2022 PLP 68 (YLRN)

ABDUL HAMEED BALOCH, J.

Through this judgment we intend to dispose of Criminal Appeal No. 45 of 2020, filed by the appellant against the judgment dated 04th February, 2020 (impugned judgment) passed by learned Special Judge under Juvenile Justice System Ordinance/Additional Sessions Judge, Duki (trial court), whereby the appellant was convicted under Section 308 Pakistan Penal Code (P.P.C.) and sentenced to suffer fourteen (14) years simple imprisonment and to pay Diyal amount to the legal heirs of deceased Imran son of Dur Muhammad. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. The prosecution case as gleaned from the Fard-e-Biyan dated 27th June, 2018 (Ex: P/I-A) submitted by PW-1 Muhammad Sultan that on the said date at 9:40 p.m., when the brother of the complainant namely Muhammad Imran along with Nisar and Shah Muhammad reached Khala Shehar in Surf vehicle, a motorcycle, of which three persons were boarded, crossed them and stopped in front of the vehicle. It was further alleged that according to Nisar and Shah Muhammad they can recognize two of them if brought before them having Kalashnikovs in their hands, while Jalal-ud-Din opened the back door of the vehicle and made three fires on Muhammad Imran. Thereafter, all the three accused flew away. It was alleged that due to firing Muhammad Imran died at the spot. With these averments FIR No. 6 of 2018 under sections 302, 34, P.P.C. was registered with Levies Thana Saddar Duki.

3. After registration of FIR the investigation of the case was entrusted to PW-11 Allah Nawaz Naib Tehsildar Duki, who visited the site prepared sketch map vide Ex: P/11-B, recorded statements of eye-witnesses, prepared sketch map of recovery of vehicle vide Ex: P/11-C, secured empties and blood stained carpet. On 5th July 2018 the Investigating Officer on the disclosure of accused got recovered crime weapon i.e. pistol from the room of the house, for which separate case under section 13(e) Arms Ordinance, 1965 was registered. On the application of the brother of deceased Ex: P/11-D he handed over dead body to the legal heirs. The Investigating Officer prepared inquest report vide Ex: P/11-E. He sent the blood stained clothes of deceased to FSL for analysis. He also took on record school certificate of accused. On 6th July 2018 the investigation of the case was transferred to Crimes Branch and investigation of the case was handed over to PW-12 Abid Khan Jadoon IP, who got medically examined the accused and on 11th July 2018 produced the accused Jalal-ud-Din before Judicial Magistrate for recording confessional statement of accused under section 164, Cr.P.C. After completion of investigation he submitted incomplete challan vide Ex: P/12- A and on receipt of FSL report Ex: P/12-B submitted challan Ex: P/12-C.

4. After submission of challan and fulfilling codal formalities charge was framed on 05th December, 2018 and read over to the appellant to which he denied, whereafter, the prosecution in order to substantiate its charge produced following twelve (12) witnesses: PW-1 Muhammad Sultan complainant of the case, he produced Fard-e-Biyan as Ex: P/1-A; PW-2 Nisar Ahmed eye-witness; PW-3 Muhammad Sadiq Levies Constable, produced recovery memo of certificates as Ex: P/3-A, recovery memo of pistol Ex: P/3-B; PW-4 Muhammad Shafiq Levies Constable produced recovery memo of blood stained clothes as Ex: P/4-A; PW-5 Muhammad Nawaz Levies Constable produced recovery memo of vehicle vide Ex: P/5-A; PW-6 Shah Muhammad eye-witness. He was declared hostile as he has not supported the prosecution case. PW-7 Dur Muhammad Constable, produced recovery memos of three empties and blood stained carpet as Ex: P/7- A and Ex: P/7-B; PW-8 Dr. Khaliq Dad Chief Medical Officer, produced death certificate of deceased Imran as Ex: P/8-A; PW-9 Shakil Ahmed Lashari Judicial Magistrate, produced letter, sealed envelope, statement of accused under section 164, Cr.P.C. and his certificate appended thereon as Ex: P/9- A to Ex: P/9-C. PW-10 Muhammad Irfan SI produced disclosure of accused as Ex: P/10-A; PW-11 Allah Nawaz Naib Tehsildar first Investigating Officer produced FIR as Ex: P/11-A, site map Ex: P/11-B, recovery memo of vehicle Ex: P/11-C, application Ex: P/11-D, inquest report Ex: P/11-E; PW-12 Abid Khan Jadoon IP produced incomplete challan as Ex: P/12-A, FSL report as Ex: P/12-B and challan Ex: P/12-C.

5. On completion of prosecution evidence the appellant was examined under Section 342, Cr.P.C., in which he denied the allegation of prosecution. The accused/ appellant neither recorded his statement on oath as envisaged under section 340(2), Cr.P.C., nor produced any witness in defence. 6 On conclusion the trial court convicted the appellant in the manner as mentioned in para-1 above vide impugned judgment, hence the appellant is before this court.

