JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J. -- Rab Nawaz alias Bablu son of Shah Nawaz, caste Ghakhar, resident of Village Gorsiyan, Tehsil Sohawa, District Jhelum and Adeel alias Dillu son of Muhammad Aslam, resident of Village Gudari, Tehsil Sohawa, District Jhelum, appellants, were involved in case F.I.R. No. 184, dated 25.07.2006, offence under Sections 302, 109, 34, PP C., lodged at Police Station Sohawa, District Jhelum and were tried by Ch. Imtiaz Ahmed, learned Additional Sessions Judge, Jhelum. The learned Trial Court seized with the matter in terms of judgment dated 12.02.2009, convicted Rob Nawaz alias Bablu accused/appellant under Section 302(b), P.P.C., and sentenced to death as Tazir. The appellant was. Also burdened to pay Rs. 1,00,000/- as compensation as provided under Section 544-A, Cr.P.C, and in case of default in payment thereof, to undergo S.I. For one year. Vide the same judgment, Adeel alias Dillu appellant was awarded life imprisonment as Tazir under Section 302(b), P.P.C., and was also directed to pay Rs. 50,000/- as compensation in terms of Section 544-A, Cr.P.C, failing which he was directed to further suffer S.I.
For six months. Adeel alias Dillu was also extended the benefit of Section 382-B, Cr.P.C.
2. Feeling aggrieved by the judgment of the learned Trial Court, Rab Nawaz alias Bablu appellant assailed the same through filing Criminal Appeal No. 56 of 2009, whereas, Adeel alias Dillu appellant challenged his conviction by filing Criminal Appeal No. 102/2009, while the learned Trial Court forwarded Murder Reference No. 18 of 2009 for confirmation of death sentence inflicted upon Rob Nawaz alias Bablu appellant in terms of Section 374, Cr.P.C. As all the matters are arising of of the same F.I.R., therefore, these are being disposed of through this single judgment.
3. Prosecution case, lodged on the complaint (Exh.PC) of Muhammad Azad (PW-14) is that he is resident of Gorsian and now-a-days residing with Muhammad Gulfraz, his son (deceased) and Mst. Naseem Akhtar, his daughter4n-law (bahoo) in Nai Abadi, Sohawa. Son of the complainant Gulfraz was Chowkidar at Veterinary Hospital, Sohawa having duty hours from 3:00 p.m. To 10:00 p.m. On 24.07.2006, complainant alongwith his daughter-in-law (bahoo) Mst. Naseem Akhtar came to bazar to purchase commodities and was going to enquire about Gulfraz to Veterinary Hospital at about 9:30 p.m. Whereas Gulfraz were sitting on vegetable Khokha of Sh. Raza. As soon as they reached near hospital they saw that Adeel alias Dillu son of Muhammad Aslam, caste Ghakhar, resident of Gadri armed with pistol, Bablu. Son of Shah Nawaz, caste Ghakhar armed with pistol and Faruq son of Hukamdad, caste Ghakhar resident of Gorsian emerged there. Faruq raised lalkara to murder Gulfraz on which Adeel made fire with his pistol .30-bore hitting on the front of neck of Gulfraz. Bablu (Rab Nawaz) made second fire landing on the right side of mouth of Gulfraz who being injured fell down and expired on the spot. Besides the complainant, the occurrence was witnessed by Mst. Naseem Akhtar.
4. Motive behind the occurrence was that on 13.06.2006, Ashfaq alias Gudu, paternal nephew of the complainant had murdered Shehzad Sarwar son of Qamar Zaman who is absconder and the accused persons suspected That Gulfraz provides shelter to Ashfaq alias Gudu. After the murder of Shehzad Sarwar, his brother Muhammad Arshad had come from England who now has gone back and he used to extend threats to Gulfraz to murder him and at his abetment and consultation, Adeel Faruq and Bablu had murdered Gulfraz.
5. Ilyas Ahmed, Inspector PW-20 (S.I. At the time of occurrence), on the receipt of information regarding the occurrence, proceeded to the place of occurrence and recorded complaint (Exh.PT) of Muhammad Azad on the basis of which F.I.R, was lodged. This Investigating Officer also recorded the statement of Mst. Naseem Akhtar under Section 161, Cr.P.C. The Investigating Officer prepared inquest report (Exh.PC), besides drafting application for post-mortem examination (Exh.PB). He also collected bloodstained earth from the spot and took into possession vide recovery memo Exh.PF besides taking into possession empties through recovery memo. Exh.PG. On the next day the Investigating Officer inspected the place of occurrence and prepared rough site plan (Exh.PW).
