2002 PLP 1867 (MLD)

(3) Judicial confession of appellant Mithal. (4) Recovery of crime empty from the place of incident and gun from appellant Mithal. (5) Evidence of motive through eye‑witnesses. (6) Other circumstantial evidence such as recovery of blood‑stained earth from place of incident. (7) Extra judicial confession of Mithal. The ocular evidence, on perusal, is found to be strong enough to support the case of prosecution. The version given by Dilmurad, Jan Muhammad and Mahmeed is that while they were sleeping in the courtyard they woke up on the barking of dogs and saw accused Mithal and Rano having guns in their hands standing near the cot of Ahmed. Within their seeing appellant Mithal fired shot from his gun which hit him. Mithal also shouted that he has declared his wife Mst. Sakina as `Kari' with Ahmed. They did not chase the appellants due to fear but subsequently when they heard fire‑arm report from the house of appellant Mithal which was not far away and according to Tepedar P.W.1, it was at the distance of 330 feet from the house of complainant party, they rushed to the house of appellant Mithal where the appellant made extra judicial confession saying that he had killed his wife Mst. Sakina as she was 'Kari' with Ahmed. They returned back. The complainant party found that Mst. Sakina was dead and she was bleeding and Ahmed was also dead. All these eye‑witnesses were extensively cross‑examined and put, suggestions which they simply denied. Regarding P.W. Janoo, the complainant had not concealed the fact that he was resident of a different place but had visited them and was staying there as he was complainant's cousin. In normal course of life visits by relatives cannot be doubted and if at all any benefit was to be drawn from this position such material should have come on record that Janoo had motive to implicate the appellant falsely and had had absolutely no reason to be present there. A simple story has been given in few words unmistakably and all these witnesses have not come forward with any discrepancy in their evidence therefore, there is no reason to discard their testimonies. Secondly, their version is corroborated by the evidence of recovery of blood‑stained earth and presence of dead bodies which were secured by Investigating Officer soon after the lodging of F.I.R. Their testimonies are again supported by the medical evidence. According to the Medical Officer, Dr. Muzaffar who conducted post‑mortem examination of the dead bodies, he found following injuries on the bodies of Ahmed and Mst. Sakina: (1) Lacerated punctured wound 2x2 c.m. with blackening with inverted margins wound of entrance at 4th rib latterly left side. (1) Lacerated punctured wound 2x2 c.m. with inverted margins wound of entrance at left side of chest latterly at 4th rib (blackening). (2) A lacerated punctured wound 2x2 c.m. on left chest below left right breast W. Entrance. (3) A lacerated punctured wound 1x1 c.m. through and through on right elbow joint. (4) A lacerated punctured wound 1x1 c.m. through and through on right shoulder. He had found blackening on the body of Ahmed who had only one injury caused by fire‑arm and had also found blackening on main injury on the chest of Mst. Sakina. The timings of death given by him also conform to the prosecution story thereby corroborating the testimonies of abovesaid eye‑witnesses. The eminent piece of evidence produced by the prosecution in support of eye‑witnesses is the judicial confession recorded by Mukhtiarkar and First Class Magistrate Ali Sher P.W.3. His evidence shows that on the day of arrest of appellant Mithal, he had recorded the judicial confession. He had issued all warnings to the appellant in the first instance and disclosed his identity as a Magistrate and assured the appellant that he would not be returned to police. He had clarified to the appellant that confession could be used against him. He allowed him two hours' time for reflection and repeated the same warnings which he had given earlier. He then recorded the confession wherein the appellant admitted, that, on the fateful night when he got up, he found his wife Mst. Sakina missing. After searching her here and there he located her behind a shelter and found her in objectionable position with Ahmed. He picked up his gun but Ahmed ran away to his house; he went there and fired a shot at Ahmed and killed him whereafter he returned and killed his wife. This confession has been recorded on the same day and apparently there are no flagrant violations of rules relating to recording of confession and there seems to be no reason to assume that some body has pressurized the accused or managed false confession through a Magistrate. The confession seems to be voluntary. It is also true and can C be accepted in its entirety. The maker of confession wholly inculpates himself and the case has entirely proceeded in the direction that appellant Mithal was solely responsible for killing his wife and also deceased Ahmed declaring them 'Kari‑Karo' No doubt an additional version has come through the witnesses that appellant Ratio was also accompanying his father Mithal when shots were fired at Ahmed and this part of the prosecution story is missing in the judicial confession but then this draw back alone does not absolve appellant Mithal of his exclusive liability made out from this confession. Confessional statement cannot be held to be untrue as long it untrue display any version exculpating the maker. Merely because the prosecution witnesses had seen the accused at the time of first incident would not cast any doubt on the truth of the judicial confession. I am therefore, persuaded to agree that the judicial confession is true and on the whole there is no reasonable ground to disbelieve this piece of evidence. As regards the recovery of crime empty and gun, no report of Ballistic Expert has been placed on record, the same has therefore become meaningless. The Chemical Examiner's report has, however, been produced which supports the case of prosecution corroborating the version of eye witnesses about the fact and place of incident from where the same was collected. The evidence of extra‑judicial confession has also come on record as in presence of all the three eye‑witnesses appellant Mithal had admitted that he killed his wife Mst. Sakina declaring her `Kari' with Ahmed. Mr. Sher Muhammad Shar, learned Assistant Advocate‑General submitted that the prosecution has placed on record reliable evidence ocular and circumstantial supported by judicial confession against appellant Mithal and the finding of conviction by the learned trial Court against appellant Mithal may be maintained. Regarding the role of appellant Rano, he submitted that, although his presence is spoken about by the eye‑witnesses but actually no role of making a fire even in the air has been assigned to him; nor has he uttered a word as to what he was intending to do. Besides, his presence is not shown at the second place of incident therefore, a case of slight doubt has been made out which tray, be extended to him. The submissions made by the learned Assistant Advocate‑General are convincing and I fully agree with him that in the absence of any active role demonstrating some overt act appellant Rano may not be saddled with liability of Qatl‑e‑Amd of deceased Ahmed. It would be advantageous to quote that he was not even seen when the witnesses rushed to the house of appellant Mithal where the later had committed murder of his wife Mst. Sakina. The judicial confession being eminent piece of evidence also does not implicate him. The element of doubt thus created be resolved in his favour. In view, of the above discussion I am inclined to conclude that the offence of Qatl‑e‑Amd is made out against the appellant Mithal and following the principle laid down in the case of Abdul Haque v. The State (PLD 1996 SC 1) the view taken by the trial Court is also affirmed to the extent that there are mitigating circumstances and the appellant is liable to punishment as Tazir within the meaning of section 302 (b), P.P.C. The conviction of Mithal and the sentence accordingly are maintained. The sentence of fine is however not maintained. As regard appellant Rano a slight doubt has been created and the benefit thereof is extended to him. His appeal is allowed and he is acquitted of the charge. He may be released forthwith. H.B.T./M‑353/K Order accordingly.