Sadiq-ur-Rahman VS the State.

I

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(ludicial Department)

J.Cr.A. No.49-1W2013 With Cr. M No.93-M/2013

JUDGMENT

Date of hearing: 30.01.2018

Appellant:- (Sadiq-ur-Rahmad bv M/S Wilavat Ali Khar and Rahim Ullah Chitrali, Atlvocates.

Respondent:- (The Statd bv Mr. Suliman Khan, State counsel,

MOHAMMAD IBRAHIM KHAN. J.- The matter came into existence upon lodging of the Mad No. 7 of the daily diary dated 27.12.2009. Thereafter an inquiry within the meaning of section 156 (iii) of the Code of Criminal Procedure was initiated and in view whereof the present accused/Appellant Sadiq-ur-Rahman and one Sanaullah were apprehended. During the course of inquiry proceedings, the accused in presence of members of the inquiry team made pointation of the {^ place of occurence wherein the deceased Maqbool Ahmad was pushed in the deep ravine (J6 6rfi the approximate depth of which is 118 feet. Thereafter Abdutsobooh/ (D.B) Hon'ble Mt. Jutti.e Mohomnod lbtdhlm Khon Hon'ble Mt, lustlce lshtioq lbtohim

they have taken out Rs. 3,000/- along with mobile from corpus of deceased. The accused have also tried to steal motorcycle belong to deceased Maqbool Ahmad and later on his coryus was thrown in the river.

Subsequently, brother of the complainant Farid Ahmad recorded his statement under section 164 Cr.P.C. and charged the present accused/Appellant along with co- accused Sanaullah for murder of his deceased brother Maqbool Ahmad. On the basis of such asservations the 'Murasila'was drafted followed by lodging of the First Information Repoft.

) The charge framed by the leamed

Additional Sessions Judge/lzafi Zi\a Qazi Chitral on 08.03.2010 would dirulge that the accused in prosecution of their common intention on 27.122009 at midnight time in a place known as Koghezai Zarmarian Tak pushed the deceased Maqbool Ahmad in the deep ravine, as a result of which he died there and then, thereby, this offence is covered under section 302,34 PPC. Under the second head on the same date, Nowob (D.8) Hon'ble Mt. lustlce Mohdmmod lbtohlm Khon Hon'bla Mt, tustlce lshtloq lbtohlm

time and place, the accused have committed act of disappearance of evidence within the meaning of section 201 PPC. Likewise, under the 3rd head the accused have been stood nominated for dishonest misappropriation of the belongings of deceased, thereby committed an offence under section 404 PPC.

3 When the accused/Appellant did not plead his guilt, he claimed trial. Thus, in order to prove the asservations against these accused, the prosecution examined PW-1 Sultan Wazir SI, PW-2 Noor Shahideen IHC, PW-3 Muhammad Afzal IHC No.

687, PW-4 Gul Khosh, PW-5 Jehanzeb HC No. 189, PW-6 Zafar Ahmad SHO, PW-7 Akhtar Hussain SVOii, PW-8 Muhammad Yahya Forest Guard, PW-9 Sardar, PW-10 Attaullah, PW-11 Atta-ur-Rahman D IHC No. 105, PW-12 Imtiaz Ahmad, PW-13 Akbar Khan, PW-14 Qurban Panah IHC, PW-15 Farid g'

v)Ahmad, PW-16 Dr. Samiullah Medical Ofticer DHQ Hospital Chitral, who has conducted postmortem of the deceased and PW-17 Abdul Ghaffar Khan Nowob (D.B) Hon'ble Mr,lustlc. Mohommod lbtohlm Khon Hon'ble ML lustlce lshtioq lbrdhim

MOD/DDOR Mastuj who has recorded confessional statements of the accused.

4 After the closure of prosecution evidence, accused was examined under section 342 of the Code of Criminal Procedure, he negated his involvement in the present episode.

