ABDUL MOBEEN LAKHO, J.---Through instant Criminal Jail Appeal, the applicant has assailed judgment dated 28.02.2013 passed by learned District and Sessions Judge Karachi (West), in Sessions Case No. 326 of 2002, arising out of FIR No.78 of 2002 registered at Police Station Mauripur , Karachi, convicting and sentencing the appellant/accused under section 302/34, P.P.C. to life imprisonment as Tazir. The complaint has also assailed the judgment dated 28.02.2013, seeking enhancement of sentence from imprisonment of life to sentence of death.
2. The brief facts of the prosecution case are that on 22nd May, 2002, at about 1400 hours, complainant Syed Tassaduq Hussain Shah son of Syed Noor Shah, resident of House No.320, Sector 4-C, Saeedabad, Baldia Town, Karachi, reported at police station that his maternal uncle namely Syed Sattar Shah son of Syed Jehan Shah a resident of House No.G-69, Budhani Goth, Latif Colony , Mauripur , Karachi resided on the above address along with his wife and children. On 20th May, 2002 , his Mummani (wife of maternal uncle) informed him on phone that on 19th May, 2002 his maternal uncle Syed Sattar Shah aged about 42 years, after having lunch was taking rest, in the meanwhile, some one knocked at the door at about 1:00 p.m. and he left with him and did not return back. On such information he went to the house of his maternal uncle and after making inquiries, started searching for him but could not find him and he on 20th May, 2002, registered a report at PS regarding missing of his maternal uncle.
Thereafter he and his relatives made efforts to trace the whereabouts of his uncle Syed Sattar Shah but could not succeed and then he went back to the police station and reported the matter to the police that some unknown persons had abducted his maternal uncle Syed Sattar Shah and he requested that action be taken in this respect.
Accordingly , the duty officer Inspector Muhammad Qadeer lodged the instant FIR under section 364, P.P.C. and investigation was entrusted to SIP Abdul Razzak Jokhio. On 25th May, 2002, during interrogation, the wife of said Syed Sattar Shah namely Mst. Rifat Batool, stated that she along with Syed Karam Hussain Shah son of Syed Waris Shah on 19th May, 2002, after having lunch, served her husband a, Glucose drink mixed with sleeping tablets and when her husband was asleep, they caused serious injuries with a sharp edged Tassa to her husband on his head, face and other parts of body and then strangulated his neck with strip/nara of shalwar and killed him.
Subsequently , after digging the wall of the under construction water tank, situated inside the house they buried the dead body of the deceased and covered the same with cemented blocks.
3. The I.O. called a female constable and on the pointation of Mst. Rifat Batoo l, recovered the dead body of deceased having injuries on his head, face, nose and other parts of body and also found a strip of shalwar around the neck of the deceased. The I.O. got the post mortem report from the MLO Civil Hospital, Karachi hearing. P.M.
No.162/2002 and handed over the dead body to the complainant for its burial. During the course of investigation, the I.O. got recorded the confessional statement of Mst. Rifat Batool before the learned III-Judicial Magistrate, Karachi-W est on 27th May, 2002 and after recording of confessional statement she was remanded to jail.
Subsequently , the I.O. went to Punjab for arrest of accused Syed Karam Hussain Shah and arrested him on 4th June, 2002 from Mohalla Nawab, within the jurisdiction of PS Tamman, Chakwal and brought him to Karachi and then on his pointation recovered the crime weapon on 7th June, 2002 and also got recorded his confessional statement by the concerned Judicial Magistrate on 8th June, 2002.
4. After completion of usual investigation, the I.O. amending the section 364, P.P.C. to 302/34 submitted the challan against the accused persons to face trial. The charge against both accused persons was \ framed on 5th June, 2003 vide Ex.2, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined PW-1 complainant Syed Tassaduq Hussain at Ex.6, who produced carbon copy of FIR, memo of inspection of place of incident, inquest report, memo of inspection of dead body of deceased, receipt of handing over of corpse of deceased, memo of arrest of male accused, memo of recovery of crime weapon and memo of pointation of dead body of deceased and recovery as well as arrest of female accused as Ex.9 to 15 respectively , PW-2 Inspector Muhammad Qadeer at Ex.16, PW-3 Malik Nisar Ahmed son of Abdullah Shah Awan at Ex.17, PW-4 Zamrud Khan son of Ameer Khan at Ex.18, PW-5 female constable Mst. Shafida Parveen at Ex.19, PW-6 ASI Ghulam Hussain at Ex.20, PW-7 SIP Abdul Razzak at Ex.21, who produced nine photographs pasted on three papers, post mortem report, report of chemical examiner , rough sketch of place of incident, seven photographs taken at the time of recovery of dead body pasted on two papers, final report issued by concerned MLO, photocopy of cause of death certificate, photocopy of letter addressed to the concerned Judicial Magistrate for recording of confessional statements of both accused persons as Ex.21-A to 21- M respectively , PW-8 Judicial Magistrate Mumtaz Ali Solangi at Ex.25, who produced written request for recording of confessional statement of female accused, her confessional statement, written request for recording of confessional statement of male accused and his confessional as Ex.25-A to 25-F respectively , PW-9 Dr. Imran Sarwar at Ex.26, whereas PW Hakim Habib son of Muhammad Khan has not been examined by the prosecution being untraceable in this regard, the statement of I.O. has been recorded vide Ex.24 and then the learned DDPP for the State closed the prosecution side vide statement Ex.27. It is pertinent to mention here that during the trial, the female accused after getting bail absconded away and the proceedings under sections 87/88, Cr.P.C. have been completed.
