1998 PLP 662 (MLD)

ABDUL WAHEED SIDDIQUI, J.

Appellants have assailed judgment of the Court of Sessions Judge, Loralai delivered on 25-6-1996 whereby they have been convicted under section 396, P.P.C. read with section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and are sentenced to undergo R.I. for life each and to a fine of Rs. 10,000 each, in default to undergo further imprisonment of one year each. The same judgment has also been impugned to the criminal revision petition not challenging the conviction per se, but praying for capital punishment in the absence of mitigating circumstances. We propose to dispose of the criminal appeals and the Criminal revision petition through this judgment.

2. Succinctly, the story of prosecution is that an F.I.R. (Exh. P.O.) was lodged under sections 392 and 395,302/34, P.P.C by Riaz Ahmed (P. W.10), Naib-tehsildar Kingri, District Moosa Khel, Balochistan who himself investigated the case and this way became both the complainant and Investigation Officer. Per F.I.R./complaint (Exh.P.O.), some unknown culprits blocked the Loralai-Dera Ghazi Khan Jarneli Road at Sarati with stones around 1200 hours in the night falling between 3-8-1994 and 4-8-1994 and stopped a Pick-up No. LIT-7770 which was coming from Barkhan/Rakhni and proceeding towards Loralai. Two armed persons with muffled faces spoke with deceaseds Syed Ali in Balochi language and tried to bring him down having caught hold from his neck. The deceased had a Kalashnikov as well. Some exchange of abuses also took place between the parties as the culprits were. demanding money. The culprits fired at deceased Syed Ali who got grievously injured. With Syed Ali, the deceased, there were three other persons in the pick-up namely Lal Muhammad (P.W.1), Azim Khan and Ashiq. While seriously injured Syed Ali was being removed towards Dera Ghazi Khan, on the way he expired. It is further stated in the complaint/F.I.R. (Exh. P.O.) that the heirs of deceased did not bring the dead body to the complainant nor did they inform either in writing or orally. It was told that at the place of incident some trucks and one Ford Pick?up were also standing, but none informed Levies Post. On receiving information -the complainant-cum-I.O. Naib Tehsildar reached the spot, prepared site plan (Exh. P.P.) and started tracking the foot steps of the offenders. The complainant-cum-Investigating Officer finalised the challan on 27-9-1994 and submitted the same in the trial court through Police Station Levies, Rarasham, District Moosa Khel in which the present seven appellants have been shown in column No. 3 under custody, none has been shown as absconder or on bail, Wadera Asad Khan son of Wadera Hasan Khan by caste Jahanani Khetran, resident of Mehran Rabbani, Halqa Baghao, Tehsil and District Barkhan has been shown in column No. 1 as the complainant and first informer, thirteen persons have been shown in the calendar of witnesses which includes the scribe of complaint/F.I.R (Exh. P.O) Riaz Ahmed (P. W.10) as Investigation Officer, but does not include the person shown in column No. 1 as complainant-cum-first informer. According to the challan, the summary of the efforts carried by the Investigation Officer is that while recoveries of empties of Klashnikovs and .303 rifle were being made, the heirs of the deceased brought the dead body and was sent to Medical Officer, Civil Hospital, Barkhan for external post-mortem. Due to firing and escape of the offenders the trucks etc., which were about 16 in number, and were looted had left the place of incident. Due to the area being stony and rough, with much difficulty the footstep tracks could reach up to Village Jhalwani in the District of Barkhan by 6-8-1994, but due to heavy rains on the said date the tracks could not be traced further. On 12-8-1994, in Barkhan statements of one Abdul Razzaq driver of Vehicle QAG-4858, Haji Hammad Raza and Hameedullah were recorded and according to them they were travelling in the said vehicle from Quetta to Barkhan, but at the place of incident they found many trucks standing on the road. While they tried to cross the trucks, some unknown dacoit fired at their tyre which burst. The dacoits looted from them Rs. 24,000 to Rs. 25,000 one Omex Watch, L-Bin glasses, one tape recorder of National and one double speaker. After firing, one of dacoits who had muffled his face made them at gun point to travel with them and he left them at Rakhni Bazar near the vererinary hospital. Some persons living near the place of incident were arrested under suspicion but were later on released under section 169, Cr.P.C and on personal Bond of Rs. 50,000 each as they were not knowing anything about the dacoits. It transpired from the statements of the witnesses of incident that the number of dacoits was 6 or 7 persons and they appeared to belong to Khetran Tribe. Even otherwise the tracks of the footprints were already traced entering the limits of District Barkhan and then one of the decoits had left at Rakhni the vehicle of BRSP. The challan further unfolds that on the basis of the abovementioned indications and signs a secret effort was carried by the Investigation Officer and the heirs of the deceased in the district of Barkhan to find out some clue to the dacoits which finally succeeded in arresting appellant. Taga Khan from Barkhan on 1-9-1994. With the permission of District Magistrate, Barkhan, a judicial confessional statement of this appellant was recorded by Tehsildar Barkhan on the same date. He disclosed the names of other appellants/accused. Slowly and gradually all of them got arrested either directly or they got themselves arrested due to the repeated raids upon them and force by their relatives. Four of the arrested persons under suspicion were discharged on 18-9-1994. All the appellants except Syed Essa Shah got their judicial confessional statements recorded under section 164, Cr.P.C. All of them were charged firstly under section 148, P.P.C, secondly under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 149, P.P.C. to which they did not plead guilty.

