2006 PLP 802 (MLD)

RAHMAT HUSSAIN JAFFERI, J.

This judgment will dispose of Criminal Appeal No.207 of 2005 and Confirmation Case No.2 of 2005 as they arise out of a common judgment.

2. Brief facts giving rise to the present appeal are that on 12-4-2001 Sub-Inspector Aril' Khan was posted at police station, Kala Kot when at about 3-10 p.m. he received a telephone message that two dead bodies of male. and female were lying in a first floor of flat of Nasser Building situated at Old Haji Camp, Karachi. Therefore, the Sub-Inspector along with his subordinate staff reached the pointed place where he found the dead bodies of a male and a female lying on the ground of the flat. Both the dead bodies were half naked as their Shalwars were lying near them. The dead bodies were identified to be that of Mst. Razia and Ghulam Nabi. The Sub-Inspector also found one blood-stained Churi and iron rod, a chapal, blood-stained pillow, which were secured and sealed in presence of mashirs. After completing the formalities, the Sub-Inspector took the dead bodies to the hospital. After conducting the post-mortem of the dead bodies, he handed over the same to their relatives and then reached the police station and lodged the report at 9-30 p.m. At about 10-45 p.m. the appellant wearing blood-stained clothes reached the police station and informed the complainant that he had committed the murders therefore, on such information the appellant was arrested and his blood-stained clothes were secured and sealed. On 17-4-2001 the appellant was present in the Court of Judicial Magistrate in connection with the recording of statement of witnesses under section 164, Cr.P.C. where he showed his willingness to record his judicial confession therefore, a request was made to the Magistrate for recording such confession. The Magistrate recorded the judicial confession of the appellant. After completing the usual instigation, the appellant was challaned in the Court.

3. The learned 1st Additional Sessions Judge Karachi South tried the appellant. After considering the evidence and hearing the parties' counsel he convicted the appellant under section 302(a), P.P.C. and sentenced him to death under the impugned judgment dated 10-5-2005. The learned trial Judge has sent the Reference under section 374, Cr.P.C. for confirmation of death sentence. The appellant was dissatisfied with the said judgment therefore, he has filed the present appeal.

4. We have heard the Advocate for the appellant, A.A.-G. for the state and perused the record of this case very carefully. The learned Advocate for the appellant has stated that the prosecution has relied upon the judicial confession of the appellant; that the said confession was retracted therefore, it requires strong and independent corroboration but the prosecution has failed to lead any evidence of private witnesses or any other evidence to corroborate the confession statement of the appellant. He has further stated that the police did not produce the appellant for recording his confession nor they made a written request to the Magistrate for recording his confession therefore, the confession of the appellant was no recorded in accordance with law hence it carries not weight as such the conviction cannot be awarded solely on the basis of uncorroborated confession. He has further stated that the articles secured from the place of incident and the alleged blood-stained clothes of the deceased were not sent to Chemical Analyzer nor there is any Chemical Analyzer report to prove that the said articles were stained with human blood as such the said piece of evidence cannot ,be used against the appellant. Therefore, he has requested for the acquittal of the appellant.

5. Conversely, the learned A.A.-G. has stated that the prosecution case rests upon judicial confession of the appellant which has been recorded in accordance with law in which he has implicated himself for committing two murders; that the confession statement has been corroborated by the circumstantial evidence, medical evidence, recoveries of dead bodies in the manner in which the appellant had disclosed in his confessional statement; that according to law judicial confession if it is found to be true and voluntarily then is sufficient to convict the appellant without any corroboration but the superior Courts have held that as a rule of prudence the confession should be corroborated by other pieces of evidence; that the confession has been corroborated by the pieces of evidence as mentioned above therefore, it is sufficient to convict the appellant. He has further stated that the appellant had not lost the self-controlled after seeing his wife with deceased Ghulam Nabi but he left the place of incident, brought his brother and cousins and then they committed the murders; that the question of sudden and grave provocation does not arise in the case. He has supported the impugned judgment.

