' JAWAID NAWAZ KHAN GANDAPUR, J.--- By this judgment I propose to dispose of the following:--
(i) Criminal Appeal No,85 of 1993 Niaz Muhammad alias Niazi v. The State.
(ii) Jail Criminal Appeal No,113 of 1993 Niaz Muhammad alias Niazi v. The State.
(iii) Murder Reference No,5 of 1993.
2. The two appeals mentioned above are directed against the order of Additional Sessions Judge, Peshawar (Mr. Shah Jehan Khan), dated 20-6-1993 vide which he convicted the appellant under section 302, P.P.C. And sentenced him to death (to be hanged by the neck till he be dead) and to pay a fine of Rs,1,00,000 (Rupees one lac) or in default thereof to undergo further R.I. For five years. It was also ordered that in case of recovery of fine, half of the amount shall be paid to the heirs of the deceased under section 544-A, Cr.P.C.
3. Murder Reference No,5 of 1993 has also been put up, to .Us for confirmation.
4. Hazarat Ullah son of Sher Afzal (P.W.10) was killed on 29-7-1989 at 6 p.m. The unfortunate occurrence took place on a pathway situated within the limits of Landi Akhun Ahmad which is at a distance of one mile from Police Station Pushtakhara. The incident was reported by Sher Afzal (P.W.10), the father of the deceased, on the same day at about 6-40 p.m. Vide F.I.R. No,366, which was recorded by A.S.I. Farman Ali (P.W.3).
5. The prosecution case, in brief, as disclosed in the first information report that the complainant (P.W.10) was present in his house, when he heard the report of the fire shots, as a result of which he rushed out of his house and saw Niaz Muhammad accused son of Amir Muhammad, duly armed with a Kalashnikov, running towards his (accused) house, that thereafter he saw quite a few people gathering at the pathway situated at a little distance and therefore, he also went there. That as soon as he reached there, he found his son Hazarat Ullah lying dead. He noticed that it was the same place from where the accused, after causing the death of his son, had decamped. It has been alleged that the occurrence was witnessed by many persons.
6. The motive for the occurrence was stated to be an altercation, over a petty matter, which took place, between the accused and the deceased, sometime before the occurrence on the eventful day.
7. The investigation of the case was entrusted to S.I. Qazi Saeed (P.W.8). He rushed to the spot and found dead body of the deceased lying there. He prepared injury sheet (Exh.P.W.8/1) and inquest report (Exh.P.W.8/2) in respect of the deceased and sent the dead body to the mortuary, under the escort of F.C. Tehseenullah (P.W.4). There the dead body was identified by Gul Afzal (P.W.12) and thus the post-mortem examination was conducted by Dr. Shahid Kundi, whose report was later proved by Dr. Nazir Khan (P.W.14).
8. In the meantime, the S.I. (P.W.8) prepared the site plan (Exh.P.W.8/3). During the course of spot inspection, he collected the bloodstained earth (Exh.P.1) and took the same into his possession vide recovery memo. Exh.P.B., in the presence of A.S.I. Firdaus Khan (P.W.1). He also took into his possession the blood-stained shirt (Exh.P.2) and Shalwar (Exh.P.3), belonging to the deceased, which were sent by the doctor, mentioned above, who did the autopsy and sealed them into a parcel vide memo. Exh.P.B.1.
9. Thereafter he raided the house of the accused to arrest him and for the recovery of incriminating weapon of offence. However, the accused was not traceable. Accordingly he applied for warrants of arrest (Exh.P.Q.) under section 204, Cr.P.C. And proclamation (Exh.P.R.) under section 87, Cr.P.C. In respect of the accused. All this yielded no result and proved ineffective, as stated by F.C.
Muhammad Youths (P.W.6).
10. Sub-Inspector P.W.8 sent the blood-stained earth along with the clothes of the deceased to the Chemical Examiner, for examination and analysis and the report received in this behalf is Exh.P.K.
11. He recorded the statement of the complainant (P.W.10) and also of the eye-witness, namely, Fazal-e-Mola (P.W.11). As a result of what has been stated above the then S.H.O. (now Security Officer) Hidayatullah (P.W.7) submitted challah under section 512, Cr.P.C. Against the accused.
12. It was on 23-4-1990 that, the accused was arrested by Inspector Muhammad Rafique (P.W.9) who obtained his police custody. However, before the expiry of the police custody S.I. Hassan Khan (P.W.13) produced the accused before the Ilaqa Magistrate Tayyab Awan (P.W.5) who recorded his confessional statement (Exh.P.F.) on 25-9-1990, after observing all the legal formalities.
13. After the completion of the investigation, the local police submitted complete challah against the accused in the Court of Additional Sessions Judge, Peshawar for trial.
14. At the trial, the accused pleaded not guilty to the charge leveled against him and claimed innocence. He stated that he was falsely charged for the commission of the offence because of the bitter relationship which existed between the parties.
15. To prove its case, the prosecution produced and examined as many as fourteen 14) witnesses, most of them mentioned above. The accused did not produce any evidence in his defence. After taking into account the prosecution evidence and hearing the parties, the learned Additional Sessions Judge, Peshawar convicted the accused under section 302, P.P.C. And sentenced him--
(a) to death, and
(b) to pay a fine of Rs,1,00,000 or in default thereof to undergo further R.I. For 5 years.
