MUHAMMAD PERVEZ and others Versus State

1. JUSTICE CH. IJAZ AHMED (MEMBER).--- The appeals and petition were allowed vide short order of even date in the following term:

2. "For reasons to be recorded separately, Criminal Shariat Appeals Nos.16, 17 of 2005 and Jail Shariat Petition No.63 of 2004 (after conversion into appeal) are allowed, the impugned judgment, dated 14-11-2003 of learned Federal Shariat Court is set aside and the appellants Muhammad Pervez, Faisal Bashir, Majid Ali, Haris Ayub and Tariq Mehmood are hereby acquitted of the charges under sections 395, 396, 397, 412 and 148, P.P.C. If not required to be detained in any other cause, they are directed to be released forthwith."

2. These are the reasons of above mentioned short order:--

3. We intend to decide 'aforesaid appeals and petition having similar facts arising out of the common impugned judgment of the Federal Shariat Court dated 14-11-2003. Brief facts out of which the aforesaid appeals and petition arise are that the appellants and petitioner are involved along with their acquitted co-convict in a case F.I.R. No.80 which was registered at Police Station Saddar Haripur on 22-3-1999 under sections 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and under sections 404/411, P.P.C. on the complaint of Khalilur Rehman, P.W. The facts as narrated in the contents of the F.I.R. and duly noted by the Federal Shariat Court in para.2 of its impugned judgment are as follows:--

4. "According to the report which was given to S.H.O. Saif-ul-Malook at 2130 hours, on 22-3-1999, one Khalil-ur-Rehman son of Gohar Rehman aged about 40/45 years reported to the S.H.O. Saif-ul-Malook on the spot that on 22-3-1999 at about 2045, along with the driver of the Wagon PRH-6084 Muhammad Ayub Khan, who was owner of the wagon has stated that on the day of occurrence, he along with Abdul Raoof Khan son of Ali Muhammad Khan resident of Mohra presently Havaldar, Police along with 11/12 other passengers boarded the wagon from Adda Darband for Serai Naamat Khan. At about 2045 hours, they reached the place known as Khalian, which is in the area of Serai Naamat Khan, five persons armed with fire-arms, all of a sudden came out of the bushes near the road and the driver out of fear, stopped the vehicle. 'That, these persons took out the passengers from the wagon, they were alighted from the wagon one by one and the said persons starting searching the person and took away money which they had. That they took Rs.1,200 from Khalil-ur-Rehman and Rs.4,000 from the driver Muhammad Ayub and that the money, they took from the other passengers would be known to them. That as soon as the passengers started boarding the wagon again, in the meantime Havaldar Abdul Raoof of the police tried to snatch from one of the accused, a kalashnikov type rifle and all the same accused started firing at Abdul Raoof who was injured by the firing and died on the spot. One of the shot fired also hit him on the left side near the back of his shoulder, and i.e. (complainant Khalil ur-Rehman) was also injured. The accused started firing in the air and ran away. Also the other passengers of the wagon, due to this firing, frightened and ran away. That this report was made on the spot. Aziz-ur-Rehman and Muhammad Ayub found the report correct. Inquest report and injury-sheet was also prepared. The Investigating Officer Saif-ul-Malook took down the report and sent a Murasila to the police station through constable Asif No.193 and the same was entered into the F.I.R. No.80, dated 22-3-1999."

5. Challan was submitted before the competent Court after investigation under section 173, Cr.P.C. by the Investigating Agency. The learned Additional Sessions Judge, Haripur vide its judgment, dated 1-11-2002 convicted and sentenced the appellants as under.-

6. Name of accused

7. Under sections

8. Sentence

1. Muhammad Pervez

(1) 396, P.P.C.

9. Imprisonment for life with fine of Rs.50,000 each. In default to fu r ther suffer one year's S.I. each

10. 2.. Faisal Bashir

3. Majid Ali

(2) 395, P.P.C.

11. Seven years' R.I. with a fine of Rs.50,000 each. In default to further suffer one year's S.I. each.

4. Mubarik @ Makha

5. Tariq Mehmood

6. Haris Ayub

(3) 397, P.P.C.

