MUHAMMAD ISHAQ KHAN, J-Mst. Gran Bibi aged about 45/50 years, widow of Charri ; Said Munir, aged about 45/50 years, son of Kabeer ; Hakim Shah, aged about 35/40 years, son of Zaib Shah ; and Shamsur Rehman, aged about 30/35 years, son of Mir Abbas, faced their trial under section 302/109/201/147, P. P. C. Before the learned Sessions Judge, Mardan, who vide his judgment dated, 1st November, 1978 acquitted them all. The allegations against all the accused were that few days prior to the lodging of the first information report in the case, they formed an unlawful assembly and in prosecution of the common object of that assembly committed the offence of rioting, murder of Mir. Zaman deceased and burned his dead body inside the kotha of his house to cause the evidence to disappear from the legal punishment, and that they committed the offence the abetment of Mst. Gran Bibi accused by at strangulating Mir Zaman deceased and thus committed offences punishable under section 302/ 109/201/147, P. P. C.
2. Dissatisfied with the aboves\judgment of the learned Sessions Judge, Mardan, the State has filed this appeal under section 417, Cr. P. C. Against the order of acquittal, dated 1st November, 1978 passed in favour of the five accused-respondents (named above).
3. In this case, Mst. Gran Bibi accused-respondent herself lodged a report, which was recorded against Mad No, 43 on 3rd January, 1977, wherein she stated that she was married to Mir Zaman some 15/16 years ago ; that out of this wedlock one daughter Mst. Zakia aged 9/10 years and one son, Zakirullah aged 7/8 years, were born to her, who are alive ; that her husband Mir Zaman. Was employed as a labourer. In the Mills that about 16/17 days ago her husband left his house and went to the Mills, whereafter he did not return to the house ; that 3/4 days after his departure from his house, she came to know that he had not gone to his work in the Mills ; that she then left her house and went to live with her parents and used to come to her house off and on in order to inquire about her husband ; that prior to this, her husband had also left his house 6/7 months ago and remained out for 16/17 days and when he returned, he informed the informant that he had gone with his friends ; that till the date of report, she did not know where her husband had gone. She further stated in her report that her husband had no enmity whatsbever with anybody, nor she apprehends that he might have been murdered by somebody ; and that she had only come to the police station for lodging the report that when her husband returns to his house, he should be warned not to go out of his house without informing her as she had a grown up daughter.
Pursuant to this report, Amirullah Khan then A. S. I. P. W. 7, went to the house of Mst. Gran Bibi where during the investigation he came to know that the dead body of the deceased Mir Zaman was burned, in the kotha of the same house. The A. S.1. Then took alongwith him Azizullah son of Abdul Qayyum P. W. 2 and Noor Muhammad son of Azizullah P. W. 3 to the said kotha inside the house of Mst. Gran Bibi accused-respondent, and after digging the floor of the said kotha, he found the dead body of the deceased, which was put in a bag. After taking out the dead body from the bag, the A. S. I. Found that it was not in a position of being transported to the P. S. Or mortuary, therefore, he summoned Lady Dr. Zakia Shaheen, P. W. 1, to the spot, where she supervised the exhumation proceedings and examined the dead body of Mir Zaman deceased.
4. The investigation in this case was conducted by Amirullah Khan A. S. I. P. W. 7, who went to the spot. He after exhumation of the dead body sent a 'murasila' to the police station for registration of the case. In presence of the lady doctor, the A. S. I. Took into possession a rope, a bag and other clothes of the deceased, vide memo. Exh. P. G. He also prepared the site plan Exh. P. B., injury sheet Exh. P. C., and inquest report Exh. P. D. Of the deceased. He then recorded the statements of Noor Muhammad and Azizullah P. Ws. He then arrested Mst. Gran Bibi accused on 6th January, 1977 and Said Munk accused-respondent on 21st January, 1977. M the instance of Said Munir accused, the A.
