P L D 2007 Lahore 324 (PLP)

MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.

Hafiz Muhammad Arshad appellant was tried for the murder of Mst. Tehmeena aged seven years in case F.I. R. No.106 of 2004 dated 14-4-2004 for the offences under sections 302/109, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 registered at Police Station Muridke, District Sheikhupura by the Special Judge Anti-Terrorism Court No.III, Lahore who vide judgment dated 17-5-2006 convicted the appellant under section 7(a),ATA, 1997 read with section 302, P.P.C. and awarded him death sentence. The appellant was also directed to pay compensation amounting to Rs.2,00,000 or in default whereof to undergo six months' S.I.

2. Calling in question the impugned judgment appellant filed Criminal Appeal No.890 of 2006 while the trial Court has made a reference (Capital Sentence Reference No.18-T/2006) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this judgment.

3. Succinctly the prosecution case was contained in F.I.R. lodged by Muhammad Riaz (P.W.7) complainant is that on 13-4-2004 at about 3-00 p.m. his minor daughter Tehmeena Riaz aged about 7 years left her house for taking tuition and when she reached in street Girjawali some unknown persons injured her by causing chhurri blows. Stated along with his relatives and other respectable, complainant removed Mst. Tehmeena Raiz to Tehsil Hospital and on 14-4-2004 the injured was referred to Mayo Hospital, Lahore where on the same day she later on succumbed to the injuries.

4. During the investigation appellant was arrested on 17-5-2004 and on 24-5-2004 appellant led to the recovery of blood-stated chhurri P.1 and thereafter the investigating agency on completion of legal formalities submitted challan before the trial Court where prosecution produced fifteen witnesses to prove the charge against the appellant. Nasir Ahmad P.W.1 and Amjad Ali P.W.2 deposed that on 21-4-2004 the appellant confessed his guilt before them stating that he had committed the murder of Mst. Tehmeena on the asking of Imdad Hussian who had asked for human blood to impart the knowledge of spiritual heeling to him (appellant). Muhammad Akhtar P.W.3 and Muhammad Azeem P.W.13 deposed that in their presence appellant led to the recovery of chhurri P.1 from near the bank of canal after digging out the earth. Muhammad Riaz Constable P.W.4 took the dead body to the mortuary for post-mortem examination and later on handed over the last-worn clothes of the deceased to the Investigating Officer. Shaukat Ali H.C., P.W.5. recorded formal F.I.R. Exh.PD/1 on the basis of complaint Exh.PD. This witness also kept the sealed parcels in the Malkhana for safe custody Hameed-ud-Din Chishti, Draftsman P.W.6 prepared the scaled site plan Exhs.PE and PE/1. Muhammad Riaz P.W.7 (complainant) deposed on the same lines as mentioned in the F.I.R. Abrar Khan; H.C. P.W.8 kept the sealed parcel in the Malkhana and later on sent the same to the relevant office. Syeda Sarwat Mumtaz Civil Judge/Judicial Magistrate P.W.9 recorded the confessional statement of the appellant under section 164 Cr. P.C. Dr. Mazhar Abbas P.W.10 deposed that after the death of Mst. Tehmeena Riaz he issued death certificate Exh.PM Dr. Farida Sheraz Warraich P.W.11 conducted post-mortem examination on the dead body of Tehmeena Riaz deceased and observed three stab wounds on her person. Dr. Muhammad Umar Fazal P. W.12 prepared the death certificate Exh.PM on the instructions of Dr. Mazhar Moeen Ashraf Inspector P.W.14 and Ahmad Yar S.I. P.W.15 conducted formal investigation in this case. On 17-5-2004 Moeen Ashraf Inspector P.W.14 recorded the statement of the eye-witnesses and arrested the appellant. This witness also recovered chhurri P.1 at the instance of the appellant. On 25-5-2004 he sent the accused to judicial lock up and thereafter produced the accused before the Court of Illaqa Magistrate where the accused made confessional statement and after completing the investigation submitted challan.

5. Trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question why this case against you and why the P.Ws have deposed against you? The appellant replied as under: - "It was a blind murder in which the local police had no clue of the real culprits. Under the pressure of their higher officers I was falsely implicated in this case because of political rivalry. P.W. 1 and P.W.2 have falsely deposed against me for the same reason, whereas the police witnesses were compelled by their officers to depose falsely against me."

