' ABDUL KARIM KHAN KUNDI, J.--- By his judgment and order, dated 26-6-1988, the learned Additional Sessions Judge-I, Swabi, recorded the conviction of Gul Munir, appellant, on the charge of murder of his brother, Lalzada, by firing at him in the Baithak of Zainullah, P.W., their father, situated Lin village Haryan, Tehsil and District Swabi on 9-4-1986 at 1230 hours and accordingly sentenced him to death and further imposed a fine of Rs,2,000 on him or in default to suffer one year's R.I., under section 302, P.P.C. While his co-accused, Mst. Razia, widow of the deceased, was found guilty on the charge of the abetment of the murder of her husband and she was accordingly convicted and sentenced to life imprisonment and a tine of Rs,2,000 or in default one year's R.I.
Further under section 302/109, P.P.C. Both the appellants were also found guilty on the charge of Zina liable to Tazir under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as Ordinance, and were accordingly convicted and sentenced to five years' R.I., whipping numbering 20 stripes and a fine of Rs,1,000 (one thousand) or in default six months' R.I. Further each. The sentences of imprisonment for both the offences in case of Mst. Razia, appellant, were ordered to run concurrently.
2. Jail Criminal Appeal No,185/I of 1989 was filed by Gui Munir as against his conviction and sentences while Criminal Appeal No,45/P of 1989 was filed jointly by Gui Munir and Mst. Razia, as against their conviction and sentences. A Murder Reference was received from the trial Court for confirmation of the death sentence awarded to Gul Munir, appellant. This Court had issued a criminal suo motu No,15/P of 1990 for the enhancement of the convicts, sentences, particularly the sentence of whipping. We propose to dispose of all the four matters jointly as follows:--
3. Briefly stated some 15/16 months prior to the occurrence Mst. Razia, appellant, was married to Lalzada, the deceased to whom she bore a son but he died soon after his birth. Gul Munir, appellant is the elder brother of the deceased and he used to live jointly with the deceased in the house.
Some two months prior to the occurrence Gul Munir developed illicit relations with his co-appellant, Mst. Razia. They conspired to put the deceased to death some way or the other and in the first instance they tried to administer him poison in the meals, but they failed since the deceased threw away the first morsel after putting it into his mouth tasting bitter. The deceased suspected his wife for the foul play and gave her beating. She went out of his house, but was brought back by her father-in-law. She took her husband into confidence and narrated him the whole story. On the day of occurrence she had gone to her parents house in the morning that at noon Gul Munir, appellant, put the deceased to death by firing at him, lying on a cot in a Baithak in the presence of Zainullah P.W.8, their father and Amir Hussain, (abandoned), their brother.
4. Zainullah, P.W. Lodged the report per Exh.PA./1 to Mukhtar Ali, A.S.I. (P.W.4) charging Gul Munir, appellant, for the murder of the deceased by firing and charged Mst. Razia, co-aptellant, for abetment of the murder of her husband and further charged the appellants for the offence of Zina.
Mukhtar Ali, A.S.I. (P.W.4) after the registration of the case, proceeded to the spot, prepared the injury sheet and inquest report per Exh.P.C. And Exh.P.C./1 and sent the dead body under escort to mortuary for autopsy. He prepared site plan (Exh.P.B.) with notes and drawings in his hand. He picked up blood-stained earth from the place of occurrence and sealed the same into parcel vide memo. Exh.P.D. He further took into possession blood-stained Charpai, quilt and pillow vide memo.
Exh.P.D./1. He had also taken into possession the blood-stained clothes of the deceased and a bottle containing four pellets, as brought by Safdar, F.C., and sealed the clothes into parcel vide memo. Exh.P.D./2.
5. Dr. Liaqat Ali, Medical Officer, Civil Hospital, Swabi (P.W.9) had conducted the post-mortem examination of Lalzada, the deceased, aged 20/21 years and found two fire-arm entrance wounds, each 2" x 1" in front of the right upper chest one inch apart from each other. He removed a foreign body from the lower right side of abdomen. On internal examination he found walls of thorax, pleurae, right and left lungs, heart and vessels injured. Peritonium, diaphragm, stomach, intestines, spleen and liver were also found injured and stomach contained, semi-digested food. He reported the death instantaneous, occurred within 24 hours of the post-mortem examination.
