2003 P Cr (PLP)

TANVIR BASHIR ANSARI, J.

Three accused persons namely Ghulam Khaliq, Mushtaq Ahmad and Gul Wali Khan were tried under sections 302/457/382/34, P.P.C. by the learned Sessions Judge, Islamabad for the murder of Mazharul Haq. The learned trial Judge vide his judgment, dated 23-2-1997 convicted and sentenced the appellants as under: Under section 302/34, P.P.C. All the appellants were sentenced to death. Each of them have been ordered to pay a fine of Rs.50,000 and in-default, each of them shall undergo 5 years' R.I. Under section 457/34, P.P.C. All the appellants were sentenced to 5 years' R.I. and each of them shall pay fine of Rs.20,000 and in-default thereof to further undergo one year s R.I. Under section 382/34, P.P.C. All the appellants were sentenced to 5 years' R.I. and each of them shall pay a fine of Rs.20,000 and in-default thereof to further undergo one year's R.I. In the event of recovery of the amount of fine Rs.1,50,000 shall be paid to the legal heirs of the deceased in accordance with law by way of compensation. Both the sentences shall run consecutively.

2. Gul Wali Khan appellant has filed Criminal Appeal No.36 of 1997 and Ghulam Khaliq and Mushtaq Ahmad appellants have filed Criminal Appeal No.38 of 1997 against their sentences and convictions whereas the learned trial Judge has sent a reference to this Court for the confirmation of death sentence of the appellants. We propose to dispose of all the matters by this judgment.

3. The case of the prosecution is that on 1-6-1995 Hashim Khan A.S.-I. P.W.6 informed by Multan Khan (given up) that a car was found unattended near Pind Piracha in the territorial jurisdiction of Police Station Tarnol. On the receipt of this information, P.W.6 accompanied by his subordinate officials, went to Pind Peracha and found Car No.S-6534 Karachi parked at a distance of about 100 feet from the road. The car, which was locked, was unlocked. There was found a bag type suit-case P.13 lying in the car. It contained six bear tins. There was also a shopping bag P.16 which contained clothes P.8/1 2, P.9/1-2, P.10/1-2 and P.12/1-2. Hat P.14 and P.Cap P.3 was also found lying on the hat. A bag P.4 containing three full liquor bottles one half full bottle and VCR P.5 was recovered therefrom. Three audio cassettes P.7/1-3, sight glasses P.2 and some documents including visiting cards of Mazharul Haq (deceased), were found lying in the dash board of car. The car, articles and the documents recovered therefrom were taken into possession vide memo. Exh.P.C. by Hashim Khan, A.S.-I.

4. Mazharul Haq deceased was Resident Director Lakson Tobacco Group of Companies, Islamabad. P. W.6 then contacted on telephone with Nazakat Hussain P.W.3 who is Admn. Officer, Lakson Tobacco Group of Companies Islamabad. Nazakat Hussain P.W. then tried to contact Mazharul Haq on telephone at his home. When there was no reply, he went to the house of the deceased situate in Street No.12, Sector F-6/3, Islamabad. He found the outer main gate of the house open but the entrance to the room was locked. He them returned to his office and accompanied by Raja Habib and Shahid Pervaiz P.Ws. (given up), went to Police Station Kohar and submitted an application Exh.P.B requesting the S.H.O. to check up the locked house of Mazharul Haq to see if he was there or not. It was upon this that Gulfam Nasir, Inspector P.W.21, accompanied by Nazakat Hussain P.W.3, Raja Habib and Shahid Pervaiz P.Ws. went to the house of Mazharul Haq at about 12-5 p.m. The main gate of the bungalow was open but the entrance to the main building was locked. Shehbaz P.W.4, Keymaker who was taken by Gulfam Nasir from Super Market while going to the house of the deceased, had unlocked the main entrance. In the meantime, Suleman Ghani P.W.2, a maternal nephew of the deceased, on the receipt of a telephonic message from the Head Office, Lakson Tobacco Group of Companies also reached there. On unlocking the bed-room of the deceased, his dead body was found lying on the bed with a T-shirt and a short on. The hands of the deceased were tied with a string on front side while a string was also tied around its neck. As already mentioned, when Gulfam Nasir Inspector P.W.21 was inspecting the bed-room and the dead body lying there, Suleman Ghani P.W.2 also reached there. He then lodged report Exh.P.A. with P.W.21. It vas on the basis of the said report that a case was initially registered under section 302, P.P.C.