5.In Sessions Case No. l7l2 of the year 2010, the learned Additional Sessions Judgellzalt Zila Qazi Chitral came up with its judgment dated 18.06.201 1, whereby this accused-Appellant Sadiq-ur- Rahman enmeshed in case FIR No. 01 dated 13.01.2010 charged under sections 302,404,201,34 PPC registered at Police Station Koghezar was convicted and sentenced in the following manner:- a/S 302 (b) PPC to life imprisonment

g'' t)' along with compensation of Rs' 300,000/- wilhin the meaning of seclion 544-A Cr.P.C payoble to the Legal Heirs of the deceased or in defaull thereof shall further suffer one year RI. However, benejit of Section 382-B Cr.P,C tetts extended to the accused/Appellant.

Nowob (o.81 Hon'ble ML lustice Mohommod lbtohim Khdn Hon'ble Mr.lustice lshtldq lbrchlm

6.Here is this J.Cr.A No. 49-W2013

preferred by the convict-Appellant Sadiq-ur-Rahman looking forward for acceptance of prayer under the grounds enumerated in the appeal and for his liberty forever.

7 Having heard arguments of leamed

counsel for the accused/Appellant and leamed State counsel, record with their valuable assistance gone through.

8 Leaving aside other merits of the case for the time being, the only incriminating evidence in the account of accused/Appellant is his retracted judicial confession. As the accused/Appellant was arrested on 13.01.2010 whereas his confessional statement was recorded on 22.01.2010 i.e. after 8 days of his arrest, v- meaning thereby, that the accused/Appellant remained in police custody for 8 days, so, the possibility of procurement of confession through means of coercion, inducement or torture cannot be ruled out.

Nowob (o.B) Hon'blc Mt,luttla. Mohommod lbtdhlm Xhon Hon'bla Mr, lustlce lshtlaq lbruhlrn

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 Slate".The relevant citation (b) reads:-

Reappraisal of evidence. Iudicial confession before Magistrate, retraction of-Effect. Judicial confession allegedly made by accused-persons/appellants before a Magistrate under S. 164, Cr,P,C had been relracted before the Trial Court and in lhe absence of an! independent corroboratlon such relracted judiclal confession coultl not suffice all by itself for recording or upholding the accused persons' convlclion. Convictions and death senlences owarded to accused persons were set aslde in circumslances and they were acquitted of the charge of murder. Appeal was allowed accordingly.

Even otherwise, there is no cavil with this legal proposition that while evaluating the confessional y) u*" ent the maln object of law is to ensure its s- voluntariness and truthfulness. It would be a right place to mention here that a gteater duty/responsibility has been casted upon the Magistrate recording confession to be satisfied that such confession is voluntarily made Nowob (D.B) Hon'bl6 Mt,luttlce Mohommod lbtdhlm Khon Hon'bl. Mr.llstlc. lshtldq lbtuhlm

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 "Bahodur Khon vs. The State" @LD 1995 S C 330 as under:-

"Retracted confession has to be accepted only if il is corroborated by clear, cogent and independenl evidence. Court is called upon to act upon q retracted confession to enquire inlo all the material points and surrounding circumstances and satisfy ilself fully lhal the confession cannot bul be lrue".

In view of the wisdom contained in the esteem verdict of the Hon'ble Supreme Court of Pakistan reported as 2005 SCMR 5l5 "Asi Cr- ^,)- vs the ". wherein it has been opined:-

(a)Criminal Procedure Code (V of 1898)-- 364---Penal Code (XLV of 1860),

5s.302, 392 & 41L-Appreciation of evidence-Confession, when reliable- uowob (D.8) Hon'bla Mt, luttl.e Mohodmod lbtahlfi Khon Hon'bl. Mt. lustl.e lshtldq lbtuhlm

Principles-Confessional statemenl for being relied upon should not only be true, voluntary and believable bul should be without fear, favour or any inducemenl.

The confessional statement would lose its evidentiary value and as such mere this confessional statement would not stand as a sole reason for conviction. Reliance has been placed on 2017 P Cr.L J 479 "Noor Muhammad & olhers vs the Slate & others":

(d)Penal Code (XLV of 1860)-

----Ss. 302 & 34--Qatl-i-amd, common intention-Appreciatlon of evidence- Benelit of doubt-Retracted confession-- Accused was charged for the murder of deceased-Accused made confession before ludlclal Maglstrate but later on relrdcled-Retracted confession of lhe accused y)as not corroborated by any evldence---Clrcumslances suggested lhat confesslonal statement retracted by the accused person, could nol at all be called as volunlar! judlcial confession in the eye e)__ of law and the same had no legal effect* o-- t Conviction and senlence recorded by Trial Court were set aside in circumstances.

