' SH. RIAZ AHMED, J.---This judgment shall dispose of above two appeals filed by convicts Khan Muhammad and Mst. Kanizan alias Kaneez Fatima assailing their conviction on charges under section 302/34, P.P.C. On five counts. Both the appellants were tried on the aforesaid charges by an Additional Sessions Judge at Toba Tek Singh for having caused the murders of Mst. Maryam Bibi aged 36 years, Aslam aged 14 years Shaukat aged 4 years, Liaqat aged 8 years, Razia aged 6 years and Safia aged 9 years. It may be stated here that Mst. Maryam Bibi deceased was wife of appellant Khan Muhammad and the other five deceased children named above were off springs of appellant Khan Muhammad born out of the wedlock between him and Mst. Maryam Bibi deceased. Vide judgment, dated 7-1-1991 both the appellants were found guilty on the aforesaid charges and were, thus, convicted and sentenced to death on each count and to pay a fine of 20,000 each on each count or in default to suffer further R.I. For a term of 5 years each on each count.
2. Aggrieved by their convictions, the appellants assailed the same through an appeal filed in the Lahore High Court while the case was also referred by the Additional Sessions Judge under section 374, Cr.P.C. Vide judgment, dated 7-21994 the appeal preferred by the appellants was dismissed by a Division Bench of the Lahore High Court and the death sentences awarded to the appellants were confirmed. The appellants then called in question their conviction and sentence through two petitions sent through jail and vide order, dated 12-12-1994 leave was granted to the appellants to consider the legality of the judicial confessions alleged to have been recorded on oath.
3. The facts of the case are that Khan Muhammad appellant and deceased Mst. Maryam Bibi were married to each other 16/17 years before this occurrence. Out of the wedlock three deceased sons and two deceased daughters named hereinbefore were born. Deceased Mst. Maryam Bibi was still full term pregnant. On the night between 27 and 28-7-1989 Mst. Maryam Bibi and her son Shaukat slept together on her cot while her sons Aslam and Liaqat deceased slept on another cot.
Deceased daughter Safia and Razia slept on a third cot in the courtyard of their house. Another son of the appellant Khan Muhammad and deceased Mst. Maryam Bibi, namely, Ashraf had gone to another Chak. Appellant Khan Muhammad, his mother Mst. Moondan and his nephew Alam Sher and Yasin were sleeping outside their house at a distance of about 4 Kanals. In the morning appellant Khan Muhammad on entering the house found his wife and children dead in the courtyard. Neck of Mst. Maryam had been cut and injuries had been caused with sharp-edged weapon on her shoulder and right hand as well. The necks of Aslam, Liaqat, Shaukat deceased and those of Safia and Razia deceased were also found to have been cut with a sharp-edged weapons.
Appellant Khan Muhammad raised an alaram whereupon villagers reached there. According to the appellant, somebody had done away with his family out of enmity, but he had no suspicion to cast upon any body for the commission of the crime.
4. Ghulam Abbas S.H.O., Inspector Police Station Pir Mahal, recorded the statement of Khan Muhammad appellant in the terms as stated above and on the basis thereof a formal F.I.R. Was scribed by Muhammad Aslam, Head Constable on 28-7-1989.
5. During the investigation of the case, S.H.O., Inspector visited the spot where the dead bodies were lying on three cots. The Investigating Officer collected blood-stained earth and cots into possession and sent the dead bodies for autopsy. It also came to light that in fact the murders had been committed by the appellant Khan Muhammad himself alongwith appellant Mst. Kanizan alias Kaneez Akhtar. On 9-8-1989 appellant Khan Muhammad was arrested and blood stains were noticed on his loincloth and Patka, which were taken into possession. On the same day, Mst.
Kanizan was also arrested and blood stains on her Shalwar were also noticed, which was taken into possession.
6. On 14-8-1989 appellant Khan Muhammad in custody led the police and got recovered a blood- stained hatchet, which was taken into possession. On the same day, appellant Mst. Kaneezan in custody led the police to the eastern room of the house of appellant Khan Muhammad and got recovered blood-stained Churri, which was also taken into possession.
