1. ' ABDUL RAHIM KAZI, J.---By this common judgment, we intend to dispose of the above three matters as these arise out of the same FIR, Sessions Case and involve the common question of fact and law.
2. ' Briefly the facts are that on 28-8-1987 at 05-00 hour F.I.R. Was registered at Clifton Police Station, Karachi at the instance of the accused Wazir Gul under section 302, P.P.C. As under: "I lived at the above address. I have appeared at the police station stating before me (duty officer)
3. S.I. Ghulam Fareed and also in presence of Head Constable Gul Muhammad HC 6489 (Roznamcha Moharar) producing blood-stained knife the Wazir son of Niamat Gul stated that he had frienship with Gulraiz son of Wazir Khan age about 12/13 years for the last three years, who lived at Mason Road some place away from my house. The father of Gulraiz, Wazir Khan who had arrived four/five months ago from abroad had stopped the Gulraiz to meet with me. I used to go to meet with Gulraiz in his Mohallah but I could not meet with him. That Munir, Muhammad Nawaz and Nisar were having knowledge about our friendship and I informed to all the three persons that the father of Gulraiz is stopping his son to meet with me. On 27-8-1987 at about 5-30 p.m. Gulraiz met with me in Katchi Para. We both enjoying reached Shireen Jinnah Colony and we went to Karam Club, Shireen Jinnah Colony at 10 p.m. There we met with Nawaz. We both played Karam Board at that time, the owner of the Karam Board and other boys were also present. I paid Rs,4 as Game charges.
4. We both came out from the Club at about 12-30 a.m. And movingly reached near the Bunda Para which is near the Sea Shore and sat on stone. I asked Gulraiz as to why he did not meet me for the last so many days he stated that his father has stopping him. During these talks there took a discussion and hot words were also exchanged and I having annoyed with the attitude of Gulraiz at about 2-30 a.m. Gave knife injuries one after one at stomach of Gulraiz from the front side with the present blood-stained knife as such Gulraiz fell down on the stone having received serious injuries who had died as the result of the injuries. I had shifted the dead body of Gulraiz at cemented Cricket Pitch and got the same laid down in flat supine condition and myself remained sitting near the dead body for some time in uncomfortable condition. My clothes are having blood of Gulraiz. I can show the place of injury and the place where the dead body was lying. I inform statement is correct."
5. ' The concerned Investigating Officer, namely, SIP Ghulam Fareed thereafter got the clothes of the accused, changed and recovered the same alongwith blood-stained knife and arrested the accused. He then visited the site on the pointation of the accused where he recovered the dead body of Gulraiz which had knife injuries. He also recovered the blood-stained earth, prepared the Mashirnamas and inquest report and sent the dead body for autopsy. The Investigating Officer then recorded the statements of P.Ws. And after completing the usual investigation and getting the confessional statement of accused recorded before the Magistrate, sent up the accused for trial.
6. The charge was framed by the 1st Additional Sessions Judge, Karachi on 7-12-1987 under section 302, P.P.C. The prosecution examined the following witnesses:--
(1) Mst. Marina Bibi, mother of the deceased as Exh.6.
(2) P.W.2 Sher. Muhammad as Exh. 6 uncle of deceased who acted as Mashir of Wardat and dead body.
(3) P.W.3 Bakhtzada as Exh. 11 who accompanied Mst. Marina Bibi for recording his statement.
(4) P.W.4 Muhammad Sarwar as Exh. 12, Mashir of recovery of bloodstained knife and clothes.
(5) P.W.5 Gul Muhammad as Exh.14, Mashir of recovery of blood-stained knife and clothes.
(6) P.W.6 Wasal Khan as Exh. 15 who last saw the accused and deceased.
(7) P.W.7 Muhammad Rafique as Exh. 16 who last saw the deceased in company of accused.
(8) P.W.8 Ghulam Farid as Exh. 17 Investigating Officer.
(9) P.W.9 Muhammad Khalid as Exh. 21 who took the dead body from the place of Wardat to Jinnah Hospital for post-mortem and deposited the sealed clothes of deceased.
