NASM ASLAM ZAHID, J.-The present appeal has been filed by Sharafat Hussain against the judgment dated 20th December, 1979 of the learned 1st Additional Sessions Judge, Sukkur, in Confirmation Case No, 714/75, whereby the appellant has been convicted under section 302, P. P. C.
For the murder of 5 persons on 22nd December, 1971 and sentenced to death. By the said judgment of the trial Court, the appellant has also been ordered to pay compensation of Rs, 2,000 each (total Rs, 10,000) to be paid to the heirs of each deceased, and in case of default of payment of compensation to suffer rigorous imprisonment for one year. The case has also come up before us under section 374, Cr. P. C. For confirmation of the death sentence against the appellant.
2. In this case the F. I. R. Was lodged at Police Station "A" Section, Sukkur, on the day of the incident i,e, 22nd December, 1971 at 10-00 a. m. By the complainant Mandhoomal son of Fatoomal. The time of occurrence is given as 9-30 a. m. And the Dharamshala where the incident took place is described in the F. I. R. To be located at a distance of two furlongs from the Police Station. We consider it appropriate to reproduce the F. I. R. Here :- "The complaint is that I am residing alongwith my family in 'Dharamshala'. There are about 30/35 houses of Hindus in the said `Dharamshala'. They all are residing alongwith their families. I am Cook at the hotel of Shewanmal. This hotel is situated inside the (Dharamshala). Today in the morning I, Basant son of Dharyanomal and Jethanand were standing outside the said hotel. At that time statement was working inside the hotel. The outer door of the `Dharamshala' was opened. Inside the outer door there is a cemented bench on which Sukkurmal was sitting and Bodhomal was selling `Pakoras', lying in his basket in front of him. It was about 9-30 a, m. When one Mujahid in uniform came hurriedly there having rifle with him, on which bayonet was fixed. He raised `hakals' who are Hindus and he went inside the room of Shewanmal where Shewanmal and Darhoonmal were present there. The said `Mujahid' fired two (2) rifle shots there. Khemchand was sitting outside the room on the cot. The `Mujahid' attacked him with bayonet but he ran away. Mujahid while going outside caused bayonet blows to Sukkurmal, Bodhomal and Jiomal who were sitting at the door and also fired a shot at them. They fell down on receiving bayonet blows. Thereafter Mujahid ran away outside towards tower. On hearing fire shot and cries of the above persons, Abdullah Chowkidar, Jugtoomal, Manghandas and many other persons came there, they also witnessed the above incident. We went inside the room of Shewanmal and found Shewanmal on the cot and Darhoonmal on the ground who were lying dead. The blood had oozed and they had received bullet injuries. Sukkurmal, Jiomal and Bodhomal were lying injured near the door. I and above witnesses have not seen the said Mujahid prior to this. Now we on seeing him, would be able to identify him. The said Mujahid was of average height, wheat complexioned, young and average built. At the time of firing and giving blows with bayonets this Mujahid was raising slogans due to Muslim Spirit that he would not spare the 'Kafars'. I lodge complaint that the said `Mujahid' has committed murder of our two (2) Hindus and caused injuries to three (3) persons. Investigation be made."
3. The prosecution case is based upon the ocular testimony, recoveries, reports of the ballistic expert and Chemical Examiner, medical evidence, retracted judicial confession of the appellant and also his extrajudicial confession. It may be mentioned here that the appellant was not known previously to the eye-witnesses and, therefore, the question of his identification has assumed great importance in this case.
4. There are five eye-witnesses, namely, complainant P. W. 13 Mandhoomal, Khemchand (he died before his statement could be recorded by the trial Court and his statement before the committal Magistrate has been brought on record as Exh. 39 under section 33 of the Evidence Act), P. W. 8 Jethomal, P. W. 9 Basantmal and P. W. 12 Phaggan. An identification test was arranged by P. W. 14 Agha Noorullah, Assistant Superintendent of Sukkur Jail and held in the presence of P. W. 10 Arbab Ali, Head Munshi and III Class Magistrate. Mashirnama of identification test is Exh.
23. In the aforesaid identification test 8 persons took part. According to the identification test three persons namely complainant Mandhoomal, Jethanand and P. W. 12 Phaggan identified the appellant but the remaining five persons namely 1Khemchand (Exh. 25), Sitaldas, P. W. 9, Basantmal, Abdullah and Manghandas could not identify the appellant. Out of the three persons who, according to the identification test, identified the appellant, Jethanand was not examined by the prosecution as a witness. Depositions of the complainant Mandhoomal and P. W. 12 Phaggan require to be perused.
5. As observed earlier, the other 5 persons, who took part in the identification test, did not identify the appellant. It would be appropriate here to refer to that portion of the judgment of the trial Court, in which the trial Court deals with the identification test. In the judgment of the trial Court reference is made to the identific;ation test held on 27th December, 1972 and the evidence of P. W. 14 Agha Noorullah, Assistant Superinten- dent of District Jail, Sukkur and of P. W. 10 Arbab Ali, Head Munshi and IIIrd Class Magistrate. The learned trial Court then refers to the fact that according to the evidence of P. W. 10 and P. W. 14 three persons, namely complainant Mandhoomal, Jethanand and P. W. 12 Phaggan identified the appellant correctly and that these witnesses had also deposed that they correctly picked out the appellant in the test and that he was satisfied from the evidence of P. W. 14 the Assistant Superintendent of Jail and P. W. 10 the Magistrate and Head Munshi that the 3 witnesses had picked out the appellant in the test.
Out of these 3 persons who had picked out the appellant, Jethanand was not examined at all by the prosecution either at the committal stage or before the trial Court. The trial Court is in the circumstances not correct in observing that the 3 witnesses had deposed that they had correctly identified the appellant in the identification test. As regards the complainant Mandhoomal, it is pertinent to note here that in his evidence before the trial Court he has stated in the cross- examination that before the identification parade was held he was called by the police at the Thana and was shown the appellant and he was asked by the Police Officer to identify the appellant as the same person who had come in the Dharam-shala as it was normal in those days for the Mujahid Force Jawans and the police to come in the Dharamshala and on the road for rounds. He further deposed that the appellant was not mixed up with the Jawans of Mujahid Force in the identification parade and that he had easily identified the appellant because previously he had seen the appellant at the Police Station before the Sub-Inspector. In view of the above statements made by the complainant Manghomal in his cross-examination, no reliance can be placed on his testimony as regards the identification of the appellant.
The only other witness, examined at the trial of appellant, in the identification test was P. W. 12 Phaggan. In his examination-in-chief before the trial Court he stated, that he had correctly identified the appellant from amongst 8 or 9 persons. He however went on to depose that "I cannot identify the accused present in Court whether he was the same person whom I had identified in the Jail and had seen with the rifle in the Dharamshala. I was not examined in the lower Court." It may be observed that statement of P. W. Phaggan had also been recorded under section 164, Cr. P. C. a few days after the incident. Learned counsel for the appellant had urged that evidence of this witness relating to identification of appellant as the assailant was wrongly accepted by the trial Court as this witness could not identify the appellant at the time of the trial. Here what has to be kept in consideration is the fact that the incident had taken place in 1971 whereas the witness was examined by the trial Court in 1979, that is, about 8 years after the incident. P. W. Phaggan deposed, as observed earlier, that he had correctly identified the appellant in the identification parade. This fact stands confirmed from the evidence of P. W. 10, the Magistrate, and P. W. 14, the Assistant Superintendent of Jail. In these circumstances we have not been pursuaded to reject the evidence of P. W. Phaggan relating to the identification of the appellant as the assailant on the ground that he could not identify the appellant at the trial. As observed earlier, the other 5 persons who took part in the identification test did not identify the appellant, and Jethanand was not examined.
6. In his judgment, the learned trial Court, while dealing with the ocular testimony, referred to the evidence of Khemchand (Exh. 39) P. W. 8 Jethanmal and P. W. 9 Basantmal. Out of these 3 witnesses, Khemchand died before his evidence could be recorded by the trial Court and his statement before the committal Magistrate was brought on record under section 33 of the Evidence Act. However, no reliance can be placed on this piece of evidence also as in the identification test admittedly Khemchand could not identify the appellant. P. W. 8 Jethomal and P.
W. 9 Basantmal have not supported the prosecution as regards the identification of the appellant.
P. W. 9 Basantmal was a party to the identification test but he could not identify the appellant. In his examination-in-chief before the trial Court he stated that he had seen a "Fauji" coming in the Dharamshala and he did not see his face fully and that the man fired with a rifle and ran away. He further stated that he had not seen the "Fauji" firing with his rifle nor did he see him running away.
He further confirmed that he was put to an identification test in jail but he could not identify the accused person (in Court). He went further and stated in his examination-in-chief that the accused person present in Court was not the same person and that he had not seen him. He further confirmed that the appellant was not known to him previously. Then as regards P. W. 8 Jethomal, record shows that he was not a party to the identification test. In his evidence before the trial Court he stated that the appellant had come inside the Dharamshala in Khaki dress but he stated that he could not identify the accused present in Court as to whether he was the same person who had come when the incident took place about 7 years or so earlier. In his cross- examination, this witness stated that he did not know the appellant previously and that he had seen him only entering the Dharamshala but he did not see him causing any fire-arm injury to any person and that he also did not see him either going in the room of Shewanmal or running out of the Dharamshala. The ocular testimony of P. W. 8 Jethomal and P. W. 9 Basantmal does not support the prosecution. No explanation is on record as to why P. W. 8 Jethomal was not made a party to the Identification Test if he was an eye-witness. In our view, therefore, except for the evidence of P.
W. Phaggan, the trial Court erred in relying upon other ocular testimony.
7. In this case, as observed earlier, there is the retracted judicial confession of the appellant recorded on the same day on which the incident had taken place. Apart from the retracted judicial confession, which will be considered later in this judgment and the evidence of P. W. Phaggan referred to earlier, there is the extra-judicial confession of the appellant. According to the prosecution this was made by the appellant before one Major Syed Anwar Shah. This person was not examined in the trial Court on the ground that his whereabouts were not known. His evidence before the committal Court was brought on record as Exh. 50 under section 33 of the Evidence Act.
At the time this witness had given his statement before the committal Magistrate, it appears that the appellant was not represented by any Advocate and there was no cross-examination by the appellant. In his evidence before the committal Magistrate, this witness stated that he was the Adjutant and Quarter Master of 52 Mujahid Battalion and that on the day of the incident at about 10-45 a. m. He was informed by D. C., Sukkur on telephone that some person had been killed by a person wearing a "malatia" uniform and that he was further informed that the accused could be a Mujahid and the witness was asked to investigate. After few minutes S. P., Sukkur also gave him a similar message and requested him to help the police. The witness then stated that one Subedar Chaman Ali produced one Mujahid before the witness and when he was asked by the witness whether he had shot down the deceased he answered in the affirmative and that he also gave reasons for his action. We are not satisfied with the evidence on record and reasons given for not examining Major Anwar Shah as a witness in the trial Court. The reason given was that he could not be served with the summons. Court witness No, 2 Lal Bux, a police constable attached to Police Station 'A' Section Sukkur, had given evidence before the trial Court as a process-server. In his evidence he stated that the summons could not be served on Major Anwar Shah as his whereabouts were not known to anyone and that Major Anwar Shah could not be served for want of full address and present posting or the place of residence. Major Anwar Shah was a senior officer of the Forces and there should have been hardly any difficulty, if proper efforts had been made, in finding out his posting or the place of residence. In the circumstances it was unsafe to rely upon the statement of Major Anwar Shah.
8. Apart from the extra-judicial confession which, in our view, is not admissible and in any case cannot be relied upon to corroborate the retracted judicial confession of the appellant, there is the evidence relating to recoveries. The main recovery is the rifle which, according to the prosecution, was recovered from the person of the appellant on the day of the incident. The mash irnama of arrest (Exh. 26) made on the day of the incident at 12-00 noon shows that the appellant was arrested and his personal search was made and one rifle No, 596555 U./S. 036M. Alongwith bayonet was recovered from the possession of the appellant and there was blood stain on the bayonet. It is further stated that the blood-stained jersey and Khaki cap were also recovered from the possession of the appellant. The mashirs are P. W. 11 Ghulam Rasool and Khushi Muhammad.
The mashirnama was made by S. H.O. Haq Nawaz of Police Station 'A' Section, Sukkur. Unfortunately in this case, the Investigating Officer S. H.O. Haq Nawaz was not examined. The co-mashir Khushi Muhammad has also not been examined. Only witness of recovery mashir Ghulam Rasool (P. W. 11) in his examination-in-chief before the trial Court did not support the prosecution but stated that the police had called him and obtained his signatures on a piece of paper without disclosing its contents and that he had neither seen the appellant nor any riflle was secured from him. The witness was declared hostile, at the request of the A. P. P. And his statement before the committal Magistrate was brought on record under section 288, Criminal Procedure Code. In his statement before the committal Magistrate (Exh. 25) Ghulam Rasool had stated that the appellant was arrested in his presence and in the presence of co-mashir Khushi Muhammad and the appellant had produced one rifle with a blood-stained bayonet. He had further stated that the pull-over and the cap recovered from the appellant were also blood-stained. The mashir Ghulam Rasool in his evidence before the trial Court has completely denied his statement made before the committal Magistrate and has not supported the prosecution. His statement before the committal Magistrate was brought on record under section 288, Cr. P. C., as observed earlier.
9. On the question of admissibility of the statement of a witness brought on record under section 288, Criminal Procedure Code and the reliance that could be placed on such statement where the same is in conflict with the deposition of the witness before the trial Court, we may refer to certain reported judgments cited before us. Mr. Hayat Junejo relied upon the cases mentioned in the next paragraph.
10. In the case of Subhan Khan v. The State it was observed as follows at page No, 5 of the report :- "Primarily it is the evidence given at the trial which can be considered and used against an accused person. Evidence of a witness recorded during the commitment inquiry and transferred under section 288 can be considered, in the discretion of the trial Judge, and treated as substantive evidence, becoming a part of that witnesses' statement, but this evidence is subject to the same, if not severer, tests of appreciation and evaluation as any other evidence. If a statement made during commitment inquiry is repudiated at the trial, its evidentiary value is certainly not enhanced but is definitely lowered as, amongst other things, it is the statement of a person who, in view of his conduct, cannot be credited with any scruples for truth and integrity. Technically there may be no legal objection for a conviction being based on such depositions transferred under section 288, Cr. P. C. But as a rule of prudence, now well-recognized, Courts must look for positive and material corroboration of such statements. But the basic thing to consider as in all types of evidence, is, whether the evidence furnished by these statements is true. The mere fact that a witness has gone back on his previous statement and is helping the accused for one reason or another will not raise any presumption that "the previous statement" is true, and the statement made at the trial is false as both may be untrue. Therefore, in our view, the value to be given to statements transferred under section 288, Cr. P. C. Will depend on how far those statements can be believed and accepted when read in the context of the whole case and on the amount of strength which they can receive from other evidence available in the case. Standing by themselves, such statements do not furnish a safe guide for forming conclusions about the guilt or innocence of an accused person."
' In the case of Muhammad Ahmad v. State it was observed by the Supreme Court as under at page 74 of the report:- "Once the statement of a witness recorded by the Committing Court is admitted into evidence under section 288, Cr. P. C. It becomes a piece of substantive evidence for all purposes with no difference with any other piece of substantive evidence led in the case. If the statement is found to be genuine and true, it can form a sound basis for conclusion of guilt or innocence of an accused person. There is no rule of law and none need be imported. That while such a statement is believed to be trustworthy and honest, it must still require corroboration to make it acceptable to be relied upon. However, as a rule of prudence, the superior Courts in this country have laid down from time to time that since a witness who makes one statement before a committing Court and conveniently changes it at the trial stands self-condemned as a liar, his former statement transferred under section 288, Cr. P. C. Cannot be unreservedly accepted with implicit faith and1 2 hence the need for its corroboration by some independent source. Each case, however, has to be decided on its own facts and each statement transferred in a case under section 288, Cr. P. C. Has to be adjudged on its own merits in the context of all the circumstances of the crime."
A Division Bench of this Court in the case of Abdullah v. State observed that before a Court relies on the statement of a witness in the committal Court in preference to his evidence given before the trial Court, the Court should- as a rule look for positive and material corroboration of the statement made in the committal Court.
In the case of Ghulam Muhammad v. State the Supreme Court at pages 99-100 had this to observe :-- "A witness who has made conflicting statements as to essential facts constituting a crime is, prima facie, unworthy of reliance, in respect of all his statements. Cases are not unknown where witnesses have departed from earlier versions given by them, also on oath, for bona fide reasons, i. e. Reasons which are foreign to a mere desire to divert the course of justice, from personal or venial motives. In the exercise of the discretion which the law allows, a Sessions Court may reject a witnesse's statement made before it, and may instead rely on a different statement, made earlier, in the committing Court, on oath and under the liability to cross-examination, but for the judicial exercise of such discretion, it is necessary that the circumstances, should be examined with thoroughness, and apart from other considerations, such as the presence of other reliable evidence, an explanation should be found for holding that the variation has been introduced at the trial in bad faith."
11. Mr. Imam Bakhsh Shaikh, learned counsel for the State, on the other hand referred to the case of Muhammad Afzal v. Crown in which at page 639 of the report it was observed by the Supreme Court as follows :- "Witnesses who make one statement before the committing Magistrate and alter that in material particulars when appearing before the Sessions Judge must in the very nature of things be regarded as unreliable witnesses. It is incumbent on the Court, therefore, to exercise great caution in examining the various statements of such witnesses. If, after careful scrutiny, the Sessions Judge and the learned Judge of the High Court reach the conclusion that the statements made by the witnesses before the committing Magistrate were true, and that these statements had deliberately been altered in favour of the accused at the trial, there is nothing in law to prevent the trial Court and the High Court from relying on the statements made by the witnesses in the Court of the committing Magistrate."
Learned counsel for the State also relied upon a judgment of the Lahore High Court in the case of Munawar Khan v. State in which it was observed that on transfer of a statement to the Sessions Court under section 288, Cr. P. C. It becomes a piece of substantive evidence. However, it was further observed that the rule of caution in such cases requires looking for corroboration from some independent source. Lastly Mr. Imam Bakhsh Shaikh relied upon the case of Rehamatullah v.
State . In that case the eye-witnesses had resiled from their statements made in the committal proceedings. Supreme Court, at page 8 of the report observed as follows :- "The attempt made by these eye-witnesses to support the appellant before the Sessions Judge shows that far from being inimical they were friendly to him.
The evidence of the aforesaid three eye-witnesses, as given before the committing Magistrate and which have now been admitted under section 288 of the Criminal Procedure Code, and have become evidence for all purposes, are fully supported by the medical evidence which has described the nature of the injuries and the nature of the weapons used in causing them. Their evidence are also corroborated convincingly by the recoveries of blood-stained clothes from the person of the appellant as well as of the weapon of offence namely, the blood-stained toka. These incriminating articles have been found to contain human blood.3 4 5 6 7 We have carefully examined the evidence in the light of the facts and circumstances of the case and we have unhesitatingly come to the conclusion that the conviction and sentence of the appellant have been rightly maintained by the High Court."
12. As analysis of the case law referred in paras. 10 and 11 of this judgment shows that on transfer of a statement under section 288, Cr. P. C. The same becomes a piece of substantive evidence but as a rule of caution. The Court invariably looks for corroboration of such statement. In 1972 SCM R 5 also the Supreme Court looked for corroboration.
13. We may now refer to the judicial confession which was made, according to the Magistrate P. W.
17, Mr. Nadar Ali Bhatti, at 3-00 p. m. Before him on 22nd December, 1971 by the appellant. We have already noticed the time of incident as 9-30 a. m. With F. I. R. Recorded on 10-00 a. m. And the accused arrested at 12-00 noon on the same day i. e. 22nd December, 1971. Following is the confession of the appellant "When Pakistan came into being, I had then settled in Muzafar Nagar (India). At the time of advent of Pakistan, the Hindus had perpetrated great high-handedness upon our family, as they had killed my three father's sisters and two maternal-uncles. Our family then consisted of 20/25 members, out of whom only we six arrived safe in Pakistan. My aged father still weeps when he remembers their high-handedness. I was infant at the time when Pakistan came into being. But the Hindu tyrants had wounded me and the marks of such wounds are still visible on my neck, below the ear lobe.
Recently, the Indian Airmen dropped bombs on the civilian population of Rohri Town indiscriminately, mercilessly, as a result whereof the house of my affectionate friend Muhammad Nazeer was also shelled and destroyed and there is no sign of it. To my mind, Muhammad Nazeer and all his family members are martyred. Muhammad Nazeer was my most affectionate friend. I had family-connections with him and he was dearer to me than my own relatives. At that time I was working in the Mujahid Force. My aged father still weeps, when he remembers the high- handedness perpetrated upon my family members by the Hindus at the time of advent of Pakistan.
I was deeply affected by the recent bombard-meat of Rohri Town by the Indian Airmen, wherein the house of my bosom friend Muhammad Nazeer was shelled. This aroused my passion and my life became a poison for me. Since then, I lost the balance of my mind.
Today, I was on my duty on ammunition (word-illegible) from 04-00 a. m. To 03-00 a. m. After being off-duty, I had my breakfast. My duty-rifle and 8 rounds remained with me. Again I lost the balance of my mind and with the rifle and rounds I came towards GharatGhar, where Hindu- Musafir Khana issituated, I entered the Hindu-Musafir Khana and ordered all of them to get-up and stand in a line, and further ordered them that if they had any wireless set or spying-kit, they should surrender it. On hearing this order they started to run, whereupon I fired about 3-4 shots on them.
Then I marched towards Imperial Cinema where I also saw, few persons. Those who recited Kalma, (Muslim Creed), I let them off and opened fire on the remaining persons. Thereafter I proceeded towards Secro-Chowk, where I also fired 3-4 shots. I had also inflicted injuries with bayonet on some persons in Hindu-Musafir Khana, at Secro-Chowk and near Imperial Cinema. Thereafter I went and retired to bed in the Mujahid-Camp, near Exhibition old Sukkur. Then I narrated the whole story there, after which the Police caught me and took me to the Police Station. I threw away the bayonet cover at some unknown place.
I have committed the entire act in passion, as I was not then in my senses and hadlost my mental equilibrium."
We have seen the evidence of P. W. 17, the Magistrate, who recorded the judicial confession and could not find any illegality or irregularity in the recording of the same by the Magistrate. The only contention raised by learned counsel for the appellant for attacking the confession was that it had been recorded in Sindhi whereas the appellant -did not know Sindhi but was an Urdu-speaking person. We are not impressed with this contention as there is nothing on the record to show that the appellant did not know Sindhi. On the contrary from the judgment of the trial Court I stands confirmed that the appellant was conversant with Sindhi language. In para. 19 of the judgment of the trial Court it is observed as follows :- "The learned Defence Counsel has argued that the accused is Urdu' knowing and was not knowing Sindhi. The accused in his statement Exh. 56, has deposed that the judicial confession is false and he only knows Urdu language. It is important to note that while I was recording statement of the accused I first translated the question in Urdu and asked accused whether he understands the Sindhi language. Accused told me in Sindhi that he understands Sindhi language."
In view of the above observation of the trial Court, which has not been challenged, we find no substance in the contention of the learned counsel. As observed earlier, no other challenge was made to the judicial confession. We accordingly agree with the trial Court that the judicial confession was made voluntarily by the appellant. There is also no delay at all in the recording of the confession. The appellant was arrested at 12-00 noon on 22nd December, 1971 and two hours later at 2-00 p. m he was produced before the Magistrate who recorded his confession an 3-00 p. m.
14. The judicial confession dated 22nd December, 1977 was retracted by the appellant. Although in our view the said confession was made voluntarily and also appears to be true, but as the same was retracted, the question is whether the appellant should be convicted solely on his confession ?
Respectfully following the view of the Supreme Court of Pakistan expressed in several of their judgments, it may be observed that to sustain the conviction of the appellant, prosecution is not only required to establish that the confession is true and voluntary but that the same is corroborated in material particulars from other evidence. To put it plainly, it is unsafe to base the conviction of an accused solely on his retracted judicial confession.
Reliance is placed for this principle on the following cases decided by the Supreme Court of Pakistan.
State v. Minhun , Nadir Hussain v. The Crown , Dhani Bakhsh v. The State and Naqibullah v. The State .
