2014 Y L R 537 [Peshawar] Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ MUHAMMAD ABRAR---Appellant Versus The STATE and another---Respondents Criminal Appeals Nos.347-P, 363-P and Muhammad Reference No. 14 of 2012, decided on 10th October, 2013. Penal Code (XLV of 1860)--- ----Ss. 302, 324, 337-A, 337-F & 337-Y---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah, punishment of Ghayr-Jaifah, arsh for heir---Appreciation of evidence---Complainant and other eye-witnesses, did not specifically charge any of the accused person for specific role of effective firing upon the deceased or the injured; only a general assertion of firing was alleged at the complainant party---Accused persons were reported to have started indiscriminate firing upon eye-witnesses; and because of said firing, the deceased was hit and died, and complainant and other were injured, but none of said witnesses, was specific about as to whose fire shots resulted in causing injuries to the deceased and the injured---Benefit of such serious omission on the part of the prosecution would go in favour of accused; and it would not be safe to saddle the capital charge upon him---Testimony of prosecution witnesses, was a repetition of each other, and they did not state any special or distinct testimony attributing any special role to accused persons---Retracted confessional statements of accused persons, would do little to advance the case of prosecution, as same did not fulfil the legal threshold of reliability in the touchstone of being a truthful, voluntary and inculpatory---Accused persons had fired at complainant party only in retaliation, whereas 'site plan' prepared on the pointation of the complainant, was in conflict with said version---No empties were recovered from the spot, whereat the complainant party was stated to have been present---Confessional statements of accused persons, which were not corroborated with other evidence, could not be safely stated to be truthful---Accused persons after rendering their confession before the Magistrate, having been handed over to Police, their confessional statements could not be said to have been recorded in accordance with the requirements of law---Omission to put corroboratory evidence to accused during his evidence under S.342, Cr.P.C., would benefit accused as same could not be used against him---When the ocular evidence of the two eye-witnesses, lacked the crucial attribute of being specific in its charge, then to award conviction basing same even on the strongest circumstantial evidence, would not be in accord with the safe dispensation of justice in criminal cases---Omission on the part of the prosecution to produce injured independent eye-witness, would go in favour of accused persons, and would have a strong presumption against the prosecution---Prosecution having failed to prove its case beyond any shadow of reasonable doubt, impugned conviction and sentences recorded against accused persons by the Trial Court, were set aside---Accused persons were acquitted of the charges and were set free, in circumstances. Farman Ali's case PLD 1980 SC 201; Manzoor's case 1992 SCMR 2037 and Niaz Muhammad alias Niazi v. The State 1996 PCr.LJ 394 ref. Barrister Muhammad Zahurul Haq for Appellant. Muhammad Saeed Khan for the Complainant. Mian Arshad Jan, A.A.-G. for the State. Date of hearing: 10th October, 2013. ORDER YAHYA AFRIDI, J.---By this single judgment, we propose to dispose of two Criminal Appeals and a Murder Reference, as they all arise out of a single tragic incident. The particulars of which are as follows:-- (i) Criminal Appeal No.347-P of 2012 Muhammad Abrar v. The State. (ii) Criminal Appeal No.363-P of 2012 Arif Ahmad v. The State. (iii) Murder Reference No.14/12 2. Both the appellants, namely, Muhammad Abrar son of Chinar Gul and Arif Ahmad son of Ahmad Jan, have been convicted and sentenced by the learned Additional Sessions Judge-III Kohat, vide judgment and order dated 28-6-2012 as under:-- Criminal Appeal No. 347-P of 2012 For the murder of Ayaz under section 302 Pakistan Penal Code, 1860 ("P.P.C."), Muhammad Abrar, appellant has been convicted and sentenced to death and under section 13 Pakistan Arms Ordinance, 1965 ("AO"), he has been convicted and sentenced to pay a fine of Rs.5000 or in default he shall suffer S.I. for three years. Criminal Appeal No. 363-P of 12 Similarly, for the attempt on the life of injured Mohammad Ishaq ("complainant") Arif Ahmad, the present appellant has been convicted and sentenced under section 324 of P.P.C. to ten years' imprisonment with a fine of Rs.10,000 or in default to suffer S.I. for six months and under sections 337-A and 337-F of P.P.C., he was directed to pay Rs.25,000 to each injured, as daman and it was further directed that till its payment, he shall be kept in prison in accordance with section 337-Y of P.P.C. The benefits of section 382-B Cr.P.C. were extended to both the appellants before us. The remaining co-accused, namely Ahmad Jan and Tariq were acquitted. The trial Court further declared the absconding accused Zameer Gul, as proclaimed offender ("PO") and issued perpetual warrant of arrest against him with direction that his name be entered in the Register of PO and the case property was ordered to be kept intact till his arrest and trial. 