1992 PLP 950 (SCMR)

ABDUL QADEER CHAUDHRY, J: --This appeal by leave of the Court is directed against the judgment of the High Court, dated 28-9-1987 whereby it accepted the appeal filed by the respondent against his conviction recorded by the learned Additional Sessions Judge, Mansehra, on 6-7-1985.

2. The facts briefly stated are that P.W.7 Ali Akbar son of Muhammad Zaman lodged a report on 14-6-1989 at about 2 p.m. that he had spent the night previous to the day of report in his thrashing floor. It was the second day of Ramazan. He came at Sehri time to his house and went back. In the morning, his wife Mst. Sakina came after him and told him that their daughter Mst. Sanjida was missing. They started searching the girl and at about 8 o'clock in the morning it was informed that a child was lying in water channel. On this, he alongwith other co-villagers went to the water channel and found his ?daughter Sanjida lying slaughtered there.

3. The motive stated in the First Information Report was, that the accused was in the habit of stealing hens and the complainant had once given him beating. The Investigating Officer made the recoveries. The respondent was arrested on 17-6-1983. The judicial confession was recorded on 22-6-1983 by P.W.6 Muhammad. Nasim Khan, Magistrate 1st Class. After usual investigation, the respondent-accused was sent up for trial before the Court of Session. The prosecution produced 14 witnesses at the trial. P.Ws. 1 to 4 were produced to prove the different recoveries. P.W. 5 had seen the dead body-of the deceased and informed the complainant. P.W.6 Muhammad Nasim Khan recorded the confessional statement of the accused. P.W.7 Ali Akbar and P.W.8 Mst. Sakina, respectively are father and mother of the deceased.

4. The respondent retracted the confession in his statement under section 342, Cr.P.C. on the ground that he had given such statement under fear and torture. The learned trial Judge accepted the confession of the accused corroborated by the weapon of offence and the blood found at the place of the occurrence. However, the trial Judge discarded the motive. As such, he convicted the respondent under section 302, P.P.C. and sentenced him to death and fine of Rs.25,000 under section 364, P.P.C. to ten years' R.I. and fine of Rs.25,000 under section 449, P.P.C. to ten years' R.I. and fine of Rs.25,000 and in default of payment of fine on each count to undergo further two years' R.I.. It was directed that the fine, if recovered, shall be paid to the heirs of the deceased.

4. The respondent challenged his conviction by way of an appeal before the High Court. The matter was also sent to the High Court for the confirmation of death sentence. The learned High Court, however, differed with the view taken by the learned trial Court and acquitted the accused of the charge. 5: We have heard the learned Additional Advocate-General in support of the appeal. On the request of the Court, Qazi Muhammad Jamil, appeared on behalf of the respondent.

6. It is an unwitnessed incident. There is no direct evidence against the accused. The case against the respondent rests on the following pieces of evidence:

(1) Retracted Judicial Confession. (2) Recovery of blood-stained Chhuri from the house of the accused on his pointation. (3) Recovery of Chadar and clothes of the accused stained with human blood. (4) Recovery of blood-stained earth from the place of occurrence.

7. Learned counsel for the respondent submitted that as regards the motive, the complainant has given a motive in the First Information Report but a different motive has been stated by the accused in his confessional statement. According to the accused, his stepmother used to get him punished from his relatives, therefore, in order to take revenge, he wanted to kill Ali Akbar (P.W.7), maternal-uncle of his stepmother but as he was not available in his house, he, took his little daughter and murdered her. The motive on a criminal charge is always not material. The trial Court discarded the motive, therefore, we do not take into consideration this piece of evidence against the respondent.

8. The most important piece of evidence against the accused is his Confessional Statement. The date of occurrence is 14-6-1983. He was arrested on 17-6-1983 and remained in custody of the police upto 22-6-1983 when he was produced before Muhammad Nasim Khan, M.I.C. (P.W.6) for recording his confessional statement. The learned Magistrate observed all the legal formalities before recording his confession. The accused did not make any complaint of maltreatment by the police. Various questions were asked by the Magistrate in order to satisfy himself whether the accused was giving the statement voluntarily without any coercion or pressure. Relevant questions were put to the accused before recording his statement. He clearly stated that he had not been threatened to make a confession. No inducement was given to him. He stated that he was making the confession out of his free will as he had murdered Mst. Sanjida. The confessional statement is precise and short. He stated that he picked up a knife from his house and then went to the house of the complainant. Ali Akbar was not there. His daughter Sanjida was sleeping. He took her away and then slaughtered her with the knife. The respondent stated that he had slaughtered Mst. Sanjida at point No.l of the site plan. After slaughtering her he had gone a few paces when Mst. Sanjida also got up writhed in pain and as she came to a sitting position, he caught hold of Mst. Sanjida from the left foot and threw her in the water. The blood was found on two places, therefore, it corroborates the statement of the accused made under section 164, Cr.P.C.

