Muhammad Fayyaz Versus State

Tariq Mahmood Bajwa, J .--- Appellant, Muhammad Fayyaz, was tried by a learned Additional Sessions Judge Attock, in case FIR No. 202 dated 13-05-2022 under sections 302, 34 P.P.C., registered at Police Station Hazro, District Attock. The learned trial court vide judgment dated 27-06-2023, convicted the appellant under section 302(b) P.P.C. and sentenced him to imprisonment for life, with compensation of Rs.10,00,000/- under section 544-A Cr.P.C. to be paid to the legal heirs of the deceased recoverable as arrears of land revenue, in case of default to further undergo six months S.I. Benefit of section 382-B Cr.P.C. was also extended.

The appellant has filed titled appeal against his conviction and sentence.

2. Brief facts of the case are that this crime report (Ex.PL) was lodged on the statement of Muhammad Tasleem, complainant (PW.11), that on 12.05.2022 at about 03:30 PM, his son Muhammad Hashir took his school bag and left for tuition but did not return till late night upon which the complainant along with his brother Muhammad Nadeem (since not produced) and other relatives started his search but without any clue. The cell phone No.0316-5023704 of Muhammad Hashir was also switched off. On 13.05.2022, the complainant and his brother Muhammad Nadeem went out for search and at about 06:20 am, when they reached near Dera of Mehmood Hussain situated near Jinnah Park, they saw some people gathered on eastern side of the Dera in the fields, upon which they also attracted there and saw that the dead body of Muhammad Hashir was lying there and his legs were tied with rope whereas his face and head was smeared with blood and was wrapped in shopping bag. There was a deep injury on the head of the deceased. FIR (Exh.PL) was cropped up against unknown accused on the statement of complainant (Exh.PT) on 13.05.2022. The complainant nominated the appellant vide his subsequent application (Exh.PW) dated 17.05.2022.

3. After completion of investigation report under section 173 Cr.P.C. was submitted in the trial court and after adopting codal formalities the appellant was indicted to which he pleaded not guilty and claimed trial. In order to prove the charge against the accused the prosecution produced 14-witnesses in toto. The circumstantial evidence was furnished by Muhammad Afnan (PW.8) being witness of last seen and Muhammad Tasleem complainant (PW.11) whereas Kamran Mehmood (PW.14) is the witness of recovery. Haris Umair S.I. (PW.12) is the investigating officer of this case, who deposed about the various steps which were taken by him during the investigation. Abu Zafar, learned Judicial Magistrate Attock (PW.9), recorded confessional statement of the accused. Dr. Ali Khan M.O.(PW.2) conducted autopsy on the dead body of Muhammad Hashir (deceased), on 13.05.2022, who found following injury on his person:-

1. An irregular wound was present an anterior middle front temporal region which was irregular + bone exposed; the area is depressed. X-Ray skulls show depression and communicate fracture of frontal + parietal bone. External examination of the skull + brain show contusion of brain cortex hematoma of mid brain + bleeding of both ears."

According to the opinion of the doctor complete contusion of cortex and mid brain lead to brain anoxia, which resulted in Cardiac arrest and death occurred due to blunt trauma of head. Injury No.1 is sufficient to cause death in ordinary course of nature.

Rest of the witnesses are almost formal in nature, hence there is no need to discuss them. The Prosecution after tendering in evidence reports of DNA and Serology Analysis of PFSA Lahore as Ex.PAE, closed its evidence.

4. The statement of the appellant under Section 342 Cr.P.C. was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to a question, "why this case against you and why the PWs had deposed against you", Muhammad Fayyaz appellant stated as under: -

"I have no concern whatsoever with the alleged occurrence. I have been arrested only for being a friend of the deceased. I am a poor man and work as an employee in a car park. Rabnawaz is the owner of the car park. I have no concern for the Dera of Mahmood Hussain, the police have implicated me in the case in collusion with the owners of Dera Mahmood Hussain etc. I have nothing to do with the said murder. The local police arrested me in the car park the day after the incident and kept me in illegal detention. Later they tortured me and forced me to confess to the said crime otherwise the police would arrest my brother and sister-in-law and implicate them in the case. I have been forced to give a statement in court. I have not got recovered anything during investigation, but the investigation officer has planted the alleged recovered articles. Being a poor man, I have made a scapegoat to save the owners of Dera Mahmood Hussain etc. I have not committed any crime. I am innocent, no key to Dera Mahmood Hussain has been recovered from me."

