1. ' SHAHID ANWAR BAJWA, J.---The appellant was tried for an offence under section 302, P.P.C. And vide judgment dated 26-8-2009 convicted and sentenced with punishment of death. Criminal Jail Appeal has been filed by the appellant and confirmation Case No,6 of 2009 has been submitted for confirmation.
2. ' F.I.R No,119 of 2009 was recorded at Police Station, B-Section, Khairpur, on 20-9-2007 at 1230 hours for an incident alleged to have taken place at 1115 hours. Complainant was one Muhammad Ibrahim. He stated that 6/7 years ago he had married his daughter Mst. Naheedan (the deceased) with the appellant. The complainant further stated that the present appellant and his two brothers Nisar Ahmed and Imamdino (the two brothers were also tried but acquitted vide the same judgment) were annoyed because Mst. Naheedan used to come to the house of her father and other relatives. On the fateful day, the complainant stated while he was present in his house, his daughter came there and was talking to a relative when the present appellant, husband of Mst.
3. Naheedan showed annoyance and forcibly took her to his home. At about 1115 hours, the complainant stated, he heard cries from the house of the appellant and then the complainant along with prosecution witnesses Muhammad Ashraf and Muhammad Arshad after giving call went to the house of the appellant and saw that the appellant had hatchet in his hand and co- accused Nisar Ahmed and Imamdino were armed with sotees' and the three were causing hatchet and lathi blows to Mst. Naheedan. She fell down on the ground. The complainant and his two companions pleaded in the name of Holy Quran and the accused persons went away. It was further stated by the complainant that the deceased Mst. Naheedan had received "hatchet and lathi injuries on her head, neck and other parts of the body" and she died on the spot. After leaving witnesses over the dead body the complainant came to the police station and lodged the F.I.R.
4. ' At the trial, the complainant Muhammad Ibrahim appeared as P.W.1, Muhammad Ashraf appeared as P.W.2, Abdul Hameed fnashir and Shahbaz Dino mashir appeared as P.Ws.3 and 4, Dr. Sughra Naqvi as P.W.5, tapedar Abdul Razzak as P.W.6, Magistrate Tahir Hussain, who recorded statement of the appellant under section 164, Cr.P.C, as P.W.7 and I.O. Ali Raza as P.W.B. After statement of the appellant was recorded under section 342, Cr.P.C, he was convicted vide the judgment under challenge.
5. ' Mr. Qurban Ali Malano, learned counsel for the appellant who had volunteered to appear on his behalf and was nominated as such vide order dated 21-9-2010, made the following submissions:--
(1) That at the time of framing of charge no Advocate was provided to the present appellant.
6. Advocate was provided for the first time on 2-4-2009 and evidence of P. W.1 was recorded on the same day.
(2) P. W . 1 Muhammad. Ibrahim in his evidence merely stated that blows were given to Mst.
7. Naheedan and it is not stated by him that hatchet blows were given.
(3) Ocular evidence is at variance with medical evidence because in the medical evidence there are only two injuries and both-the injuries were stated to have been caused by a sharp weapon and there is no injury by a blunt weapon whereas in the F.I.R it is stated that two persons had lathies and one person had hatchet and all three were causing blows.
(4) Although the appellant was arrested on the date of the incident but his arrest was shown on 25-9-2007.
(5) Confessional statement was recorded after seven days of arrest of the appellant, if the date of arrest as shown by police is believed to be true and after 11 days of arrest if date of arrest as claimed by the appellant is treated as true.
(6) It was admitted by P.W.1 that one Mst. Rasheedan was also present there. Said Mst. Rasheedan had not been produced as a witness and she had stated in her 161, Cr.P.C. Statement that it was only she and Allah Wasayo who were present at the time of incident.
(7) The blood-stained earth and the hatchet were sent for chemical examination on 25-10-2007.
8. Incident had occurred on 20-9-2007 and the hatchet has been shown to have been recovered on 28-9-2007. There is no explanation for delay in sending the blood-stained earth and the hatchet for chemical examination. Moreover recovery of hatchet was not put to the appellant at the time of recording statement under section 342, Cr.P.C.
