2004 P Cr (PLP)

2. After the trial, the learned Additional Session Judge Round that charge under section 17(4) of the Ordinance was not proved, but he found that commission of offence punishable under section 302(b), P.P.C. by appellants Ansar Mehmood, Mst. Nasim Akhtar and Muhammad Shafi was proved. The trial Court, therefore, convicted them under section 302(b), P.P.C. and sentenced each of them to fifteen years' rigorous imprisonment. This conviction and sentence has been called in question by the appellants through a common appeal sent from jail by Ansar Mahmood and Mst. Nasim Akhtar and by way separate appeal filed by Muhammad Shafi at Peshawar Registry.

3. The witnesses examined at the trial include Mr. Muhammad Azam Khan, Judicial Magistrate, P. W. Hakim Ali brother of the deceased, one Rasool Shah, Qaisar Khan. Dr. Faseeh‑uz‑Zaman, Medical Officer, K.M.C. Peshawar, and the police officials, including A.S.‑I. Sbaukat Ali complainant who remained connected with the investigation at some stage.

4. P W. Hakim Ali is brother of deceased Akbar Ali taxi driver. The evidence of this witness is of no material help to the prosecution. He stated that son of the deceased informed him that the taxi of the deceased was so booked for Peshawar by one lady Gogi. The son of the deceased has not been examined to prove the fact that the taxi was booked by said Gogi. The witness does not say that he identified the dead body, but he says that it was P.W. Ashraf who had identified the dead body. The evidence of P.W. Rasool Shah is not relevant for the case of appellant because he only stated that a motor car bearing Registration No.LOM‑4114 was, parked at Khariana Road which was taken into custody by the Investigation Officer. P.W. Qaisar Khan stated that his thumb‑impression was obtained by the police on a paper and he does not know what was written on the paper. The evidence of the Medical Officer who conducted post‑mortem examination does not directly connect the appellants with the commission of the offence.

5. The only evidence made basis, by the trial Court, for conviction of the appellants comprises their retracted confessions. According to prosecution, these confessions were recorded by Mr. Muhammad Azam Khan. Judicial Magistrate. The Judicial Magistrate in his examination‑in- chief stated before the trial Court that the appellants were produced before him for confession on the same date. He stated that on 10‑1‑2001 at 11‑30 a.m. accused Muhammad Shafi was produced before him by the local police for recording his confessional statement. In the next para. he stated that on the same date at 12‑00 noon accused Mst. Nasim Akhtar was produced before him for confessional statement. Thereafter he says that on the same day at 12‑20 hours accused Ansar Mehmood was produced before him for confession. The record shows that the confessional statements were recorded on different dates and, therefore, perhaps the Judge of the trial Court made correction of dates with pencil without his initial. During cross‑examination, the Magistrate gave different dates of recording of confession but the fact remains that he stated during examination‑in‑chief that he recorded statements of all the three accused persons on the same date. In their statements under section 342, Cr.P.C. the appellants denied to have made any confession and stated that they were tortured by police.

6. Mr. M. Yousaf Zia, learned counsel representing the appellants Ansar Mahmood and Mst. Nasim Akhtar, submitted that there was no eye‑witness of the incident and there was no other evidence to connect the appellants with the murder of the deceased beyond their retracted, confessions. He submitted that conviction cannot be based on the retracted confessions alone.

7. A confession is an evidence of the person making it against himself. In case, at a later stage, the said person denies to have made such confession voluntarily, on that occasion he is either speaking the truth or telling a lie. If he is speaking the truth, it means that the confession was not voluntarily made and it loses its value. If he is telling a lie, he is not a truthful witness and conviction cannot be based on the evidence of a person who is not a truthful witness. In both the cases, therefore, the retracted confession is practically useless.

8. In a great majority of cases, the accused retract from their confessions at the trial stage. The authorities may, therefore, like to consider an amendment in the law for remedy of the situation. In the past, the law provided for a committal inquiry before Sessions trial and thus, the Sessions trial and cognizance by the Sessions Court used to be at a delayed stage and it necessitated recording of confessional statement before a Magistrate in case an accused wanted to confess his guilt before commencement of his trial. This was because the accused could not be examined, at that moment, at the Sessions trial. The law has been changed 27 years ago and the procedure of criminal inquiry has been dispensed with and now the Sessions trial starts as soon as the police send up the case before the Court.

9. A suitable amendment in the law may, therefore, be made to make a provision that an accused willing to confess his guilt may be produced before the trial Court as soon as he desires to make a confession and the trial Court may record his plea of guilt and act on it after satisfying itself that the confession is voluntary or requires additional evidence in its support.

10. In the present case, the Magistrate who recorded the confessional statements says that the appellants made these statements before him but the appellants say that they have not made any voluntary confession. The Magistrate is not very much reliable because at one stage he says that he recorded these statements on the same date but at another stage he says that they were recorded on different dates. These confessions cannot therefore, be relied upon for the purpose of conviction and, if the confessions are excluded, there remains no evidence whatsoever to connect the appellants with the commission of the alleged offence. The motive is also reflected from the said confessional statements which are not reliable.

11. Mr. M. Sharif Janjua, learned State Counsel, simply supported the verdict of the trial Court. Mr. M. Yousaf Zia, has also pointed out that the punishment provided in section 302(b) is death or imprisonment for life but the trial Court has sentenced the appellants to fifteen years' R.I., which is in violation of the law.

12. Since there is no evidence against the appellants beyond the alleged retracted confessional statements and since retracted confessions cannot be made sole basis for conviction, the appellants were entitled to acquittal. The appeals are, therefore, allowed and the conviction and sentences of the appellants are set aside. They shall be released forthwith in this case. These are the reasons for our short order already announced on 16‑2‑2004. N.H.Q./12/FSC Appeals allowed.