6. Mst. Razia, appellant was arrested on the following day of the occurrence i,e, on 10-4-1986. There was obtained her police custody and on 13-4-1986 she was produced before the Magistrate where after observance of all formalities her judicial confession was recorded per Exh.P.M. Gul Munir, appellant had made himself scarce. The Investigating Officer obtained his search-warrants under section 204, Cr.P.C. And also proclamation under section 87, Cr.P.C., but he was not traceable in his house and the surroundings. He was arrested on 24-4-1986 by Habibullah Khan, S.H.O. P.W.3 from the house of one Mehmood Jan on Charsadda Road, Mardan, during a raid and was handed over to the local police, Police Station, Lahore in the case on 25-4-1987. His remand was obtained and during police custody he led the police party to the recovery of crime weapon on 28-4-1986 from a field buried under ground. He had later on made a judicial confession before a Magistrate on 30-4- 1986 per Exh.P.N., fully implicating himself in the offences of murder as well Zina and also admitting his subsequent arrest in a raid.
7. Besides police personnel and other formal witnesses, the prosecution examined Zainullah P.W.8, an eye-witness of the incident of murder and Muhammad Yousaf, (P.W.5) a marginal witness of the recovery memos., particularly the recovery memo. Vide Gul Munir, appellant had led the police party to a field wherefrom the crime weapon along with live rounds wrapped in a gunny bag buried underground was recovered in his presence. Main reliance was placed by the prosecution on the voluntary judicial confessions of the appellants.
8. Gul Munir, appellant, in his statement under section 342, Cr.P.C. Admitted the inter se relationship, denied the charge of murder as well the charge of Zina and also denied the recovery of crime weapon at his instance. About his judicial confession made before the Magistrate on 30-4-1986 he stated that he had not made any confession. About the P.Ws. Having deposed against him he stated that they were interested. About his general statement and why he was charged he stated that he was innocent and falsely charged. About his evidence on oath in disproof of the charges and allegations made against him at the trial as required under section 340(2), Cr.P.C. He stated that he was not to record his statement on oath because there was no evidence against him. He did not produce evidence in defence nor he wanted to add anything else to his statement. In her statement under section 342, Cr.P.C. Mst. Razia, appellant, denied her abetment on the charge of murder and her developing sexual relations with co-appellant. About her judicial confession made on 13-4-1986 before the Magistrate 1st Class, Swabi she stated that she had not made confession voluntarily and that the confessional statement was the result of torture by the police. She reported the prosecution evidence as interested. She claimed that she was innocent and falsely charged.
She did not give evidence on oath in disproof of the charges and allegations made against her at the trial under the pretext there was no evidence against her. She also did not produce evidence in defence nor added anything else to her statement.
9. Learned counsel for the appellants raised first objection to the judicial confessions of the appellants as the same were recorded after the appellants remained in the pole-e custody for 3 to 4 days. He contended that the judicial confessions in the circumstances could be presumably the outcome of duress, pressure and torture. The Investigating Officer was, however, not suggested to have employed pressure, duress or torture on the appellants in procuring their judicial confessions.
Muhammad Saeed Khan, Magistrate 1st Class P.W.11 stated on oath that he made the appellant sit on the dais, turned all the police officials out of his Court, disclosed his identity to the appellants and told them that in case they make the confession or not they will not be remanded to police custody and that the confessions if made would be used as evidence against them. He had given them 45 minutes each for thinking. It was not suggested to the Magistrate if some different persons were produced before him by the Investigating Officer for recording their confessions or that he had not proceeded to observe due formalities in recording the confessions. In the circumstances the judicial confessions shall be accepted as voluntarily made, although retracted at the trial later on. In the context it was contended that confession in respect of Ordinance No,VII of 1979 can only be effective if it is recorded by a Court of competent jurisdiction which is a Court competent to try and that the offence of Zina can only be tried by a Court of Session and if a confession is recorded by a Court other than a Court of Session the same cannot be made a basis for conviction of the accused. Reference was made to Full Bench judgment of this Court published in PLD 1988 FSC 58.
