2021 Y L R 2366
[Balochistan]
Before Rozi Khan Barrech, J
REHMATULLAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 27 of 2020, decided on 18th September, 2020.
(a) Penal Code (XLV of 1860) ---
----S. 394 ---Voluntarily causing hurt in committing robbery---Appreciation of evidence---
Benefit of doubt ---Accused was charged for forcibly taking away the motorbike of the
complainant after tiding his hands and feet with rope and due to resistance of the
complainant, his right hand was injured, however accused was apprehended ---When the
complainant was subjected to cross -examination, he denied the suggestion that on the day of
occurrence, he attempted to molest the accused ---Record showed that the age of the accused
was seventeen years, which was mentioned in the statement of the accused recorded under S.164, Cr.P.C. as well as in his statement recorded under S.340(2), Cr.P.C.---Investigating
Officer stated during cross -examination that the accused filed an application for registration
of the FIR against the complainant in respect of molesting him ---Said witness further stated
during cross -examination that he conducted an inquiry under S.157(2), Cr.P.C., however, he
stated that the father of the accused did not produce any witness in the said inquiry ---Witness
further stated during cross -examination that the accused was a student ---On the other hand,
the record transpired that the age of the complainant was thirty six years ---According to the
medical certificate, the complainant received two injuri es on his hand and there was slightly
abrasion marks on his neck, meaning thereby that both the accused and the complainant
scuffled with each other at the time of occurrence---Student of the age of 16/17 years could not tie the hands and feet of a person of the age of the complainant, i.e. 36 years ---
Complainant stated that he came struggling to the road and told the people that the accused was a thief and was trying to snatch his motorcycle ---Complainant stated that people caught
hold of the accused and i nformed the levies officials ---Said fact did not appeal to a prudent
mind as to how did the complainant come to the road and told the people about the occurrence, even though his hands and feet were tied and the accused would still wait the people and the levies officials to come and arrest him---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt ---
Appeal against conviction was allowed, in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 394 ---Voluntarily causing hurt in committing robbery---Appreciation of evidence---
Benefit of doubt ---Contradictions in the statements of witnesses ---Scope ---Accused was
charged for taking away the motorbike of the complainant forcibly after tiding his hands and
feet with rope and due to resistance of the complainant, his right hand was injured, however
accused was apprehended ---Recovery witness of the knife stated that he reached the place of
occurrence along with the Investigation Officer and recovered the knife from the
accused/appellant ---Said witness stated during cross -examination that they reached the place
of occurrence at 1:10 pm and remained there for fifteen minutes ---Witness further stated
during cross -examination that they took the accuse d and reached the Levies Thana at 2:10
pm.---On the other hand, the Investigating Officer stated that the investigation was handed
over to him at 2:00 p.m. and he reached the place of occurrence at 2:30 p.m., complainant
and other levies officials were present at the spot ---Alleged occurrence took place at 1:00
p.m. and the FIR was registered on the same date at 1:50 p.m.--- Said contradictory statement
of both the said witnesses with regard to the time of lodging FIR casted reasonable doubt in
the prosecuti on case and it had not come on record as to how and who recorded the statement
of the complainant and whether the statement was recorded on the spot or the levies thana ---
Circum -stances established that the prosecution had failed to prove its case against accused
beyond any shadow of doubt ---Appeal against conviction was allowed, in circumstances.
(c) Criminal trial ---
----Witness --- Eye-witnesses, statement of --- Contradictions --- Effect --- Person making
contradictions and improvements could not be held worthy of credence.
(d) Criminal trial ---
----Witness ---Injured witness ---Scope ---Injuries of a witness was only an indication of his
presence at the spot but was not informative proof of his credibility and truth.
