SABIT ULLAH KHAN, J:- This criminal appeal filed u/s 410 of the Code of Criminal Procedure, 1898 (Cr.P.C) has been directed against judgment dated 16.03.2024 rendered by the learned Additional Sessions Judge, Chitral Lower Camp Court at Drosh in case F.I.R No.364 dated 20.05.2020 registered under sections 302, 337-A(i) PPC and section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Drosh, District Chitral Lower, whereby the appellant namely Muhammad Zaman was convicted and sentenced u/s: i. 302 (b) PPC to life imprisonment (on one count) as Ta'zir for the murder of deceased Khalil- urRahman, with directions to pay Rs.10,00,000/- (rupees one million) as compensation to the legal heirs of the deceased in terms of section 544-A Cr.P.C, recoverable as arears of land revenue or in default to undergo six (06) months Simple Imprisonment (Si); ii. 337-A (i) PPC to undergo one (01) year rigorous imprisonment, with directions to pay Rs.20,000/- as doman to injured Mst. Bilqecsa or in default to undergo one month S.1; and iii. u/s 15 of the Khyber Pakhtunkhwa Arms Act, 2013 to undergo one (01) year rigorous imprisonment and to pay a line of Rs.50,0000/- or in default to undergo one-month S.I.
The benefit of section 382-B Cr.P.0 was extended to the appellant/ convict, with directions that all the sentences shall run concurrently.
2. Brief facts of the case are that on 20.05.2020 at about 02:20 am, the complainant namely Khalid Khan (PW-3) lodged a report at Drosh Hospital stating therein that on the eventful night, after offering Tarawih prayers, he was present in his house along with his deceased son namely Khalil- ur-Rahman while the wife of the appellant Muhammad Zaman and his mother-in-law Mst.
Balqeesa (daughter of the complainant), were also present inside the house; that at about 23:00 pm, Khalil-ur-Rahman along with the wife of the appellant and Mst. Balqeesa (PW-5) came out of the house and similarly on hearing hue and cry, the complainant also came out and saw the appellant Muhammad Zaman, present there duly armed with an axe, with killing intention attacked at Khalil-ur-Rahman, who sustained head injuries besides Mst. Bilqeesa was also attacked by the appellant, due to whcih, she also sustained a head injury; that as soon the injured persons were shifted to the hospital for treatment, Khalil-ur-Rahman succumbed to his injuries. The complainant, Alam Hussain and Mst. Zar Bibi, etc. were cited as eyewitness to the occurrence. A dispute involving a woman was disclosed to be the motive behind the occurrence. This report was reduced into writing by Ibrar Khan SHO (PW-9) in the shape of murasila (Ex.PW9/1), on the basis of which FIR (Ex.PA) was registered at the police station.
3. Injury sheets (Ex.PW9/2 and Ex.PW9/4) of the injured deceased Khalil-ur-Rahman and injured Mst.
Bilqeesa were prepared. Inquest repot of deceased was also prepared which is Ex.PW9/3. The injured Mst. Bilqeesa was examined by the doctor (PW-14) vide medico-legal report (Ex.PW14/2).
