2013 PLP 2668 (YLR)

ABDUL LATIF KHAN, J.

Through this single judgment, we propose to decide Criminal Appeal No.156 of 2011 filed by convict-appellant namely Muhammad Zarif and Criminal Appeal No.158 of 2011 filed by Muhammad Hanif against their conviction passed by learned Additional Sessions Judge-IV, D.I.Khan dated 30-9-2011 vide which Muhammad Zarif has been convicted under section 302(b), P.P.C. and sentenced to imprisonment for life along with compensation of Rs.5,00,000 and Muhammad Hanif has been convicted under section 302(b), P.P.C. and sentenced to death along with compensation of Rs.5,00,

000. However, benefit of section 382-B Cr.P.C. was extended to them, Murder Reference No.17 of 2011 forwarded by the trial Court and Criminal Revision No.50 of 2011 for enhancing the sentence of convict-appellant namely Muhammad Zarif from life to normal penalty of death filed by the complainant arising out of the same judgment passed by the learned trial Court.

2. Brief facts leading to the instant appeals and revision are that on 23-6-2010 at 7-30 a.m, on the spot near Mustafa Abad complainant Muhammad Younas along with dead body of his brother Mehdi Hassan Shah reported the matter to the local police to the effect that he was informed that on the night before the occurrence his brother, Mehdi Hassan Shah aged 31/32 years set out from his house for Mustafa Abad to take "Naswar" but did not come back. In the morning at 6-00 a.m. Muhammad Ramzan resident of Mustafa Abad and Haji Murtaza of Jhok Qureshi informed him at his house that Mehdi Hassan Shah is lying killed in the fields of Aziz Qureshi. On this information he along with his relatives came to the spot and saw his brother Mehdi Hassan Shah dead. Some unknown accused have killed him with axe blows. He has got no enmity with the anyone, hence F.I.R. No.181 was chalked out.

3. Challan against the convict-appellants and other acquitted co-accused was submitted before the learned trial Court and the learned trial Court took the cognizance of the case. Convict-appellants and other acquitted co-accused refused to plead guilty in response to the charge framed against them; therefore prosecution was directed to record its evidence to prove the guilt of the convict-appellants and other acquitted co-accused.

4. The prosecution examined eighteen witnesses during trial against the convict-appellants and other acquitted co-accused and then closed its evidence. Whereafter statements of convict-appellants and other acquitted co-accused were recorded under section 342, Cr.P.C. Neither they recorded their statements on Oath nor produced any evidence in their defence.

5. The learned trial Court after hearing arguments of both sides convicted the convict-appellants and sentenced them as per detail given in first Para of this judgment and acquitted the other co-accused namely Muhammad Amjad from the charges levelled against him.

6. Mr. Saleemullah Khan Ranazai, Advocate appearing on behalf of convict-appellant namely Muhammad Hanif contended that convict-appellant namely Muhammad Hanif was not charged in the murasila by the complainant on the basis of which F.I.R. No.181 was chalked out. He contended that the complainant has not seen the occurrence nor any eye-witness has been cited in the case and the occurrence is unseen. He contended that there is no explanation as to how the complainant came to know about the convict-appellant. He contended that the occurrence took place on 23-6-2010 and the report to this effect was made by the complainant without naming the convict-appellant in the F.I.R. but later on 24-6-2010 the convict-appellant was arrested as named by the complainant in his supplementary statement without disclosing the source of information which is tainted with mala fide. He contended that there is no chain in the instant case, two P.Ws. have been introduced by the prosecution in order to make the case of last seen as the said witnesses have deposed that the deceased was seen in the company of convict-appellant. He contended that the confessional statement was not voluntary and the convict-appellant was produced before the Magistrate prior to the confession and afterward examined by the Magistrate which shows that the convict-appellant was repeatedly produced before the Magistrate. He contended that no explanation was given by the Magistrate to the convict-appellant that after the statement convict-appellant would not be handed over to the police. He attacked the medical evidence and contended that the same is not in consonance with the ocular account. With regard to the recoveries, contended that the same were not made properly and the connection of the convict-appellant with the crime cannot be based on the alleged recoveries. He contended that being blind murder the convict-appellant was falsely implicated in the instant case. He seriously questioned the report with special reference to the time and contended that the same was afterthought. He prayed for the acquittal of convict-appellant namely Muhammad Hanif from the charges as the prosecution has failed to prove the case against him beyond reasonable doubt.