(e) Penal Code (XLV of 1860)---
----S. 394 ---Voluntarily causing hurt in committing robbery--- Appreciation of evidence---
Benefit of doubt ---Recovery of weapon of offence from the possession of accused---
Reliance--- Scope ---Accused was charged for taking away the motorbike of the complainant
forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his
right hand was injured, however accused was apprehended--- Record showed that knife as
crime weapon was recovered from the possession of accused---Recovery witness of the alleged occurrence stated that when he reached the place of occurrence and knife was recovered from the accused ---Said witness, during cross -examination, stated that when they
reached the place of occurrence, many people had gathered at the spot, who had apprehended the accused ---Said fact did not appeal to a prudent mind that accused who had been
apprehended by the people would keep the knife with himself till the time when the levies officials reached, i.e. after ten minutes ---Said aspect of the matter created reasonable doubt
in the prosecution case ---Even otherwise, the prosecution did not produce any corroborative
evidence in support of the statement of recovery witness and none of the other witnesses stated a single word to the effect that the knife was recovered from the accused ---Recovery
witness stated during cross -examination that the knife, which was produced before the court
was not stained with blood---Investigating Officer also did not send the knife to the Forensic Science Laboratory, th erefore, that piece of evidence provided no help to the prosecution's
case.
(f) Penal Code (XLV of 1860)---
----S. 394--- Criminal Procedure Code (V of 1898), S. 164 ---Voluntarily causing hurt in
committing robbery---Appreciation of evidence--- Benefit of d oubt---Confessional statement
of accused ---Scope ---Accused was charged for taking away the motorbike of the complainant
forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his
right hand was injured, however accused was apprehended ---Record showed that the
statement of the accused was recorded under S.164, Cr.P.C had not corroborated with the FIR as well as the statement of the complainant---Accused neither stated a single word that he tied the hands and feet of the complainant nor he stated a single word that he kept the knife on the neck of the complainant and tried to snatch his motorcycle ---Circumstances
established that prosecution failed to establish case against accused.
(g) Criminal Procedure Code (V of 1898) ---
----S. 164 ---Confession, recording of ---Judicial Magistrate, before recording the confessional
statement of the accused, was to essentially observe all the mandatory precautions as per High Court Rules and Orders so that all signs of fear inculcated by the investigation agency
in the mind of the accused were to be shed out.
(h) Penal Code (XLV of 1860)---
----S. 394--- Criminal Procedure Code (V of 1898), S. 164 ---Voluntarily causing hurt in
committing robbery---Appreciation of evidence ---Benefit of doubt ---Confession, recording
of---Procedure ---Accused was charged for taking away the motorbike of the compla inant
forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his
right hand was injured, however accused was apprehended---No precautionary measures,
which, in the circumstances of the case, were pre- requisite for reco rding the confession of a
minor accused were observed ---Accused, being a minor was provided with no opportunity of
counselling, neither by his guardian nor by a lawyer ---Judicial Magistrate did not state a
single word in his statement as well as in the cer tificate issued by her that any offer was
made to the accused for counselling ---Confession of the minor was to be assessed on the
same touchstone as to that of the statement of a child witness ---Child witness was brought to
the dock by relatives while on t he contrary child accused was brought to the court by Police
Officials for recording his confessional statement where the possibility of tutoring and police
fear was always there--- Judicial Magistrate did not put the question to the accused that after
recording his statement he would not be handed over to police or levies ---Judicial Magistrate
filled the answers without adhering to the codal formalities and without considering the intellectual level of the minor who was unaware of the consequences of his st atement ---
Judicial Magistrate after recording the statement of the accused under S.164, Cr.P.C handed
over the accused to the same levies officials who produced him before her to take him for
judicial remand ---Confessional statement of the accused in circu mstances, was not voluntary
and gross illegality was committed by Judicial Magistrate.
Hashim Qasim and another v. The State 2017 SCMR 986 and State through Advocate
General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 rel.