6. We have given the consideration to the arguments, gone through the evidence with the help of learned Advocate for the appellant and found that the case rests upon judicial confession of the appellant. In order to prove the confession the prosecution examined P.W.6 Judicial Magistrate Mrs. Nasim Akhtar. Her evidence reveals that she performed all the formalities of law before recording the judicial confession. She specifically informed the appellant that he was not bound to give judicial confession and if he did so that could be used as evidence against him. A She also informed him that in case, he made the confession or otherwise he would not be handed over to the police but would be remanded to judicial custody. She also inquired the appellant as to whether he was given any inducement, coercion or maltreated by the police to which he replied in negative and after satisfying herself that the confession was voluntary, she recorded the confession of the appellant. The confession of the appellant Exh.26 reads as under:-- "About four of five days back at about 7-00 a.m. after spending the night at the work place where, I used to work in the night time, I reached my House situated in St. No.2 Haji Camp. I opened the door of my house and found Ghulam Nabi to whom, I already knew as he was residing near my house sleeping with my wife Razia on the ground. The shalwar of my wife was off and the Shalwar of Ghulam Nabi was also off. They both were sleeping together on a quilt. Then I went to my brother Rosy Khan and woke him up and then called my cousin Zareef Khan. Then Zareef Khan called Jalad Khan and then we took Churi, Danda and iron rod and then I, Jalad Khan, Rosy and Zareef killed them and then my wife and Ghulam Nabi died there. Then I alone went to Kala Kot police station and surrendered myself before the police. I am Pathan and due to provocation, I have committed murders and surrendered to the police. Now if I am punished or released, this is my statement."

7. The appellant has retracted from the confession. It is well settled principle of law that retracted confession can be made the basis for conviction if it is found to be voluntarily and true but as a rule of procedure, caution and prudence the confession should be corroborated B on material particulars. Reference is invited to Muhammad Gul v. State (1991 SCMR 942), Muhammad Yaqoob v. State (1992 SCMR 1983) and Haq Nawaz v. State (2000 SCMR 785).

8. We have gone through the evidence of Magistrate and found that the Magistrate took all the precautions before recording the confession. She specifically informed the appellant that he was not bound to give confession and if he gave the same it could be used against him as an evidence, that he would not be remanded to police custody after he made the confession of otherwise. She also inquired from him as to why he was making confession to which he replied that he was making c confession on his own free-will, that whatever he had done he was going to give a statement. He was also inquired about the inducement, threat or promise given by police or anyone else for inducing him to make confession to which he replied in negative. He also replied that the police did not maltreat him. After satisfying herself, the Magistrate recorded the judicial confession of the appellant wherein he admitted the guilt.

9. From the proceedings, we are also satisfied that the judicial confession of the appellant was voluntary and true. Truthfulness of the confession can very well be assessed from the fact that in the confession he stated that when he opened the door of his house he found his wife D and deceased Ghulam Nabi sleeping together on the floor and their Shalwars were off. The said fact has been corroborated by Sub-Inspector Arif Khan and mashir of place of incident who reached at the place of incident after receiving the information where they found the deceased lying on the ground and in half-naked position, as stated by the appellant. The confession is further corroborated from the fact that both the deceased had stab injuries and injuries caused by hard and blunt substance as per medical evidence. Furthermore, the crime weapons, Churi and iron rod were lying at the place of incident. The confession of the appellant that he went to police station all alone and surrendered himself before the police has been fully supported and corroborated by the Investigating Officer and mashir of arrest of appellant who categorically stated that at about 10-45 p.m. the appellant wearing blood-stained clothes arrived at the police station and informed them that he had committed the murders and, therefore' he was arrested. No doubt, the statement of the appellant involving himself in the commission of crime is an inadmissible piece of evidence as per Article 38 of Qanun-e-Shahadat Order, 1984. However, the information supplied by the appellant was sufficient ground for the police to arrest him, therefore, to that extent the statement was admissible and can be safely relied upon. Thus from the evidence of both these police officers it is clear that the appellant reached the police station all alone and he was arrested there thus as above piece of confession statement is also supported and corroborated by the evidence available on the report.

10. In view of above position we are of the considered view that the judicial confession of the appellant is not only voluntary and true but it is also supported and corroborated by other pieces of evidence available on the record therefore, it is sufficient to convict him.

11. As regards recoveries of blood-stained articles from the place of incident and recovery of blood-stained clothes of the appellant, suffice it to say that the same were not sent to Chemical Analyzer for examination and report to ascertain that the article were stained with human blood. The prosecution has also be produced any Chemical Analyzer report to prove the above fact. Hence, such piece of evidence is of no help to the prosecution.