3. In brief, the Prosecution story, as spelt out in the F.I.R., is that on 10-3-2011 at 0840 hours, the complainant Muhammad Ishaq along with Ayaz, Javed Iqbal and Riaz were present near their house; that in the meantime, the convicted accused, Abrar, appellant herein, Zameer Gul, Ahmed Jan, Tariq and Ahmed alias Arif, co-accused, started indiscriminate firing upon them, as a result of which Ayaz was hit and died, while the complainant and one of the eyewitnesses Javed Iqbal, sustained injuries on their persons. 4. After completing the investigation, the challan was put in Court. The present appellants along with the other acquitted co-accused, on denying the charge pleaded their innocence and demanded a trial, which thus followed. 5. The prosecution produced as many as eleven witnesses to prove guilt of the present appellants. Muhammad Yousaf appeared as P.W.1, who identified the dead body of the deceased in the Hospital; Shah Duran, S.H.O., appeared as P.W.2, who arrested Ahmad Jan, Tariq and Muhammad Abrar on 10-3-2011; Aslam Jan, appeared as P.W.3, who registered the case as Exh.PA/1; Muhammad Alam appeared as P.W.4, who is marginal witness to the recovery memo on the basis, which blood-stained pebbles from the spot where injured Muhammad Ishaq and deceased Ayaz were and stated to be present, while he also recovered nine empties of 222 bore from the place of accused Arif, six empties of 8 MM from the place of accused Abrar; Muhammad Ishaq, appeared as P.W.5, who is the complainant of the crime and claimed to be an eye-witness to the occurrence; Muhammad Riaz, appeared as P.W.6, who also claimed to be an eye-witness; Tila Muhammad, Judicial Magistrate, appeared as P.W.7, who recorded the confessional statements of both the present appellants; Dr. Hameedullah, appeared as P.W.8, who conducted the post mortem examination of the deceased; Muhammad Zaman, S.I., appeared as P.W.9, who prepared the site plan Exh.P.W.9/1 at the pointation of eye-witness Muhammad Riaz. and recovered blood-stained pebbles Exh.P1 to P-2 from the places of the deceased and injured Muhammad Ishaq, he also recovered 9 empties of .222 bore from the place of accused Ahmed alias Arif P3, while 6 empties of 8MM from the place of accused Muhammad Abrar as P.4, vide recovery memo Exh.P.W.4/1 and took into possession blood-stained clothes of the deceased and of the injured in the presence of marginal witnesses, vide recovery memo Exh.P.W.9/3, he on the pointation of Muhammad Abrar, also took into possession 8MM rifle (Exh.P8), vide pointation memo Exh.P.W.O/7; Abdul Hameed, Head-Constable, appeared as P.W.10, who brought the clothes of the deceased as well as of the injured and handed over the same to Amir Zaman S.I.; and Bahadur Nawaz, A.S.-I., appeared as P.W.11, who scribed the murasila and prepared the inquest report of the deceased along with injury sheet of the injured. 6. After the prosecution closed their evidence, the appellants along with the other acquitted co-accused, recorded their statements under section 342 of Cr.P.C., denying their involvement in the commission of the offences for which they were charged. However, they wished not to be examined as their own witnesses on oath in rebuttal of charges against them within the contemplation of section 340(2) of Cr.P.C. 7. The learned counsel for the appellants vehemently argued that there are material contradictions in the statements of prosecution witnesses ("P.Ws.") and there is no independent evidence available on the record to connect the appellants with the commission of the crime; that during the entire proceedings, the complainant failed to specify role of each and every accused in the commission of the alleged offence and by not doing so, it is still doubtful that on whose shot the deceased was hit and died; that one of the injured P.Ws., has not been produced during trial and under Article 129(g) of Qanun-e-Shahadat Order, 1984 ("Order"), the inference would be drawn that the said injured P.W. was not expected to be helpful to advance the case of the prosecution; that empty shells have neither been produced nor exhibited in Court; that though the confessional statement of accused has been attributed to the appellants but it on account of failure of the Magistrate to comply with the mandatory provisions of law cannot be taken to corroborate the prosecution version, that too, when it does not fit in with its surrounding circumstances and even did not bear any date; that though the prosecution is not legally bound to prove motive in every case, yet once it has set up a motive and failed to establish it, then prosecution must suffer the consequences and not the defence and as such the charge against the appellants cannot be said to have been proved beyond any shadow of reasonable doubt. 