(i) Penal Code (X LV of 1860) ---
----S. 394--- Criminal Procedure Code (V of 1898), S. 164 ---Voluntarily causing hurt in
committing robbery---Appreciation of evidence ---Benefit of doubt ---Confession, recording
of---Infirmities ---Effect ---Accused was charged for taking away t he motorbike of the
complainant forcibly after tiding his hands and feet with rope and due to resistance of the
complainant, his right hand was injured, however accused was apprehended--- Record
showed that the Judicial Magistrate had not given sufficient t ime for reflection before
recording the statement of the accused under S.164, Cr.P.C. as it was incumbent upon her to have given sufficient time for reflection, i.e. thirty minutes, with three intervals; henceforth by not doing so, Judicial Magistrate fail ed to observe pre -cautions held necessary before
recording confessional statement ---Neither the Judicial Magistrate stated a single word in her
statement that she gave time for reflection to the accused nor mentioned the time of reflection in her certificate issued beneath the confessional statement of the accused ---
Judicial Magistrate stated during cross -examination that she recorded the statement of the
accused under S.164, Cr.P.C within 15/20 minutes ---Investigating Officer stated during
cross -examinatio n that Judicial Magistrate recorded the statement of the accused within half
hour ---Said fact showed that no time for reflection had been given to the accused before
recording his statement under S.164, Cr.P.C., as envisaged under S.364, Cr.P.C., therefore
the confessional statement of the accused did not appear to be true and voluntary.
(j) Penal Code (XLV of 1860)---
----S. 394--- Criminal Procedure Code (V of 1898), S. 164 ---Voluntarily causing hurt in
committing robbery---Appreciation of evidence ---Benef it of doubt ---Delay of about ten days
in recording the confessional statement of the accused ---Scope ---Accused was charged for
taking away the motorbike of the complainant forcibly after tiding his hands and feet with
rope and due to resistance of the comp lainant, his right hand was injured, however accused
was apprehended ---Record showed that the accused was arrested and he was produced before
the Judicial Magistrate after ten days of his arrest for recording his confessional statement under S.164, Cr.P.C.--- Said delay had not been plausibly explained by the prosecution,
which had highly injured its credibility and the same could not be accepted as confidence inspiring against the accused.
Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003
SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Pato and another v. The State 2012 MLD 1358 rel.
(k) Criminal Procedure Code (V of 1898) ---
----S. 164--- Confessiona l statement--- Evidentiary value --- Confessional statement was not to
be accepted as a substantive piece of evidence to place conviction on it alone unless it was corroborated in each and every detail by other corroborative and circumstantial evidence.
Wali Khan Nasar for Appellant.
Miss Shumaila Iftikhar, State Counsel.
Date of hearing: 14th September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant was involved in case FIR No. 31/2019
dated 04.11.2019 of Levies Thlana Khanozai Pishin registered unde r section 394, P.P.C. and
was tried by learned Additional Sessions Judge, Khanozai ("trial court"), The trial court
seized with the matter in terms of the judgment dated 10.08.2020 ("impugned judgment"), convicted and sentenced the appellant in the followi ng terms:--
"...since the accused person is young and first offender, there -fore, lenient view is
taken and he is convicted under section 394, P.P.C. and sentenced to suffer for 07 years R.I. and with fine of Rs.50,000/ - (Fifty Thousand Rupees) and in default,
further suffer S.I. for two months. Benefit of section 382- B, Cr.P.C. is also extended
in favour of convict. "
2. The prosecution story as disclosed in the complaint Ex.P/4- A recorded on the
statement of Shabbir Ahmed son of Haji Abdullah, complai nant/PW -4 is that on 04.11.2019
he was coming from Moghtian on his motorcycle towards Khanozai. At 12:45 p.m. a person (seemingly a Talib) was standing on the roadside at Killi Raigi, who indicated the complainant to stop. When the complainant stopped, the said person stated that he wants to
go to Shahrag and to drop at Ziarat cross, so he seated on the bike and at about 1:00 pm when they reached near Gharki cross, where the said person took out a knife, pointed at the neck of the complainant and told him t o stop. The complainant stopped the motorcycle; he was
forcibly from the bike and was taken to the roadside, whereafter his hand and feet were tied with rope, due to resistance of the complainant, his right hand was injured. Afterwards, the accused tried t o start the motorcycle but failed to do so due to Anti -theft switch. Meanwhile,
the complainant somehow came to the roadside and told the passersby that the said person is a thief, where- after the accused was apprehended by the people, and thus the Gharki Thana
officials were informed. The levies officials of levies thana came to the spot, and on inquiry, the accused disclosed his name as Rehmatullah caste Mulakhail, resident of Afghanistan. Hence the crime report.
