Gul Majid VS Akhtar Muhammad

JUDGMENTSHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-Q M.L),SWAT

(ludicial Department)

r.A. No.2 6-MJ20t7

JUDGMENT

Date of hearing: 07.03.2018

Aooellant:- Maiiil bv Muh ammad lkram Khan. Advocale.

Respon (Akhtar Mohammad & the Statd bv Mr. Rahim Shah. Astt: Advocate General.

MOHAMMAD IBRAHIM KHAN. J.- Initially the law of the land was run into motion when Assistant Sub Inspector of Police Station Barawal on getting clue that a dead body is lying in Barawal hospital proceeded to the said hospital along with police other 'Nafri'.

When the complainant Akhtar Muhammad in the company of corpse of his deceased brother Shafiullah reported him the matter that today on 23.5.2015 at 16:30 hours the goats of Gul Majid

(accused/Appellant) had entered in their maize crops v* ,r/ situated at the vicinity of Luey Khwar Dogal and were damaging it. When his brother Shafiullah tried to restrain these goats from damaging maize crops upon Nowob ID.S) Hon'ble Mt. Juttice Mohdmmod lbtohim Khon Hon'ble Mt . tustice Muhomrnod Nosh Moh[ooz

which an altercation took place between Shafiullah and Gul Majid. All of the sudden, out of both accused Gul Majid and Ihsanullah, accused Gul Majid started firing upon his brother. Due to which he was hit on his back and buttock, who later on succumbed to the injuries on the way to hospital. In addition to the complainant the occurence was stated to be witnessed by his brothers Shakirullah, Akhtar Munir and Wazir.

The motive was stated to be a dispute over damaging of maize crops by goats of the accused-party. On the basis of such asservations the 'Murasila' was drafted followed by lodging of the First Information Report registered against the accused/Appellant Gul Majid and absconding co-accused Ihsanullah.

2.The charge framed by the leamed

Additional Sessions Judgellzafi Zila Qazi Dir Upper on s.- d 19.8.2015 would divulge that on 23.5.2015 at 16:30 hours at a place known as Luey Khwar Dogal Shahikot falling within the criminal jurisdiction of PS Shahikot the accused/Appellant Gul Majid along with other Nowob ID.B) Hon'ble Mt, Justice Mohommod lbrdhhn Khdn Hon'ble ML tustice Muhommod Nosit Mohlooz

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absconding co-accused Ihsanullah in furtherance of their common intention duly armed committed Qatl-e-Amad of Shafiullah, brother of the complainant by firing at him. Due to which he was hit and got seriously injured, thereby later on succumbed to the injury on the way to hospital. Hence, committed an offence within the meaning of section 302134PPC.

3 When the accused/Appellant did not plead his guilt, he claimed trial. Thus, in order to prove the asservations against the accused facing trial, the prosecution examined Ihman-ud-Din DFC as SW, Gul Fazil Khan SHO as PW-l, Suliman Constable as PW-2, Shahab-ud-Din as PW-3, Wahidullah Armorer as PW-4, Dr. Rahatullah as PW-5 who has conducted postmortem of the dead body of the deceased Shafiullah, Naseer Khan Constable as PW-6, Wali Muhammad Khan Senior Civil Judge Dir Bala as t ,/-

PW-7 who recorded confessional statement of the accused Gul Majid, Muhammad Khan as PW-8, NovJob ID.B) Hon'ble ML lustice Mohohmod lbrohlfi Khdn Hon'ble ML lustice Muhommod Nosir Mohlooz

Imtiaz Ahmad ASI as PW-9 and Bacha Khan Retired SI as PW-10.

4 After the closure of prosecution evidence, accused/Appellant was examined under section 342 of the Code of Criminal Procedure, he negated his involvement in the present episode of murder of deceased Shafiullah and posed innocence.

5 At the end, in Sessions Case No. 9ll2 of the year 2015, the leamed Additional Sessions Judge- lVlzafr Zila Qazi Dir Upper came up with its judgment dated 14.11.2017, whereby this accused-Appellant Gul Majid enmeshed in case FIR No. 55 dated 23.5.2015 charged under sections 302,34 PPC registered at Police Station Shahikot was convicted and sentenced in the following manner:-

U/S 302 (b) PPC to life imprisonment

r and fine of Rs. 50,000/- or in default thereof shall further suffer imprisonment of six months. The accused/Appellant shall also liable to pay compensation of Rs. 100,000/- payable to the Legal Heirs of the deceased or in defoult thereof shall

fwther undergo 6 months. However, Nowob ID.B) Hon'ble Mt.lustice Mohomrnod lbrohhn Khon Hon'ble ML lustice Muhommod Nosir Mohlooz

beneJit of Section 382-8 Cr.p.C was ertended to him.

6.Here is this Criminal Appeal bearing No.

