2002 PLP 2813 (YLR)

"This is totally incorrect. I was deputed by P.W.3 Naeem Khan to drive vehicle with his brother at village and 'he has granted me leave from my own department through Deputy Surveryor General namely Sher Afgan Khan, hence, I have no concern with the alleged occurrence, nor was aware of the very intention of the P.W.3, who ultimately implicated me in the said occurrence. Moreso, my box wherein my clothes pistol alongwith copy of licence were present in the house of Naeem Khan as I used to be their personal servant during the days of my leave from the department so the pistol lying in his house alongwith the copy of licence were handed over to the local police just to connect me with the alleged offence. " While replying to another question that he had made a voluntary confession it the Court of P.W.7 Yar Said Khan, he stated as under:‑ "This is incorrect. No confession whatsoever, has been made by me before the magistrate rather to say that the complainant at time was Secretary to the Government of N.W.F.P., and has compelled the Magistrate to record my statement in line with his direction, rather I have stated the real story as I was deputed by the very complainant to perform duties with his brother at the village during the days of occurrence. Even then I was tortured by the local police and compelled to sign the very statement. Moreso, I was given impression by the complainant through the said Magistrate, that I will be acquitted of the charge by submitting a compromise in the Court, hence, the very confession is incorrect." In reply to yet another question, as to why he involved in this case Muslim Shah accused stated as under:‑ "Complainant P. W.3 Muhammad Naeem Khan is Khan of my Ilaqa. Whole of my family was serving under them. I have been driver for long 3 years with his uncle namely Afzal Khan and later on P.W.3 took me from him and I remained for 2‑1/2 years as driver with him. Later on I was provided service in the Survey of Pakistan by the complainant but even then I was driving with him as personal driver and used to be on leave from my department. Never in my life I have committed any sort of stealing, dacoity, theft. During the days of occurrence, the complainant obtained cleave for me through Deputy General Surveyor namely Sher Afgan Khan and deputed me to driver with the brother of complainant, who was contesting general election as a candidate for Provincial Assembly. The complainant has not only provided me service but everything else and I was residing in his house as his personal servant. I have been implicated for the alleged occurrence under the impression that they will release me of the said charge and I being personal servant to them obeyed their orders at the relevant time but later on to save their own skin, I was held responsible and charged for the alleged occurrence from which I am unaware and the charge is false and fabricated against me. " He, however, refused to produce any defence evidence, and had not opted, to be examined on Oath, but subsequently he made an application and appeared as a witness of his own under section 340(2), Cr.P.C. On 31‑8‑1999 and stated that "he had not committed the murder, for which he was involved. He was innocent and have falsely been charged."

7. After conclusion of the trial, the learned trial Judge proceeded to convict and sentence both the accused as stated above. Hence this appeal.

8. We have heard the learned counsel for the parties at length and have perused the record carefully with their assistance. Learned counsel for, the appellants has vehemently argued that there being no ocular evidence to connect the appellants with the crime, the circumstantial evidence adduced by the prosecution was not sufficient to prove the guilt of the accused at the trial. According to learned counsel the retracted judicial confessions were the result of inducement by the complainant and coercion by the police, therefore, these were of no legal‑worth. The alleged recovery of pistol and robbed ornaments from the appellants, having not been testified by independent witnesses, would not provide the requisite corroboration to the tainted judicial confessions which were recorded after the unexplained delay of 3 to 5 days in the case of Muslim Shah, while it took 15/18 days to record the confession of Muhammad Khan accused, which also cast grave doubts on the authenticity of the two confessions. Reliance was placed on Mst. Naz Bibi v. Mst. Roz Khatoon (PLD 1987 Queeta 1) and Muhammad Naseer v. The State (PLD 1988 FSC 58). Learned counsel for the complainant as well as the State have vigorously defended the conviction of the appellants by submitting that the case against the two appellants stands proved beyond any reasonable doubt through unimpeachable testimony of Naeem Shah complainant P.W.3 who had no rancour or animosity against the accused, rather he was the benefactor of Muslim Shah appellant who was retained by the complainant as driver; as a man of trust coming from his own area. Besides this, the version of the complainant gets full support from the confessional statements of the two accused which were voluntarily made by them without any coercion or inducement from any quarter. The matching of the crime empties recovered from the spot with the licensed pistol recovered at the instance of the accused was yet another circumstantial evidence which connected the appellant Muslim Shah with the crime. The recoveries of two Karas from Muslim Shah and other golden ornaments and cash from Muhammad Khan appellant have gone a long way to prove the fact that the murder of Habib Khan deceased was caused during the course of Harraba committed by the accused/appellants in the house of Naeem Khan complainant. The learned counsel for the complainant while arguing the criminal revision for enhancement of sentence laid great emphasis on the point that the reason recorded by the learned trial Court for awarding lesser penalty of life imprisonment was uncalled for, in the circumstance of the case, as the deceased has been callously done to death without any motive except to eliminate him from the scene of occurrence to facilitate themselves in escaping from the spot. Reliance. in this respect was placed on Waris Khan v. The State (2001 SCMR 387). He, therefore, prayed that the sentence of Muslim Shah accused who has been attributed fatal fire on the deceased may be enhanced to death and the amount of compensation may also be appropriately increased to meet the ends of justice.