However, after going through the judgment we have found that this Court has held that a confession recorded by a Court other than the one competent to try the case is not a confession not within the meaning of section 8(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which pertains to the mode of proof of Zina or Zina-bil-Jabr liable to Hadd that an accused has to make a confession of the commission of the offence before a Court of competent jurisdiction i,e, the trial Court. Herein the judicial confessions were recorded during the course of investigation under section 164, Cr.P.C. And were certified under section 364, Cr.P.C. And since the same were retracted at the trial and the appellants were not prepared to make confessions before the trial Court within the meaning of section 8(1) of the Ordinance as such there could not be imposed a punishment of Hadd on the appellants for the offence of Zina, but, nonetheless, their retracted judicial confessions voluntarily made during the course of investigation can be used as a proof against the person making it and can be taken into consideration as circumstantial evidence against co-accused at a joint trial for the same offence. Reference is made to Article 43 of the Qanun-e-Shahadat, 1984 in support of the view point enunciated above. It was next canvassed that retracted judicial confessions should not be made a sole basis of conviction unless corroborated in material particulars by other evidence brought on record. It is a matter of prudence, no doubt, but there cannot be laid down an unqualified rule as such. However, in the facts and circumstances of the case in hand we would also refer to other evidence brought on record in support or rebuttal of the retracted judicial confessions.
10. Prosecution did not examine Amirzada, P.W. An eye-witness of the incident of murder and perhaps for reasons that he was the brother of one of the appellants and brother-in-law of the other appellant and as such might not be readily prepared to support the prosecution case.
Prosecution examined Zainullah father of the deceased and Gul Munir, appellant, and father-in-law of Mst. Razia, appellant. He has fully supported the case of the prosecution in examination-in-chief part but succumbed to the suggestion put to him in cross-examination stating that it was correct that he was not present at the spot and he was informed by someone else and that he did not suspect Gul Munir, appellant, of having illicit relations with Mst. Razia. We would better reproduce his whole statement in order to sift the grain from the chaff and to conclude as to which part of his statement rings true:-- "Deceased Lalzada was my son. He was younger to accused Gul Munir who is also my son. P.W.
Amirzada is also my son. Accused Mst. Razia is the widow of my deceased son Lalzada. On the day of occurrence at about 12-30 p.m. I was present in my Baithak while deceased Lalzada was also sleeping in the same Baithak. In the meantime accused Gul Munir entered the Baithak armed with topak and fired at Lalzada with which he was hit and died on the spot. Besides me P.W. Amirzada my other son was also present who witnessed the occurrence. The motive for the offence was that accused Gul Munir was in love with Mst. Razia his co-accused who is the wife of my deceased son Lalzada. On the arrival of the police I lodged the report Exh.P.A./1 which correctly bears my thumb- impression.
' It is correct that I was not present at the spot and I was informed by someone else about the occurrence. I also do not suspect accused Gul Munir of having any illicit relations with the co- accused Mst. Razia."
' The occurrence took place at 12-30 p.m. The report was lodged at 1-30 pan, within one hour of the occurrence. The witness was to admit' that he had correctly lodged the report per Exh PA./1 under his thumb-impression. The occurrence had taken place in the Baithak of the house on the 9th of April when people in the village generally take nap in their houses after lunch and thus ordinarily the witness was supposed to be present at the time of occurrence in his house where the melodrama was staged. In cross-examination the witness admitted the suggestion that it was correct that he was not present at the spot and was informed by someone else about the occurrence. He did not explain as to where was he present at the time of occurrence if not at the spot as earlier stated by him and that who informed him about the occurrence if he had not witnessed the occurrence himself. In case he did not suspect Gul Munir, appellant, of having illicit relations with Mst. Razia, co-appellant, he should not have charged the appellants for illicit relations in the F.I.R. The witness was not cross-examined vis-a-vis the correctness of the F.I.R.
Exh.P.A./1 which he admitted as correct in his examination-in-chief part of his statement. In the circumstance we would accept the ocular evidence furnished by P.W.8 in examination-in-chief as correct in preference to the incorrect concessions made by him in cross-examination to the appellants who are a son and daughter-in-law in relation to him. The circumstances would vouchsafe the proposition that a father may rightly charge his son for the murder of his son and may be subsequently prevailed by the members of the family to save the life of his son and he may accordingly resile from his earlier statement.
11. As far as recoveries are concerned, the recovery of crime weapon at the instance of Gul Munir, appellant, from the field of one Muhammad Younas was put to him for his explanation during his statement under section 342, Cr.P.C.Which he denied. The same was earlier got proved from the statement of an independent witness Muhammad Yousaf P.W.5 that in his presence Gul Munir, appellant had led the police party to a field wherefrom the crime weapon along with live rounds packed in a gunny bag were recovered from underground. The recovery was made on 28-4-1986.
The appellant was arrested on 24-4-1986. The occurrence had taken place on 9-4-1986.
