2020 P Cr (PLP)

SYED MUHAMMAD FAROOQ SHAH, J.

The appellant had been charged by the trial court under section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, VI-1979; tried and convicted under sections 396/109, P.P.C. and sentenced to suffer 10 years' R.1 with fine of Rs.50,000/-, in default whereof to undergo simple imprisonment for six months more. Benefit of section 382-B was extended in favour of the accused. Being dissatisfied with the impugned judgment, recorded and pronounced on 18.09.2018, the appellant has made a prayer to set-aside the same on facts and grounds averred in the memo of appeal.

2. Prosecution story in nutshell is that on 18.11.2014, after receiving information of an unknown corpse, lying at Chattri More on highway/GT road leading from Rawalpindi to Peshawar, the concerned police secured the dead body of a man being murdered through firearm shot. Such report/Murasila (Exh.PA/1) was reduced in writing against unknown culprits. On the same day, the above said Murasila was converted into the FIR (Exh.PA); the appellant and co-accused Khalid Usman were arrested on the same day and on their pointation, snatched motorcar bearing No.LOF-4834 from the deceased was recovered vide memo (Exh.PW8/4). Accused were later on held responsible by Mst. Menhaz Bibi widow of deceased, in her statement recorded on 24.11.2014 under section 164, Cr.P.C. During investigation, confessional statements of apprehended accused were recorded by the concerned magistrate and on completion of usual investigation, challan was submitted against them; however, third accused namely Amjad has been declared proclaimed offender by the trial court vide Order dated 28.03.2018, and the case was ordered to be proceeded against him under section 512, Cr.P.C.

3. On commencement of trial, the appellant pleaded not guilty to the charge and claimed to be tried. During trial, prosecution examined PW-1 Muhammad Arif, who identified the dead body of his brother-in-law namely Ghulam Sarwar son of Mehmood Khan, resident of Rawalpindi, such memo of identification (Exh.PW1/1) was prepared by the concerned police and the dead body was handed over to him; PW-2 Hidayat Ullah/ASI Incharge Police Station Nowshehra Kalan on receiving the Murasila, chalked out the FIR (Exh.PA) and on 19.11.2014 handed over unsealed crime weapon i.e. pistol .30 bore to the investigation officer;PW-02/Fazal Subhan, DSP had conducted investigation partially; deposition of PW-3/Mst Mehnaz Bibi widow of deceased; testimony of PW-4/Dr. Tariq Shah, medical officer; PW 5/Sheraz Tariq, Judicial Magistrate-I Nowshehra; PW-6/Tahir Zameer ASI police station Pabbi recovered the dead body and prepared different memos; PW-7/Head Constable Shah Saud, marginal witness of recovery memo of .30 bore pistol; PW-8/Dilaram Khan SIP, Risalpur, had also conducted the investigation and PW-9 Khanz Ali, LHC of DSP Nowshehra; After examining PWs-10 to 13, marginal witnesses of different memos and formal witnesses, prosecution closed its side. In his statement, recorded under section 342, Cr.P.C, the accused by professing his innocence has emphatically denied the prosecution version with certain clarification.

4. To evaluate the prosecution evidence as well as the impugned judgment, the fallowing points are requires determination and consideration by this court. (i) As to whether on 18.11.2014 at unknown time, the appellant along with co-accused, in furtherance of their commission intention committed the murder of deceased Ghulam Sarwar while snatching the Alto motorcar bearing registration No.4834/LOF and on pointation of the appellants the said motorcar was recovered? (ii) As to whether the impugned judgment is tenable in law?

5. On the above points, the evidence as well as the impugned judgment has thoroughly been scanned with the able assistance rendered by Mr. Hussain Ali, learned counsel representing the appellant and Mr. Arshad Ahmed, learned Additional Advocate General, KPK for the State.

