1/23/24, 10:33 PM 2018 Y L R 2307

2018 Y L R 2307

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa and Shaukat Ali Rakhshani, JJ

FARMAN ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.15-I of 2017, decided on 11th April, 2018.

(a) Penal Code (XLV of 1860)---

----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood)
Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention, haraabah---Appreciation of evidence---Benefit of doubt---
Prosecution case was that some unknown accused persons murdered the son of
complainant after snatching his motorcycle---Record showed that entire case of
prosecution was based upon circumstantial evidence, as occurrence was unseen and
there was no eye-witness of the alleged crime---Complainant had arrived on the crime
scene earlier than the police officials, but while lodging the report, he had not
nominated any one responsible for the crime and stated that he had no enmity with
anybody, as such, he did not know as to who had committed the crime---Complainant,
later on, got recorded statement under S. 164, Cr.P.C. and nominated the accused and
co-accused to be involved in the alleged crime---Involvement of accused persons by
the complainant was neither based on information of someone, who had seen the
occurrence nor on any other plausible circumstantial evidence, which could be read in
evidence---Statement of complainant was merely based on speculation and undisclosed
information; such statement could only be treated as supplementary statement recorded
after some time, which testimony was not of any worth---Evidence available on record
showed that there was no nexus with one and the other and it did not complete the
chain as it was broken because, it could not link the accused with the deceased without
any shadow of doubt---Judicial confessional statement was neither supportive of the
recovery nor any other circumstance, which could hold the accused to be felon of the
crime---Circumstances established that prosecution had failed to bring home the charge
against accused---Appeal was allowed and accused were acquitted in circumstances by
setting aside conviction and sentences recorded by the Trial Court.

2017 SCMR 898; 2016 SCMR 274; 2015 YLR 1279; 2017 SCMR 986; PLD 2006 SC
87; 2005 YLR 908; PLD 2005 SC 168 and 2007 SCMR 782 ref.

Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others PLD 2016 SC
951; Muhammad Ismail and others v. The State 2017 SCMR 898; Azeem Khan and
another v. Mujahid Khan and others 2016 SCMR 274 and Naveed Akhtar v. The State
2015 YLR 1279 rel.

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(b) Penal Code (XLV of 1860)---

----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood)
Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention, haraabah---Appreciation of evidence---Identification of
incriminating articles---Recovery of motorcycle on the pointation of co-accused---
Reliance--- Scope--- Record showed that alleged stolen motorcycle was recovered on
the pointation of co-accused, which was not worthy of credence---Complainant, neither
in the FIR nor in the statement recorded under S. 164, Cr.P.C., had given the
registration and chasis numbers and other details of the stolen motorcycle---
Complainant had subsequently identified the alleged stolen articles in an identification
parade of articles but the same was of no worth, because while carrying out such
identification, neither any other independent witness had been associated nor legal
requisites had been followed---Identification of articles would be immaterial having no
sanctity at all.

(c) Penal Code (XLV of 1860)---

----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood)
Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention, haraabah---Appreciation of evidence---Recovery of
weapon of offence from accused---Reliance---Scope---Recovery of crime weapon (30-
bore pistol) on the pointation of the accused was not worthy of reliance because
Forensic Science Laboratory showed that the empty recovered from the place of
occurrence did not match with the recovered pistol; it could not be ascertained, in
circumstances, that the pistol was the same, which had been used in the alleged crime.

