1990 PLP 581 (MLD)

Of them Races Khan complainant (PW3) is the maker of the FIR while Jamil Khan (PW 4) posed himself to he an eye‑witness of the occurrence and the other witnesses are more less of a formal nature and reference to their statements has already been made in the earlier part of this judgment.

6. Dr. Mahmood (PW9) conducted the autopsy on the (lead body of the deceased Tajamal Khan, on 27‑8‑198‑1 at 7‑30 p.m. and found the following:‑‑ External Examination: (1) Stab wound left lateral side abdomen 2‑1/2" X 1" X deep into the abdomen. Intestines protruding out through the wound. (2) Incised wound, left upper thigh anterior surface 1‑l/''" X 1" X skin and muscle deep. (a) Incised wound left mid‑thigh (interior surface 2‑1/2" X I" X skin and muscle deep. (4) Slab wound left side back abdomen 2" X 1" X deep into the abdomen. (5) Stab wound left side back chest 1" X 1/2" X chest deep. Internal Examination: Thorax: Walls, Pleurae, left lung, blood vessels were injured. Abdomen: Walls, Peritonium, small intestines, large intestines, kindney were injured. Stomach full of food particles. Bladder contained urine. In his opinion the cause of death was haemorrhage and shock due to injuries to the vital organs in the chest and abdomen caused by sharp weapon. The probable time between injuries and death was immediate and between death and P.M. within 12 hours. He affirmed his signatures on the post‑mortem report Ex.PM, pictorial Ex.PM/1, injury sheet Ex.PC and inquest report Ex.PC/1, as correct.

7. Accused were examined under section 342 Cr.P.C. and they denied the allegations made against them by the prosecution. They neither appeared as their own witnesses under section 340(2) Cr.P.C. nor liked to produce defence. On the appraisal of the evidence and material on record, the learned Additional Sessions Judge-I, Swabi found the three appellants guilty under section 302/148/149 PPC and convicted and sentenced them as explained above in the introductory part of this judgment.

8. We have heard learned counsel for the convicts‑appellants, learned counsel for the State and learned counsel for the complainant and have also perused the record of the case with their assistance.

9. The learned trial Judge has based the conviction of the appellants on the confession Ex.PR of Laiq Shah appellant recorded by Mr. Atta‑ur‑Rehman Khan Lodhi, MIC(PW5), the statement of Races Khan complainant (PVA'Z) and that of Jamil Khan (PW4).

10. Dealing with the confession Ex.PR first, it is worthwhile to reproduce the confession of Laiq Shah appellant as follows:‑‑ "Tajmal deceased was my friend. On the day of occurrence 1 was sitting in my baithak when at about lsha time at 8‑30 or 9 p.m. Tajamal Khan came and told me, let us go for purchasing an ox for "Qurbani" and accordingly 1 and Tajamal started and in the way Muhammad Ali son of Hakim, Safdar alias Talib son of Hassan Ali Shah and Rawaid son of Ghazi met us. Muhammad Ali searched me but could not recover anything from me whereafter he went near Tajamal Khan and searched him but Tajamal Khan fired two shots with his pistol at Muhammad Ali with which Muhammad Ali was hit and fell down. Thereafter Rawaid and Safdar started delivering blows with knives to Tajamal Khan. I came back from there and informed his brothers. Early in the morning police came and arrested me. I am innocent."

11. Confessions being a specie of admission are admissible under the Law of Evidence and can be used against the maker thereof provided the statement amounts to the confession of guilt by its maker, made by him at a time when his position was that of an accused person and was not procured by inducement, threat or promise. A statement made by an accused person charged with a crime can only be treated as a confession if the maker thereof admits having committed the crime and discloses other incriminating facts. Such confession, not hit by the provisions of Articles 37 to 39 of Oanun‑e‑Shahdat, 1984, can form the basis for the conviction of the maker thereof if the same is corroborated by the other facts and circumstances of the case as well. 1t can also be used against the co‑accused implicated therein. However, if the maker of the confession retracts therefrom, then the same cannot be taken into consideration against the co‑accused.

12. Applying the above test to the confession in hand, it cannot by any stretch of imagination be termed as a confession in stricto senso, as its maker Laiq Shah appellant never admitted to have formed an unlawful assembly alongwith his co‑accused nor confessed that, in the prosecution of the common object of the said assembly, they murdered Tajamal Khan deceased by stabbing him. As a matter of fact he showed himself as an eye‑witness of the occurrence, charging Muhammad Ali, his co‑accused for searching him and his companion, Tajamal deceased, obviously for the purpose of extracting something from them. He charged Tajamal Khan deceased for Firing at Muhammad Ali appellant with pistol, hitting and injuring him, 'and Rawaid and Safdar, his co‑accused for delivering knife blows to Tajamai Khan deceased. He never inculpated himself in the instant tragedy in any away and as such this document by itself does not connect Liaq Shah appellant with the murder of Tajamal Khan deceased and in consequence the prosecution cannot derive any benefit from it to bring home the charge to Laiq Shah appellant.

