ASLAM Versus STATE
QAISER AHMED HAMIDI, J. -- Appellant Ali Ghulam was tried alongwith Ghulam Hussain, and Ghulam Rasool by Mr. Hyder Bakhsh Shaikh, Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, for the offence under section 302/149, P.P.C., who found the appellant guilty for the said offence and vide judgment dated 18-7-1992 sentenced him to death, subject to the confirmation by this Court and to pay a fine of Rs.60,000 (Rs. sixty thousand) or in default to suffer R.I. for three years. The fine, if recovered, was to be paid to legal heirs of all the deceased persons, namely, Amir Bux, Ali Akbar, Ibrahim, Ali Nawaz son of Allah Warayo, Muhammad Ayub, and Ali Nawaz son of Abdul Ghafoor in equal shares. By the same judgment the learned Judge found co-accused Ghulam Hussain and Ghulam Rasool not guilty and acquitted them. A reference has also been made to this Court for confirmation of death sentence awarded to appellant. By this judgment we propose to dispose of Criminal Appeal No.52 of 1992 and Confirmation Case No.2 of 1992 together.
2. On 26-8-1991 at about 7 p.m. P.Ws. Khudadino and Mir Muhammad were returning to their village alongwith deceased Ali Nawaz son of Abdul Ghafoor, Ali Nawaz son of Allah Warayo,, Ali Akbar, Muhammad Ibrahim, Amir Bux and Muhammad Ayub. When the above persons reached near the bridge of Bilori Minor, District Hyderabad (Sindh), they were overpowered by 8 or 9 persons who were armed with Klashnikov rifles. Those culprits who were found to be dacoits made the above persons to sit at the place of Wardat. The dacoits then opened fire towards those persons causing the death of all except Khudadino who was not hurt, and serious injuries to Muhammad Ibrahim and Mir Muhammad. They also gave a chit for Muhammad Usman stating therein that they have taken revenge of the murder of Annu Khoso. Khudadino who saw the incident went running to complainant Muhammad Hasan and apprised him of the incident. Muhammad Hasan found his brother Muhammad Ibrahim and P.W. Mir Muhammad in critical condition and remaining five persons dead riddled with bullets. Muhammad Ibrahim also succumbed to his injuries while being carried to hospital. On the same day at 11 p.m. the F.I.R. of this case was registered at Tando Jam Police Station Mukhtar Hussain Shah A.S.I. took up the initial investigation. He inspected the place of occurrence and recovered 80 empties of Klashnikov rifles from there. Further investigation was carried out by Muhammad Yaqub S.H.O., who too died subsequently in an encounter with dacoits. During the course of investigation the Police Officer arrested the present appellant on 3-9-1991 and recovered one double barrel gun of .12 bore with 10 live cartridges from his possession. On 5-9-1991 the appellant was produced before A.C.M. Tando Jam who recorded his judicial confession. After usual investigation the appellant and co-accused Ghulam Hussain and Ghulam Rasool (since acquitted) were sent up to stand trial. Accused Muhammad, Hidayat, Warial and Iqbal could not be arrested and they were sent up in absentia.
3. The appellant pleaded not guilty to the charge framed against him and claimed a trial. At the trial the prosecution, examined Muhammad Hasan (P.W.1), Khudadino (P.W.2), Muhammad Achar (P.W.3), Mir Muhammad (P.W.4), Haji Wahid Bux Tapedar (P.W.5), Haji (P.W.6), Atta Muhammad Abbasi A.C.M. (P.W.7), Dr. Bashir Ahmad (P.W.8), Dildar Ali H.C. (P.W.9) and Mukhtar Hussain Shah A.S.I. (P.W.10).
4. In his statement recorded under section 342, Cr.P.C. the appellant has denied the case of the prosecution. He examined Kamal Khan (D.W.1) and Muhammad Yousuf (D.W.2) in his defence.
S. On the assessment of evidence available on record the learned Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, found the appellant guilty for the offence under section 302/149, P.P.C., and convicted him accordingly.
6. This case is illustrative of the limits of brutal savagery to which the persons may be driven whose passions have been roused by the instinct of retaliation.
7. The evidence against the appellant was three-fold. Firstly, there was direct testimony consisting of Khudadino (P.W.2), and Mir Muhammad (P.W.4). Secondly, there was recovery of D.B. gun of .12 bore with live cartridges proved through Dildar Ali H.C. (P.W.9). -Thirdly, there was retracted judicial confession of appellant which has come on record through Atta Muhammad Abbasi, A.C.M. (P.W.7).
8. None of the eye-witnesses including Mir Muhammad (P.W.4) who is the injured person in this case has uttered a word against the appellant. Complainant Muhammad Hasan (P.W.1) who had set the law in motion also did not implicate him Khudadino (P.W.2) has admitted in clear terms that the appellant and co-accused Ghulam Hussain and Ghulam Rasool (since acquitted) are his co-villagers and none of them was present at the place of Wardat alongwith the dacoits.
9. The evidence of the recovery of the gun from the possession of appellant was not relied upon by the learned trial Judge who discarded it for the following reasons:--
"The prosecution has led the evidence of recovery of a gun from the accused which was said to have been used by him in the commission of the above crime. No empty cartridge was recovered from the Wardat and, therefore, that would suggest that the accused, although being armed with a gun, and being member of that unlawful assembly, did not use his gun."