The appellant opted not to appear under Section 340(2) Cr. P.C. in disproof of the allegations levelled against him by the prosecution, nor opted to produce any defence evidence.

5. After conclusion of the trial, the appellant was convicted and sentenced as noted hereinabove, by the learned trial court.

6. Both learned counsel for appellant jointly contended that it is a case of circumstantial evidence/last seen consisted of weak testimony of Muhammad Afnan (PW.8). No PW has lastly seen the deceased in the company of the accused or even while entering into the Dera; that conviction of the appellant cannot sustain on that score. They further added that so called judicial confession of appellant is suffering from serious infirmities and illegalities, which under no circumstances can be a base for conviction of the appellant; that Forensic evidence of the prosecution is not supportive to the charge rather it was even disbelieved by learned trial court in the impugned judgment of conviction. Lastly with vehemence adds that partial DNA profile obtained from item 18.4 is a mixture of atleast four individuals and it was observed that nothing can be said with certainty about the contributors to this DNA mixture profile. It is quite strange that after committing murder in the Dera the accused had taken away the iron rod in his house. In order to augment their arguments, learned counsel placed reliance upon the cases of Asif Waseem v. The State (2007 YLR 2270), Muhammad Farooq v. The State (1995 MLD 551) and Muhammad Ali v. The State (2002 PCr.LJ 1631).

7. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for complainant while supporting the impugned judgment contended that the complainant had narrated the natural story without any adulteration. He had shown the suspicion against four accused but during investigation the appellant was found the killer of young boy; that the appellant had made judicial confession; that a day before recording of judicial confession, the investigating officer (PW-12) had produced him before the court of learned Area Magistrate but in order to eradicate any chance of pressure and threat by the police, he was sent to judicial lockup and on the following day, his statement was recorded; that in additional to judicial confession, relevant recoveries i.e. school bag, clothes, chadar, iron rod, softi chappal, etc. were also effected from him and the prosecution proved them. Lastly added that on the basis of solid and straightforward evidence, the appellant was rightly convicted and sentenced.

8. I have given anxious hearing to learned counsel for the appellant, learned District Public Prosecutor and learned counsel for complainant and gone through the record with their assistance.

9. It is a case of total absence of eye-witness account and the main segment of evidence of the prosecution is the judicial confession of accused, before its scrutiny, it is necessary to add the same was retracted. The effect of such retraction has a bearing on the question whether it was voluntarily and if after scrutinizing and weighing of the facts/evidence, the court is satisfied that the confession was voluntary and true, it was the outcome of penitence, remorse and was born of a desire to make a clean breast of the whole affair, only then the confession is the evidence against maker. Before appraisal of the evidence of the prosecution on the said segment, it would be advantageous to discuss the law and the High Court Rules to be followed. Section 164, Cr.P.C and Volume III and Chapter 13 of the Rules and Orders of the Lahore High Court, Lahore are directly related to recording of a confession. Under Section 164, Cr.P.C: - i. Power to record confession lies with a Magistrate of the First Class and any Magistrate of the Second Class specially empowered. ii. It can be recorded in the course of an investigation, or at any time afterwards before the commencement of the trial. iii. It shall be recorded and signed in the manners provided in Section 364, Cr.P.C. iv. The Magistrate is under a statutory duty that before recording any confession he shall explain to the accused that he is not bound to make a confession and if he does so it can be used as evidence against him. v. The Magistrate shall record confession only if he has reason to believe that it is being made voluntarily.

Under the High Court Rules (5) and Orders of the said Chapter, the following questions have been formulated which a Magistrate is bound to put to an accused under all circumstances for the purpose of his satisfaction that the same is being made with free will and consent, without any promise, duress, compulsion, threat, ill treatment or any other extraneous consideration.

Q. No.1 Do you understand that you are not bound to make a Confession?

Q.No.2 Do you understand that your statement is being recorded by Magistrate, and that if you make a Confession, it may be used as evidence against you?

Q.No.3 How long have you been in Police custody?

Q.No.4 Do you understand that after making a Statement before me you will not be remanded to Police custody but will be sent to the judicial lock up?

Q.No.5 Understanding these facts are you making a Statement before me voluntarily?

Q.No.6. What are your reasons for wishing to make a Statement?

