2002 P Cr (PLP)

TARIQ PARVEZ KHAN, J.‑‑‑-- Abdullah now appellant, on 28‑1‑1997 reported to the police that while he was present in his house and his deceased father Abdul Sattar had gone to offer `Fajr' prayers, somebody informed him about the murder of his father. In the report no one was charged. 2 During investigation the police arrested the present appellant on 15‑6‑1997, who was initially a complainant. On the same day accused appellant is said to have led the police party to the recovery of alleged memo. Exh.P.W.7/1. On the following day i.e. 16-6-1997 judicial confession Exh. P. W .17/1 is said to have been recorded by Muhammad Shoaib Khan (P.W.17).

3. After conclusion of the trial learned trial Judge while relying on the confession came to the conclusion that appellant is guilty of offence of 'Qatl‑e‑Amd' of his father and sentenced him to life imprisonment with a fine of Rs.30,000, out of which Rs.20,000 on recovery, are payable to legal heirs of the deceased.

4. We have gone through the entire evidence of the case and found that except the aforesaid confession, there is no evidence against the appellant because although three empties of .30 bore were recovered from the spot on the day of occurrence and such empties were then sent to the Fire‑Arm Expert for comparison on recovery of alleged pistol at the pointation of the accused‑appellant, but according to the Expert's Report Exh,P.W.15/3, the empties have not wedded with the pistol.

5. When there is no other evidence against the appellant except the confession. the Court would scrutinize such confession with more dare and caution. It is to satisfy the mind of the Court that such confession was not only true but was also voluntarily made, where a confession is found not to be true but in voluntary or where there is a voluntary confession but untrue, such confession cannot be legally taken into consideration.

6. In this case the perusal of confession duly certified by the recording Magistrate indicates that accused was produced before the recording Magistrate by Liaqat Ali Khan, A.S.‑I. Said Liaqat Ali Khan, A.S.‑I has appeared as (P W 4) and he has deposed nothing about production of the accused. According to Sardar Muhammad Khan, S.‑I., the then S.H.O. of Police Station Zaida, it was he who had produced the accused for recording confession. His such statement is denied by the Magistrate. According to Muhammad Khan, A.S.‑I. (P.W.15), after the confessional statement of the accused was recorded, the accused was handed over to him and it was he who took him to the judicial lock‑up, whereas per statement of Muhammad Shoaib Khan (P W.17), the Magistrate, accused was taken to judicial lock‑up by the Naib-Court.

7. When the very fact as to who has produced the accused for recording confession and the fact that as to who has then taken the accused to judicial lock‑up are not only in doubt but are contradicted by each other, such confession cannot be held to be voluntarily made confession. As far as truth of the confession is concerned, three co‑accused mentioned therein have been extended benefit of doubt. Also that if such confession is supported by medical evidence or corroborated the weapon used for the commission of the crime, both such facts were well in knowledge of the police before hand as by the time confession was being recorded, three empties of .30 bore had been recovered and post‑mortem conducted. For reasons stated above, we are of the view that the confession is not only unvoluntary but also is untrue. Abdul Karim. brother of the appellant, son of the deceased, who is present in Court, has also stated that he is the only major son of the deceased. He and his ailing mother do not want to prosecute the appeal. We accordingly allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charges. He shall be released forthwith if not required in any other case. H.B.T./519/P Appeal allowed.