7. Learned counsel for the appellant argued that the prosecution miserably failed to prove its case against the appellant beyond reasonable doubt. The statements of the prosecution witnesses are contradictory to each other on material point. Nothing has been recovered from the possession of the appellant. The alleged confessional statement is neither true/ voluntarily nor recorded in accordance with law. The alleged eye-witnesses do not support the prosecution contention. The recovery witness has been declared hostile. Further, the recovery of empties is also doubtful. The statements of prosecution witnesses are not consistent.

8. Conversely the learned Deputy Prosecutor General supported the impugned judgment by stating that the prosecution has proved its case by ocular account, recovery of alleged crime weapon on the pointation of appellant. Further, the appellant voluntarily recorded his statement under section 164, Cr.P.C. Even otherwise 164, Cr.P.C. statement is alone enough for recording conviction. The report of crime weapon and FSL. coupled with confessional statement fully proved the involvement of the appellant in the commission of the offence. The trial court has rightly convicted and sentenced the appellant as such calls for no interference.

9. Heard the learned counsel for the appellant, learned D.P.G. and perused the record with their assistance. It transpires from the record that FIR. Ex: P/11-A was registered on the written application of complainant Muhammad Sultan, wherein he alleged that on 27th June, 2018 the appellant along with co-accused made firing upon his brother Muhammad Imran and at the time of occurrence Nisar Ahmed and Shah Muhammad were accompanied Muhammad Imran. The prosecution case revolve on the statement of PW-2 Nisar Ahmed eye-witness, recovery of alleged crime weapon, judicial confession under section 164, Cr.P.C. positive report of crime weapon, blood stained clothes and blood stained piece of carpet. The case of prosecution is of two versions, one put forth by the eye-witnesses and complainant, while the second is the confessional statement of the appellant. P.W.2 Nisar Ahmed stated that three persons on motorcycle came in front of the vehicle. The appellant opened back door of the surf vehicle and fired upon the deceased. PW-5 Muhammad Nawaz Levies Constable stated that on site inspection they found that one bullet hit on wind screen of the vehicle, while the side window of mirror was also found broken. If the statements of both the witnesses are taken in juxta position the statements of both the witnesses belied each other. As per PW-2 the deceased was sitting on back seat. The appellant opened back door and fired, how the shot hit the wind screen and side mirror. The conviction can be awarded solely on the statement of a witness, but condition is that he must tell truth and only truth. The trial court has disbelieved the ocular account on ground that PW-2 is relative and residing at one home, but not made any effort to rescue the deceased. Even the appellant did not cause any harm to the witnesses. Where the witnesses did not tell the truth the credibility of such witnesses become doubtful. For disbelieving the statement of a witness it is not necessary that there should be numerous infirmities. If there is one which would impeach the credibility of such witness, that would make his entire statement doubtful.

10. The perusal of evidence furnished by PW-1 Muhammad Sultan, PW-2 Nisar Ahmed and PW-6 Shah Muhammad (who was declared hostile as he has not supported the prosecution case) reveal that there are material contradictions, discrepancies in their statements. PW-2 stated that when firing was made upon deceased he and Shah Muhammad (PW-6) were accompanying him. On information the brother of the deceased came there, took the dead body to hospital, while PW-11 Investigating Officer stated that when they reached at the place of occurrence no one was present there. PW-8 Dr. Khaliq Dad deposed that the deceased was brought by Tehsildar, while PW-7 stated that on 5th July 2018 he secured three empties of 9 mm pisto1 and piece of tat through separate memos. Fard-e-Biyan Ex: P/1-A was submitted by the complainant on 27th June, 2018, meaning thereby that memo of casing was prepared after seven (07) days, how it is not possible that the vehicle was kept in isolated place. The statement of PW-2 has already been discussed in Para supra. All the above contradictions, discrepancies and omissions cast serious doubt, in this regard reliance is placed on the judgment of Minhaj Khan v. The State 2019 SCMR 326 and judgment of this court titled as Abdul Samad v. The State 2018 YLR 2053.

