1997 P Cr (PLP)

S. IBNE ALI, J.

The accused-appellant Elam Jan was tried and convicted under section 302, P.P.C. and sentenced to life imprisonment with a fine of Rs.20,000 or in default to undergo further 3 years' R.I. The appellant was further convicted under section 13, Arms Ordinance and sentenced to 6 months' R.I. with a fine of Rs.1,000 or in default thereof to undergo one months' R.I. Both the sentences were however ordered to run concurrently, by the learned trial Court vide its judgment, dated 26-5-1991.

2. On 16-5-1993 the appeal of his c6-convicted appellant (Criminal Appeal No. 12 of 1991) Mst. Zafrana came up for hearing before us. After hearing the learned counsel for the parties and scrutiny of the evidence it came to light that it was a case of no evidence and she was ultimately acquitted vide our detailed judgment, dated 16-5-1993. Since the conviction of both the accused namely Mst. Zafrana and Elam Jan was based on no evidence, therefore, we gave a suo motu notice to the State and directed Mr. Dost Muhammad Khan, Advocate to assist the Court in the matter. Meanwhile Elam Jan accused-appellant also sent a Jail Criminal Appeal No.9 of 1993 through Jail Authorities seeking condonation of delay in filing the appeal. In the interest of justice we condoned the delay and heard the appeal on merit.

3. The prosecution story briefly stated is that Sher Muhammad deceased husband of Mst. Zafrana acquitted accused was shot 'dead on the night in between 9/10th May, 1988 in the fields of Khan Haji Gul situated within the limits of Police Station Saddar Bannu. The report about the occurrence was lodged by the co-acquitted accused Mst. Zafrana on 10-5-1988 at 9-00 hours in the shape of Murasila Exh. P.A., which was incorporated into F. I. R. No. 163 in Police Station Saddar Bannu on the same day, wherein she stated that the deceased was her husband and she had given birth to four sons and a daughter from the wedlock with the deceased Sher Muhammad. She further stated that on account of illness she had been living in her parent's house in village Beri Khel Mandan for treatment of the last about two months, where she was informed by one Muhammad Ali about the murder of her husband Sher Muhammad Ali about the murder of her husband Sher Muhammad deceased. She at that time charged in the F.I.R. Mir Kaboot and Mir Laiq for the murder of her husband. Motive for the offence as alleged by her in the F.I.R. was a dispute over some landed property between the deceased and the accused Mir Kaboot and Mir Laiq.

4. During the course of investigation it was disclosed that the complainant had falsely charged Mir Laiq and Mir Kaboot in the case and she had illicit liaison with Elam Jan accused and in order to clear their way, they in consultation with each other have done away with the deceased.

5. Elam Jan made a confessional statement before the Magistrate in which he admitted to have committed the murder of the deceased Sher Muhammad at the instance of co-accused Mst. Zafrana. In his statement before the Court he retracted from his confessional statement and stated that the same was extracted from him by the police under duress and coercion in the course of torture. 6 In support of its case the prosecution produced as many as 8 witnesses

7. P.Ws.l, 2, 3, 4 and 6 are the official witnesses. They have stated in detail the proceedings, which they have conducted having investigation.

8. P.W.5 Haq Bayaz was the Chowkidar of the Torka Bazar. He stated that the deceased Sher Muhammad was water carrier in the said Bazar and on the night of occurrence at about 9/9-30 he had seen the deceased in the company of Elam Jan accused in the hotel of one Daraz Khan while they were taking tea. Thereafter the accused and the deceased smoked Charas outside the hotel and then both of them went to the hotel of one Mazullah Khan situated at a distance of about 10 paces from the shop of Daraz Khan. He stated that he has also seen the deceased and the accused in the hotel of Mazullah Khan at about 10-30 p.m. and at about 11-00 p.m. he heard the report of fire shot and on the next morning he learnt that Sher Muhammad was lying dead in a vial. In the cross-examination he stated that he has got no relation with the discharged accused Mir Kaboot and Mite-"Laiq. Beside it, no material question was put to him in the cross examination.

9. Abdur Rahim Khan, S.H.O. (P.W.7) investigated the case, arrested Mir Kaboot the discharged accused and Elam Jan appellant on 13-5-1988. He also arrested Mst. Zafrana on 15-5-1988. He prepared the site plan Exh.P.Q.I/2 showing the house wherefrom the weapon of offence (pistol Exh.P.8) was recovered, which was taken into possession vide memo. EXh.P.0.1/1. He produced Elam Jan appellant before the Magistrate for recording the confessional statement. The confessional statement is Exh. P.Q. It was duly recorded by the Magistrate (P.W.4). The pistol Exh.P.8 was sent to the Fire arm Expert for opinion and report, which is EXh.P.R.I/2. The result of the Chemical Examiner in respect of blood-stained earth and clothes of the deceased is Exh.P.R.I/1. The witnesses were also examined by this witness under section 161, Cr.P.C. and after completion of the investigation submitted complete challan against the accused in Court. He stated that Mir Kaboot Khan and Mir Laiq Khan charged in the F.I.R. by Mst. Zafrana were discharged under section 169, Cr.P.C.

