' AMAN ULLAH KHAN, J.--- The appellant Ghulam Khan has assailed the judgment, dated 29-3-2000 passed by the learned Sessions Judge, Sibi whereby he has been convicted under section 302(a), P.P.C. And sentenced to death. The learned Sessions Judge Sibi has also sent a reference under section 374, Cr.P.C. For confirmation of death sentence. Thus, by this common judgment we propose to dispose of this criminal appeal and murder reference.
2. Briefly stated the facts of the case are that on 24-6-1999 Tehsildar, Sibi received a wireless message from Dafedar Levies Khajjak through one Muhammad Hassan that Allah Dina has been murdered by unknown persons on the night falling between 23 and 24-6-1999 in Killi Babber Khajjak. Datedar Levies after informing Tehsildar lodged a report vide Marasila Exh.P.3/A and on the basis whereof F.I.R. Exh.P.11/A was registered with Levies Thana, Sibi being Crime No,1 of 1999. After lodging F.I.R. Exh.P.11/A Naib-Tehsildar proceeded to the place of occurrence at Killi Babber Khajjak and prepared the sketch of the place of occurrence vide Exh.P.11/B and took the dead body into possession vide memo. Exh.P.1/A. He secured blood-stained earth vide memo. Exh.P.2./A, arrested the appellant and recovered hatchet i.e, crime weapon on his pointation vide Exh.P.1/C and handed over the dead body of the deceased to his legal heirs vide Exh.P.4/A. He obtained death certificate of deceased Exh.P.7/A and submitted challan Exh.P.11/C.
3. Charge was framed under section 302, P.P.C. By the learned Sessions Judge, Sibi which was refuted by the appellant.
4. To substantiate its case the prosecution produced the following 11 witnesses:-- ' P.W.1 Shah Mir, Levies Sepoy, is recovery witness of the dead body of deceased in whose presence the recovery memo. Exh.P.1/A was prepared and the blood-stained cloth of the deceased was taken into possession vide Exh.P.1/C. The blood-stained hatchet was also taken into possession in his presence vide memo. Exh.P.1/C.
' P.W.2 Arbab Khan is a marginal witness to the recovery of bloodstained earth Exh.P.2/A.
' P.W.3 Syed Gul Shah, Dafedar Levies sent Marasila Exh.P.3/A to Levies Thana and on the basis of which F.I.R. Was lodged.
' P.W.4 Sher Muhammad, Levies Sawar Khajjak, in his presence the dead body of the deceased was handed over to his brother vide memo. Exh.P.4/A.
' P.W.5 Wahid Bakhsh, is brother of deceased and stated that on the night of 24-6-1999 while he was sleeping in his house, at about midnight he heard hue and cry coming from the house of his brother and went to the house of his brother (deceased) where he found the dead body of his brother lying on the cot. He also submitted a written report before Tehsildar on 26-6-1999 as Exh.P.5/A implicating the appellant.
' P.W.6 Mah Ganj, is wife of the appellant and daughter of the deceased. She deposed that on the night of incident at about midnight she was sleeping next to the cot of her father (deceased) alongwith her brothers and sisters, the appellant who was holding a hatchet came in the house and attacked her father with hatchet and threatened her to keep quiet else she too would be killed.
' P.W.7 Dr. Gordan Dass. He examined the dead body of the deceased, issued certificate Exh.P.7/A and found the following injuries on the person of deceased Allah Dina:--
(1) Incised wound on left frontal 5" x 1" deep in skull brain matter out.
(2) Incised wound 4" x 1" parallel to the injury No, 1.
' P.W.8 Khan Muhammad: He is brother of deceased and stated that on the night of 24-6-1999 while he was sleeping in his house, on hearing a noise he woke up and saw the appellant giving hatchet blows to his father. The appellant also threatened him to keep quiet and due to fear of being killed he kept silent.
' P.W.9 Dr. Ahmed-un-Nisa Ghazallah Yasmeen: She examined Mah Ganj (P.W.6 wife of appellant), found the following injuries on her person and issued a certificate Exh.P.9/A.
(1) No abrasions seen on all over the body.
(2) Multiple bruises on back looking like shoe marks.
(3) Abdomen: Not significant.
' P.W.10 Mr. Sadatullah, Judicial Magistrate, Machh, recorded the confessional statement of the appellant under section 164, Cr.P.C. Which is Exh.P,10/A and issued a certificate Exh.P.10/B, ' P.W.11 Muhammad Ehsan Anwar, Naib-Tehsildar, Sibi investigated the case and submitted challan.
The appellant was examined under section 342, Cr.P.C. Wherein he denied the prosecution story. He also got his statement recorded on oath under section 340(2), Cr.P.C.