(10) P.W.10 Dr. Abdul Hady Khan Sherwani as Exh. 23 (Chemical Examiner). He produced his report in positive.
(11) P.W.11 Dr. Zulfiqar Shaikh as Exh.24, who conducted the postmortem examination of deceased.
(12) .P.W.12 Arif Ellahi as Exh. 26, ACM, who recorded the confession of the accused.
7. ' The A.P.P. Closed his side and the statement of the accused was recorded under section 342, Cr.P.C. Wherein he denied all the charges alleged against him. The case of the accused is that he had friendship with the deceased; and that the father of the deceased, when he had come back from Saudi Arabia, had prevented the deceased from meeting the accused and had also threatened the accused of dire consequences. He further stated that he was arrested from his house at 9-30 a.m. On the same day. The accused did not examine himself on oath though chance was given. He, however, examined three witnesses in defence, namely, D.Ws. Chaman Gul, his brother, Fida Muhammad, a friend and Sahibzar on whose shop he worked for monthly salary. The trial Court after hearing the arguments framed the following points:
(1) Whether deceased Gulraiz was subjected to violence which resulted in his death?
(2) Whether the accused had intentionally caused his death?
8. ' The trial Court finding the two points against the accused convicted him under section 302, P.P.C.
9. And sentenced him to be hanged by his neck till he be dead. The accused is also fined to pay a sum of Rs,50,000 and in default to suffer R.I. For five years. He was further ordered to pay Rs,1,00,000 as compensation under section 544, Cr.P.C. To the legal heirs of the deceased. The said judgment has been referred in the above said Confirmation Case to this Court while the accused has also preferred Criminal Appeal No,179 of 1991 against the said judgment.
10. ' It may also be added here that the present appellant was sent up to stand trial under section 13-D of Arms Ordinance on account of recovery of the said knife. In this case also he was convicted and sentenced to suffer R.I. For two years and to pay a fine of Rs,10,000 or in default to suffer R.I. For a further term of six months. Being aggrieved, the appellant has preferred Criminal Appeal No,182 of 1991.
11. ' We have heard all these three matters together and intend to dispose of the same by this common judgment.
12. ' Taking up the first point, we observe that the prosecution has examined Sub-Inspector Fareed Khan (Exh.17) who has stated that the appellant had voluntarily surrendered at the police station; and that on his pointation he had recovered the dead body which had six knife injuries. These facts are also confirmed by P.Ws. Sher Muhammad and Muhammad Sarwar, the two Mashirs. The prosecution also examined Dr. Zulfikar Ali (Exh.24) who conducted the post-mortem of the deceased. His evidence also confirms the fact that the deceased had six incised wounds over anterior abdominal wall. In these circumstances, there is no doubt that the death of Gulraiz was caused on account of violence in the shape of knife injuries caused to him. There appears no reason to interfere with the finding of the trial Court as regards this point.
13. ' Now the most crucial is the second point and it has to be determined if the injuries, cause of death of Gulraiz were caused by the accused.
14. ' The prosecution has relied on the following evidence:--
(i) Statement of accused in F.I.R.
(ii) Judicial confession.
(iii) Circumstantial evidence of last seen with accused.
(iv) Motive.
(v) Recovery.
(i) STATEMENT OF ACCUSED IN F.I.R.
15. ' It may be observed that the accused after having committed offence, himself surrendered at the police station and got the F.I.R. Registered. In these circumstances, the contention of Mr. A.Q.
16. Halepota, the learned counsel for appellant is that this F.I.R. Is not to be taken into consideration as evidence against the appellant as the same amounts to confession before the police officers. He has placed reliance on the case of Ghulam Muhammad and another v. State (PLD 1961 (W.P.)
17. Lahore 146). In this case it has been held by a Division Bench that the first information report made by accused amounts to a confession before the police officials and is not admissible in evidence.
18. However, in the same case it has been held that the such circumstances not amounting to confession can be admitted in evidence.