6. Trial Court after appraisal of evidence available on record, vide judgment dated 17-5-2006 convicted and sentenced the appellant as narrated earlier.

7. During the earlier trial appellant was convicted and sentenced to death by the trial Court (Special Judge ATA) vide judgment dated 5-3-2005 Appeal against the said judgment (Criminal Appeal No.367/2005 and M.R. No.33-T/2005) was allowed vide judgment dated 5-3-2006 and the case was remanded back to the trial Court for the re-examination of certain witnesses whose statements were not recorded in accordance with law and thereafter the trial Court in compliance of the said observation of the appellate Court re-examined Nasir Ahmad (P.W.1), Amjad Ali (P.W.2), Muhammad Akhtar (P.W.3), Syeda Sarwat Mumtaz (Civil Judge) P.W.9 along with Moeen Ashraf D.S.P. (P.W.14) as well as the appellant under section 342, Cr.P.C. and vide impugned judgment has convicted and sentenced the appellant as narrated earlier.

8. Learned counsel for the appellant while challenging the legality of the impugned judgment submitted that the entire case of the prosecution is mainly based upon the judicial confession of the appellant but this piece of evidence could not be relied upon because the learned Magistrate who had recorded the said confessional statement never complied with the legal formalities; that the bare perusal of the data available on record reveals that the said statement was obtained under duress and coercion and thus the same could not be taken into consideration for upholding the conviction of the appellant in the circumstances of this case. Learned counsel further submitted that as far extra-judicial confession of the appellant is concerned, both the witnesses namely Nasir Ahmed P.W.1 and Amjad Ali P.W.2 could not be relied upon because of their dubious character and unnatural conduct at the time allegedly the appellant had confessed his guilt before them. With regard to recovery of crime weapon i.e. blood-stained chhurri at the instance of the appellant, it was submitted that this piece of evidence was tailored during the investigation just to strengthen the prosecution case. While concluding his arguments learned counsel submitted that the present case is nothing but a pack of lies and the impugned judgment could not sustain in the eye of law. Conversely, learned Public Prosecutor while supporting the impugned judgment vehemently opposed the arguments advanced by learned counsel for the appellant.

9. After hearing learned counsel for the parties and perusing the record, we have observed that the entire case of the prosecution rests upon the circumstantial evidence i.e. Extra-judicial confession coupled with the judicial confession of the appellant and the recovery of blood-stained chhuri at the instance of the appellant during the investigation of this case.

10. On 13-4-2004 at about 3-00 p.m. Mst. Tehmeena Riaz a young girl aged seven years was found lying in an injured condition in the street near the house of complainant (father of the deceased). The injured was removed to Tehsil Hospital and from there to Mayo Hospital, Lahore on 14-4-2004 where she died and this case was registered against unknown culprits. During the investigation on the basis of the statement of Nasir Ahmad (P.W.1) and Amjad Ali P.W.2, it came to light that the appellant had caused sharp-edged weapon injuries to Mst. Tehmeena Riaz. Statedly on 21-4-2004 at 7.-00 p.m. the appellant had confessed his guilt before them in the house of Amjad Ali (P.W.2) and thereafter appellant was arrested in this case on 17-5-2004. We have observed that none of the said witnesses made any attempt to apprehend the appellant when he had confessed his guilt before them nor anyone of them informed the complainant or the police on the same day but appeared before the police on the next day and there is no explanation as to why these witnesses kept the secret with them for many hours. We have also observed that none of the said witnesses is a person having a position to put pressure on the complainant to get pardon for the appellant and thus there was no occasion for him (appellant) to appear before these witnesses to confess his guilt. It is also well-established that such-like evidence is a very weak type of evidence which is normally created during the investigation when the investigating agency fails to get hold of the culprit due to non-availability of any direct evidence and in the absence of any independent corroborative piece of evidence it is not safe to rely upon this kind of evidence. In the circumstances of this case we find much force in the arguments of the learned counsel that this part of the prosecution case is not worth reliance. As far evidence of recovery of crime weapon at the instance of appellant i.e. blood-stained chhurri is concerned, we have observed that during the recovery proceedings no independent witness of the locality was made to join the proceedings, the said blood-stained chhurri was also not sent to the office of Chemical Examiner for the report qua the origin of blood. Similarly according to the prosecution case appellant was apprehended after more than one month of the occurrence and he had ample time to wash out the blood-stains from the chhurri/cutter as well as to destroy the same, thus the said recovery at the instance of appellant after such a long time from the bank of canal is repellant to common sense. The last and important limb of the prosecution case is the judicial confession of the appellant allegedly made by him before Syeda Sarwat Mumtaz Civil Judge/Judicial Magistrate (P.W.9) on 25-5-2004. The learned Magistrate after asking certain questions i.e. Exh.TH recorded the statement of the appellant which is Exh.PK.