12. As regard the conviction, the learned trial Judge has convicted the appellant under section 302(a), P.P.C. For the conviction of said offence the evidence as provided under section 304, P.P.C. is required to be led by the prosecution but the same has not been led as the appellant had retracted from the confession as such he did not make confession before the trial Court nor the required evidence is available on the record as per section 304, P.P.C. therefore, the ingredients of section 302(a), P.P.C. are not attracted. From the evidence available on the record an offence punishable under section 302(b), P.P.C. has been made out therefore, the appellant is convicted for the said offence.

13. As regard sentence, the learned trial Judge has sentenced the appellant to death. From the facts of the case, it appears that when the appellant reached the house he saw his wife and deceased Ghulam Nabi 'sleeping together in half-naked condition. Therefore, he might have been provoked. It appears from the conduct of the appellant that he did not lose his control as after seeing both the deceased sleeping together he went to his brother and informed him about the incident thereafter he called his cousins and then armed themselves with Churi, Danda, Iron rod and went to the place of incident where they found both the deceased still sleeping and then they caused injuries to them with the result that H they died. As such the appellant after seeing the deceased went to his brother and cousins thereafter they planned to commit the murders and in order to complete the said plan they reached the place of incident and committed the murders of the deceased as such it is a premeditated murders and not murders committed under sudden and grave provocation.

14. It is pointed out that under the old section 304, P.P.C. the ground of sudden and grave provocation was a valid defence and exception but the said provision was found to be un-Islamic as such the same was so declared by the Federal Shariat Court. The Federal Government challenged the ,said decision before the Supreme Court of Pakistan but the Supreme Court of Pakistan dismissed the appeal filed by the Federal Government in the case Federation of Pakistan v. Gul Hassan (PLD 1989 SC 633). Thereafter the Federal Government made necessary amendments in the Pakistan Penal Code through Qisas and Diyat Ordinance and old section 304, P.P.C. was omitted. In order to implement the decision of the Hon'ble Supreme Court of Pakistan the Federal Government made drastic amendments in the Pakistan Penal Code whereby the Chapter XVI of P.P.C. was replaced and new provisions have been added. According to these amendments, Qatl-i-Amd has been defined in section 300, which reads as under: "Whoever, with intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-amd."

15. From the above definition it is clear that if a person does an act with intention to cause death or cause such bodily injury to a person which in the ordinary course of nature is likely to cause death or with the knowledge that such act is so eminently dangerous that it must in all probability cause death then he will be said to commit the Qatl-i-and or murder. The exception of sudden and grave provocation as provided under the old section 304, P.P.C., is no more available to an accused person to take such plea as an exception because the said plea was found to be un-Islamic by the Federal Shariat Court and confirmed by the Hon'ble Supreme Court of Pakistan. However, the Hon'ble Supreme Court of Pakistan in the above-referred case has observed at page 674 as under:

16. Thus it is clear that under Islamic Law if a person sees an offence being committed which entail death penalty then in such a situation if he commits murder then benefit can be given to him. In the present case both the deceased were simply sleeping in half-naked position but the deceased Ghulam Nabi was wearing underwear. They were not found in committing the act of sexual intercourse so as to attract the provisions of Zina as defined under Offence of Zina (Enforcement of Hudood) Ordinance , 1979. For proving such fact, penetration is essential ingredient but in the present case, such ingredient was missing. However for proving offence of Zina liable to Hadd the evidence of four eye-witnesses who had actually seen the committing of I the offence of Zina including the penetration was essential so us to make the offence punishable with Hadd. When the appellant entered the house, he simply saw both the deceased sleeping together. He did not see them committing the act of sexual intercourse. After seeing them, he went to his brother and cousins. He called them and then again, they did not see both the deceased committing the act of sexual intercourse. No doubt at that time there were four persons but they did not see the offence of Zina being committed, which entail death penalty. As such, there was no justification for the appellant and his companions to cause the murders of the deceased. Apart from the above facts, the appellant has retracted from confession. For proving that he had committed the murder under sudden and grave provocation after seeing his wife and her paramour, committing the act of sexual intercourse (which is not the case), even for that offence the appellant was simply 'a witness. For proving such offence, the appellant was required to examine four witnesses. He neither examined himself nor examined any of his three companions to prove the offence of the Zina so as to take benefit of the provisions of Islamic Law. Thus, it is a case of preplanned and premeditated murders, which does not require any leniency to be taken in awarding the sentence. Therefore, we are of the considered view that the learned trial Judge has awarded adequate sentence to the appellant, which is hereby maintained and confirmed.

17. Above are the reasons of our short order dated 6-2-2006 by which we had dismissed the appeal and allowed the confirmation case. H.B.T./M-39/K??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.