ROSHAN ALI Versus State

ARSHAD MAHMOOD TABASSUM, J.--- Roshan Ali, appellant has preferred this appeal against his conviction and sentence recorded by a learned Addl. Sessions Judge, Rawalpindi, vide his judgment dated 30.10.2014, whereby on conclusion trial of case FIR No.649, dated 22.10.2012, under sections 302/34, P.P.C., registered at Police Station Saddar Barooni, District Rawalpindi, he convicted the appellant under section 302(b)/34, P.P.C., and sentenced him to imprisonment for life with further direction to pay an amount Rs.5,00,000/- to the legal heirs of Mazhar Irfan, deceased, being compensation, as required under section 544-A, Cr.P.C. In default whereof he was to further undergo six months SI. Benefit of section 382-B, Cr.P.C. was, however, extended to the convict.

2. It appears that initially Muhammad Irfan (PW.2), got registered FIR No.433, dated 17.10.2012, under section 365, P.P.C., at Police Station Sabzi Mandi, Islamabad (Exh.DC), regarding abduction of his son, namely Mazhar Irfan, by unknown culprit(s). In the said FIR, it was claimed that the deceased, on 15.10.2012, at 05:00 a.m, came to Adda from Dhok Dlaal, in his Suzuki pick up, but did not come back and that at the relevant time he was having his cell phone No.0321-9586807, which was not responding. Subsequently, on 22.10.2012, Fayyaz ul Hassan, 2401/HC (PW.10), while being posted at Police Picket Thalyan, Police Station Saddar Berooni, District Rawalpindi, received a telephonic information that in the area of Kot Kohliyan, dead body of an unknown person was lying. Accordingly, he along with Muhammad Imran, 5829/C (PW.1), reached the said place at 04:30/04:45 p.m, and found the dead body of a young man, aged about 30/32 years, lying there, wearing Zari Chappel in his feet and brown blue coloured clothes. The dead body had putrefied and foul smell was coming out of it. Thereafter, Lal Shah, SI (PW.12), reached there, who recorded statement (Exh.PP/1) of Fayyaz ul Hassan, Head Constable, inspected the dead body, prepared application for post-mortem and injury statement (Exh.PJ), inquest report (Exh.PK), and forwarded the dead body to the mortuary through Ehtesham Jabbar 5850/C (PW.6), for post mortem examination. He sent the complaint (Exh.PP/1), to the police station for registration of case, on the basis of which formal FIR (Exh.PQ), was registered. Then he went to the hospital where legal heirs of Mazhar Irfan, deceased arrived, who identified the dead body and he prepared identification memo (Exh.PA). He then proceeded back to the place of recovery of dead body and carried out the remaining proceedings there including the recovery of crime empty (P.4) of pistol .30 bore. He was transferred from the said police station on 13.11.2012, whereafter the remaining investigation was carried out by Muhammad Arshad, SI (PW.14). On 28.11.2012, father of the deceased appeared before him and made supplementary statement that his son (deceased) had cell phone No.0321-9586807 with him. He also implicated the appellant, Muhammad Riaz (PO), and an unknown person for commission of murder of his son. The IO (PW.14), obtained IMEI number of mobile phone of the deceased, which was 354829044724540, and procured data of the said mobile phone, which was produced before him by Safeer Ahmad, 6741/C (PW.4). On the basis of the said mobile-data (Exh.PW/1), it appears that on 15.10.2012, at 03:08 p.m, a phone call from mobile No.0311-9622314, was made on mobile phone having IMEI number of the deceased and during investigation the IO, came to know that the said call was made by the appellant. On, 19.02.2013, the IO arrested the appellant, who during investigation led to the recovery of a mobile phone (P.3), belonging to the deceased. On 04.03.2013, confessional statement of the accused was recorded by Ahmad Hassan Ranjha, Special Judicial Magistrate, Rawalpindi (PW.8). Ultimately the appellant was got challaned to the Court.