(d) Penal Code (XLV of 1860)---

----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood)
Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention, haraabah---Appreciation of evidence---Retracted
confession---Scope---Accused was charged for the murder of son of the complainant---
Allegedly, accused and co-accused made judicial confession, which was retracted---
Effect---Judicial confession revealed that two shots were fired upon the deceased
against which, one hit the deceased, following his death but such stance did not
corroborate from the recovery, as only one empty was secured by the police---Judicial
confession of co-convict showed that the stolen motorcycle was sold out by him in a
festival in the sum of Rs. 28,000/-, but the recovery of motorcycle was effected on his
pointation from an abandoned and deserted house---Circumstances persuaded that the
judicial confession was untrue and not confidence inspiring---Record transpired that
judicial confession had been reduced into writing in English and not in the language of
the maker, which was also not understandable---Judicial Magistrate, who recorded
confessional statement, had not mentioned in the certificate that he understand Pushto
language and that the confession was translated word-by-word from Pushto to English-
--Absence of such certificate at the foot of such statement would make the same
worthless, which could not be relied or acted upon---Accused and co-accused were in
need of the interpreter while recording statement under S.342 Cr.P.C.---Neither any

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interpreter was appointed to translate nor such factum was disclosed in the certificate
at the foot of their statement recorded under S. 342, which further created doubt about
the veracity of judicial confessions---Co-accused maintained to have merely purchased
the mobile set from another co-accused, but absolved himself for having knowledge
about the said mobile set being a stolen or snatched one---Said confessional statement
had become exculpatory, which was not only inadmissible but of no help to the
prosecution in any manner.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(e) Penal Code (XLV of 1860)---

----Ss. 302, 392, 411 & 34---Offences Against Property (Enforcement of Hudood)
Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention, haraabah---Appreciation of evidence---Retracted
confession---Scope---Retracted judicial confession could be made basis for convicting
and awarding sentence, subject to some independent corroborative evidence.

(f) Criminal Procedure Code (V of 1898)---

----S. 164---Confessional statement, recording of---Scope---Judicial Magistrate must

reduce the confessional statement in his own hand writing---If there was a genuine
compelling reason for not doing so, then it must be explained through a note that it was
dictated to a responsible official like Stenographer or Reader, who was also to
administer oath that he would correctly type or write the version---If the confessional
statement was recorded in some other language, then the same was to be read over and
explained to the accused in the language, he fully understood and a certificate
regarding transcribing such facts be issued.

Muhammad Ismail and others v. The State 2017 SCMR 898 and Azeem Khan and
another v. Mujahid Khan and others 2016 SCMR 274 rel.

(g) Criminal Procedure Code (V of 1898)---

----S. 164---Confessional statement---Scope---Judicial confession must be relied upon

if the same was rendered voluntarily without any duress.

Ghulam Qadir and others v. The State 2007 SCMR 782 and Abdul Sattar and another v.
The State and another 2005 YLR 908 rel.

Shahid Zaman Yousafzai for Appellant.

Wilayat Khan, Assistant Advocate General KPK for Respondent No.1.

Respondent No.2 in person.

Date of hearing: 11th April, 2018.

JUDGMENT

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SHAUKAT ALI RAKHSHANI, J.---At the end of the trial, on arrival at logical
reasoning, the learned Sessions Judge Nowshera (hereinafter referred as trial court)
found the appellant guilty of the charge in case FIR No.487/2012, (Ex.PW.4/1)
registered with Police Station Akora Khattak, convicted and sentenced the appellant
Farman Ali in the following terms:

i) Under section 392 of P.P.C., to suffer five years R.I with fine of Rs.100,000/-
and in default thereof to further undergo S.I for six months.

ii) Under section 302(b) of P.P.C., to suffer imprisonment for life as ta'zir and to
pay an amount of Rs.300,000/- as compensation to the legal heirs of the
deceased and in default to further undergo S.I for six months.

The benefit of section 382-B of Cr.P.C. was extended and the sentences of
imprisonment were ordered to run concurrently.