5. Gulfam Nasir Inspector P.W.21 procured the services of Finger Print Expert who lifted the finger prints from the deceased's bed room. Gulfam Nasir P.W.21 also procured the services of Mubarak Ahmad constable/Photographer P.W.12 who took photograph PF-1 to PF-21 of the deceased's bed-room including the dead body from different angles. Two bed sheets and pillow were found blood-stained. There were found lying two liquor bottles, each containing 1/4th of liquor. There was a glass on a table. The Investigating Officer/P. W.21 raided the house of Gul Wali Khan appellant who was not available. On 30-6-1995, Shah Jehan, S.-I. P.W.23 arrested Ghulam Khaliq and Mushtaq Ahmad appellants. On 8-7-1995, Gul Wali Khan appellant was also arrested by him. On 12-7-1995, Mushtaq Ahmad accused while in police custody led to the servant quarter of House No.31, Street No.3, Sector F-8/3, Islamabad and got recovered small box Exh.P.B. from under a pillow lying on a cot. The said box contained pair of cufflinks. P.1/1-2. On 13-7-1995 Ghulam Khaliq appellant while in police custody led to the recovery of remote control P.6 from within a heap of stones, lying in the area of Dhok Awan Piracha. On 15-7-1995 Mushtaq Ahmad and Ghulam Khaliq accused were produced by Shah Jehan S.-I. P.W.23 before Ch. Muhammad Ali, Assistant Commissioner, City; Islamabad with a written request to record their confessional statements who recorded their statements on the same day. Shah Jehan S.-I. also produced Gul Wali Khan, :before Zafar Iqbal Awan, City Magistrate P.W.22 with a written request to record his statement under section 164, Cr.P.C. who recorded the same on 23-7-1995. The judicial confession of Gul Wall Khan appellant was thus also recorded. After completing the necessary formalities, the challan was submitted.

6. The appellants were jointly charge-sheeted under sections 302/457/382/34, P.P.C. to which, they pleaded not guilty acid claimed trial.

7. The prosecution produced as many as 23 witnesses to prove its case. The prosecution also tendered in evidence the reports of Chemical Examiner Exh.P.Q., Exh.P.R. and that of the Serologist Exh.P.Q./1 and closed its evidence.

8. Dr. Muhammad Arshad P.W.17 conducted the autopsy on the dead body of Mazharul Haq deceased on 1-6-1996 at about 5-00 p.m. and found that face was bluish black and blood-stained fluid was oozing out of the nose and the mouth. Nails of both the hands were bluish. Hypostasis were on the back with contact flattening on the shoulders back and buttocks. Semen stains were present on the front of the short (Knicker). Rigor mortis was present only in the lower limbs while it was diminishing on the upper limbs. Tongue was not protruded out. Eyes were not bulging out. There were multiple small bruises on the inner surfaces of the upper and lower lips. The gums, on the lower side, were bruished on the front. The tongue was bitten on the right side with three tooth oitemarks. Blood was oozing. Injuries were ante-mortem. There was bilateral gross conjuctival haemorrhages. Tip of the nose was bruished and both the nostrils were blood-stained. On internal examination, there were found multiple small haemorrhages on the inner surfaces of the scalp. Skull and vertebrae were healthy. Membranes of the brain were congested. There were small haemorrhage in the brain. On opening the thorax and abdomen, all the organs were found healthy and normal. There was fluid and small quantity of digested food in the stomach. There was also, present in the small intestines small amount of digested food and fluid. Fluid was more than the food in quantity. In his opinion, the cause of death was axphyxia due to the smothering. Injuries on the inner surfaces of the lips and the gums were ante-mortem. Such act was sufficient to cause death in the ordinary course of nature. Specimen of stomach and its contents small and large intestines, liver, spleen and kidneys were secured and were sent to the Chemical Examiner for the detection of poison, if any. Stomach wash and fluid was taken for the detection of alcohol. A piece of the skin from the neck, bearing ligature-impression, was taken for histology. Probable time between injuries and the death was immediate and between death and post mortem beyond 12 hours and within 36 years. Exh.P.K. is the copy of post-mortem report and Exh.P.K./1 is its pictorial diagram.

9. The appellants when examined under section 342, Cr.P.C. denied the prosecution allegation. They also denied having taken away with them the deceased's belongings. All the accused also denied having made confessional statements voluntarily before P.W.16 and P.W.22. All of them stated that they were falsely involved in order to show efficiency by the police who had failed to trace the real culprits. The accused did not offer to examine themselves on oath. They also did not produce evidence in their defence.