3. After completion of the investigation t he challan was submitted before the trial court,
the charge was framed against the accused/appellant to which he pleaded not guilty and claimed trial, whereafter the prosecution in order to substantiate the accusation against the appellant produced as many six witnesses. The statement of the appellant/accused was
recorded under section 342, Cr.P.C., wherein he refuted the allegation levelled against him and professed his innocence. The appellant recorded his statement as envisaged under section 340(2), Cr.P .C. but did not produce any witness in his defense. After hearing arguments
advanced by the learned counsel appearing on behalf of both the parties, the trial court while evaluating the evidence available on record found the version of the prosecution proved beyond the shadow of reasonable doubt. Resultantly, recorded conviction and sentenced against the appellant in the above terms.
Being aggrieved from the impugned judgment dated 10.08.2020, the appellant has
filed the instant appeal.
4. Arguments advanc ed from both sides have been heard. I have also minutely gone
through the record available on file with the able assistance of learned counsel for the parties.
5. The prosecution in order to prove its case produced PW -4 Shabbir Ahmed, who is
complainant of the case. He deposed before the trial court that on 04.11.2019 at 1:00 pm
when he was coming on his motorcycle and reached near Raigi area, one person (appellant)
who appeared to be a "Talib" was standing on the roadside, who signaled him to stop and ask him if he would drop him at Ziarat cross as wanted to go to Shahrag, however on the way the appellant took out a knife and forcibly stopped the bike and beat him up due to which he also received injuries. He further stated that the appellant tried to snatch his motorcycle. When the complainant was subjected to cross -examination, he denied the suggestion that on the day
of occurrence, he attempted to molest the appellant. He further stated during cross -
examination that he did not know the age of the accused to be sixteen years. It has also come on record that the age of the accused is seventeen years, which was mentioned in the statement of the accused recorded under section 164, Cr.P.C. as well as in his statement recorded under section 340(2), Cr.P.C.
6. PW-6 Jalaluddin Naib Risaldar who conducted the investigation of the case stated
during cross -examination that on 04.11.2019, the accused filed an application for registration
of the FIR against the complainant in respect of molesting him. He further stated during
cross -examination that he conducted an inquiry under section 157(2), Cr.P.C., however, he
stated that the father of the accused did not produce any witness in the said inquiry. He further stated during cross -examination that the accused is a student . On the other hand, the
record transpires that the age of the complainant is thirty six years. According to the medical certificate, the complainant received two injuries on his hand, and there was slightly omrassion marks on his neck, meaning thereby tha t both the accused and the complainant
scuffled with each other at the time of occurrence. Under such state of affairs, how was it possible that a student of the age of 16/17 years tied the hands and feet of a person of the age of the complainant, i.e. 36 years.
7. PW-4/complainant further stated in his statement that there was an anti- theft switch in
his motorcycle and the accused tried to start the bike, but in the meanwhile, he came struggling to the road and told the people that the accused is a thief a nd was trying to snatch
his motorcycle. He further stated that, people caught hold of the accused and informed the levies officials. It does not appeal to a prudent mind that how did the complainant come to the road and told the people about the occurrence , even though his hands and feet were tied,
and the accused would still await the people and the levies officials to come and arrest him.
8. PW-1 Muhammad Siddiq Khasadar levies, who is the recovery witness of the knife
allegedly recovered from the accused , stated that on the 04.11.2019 he reached the place of
occurrence along with the investigation officer Dafedar Hussain Ahmed and recovered the knife from the accused/ appellant. He stated during cross -examination that they reached the
place of occurrence, at 1:10 p.m. and remained there for fifteen minutes. He further stated
during cross -examination that they took the accused/appellant to Khanozai levies thana. He
also stated during cross -examination that they reached the Levies Thana at 2:10 p.m.
On the other hand, PW -6 Jalaluddin Naib Risaldar stated in his statement that on
4.11.2019 after registration of the FIR, the investigation was handed over to him. During
cross -examination, he stated that the investigation was handed over to him at 2:00 p.m. He
further stated during cross -examination that they reached the place of occurrence at 2:30 pm;
that when they reached at the spot, the complainant and other levies officials were present at
the spot. It is worthwhile to mention here that the alleged occurrence took place on
04.11.2019 at 1:00 p.m. and the FIR was registered on the same date at 1:50 p.m.