10. It must be noticed that above are the minimum number of questions and there can be no deviation, however, if the answers are of such a character as to require a Magistrate to do so, he can put such further questions as may be necessary to enable him to judge whether the accused is deposing voluntarily. So, the entire exercise is to ensure that what an accused wants to say that is the volunteer voice of his conscious, mind and heart. It must not be ignored also that before a Magistrate proceeds to record the confession, he should arrange so far as is compatible with his safety and that of his staff and with the safe custody of the prisoner; that the latter is left for some time out of the hearing of Police Officer or other persons likely to influence him.

11. A volunteer confession by accused always remained an important consideration for the apex and higher courts of the country. In the case law reported as "Azeem Khan and others v. Mujahid Khan and others" (2016 SCMR 274), the august Supreme Court reinforced the principles laid down by that Court time to time, which reads as under: - i. Before recording confession and that too in crimes entailing capital punishment, the recording Magistrate had to essentially observe all the mandatory precautions (laid down in the High Court Rules and Orders). ii. Fundamental logic behind the same was that, all signs of fear uncalculated by the investigating agency in the mind of the accused were to be shed out. iii. Accused was to be provided full assurance that in case he was not guilty or was not making a confession voluntarily then in that case he would not be handed over back to the police. iv. Sufficient time for reflection was to be given after the first warning was administered. v. At the expiry of such time, recording Magistrate had to administer the second warning and the accused shall be assured that now he was in the safe hands_ vi. All police officials whether in uniform or otherwise including Naib court attached to the court must be kept outside the court and beyond the view of the accused. vii. After observing all these legal requirements if the accused person was willing to confess then all required questions as formulated by the High Court Rules and Orders should be put to him and the answers given, be recorded in the words spoken by him. viii. Statement of accused should be recorded by the Magistrate with his own hand and in case there was a genuine compelling reason then, a special note was to be given that the same was dictated to a responsible official of the court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version. ix. Accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he was Naib court wearing police uniform, or any other police official/officer because such careless dispensation would considerably diminish the voluntary nature of the confession made by the accused.

12. After discussing philosophy, object, why the judicial confession is made, the checklist/threshold settled by the chain of the precedents of the Supreme Court as well as the High Court and the requirements shaped in form of questions as envisaged in the Volume III and Chapter 13 of the High Court Rules and Orders, proceeded to check the judicial confession/Exh.PR. In the case in hand, learned Magistrate, had put only following four questions:-

Q.No.1. Do you know that you are appearing before a court of Magistrate?

Ans. Yes.

Q.No.2. Do you know that you are not bound to record your statement under section 164 Cr.P.C?

Ans. Yes.

Q.No.3. Whether you are making statement under section 164 Cr.P.C on the basis of any kind of pressure or coercion?

Ans. No. I am making my statement with my free will and consent.

Q.No.4. Why do you want to make statement under section 164 Cr.P.C?

Ans. I want to make statement under section 164 Cr.P.C to explain the true facts.

It is straightaway observed that following two material questions were completely omitted: - i How long you have been in police custody; ii Do you understand that after making statement before me you will not be remitted to the police custody but will be sent to judicial lockup?

Both said questions were crucial one to test, duress, pressure and threat by the police. Those were not simply questions rather it was guarantee from the Magistrate that after recording the statement, he will not be given in the hands of same local police rather was sent to judicial lockup. The Investigating Officer (PW-12) showed the arrest of Fayyaz, accused on 31.05.2022, produced the accused before the learned area Magistrate on 01.06.2022, obtained two days physical remand, again produced him before the court on 03.06.2022, earned four days physical remand for DNA test etc., again produced before the Magistrate on 07.06.2022, further three days physical remand was granted, accused was produced on 10.06.2022 before the concerned learned Magistrate, further three days physical remand was allowed and after thirteen days of the physical remand, accused was produced before the learned magistrate with the application that accused wanted to get record his statement under section 164 Cr.P.C. and he was sent to judicial lockup and his statement under section 164 Cr.P.C was recorded on 14.06.2022. The learned Magistrate who recorded the judicial confession appeared in witness box as PW-9, on cross-examination, he stated it was not in his notice that at the time of recording his statement under section 164 Cr.P.C. the accused remained on fourteen days physical remand, at the cost of repetition, the said Magistrate was asked that he had not mentioned to the accused that after recording his statement he will not be handed over to the police again. He further stated on cross-examination that "In the order dated 14.06.2022, it has been mentioned that all the concerned people have been ordered to leave the court room. However, it has not been specifically mentioned that Naib court and Investigation Officer was also asked to leave the court room." No doubt the statement under section 164 Cr.P.C (Exh.PR) indicates that the accused was produced from District Jail Attock, however, the attendance of Haris Umair, SI/IO was marked, when the accused was asked to record his statement under section 164 Cr.P.C., not asking the Investigating Officer as well as other police personnel specifically to leave the court room is also a serious loophole and all the concerned people have been ordered to leave the court room, was not enough to satisfy the legal requirement when it was not mentioned that especially the I.O had left the court room and more importantly when the accused was even not told, he will not be remanded to the police after making a statement, it appears, important legal requirement escaped from the consideration of Judicial Magistrate.