3. Prosecution examined ten witnesses in support of its version. Lal Muhammad (P.W.1) is an ocular witness as he was a driver of Pick-up No. LIT?7770. He has proved that the pick-up reached around 11-45 p.m at the place of incident and found two trucks parked on the road whereas BRSP truck was parked on the side. Two culprits with muffled faces came to their vehicle, asked to switch off the head lights. They went to Syed Ali, the deceased, who was sitting on the cleaner side, and asked him to take out money from his pocket. Both of them got down from the truck and the culprits fired at Syed Ali. He sustained injuries, but the culprits ran away. They removed injured towards Dera Ghazi Khan for treatment. He has deposed further that the accused/appellants present in Court may be those who fired at the deceased. During cross he has admitted that it was dark night, the deceased was neither armed nor had he abused the two culprits. He did not identify the culprits, however one was taller and the other spoke in Balochi language. To a suggestion he has admitted that he had not given physical features of the accused to the Tehsildar. To another suggestion he has replied that it is not correct that the accused are innocent. Dr. Sher Zaman (P.W.2) Medical Officer, Barkhan has proved that the dead body of the deceased was brought on 4-8-1994 by Wadera Assad Khan. He examined it and found following internal injuries: Fire-arm injuries left exilla there is severely bleeding from the wound exit not known. Fire-arm injury on left iliac fossa and exit wound on lumber region. There is severely bleeding from exit side. Fire-arm injury on right ingunal region and exit wound on right hip region. His opinion was: "The injuries were about 8 hours old. The injuries were dangerous to life. The cause of death of deceased is due to severely bleeding and injuries. " During cross he admitted that he had not mentioned in his report about the type of fire-arms used. However, pistol/revolver has not been used in causing the injuries. He had not recovered bullet lead from the dead body. He had not mentioned in Exh. P/A the cause of death. Ahmed Nawaz (P.W.3) Tehsildar, Moosa Khel has proved that voluntary judicial confessions were recorded by him on 4-9-1994 of that of appellant Pandhi Khan, on 12-9-1994 of that of appellants Shah Gul and Muhammad Khan, on 18-9-1994 of that of appellant Wazir, on 20-9-1994 of that of appellant Balo, and in this context all the legal formalities were completed by him. During cross to certain suggestions made by three different counsel for appellants, his replies are:-- "Naib Tahsildar have produced all the accused at Musa Khel. the accused were brought from Kingry. I do not remember who were present in Court room where the accused were produced before me.........Riaz Ahmed, Naib-Tehsildar is subordinate to me. I gave remands of all accused to Naib Tahsildar. I have not seen the body of the accused to find out marks of violence......The accused Muhammad Khan gave statement in Pashto language whereas the remaining accused gave statements in Urdu language. It is not correct that accused Pandhi Khan and Balo speaks only Barkhani language .... I have not mentioned in the statements of accused that I disclosed to the accused as that I am End Class Magistrate .... I have not mentioned in Exh. P/B, Exh. P/E and Exh. P/F that whether the accused gives statements or not. They will not be handed over back to Naib Tahsildar ??.I have not mentioned in Exh. P/C that I gave time of reflection to the accused, I have not mentioned Exh. P/C that I removed the Naib Tahsildar and levies from Court-room. I have not mentioned in the Exh. P/C that whether accused gives statement or not he will not be handed over back to Naib Tahsildar. The accused gave statement in Urdu and Saraiki language before me. I had not mentioned in certificate that accused Shah Gul gave statement in Urdu and Saraiki language and that I read over the statement in Urdu and Saraiki language to the accused ....From 15-9-1994 to 18-9-1994 the accused Wazir was in levies line Musa Khel. I do not know who gave remand of accused from 15-9-1994 to 18-9-1994 ??I have not mentioned in Exh. P/D that I removed Naib Tehsildar from Court-room. I have not mentioned in Exh. P/D that whether accused gives statement or not he will not be handed over back to Naib Tahsildar The mother tongue of the accused is Khatrani language. The accused gave statement in Urdu and Khetrani language. I understand Khatrani language but I cannot speak Khatrani language. I have not mentioned in certificate that I read over the statement to the accused in Urdu and Khatrani language." Hameedullah (P.W.4) has proved that on the fateful night at about 11/12 p.m. he was travelling in a Rocky Jeep from Quetta to Barkhan accompanied by driver A. Razzaq and Hamad Raza (P.W.5). Finding two trucks half blocking the road near Sarati, they suspected trouble. Trying to cross the trucks, a burst of fires came and tyre of their vehicle was damaged. They had to stop. One of the culprits armed with gun came near by, made them to switch off the head lights and not to talk. He made them to get down, conducted personal search and robbed Rs. 23,000 from his pocket, a cassette player, one sun glass and a wrist-watch from him. He conducted body search of both of his co?-travellers, and took away the key of the vehicle with him. He has also proved that after some time, a vehicle came from Barkhan side, was stopped about 20 feet away from their vehicle. He had seen another culprit standing in the middle of the road from the beginning. That another culprit told driver to switch off and it was done. He told passengers of the vehicle to hand over money. On refusal, he loudly said in Urdu about refusal. In the meanwhile another accomplice came behind the truck to the vehicle and abused them. The driver side of the vehicle opened and firing started. He has deposed that he cannot say whether both the culprits fired or one of them. Soon after, one of them came to their vehicle, forced them to sit in it. He also sat in it and made them to leave the place of incident, towards Rakhni where he got down. The culprit gave cash of Rs. 1,000 to him before leaving. He had heard a noise of a person of Datsun which came from Barkhan side saying "oh! I am killed". The culprit who had got down from their vehicle at Rakhni had covered his face, but his eyes were open. He identified appellant Muhammad Khan in the trial Court from his eyes, but he could not identify the culprit who had removed his cash and valuables, nor could he identify the culprit who was standing in the middle of the road. When shown Omex Wrist-watch, sun glasses and National Cassette Recorder, he identified the same to be the articles which were robbed from him. During cross to certain suggestions he has replied: "I had not stated in my statement before Tehsildar about the features of the accused. The identification parade of the accused were not held after their arrest." Hamad Raza (P. W.5) was one of the co-travellers with Hameedullah (P. W.4) and has almost repeated the deposition of P. W.4 except a few contradictions of details but substantial in nature which shall be discussed at the proper place. He identified appellant Muhammad Khan to be that culprit who accompanied them up to Rakhni. He stated that the eyes of that culprit were red and after seeing all the appellants pointed towards Muhammad Khan. The trial Court has observed that the eyes of this appellant/accused are really red. During cross he has admitted that he had not stated about the redness of the eyes of the culprit under discussion to the Investigation Officer. No identification parade was ever held. Khudai Nazar (P.W.6) has held that on 1-9-1994 he was Tahsildar Barkhan and appellant Taga Khan produced by Investigation Officer got recorded a voluntary confessional statement which is Exh. P/G. During cross he has admitted that Deputy Commissioner, Barkhan had referred to him the said accused appellant for recording statement. He recorded the statement and sent it to the referring authority. Syed Ibadulla Shah (P. W.7), Jamadar Levies, District Moosa Khel has proved that on 4-8-1994 he accompanied Investigation. Officer to the place of incident and before him 19 empties of Kalashinkov and 4 empties of .303 bore were recovered and such recovery memo was prepared which is Exh. P/H. He was one of the two witnesses of recovery, another being Ali Shah a sepoy of Levies. He has also deposed that on 20-9-1994 appellants Wazir, being in custody, produced through Mir Khan one country-made rifle, one sun glasses to the Investigation Officer and such recovery memo (Exh. P/I) was prepared and signed by him. He identified rifle (article 3) and sun glasses (article 4) to be the same. He has also proved production of one kalashinkov and a wrist-watch to the Investigation Officer by appellant Muhammad Khan through his relative Lalai. Such Recovery memo. (Exh. P/J) was prepared and signed by him. He has identified both these articles numbering 5 and 6 to be the same. He has also proved recovery memo. (Exh. P/K) to have been signed by him as being recovery of rifle .303 bore (article 7) produced by Alain Khan brother of appellant Shah Gul on 21-9-1994. The recovery of one tape recorder (article 8) from bushes on the pointation of appellant Taga Khan on 23-9-1994 has also been proved by him and such recovery memo. Exh. P/L stands admitted by him to be the same and signed by him. During cross, to certain suggestions he has replied: "On 4-8-1994 1 alongwith Naib-Tehsildar reached the spot at about 7 a.m. Seven or eight levies personnel were also accompanying Naib-Tehsildar but I do not remember their names ???????? There is always traffic on the road during day time. No private person was present at the time of recovery of crime empties ...On 23-9-1994 at about 8/9 a.m. alongwith Naib Tehsildar and accused Taga Khan. There was traffic on the road and people was coming and going on the road. On 23-9-1994 the accused Taga Khan was in Levies custody at Kingry. Levies Thana is situated in Kingry. Kingry town was open. Hotels and shops were opened and several persons were also present. Naib-Tehsildar did not call away private person to associate with recovery of tape-recorder .....Naib-Tehsildar was affixed a piece of red-solution tape to the tape? recorder for identification. " Shah Gul (P. W.8), a sepoy of Levies, is a witness of recovery of a rifle (article 9) produced by Ghulam Yasin brother of appellant Balo. Recovery memo. Exh. P/M has been proved by him. Sher Mohammad (P. W.9) a sepoy of Levies has proved Recovery Memo of Datsun No. LIT-7844 Exh. P/N. Riaz Ahmed (P. W.10), complainant-cum-Investigation Officer and Naib Tehsildar, Kingri has proved chat on 4-8-1994 @ 7 a.m. Jamadar Levies Rarashem informed him about the incident. He lodged report Exh. P/O at P.S Levies, Kingri and went to the place of incident accompanied by other personnel of Levies. He prepared site plan Exh. P/P, recovered 19 empties and one live round of Kalasnikov, 4 empties of .303 and prepared Recovery Memo. Exh. P/H. He has further proved recording statement of Azim Khan on the spot, and on 12-8-1994 recording statements of Haji Hamad Raza (P. W.5), Hameedullah (P. W.4) and Abdul Razzaq. He arrested appellant Taga Khan on 1-9-1994 and got his confessional statement recorded by the Tehsildai for which he obtained permission from the Deputy Commissioner, Barkhan. He has proved arrest of appellant Syed Essa Shah and taking the possession of Datsun LIT-7844 on the same date. He arrested appellant Pandhi on 2-9-1994 and got his confessional statement recorded on 4-9-1994 by Tehsildar, Musa Khel. Appellant Muhammad Khan was arrested by him op 12-9-1994 and got his confessional statement recorded from the said Tehsildar. On 10-9-1994 appellant Shah Gul was handed over to him by Naib-Tehsildar Rakni and his confessional statement was got recorded. Appellant Wazir was arrested on 14-9-1994 and Tehsildar Musakhail recorded his confessional statement on 18-9-1994. Appellant Balo was arrested by him on 16-9-1994 and the same Tehsildar recorded his confession on 20-9-1994. He has further proved production of one China rifle and sun glasses by Mir Khan a relative of appellant Wazir, one kalashnikov and wrist-watch by Lal Khan, maternal-uncle of appellant Muhammad Khan, one rifle by Alain Khan brother of appellant Shah Gul, one rile by Ghulam Yasin brother of appellant Balo. He has proved all the recovery memos. prepared by him in this connection. On pointation of appellant Taga Khan one National Tape Recorder was recovered by him from bushes in the vicinity of the place of incident. He has further deposed that the tape recorder Article 8 was lying in a cave. During cross, he has replied to certain suggestions as under:-- "Within one hour of arrested of accused Taga Khan I got recorded his confessional statement, thereafter he was sent to judicial lock-up. The accused Taga made disclosure on 22-9-1994 about the tape recorder at Musakhail while he was in Sub-Jail Musakhail. ...the accused Taga Khan was in Sub-Jail Musakhail when I recovered tape recorder from Saraty area. The distance between Sub-Jail Musakhail and Saraty area will be 55 miles. It is not correct that on 5-8-1994 I had arrested accused Taga Khan. It is not correct since the accused Taga Khan was not willing to give confessional statement, therefore, I did not show the date of arrest, of accused as 5-8-1994 in the papers. I did not hold identification test of sun glass, tape recorder and wrist-watch through its owner. P.Ws. Hamad Raza, Hamidullah and Abdul Razzak have not stated before me that eyes of accused Muhammad Khan are big and red in colour. It is not correct that from the beginning of the investigation till the end of it Wadera Assad and Wadera Gulzar have accompanied me. It is not correct that I arrested accused Shah Gul at the instance of Wadera Assad and Wadera Gulzar. It is not correct that on 28-8-1994 I had arrested accused Shah Gul. It is not correct that I obtained the confessional statement of the accused after maltreatment. " To specific questions in their statements under section 342, Cr.P.C., there is mostly denial simpliciter. However, about the question as to why this case has cropped up against them, the reply of all and sundry is that levies have involved them to show their ability and efficiency. In his statement on oath under section 340 (2), Cr.P.C., appellant Taga has deposed that he knows nothing about the incident. Riaz Ahmed Investigation Officer kept him in Barkhan Jail and obtained his thumb-impressions on blank paper. Appellant Muhammad Khan has deposed in his statement on oath that neither he has given confessional statement nor anything was recovered from him. Appellant Balo has deposed that on the call of D.C., Barkhan he appeared at Police Station Levies and was arrested. His thumb-impression was obtained on a blank paper. Appellants Wazir and Pandhi have repeated the same wording of their co-appellants in their short statements on oath. Appellant Shah Gul has deposed that on the night between 3/4 of the August he was in the house of Kaisar Kalyani in connection with the marriage ceremony of his son. Appellant Essa Shah has deposed that Investigation Officer arrested him from his house. He was asked to hand over his Vehicle No. LIT-7844 to the prosecution. Kaisar Khetran appeared as defence witness No. 1 and deposed that appellant Shah Gul attended marriage ceremony of his son on the fateful night. He came at 2 p.m. and remained up to 2 a.m. He was accompanied by one Osman at that time. During cross he has admitted that Shah Gul is not related to him and that he is Waga by caste. (Appellant Shah Gul is also Waga). Osman (D.W.2) by caste Waga has repeated the deposition of D.W.1 in substance. During cross he has admitted that after arrest of appellant Shah Gul, he had not gone to Investigation Officer to give statement. Nihalan by caste Waga (D.W.3) has deposed that he spent the fateful night with appellant Wazir at his residence as on the earlier day he had gone there to purchase cattle. ,During cross he has admitted that after arrest of Wazir, he had not gone to Investigation Officer.