After the postmortem examination last worn clothes of the deceased were also produced before the Investigating Officer by Muhammad Akram, Constable, which he took into possession vide recovery memo. Exh.PU. On 27.07.2006, the Investigating Officer took into possession car (P-1) vide recovery memo. Exh.PE. He besides preparing site plan (Exh.PE/1) of the place of recovery, handed over the vehicle bearing registration No. GAK/7422 to Moharrar for safe custody. On the direction of the Investigating Officer and on the pointing of the prosecution witnesses, Akhtar Naqash, Draftsman (PW-8) prepared scaled site plan (Exh.PR, Exh.PR/1 and Exh.PR/2). On 02.08.2006, this Investigating Officer was transferred.
On 16.09.2006, the investigation of the case was handed over to Nisar Ahmed, S.I. (PW-11). He got issued proclamation of the accused under Section 87, Cr.P.C, and entrusted to Attiq-ur-Rehman Constable/34. As the proclamation could not be served, therefore, he submitted the challan under Section 512, Cr.P.C.
On 01.02.2008, Akhtar Ali, Inspector (PW-18), on the receipt of spy information, conducted police picket near Amral and arrested Adeel appellant. On the next day, he got physical remand of the appellant from the learned Illaqa Magistrate. During the course of investigation on 07.02.2008, Adeel appellant made disclosure and led to the recovery of pistol .30-bore (P-2).On unloading the same five live cartridges (P-3/1-5) were also recovered, which the Investigating Officer took into possession vide recovery memo. Exh.PS. He also recorded the statements of the prosecution witnesses of recovery.
On 18.04.2007, Javed Iqbal, S.I. (CW-1), on having received spy information conducted raid at Lehri road and arrested Rab Nawaz appellant. During the course of investigation, Rab Nawaz alias Bablu appellant was found innocent.
On 31.05.2008, on the direction of S.S.P. (RIB), Gulistan Khan, Inspector (PW-19) joined into investigation the accused/appellants and found both of them guilty. Moreover, this prosecution witness also recommended placing of name of Rab Nawaz alias Bablu appellant in column No. 3 of the report prepared under Section 173, Cr.P.C; while his name was earlier placed in column No. 2.
6. After preparation of report under Section 173, Cr.P.C, the same was submitted in the Court of Sessions enrooted through the learned Illaqa Magistrate in terms of Section 190(2), Cr.P.C. On the receipt of challan, the learned Trial Court vide order dated 04.01.2008 framed charge under Sections 302, 34, P.P.C. The appellants pleaded not guilty and claimed trial. Prosecution in order to substantiate its case, produced as many as twenty prosecution witnesses.
7. Ocular account in this case has come of of the statements of Muhammad Azad (PW- 14)/complainant. Mst. Naseem Akhtar (PW-15) had supplemented the prosecution version of the complainant on this account. Akhtar Naqash (PW-8) had prepared site plan of the place of occurrence. Ilyas Ahmed, Inspector (PW-20) is the main Investigating Officer of the case. Besides him investigation was also partially conducted by Akhtar Ali, Inspector (PW- 18), Gulistan Khan, Inspector (PW-19), Nisar Ahmed, S.I. (PW-11) and Javed Iqbal, S.I. (CW-1). Dr. Suresh Kumhar, Medical Officer, T.H.Q. Hospital, Sohawa, had conducted post-mortem examination upon the dead-body of Gulfraz and found following injuries on his person:- "(1) Wound of entry on right mandible area 4 cm medial to right Pinne. 1 x 1/2 cm circular margin inverted. Caller of abrasion present.
(2) Exit wound on occipital area 5 cm behind left ear irregular shape. Margins everted about 4 x 3 cm, brain and blood matters coming from wound.
(3) Wound of entry on neck right side 2 x 2 cm just lateral to the thyroid cartilage, also same characteristic as a wound of entry.
(4) Wound of exit in-between scapula at the level of seventh servical vertibrea, same characteristic wound of exit, as mentioned above. Size 2x1/2 cm. Fresh blood coming from wound."
