MUHAMMAD SHAFI vs MUHAMMAD RAZA and another

' TASSADUQ HUSSAIN JILLANI, J.--- Through this petition leave is sought against the judgment, dated 25-9-2002 passed by a learned Division Bench of the Lahore High Court vide which the respondent's appeal against the judgment of conviction dated 27-10-1998 (convicting the respondent under section 302(b), P.P.C. For the murder of Muhammad Iqbal) was allowed and he was acquitted.

2. The petitioner/complainant reported the murder of his brother vide F.I.R. Exh.P.1/2. He alleged that his brother Muhammad Iqbal on 25-7-1994 went out of the house and did not return till late night.

An effort was made to search him which led to the recovery of his one shoe on the bank of. River Indus. The same day his dead body was found in a naked condition lying on the inner side of the bank of the said river, which was buried on 28-7-1994. He further stated that on 30-7-1994 he received a letter supposed to have been written by one Rasheed Khan stating therein that his brother was in his custody and that he would be let off if a ransom amount of rs,.2,00,000 was paid.

After prolonged investigation respondent-accused was arrested on 29-6-1995. His judicial confession was got recorded before a Magistrate the same day and the final report under section 173, Cr.P.C. Was ultimately submitted. During trial the prosecution examined 11 witnesses including the doctor and the Investigating Officer. The accused when examined under section 342, Cr.P.C.

Denied the prosecution story and attributed false implication to enmity. With regard to judicial confession, he stated that he was terrified by the Thanidar who remained in Court when his statement was being recorded. The conviction of the respondent was annulled by the High Court as it was of the view that it was a blind murder; that the judicial confession was not worthy of credit as while recording it the guidelines as given in the High Court Rules and Orders, Chapter XVII, Volume 3 had not been followed; that the same was recorded after 11 months of the occurrence; that the story given in judicial confession is in conflict with the medical evidence and that even otherwise it was not possible for the respondent who was a young man of 16/17 years, to have overpowered a 40/45 years, man and to have killed.

3. The learned counsel for the petitioner submitted that the prosecution case had been proved beyond doubt; that the letter received from the respondent-accused was delivered to the police at the time of recording of F.I.R.; that the Investigating Officer carried out a comparison of the handwriting on the said letter with the handwriting of the respondent and found that the letter was written by the respondent-accused; that this was further affirmed by expert's opinion; that besides this documentary proof the prosecution case consisted of the extrajudicial confession, the judicial confession and the medical evidence which were sufficient to sustain conviction of the respondent on a capital charge.

4. Admittedly it was blind murder and the prosecution case hinges on various elements of circumstantial evidence. The judicial confession was recorded after more than 11 months of the occurrence and it is stated that it was recorded immediately after the arrest of the respondent- accused. It is nobody's case that the respondent was an absconder. If the prosecution had come to know that the letter which was handed over to the S.H.O. At the time of recording of F.I.R. Was that of respondent then why it took 11 months to arrest him and to have his confession recorded. The judicial confession has since been retracted. There is no cavil to the proposition that a conviction can be based on retracted judicial confession provided it is corroborated by independent circumstantial evidence. In the instant case, however, the medical evidence is in conflict with the version given in the judicial confession. As per the medical evidence, Muhammad Iqbal died of strangulation, whereas, as per the judicial confession Exh.P.J.1 to 4 Muhammad Iqbal deceased had sodomized the respondent on the river bank to which he reacted and gave a blow and a push to the former who fell down in the river and got drowned. The cause of death as reflected in the post- mortem examination was neither drowning nor on account of blow supposed to have been given by the respondent as per the judicial confession. The finding of the learned High Court that the Magistrate did not record the statement of the accused which is sought to be proved as judicial confession in accord with the High Court Rules and Orders, is unexceptionable. In cross- examination while appearing as P.W.7, the said Magistrate admitted that he did not ask the accused before recording his statement as to when he was arrested and why was he making the confession. He further admitted that there was nothing on record to indicate as to who identified the accused. An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused.