ZAHID HUSSAIN Versus State
SHAUKAT ALI RAKHSHANI, J. ---Homicidal demise of Hidayatullah for carjacking by the culprits booked pursuant to FIR bearing No.390/2015, (Ex.PA) registered on 30th of September, 2015 under Section 302 of The Pakistan Penal Code (XLV of 1860) ("Penal Code"), later on converted into 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, VI of 1979 ("Harabah") along with Sections 201, 411, 419 and 468 of The Penal Code within the precincts of Police Station Topi, District Swabi, culminated in conviction of appellant Zahid Hussain under Section 302(b) of The Penal Code for committing murder of Hidayatullah (deceased) and sentenced to undergo imprisonment for life as Ta'zir; directing him to pay compensation under Section 544-A of The Code of Criminal Procedure (Act V of 1898) ("The Code") to the tune of Rs. 2,00,000/- (two lacs only) to the legal heirs of deceased, recoverable as arrear of land revenue and in default to suffer further S.I. for six months. Appellant Zahid Hussain was also convicted under Section 394 of The Penal Code and sentenced to undergo rigorous imprisonment for a period of 10 years along with fine of Rs.100,000/- (one lac) and in default of fine to suffer further S.I for three months, penned down by the learned Additional Sessions Judge/Judge, Model Criminal Trial Court (MCTC), Swabi ("Trial Court") rendered on 08th of October, 2019 ("Impugned Judgment"); the above sentences were ordered to run concurrently with the premium of Section 382-B of The Code.
Whereas learned Trial Judge by means of impugned judgment acquitted co-accused Ihsanullah, Muhammad Nawaz facing trial as well as Nadeem and Abid Hussain in absentia. Co-accused Mst. Mahwa alias Mawa (wife of convict-respondent Zahid Hussain) was also acquitted in consequence of a separate trial held by a Special Court, constituted under the Juvenile Justice System Ordinance, 2000. Against her acquittal appellant Ihtbar Khan filed Criminal Appeal No.28-I of 2019. Convict-appellant Zahid Hussain has put in Criminal Appeal bearing No.26-I of 2019 against his conviction and sentence, whereas the father of the deceased namely Ihtbar Khan (PW.9) has preferred acquittal Criminal Appeal bearing No.27-I of 2019 against respondents Ihsanullah and Muhammad Nawaz as well as Criminal Appeal No.28-I of 2019 against acquittal of Mst. Mahwa alias Mawa. Petitioner Ihtbar Khan also preferred Criminal Revision Petition bearing No.03-I of 2019 for enhancement of sentence of respondent Zahid Hussain, however, did not file any appeal against respondents Abid Hussain and Nadeem, who were acquitted in absentia.
Pertinently, on 25th of February, 2020 while arguing the case at some length, Mr. Asfandyar Yousafzai, Advocate, learned counsel for the appellant, conceding not to have sufficient evidence against respondent Mst. Mahwa alias Mawa did not press the Criminal Appeal bearing No.28-I of 2019 and sought withdrawal, thus same was dismissed as withdrawn being not pressed so also graciously conceded not to have any material evidence against respondent Muhammad Nawaz, requesting not to proceed with the appeal of Muhammad Nawaz, therefore, Criminal Appeal bearing No.27-I of 2019 to his extent was dismissed as withdrawn.
2. As the fabric of the captioned lis is knitted with the same thread, arising out of the common judgment impugned herein, henceforth same are being disposed of through, the consolidated judgment in hand.
3. On 30th of September, 2015 at about 0700 hours, Gauher Khan S.I. (PW.4) received information about an unknown dead body aged about 42/43 years found within the area Stepa Neher, situated at village Menai, who had been done to death by unknown culprits with firearm, whose hands were found tightened at his back with black colour handkerchief having stripes, whereof report in shape of mursaila (Ex.PA/1) was made and consequent thereto FIR bearing No.390/ 2015 (Ex.PA) was lodged by S.I. Ayanullah (PW.1) within remits of Police Station Topi, District Swabi.
Injury sheet (Ex.PW.4/1) and inquest report (Ex.PW.4/2) were prepared and dead body of deceased Hidayatullah was sent to Civil Hospital Topi for post-mortem examination, where at about 11:00 a.m. Dr. Arshad Khan, District Specialist, (PW.7) conducted the post-mortem of the deceased Hidayatullah, issuing post-mortem report (Ex.PM) with the observation that a well built man with black complexion and mustaches was brought, whose hands were found tied with a large size handkerchief at his back. In the post-mortem report (Ex.PM), MLO (PW.7) observed a single entry wound with charring marks just above right ear and exit wound behind left ear, resulting into an excessive bleeding; being the cause of death. The probable duration between injury and death was mentioned to be instantaneous, whereas probable duration between death and post-mortem was reported as 10-14 hours.