' He also directed that in case of the recovery of fine, half of the amount of fine be paid to the heirs of the deceased under section 544-A, Cr.P.C. Hence two appeals were filed by the accused, one directly in this Court and the other through Jail. Murder Reference was also sent for confirmation.
16. I have heard Barrister Zahur-ul-Haq learned counsel for the appellant and Mr. Muhammad Tahir Hussain Lughmani learned A.A.-G. For State assisted by Mr. Muhammad Safdar Khan, Advocate for complainant and have gone through the evidence, with some degree of care, with their help. The fate of instant case mainly hinges on the ocular testimony of Fatal-e-Mola (P.W.11), confessional statement (Exh.P.F), circumstantial evidence of Sher Afzal/complainant (P.W.10) and the abscondence of the accused, motive apart.
17. At the very outset, the learned counsel for the appellant has attacked the evidentiary value of the statement of Sher Afzal (P.W.10) on the grounds that he is not an eye-witness and had reached the spot on hearing the report of fire shots, while that of Fazal-e-Mola (P.W.11) on the ground that his name does not find mention in the F.I.R. He further alleged that both the witnesses were related inter se as well as with the deceased and that they had strained relations with the appellant and were inimically disposed towards him. According to him none of these witnesses received support/corroboration from any independent source/quarter. Likewise, retracted judicial confession of the accused/appellant is not corroborated, in material, by any other untarnished evidence. He further submitted that, in short the conviction rests, either on no evidence or on evidence which is of no legal consequence, that on this score/account the accused appellant is entitled to be acquitted.
18. A close scrutiny/analysis of the evidence on record, we have noticed an important fact which is that the scene of occurrence is situated on a pathway near which Fazal-e-Mola (P.W.11) son of Muhammad Afzal, owns the land and his contention that he was present at the relevant time in his field and cutting the fodder for his cattle is not only probable but is also natural. He was not cross- examined on this score. On the contrary his presence at the time and place of occurrence is confirmed/established from the very cross-examination directed against him. He was present, when the place of occurrence was inspected by the Investigating Officer, to whom he pointed out various events connected with the commission of the crime. The mere fact that the name of this witness was not mentioned in the F.I.R. Would not, in the circumstances of this case, raise an inference that he has been grafted in this case. Similarly Sher Afzal (P.W.10) who lives in the same locality and the proximity between his house and the scene of occurrence, as is apparent from the site plan (Exh.P.W.8/3), would make him the most natural witness of the occurrence. On his own accord, he stated that he left his house on hearing report of shots and came across the accused/appellant while decamping from the spot duly armed with a Kalashnikov and found his son Hazarat Ullah lying dead at a very short distance of a few paces. He then lodged the F.I.R. At the police station, within 40 minutes, excluding all chances of fabrication of a story or false implication of the culprit. In other words, the accused/appellant was named/ nominated in the F.I.R. With promptitude against whom neither of the said two witnesses had any acrimony, generosity, enmity, hostility, ill-will or spite. They have no motive or bias to depose against the accused falsely.
The time of firing, flight of the accused from spot, as seen by Sher Afzal (P.W.10) and then seeing the dead body of his son at a few paces, furnishes an inference that the appellant being the culprit is so probable that a prudent man, under the circumstances of the case in hand, ought to act upon the supposition that it exists. This inference is confirmed by the positive statement of Fazal-e-Mola (P.W.11) who stated that the appellant was armed with Kalashnikov and as soon as the deceased, whom he was following, turned towards him (the accused) as a result of his call, he fired indiscriminately on him. The medical evidence and the post-mortem examination shows that the deceased had received fire entry wounds with corresponding exit wounds, besides the cross- wound. This pattern of injuries is quite consistent with the version given by P.W.11. The motive as alleged was not challenged. The fact of long ascendance of appellant has been duly proved by the evidence of D.F.C. Muhammad Younas (P.W.6) and that of Investigating Officer S.I. Qazi Saeed (P.W.8). Both these factors, undoubtedly, give additional/further strength to the evidence of Sher Afzal (P.W.10) and Fazal-e-Mola (P.W.11) and establishes the involvement of the appellant in the crime. Non-recovery of empties or weapon of offence would not dilute the version given by these two truthful witnesses.
19. The matter does not end here. The moment the appellant was charged for committing the murder, he ran away and became a fugitive/absconder. He was arrested on 23-4-1990 by Inspector Muhammad Rafiq (P.W.9) who took his police custody. It was on 25-4-1990 that P.W.9 produced the appellant before the Magistrate, Mr. Muhammad Tayyab (P.W.5) who, after observing all the legal formalities, recorded the confessional statement (Exh.P.F.) of the appellant. The learned counsel for the appellant could not point out any flaw or defect in the manner in which the confessional statement was recorded, in accordance with law. The testimony of the Magistrate, who recorded the confessional statement (though retracted at the trial) of the accused would show, beyond any doubt, that the admission of guilt made by the appellant was not the result of coercion, undue influence, inducement or promise and that it was made by him out of his free will.
There is no denying of the fact that the appellant has retracted from the confession but the version given in the confessional statement is in line with the medical evidence and the ocular testimony. It may be noted that the fact that the appellant is also related to the complainant and has shown no enmity against him, supported the prosecution case in substance: Accordingly, we have no hesitation to hold that the retracted c confession, in this case, was not only voluntary but was also true. It is well-settled that if the confession is found to be voluntary and true then in that case, it can validly form the basis of conviction and that there remains no need, at all, to look for further corroborative evidence. However, it may be mentioned, that in this case, the confessional statement, though retracted, finds corroboration from medical evidence, motive and prolonged ascendance of the appellant/accused.
