck parked nearby has injured a person who is lying in injured condition near the gate of Gatron Factory. The complainant and Mitha Khan rushed towards the gate of Gatron Factory and at that time the injured was taking his last breath. On inquiry by? the complainant and Mitha Khan, the injured told that Moula Bakhsh and his brother Patoo have caused injuries to him with axe and knife. After telling this, the injured succumbed to the injuries. Leaving Mitha Khan with dead body, the complainant went to Thana for report. In pursuance of the above F.I.R., the investigation was started. Dead body was shifted to hospital, inquest report was prepared. Site map was prepared, blood stained clothes of deceased were taken into possession and the statements of the witnesses were recorded. As per challan the appellants/convicts surrendered their custody to the police on the same day. The appellant/convict Patoo produced blood stained hatched saying that he had snatched it from the deceased and caused him injuries with the same. The appellant/convict Moula Bakhsh made disclosure and got recovered a knife from under the seat of the truck. ??????????? During investigation the confessional statements of appellants/convicts were recorded on 26th June, 1986 before Tehsildar Bela (Wahid Bakhsh). Subsequently challan was submitted against the appellants/convicts. ??????????? At that time Criminal Law Special Provisions (Ordinance-II) of 1968 was prevailing and the trial of the appellants/convicts commenced before the tribunal. ??????????? Subsequently, in pursuance of the judgment passed by the High Court the case of the appellants/convicts was transferred to learned Additional Sessions Judge, Lasbella at Hub on 24th September, 2009 for trial under the regular Law. ??????????? At the trial before the learned Additional Sessions Judge, Lasbella at Hub charge under section 302(a), P.P.C. was denied by the appellants/convicts on 5th April, 2003. The prosecution produced P.W.1 Dr. Muhammad Yousuf, P.W.2 Dr. Ghous Bakhsh Barozai, P.W.3 Zeenat Bibi, P.W.4 Naz Bibi, P.W.5 Mitha Khan, P.W.6 Ghulam Hussain, P.W.7 Abdul Latif, P.W.8 Wahid Bakhsh, Tehsildar, P.W.9 complainant/Muhammad Alam, P.W.10 Muhammad Ramzan, first I.O. and P.W.11 Muhammad Ishaq, second I.O. The appellants/convicts were examined under section 342, Cr.P.C. The appellants/convicts got recorded their statements on oath under section 340(2), Cr.P.C, however, no witness was produced in defence. After concluding evidence and hearing arguments, vide judgment impugned dated 13th March, 2006 both the appellants/convicts were acquitted? of the charge by extending benefit of doubt. 3.???????? Feeling aggrieved of the acquittal of the appellants/convicts, the State through Advocate General filed Criminal Acquittal Appeal No.142 of 2006 before this court. After hearing arguments, vide order dated 31st December, 2010, after setting aside the judgment dated 13th March, 2006 passed by learned Additional Sessions Judge Lasbela at Hub, the case was remanded to the trial court with directions to rehear the parties and to decide the case afresh on the ground that the evidence of the prosecution has not been appreciated by the trial court in its true prospective. ??????????? After remand by this court, the learned Additional Sessions Judge, Lasbela at Hub heard the arguments and thereafter vide judgment impugned dated 20th August, 2011 convicted both the appellants under section 302(b), PPC and sentenced them to suffer imprisonment for life as Tazir with compensation of Rs.50,000 (Rupees Fifty Thousand Only) each to be paid to the legal heirs of deceased Din Muhammad and in default thereof to further undergo six months. S.I. each, with benefit of section 382-B, Cr.P.C. ??????????? The appellants/convicts, feeling aggrieved of the conviction awarded vide judgment impugned, have preferred the instant appeal. 4.???????? Learned counsel for the appellants/convicts Mr. Farooq Rasheed, Advocate argued that the appellants/convicts have faced agony of protracted long trial since 1986 but the prosecution has miserably failed to prove the charge against the appellants beyond reasonable doubt. Learned counsel further argued that the prosecution evidence is full of infirmities, the alleged dying declaration is not proved and the judgment impugned is a result of misreading and mis-appreciation of evidence available? on record. Learned counsel further argued that the ocular testimony is not confidence inspiring, the recovery of axe and knife is doubtful and the retracted confessional statements cannot be made the basis of conviction in view of unexplained delay and due to lack of corroboration. ??????????? On the other hand, Mr. Attique Ahmed Khan, Deputy Prosecutor General argued that the prosecution has successfully proved the charge against the appellants/convicts beyond any shadow of doubt, through dying declaration, ocular testimony duly supported by recovery of crime weapons, medical evidence as well as the confessional statements of the appellants/convicts. 