11. On the other hand while making statement under section 342, Cr.P.C. appellant has specifically stated that he was never produced before any Court for making confessional' statement. The relevant portion of the same reads asunder:- "It is totally incorrect. I never appeared before any such Court to make any confessional statement. In fact having obtained thumb-impressions on blank papers, my confessional statement was fabricated by the local police to be produced before the Court." It is well-settled that a retracted confession either judicial or extra-judicial can be relied upon to convict a person on the charge of capital sentence provided the same is truthful, confidence-inspiring and also qualifies the test of voluntariness. (i) Manjeet Singh v. The State (PLD 2006 SC 30 (ii) Asif Mehmood v. The State (2005 SCMR 515), but after going through the record of this case, we are of the view that the said retracted judicial confessional statement of the appellant was neither brought on the record after complying with all the legal formalities nor the same qualifies the test of voluntariness. The confessional statement of an accused can be recorded by the Magistrate under section 164, Cr.P.C. which reads as under: "Section 164: Power to record statements and confessions.-- (1) Any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the Provincial Government may, if he is not police officer, record any statement or confession made to him in the course of any investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial. (1-A) Any such statement may be recorded by such Magistrate in the presence of the accused and the accused given an opportunity of cross-examining the witness making the statement. (2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. (3) A Magistrate shall, before recording any such confession explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession, he shall make a memorandum at the foot such record to the following effect:-- I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that the confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. Explanation. It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case." The bare perusal of the said provision of law reveals that Magistrate has to ask the accused before recording his confessional statement that he is not bound to make such statement but in the present case no such question was ever asked by Mst. Syeda Sarwat Mumtaz Civil Judge/Magistrate P.W.9. Similarly after recording the statement, Magistrate is also duty bound to give the said certificate/memorandum at the end/foot of the statement recorded under section 164, Cr.P.C. whereas in the present case the said certificate/ memorandum was never given at the foot of the statement of the appellant i.e. Exh.PK rather the said certificate has been given on Exh.PH a separate paper on which the Magistrate had recorded the questions and the answers which were put to the appellant before recording his statement. On examination of Exh.PH, we have also observed that after recording the questions and answers the words have been written and thereafter some portion of the paper has been left blank and then words have been written thereafter thumb-impression and the signatures of the accused have been affixed and in the same portion of the paper certificate/memorandum has been given by the Magistrate. No plausible explanation has been given by the prosecution witnesses as to why the statement of the appellant was not recorded on the blank portion of the paper i.e. Exh.PH. The said part of Exh.PH reads as under:-- Civil Judge/Magistrate, First Class, Ferozewala Exh.PH/1 I have explained to Muhammad Arshad that he is not bound to make a confession and that if he does so any confession, he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct and it contained a full and true account of the statement made by him." Certified Civil Judge/Magistrate Syeda Sarwat' Mumtaz Civil Judge Judicial Magistrate P.W.9 while deposing before the trial Court has also admitted that she never recorded the statement of the appellant by herself and the same was recorded by her reader under her direction but admittedly she never gave any certificate in this regard as required under section 364(3), Cr.P.C. According to the prosecution case the said confessional statement was made by the appellant on 25-5-2004, when he was produced before the Magistrate after obtaining judicial remand from Special Judge ATC (Trial Court) on the said day. On the other hand the file of this case reveals that one day prior to 25-5-2004 i.e. 24-5-2004 S.H.O. Police Station City Muridkey moved application before the Sessions Judge, Sheikhupura for a direction to the Magistrate concerned to record the statement of the accused under section 164, Cr.P.C. The said application was forwarded to the. Magistrate on the same day with the order "Ilaqa Magistrate to proceed in accordance with) law" but the appellant was never produced before the Magistrate on the same day whereas this exercise was done on the next day i.e. 25-5-2006 after obtaining judicial remand from the trial Court (ATC). It is interesting to note that the application moved by the Investigating agency for