2003 P Cr (PLP)

4. In the result of investigation the accused was sent for trial and the Additional Sessions Judge, Sehwan to whom the case was assigned, tried and convicted him as mentioned above, by judgment dated 5-8-1999. The conviction and sentence have been appealed against.

5. The arguments of appellant's learned Advocate and the State Counsel were heard and the evidence on record appraised with their assistance. Appellant's learned Advocate contended that the incident was not witnessed by anybody and the confessional statement of the appellant/accused before S.H.O., Khairo Dero Police Station is not admissible under the law and is simply to be excluded from the consideration. As regards the extra-judicial confession of the accused before Kamdar Abdul Latif and Ali Slier the father of deceased Mst. Moomal, the learned Advocate argued that the former did not support the prosecution against the appellant whereas the latter could not be examined due to his demise. The learned Advocate also argued that the production of hatchet by the appellant/accused before police has not been proved as Abdul Latif the Mashir of the alleged recovery did not depose in respect thereof and the other Mashir was not examined at all. Also no report of chemical examiner has come in evidence.

6. About the judicial confession, the learned Advocate argued that it is defective for having been recorded 13 days after the incident and also has been retracted. According to him, in absence of strong independent corroboration the retracted confession cannot he believed. In support of his contention the learned Advocate referred to Javed Iqbal v. The State PLD 1975 Peshawar 230 and Abdul alias Abdul Karim and another v. The State 1975 PCr.LJ 1077. The learned Advocate further argued that the medical evidence can only prove the violent death of the two deceased and cannot connect the accused with their murder. His last objection to the judgment was that it does not indicate clause of the section 302, P.P.C. under which the accused has been convicted. Summing up his arguments, the learned Advocate contended that present is the case where no such evidence is available, which could be made basis for conviction of the accused/appellant.

7. Learned State Counsel defended the conviction arguing that the confessional statement before the police by the accused had led to the discovery, therefore, was admissible under the provisions of Article 40 Qanun-e-Shahadat Order, 1984. In addition to that is the judicial confession, the conduct of the appellant subsequent to the incident, motive, and medical evidence which proves, beyond any reasonable doubt, the guilt of the appellant.

8. First to be discussed is the evidence of Inspector Dost Muhammad, the S.H.O., Police Station Khair Dero who has deposed that appellant/accused Haji Jatoi had appeared before him in the early morning of 6-12-1992, at about 5 a.m. and confessed by stating that suspecting illicit connections between his maternal uncle's daughter Mst. Moomal and Imam Bux Penhwar tractor driver he equipped with hatchet concealed himself in "Lai" bushes and attacked them after Mst. Moomal came from the house to the Otaq and joined Imam Bux in his bed. He first delivered hatchet blows and then slaughtered them. No.1 doubt, the confessional statement to the extent of a fact discovered in consequence thereof, is admissible under Article 40 which is proviso to Articles 38 and 39 to Qanun-e-Shahadat Order, 1984, however, in present case the evidence needs no detailed discussion as the facts discovered in the result of statement of accused are the place of incident and the presence of dead bodies there having hatchet injuries on their throats and the other body which have not been disputed or challenged by the defence.

9. The most material evidence against the appellant is the judicial confession. No doubt it was recorded about 13 days after his arrest but mere delay does not affect the evidentiary value thereof. No time limit is fixed for recording the judicial confession. It is only the voluntariness and truthfulness of the confession which are to be seen. In support of this view the precedent reported in Mst. Naseem Akhtar and another v. The State 1999 SCMR 1744 is to be referred to. P.W. Imdad Hussain the then Muklitiarkar, Sehwan deposed substantially that on 19-12-1992 Dost Muhammad S.H.O., Police station Khairo Dero produced accused/ appellant Haji Jatoi for recording his confessional statement in Crime No. 11 of 1992 under section 302, P.P.C. He removed the handcuffs of the accused and made him to sit in his office on the chair and then closed the door sending the police out. After allowing him one and half hours for reflection he warned the. accused that he was not bound to confess the guilt and if he confessed it would be used against him. Then the accused expressed that he had killed the deceased due to "Ghairat" as "Karo Kari". After that he recorded his confession. The witness produced the confession stating that it was recorded ire accused's verbatim saying further that the accused had reaffirmed the same when the same was read over to him'. The original confession of the accused produced by the Magistrate reads as under:-- "He had been suspecting Mst. Moomal to be carrying on illicit affair with tractor driver Imam Bux Penhwar. During night he hidden himself in 'Lai' bushes and assaulted the two deceased with hatchet after coming of Mst. Moomal from her house to the place where Imam Bux used to sleep in the Otaq. He gave hatchet blows to each of them and they fell down. Thereafter he slaughtered them. In the morning he appeared at police station and narrated all the fact to the S.H.O. In the last he stated that he admits voluntarily that he killed the deceased due to `Ghairat' . "

10. The confession bears the thumb-impression of the appellant/ accused and that fact has been admitted by him in his statement under section 342, Cr.P.C. Also the certificate has been recorded by the Magistrate under section 164(3), Cr.P.C. Although in the deposition the Magistrate did not state that he had introduced himself as Mukhtiarkar and First Class Magistrate to the accused/appellant before recording his confession but that fact is mentioned in the confession. The. suggestion put to the witness that the accused had not confessed the guilt before him and that he being in collusion with police had recorded it falsely, were denied by him categorically. The Mukhtiarkar/F.C.M. had no interest in the case nor he had any ill-will against the appellant/accused. The denial by the appellant that he did not make confession before the Magistrate: and only his thumb-impression was obtained on some proforma does not affect the evidence of P.W. Imdad Hussain, Mukhtiarkar/F.C.M., which is otherwise satisfactory and. confidence-inspiring. Moreover. while cross-examining complainant Dost Muhammad it was suggested to him that delay in, producing the accused for confession had occurred as first he was not admitting his guilt and later on he reluctantly pleaded the guilt. This suggestion is of much significance and supports the evidence of Mukhtiarkar Imdad Hussain that the accused had confessed his guilt before him The confessional statement is also in complete conformity with the undisputed material facts of the case mentioned above specially the date and venue of incident, particulars of the deceased couple, nature of injuries to them and the weapon used. Thus it can safely be said that the confession was voluntary and true.