10. The learned trial Court placing reliance upon the evidence on the record including the judicial confessions made by the accused proceeded to, convict and sentence the appellants as hereinbefore indicated.

11. Malik Rab Nawaz Noon, Advocate appeared on behalf of the appellants Ghulam Khaliq and Mushtaq in Criminal Appeal No.38 of 1997, Ms. B.H. Shah, Advocate for the appellant Gul Wali Khan in Criminal Appeal No.36 of 1997, Sardar Muhammad Ishaq Khan, Advocate appeared for the complainant while Raja Muhammad Ayub Kiani, Advocate appeared for the State.

12. The learned counsel for the appellant have assailed the impugned judgment on the following grounds:-- (a) that there is no eye-witness of the occurrence. The prosecution has mainly relied upon weak circumstantial evidence. (b) that the retracted judicial confessions were no confessions in the eye of law; that the confessions had been recorded with inordinate delay on the last day of physical remand and were devoid of any legal value; that the judicial confessions were recorded in violation of the instructions as contained in Chapter XIII of High Court Rules and Orders; that the judicial confessions were the result of coercion and police torture and that the judicial confession of each appellant was in conflict with the other confessions and were also not corroborated by any other independent evidence. (c) that none of the accused was named in the F.I.R. There was no last seen evidence. The appellants have been implicated upon mere suspicion. (d) that no reliance can be placed upon the evidence, of recovery, effected at the instance of Mushtaq Ahmed and Gul Wali Khan appellants as they are not supported by any independent public witness. (e) that no reliance could be placed upon the evidence of Abdul Rasheed/C P.W.15 and Kifayat Ullah P.W.19 which has been fabricated. (f) that the evidence on the record including the retracted judicial confessions were in conflict with the medical evidence. (g) that no motive was either ascribed to the appellants nor was proved.

13. In support of his contention Malik Rab Nawaz Noon, Advocate contended that the appellants Ghulam Khaliq and Mushtaq were arrested on 30-6-1995 and Gul Wali Khan appellant was arrested on 8-7-1995. It was on 15-7-1995 that Mushtaq Ahmed and Ghulam Khaliq were produced before Choudhary Muhammad Ali A.C. (P.W.16) for recording their statements under section 164, Cr.P.C. Gul Wali Khan was produced before Mr. Zafar Iqbal Awan, City Magistrate P.W.22 who recorded the statement of this appellant under section 164, Cr.P.C. It is contended that such confessional statement shall be of no legal value as the appellants had been on physical remand for at least 16 days and that such a confession was result of coercion and police torture. It is submitted that these statements were recorded on the last day of the period of physical remand. The learned counsel placed reliance upon Sayed Ali Shah alias Shahji. v. The State 1993 PCr.LJ 1118 (delay of seven days) and Bijar and 4 others v. State 1994 PCr.LJ 144 (delay of ten days) where delay was considered sufficient to discard the confessional statements.

13. The learned counsel referred to Munir Ahmad etc. v. The State 1988 PCr.LJ 116 to contend that where the confession was recorded with delay and also in violation of the High Court rules and orders, the said confession was rejected. Reliance was also placed upon Asfandyar Wali v. The State P.LD 1978 Peshawar 38, State v. Sohail Sardar 1997 SCMR 1180 and Muhammad Israr and another v. The State 2002 PCr.LJ 1072 in support of the contention that a confessional statement made while in police custody was not regarded as voluntary. It is further contended that on the basis of the case of Asfandyar Wali v. The State (supra) a retracted confession cannot be corroborated 6y another retracted confession.