20. Taken in this context, in our opinion, the prosecution has been able to establish its case against the accused for killing Hazaratullah deceased, beyond any reasonable doubt. We, therefore, maintain the conviction of the appellant-accused under section 302, P.P.C.
21. The question of sentence, however, remains to be considered. It was stated by Sher Afzal (P.W.10) that an altercation had taken place between the appellant and the deceased over a petty matter.
The cause and the nature of the altercation has not been unfolded/ascertained. Similarly Fazal-e- Mola (P.W.11) has not disclosed as to what had transpired between the appellant and the deceased immediately before the unfortunate occurrence took place. In the absence of any enmity, it still remains a mystery as to why a relative should resort to firing straightaway, unless, of course, something nasty had happened as a result of unjustified provocation. In our opinion, the prosecution has deliberately and purposely suppressed the reasons for which the appellant had killed the deceased. In view of the inadequate motive and the mystery surrounding the background of the offence, I refrain myself from visiting the appellant with the extreme punishment of death. I accordingly do not confirm the death sentence and instead substitute it with life imprisonment, which will meet the ends of justice, in the circumstances of this case. With this modification, the appeals are rejected.
' NASIR-UL-MULK, J.--- This judgment shall dispose of Criminal Appeal No,85 of 1993, Jail Appeal No,113 of 1993 both filed by the convict appellant and Murder Reference No,5 of 1993 sent up by Sessions Judge, Peshawar under section 374, Cr.P.C.
2. The appellant was convicted by the Additional Sessions Judge, Peshawar, by order and judgment, dated 20-6-1993 under section 302, P.P.C. For the murder of Hazratullah son of Sher Afzal and sentenced to death and a fine of Rs,1,00,000 in default whereof to suffer further 5 years' R.I. Half of the fine if realized was to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
3. The foundation of the prosecution case was laid by F.I.R. No,366 (Exh.PA.) registered by Farman Ali, A.S.I. At Police Station Pishtakhra on 29-7-1989 at 6-40 p.m. On the information of Sher Afzal son of Safirullah (P.W.10) wherein he divulged that on the same day he was present in his house when at about 6 p.m. He heard shots fired outside the house, which prompted him to go out of the house to have a look. Outside his house, he saw the appellant armed with a Kalashnikov running with a speed towards his own house and a group of people who had gathered near a path. He went towards the group only to find that his son Hazratullah was murdered. He held the appellant responsible for the murder and the motive alleged was an altercation of not much significance between the appellant and the deceased earlier on the same day.
4. After registration of the case, Qazi Saeed, Acting S.H.O. Of the Police Station (P.W.8) rushed to the spot to investigate the case. He found the dead body of the deceased still lying on the spot and he prepared its injury sheet Exh.P.W.8/1 and inquest report Exh.P.W.8/2 on the spot and dispatched the dead body to the mortuary under the protection of Tehsinullah F.C. (P.W.4). The site plan Exh.P.W.8/3 was prepared at the instance of Fazal Maula (P.W.11). Blood-stained earth P.1 was taken into possession and sealed into a parcel vide recovery memo. Exh.P.B. The blood-stained shirt and Shalwar of the deceased were handed over by P.W. Tehsinullah and sealed into parcel vide recovery memo. Exh.P.B./1. The blood-stained earth and the bloodstained clothes of the deceased were sent to the Chemical Examiner for analysis who by his report Exh.P.K. Found the blood on all the 3 articles to be of human being and of the same group. As the accused could not be arrested, warrant of arrest and proclamation Exh.P.Q. And Exh.P.R. Respectively were issued against him and were entrusted to P.W. Muhammad Younis D.F.C. For execution. After completion of the investigation, a challan under section 512, Cr.P.C. Was submitted by Hidayatullah Khan, S.H.O. Of the police station. The appellant was arrested on 23-4-1990 nearly 9 months after the occurrence. On 25-4-1990, he made a confessional statement before Muhammad Tayyab Awan, M.I.C. (P.W.5) and on 27-4-1990 a supplementary challan was submitted to the trial Court.
5. The appellant was charged under section 302, P.P.C. He pleaded not guilty and opted to face trial. The prosecution produced 13 witnesses at the trial in support of its case. Firdaus Khan A.S.I.
(P.W.1) was examined as a marginal witness to recovery memo. Exh.P.B. Through which blood- stained earth was taken into possession from the spot. Syed Afzal, A.S.I. (P.W.2) is a marginal witness to recovery memo. Exh.P.B./1 through which blood-stained clothes of the deceased were sealed in a parcel. Farman All A.S.I. (P.W.3) drafted the F.I.R. Tehsinullah (P.W.4) escorted the dead body of the deceased to the mortuary for post-mortem examination. Muhammad Tayyab Awan, M.I.C. (P.W.5) recorded the confessional statement of the accused. Muhammad Younas D.F.C.
(P.W.6) was entrusted with the warrant of arrest under section 204, Cr.P.C. (Exh.P.Q.) against the accused which were returned unnerved. Hidayatullah S.H.O., Police Station Pishtakhra (P.W.7) submitted challah under section 512, Cr.P.C. Before the trial Court. Qazi Saeed (P.W.8) is Investigating Officer. Muhammad Rafique Inspector S.H.O. Police Station Pishtakhra -(P.W.9) arrested the accused on 23-4-1990 arid submitted supplementary challan before the trial Court.