10. Thus, we are left with the retracted judicial confession of appellant (Exh.26) which is sought to be proved through Atta Muhammad Abbasi, A.C.M. (P.W.7). In order to appreciate the value of this confessional statement (Exh.26) it will be beneficial to reproduce it in extenso:--
"I have not been given promise by any one nor I have been threatened or given any inducement by any one and I am giving this statement out of my own free will. On 26-8-1991 at about 6-00 p.m. I was standing on my lands when Hidayat alias Hidu Khoso, who was armed with a KK, Ghulam Rasool Khoso, who armed with a gun, Iqbal Khoso, Wariyo Lashari, Ghulam Hussain and Muhammad Dhamach who were all armed with KKs, came to me and told me that they would eat meals with me. They told me to bring my gun so that all of them would go for hunting (Shikar). I served them meals with Guwar vegetable and then I took my gun and went alongwith them. On the way Hidu Khoso told me that he wanted to take revenge of his brother Annu Khoso who was killed by Dhamachs. Thereafter at about 7-30 we reached Bilori Minor where all of us concealed ourselves. After some time seven (7) persons who were all by caste Dhamachs, were found coming from Tando Qaiser village and who were lined up by Hido Khoso who told them that he would take revenge from them for his brother Annu Khoso, because Usman Dhamach had got killed his brother Annu Khoso. Upon this Dhamachs entreated upon him to leave them but Hidu Khoso and others fired at them with their KKs and I also fired from -my gun and then all of them fell down. Among those persons there was a little boy to whom Hidu Khoso gave a chit saying that he was going away after taking revenge of Annu Khoso. Thereafter I went alongwith them and then I left them and went away because on the next day I had some work in Court."
11. Atta Muhammad Abbasi (P.W.7) who was working as A.C.M. has testified that he had recorded the confession of the appellant after observing all the formalities of law and he was satisfied that this statement (Exh.26) was true and voluntary. On a close examination of the evidence of Atta Muhammad Abbasi, A.C.M. (P.W.7) it is obvious that he had not fully complied with the law as laid down by the superior Courts of this country for recording judicial confession. He admitted in his cross-examination:--
(i) ???????? That the name of the appellant was not mentioned in the first page of the prescribed form.
(ii) ??????? There is no mention in the body of confession that the appellant was informed that he was before a First Class Magistrate and not before a Police Officer.
(iii) ?????? There is no mention in the body of confessional statement that the appellant was informed that he would not be sent back to police in either case, whether he makes confession or not.
(iv) ?????? There is no mention of second warning given to the appellant before recording the actual confession in the body of confession.
(v) ??????? No question was asked from the appellant as to why he was making confession.
12. It is undisputed that the police use third-degree methods for the purpose of extracting judicial confession from the accused. It is, therefore, necessary to examine such statement, carefully before placing implicit dependence upon them. The danger is again aggrevated where confessional statement constitutes the only evidence to prove charge against an accused. The perusal of the confession and the evidence of Atta Muhammad Abbasi, A.C.M. (P.W.7) however, makes it clear that the confession (Exh.26) is neither voluntary nor true. From the observations made in para. 11 ante, we are satisfied that no sincere effort was made to remove the appellant from the influence of the police and his confession was recorded in mechanical way. In somewhat similar circumstances where the Magistrate did not inform the accused that he was before a First Class Magistrate the validity of a judicial confessional was doubted in the case of Dost Muhammad v. The State, reported in P L D 1982 Kar.1000.
13. There is also delay of two days in recording the judicial confession and in such a situation the confession loses its evidentiary value. The cases of Tooh v. The State reported in 1975 P Cr. L J 440, Abdul Majid v. State reported m P L D 1977 Kar. 760 and Syed Azeem Shah v. The State reported in P L D 1987 Quetta 96, are relevant on this point.
14. The judicial confession (Exh.26) is again in direct conflict with the medical evidence. The perusal of this confession shows that the appellant who was armed with a D.B. .12 bore gun had fired at deceased persons and injured Mir Muhammad (P.W.4) by means of it. No empty of .12 bore gun was, however, found at the place of occurrence and the learned trial Judge has himself observed that this gun was not used in this unfortunate incident. Thus, the statement of the appellant that he had fired towards the deceased appears to be incorrect.
15. The learned trial Judge has convicted the appellant on the basis of retracted judicial confession, which according to him was sufficient to base conviction. In coming to that conclusion he felt himself to be bound by the decision of the Supreme Court reported as The State through A: G., N: W.F.P., Peshawar v. Waqar Ahmad 1992 S C M R 950. We have no cavil with the proposition of law enunciated in this authority, but the learned Judge did not appreciate that what the Supreme Court expressed was that if the confession is voluntary and its truth is not doubted then such solitary piece of evidence could be used against the accused without any further corroboration. Testing the confession of the appellant (Exh.26), by the aforesaid case of the Supreme Court, we do not feel convinced that the appellant took part in the aforesaid incident of murder and murderous assault.
16. As a result, therefore, of this unsatisfactory state of evidence in this case we find ourselves unable to uphold the conviction of the appellant and giving the benefit of doubt, we set aside his conviction and sentence and would direct that he be set at liberty, if not wanted in any other case.
17. By a short order dated 12-10-1992 we had accepted the appeal and rejected the reference. These are reasons for the said order.
N.H.Q./A-1420/K ????????????????????????????????????????????????????????????????????????????? Appeal accepted.