7. On 20-8-1989 the appellants volunteered to make confessional statement and thus they were produced before the Resident Magistrate, Pir Mahal and the learned Magistrate after compliance of all the formalities recorded the confession of both the appellants and remanded them to judicial custody. The Reports of the Chemical Examiner and Serologist confirmed that earth, hatchet and Churri were stained with human blood. On autopsy the doctor found one injury each caused with a sharp-edged weapon on the bodies of all the deceased. In the opinion of the doctor, death had occurred on account of shock and haemorrahge. The doctor further noticed that Mst. Maryam Bibi was full term pregnant and the unborn child in her uterus was also dead.
8. In brief, to prove its case at the trial, the prosecution produced Muhammad Nawaz, P.W., who had witnessed the recovery of hatchet at the instance of Khan Muhammad. Noor Muhammad another witness deposed that he had seen both the appellants coming out of the house of Khan Muhammad, the place of occurrence early in the morning of the night of incident. Muhammad Azam, real brother of Mst. Maryam Bibi deceased also entered the witness box and stated that he knew Mst. Kaneezan appellant, who was living in Chak No,741-GB and that both the appellant had developed illicit relations and were carrying on with each other. Syed Ausaf Shah, Magistrate, who recorded, the confessional statement also entered the witness-box and stated that before recording the confessional statements of the appellants, he had provided them full opportunity to think over the matter. The Magistrate also deposed that both the appellants were not under any type of pressure or inducement when he had recorded their statements. The Magistrate further deposed that after having satisfied himself that statements were being made voluntarily, he proceeded to record the confessions. The Magistrate had also warned them that in case they made the confessional statements, the same could be used against them in evidence and further that the appellants were not bound to made such statements.
9. With the assistance of the learned counsel, we have perused the confessional statements and we have noted that the learned Magistrate had taken all the precautions and had complied with all the formalities as envisaged under section 364, Cr. P.C. Before recording the confessional statements questions were put to the appellants and in reply the appellants stated that they were making voluntary statements without any fear, coercion or inducement. Appellant Khan Muhammad in his confession stated that a month and a half before the occurrence he and Mst.
Kaneezan made a plan under which he had been setting certain house on fire. According to the appellant Khan Muhammad, he reached the house of Mst. Kaneezan appellant in Chak No,41 at about 11 a.m. And Mst. Kaneezan appellant gave him some intoxicant asking that the same should be administered in tea to the children. The appellant in accordance with the plan administered the said intoxicant to the children. Mst. Kaneezan appellant had told him that she would reach the house of her uncle in the evening. On the night of the occurrence when everybody had gone asleep, she reached near the cot of appellant Khan Muhammad, who was sleeping outside the house. Appellant Mst. Kaneezan then inquired as to whether the intoxicant had been administered.
On receipt of reply in affirmative, she asked the appellant Khan Muhammad to go and see whether all the inmates were sleeping or not. Appellant Khan Muhammad checked and came back and reported to Mst. Kaneezan appellant that his wife and all the children were sleeping. Then both the appellants entered the house. Appellant Khan Muhammad was armed with a hatchet while Mst.
Kaneezan was armed with a churri. Appellant Kan. Eezan caught hold of legs of Mst. Maryam Bibi deceased wife of appellant and Khan Muhammad inflicted a hatchet blow from its sharp side on the neck of Mst. Maryam Bibi while she was sleeping. The appellant then repeated another blow whereupon after a little cry Mst. Maryarn Bibi became silent. Thereafter, Mg. Kaneezan cut throat of Mst. Maryam Bibi with the Churri. In the same fashion all the children were killed by both the appellants with hatchet and Churri After killing Mst. Maryam. Bibi and the daughters, namely, Safia and Razia, appellant Khan Muhammad refused to further participate in the commission of the crime and told that he could not kill his children whereupon Mst. Kaneezan then killed Aslam, Liaqat and Shaukat with the Churn and in this process appellant Khan Muhammad had caught hold of the three deceased boys. The appellant Khan Muhammad in his statement further stated that he had committed this crime at the behest of appellant Mst. Kaneezan because she had told him that she would marry him after killing his wife and children.