The complainant Sher Afzal was examined as P.W.10 and his nephew Fazal Maula, the eye-witness, as P.W.11. Gul Afzal (P.W.12) identified the dead body of the deceased at the mortuary. Hassan Khan (P.W.13) produced the accused before the Magistrate for recording of his confessional statement.
As Shahid Kundi, the doctor who conducted the post-mortem examination was not available, Dr. Nazir, Medical Officer (P.W.14) testified that he was well-conversant with the handwriting of Dr. Shahid Kundi and that the post-mortem report was in his handwriting. The post-mortem examination of Hazratullah deceased was conducted at 8-35 hours on 30-7-1989 the report reads as follows:- "External Examination: ' A young man of 25/30 years of age. Rigor mortis developed Postmortem staining present.
Injuries
(1) 1/4" x 1/4", 2-1/2" below from left assulla at back 6-1/2" left to midline back and 6" from tip of left shoulder.
(2) 1/4" x 1/4", 5" left to midline, 12-1/2" from tip of left shoulder.
(3) 1/4" x 1/4", 3" left to midline of back 7" to left iliac crest.
(4) 1-1/2 x r, 2" above sterno clavicular notch.
(5) 1-1/2 x 1" on right shoulder, 1" left to shoulder tip, 4" right to neck side (Rt.).
(6) 2" x 1-1/2", 5" Rt. To midline of back, 6" above Rt. Iliac crest.
(7) 1/4" x 1/4" lateral margin of left elbow-joint.
(8) 1" x 1/2" on medial aspect of right elbow joint 6" below left axilla.
(9) 1/4" x 1/4", 5-1/2" below and left to umbilicus 3" left to midline of stomach.
(10)2" x 1-1/2", 1" medial to right iliac crest.
(11)Cross-wound 1/4" x 1/4", 2-1/2" to right of midline of chest wall 3" below right mid clavicular point.
(12)1" x 1/2", 1" right to right nipple 2" to left of right asulla.
' Note.-- Injuries Nos.1, 2, 3, 7 and 9 are entry wounds while injuries Nos.4, 5, 6, 8, 10, 11 are exit wounds and injury No,12 is cross-wound.
Internal examination ' Thorax: Walls, ribs and cartilages, pleurae, larynx and tracheas, right lung were injured.
' Abdomen: Walls, peritoneum, mouth, pharynx and esophagus, diaphragm, small intestines and large intestines injured. Semi-digested food was present in the stomach.
' In the opinion of the doctor, the cause of death was shock due to hemorrhage to vital organs due to fire-arm. Probable time between injury and death 0 to thirty minutes and between death and post-mortem 8 to 16 hours."
6. After the close of the prosecution case the appellant was examined under section 342, Cr.P.C.
The defense did not produce any evidence nor did the appellant opted to be examined on oath under section 340(2), Cr.P.C.
7. The prosecution case rests upon the confession, the ascendance of the accused and the ocular testimony comprising of the statement of the complainant of having seen the appellant running away from the spot after the occurrence and P.W. Fazal Maula, the only eye-witness in the case. For fixing the venue of occurrence, reliance has been placed on the recovery of bloodstained earth from the spot.
8. Mr. M. Zahoorul Haq, Barrister, on behalf of the appellant contended that it was an witnessed crime in that the complainant P.W. Sher Afzal does not claim to have witnessed the crime and the testimony of the sole eye-witness of the crime, Fazal Maula P.W., is to be ruled out of consideration as he was not named in the F.I.R. Infirmities in the statements of these two witnesses were pointed out to show that they were not credible. That the confession is to be discarded as it was neither voluntary, being recorded on the 4th day of the appellant's arrest, nor true, for it was inconsistent with the rest of the prosecution evidence. Moreover, it was exculpatory for in it the appellant had taken the plea of self-defence. In the circumstances the learned counsel for the appellant contended that abscondence of the appellant would be of no avail to the prosecution as abscondence by itself is not enough for conviction of the appellant as the same can be used as corroborative piece of evidence only in cases where the prosecution evidence is otherwise sufficient to base conviction 'on.
9. For the State, ,Mr. Tahir Hussain Lughimani, Assistant Advocate-General, argued that the prosecution case is supported by two witnesses, one of them had seen the occurrence and the other had seen the appellant running away from the spot too thereafter. That the inconsistencies in the ocular testimony are so insignificant that they deserve to be ignored as the same can be attributed to ordinary human frailty. It was urged that the confession of the appellant is voluntary and that the ocular testimony receives corroboration from the confessional statement and the unsatisfactorily explained abscondence of the appellant of about 9 months. The learned Assistant Advocate-General also pointed out that there is nothing on the record to show the motive for false implication of the appellant. On the other hand, the prosecution has attributed a motive to the appellant for murdering the deceased.
10. The eye-witness account of the manner in which the murder took place has been given by P.W.
Fazal Maula, the sole eye-witness in the case. Thus, in order to appreciate the prosecution evidence, it is appropriate to give a resume of the narration of the event given by him at the trial.