After the post-mortem examination, the doctor rendered the following opinion:- "After post-mortem I was of the opinion that cause of death was injury No. 1 leading to brain death and heavy bleeding. So that injury No. 1 is sufficient in ordinary course of nature. This was anti- mortem caused by fire-arm. Time elapsed between injury and death with 10 to 20 minutes and time between death and post-mortem one to two hours."
Hukamdad (PW-12) is the witness of conspiracy. The statements of rest of the prosecution witnesses are formal in nature.
8. The learned ADPP vide statement recorded on 14.11.2008 gave up Arsal Nawaz and Muhammad Sarfraz, PWs on account of being unnecessary. Vide separate statements recorded on 26.11.2008 and 29.11.2008, the learned ADPP further gave up Faruq and Tariq Mehmood, A.S.I., PWs, being unnecessary. The learned DDPP on 15.12.2008 further gave up Javed Iqbal, S.I. Again being unnecessary. On 06.01.2009, the learned DDPP after tendering evidence the report of Forensic Science Laboratory (Exh.PX), report of Serologist (Exh.PY) and report of Chemical Examiner (Exh.PZ), closed the prosecution evidence.
9. The appellants were examined under Section 342, Cr.P.C., who did not of to appear as their own witnesses as provided under Section 340(2), Cr.P.C., in disproof of allegations levelled against them.
However, they opted to produce defence evidence, In reply to question why this case against him and why the PWs have deposed against him, Rab Nawaz appellant made the following deposition:- - "It was a night occurrence, which was un-witnessed. On 13.06.2006 the maternal nephew/namely Ishtiaq alias Gudul of complainant of this case committed murder of Shehzad Sarwar against whom an F.I.R. No. 142, dated 13.06.2006; under Sections 302, 109, 34, P.P.C., P.S. Sohawa was registered. I am eyewitness of that occurrence. Because of that grudge the complainant falsely implicated me in this false case to pressurize me not to appear as a witness in that case. All the PWs related inter se and inimical towards me. The complainant is an old person of 75 years having weak eye-sight and fragile physique and PW Mst. Naseem Akhtar was pregnant in those days and she gave birth to a child on 02.08.2006 at T.H.Q. Hospital, Sohawa and both were not in a position to travel such a long journey in that condition. They after due deliberations and consultations with the police have falsely implicated me in the case. The evidence of conspiracy is highly suspicious and un-trustworthy. I am innocent in the case."
In reply to similar question, Adeel alias Dilu appellant made the following deposition:- "It was a night occurrence, which was un-witnessed and the complainant on the basis of suspicion falsely . Implicated me in this case. The complainant and PW Mst. Naseem Akhtar are resident of village Gorsian which is at a distance of more than 20 kilometers from the place of occurrence and their presence at the place of occurrence is not possible. I have no relationship or any nexus with Muhammad Arshad whose brother Shehzad Sarwar was murdered by Ishtiaq alias Gudu. I had no enmity with deceased Gulfraz and no motive to kill him. The P.Ws, are related to the deceased. The complainant is an old person of 75 years having weak eye-sight and fragile physique and PW Mst.
Naseem Akhtar was pregnant in those days and she gave birth to a child on 02.08.2006 at T.H.Q.
Hospital, Sohawa and both were not in a position to travel such a long journey in that condition.
They after due deliberations and consultations with the police have falsely implicated me in the case. Recoveries are fake and the evidence of conspiracy is highly suspicious and untrustworthy. I am innocent in the case."
10. Vide statement dated 23.01.2009, while tendering in evidence the copy of F.I.R. No. 142, dated 13.06.2006 as Exh.DC, Rab Nawaz appellant closed his defence evidence. Adeel alias Dilu appellant also produced birth certificate from T.H.Q. Hospital, Sohawa, District Jhelum dated 2nd of August, 2006 regarding birth of a child to Mst. Naseem widow of Gulfraz deceased vide birth register No. 428, dated 02.08.2006 (Exh.DB) and closed his defence evidence.
11. Learned Trial Court after evaluating the evidence available on the record in the light of arguments advanced from both sides, convicted the appellants in the terms stated above.