3. On indictment, the appellant pleaded not guilty whereupon the prosecution evidence was recorded. During trial prosecution produced as many as 14 witnesses. The material witnesses out of them are Muhammad Irfan, father of the deceased (PW.2), Dr. Hafiz Muhammad Qasim, (PW.7), Ahmad Hassan Ranjha, Special Judicial Magistrate, Rawalpindi (P.W.8), Fayyaz ul Hassan 2401/HC (PW.10), Lal Shah, SI (PW.12) and Muhammad Arshad, SI (PW.14).

Muhammad Irfan, (PW.1) father of the deceased stated as under:-

"Stated that on 15.10.2012, Mazhar Irfan my son was abducted from Sabzi Mandi Islamabad along with Suzuki Pick up EG/839 and I got registered FIR No.433 dated 17.10.2012, under section 365, P.P.C. at Police Station Sabzi Mandi, Islamabad. Subsequently on 22.10.2012, I received information that dead body of my son was found in the area of Police Station Saddar Berooni on which I went to Civil Hospital, Rawalpindi, and identified the dead body of my deceased son from his clothes and Zari Chapple. Accordingly identification memo EX.PA was prepared by the Investigation Officer which was signed by me, My signatures are EX.PA/1 . On 5.12.2012, I saw Mazhar Irfan deceased my son alongwith Roshan Ali accused present in the court and Riaz taking tea in a hotel in Islamabad."

Dr. Hafiz Muhammad Qasim (PW.7), stated as under:-

"Stated that on 22.10.2012, at 11:45 p.m. Ehtesham Jabbar/C 4850 brought the dead body of an unknown male of aged 30 to 32 years for post mortem examination. I conducted post mortem same time same day. My observations were as under:-

It was the dead body of a male lying flat on mortuary table wearing black dark blue shalwar and Kameez. Body was greatly putrefied i.e. in advance stage of decomposition. Eyes, lips, ears, penis, testis, fully decomposed. Skin was fully decomposed. Nails absent. Scalp was decomposed with few long hair loosely attached with maggots crawling all over the body. Mussels were decomposed. Soft tissues were gone. Soft tissues were putrefied. A lacerated wound 8 x 6 cm with bones (Tibia and fibula) fractured and protruding through the wound. Face was completely disfigured and un-identifiable due to putrefaction.

CHEST

All organs were putrefied. I sent full heart and specimen of lungs to Histopathologist.

ABDOMEN

All organs were putrefied. I sent Viscerae to Chemical Examiner.

OPINION

After conducting autopsy specimen of viscerae sent to Chemical Examiner for detection of any poison. Full heart and specimen of lung sent to Histopathologist for determination of any Pathology. Opinion regarding cause of death will be given after receiving the reports. After completion of post mortem, I handed over the stitched dead body with clothes, post mortem report, police papers signed by me, two sealed envelopes and sealed bottle to the constable above referred. EX.PH is the correct carbon copy of post mortem report which is in my hand and signed by me. I also endorsed application EX.PJ for post mortem examination and inquest report EX.PK ."

Ahmad Hassan Ranjha, Special Judicial Magistrate, Rawalpindi (PW.8), deposed as under:-

"Stated that on 1.3.2013, Roshan Ali accused was produced before me for recording of his statement under section 164, Cr.P.C. by the police. As the accused was brought from police custody, hence, he was sent to judicial lock up and was summoned back on 4.3.2013 for the purpose of his statement. Order EX. PL dated 1.3.2013, in my hand writing and signed by me. Robkar EX. PN is also signed by me. On 4.3.2013, Roshan Ali accused was again, produced before me whose statement under section 164, Cr.P.C after all the legal formalities was recorded by me. EX. PN is the whole proceedings along with statement of accused under section 164, Cr.P.C all of which are in my hand writing and signed by me. I also obtained thumb impression of Roshan Ali accused on three places which are EX. PN/1, EX. PN/2 and EX. PN/3. I also allowed application of the Investigating Officer for obtaining attested copy of the statement of the accused EX. PO is my order for allowing the same."