3. The compendious facts, squealed in the FIR (Ex.PW.4/1) are that on 21.6.2012,
P.W.2 Shakir Hussain, Incharge Police Post Marhati, received information while he
was on patrol that a dead body was lying on a thorough-fare at Mughalki Mera, thus he
rushed to the spot, where he found body of a young man, murdered with firearm. He
maintained that on the spot, he met P.W.8 Umard Ali, father of the deceased, who told
him, that while he was present at his home, he received information that his son
deceased Farzind Ali has been murdered by some unknown culprits and on arrival on
the crime scene, found dead body of his son and that his motorcycle Honda 125 red
colour was found missing, however, cash amounting to Rs.1800/-, his CNIC, wallet
and other documents were there and that he had no enmity with anyone and does not
know that who had murdered his son. However, added that he will charge the culprits
on having information, as such, report/ murasila (Ex.PA) was sent to Police Station,
whereupon FIR No.487/2012 (Ex.PW.4/1) was registered.

4. Necessary investigation was carried out but in vain as no culprit could be brought on
surface. However, on 10.7.2012, on the statement of P.W.8 Umard Ali recorded under
section 164 of Cr.P.C, the appellant along with co-convicts Nizar Ali and Abdul
Hameed alias Terah were nominated to be the culprits of the crime alleged herein.

P.W.12 Alamzeb Khan, Inspector, being investigating officer stated to have made the
site plan, Ex.PB recovered an empty of .30 bore pistol (Ex.PW.3/2) and blood stained
earth/ sand, (Ex.PW.5/ 1) from the crime scene and blood stained clothes of the
deceased, (Ex.PW.5/ 2). After, the aforesaid statement of P.W.8 Umard Ali, appellant
and co-convicts were arrested on 12.7.2012. Alleged crime weapon i.e .30 bore pistol
was recovered on the pointation of convict/ appellant Farman Ali from his 'baithak'
beneath a pillow, through recovery memo (Ex.PW.10/1) and prepared site plan of place
of recovery (Ex.PW.10/2), as well as recovered alleged snatched mobile phone; model
6120 through recovery memo (Ex.PW.10/3) from co-convict Abdul Hameed alias
Terah and prepared site plan (Ex.PW.10/4) and snatched motorcycle on the pointation
of co-convict Nizar Ali from an abundant and deserted house situated at Ismaila
through recovery memo (Ex.PW.10/5,) whereupon site plan of place of recovery
(Ex.PW.10/6) was prepared.

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He also maintained that on 18.7.2012, the appellant along with co-convict were
produced before P.W.11, Mian Zahidullah Jan, Judicial Magistrate, before whom, the
appellant and voluntarily got recorded their judicial confession, where-after they were
sent to judicial lock up.

5. On the conclusion of investigation, the aforementioned the appellant and co-convicts

were challaned and sent to face trial before the trial court.

6. The appellant along with co-convicts were indicted by framing charge under section
17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979
(hereinafter referred to as "Hudood Ordinance, 1979" read with section 34 of P.P.C.
and sections 411/34 of P.P.C., to which they pleaded not guilty and claimed trial.

7. The prosecution in order to bring home charge against them produced as many as
thirteen prosecution witnesses.

P.W.1 Dr.Pagh Chand, Medical Officer, DHQ Nowshera, conducted the autopsy of the
deceased and issued post mortem report Ex.PM, also making endorsement on the
injury sheet and inquest report.

P.W.2 Shakir Hussain S.I stated to be Incharge of the Police Post Marhati, who on
receipt of information rushed to the crime scene, met father of the deceased and on his
murasila Ex.PA, FIR, Ex.PW.4/1 was registered as well as prepared recovery memo of
wallet containing Rs.1800/-, CNIC of the deceased, besides making injury sheet
Ex.P.W.2/2 and inquest report Ex.PW.2/3.

P.W.3 Constable Muhammad Ayub No.484, is marginal witness to the recovery memo
Ex.PW3/1, and also marginal witness to the recovery memo of blood stained
earth/sand (P.W.5/1). P.W.4 Fazal Muhammad SI, stated to have recorded the FIR
Ex.PW.4/1. P.W.5 Constable Gulfaraz is marginal witness of blood stained earth/sand,
Ex.PW.5/1 and blood stained garments Ex.PW.5/2. P.W.6 Constable Khawja
Muhammad is the witness, who took the murasila to the police station for registration
of the case and marginal witness to the recovery memo Ex.PW.2/1. P.W.7 Raz Wali
Armourer stated to have opined that the pistol .30 bore is in workable condition.