This PW also conducted post mortem of the deceased. The said report is Ex.PM. Blood-stained shawl of injured Mst. Bilqeesa was taken into possession vide memo Ex.PW1/1 and her sample of blood was taken vide memo Ex.PW-1/2. A Blood stained cap having the cut of axe was taken into possession vide memo Ex.PW4/3. Similarly, a coat of deceased having cuts of axe was also taken into possession vide memo Ex.PW4/4. The crime tools (axe and knife/ dagger) were also taken into possession vide memo Ex.PW4/1 dated 20.05.2020, which were allegedly produced by eyewitness Alam Hussain (PW-7) and on this score, section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 was also inserted in the case vide memo Ex.PW10/18. Site plan was drafted at the instance of the eyewitnesses, which is Ex.PW10/1. On the next day of the occurrence i.e., 21.05.2020, the accused/ appellant was arrested vide his card of arrest Ex.PW10/7. His name was corrected according to his CNIC from 'Zaman' to Muhammad Zaman vide memo Ex.PW10/8. Vide order dated 21.05.2020, three days police custody of the appellant was obtained from the Court of concerned Judicial Magistrate. During the course of interrogation, the appellant made pointation of the spot in presence of witnesses vide memo Ex.PW10/10. On expiry of the police custody, on 23.05.2020 the accused was again produced before Court of the learned Judicial Magistrate, where he recorded his judicial confession which is Ex.PW17/2, the questionnaire is Ex.PW17/1 while certificate issued by the learned Judicial Magistrate is Ex.PW17/3. On completion of investigation against the appellant, complete challan was submitted u/s 173 Cr.P.0 for trial before the learned trial Court, where he was formally indicted for commission of the offence on 19.10.2020, to which he did not plead guilty and claimed trial. In order to substantiate its case against the appellant, the prosecution produced and examined as many as 18 witnesses followed by statement of the appellant recorded u/s 342, Cr.P.C, wherein he denied the prosecution allegations, however he neither wished to be examined on oath nor desired to produce evidence in defence. On conclusion of the trial, the appellant was convicted and sentenced by the learned trial Court, as stated above, vide its judgment dated 16.03.2024, hence, this criminal appeal.
4. Arguments heard. Record perused.
5. It is the case of the prosecution against the appellant that he has committed the murder of his brother-in-law (wife's brother) namely Khalil-urRahman by stabbing him with an axe. He was also charged with causing stab injuries to his mother-in-law, Mst. Bilqeesa. The report regarding the incident was lodged by Khalid Khan, who has also been cited as an eyewitness to the occurrence.
The motive behind the occurrence was stated to be the return of the appellant's wife namely Mst.
Haseema to her parental home in a state of annoyance. According to the prosecution version, the incident has taken place inside the house of Alam Hussain, where Mst. Haseema (the wife of the appellant) had come in annoyed condition from her matrimonial house. The site plan (Ex.PW10/1) was prepared on the pointation of the eyewitnesses to the occurrence. In support of its allegations, the prosecution mainly relied upon the ocular account furnished by injured witness Mst. Bilqeesa, complainant Khalid Khan, and other eyewitnesses namely Alam Hussain, Mst. Haseema (wife of the appellant), Mst. Tar Bibi and Mst. Gulnar Bibi (widow of the deceased), who were examined before the learned trial Court as PW-3, PW-5, PW-6, PW-7, PW-I 2 and PW-13. In addition to the ocular evidence, the prosecution also relies upon circumstantial evidence including the motive, recoveries made during investigation and medical evidence furnished by Dr. Arsalan (PW-14) etc. Moreover, the prosecution placed strong reliance on the judicial confession of the appellant recorded before the learned Judicial Magistrate (PW-17). Considering the totality of the circumstances, we first proceed to appreciate the ocular evidence furnished by the afore-mentioned prosecution witnesses. A careful evaluation of their testimonies would reveal that their statements are trustworthy, confidence-inspiring and unimpeachable as they remained consistent and coherent on all material points during their cross examinations. Their depositions are also fully in consonance with the prosecution's narrative as set forth in the FIRImurasila. It is noteworthy that Mst. Bilqeesa (PW-5) is herself a victim of the incident, having sustained stab injuries, which were corroborated by her medico-legal report confirming that the injuries were caused by a sharp- edged weapon. It is pertinent to mention here that although the occurrence has taken place on 19.05.2020, the eyewitnesses were examined by the prosecution before the trial Court after a considerable delay either in August 2021 or September 2022, but even then, they remained steadfast and unanimous regarding the time, place and material aspects of the occurrence when they were subjected by the defence to lengthy cross-examination. These eyewitnesses also firmly stood by their respective accounts and explained all relevant aspects including the positioning of the deceased, themselves and other members of the spot house as indicated in the site plan (Ex.PW10/1), which would confirm their natural presence on the spot at the relevant time during the late hours of the night. It is also significant to note here that the defence, despite extensive effort, has failed to extract any material contradiction or favourable admission from these important witnesses, so, neither their testimonies could be shaken nor there is any other aspect of the record which could render their presence at the scene at the relevant time as doubtful. It is well-settled law that minor discrepancies are natural in human perception as it is not possible for a witness to recall all events in exact chronological order, and such variations may occur over time and therefore the same can be overlooked when the witnesses are natural and their testimony is corroborated by other reliable evidence. In the present case, the minor contradictions, if any, do not impair the credibility of the prosecution's version as their testimonies do reasonably establish their present on the spot at the relevant time. Furthermore, Mst. Haseema (PW-6), the wife of the appellant, has also deposed against the appellant for the murder of her brother as well as causing stabbed injuries to her mother Mst. Bilqeesa (PW-5). Her-statement is in consonance with the version of the prosecution particularly regarding the motive. Significantly, the present appellant has neither denied his relationship with PW-6 nor could deny the motive as described in the FIR.