14. The learned counsel for the appellants also vehemently argued that the procedure contained in section 364, Cr.P.C. while recording the confessional statement was violated, thus rendering the confessional statement null and void. It was further contended that the denial of the appellants in their statement under section 342, Cr.P.C. to have made the confessional statement amounted to a legal retraction of the judicial confession. Referring to the evidence on the record, it was contended that only material witnesses on the record to connect the appellants with the occurrence were are Abdul Rasheed/C P.W. 15 and Kifayat Ullah/C P.W.19. It is contended that according to P.W.15 who was at that time on duty on the back of Syrian Embassy only deposed about Gul Wali Khan accused to have met him on 29-5-1995 at about 11-00 p.m. The reason of the presence of Gul Wali Khan is stated to be that he had come to get his salary from the deceased. According to the learned counsel this P.W. did not state anything about the other two appellants. The occurrence took place on 31-5-995 or 1-6-1995 and the presence of Gul Wali Khan appellant on 29-5-1995 would not connect him with the occurrence. Similarly, the statement of P.W.19 Kifayat Ullah/C, according to the learned counsel could not be of any avail to the prosecution for a similar reason. This witness further states that on 31-5-1995 at 6-00 p.m., he saw Gul Wali, Khaliq Khan (Ghulam Khaliq) and one other person who were sitting by a Jewellery Shop and were chatting. According to the learned counsel even this statement was not sufficient to connect the appellants with the offence. The learned counsel took us through the entire record of the confessional statements of the appellants. It was firstly contended that necessary questions as required under Chapter XIII of the High Court Rules & Orders were not put to the appellants and as such, such a judicial confession cannot be relied upon. Commenting upon the contents of the confessional statement of Ghulam Khaliq appellant it was urged that even if the statement was to be believed the statement of Ghulam Khaliq is neither inculpatory nor exculpatory and does not in any manner involve him in the offence. Reference was then made to the confessional statement of Mushtaq Ahmed appellant. According to the learned counsel even in his confessional statement he has not confessed any role in the murder of the deceased. The learned counsel finally referred to the confessional statement of Gul Wali Khan and submitted that his statement which implicates all the three appellants was neither voluntary nor corroborated by any other independent evidence on the record.

15. The learned counsel for the appellants referred to the statement of Dr. Muhammad Arshad P.W.17 and contended that his statement regarding the medical examination of the deceased was in conflict with the account as given in the confessional statements.

16. Regarding recoveries it was contended that no recovery was effected in the presence of any disinterested public witness. All the recoveries made in the presence of police officials violated section 103, Cr.P.C. and were not credible.

17. It was finally contended that neither the motive was clearly alleged nor proved by the prosecution.

18. Conversely, Sardar Muhammad Ishaq Khan, Advocate, appearing for the complainant has refuted the contentions raised on behalf of the appellants. It was contended that all the appellants had made judicial confessions in accordance with law which clearly implicated all the accused in the gruesome murder; that, the Magistrate who recorded the confessions faithfully followed the High Court Rules and Orders on the subject, that after making the confession, the appellants did not object to the said confession and their statement recorded under section. 342, Cr.P.C. shall not amount to retraction of the judicial confession; that in any event mere retraction is not sufficient to disbelieve the judicial confession if the same has been made to the satisfaction of the competent authority; that the confession of one accused in the present circumstances is also corroborative of the confession of the other; that the mere fact that accused has been produced from the police custody to record their confession without any other evidence is not sufficient to discredit the judicial confession; that there is no law which requires the immediate recording of statement under section 164, Cr.P.C. The learned counsel relied upon Syed Sharifuddin Pirzada. v. Sohbat Khan and 3 others PLD 1972 SC 363 to contend that mere fact that person making confession remained in police custody for some time it does not lead to conclusion that confession was tutored. He also placed reliance upon Muhammad Gul and others v. The State 1991 SCMR 942 to contend that mere delay in recording confession statement is not fatal. Regarding the procedure for recording the confessional statement, the learned counsel for the complainant referred to Muhammad Din Meher Din v. Emperor AIR 1938 Lahore 2002 to contend that even if the questions an answers put by the Magistrate to the accused were not recorded, but the Magistrate appeared in evidence and satisfied the Court that all necessary precautions were taken, such confessions were admissible in evidence. Reference was made to the procedural questions put by the Magistrate to each accused to show that even the requirement of law was fulfilled.

19. Regarding the retracted confessions, it was contended that firstly denial under section 342, Cr.P.C. does not amount to retraction. Secondly even a retracted confession can be acted upon if warranted by circumstances of the case. He placed reliance upon Joygun Bibi. V. The State PLD 1960 SC (Pak) 313 and Muhammad Rafique v. The State 1977 SCMR 457.

20. The learned State counsel adopted the arguments of the learned counsel for the complainant. It was contended that the judicial confession was firmly corroborated by the evidence on the record and as there were no mitigating circumstances. The award of the normal punishment of death was justified.