4. As the investigation progressed, Manzoor Alam I.P (PW.13) being investigating officer, rushed to the crime scene, secured blood swabs from the place of deceased Hidayatullah through recovery memo (Ex.PW.11/1), a bullet casing of .30-bore freshly discharged through recovery memo (Ex.PW.11/2), a pair of black chappal belonging to the deceased through recovery memo (Ex.PW.11/3), blood stained cloth of the deceased, some hair and tooth of the deceased for the purpose of DNA through recovery memo (Ex.PW.11/4), prepared site plan (Ex.PB) and also did some ancillary jobs necessary for investigation.
Investigating officer (PW.13) collected Call Data Record ("CDR") pertaining to cell phone number of deceased bearing No.0300-5957307 consisting of fifteen sheets produced in Court as (Ex.PW.13/9). He traced out one Noor Rehman (PW.8) being owner of the plundered car bearing registration No. PU-598 Islamabad XLI, Toyata Corolla, Model 2009 and got recorded his statement on 17th of October, 2015 under Section 164 of The Code before Syed Zahid Shah (PW.12) the then Judicial Magistrate, who nominated convict-respondents Zahid Hussan and acquitted respondents Muhammad Nawaz and Mst. Mahwa alias Mawa. Investigating officer (PW.13) also took into possession documents of the said vehicle in question through recovery memo (Ex.PW.13/12) and copy of sale deed (Ex.PW.13/13). According to him, he issued memo (Ex.PW.13/14) for replacing Sections 302/ 34 of The Penal Code with Section 17(4) Harabah.
Heading with the investigation on 7th of November, 2015 father of the deceased Ihtbar Khan (PW.9) got recorded his statement before Judicial Magistrate, wherein he nominated Zahid Hussain, Mst. Mahwa alias Mawa and Muhammad Nawaz Khan involved in the alleged felony. On 20th of November, 2015 respondent. Muhammad Nawaz was arrested; during interrogation he disclosed that convict-respondent Zahid Hussain after commission of the crime called him to Chakdara District Lower Dir, convict-respondent Zahid Hussain tried to hand over the car in question to him but he refused to receive the said car, whereupon the said car was handed over to his brother Abid Hussain and his friend Nadeem Khan, who were declared proclaimed offenders. Convict-respondent Muhammad Nawaz was also produced for recording his confessional statement before the Judicial Magistrate (PW.12), but he refused, thus was sent to judicial custody. On 9th of January, 2016 convict-respondent Zahid Hussain was arrested and at the time of his arrest .30-bore pistol (P-10) along with 10 live cartridges were recovered from his personal search, secured through recovery memo (Ex.PW.3/1); whereof a separate case bearing FIR No.25/2016 dated 9th of January, 2016 under Section 15 of Arms Act, 2013 of KPK was lodged at Police Station Topi. During interrogation, convict-respondent Zahid Hussain disclosed the use of pistol (Ex.P-10) in homicide was taken into possession in the instant case as a crime weapon through recovery memo (Ex.PW.3/1), whereafter convict-respondent Zahid Hussain made pointation and investigating officer (PW.13) prepared memo of pointation (Ex.PW.11/5), making additions with red ink in the original site plan. The car in question bearing No. PU-598 Islamabad white in colour, model 2009 was also recovered on the pointation of convict-respondent Zahid Hussain with two number plates of the said registration lying in the trunk of the car, which were taken into possession through recovery memo (Ex.PW.11/ 6), thus Section 411 of The Penal Code was inserted through memo (Ex.PW.13/31).
5. Acquitted respondent Ihsanullah was arrested on 12th of January, 2016 through arrest card (Ex.PW.13/ 33) as he was brought into the picture as complicit by convict-respondent Zahid Hussain; he also made pointation of place of occurrence whereof memo of pointation (Ex.PW.11/7) was prepared; his confessional statement (Ex.PW.12/3) was recorded by Judicial Magistrate (PW.12), following recording of second supplementary statement of Ihtbar Khan (PW.9) under Section 164 of The Code, involving Ihsanullah for the first time as culprit. The car in question recovered on the pointation of convict-respondent Zahid Hussain was examined through Forensic Science Laboratory ("FSL") whereof report (Ex.PK/1) was received showing the chassis number to be deciphered; the recovered pistol was also sent to the FSL whereof positive FSL report (Ex.PK/2) was received.
On conclusion of the investigation challan was bifurcated, whereof one before the Trial Court and other regarding Mst. Mahwa alias Mawa before the special Court constituted under Juvenile Justice System Ordinance, 2000 were filed; Nadeem and Abid Hussain stayed away from the course of justice, thus they were declared proclaimed offenders.
6. Entering the plea of denial of the formal charge framed under Section 17(4) Harabah wedded Sections 201, 411, 419 and 468 of The Penal Code and claim of trial by the accused facing trial, led the prosecution to produce as many as 14 (fourteen) witnesses to substantiate the accusations. After being examined under Section 342 of The Code, none of them stepped into the witness box to be examined in their defence nor did they desire to produce any other defence witness.