According-to him, on the day of occurrence at about 6-00 p.m. While he was busy in his field cutting grass for his cattle he saw the deceased Hazratullah going towards his own house. He was followed by the appellant, who was armed with a Kalashnikov. He heard the appellant calling the deceased to stop, which the latter did and after stopping turned his face towards the appellant. At that very moment the appellant fired at the deceased who was hit and died then and there.
11. Fazal Maula P.W. Was not named by the complainant in the F.I.R., though the complainant in his statement before the trial Court admitted that the said P.W. Was present near the dead body of the deceased when he arrived at the scene of occurrence. While Fazal Maula P.W. Was the nephew of the complainant and also an eye-witness of the occurrence one fails to understand why he did not accompany the complainant to the police station for registration of the case. Strangely 'enough, this P.W. Did not go to the mortuary along with the corpse of the deceased. He claims to be an eye- witness and for that matter the only one, but he kept the knowledge of the commission of the crime to himself as a guarded secret. When the complainant, the father of the deceased arrived at the spot, Fazal Maula did not disclose the crime story to him, which omission he tried to explain in the cross-examination that the complainant had not made any inquiry of him about the murder of his son. The natural response should have been for Fazal Maula to have an his own narrated the incident to the complainant soon on his arrival without waiting for the inquiry. Again, he admits that he did not narrate the story to any of the persons gathered on the spot. He did not even volunteer to give a statement about the occurrence to the Investigating Officer when the latter arrived at the spot, as according to the Investigating Officer P.W. Fazal Maula narrated the incident only after inquiries about the occurrence were made from the people generally gathered at the spot. This is not the natural conduct of a sole eye-witness of the murder of his cousin.
12. Moreover, his testimony at the trial has been contradicted in material particulars by other evidence in the case. His assertion that the dead body was placed in a cot and shifted to the police station is contradicted by the complainant and the Investigating Officer both of whom have stated that the dead body was not taken to the police station but was dispatched from the spot to the mortuary. Fazal Maula P.W. Says that the police had arrived at the spot within 15 minutes of the occurrence while the Investigating Officer states that it took him 15 minutes after 6-40 p.m. To reach the spot, whereas the occurrence had taken place at 6 p.m. This P.W. Even tried to conceal the fact about the murder of his father. He denied in his cross-examination a suggestion to that effect and claimed that his father died of natural causes but the brother of his father, Gul Afzal (P.W.12), admitted in his cross-examination that the father of Fazal Maula had been murdered.
13. Even the account given by P.W. Fazal Maula of the manner in which the deceased was done to death by the appellant does not inspire confidence. There was no reason for the appellant to follow the deceased and kill him right in the presence of his cousin P.W. Fatal Maula, when the deceased could have been killed earlier as the two were stated to have come from the same direction. Again, if the purpose was only to kill the deceased, then in the absence of any allegation of taunting by the appellant, there was no occasion for him to have called the deceased to stop before firing at him. Furthermore, the presence of Fazal Maula at the scene of occurrence has not been corroborated by recovery of the cut grass or the sickle used by him for cutting the same. The site plan which was prepared at his instance omits a very important location, namely the point from which the appellant is alleged to have fired.
14. Additionally and more importantly the omission of the name of Fazal Maula in the F.I.R. Casts a serious doubt on his presence at the scene of H occurrence. In Ghulam Muhammad and others v.
The State PLD 1975 SC 588 and Mamoon and another v. The State PLD 1962 (W.P.) Kar. 800 it has been held that the testimony of an eye-witness not been named in the F.I.R. Is to be ruled out of consideration. This rule is to be applied with full force in the I present case as the complainant had admitted at the trial that he had met Fazal Maula before going to the police station for lodging the report.
' Thus, the scrutiny of the testimony of P.W. Fazal Maula drives one to the inevitable conclusion that neither did he see the occurrence nor did he appear at the spot after the commission of the crime.
15. Sher Afzal P.W., the complainant is admittedly not an eye-witness to the crime but only claims to have seen the accused running from the spot soon after the occurrence, which was the only basis for the inference drawn by him that the appellant was the murderer of his son. The appellant was not seen by this witness near the dead body of the deceased but at some distance therefrom, for, according to the site plan the point at which the complainant and the appellant crossed each other was located at a distance of 84 paces from the point where the dead body was lying. At best, therefore, the testimony of the complainant can only furnish evidence that he saw the accused with the Kalashnikov at some distance from the dead body. Having said that the testimony of the complainant is not free from certain material infirmities. The incidents of firing in this part of the country is so common that it should not make a person inquisitive and drive him out of his house to find out the reasons therefor. The complainant again acted unnaturally when he did not make any enquiry about the murderer of his son from the people who had gathered around the dead body. It is also strange that he did not converse with his nephew, P.W. Fazal Maula who was already present there. While at the trial, the complainant had stated that P W Fazal Maula was present at the spot, he did not name him in the F.I.R. The story regarding the manner in which the complainant reached the police station does not appear very realistic. He claims to have taken a lift from a stranger on a scooter but neither narrated the incident to him nor inquired about his name. The testimony of the L complainant does not therefore, appear to be free from doubt for whatever it is worth.
