' SARDAR MUHAMMAD RAZA KHAN, J.--- One Khuna Gul son of Mir Muhammad was involved in a murder case arising out of F.I.R. No,561, dated 22-9-1991 of Police Station Kalu Khan, District Swabi.
On 22-5-1993 he was to appear before the Court of Sessions. His two brothers, namely, Sherin Zada and Malook came to the Court premises. After attending the Court both the brothers started for Mardan from Swabi in Flying Coach No,SB-553. When the vehicle stopped at Shawa Adda falling in between, a man, subsequently, to be identified as Noor Gul son of Rehman Gul of Gohati, got up from the left side armed with a pistol and opened fire at Sherin Zada and Malook. Both the brothers sitting on the same seat got injured. Sherin Zada was serious than his brother Malook and so succumbed to his injuries on his way to the police station. The assailant Noor Gul with the assistance of Traffic Police was arrested before he could escape. A case under, section 302/324/109, P.P.C. Was registered against Noor Gul at Serial No,342 of Police Station Kalu Khan, Swabi.
2. The circumstances under which Noor Gul was charged and especially the circumstances under which he got physically apprehended, he had no choice but to confess his guilt before the police and lastly, on 26-5-1993, before a Magistrate of the 1st Class, Swabi. The brief and relevant portion of the confessional statement was that he was a hired assassin and was engaged by Hazrat Bilal son of Ali Haider of village Gohati who had to avenge the murder committed by Khuna Gul and hence Sherin Zada, the brother of Khuna Gul was got murdered through a hired assassin.
3. Noor Gul and Hazrat Bilal were charged and Noor Gul was indicated to face trial under section 302/324/109, P.P.C. During his trial Hazrat Bilal co-accused had remained an absconder. In nutshell, Noor Gul was convicted and sentenced to death by the Court of Sessions. This conviction and sentence was upheld upto the Supreme Court and the death sentence awarded to Noor Gul was executed.
4. After such execution of Noor Gul, Hazrat Bilal surrendered, was tried by learned Additional Sessions Judge, Swabi and vide his judgment, dated 11-2-1998, was sentenced to imprisonment for life and a fine of Rs,30,000 in connection with murder under section 302/109, P.P.C. And was also sentenced to imprisonment for eight years and a fine of Rs,15,000 under section 324/109, P.P.C. For causing injuries to the complainant. A sum of Rs,50,000 was awarded in addition as compensation under section 544-A, Cr.P.C. Convict Hazrat Bilal has filed this appeal against his conviction etc.
5. Both, in the previous trial of Noor Gul and in the second trial of Hazrat Bilal, the two Courts have based their findings, obviously, on two circumstances; first being motive and second being the confessional statement of Noor Gul, which, against Hazrat Bilal appellant has been used as relevant under Article 43 of Qanun-e-Shahadat or section 30 of Old Evidence Act. To this very mode of application and interpretation, Mr. M. Zahurul Haq, Bar-at-law, learned counsel for the appellant had serious objection. He claimed that the use of confessional statement against the maker thereof being besides the point and being a closed chapter either, it could not at all be considered against appellant, the co-accused, because the maker of concessional statement and the co-accused (appellant Hazrat Bilal) were never tried jointly. That unless jointly tried in one trial, no premium from confessional statement could be drawn by the prosecution against the co- accused involved in such statement.
6. For facility of reference as well as for facility of discussion, Article 43 of Qanun-e-Shandat Order; 1984 and section 30 of Evidence Act, 1872 are reproduced below:-- Section 30 Consideration of proved confession affecting person making it and others jointly under- trial for same offence.--- When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation.--- 'Offence', as used in this section, includes the abetment of, or attempt to commit, the offence."
"Article 43. Consideration of proved confession affecting person making it and others jointly under- trial for' same offence.--- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved:--
(a) such confession shall be proof against the person; making it; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person. Explanation.--- ' Offence' as used in this Article, includes the abetment of, or attempt to commit, the offence."
7. A fleeting glance through the above sections would indicate that those are completely one and the same so far as the purpose is concerned; but, a close perusal would reveal that fiddling with section 30 of Old Evidence Act by omitting the words, "affecting himself and some other of such persons" from the first part of the section has rendered the second one i,e, Article 43 of Qanun-e- Shahadat as lesser exhaustive and lesser. Self-contained. The opening words of section 30 give an idea of a confession where someone else is also involved but the same portion of Article 43 gives an impression of a confession where the maker involves himself alone. Part (b) of Article 43 pt rmits that the Court' may take into consideration such confession as circumstantial evidence against such other person but the omission of the most relevant words, indicated earlier, from the first part of the section makes it oblivious of a confession where the maker involves some or such other person as well. Who such other person is, is not comprehensible from Article 43 of Qanun-e- Shahadat. We merely make an effort to import the meaning simply because once we were conversant with the words as well as the object of a section known as section 30 of the Evidence Act, 1872.