12. Seven years' R.I. each

(4) 412, P.P.C.

13. Two years' R.I. with fine of Rs.10,000 each. In default to further three months' S.I. each.

(5) 148, P.P.C.

14. One year's R.I. each All the sentences shall run concurrently with benefit of section 382-B, Cr.P.C.

15. The appellants being aggrieved filed Criminal Appeals Nos.272-I of 2002 and 283-I of 2002 before the Federal Shariat Court. The learned Federal Shariat Court dismissed the appeals of the appellants and accepted the appeal of the co-convict Mubarik Ali alias Makha and he was acquitted by giving him benefit of doubt. Being aggrieved appellants Muhammad Pervez and two others filed Criminal Petition No.133(S) of 2003 whereas Haris Ayub filed Criminal Petition 34(S) of 2003 which were fixed before this Court on 22-11-2005. Leave was granted to reappraise evidence in detail for the safe administration of criminal justice out of which the present appeals arise. Tariq Mahmood their co-accused filed Jail Petition No.63(S) of 2004 which was barred by time by 229 days. All three matters i.e. aforesaid two appeals and petition are decided by one consolidated judgment as mentioned above.

2. Learned counsel of the appellants and petitioner submit that it was unseen occurrence as the occurrence had taken place on 22-3-1999 at 8-45 p.m. Pervez appellant was arrested on 23-3-1999. Confessional statement was recorded on 27-3-1999 which was result of torture as is evident from the statements of D.W.1 Dr. Syed Sajjad Hussain and D. W.2 Hashish Khan. The appellants were examined by the jail authorities under Rule 369 of Prisons Rules. Both the Courts below had not considered this aspect of the case while relying upon the confessional statement of Pervez appellant. They further submitted that confessional statement of appellant Pervez was exculpatory. Therefore, both the Courts below were not justified to convict and sentence the appellants and petitioner in such type of confession coupled with the fact that Pervez had retracted his confession in his statement under section 342, Cr.P.C. Appellants, petitioner and their co-accused were arrested by the Investigating Officer on the following dates:

(1) Pervez

(2) Tariq

16. 23-3-1999

(3) Majid Ali

(4) Mubarik alias Makha

17. 25-3-1999

(5) Haris Ayub

(6) Faisal Bashir

18. 7-4-1999

19. All the accused were seen by the prosecution witnesses before their identification parade as evident from the statement of Khalil-ur-Rehman P.W. and Muhammad Ayub P.W.2 read with statement of the Investigating Officer P.W.9 Saiful Malook whereas the identification parade was held on 1-4-1999 and 12-4-1999 respectively. Therefore, both the Courts below were not justified to convict and sentence the appellant and petitioner on the basis of such type of identification. They further urge that identification parade was held in violation of High Court Rules and Procedure. They further submit that recoveries of weapon of offence and recoveries from the spot were also sent to the Fire-arms Experts simultaneously in spite of fact that weapon of offence was shown unsealed after some time of the alleged recovery and before the despatch to the Fire-Arms Expert. Recovery unsealed memos. were not resealed. They further submit that recovery of weapons were recovered from the appellants after 4 days in open place. Such type of recovery was not sustainable in the eyes of law. They further submit that statements of all the eye-witnesses were conflicting with medical evidence. This fact was also not considered by both the Courts below in its true perspective. They further submit that role of the appellants, petitioner and their co-accused was not described in the identification parade. Therefore, both the Courts below erred in law to rely on such type of identification parade conducted by the judicial officer. They further maintain that both the Courts below had decided, convicted and sentenced appellants and petitioner in violation of law laid down by the superior Courts. They further submit that Federal Shariat Court had also erred in law to convict and sentence the appellants and petitioner on the basis of the same evidence which was not believed by the learned Federal Shariat Court qua their co-convict namely Mubarik alias Makha. In support of their contention they relied upon the following judgments:--

(1) Haq Nawaz and another v. State 2000 SCMR 785, (2) Mehmood Ahmed and 2 others v. State 1999 SCMR 127, (3) Walayat and another v. State 1984 SCMR 530, (4) Bashir Ahmed's case 1999 SCMR 114, (5) Syed Azmat Ali Shah and another v. State PLD 1999 SC 39.

