' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Criminal Appeal No,63-J of 2001 (Amjad v. The State) filed against conviction, Criminal Appeal No,462 of 2001 (Muhammad Hussain v. State) filed against the acquittal of Tanveer Begum and Criminal Revision No,174 of 2001 (Muhammad Hussain v. State) filed for enhancement of sentence awarded to appellant Amjad, as they arise out of the same judgment dated 31-1-2001 passed by the learned Additional Sessions Judge, Gujranwala, whereby, after having tried the appellant, he was convicted under section 302(c), P.P.C. and sentenced to twenty years' R.I. with a further direction to pay an amount of Rs,2,00,000 as compensation to the legal heirs of the deceased in default whereof to further undergo R.I. for five years as ilrovided under section 544-A, Cr.P.C. and benefit of section 382-B, Cr.P.C. was extended to him.
2. Brief facts of the case, as given by the complainant Muhammad Hussain in the F.I.R. (Exh.P.F./1), are that his deceased brother Muhammad Shafi Shoaib ran factory in Gujranwala, on 14-7-1999 at 11-00 a.m. he went to Lahore in a car of Khawaja Arshad bearing No,IDF 2460 for collection of payments, his said brother had his own mobile phone, Kh. Arshad and his Manager talked with his brother who told them that the would reach till 4-00 p.m. but could not reach, upon which, Kh. Arshad rang but there was no response, he did not return home till night upon which they went in search of him, during the said search they reached Police Station, Saddar Kamonke where Muharrir told them that Car No,IDF 2460 was lying Lawaris near Bismillah Rice Mills Tatlay Aali Road since last night, he suspected the murder of his brother or illegal custody because he had payments of collection with him, on 21-7-1999 the Investigating Officer arrested Tanveer Begum (acquitted accused) who got recovered dead body of his deceased brother from her rented house, his mobile phone (P.9), leather purse (P.11) vide recovery memo. Exh.P.E., the Investigating Officer arrested appellant Amjad on 22-7-1999 on the pointation of Tanveer Begum, who, on 22-7-1999 got recovered a Toka (Exh.P.B.), Churri, cash of Rs,36,000, Jooti (P.5), silver dole (P.6), silver Baalti (P.7), Kassi (P.8) and Ramba (P.9) which were taken into possession vide recovery memo. Exh.P.C., on 22-7-1999 statements of both the accused persons were recorded under section 164, Cr.P.C. by the learned Magistrate and during the course of investigation, the appellant and acquitted accused Tanveer Begum were found guilty.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, inorder to prove its case against the accused, producedfourteenprosecution witnesses during the trial. Statements of C.W.1, Dr. Robina Muzaffar, C.W.2, Khalid Ayyaz Ahmad Khan, MIC, D.W.1, Syed Zulfiqar Ali and D.W.2, Munir Khan were also recorded by the learned trial Court.
4. Learned counsel for the appellant Amjad in support of his appeal submits that there is no eye-witness in this case; that it is a case of circumstantial evidence; that the judicial as well as extra-judicial confession were recorded under coercion and pressure which cannot be believed; that the appellant has admitted to have committed the murder of the deceased under grave and sudden provocation; that as there is no eye-witness account in this case, therefore, version of the appellant should be accepted in totality given by him in a reply to Q. No,11 in his statement recorded under section 342, Cr.P.C.; that the recoveries have been planted on the appellant; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. As far as Criminal Appeal No,462 of 2001 filed against the acquittal of Tanveer Begum (acquitted accused), which was admitted by a learned Division Bench of this Court on 22-8-2001, learned counsel for the complainant and the learned A.P.-G., while assailing her acquittal, contend that the judicial confession made by Amjad and Tanveer Begum was a genuine one; that Amjad has himself admitted his guilt before the learned trial Court in reply to Q.No,11; that it is not a caseof grave and sudden provocation because in such like cases dead bodies are not buried; that the dead body was recovered from Tanveer Begum's house on her pointation and articles belonged to the deceased were also recovered on her pointation and that the case against both of them is proved to the hilt.
6. We have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties. 7.
According to the prosecution case, the F.I.R. was lodged by the complainant Muhammad Hussain on 18-7-1999, who was a real brother of the deceased, about an occurrence which had taken place on 14-7-1999. Deceased in this case is Muhammad Shafi Shoaib. It is a case of circumstantial evidence. There is no eye-witness account in this case. Following pieces of evidence were produced by the prosecution to prove its case, namely, evidence of last seen by Latif and Aslam who had allegedly seen the deceasled in the company of the appellant and Tanveer Begum (acquitted accused) on .14-7-1999 at about 3-00 p.m. and 3-30 p.m. respectively. Then there is an extra-judicial confession furnished by Yaqoob (P.W.8), according to him, both of them i,e, Amjad appellant and Tanveer Begum (acquitted accused) had visited him on 15-7-1999 and admitted their guilt to have murdered the deceased although his statement was recorded on 21-7-1999. He is not related to the deceased but is only a Mohallah Dar of the deceased. Then there is 'udicial confession made by both of them i,e, Amjad appellant and Tanveer Begum (acquitted accused) and was recorded by the learned Magistrate who had appeared as C.W.2 although initially he was given up but, later on, was summoned. This judicial confession was recorded on 22-7-1999. Tanveer Begum (acquitted accused) was arrested in this case on 21-7 1999, she got recovered the dead body of the deceased on the same day from her house coupled with recovery of his purse and two identity cards, mobile phone and visiting card. The Investigating Officer arrested appellant Amjad on 22-7-1999 on the pointation of Tanveer Begum, who, on 22-7-1999 got recovered a Toka (Exh.P.B.), Churri, cash of Rs,36,000, Jooti (P.5), silver dole (P.6), silver Baalti (P.7), Kassi (P.8) and Ramba (P.9) which were taken into possession vide recovery memo. Exh. P. C.