7. On conclusion of the trial, the learned Trial Judge convicted and sentenced appellant-respondent Zahid Hussain as mentioned in the para (supra) and acquitted the remaining accused persons facing trial as well as who were even not before the Court.
8. We have anxiously and carefully examined the entire record cover to cover with the able assistance of Mr. Asfandyar Yousafzai learned counsel representing the father of deceased Ihtbar Khan, Mr. Arshad Zaman Kayani, learned counsel for the appellant Zahid Hussain as well as Mr. Wilayat Khan, Assistant Advocate General, KPK for the State.
9. Mr. Arshad Zaman Kiyani, learned counsel for the convict-appellant Zahid Hussain, while arguing in Criminal Appeal bearing No.26-I of 2019 seeking acquittal of convict-appellant Zahid Hussain inter alia contended that undeniably, the occurrence has gone un-witnessed and that the conviction and sentence awarded to the appellant Zahid Hussain has been based upon circumstantial evidence. According to him, on the basis of a retracted confessional statement of Ihsanullah, conviction of Zahid Hussain was recorded but to the utmost astonishment, the said confessional statement was not relied upon to the extent of maker himself for the same being exculpatory in nature, henceforth, he was acquitted of the charge, which has made the impugned judgment erroneous and unsustainable, having no sanctity in the eyes of law. He maintained that the confessional statement of Ihsanullah even otherwise is inadmissible for not being recorded in accordance with law, particularly, when after recording so-called confessional statement he was handed over to the investigating officer; not asking the requisite questions and mentioning the precautions taken by the Recording Magistrate in his certificate (Ex.PW.12/3). Regarding recovery of pistol Mr. Arshad Zaman Kiyani, Advocate submitted that since it was not recovered in consequence of a disclosure, therefore, it had no relevance; positive report of FSL (Ex.PK/ 2) of pistol is also unworthy of credence as not only both the pistol and the empty were sent together but with an unexplained considerable delay of 19 days. He urged that the pointation of the crime scene by the convict-appellant Zahid Hussain is also insignificant for the crime scene was already known to the police, thus such pointation in no way falls within the purview of Article 40 of the Qanun-e-Shahadat Order, 1984 ("Order of 1984"). Continuing with his arguments and banking upon the material contradictions with regard to the recovery of pistol and plundered car, learned counsel for the appellant argued that neither sketch of the place, wherefrom the car was recovered was prepared nor any private witness was associated, establishing the possession of the place, more particularly, the memo of recovery (Ex.PW.11/ 6) does not disclose that after taking away the vehicle in question he had parked the same in an under construction market, probably accessible to every and anyone. He placed reliance upon the following reported judgments; 2019 SCMR 652, PLD 2019 SC 64, 2019 SCMR 129, PLD 2010 SC 642, 2013 YLR 839 and PLD 2009 SC 53.
On the other hand, Mr. Asfandyar Yousafzai, Advocate, appearing on behalf of father of deceased Ihtbar Khan (PW.9) strenuously refuted the arguments so advanced by learned counsel for convict-appellant Zahid Hussain and vehemently argued that the prosecution without any doubt has proved its case to the hilt against the convict-appellant Zahid Hussain as well as co-accused Ihsanullah, whereas to the extent of Mst. Mahwa alias Mawa Muhammad Nawaz, Abid Hussain and Nadeem are concerned, since the prosecution could not produce overwhelming evidence, therefore, on 25th of February, 2020 Criminal Appeal bearing No.28-I of 2019 against acquittal of Mst. Mahwa alias Mawa and Criminal Appeal bearing No.27-I of 2019 to the extent of acquitted-respondent Muhammad Nawaz at serial No.2 were not pressed so also withdrawn; the acquittal of Nadeem and Abid Hussain were also not challenged, showing bona fide conduct of father of the deceased. He maintained that the confessional statement of respondent Ihsanullah was voluntarily recorded and is a true account of the culpability of convict-respondent Zahid Hussain and respondent Ihsanullah; both of them conjointly in furtherance of their common intention committed murder of the deceased Hidayatullah and took away his car bearing No. PU-598 Islamabad. He further argued that the confessional statement of respondent Ihsanullah has been further corroborated through medical evidence as well as recovery of crime weapon .30-bore pistol, whereby convict-appellant Zahid Hussain committed murder of the deceased by making firing upon his head as well as recovery of handkerchief, whereby the hands of the deceased were fastened at the back. The positive FSL report of pistol and crime empty furtherance strengthened the case of the prosecution. He emphasized that the recovery of the car bearing No.PU-598 Islamabad driven by the deceased is the foremost important piece of evidence made on the pointation of the convict, which has put last nail in the coffin, proving the culpability of the convict-appellant Zahid Hussain and respondent Ihsanullah.
Learned counsel for the appellant-petitioner Ihtbar Khan has placed reliance upon the judgments reported as 1995 SCMR 614, 1995 SCMR 694, 1995 SCMR 1793, 1997 SCMR 1000, 2009 YLR 1557, 1992 SCMR 489, 2018 PCr.LJ 287, PLD 2001 SC 107, PLD 2005 Peshawar 5 and 2003 SCMR 1237.
