[Peshawar (Mingora Bench)]
Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ
STATE through A.A.G. at Dar-ul-Qaza Swat---Appellant
Versus
KHALID KHAN and another---Respondents
Criminal Appeal No. 76-M of 2022, decided on 26th January, 2023.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 311, 200, 201 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, using as true such declaration knowing it to be false, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, possession of unlicensed arms--- Appeal against acquittal--- Appreciation of evidence---Accused were charged for committing murder of the deceased by firing---Record showed that there was no direct evidence in the present case---Report was initially lodged by brother of the deceased on 03.11.2019---Time of the occurrence mentioned in the murasila was 03:05 a.m., early hours of the day---SHO deposed that the informer informed him that the respondents-accused were the real culprits---Thus, he arrested both of them on 03.11.2019, i.e. the day of the occurrence---SHO deposed that the information he got was that both had committed the murder in the name of honour---However, said witness admitted that he could not collect any evidence in that regard---Moreover, the major legal heirs of the deceased submitted affidavit before the Trial Court for exonerating the respondents-accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against acquittal was dismissed, in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 311, 200, 201 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, using as true such declaration knowing it to be false, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, possession of unlicensed Arms--- Appeal against acquittal---Appreciation of evidence---Accused were charged for committing murder of the deceased by firing---Investigating Officer deposed that mother and brother of the deceased charged the present accused but there was no such statement to that effect nor did anyone amongst them came forward as a witness at the trial---Site plan was prepared initially at the instance of the accused---Later on, when the accused persons were involved as accused persons, they made pointation regarding which necessary additions were made---However, there was no circumstantial evidence with the prosecution to support its charge against the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against acquittal was dismissed, in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 311, 200, 201 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), Ss. 164 & 417---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, using as true such declaration knowing it to be false, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, possession of unlicensed Arms--- Appeal against acquittal---Appreciation of evidence---Confessional statement of accused---Infirmities---Accused were charged for committing murder of the deceased by firing---Judicial Magistrate, who recorded the confessional statements of both the accused was examined and while under cross-examination, he admitted that in the certificates he issued in respect of the confessional statements, he did not mention whether he had made both the accused sit together or separately while they were given time to think about pleading guilty---Deposition of Judicial Magistrate showed that he did not record the statements under his own handwriting, rather dictated them to the I.T. official in English---Testimony of said witness showed that he read over what he called each and every word of the confessional statements to the accused, which they acknowledged as correct and then he signed---Said witness did not clarify that the statements were recorded in English---Statement of said witness further showed that the accused gave their statements in Pushto language, which he dictated in English---Certificates issued by the said witness showed that while the accused gave their statements in Pushto language, the same was translated into Urdu language---Certificates did not show in which language the statements were read over to accused---If at all, the statements were recorded in English, the Judicial Magistrate was bound to have read them to the accused in their own language i.e. Pushto---Moreover, it would have been much better had the Judicial Magistrate recorded the confessional statements in Pushto, the mother language of the accused---It did not appeal to reason that while the accused gave their statements in Pushto, they were recorded in English and were read over to them in Urdu---Certificates were also silent on whether the accused fully understood Urdu or not---Judicial Magistrate did not afford them an opportunity whether they would like to consult a lawyer before recording their confessional statements---Judicial Magistrate did not satisfy his judicial conscience that the confessions were voluntary and true---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against acquittal was dismissed, in circumstances.
(d) Criminal Procedure Code (V of 1898)---
----S. 164--- Confessional statement--- Retraction of--- Though, conviction may be recorded even on a retracted confession, however it is must that such a confession shall be corroborated by independent, cogent and convincing evidence.
Hashim Qasim and another v. The State 2017 SCMR 986 and Muhammad Ismail and others v. The State 2017 SCMR 898 rel.
(e) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal--- Double presumption of innocence--- Scope--- Acquittal at the trial gives rise to double presumption of innocence for an accused---Appellate Court needs to be cautious while considering the evidence and should avoid reversal of an acquittal, unless it is found that the acquittal is perverse, conjectural, arbitrary, jurisdictionally defective and prompted by mis-reading or non-reading of evidence.
Jehangir v. Aminullah and others 2010 SCMR 491 rel.
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