16. This leaves us with the confessional statement of the appellant which was recorded by the Magistrate in Urdu, the English translation of which is as under:-- "Hazratullah is my distant relative. A few days before the occurrence an altercation had taken place between Salimullah, brother of Hazratullah and my maternal uncle, Nazar Hussain. Thereafter my said uncle had taken my Kalashnikov to a wedding party. Hazratullah and his brothers who were present at the wedding suspected that Nazar Hussain had brought the Kalashnikov with the object of harming them. On inquiry, they found that I had given the Kalashnikov to my uncle, on account of which they conspired and planned to deprive me of the Kalashnikov. I had not known about the quarrel between my uncle and Salimullah about which I learnt after I murdered Hazratullah. On the day of occurrence, I and Hazratullah went to the fields where Hazratullah told me to hand over the Kalashnikov to him but I refused. Hazratullah had .30 bore pistol. He fired four shots at me, none of which hit me. In response I also fired at him with my Kalashnikov as a result of which he died on the spot. Thereafter I went to the tribal area. I do not possess license for Kalashnikov. I sold the Kalashnikov in Bara."
17. Reliance can be placed by the prosecution on confessional statement of the accused if the same is true and voluntary. It must further not be exculpatory. To test the truthfulness of a confessional statement, the story narrated therein by the accused requires examination in juxtaposition with the rest of the prosecution evidence. According to the confessional statement of the appellant, the occurrence has taken place in the fields while according to the other prosecution evidence namely, site plan, testimonies of P.W. Sher Afzal and Fazal Maula and recovery of blood, the deceased was murdered on a path. Thus, regarding venue of occurrence the confessional statement is in conflict with the rest of the prosecution evidence. According to P.W. Fazal Maula, the appellant and the deceased were going in the same direction at a distance of 7/8 paces immediately before the occurrence but according to the confessional statement, at that time they were not walking but were facing each other. Furthermore, contrary to the statement of Fazal Maula, the deceased, according to the confessional statement had also fired at the appellant.
Regarding motive, the confessional statement is also in conflict with the prosecution case. The complainant as well as P.W. Fazal Maula had given an altercation between the deceased and the appellant as the motive for the offence whereas the motive given in the confessional statement is the annoyance of the deceased and his brothers on the appellant's lending of his Kalashnikov to his uncle Nazar Hussain who had an altercation with the deceased's brother, Salimullah. In material aspects the confessional statement of the appellant is in conflict with the prosecution story of the incident. It is thus untrue and on this score alone deserves to be excluded from consideration.
Furthermore, the confessional statement was recorded on the 4th day of the arrest of the appellant. Though according to the statement of P.W. Muhammad Rafique S.H.O. The appellant was arrested on 23-4-1990 whereas his statement was recorded on 25-4-1990, the appellant had in answer to a question by the Magistrate had claimed that he had been in police custody for four days. The Magistrate P.W. Muhammad Tayyab has confirmed the appellant's version. The Karachi High Court in Abid Hussain Shah v. The State 1983 PCr.LJ 882 and Hamza v. State 1983 PCr.LJ 892 has held that a confessional statement recorded three days after the arrest of an accused needs to be thrown out on the ground of involuntariness.
18. Another aspect of the confessional statement is its partly exculpatory and partly exculpatory nature. The appellant had admitted to have fired at the deceased but only after he survived the firing at him by the deceased. Materially similar case came up before the Supreme Court of Pakistan in Najib Raza Rahmani v. The State PLD 1978 SC 200 where the Supreme Court had to deal with a confessional statement wherein the accused had admitted to have fired at and killed the deceased but only after the deceased had attempted to commit sodomy on the accused. The Supreme Court declared this statement as not a confession and held:-- "If the appellant had merely said in his so-called confession that he had fired at the deceased, it would have been an exculpatory statement. But what he said was that he had fired at the deceased after the deceased had opened the string of his trouser. In other words, he had fired at the deceased after the deceased had attempted to commit sodomy on him, and under section 100 of the Penal Code, the right of private defiance of the body extends even to the voluntary causing of death...."
' The august Supreme Court in coming to its conclusion on this kind of confessional statement relied upon the judgment of the Privy Council in Pakala Narayana Swami v. Emperor AIR 1939 PC 47 and quoted the following passage of Lord Atkin from the said judgment:- "As the point was argued however and as there seems to have been some discussion in the Indian Courts on the matter it may be useful to state that in their Lordships' view no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. An admission that the accused is the owner of and was in recent 'possession of the knife or revolver which caused a death with no explanation or any other man's possession."
19. Seen in the light of the rule aforementioned, the statement of the appellant before the Magistrate does not merit to be called a confessional statement. The appellant had taken the plea of self-defiance which if accepted would negative the charge of murder under section 100, P.P.C.
20. For the reasons foretasted, the confessional statement of the appellant is to be ruled out of consideration on all three grounds, for it has been found to be untrue, involuntary and exculpatory in nature.
21. As the ocular testimony has been disbelieved and the confessional statement has been discarded, the ascendance of the appellant by itself cannot be made the basis for conviction.
22. Resultantly, the case against the appellant has not been proved on account of insufficiency of evidence. This appeal is therefore, allowed and the conviction and sentence of the appellant is set aside and he is acquitted of the charge framed against him. He be set at liberty forthwith if not required in any other case. Consequently, Murder Reference No,5 of 1993 is answered in the negative.
' ABDUR REHMAN KHAN, J.--- This appeal has been referred to me under section 378 read with section 429, Cr.P.C. For decision by the learned Chief Justice in view of the difference of, opinion between the learned members which had earlier heard it. One of the learned members composing that Bench was of the view that the appeal of the appellant should be accepted and he be acquitted while the other learned Judge had concluded that the conviction should be maintained but the sentence should be reduced to the imprisonment for life.