8. As against that, the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant, argued that the appellants have been directly charged for having fired at the deceased in a promptly lodged F.I.R.; that there is no interest or animus on the part of the complainant and the P.Ws. to falsely implicate them; that the Prosecution version besides being consistent and confidence inspiring is fully supported by the medical evidence and the confessional statements of the appellants and that the impugned finding being free from any infirmity is not open to any interference. 9. After considering the valuable arguments of the learned counsel of the parties and thoroughly perusing the record of the case, this Court has come to the conclusion that it is not in consonance with the reasoning rendered by the worthy trial Court for conviction and sentences awarded to the present appellants in the impugned order for the following reasons; Firstly, the complainant and other eye-witnesses produced by the prosecution did not specifically charge any of the accused of a specific role of effective firing upon the deceased or the injured. In fact, there is only a general assertion of firing at the complainant party. When we glance through the examination-in-chief of Muhammad Ishaq (P.W.5) and Muhammad Riaz (P.W.6), the eye-witnesses produced by the prosecution, it is glaringly apparent that in their testimony the appellants and their co-accused are reported to have started indiscriminate firing upon them and because of the said firing, the deceased was hit and died, while the complainant and Javed Iqbal were injured, but none of the said two P.Ws. was specific about whose fire shots resulted in causing injuries to the deceased and the injured. In similar circumstances, the apex Court in Farman Ali's case (PLD 1980 SC 201) has held that when there is no evidence on the record to show, as to who out of the accused had caused the fatal injuries, then "the prosecution has failed to bring home its case against anyone of the appellants". The aforementioned principle has been consistently followed by the superior Courts of our jurisdiction in particular, the Supreme Appellate Court in Manzoor's case (1992 SCMR 2037) has gone to the extent to hold that:-- "Now, in criminal trials when the parties have a right to institute proceedings and to compound it, it is their statements which have the primary importance. The investigator is relegated to a secondary position. If the injured persons do not meaningfully implicate a person, then, notwithstanding the superior quality of investigation, the prosecution case cannot succeed. Similarly, if the eye-witnesses are creditworthy to the extent they are believed, then the defect or the shortcomings of the investigation would not stand in the way. The legal aspect of this question has been dealt with by us in detail in Asghar Ali alias Sabah and others v. The State Criminal Appeal No.34/ SCA/L of 1992 decided by this appellate Court." (Emphasis provide) In such circumstances, the benefit of this serious omission on the part of the prosecution to specifically nominate a person for having fired the fatal effective shot would surely go in favour of the accused and thus it would not be safe to saddle the capital charge upon him, as was recorded by the trial Court in the present case. Secondly, it is not the case of the prosecution that the present appellants had a dominant or an effective role than that of the acquitted or absconding co-accused in the commission of the offence. The witnesses produced by the prosecution did not state any special or distinct testimony attributing any special or distinct role to the present appellants. In fact, their testimony is a repetition of each other in the same words and voice. Thirdly, there is no cavil to the legal proposition that even on a retracted confession, if found truthful and reliable, conviction can be awarded, even on a capital charge. However, in the present case, no doubt, there are retracted confessional statements of the appellants but these would do little to advance the case of the