13. It is not denied that immediately before recording of the so‑called confession, Laiq Shah appellant was in police custody for about five days and the possibility that the same was extracted from him under duress or coercion cannot ~' be excluded. Additionally, it does not get corroboration of unimpeachable character from other oral or circumstantial evidence. No blood was noticed by the, 1.0. on the spot at the time of spot inspection on the same night, nor any empties were recovered therefrom. Laiq Shah appellant, in his statement under section 342, Cr.P.C. has resiled from the same and consequently the learned trial Judge legally erred to use the same against his co‑accused. the other appellants. Once it is excluded from consideration as a confession, it cannot be taken into consideration as a statement recorded by a Magistrate, firstly because it came 1 from the mouth of an accused person, secondly it was not on oath and thirdly it was recorded in the absence of the other appellants and they were not afforded an opportunity to cross‑examine him. The learned trial Judge has committed material irregularity in considering the same against the other appellants.

14. Races Khan complainant (PW3) on his own showing was not present at the spot at the time of occurrence and his statement, even if believed, can only 1 prove that Laiq Shah accused had called out to the deceased from his house just before the occurrence, but no mens rea can he attributed to Laiq Shah appellant. The only eye‑witness remaining in the case is Jamil Khan (PW4) and since he is the solitary witness, procured after considerable lapse of time, his statement has to be scrutinized with due care and caution before it can be made the sole basis for the conviction of the appellants. It is laid down in his statement that Raees Khan brother of the deceased reached the spot immediately after the occurrence to whom he and Said Bahawal (abandonded P.W.) narrated the occurrence on the spot and thereafter they took the cot of deceased to the hospital where the police arrived and recorded the report of the complainant and their statements were also recorded. He also admitted that Muhammad Ali appellant was injured. Strangely enough Raees Khan complinant (P.W.3) did neither charge the other accused except Laiq Shah in the F.I.R. nor mentioned the presence of Jamil Khan F (P.W.4) and Said Bahawal (abandoned PW) as the persons having witnessed the occurrence. It is astonishing that Muhammad Ali appellant who admittedly received fireshot injuries and must have been removed to the hospital soon after the occurrence was not noticed by the ASI there. The 1.0. when questioned about the cross case showed ignorance ahout it though he had registered the cross case vide F.I.R. No. 537 dated 27‑R‑1984 under section 307/34, P.P.C. lodged by Hakim Khan father of Muhammad Ali appellant at Lady Reacting Hospital, Peshawar, photostat copy available on the file, having been produced by the complainant party, probably after the conclusion of the trial alongwith the certified copy of the statements recorded in connection with the proceedings for withdrawal of the case under section 494, Cr.P.C. on the application of complainant of that case and Laiq Shah appellant charged in that case and the order of the Magistrate acquitting Laiq Shah appellant under section 494, Cr.P.C. This was all along treated as a cross case to the instant one during the course of investigation but for reasons best known to the prosecution it was not committed to the Court of Session alongwith the instant case but was independently proceeded with and disposed of under section 494, Cr.P.C. although it had direct bearing on the case in hand which had already been put in Court and proceedings commenced since 14‑4‑1980. May he, because the prosecution was unable to explain the anomaly of arraying the same person, Laiq Shah appellant as accused in both the cross cases. Jamil Khan (P.W.4) did not depose as to how Muhammad Ali appellant came by his injuries although he saw him injured on the spot. The suppression of this material fact casts grave aspersion on his veracity, because in the instant tragedy Tajamal Khan lost his life as a result of stab blows whereas Muhammad Ali received serious injuries with fire-shot and the determination of the question of aggressor and the aggressed is apparently involved. Moreover he also named Sarwar (acquitted accused) for stabbing Tajamal Khan deceased but the learned trial Judge acquitted Sarwar accused, thereby disbelieving him so far as this part of his deposition is concerned. It is not imaginable that Raees Khan complainant in spite of the knowledge of the names of the assailants of his brother, rest contended with charging only Laiq Shah appellant and conveniently omitted to name the other accused mainly responsible for the murder of the deceased in the initial report. Obviously the two statements are irreconcilable and implicit reliance cannot be placed on either of them. The learned trial Judge has attached undue importance to the statement of Jamil Khan (P.W.4) for the simple reason that he is a disinterested witness. A witness may prima facie appear to be disinterested but that, alone is not sufficient to consider him worthy of credence unless his statement rings true, he is not belied or contradicted by the other facts and circumstances of the case and he does not suppress material facts going in favour of defence. We have, therefore, no doubt in our mind that this P.W. has not given true version of the occurrence and as such could not be relied upon.

15. Resultantly we hold that the prosecution has miserably failed to establish its case against the convicts‑appellants, beyond any shadow of doubt. We accordingly accept both these criminal appeals, set aside the convictions and sentences imposed upon the appellants by the learned Additional Sessions Judge I, Swabi vide his order dated 4‑6‑1988 and acquit them of the charges levelled against them. They are in custody and it is ordered that they be set at liberty forthwith, if not required to he detained in any other case. The connected criminal revision is also dismissed. N.H.O./946/P Appeal accepted