9. We have dispassionately considered the submissions made by the learned counsel for the parties and have also perused the impugned judgment as well as the case‑law cited at the bar.

10. The prosecution has kept its reliance mainly on the testimony furnished by Naeem Khan complainant P.W.3. The judicial confessions made by Muslim Shah and Muhammad Khan appellants Exhs.P.W.7/3 and P.W.6/3 respectively, the recoveries of stolen golden ornaments and cash at the instance of the two appellants coupled with the recovery of the licensed pistol at the instance of Muslim Shah accused which was duly matched with the crime empties recovered from the spot. Besides this, the medical evidence furnished by Dr. Taimoor Khan P. W. 11 was also taken as a corroboratory piece of evidence to prove the intentional murder of Habib Khan deceased who was fired at his head, the vital part of the body.

11. The careful appraisal of the testimony of the complainant Naeem Khan who has made a coherent and straightforward statement before the learned trial Court, revealed that Muslim Shah accused was working as a driver with him when he was posted at Islamabad as Joint Secretary Establishment Division and was considered by the complainant a reliable person so the complainant had kept him at Peshawar, thinking that since he was from his area, he would be more dependable. It was because of this trust that on the asking of Muslim Shah accused on telephone, Kamran the son of the complainant told him the details of the programme of celebrating the Eid in the village. On Eid day at about 3‑00 p.m. Muslim Shah, alongwith another unknown person visited the complainant to say Eid Mubarak and then quickly left his Hujra after taking tea and sweats. It was subsequently thereto, that the occurrence had taken place at Peshawar. Wherein the jewellery and cash of the complainant was robbed of after committing the murder of Habib Khan deceased.

12. This statement of the complainant was duly corroborated by the retracted judicial confession made by Muslim Shah accused, who in the said statement has categorically admitted these facts but, subsequently during the trial he has tried to sling some mud on the complainant by suggesting that the murder of the deceased was got committed by the complainant through one Abdullah but this suggestion remained unsubstantiated and came out to be a bald assertion, as the same was not put to said Abdullah, when he appeared as P.W.5 before the learned trial Judge and deposed about the identification of the dead body, beside this, the testimony furnished by the complainant regarding the theft of ornaments, jewellery and cash, was duly proved as the recovery of the said property was subsequently effected at the instance of the two accused. We, therefore, are of the considered view that the statement of the complainant being straightforward and. honest deposition, inspired confidence and was worth reliance.