19. ' As against this the learned Assistant Advocate-General has placed reliance on the following cases:--
(a) Gullan and 2 others v. The State (1976 PCr.LJ 1).
(b) Muhabbat v. The State (1975 PCr.LJ 882).
20. ' In the first case it was held that statement in FIR of inculpatory nature is inadmissible in evidence, whereas, in the latter case it was in an identical case held that where the accused after commission of offence had himself reported the incident at police station; and that his such report formed the basis of FIR, only the incriminating part alone could not be considered in evidence but the rest could be considered. In view of the above cases, we are of the law that in the present case also the FIR to the extent of inculpatory statement against the accused would not be treated as evidence by itself but the rest would be admissible. Keeping this principle in mind we proceed to examine the other evidence.
(ii) JUDICIAL CONFESSION ' The learned counsel for appellant has challenged the voluntariness of the confession on a number of grounds. According to the learned counsel this confession which is retracted by the accused cannot be used against the accused for the reasons to be discussed hereinafter. First contention of the learned counsel is that the confession is recorded in English, the language not understood by the accused and, therefore, the same is not in accordance with law. He has submitted that this confession itself shows that the accused put his signatures in Urdu and, therefore, the confession could have been recorded in Urdu and not in English. He has placed.
21. Reliance on the case of Abdul Haleem v. The State (1984 PCr.LJ 611). In this case their Lordships have observed that the accused was an Urdu speaking person while the confession was recorded in Sindhi; and that there was no trace of evidence present to indicate that confession was read over and explained to accused in Urdu. Thus it may be observed that in the instant case the confession could not be accepted for the reason it was neither read out nor explained to the accused in the language that he can understand. In the present case the original confession which is at page 57/58 of the R&P of the trial Court (not incorporated in paper book) shows that there is a Certificate at the foot of the confession duly signed by the Magistrate on 29-8-1987 which reads "the accused is read out this confession in the language that he understands and he has accepted the same as correct". This Certificate is written and signed by the Magistrate in the same ink and is in handwriting in which the confession is recorded. This confession also bears the signature of accused. Thus, it may be seen that this Certificate is in conformity with the provisions of section 364(1), Cr.P.C. Which reads as under: "364. Examination of accused how recorded.--(1) Whenever the accused is examined by any Magistrate or by any Court other than a High Court, the whole of such examination including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers."
22. ' In addition to this the Certificate has also been given by the Magistrate as required under subsection (3) of the above said section 364, Cr.P.C.
23. ' The learned counsel for appellant has then submitted that no warnings were administered to the accused as are mandatorily required and, therefore, the confession recorded by the accused is also not voluntarily made and cannot be relied upon. He has placed reliance on the case of Bagh Ali v. Muhammad Anwar and another (1983 SCM R 1292). In this case it was held by their Lordships that where the usual warnings were not given to the accused before he was given time for reflection and where he was given in custody of police after recording the confession and the version disclosed in confession is contrary to the prosecution story, such confession was unworthy of credence or reliance. However, in the same case it has been held by their Lordships that it is for the Court to determine whether the confession was given voluntarily. He has also placed reliance on the case of Dost Muhammad v. The State (PLD 1982 Kar. 1000) wherein their Lordships had given benefit of doubt to accused wherein the confessional statement was defective, incriminating articles were also doubtful and in absence of ocular evidence, the evidence of last seen was also unreliable. Reliance is also placed by the learned counsel on the case of Tauqeer Alam and 9 others v. The State (1985 M LD 604) wherein it was held that the Magistrate recording the confession should satisfy himself, as a mandatory duty, that accused was making the confession voluntarily; and that accused is not to be handed over to the same police. In the same case it was also held that Court should be more careful in examination of evidence where the attempt is made to create sensationalism and excessive publicity is given to the case. Lastly, the learned counsel has placed reliance on the case of Rasool Bux and another v. The State (PLD 1964 (W.P.) Quetta 6). In this case it was held by their Lordships that in case of retracted confession independent corroboration is necessary. However, in the same case it was also held that the conviction of the appellant for murder was proper where the confessional statement in case of retracted confession was corroborated by evidence of independent witnesses and recovery of crime weapon stained with human blood.