While arguing Criminal Appeal bearing No.27-I of 2019 against acquittal of Ihsanullah, Mr. Asfandyar Yousafzai learned counsel inter-alia besides arguing the above, urged that the learned Trial Judge has committed error in recording acquittal of respondent, being result of misinterpretation of law and misreading of the material evidence. He maintained that when the confessional statement of respondent Ihsanullah was believed to the extent of convict-appellant Zahid Hussain then there was no occasion not to have placed reliance upon such confessional statement against the maker himself, henceforth, the impugned judgment to the extent of acquittal of respondent Ihsanullah is perverse and illegal, calling for interference and reversal of acquittal.
Appellant Ihtbar Khan (PW.9) being aggrieved and dissatisfied from the quantum of punishment has preferred Criminal Revision Petition bearing No.03-I of 2019 for enhancement of the sentence convict-respondent Zahid Hussain, whereof Mr. Asfandyar Yousafzai, learned counsel for the petitioner argued that after concluding the guilt of convict-respondent Zahid Hussain for committing homicide of deceased Hidayatullah for the purpose of carjacking, it was incumbent upon the learned Trial Judge to have had awarded the capital punishment as it was a cold blooded murder without any provocation or any other compelling mitigating circumstance, thus without rendering reasons for lesser punishment, the impugned judgment requires to be interfered with by enhancing the sentence from life to capital punishment.
Learned Assistant Advocate General KPK for State adopted the arguments so advanced by the learned counsel for the appellant-petitioner Ihtbar Khan and vigorously supported the judgment of the Trial Court to the extent of conviction and sentence awarded to convict-appellant Zahid Hussain, opposing the acquittal of respondent Ihsanullah.
10. Undeniably, the regretful episode of murder of deceased Hidayatullah for the purpose of carjacking went un-witnessed. The entire edifice of the prosecution's case is pillared upon the circumstantial evidence. We are highly cautious about the yardstick, establishing the culpability of an accused through circumstantial evidence enunciated in the cases of Imran alias Dully and another v. The State and others (2015 SCMR 155) and Azeem Khan and another v. Mutahid Khan and others (2016 SCMR 274), wherein the apex Court has expounded the principle that in the case of circumstantial evidence, the facts so established must be consistent with the guilt of accused; circumstances from which the conclusion of guilt is to be drawn must be conclusive in nature, exclusive of every possible hypothesis except the guilt of the person charged with and last but not least, the chain of the circumstances must be connected and un-broken, where one end of its noose fitted in the neck of the accused and the other end touched the dead body.
Uncontroverted factum of unnatural death of the deceased due to firearm shot on the head, making a single entry wound with charring marks just about right ear and finding an exit behind left ear so affirmed by Dr. Arshad Khan, Medical Officer (PW.7), who examined the dead body of the deceased on 30th of September, 2015 at about 11:00 a.m, corresponds to the injury sheet (Ex.PW.4/1) and inquest report (Ex.PW.4/ 2), leaving no room to doubt that the homicidal demise of the deceased was caused by fire arm. Now, it is settled principle of Criminal Jurisprudence that the medical certificate is not a corroborative piece of evidence rather confirmatory in nature, which can be used by the defence to confirm or contradict the medical evidence with the ocular evidence. In this case, un-natural death of the deceased caused by firearm has been proved and not disputed by the defence, thus in such context, the medical evidence need not to be further discussed. Even otherwise, the medical evidence cannot identify an accused rather merely confirms the locale, duration, kind of weapon used and timing of the injuries inflicted and so on so-forth but in no way can be considered as a corroborative piece of evidence connecting an accused with the crime. In this regard reliance can be placed upon the cases of Muhammad Mansha v. The State (2018 SCMR. 772) and Hashim Qasim and another v. The State (2017 SCMR 986).
11. Now remains the other pieces of circumstantial evidence, whereupon the prosecution has relied upon, connecting the convict-appellant Zahid Hussain and respondent Ihsanullah; which includes CDR of the phone bearing No.0300- 5957307 belonging to deceased, supplementary statements of father of the deceased Ihtbar Khan (PW.9) recorded under Section 164 of The Code and Noor Rehman (PW.8) owner of the snatched vehicle bearing No. PU-598 Islamabad driven by deceased Hidayatullah; recovery of .30-bore pistol being crime weapon made from the pcssession of convict-appellant Zahid Hussain during his personal search at the time of his arrest, positive FSL report of crime weapon, pointation of crime scene and recovery of snatched car made on his pointation and last not the least retracted confessional statement of respondent Ihsanullah.
12. Admittedly, there is no eye-witness of the occurrence, as such the initial report (Ex.PA./1) whereupon FIR (Ex.PA) was lodged is silent, naming none.
13. In so far as CDR is concerned, which has been placed on record as (Ex.PW.13/9) in no way connects the convict-appellant Zahid Hussain and respondent Ihsanullah, besides the same being inadmissible and not being proved in accordance with law in view of the guidelines enumerated by the Apex Court. Above all, during the arguments, when the learned counsel for petitioner-appellant Ihtbar Khan was questioned as to how the CDR connects the convict-appellant with the acquitted respondent, he graciously conceded not to place reliance on CDR for having no relevance at all for the reason that there is no recovery of mobile phone of the deceased or else.
14. Record reveals that since the whereabouts of the legal heirs of the deceased were not known, therefore, the contingents of Police Station Topi buried the deceased. On 17th of October, 2015, Noor Rehman (PW.8) claiming to be the owner of the car, having been snatched away got recorded his statement under Section 164 of The Code before the Judicial Magistrate (PW.12) revealing that when his driver deceased Hidayatullah, who used to ply his car bearing No. PU-598 Islamabad XLI, Toyata Corolla, Model 2009 white in colour as Taxi did not pay him rent as usual, he along with father of the deceased (PW.9) went to he police and showed picture of the deceased and that when police confirmed the identity of deceased, the corpse of the Hidayatullah was exhumated and reburied in his native village. He further disclosed in his statement recorded under Section 164 of The Code before the Judicial Magistrate that they collected information at their own and came to know that the deceased was murdered by convict-appellant Zahid Hussain, his wife Mst. Mahwa alias Mawa (Acquitted) and one Muhammad Nawaz (Acquitted). After 20 days of the said statement of Noor Rehman (PW.8), father of the deceased Ihtbar Khan (PW.9) on 7th of November, 2015 also got recorded his statement under Sections 164/364 of The Code, reiterating the narration made by Noor Rehman (PW.8), however; added that convict-appellant Zahid Hussain, Mst. Mahwa alias Mawa (Acquitted) and Muhammad Nawaz (Acquitted) had made a phone call from a phone bearing No. 0300-5957307 of deceased Hidayatullah to hire taxi of his son to go to Topi, Swabi. According to him, wife of deceased namely Mst. Tohueed (not produced) was told by deceased that he is going with a male and a female passenger, who were already known to him and in the evening time the deceased also told his wife that he has reached at Swabi and would be returning home at about 12:00 at night, whereafter they had no contact with the deceased. He further revealed that he searched for the culprits at his own and after probe has known that his son had been murdered for carjacking by convict-appellant Zahid Husasin, his wife Mst. Mahwa alias Mawa (Acquitted) and respondent Ihsanullah. Noor Rehman. (PW.8) before the Judicial Magistrate as well as before the learned Trial Judge in his examination-in-chief failed to reveal the source, whereby he had come to know about the names of the culprits, thus the story developed after 20 days by Ihtbar Khan (PW.9), who had been throughout in the company of Noor Rehman (PW.8) did not utter a single word. For the first time on 7th of November, 2015, he came with a cooked up story that the deceased prior to proceeding with the passengers called his wife Mst. Touheed that he is going to Topi, Swabi along with two passengers; one male and another female. Here, again question arises as to how Noor Rehman (PW.8) and Ihtabar Khan (PW.9) came to know about the specific names, who had proceeded with the deceased Topi, Swabi as passengers, as the source about the names of the culprits have not been revealed including by the wife of the deceased Mst. Touheed; then just words uttering from the mouth of Noor Rehman (PW.8) and Ihtabar Khan (PW.9) would be insufficient and unsafe to rely upon, more particularly, when the most crucial and star witness of this revelation; wife of the deceased Mst. Tohueed was never associated as a witness in the instant case. Neither her statement was recorded during investigation nor ever any attempt was made for her production before the Trial Court, thus such narration of both the said prosecution witnesses is unworthy of credence, whereupon no reliance can be placed, particularly in a case of capital punishment.
Ihtbar Khan (PW.9) on 19th of January, 2016, almost after more than 2 months got recorded a supplementary statement under Section 164 of The Code, nominating respondent Ihsanullah as one of the complicit but without disclosing his role in the crime as well as the source whereby he had come to know about him. Involving respondent Ihsanullah at such a stage added nothing to the case of prosecution as the convict-appellant Zahid Hussain arrested on 9th of January, 2016; he had already disclosed the name of respondent Ihsanullah, as such nomination of Ihsanullah by Ihtbar Khan (PW.9) at subsequent stage is nothing but a futile exercise, requiring high value independent corroboration.
15. On 9th of January, 2016 convict-appellant Zahid Hussain was arrested and prosecution has claimed to have recovered a pistol .30-bore, whereof a case bearing FIR No.25/2016 under Section 15 of Arms Act, 2013 of KPK at Police Station, Topi was registered; however, subsequently on 12th of January, 2016 the aforesaid pistol .30-bore in an unsealed condition was taken into possession in the instant case through recovery memo (Ex.PW.3/1) in the presence of Sheraz, Head Moharrir (PW.3) and marginal witness Fazal Zaman (not produced) brought from the malkhana in consequence of the disclosure made by convict-appellant Zahid Hussain to have used such pistol in the murder of the deceased and felony connected thereto.