4. We have heard, the learned counsel for appellants, petitioner and State. Appellant's counsel has contended that no identification test was carried; that confessional statements have been extorted after torture and are not corroborated; that recoveries are not directly made from appellants; that the recovery of tape recorder on pointation of Taga Khan is, under mysterious unexplained circumstances and was not produced in the trial Court; that no identification parade qua. red eyes was conducted, that same person is complainant, Investigation Officer, S.H.O. of the concerned police station and Naib-Tehsildar which is in violation of rules enunciated by the superior Courts; that the languages in which some of the so-called confessional statements are made like Pushto and Khetrani are not known, to the recording Tehsildar, that confessional statement of appellant Taga Khan is silent about tape recorder; that there is no confessional statements of appellant Essa Shah and his case is on different footings, yet he has been treated at par with others; that recovered weapons and empties were never sent for report of the experts of ballistic sciences for matching purposes; that the confessional statements recorded under section 164, Cr.P.C. are neither recorded by a Magistrate of first class or by any Magistrate of the Second Class specially empowered in this behalf by the Provincial Government, and therefore, all the proceedings are vitiated, that reliance has been placed on, inter alia, 1993 SCMR 585, 1996 NLR (SCJ) 490, 1992 SCMR 2088, 1988 P. Cr. L J 116, PLD 1988 FSC 42, PLD 1988 FSC 58, PLD 1986 FSC 274, PLD 1990 SC 484, 1969 SCMR 442, 1969 SCMR 390, 1993 SCMR 1822, 1995 P Cr. L J 1212. The counsel for petitioner' has contended that the confessional statements are voluntarily made, sound true and can be relied upon as a sole basis for conviction and in this context he has relied upon PLD 1964 SC 813, PLD 1978 SC 21, 1977 SCMR 457, PLD 1995 SC 336, PLD 1960 SC 313, that mere fact that a person having made confession was later on remanded back to police does not make the confession dubious reliance being placed on 1969 SCMR 521; that accused, remaining in custody prior to confession is not a conclusive proof that the confession was not voluntarily made reliance placed on PLD 1972 SC 363; that directions contained in circulars are not mandatory for High Courts and reliance in this context is placed on PLD 1972 SC 363, and PLD 1978 SC 21; the learned State Counsel agreed with the contentions of the .petitioner and argued vehemently that this is a case of capital punishment.