The depositions made by Fayyaz ul Hassan, 2401/HC (PW.10), have been narrated in the earlier part of this judgment.

Lal Shah, SI (PW.12) and Muhammad Arshad SI (PW.14), are the Investigation Officers of this case. Different steps taken by them during investigation of the case have been narrated in the earlier portion of this judgment, hence, there is no need to repeat the same.

4. On conclusion of prosecution evidence, the appellant was examined under section 342, Cr.P.C. and the entire prosecution evidence was put to him in the shape of questions which he termed as incorrect. The appellant tendered in his defence copy of FIR (Exh.DC) and report of the Serologist (Mark-A), but declined to enter the dock to state on oath in disproof of the allegation levelled against him by the prosecution as required under section 340(2), Cr.P.C. In his defence the appellant pleaded as under:-

"I am innocent. I believe that Mazhar Irfan is a missing person. The Suzuki data is in possession of father of Mazhar Irfan. There is no motive against me. I have not committed any offence. I have been falsely involved by the father of Mazhar Irfan. Who during arrest time of me demanded Rs.Five Lac, which I could not pay, therefore, father of Mazhar Irfan has involved me in the case."

5. Ultimately the learned trial Court, after hearing arguments of learned counsel for the parties, convicted and sentenced the appellant as aforesaid. Hence, this appeal.

6. Learned counsel for the appellant has argued that the learned trial Court has mis-read and mis-construed the evidence available on record and illegally convicted the appellant on the basis of retracted judicial confession, which was inadmissible; that admittedly it was a case of no evidence and claim of the prosecution that father of the deceased had implicated the appellant in his supplementary statement was also false as the said PW (PW.2), did not support the prosecution case when entered the dock; that the learned Special Judicial Magistrate (PW.8), committed patent illegalities while recording so called confessional statement of the appellant and such statement was not free of doubt and also could not be termed as voluntary in nature. He further maintained that even the said statement was exculpatory in nature as such was inadmissible. Learned counsel for the appellant has further maintained that even the prosecution failed to establish that the dead body recovered was in fact dead body of Mazhar Irfan (deceased), as it was unidentifiable dead body. He has, therefore, concluded that the prosecution case is full of doubts and the appellant deserves acquittal while extending benefit of doubt to him.

7. Conversely, learned DPG has fully supported the impugned conviction and sentence by maintaining that the appellant had voluntarily made judicial confession of his guilt and on the basis of such confession, he was rightly been convicted and sentenced.

8. I have heard learned counsel for the parties and have myself perused the record.

9. There is no denial of the fact that it was a case of no evidence as none had seen the appellant and his co-accused (since PO) committing murder of the deceased. The appellant was not implicated either in the FIR or in the statement of father of the deceased, which was recorded soon after recovery of dead body. An unidentified dead body was recovered in this case on 22.10.2012, but Muhammad Irfan, father of the deceased (PW.2) stated in his statement before the Court that on 05.12.2012, he had seen Mazhar Irfan, deceased along with Roshan Ali, appellant while taking tea in a hotel in Islamabad. The relevant portion of his statement reads as under:-

"On 5.12.2012, I saw Mazhar Irfan deceased my son along with Roshan Ali accused present in the court and Riaz taking tea in a hotel in Islamabad."

As he uttered these words while appearing as PW2, he was got declared hostile by the learned Assistant District Public Prosecutor, and with the leave of the Court, he cross-examined him. It appears that during cross-examination, he did not specifically even suggested this PW that he had not seen the deceased in the company of the appellant and his co-accused on the stated date. It appears that father of the deceased has not supported claim of the prosecution that he had implicated the appellant in his supplementary statement.