3. Learned counsel of the complainant submits that confession was recorded by Magistrate after, completing legal formalities on 27-3-1999 and this facts was borne out from the proceedings recorded by the concerned Magistrate at the time of recording confessional statement whereas doctor had medically examined the appellant on 30-3-1999, therefore, both the Courts below were justified to come to the conclusion that confessional statement was recorded voluntarily. He further maintains that medical' evidence is in consonance with the statement of the eye-witnesses. He further urged that P.W.2 Muhammad Ayub is an independent witness and is not related to Khalilur Rehman P.W. or deceased. Therefore, both the Courts below were justified to convict and sentence the appellants and petitioner on the well-known principle that statement of one witness is sufficient for conviction in case his statement inspires confidence. In support of his contention he relied upon Muhammad Fazal's case 2006 SCMR 143 and Muhammad Mansha's case 2001 SCMR 199. He further submits that torch was recovered on the pointation of Tariq Mehmood appellant on 23-3-1999 from his residence which was found blood-stained. This piece of evidence was sufficient to connect the appellants and petitioner with the commission of offence. He further maintains that eye-witnesses were natural, straight-forward and truthful and their evidence had impeachable character was fully corroborated by confessional statement of the accused which was sufficient to prove the charge. This finding of fact was recorded by both the Courts below against the appellants and petitioner after appreciation of evidence on record. He further maintains that confessional statement inspires confidence in spite of retracted confession of appellant which alone is sufficient to convict and sentence the appellants and petitioner as all the convicted and acquitted accused had assembled at place of occurrence with common intention. In support of his contention he relied upon Tariq Hussain Shah's case 2003 SCMR 98.

4. Learned Additional Advocate-General submits that confessional statement was recorded on 27-3-1999 by the learned Magistrate after completing legal formalities in accordance with law as observed by the Courts below whereas the statement of Doctor Syed Sajjad Hussain D.W.1 had medically examined the appellants on 30-3-1999 whereas he admitted in his cross-examination that it was recorded in the relevant register on 1-4-1999 and this fact was not pointed out by the appellants to the concerned Magistrate at the time of identification parade on 1-4-1999. He further urges that both the Courts below had recorded finding of fact after proper appreciation of evidence on record that confessional statement was recorded by the Magistrate voluntarily even if the statement of the defence witnesses to be believed. He further maintains that conviction can be-awarded on retracted confession. In support of his contention he relied upon Manjeet Singh v. State PLD 2006 SC 30.

5. We have considered the, submissions made by counsel for the parties and perused the record. It is better and appropriate to reproduce basic facts and operative parts of the evidence to resolve the controversy between the parties:

20. Date of occurrence: 22-3-1999 at 8-45 p.m.

21. Pervez appellant was arrested on 23-3-1999.

22. His confessional statement was recorded on 27-3-1999

23. Dr. Syed Sajjad Hussain D.W.1 medically examined the appellants on 30-3-1999 and found injuries on their person which are as follows:--

24. Muhammad Pervez

(1) 4 radish black bruises on left buttock each of them are about 4" x 2/3" in size.

(2) 5 radish black bruises on right buttock each about 4-1/2" x 2/3".

(3) Slight oedema on both feet upto about 1/2" below the ankle joint.

25. Majid

(1) Two radish black bruises each about 4" x 2/3" in the middle of right buttock each about 1" away from each other.

(2) One radish black bruise about 1" x 1" in the middle of left buttock.

26. Tariq Mehmood

(1) A radish black bruise about 5" x 1" in the middle of left buttock.

(2) Two Radish black bruises each about 4" x 2/3" in the middle of right buttock.

27. Mr. Hashish Khan D.W.2 confirmed that aforesaid appellants were medically examined as under-trial prisoners and record was maintained in the concerned register against Entries Nos.448, 469 and 473.