(8) Death sentence has been awarded to the appellant on the basis of only confessional statement. Such confessional statement was not voluntary and the appellant was not confronted with such confessional statement when his statement under section 342, Cr.P.C. Was recorded.
9. ' Learned counsel relied upon Abdul Sattar v. State (2002 PCr.LJ 51), Muhammad Shah v. State (2010 SCM R 1009) and Riaz Ahmed v. State (2010 SCM R 846).
10. ' Mr. Syed Sardar Ali Shah Rizvi, learned Assistant Prosecutor-General made the following submissions:--
(1) Time and date of incident is not disputed.
(2) Confessional statement was recorded within seven days of the date of arrest. In any case delay in recording the confessional statement is not fatal to the case of the prosecution. He relied upon Majeed v. State (2010 SCM R 55) and Ghulam Qadir and others v. State (2007 SCM R 782). Hatchet was recovered on the pointation of the appellant. It was stained by blood and was sealed on the spot. No question in this regard was asked in the cross-examination.
(3) Though there is some discrepancy in the distance of residence of different witnesses but such discrepancy is not material. Learned counsel relied upon MOKHA v. Zulfiqar and 9 others (PLD 1978 SC 10).
(4) Solitary confession standing on its own if voluntary is sufficient for recording conviction. Learned Assistant Prosecutor-General relied upon Allah Bakhsh v. Shamim and others (PLD 1980 SC 225) and Ahmed and others v. The State (1987 SCM R 2019).
11. ' While exercising his right of reply Mr. Qurban Ali Malano, learned counsel for the appellant relied upon Nadeem alias Nanha alias Billa Sher v. The State (2010 SCM R 949) and contended that all the witnesses are interested witnesses and therefore benefit of doubt must be given to the appellant.
12. We have considered the submissions made by the learned counsel and have also gone through the record as well as the case-law cited at the bar.
13. First contention of Mr. Malano was that at the time of framing of charge the appellant was not represented by a counsel and Advocate was for the first time provided to the appellant by the trial Court on 2-4-2009 and evidence of P. Ws. Was recorded on the same day. Perusal of record and proceedings reveals that though the Advocate was appointed on the same day and examination- in-chief of the P.W.1 was recorded on the same day, however, after recording the examination- inchief the matter was adjourned to 7-4-2009 when the witness was recalled and cross- examination was conducted. The learned counsel for the appellant in the Court below has not at all objected to recording of A examination-in-chief on the day when he was appointed for the first time and nowhere contended that the appellant has been in any way prejudiced in his defence by lack of representation through a .Counsel on the day when the charge was framed. Since no such miscarriage of justice has been pleaded by Mr. Malano and is not discernible from the record and proceedings of this case, the contention of the learned counsel is, therefore, without any substance.
14. ' Next contention of Mr. Malano was that recovery of hatchet has not been put to the appellant at the time of recording statement under section 342, Cr.P.C. And therefore it could not be used as evidence against the appellant'. -Learned counsel relied upon Abdul Sattar's case (supra). In this case the appellants were not confronted with the crime weapon while recording their statement under section 342, Cr.P.C. A Division Bench of this Court held as under:-- "It is settled principle of law that every incriminating piece of evidence is to be brought to the notice of the accused and unless he is confronted with the material available in evidence against him, the conviction cannot be sustained."
15. ' It was observed by the honourable Supreme Court in the case of Muhammad Shah (supra) as under:-- "It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. In which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross- examination or reexamination are also required to be put to the accused, if they are against him, because the evidence means examination-inchief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984."
16. In the present case while recording statement under section 342, B Cr.P.0 in question No,4 recovery of blood-stained earth was put to the appellant. However, in Question No,6 the appellant was asked the following question and he gave the following answer:-- ' Q.No,6. You have heard the prosecution case and it has come in evidence that on 28-9-2007 you have voluntarily produced hatchet from date palm garden of Ali Dino Abro and admitted that- it is same which you used while committing this crime and Chemical Examiner has reported it was stained with human blood, what you have to say?
