1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court in a murder case is directed against the judgment of the Lahore High. Court dated 8-7-1984 whereby the conviction of the appellant under section 302, P.P.C. With sentence of life imprisonment and fine was upheld and his appeal was dismissed.
2. ' The facts and points noted for leave to appeal are that: "Ata Muhammad deceased in this case was the husband of Mst. Bhag Bhari. The case of the prosecution is that she developed illicit liaison with the appellant which came in the knowledge of the deceased. The deceased is said to have objected to this strongly preventing the appellant from visiting his dera.
3. ' On 27th December, 1980, Mst. Bhag Bhari started crying in the middle of the night and proclaimed that deceased had died a natural death owing to illness. However, when the body of the deceased was taken to his ancestral village the witnesses, on seeing the body found some marks of violence on it and suspected foul play. On questioning Mst. Bhag Bhari is said to have made an extra- judicial confession in presence of Muhammad Hayat, P.W., that by virtue of a plan she and the appellant, who was her paramour, committed the murder of the deceased. According to this extra- judicial confession, the appellant came and waited outside the house of deceased, and when the latter went to sleep, Mst. Bhagh Bhari called him (the appellant) inside and while she held the deceased by his legs, the appellant throttled him and killed him.
4. ' On the motive, i,e, that appellant and Mst. Bhag Bhari were on illicit terms, the prosecution produced Sardar P.W. The father of the latter. Reliance was also placed on the testimony of two wajtakkar witnesses, namely, Muhammad Nawaz (P.W.) and Ata Muhammad P.W., who testified that they met the appellant during the night of the occurrence and he told them that the deceased was ill and he was coming from his house. Reliance was also placed on extrajudicial confession of the appellant before witnesses.
5. ' The trial Court convicted both accused and sentenced them to life imprisonment, besides fine.
6. Mst. Bhagh Bhari did not challenge her conviction. However, the appellant appealed but his appeal has been dismissed by a learned Single Judge of the Lahore High Court vide judgment dated 8th July, 1984. The appellant then sought leave to appeal from jail.
7. ' In upholding the conviction of the appellant, the High Court, while rejecting the extra-judicial confession of the appellant, has relied on the confession of the co-accused Mst. Bhag Bhari. The important question thought fit for consideration was whether this evidence was sufficient to sustain the conviction of the appellant on a capital charge. The evidence of Sardar P.W., is to the effect that Mst. Bhag Bhari and the appellant were carrying on illicit relations and that in his presence the deceased had asked the appellant not to visit his dera. An important aspect of this case which seems to have escaped the notice of the High Court is that the extra-judicial confession made by the co-accused was retracted. Mst. Bhag Bhari pleaded her innocence at the trial. The wajtakkar evidence and the fact that there was illicit liaison between Mst. Bhag Bhari and the appellant can at best qualify as corroborative evidence. The retracted extrajudicial confession is also not direct evidence of the commission of offence. The rule is well laid down that unless a retracted extra-judicial confession of the co-accused is corroborated in material particulars it is not prudent to base conviction in a criminal case on its strength alone. There is no direct ocular testimony implicating the appellant in this case and therefore the question is whether the evidence produced by the prosecution sufficiently corroborates the retracted confession of the co-accused in material particulars to be made the foundation of the conviction of the appellant."
8. ' We have heard the learned counsel for the appellant as well as the learned Assistant Advocate- General and have gone through relevant parts of evidence.
9. ' The learned Assistant Advocate-General relying on some case-law stated that the extra-judicial confession even if retracted at the trial is good evidence and can be taken into account provided it satisfies the norms laid down in the precedent law. He has not gone into the question as to whether left alone such material would be treated as enough for furnishing "proof' as defined in the Law of Evidence or it can only be taken into account and further whether with oral without corroboration.
10. Thus we have examined this case with reference only to the point noted in the leave grant order "whether there was enough evidence/material to furnish sufficient corroboration to the retracted confession of the co-accused in this case (Mst. Bhag Bhari) on the assumption that in the facts and circumstances of this case corroboration was necessary".