S. I. Prepared a memo. Exh. P. H. Showing the place where the offence was committed. He produced Mst. Bacha Grana, accused-respondent and Said Munir, accused-respondent, to the Magistrate for recording their confessional statements. Muhammad Saeed, then S. I., P. W. 6, stated at the trial that after recording the report of Mst. Gran Bibi, he started investigation of the case. He then went to the spot and there enquired about the matter and then arrested Mst. Bacha Grana on 17th January, 1977 (After consulting the police zintnies, it transpired that the date of arrest of Mst. Bacha Grana accused-respondent, is in fact 14th January, 1977 and not 17th January, 1977). He produced Mst. Gran Bibi to the Magiftrate for recording her confession. He also stated that on the arrest of accused-respondent Hakim Shah, the latter was taken to the spot and at his intance memo. Exh. P.
3. Was prepared.
5. Lady Dr. Zakia Shaheen P. W. 1, stated at the trial that she supervised the exhumation proceedings by the police and examined the dead body of Mir Zaman. He was in flex position with a rope in the neck and flex body adjusted in a Bori, placed on Nawar bed in a room, locked, which was opened by Amirullah Khan A. S. I. The dead body, she further stated was identified by Noor Muhammad son of Azizullah, nephew of the deceased, and Azizullah son of Abdul Qayyum, brother-in-law of the deceased. On external examination, the doctor found the following; "Flex body tightened with rope. Cut with knife and undone turns from neck and swollen feet. Rope handed over to the police. The white `sotte which was thinner than the rope, three turns were given round the neck to strangulate the person. One rope removed from the `shahteer' of the ceiling by which the man was hanged. Face red, eyes out of socket, lips swollen, tongue swollen, all these organs were red due to the strangulation."
Death in the opinion of the doctor was due to strangulation and hanging. Duration between death and P. M. Examination was 22 to 25 days. The report of the doctor in this connection is Exh. P. W. 1/1.
6. After recording prosecution evidence and the statements of all the five accused-respondents under section 342, Cr. P. C. And hearing the learned counsel for the parties, the trial judge came to ihe conclusion that the prosecution has miserably failed to bring home the charges of rioting, murder, concealing of the evidence and abetment of the offence against the accused beyond reasonable doubt. He accordingly .Extending them the benefit of doubt acquitted all the accused- respondents, vide order, dated 1st November, 1978, already indicated above.
7. Learned Advocate-General for the State (appellant) and learned counsel for the prosecution as well as for the accused-respondents was heard at great length and we have also gone through the record very carefully. Learned Advocate-General assailed the impugned judgment of the learned Sessions Judge on the grounds that the reasons advanced by him for acquitting the accused-respondents are apparently perverse and not based upon correct appraisal of evidence brought on the record ; that the accused-respondents after forming an unlawful assembly and in prosecution of their Common object committed rioting, murder of Mir Zaman (deceased) husband of accused-respondent No, 1, Mst. Gran Bibi, and then burned his dead body inside the kotha of his house on the abetment of Mst. Gran Bibi accused-respondent by strangulating him to death ; that on the report of Mst. Gran Bibi accused-respondent regarding disappearance of her husband (the deceased), the police started investigation, and eventually P. W. 7, Amirullah Khan, -then A. S.-I.
Recovered the dead body of the deceased burried in the kotha in presence or P. W. 2, Azizullah and P. W. 3, Noor Muhammad but the trial Court while passing the impugned order has totally ignored this important fact altogether. The learned Advocate-General further argued that the accused- respondents Mst. Gran Bibi, Hakim Shah, Mst. Bacha Grana and Said Munir made confessional statements voluntarily, corroborating each other, which were recorded by P. W. 8, Mr. Mubarak Zaib Khan, Magistrate 1st Class, after conserving all the legal formalities. Thus, there existed no justification for the trial Judge to have discarded the statement of this important witness, viz. Mr. Mubarak Zaib Khan ; that the fact that the accused-respondents retracted from their confessions at the trial does not empower the Court to pass an order of acquittal in the circumstances of the case under which the deceased was done to death ; that the learned trial Judge had also failed to take into consideration the fact that some of the accused-respondents remained in abscondence for sufficient longtime; and that the prosecution has successfully brought home the charges under section 302/109/201/147, P. P. C. To the accused-respondents and their acquittal from the said charges by the learned trial Judge is wholly unwarranted, unjustified and has occasioned grave miscarriage of justice.
7. After giving our anxious considerations to the contentions of the learned counsel for the parties, we are of the firm opinion that the arguments of the learned Advocate-General carry great force in them. In this case, all the accused-respondents except Shamsur Rehman and made confessional statements though the same were retracted at the trial. True that in this case there is no ocular testimony against the five accused-respondents available in the prosecution evidence placed on record but the so-called retracted confessions of the accused-respondents corroborate each other in material particulars. Corroboration of these confessional statements is also forthcoming in the case in the shape of recovery of the dead body from the kotha of the house of the deceased ; witnessed by Azizullah P. W. 2 and Noor Muhammad P. W. 3, besides Amirullah Khan, A. S.-I. P. W. 7 and Lady Dr. Zakia Shaheen P. W. 1, the alleged recoveries of rope, a bag in which the dead body was tied. So, all these instances sufficiently corroborate the confessional statements of the accused-respondents. In these confessional statements, however, the accused-respondents have tried to exclude the presence of the other accused-respondents with whom they have got some interest. For instance, Said Munir, accused-respondent, in his confessional statement Exh. P. L. Has excluded the participation of Mst. Bacha Grana accused-respondent because she has admittedly liaison with this accused-respondent. Mst. Bacha Grana in her confessional statement, Exh. P. M.
Has excluded the presence of Said Munir at the time of commission of the offence and stated that though the bargain with regard to the murder of Mir Zaman deceased was struck in her house but the two other accused, accompanying Said Munir accused-respondent, had only gone to the house of Mst. Gran Bibi on the night of occurrence and killed the deceased there. Similarly, accused-respondent Hakim Shah in his confessional statement, Exh. P. N. Though admits his participation alongwith the other accused-respondents, in the murder of the deceased but stated that out of the amount a sum of Rs, 200 had been paid to accused-respondent, Shamsur Rehman while his share is still outstanding against the other accused-respondents,
8. As already pointed out in the foregoing paragraphs of this judgment, we have consulted the police 'zimnies' and have come to know that Mst. Bacha Grana accused-respondent was, in fact, arrested on 14th January, 1977 and not 17th January, 1977 and her confessional statement was recorded on the next day, i. e. 15th January, 1977. Therefore, the trial Judge was not correct in remarking that the confusion regarding the date of arrest of Bacha Grana accused and the date of recording the confession has not been made clear by the prosecution.
9. Great stress was laid by the learned counsel appearing for the accused-respondents on the fact that the confessional statements of the accused-respondents were recorded by the Magistrate concerned after administering oath on them, and, therefore, under the law such confessions are illegal and such illegality cannot be cured by consent, waiver or estoppel. But a reference to the statement of Mubarak Zaib Khan, Magistrate, P. W. 8, who recorded all the four confessions would negative the contention of the learned counsel for the accused-respondents that the said confessions were recorded on oath. The witness has specifically stated in his statement that no oath was given to the accused-respondents and that they made their statements of their own free will. We admit that in the body of the confessional statements, the witness due to over sight had recorded that the statements were given on solemn affirmation. Besides this, the witness had also stated that all legal formalities were observed by him before recording such confessions. Therefore, we hold that the confessions were made by the accused-respondents voluntarily and not under oath, because the defence has not been able to prove its stand by any cogent reasons.
10. On the view of the matter that we take, we hold that the confessions were made by the accused-respondents of their own free will and not under an oath ; that these are corroborated by the factum of recovery of the dead body and also the rope and bag, used in the commission of the offence. No doubt, these confessions are retracted confessions but in view of authority of the Supreme Court reported in The State v. Minhun alias Gul Hassan these confessions could legally be taken into consideration by the Courts. The following observations were made in the authority :- "Retracted confessions, 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. 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. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law."
' In another authority of the Supreme Court reported in Sayed Sharifuddin Pirzada v. Sohbat Khan and 3 others their Lordships have observed as follows: "S.
164. Confession, judicial.>/i<-Mere fact that person making confession remained in police custody for sometime-Does not lead to conclusion that confession was turtored-Directions contained in Federal Capital of Sind Circular, Chap. VI, Part C that person from whom confession taken should1 2 be asked, how long he had been in police custody- Direction, contained in Circular, merely directory in nature and its irregularity does not vitiate confession-Full-opportunity given to accused to explain circumstances in which they were making confessions-Confessions, held, made voluntarily, and could be relied upon."
So, in view of the above-quoted authority, also the judgment of the trial Judge is liable to be set aside when he recorded that the confessions were recorded when the accused-respondents were in police custody. There is another authority of the Peshawar High Court reported in Muhammad Karim v. The State which also supports our view. The relevant dictum of this authority is reproduced as under :- "S. 164 and Evidence Act (1 of 1872)- - S. 24-Confession-Retracted confession-Mere fact that a confession has been retracted does not necessarily show that confession wasresult of improper inducement, threat or promise-Extent and nature of corroboration required before Court can act upon and acceptsuch confession-Depends upon circumstances peculiar to each case-Such corroboration must be on material particulars connecting accused with offence."
11. The net result of the above discussion is that in our view the prosecution has succeeded in proving its case against accused-respondents, Mst. Gran Bibi, Mst. Bacha Grana, Said Munir and Hakim Shah. It, however, had failed to bring home the charges against Shamsur Rehman accused- respondent, beyond a reasonable doubt. Neither he has made a confession, nor there is any evidence worth-the-name against him. Involving him in the commission of the offence. This fact was also conceded and rightly too by the learned Advocate-General and so extending the benefit of doubt in favour of Shamsur Rehman, we maintain the order of acquittal passed in his favour. He is on bail and need not surrender to his bail bonds.
12. As held above, we are of the opinion that participation of Mst. Gran Bibi, Mst. Bacha Grana, Said Munir and Hakim Shah accused-respondents, in the commission of the offences, stands proved beyond a reasonable doubt on the basis of their retracted confessions copuled with the factum of recovery of the body, the rope and the bag in which the dead body was tied. Accordingly, we accept the State appeal against Mst. Gran Bibi, Mst. Bacha Grana, Said Munir and Hakim Shah and convict them under section 302/109/201/147, P. P. C. Each one of them is sentenced to undergo imprisonment for life and a fine of Rs, 2,000 each, or in default of payment of fine, to suffer further R.
I. For one year, under section 302/109, P. P. C. All the four accused-respondents and further sentenced to two years' R. I. Eachunder section 147, P. P. C. For committing rioting. They are further sentenced to three years' R. I. Each under section 201, P. P. C. For causing the evidence of the said offence to disappear from the legal punishment. As two ladies are involved in the case and the other two accused-respondents are hired assassins and the prosecution has not brought on record that they are owner of movable or immovable property, therefore, we refrain from awarding any compensation to the heirs of the deceased. We, however, direct that all the above sentences shall run concurrently.
Mst. Gran Bibi, Mst. Bacha Grana, said Munir and Hakim Shah, accused-respondents, are on bail, they are taken into custody and remanded to jail to serve their terms of imprisonment. PLD 1964 SC 813 PLD 1972 SC 363 PLD 1976 Pesh. 135 3 1 2 3