17. ' Ans: Yes -sir, I had produced hatchet at 'A' Section Police Station.
18. ' Therefore, contention of Mr. Malano that recovery of hatchet was not put to the appellant at the time of recording statement under section 342, Cr.P.C. Is not correct and is not borne from the record. Mr. Malano submitted that ocular evidence is at variance with the medical evidence. In the medical evidence two injuries are alleged to have been caused by a sharp weapon and there is no statement regarding any injury caused by a blunt weapon and in the F.I.R. It is stated that while the appellant was armed with hatchet his two brothers were armed with lathies and all the three were giving blows to the deceased. We have not been able to persuade ourselves to accept the evidence of P.Ws.1, 2 and 3. In the F.I.R. It was stated by the complainant that when he heard the cries from house of appellant "I Muhammad Ashraf son of Rahim Bux and his son Muhammad Arshad Siming after giving hakal went to the house of Altaf". When the complainant appeared in the witness box he stated that "house of accused Altaf is situated after 2/3 houses from my house and at about 11-15 a.m. I heard cries from house of accused Altaf on which we rushed and I, Arshad and Muhammad Ashraf reached there". In cross-examination he stated that he, Ashraf and Arshad came running on hearing the cries. Thereafter he stated "I reached at the place of vardat first of all and then P.W. Ashraf and then P.W. Arshad and they reached after 5 to 10 minutes of my'arrival". It may be pointed out that the witnesses stated the distance between his house and the place of vardat is about 50 paces. P.W.2 Muhammad Ashraf stated that after hearing cries from the house of the appellant, "Muhammad Ibrahim also raised cries that his daughter was being killed. I, Muhammad Ashraf accompanied complainant Muhammad Ibrahim and we rushed to the house of accused Altaf". Muhammad Arshad was not produced as a witness. When the I.O. Came as a witness, he stated "house of the complainant is at a distance of half or one KM from the place of vardat. Tapedar Abdul Razzak P.W.6 produced a map but did not state as to where house of P.W.
19. Muhammad Ashraf was. Now the inconsistencies in the evidence are firstly whereas in the F.I.R. It is stated that Muhammad Ibrahim, Arshad and Muhammad Ashraf after giving hakal went to house of Altaf, Muhammad Ibrahim has not talked of any cry by him and stated that he, Arshad and Ashraf reached there at the same time. Muhammad Ashraf mentioned a cry by Muhammad Ibrahim and then states that he accompanied the complainant. He does not mention about his son Arshad accompanying him. However, Muhammad Ibrahim in his cross-examination stated that Muhammad Ashraf and Arshad reached after 5 to 10 minutes. Now at one place Muhammad Ibrahim says that they reached at the same time and at another place he states that P.W.2 and his son reached 5 to 10 minutes after he reached the place of vardat. Muhammad Ashraf in his statement says that he was present in his house. He does not state as to what is the distance of his house from the house of complainant. But tapedar does not show in the map house of Ashraf.
20. These two facts particularly i,e, whether the complainant reached first and P.W.2 and his son reached there 5 to 10 minutes later and secondly what was the distance between the place Of vardat and the house of complainant. P.W.2 makes no statement in this regard and 1.0. States that it is half to one kilometer; thirdly in the F.I.R. And in statement of P.W.1 there is no statement that P.W.1 cried that his daughter was being killed whereas P.W.2 says that complainant cried that his daughter was being killed. All this throws doubt on the evidence of P.W.1 and P.W.2. Therefore, no reliance can be placed on this part of the evidence. In view of this conclusion that we have reached, contentions of learned counsel for the appellant that there are contradictions in ocular and medical evidence, contradiction in statement of Muhammad Ibrahim regarding blows given by all the three persons, presence of Mst. Rasheedan and Allah Wasayo etc. Need not be adverted to.