5. At the outset, the first and foremost point which has agitated our mind is that in the presence of clear and binding rulings of the superior Courts of Pakistan as well as judicial principles accepted by the civilised world since times immemorial, it is totally unjust that same person becomes a complainant, investigation officer is Station House Officer of the police station in which complaint is lodged as F.I.R., is the first informer and also holds powers of a criminal Court being a Naib Tehsildar recording partly judicial confessional statements and remanding the appellants to himself. The age old principles and practices of the Courts given below are trampled in this case in maxims (1) a communi observantia non est recedendum (from common observance there shall be no departure), (2) Cursus curia est lex curiae (the practice of the Court is the law of the Court), (3) nemo debet esse judex in propria causa sua (a maxim which is philosophical background of section 556, Cr.P.C which reads

"Case in which Judge or Magistrate is personally interested.--No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself." (4) nemo doubus utatur officiis (no one should hold two offices), (5) nemo jus sibi dice re potest (no one can declare the law for himself), (6) nemo potest gldii potestam sibi vel cujus alterius coercitionis ad alium trasferrc (no one, to whom is delegated a power of coercian can himself transfer it to another), (7) nemo sibi esse judex vel suis jus dicere debet (no one oughi to be his own Judge or the Tribunal in Iiis own affairs). What has happened is that Riaz Ahmed (P. W.10) is addressing himself as JANAB-E-AALI in his murasila/complaint dated 4-8-1994 (Exh. P.O) to which he himself gives caption as IBTADAI ITTALLAI REPORT or F.I.R. about the incident. As admitted by him in his deposition he was Naib-Tehsil Kingri on the same date was also S.H.O. of Police Station Levies, Kingri. His original complaint addressed to himself being S.H.O. and captioned as F.I.R. does not indicate the name of the first informer, but during examination-in-chief he has disclosed that first informer was Jamadar Levies, Rarasham who came to him at 7 a.m. on 4-8-1994 and told him about the dacoity at Saratay. Neither this first informer was examined, nor his name appears in the calendar of witnesses in the challan. The challan was finalised by the same complainant/Naib-Tehsildar as Investigation Officer and S.H.O. of Police Station Levies, Rarasham, but mysteriously in column No. 1 of the challan one Wadera Asad Khan son of Wadera Hasan Khan Jahanani Khetran of District Barkhan is appearing as first informer and complainant. But again he was neither examined nor included in the calendar of witnesses. Throughout the evidence in the Court, only once Wadera Asad comes into picture and immediately fades away when during corss to counsel for appellant Shah Gul, to a suggestion Riaz Ahmed (P. W.10) has denied the company of Wadera Asad and Wadera Gulzar from the beginning till end of investigation and that appellant Shah Gul was arrested on their instance. This Asad Khan son of Hasan Khan is now petitioner in Criminal Revision Petition No. 38/I of 1996, dated 8-8-1996 in which he has not disclosed his relationship with deceased, but has prayed for enhancement of sentence to death. It appears that he has not signed this petition and signatures are that of his counsel Muhammad Munir Peracha. No affidavit is attached with the petition. To our surprise there is one another person Karam Khan son of Murad Khan by caste Khetran of District Barkhan who claims in para. No. 1 of his application dated 13-10-1996 that he is the petitioner in application 38 (i.e, Criminal Revision No. 38/1 of 1996) and that he and the people of the area investigated and with much difficulty got arrested the accused/appellants. In para. No. 3 of this application Karam is disclosing:-- There is one application dated 18-9-1994 available in the police file and has not been exhibited at all. It is addressed to Assistant Commissioner, Moosa Khel and is in the nature of a direct complaint under section 200, Cr.P.C. The complainant is Wadera Asad Khan son of Hasan Khan and is indicating that deceased was a paternal cousin of the complainant. In this complaint he named appellants Nos. 1 to 6 as the respondents/accused and is silent about appellant No. 7 i.e. Syed Essa Shah This complaint has been disposed of by the Magistrate (A.C., Moosa Khel) in violation of the mandatory provisions of Chapter XVI of Cr.P.C. It has simply been forwarded to Naib-Tehsildar, Kingri (i.e. P. W.10) with directions on 18-9-1994. On the same date there is another order in different writing and appears to be that of Riaz Ahmed (P. W.10) himself but in his capacity as a Magistrate. The order reads: That is also the reason, prima facie, that in challan dated 27-9-1994 Asad Khan has been shown in column No. 1 as first informer and complainant. It appears that remand of appellant Wazir from 15-9-1994 to 18-9-1994 was given by this complainant-cum-Investigation Officer while officiating as a Magistrate. All this illegality has clearly vitiated the proceedings as the Investigation Officer Riaz Ahmed has worked out of jurisdiction, and all his actions are found to be coram E non judice. Such officers create a mockery of law. In this context clear rulings are available, inter alia, cited as 1989 P Cr. L J 601, 1995 MLD 1532. This irregularity is not curable as it is a view held since times immemorial that any act out of jurisdiction is void and a nullity in the eyes of law.