6. Mr. Hussain Ali, learned counsel representing the appellant argued that initially on receiving information of a dead body, the concerned police recovered the same and in initial report i.e. Murasila unknown accused were held responsible of murder. The dead body was dispatched for post-mortem, which shows no duration and unknown time. The confessional statement of the appellant/ accused was recorded after three days of his remained in custody i.e. 4th day of occurrence. Incriminating weapon was recovered on pointation of juvenile accused/ appellant Khalid Usman. As per exculpatory confessional statement, juvenile accused fired upon the driver of taxi while sitting on rear seat i.e. very close range but the M/O had not shown cheering or blackening around the fatal injury. Learned counsel next argued that FSL report reveals that the incriminating weapon was dispatched to the laboratory after inordinate delay i.e. on 27.11.2014, without any plausible explanation. Mr. Hussain learned counsel argued that widow of the deceased not being an eye-witness, initially involved the accused due to suspicion but later on knowing their innocence, exonerated them in commission of the alleged offence; that identical confessional statement for both accused had been recorded having no legal sanctity; so much so that the deposition of concerned magistrate who recorded the confessional statement had been used in both cases without any alteration. Learned counsel contended that after completion of deposition of PW Mst. Mehnaz Bibi, widow of the deceased, she was again summoned after span of two (2) years and was declared Hostile by the prosecution and without seeking permission from the trial court, she was cross-examined. Mst. Mehnaz Bibi being legal heir of the deceased, not only exonerated the accused in commission of offence but stated that she had patched-up her differences with the accused after knowing their innocence. Learned counsel argued that no legal coverage can be extended to a statement of declaring a witness hostile after span of two years; that the blood stained clothes have not been dispatched to the lab: for DNA test i.e. for grouping or matching. As per learned counsel the investigation was engineered in a manner that innocent persons have been made escape-goat; that the alleged snatched motorcar was neither produced before the Court for identification purpose nor registration book showing the ownership had been placed on record; moreso, the recovered incriminating weapon has not been sent to the armour for clarification that as to whether the said weapon has been used in commission of offence or otherwise. It is argued by the learned counsel for the appellant that compromise having arrived at between parties and the sole legal heir of the deceased stated before the Court about the compromise arrived at between the parties, though the offence was not compoundable but since both the parties have amicably settled down their differences and had resolved the dispute, therefore, in the interest of justice, for betterment and future cordial relations in between them, the court can consider the said factor in favour of the appellant. In support of his contentions, learned counsel placed reliance on the case of Ijaz and another v. Mst. Manadia and another (PLD 2016 Peshawar 26), while citing the case of Abdul Samad and another v. The State and another (2018 YLR 922) decided by learned Division Bench of Federal Shariat Court of Pakistan, learned counsel argued that in similar circumstances the Federal Shariat Court extended benefit of doubt to the accused as a matter of right and set aside conviction and sentence awarded to them by the trial Court on the strength of retracted confessional statement. While placing his reliance on reported case of Muhammad Ismail v. The State (2017 SCMR 989), learned counsel argued that in the cited ruling the Hon'ble Supreme Court of Pakistan set aside the death sentence awarded to the accused persons on the strength of judicial confession allegedly made by the accused persons/appellants before magistrate, such retracted judicial confession could not suffice all by itself for recording or upholding the accused persons convictions. Learned counsel has also placed reliance on the cases of Bahadur Khan v. The State (PLD 1995 SC 336) and Gulistan and others v. The State (1995 SCMR 1789). On the point of alleged recovery, lacking the requisite standard could not be pressed against the accused to connect him with the commission of the crime and judicial confession recorded after unduly delay has no evidentiary value and cannot be relied upon. Reliance has also been placed on the cases, reported as The State v. Mehboob-ur-Rehman (1995 PCr.LJ 600), Muhammad Israr and another v. The State (2002 PCr.LJ 1072) and Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274).

7. Conversely, Mr. Arshad Ahmad, learned Additional Advocate General, KPK for the State without controverting the submission made by the learned counsel for the appellant or to distinguish the aforementioned citations relied upon by the learned counsel in favour of the appellants, supported the impugned judgment and submits that the confessional statement being recorded by the concerned Magistrate after keeping all legal formality can be used for awarding convictions to the accused persons.

8. It is an admitted position that this is a case of unseen occurrence; initially, the case was registered against unknown culprits and subsequently, after recording the statement of widow of deceased Mst. Mehnaz Bibi, the appellant was apprehended and on his pointation robed motorcar was secured by the police.