10. For proper appreciation of the prosecution evidence, I deem it appropriate to reproduce hereinbelow the confessional statement of the appellant which is available on record as Exh.PN. It reads as under:-

11. As per statement of Muhammad Imran, 5829/C (PW.1), who had initially discovered the dead body of the deceased, the dead body appeared to be a of person aged about 30/32 years. Meaning thereby that at that time the dead body was not identifiable. Similarly, according to Dr. Hafiz Muhammad Qasim (PW.7), the age of the deceased appeared to be 30/32 years. According to the said doctor the dead body was greatly putrefied i.e. in advance stage of decomposition, thus was not identifiable. It is case of the prosecution that the deceased was done to death on 15.10.2012 (confessional statement Exh.PN of the appellant refers), and the post mortem examination was conducted on 22.10.2012. It was not asked from the doctor as to the duration between death and post-mortem, however, according to the post mortem report (Exh.PH) time between death and post-mortem examination was within two to three weeks, whereas claim of the prosecution is that the deceased was done to death seven days prior to the post-mortem examination. This is in contradiction with the opinion of the doctor. From the statement of the doctor it appears that perhaps within seven days such advance stage of decomposition could not be expected. Father of deceased, namely Muhammad Irfan (PW.2) states that he had identified the dead body in the hospital from his clothes and Zari Chappel, but the said Zari Chappel has not been produced nor got exhibited during trial. The claim of PW.2 that he had identified dead body on 22.10.2012, also appears to be incorrect for the reason that identification memo of the dead body (Exh.PA) is dated 23.10.2012. Moreover, PW.2 during cross-examination states:-

"Volunteered I read proclamation in the newspaper regarding finding of the dead body."

If the dead body was recovered on 22.10.2012, then how come PW.2 could read the proclamation in the newspaper on the same day and reach the hospital to identify the dead body. This means that this piece of evidence has been fabricated by the I.O, and cannot be relied upon keeping in view the fact that the dead body was not identifiable and Zari Chappel on the basis of which PW.2 claims to have identified the dead body was not produced. Moreover, according to the doctor and PW.1, the dead body appeared to be of a male aged about 30/32 years, whereas as per Exh.DC the deceased was aged about 22 years, therefore, it appears quite doubtful as to whether it was dead body of Mazhar Irfan or somebody else.

12. The blood stained earth was collected from the place where the dead body was found and the same was forwarded to the Chemical Examiner, report whereof Mark-A is in negative and suggests that the same was not stained with human blood. On this score, it is also even doubtful that deceased was done to death at the place wherefrom the dead body was recovered and which was as per claim of the prosecution pointed out by the appellant to be the place where the deceased was done to death. Needless to observe that the place of recovery of dead body was already in the knowledge of the IO, and PW.1, therefore, pointation of the same by the appellant was of no significance nor could be given any importance.

13. The father of the deceased claims to have identified the dead body on 22.10.2012, yet he submitted application (Exh.PB) on 05.12.2012, expressing his suspicion that the deceased was done to death by the appellant and his co-accused persons. He also claimed that the deceased was having wrist watch Seiko Five, however, such wrist watch Seiko Five was not recovered during investigation of the case. Such a delay on the part of the complainant in making application (Exh.PB) further makes the prosecution case highly doubtful and it appears that at a subsequent stage such evidence was fabricated. The dead body was recovered on 22.10.2012, the appellant was arrested on 19.02.2013, yet scaled site plan (Exh.PV) was got prepared on 15.03.2013, and in the said site plan the culprit has been mentioned as unknown although by that time the prosecution had procured judicial confession of the appellant on 04.03.2013, thus all the pieces of prosecution evidence appear to be based on fabrication and no independent corroboration is available to the judicial confession of the appellant attributed to him by the prosecution.

14. As per claim of the prosecution the appellant was arrested on 19.02.2013, and if his conscience had pricked him and had forced him to make confession of his guilt what prevented him to make such a statement promptly and why the IO, took about 12 days to secure confessional statement of the appellant. This is a circumstance which casts doubt on the veracity of the claim of the prosecution that the appellant made judicial confession voluntarily, moreso when the appellant had retracted his confession. The said confessional statement of the appellant is contradicted by the other circumstances of the case. The date of occurrence as disclosed by the appellant in his judicial confession was 15.10.2012, whereas this date of occurrence is not corroborated by the post mortem report rather judicial confession of the appellant is in conflict with the said post mortem report. Again this claim of the prosecution that the deceased was done to death by causing fire arm injuries and that as many as three fire shots were made, but only one crime empty was recovered. The said crime empty has also not been corroborated by the recovery of weapon of offence.