11. The other material evidence is of Doctor Sikandar who in capacity of Medical Officer Rural Health' Center Bhan received the dead body of the two deceased and conducted post-mortem upon them on 6-12-1992. He has deposed substantially that on 6-12-1992 he received the dead bodies of Mst. Moomal Jatoi and Imam Bux Penhwar through Police Station Khairo Dero in Crime No. 11 of 1992 and conducted post mortem upon them. According to his evidence following injuries were on, the person of deceased:-- "Mst. Moomal Jatoi: I was found following injuries on her person. Injury No. 1 an incised injury 15 c.m. x 4 c.m. x scalp deep over right occipital parietal region (brain matter was out).

2. Removal of skin 6 c.m. x 4 c.m. over front of neck (cut of trachea)". "Imam Bux Penhwar: I was found injuries on his person. Injury No.1, an incised injury 20 c.m. x 4 c.m. x tissues deep over front of neck (cut of trachea).

2. An incised injury 8 c.m. x 4 c.m. into scalp deep over-periato Occipital region (brain matter out).

3. An incised injury 10 c.m. x 6 c.m. in tissue deep over right shoulder joint (fracture of head of humerus bone)". He expressed that the injuries were anti-mortem and the death of deceased occurred due to haemorrhage shock and respiratory failure in the result of above injuries. The evidence of Doctor was not challenges through cross-examination despite opportunity to the learned Advocate for accused. His evidence not only proved unnatural death of deceased Mst. Moomal and Imam Bux but also is in conformity with the other prosecution evidence specially the judicial confession of the accused. It confirms the judicial confession in respect of. the time of incident, the killing of two persons, manner of killing and the weapon used. Thus it furnishes substantial corroboration to the prosecution case against the appellant. Medical evidence in conformity with the confession of the accused was treated as supportive/corroborative evidence against the accused by the Honourable Apex Court in the case of Naseem Akhtar (supra).

12. The fact that a girl of Jatoi tribe was killed while sleeping with at young man, of Penhwar Community at the Otaq during night hours confirms that they were killed as "Karo Kari". A tradition of killing "Kayo Kari" by itself is motive behind this double murder.

13. As concluded above, the judicial confession although retracted, has been corroborated by medical evidence, motive, and by undisputed and proved facts specially the place of .incident. particulars of the deceased couple, nature of the injuries to. them and the weapon used. Also the fact that the deceased were killed as "Karo Kari" is very strong corroboration. Entire evidence collectively establishes beyond any reasonable doubt that appellant Haji Jatoi killed deceased Mst. Moomal and Imam Bux Penhwar intentionally and with premeditation.

14. Although in the case in hand the retracted judicial confession has been corroborated satisfactorily yet it is desirable to address the point agitated by the appellant's learned Advocate about the corroboration of retracted judicial confession. In fact the law does not prohibit from basing the conviction on the judicial confession alone even if retracted. provided it is true and voluntary. Honourable Apex Court considered this point in the case of Wazir Khan v. The State 1989 SCMR.446 and held that in the case of capital punishment the conviction can be based only on retracted judicial confession if it is true and voluntary.

15. In present case strong and sufficient evidence has come otherwise in the cases of "Karo Kari" it is extremely difficult, if not impossible, to get sufficient evidence expected for establishing the guilt in ordinary murder cases. This killing has become tradition which is rooted very, deeply. It has sanction behind it. Obviously, the sanction means the consent and approval by a tribe or community. There are instances where daughter is killed by father and a mother is killed by sin as "Kari". It is also a fact of life that the kith and kin including the parents and children of the victim as the case may be, do not consider it proper to come forward for lodging the case against the killer and get him punished. If anyone has feelings against the traditional killing which is against the law and religion both, she does not get the courage to come forward and agitate against it within the tribe and community or at local level in the area. Obviously, anyone opposing the ruthless killing has to do at the risk of collective displeasure and strong opposition in his own social circle and community. In such a situation the ordinary standards of proof required in the criminal case are not to be insisted upon. This view gets support from the valuable, principle delivered by the Honourable Apex Court in Munawar. Hussain alias Babu and 2 other's v. The State 1993 SCMR 785 wherein the principle laid down was that in the larger interest of the country and the public .at large, the approach of the Court should be dynamic. In the cases relating to the crimes committed by a organized persons who manages to cause dents in the prosecution evidence, the evidence which is generally available for ordinary criminal case, cannot be expected.

16. As held above, the evidence discussed above collectively proves, beyond any reasonable doubt, that appellant Haji Jatoi killed the deceased Mst. Moomal and Imam Bux intentionally with premeditation. Since there was no evidence of the standard required under the law for recording the punishment of Qisas the learned trial Court has rightly awarded him the imprisonment for life which is obviously the conviction under section 302(b), P.P.C. and it does not call for interference. Imprisonment for life can only be awarded under clause (b) of section 302, P.P.C. and omission to mention the clause while awarding the conviction does not affect the legality of the judgment.

17. Consequently the appeal fails and is dismissed. The appellant who is on bail shall be arrested and remanded to jail for serving out the sentence. H.B.T./H-105/K Appeal dismissed.