9. The contradictory statement of both the above witnesses with regard to the time of
lodging the FIR, casts reasonable doubt in the prosecution case and it h as not come on record
that how and who recorded the statement of the complainant and whether the statement was
recorded on the spot or the levies thana.
PW-1 stated during cross -examination that they reached the place of occurrence at
1:30 p.m. and after fifty minutes they proceeded to levies thana and reached levies thana at about 2:10 p.m. The accused and the complainant also accompanied, but the investigation officer stated during cross -examination that he reached the place of occurrence at 2:30 p.m.,
the complainant, the other levies officials and people were already present on the spot.
10. There are material contradictions in the statement of the witnesses. It is a settled
principle of law that person making contradictions and improvements cannot be held worthy of credence. The prosecution produced Dr. Habib- ur-Rehman PW- 3, who issued the medical
certificate Ex.P/3 -A according to which the complainant received injuries. It is settled
principle of law that the injuries of a PW is only an indication of h is presence at the spot but
is not informative prove of his credibility and truth.
11. So far as the other piece of evidence, i.e. the recovery of the knife is concerned, the
prosecution produced PW -1 Muhammad Siddiq, who is the recovery witness of the all eged
occurrence. According to his version, when he reached the place of occurrence and knife was recovered from the accused. During cross -examination, he stated that when they reached the
place of occurrence, many people had gathered at the spot, who had a pprehended the
accused. It does not appeal to a prudent mind that an accused who had been apprehended by the people would keep the knife with himself till the time when the levies officials reached, i.e., after ten minutes. This aspect of the matter creates reasonable doubt in the prosecution case. Even otherwise, the prosecution did not produce any corroborative evidence in support of the statement of PW -1, and none of the other witnesses stated a single word to the effect
that the knife was recovered from the accused. PW- 1 stated during cross -examination that the
knife, which was produced before the court was not stained with blood. The investigation officer also did not send the knife to the Forensic Science Laboratory; therefore, this piece of evidence p rovides no help to the prosecution's case.
The complainant/PW -4 and PW -1 Khasadar Levies stated in their statement and
cross -examination that the accused was apprehended by the people of the locality. PW -1
stated that when they reached the place of occurr ence, many people had gathered there who
had apprehended the accused. The investigation officer neither recorded the statements of the private persons under section 161, Cr.P.C. nor produced them before the trial court. The
private persons who informed the levies officials in respect of the occurrence and allegedly
apprehended the accused could have further strengthened the prosecution version. Non-
production of such important witnesses, as provided under Article 129(g) of Qanun- e-
Shahadat Order, 1984 and dictum laid down by the Hon'ble Supreme Court in the case of Lal Khan v. The State (2004 SCMR 1847) would cast adverse inference, which brings us to the
irresistible conclusion that if the said witnesses had been produced they would not have
supported the prosecution version.
Even otherwise, when a single drop of dirt is mixed and dissolved in the tank of bulk
clean water, it makes the whole dirty. In the same manner, when some falsehood is mixed
with truth, the same makes the truth carrying the possibility of falsehood as a whole. The
Hon'ble Supreme Court of Pakistan had disbelieved the statement of an alleged eye -witness
whose conduct remained unusual in a case law titled "Muhammad Khan and another v. The State reported as 1999 SCMR 1220", wherein it was held that: "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It i s, therefore, imperative for the Court to examine and
consider all the relevant events preceding and leading to the occurrence so as to arrive at a
correct conclusion. Where the evidence examined by the prosecution is found inherently
unreliable, improbabl e and against natural course of human conduct, then the conclusion
must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of
the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective".