13. The next piece of evidence and the mainstay of the prosecution is the judicial confession made by Muslim Shah accused, who was produced before Judicial Magistrate Peshawar on 18‑2‑1997 and had voluntarily confessed his guilt by making an inculpatory statement disclosing therein, that during the month of Ramzan he was in need of some money to celebrate Eid for which he planned to commit a theft in the house of the complainant, from whose son Azeem Khan, he came to know that they would be going to their village for celebrating Eid. So, in pursuance thereof he also went to his village where he took into confidence Muhammad Khan co‑accused and after being sure about the arrival of Naeem Khan complainant in the village, they both went to Peshawar. Muslim Shah further disclosed that he was armed with a .30 bore pistol while Muhammad Khan accused accompanied him empty‑handed. On reaching Peshawar, they went straight to the house of Naeem Khan complainant and met Habib Khan deceased in the servant quarter, where they were served tea and were asked about the purpose of their visit, who was told that they had brought a patient to the hospital. It was then that Habib Khan deceased went to the kitchen and started preparing the meals when Muslim Shah accused fired at him twice in consequence of which he died at the spot. It was thereafter that he alongwith Muhammad Khan took a hammer and screw driver from the kitchen and after break opening the drawers of almirrah, lying in the special room of Naeem Khan, they committed the theft of golden rings, golden karas, golden earrings, tax and some cash consisting of Pakistani as well as foreign currencies, and escaped from the said bungalow, by hiring a taxi for their village Hamzakot. This confessional statement of Muslim Shah accused. Exh.P.W.7/2 was recorded by the Judicial Magistrate after fulfilling all the legal requirements and after satisfying himself regarding the voluntariness of them same. The accused Muslim Shah was put all the relevant questions including the question as to how many days, he had been in police custody and whether he was subjected to any torture by the police, the accused Muslim Shah had replied in the negative and after pondering over the matter for some time, he made the above said inculpatory judicial confession, giving the details of the occurrence which were exclusively in his own knowledge i.e. the joining of Muhammad Khan co‑accused with him and the manner of doing away with the deceased. In the same manner Muhammad Khan appellant was produced before Judicial Magistrate on 6‑3‑1997 who after fulfilling legal requirements and putting the relevant questions for satisfying himself regarding the voluntariness of the confessions, recorded the statement Exh.P.W 6/3 at the dictation of the said accused who was properly warned that if he will make confession that will be used against him, as an evidence in the crime. Muhammad Khan appellant, on the quarry made by the Magistrate, as to why he was making a confessional statement, disclosed that he was brought at the spot by Muslim Shah accused fraudulently and he wanted to speak the truth.

14. We having dispassionately considered the intrinsic worth of the two confessional statements of the appellants, we feel that the inculpatory confessional statement made by Muslim Shah, accused, being the voluntary deposition of the details of the occurrence, including the fatal shot fired at the deceased and thereafter committing theft of the valuables from the hirz of the complainant it goes to prove the culpability of the accused to a great extent, as there was no legal infirmity, to cast doubt on the authenticity and reliability of the said confessions or to render it as unacceptable. The provision of Article 43 of Qanun‑e -Shahadat Order, 1984 being relevant is reproduced below for the sake of reference:‑ Article 43:‑ "Consideration of proved confession, effecting 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 persons is proved:‑‑ (a) such confession shall be proof against the persons, making it, and (b) the Court may take into consideration such confession as circumstantial evidence against such other person. "

15. This confessional statement even if retracted would thus be relevant against its maker as well as co‑accused Muhammad Khan, who too has made a confessional statement, although exculpating himself from the crime, but the tenor of his statement clearly disclosed that he had shared common intention with Muslim Shah accused, who was duly armed with pistol and had accompanied him willingly to the house of the complainant, where they both had committed Harraba and murder of Habib deceased in furtherance of their common intention.

16. The Judicial Magistrates Muhammad Afsar Khan P.W.6 and Yar Said Khan P.W.7 had candidly deposed about recording of the confessional statements of the accused, which according to them were voluntarily made by the two accused, as they were given time to ponder over the matter and were also warned about the consequences of making the confession. Both these witnesses had testified Exh. P. W.6/3 and Exh. P. W.7/2 the respective confessional statements of the accused which were correctly recorded and duly signed by them.

17. We, therefore, are of the confirmed view that the two confessional statements although retracted would hold the field being voluntary and true and could conveniently be made basis for the conviction of the appellants. We feel strengthened in adopting this view by the dictum laid down made by the Honourable Supreme Court of Pakistan in the case of Wazir Khan v. The State (1989 SCMR 446) wherein it was observed that 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 and 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". Similarly in the case of State v. Mihun alias Gul Hassan (PLD 1964 Supreme Court 813) the Honourable Supreme Court observed as follows:‑ "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."