11. Now adverting to retracted confessional statement of appellant. It appears that the retracted confession belies the statements of other prosecution witnesses. The trial court has disbelieved the statement of ocular account. PW-1l Allah Nawaz Naib Tehsildar the Investigating Officer stated that the appellant was arrested on 27th June, 2018 immediately after the occurrence, whereas the retracted confession was recorded on 11th July, 2018, meaning thereby that the Investigating Officer produced the accused/ appellant for recording statement on last day of remand but such delay was not explained. It is settled law that delay would normally be fatal to acceptance of judicial confession. It was laid down by Honorable Supreme Court in case Naqibullah v. The State PLD 1978 SC 21 that:-- "

15. Wasal Khan accused was arrested on the 21st of July 1974 and he remained in the police custody until the 25th of July 1974 when his confession was recorded by the Magistrate. Before the Magistrate Naqibullah accused stated that he was under arrest since the 21st of July 1974 for seven days when he was produced before the Magistrate on 27-7-1974 and his confession was recorded. P. W. 2 Mahboob Ali Khan deposed that he was the S. D. P. O., Swabi at the time and he arrested Naqibullah accused on 22.7-1974 and partly investigated the case. But according to the judicial confession of Naqibullah recorded on 27-7-1974 he was arrested since 21-7-1974 and had remained In Police custody for seven days. On this record the prosecution has failed to furnish any explanation for this discrepancy. It seems probable that he was in fact detained for interrogation by the Police a day before be was formally arrested on 22-7-1974. This circumstance, therefore, raises a suspicion that the Police did not quite act fairly, in the investigation of this case against him. The prosecution has also failed to give any explanation for the considerable delay in the production of the two accused before the Magistrate for the purposes of recording their confessions. It is rather unfortunate that even the learned Magistrate did not satisfy himself about the causes of this delay before proceeding to record the two confessional statements in question." 12 The ocular evidence has already been discussed and was disbelieved. The only remaining piece of evidence is retracted confessional statement of appellant. In the absence of any independent corroboration such retracted judicial confession could not suffice all by itself for recording or upholding the accused persons' convictions. Reliance is placed on the case of Muhammad Ismail v. The State 2017 SCMR

898. Reliance is also placed on Wali Muhammad alias Nandhoo v. The State 1986 PCr.LJ 1153.

13. It appears from the retracted judicial confession of appellant that the deceased telephoned him, whereafter they proceeded in surf vehicle. The Investigating Officer failed to collect Call Data Report (CDR) of deceased and appellant from the concerned Cellular Company. No investigation was made to trace out which number registered on the name of deceased and accused. Even the report was not exhausted. Even otherwise neither the mobile phone was recovered from the appellant, nor mobile phone of deceased was taken into possession through memos. In absence of any incriminating evidence it cannot be held that the deceased had made any phone call to the accused.

14. So far as the recovery of crime weapon is concerned. The prosecution case is that on appellant's disclosure the crime weapon was recovered, but the recovery witness PW-7 Dur Muhammad Levies Constable stated that they went to the house of accused on 5th July 2018 and on next day Tehsildar called him and got signed the memo, meaning thereby that the recovery was not effected in presence of recovery witness. Even otherwise the recovery of crime weapon could only be a piece of supporting evidence. Mere recovery was no ground to hold the accused guilty of commission of offence. The report pf Arms Expert Ex: P.2-B reveals that the empties and crime weapon sent together to Arms Expert. The Honorable Supreme Court hold in Haroon Shafique v. The State 2018 SCMR 2118 that:-- "

the alleged recovery of a pistol from the appellant's custody during the investigation was legally inconsequential because the crime-empties had been sent to the Forensic Science Laboratory after the alleged recovery of a pistol from the appellant's possession."

15. Now the remaining evidence is medical evidence. No doubt the defence has not disputed the MLC, but the medical evidence may confirm ocular account with regard to seat of injuries, nature of injuries and kind of weapon used in the occurrence and has been treated to be confirmatory nature. Reliance is placed on the case of Faryad Ali v. The State 2008 SCMR 1086.

16. The blood stained clothes were sent to FSL with delay of 12 days without any plausible explanation that where the alleged articles were kept and in whose custody. The Honourable Supreme Court in case Muhammad Asif v. The State 2017 SCMR 486 held:-- "

mere sending the crime weapons, blood stained to the chemical examiner and serologist would not serve the purpose of the prosecution nor it will provide any evidence to inter link different articles."

17. It would need no reiteration that conviction must be founded on unimpeachable evidence and certainty of guilt. For giving benefit of doubt it is not necessary that there should be many circumstances creating doubt. Single circumstance creating doubt in prudent mind about guilt of accused make him entitled to its benefit not as matter of grace or concession but as a matter of right. Reliance is placed on case Tor Jan alias Jag v. The State 2012 PCr.LJ

780. In view of the above discussion the appeal is allowed. The judgment dated 4th February, 2020 passed by learned Special Judge under Juvenile Justice System Ordinance/Additional Sessions Judge, Duki is set aside. The appellant Jalal-ud-Din son of Feroz Khan is acquitted of the charge in case pursuant to FIR No.6 of 2018, under sections 302, 34, P.P.C. Levies Thana Saddar Duki. He is in custody be released forthwith if not required in any other case. JK/88/Bal. Appeal allowed.