10. The prosecution also examined Jehangir Khan, M.I.C. (P.W.4), who had recorded confessional statement of Elam Jan appellant on 15-5-1988, which is Exh. P.Q. According to this witness he observed all the legal formalities before recording the confessional statement of the appellant. He also read over the confessional statement to the appellant, which bears the thumb-impression of the appellant. The certificate to the confessional statement is also in the handwriting of the Magistrate, which is Exh.P.Q.l/1.

11. After recording evidence of the prosecution witnesses the appellant was examined under section 342, Cr.P.C. He denied the charges levelled against him and retracted from his confessional statement. He stated that the discharged accused namely Mir Kaboot and Mir Laiq were the step-brothers of the deceased and very important political personalities including an M.P.A. prevailed upon the police to save the skin of Mir Kaboot, they are strong supporters, got diverted the course of investigation and falsely involved the appellant. He further stated that he was arrested by the Investigating Officer a day prior to the date of arrest shown in the arrest card and during his confinement he was maliciously tortured as a result of which he developed the signs of vomiting, tenderness and fever and when his condition became worst he was shifted to casualty of Civil Hospital, Bannu, where he was kept for two days under observation and treatment. When he came into senses he was again shifted to the police custody and under pressure of the police the confessional statement was procured from him. He pleaded innocence. He also denied the recovery of pistol at his instance, which is according to the appellant a dishonest fabrication by Abdur Rahim Khan, S.H.O. He also denied the recovery of empty of .12 bore from the spot. He further stated that he is more than 50 years of age and he is impotent. He stated that he asked the Investigating Officer for his medical examination but with no result. He denied to have any relations with Mst. Zafrana. He did not wish to produce defence evidence or to give statement on oath in his defence under section 340(2), Cr.P.C.

12. We have heard Mr. Dost Muhammad Khan, Advocate learned counsel for the appellant, who was appointed by the State at State expenses and learned Assistant Advocate-General on behalf of the State. Record has been perused.

13. The prosecution has pressed into service the following circumstantial evidence against the appellant:-- (1) Confession of the appellant, which is retracted. (2) Recovery of empty of .12 bore. (3) Recovery of crime pistol at the instance of the appellant. (4) Finally the last seen evidence in the company of Sher Muhammad deceased.

14. We have already acquitted Mst. Zafrana co-accused from tile charge of the murder of Sher Muhammad deceased husband of the lady co-accused by observing that no legal evidence was available against her for her conviction. While examining the record in the case of the acquitted lady accused Mst. Zafrana we found that the case against the present appellant, who had not appealed against conviction was also very weak and no conviction could be based on that evidence, therefore, we issued a suo motu notice to the State for examining the record. We also issued a notice to the Jail Authorities to produce the appellant before us. When the appellant was produced before us he filed appeal against his conviction with an application for condonation of delay. As stated earlier the delay was condoned. He submitted before us that he is a poor man and could not afford the services of a counsel and for this reason and the reason that he was warned by the police that if he files an appeal against his conviction it will be enhanced and he will be given death sentence, therefore, he did not file appeal in time.

15. Now coming to the confessional statement of the appellant, which has now been retracted by him, we observe that conviction can be based on a retracted confession provided it is proved to be voluntary and secondly it is I corroborated by independent evidence either direct or circumstantial. In the light of the above we have found out that the confessional statement of the appellant is not voluntary, because from the record it has been proved that ht was tortured by the police as a result of which he had developed the signs of vomiting', tenderness and had fever and therefore, he was shifted to the Casualty Department of Civil Hospital Bannu, where he remained under treatment for many hours. Appellant in his statement under section 342, Cr.P.C. had explained all what had happened to him and he had also referred to the medical report and brought on file a copy of the report, which is Exh.D.2. In such circumstances, it is difficult to say that the confessional statement of the accused was voluntary. In the first instance two persons were charged in the F.I.R. namely Mir Kaboot Khan and Mir Laiq step-brothers of the deceased by Mst. Zafrana widow of the deceased. According to the appellant they were let off by the police at the instance of an M.P.A. and the influential persons of the area and they falsely involved the appellant and Mst. Zafrana.

16. The learned counsel for the appellant took us through the order which was passed by the Magistrate under section 169, Cr.P.C. while discharging accused Mir Kaboot and Mir Laiq. He had only initialled the report of the Investigating Officer. This order of the Magistrate is not at all a judicial or speaking order. All it would show is that the Investigating Officer was only to favour accused Mir Kaboot and Mir Laiq and nothing else to give a good clue to the murder of the deceased. In the absence of any plausible evidence, we are constrained to hold that the appellant just made a scapegoat and the story of illicit relations between the acquitted accused Mst. Zafrana and the appellant was manufactured to make out a case against the accused on the so-called weak type of evidence.