P.W.8 Umard Ali is the complainant and father of the deceased, who reiterated the facts
mentioned in the FIR and also affirmed to have nominated the appellant along with co-
convicts in his statement recorded under section 161 of Cr.P.C. as well as stated to have
identified the stolen motorcycle and mobile set, Ex.P-12 and P-13 respectively, through
identification memo Ex.PW.8/2. P.W.9 Asadullah Khan has identified the dead body of
the deceased Farzind Ali.

P.W.10 Murad Ali, ASI is marginal witness of recovery memo Ex.PW.10/1,whereby on

the alleged pointation of appellant, pistol was recovered in consequence of disclosure,
which was found to be licensed one. He is also marginal witness of Ex.PW.10/5
regarding recovery of alleged stolen motorcycle and Ex.PW.10/6 pertaining to the
sketch of the place of recovery.

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P.W.11 Mian Zahidullah Jan, Judicial Magistrate, stated to have recorded the judicial
confession of the appellant and co-convicts exhibited as PW.11/1 to Ex.PW.11/12.
P.W.12 Alamzeb Khan, Inspector is the investigating officer of the case who stated to
have carried out the investigation, the details, whereof have been given by the related
marginal witnesses mentioned herein before, and produced FSL report of the blood
stained earth/sand, blood stained clothes Ex.PK and result of pistol and empty
Ex.PK/2. P.W.13 Fazal Subhan being SHO of Police Station Akora Khattak, submitted
complete challan against the accused persons.

8. On closure of the prosecution side, the appellant and co-convicts were examined
under section 342 of Cr.P.C., who denied the allegations put-forth against them and
professed their innocence. None of them opted to record their statement on oath or
produced defence evidence.

After recording statement under section 342, Cr.P.C., the appellant skipped away on
27.5.2016, whereafter, compliance of proceedings as envisaged under sections 87/88 of
Cr.P.C., he was declared proclaimed offender.

In the meanwhile, on 20.9.2014, a compromise was arrived in between the parents of

the deceased Farzand Ali with co-convicts Nizar Ali and Abdul Hameed alias Terah, as
such the trial Judge on 9.10.2014, keeping in view the compromise arrived in between
the parties and mitigating circumstances, convicted and sentenced Nizar Ali under
section 392, P.P.C. to suffer three years RI with benefit of section 382-B Cr.P.C.,
whereas Abdul Hameed alias Terah, was convicted under section 411, P.P.C. and
sentenced to the period already undergone by him. The case was kept in dormant till
the arrest of the appellant.

Subsequently on 28.5.2016, the appellant was arrested and was sent to the trial court
for proceeding ahead as such, the appellant was tried from the stage, wherefrom he had
escaped.

On conclusion of the trial, on 16.3.2017, the appellant was found guilty of the charges,
thus was convicted and sentenced for the terms mentioned herein the preceding para of
the judgment.

9. The appellant being aggrieved from the judgment dated 16.3.2017, impugned the
same before this Court in appeal, seeking setting aside his conviction and sentence
with the relief of his acquittal.

10. We have heard Mr. Shahid Zaman Yousafzai, Advocate, learned counsel for the
appellant and Mr.Wilayat Khan, Assistant Advocate General KPK for the State and
have perused the record with due care and caution.