Muhammad Yousaf P.W.5 has stated that the crime weapon was recovered after 4/5 days of the occurrence and that the crime weapon was wrapped in a cloth and buried underground and again stated that the crime weapon was wrapped in a bag of Urea. His statement puts the Court on guard in accepting the recovery in the presence of the denial of the recovery by the appellant at the trial. The recovery has also been rendered doubtful by its non-mention in the judicial confession of Gul Munir, appellant recorded on 30-4-1986. So, the recovery of plastic bag containing poisonous powder at the instance of Mst. Razia is also to be excluded from consideration for reasons that neither it was put to Mst. Razia for her explanation during her examination under section 342, Cr.P.C. Nor the report of the Chemical Examiner was placed on file, although the poisonous material was sent to him for analysis.
12. Gul Munir, appellant, made himself scarce immediately after the murder of his. Brother, Lalzada, the deceased. There were issued his search-warrants which were returned unnerved by Sabz Ali, F.C. P.W.7 after his search in the village and surroundings. His attendance was sought through proclamation notices under section 87, Cr.P.C. Which were also served through P.W.7 but to no avail. At last his arrest was effected on 24-4-1986 by Habibullah Khan, S.H.O., Police Station A- Division, Mardan (P.W.3) during a raid from the house of one Mahmood Jan on Charsadda Road, Mardan and his custody was delivered to local police, Police Station, Lahore on 25-4-1986. Gul Munir, appellant remained in ascendance from 9-4-1986 upto 24-4-1986. True this incriminating circumstance of ascendance was not put to him during his examination under section 342, Cr.P.C.
For his explanation but in the facts of the case the circumstance of ascendance can be used against him in corroboration of ocular evidence and the judicial confession since he did not cross- examine P.W.7 at all and also did not shatter the evidence of his arrest in a raid furnished by P.W.3 and last that he himself did not make a detailed statement also on the point of his ascendance and arrest in a raid.
13. Appellants also did not give evidence on oath in disproof of the charges and allegations made against them at the trial as required under section 340(2), Cr.P.C. And were accordingly not subjected to cross-examination in violation of the mandatory provisions of Article 44 of the Qanun- e-Shahadat, 1984. There shall be drawn an adverse inference against the appellants on this score to be availed in corroboration of other prosecution evidence.
14. To sum up retracted judicial confessions have been found materially corroborated by the ocular evidence of Zainullah (P.W.8), medical evidence, ascendance of Gul Munir appellant and his arrest in a raid at a different place, non-examination of the appellants on oath under section 340(2), Cr.P.C. And the overall evidence of the police personnel and consequently we would hold Gul Munir, appellant, guilty on both the charges of murder and Zina and would accordingly maintain his conviction and sentences on the said charges with the enhancement of sentence of whipping upto 30 stripes under section 10(2) of the Ordinance. We would confirm his death sentence and answer the murder reference in affirmative. As far as Mst. Razia, appellant, is concerned, she has not confessed the charge of abetment of murder. Her co-accused, Gul Munir, has only stated that 8/10 days prior to the occurrence they mixed poisonous material in the meal of the deceased, but he escaped his death and the said incident has also not been found otherwise proved. He further stated that appellants had afterwards decided to put the deceased to death by firing. Mst. Razia has not, however, participated nor played any active role in putting the deceased to death by firing by Gul Munir, appellant. Gul Munir's judicial confession can at the most be employed as circumstantial evidence as gains Mst. Razia, co-appellant, which will not by itself be sufficient in the absence of other evidence to sustain her conviction on the charge of abetment of murder under sections 302/109, P.P.C. We would consequently acquit her on the charge of abetment of the murder of the deceased. As far as the charge of Zina with her consent is concerned we have again found that in her judicial confession she has stated that Gul Munir, appellant, had come to her room at night and lay down on the bed at her side at which she kept quiet and they committed Zina twice on that night and afterwards he had also been committing Zina with her. She is a woman in relation a brother's wife to Gul Munir, appellant. The overtures towards the offence of Zina were initiated by her co-appellant, Gul Munir. We would accordingly maintain her conviction under section 10(2) of the Ordinance but would award her a sentence of three years' imprisonment, whipping numbering thirty stripes and also a fine of rupees one thousand or in default to undergo six months' R.I. Further. There is also extended benefit of section 382-B, Cr.P.C. To the appellants in the case. All the four matters are disposed of accordingly.