7. Muhammad Ismail Alizai, Advocate appearing on behalf of convict-appellant namely Muhammad Zarif and contended that convict-appellant namely Muhammad Zarif has been falsely charged as the voluntariness of the confessional statement and truthfulness are lacking in the instant case. He vehemently questioned the time of recording of confessional statement by the Judicial Magistrate and termed it as recorded in routine manner. He contended that the Magistrate was not acquainted with the language of the convict-appellant i.e. Saraiki and failed to substantiate the fact as to how the convict-appellant was led to understand the language at the time of recording confessional statement. He contended that the convict-appellant was not warned by Judicial Magistrate that the statement recorded under section 164 Cr.P.C. would go against him which damage the case of the prosecution. He pointed out the contradiction inter se statements of the witnesses and the other evidence available on file. He contended that the convict-appellant was not shown to be arrested on 24-6-2010 but in fact he was arrested on the same day i.e. 23-6-2010 as this fact has supported evidence. He contended that the FSL is not in line with the ocular evidence and the recoveries made are not in consonance with the case forwarded by the prosecution. He prayed for the acquittal of convict-appellant namely Muhammad Zarif from the charges as the prosecution has failed to prove the case against him beyond reasonable doubt.

8. As against that, learned counsel for State assisted by Messrs Ghulam Hur Baloch and Muhammad Wahid Anjum, Advocates for the complainant contended that the last seen evidence is available on file in the shape of P.Ws. 10 and 11 who have seen the deceased in the company of convict-appellants. They contended that though the complainant has not named the convict-appellants in the F.I.R. but later on acquiring knowledge named them for the commission of offence. They pointed out that there was no intention of complainant to implicate convict-appellants falsely in the instant case. Had it been the intention of the complainant he would have directly charged the convict-appellants in the murasila/ F.I.R. but he has charged them in natural way when got the information about their involvement in the case. They contended that the recovery of blood-stained garments of the deceased, blood-stained earth, weapon of offence axe, chappal, wallet and sum of Rs.600 shows that the convict-appellants are connected with the commission of offence. This evidence is further corroborated the medical evidence. They contended that the confessional statements were recorded in accordance, with law, no discrepancies whatsoever has been shown nor the illegality committed by the Judicial Magistrate. They contended that the site plan fully support the ocular account and the learned trial Court has rightly convicted and sentenced the convict-appellant namely Muhammad Hanif. However, referred to the Criminal Revision No.50 of 2011 for the enhancement of sentence from life to death to the extent of convict-appellant Muhammad Zarif, awarded lesser punishment by the learned trial Court.

9. We have considered the arguments of both sides, in the light of evidence of prosecution, which led us to the following discussion and conclusion.

10. The complainant has not named the convict-appellants in the murasila on the basis of which F.I.R. No.181 was registered on 23-6-2010 and no motive was shown in the murasila. The convict-appellants were not arrested on the next date i.e. 24-6-2010, on the basis of supplementary statement made by the complainant. The source of information for charging the convict-appellants has not been disclosed and the entire evidence is silent to this effect. The convict-appellants namely Muhammad Hanif and Muhammad Zarif have confessed their guilt before the Judicial Magistrate in their statement recorded under section 164, Cr.P.C. on 26-6-2010. Both the convict-appellants were produced before the Judicial Magistrate at the same time. The confessional statement of convict-appellants was shown to be recorded from 1205 hours to 1255 hours on 26-6-2010 as shown in the questionnaire. Question No.5 relates to the custody of police as to how long convict-appellant remained in police custody. The answer to which was 72 hours meaning thereby that the convict-appellants were arrested on the same day i.e. 23-6-2010 and remained in illegal police custody for 24 hours because their arrest were shown on 24-6-2010 vide card of arrest Exh.P.W.17/2. The convict-appellants in reply to question No.6 specifically mentioned that they were slightly tortured by the police. The Judicial Magistrate was supposed to examine the convict-appellants medically. This reply, which is left unattended makes the confessional statement unreliable. The statement of Judicial Magistrate with regard to the language is also not trustworthy as he was not acquainted with the language of convict-appellants i.e. Saraiki language, however, he deposed that he can understand well Saraiki language as he translated to the convict-appellants. In the cross-examination he has also admitted that he cannot speak Saraiki properly. This state of affairs suggests that the confessional statements were not voluntary nor based on truthfulness. No independent advice was available to convict-appellants. Both were brought to the Judicial Magistrate jointly.