15. The doctor has categorically stated during cross-examination that he had not observed any fire arm injury on the dead body of the deceased while claim of the prosecution is that the deceased was done to death by causing fire arm injuries to him. It appears that the learned trial Court on the basis of surmises and conjectures has held that the deceased was done to death by causing fire arm injuries.

16. Thus the judicial confession attributed to the petitioner is in conflict with all other evidence produced by the prosecution, hence, cannot be relied upon. The element of truth, therefore, is missing in the judicial confession attributed to the appellant. It has been ruled in the case titled "The State through A.G., N.W.F.P, Peshawar v. Waqar Ahmad" (1992 SCMR 950) as under:-

"18. The learned High Court has discarded the confession of the appellant on the ground that "though the retracted confession of the appellant remained uncorroborated by any independent evidence as a rule of prudence there should have been some independent evidence in support of the retracted confession which we notice is not available in this case". When an accused has given an account of the incident and its truth is not doubted and such statement is proved to be correct in all its parts, such solitary piece of evidence can be used against the accused without any further corroboration. There is no basic difference between a confession or a retracted confession, if the element of truth is not missing. It is always a question of fact which is to be adjudged by the Courts on the attending circumstances of a particular case."

Similarly the Apex Court in the case titled "Nadir Hussain v. The Crown" (1969 SCMR 442), observed as under:-

"Mr Sharif contended on behalf of the Crown that these infirmities in the prosecution evidence only create a doubt as to the identity of the corpse, but do not in any way affect the value of the confession which has been held to have been voluntarily made. This argument overlooks the rule of caution universally applied to the cases of retracted confession that such confessions should not be acted upon unless corroborated in material particulars by reliable evidence. A material part of the confession in question is that the murder to which it relates took place on 12th April 1951, and in view of what has been stated above it is impossible to hold that this part of the confession has been corroborated satisfactorily. On the other hand, the statement in Exh. P.A. referred to above clearly contradicts and confession and renders the statement of the appellant that he made it under pressure probable, especially when the fact that he was in police custody for ten days before he made the confession and the richness of detail in it are taken into consideration."

17. It is also worth mentioning here that the voluntary nature judicial confession attributed to the appellant is also quite doubtful for the reason that learned Special Judicial Magistrate, Rawalpindi (P.W.8), in his statement has stated as under:-

"I do not remember as to whether on 4.3.2013 the accused was brought by the guard of Central Jail, Rawalpindi, or by the Investigating Officer. However, I had only mentioned that the accused appeared in custody........................... It is correct that I did not ask specific question from the accused for telling him that he would not be handed over to the police. Volunteered I mentioned this fact prior to putting the questions to the accused. It is incorrect to suggest that no confessional statement of the accused was recorded by me and I inconnivance with the complainant party obtained thumb impressions of the accused on blank papers only in order to strengthen the prosecution case."

18. The above discrepancies and short-comings in the prosecution evidence lead this Court to hold that that the impugned conviction and sentence appears to be unjustified and not safe in view of the settled principle of criminal jurisprudence that the benefit, of even a single doubt has to be extended to the accused, not as a grace, but as of right. So has been ruled by the apex Court, in the case titled "Tariq Pervaiz v. The State" (1995 SCMR 1345), the relevant portion whereof reproduced as under:-

"The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt, in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

19. In the above circumstances, I am of the considered view that it may not be safe to convict the appellant on the basis of discrepant, sketchy and unreliable evidence and that the learned trial Court illegally and unjustifiably while mis-reading and mis-construing the evidence available on record has convicted and sentenced the appellant. The impugned conviction and sentence is, therefore, set aside by accepting the instant appeal. Resultantly, the appellant stands acquitted of the charges. He is in jail and shall be released forthwith, if not required in any other case.

HBT/R-4/L Appeal accepted.