13. From another angle, the accused had stated in his statement under section 342 Cr.P.C while answering the question why this case against you and why the PWs deposed against you, "I have nothing to do with the said murder. The local police arrested me in the car park the day after the incident and kept me in illegal detention. Later they tortured me and forced me to confess to the said crime otherwise the police would arrest my brother and sister-in-law and implicate them in the case. I have been forced to give a statement in the court." The complainant (PW-11) implicated the appellant through his written application (Exh.PW) dated 17.05.2022, after three/four days of registration of the FIR, the said vital witness was cross-examined relating to his said application, how he implicated the appellant. Exact words of his answer are "I had not nominated the accused Muhammad Fayyaz on the basis of suspicion rather I have nominated the accused on his disclosure qua murder of my son Hashir." Subsequent application was filed by the complainant on 17.05.2022, it was not the case of prosecution, appellant had made any extra judicial confession before him or others then how the disclosure was made by the accused on 17.05.2022, said shared portion of the complainant (PW-11) supports the stance of the accused "he was arrested the day after the incident." No controversy on this legal aspect, burden of proof of the prosecution and of the accused is altogether different, the version of the accused is near to the truth due to said shared answer, he was arrested shortly before filing of that application on 17.05.2022 whereas his arrest was shown by the Investigation Officer on 31.05.2022. In the said peculiar fact, the omitted questions were more mandatory and required. The prosecution badly failed to establish the segment of judicial confession was without duress, coercion, compulsion, threat, ill treatment or any other extraneous consideration.

14. Another piece of evidence produced by the prosecution to earn the conviction of the accused, circumstantial evidence, in the shape of last seen evidence. The theory of last seen together is one where two persons are seen together alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Its fundamental principles, probability, cause and connection and requires a cogent reason that (a) the deceased in normal and ordinary course was supposed to accompany the accused. (b) proximity of the crime scene (c) small time gap between the sighting and crime (d) no possibility of third person interference (e) motive (f) time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Muhammad Tasleem complainant (PW-11) and Muhammad Afnan (PW-8) had not seen Muhammad Hashir deceased in the company of the accused throughout the fateful day or even entering in the 'Dera', venue of the crime with him. The relevant excerpt from the statement of Muhammad Afnan the basic witness to prove last seen evidence is as under: -

"I myself had not saw the deceased Hashir while going inside the Dera."

15. Strange enough, Muhammad Afnan (PW-8), stated tuition fellow to the deceased, had not intimated to the complainant on the fateful day, his query from the accused, on the next day when the dead-body was recovered/found on 17.05.2022 when the complainant implicated the appellant vide his application Exh.PW rather his statement under section 161 Cr.P.C was recorded on 19.05.2022, after around seven days of tragedy of murder, in said eventuality, his silence about the fact for said seven days casts serious doubt on his testimony rather it appears to be more than a padding. Rab Nawaz, PW-13 was produced by the prosecution to prove that plot was given to the accused on rent, on cross-examination, the said PW stated there was no written rent deed, on cross-examination the said PW stated there was no written rent deed between him and the accused. On further examination, the said PW was unable to produce any receipt of the rent relating to the plot from accused rather went on to state that he (accused) used to give rent to the mother of the witness. The said lady did not turn up in the witness box to prove that fact.