Niaz Gul Khan, S.I (PW.2) stated to have arrested convict-appellant Zahid Hussain vide card of his arrest (Ex.PW.2/1), but surprisingly he did not mention in his examination-in-chief regarding recovery of the said pistol and 10-live rounds from the personal search of the convict-appellant, but he was recalled and re-examined as (RWP.2) with regard to recovery of the said pistol and 10-live rounds made from the convict-appellant. In his cross-examination Niaz Gul Khan, S.I (RPW.2) admitted that he did not seal the pistol in question on the spot, raising high doubts in the recovery by itself. As the recovery of the pistol by itself has to be dealt with a separate FIR bearing No.25/2016 for the offence under Section 15 of Arms Act, 2013 of KPK, thus we would like to confine ourselves to the relevance of crime weapon with regard to murder of the deceased. Recovery of a crime weapon becomes relevant on two folds; firstly, if the recovery is made in consequence of discovery of new fact or when the positive FSL Report is received subject to the guidelines enunciated by the apex Court for considering the Forensic Report. In the instant case, since the recovery of pistol and 10 live rounds were already made and the so-called disclosure was made subsequently, therefore the said recovery cannot be considered to be squaring within the four corners of Article 40 of the Qanun-e-Shahadat Order, 1984, inasmuch, as the FSL Report (Ex.PK/2) is concerned that also cannot be taken into account as a worthy piece of evidence.
Undeniably, allegedly the pistol was recovered on 9th of January, 2016 but despite being wanted in the instant case the pistol in question was not taken into possession in the instant case on the same day rather on 12th of January, 2016, after three days, obviously requiring explanation, which has not been offered by the prosecution, nonetheless the prosecution has not brought on record as to when the pistol, rounds and casing recovered from the crime scene were sent for analysis to FSL. The date of receipt mentioned in the FSL report (Ex.PK/2) shows that the said crime weapon and casing were received on 1st of February, 2016 with delay of about 19 days and none of the prosecution witnesses have explained as to why the articles were received after such a delay so also the prosecution failed to prove the safe custody of the said articles as pistol was not sealed, making the entire procedure highly suspicious. Furthermore, admittedly the prosecution has sent the crime weapon and the bullet casing together for analysis to the FSL, which itself is a practice highly disapproved by the apex Court time and again through numerous judgments, as it creates doubt and diminishes the evidentiary value of such piece of evidence more particularly, when the prosecution has failed to prove the recovery of the pistol, making it relevant to the murder of the deceased. Viewed from which ever angle, recovery of pistol as well as the FSL report are unworthy of reliance and being not in accordance with the guided principles of the Hon'ble Supreme Court so expounded in the reported cases of Ali Sher and others v. The State (2008 SCMR 707), Muhammad Saleem v. Shabbir Ahmed (2016 SCMR 1605) and Hayatullah v. State (2018 SCMR 2092).
16. Needless to make note of the fact that the pointation of the crime scene made by convict-appellant Zahid Hussain on 12th of January, 2016 and acquitted-respondent Ihsanullah on 14th of January, 2016, whereof memo of pointations (Ex.PW.11/5) and (Ex.PW.11/7) respectively were prepared are not worth of credence as the said pointations do not fall within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984 for not being discovery of some new facts. The crime scene had already been visited by the police contingent including marginal witnesses as well as by the Investigating Officer (PW.13), thus pointation of the crime scene subsequent thereto by the convict-appellant and acquitted-respondent is not a discovery of fact within the meaning of Article 40 of the Qanun-e-Shahadat Order, 1984, inasmuch, as nothing has been discovered and recovered in consequence thereto. In this regard, reference can be made to the reported cases of Hon'ble Supreme Court as Ziaul Rehman v. The State (2000 SCNIR 528) and Mst. Askar Jan and others v. Muhammad Daud and others (2010 SCMR 1604).
17. Next, the foremost crucial piece of evidence, whereupon the prosecution had relied upon is the recovery of car so jacked, including two number plates bearing No. PU-598 Islamabad from the trunk of the car recovered on the pointation of convict-appellant Zahid Hussain from an un-dwelling premises. The ownership of the said vehicle has highly been questioned and objected by the learned counsel for the convict-appellant. According to him, not only the chassis of the said vehicle had been found to be tampered and deciphered but also Noor Rehman (PW.8) has failed to prove its ownership because neither the registration book of the vehicle in question was taken on record during investigation nor subsequent thereto, during trial. The only document, which has been produced as (Ex.PW.13/12), is an authority letter issued by one Shahrukh Zaib in the name of Sajjad Ahmed, merely authorizing later to drive the vehicle in question but nothing less; meaning thereby that Sajjad Ahmed was not himself the owner of the vehicle in question. Further Noor Rehman (PW.8) produced a sale deed (Ex.PW.13/13) so arrived at in between said Sajjad Ahmed and Noor Rehman (PW.8) whereby Sajjad Ahmed had sold the said vehicle to him against a consideration of Rs.11,50,000/- (eleven lacs and fifty thousand) having registration No. PU-598 Islamabad, Engine No. X 987541 and Chassis No. NZE 140-2030258; here question arises that if Sajjad Ahmed was not the owner then how come he could sell out the vehicle in question to Noor Rehman (PW.8) and thereafter how come the later could claim ownership of the car in question; pointing and unfolding mysterious transaction and claim, which has given rise to various questions of ownership of vehicle in the first place.
So be it, irrefutably as there is neither any disclosure with regard to the vehicle in question nor any sort of memo of discovery of fact thereof has been prepared, revealing that the convict-appellant had disclosed that the car, which he had taken away from the deceased was hid and parked by him in the such premises, which statement could only make the said recovery relevant but not otherwise. The FSL report of the car (Ex.PK/1) transpires that the vehicle in question having chassis No. NZE 140-2030258 was chemically treated as such a new No. NZE 140-2000841 appeared, opining therein that the chassis number had been deciphered; meaning thereby that the vehicle recovered on the pointation of convict-appellant Zahid Hussain was not the vehicle having chassis No. NZE 140-2030258 but NZE 140-200841 belonging to someone else, creating doubt and smells odor of malice. It also give rise to question that whether the recovered vehicle is the same or else, which had been allegedly taken away from the deceased so claimed to be owned by Noor Rehman (PW.8).
18. Adverting to the confessional statement of respondent Ihsanullah, whereupon the prosecution has heavily relied, it may be observed that the respondent Ihsanullah at the very outset of the trial resiled and retracted from his so-called confessional statement. We have thoroughly combed and scanned the testimony of Syed Zahid Shah, Judicial Magistrate (PW.12), the Questionnaire (Ex.PW.12/2), confessional statement (Ex.PW.12/3) and Certificate (Ex.PW.12/4) on the touchstone enumerated by the Hon'ble Supreme Court of Pakistan through a variety of judgments including the cases reported as Majeed v. The State (2010 SCMR 55), Muhammad Ismail v. The State (2017 SCMR 713), Hashim Qasim and another v. The State (2017 SCMR 986) and Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The guidelines for the recording confessional statement enunciated in Muhammad Ismail's case ibid are reproduced herein below for ease of reference:
"It should be ensured,
(i) that the accused is in full senses and understands the consequences of making a confession;
(ii) that, the confession was not a result of any duress, coercion or any promise by the prosecution, to be made an approver;
(iii) that, during transit of the accused by the police from and to the Trial Court from the prison, on each "Paishi" no threat or pressure was applied by the escorting police guard or in charge thereof;
(iv) what were the actual facts, which induced the accused to confess after facing trial, during which he pleaded innocence all the way;
(v) the court recording the confession has to ensure that the mental capacity of the accused is not diminished due to any illness and if some indication of abnormality is suspected by the Court, it is better to refer the accused to the Standing Medical Board to ascertain the true cause thereof;
(vi) while recording the confession, the same safeguards and precautions be adopted, by directing the Public Prosecutor, the complainant's counsel, the Naib Court and all other officials to leave the court. If need be, the counsel who represents him, may be given an opportunity to be present inside the Court during the whole process, if the accused person, on asking by the trial Judge, so demands;
(vii) the handcuffs of the accused be removed and he be provided a chair on the dais. He may be given some time to think over the making of the confession and in that regard particular questions be put to him, as to why he was making the confession when he has already pleaded innocence and claimed trial at the time, the formal charge was framed;
(viii) the Trial Judge shall explain to the accused that, in case of making confession, he has to face a capital sentence in a murder case or any offence punishable with death;
(ix) the entire record of all the questions and answers recorded, be properly maintained and thereafter, a proper certificate be appended thereto, showing the satisfaction of the Trial Judge that the 'accused person was not mentally sick and he was making the confession voluntarily, based on true facts and that there was no other compelling reason behind that."