11. The confessional statement of other convict-appellant namely Muhammad Zarif was shown to be recorded on 26-6-2010 soon after the statement of convict-appellant namely Muhammad Hanif. He was brought as per certificate at 1300 hours before the Judicial Magistrate i.e. just after five minutes recording statement of convict-appellant namely Muhammad Hanif and his confessional statement was recorded from 1340 hours to 1420 hours. It is also mentioned in the certificate that the convict-appellant Muhammad Zarif deposed in Saraiki which was translated into Urdu. Needless to mention that there was no translator available with Judicial Magistrate at the time of recording statement of convict-appellants. As discussed earlier in the case of convict-appellant Judicial Magistrate was not acquainted with the Saraiki language and admitted in cross-examined that he cannot speak Saraiki properly. In reply to questions Nos.5 and 6 in the case of other convict-appellant the same answers were stated to be given by the convict-appellant Muhammad Zarif and in the same fashion he was neither examined by the Judicial Magistrate nor the statement was made to understand him as the Judicial Officer has translated the statement without the aid of any translator and his own knowledge of Saraiki was poor duly admitted by him. The arrest of convict-appellants also goes beyond the date shown in card of arrest i.e. 24-6-2010. The Magistrate has deposed in examination-in-chief that convict-appellants when brought for recording confessional statement by the police, were taken into protective custody and kept with Naib Court of the court. This shows that the convict-appellants were not assured that they would not be handed over to the police after deposition before the Judicial Magistrate and to this effect no specific question was also put to the convict-appellants, which is of vital importance in such case. The convict-appellants and acquitted co-accused were brought together before the Judicial Magistrate and kept in protective custody of the Naib Court, duly uniformed in the police uniform and the confessional statements were recorded in the presence of other convict-appellant creates doubt about the voluntary nature of the confession and its authenticity and the lapses on the part of the Judicial Magistrate in recording statement cannot be ignored besides the delay in recording the confessional statement which would render the same is illegal.

12. Judicial confession must be confidence-inspiring and voluntary in nature. It is to be seen as to whether there exist any inducement, promise, coercion or the same seems to be true and voluntary. In the absence of its voluntary and convincing nature cannot be based for conviction. No doubt the confessional statement before the Magistrate carries the status of strong piece of evidence unless the same has been proved to be based on truthfulness and voluntary in nature. The Magistrate was supposed to take assistance of the Reader/ Steno-Typist of the court as translator but no such effort has been made in the instant case.

13. There is no corroborative evidence in support of the confessional statement allegedly made by the convict-appellants. The prosecution has cited two witnesses who were examined as P.Ws. 10 and

11. Both of them are introduced as witnesses to have last seen the deceased in the company of the convict-appellants. Both these P.Ws. stated that they stand in the front of shop of one Muhammad Ramzan at night, when Mehdi Hassan Shah, deceased, came there and told them, to go to the lands of Aziz for gossiping. They deposed that they were sitting there in the meanwhile convict-appellants came there. The confessional statement of convict-appellants reveals a contrary version given by them to the effect that they were present in the lands when Mehdi Hassan Shah deceased in the company of Nasir and Rehmatullah came' there. Except these two witnesses there is no evidence in support of the version of prosecution nor the confessional statement has been corroborated by any evidence, even circumstantial. P.W.16 Ghulam Mujtaba Constable 182 Police Traffic, D.I.Khan deposed in cross-examination that he was informed by the accused Hanif that his brother has thrown the case property i.e. axe in lake papu, after 3/4 days of the arrest of accused. It was added that the accused had directed his brother to throw the axe in lake papu, whereas the recovery of the axe was made on the pointation of convict-appellants on 25-6-2010 vide recovery memo Exh.P.W.12/2. P.W.11 happens to be the driver of the deceased and P.W.10 was also interested person having inimical terms with the convict-appellants and as such these witnesses even to the extent of evidence of last seen cannot be relied upon being not confidence inspiring. These P.Ws. 10 and 11 were not examined under section 161 Cr.P.C. in the instant case and there is no explanation to this effect as to why they have not examined and in such situation credibility of a witness is to be looked with serious suspension.