6. There are three ocular witnesses of the incident and all of them are in substantial conflict among themselves. Hameedullah (P. W.4) and Hamad Raza (P. W.5) were co-travellers in a Rocky Jeep coming from Quetta and proceeding towards Barkhan. The driver of the jeep was Abdul Razzaq but he has not been examined. Following conflicts have been noted in the depositions of these two ocular star witnesses: P. W. 4??????????????????????????????????? P. W. 5 1.???????? At about 11/12 p.m., near????????

1. At about 12-00 p.m. when they ??????????? Serati they saw two trucks on?? ??? reached near Serati they found ??????????? the road half blocking it.??????????? ??? 4/5 trucks parked on the road ??????????????????????????????????????????????????????????? ??? side. 2.???????? One culprit armed with gun????????

2. Three culprits came to their ??????????? came to the vehicle at the????????? ????? vehicle, and made all the three ??????????? driver side, told to switch off???? ????? to get down from the vehicle. ??????????? the head lights and not to talk.???????? He was searched and robbed of ??????????? He conducted his personal??????? ????? Rs. 3,000 with Some ??????????? search, robbed Rs. 23,000 and?????? documents. Key was taken ??????????? took cassette players, sun???????? ?????? from them, and were told to ??????????? glasses, wrist-watch from him.???????? change the tyre. ??????????? He also conducted body search ??????????? of driver and Hamad Raza ??????????? (P.W.5) and went away after ??????????? taking key from them. 3.???????? The only culprit who robbed????????