In such scenario, when the

accused/Appellant admittedly remained in police custody for 8 days, so, the confession might have been Nowob (O.B) Hon'ble ML lottlce Mohdfifiod lbtohim Khon Hon'bl. ML lustlaa Ishtloq lbtohlm

obtained from him by the police through coercion, inducement or torture therefore, such confession deserves little consideration and is discarded accordingly.

9 It is an admitted fact on record that the occurrence occurred during dark hours of the night and in all probabilities this is an unseen and un- witnessed crime. Reliance can be placed on 2017 YLR 436 "Talib satn & another vs the State & ano ter":

(b)Criminal trial-

testimony, disbelieved--Effect- -Ocular ll/hen ocular testimon)) was dlsbelleved then recovery as well as medical evidence were of no help lo prosecution.

(c)Criminal trial-

of establishing case--Ptosecution -Onus had to establish ils own case independently instead of depending upon weaknesses of t ,^)- defence.

(e)Penal Code (XLV of 1860)---

Procedure Code (V of --5.302*-Criminal 1898), 5,342--Qatl-i-amd-Admission of guik by accused-Prosecution falling to prove case--Effecl*lYhere prosecution had failed to prove its case against accused uowaa @.a) Hon'ble ML lustl.e Mohodmod lbrohlm Khdn Hon'ble ML lustlce lthtioq lbtuhlm

beyond reasonable doubl, accused might be acquitted even if he had taken plea and admitted killing the deceased.

10.It is recognized principle of criminal administration of justice that when there is no direct or ocular evidence in field circumstantial or for that matter last seen evidence has to be evaluated with great care and caution, as there is every possibility of misleading especially in this part of the country where the people do make rumours in respect of certain incident occurred in the locality which sometime transformed into shape of last seen evidence having no relevancy whatsoever with the actual happening which too occurred during dark hours ofthe night , In present case, exculpatory confession of the accused/Appellant on all counts is not in consonance with the recoverles evidence put-forth by the prosecution in shape g- ,r/:" d

statements of the prosecution witnesses, thus, same is of no use in respect of maintaining of the conviction and sentence awarded to the accused/Appellant.

Nowob (D,B) Hon'bla Mt. h,tttlca Mohdfifiod lbtohlm Khdn Hon'bl. Mt, lustlce lshtloq lbtuhlrn

11.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

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 Cr.LJ 554 (Peshawar) " Sahibzada vs the State and 2 olhers".

12.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 d^ - 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 impugned judgment of conviction rendered by the Nowob (D.BI Hon'ble Mt.lustic. Mohommod lbtohlrn Khon Hon'bl. Mt, tustlae lshtloq lbtohlm

learned Trial Court. Ergo, the accused/Appellant is acquitted of the charges leveled against him. He is in custody and be set free if not required in any other case.

13.These are the reasons of our short order announced in open Court on even date.

14.Before parting with this judgment, it is pertinent to mention here that the

accused/Appellant has also preferred Criminal Miscellaneous Application bearing No. 93-M of 2013 through Superintendent Haripur Prison for condonation of delay in respect of filing of jail criminal appeal before this Court.

Since the reason advanced therein is genuine as Appellant being a poor person could not

V^

I a afford services of private standing counsel, therefore, he was not in a position to submit the appeal against his conviction within time. Hence, this petition is allowed and the delay occurred Nowob (D,B) Hon'ble Mt,lustice Mohommod lbtdhinl Khon Hon'ble Mt,lustlce lshtloq lbrchim

during filing of this criminal jail appeal before this Court is hereby condoned.

Announ ced. c'- te Dt:30. 01.2018

d1h' ,

R

Nowob (D.8) Hon'ble Mt,lustic. Mohammad lbtahlm Khdn Hon'bl. Mr. lustlce lshtloq lbruhlm