5.???????? After hearing arguments of learned counsel for the parties we have carefully gone through the record of the case. In the instant case the prosecution relies on the dying declaration, ocular testimony, medical evidence, recovery of crime weapons, and the confessional statements. ??????????? According to the settled principle of law, though dying declaration is admissible in evidence but by itself is not sufficient to sustain conviction. It must be free from every sort of taint and be independently corroborated for safe reliance to record conviction. In order to find out the truth or falsity of a dying declaration a case is to be generally considered in all its physical environment and circumstances. A dying declaration is only a corroborative piece of evidence which supports the ocular testimony and it is a weak type of evidence. ??????????? In view of the above principle, let us appreciate the ocular testimony available on record. P.W.9/complainant Muhammad Alam while recording his statement at the trial has contradicted the contents of the F.I.R. According to the F.I.R., when he came out from the gate of the factory, Mitha Khan (P.W.5) told him about a person fleeing away in a truck with an axe after causing injury to a person who was lying on the gate of Gatron Factory and he along with Mitha Khan rushed towards the gate of Gatron Factory. But while recording his statement in the court, P.W.9 Muhammad Alam stated that after performing his duty when he came out, he saw a gathering? in front of Gatron Factory and Mitha Khan told him that the assailants who assaulted a person are going having an axe with them, meanwhile they boarded in a parked truck. In the F.I.R., P.W.9 Muhammad Alam never stated that the injured introduced himself as Din Muhammad but while improving his statement before the court P.W.9 Muhammad Alam stated that the injured introduced himself as Din Muhammad. P.W.5 Mitha Khan has also contradicted P.W.9 Muhammad Alam. According to P.W.5 he left the mill at 7-15 a.m. and found two persons running at RCD road. The person who was following the other, assaulted him with an axe who fell down on the ground in front of Gatron Factory and after committing the crime the assailant ran away in a truck. According to Mitha Khan (P.W.5) Muhammad Alam (P.W.9) was also with him, but according to Muhammad Alam (P.W.9) he was told about the occurrence by Mitha Khan (P.W.5). No identification parade of the appellants/convicts was got conducted to identify the assailant who was following the deceased and assaulted him with axe. Further according to Mitha Khan (P.W.5) he? could not identify the culprit who ran away from the spot. Mitha Khan (P.W.5) has also not identified any of the appellant/convict as the assailant following and causing injury to the deceased. These contradictions and infirmities have badly shaken the veracity of both the witnesses. ??????????? P.W.7 Abdul Latif stated that he was working in Gatron Factory and when he came out of the factory, he found Din Muhammad in injured condition who told him that Moula Bakhsh and Patoo have assaulted him and requested for not leaving him alone. This version of P.W.7 is not corroborated by P.W.5 and P.W.9. P.W.7 Abdul, Latif has not mentioned about the presence of P.W.5 and P.W.9 with the injured. Similarly Mitha Khan (P.W.5) and Muhammad Alam (P.W.9) have also not mentioned about presence of Abdul Latif (P.W.7) with the deceased. The inconsistency in the statements of the above three witnesses has rendered their testimony unworthy of reliance? and presence of all the above three witnesses with the deceased prior to his death is highly doubtful. In these circumstances, the alleged dying declaration, which is otherwise? a very weak type of evidence, cannot be held free from any sort of taint and cannot be safely relied upon to record conviction as the same is also lacking independent corroboration. ??????????? The statement of P.W.1? Dr. Muhammad Yousuf Panezai with regard to recovery of knife from the truck on the pointation of appellant Moula Bakhsh is also of no avail to the prosecution as there is no disclosure memo of appellant/convict Moula Bakhsh in this regard and further there is nothing on record to prove that the allegedly recovered knife was stained with human blood. The statement of P.W.5 with regard to allegation of assault by a person upon the deceased with an axe further renders the recovery of knife doubtful. ??????????? According to P.W.1 when he reached thana one blood stained axe and blood stained clothes were already lying in the thana which were taken into possession in his presence. In view of the statement of P.W.1 the recovery of axe has not been established from the possession of appellant/convict Patoo. If the prosecution version is believed that appellant/convict Patoo at the time of his surrender produced blood stained axe and stated that he snatched the same from deceased and caused him injury with the same, then disclosure of appellant/convict patoo should have been recorded and his confessional statement should have been recorded on the same day. Neither there is any disclosure memo of the appellant/convict Patoo nor his confessional statement was recorded on 14th June 1986. There is no report of chemical analysis to prove that the axe was stained with human blood. ??????????? Though the statement of Dr. Ghous Bakhsh Barozai (P.W.2) establishes the unnatural death of the deceased but same is not in conformity with the ocular testimony. The statements of Zaib Bibi (P.W.3) and Naz Bibi (P.W.4) are also vague with regard to the motive of the occurrence and same are not confidence inspiring and motive does not stand established through their testimony. ??????????? According to prosecution, the confessional