286-M/2017 preferred by the convict-Appellant Gul Majid within the meaning of section 410 Cr.p.C read with Para 10 (8) of NAR 2009 looking forward for acceptance of prayer under the grounds enumerated in the appeal and for his liberty with the following prayer:-

"fn circumslances mentioned above, it is, therefore, most graciously prayed that on acceptance of this appeal, order/judgment of the learned lrial Court daled 14.11.2017 may kindly be set aside and appellant may please be acquitted of the charge leveled against him."

7 Having heard arguments of learned

counsel for the accused/Appellant and leamed Astt:

Advocate General appearing on behalf of the State, I 4 record with their valuable assistance gone through.

While as per report of the DFC PS Shahikot dated 27 .01.2018 the complainant Akhtar Muhammad being involved in case FIR No. 3 dated 26.01.2015 charged Nowob (D.B) Hon'ble Mr.lustlce Mohornfiad lbtohlm Khdn Hon'ble ML lustlae Muhommod Nosb Mohlooz

under section 14 Foreign Act (F.A) had been deported to the neighboring country Afghanistan being an Afghan National in the light of order rendered by the leamed Senior Civil Judge Dir Bala.

8 It is an admitted fact surfacing on the record that the so called eyewitnesses including the complainant being Afghan Nationals have been deported/migrated to Afghanistan, therefore, they were abandoned by the prosecution, so, there is no ocular version in field in respect of guilt of the accused/Appellant Gul Majid. In such circumstances, the only incriminating evidence in the account of accused/Appellant is his retracted judicial confession which was solely relied upon by the leamed trial Court while awarding major punishment of life imprisonment to the accused/Appellant. In context of the present case, the accused/Appellant was arrested on 24.5.2015 ,,/. whereas his confessional statement was recorded on 27.5.2015 i.e. after 2 days of his arrest, meaning thereby, that the accused/Appellant remained in police Nowob (D,B) Hon'ble ML lustice Mohommod lbrohlm Nhon Hon'ble Mh lustice Muhommod Nosir Mdhlooz

custody for 2 days, so, the possibility of obtaining of confession through means of coercion, inducement or torture cannot be ruled out.

In such like situation, it has been observed in many Judicial Pronouncements of the Hon'ble Supreme Court of Pakistan like 2017 SCMR 898 "Muhammad Ismail and others vs the State", wherein the relevant citation (b) speaks of:- Reappraisal of evidence. fudicial confession before Magistrate, relraction of-Effecl ludicial confession allegedly made by accused-persons/appellanls before a Magistrate under S, 164, Cr.P.C had been retrdcted before the Trial Court and in the absence of any independent corroboration such retracted judicial confession could not sufJice all by itself for recording or upholding the accused persons' conviction. Convictions and dedth senlences awarded to accused persons were set aside in circumstances and they were acquitted of lhe charge of murder. Appeal was allowed accordingly.

Even otherwise, there is no cavil with this b) c' legal proposition that while evaluating confessional statement the main object of law is to ensure its voluntariness and truthfulness. It would be a right place Nowob (D-B) Hon'ble Mr. lustice Mohammdd lbruhlm Khon Hon'ble Mr. tustice Muhommod Nosir Mohtooz

to mention here that a gteater duty/responsibility has been casted upon the Magistrate recording confession to be satisfied that such a confession is voluntarily made and to that end he must make an inquiry before recording the confession.

No doubt, conviction can be based on the retracted confession alone but it is found voluntary, true and confidence inspiring. It has been held by the Honourable Supreme Court of Pakistan in case law cited as "Bahadur Khan vs. The State" @LD 1995 S C 33O as under:-

"Retracted confession has to be accepted only if it is corroborated by clear, cogent and independent evidence. Court is called upon to act upon a retracted confession to enquire inlo all the material points and surrounding circ umstances and salisfy itself fully that the confession cannot but be true".

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{' In view of the wisdom contained in the esteem verdict of the Hon'ble Supreme Court of Pakistan reported as 2005 SCMR 515 "Asi vs the Stste", wherein it has been opined:- Nowob (D.B) Hon'ble Mr. lustice Mohommod lbtohim Khon Hon'ble Mt.lustice Muhofinod Nosi Mohlooz

(a)Criminal Procedure Code (V of 1898)-- 364-Penal Code (XLV of tt60),

5s.302, 392 & 41l-Appreciation of evidence-Confession, when reliable- Principles-Confessional ststement for being relied upon should not only be true, voluntary and believable but should be withoatfear, favour or any inducemenl.

The confessional statement would lose its evidentiary value and it cannot be made sole reason for conviction. Reliance has been p laced on 2017 P LJ 479 "Noor Muhammad & olhers vs the slate & olherstt:

(d)Penal Code (XLV of 1860)-

302 & 34-Qatl-i-amd, common -Ss.

intention-Appreciation of evidence--- BeneJit of doubt-Retracted confession--- Accused was charged for the murder of deceased-Accused made confession before Judicial Magistrate but later on rctracted---Retracted confession of the accused htas not corroborated by any evidence-Circumstances suggested thdt confessional statement relrucled by the accused person, could not al dll be called as voluntary jutlicial confession in lhe eye of law and the same had no legal effect- Conviction and sentence recorded by Trial Court were set aside in circumstances.