11. Learned counsel for the appellant Mr.Shahid Zaman Yousafzai inter alia contended
that the impugned judgment is contrary to the facts and law which is sheer result of
mis-reading of evidence. He urged that the judicial confessions are inadmissible not for
the reason that the same has been extorted by means of coercive measure, but the same
are contradictory to each other and that the codal formalities have not been adhered to,

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while recording the same. He maintained that the recovery of pistol is not a
corroborative piece of evidence as the FSL report Ex.PK/2 received regarding the
crime weapon is negative, which creates doubt in the prosecution case. It was
contended that since there is no eye-witness of the occurrence and the entire case rests
upon the circumstantial evidence, which too has not been proved beyond reasonable
doubt as the chain of circumstance does not lead the appellant to the crime, thus sought
acquittal of the appellant. To support his argument, he relied upon judgments reported
in 2017 SCMR 898, 2016 SCMR 274, 2015 YLR 1279 and 2017 SCMR 986.

12. Conversely, learned Assistant Advocate General representing the State, vehemently
opposed the arguments, so advanced by the counsel for the appellant and categorically
supported the impugned judgment by maintaining that the prosecution has successfully
proven the charge. It was emphasized that the judicial confessions recorded by the
appellant and co-convicts have been corroborated by the recovery of stolen articles,
thus the trial court has rightly appreciated the evidence on record, as such, prayed for
dismissal of the appeal for same being without any merits. Reliance was placed upon
the judgments reported in PLD 2006 SC 87, 2005 YLR 908 and PLD 2005 SC 168 and
2007 SCMR 782.

13. After scanning and dilating upon the evidence available on record, we have judged
that the entire case of the prosecution is based upon the circumstantial evidence, as
occurrence is unseen and there is no eye-witness of the crime alleged herein.

The evidence so far collected by the prosecution rest upon the following circumstantial
pieces of evidence;

i) Testimony of P.W.8 Umard Ali;

ii) Medico Legal evidence;

iii) Recovery of motorcycle and mobile set;

iv) Recovery of pistol and empty coupled with FSL report and;

v) Judicial confessions of the convicts.

Undeniably, P.W.8 Umard Ali seems to have arrived on the crime scene, earlier then
the police officials, but while lodging the report he has not nominated any one
responsible for the crime and said that he has no enmity with anybody, as such, he does
not know that who had committed the crime, so he even did not suspect any one to be
behind the crime. He being father of the deceased, on 10.7.2012 got recorded the
statement under section 164 of Cr.P.C., and thereby nominated the appellant and co-
convicts Nizar Ali and Abdul Hameed alias Tehra to be involved in the alleged crime.
The involvement by P.W.8 Umard Ali is neither based on the information of someone,
who had seen the occurrence nor on any other plausible circumstantial evidence, which
can be read in evidence. His statement is merely based on speculation and undisclosed
information, which he failed to produce either before the police or even before the
court as such his suspicion can only be considered as an afterthought having no
substance at all. It is surprising that before recording statement of P.W.8 Umard Ali the

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Investigating Officer had no clue of the culprits but after nomination by him, the I.O
toed such line and the investigation was moved ahead in the direction given by the
complainant P.W.8 Umard Ali, which demonstrates that the investigation carried out by
P.W.12 Alamzeb Khan is not impartial, thus, such evidence is to be looked into by us,
more carefully and consciously then in any other case. Even otherwise, the statement
under section 164, Cr.P.C. P.W.8 Umard Ali at the most case be treated as
supplementary statement recorded after some time, which otherwise, has not been
approved to be testimony of worth, so enunciated by the Apex Court in the case of
Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others (PLD 2016
SC 951).

Unnatural death of the deceased has not been questioned, therefore, the medico-legal
evidence need not to be brought under scrutiny for it does not lead to identify or
connect the appellant with the crime, particularly in the peculiar circumstances of the
instant case.