6. Similarly, there is no denial of the fact that all the above-mentioned eyewitnesses including the complainant (PW-3) and the wife of the appellant (PW6) are closely related to the deceased and the injured person Mst. Bilqeesa (PW-5), however, in view of their confidence-inspiring and corroborative statements despite confusing cross examination, their presence on the spot at the relevant time is well established especially as they were inmates of the very house where the occurrence has taken place, therefore, their testimonies cannot be discarded merely on the ground of their close relationship with the deceased and the injured. Moreover, there is nothing on record to suggest that the prosecution witnesses were triggered by any motive to falsely implicate the appellant or to substitute the real culprit. Thus, the established natural presence of the PWs, including the injured victim M.st. Bilcieesa (PW-5), on the place of occurrence at the relevant time cannot be brushed aside solely due to their relationship with the deceased. In this respect, reliance may also be placed on the judgment rendered in the case of "Zafar Jabal and others Vs. The State" (2014 SCMR 1227) wherein, it was held by the Hon'ble Supreme Court of Pakistan that: "Mere relationship of prosecution witnesses with deceased cannot render their evidence unreliable unless it is established that they had motive to implicate accused falsely".
There is nothing on record to suggest any motive on the part of the prosecution witnesses to falsely depose against the appellant.
7. Adverting to the judicial confession of the appellant, the same is available on record as Ex.PW17/2. In this regard, the certificate issued by the learned Judicial Magistrate before whom the confession was recorded is Ex.PW17/3 while the questionnaire prepared prior to recording the confession is Ex.PW17/1. Careful perusal of the said certificate and questionnaire reflects that all the codal formalities required under the law were duly observed by the learned Judicial Magistrate before recording the judicial confession of the appellant/ convict. In the peculiar facts and circumstances of the case and for ready reference, we deem it appropriate to reproduce the judicial confession of the appellant/convict as under: During trial, the prosecution has produced and examined Mr. Sajid Ali Khan, learned Judicial Magistrate, as PW-17, who has recorded the judicial confession of the accused/ appellant. The learned Judicial Magistrate (PW-17) was subjected to intense cross-examination by the defence, wherein almost all possible questions relating to the judicial confession of the appellant were put to him, however, nothing could be elicited from his statement to suggest that the confession recorded by the appellant was either involuntary or made under any duress, pressure, promise or undue influence. Similarly, no clue of torture, threat or coercion on the part of the police could be brought on record for extracting the confession from the accused. It is also pertinent to mention here that the contents of the judicial confession as disclosed by the appellant regarding the incident, have been fully corroborated by the ocular account of the eyewitnesses as well as the circumstantial and medical evidence on record. The learned Judicial Magistrate provided proper and adequate time for reflection to the appellant before recording his confession. It appears from the evidence on record in juxtaposition with the documents of confessional statement that PW-17 has duly introduced himself to the accused and explained to him the legal consequences of making a judicial confession. It is also worth noting that the judicial confession was made by the appellant in Pashto, which was translated into Urdu and then explained to the appellant to ensure that he fully understood its contents. The handcuffs of the accused were removed and all court staff including deployed police officials and the LO were directed to leave the courtroom. Only after ensuring that the appellant had calmed down and was under no compulsion rather upon his satisfaction that he was not bound to make any confession, the statement was recorded.