6. The statement of accused Syed Karam Shah was recorded under section 342, Cr.P.C. vide Ex.28, wherein he denied the allegations and stated that he is innocent and falsely involved in the case retracting from is earlier confessional statement. However , he has not examined himself on oath nor called any witness in support of his defense. Accused Rif fat Batool had absconded after recording her confessional statement.
7. Learned counsel for the appellant contended that the appellant has been falsely implicated in this case with mala fide intention and ulterior motives; that nothing incriminating has been recovered from him; that the sharp edged Tassa has been foisted upon him; that the report of MLO is managed one; that there are major contradictions in the statements of prosecution witnesses; that the impugned judgment is the result of misreading and non-reading of evidence; that no identification parade was conducted; that there is violation of section 103, Cr.P.C.; that the learned trial court has not applied its judicial mind while convicting the appellant. He further submitted that prosecution is duty bound to prove its case beyond a reasonable doubt and the present case'is not free from doubts. Lastly he prayed that appellant may be acquitted Sir extending him the benefit of doubt. In support of his contentions he has placed reliance on the cases of Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034 ), Ali Bux and others v. The State (2018 SCMR 354) and Zahoor Ahmed v. The State (2017 SCMR 1662 ).
8. Learned Deputy Prosecutor General contended that the appellant is a dangero us and desperate criminal; that the appellant voluntarily confessed to his crime, that he led the police party to the murder weapon which was recovered on his pointation having been cleverly hidden so no one knew its whereabouts; that the medical evidence supported the prosecution case ; that the witnesses including priva te persons in their respective depositions have supported the case of the prosecution and implicated the accused/ appellant with the commission of offence without any major contradiction s. Finally , he submitted that the prosecution has successfully proved its case against the appellant beyond shadow of reasonable doubt and the learned trial court has rightly convicted the appellant and that the appeal should be dismissed. In support of his contentions he has placed reliance on the cases of Hamid Mahmood and another v. The State (2013 SCMR 1314 ), Nazir Shehzad and another v. The State (2009 SCMR 1440 ), Zakir Khan and others v. The State (1995 SCMR 1793 ), The State v. Manzoor Ahmed in Cr. Appeals Nos. 1 and 2 of 1965 (PLD 1966 Supreme Court 664) and Muhammad Sharif v. The State (2011 SCMR 1046 ).
9. The complainant has adopted the arguments of the learned DPG and has submitted that this was a case which justified the enhancement of the senten ce from life to death as it was a cold blooded murder and there were absolutely no mitigating circumstances.
10. The appellant has read out the entire evidence and we have heard learned counsel for the parties and perused the entire record available before us and considered the relevant law including the cases cited at the bar .
11. Admittedly there is no eye-witness to the murder which makes this a case of circumstantial evidence and thus we have considered the prosecution evidence with great care and caution.
12. In our view the fate of the prosecution's case hinges upon the confessional statement made by the appellant before a Magistrate. The main issue before us is whether we can safely relay on the judicial confession of the appellant and if so whether there is any corroborative evidence in support of the same.
13. For ease of reference .we set out the judicial confession of the appellant below: STATEMENT OF ACCUSED KARAM SHAH UNDER SECTION 164, CR.P .C.
Question;- What have you to say?
Answer:- I Karam Shah son of Waris Shah do hereby state on oath that I was running a hotel at my village near Lari-Aada about 3/4 months earlier . At that time I used to visit at the house of Riffat. I and Riffat involved in love to each other . I used to do intercourse with her. After three months Riffat told me that Sattar Shah phoned and called her at Karachi that he is ill. Riffat asked me to accompany with her to Karachi. I along with Riffat and children went to Karachi. I started residing in SITE area, while Riffat started residing with his husband and children at Budhni Goth Mauripur . I used to visit at the house of Sattar Shah in absence of her husband and do intercourse with Riffat.
One day Sattar Shah seen and beaten us. He kicked me out from home. After passing three days I went to his home and beg my pardon from Sattar Shah that I made a mistake and forgive me. He said; I pardon you with a warning not to repeat such act. On the same day I remained with Sattar Shah at his home and took meal with him.
After having meal, I and Riffat made plan that he may be finished today and we get marry to each other after three years. On the said day at 0800 hours, by mixing intoxicating pills in Glucose drink served to Sattar Shah and children. I brought accompanied the intoxicating pills from Multan. I and Riffat did not drink the sharbat. After drinking the sharbat, Satter Shah and children slept away . On that day in between 0800 and 0900 hours of the night time, I inflicted the Tessa blow on the head of Sattar Shah and the blood oozed out.