Ndwob (o.8) Hon'ble Mt,lustice Mohommod lbrohlm Khon Hon'ble ML lustice Muhommod Nosh Mohlooz

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In such scenario, when the

accused/Appellant admittedly remained in police custody for 2 days, so, the confession might have been procured from him by the police through coercion, inducement or torture. Moreover, from bare perusal of the questionnaire it transpires that the accused/Appellant was given 30 minutes time to inculcate over the matter before recording of confession from 9:00 A.M to 9:30 A.M while later on in the certificate it has been mentioned by the learned Senior Civil Judge Dir Bala (PW-7) that upon sweet will of the accused his confession was recorded on 9:25 A.M, meaning thereby, that even the mandatory period of 30 minutes have not been given as whole to the accused before recording of confession. Besides during cross-examination PW-7 Wali Muhammad Khan Senior Civil Judge Dir Bala admitted that at the t {- time of recording of confessional statement no relatives of the accused were present with him and in respect of question No. 11 which is with regard to rtowob (D.B) Hon'ble Mt.lustice Mohommod lbtdhim Khdn Hon'ble ML lustice Muhommod Nosit Mdhlooz

consultation about recording of confession the accused did not give any answer. He further admitted that in questionnaire there is no mentioning of the accused being consulted by his counsel. In order to inculcate the true situation which arose at the relevant time of recording of confession question No. 1 I and its answer asked from the accused are reproduced as under:- | / zbe./ot? <_-,.{i { -rJ,, _t t -?.,(Ut/ i=t.t Just from bare answer of this question No.

1l it is abundantly clear that no relatives of the accused were present with him, therefore, he deposed in a very lucid words "that none is there to help him and he is all alone". Hence, such confession deserves little consideration and is discarded accordingly.

9.Moreso, conviction of an accused cannot be based solely on confessional statement, unless the prosecution is able to substantiate its charge against F)- the accused through trustworthy and confidence g^ inspiring testimony of the witnesses, which standard of evidence could not be seen here in this case. As the Nowob (D,B) Hon'ble Mt.lustlce Mohommod lbtohim Xhon Hon'ble M.. lustlce Muhommod Nash Mohlooz

best piece of ocular evidence available with the prosecution has been abandoned for variety ofreasons, therefore, in a sense, it is an unseen and un-witnessed cnme. Reliance can be p l,aced, on 2017 YLR 436 "Talib Hussain & another vs th e State & another":

(b)Criminal trial-

ular testimony, disbelieved-Effea-- -Oc ll/hen ocular testimony was disbelieved then recovery as well as medical evidence were of no help to prosecution.

(c)Criminal trial-

--Onus of establhhing case-Prosecution had to establish its own case independently instead of depending upon weaknesses of defence.

(e)Penal Code (XLY of 1860)-

Procedure Code (V' of -5.302--Criminal I 898), 5.342-Qatl-i-amd-Admission of guilt by accused-Prosecution failing to prove case-Effect-lYhere prosecution had failed to prove its case against accusecl beyond reasonable doubt, accused might be acquitted even if he had laken plea and admitted killing the deceased,

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10.Whereas the factum of benefit of doubt is very much lucid in its entirety that if there exist a reasonable ground to believe that the Nowb (o.B) Hon'ble Mt,lusti.e Mohommad lbtohim Khon Hon'ble ML lustice Muhommod Ndsit Mohlooz

accused/Appellant has not participated in the commission of alleged crime in the mode and manner as advanced by the prosecution then there is no need of numbers of circumstances to prove the innocence of accused even a single circumstance creating reasonable doubt is sufficient for the acquittal of the accused. In this regard guidance is derived from the judgment cited as 2015 P Cn,LJ 554 (Peshawail " Sahibz.ada vs the State and 2 others".

11.In the above prevailing situation, we after reappraisal of entire evidence are of the firm view that the prosecution case against the accused/ Appellant has not been proved beyond reasonable doubt and the judgment of leamed trial Court is based on wrong appreciation of evidence and the law on the subject Hence, we accept this appeal and set-aside the q- v4 impugned judgment of conviction rendered by the leamed Trial Court. Ergo, the accused/Appellant is acquitted of the charges leveled against him. He is Nowob (D.B) Hon'ble Mr. lustlce Mohdmmad lbtohim Khon Hon'ble Mr, tustlce Muhdmmad Nosir Mahloo.

in custody and be set free if not required in any other case.

12.These are the reasons ofour short order announced in open Court on even date.

Announced.

Dt: 07.03.2018 r- d-

JUDGE

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JUDGE

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Nowob (o.B) Hon'ble Mt.lustice Mohommod lbtdhim Nhon Hon'ble Mt. lustice Muhommod N.tslr Mdhlooz