prosecution, as the same do not fulfill the legal threshold of reliability on the touchstone of being 'truthful, voluntary and inculpatory'. In order to appreciate the legal importance and the factual veracity of the confessional statements of the appellants, which are in fact identical and verbatim copy of each other, it would be appropriate to reproduce the English translation of one of the same, which is as under:-- Muhammad Abrar: "On the day of occurrence on some distance from my home, I was waiting for Arif Ahmad son of Ahmad Khan to tell him that at 10-00 a.m. on that day, the compromise between us and Riaz and others was going to be finalized. The compromise was regarding the allegation of Riaz that Arif had stolen his 'Kalashnikov'. In the meantime, Arif reached there and I told him the whole story. During our conversation, two children come to its and said that at some distance ahead, Riaz, Ayaz, Ishaq etc. duly armed have blocked their way. On this I went to my home and took one 8 MM Rifle and .30 bore pistol. I handed over the pistol to Arif and myself held the 8 MM Rifle. When we reached the road side, Riaz ordered us to keep the Rifle on the ground and remove our trousers and walk ahead. He (Riaz) was accompanied by Ayaz, Ishaq, Sheri, Javed Iqbal and Amjad. On refusal, Riaz opened fire upon them. On seeing the fire of Riaz, his companions also fired from their weapons. We also started firing. From my firing Ayaz was hit and injured and from the firing of Arif Ahmad, Ishaq and Javed Iqbal were hit and injured and thereafter we decamped from the place of occurrence." (emphasis provided) The narration of facts as put forward in the aforementioned confession, when placed in juxtaposition with the other evidence produced by the prosecution, does not portray a truthful story. It is stated in the confession that the complainant party awaited the accused party and on seeing them, the complainant party started firing at them. It was only in retaliation that the appellants had fired at them. Whereas, the 'site plan' prepared on the pointation of the complainant is in conflict with the said version. In this regard, it is noted that there are no empties recovered from the spot, where the complainant party was stated to have been present. Furthermore, the confessor Muhammad Ayaz has stated that he on being informed about the complainant party awaiting them duly armed went to his house and brought a 8 MM Riffle, which he later used in firing and gave a .30 bore Pistol to Arif Ahmad, who is stated to have used the same in the commission of the crime. These assertions are also belied by the recovery of .222 bore empties and not 30 bore from the spot attributed to Arif Ahmad in the Site Plan. As far as the 8 MM empties recovered from the spot, which has been attributed to the Appellant Muhammad Abrar is concerned, the legal veracity has been dealt with in the later part of this judgment. On the whole, it is noted that the confessional statements of the appellants were not corroborated with the other evidence produced by the prosecution and thus cannot be safely stated to be truthful. Now, moving on to the voluntary-ness of the said confessions, it is noted that two confessors, Muhammad Abrar and Arif Ahmad, after rendering their confessions before the Magistrate, were admittedly handed over to Muhammad Zaman, S.I. (P.W.9). In such circumstances, the confessional statements cannot be said to have been recorded in accordance with the requirements of law, as the pressure and fear to confess could not be ruled out. It is also noted that the confessions portray a story, which is partly 'inculpatory' and partly 'exculpatory'. The confessors have narrated a version, which attributes aggression upon the complainant party and also renders abusive and degrading language being used against the accused party. Thus, cumulatively it provides justification to the accused party to retaliate in self defence. This mixture of 'inculpatory' and `exculpatory' version in the confessions throws serious doubts upon the very veracity thereof. This Court has in the case of Niaz Muhammad alias Niazi v. The State (1996 PCr.LJ Peshawar, 394), while dealing with a similar situation has observed:-- "Another aspect of the confessional statement is its partly exculpatory and partly inculpatory nature. The appellant had admitted to have fired at the deceased but only after he survived the firing at him by the deceased. Materially similar case came up before the Supreme Court of Pakistan in Najib Raza Rahmani v. The State PLD 1978 SC 200, where the Supreme Court had to deal with a confessional statement wherein the accused had admitted to have fired at and killed the deceased but only after the