9. The recoveries connect the accused with the commission of the offence. (i) A kitchen knife was secured from the house of the accused on his pointation, (ii) The accused also pointed out the place of occurrence from where the blood-stained earth had already been secured by the police, (iii) The blood-stained clothes and chadar of the accused. .

10. The report of Chemical Examiner about the articles secured is in positive and contained human blood of the same group.

11. Learned counsel for the respondent submitted that no reliance can be placed on the report of the Chemical Examiner as it is dated 2-9-1983 whereas the incident had occurred on 14-6-1983. The second of September is date of report and not date of examination. The correctness of the report was not challenged at the trial. This objection has no force. This report has also been challenged on the ground that there is no mention of blood group and it is possible that blood was that of accused. As the blood of the accused was not taken, therefore, it was not necessary for the expert to have stated the group of, the blood. The recoveries are thus corroborative pieces of evidence against the respondent.

12. Learned counsel submitted that the clothes of the deceased were not secured by the police as such this is a circumstance which weighs heavily against the prosecution. Though it was incumbent on the Investigating Officer to have secured the clothes of the deceased but this single fact would not make the case of the prosecution doubtful. The other pieces of evidence corroborate the Judicial Confession of the accused. The High Court has discarded the recoveries observing as follows:

"Similarly the evidence of Ghulam Sarwar (P.W.4) who is a witness to the recovery of `chadar' Exh.P.3 from the possession of the appellant does not inspire confidence as he stated that the `chadar' bore some suspected stains. The `chadar' was produced before us and we noticed that the bloodstains were clearly visible. Similarly, we noticed that the clothes allegedly worn of the appellant bore visible stains of blood and it was wrongly mentioned in the recovery memo. Exh.P.W.2/1 that it bore washed stains of blood. The recovery memo: of clothes P.W.2/1 besides Khaqan P.W. is also witnessed by Haider Zaman but Haider Zaman in his evidence did not refer to this recovery at all."

13. The High Court itself examined the `chadar' and clothes of the accused and found bloodstains on them. The observation of the Court rather supports the prosecution case that the clothes of the accused were stained with blood. The defence has not given any explanation for the blood-stains found on the clothes of the accused.

14. The prosecution evidence is supported by the medical evidence. The Lady Doctor Tanwir Chaudhry (P.W.15) who examined the dead body of the deceased, found the following injuries:

"EXTERNAL EXAMINATION:

1. Incised wound 5" x 2" on the middle of the neck cutting the aorta, oesophagus, larynx, trachea and spinal cord. The connection between the neck and the body is only a flap of skin. INTERNAL EXAMINATION: Membrane and spinal-cord injured. In the thorax region blood vessels injured badly. In the abdomen stomach empty, small and large intestines, full of gasses and faecal matter. Cause of death:

Due to shock and external haemorrhage by sharp means. Time between injury and death: Within few seconds. Time between death and post-mortem:

Within 23/24 hours." The accused has admitted that he had given the confessional statement but then gave an explanation which is not supported by any material.

15. Admittedly, there was no enmity between the accused and the deceased. The one alleged at the trial was that there was some litigation between the Khans and the tenants. But in the present case, both the accused and complainant belong to the tenants' group. The complainant admitted that, there is a dispute over a jungle between the Khans and the villagers and a suit is pending in a Civil Court. The complainant admitted that in the said civil suit, the father of the accused represented the entire village. Thus, there was no civil suit pending between the accused party and the complainant party. In the civil suit the interest of all the villagers was common against the Khans.

16. The respondent though resident of the same village was not available on the day of occurrence. He was arrested after three days of the said incident and his absence remained unexplained.