I also inflicted the Tessa blow on various parts of the body . Riffat taken the Tessa from me and inflicted the blows on his nose, owing to which he started palpitate. I asked her about rope and she provided me rope and I strangulated and killed him. I cleaned the blood and put earth at him. Then took the dead-body inside the tank and after burial constructed the wall with blocks. Riffat Shah carried and handed-over the blocks to me. Thereafter Riffat Shah phoned to Tassadaq Shah in morning time that two persons called to Sattar Shah at 12:00 hours and since then he did not return back. I was present at home. Thereafter , Tassaduq Hussain Shah get lodge the report with P.S Mauripur . On 22.05.2002, I accompanied with Tassadaq Shah went to Saeedabad. Riffat Shah told me in absence of Tassaduq Shah that you may run away . I went to Punjab at my village Multan. On 04.06.2002 at about hours, the police party of P.S Mauripur apprehended me from my area, Nawab Khel and brought at P.S. Mauripur Karachi. Then I got recovered Tessa the weapon of murder of police from the house of Sattar Shah. This much is my statement.
14. It is settled law that a retracted judicial confession can be legally IA admissible and used against its maker in certain circumstances. In the case of Muhammad Amin v. The State (PLD 2006 Supreme Court 219), it was held at P.224 Para 9 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) 313 as 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 consequence of accusation, is explicable fully by the proximity of those consequences and need have no connection whatsoever 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:- "As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself and if the confessions were found to be true and voluntary , then there was no need at all to look for further corroboration. 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."
15. We have the confessional statemen t of the appellant free from all taints. In our view it has been made voluntarily without duress or inducement; is truthful and fully fits in with the prosecution case and that it has been recorded in accordance with the law with all relevant safeguards being complied with by the judicial magistrate and hence we rely on the same.
Having found that we can safely rely on the confession we need to see whether there is any corroboratory or supportive evidence available on record.
16. In our view the following corroborative and /or supportive evidence is available on record to support the confession.
(i) A missing report was filed almost immediately with the police and thereafter an FIR was promptly lodged and as such there is no delay in filing the FIR and no time for the police or the complainant to concoct a false case against the appellant.
(ii) The medical evidence supports the confession.
(iii) The fact that the murder weapon was also found by the police on the pointation of the appellant carefully hidden behind the wall also which location only the murderer could have known about and no other party also supports the prosecution case.
(iv) A close scrutiny of the evidence available on record reflects that all the prosecution witnesses have fully supported the case of the prosecution and implicated the appellant with the commission of the offences so charged. There are no major contradictions in the evidence of the PWs and even any minor contradictions which there may be have not materially effected the prosecution case and can be ignored. In this respect reliance is placed on Zakir Khan v . State (1995 SCMR 1793 ).
(v) No evidence of enmity in terms of mala fide or ulterior motive has been brought on record by the appellant which might have actuated any other PWs including the police to falsely implicate the appellant in this case. No identification parade was -necessary as the complainant PW-1 Tassaduq Hussain Shah knew the appellant who in any event led them to recovery of crime weapon.
17. Thus based on the above discussion and our reassessment of the evidence we find that the prosecution based on circumstantial evidence whereby the different pieces of evidence which we have discussed above have made an unbroken chain where one end of it touches the dead body-and the other the neck of the accused (In this respect reliance is placed on Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274) has proved its case against the appellant beyond a reasonable doubt and the conviction in the impugned judgment is upheld.
The next issue is one of sentencing.
18. The appellant has been sentenced to life imprisonment however the complainant has sought the enhancement of sentence from life to death on the basis that death is the usual sentence in cases of murder , that it was a cold blooded premeditated murder and that there are no mitigating circumstances.
19. In our view, notwithstanding the medical reports, it is not completely clear whether the appellant's death was caused by strangulation or injuries from the tassa blows which according to the appellant's confession, which we are relying on, was made by the appellant and his absconding co-accused and in such circumstances generally the superior courts when it is unclear which of the accused actually caused the murder often apply the lesser sentence of life imprisonment. In this respect reliance is placed on Allah Bux and others v. The State (2018 SCMR 354), Atta-ur-Rehman and another v . The State (2018 SCMR 372 ).
20. In our view taking into account the fact that it is unclear whether it was the appellant or the co-accused whose attack on the appellant with rope by stran gulation and causing wounds with tessa actually caused the deceased to die whilst exercising judicial caution by taking guidance from the Supreme Court authority of Ghulam Mohyuddin v. State (2014 SCMR 1034 ) where it was stressed as under whilst dealing with sentencing in a murder case in the following terms; "A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life impriso nment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other , however , it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquitt al, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possib le, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed. (bold added)
21. Hence, for the reasons mentioned above we dismiss the criminal revision for enhancement and maintain the conviction and sentence awarded by the trial Court in the impugned judgment whilst dismissing the appeal against conviction.
22. The appeal and criminal revision application stand disposed of in the above terms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.