Analysis of the testimony of Recording Magistrate (PW.12) a bunch of lapses, while recording the confessional statement incurred, making confessional statement inadmissible and worthless. He admitted before the Court that at the foot of the application (Ex.PW.12/1) made by Investigating Officer (PW.13) for recording confessional statement, he mentioned in his order dated 15th of January, 2016 that the accused was handed over to the Investigating Officer (PW.13) to remit him in the judicial lock up, besides admitting that it is not mentioned that in case of refusal the confessor will not be handed over to police; such act of him, has made the confessional statement involuntary. He affirmed that there is no mention of second and third warnings to the accused; which were mandatory and that when respondent Ihsanullah was produced for physical remand, he was not willing to record confession. (PW.12) further narrated that the proceedings were completed within 20 minutes; which is insufficient time for reflection and that the Certificate are in printed form, which, was required to have been reduced by him in his handwriting. He corrected the suggestion made by the defence counsel that neither the Questionnaire, Confessional statement, nor the Certificate states the time of production of the maker of the confession. He also admitted that it was not mentioned in the statement that during the course of recording statement any warning was given to the accused. Perusal of the memo of the questionnaire (Ex.PW.12/2), confessional statement (Ex.PW.12/ 3) and certificate (Ex.PW.12/4) have been found by us to be corresponding and affirming the testimony of Recording Magistrate (PW.12), particularly during cross-examination. At paragraph No.14 of the judgment impugned herein, learned Trial Judge too verifies the flaws and lapses mentioned herein before. The Presiding Officer of the Trial Court, besides pointing towards the infirmities and illegalities committed by the Recording Magistrate (PW.12) also observed that the confessional statement was found by him is exculpatory. Given an anxious careful consideration to the confessional statement, we have also found that the confessional statement of respondent Ihsanullah to be exculpatory in nature. The respondent Ihsanullah nowhere in his statement had stated that neither he knew about the intention of convict-appellant Zahid Hussain pertaining to carjacking and murder of deceased prior to joining his company nor did he admit to have tied the hands of the deceased on his instruction, rather he stated in clear words that he was innocent.
Be that as it may, neither confessional statement has been recorded in accordance with the guiding principles of apex court enumerated herein before in the referred cases ibid nor the confessional statement is inculpatory, which makes the aforesaid confessional statement inadmissible and unworthy of reliance.
19. The learned Trial Judge, while acquitting respondent Ihsanullah, observed in para-15 of the judgment impugned herein that except retracted confessional statement of him, there is no other corroborative and supportive evidence on record and that the said confessional statement of respondent Ihsanullah could not be considered as a voluntary confessional statement, thus mere retracted confession could not be made basis for conviction; which is an astonishing remark and reason finding no place in any book of jurisprudence. If the confessional statement was held by the learned Trial Judge to be exculpatory and insufficient evidence against the respondent Ihsanullah, being the maker of the confessional statement then how come such an inadmissible and tainted piece of evidence could have been made basis for the conviction of convict-appellant Zahid Hussain.
Above all, had it been the purpose of acquitted respondent to cleanse his breast from the toxins of his felony, then he would have persisted subsequent thereto as well but it is not the case; rather from the very inception of the trial till the conclusion, he had been denying his involvement and his confessional statement. Similarly, since it cannot be used against the maker than it in no way is worthy of reliance against co-convict-appellant Zahid Hussain as corroborative piece of evidence.
20. We have gone through the citations referred by learned counsel for the appellant-petitioner Ihtbar Khan, whereof, there can be no cavil but the facts and law involved therein are altogether distinguishable, having no application in attending circumstances of the instant case.
21. As the prosecution has miserably failed to drive home the charge against the convict-appellant Zahid Hussain through any tangible, admissible and confidence inspiring evidence as discussed herein the preceding paras, we are not persuaded to endorse the findings of the Trial Court and upheld the judgment impugned herein.
22. For the foregoing reasons, we do hereby accede to and allow Criminal Appeal bearing No.26-I of 2019 filed by convict-appellant Zahid Hussain to the extent of conviction and sentence awarded to him by the learned Trial Judge and in consequence thereof acquit him of all the charges. He shall be released forthwith, if not detained and required in any other case of custody.
23. As the Criminal Appeal bearing No.26-I of 2019 (Zahid Hussain v. The State) has been allowed, culminating into acquittal and setting aside of the impugned judgment to the extent of convict-appellant Zahid Hussain so also his release, therefore, as a natural corollary Criminal Revision Petition bearing No.03-I of 2019 (Ihtbar Khan v. Zahid Hussain and the State) for enhancement of sentence stands dismissed in limine.
24. In so far as Criminal Appeal bearing No.27-I of 2019 put in by the appellant Ihtbar Khan against acquittal of respondent Ihsanullah is concerned, it may be observed that we are anxious and well conversant with the cannons enunciated by the apex court to interfere in the impugned judgment of acquittal rendered through a variety of judgments; that after acquittal on the conclusion of trial, accused earns double presumption of innocence and to overturn the findings of the acquittal very strong and cogent reasons were required to dislodge such presumption; like the findings being highly artificial, contrary to record, illegal and perverse. In this regard we are fortified with the reported judgments of apex court in cases of Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710) and Muhammad Aslam v. The State and another (PLD 2006 SC 465).
25. For the reasons rendered by us in the preceding paras and after combing so also scanning, the evidence brought forward by the prosecution, particularly, in view of the reasons prevailed upon the learned Trial Judge regarding inefficiency of evidence against respondent Ihsanullah, we have failed to find out any illegality, perversity, misreading, non-reading of evidence as well as the reasons being based contrary to the evidence, thus we are not inclined to interfere with the judgment of acquittal recorded in favour of respondent Ihsanullah, therefore, Criminal Appeal against his acquittal bearing No.27-I of 2019 being devoid of merit is dismissed in limine.
JK/8/FSC Appeal accepted.