8. Anyhow, coming to the real aspect of the case one may recall the general rule of the law of evidence that a confession is an evidence only against the confessor and not against others.
Article 43 of Qanun-e-Shahadat, inadequately copies from section 30 of Old Evidence Act provides an exception to such general rule of law of evidence which once was described as a "needless tampering with the wholesome rule of English Law, that a confession is only evidence against the person who makes it". Being an exception to the general rule a confession becomes admissible against such other person as well who is involved by the maker, in addition to his ownself.
9. This exception to the general rule applies only when there are more persons than one involved in a criminal case, when they are being tried jointly, when the joint trial is permissible and lastly, when the joint trial is for the same offence or for its abetment or attempt. If any of such conditions is not fulfilled, a confession cannot be taken into consideration against any other person except the maker thereof. The most important pre-requisite for applying this exceptional rule of the evidence is that the maker of the confession and such other person who is involved by the maker must have been tried jointly for the same offence. The words used as "being tried jointly" are worth consideration wherein the word being is of paramount importance giving an indication of continuity where two persons are jointly tried. Meaning thereby, that the joint trial of the two persons must be one process in continuity and the confession shall not be capable of being used when the trial does not continue to be one.
10. Flowing from such principle, there is yet another idea that if the maker of the statement is dead and, therefore, not on trial with the person against whom it is sought to be given in evidence, the exceptional rule shall not be applicable. There can be another occasion as well when the maker of the confession though not dead was yet tried singularly, for the reason may be, that the person whom he involved in his confession, was absconding at the time of first trial. In these circumstances, when the second person is apprehended and tried subsequently, the accused of the first trial i,e, the maker of the confession must be examined as a witness in the second case.
11. Keeping all such principles in view, what situation we are faced with in the case in hand, is that the two accused, namely, Noor Gul and Hazrat Bilal were never tried jointly. That by the time Hazrat Bilal was being tried, the maker of the confession, namely, Noor Gul had already been executed and was dead. Neither could they be tried jointly nor could Noor Gul be examined as a witness in the second trial where Hazrat Bilal was being tried. The most necessary ingredient, therefore, of the joint trial could never be fulfilled in the instant case, and thus, the confession made by Noor Gul involving Hazrat Bilal could not be used as a circumstantial evidence against the accused of the second trial. The condition of being jointly tried is so imperative that it cannot be ignored at all and was not ignored even in the subsequently, constructed Article 43 of Qanun-e-Shahadat. We, therefore, hold that the consideration of confessional statement of Noor Gul against Hazrat Bilal in the second trial where he was not being jointly tried with Noor Gul, was utterly unlawful. One circumstantial evidence of a confessional statement against Hazrat Bilal goes out of consideration.
12. We are now left with another and only other circumstantial evidence against the appellant i,e, the motive. Even if the confessional statement is taken aside, the motive is of course furnished by the complainant who appeared as witness. It is a settled principle of law that when there is no other evidence connecting the accused with the commission of offence, motive alone cannot lead to conviction. Same is the case of abscondence. The parties had a blood feud and when involved in a murder case, the abscondence of the appellant could have been natural, either out of fear or out of sheer desire to remain away from the clutches of police.
13. On the principal point involved in the case, if any authority is needed, one can refer with credit to those produced by the learned counsel for the appellant as; Rajhumal Kundanmal v. Emperor AIR 1937 Sindh 218, Dengo Kandero v. Emperor AIR 1938 Sindh 94 and Hakim Ali v. The State PLD 1960 Lah.
31.
14. In view of the factors above, we hold that the prosecution has failed to bring home the guilt to the doorstep of the accused-appellant. The appeal is accepted, the conviction recorded and the sentence of imprisonment for life imposed vide judgment, dated 11-2-1998 of the learned Additional Sessions Judge, Swabi, is set aside and Hazrat Bilal appellant is hereby acquitted of the charges under section 302/324/109, P.P.C. If not required to be detained in any other case, he is directed to be released forthwith.
15. While parting with the case, we would recommend to the Federal Goverment to make arrangements for getting the first part of Article 43 of Qanun-e-Shahadat Order amended so as to bring it in line with the language of section 30 of Evidence Act, 1872 and thereby remove the ambiguity caused by the unnecessary omission of the words, "affecting himself and some other of such persons". Copy of this judgment be sent by the. Registrar of this Court to the Secretary to Government of Pakitan, Law and Justice Division, Islamabad for perusal and necessary action.