3. After the incident of firing, one ??????????? them and took away the key???? ??????? culprit came and gave the key ??????????? was armed with gun. After the????????? and made them to reach Rakhni ??????????? incident of firing he came?????????? ?????? where he got down. He was ??????????? back, returned the key and??????? ?????? armed with a Klashinikov. ??????????? forced them to drive up to ??????????? Rakhni where he stepped ??????????? down. Lal Muhammad (P. W.1) is the third ocular and most important star witness. He was driving Pick-up No. LIT-7770 in which the deceased Syed Ali was sitting on the cleaner side. In conflict to P. W.5 he is deposing that two trucks were parked on the road. Then there is another discrepancy between this eye-witness and another important star witness Hameedullah (P. W.4). This witness is deposing that when he stopped the pick-up, two culprits with muffled faces came to the vehicle. They made them to switch off the head lights. Then both the culprits went to Syed Ali deceased and told him to take out money from the vehicle, and both the culprits fired at the deceased. Hameedullah (P. W.4) is giving a different version. He is deposing that the vehicle in which deceased was travelling was made to stop at a distance of 20 feet from their vehicle. He had already seen one culprit standing in the middle of the road and he alone told the driver of the newly stopped vehicle to switch off. He alone told the passengers to hand over money and on refusal he said loudly in Urdu that they are not giving money. Then the second culprit came behind the truck to the vehicle and was abusing them. Then the driver side of the vehicle opened and with that the firing started. This witness has shown his inability to tell whether both the culprits fired or one of them.

7. Ahmed Nawaz (P. W .3) Tehsildar and Magistrate Class II has clearly taken somersaults about the languages in which he recorded confessional statements. During cross to the counsel for Muhammad Khan etc. he has admitted that Muhammad Khan gave statement in Pashto language whereas the remaining accused gave statements in Urdu language. During cross to counsel for Shah Gul he has deposed that appellant Shah Gul gave statement in Siraki and Urdu, but such certificate was not appended by him. To the counsel for Syed Essa Shah during cross he has replied that this appellant gave statement in Urdu and Khetrani languages and he cannot speak Khetrani language and that he has not mentioned in the certificate that he read over the statement to the appellant in any language. In the presence of these circumstances we do not think that it shall be safe to believe these statements. All the three and the only ocular witnesses produced by prosecution are, thus, in such conflicting position that confessional statements.

8. The learned counsel for appellants has rightly referred to a ruling of a Full Bench of this Court cited as PLD 1988 FSC 58 in which their lordships held that confession remains evidence against accused only for such time as it has not been retracted. We are bound by the following principle of law enunciated by the Shariat Appellate Bench of Supreme Court of Pakistan and reported at placentum A cited as PLD 1990 SC 484: "It is true that it is not illegal to base the conviction of the accused on the statement made by him under section 164, Cr.P.C. which statement is later on retracted, but nevertheless in the absence of a single piece of completely untarnished evidence in this case connecting the appellant with the crime we think that it will not be safe to uphold his convictions and sentences on the kind of evidence produced at the trial. In these circumstances, the appellant must be given the benefit of doubt." In 1969 SCMR 442, the apex Court ruled that the retracted confession should not be acted upon unless corroborated in material particulars. In 1993 SCMR 1822, the Shariat Appellate Bench has enunciated the following ruling applicable on the present case:-- "S. 164

Confession--Retracted confession

When retracted confession can be made basis for conviction

Corroboration of material particulars of the retracted confession with other pieces of independent evidence in the case would mean corroboration of those parts of retracted confession with other pieces of evidence in the case which would establish the link of accused with the commission of the offence with which he is charged

Where, in his retracted confession, accused had allegedly admitted that he committed the offence, in order to make the retracted confession of accused, a valid basis for his conviction for the offence charged, corroboration of two material facts; namely, that the offence charged was committed and that it was the accused who committed the act, was needed in the case." In the case in hand, there is no doubt that the offence charged was committed. Another material fact which is not proved beyond the reasonable doubt is that the appellants/accused have committed it. Reliance has also been placed on Joyyum Bibi's case cited as PLD 1960 SC (Pak.) 313 but again it is almost on the footings of the citations quoted earlier and is distinguishable. PLD 1995 SC 336 at placentium B reads:-- "Retracted confession should be accepted only if it is corroborated by clear cogent and independent evidence. Although there is no such provision to accept retracted confession on this basis, this, is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily, free from coercion and torture and also examine the. circumstances under which it was made and retracted. However, if the reason given for retracting is palpably false, absurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek some corroboration for retracted confession. The corroboration of such confession should be of material particulars connecting the accused with the offence." The petitioner's counsel has relied on the contrary on the following ruling of 1980 SCMR 935 so far as the voluntariness of a confessional statement is concerned. "S.164