17. While looking for the corroboration, the prosecution has relied on the recovery of the pistol (weapon of offence at the instance of the appellant). In order to see whether the recovery of the pistol Exh.P.8 was genuine or not, we examined the statement of Jamal Ahmad (P.W.6). He was serving as Instructor in Government College of Education Ghoriwala, for the last 26 years. He denied the recovery of the pistol Exh.P.8 from the house at the instance of the appellant. He stated that he had seen the pistol in the hand of the S.H.O. and was not recovered from the possession of anybody else in his presence. He also stated that he did not enter the house wherefrom the pistol was allegedly recovered. He stated that he had seen it in the hand of S.H.O. only. He further stated that the memo. was signed under the pressure of the S.H.O. as he threatened the witness for the use of third degree method, if the witness did not act in accordance with his instructions. The learned counsel submitted that the site plan of the house wherefrom the weapon of offence (pistol) was recovered does not show as to whom the house belongs. The points where the police and the witnesses were present are also not shown in the site plan and it is also silent about the inhabitants of the house nor anybody has been cited as a witness from the house. Nothing has been brought on record to show as to how the appellant got access to the house especially in the absence of any relationship with any of the inmate of the house. The appellant was represented by a pauper counsel and when Jehangir Khan, Magistrate was examined on 12-5-1990 the counsel of the acquitted lady accused was not present. Her counsel had applied for adjournment of the case. A reference to the evidence on record will show that P. Ws. 1 and 2 were examined in the absence of the counsel of the appellant as at that time no pauper counsel was engaged for him. The pauper counsel was appointed on 17-3-1990. It is also a matter of record that the crime empty was recovered from the spot on 10-5-1988 but it was not kept in safe custody in Muhafiz Khana properly sealed. The pistol was recovered on 14-5-1988 and after a period of two months the pistol and the empty were sent to the Fire-arm Expert from the Police Malkhana. The delay caused in sending the weapon of offence is therefore, fatal and no reliance in these circumstances can be placed on the opinion of the expert.

18. The confessional statement of the appellant was recorded on oath, which is inadmissible in evidence. The recovery of the pistol was made on 14-5-1988 and thereafter, in confessional statement of the appellant no mention is made that the pistol was recovered at his instance from the place as shown by the Investigating Officer in the site plan. It has been said in the confessional statement that the pistol was purchased by the appellant for Rs.400, but the police failed to trace out the person from whom it was purchased. It was the duty of the Investigating Officer to have traced out whether the appellant purchased it from a dealer or from any other person. The prosecution case is that the acquitted lady accused and the appellant were committing sexual intercourse with each other but the learned trial Court came to the conclusion that this charge has not at all been proved against both the accused. Thus, the main charge was that the appellant and the acquitted accused had developed illicit relations and in order to remove the hurdle in their way they murdered the deceased. This charge was however, not proved. One therefore, wonders as to on what other hypothesis the appellant can be held responsible for the murder of the deceased.

19. P.W.5 Haq Bayaz had allegedly seen the deceased and the appellant in each other's company before the occurrence. His statement was recorded on 11-5-1988. Ghulam Qasim, Investigating Officer, first went to the spot and remained there till evening. According to this witness very curiously, the Investigating Officer did not examine P.W.5 before proceeding to the spot nor the witness utter a single word to him that until after his completion of the spot inspection. This casts doubt on the integrity of P.W.5 that he was a truthful witness. In cross-examination the witness stated that he was not examined by the police. It is also in the prosecution story that the appellant and the deceased were seen in the Hotel of Mazullah and Daraz Khan, but their statements have not been recorded in order to show that they had seen the appellant and the deceased together at a particular time before the occurrence. These two persons were the most crucial witnesses and ought to have been examined. The record shows that the Hotel where the appellant and the deceased were allegedly seen together is at a sufficient distance from the place where the dead body of the deceased was lying. In order to rely on such evidence it must be proved that the accused was last seen in the company of the deceased at a short distance from the place of occurrence immediately before the commission of the offence. The learned counsel submitted that the distance between the Hotel where the deceased and the appellant were allegedly seen and the Banana Orchard, where the dead body was recovered is 2/3 miles. The learned State Counsel was unable to contradict it.

20. From the above facts it is evident that no case is made out against the appellant. The confessional statement is neither voluntary nor admissible in evidence as it has been recorded on oath. The recovery of weapon of offence is highly doubtful. Moreover, it was not kept in safe custody by the Investigating Officer. The pistol and the empty were sent to the expert after a delay of two months, which has not been properly explained by the Investigating Officer. Finally the last seen evidence is not worth credence. For the above reasons the instant appeal is accepted, the conviction and sentence of the appellant is set aside. He is acquitted of the charge levelled against him and he shall be released forthwith if not wanted in any other case. Hereinabove are the reasons for our earlier short order. N.H.Q./2063/P Appeal accepted.