Moreover, the judicial confession is fully corroborated by the surrounding circumstances, particularly by independent sources, including the medical evidence of Dr. Arsalan (PW-14) and the consistent ocular testimony of ibid eyewitnesses. So, in our considered view, the judicial confession, in the presence of such corroborative material, requires no further independent corroboration. The mere retraction of the confession by the appellant during trial, without offering any reasonable explanation or producing sufficient evidence to cast doubt on its voluntariness or truthfulness, would carry no weight. Thus, the judicial confession of the appellant appears to be true, voluntary and free from any coercion, promise or persuasion of the police. This judicial confession, being a substantive piece of evidence, can safely and lawfully be used against the accused. In this regard, reliance is placed on the cases of 'Muslim Shah Vs. The State' (FLA 2005 SC 168), "Kama! Akhtar and others Vs. The State and others" (1992 SCMR 282) and "Dadullah and another V/s. The State"
2015 SCMR 856. In the latter case, the apex Court has held as under: "This is settled law that conviction could not be recorded on the sole basis of confessional statement and the prosecution has to prove its case beyond any shadow of doubt. However, having gone through the evidence, we have found that the confessional statements of the accused were not the result of maltreatment and coercive measures. The Judicial Magistrate has stated that the accused were given relaxation of time and they were told that they are not bound to record their statements. It was further clarified that if they did not want to make their statements, they will not be handed over to Levies and will he sent to judicial lockup. Opportunity was provided to both the accused to cross-examine each other. Notwithstanding the procedural defect in the confessional statement, if any, a judicial confession if it is found true, voluntary and confidence inspiring, could safely be made basis for conviction. Retraction of confessions by the accused seems to be palpably false and incorrect only to save their skin and the only conclusion that could be drawn is that confessional statements were recorded by the accused voluntarily".
Thus, in the circumstances, we find no cogent reason to discard the judicial confession of the appellant as it was recorded in accordance with law and appears to be a true, voluntary and corroborated by independent and reliable evidence of the prosecution.
8. The time of this unfortunate incident is reported to be 23:00 pm (night) on 19.05.2020, which also stands corroborated by the time recorded in the postmortem report (Ex.PM) and other circumstantial evidence available on the record. Dr. Arsalan (PW-14) confirmed in his statement that the dead body of the deceased was brought before him at 01:35 hours. Considering the distance between the place of occurrence and the hospital particularly in the mountainous terrain of Chitral, this duration is reasonably accounted for including the time taken to arrange a vehicle for transportation. The statement of the scribe of the report (PW-9) also supports the version of the prosecution qua the time of the report. Although certain facts such as the snatching of the axe and knife were not mentioned in the FIR/murasila, however, this omission does not cast any doubt on the credibility of the prosecution's case nor can it be termed a material improvement because it is a settled principle of law that the purpose of an FIR is merely to set the law in motion and non- mention of a particular fact therein does not vitiate the prosecution's case, provided the same is subsequently established through credible and confidence-inspiring evidence. In this case, all the prosecution witnesses are consistent with each other on all aspects of the occurrence and the said facts stand corroborated by the accused's own confessional statement. The medical evidence brought on record through medical officer (PW-14) further substantiates the case of the prosecution by confirming that the death of the deceased was unnatural and caused by injuries to the scalp inflicted by a sharp-edged weapon. Similarly, the injury sustained by Mst. Bilcieesa (PW- 5), as per PW-14's statement, was also caused by a sharp-edged weapon. So, the contention of the appellant that all the facts or events narrated by the PWs in their Court statements were not mentioned in the FIR holds no water. In this respect, the judgment of this Court in the case of "Muharmadullah and another Vs. The State" (2018 PCr.LJ 1633 Peshawar) may be referred, wherein it has been held that: "First Information Report basically covers the information regarding a cognizable offence given to officer incharge of a police station the purpose of which is to set the law in motion for conducting investigation in the case. It is not a substantive piece of evidence unless the maker himself deposes in Court to confirm the contents of the F.LR entered therein at his behest.