deceased had attempted to commit sodomy on the accused. The Supreme Court declared this statement as not a confession and held:-- "If the appellant had merely said in his so-called confession that he had fired at the de ceased, it would have been an inculpatory statement. But what he said was that he had fired at the deceased after the deceased had opened the string of his trouser. In other words, he had fired at the deceased after the deceased had attempted to commit sodomy on him, and under section 100 of the Penal Code, the right of private defence of the body extends even to the voluntary causing of death..." The august Supreme Court in coining to its conclusion on this kind of confessional statement relief upon the judgment of the Privy Council in Pakala Narayana Swami v. Emperor AIR 1939 PC 47 and quoted the following passage of Lord Atkin from the judgment:- "As the point was argued however and as there seems to have been some discussion in the Indian Courts on the matter it may be useful to state that in their Lordships' view no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation or any other man's possession." Seen in the light of the rule aforementioned, the statement of the appellant before the Magistrate does not merit to be called a confessional statement. The appellant had taken the plea of self-defence which if accepted would negative the charge of murder under section 100, P.P.C." In view of the above legal discussion, this Court is of the considered view that the retracted confessions of the present appellants did not fulfil the legal requirements to be considered truthful and voluntary, so as to base the same as the main evidence of convicting the present appellants and that too for a capital charge. Fourthly, no doubt the recovery of 8 MM empties from the spot, where the appellant Muhammad Abrar was stated to have been present and the same forensically matched with the 8 MM rifle recovered on his pointation, is a very strong piece of circumstantial evidence against Muhammad Abrar, the present appellant. But what is striking to note is that the said corroboratory evidence against Muhammad Abrar was not put to him during his evidence under section 342 of the Cr.P.C. This serious omission on the part of the prosecution would surely benefit the accused Muhammad Abrar. No evidence can be used against an accused, when the same has not been put to him in categorical terms to rebut, as was wrong considered by the worthy Trial Court in the present case. Fifthly, it would be unfair not to acknowledge that the prosecution has been able to produce circumstantial evidence in the form of recovery of empties, blood pebble stone, blood socked clothes and medical evidence of the injuries caused to the deceased and one of the injured. However, when the ocular evidence of the two eye-witnesses lacks the crucial attribute of being specific in its charge, then to award conviction basing it even on the strongest circumstantial evidence would not be in accord with the safe dispensation of justice in criminal cases. Sixthly, the prosecution has not justified why Javed Iqbal, an injured independent eyewitness, has not been produced as a witness. This omission on the part of the prosecution would surely go in favour of the appellants and have a strong presumption against the prosecution, as provided under section 129(g) of the Order. Similarly, not proving the motive advanced by the complainant party would also go against the prosecution and create doubts in favour of the present appellants. Finally, it is by now settled that conviction can only be awarded, when the evidence is above board and of unimpeachable and specific character and leads to the guilt of the accused with sufficient amount of certainty. But where the evidence examined by the prosecution is inherently vague as to the role and culpability of the accused, then the only inescapable conclusion would be that the prosecution has failed to prove the guilt against the accused beyond any shadow of reasonable doubt. Accordingly, for the reasons stated above, this Court does not consider it proper to hold that the case against the appellants, Muhammad Abrar and Arif Ahmed has been proved beyond any shadow of reasonable doubt, and thus this and the connected Criminal Appeal is, therefore, allowed, the impugned convictions and sentences recorded by the learned trial Court, vide judgment dated 28-6-2012 are set aside and the appellants, Muhammad Abrar and Arif Ahmed are acquitted of the charges. They be set free forthwith, if not required in any other case. Murder Reference in Criminal Appeal No.347 of 2012 is answered in negative. These are the reasons for our short order of even date. HBT/6/P Appeal allowed.