18. In the instant case, besides the retracted judicial‑confessions, there is further circumstantial evidence, which connects the, appellants with the crime by rendering material corroboration to the above retracted confession. The recovery of the licensed pistol of Muslim Shah appellant at his instance from his house alongwith two robbed golden karas, and the recovery of the ornaments, jewellary and cash at the pointation of Muhammad Khan appellant, duly identified by the complainant, were the pieces of evidence, which have gone a long way to prove the guilt of the accused to the hilt. The recovery of hammer and screw driver with which the accused had forcibly opened the drawers of the Almirahs and had stolen the valuables of the complainant, was yet another circumstance to be taken serious note of, as it was an important link in the chain of circumstances to connect the appellant with the crime.

19. The positive report of the Director Forensic Science Laboratory Exh.P.W 10/5 which specifically revealed that crime empty recovered from the place of occurrence was fired from the licensed pistol recovered at the instance of Muslim Shah appellant, also provided sufficient corroborations to the above said confessional statement of the appellant wherein he had confessed to have fired pistol shots on the deceased. Who succumbed to the injuries thus caused to him. This fact got further support from the medical evidence rendered by Dr. Taimoor Khan P.W.11 who had categorically opined that injuries Nos. 1 to 2 was the cause of death which occurred immediately after receipt of injuries.

20. The cumulative effect' of the circumstantial evidence, discussed above, makes us believe that despite the absence of ocular testimony, the case of the prosecution stands proved through the chain of circumstances, the links of which are so well -knit with each other that no room for any doubt against the culpability of the accused/appellant is left to exist on record, to give them the benefit of.

21. The facts thus proved through the above reliable circumstantial evidence are, therefore, considered to be sufficient to sustain the conviction of the appellants, as these are found to be incompatible with the innocence of the accused and are "incapable of explanation upon any other reasonable hypothesis than the guilt of the accused".

22. We have been enlightened in this respect, by the observations of the Honourable Supreme Court of Pakistan in a case, cited as Jaffar Ali v. The State (1998 SCMR 2669), wherein it was laid down that "if the circumstantial evidence connects the accused with the offence, punishable with death, without any reasonable doubt, the same can form the basis of the capital punishment." The learned Supreme Court, in pursuance thereof had upheld the sentence of death penalty awarded by the learned trial Court on the basis of last seen evidence coupled with retracted judicial‑confession, by placing reliance on section 1740 and section 1741 of "Al‑Majallah" the Code of Islamic laws, promulgated by the Ottoman Caliphate, which envisaged and recognised the circumstantial evidence even in the case of murder.

23. It was also in this case that the Honourable Supreme Court, had laid down certain principles for the appraisal of evidence, which are reproduced below for the sake of seeking guidance therefrom:‑ "The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency/prosecution, provided the same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities." We being inspired by the above said observations are of the considered view that the overwhelming and reliable circumstantial evidence adduced by the prosecution inspired continence and was sufficient to warrant the conviction of the two appellants.

24. We have anxiously considered the stance of the accused/appellants taken up during the trial regarding their false implication in this case by the complainant. We feel that the same was not tenable, in the circumstances of this case, as it is based on the circumstantial evidence, mainly consisting of the retracted judicial confessions of the appellants, which stands proved as voluntary and true, through the statements of the Judicial Magistrates P.W.6 and P.W.7 who being independent witnesses could not be labelled as partisan, simply because of the fact that the complainant was one of the senior officers posted at Peshawar. Moreover there is nothing on record to attribute any enmity of the complainant with the appellants, who, as per record, was the benefactor of Muslim Shah appellant by keeping him as a dependable driver coming from his area, while Muhammad Khan appellant was not even earlier known to him. In. this view of the matter we do not attach any importance to the bald assertion of the defence and proceed to discard the same as worthless.

25. The upshot of the above discussion is that the prosecution has successfully proved its case beyond any reasonable doubt against both the appellants under section 302(b), P.P.C. as Tazir, and they have been rightly convicted by the learned trial Judge vide the impugned judgment dated 1‑12‑1999 which is hereby upheld.