12. Learned counsel for the appellants contended that the occurrence allegedly took place at 9:30 p.m. On 25.07.2006, whereas, the same was reported to Police Station at 11:15 p.m. i.e. After a delay of 1 hour and forty-five minutes although inter se distance between the place of occurrence and the Police Station is less than one kilometer. Learned counsel next contended that as a matter of fact the occurrence was committed by some unknown persons and that Muhammad Azad (PW- 14) and Mst. Naseem Akhtar (PW-15) had not witnessed the same and they deposed before the learned Trial Court due to close relationship with the deceased. Learned counsel vehemently contended that Muhammad Azad (PW-14), father of the deceased is a man of advance age (about 75 years at the relevant time), whereas Mst. Naseem Akhtar (PW-15) widow of the deceased was pregnant of just less than 7 days from nine months and it was not feasible for both of them to have gone to the place of occurrence in the hot season of July to witness the occurrence in that condition. Learned counsel next argued that movement of Mst. Naseem Akhtar (PW-15) in an advance pregnant stage is of of question. Moreover, in the night time it was not possible for Muhammad Azad (PW-14)/complainant to have seen that what kind of weapons were carried by the culprits. Learned counsel for the appellants next contended that it has come in the evidence of Mst. Naseem Akhtar (PW-15) that her statement under Section 161, Cr.P.C, was hot recorded by the police, whereas, it has come in the testimony of Ilyas Ahmed, Inspector (PW-20) that he had recorded the statement of PW-15 under Section 161, Cr.P.C. This glaring contradiction in the statements of the prosecution witnesses, learned counsel urged, creates doubt qua authentication of their statements and admittedly benefit of every doubt is to be extended in favour, of the accused/appellants. Learned counsel went on arguing that moreover, there are huge contradictions in the statements of witnesses qua ocular account and the purpose of visit of eye- witnesses does not sound sense, It has come in the testimony of both the prosecution witnesses that Gulfraz deceased used to bring the commodities for the house and how it was possible that he had asked his aged father and his wife, who was admittedly having an advanced pregnancy to purchase the commodities. Learned counsel next argued that as a matter of fact Ishtiaq, close relative of PW-14 and PW-15 was nominated as an accused in murder of Shehzad Sarwar in which Rab Nawaz appellant was an eye-witness and due to that grudge he has been roped in this false case. Next argument of the learned counsel was that both the appellants were found innocent by the police. Even D.S.P., Sohawa had also declared them innocent and the prosecution in order to suppress this material fact did not site said D.S.P, as a prosecution witness in the case. The medical evidence, learned counsel agitated also does not advance the prosecution case. Learned counsel next argued that learned Trial Court was not justified in convicting the appellants while basing upon such a shaky evidence. Therefore, the case of the appellants is fit for their clean acquittal.
13. On the other hand, learned Law Officer contended that the F.I.R, was promptly lodged and although the inter se distance is not too much, however, neither the complainant nor widow of deceased were having any conveyance to report the matter to the police at once. Learned Law Officer next argued that both the prosecution witnesses of ocular account had no enmity with the appellants for their false implication in the instant case. Even otherwise, it was argued that the occurrence is admitted and ordinarily real kith and kin do not substitute the actual culprits. The recovery of pistol .30-bore also strengthens the prosecution case, It was further contended that medical evidence fully substantiates the prosecution case as the injuries mentioned in the F.I.R, were 'duly found present on the person of the deceased. The report of Forensic Science Laboratory is also positive. Learned Law Officer submitted that as the investigation was hot conducted fairly, therefore, on the application of the complainant, S.S.P., Regional Investigation Branch, entrusted the same to Gulistan Khan, Inspector (PW-19), who found both the appellants connected with the occurrence, It was next argued that both the appellants also remained absconders. The prosecution evidence is trust worthy and it was also argued that the learned Trial Court while dealing each and every aspect of the prosecution case on the touchstone of material available on record rightly convicted the appellants and the reasoning advanced by the learned Trial Court does not invite interference by this Court.
14. We have given our anxious consideration to the arguments advanced from both sides and perused the record with able assistance of learned counsel for the appellants, as well as learned Law Officer.