8. It is pertinent to mention here that although the case was registered under section 302/34, P.P.C. read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 but no charge under section 10 ibid was framed.
9. After having taken into consideration the prosecution case and the judicial confession made by Amjad appellant we are of the view thatthe said confession made by Amjad appellant is voluntary in nature and we have seen no coercion or pressure on him to make the same. The question of conviction on the basis of judicial or extra-judicial confession, retracted or not, came up for consideration before the august Supreme Court of Pakistan in the case of Muhammad Amin v. The State PLD 2006 SC 219, wherein, at page 224, while maintaining the sentence of death of the accused in the said murder case, the apex Court of Pakistan observed as under:-- "9. There is no cavil to the proposition that conviction could have been awarded on the basis of retracted confession which proposition was examined in case of Mst. Joygun Bibi v. The State PLD 1960 SC Pak 313as under:-- "We are unable to support the proposition of law laid down by the learned Judges in this regard The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made and on the further question whether it is true.The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those consequences and need have no connection whatever with either its voluntary nature, or the truth of the facts stated.
The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."
10. Similarly in the case of the State v. Minhun alias Gul Hassan PLD 1964 SC 813, this Court has observed as under:-- "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."
' The above view also finds support from the following judgments:-- ' Muhammad Yaqoob v. The State 1992 SCM R 1983; Mokha v.Zulficlar PLD 1978 SC 10; Zakir Khan v.The State 1995 SCM R 1793; Roshan.The State PLD 1977 SC 557; Umar Din v. Crown ILR 1921 Lahore 129; State v. Waqar Ahmad 1992 SCM R 950; Nadir Hussain v.The Crown 1969 SCM R 442; Habibullah v.The State 1971 SCM R 341 State v. Minhun PLD 1964 SC 813." (Emphasis supplied)
10-A. As far as respondent Tanveer Begum (acquitted accused) is concerned, perusal of the record shows that she had no intention in the murder of the deceased. The only allegation against her was that she was busy in committing Zina with the deceased but for .the said act she was never charged by the learned trial Court, as mentioned above. Even no charge under section 201, P.P.C. was framed against her qua destroying the evidence of dead body of the deceased. As far as recovery of articles which belonged to the deceased are concerned, those seem to have been planted on her. We have gone through the impugned judgment, the reasons advanced by the learned trial Court qua her acquittal from the case and find that those are just, legal and in accordance with the principles of administration of natural justice, so, while maintaining her acquittal, Criminal Appeal No,462 of 2001 filed against her acquittal is hereby dismissed. This is in line with the law laid down by the Apex Court of the country in the judiciary hierarchy reported in Iftikhar Hussain and others v. The State 2004 SCM R 1185, wherein at page 1194 of the judgment of the Honourable Supreme Court, it was observed as under:-- "It is well-settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C. are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v. Mamraiz Khan and others PLD 1985 SC 11 that the Appellate Court seized with the acquittal appeal under section 417, Cr.P.C., is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded the material evidence or misread such evidence or received such evidence illegally."
11. As far as Amjad appellant is concerned, we are of the view that immediately after his arrest, he made a judicial confession. There was no coercion or pressure against him qua the same. The learned MagistrateMr. Khalid Ayyaz Ahmad Khan, who had recorded the said judicial confession, had appeared before the learned trial Court as C.W.2 and proved the said confession.Even no suggestion was put to him whether it was obtained through pressure or coercion. Even the appellant had taken similar stand in an answer to Question No,11 in his statement recorded under section 342, Cr.P.C. So far as conduct of the appellant Amjad is concerned, he not only caused one injury but caused six injuries with a sharp edged weapon. The appellant also got recovered on 22-7-1999 a Toka (Exh.PB), Churri, cash of Rs,36,000, Jooti (P.5), silver. dole (P.6), silver Baalti (P.7), Kassi (P.8) and Ramba (P.9) which were taken into possession vide recovery memo. Exh.P.C. As there is no ocular account in this case, so, we have no other option but to believe the judicial confession, extra-judicial confession and his answer to Question No,11 in his statement recorded under section 342, Cr.P.C. in which he has admitted his guilt to have killed the deceased. So, for reasons given above we are of the considered view that the sentence which has been awarded to Amjad appellant is adequate one in the peculiar facts and circumstances of this case and the conviction and sentence awarded to him is legal, just and in accordance with the criminal administration of natural justice. No further leniency is called for, so, Criminal Appeal No,63-J of 2001 filed against his conviction and sentence is hereby dismissed. For afore-referred reasons, we find no merit in Criminal Revision No,174 of 2001 filed by the complainant for enhancement of conviction and sentence of the appellant which is hereby dismissed. We are also conscious of the fact that in a case of grave and sudden provocation, no compensation can be awarded to the convict, so, while relying on judgment of the august Supreme Court of Pakistan in Meraj Begums case PLJ 1982 SC 435, the amount of compensation of Rs,2,00;000 and imprisonment in default thereof, awarded to the appellant by the learned trial Court, is hereby set aside.