28. Relevant portion of cross-examination of D. W.1

29. "It is correct that at Serial No.458 of the Register No.1 produced today in Court by the jail authorities in respect of Muhammad Pervez the entries were made on 1-4-1999."

30. Relevant portion of cross-examination of D.W.2

31. "The accused under-trial in this case despite referred for their examination on 27-3-1999 were even then, not following the procedure that the accused is to be examined on the following day when in this case the accused were to be examined on 28-3-1999 but on the 5th day the accused were examined by the Medical Officer who may know the reason for their late examination, on 1-4-1999.

32. Statement of Majid appellant.

33. Order of Judicial Magistrate, dated 26-3-1999

34. "The Investigating Officer is directed to examine the accused properly from authorised Medical Officer. Accused be produced before the Court on 29-3-1999 along with the other accused."

35. Pro forma of recording confessional statement

36. "Q. Do you understand that after making a statement before me or not, you will not be remanded to police custody but will be sent to the judicial lock up."

37. Ans. Yes."

38. Statement of Muhammad Sufrain S.-I. P.W.8

39. "On 31-3-1999 I again drafted an application Exh.P.W.9/15 and produced accused Tariq, Mubarik and Majid Ali for police custody, in order to get further custody for five days. They were not brought from judicial lock-up i.e. from jail but they were brought from Police Station Haripur. It is correct that on 31-3-1999 when the accused were produced for obtaining police custody on the same day I wrote Exh,P.W.5/5 and requested for identification of accused Pervez, Tariq, Mubarik and Majid. At the time of, submission of this application I was also present with the accused and Saiful Malook and wrote these facts in the case diary. P.W. Muhammad Ayub and complainant Khalil-ur-Rehman were present with us when we submitted application before the Magistrate on 31-3-1999."

40. ".... The photo shown by the defence counsel along with weapon of offence is of accused Pervez. I can identify this photo. It was my photo along with other police officials including Saiful Malook, Abdul Saboor and Anwar Khan, S.-I. but I cannot identify Press Reporter sitting behind Saiful Malook Khan."

41. ".... After accused Parvez was sent to judicial lock-up he was not taken out in any other investigation in my presence."

42. "....It is correct that in Exh.D.A. I, Saiful Malook Khan and other police officials and accused Parvez were shown with arm ammunition placed on the table of the said office in open condition and these were not packed and sealed in any parcel."

43. Statement of Saiful Malook/Investigating Officer P.W.9

44. "I arrested the accused on different dates and mentioned the arrest of the accused in D.D. for the date concerned. I recorded supplementary statement of complainant before leaving the spot for the raid of the house of accused Tariq and Mubarik. It is correct that no one has charged Tariq and Mubarik accused by name before the raid of the house of any accused."

45. ".... Before the disclosure of Tariq accused I knew all the remaining accused, their parentages and addresses and I had mentioned the name of all the accused with their parentages, addresses the day of culprits. It was a general rumour. I cannot tell the specific name of a person who disclosed the names of remaining all the accused."

46. P.W.6 Dr. Muhammad Humayun had observed in his opinion at the time of conducting post-mortem examination of the deceased as under:--

47. "In the opinion of the doctor, although the deceased had multiple injuries on his person, i.e. over right chest, abdomen and both thighs, also blunt injuries to the skull."

48. Relevant portion of statement of P.W.2 Muhammad Ayub

49. "During this deceased Abdur Rauf attempted to snatch the rifle from one of the above mentioned three accused the same culprit inflicted butt blows of the same rifle on the head of the deceased."

50. Examination-in-chief of Muhammad Zufran S.-I.

51. "His house was searched and from his residential room where a shelf was constructed and attached to that shelf, a torch black in colour Exh.P.11 smeared with blood."

