1985 P Cr (PLP)

(iii) that there is sufficient corroborative piece of evidence on record for re‑enforcing the retracted confession; and (iv) that the F.I.R. was not recorded after the preliminary inquiry.

7. Mr. Azizullah Memon in furtherance of his above first submission that the confession was recorded on oath and, therefore, is not admissible, has referred to the confession, which reads as follows:‑

8. It was vehemently urged by him that since the words have been used in the body of the confession, it was evident that the same was recorded on oath. He has referred to the following cases in support of his above contention:‑ (i) Muhammad Bakhsh v. The State P L D 1956 S C (Pak.) 420, in which Mr. Muhammad Munir, Chief Justice while dealing with the question of admissibility of a confession recorded on oath observed as follows:‑ "The provision governing the question whether oath can be administered to an accused is section 5 of the Oaths Act, 1873, which defines the classes of persons to whom oath or affirmation can be administered by a Court and which expressly states that 'nothing herein contained shall render it lawful to administer in a criminal proceeding an oath or affirmation to an accused person'. The plain reading of this provision is that if a person at the time, he makes his statement is an accused person, it is illegal for the Court to put him on oath or affirmation, and as such the provision must be held to be an express prohibition against the administration of the oath to an accused person. This section is not applicable to cases contemplated by section 132 of the Evidence Act for the simple reason that while this section prohibits the Court from administering an oath to a person accused, section 132 by its very terms contemplates cases where the person making a statement is not an accused but a witness who may subsequently become an accused. This being the position, the administration of an oath to an accused person is an express statutory illegality which must make the confession inadmissible because the exclusion of the statement on the ground of that illegality is the only method of enforcing .the prohibition. Sworn confessions were consistently excluded at' Common Law in England before the Criminal Evidence Act, 1898 (C.36) and under statutory provisions in the United States. The rule enacted by section 5 of the Oaths Act is taken from English Common Law and is based on the humanity of criminal jurisprudence which accords a specially favoured position to a prisoner. The law does not compel the prisoner to answer even where the Court is empowered to question him. He is entitled to hold his tongue against all interrogation; but when he decides to speak what he speaks is evidence, though not testimony, for as well as against him. And since he cannot be compelled to speak he is under no obligation to speak the truth. The administration to him of an oath or affirmation is thus opposed to public policy and any infringement of the provision prohibiting the Court from putting him under oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel. We have, therefore, no doubt that the statement under section 164 of the Cr.P.C. was obtained from the prisoner in an illegal manner and that its rejection must follow as a matter of course from that illegality." (ii) Ghulam Rasool and Rehmatey v. The State reported in 1982 PCr.LJ 720.In this case, two confessions recorded by the Magistrate indicated that they were on 'S.A'. In addition to that, at two places in the confessional statements, the words 'Ba Iqrar Saleh' were written. The Magistrate in his cross‑examination stated that by mistake, he had written the words 'S.A.' A Division Bench of the Lahore High Court while rejecting the above explanation held that the confessions were not admissible as they were on oath.

9. It may be observed that in the instant case, the Magistrate P.W.5 Imran Cheema had not written the words 'S.A.' in the confession. On the contrary, page 1 and major portion of page 2 of the confession contain questions, which were put by the Magistrate for ascertaining the voluntariness of the confession. These questions were not put on oath as is clear from the document. The appellant while making the confession has used the words BA IQRAR SALAH. In our view, there is a distinction between administering of oath to an accused person by a Magistrate before recording his confession and the accused using the words BA IQRAR SALAH while narrating the facts. In the above cited Supreme' Court judgment, the dictum is that 'it is illegal for the Court to put him on oath or affirmation'. In the present case, the Magistrate had not put the appellant on oath or on solemn affirmation. Furthermore, no question was put to the Magistrate on this aspect, nor this point was urged before the learned Sessions Judge, which is evident from the judgment under appeal. We are, therefore, of the view that factually the above confession is not on oath as the Magistrate had not administered oath to the appellant.