obtaining remand from the Special Judge (ATC)/trial Court, is silent with regard to the permission from the learned Sessions Judge about recording of statement of the appellant under section 164, Cr.P.C. Similarly the appellant never opted to make any statement before the said trial Court (ATC), when he was produced before the Court for the grant of remand, qua his willingness to make confessional statement. According to Moeen Ashraf Inspector P.W.14 (Investigating Officer) after obtaining the judicial remand on 25-5-2004 appellant was sent back to the judicial lock up from where he was produced before the Illaqa Magistrate on the same day for recording his statement under section 164, Cr.P.C. On the other hand the statement of Syeda Sarwat Mumtaz Civil Judge. Magistrate P.W.9 reveals that appellant was produced before her between 11 a.m. to 12 noon for recording the statement thus the stand of the prosecution that appellant was produced before the Magistrate from the Judicial lock-up seems to be doubtful and the possibility that after obtaining orders for judicial remand straightaway appellant was produced before the said Magistrate could not be ruled out. We have also observed that Magistrate (Syeda Sarwat Mumtaz Civil Judge P.W.9) never informed the appellant before recording his confessional statement that, "he would not be sent back to police custody but to judicial lock-up" nor the record of this case reveals that after recording the confessional statement the custody of the appellant was not handed over to the police. The possibility that after recording the I confessional statement custody of appellant was handed over to the police officials who had produced him before the Magistrate could not be ruled out and in this view of the matter we cannot deny that feelings in the mind of appellant that he would be handed over to the police once again must have interfered with the voluntary nature of his confession. In case titled Wazir Ali v. The State PLD 1960 (W.P.) Kar. 674), the confessional statement of the accused was not relied upon by a Division Bench of Sindh High Court because the Magistrate while recording the confessional statement of accused neither informed him that he would be sent back to Judicial lock-up nor explained that he (accused) was not bound to make such statement. The relevant portion of the judgment reads as under:-- "after the recording of confession the accused person should be sent to Judicial Custody and they would in fact be informed before hand that whether they make a confession or not, they shall not be delivered back to police custody. If the confessing accused is sent back to police custody after he has made a confession, such a course seriously vitiates the voluntary nature of the confession. Where the voluntary nature of confession is doubtful, it can hardly be credited with any evidentiary value at all." Similar view was followed in case titled Hakim Gul v. The State PLD 1964 (W.P.) Pesh. 1) and the confession made by the accused was not treated as voluntarily because accused was not informed by the Magistrate that he would not be sent back to police custody. We have also observed that the Magistrate had recorded the statement of the appellant after administering him an oath whereas under section 5 of Oaths Act, 1873 the statement of an accused on Oath has got no legal value. The relevant portion of the said enactment reads as under: "Nothing herein contained shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, or necessary to administer to the official interpreter of any Court after he has entered on the execution of the duties of his office, an oath or affirmation effect that he will faithfully discharge those duties." In case titled Muhammad Bakhsh v. The State PLD 1956 SC (Pak) 420, the confessional statement of accused made on Oath was held to be illegal and not admissible-observations made therein are as under:-- "The administration to an accused person of an oath or affirmation is opposed to public policy and any infringement of the provision prohibiting the court from putting him under oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel." Similarly in case titled Haq Nawaz and others v. The State and others 2000 SCMR 785 the confessional statement of accused recorded under oath was held to be illegal and opposed to public policy. The relevant portion of the same reads as under:-- "Therefore respectfully following the dictum laid down by the Hon'ble Supreme Court in Muhammad Bakhsh's case we hold that recording of confessional statement of an accused on oath or solemn affirmation is illegal and opposed to public policy and cannot be accepted as a voluntary confession despite consent or willingness of the accused to make a statement on oath or solemn affirmation." For the foregoing reasons we hold that the evidence relied upon by the prosecution is not worth reliance and while setting aside the conviction and sentence of the appellant this appeal is allowed and he m stands acquitted from the charge. The appellant shall be released forthwith if not required in any other case. Death sentence is not confirmed and the murder reference is answered in the negative. N.H.Q./M-13/L Appeal allowed.