14. The site plan was prepared at the instance of complainant on 23-6-2010. The card of arrest Exh.P.W.17/2 shows the date of arrest i.e. 24-6-2010. They were not even charged on 23-6-2010 for commission of offence. A foot note was shown to be given at the instance of convict-appellants and acquitted co-accused on 25-6-2010 and similarly the recovery memos, vide recovery of blood-stained garments of the deceased, chappal and Rs.600 were made on the same day i.e. 25-6-2010. The confessional statement of the convict-appellants that the amount of Rs.600 taken out from the wallet of the deceased were distributed in equal share to the tune of Rs.300 each, while the recovery of said amount Rs.600 has been shown from the mother of accused which does not stand to reason. The report allegedly made at 0830 hours and the medical report is silent about the time of occurrence, however, the doctor has examined the dead body at 9-00 a.m. P.W.17 Kifayat Hussain S.H.O. Police Station, Paroa stated that F.I.R. was handed over to him in the police station on 23-6-2010 at 8-30 a.m whereas P.W.1 Muhammad Altaf Constable No.1729 of Police Station, Gomal University, D.I.Khan deposed in the cross-examination that murasila was handed over to him at about 11-00 a.m at Gulshan Sadat Colony, meaning thereby that all the proceedings including the medical and postmortem was conducted prior to the receipt of murasila and thereafter in the light of condition of the dead body and other circumstantial evidence, report made which makes the case of convict-appellants highly doubtful. There is no direct evidence to connect the convict-appellants with the commission of offence. The confessional statement of convict-appellants if taken into considera-tion, the convict-appellant Muhammad Zarif was simply shown to be present on the spot and has not participated in the commission of offence in any way nor any role has been assigned to him except to the extent of common intention and the learned trial Court has sentenced him to life imprisonment on this very consideration which is not correct. Sufficient confidence inspiring evidence was needed to prove the common intention but no serious effort has been made by the prosecution to produce evidence of convincing nature to connect convict-appellant Muhammad Zarif in commission of offence with convict-appellant Muhammad Hanif. No act on the part of convict-appellant Muhammad Zarif has been proved to have done in furtherance of common intention. There is no motive to have shared the common intention with the convict-appellant Muhammad Hanif. Vicarious liability cannot be looked unless strong circumstances are available by exhibiting common intention. It is also to be gathered from the act attributed to the convict-appellant Muhammad Zarif as the dominant feature of common intention is the element of participation. As no case has been made out by the prosecution against the principal convict-appellant Muhammad Hanif, therefore, the question of application of common intention in the light of section 34 PPC would not attract in the instant case, in peculiar circumstances.

15. The learned trial Court has not properly evaluated the evidence and swayed by the consideration extraneous to the record available on the file. The evidence has not been thrashed in true perspective and has wrongly sentenced the convict-appellants namely Muhammad Hanif to capital punishment of death and Muhammad Zarif to life imprisonment while co-accused Muhammad Amjad has been acquitted of the charges due to lack of evidence and no appeal has been filed by the complainant/ prosecution against him.

16. For the forgoing reason, we accept both the Appeals bearing Nos.156 and 158 of 2009 and their sentence and conviction recorded by the learned trial Court in the impugned judgment, are set aside and acquit the convict-appellants namely Muhammad Hanif and Muhammad Zarif from the charges levelled against them. They be set free forthwith if not required in any other case.

17. As far as Murder Reference No.17 of 2011 and Criminal Revision bearing No.50 of 2011 are concerned it has become infructuous and accordingly dismissed. MH/412/P Appeal allowed.