24. ' As against this the learned Assistant Advocate-General appearing for the State has placed reliance on the case of Wazir Khan v. The State (1989 SCM R 446), wherein their, Lordships have been pleased to hold that no legal bar exists for recording a conviction on a confession which is subsequently retracted if such confession is found to be made voluntarily, true and not suffering from any infirmity. The learned A.A.-G. Has further placed reliance on the case of Muhammad Sharif v. The State (1969 SCM R 521). In this case it was held by their Lordships that mere fact that a person making confession is remanded back to police custody does not by itself make the confession involuntary. He has also placed reliance on the case of Joygun Bibi v. The State (PLD 1960 SC 313). In this case their Lordships have held that where the voluntariness and truth of the confession is established, the same would not be ruled out of consideration simply because it was retracted. Lastly on this point the learned Assistant Advocate-General has placed reliance on the case of Mehar Gul Shah v. The State (PLD 1962 (W.P.) Peshawar 91) wherein also their Lordships have held the same principle.
25. Thus it would be seen that even a retracted confession is admissible in evidence provided it is determined to have been made voluntarily and freely. In such circumstances all that is necessary is that the Magistrate recording the confession should be satisfied from the conduct and appearance of the accused coming from police custody that he has not been coerced or subjected to torture; and that he is giving the confession voluntarily and freely. It has also to be determined that he has been administered warnings as required under law which have been elaborately mentioned in the case of Abdul Haleem v. The State as referred to above, wherein at page 619 it was held as under:- "As soon as accused is produced for confession his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him:--
(i) For how long have you been with police?
(ii) Has any pressure been brought to bear upon you to make confession?
(iii) Have you been threatened to make confession?
(iv) Has any inducement been given to you?
(v) Why are you making this confession?
(vi) Have you been maltreated by police?
26. ' After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim."
27. ' It has also to be seen as to whether the version disclosed to confession is not inconsistent or contrary to the prosecution story as held in the case of Bagh Ali v. Muhammad Anwar by the Hon'ble Supreme Court as cited above.
28. ' Keeping this principle in mind, we proceed to examine the evidence brought by the prosecution on this point. In the confession the accused has specifically stated as under: "I met the deceased Gulraiz Khan at 5-30 p.m. On 27-8-1987 and we roamed around Shireen Jinnah Colony and then at 12-30 a.m. We went to the beach near Shireen Jinnah Colony Clifton and we talked for about 1-1/2 hours and thereafter I killed him with a knife by stabbing him in the stomach for about six times. I, thereafter, picked him up and laid him on cricket pitch nearby and sat with him and then left him to get cigarette and Pan, I came back to him after ten minutes and then I again left him and went to the police station.
29. ' I killed him because he used to roam with me since last three years as his father was out of the country. But when his father Wazir Khan came back, he stopped Gulraiz Khan to roam with him.
30. Then for six months Gulraiz did not meet him. Thereafter, when I met him after six months, I killed Gulraiz Khan."
31. ' Now the Magistrate P.W. Arif Ellahi is the person who has recorded the confession. He was a newly- appointed Magistrate having only 5/6 months experience to his credit. However, in his deposition he has specifically stated that he had recorded the statement of the accused under section 164, Cr.P.C. He is subjected to a very lengthy cross-examination wherein he has specifically stated that the accused was repeatedly asked if the statement was being given by him voluntarily and if he requires any assistance but the accused stated that he does not require any assistance; and that he was giving the statement voluntarily. The Magistrate in his cross-examination has also stated that he did ascertain if there were any marks of violence or torture on the body of the accused by looking at his body and had asked him to take off his clothes and personally examined the same and was satisfied that there were no such marks. He has produced the confession as Exh. 27 (We may observe that entire confession has not been reproduced in paper book as the same was not placed in the record of the trial Court at one place but is at two different places in the R & P). The original confession in file of the R & P at pages 107/108 is the printed form under section 164, Cr.P.C.