15. It is cordial principle of law that the prosecution is under bounden duty to establish its case beyond reasonable doubt, In this case to discharge its duty, prosecution led the ocular account, medical evidence and recovery as far as accused Adeel is concerned, report of Forensic Science Laboratory and the period of absconsion of both the appellants was also advanced as incriminating evidence. The prosecution evidence is to be evaluated on the judicial parlance to determine whether the evidence adduced by the prosecution is sufficient to convict a person on the capital charge or the same is deficient as far as conviction inflicted by the learned Trial Court is concerned.
Ocular account in this case has been furnished by the statements of Muhammad Azad (PW-14) and Mst. Naseem Akhtar (PW-15). The same is coming from a source, which is squarely related to the deceased. Muhammad Azad (PW-14) is the father of the deceased, whereas, Mst. Naseem Akhtar (PW-15) is widow of the deceased. The most crucial aspect, which this Court has to take into consideration, is whether the presence of these witnesses at the relevant time is justifiable keeping in view the material available on the record. To evaluate the -same, we have gone through the evidence as a whole. Both the witnesses of the ocular account i.e. PW-14 and PW-15 have tried to establish their presence with an intent to have approached the place of occurrence as they had to purchase some commodities from the bazaar to be utilized in the chehlam of wife of PW-14 and mother-in-law of PW-15. Both the prosecution witnesses are at variance regarding the time of departure from the house to purchase the commodities and even the kind of commodities and the time of reaching at the place of occurrence, It also goes without saying that at the odd hours whether commodities including meat etc. Can be available at the shops located in the village. As far as statements of this set of evidence qua the time of reaching the place of occurrence i.e. 9:30 p.m. Is concerned, both are consistent at the point that when they reached there all the accused persons were already present and soon they reached the occurrence had taken place. This aspect of the case squarely calls for scrutinizing the evidence of these prosecution witnesses with utmost care and caution. Would it be deemed essential the accused persons were waiting that someone will come from relationship of the deceased to become witness at a belated stage or was that a chance that these two prosecution witnesses approached the place of occurrence and soon they reached there, the occurrence had taken place. Another important aspect of this case is that according to the prosecution own case at the place of occurrence, 10/12 persons gathered soon after the occurrence and even patrolling police also approached there, It is also the prosecution own case that the place of occurrence is surrounded by 10/12 Khokhas and all were open at the time of occurrence. Amongst those the Investigating Officer claims to have recorded the statements of two persons namely Sheikh Raza and Tanveer. Sheikh Raza would be the star witness in the case as it is case of the prosecution that at the time of occurrence the deceased was sitting in that Khokha besides Sheikh Raza. His statement was also recorded under Section 161, Cr.P.C.; wherein it finds mention that two unknown persons while boarding on a car had approached there and after committing the occurrence they had disappeared, It was categorically stated by the said witness that PW-14 and PW-15 were not present at the place of occurrence and they were called from the house to become witnesses. If it is so or it is presumed to be then non-production of said Sheikh Raza and Tanveer during the course of trial would squarely call for adverse influence and the same would be seen with suspicion, It is established principle of law that withholding of best evidence is violative of Article 129(g) of the Qanun-e-Shahadat Order, 1984 and as such the adverse influence would be drawn against the prosecution. This aspect of the case further lends support from the available data on the record that there is previous enmity of murders between the parties and both the prosecution witnesses are interconnected. PW-14 himself was one of the accused in a murder case way back in the year 1966. Similarly the deceased was one of the suspects providing shelter to Ishtiaq alias Ishtiaqi involved in a murder bearing F.I.R. No. 142 of 2006, lodged at Police Station Sohawa, Rawalpindi under Section 302, P.P.C., in which Shehzad Sarwar was murdered and there was apprehension that the said accused, who is still as proclaimed offender, was being given shelter by the deceased and that was the motive alleged by the prosecution while lodging the instant case. Rab Nawaz alias Bablu appellant, being one of the eye-witnesses of that occurrence, his involvement in the instant case due to that very fact cannot be ruled of. Similarly, the involvement of Adeel alias Dilu due to previous litigation also makes sense.