11. ' Be that as it may, we have found corroboration in 3 important circumstances. One, that Mst. Bhag Bhari was at the time of occurrence an inmate of the house who in the normal circumstances would not only be knowing about the facts immediately leading to the death of her husband under same roof; but also, would be required to explain and/or show her innocence in that behalf. This would not be so if another person more in authority and position would either independently or in addition to such an inmate namely, the wife, would be present in such a house to be burdened with this responsibility. This is not the case here. Additionally another principle would come into play-- Mst. Bhag Bhari would be such a person in relation to the deceased who would be treated as having been last seen with him. She would be doubly required to explain the circumstances in which he met his fate. Thus this two way circumstance, establishing direct connection with the deceased furnishes a very strong corroboration to the retracted confession of Mst. Bhag Bhari. The Wajtakkar witnesses of this case also are not only reliable but their natural and unimpeachable deposition furnished very strong corroboration. The appellant told them at the Wajtakkar spot near the house of the deceased the same story which they received as information from Mst. Bhag Bhari. Both gave false casual connection and reason up to the death of the deceased and the language used by both was almost identical which establish pre and post planning. Yet another item of corroboration, though this is not the last one, is that Mst. Bnag Bhari told a lie to the Wajtakkar witnesses regarding the illness of the deceased. Last but not least is what those who immediately reached the spot saw and heard, what Mst. Bhag Bhari stated to them forming a part of res gestae furnished further corroboration to the retracted extra-judicial confession of Mst. Bhag Bhari.
12. ' In the light of the foreging discussion after hearing both the learned counsel we are satisfied that the conviction of the appellant is based on sound principles of appreciation of evidence in criminal cases. No justification has been made out for interference. This appeal is liable to be dismissed. It needs to be observed here that no cogent reason has been advanced by the High Court for awarding lesser sentence of life imprisonment and fine. To say the least it is not legally tenable. The learned trial Judge observed as follows in this behalf:- "This brings us to the sentence. Mst. Bhag Bhari accused has no doubt participated in this murder, but her role is that she caught hold of the deceased from his legs. Her role is no doubt active. She collaborated with Noor Muhammad accused. This killing was their joint adventure. She is female. I feel that I should refrain from imposing death penalty on this lady. Then there is Noor Muhammad accused. He is a young man.
13. ' He describes his age as 33 years. He is married and has a family. It is in fact a misfortune that this youngman somehow came into the contact with Mst. Bhag Bhari who is 50 years old lady. Nobody can say what was the actual reason for this passion but the two developed a liking for each other.
14. There was a disparity of age between the two lovers. Mst. Bhag Bhari was far more senior in age to Noor Muhammad accused. This makes me believe that Noor Muhammad accused was because of his love and affection for Mst. Bhag Bhari, under the influence of the lady. Both had of course passion for each other but I gather that the love which Mst. Bhag Bhari had was more passionate and she must be more assertive. Noor Muhammad accused seems to have been so much influenced by this immoral relationship of his with Mst. Bhag Bhari that he went to the extent of taking the life of her husband. One can say in these circumstances that Noor Muhammad accused was not having a free mind. He was obsessed by unusual love that he had somehow developed for this old lady. For these circumstances I refrain from imposing death penalty on this accused as well. The alternative sentence which is rigorous imprisonment for life is the befitting sentence to be imposed on both the accused. It is not shown that Mst. Bhag Bhari is possessed of sufficient means and, therefore, imposition of fine on her will not be justified."
15. With respect the High Court also seems to have upheld the reasoning for lesser sentence. In the facts and circumstances of this case the two accused conspired with each other for the prosecution of their illicit liaison and illegitimate pursuits with a view to murder her innocent husband. The obvious motive was absolutely enough to justify capital punishment. There is no need to discuss this aspect any further. This Court has already in the case of Muhammad Bashir v.
16. The State PLD 1982 Supreme Court 139 disapproved such approach in similar cases of murder as a result of illicit liaison and paramour connection and overruled several earlier decisions of superior Courts. We, therefore, do not approve of the lesser sentence in this case. But this finding would not result in any tangible change because the High Court not having exercised its revisional jurisdiction so as to enhance the sentence, there is no appeal before this Court to examine this aspect any further. This difficulty becomes more vivid and gets pronounced importance in view of the last commutation of wholesale universal death sentences. Even if the High Court would have sentenced the appellant to death in this case the same would have stood commuted. For all these reasons we leave this aspect of the case at that but with the foregoing remarks and observations.
17. ' In the light of the foregoing discussion this appeal is dismissed.