12. The judicial confession of the appellant is another piece of evidence that has been
relied upon to convict the appellant, who was produced before PW -5 Judicial Magistrate
Khanozai, who recorded the statement of the appellant under section 164, Cr.P.C. on 14.11.2019. The accused s tated in his statement that:
"About ten days ago after Madrassa hours, I was coming to my house and I took a ride with one motorcycle, and when we reached Gharkai cross, I told the rider to drop me off and I also took out a knife and demanded money from him, however the motorcycle rider dropped the bike and started fleeing towards the other side but I attacked the rider, who received injuries on his fingers; that people gathered on the road and caught hold of me and handed me over to the levies offic ials; that I feel that
I have done wrong and in future, I will refrain from doing such wrong."
13 Having given my anxious consideration to the foregoing background of the matter,
the FIR as well as in view of the statements of the prosecution witnesses on the one hand and the retracted confession of the appellant on the other, it has been observed that there are two sets of evidence on record.. First set of evidence as already discussed consists of FIR, court statement of the cornplainant/PW -4, who stated t hat the accused took out a knife and kept it
on his neck and tied his hand and feet with rope and thereafter tried to snatch his motorcycle and the second and crucial set of evidence consists of the confessional statement of the appellant before the Judici al Magistrate Khanozai recorded under section 164, Cr.P.C. The
statement of the appellant recorded under section 164, Cr.P.C. has not corroborated with the
FIR as well as the statement of the complainant/PW -4. The accused neither stated a single
word that he tied the hand and feet of the complainant nor he stated a single word that he
kept the knife on the neck of the complainant and tried to snatch his motorcycle.
14. During the trial, the appellant retracted his judicial confession. At the time of alleged
occurrence, age of the accused was 16/17 years. The question before this court is as to whether the appellant who, was a minor at the time of alleged occurrence could have been dealt with under the ordinary law. In the present case the trial court has mai nly relied on the
confessional statement of the accused, the trial court was under obligation to consider the age and every aspect of the confessional statement for getting satisfaction as to whether all the formalities have been complied with or not. It is well settled that before recording the confessional statement of the accused, the Judicial Magistrate should essentially observe all the mandatory precautions as per High Court Rules and Procedure so that all signs of fear inculcated by the investigation agency in the mind of the accused are to be shed out. But I
see no such precautionary measures in the present case, which in the circumstances of the case were pre- requisite for recording the confession of a minor. Reliance is placed on the
case titled as Azeem Khan and another v. Mujahid and others (2016 SCMR 274).
The appellant, being a minor, was provided with no opportunity of counseling, neither
by his guardian nor by a lawyer. It was desirable in the interest of justice that the appellant, being a j uvenile, should have been provided counseling facility of a guardian or a lawyer of
his choice but no such opportunity has been afforded to him by the Judicial Magistrate before recording his confessional statement. The learned Judicial Magistrate did not state a single word in his statement as well as in the certificate issued by her, i.e. Ex.P/5A that any offer
was made to the appellant for counseling. Under such circumstances, I have no other option
but to presume that no offer was made to the appellant for counseling. Reliance in this regard is placed on the judgment of the Apex Court in the case titled "Hashim Qasim and another v. The State" (2017 SCMR 986).
15. The confession of the minor is to be assessed on the same touchstone as to that of the
state ment of a child witness rather child witness is brought to the dock by relatives while on
the contrary child accused is brought to the court by police officials for recording his confessional statement where the possibility of tutoring and police fear is a lways there.
Reliance is placed on the case of State through Advocate General Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1).
It is also observed that the appellant was able to understand the nature of questions
put to him by the Judicial Mag istrate or otherwise, in this regard even the Judicial Magistrate
did not put the question to the appellant for recording his statement that after recording his statement he would not be handed over to police or levies and in this regard another example is the answer given by the appellant to Question No. 5 that why he is recording his statement
under section 164, Cr.P.C? the answer of the appellant was that "because I have done wrong."
16. It can easily be assessed from the answer given by the appellant that he was unable to
understand the nature of the question or to give rational answer thereof. Under such
circumstances, when utmost care is to be taken while assessing the testimony of a ch ild
witness, on the same yardstick extraordinary care and caution should have been taken by the Judicial Magistrate while recording the confessional statement of the appellant and the trial court as well as by evaluating his such statement for his convicti on. The learned Judicial
Magistrate filled the answers without adhering to the codal formalities and without
considering the, intellectual level of the minor who was unaware of the consequences of his
statement, likewise, the possibility of the appellant b eing minor to have been tutored or
tortured by the local police before recording his confessional statement cannot be ruled out especially when no opportunity of counseling by parents or a lawyer was afforded to him.
