1989SCMR446 (PLP)

GHULAM MUJADDID, J.‑‑Wazir Khan son of Sharif Ullah, Afghan Zamindar, resident of village Bhear, district Dir, petitioned to this Court through jail for leave to appeal against judgment of the Peshawar High Court, dated 29‑3 1977. Leave was granted. Hence this appeal. Wazir Khan, 18 years of age at the time of his trial was tried 6y Sessions Judge, Mardan, for the murder of Karim Khan. The trial Court held him guilty. He was accordingly convicted under section 302, P.P.C. and sentenced to imprisonment for life. The convict filed appeal against his conviction and sentence before the Peshawar High Court but that was dismissed by judgment, dated 29‑3‑1977. The occurrence in which Wazir Khan is involved is alleged to have taken place on 27‑5‑1975 at Khuftan‑wela in the vicinity of village Lund Khwar, district Mardan. Report Ex.PA/1 was lodged by Rahim Khan, nephew of the deceased. It was recorded by S.I. Rangeen Khan. The appellant himself informed Rahim Khan about the murder of Karim Khan. Wazir Khan came to the house of Rahim Khan and told him that Karim Khan was fired at by somebody. On the asking of Rahim Khan he was told that it was near the Hujra of Ghulam Muhammad where Karim Khan was shot dead. Rahim Khan accompanied by Wazir Khan and others went to the spot where he found Karim Khan lying murdered. When questioned by Rahim Khan, the appellant told him that two shots were fired at the deceased. The dead body of Karim Khan was placed on a cot. It was brought to Police Post Lund Khwar where report was lodged. Rahim Khan suspected the apl‑pant for the murder of Karim Khan. There is no eye‑witness of the occurrence. The material evidence is confession of the appellant which was later on retracted. The other evidence consists of post‑mortem report and the recoveries made by the Investigating Officer from the spot. On 28‑5‑1975, at about 7 a.m. Lady Dr. Arab Sultana, Medical Officer, Civil Hospital Lund Khwar, conducted the post‑mortem examination on the dead body of Karim Khan. She found two entrance wounds and three exit wounds. The death was instantaneous. Suhbat Khan attested the recovery of blood‑stained earth. He attested the recovery of three cardboard discs and one box of matches stained with blood from the spot. He produced one empty shell of .12 bore before the Investigating Officer. In the presence of Suhbat Khan, Bahadur Sher produced before the Investigating Officer one single barrel shot‑gun alongwith a bandolier containing eleven cartridges and a copy of licence. Clothes of the deceased were also taken into possession. The recoveries are not of much importance in this case. The most important evidence, as already observed, is the confession of the appellant and that is the only evidence. It is, therefore, necessary to refer to his confessional statement. Wazir Khan was arrested on 28‑5‑1975. It was on 29‑5‑1975 when Azizullah Khan who was a lawyer Magistrate posted in Mardan, recorded the confession of the appellant. The Magistrate before recording the confession complied with the essential legal formalities. Wazir Khan's version was that he left his village in search of a job. He was on his way to Mardan when near Mauza Batkhela he met the deceased who asked him whether he was looking for a job Karim Khan said that he was prepared to take him as domestic servant on a monthly salary of Rs.60. The offer was accepted by Wazir Khan. Both left for village Lund Khwar. There the appellant was told that he was to bring fodder for the cattle. Thereafter, he would give company to the d :ceased and walk alongwith him. Six months passed like that. During the day Wazir Khan used to do his duty. In the evening he would return to the house of Karim Khan. Every night Karim Khan tried to persuade the appellant to allow him to commit unnatural offence with him but he refused each time as according to him he belonged to Pakhtoon tribe and was thus averse to submit to his lust as it was not only a dirty affair but would have invited the wrath of Almighty Allah. Wazir Khan asked for his dues so that he could leave the service but every time on one pretext or the other the request was postponed to the next day. It was due to non‑payment of the salary the appellant was compelled to stay on. On the day of occurrence, at about 8 p.m., the deceased asked the appellant that both of them should go for a dip in the nearby water channel. Both left. The master gave a shot‑gun with fourteen live cartridges to his servant and kept a pistol with himself. After taking bath the appellant put on his clothes. Karim Khan came close to Wazir Khan and said, "let us do the work". Wazir Khan enquired, what did he mean by that. Karim Khan told him that he wanted to commit sodomy with him. Wazir Khan felt offended. He refused. He said that he was not employed for this job. He beseached him to excuse him. Nevertheless Karim Khan insisted. Wazir Khan once again begged in the name of Allah to be spared. Still Karim Khan persisted. The appellant then said that somebody might not notice them they better go to the Hujra where he would satisfy Karim Khan. Karim Khan agreed. Both left. When the two reached near a spring the appellant loaded his gun and fired. Karim Khan was hit in the. neck. He fell down. Firing was done under grave and sudden provocation. Wazir Khan took the pistol from Karim Khan and left towards the house. On reaching the Hujra he gave the pistol and the gun to Bahadur Sher son of deceased's brother. When the appellant was examined by the trial Court under section 342, Cr.P.C., he retracted the confession. However, he admitted the factum of employment and the fact that on the day of occurrence he had accompanied the deceased and said that some unknown persons had killed Karim Khan. He admitted to have produced shot‑gun, cartridges alongwith one empty and licensed pistol of the deceased to Bahadur Sher. With regard to the confessional statement his stance was that he did make such statement but that was under duress, coercion and inducement by the Police. When further questioned, why was he charged, his reply was that he was returning home alongwith his master when two persons waylaid Karim Khan and fired one shot each. The deceased fell down. The appellant was at a distance of 10‑12 paces from the deceased. He returned fire but the culprits escaped. While Karim Khan was lying dead he took his pistol and gave the same and the shot‑gun to the relatives of the deceased. Learned counsel appearing on behalf of the appellant contended that it was a case of no evidence. Confession which was retracted was not sufficient in law to maintain the conviction and sentence. It was argued that there was conflict between the medical evidence and the confession of the appellant. We do not agree with that. There is nothing on the record to show that the confession was either due to any threat, coercion, inducement or pressure. Similarly, we have not come across any flaw in recording the confession because the Magistrate complied with all the essential prerequisites for recording the confession. It was voluntary and truthful. There is no legal bar for recording a conviction on a confession which is subsequently retracted if it is voluntary and true. We have not come across any infirmity in the confessional statement of the appellant to render it as unacceptable. On the other hand, we are of the view that the appellant had told the truth. In the case of Joygun Bibi v. The State P L D 1960 Supreme Court (Pak.) 313, it was observed:‑‑ "We are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self‑accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances, to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary' as well as true." Similarly in the case of The State v. Minhun alias Gul Hassan P L D 1964 Supreme Court 813, this Court had observed:‑‑ "As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra‑judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well‑settled that as against the maker himself his confession, judicial or extra‑judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement." We are, therefore, of the view that the appellant had been rightly found guilty for the murder of Karim Khan. The next question to be considered is that if the confession is read as a whole what offence appears to have been committed. The deceased wanted to satisfy his lust at any cost. The appellant having realised that there was no way out and the only way left to save his honour and dignity was to finish the man who was chasing him like a hound, under grave and sudden provocation fired and finished him. His case as such falls within Exception I of section 300 of Pakistan Penal Code. We are, therefore, of the view that his conviction and sentence under section 302, P.P.C. is not legally maintainable. The same is altered to section 304, Part I, P.P.C. and the sentence is reduced to one already undergone. The appellant shall be set at liberty forthwith if not required in any other case. The appeal is disposed of with this modification. M.I./W‑37/S Order accordingly.