10. As regards the second contention of the learned counsel for the appellant that there was delay of 4‑5 days in recording the confession and, therefore, the same is not reliable; it may be stated that he has referred to the following cases:‑ (i) Abdul Majeed v. The State reported in P L D 1977 Kar. 760, in which a D. B. of the Sind High Court held that since there was unexplained delay of more than forty‑eight hours in recording the confession, no evidentiary value could be attached to such confession. The confession was not relied upon, but the conviction of the accused was maintained, as it was found that there was other sufficient evidence on record. (ii) Tooh v. The State reported in 1975 P Cr. L J

440. In the above case, the confession was recorded on the third day of the arrest, which was discarded by a D.B. of the Sind High Court on the ground of delay. The appeal of the accused was allowed and the conviction and sentence were set aside. On the other hand, Mr. Muhammad Nawaz Ahmed, learned counsel for the State has referred to a Full Bench judgment of this Court, namely, Shaukat Saeed v. The State reported in P L D 1978 Quetta 1, in which the following question was referred to the Full Bench:‑ "Whether a delay of 24 hours in recording of a confession is fatal, so as to make the confession inadmissible." The judgment was delivered by the then Acting Chief Justice, Mr. Justice Abdul Hayee Qureshi and the above question was answered in the following terms:‑ "On a careful consideration of all the aspects of the proposition I am of the view that the question referred to the Full Bench must be answered in the negative. I would however, enter a caution that every confession is to be considered on its merits in the light of surrounding facts and circumstances and the Courts have to take all such circumstances into consideration. The mere fact of delay beyond period of 24 hours cannot be considered in isolation."

11. We are also inclined to hold that since the Rule of admissibility of a confession prescribes no time as to the recording of the confession, the simpliciter delay in recording of a confession will not be fatal. The Court is to examine the circumstances of each case and the nature of the confession and if the Court is satisfied that the confession is voluntary, it can rely upon the same notwithstanding that there may be some delay in recording of the confession. In the present case, the accused was arrested on 29th January, 1983 and according to P.W.6 Raja Bashir Ahmed, he had recorded 161 statement of the appellant on 2nd February, 1983 and on the same day, he produced the appellant for recording of the confession. There seems to be some delay on the part of the Investigating Officer in getting the above confession recorded, but from the circumstances of the present case, we are satisfied that the confession was voluntary. It is an admitted position that the appellant was an old man of about 70 years at the relevant time, as per his 342 statement, his wife was 38 years old and her dead body was found lying together with the other deceased Muhammad Hasan who was about 23‑24 years of age in the Verandah of the appellant's house. The appellant in his 342 statement admitted the production of his licensed double barrel gun before the police. The version given by C the appellant in the confession fits in, in the circumstances of the case.

12. Reverting to the third contention of Mr. Azizullah Memon, learned counsel for the appellant that retracted confession requires independent corroborative piece of evidence, which is lacking in the present case, he has referred to the following cases:‑ (i) Ghulam Muhammad etc. v. The State reported in P L D 1982 Lah. 428 in which, a D. B. of the Lahore High Court held that retracted confession seldom is made basis of conviction unless its is corroborated materially. (ii) Nadir Hussain v. The Crown reported in 1969 S C M R

442. In the above case, the Honourable Supreme Court of Pakistan held that retracted confession should not be acted upon unless corroborated in material particulars. The conviction and sentence of the appellant were set aside and the appeal was allowed as it was found that there was no corroborative piece of evidence. In the instant case, there are some independent corroborative pieces of evidence on record for lending support to the above retracted' confession. The most of the important corroborative piece of evidence is that the dead bodies of both the deceased were found together in the Verandah of the appellant's house with fire‑arm injuries. However, it was urged by Mr. Azizullah Memon, learned counsel for the appellant that there is no worth reliable evidence on record to prove the factum that the dead bodies were factually found in the house of the appellant. In furtherance of his above submission, it was further submitted by him that since the complainant P.W.1 Pir Bakhsh was declared hostile, his testimony had no evidentiary value. To re‑enforce his above sub mission, he has referred to the following cases:‑ (i) Muhammadullah v. The State reported in P L D 1963 (W.P.) Pesh. 161 in which a D.B. of the erstwhile High Court of West Pakistan at Peshawar held that the prosecution witness having been declared hostile, his statement normally loses all evidentiary value and can neither be used in favour nor against the prosecution. (ii) Ghulam Rasool v. The State reported in 1982 P Cr. L J 720 In the above case, a D.B. of the Lahore High Court held that evidence of a hostile witness cannot be used either in favour of prosecution or against it.