26. So far the quantum of sentence awarded to the appellants is concerned, we feel that the same required interference by this Court to the extent of Muslim Shah appellant whose sentence of Life Imprisonment do not commensurate with the gravity of the offence committed by him. We feel inclined to agree with the contention raised by the learned counsel for the complainant that the reason extended by the learned trial Judge to award the lesser penalty, particularly to Muslim Shah appellant was unwarranted in the circumstances of this case, as the appellant has committed the callous and gruesome murder of an innocent person, who was then busy in the preparation of meals in the kitchen. According to learned counsel, it was not incumbent on the prosecution to prove motive in all the murder cases, as murders are often committed on trivial matters or even without any motive. The learned counsel further emphasised that Muslim Shah appellant had intended to commit the murder of the deceased, as he had selected and fired at the vital part of the body of the deceased i.e. the head for doing away with him, in consequence of which, the deceased succumbed to his injuries at the spot. It was in this context that the learned counsel pressed for the enhancement of the sentence of Muslim Shah appellant to death penalty, while the sentence awarded to Muhammad Khan appellant was stated to be appropriate and thus was not challenged. The learned counsel substantiated his contention by placing reliance on the recent judgment of the Honourable Supreme Court of Pakistan, cited as Waris Khan v. The State (2001 SCMR 387) wherein it was observed that: "Weakness or absence, of motive or failure to prove the same‑‑‑Effect‑‑ Where the eye‑witness account was worthy of credence, unimpeachable confidence inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances."

27. We are well‑aware that many a time the offenders commit heinous offences like murder with very trivial motive and some times without any motive. It is the devil who knows as to what was the intention of the criminal to commit the crime, as the same is always hidden in his mind. However, the intention can very well be gathered from the visible acts committed by the accused and the surrounding circumstances in which the alleged offence wag committed.

28. We have analysed the conduct of Muslim Shah appellant in the light of circumstantial evidence adduced by the prosecution, we are of the view that the accused after ascertaining the presence of Habib Khan deceased in the bungalow of the complainant, and considering him the only stumbling block in their way to fulfil his design of committing Harraba in the said house, decided to remove him from the scene and it was in pursuance of the same that he after arming himself with a pistol, took into confidence his co‑accused and reached the spot. It was then in furtherance of their common intention that Muslim Shah appellant aimed at the head of the deceased and fired at him twice, in consequence of which he succumbed to his injuries at the spot. The retracted confessional statement of the said accused which stands relied upon coupled with other circumstantial evidence do disclose the above events, which otherwise were not in the knowledge of any‑one else except the accused.

29. Under the above circumstances and respectfully following the dictum laid down by the Honourable Supreme Court of Pakistan in the case cited supra, we feel constrained to enhance the sentence of Muslim Shah appellant from life imprisonment to Death penalty under section 302/34(b), P.P.C. as Tazir. The appellant is to be hanged by neck till he is dead. The other sentences of fine and compensation are maintained as awarded by the trial Court. The death sentence will operate subject to confirmation by the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan.

30. So far the sentence of life imprisonment awarded to Muhammad Khan appellant is concerned, the same being appropriate in the circumstance of this case, is maintained accordingly.

31. Consequently Criminal Revision for enhancement of sentence is allowed to the extent of Muslim Shah appellant, while the Criminal Appeals filed by both the appellants being without merit stand dismissed with the above modification in the sentence. On 24‑5‑2001 the following ; short order was passed. "Arguments heard. For reasons to be recorded later in the detailed judgment, the Revision Petition No. 1/P of 2000 is accepted to the extent of Muslim Shah son of Muhammad Shah and his sentence is enhanced from life imprisonment to death. Other sentences of tine and compensation are maintained as awarded to him by the trial Court and his appeal is dismissed. The Jail Criminal Appeal No.12/P of 2000 of Muhammad Khan son of Zawar is dismissed. His conviction and sentence are maintained as awarded by the learned Sessions Judge, Peshawar on 1‑12‑1999. The benefit of section 382‑B, Cr.P.C. extended to him by the trial Court shall remain intact." These are the reasons in support of our order referred to above. N.H.Q./84/FSC Order accordingly.