21. We have heard the learned counsel for the parties and have extensively perused the record with their assistance.

22. F.I.R. No.69 was registered under section 302/34, 460/380, P.P.C. at 1-00 p.m. on 1-6-1995 in the circumstances detailed herein before. The manner in which the murder took place has been described in the statement Exh.P.A. recorded by Suleman Ghani P.W.2. Appellants Ghulam Khaliq and Mushtaq Ahmed were arrested on 30-6-1995 while Gul Wali Khan was arrested on 8-7-1995. On 12-7-1995 Mushtaq Ahmed while in police custody led to the House No.31, Street No.3, Sector F.8/3 Islamabad and got recovered a small box Exh.P.1/3 containing a pair of cuff-links Exh.P.1/1-2. These cuff-links were identified by P.W.1 Mst. Zeenat Bibi widow of the deceased to be belonging to Mazhar-ul-Haq deceased. She also identified at the Police Station, the personal belongings of her deceased husband which had been recovered by the police. Remote Control of V.C.R. Exh.P.6 was recovered at the instance of Gul Wali Khan on 13-7-1995. It was on 15-7-1995 that Mushtad Ahmed and Ghulam Khaliq appellants were produced by Shah Jehan S.-I. P.W.23 before Choudhary Muhammad Ali A.C. P.W.16. Their confessional statements under section 164, Cr.P.C. were accordingly recorded. Similarly, Gul Wali Khan, appellant was produced before Mr. Zafar Iqbal Awan, City Magistrate P.W.22 who recorded the confessional statement of appellant Gul Wali Khan. The fact of this case depends upon the validity of the judicial confessions recorded by the appellants. We have perused Exh.P.H. which are the proceedings conducted by Choudhary Muhammad Ali A.C. P.W.16 for recording the confessional statements of Ghulam Khaliq and Mushtaq Ahmed. According to P.H./1 the appellants were warned that they were not bound to make any confessional statement. It was explained to them that any statement made by them could be used against them. The appellants were further told that they may make any statement freely and voluntarily and were given half an hours time to deliberate upon the same. According to Exh.P.H/3 specific questions were put by the learned A.C. the gist of which is that the appellants understood that they were making a statement before a Magistrate that they were under no legal obligation to record the statement, that they were not under any pressure or inducement to make the said statement and that such a statement could also be used against the appellants. It was after the fulfillment of these procedural requirements that the statements of Ghulam Khaliq was recorded vide Exh.P.H./5.

23. After the confessional statement was recorded the appellant affixed his signatures and thumb impressions where after the A.C. endorsed his certificate, dated 15-7-1995.

24. Similar procedure was adopted in respect of the other two appellants.

25. According to the confessional statement Exh.P.H./5 made by Ghulam Khaliq appellant all the three appellants had gone to the house of the deceased. According to him he stood in .the door when Gul Wali Khan and Mushtaq Ahmed entered the room where the deceased was asleep. Gul Wali placed a "Chadar" on tie face of the deceased and started to throttle him. Mushtaq Ahmed put a string around the neck of Mazhar-ul-Haq deceased and both killed him by strangulation. He however, admits to have planned the occurrence alongwith Gul Wali and Mushtaq and actively participated in the occurrence, although he confined his participation to robbery alone. Mushtaq Ahmed in his confessional statement Exh.P.H./12 reiterated the common intention of all the appellants. He states that all the three appellants went to the house of the deceased. Gul Wali opened the door of the room where the deceased was asleep. According to Mushtaq Ahmed, Gul Wali had strangulated the deceased by placing some cloth on the face of the deceased and that Mazhar-ul-Haq died after 15/20 minutes. He reiterates the commission of robbery and taking away of the belongings in the deceased's car.

26. Exh.P.O., is the statement of Gul Wali Khan. According to his statement the plan of the appellant was to obtain a cheque signed by the deceased by putting him in fear but as he woke up, he (Gul Wali) alongwith the two co-accused pressed his throat as a result of which Mazhar-ul-Haq died of strangulation. He also stated that blood started oozing out of his mouth.' He also states that a string was tied to his neck which was bound with his feet to prevent him from kicking. The committing of robbery and decamping in the car of the deceased is also admitted.