13. On the other hand, Mr. Muhammad Nawaz Ahmed, learned counsel for the State has referred to the case of Islam v. The State reported in P L D 1962 (W.P.) Lah. 1053, in which a D.B. headed by late M.R. Kayani, Chief Justice observed as follows on the question of evidentiary value of a hostile witness:‑ "Mst. Sattan was admittedly living in that house alongwith her parents. She, therefore, could be the most natural witness of the occurrence and her evidence in respect of the incident cannot be easily brushed aside. She in her statement has exonerated her mother and attributed the murder only to Islam she was, therefore, cross‑examined by the Public Prosecutor with the permission of the Court. The learned counsel for the appellants contended that since she was declared to be a hostile witness (this is a term of convenience and not of law), she is a witness unworthy of any reliance and her evidence, therefore, should be completely brushed aside. This contention has no force. The fact that the witness is dealt with under section 154 of the Evidence Act, and she is cross‑examined as to credit, in no way warrants that the Court is bound in law to place no reliance on her evidence. There is also no warrant for the proposition that the party who called and cross‑examined her can take no advantage of any part of her evidence. Her evidence is not to be rejected either in whole or in part. But the whole of the evidence so far as it affects both parties favourably or unfavourably, must be taken into account and assessed like any other evidence for whatever it is worth."

14. We are inclined to hold that as a matter of general rule, it cannot be held that the statement of a hostile witness has no evidentiary value. It will depend on the facts of each case. If the Court finds that the witness is a natural witness of the fact which is to be relied upon by the Court and it is in consonance with the other evidence on record, the above portion of the statement of a hostile witness can be relied upon by the Court. In the instant case, P.W.1 the complainant Pir Bakhsh is a natural witness of the factum of having found the dead bodies of both the deceased in the Verandah of the appellant's house together as after having been informed by his nephew Arbab Brohi about the murder, it was natural for him to have come to the appellant's house as his son was murdered. It is also evident as to why he wanted to favour the appellant, i.e. his daughter is married to the son of the appellant. It is but natural for him that after the passage of some time after his emotions had been cooled down, to favour the appellant who is even otherwise inter se related to him. The factum that the dead bodies of the above two deceased were in the Verandah of the appellant's house is not only proved by this witness but also by P.W.6 Raja Bashir Ahmed, S.H.O. against whom no cross-examination was directed to bring on record that factually the above two dead bodies were not in the appellant's house or that there was a possibility of commission of murder by somebody else. We are, therefore, of the view that though P.W.1 Pir Bakhsh was declared as hostile, but his statement, in his examination‑in‑chief that when he reached the appellant's house, he found the dead bodies of his son Muhammad Hasan and Mst. Dur Khatoon in the house of the appellant and that there was nobody else, can be relied upon as it is in consonance with the other evidence on record and appears to be truthful and natural.

15. Adverting to the last submission of Mr. Azizullah Memon, learned counsel for the appellant that F.I.R. was recorded with delay and after holding preliminary inquiry and, therefore, the above fact adversely reflects on the prosecution case as a whole, it may be observed that he has referred to the following cases:‑ (i) Kamir v. The State reported in P L D 1963 (W.P.) Lah. 585. (ii) Ghulam Qadir v. The State reported in P L D 1967 Pesh. 269. (iii) Mst. Nasim Akhtar v. The State reported in P L D 1968 Lah. 841. (iv) Ramzan v. The State reported in P L D 1967 Lah. 588. (v) Abdul Hameed v. The State reported in P L D 1980 Pesh.

25. In the above cases, D.B's. of the erstwhile West Pakistan High Court at Lahore and Peshawar High Court have adversely commented upon the practice of recording F.I.R. after holding preliminary inquiry or after the delay.

16. In our view, the above cases have no application to the instant case. P.W.6 Raja Bashir Ahmed, as pointed out hereinabove, has deposed that he had gone to Ghot Haji Abdul Sattar on 28th January, 1983 in connection with the investigation of case F.I.R. No. 5 of 1983 under section 302, P.P.C. and where he learnt about two murders in question. Thereupon, he reached Ghot Paradin,, where he found P.W.1 the complainant Pir Bakhsh, whose statement he recorded and sent the same to Police Station Jhatpat through constable Ejaz. It cannot be said that P.W.1 the complainant Pir Bakhsh's statement was recorded after the preliminary inquiry. The delay, if any, seems to be explainable. H P.W.6 Raja Bashir Ahmed, S.H.O. must have taken some time to reach Ghot Paradin. He must have taken some time in recording the statement. The transmitting of the above statement by the police constable from Ghot Paradin to the Police Station, Jhatpat, which was situated about 16‑17 miles as per F.I.R. must have also taken some time and, therefore, the recording of the F.I.R. at the police station at 5‑30 p.m. is explainable.