14. As regards, recovery of alleged stolen motorcycle on the pointation of co-convict

by Nizar Ali is concerned, that is not worthy of credence on many counts.
Complainant, neither in the police report on the basis, whereof FIR was lodged nor in
the statement recorded under section 164 of Cr.P.C. has given the registration and
chassis numbers and other details of the stolen motorcycle. If, for the sake of
discussion, the recovery is believed to be true, even then it would not be safe to rely
upon such recovery as discussed for the details of the recovered motorbike have not
furnished earlier. We are conscious that P.W.8 Umard Ali has subsequently identified
the alleged stolen articles in a so called identification parade of articles but the same is
also worthless, because while carrying out such identification neither any other
independent witness has been associated nor legal requisites have been followed for
carrying out such identification parade. Even otherwise, as the description was not
given earlier, therefore, identification of the same thereafter, would be immaterial
having no sanctity at all.

15. The recovery of crime weapon (.30 pistol) on the pointation of the appellant is also
not worthy of reliance because according to the F.S.L report Ex.PK/2, the empty
recovered from the place of occurrence does not match with the recovered pistol, thus
by no stretch of imagination, it could be ascertained that the pistol is the same, which
had been used in the alleged crime.

Above all, during the arguments, when the learned Assistant Advocate General was
confronted and asked as to whether reliance can be placed upon such recovery of crime
weapon, to which he graciously conceded that no reliance could be placed on such
recovery.

16. Now, coming to the utmost important piece of circumstantial evidence, whereupon
the prosecution mainly relies upon , is the judicial confessions allegedly made by the
appellant and co-convicts. Before analysis and due scrutiny of the judicial confessions,
we would like to refer to the dictum expounded by the Apex Court, while appreciating
and discarding a judicial confessions. It has been settled by the Hon'ble Supreme Court
of Pakistan that a retracted judicial confessions can be made basis for convicting and

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awarding sentence, but subject to some independent corroborative evidence and while
recording a confessional statement Judicial Magistrate, must reduce the same in his
own hand writing, and in case there was a genuine compelling reason for not doing so,
then, it must be explained through a Note that it was dictated to a responsible official
like Stenographer or Reader, who shall also be administered oath that he would
correctly type or write the version and that if the same is recorded in some other
language, then the same should be read over and explained to the accused in the
language, he fully understands and a certificate regarding transcribing of such facts be
issued and the accused shall be remanded to judicial lock up.

Above all, the judicial confessions must be found to be voluntary as retracted

confessions have always been looked upon with suspicion and could not be acted upon
unless corroborated by trust worthy and independent evidence, particularly, when the
recovery, being supportive evidence is proved, then the judicial confession can be
taken into account but not otherwise. Here, reference can be made to the case of
Muhammad Ismail and others v. The State (2017 SCMR 898) and Azeem Khan and
another v. Mujahid Khan and others (2016 SCMR 274).

In the instant case, the judicial confession reveals that two shots were fired upon the
deceased against which, one hit the deceased, following his death but such stance does
not corroborate from the circumstantial evidence, such as recovery of the empty, as
undeniably the police secured only one empty, which seems not to be in line with the
aforesaid judicial confessions.

Moreover, in view of the judicial confession of the co-convict Nizar Ali, it appears that
the stolen motorcycle was sold out by him in a festival (mela) at Shamsi Road Mardan
in the sum of Rs.28,000/- to a buyer who was from Katlang, but astonishingly, the
recovery of aforesaid motorcycle was effected on his pointation from an abandoned
and deserted house at Ismailia, which again belies the aforesaid so-called judicial
confession. Henceforth it persuaded us to believe that the judicial confession is untrue
and not confidence inspiring.

Looking into the judicial confession from another angle, we have found that the
judicial confession has been reduced into writing in English and not in the language of
the maker or under, which is also not understandable. P.W.11 Mian Zahidullah Jan,
Judicial Magistrate, has not mentioned in the Certificate that he understands pushto
language and that the confession was translated word by word from pushto to English.
In absence of such certificate at the foot of judicial confession statement would make
the same worthless, which cannot be relied or acted upon. Moreover, while recording
judicial confessions , the appellant and co-convicts were in need of an interpreter,
whereas, being examined, under section 342, Cr.P.C, neither any interpreter, was
appointed to translate nor such factum was disclosed in their certificate at the foot of
the statement recorded under section 342, Cr.P.C., which further aggravates our
concern and lead us to doubt the judicial confessions. On the above stated propositions,
we are influenced by the dictum laid down by the Apex Court in the case of Hashim
Qasim and another v. The State (2017 SCMR 986). For ready reference, the relevant
portion of the aforesaid judgment is reproduced herein below:--