2. The appellant was found guilty for the murder of Hazratullah and on conviction by the learned Additional Sessions Judge, Peshawar under section 302, P.P.C. Through the impugned judgment, dated 20-6-1993, he was sentenced to death and a fine of Rs,1,00,000 or in default to undergo five years' R.I. Out of the fine, if realised, half of it was ordered to be paid to the legal heirs of the deceased.
3. The murder of Hazratullah which had occurred on 29-7-1989, at 6-00 p.m. Was reported to the police by his father Sher Afzal (P.W.10) the same day at 6-40 p.m. It was stated in the report that he was present in his house when he heard fire shots outside. He immediately came out and noticed Niaz Muhammad (appellant) armed with Kalashnikov running speedily towards his house. Many persons had gathered on the thoroughfare and when he reached the spot he found his son lying murdered there. Niaz Muhammad was named as the killer and he was seen while running from the spot. Many people who were present on the spot had witnessed the occurrence. The reason for the murder was shown as some altercation between the accused and the deceased the same day in the morning.
4. The material evidence examined in the case by the prosecution consists of P.W.1 Firdaus Khan A.S.I. Who testified to the correctness of recovery memo. Exh.P.B. By which blood-stained earth had been picked up from the spot. P.W.3 is the scribe of the F.I.R. At the instance of the complainant.
P.W.4 escorted the dead body of the deceased from the spot to the mortuary. The Magistrate who had recorded the confession of the accused appeared as P.W.S and deposed that the confession was recorded after he was satisfied that the accused was confessing his guilt voluntarily. P.W.6 is the D.F.C. Who had executed the warrant of arrest and proclamation against the accused as he was avoiding his arrest. P.W.8 was working as acting S.H.O. Those days and he partly investigated the case. When he reached the spot he found the dead body of the deceased there and he prepared his injury sheet and inquest report. He also prepared the site plan and recovered blood from the spot. He could not arrest the accused as he was not available and, therefore, obtained warrant and proclamation and got them executed. He had submitted challah against the accused under section 512, Cr.P.C. P.W.9 Muhammad Rafiq Inspector was then S.H.O. Of the concerned police station. He arrested the accused on 23-4-1990 and produced him before the Court the same day and obtained police custody. On 25-4-1990 the accused was produced before a Magistrate by Hassan Khan Sub-Inspector. P.W.10 is the complainant of the case who supported his F.I.R. And almost repeated the allegations made therein. There is, therefore, no need to repeat. Fazal Maula who was examined as P.W.11 posed himself to be an eye-witness and furnished ocular account of the occurrence. He stated that he was cutting fodder in his fields at 6-00 p.m. When he noticed the deceased going to his house followed by the accused armed with Kalashnikov. The accused asked the deceased to stop and when the latter turned his face towards the former then at that time he was fired at. After receiving the injuries the deceased fell down and died on the spot. On the arrival of the Investigating Officer he showed him the spot and the details of the incident on the basis of which the site plan was prepared. He gave the motive as altercation between the accused and the deceased on "petty matter": P.W.12 Gul Afzal, a brother of the complainant, identified the. Dead body of the deceased. In cross-examination he admitted that his brother Muhammad Afzal (father of Fazal Maula P.W.) was murdered for which the complainant was charged and also admitted that Samiullah a son of the deceased and a brother of P W Fazal Maula to be a proclaimed offender.
P.W.13, a Police Officer arrested the accused on 23-4-1990 and after the expiry of police custody produced him before a Magistrate for recording his confession. P.W.14 is Dr. Nazir Khan, Medical Officer who had worked with Dr. Shahid Kundi and was conversant with his handwriting and signature. The post-mortem examination was conducted by Dr. Shahid Kundi and he identified his signature on various documents.
5. The accused when examined under section 342, Cr.P.C. Pleaded innocence and false involvement. He denied ascendance and stated that he was with his father in Texila. He also described the confession as a result of torture.
6. It was argued by the learned counsel representing the appellant that it was an witnessed crime as the allegations of the complainant having seen the accused running from the spot and that of Fazal Maula, the eye-witness, having witnessed the incident are absolutely neither proved nor these are believable. The unnatural and illogical aspect of the former while the weak and uncorroborated nature of, the latter were also highlighted. It was in this context pointed out that how the firing in the street in a densely populated village caused that much anxiety to the complainant to prompt him to immediately come out of the house. On his way from the house to the spot he does not bother to ask anybody about the firing but incidentally happens to see the accused running from the spot in a corner of the thoroughfare from point No,3 in the site plan at a distance of 140 paces from his house and in-between the two spots there is also village Abadi. It is admitted that many persons of the village had by then reached the spot but none informed him about the occurrence nor he asked anyone about the assailant. The site plan indicates that the accused in that haste after allegedly committing the offence had managed to run up to a distance of 84 paces from the place where the deceased was found killed but the complainant who had not that much apparent urgency had covered much greater distance from his house towards the spot where he allegedly came across the accused. All these appear to be contrary to the Rules of logic.