The physical capability of the prosecution witnesses is also a question to be resolved with care and caution, It is in the statement of Mst. Naseem Akhtar (PW-15) that Muhammad Azad (PW-14) was having a very feeble physique and weak eyesight, whereas, PW-15 herself was at an advance stage of pregnancy at the time of occurrence. The source of light as per the prosecution was only one bulb, which was placed at 42 feet from the place of occurrence. Would it be presumed that a person of feeble physique having weak eyesight at the age of early 80s, would be in a position to grab the whole occurrence and depict the same at a belated stage during the course of trial when according to both the prosecution witnesses they had not raised any hue and cry when the occurrence had taken place and the accused persons remained there for 10 minutes after the occurrence which never appeals to reason and is totally contrary to the statements of the other prosecution witnesses. The relationship of PW-14 and PW-15 with the deceased in this eventuality and their conduct is entirely contrary to that what has been stated by these witnesses during the course of trial.
During the course of investigation no recovery was affected from Rab Nawaz alias Bablu appellant whereas recovery effected from Adeel was after the lapse of two years and the report of the same though is positive but during the course of investigation, two Investigating Officers namely Muhammad Javed, S.I. And Ashraf, D.S.P, to whom the investigation was entrusted on the asking of the complainant party, declared Rab Nawaz alias Bablu appellant as innocent and his name was placed in column No. 2 of the report prepared under Section 173, Cr.P.C, but subsequent to that in the third investigation the name of this appellant was also placed in column No. 3. The learned Trial Court has altogether ignored the aforesaid aspect of the case while convicting the appellant.
Keeping in view the facts and circumstances this Court is of the view that the ocular account furnished by the prosecution in this case is not confidence inspiring, untrustworthy, full of flaws and does not lead this Court to supplement the conviction recorded by the learned Trial Court. The discrepancies pointed of by the learned counsel, for the appellants are of that nature, which hamper the prosecution case on the salient features of the prosecution version. Hence, it is not safe to rely upon the same for safe administration of criminal justice. We are fortified in our view on account of dictums of law in the cases of Siraj v. The State (1984 SCM R 1238), Zafar Hayat v. The State (1995 SCM R 896), Mst. Dur Naz v. Yousaf and another (2005 SCM R 1906), Idris AH and 7 others v. The State (PLD 1971 Dacca 254).
16. As far as the absconsion of the appellants is concerned, there is no second cavil to this proposition that- both the appellants disappeared after the occurrence. Rab Nawaz alias Bablu was taken into custody on 18.04.2007 whereas Adeel was arrested on 01.02.2008. No recovery was affected from Rab Nawaz appellant, whereas, recovery of pistol was, affected from the house of Adeel alias Dilu on 07.02.2010. The recovery from the house of Adeel is also criticized with vigour by the counsel for the appellant that what was the fun for keeping the pistol in his house for such a considerable period just to produce the same before the police, which may be used to strengthen the prosecution case against him. The report of Forensic Science Laboratory was procured through extraneous considerations. Moreover, it is established principle of law that disappearance of a person involved in a murder case rightly or wrongly is but natural and at the same time if accusations against the accused are mot based upon sound and cogent reasoning the absconsion would not come into way and that can be rushed aside. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Rasool Muhammad Vs. Asal Muhammad and another (PLJ 1995 S.C 477); wherein their lordships in the august Supreme Court of Pakistan held as under:- "Disappearance of a person named as a murderer/culprit after occurrence, is but natural whether named rightly or wrongly. Absconsion perse is not a proof of guilt of an accused person, It may, however, create suspicions against him but suspicions after all are suspicions."
17. The scrutiny of the whole prosecution case is that the prosecution has not been able to establish its case against the appellants beyond reasonable doubt. There are discrepancies in the prosecution evidence and the material available on the record is not confidence inspiring.
Consequently, the same cannot be made basis for conviction on capital charge. Even otherwise, the prosecution has already given the premium of innocence to two of the accused nominated in the crime report on the same set of evidence were acquitted against whom no appeal has been filed. Resultantly Criminal Appeal No. 56 of 2009 filed by Rab Nawaz alias Bablu appellant and Criminal Appeal No. 102/2009 filed by Adeel alias Dillu Appellant are accepted in toto. The sentence awarded by the learned Additional Sessions Judge vide judgment dated 12.02.2009 is set aside.
Both the appellants are acquitted of the charge and they are directed to be released forthwith if not required in any other case. Murder Reference No. 18 of 2009 forwarded by the learned Trial Court for confirmation of death sentence in terms of Section 374, Cr.P.C, is answered in negative.
Death sentence is not confirmed.