21. This brings us to the confessional statement. In the confessional statement recorded before the Judicial Magistrate, the appellant stated as under:-- "From the date I married Mst. Naheed Siming when I used to go for earning livelihood, she used to go to the houses of neighbourers without my consent. Thus I suspected her character and on this point we used to quarrel with each other. On the fateful day I brought her from the house of her parents. She said to me that she would get me killed whereupon I became annoyed and killed her by hatchet blows."
22. ' Relevant para from the statement under section 342, Cr.P.C. May also be produced.
23. ' Page 119 Question No,3 ' Page 121 Question Nos.6, 7 ' Page 123 Question No,11.
24. ' Q.No,3. You have heard the prosecution case and it has come in evidence that motive of this case is that you were annoyed with your wife Mst. Naheedan on her visit of neighbours and on.The day of incident she came in the house of Muhammad Shareef who happened to be her uncle to enquire about health of nephew of Muhammad Shareef which caused annoyance to you and you committed her murder after taking her to your house, what you have to say?
25. Ans: Yes sir.
26. ' Q.No,6. You have heard the prosecution case and it has come in evidence that on 28-9-2007 you have voluntarily produced hatchet from date palm garden of Ali Dino Abro and admitted that it is same which you used while committing this crime and Chemical Examiner has reported it was stained with human blood, what you have to say?
27. Ans: Yes sir, I had produced hatchet at A Section Police Station.
28. ' Q.No,7. You have heard the prosecution case and it has come in evidence that on 1-10-2007 you voluntarily recorded judicial confessional statement before IVth Civil Judge and Judicial Magistrate, Khairpur, what you have to say?
29. Ans: Yes sir.
30. ' Q. No,11. Do you say anything else?
31. Ans: Sir I have committed murder of my wife. Nisar and Imam Dino are my brothers and they are innocent.
32. The above clearly indicates that the appellant clearly and fairly stated that he committed the offence of murder of his wife Mst. Naheedan. It is settled law that the conviction can be based on a confessional statement standing alone. If any authority is needed, one may refer Mazhar Hussain v.
33. State (1990 M LD 195), State v. Minhun alias Gul Hassan (PLO 1964 SC 813), Ghulam Qadir and others v. The State (2007 SCM R 782), Adalat alias Muhammad Ali alias Iqbal and others v. The State and others (2009 MLD 875), Zulfiqar Ali v. The State 998 PCr.LJ 1700), Emperor v. Lal Bakhsh (AIR 1945 Lahore 43) and Sadhu Singh and others v. Firm Kahan Singh and others (AIR 1944 Lahore 473).
34. Judicial confession by the appellant has been reproduced above. The appellant has clearly admitted of having murdered his wife because he suspected her character. Relevant part of his statement under section 342, Cr.P.C. Has been reproduced above and he has admitted that he voluntarily recorded the judicial confession. He has admitted that he murdered his wife and he has also given the motive. Therefore, the judicial confession is voluntary and standing alone is sufficient to convict the appellant.
35. ' This brings us to the question of sentence, In Ghulam Qadir's case (supra) conviction was based on confession. F.I.R. Was recorded on the report lodged by a sepoy of Levies where he had stated that it has come to his knowledge that two deceased persons were shot at by unknown persons.
36. After registration of F.I.R., investigation commenced and the car allegedly used in the crime was traced and eventually the appellants were arrested. The Kalashnikov used in the commission of crime was recovered. The trial Court while convicting imposed punishment of imprisonment for life and this was not interfered by the Supreme Court. In Adalat's case (supra), it was alleged that both the appellants committed lurking housetrespass and caused murder of three persons by means of a hammer. High Court observed that the evidence is circumstantial in nature and therefore it warranted lesser punishment. Imprisonment for life was maintained by the High Court.
37. In the present case the sole basis of conviction, in our opinion, is the confessional statement of the appellant and his statement under section 342, Cr.P.C. And direct evidence does not seem to deserve much reliance. Therefore, interest of justice would be served if while conviction of the appellant is maintained, however, sentence of death is converted into imprisonment for life.
38. ' With the above modification in sentence, this criminal jail appeal is dismissed and the Reference is disposed of in the above terms.