15. In our view the retracted judicial confession is corroborated in material particulars by other evidence. Firstly the main independent piece of evidence that connects the appellant with the crime is the evidence of eye-witness P.W. Phaggan whose indentification of the appellant is confirmed by P.W. 10 and P.W. 14, the Magistrate and the Assistant Superintendent, Sukkur Jail, respectively, who had arranged and carried out the indentification test. Evidence of P.W. Phaggan implicates the appellant. No enmity is alleged against this witness and neither any reason was advanced nor we have found any to doubt the veracity of this eye-witness. Apart from this, there is the statement of P.W. 11 mashir Ghulam Rasool transferred under section 288, Cr. P.C. Regarding recoveries. This mashir had turned hostile. In view of the authorities referred in para. 10 of this judgment, this statement under section 288, Cr, P.C. Though can be treated as substantive evidence but requires corroboration. In the instant case standing alone the statement of mashir under section 288, Cr. P. C. May not have been sufficient to provide sufficient corroboration of the retracted judicial confession to sustain the conviction of the appellant but, as observed earlier, we have come to the conclusion, agreeing with the trial Court, that the judicial confession of the appellant was free and voluntary and that evidence of P.W. 12 Phaggan supports the prosecution case against the appellant. In this situation, statement of P.W. 12 Ghulam Rasool provides further corroboration. The other piece of evidence is the Chemical Examiner's Report (Exh. 53) which shows that the bayonet of the rifle was stained with blood. Ballistic Expert's report (Exh. 54) is positive inasmuch as it shows that the 3 crime empties were fired from Rifle No, 596555. Mash irnama of vardat (Exh. 7) depicts that 3 empties were recovered from the scene of the crime. P.W. 2 Issardas,8 9 10 11 one of the mashirs, has supported the case of the prosecution regarding the recoveries of these 3 crime empties. Then there is the evidence of P.W. Dr. Khan E Muhammad Jumani who had performed autopsy on the five killed persons. Injuries found on the deceased show that some had received fire-arm injuries and others bayonet injuries. This medical evidence by itself would not have corroborated the judicial confession but the appellant's link with the killings being established by the evidence of P.W. Phaggan and statement of mashir Ghulam Rasool, the recoveries and reports of the two experts, the testimony of the doctor corroborates that part of the judicial confession where the appellant confesses to have fired shots and caused injuries by bayonet also.
We find that the aforesaid pieces of evidence not only conduct the appellant with the crime in question but also furnish corroboration in material particulars of the retracted judicial confession of the appellant.
16. In the circumstances, we have reached the conclusion that the appellant has been rightly convicted under section 302, P.P.C. The other question which requires our consideration is the sentence. Appellant has been sentenced to death by the trial Court. Two points were urged by Mr. Muhammad Hayat Junejo for reducing the sentence which are delay in the trial and that the appellant had committed the crime under frenzy which is apparent from the reasons given in the judicial confession and the manner in which the crime was committed. In this case the incident is of December, 1971 the date of the judgment of the trial Court is December, 1979 and we are pronouncing our judgment in December, 1981. The trial was delayed in the instant case for no fault or default on the part of the appellant. It took 8 years for the trial. According to Mr. Muhammad Hayat Junejo, the trial was delayed as it could not be decided whether the appellant was to be tried by the Sessions Court or by an army Court. In any case the appellant cannot be blamed for the inordinate delay of 8 years in the trial to conclude. This factor coupled with the fact that the appellant had no enmity against the deceased and the crime was committed in a fit of frenzy where appellant lost his mental equilibrium and went absolutely berserk, we reduce the sentence to life imprisonment.
17. The conviction of the appellant by the judgment dated 20th December, 1979 of the learned 1st Additional Sessions Judge, Sukkur in Sessions Case No, 714 of 1975 is maintained but his sentence is reduced to transportation for life. Order for compensation and in default R.I. For one year is maintained. Reference for confirmation of death sentence is rejected. PLD 1960 Lab. 1 PLD 1970 SC 72 1975 P Cr. L J 1128 PLD 1968 S C96 1970 P Cr. L J 636 PLD 1975 Lab. 175 1972 SCM R 5 PLD 1964 SC 813 1969 SCM R 442 PLD 1975 SC 187 PLD 1975 SC 21 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.