9. PW-3/Mst. Mehnaz Bibi, widow of deceased Ghulam Sarwar, being star witness of the prosecution, stated in examination in-chief, recorded on 20.02.2011 that she was informed by the local police regarding murder of her husband Ghulam Sarwar; she along with her brother visited the police station for receiving the dead body, where she charged the accused persons. She has further stated that, "The accused facing trial and their family with the intervention of elders of the locality have now satisfied us regarding their innocence. The parents of Ghulam Sarwar deceased are already dead. I and my family would have got no objection on the acquittal of the accused facing trial". She was neither declared Hostile by the prosecution nor cross-examined. However, after more than two years period, on request of prosecution, she was again summoned by the learned trial Court for declaring her Hostile and recording her cross-examination. In cross-examination, conducted by the prosecution, Mst: Mehnaz had categorically stated that both accused facing trial are unknown to her and she do not know the place of their residence and other particulars; further stated that she patched up the matter privately without receiving any compensation and she do not know that the accused facing trial had confessed their guilt before the competent Court. By stating so, she exonerated the accused persons in commission of the offence. A perusal of record transpires that after passing a considerable period of two years, she was again summoned for the purpose of declaring her hostile. Such conduct of the prosecution as well as learned trial Court is not appreciable as an unfavorable witness is not necessarily a hostile witness. Statement of a witnesses in direct conflict with the story setup by the police could never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined; more particularly, she being not an eye witness had involved the appellants in commission of charged offence due to suspicion, and later on due to amicable settlement she had exonerated them in commission of the offence. The sole testimony of PW-3/ Mst. Mehnaz Bibi appears to be confidence inspiring, was sufficient to be relied upon in favour of the accused, in the interest of safe criminal administration of justice. Furthermore, after declaring her hostile, the cross-examination of Mst. Mehnaz Bibi was recorded on 03.03.2018, without obtaining leave of the Court as required by Article 150 of the Qanun-e-Shahadat Order, therefore, her cross-examination recorded after two years by the prosecution itself is not properly and legally obtained as the cross-examination of the hostile witness without the permission of the Court goes in favour of accused persons in whose favour she deposed and whatever benefit arises out of it be extended in favour of the accused persons. It is also evident from the record that after cross examination of prosecution witness by the State Counsel, opportunity of cross-examination was not afforded by the defence. Of course, it is not a healthy practice for the public prosecutor to examine the witness and after closing the evidence of a witness unfavorable to the prosecution, the inference of the hostility of the witness had been drawn merely with the reason of not supporting the prosecution.

10. It is not out of context to mention that the learned trial judge in non-compliance of section 367 of the Criminal Procedure Code did not draw the point or points for determination or the findings with reason for the decisions in the impugned judgment. It shall be advantageous to reproduce hereinbelow section 367, Cr.P.C.:- S. 367.Language of judgment: contents of judgment. (1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the Court, or in English; and shall contain the point or points for determination, the decisions thereon and the reasons for the decisions; and shall be dated and signed by the presiding officer in open court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall be signed by him. Section 367, Cr.P.C. provided that a judgment should contain the point or points for determination, the decisions thereon and the reasons for the decisions. It is therefore, the duty of a judge to ensure not only that he dispenses justice but the justice also seems to have been done. Provision of this section is mandatory and intended to constitute a substance as distinguished from mere form of judgment. Judgment not showing the points for determination or decisions thereon is not a judgment in the eyes of law.

11. Insofar as, the confessional statement of the appellant is concerned, it is an admitted position that almost identical confessional statement of co-accused was reduced in writing; moreso, ditto copy of statement of PW-5 Sheraz Tariq Judicial Magistrate-I, Nowshehra had been pasted to use it against juvenile co-accused. The confessional statement of the co-accused appellant Imran Khan will reveal that it is exculpatory in nature, even if this confessional statement is admitted to be correct then it seems that it had not been recorded voluntarily because the said confessional statement is not read over to the accused in Pashtu language; he being an illiterate and Pashtu speaking could not understand as to what had been recorded by the Judicial Magistrate in Urdu. The Judicial Magistrate never stated in his statement that he had read over the confessional statement to the accused in Pashtu language and after admitting the same to be correct, put his thumb impression on it. The confession was retracted and was corroboratory to other evidence on material point, therefore the .confessional statement would be inadmissible and loses credence to form the sole basis of confession of the other accused, it is also the case of the prosecution that the accused were arrested on that very day of incident i.e. 18.11.2014 and their confessional statements were recorded on 21.11.2014 i.e. after three days detention in police custody.

12. Material contradictions and inconsistent evidence, reproduced above is not inspiring confidence beyond reasonable doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of accused as a matter of right. These are the reasons of short Order announced today in open court, whereby on acceptance of appeal, the appellant was acquitted from the charge. MH/33/FSC Appeal allowed.