32. Which shows- the various questions to be asked from the accused and his replies; and that he was given due time for reflection etc. This confession also shows that (1) police were told to go out; (2) they had no access to him; (3) accused was provided water; (4) accused was provided a chair; (5) accused was given time for reflection; (6) handcuffs were taken off. This form also contains the declaration as required under section 164(3), Cr.P.C. The other part of confession is at pages 57/58 of the R & P of the trial Court wherein the accused has confessed his guilt. The accused in his statement recorded under section 342, Cr.P.C. Answering the last question "have you anything else to say?" has amongst many other things stated that he was not kept in lock-up and he was not handcuffed while being taken to the Court (for recording confession) but all that he has said is "that he was told that after obtaining his signatures he would be set at liberty".
33. ' From the above discussion, it can safely be assumed that the confession of the accused was voluntarily and freely recorded; and that the contents of the confession are not inconsistent or contrary to the prosecution story.
34. (iii)--CIRCUMSTANTIAL EVIDENCE OF LAST SEEN WITH ACCUSED ' Now we come to the circumstantial evidence i,e, the evidence of last seen. On this point the case of the prosecution is that the deceased who was assassinated at 2-30 in the night was seen and with accused on the previous evening and till late in the night. In addition to the statement of the accused given in confession the other evidence is that of mother of deceased P.W. Marina Bibi, the Pan Wala P.W. Muhammad Rafiq and P.W. Wasal Khan the employee at Karam Board Shop. The mother of the deceased Marina Bibi in her evidence had stated that the deceased was studying in 4th class in Marry Men School and accused was friend of deceased who used to go with him. She further states that her husband had prevented the deceased from going with the accused; and that on 27-8-1987 when she was returning in Bus to her house at Kemari, she saw her son the deceased with accused at about 6-00 p.m. She called her son but he ran away with the accused.
35. She has been cross-examined at length but she could not be contradicted on this point. The other witness P.W. Wasal Khan is an employee at the Karam Board Shop of Mahmood Punjabi in Shireen Jinnah Colony. In his examination-in-chief he states that the accused used to come to his shop along with deceased where they played Karam. The evidence of this witness is quite vague as he does not state particularly if on the night of the incident the accused and the deceased had come to the shop. The next witness on this point is P.W. Muhammad Rafiq who owns a Pan Shop. In his examination-in-chief this witness has stated that at about 10-30 p.m. The accused and the deceased had come to his shop and after purchasing the Pan they went away. He further states that after some time the accused came alone to his shop and demanded the Pan when he noticed some drops of red colour on his clothes but he cannot say if the same were blood stains or Pan stains. The evidence of this person appears to be quite independent as there is nothing in the cross-examination to shatter the said testimony. The deposition of this witness alongwith that of the mother would certainly show that on the previous evening the deceased was seen with the accused as they did loitering about. The learned counsel for appellant has submitted that such evidence would not give rise to any inference against the accused. He has placed reliance on the case of Shamsuddin Sarkar v. The State (PLD 1959 SC (Pak.) 269). The facts of this case are different than the facts of the present case and the same would not be applicable to this case. The learned counsel has also placed reliance on the case of Rasool Bux and another v. The State (PLD 1964 (W.P.) Quetta 6) wherein their Lordships have been pleased to hold that mere fact that accused and deceased were seen together immediately before occurrence would not by itself be sufficient to record the conviction. He has also relied upon the case of Dost Muhammad v. The State (PLD 1982 Kar. 1000) wherein it was held by their Lordships that the last seen evidence given by unreliable witnesses will not be worthy of credit. In the present case, there is nothing on record to suggest that the evidence of the witnesses i,e, the mother of the deceased and Pan Wala cannot be relied upon as nothing has been adduced in cross-examination to shatter their testimony. We are, therefore, inclined to rely on the evidence of these two witnesses.
