P L D 2005 Peshawar 39 (PLP)

7. Important would be the recovery of motor car owned by Zulfiqar (P.W.14). He has not furnished evidence of last seen except that deceased was the driver on his car used as taxi i.e. on hire basis. This recovery was made by P. W. 1 from the house of Zahir who if on the date of recovery of the car in question was not present in the house, was not even later on examined by the police as to how this vehicle was parked in his house and as to who has got it. In the examination‑in‑chief of P. W.1 Tariq Habib, S.‑I. (P.W.1) stated that the two appellants were present in the said house but their presence is not shown in the recovery memo. Exh.PG. Witness to the recovery memo. Exh.PG is Noor Muhammad who is also silent in his Court statement regarding arrest of the two appellants at the time of recovery of the motor‑car. No witness from the public is associated with the recovery of motor car nor to the arrest of the two appellants from the same house. The mere recovery of motor car from the house of Zahir in absence of convincing evidence that the two appellants were found present and arrested, would not advance the case of the prosecution against the two appellants. The arrest of the accused‑appellants is also open to serious doubt because P.W.13 owner of the motor car stated that: "firstly the accused were arrested and later on my taxi motor car bearing No.PNT‑1002 in question was recovered." He further states in his examination‑in‑chief that on 18‑5‑2003 when deceased Jehangir did not return to Rawalpindi he along with brother of the deceased had come to Police Station Gulbahar and found the dead-body of the deceased and that two days thereafter the name of the accused were conveyed to him by the police and that the accused were present in the Police Station at that time, it would mean that appellants were in the custody of the police much before their date of arrest as shown on 26‑5‑2003 because recovery memo. Exh.PG through which motor car was taken into possession is dated 26‑5‑2003. Zulfiqar (P.W.14) who was then posted at Police Station Gulbahar i.e. Police Station within the territorial jurisdiction of which occurrence took place, when asked, in cross as to the arrest of the accused his reply was:‑‑ "I am not aware if accused were arrested on 22‑5‑2003."

8. In the light of above, the date of arrest of the accused‑appellants is not certain nor place of their arrest, therefore, the physical connection of the two appellants with the motor car PNT‑1002 is doubtful.

9. The two appellants have made judicial confessions recorded by Wajid Ali Judicial Magistrate (P.W.8) of Nazir appellant on 2‑6‑2003 and by Fazle Sattar Judicial Magistrate (P.W.9) of Nasrullah appellant on 3‑6‑2003. Reading of the confession of accused‑appellant Nazir would disclose that it was recorded on oath. In a recent judgment delivered by a Division Bench of this Court reported in 2002 PCr.L.J 1072 it was ruled that confession recorded on oath shall be taken out of consideration.

10. Under Qanun‑e‑Shahadat, any confession made but under duress, promise or threat cannot be taken into evidence. Administration of oath to an accused person will amount to putting him under pressure and compulsion and, therefore, would bet taken as statement recorded under duress and force. The confession of Nazir appellant even otherwise is exculpatory where he stated that he and his co‑accused Nasrullah had jointly decided to snatch a motor car from Rawalpindi which they accordingly did. They brought the motor car and the deceased driver to the house of Zahir situated at Gujar Abad where some resistance was shown by the deceased over which Nasrullah appellant took a rope and put the same around the neck of the deceased and strangulated him Moreover, the confession of Nazir appellant was recorded on 2‑6‑2003 while his arrest has been shown on 26‑5‑2003, which date, we have already held is open to doubts.

11. Confession of Nasrullah was recorded on 3‑6‑2003 after delay of nine days. No explanation has been tendered by the police as to why the recording of confession was so delayed. Magistrate recording confession admitted that he only gave 15 minutes time to the accused making confession to think over. Except for printed question we do not have before us sufficient material on record to conclude that confession was voluntarily made when no medical examination was made before recording the confession. The two confessions i.e. Exh.P.W.8/1 and Exh.P.W.9/1 are inconsistent as persons named in the confession of Nasrullah are not named by Nazir appellant and Nasrullah implicates Nazir equally in the commission of crime which is not admitted by Nazir. Both these confessions recorded after sufficient delay and the manner they were recorded, have created substantial doubt in their voluntariness. The most crucial aspect of this piece of evidence would be that neither of the confessors have admitted their arrest from the house of Zahir with the motor car in question. It was stated by Nasrullah in his confession that after 2/3 days of the occurrence they were arrested by the police which occurrence took place on 20‑5‑2003, therefore, again their date of arrest does not correspond to the date given by the Investigating Agency. In these circumstances we are convinced that none of the confessions are worthy of reliance and are, therefore, excluded.

12. Last piece of evidence is the recovery of wrist watch allegedly belonging to the deceased taken by Nasrullah appellant and which was later on taken by the police from the possession of Nasrullah.

13. If the arrest of Nasrullah appellant was made on 26‑5‑2003 and the wrist watch was on the person of accused Nasrullah question would arise as to whey same was not taken into possession on the very date of arrest. Second question would be, if the accused admitted before the police that the wrist watch on his hand was that of the deceased and it was 28-5‑2003 why he did not volunteer to admit the crime until 3‑6‑2003 when his confession was recorded. Wajid Ali Judicial Magistrate (P.W.8) admitted that the I.O. produced before him the wrist watch in question which was not sealed and that simultaneously produced Mst. Tasleem Bibi who later identified the wrist watch. Dummy wrist watches were procured not through any independent source by the Magistrate but the Investigating Officer was asked to procure the same. Therefore, possibility cannot be ruled out that Investigating Agency has manipulated the procurement of wrist watch which is now planted on appellant Nasrullah with allegation that it belongs to the deceased.

14. Mst. Tasleem Bibi (P.W.2) has admitted that only the wrist watch in question having Myron leather strip so there was a significant mark of distinction of the watch in question when particularly the questioned watch and the witnesses, who were to identify the wrist watch, were produced together by the police to the Magistrate. Such identification of the watch is similarly of no help to the prosecution.

15. Some pointation memo. prepared during investigation on the alleged pointation of either of the appellants would be inadmissible in evidence as nothing was discovered pursuant to information given by the accused while in custody of the police.

16. We, therefore, are of the firm view that if on one hand the prosecution has proved the murder of Jehangir (deceased) but on the other they have miserably failed to connect the appellants with the said crime. This appeal is, therefore, allowed. Conviction and sentences of both the appellants are set aside and they are acquitted of the charge. They be set at liberty forthwith, if not required any other case. As we have allowed the appeal against conviction and sentence, the Murder Reference No.7 of 2004 is answered in negative. H.B.T./242/P Appeal allowed.