27. In order to corroborate the manner in which the above confessional statements were recorded, Shah Jehan, S.-I. P.W.23, Malik Zafar Iqbal Awan, City Magistrate Islamabad and Choudhary Muhammad Ali A.C. City Islamabad P.W.16 have been examined. A perusal of their evidence alongwith the proceedings Exh.P.H, Exh.P.H./1 to P.H./14 and Exh.P.O., have been made. The A.C. and the Magistrate who have recorded the statements have fulfilled the requirements of law substantially in recording the confessional statements of the accused. Both the A.C. and the City Magistrate have appeared as P.W.16 and P.W.22 respectively. The learned trial Court had correctly placed reliance upon the confessional statements and convicted the appellants. Although, it is correct that the appellants had remained in police custody before making the judicial confession, but this fact alone shall not lead to the conclusion that the confession was tutored or that it was the result of coercion or police torture. The appellants have not brought on the record any such evidence whereby it could be inferred that the confessional statement was the result of any illegality, coercion or police highhandedness. In this respect it will be beneficial to follow the rule as laid down in the case of Syed Sharifuddin Prizada. v. Sohbat Khan Supra, wherein, it has been held as, under:-- "The fact that Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tutored. Remaining of accused persons for some time in police custody does not effect their judicial confessions. Mr. Aziz-ud-Din, A.C.M. who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording of judicial confessions. This shows that confessions were made voluntarily." It was further held that a direction contained, in a Criminal circular was of directory nature and its irregularity does not vitiate the confessions.

28. There is substance in the submission of the learned counsel for the complainant that appellants did nothing to retract lawfully from their confessional statements. They did not move for retraction till such time that their statement under section 342, Cr.P.C. was recorded. Such a delayed denial of the confession would not amount to a retracted confession. In any event if voluntariness and truth of confession is established from the record, retraction even if made shall not affect the said judicial confession. Where it is found, as in the present case that confession was voluntary as well as true, a retraction of the said confession shall be wholly immaterial. Reliance is placed on the rule laid down in the case of Joygun Bibi v. The State PLD 1960 313.

29. We have gone through the confessions and the other material on the record. There is sufficient corroboration of the contents of the confessions. P.W.15. and P.W.19 have sufficiently corroborated the presence of the appellants on or about the date of occurrence. Recoveries have been effected from the appellants. The mere fact that the recoveries were not attested by witnesses from the public shall not be sufficient by itself to discredit the recovery made by police officials alone. With respect to the evidentiary value of the confessions made by the appellants individually and to consider as to how much it would effect other co- accused reference may be made to Article 43 of Qanun-e-Shahadat which is reproduced as under:- "Consideration of proved confession affecting person making it and others jointly under trial for same' offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such person is proved.

(a) such confession shall be proof against the person; making it and (b) the Court may take into consideration such confession as circumstantial evidence against such other person. Explanation. "Offence, as used in this Article, includes the abetment of, or attempt to commit, the offence.

30. Thus the judicial confessions of each of the appellant shall have the effect of implicating and corroborating the charge as against the co-accused to the extent confession.

31. The upshot of the above discussion is that we find no legal infirmity in the impugned judgment. We are not persuaded to take a view different from the one which is expressed by the learned trial Court. We hereby dismiss both the criminal appeals and uphold the conviction of the appellants. As regards the sentence, we find ourselves in agreement with the sentence awarded by the learned trial Court to Gul Wali Khan appellant in Appeal No.36 of 1997 and Mushtaq son of Jaffar Shah appellant in Criminal Appeal No.38 of 1997. Murder Reference in respect of Gul Wali Khan and Mushtaq Ahmed appellants is answered in the affirmative.

32. As regards, the case of Ghulam Khaliq appellant in Criminal Appeal No.38 of 1997, we find that he is not specifically implicated in any of the judicial confessions made by the appellants. He neither implicates himself in Exh.P.H/5 nor is implicated by Mushtaq Ahmed in his confessional statement Exh.P.H./12. The confessional statement of Gul Wali Khan in respect of the murder of Mazhar-ul-Haq is also vague as far as it relates to Ghulam Khaliq.

33. Although the actual participation in the murder is not proved yet the appellant Ghulam Khaliq is fully implicated in common criminal conspiracy alongwith the other co-accused to commit the said offence. The following extracts from his statement are relevant:--

34. From the above statement it becomes crystal clear that the appellant Ghulam Khaliq was acting in furtherance of the common intention of the other co-accused and had actively planned the same alongwith them. He was also guilty under section 460, P.P.C. for committing lurking house trespass and house-breaking by night whereby the murder of Mazhar-ul-Haq deceased was committed.

35. In this view of the matter, we would convert the death sentence of Ghulam Khaliq appellant to life imprisonment. The other sentences in respect of all the appellants are maintained.

36. The Murder Reference in respect of Ghulam Khaliq appellant is answered in the negative. M.B.A./S-644/L Order accordingly.