Confession, recording of--Magistrate making a detailed statement a trial, and such statement fully accepted by Courts below, as indicating that even though he did not record on paper of having informed accuse petitioner of his being a Magistrate yet he explained such fact to petitioner--Courts below, held, right in holding confession to be voluntary and properly recorded in accordance with law. " The question in the present case is different inasmuch as that whether the retracted confessional statements are corroborated by other pieces of evidence beyond reasonable doubt and as to whether a Magistrate Class 11 vitiates the proceedings while recording statements under section 164, Cr.P.C. Reliance has also been placed on PLD 1964 SC 813 in which their lordships held: "(b) Criminal Procedure Code (V of 1898), S. 164--Confession-?Retracted or un-retracted--Judicial or extra-judicial--Can legally be taken into consideration against maker thereof--Corroboration not needed if confession true and voluntary--Can validly be made sole basis of conviction depends upon facts of particular case--Retracted extra-judicial confession cannot corroborate retracted judicial confession-?Evidence Act (1 of 1872), S. 24." It can well be visualised that retracted confessions making sole basis of conviction in the circumstances of the present case is not safe. Reliance upon Syed Sharifuddin Pirzada's case cited as PLD 1972 SC 363 is in fact on placentium A which reads:-- "Remaining of accused persons for some time in the police custody does not effect their judicial confessions. Mr. Azizuddin, A.G. M., who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confessions. This shows that the confessions were made voluntarily. " In the present case, the appellants have never remained in police custody for a considerable time, but since the confessions are retracted, the same p need a complete corroboration beyond any reasonable doubt which is not forthcoming. Reliance has also been placed on placentium B of PLD 1978 SC 21 in which their lordships held: "S.24--Confession-Admissibility--Accused denying having confessed their guilt before any Magistrate while giving their statements before committing Magistrate but while on trial in Sessions Court, stating same having been obtained forcibly by torture--Accused's stand not only inconsistent but also not supported by any evidence--Investigation Officers, produced to prove prosecution case, not cross-examined to show confessions having been obtained by torture--Cross-examination of Magistrate recording confessions also not showing confessions having been obtained under any inducement, threat, or promise-?Confessions, held, could not in circumstances be struck down as inadmissible. " In the present case, Ahmed Nawaz (P.W.3) Tehsildar has admitted during cross that he had not seen the body of the accused appellants Muhammad Khan, Pandhi Khan, Balo and Taga to find out marks, of violence.

9. Prosecution has heavily relied upon the recoveries. The learned counsel for the appellants has correctly made a reference to the fact that recovered empties and arms were never sent to the experts of ballistic science for matching. None of the recoveries is direct except National Tape Recorder No. Rx-Fs 21 on pointation of appellant Taga Khan per recovery memo. Exh. P/L. But the circumstance of this recovery is that Riaz Ahmed (P. W.10) is deposing that he recovered this article No. 8 lying in a cave in Serati area i.e. near the place of incident on the pointation of Taga Khan on 23-9-1994. The date of incident is the night between 3/4 of August, 1994. Appellant Taga Khan was arrested 27 days later on 1-9-1994 and was produced before the Tehsildar, Barkhan on the same date where he gave confessional statement and then he was sent to judicial custody. It means that Taga Khan had left this valuable in a cave of all these 27 days during which he was not yet arrested. It appears unnatural. Then it is mysterious that in his so-called voluntary confession on 1-9-1994 he is not making any reference to this tape recorder and its concealment in a cave. He is sent to the jail immediately, but 23 days later he is taken out from the jail, only for pointation of this article No.

8. Another discrepancy is that out of two Mushirs of recovery, only one Ebadullah (P. W .7) has not made any reference to a cave, but rather he is deposing that appellant Taga Khan took out one tape recorder from bushes. Consequently, the recovery of tape recorder on the pointation of appellant Taga Khan is not free from doubt specially when per Ebadullah (P. W.7)'s own admission, Kingri Town was open, several persons were present on hotels and shops but Naib-Tehsildar did not call for any private independent person to associate with he recovery of tape-?recorder.

10. It has been contended that no identification parade was ever conducted. Only appellant Muhammad Khan was identified in the Court by P. W.4 and P. W.5 from his eyes. Hameedullah (P. W.4) is deposing that the culprits at the time of incident had covered their faces but from the eyes of Muhammad Khan he can say that he is the same person who had gone from the place of incident near Rakhni in their vehicle. But at the same time he is not in a position to identify that culprit who removed belongings from him. He was the same culprits who had robbed them and had taken away the key of their vehicle and then after firing had returned the key to them and had accompanied them up to Rakhni. It means that this very witness is giving two versions abut the identification of Muhammad Khan. In one, he is showing his inability to identify, and in another version he is identifying the same culprit from eyes. Hamad Raza (P. W.5) is giving yet another version about identification of appellant Muhammad Khan. He is deposing that the eyes of that culprit who travelled with them up to Rakhani were red, and since Muhammad Khan present in the Court had red eyes, hence he was that culprit. During cross this witness has admitted that in his statement before Naib-Tehsildar he had not stated about red eyes of that culprit who had travelled with them. In the absence of identification parade qua red eyes of one of the appellants, it is not safe to hold G appellant Muhammad Khan guilty. Reliance has correctly been placed on 1993 SCMR 585 and 1992 SCMR 2088.

11. The upshot of the discussion is that the benefit of doubt is extended too the appellants. The impugned judgment is set aside. Appeal is accepted. Appellants may be released if not wanted in any other case. N.H.Q./1160/FSC ????????????????????????????????????????????????????????????????????????????? Appeals accepted.