TARIQ PERVAIZ vs THE STATE

Appellant Tariq Pervez was tried for the offence punishable under section 302 of P.P.C. By learned 3rd Additional Sessions Judge, Karachi (East), who under his judgment dated 26-5-1988 convicted the appellant for the offence punishable under Part I of section 304 of P.P.C. And sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.2,000 or in default of payment of fine to suffer further R.I. For 6 months. The appellant has challenged his conviction and sentence.

2. According to the prosecution on the night between 27th and 28th of December, 1977 Saeed Ahmed Siddiqui was strangulated to death in House No.219-A, Block-2, P.E.C.H. Society, Karachi where he used to reside and where the appellant came to stay with him as his guest. On the morning of 28-12-1977 appellant Tariq Pervez went to Ferozabad Police Station where he reported to police that on the preceding night at 10.45 p.m. He went to sleep and got up at 7.00 a.m. Of 28- 12-1977 and found Saeed Ahmed Siddiqui lyini~ dead in his room. Such report was recorded in station diary by A.S.I. Riaz Ahmed who submitted the same before S.I.P. Muhammad Azam.

3. On receiving entry Copy Exh.29 S.I.P. Muhammad Azam 'visited the Wardat where dead body of Saeed Ahmed Siddiqui was lying. He prepared Mashirmana Exh: 7-B of the Wardat and inquest report Exh.7-A of the dead body. He also secured two blood-stained bed sheets under Mashirnama Exh.7-J3. He sent the dead body to the hospital for autopsy. On receiving the post-mortem report Exh.19 and the cause of death certificate Exh.23, S.I.P. Muhammad Azam lodged F.I.R. Exh.24 on behalf of State for the offence under section 302 of P.P.C. And took over the investigation. He arrested the appellant on 29-12-1977 and produced him before Magistrate Arshad Ahmed Mughal who recorded judicial confession of the appellant on 3-1-1978. The S.I.P. Secured letters Exhs.7/C, 7/D and 7/G addressed to the deceased by the appellant and- the letters Exh.12 to Exh.15 written to the appellant by the deceased. On completion of investigation the S.I.P. Challaned the accused.

4. During his trial the appellant pleaded not guilty to the charge Exh.1 framed against him fur the offence punishable under section -102 of P.P.C.

5. Prosecution examined during the trial P.Ws. Muhammad Khalid Exh.4, Muhammad Shafi Exh:5, Abdul Mughni Exh.7, Anwer Zaib Exh.11, Muhammad Abbas Exh.18, Muhammad Azam Exh.21, Riaz Ahmed Exh.28 and Arshad Ahmed Exh.30 and closed the side under statement Exh.32.

6. In his statement Exh.33 the appellant denied the prosecution allegations. In respect of the judicial confession Exh.25, he said that he was maltreated and coerced hence he gave said statement. The appellant did not wish to be examined on oath and did not lead defence.

7. Under the impugned judgment dated 26-5-1988 learned Additional Sessions Judge convicted the appellant and sentenced him to suffer imprisonment and pay fine as already stated. Hence this appeal.

8. Mr. Shahadat Awan, learned counsel for the appellant argued that there was no eye-witness against the appellant and that judicial confession Exh.25 was not recorded according to law and that the Magistrate had flouted the mandatory provisions of section 364 and section 164 of Cr.P.C.

While recording the, judicial confession and that the appellant was arrested on 29-12-1977' while the confession was recorded on 3-1-1978 and that after recording of the judicial confession the appellant was remanded to police custody and that the judicial confession of the appellant was recorded on oath.

9. Mr. Shoukat Zubedi; learned A.A.-G. Appearing for State did not support the conviction and agreed with the submissions made on behalf of the appellant. He conceded that the appellant was arrested on 29-12-1977 and he continued to remain in police custody till 12-1-19 78 although his confession was recorded on 3-1-1978. It was also conceded that there was no ocular evidence against the appellant who was erroneously convicted.

10. R&Ps of the lower Court shows that certified copies of certain remand orders were obtained but they were not formally produced in evidence. However, it is clear from the orders of remand that first remand was granted to the appellant on 30-12-1977 in police custody upto 5-1-1978 and second remand was for continuation of the appellant in police custody from 5-1-1978 till 12-1-1978 and on 12-1-1978 he was remanded to jail custody. This shows that the appellant was in police custody when he was produced before Magistrate Arshad Ahmed Exh.30 on 3-1-1978. Obviously no reliance can be placed on the judicial confession Exh.25 because the appellant was given oath in contravention of established practice and contrary to the provisions of section 5 of the Oaths Act.

On this point it was held in the case of Muhammad Bux v. State PLD 1956 SC 420 that administration of an oath to an accused person is an express statutory illegality by reason of section 5 of the Oaths Act A and it must make the confession inadmissible, having been obtained in an illegal manner and its rejection must follow as a matter of course. Evidence of Magistrate Arshad Ahmed Exh.30 does not show if the appellant was given any time for reflection or if his body was examined or if he was questioned about any maltreatment. Moreover, the Magistrate has stated that he was informed by the S.H.O. On 31-12-1977 that the appellant, had volunteered to make the confession. Instead of recording the judicial confession on the same date the Magistrate directed the S.H.O. To bring the appellant to him on 3-1-1978, knowing that the appellant was in police custody. In this situation, it appears that either the Magistrate was ignorant of the basic principles of law governing the recording of judicial confession or he has deliberately avoided to comply with relevant provisions of law. In such a situation Arshad Ahmed Mughal is not worthy to retain power as a Magistrate and the Provincial Government be moved to withdraw his criminal powers. For aforesaid reasons I do not place any reliance on the evidence of judicial confession Exh.25.

11. The entry copy Exh.29 would at the most show that the appellant had information about the murder of Saeed Ahmed. It does not connect the appellant with commission of the offence.

12. P.W. Muhammad Khalid Exh.4 did not support the prosecution and he was declared hostile. He, however, stated that he knew the deceased but did not know the appellant. He claimed `to have been informed by some body that Saeed Ahmad was lying quiet. He claimed to have brought a doctor who declared Saeed Ahmed to be dead. In this way, he has not said a word against the appellant.

13. P.W. Muhammad Shafi Exh.5 was tenant of the deceased. He deposed that the appellant was residing with the deceased as his guest but beyond this he did not know.

14. P.W. Abdul Mughni Exh.7 who claimed to be residing 100 yards away from house of the deceased deposed that some two vedrs prior at about 8-00 a.m. P.W. Khalid and other persons came to him and made telephone call to the police station. He was also declared hostile and admitted in cross that the 'inquest report Exh.7-A and Wardat Mashirnama Exh.7-B were prepared in his presence and were signed by him. He also supported the Mashirnama.

15. P.W. Anwer Zaib Exh.11 was the A.S.I. And in his presence the appellant was arrested and letters Exh.11 to Exh.14 were secured under Mashirnama Exh.15, which was supported by him.

16. Dr. Muhammad. Abbas Exh.18 was the Medical Officer who performed autopsy on the dead body of Saeed Ahmed and issued the post--mortem report Exh.19.

17. All the evidence discussed above does not connect the appellant with commission of the offence and in my view he was wrongly convicted.

18. Accordingly, I accept this appeal and set aside the conviction and the sentence of the appellant and acquit him.

19. The appellant is present on bail and is released from the bail bonds.