17. It may also be observed that there is also corroborative piece of evidence in the form of the Ballistic Expert's report in respect of the gun and empties, but the same has not been relied upon by the learned Sessions Judge, as there was delay of about 13 months in despatching the gun and the empties. Mr. Muhammad Nawaz Ahmed, learned counsel for the State has referred to the case of Mubarak v. The State, reported in 1982 S C M R 531 in support of his contention that simpliciter delay in despatching of crime weapon etc. to the expert is not fatal. In the above case, the Honourable Supreme Court held that simpliciter delay of three months in despatch of the crime weapon and empties was not sufficient to discard the Ballistic Expert's report and observed as follows: ‑ "We are further of the view that the recovery of the crime empty from the Vardat which matched with the gun which was recovered when the appellant was arrested could also be relied upon. No doubt, the learned Sessions Judge did not rely upon this recovery on the reasoning that the crime empty and the gun were sent to the Ballistic Expert after about three months and the positive report about the matching of the crime empty was not of much value. Mere delay in sending the crime empty and the weapon for comparison to the Ballistic Expert cannot by itself imply that the recovery is doubtful. This inference can follow only after examining all the attendant circumstances, such as whether any doubt existed about the recovery of crime empty from the spot; whether any suspicion arose that it had been substituted, etc. As no such suspicious circumstance has been pointed out in this case and, therefore, the recovery of the gun from the appellant could rightly be used as a corroborative circumstance. The learned Judges in the High Court were, therefore, right in relying upon this piece of evidence."

18. The recent view of the Honourable Supreme Court in the above -cited case and in some other decided cases seems to be that simpliciter delay in despatch of the crime weapon or the blood‑stained articles to the expert is itself not sufficient to discard the expert's report unless from the attending circumstances, it appears that there was possibility of tampering with the above articles before they were despatched to the expert. In our view, in the present case, the recovery of two dead bodies from the appellant's house is sufficient corroborative piece of evidence for relying upon the retracted confession coupled with the circumstances and the facts referred to hereinabove.

19. This leads us to the question of quantum of sentence. Since the trial Court as well as we have believed the appellant's version given in the retracted confession, in our view, the appellant could not have been visited with the sentence of imprisonment for life as there was sufficient provocation for the appellant to have killed both the deceased after seeing them sleeping together. Mr. Azizullah Memon, learned counsel for the appellant has referred to the following cases:‑ (i) Abdul Hamid v. The State reported in 1972 P Cr. L J 521, in which, the deceased's illicit relations with the accused daughter and her pregnancy on that account was known to Mohallah people. The accused found the deceased and his daughter in his house. He killed both of them. A Division Bench of the Lahore High Court converted the accused's conviction from section 302, P.P.C. to 304, Part I, P.P.C. and awarded sentence of three years' R.I. (ii) Sews and another v. The State reported in 1972 P Cr. L J 1135. In this case a D.B. of the Lahore High Court reduced ‑the sentence to four years' detention which the appellant had already undergone. (iii) Muhammad Mithal v. The State reported in P L D 1980 Kar. 397, in which a learned Single Judge of the Sind High Court reduced the sentence of the appellant who after seeing the deceased, a guest, in his house attempting to outrage modesty of a woman of his household picked up a Lathi and gave Lathi blows on account of Ghairat to one year and 8 months which he had already undergone. (iv) Maqsood Ahmed v. The State reported in 1983 P Cr. L J 2238. In this case, the appellant had murdered his wife on account of her immorality. A learned Single Judge of the High Court reduced the sentence to the period which he had already undergone. (v) Ihsanuddin v. The State reported in P L D 1983 Pesh. 7, in which, the appellant murdered his wife after seeing her committing sexual intercouse. A learned Single Judge of the Peshawar High Court reduced the sentence to the period which he had already undergone. (vi) Ahmad Din v. The State reported in 1975 P Cr. L J

672. In this case, the appellant had killed his wife and her paramour. A learned Single Judge of the Lahore High Court reduced the sentence to three years' R.I.

20. In our view, the quantum of sentence will depend upon the facts of each case and the nature of provocation. If any accused person sees his wife in actual compromising position with a stranger, the quantum of provocation may be more, as compared to a case, in which, he sees his wife at night coming out from the house of her paramour. Furthermore, if a person aged 70 years has a young wife of 30 years, he may have lesser provocation than a young man of 30 years seeing his wife sleeping with a stranger. In our view, in the instant case, it will be just and proper to reduce the sentence from imprisonment for ‑life to five years' R.I. The appellant shall be entitled to the benefit under section 382‑B, Cr.P.C. With this modification, the appeal is dismissed. The fine amount is maintained which will be paid, if recovered, to the legal heirs of both the deceased in equal share. The above are our reasons in pursuance of the short order, dated 5thJune, 1985. M.Y.H. Appeal dismissed.