17. The learned Judicial Magistrate aft er recording the statement of the appellant under
section 164, Cr.P.C. handed over the appellant to the same levies officials who produced him before her to take him for judicial remand. This fact is also confirmed by the learned Judicial Magistrate Khanoz ai PW -5, who stated during cross -examination that after recording the
statement of the appellant under section 164, Cr.P.C., he was handed over to the investigation officer for sending him to the judicial lockup. This fact was further confirmed by the inve stigation officer PW -6, who stated during cross -examination that on 14.11.2019 at
3:00 pm or 3:30 pm he send the accused to judicial lockup. In the above circumstances, the confessional statement of the accused/appellant was not voluntary and gross illegal ity was
committed by PW -5/Judicial Magistrate Khanozai.
18. PW-5 Judicial Magistrate Khanozai has also not given sufficient time for reflection
before recording the statement of the accused/appellant under section 164, Cr.P.C., as it was incumbent upon her to have given sufficient time for reflection, i.e. thirty minutes, with three
intervals, henceforth by not doing so, PW -5 failed to observe pre -cautions held necessary
before recording a confessional statement. Neither the PW -5/Judicial Magistrate stated a
single word in her statement that she gave time for reflection to the appellant nor mentioned the time of reflection in her certificate issued beneath the confessional statement of the
appellant. PW-5 stated during cross -examination that she recorded the statement of the
appellant under section 164, Cr.P.C. within 15/20 minutes. The investigation officer stated during cross -examination that Judicial Magistrate recorded the statement of the appellant
within half hour. It is very clear from the above statem ents that no time for reflection has
been given to the appellant before recording his statement under section 164, Cr.P.C., as envisaged under section 364, Cr.P.C., therefore the confessional statement of the appellant does not appear to be true and volunt ary.
The appellant was arrested on 4.11.2019, and he was produced before the learned
Judicial Magistrate Khanozai on 14.11.2019 after ten days of his arrest for recording his confessional statement under section 164, Cr.P.C. The said delay has not been pl ausibly
explained by the prosecution, which has highly injured its credibility, and the same cannot be accepted as confidence inspiring against the appellant. Reliance is placed in Naqeebullah's case (PLD 1978 SC 21) and Khalid Javed and another v. The Sta te (2003 SCMR 1419).
Reference may also be made to the case of Shoukat Saeed v. The State PLD 1978 Quetta 1 and Pato and another v. The State (2012 MLD 1358).
19. The confessional statement is not to be accepted as a substantive piece of evidence
and to pl ace conviction on it alone unless it is corroborated in each and every detail by other
corroborative and circumstantial evidence is not warranted. The prosecution case is full of
contradictions and manner and mode of occurrence is highly doubtful, and the evidence produced in support of its case is not confidence inspiring. The courts are always vigilant,
that the prosecution shall prove in all the circumstances that the confessional statement or
extract thereof was free of all kinds of coercion, threat, pr omise and that it was voluntary.
Retracted confession shall not be accepted as Gospel's truth. The court shall carefully
scrutinize such confessional statement to ascertain as to whether all the formalities required thereto of the recording of such stateme nt were fulfilled by the court, which is recording such
statement of a juvenile accused.
From the facts and circumstances narrated above, I am persuaded to hold that
conviction passed by the learned trial court against the appellant in the circumstances i s
against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law, benefit of every doubt is to be extended in favour of the accused. Resultantly while setting aside the conviction and sentence recorded by the tri al court in terms of
judgment dated 10.08.2020 passed by learned Additional Sessions Judge, Khanozai in P.P.C.
case No. 02/2020, Crl. Appeal No.27/2020 filed by the appellant is allowed as a consequence
whereof he is ordered to be acquitted of the charge i n FIR No. 31/2019 registered under
section 394, P.P.C. at Levies Thana Khanozai, District Pishin. He is directed to be released forthwith if not required in any other case.
JK/181/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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