17. The trial Court has, considered the following facts against the accused:

"(a) The Chhuri on perusal still seems to be freshly sharpened which is only within the exclusive knowledge of the accused-respondent himself as he narrated in his confession. (b) The accused-respondent in his confessional statement stated that after slaughtering her, he had gone a few paces ahead when Mst. Sanjida also got up. The aforesaid fact is supported by the Lady Doctor and confirmed that it is possible that the child might have writhed in pain and might have even come to a sitting position and this being too in exclusive' knowledge of the culprit. (c) According to the accused as he stated, he came back, caught hold of Sanjida from the left foot, threw her in the water and with that Sanjida was dead. The report of the occurrence according to the site plan fully supports the above version. The I.O. found blood on point No.l and point No.2 and found the dead body lying in the water channel at point No.3. This fact was only in the knowledge of the culprit and he explained the same and only he could as he confessed." The reasons are sound and sufficient for basing the conviction."

18. The learned High Court has discarded the confession of the appellant on the ground that "though the retracted confession of the appellant remained uncorroborated by any independent evidence as a. rule of prudence there should have been some independent evidence in support of the retracted confession which we notice is not available in this case". When an accused has given an account of the incident and its truth is not doubted and such statement is proved to be correct in all its parts, such solitary piece of evidence can be used against the accused without any further corroboration. There is no basic difference between a confession or a retracted confession, if the element of truth is not missing. It is always a question of fact which is to be adjudged by the Courts on the attending circumstances of a particular case. In this case, we have come to the irresistible conclusion that the confessional statement of the accused is true and voluntary and conviction could be recorded on such statement.

19. The accused retracted the confession on 8-3-1984. We may refer to his application dated 8-3-1984 submitted to the learned Additional Sessions Judge wherein for the first time he had retracted from his confession. The application reads as under:

The confession was recorded on 22-6-1983 and this application was made after about nine months of his statement. He took fairly long time to disown the statement. It was not immediately retracted. It appears to be an afterthought and perhaps retracted under some legal advice as is clear from the contents of the application. It was apparently made when the defence came to know that there was no direct evidence against the accused.

20. The learned counsel for the respondent referred to Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11, and submitted that as the respondent has been acquitted by the High Court therefore on the basis of the rule laid down by this Court in the case of Ghulam Sikandar, the acquittal of the respondent may not be converted into conviction. The above precedent is not applicable to the facts of the present case. The High Court has misread the evidence and excluded the confession from consideration in spite of the fact that it has bee corroborated by other pieces of evidence.

21. Though it is not a rule of law that confession whether retracted or not cannot be the sole basis for conviction but principle of prudence and rule of caution require that a retracted confession must be supported by some other connecting evidence. Reference may be made to Nadir Hussain v. The Crown (1969 SCMR 442 at p. 447) wherein it has been observed as under:-- "?

The rule of caution universally applied to the cases of retracted confession that such confessions should not be acted upon unless corroborated in material particulars by reliable evidence.." Similar view was taken in Habibulah v. The State 1971 SCMR 341.

22. The confession of the accused though retracted can be used against the accused as held in The State v. Minhun PLD 1964 SC 813 wherein it has been observed as follows:

"Judicial or extra-judicial confession whether retracted or not retracted is admissible in law. However, as a rule of prudence corroboration in material particulars is sought to base conviction in a criminal case on the strength of a judicial confession."

23. We have examined the present case from each aspect and we are of the opinion that the judicial confession is corroborated by the attending circumstances as narrated above. The confession is not only true and voluntary but is also corroborated by other pieces of evidence. As such, we accept this appeal, set aside the judgment of the High Court and maintain the conviction recorded by the Additional Sessions Judge. As regards, the sentence the High Court had decided the appeal on 28-9-1987. Leave to appeal was granted by this Court on 17-12-1988. The Presidential Order of General Amnesty had intervened on 7-12-1988. We, therefore, while maintaining the conviction of the respondent on all counts, reduce his sentence under section 302, P.P.C. to life imprisonment but enhance the fine to Rs.50,000 or in default in payment of fine, to further suffer R.I. for 6-1/2 years. His substantive sentence under section 364, P.P.C. (10 years) is maintained but fine is increased to Rs.50,000. or in default 'to suffer R.I. for 6-1/2 years. His substantive sentence under section 449, P.P.C. (10 years) is maintained and the fine is increased to Rs.50,000 or in default to suffer R.I. for 6-1/2 years. The substantive sentences are to run concurrently. The fine, if realised, shall be paid as compensation to the heirs of the deceased. M.BA./S-661/S ????????????????????????????????????????????????????????????????????????????????? Order accordingly.