6. In case all the facts are put in a juxtaposition, then it is crystal clear that confessional statement was recorded after five days as the appellant Pervez was remained in the custody of the local police. It is a settled law the delay of over 24 hours would normally be fatal to the acceptance of judicial confession as law aid down by this Court in Naqeebullah's case PLD 1978 SC 21 coupled with the fact that prosecution had failed to explain the delay in recording the confessional statement. This fact created doubt qua the confessional piece of evidence. See Khan Muhammad's case 1981 SCMR 597. It is no doubt that mere delay of 24 hours in recording the confessional statement is not fatal but surrounding circumstances are also to be considered qua believing or not believing the confessional statement. The circumstances in view of the statement of D.W.1 and D.W.2 show that the appellants were tortured by the local police, therefore, Courts below were not justified to come to the conclusion that confessional statement was voluntarily made by the said appellants. It is admitted fact that after recording the confessional statement of the appellants was handed back to the police. Such type of confession keeping in view the peculiar circumstances highlighted hereinabove appears to be irrelevant as law laid down by this Court in Khuda Bakhsh's case 1969 SCMR 390. It is an admitted fact that convict remained in police custody before and after recording confessional statement for 24 hours and the Magistrate, had taken only one hour to record the confession of the convict. Such type of confession would not fall in the category of voluntary confession. Both the Courts blow erred in law to accept the confessional statement which was exculpatory in nature as law laid down by this Court in Suleman Shah's case PLD 1971 SC 751. It is also an admitted fact that role of accused not described by witnesses at the identification parade. Such type of identification lost its value and not relied upon as law laid down by this Court in Ghulam Rasool's case 1988 SCMR 557 and Mehmood Ahmad's case 1995 SCMR 127. It is also an admitted fact that prosecution witnesses had seen the accused persons before the identification parade as mentioned hereinabove, therefore, both the Courts below were not justified to rely such piece of evidence of identification parade. In case the statement of recovery witnesses be read with the Investigating Officer and sending the same to the expert after considerable delay was not sufficient to provide any corroboration of the ocular account. It is pertinent to mention here that learned counsel for the complainant had made much reliance upon the recovery of torch Exh.P.11 at the pointation of Tariq convict which was found blood-stained. This piece of evidence was not sufficient to connect the convicts with the commission of offence. It is pertinent to mention here that statement of eye-witnesses was not in consonance with each other. There are material contradictions and improvements in their statements which were not noted by the learned Federal Shariat Court in its true perspective. It is a settled law that person making contradictions and improvements cannot be held worthy of credence. See Muhammad Shafique Ahmad's case PLD 1981 SC 472; Roshin's case PLD 1977 SC 557 and Shahbaz Khan Jakhrani's case 1984 SCMR 42. It is a settled principle of law that witness not related to the deceased does not necessarily prove that he is a witness of truth. Intrinsic worth of his statement is the test of his veracity. It is also a settled law that injuries on a P.W. only indication of his presence at the spot but is not informative prove of his credibility and truth. See Said Ahmad's ease 1981 SCMR 795. As mentioned above in case each set of evidence is put in a juxtaposition even then prosecution has failed to connect the convicts with the commission of offence beyond any shadow of doubt. It is a settled law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. This Court does not, normally, interfere in the concurrent conclusion arrived at by the Courts below qua awarding conviction and sentence but in case the Courts below had awarded conviction and sentence while reappraisal of the evidence in violation of the law laid down by this Court then in such situation it is difficult to avoid the impression that the conclusion reached by the Federal Shariat Court and the trial Court suffer from serious errors of law and fact, which unless set right are likely to result in miscarriage of justice. We have already referred to misreading of evidence. The occurrence took place at 8-45 p.m. on the dark hours, therefore, statement of the eye-witnesses that they had seen the convicts/appellants do not appeal to the reason. It is no doubt that conviction can be awarded on the sole statement of one eye-witness subject to the condition that his statement inspires confidence. In the present case in view of the aforementioned discussion, we do not find that the statement of eye-witness inspires confidence.

7. For what has been discussed above, Criminal Shariat Appeals Nos.16, 17 of 2005 and Jail Shariat Petition No.63 of 2004 (after conversion into appeal) are allowed, the impugned judgment dated 14-11-2003 of learned Federal Shariat Court is set aside as result thereof the appellants are directed to be released forthwith if not required in any criminal case.

52. M.H./M-221/SC Appeal allowed.