(iv) MOTIVE ' As disclosed in the prosecution case, the motive obviously appears to be that the deceased had a friendship with the accused; and that the father of the deceased having returned from Saudi Arabia was not happy with this friendship and had prevented his son from meeting the accused. It is in the evidence that since the previous afternoon the deceased had been with the accused. The learned counsel for appellant has argued that it is an admitted position that prior to incident the father of the deceased had gone back to Saudi Arabia; and that in spite of the mother calling the deceased he ran away with the accused and, therefore, the motive, if any, does not continue. He further submitted that the deceased was very much with the accused. We may observe that the significance of the friendship or relationship between the accused and deceased can be ascertained from the statement made by accused in his confession "yes, I loved him and I cried after killing him." It is also the statement of the accused that on that night he had taken the deceased to the sea shore where they sat on the stones and after exchange of hot words, the accused gave knife blows to the deceased. Obviously the accused became so angered and rash as probably the deceased was not willing to concede to something which the accused wanted.
36. Thus, possibly of the motive cannot be ruled out.
(v) RECOVERY ' The next question for determination is recovery of weapon used in commission of the crime i,e, knife and the recovery of blood-stained clothes of the accused. The said articles were recovered by the police at the time the accused appeared at police station at 5-00 hours and got the F.I.R.
37. Registered. The Investigating Officer at the time of registration of F.I.R. Had recovered the blood- stained knife and also the blood-stained clothes from the person of the accused. He has made such note at the foot of the F.I.R. (Exh.18), P.W. Muhammad Sarwar, Mashir has fully supported the Investigating Officer. The learned counsel for appellant has argued that this witness who is police constable could not be a reliable witness; and that efforts should have been made to secure an independent witness. It may be kept in mind that the accused had surrendered at the police station where there could be no independent witness at such odd hours of 5-00 a.m. Even otherwise there is no bar to a police officer being a witness in the case unless mala fides are shown and proved against him which are lacking in the present case. From this evidence the recovery of the knife and blood-stained clothes stand proved. This knife and blood-stained clothes were sent for examination to Dr. Abdul Hadi Khan Sherwani, the Chemical Examiner. His report is positive.
38. Accordingly, we are of the view that the recovery also stands proved by the prosecution. It is also established that the size of the blade of the knife used in commission of offence is over four inches.
39. ' From the above discussion, it is obvious that this is a case of no ocular evidence. The entire case depends on the confession of the accused, circumstantial evidence of the deceased having been last seen with the accused, motive and the recovery of the incriminating articles such as knife and blood-stained clothes of the accused as well as recovery of the dead body. The above discussion would show that the confession is voluntarily and freely made by the accused though subsequently retracted at the time of trial. This confession is not inconsistent or contrary to the prosecution case. The contention of the learned counsel for appellant that the whole prosecution story and the entire facts were .Already known to the Investigating Officer and, therefore, their incorporation in the confession would give rise to inference against the prosecution or that in such circumstances the confession would not be admissible in evidence, cannot be accepted. The reasons are that the confession is not verbatim the same as in the F.I.R. And also omits certain details or particulars stated in the F.I.R. From this it appears that at the time of recording of confession the accused has narrated the facts in his own way and are not dictated by the concerned police officer. As regards the evidence of last seen the evidence of the mother of deceased has not been shattered. The motive and the recovery also stand proved as discussed above.
40. In view of the above discussion, we find no grounds to interfere with the judgment passed and conviction awarded by the trial Court. However, on the point of sentence, we are of the view that no doubt this is a gruesome murder but at the same time we cannot ignore the fact that the accused is a young man of about 20 years who has just entered into the realities of life and, therefore, taking a lenient view, we convert the death sentence to the sentence of life imprisonment and also direct that the accused shall pay a fine of Rs,1,00,000 which if recovered shall be paid to the heirs of the deceased under section 544, Cr.P.C. In default of payment of fine the accused shall suffer rigorous imprisonment for further five years.
41. ' With the above modification in sentence, the two appeals are dismissed and the reference is also disposed of.