10. After taking all the precautions under section 364, Cr.P.C., as in the case of appellant of Khan Muhammad, confessional statement of Mst. Kaneezan was also recorded, who stated that she had give the intoxicant to Khan Muhammad for administering the same to his children. In sub and substance, she made the statement in line with the statement for Khan Muhammad giving the minutest details of the commission of crime and the same tallied with the statement of Khan Muhammad.
11. In support of this appeal, it was vehemently argued that the perusal of the confessional statement shows that they were recorded on oath. We have noticed that each statement starts with the expression and thus on the basis of the use of said term, it was stated that the same was inadmissible as held by this Court in the case reported as Muhammad Bakhsh v. The State (PLD 1956 SC 420). We have carefully considered this aspect of the case and we have noticed that the learned Magistrate had taken all the precautions and had faithfully complied with all the formalities as envisaged under section 364, Cr.P.C. He had put necessary questions to both the appellants to satisfy himself that the confession was being made voluntarily. He had also administered warning to the appellants that their statements can be used against them in evidence and after having satisfied himself he proceeded to record the statements of both the appellants. In this view of the matter, we are not prepared to believe that the learned Magistrate, who was well-cognizant with the law, would have administered oath to the appellants before recording their statements. In our view, as a matter of routine the expression was written and in fact no oath had been administered. We are fortified in this view by the fact that no question was put to the Magistrate in cross-examination about the administering of oath to the appellants. Had oath been administered as contended on behalf of the appellants, such social question would have been asked from the Magistrate in this cross-examination. Failure on the part of the defence to put the said question goes a long way to show that in fact no oath had been administered to the appellants.
12. It was further contended that the appellants were arrested on 9-8-1989 and their custody having been remanded to the police, their confession was recorded on 20-8-1989 and, therefore, the same cannot be termed voluntary. We have considered this aspect of the case and we are of the view that this issue cannot be resolved in its generality, but each case has to be considered on its own facts. Delay in recording the confession by itself cannot render the confession nugatory if otherwise it is proved on record that the same was made voluntarily. We are fortified in this view by a judgment of this Court reported as Muhammad Ismail and another v. State 1995 SCM R 1615.
13. Having concluded that no illegality had been committed in recording the confession, we are of the view that in law the conviction on the basis of retracted judicial confession alone is sustainable provided the confession has been recorded in accordance, with law. However, by way of abundant precaution, if we seek corroboration to the confession, the same is available on the record of this case. The recovery of hatchet at the instance of appellant Khan Muhammad and his clothes, Chadar and Patka and of Shalwar of Mst. Kaneezan, which they were wearing at the time of their arrest, were found to be stained with human blood corroborates the confessional statements. The recovery was proved by Muhammad Nawaz and Ghulam Abbas Inspector similarly the Churri recovered from appellant Mst. Kaneezan was also found stained with human blood. As far as motive for the omission of the crime is concerned, statements of both the appellants and that of Muhammad Azam, brother of Mst. Maryam Bibi deceased, clearly show that with a view to cementing the illicit relations between the appellants into marriage after F eliminating his own wife and children stands proved on record. In our view, this was the most dastardly act committed by both the appellants. Looking at the passion of lust, which resulted into death of innocent children, who were still blooming into age.
14. On behalf of the appellants reliance was also placed upon the statement of Khan Muhammad appellant recorded under section 342, Cr.P.C., in which it was stated that 20 years before this occurrence, one Naika brother-in-law of Mst. Maryam. Bibi deceased, Azam and Sultan P.W.s was murdered at his Dhari. The heirs of Naika suspected Khan Muhammad appellant for having committed the said murder and thus with a view to taking revenge, they came to his house. As Khan Muhammad appellant was not present in his house, the aforesaid heirs of Naika murdered his wife and children . Such statement of appellant Khan Muhammad and the bare denial of Mst.
Kaneezan appellant are devoid of force and are afterthought. Similarly, their denial to have made the confession does not at all help them.
15. To sum up, we are of the view that the prosecution has proved its case beyond any shadow of doubt. The nature of the voluntary confessions cannot be I G doubted and the same also stands amply corroborated by the recoveries of the blood-stained clothes, earth and weapons.
16. Resultantly, these appeals fail and are hereby dismissed.