16. The medical evidence is furnished by Dr. Ali Khan (PW-2) who observed 'semi digested healthy food' in large intestine and its contents. The post mortem was conducted on 13.05.2022 at 12:00 night whereas the probable time between the death and the post mortem was stated as 11-12 hours. The deceased went to the tuition on 12.05.2022 at about 3:30 p.m, and was missing thereafter, the doctor was cross-examined on the question of some undigested food in stomach, he replied that it may safely be said that deceased has taken meal prior to 10-12 hours, the said time did not coincide with the time of missing/murder claimed by the prosecution. Even otherwise, medical evidence may confirm the ocular account/circumstantial evidence with regard to the receipt of injury and kind of weapon but it cannot connect the accused with the commission of crime. It has been held by apex Court in case reported as "Israr Ali v. The State" (2007 SCMR 525) that medical evidence alone cannot corroborate, as the injury cannot speak of its author and it does not establish the identity of the accused.

17. So far as the recovery is concerned, no independent witness from the place of recovery was associated by the investigation officer and in all the recoveries complainant Tasleem (PW-11) as well as his brother Muhammad Nadeem (since not produced) were shown recovery witness. The said part of the evidence could not produce the corroboration. Reliance is placed on case law reported as "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596). Even otherwise, the recovery is deemed to be corroborative in nature and it is used to corroborate the direct or circumstantial evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be safe to maintain conviction on confirmatory evidence. In the case of "Muhammad Jamil v. Muhammad Akram and others" (2009 SCMR 120) the august Supreme Court of Pakistan had held as under: -

"---S. 302(b)---Appreciation of evidence---Principle---In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence---When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."

18. Man can tell lies on either side but the scientific tests are more helpful in discovering the truth with certainty. Modern investigation must keep pace with dexterity of crime. Prosecution also placed reliance on the reports of DNA and Serology Analysis Report as Ex-PAE, whereby prosecution tried to prove the place of occurrence. The Crime Scene Unit has secured blood stain found on eastern wall of north-western room of "DERA" and according to the report of PFSA. Accordingly, to this extent report of PFSA is supporting the case of prosecution in terms that the accused has also pointed out the said place as 'place of murder' of the deceased. The swabs taken from 'Iron bar' (the alleged weapon of offence) got recovered by the accused was also sent to PFSA for DNA and report in this regard is as under: -

"The partial DNA profile obtained from item #18.4 is a mixture of at least four individuals. Muhammad Hashir (Item #1) cannot be excluded as being a contributor to this DNA mixture profile. Nothing can be said with certainty about other contributors to this DNA mixture profile."

19. The above said conclusion is not certain about presence of DNA of accused Muhammad Fayyaz found on the said 'Iron Bar'. So, to this extent, this segment of prosecution evidence is doubtful qua involvement of the accused Muhammad Fayyaz. The Forensic/scientific evidence was so weak and was unable to connect the appellant individually and specifically, that the learned trial Court itself disbelieved it, however, proceeded against the accused observing there was no chance of substitution. No doubt, substitution of single accused in a murder charge was a rare phenomenon but at the same time to put the rope around the neck of an accused charged singly, there must be circumstantial evidence/ocular account of unimpeachable character, trustworthy and confidence inspiring corroboration from the other pieces of evidence and it is not the requirement of the law or the justice to consider the evidence of the prosecution as gospel truth if it was a case of sole accused rather it is the judicial duty of the court to assess the intrinsic worth of the evidence.

20. The prosecution also produced Tanveer Ahmad, ASI (PW.7) to prove call data record (Exh.PP), the said PW on cross-examination stated, it is correct that neither call data record has been signed by any person nor it is appearing that the name of the officer who prepared the same, for the said sole reason, hardly helpful for the prosecution.

21. Occurrence narrated in the FIR, no doubt was horrifying and chilling but while passing a judicial decision court has to detach itself from the emotions and the chitters created by the document or narration of the PWs. The Law does not clothe the Judge with a divine insight into the hearts and merits of the witness and the court has to form the opinion and to reach the decision with the force of reasons and logics.

22. On the basis of the afore-referred more than one reason/logic, the Court is of the opinion that the prosecution has failed to prove its case against Muhammad Fayyaz, appellant beyond any reasonable shadow of doubt. It is settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather one circumstance creating doubt is enough to extend benefit of same to the accused. Guidance can be sought from the case of "Muhammad Riaz and others v. The State and others" (2024 SCMR 1839) and "Abdul Jabbar and another v. The State" (2019 SCMR 129). So by extending the benefit of doubt to Muhammad Fayyaz appellant, I accept his criminal appeal and acquit him of the charge. He is in jail. He be released forthwith, if not required to be detained in connection with any other case.

JK/M-107/L Appeal allowed.