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"Keeping in view the above conflict with the other pieces of evidence, brought
on record, the retracted confession of the accused has lost its evidentiary value
and legal efficacy thus, it would be absolutely unsafe to rely on it and that too
for recording punishment on a capital charge.

Another important aspect, which escaped the notice of the two courts below, is
that, the Magistrate in his certificate has mentioned that the accused gave
statement in "Hindko Dialect" which the Magistrate translated into Urdu. The
Magistrate has nowhere stated in the certificate or at the trial that he was fully
acquainted with or could understand "Hindko language" and that the confession
was translated word by word from 'Hindko to Urdu'."

The Judicial Magistrate also admitted that he had dictated the questionnaire to his KPO
(Key Punch Operator) being one of the staff member of his office, which also makes
such judicial confession unworthy.

Co-convict Abdul Hameed maintained to have merely purchased the mobile set from
co-convict Nizar, but absolved himself for having knowledge about the said mobile set
being a stolen or snatched one, thus, his such confessional statement becomes ex-
culpatory, which is not only inadmissible but of no help to the prosecution in any
manner, henceforth, by no means, it could be relied upon for holding the appellant
guilty of the crime as alleged.

17. Adverting to the circumstantial evidence in general, we have considered each and
every aspect of the evidence on record in isolation as well as in consonance to each
other, but have found that there is nexus with one and the other and it did not complete
the chain as it was broken because, it could not link the accused with the deceased
without any shadow of doubt. The judicial confessional statement is neither supportive
of the recovery nor any other circumstance, which could hold the appellant to be felon
of the crime. As enunciated by the Apex Court, that in a case of circumstantial
evidence, there must be trust worthy and confidence inspiring chain of circumstances,
which must not be missing and the evidence must lead and connect the dead body of
the deceased to the neck of the accused, which in this case, we failed to find out. Thus
on the basis of such unreliable evidence, we cannot hold the appellant guilty of the
charge, as the prosecution has miserably failed to bring home the charge against him.
In this regard we are guided with the principle expounded in the judgment reported in
the case of Muhammad Ismail and others v. The State (2017 SCMR 898), Azeem Khan
and another v. Mujahid Khan and others (2016 SCMR 274) and Naveed Akhtar v. The
State (2015 YLR 1279).

18. In so far as the citation referred by the learned Assistant Advocate General KPK is
concerned, we have given anxious thought to those as well. There is no exception to
the principles settled in those judgments, however, since the facts and circumstances of
those cases are all together different and inapplicable to the instant case, therefore, the
same have no relevance.

Admittedly, there is no cavil that judicial confession must be relied upon, if the same is
rendered voluntarily without any duress as reported in the case of Ghulam Qadir and

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others v. The State (2007 SCMR 782) and Abdul Sattar and another v. The State and
another (2005 YLR 908) so, referred by learned Assistant Advocate General, but
regarding instant case, we have arrived at the conclusion that the said judicial
confessions in question have not been recorded in accordance with law and the
principles enunciated by the Apex Court, therefore, no explicit reliance can be placed
upon such confessions.

20. In wake of the above discussion, we have reached to the verdict that the impugned
judgment has been rendered on the basis of illogical reasons, misreading of evidence,
inadmissible and unreliable circumstantial evidence, which has compelled and
persuaded us to set aside the impugned judgment, allow the appeal and record acquittal
of the appellant.

These are the reasons for our shot order dated 11.4.2018 for acquittal of the appellant.

JK/8/FSC Appeal allowed.

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