Keeping in view the above status of the F.I.R, this document by itself cannot advance the prosecution case except it is recorded by a person who is near to die which is commonly known as dying declaration but that is also admissible in evidence under certain principles laid down by superior Courts."
9. Over and above, the parties were closely related to each other and just prior to the occurrence, negotiations had taken place between the accused and the complainant-party regarding the issue of returning of the appellant's wife to his home as she had gone to her parental house in annoyed condition. This interaction itself rules out the possibility of misidentification or substitution of the real culprit. It is a case of single accused. The Hon'ble Supreme Court of Pakistan, while giving its judgment in the case of `Khan Naveed and another Vs. The State and others' (2008 SCMR 1480), has, inter alia treated the circumstance that the appellant in that case was singly charged and that in absence of any animosity existing earlier, there were rare chances of his false implication. Relevant findings of apex Court recorded therein are reproduced hereunder for ready reference.
"It may also be borne in mind that the appellant/ accused has been only single person held to be liable in the commission of murder and no animus has been suggested to the P.Ws. for his false implication in the crime, therefore, there could not be any mistaken identity or substitution in place of the real culprit/assailant i.e. the appellant. The learned Judge in Chambers also after scrutiny, analysis and assessment of the entire evidence, on record has arrived at the conclusion that prosecution has proved the guilt of the appellant/convict accused beyond reasonable doubt and thus, has maintained the conviction and sentence passed by the trial Court."
Further reliance in this respect may also be placed on the cases of 'Miran Bux and another Vs. Muhammad Arnir and another' (1986 SCMR 1225) and 'Muhammad Basharat Vs. The State and another' (2003 SCMR 554).
10. The crime tools i.e., the axe and knife, were also taken into possession during the investigation when the same were produced by the complainant-party, having allegedly been snatched from the appellant during the occurrence. The relevant witnesses of this recovery particularly Asghar Khan IHC (PW-4) were examined before the learned trial Court, and despite being subjected to thorough cross-examination, their testimonies remained consistent and could not be shaken by the defence. Furthermore, the Forensic Science Laboratory (FSL) report (Ex.PW 10/19), confirming that those tools were stained with human blood would provide corroboration to case of prosecution against the appellant.
11. As regards the motive, it was clearly disclosed in the initial report (murasila) that the cause of the occurrence was the refusal of the appellant's wife namely Mst. Haseema to return to her matrimonial house from her paternal home. This motive was not only confirmed by the appellant himself in his judicial confessional statement but was also fully corroborated by all the eyewitnesses during their depositions before the learned trial Court. During the cross examination of Alam Husain (PW-7), the brother of Mst. Haseema (wife of the appellant), it was specifically brought on record by the defence that their nuptial tie remained strained. In light of the above and keeping in view the surrounding circumstances and the consistent ocular and circumstantial evidence, it can safely and confidently be inferred that the appellant has committed the offence being motivated by the above reason.
12. Needless to mention here that the learned trial Court has duly considered the mitigating circumstances in the case while awarding the impugned sentences to the appellant and during the course of arguments, no legal valid ground could be pointed out on the record to be considered for making interference in the sentences of the appellant rather the impugned sentences, in our considered view, would meet the ends of justice. The learned counsel for the appellant has not been able to pinpoint any misreading or non-reading of the evidence in the impugned judgment of the learned trial Court.
13. For what has been discussed above, the prosecution has proved its case against the appellant beyond reasonable doubt, therefore, the impugned judgment of the learned trial Court is based on correct appreciation of the evidence and the same is not open to any interference. Resultantly, the impugned judgment is hereby upheld and this appeal, being bereft of merits, stands dismissed.