In any case his deposition is of presumptive nature and no explicit reliance can be placed on it so to hold the accused guilty in a criminal trial for a capital offence. The position of Fazal Maula who deposed as an eye-witness is also no better than the complainant. It was very easy and was in a way normal for the complainant to have named him in the F.I.R. As an eye-witness as he was his nephew and thus a first cousin of the deceased. It was also natural for P.W. Fazal Maula to have at least informed his uncle of having witnessed the episode. If he had been actually present on the spot then he would have been much more active at that moment and would have declared his presence before the complainant and would have definitely informed of what had happened on the spot. In view of such a relation between the informant and the witness and the peculiar circumstances of the case the non-mention of the name of P.W. Fazal Maula in the F.I.R. Assumes much S significance. It could thus not be explained at all as to what prevented the complainant to have named this witness as eye-witness in the F.I.R. And what debarred Fazal Maula from apprising the complainant of the real situation on the spot and of his having witnessed the murder. It is to be noticed that the complainant in cross-examination admitted the presence of his brother Gul Afzal and Firdaus his sister's son on the spot before he reached there. The number of the close relations who were present on the spot thus comes to three but still none tried to resist the accused or chased him after the firing or at least informing the complainant of their presence on the spot. It was stated by the Investigating Officer (P.W.8) Fazal Mola P.W. Alleged himself eyewitness of the incident and had not volunteered that he had seen the incident. In fact from inquiring all the people present there. Fazal Mola disclosed that he had witnessed the occurrence". There is also no credible evidence to lend support to his presence on the spot as he stated that at the relevant time he "was cutting fodder for my cattle" but he neither produced the sickle nor could show the cut fodder to the Investigating Officer. It is also noteworthy that the site plan was prepared at his instance but he could not show the place from where the accused had fired at the deceased. The evidence of this witness intrinsically appears not creditworthy as leaving aside any support from any I other circumstances it is rather falsified by medical evidence. He stated in his statement "in the meantime I heard the accused Niaz Muhammad called upon Hazratullah deceased to stop.
With response to the call of accused Niaz Muhammad, deceased Hazratullah stopped and turned his face towards accused. In the meantime accused Niaz Muhammad started firing with his klashnikov on the deceased, as a result of which he was hit, fell down and died on the spot". This obviously indicates that the deceased should have received all the injuries on the front but according to the medical evidence injuries 1, 2, 3 and 6 are on the back. The injuries on the person of the deceased indicate that he received numerous injuries and naturally some empties should have been found on the spot when particularly this witness showed his presence on the spot and other close relations Firdaus and Gul Afzal had also reached the spot as they all could easily guard the spot and could prevent anybody from taking the empties. I am, therefore, not inclined to rely on the testimony of Sher Afzal and Fazal Maula for indictment of the appellant on the charge of the murder. The next item advanced by the prosecution for conviction is the . Confession of the accused. The touchstone for a confession to be acted upon are that it must be voluntary, true and must not be in conflict with the evidence U brought on record by the prosecution. If tested on these criteria it would appear that the alleged confession does not qualify this test. But the most crucial point about the confession in this case is that it cannot be termed as exculpatory. The confession is an admission of guilt and, therefore, the statement denying guilt cannot qualify as confession. The exculpatory portion of the confession in this case negatives the very commission of the offence as it was stated in the confession that he fired at the deceased -after he had fired four shots at him with his pistol. This is a positive plea of self-defiance and does not amount to admission of guilt rather it justifies the murder of the deceased for his aggression and on that count the accused thought that the right of private defiance was available to him. In such a situation the advancement of this plea of self-defiance was obviously to deny his guilt and not to confess it.
Moreover, this confession is also in conflict with the other evidence on record as the evidence indicates the spot to be a thoroughfare while the confession shows the V field as the place of crime. Besides this the motive for the crime in the other prosecution evidence is also different from the confession. Therefore, such a confession cannot be made basis for conviction. The motive advanced by the prosecution could not be substantiated as no evidence was produced on this point. The prosecution also relied on abscondence but this is always considered as supporting the incriminating evidence in the case and has never been treated by its own force as sufficient for a finding of guilt. In this case the testimony of the complainant has been disbelieved, the ocular account has been discarded; the confession has been ruled out of consideration and the motive has been held not to be proved, therefore, by the mere fact of abscondence the accused cannot be held guilty.
7. It was at some stage of the hearing of the case felt as to whether the referee Judge has to agree with the opinion of one of the Judges of the Division Bench or he would be at liberty to form his own independent opinion on the basis of the evidence on record. The learned Advocates produced the following precedent cases to clear this point:--
(i) PLD 1971 Lah. 292 and 708, PLD 1963 (W.P.) Kar. 92, PLD 1964 (W.P.) Peshawar 67,
(iv) PLD 1971 Lah. 292,
(v) 1975 PCr.LJ 957,
(vi) AIR 1953 Orissa 160 and
(vii) 1983 PCr.LJ The perusal of the above judgments and the reading of sections 378 and 429, Cr.P.C. Makes it clear that the Judges to whom the case is referred for decision would independently assess the evidence and would form his own opinion about it. The cumulative effect of the precedent case is that the case is not to be referred again to the Division Bench which had heard it and the decision would not be that of the majority rather it would be the opinion of the referee Judge which would have decisive effect and would be of binding nature and the judgment or order will follow such opinion.
' For the reasons detailed in the above pares. Of the judgment hold that the case against the appellant has not been established beyond reasonable doubt. In consequence of this opinion I allow the appeal, set aside the conviction and sentence imposed on the appellant and direct that he be set at liberty unless wanted in connection with the some other case. The death sentence is not confirmed.