statements of the appellant/convicts were recorded on 26th June, 1986 by Tehsildar Bela on the directions of Assistant Commissioner, Hub. The prosecution has failed to give any explanation for shifting the custody of the appellants/convicts, hundred miles away, from Hub? to Bela only for recording their confessional statements. Whereas the Assistant Commissioner Hub was competent to record the same and apart from Assistant Commissioner, the Tehsildar was also available at Hub and he was also competent to record the confessional statements. Perusal of the confessional statements recorded under section 164, Cr.P.C. reveal that the following questions were asked from the appellants/convicts prior to recording their confessional statements:-- The memorandum at the foot of the confessional statement reads as follows:-- 7.???????? It is to be appreciated that there is a specific procedure to be followed while recording the confession under section 164, Cr.P.C. As soon as the accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the court room. Thereafter the accused should be informed that he is before a Magistrate and whether he makes any statement or not, he would not be given back to the police, which had produced him before the court but would be remanded to judicial lock up. He should then be given sufficient time to ponder over the matter. Thereafter he should be warned that he is not bound to make any statement but if he did so it could be used as evidence against him. The following questions should be put to him:-- (i)???????? For how long have you been with police? (ii)??????? Has any pressure been brought to bear upon you to make confession? (iii)?????? Have you been threatened to make confession'? (iv)?????? Has any inducement been given to you? (v)??????? Why are you making this confession? (vi)?????? Have you been maltreated by police? After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim. ??????????? According to section 164(3), Cr.P.C. the memorandum should be made at the foot of the confessional statement to the following? effect:-- ??????????? "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him". 8.???????? In the instant case learned Magistrate i.e. P.W.8 has not observed the above procedure. P.W.8 did not inform the appellants/convicts that they are before a Magistrate and never informed the appellants/convicts that whether they make any statement or not,? they? would? not? be? given? back? to? the? police? which? had? produced? them before the court and they would be remanded to judicial lock-up. No? question? was put to the? appellants/convicts as? to? for? how? long? they had been with the police, had they been threatened to make confession, why they are making the confession and had they been maltreated by the police. Even the memorandum at the foot of the confessional statements is not according to the mandatory requirement of section 164(3), Cr.P.C. ??????????? It is to be appreciated that a greater duty is casted upon the Magistrate recording confession to be satisfied that such confession is voluntarily made and to that end he must conscientiously devote his inquiry before recording the confession. 9.???????? It is regretted to observe that no serious attempt appears to have been made by P.W.8 to find out if the confession was made voluntarily by the appellants/convicts. The confessional statements recorded by P.W.8 are highly defective and in violation of mandatory provisions of section 164, Cr.P.C. as well as section 364, Cr.P.C. The illegalities and irregularities committed by P.W.8 in recording the confessional statements of the appellants/convicts are not curable and same render the confessional statements inadmissible. 10.?????? The unexplained delay in recording confessional statements of the appellants/convicts on 14th day of their surrender/arrest does not render the same to be used as substantive piece of evidence and same loses its evidentiary value. It is settled principle of law that longer the police custody of accused, the lesser is the evidentiary value of the confession. The delayed retracted confessional statement of the appellants/convicts is lacking corroboration in material aspects and is not supported by reliable evidence or strong corroborative circumstance. In absence thereof the intrinsic worth of the confessional statements remains suspicious and for such reasons the delayed retracted confessional statements of the appellants/convicts cannot form the basis of conviction. 11.?????? All the above infirmities, contradictions, illegalities and irregularities lead us to the conclusion that the prosecution has miserably failed to bring home the charge against the appellants/convicts beyond any shadow of doubt. There exists sufficient doubt in the case of prosecution. According to settled principle of law benefit of slightest doubt has to be extended in favour of an accused. For the above reasons, the appeal is accepted. The judgment impugned dated 20th August, 2011 passed by learned Additional? Sessions Judge, Lasbela at Hub is set aside and the appellants/convicts Patoo and Moula Bakhsh both, sons of Sabza are acquitted of the charge under section 302(b), P.P.C. in F.I.R. No.54 of 1986 Police Station Hub. The appellants/convicts are ordered to be released forthwith, if not required in any other case. H.B.T./50/Q???????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.