5. After assessing the evidence on record the learned Sessions Judge, Sibi vide judgment, dated 29-3-2000 convicted the appellant and sentenced him to death.
6. We have heard Mr. Nazir Ahmed, Advocate for the appellant and Mr. Sadiq Ghuman, Advocate for the complainant and State.
7. Mr. Nazir Ahmed learned counsel for the appellant contended that the incident was unwitnessed, therefore, no reliance can be placed on the testimony of the two eye-witnesses. Since the eye- witnesses are highly interested, therefore, without independent corroboration their statements cannot be relied upon. He further contended that after due deliberation the eye-witnesses have concocted a false story against the appellant. The recovery of the hatchet is very doubtful and in violation of section 103, Cr.P.C. He lastly contended that the confessional statement of the appellant is contrary to the ocular evidence and has not been further corroborated.
8. On the other hand Mr. Muhammad Sadiq Ghuman, learned counsel for the complainant and State vehemently opposed the appeal and contended that the eye-witnesses were natural witnesses, whose presence at the place of incident has been established and their testimony cannot be discarded merely that they are interested witnesses. The incident has been further corroborated by confessional statement and recovery of hatchet.
9. We have heard the learned counsel for parties and have perused record of the case minutely.
Adverting to the arguments of Mr. Nazir Ahmed learned counsel for the appellant that the incident was unwitnessed and later on the prosecution introduced the said eye-witnesses, learned counsel to substantiate his aforesaid arguments referred to Marasila Exh.P.2/A wherein the report was lodged against unknown persons at about 6-00 a.m. The appellant was not nominated in the F.I.R.
The learned counsel also referred to recovery memo. Of dead body of deceased Exh.P.1/A wherein the dead body of the deceased was taken into possession by Tehsildar and Exh.P.2/A, wherein blood-stained earth was secured vide Exh.P.2/A, in both these documents the name of the appellant is not mentioned whereas the case till that stage was being investigated against unknown persons. Learned counsel further contended that while securing blood-stained earth the case was being investigated against unknown persons but subsequently, strangely enough, the name of the appellant was introduced in the afternoon of 24-6-1999. Mr. Muhammad Sadiq Ghuman learned counsel for the complainant and State argued that while preparing Exh.P.1/A, I.D.
And Marasila Exh.P.3/A the name of the appellant was dmitted inadvertently. Learned counsel further contended that at the most it can be inferred that investigation was not properly conducted which would not vitiate the trial.
10. After going through the documents referred above it is worthwhile to mention that as per statements of witnesses the incident took place after about midnight and Dafedar Levies P.W.3 was informed about the incident by Muhammad Hassan that the deceased Allah Dina had been murdered on the preceding night by unknown persons, thus, on such information Marasila Exh.P.3/A was sent to Naib-Tehsildar, Sibi who lodged the F.I.R. Against the unknown persons. It may be pointed out that by the time Investigating Officer Muhammad Ehsan Anwar who registered the F.I.R.
Exh.P.1/A when reached the place of incident in the morning the case was being investigated against unknown persons. In his Court statement the Investigating Officer stated that he raided many places for the arrest of the appellant, as later on some of the witnesses mentioned his name.
Admittedly the appellant was arrested from his house at Killi Babber Khajjak. It is astonishing to note that till the arrival of the Tehsildar at the place of incident none of the witnesses deposed against the appellant and after removal of the dead body of the deceased the name of the appellant was introduced as an accused for the first time. During the course of investigation the appellant was arrested at 10 O'Clock. It is very improbable that P.W.6 Mah Ganj who is daughter of the deceased and wife of the appellant claims to have witnessed the incident who kept quiet for a long time and subsequently got her statement recorded. Similarly P.W.8 Khan Muhammad who is son of deceased also claims to have witnessed the murder and stated that while he woke up on noise he saw the appellant giving hatchet blows to his father. The abovementioned witnesses stated that due to fear they kept quiet. Strangely enough both of them kept quiet, it is very improbable unconvincing that soon after the incident when the appellant left the place of incident and did not inform any one, not even P.W.5 Wahid Bakhsh.
11. It may be noted that soon after the incident P.W.5 Wahid Bakhsh was attracted to the scene of occurrence due to hue and cry but strangely enough none of the eye-witnesses present at the place of incident mentioned the name of the appellant. However, the said witness filed a report Exh.P.5/A holding the appellant responsible for the murder of his father after 3 days without mentioning any reasons regarding involvement of appellant. The contention of the learned counsel for the appellant has substances that the name of the appellant was introduced at the very belated stage by the witnesses after consultation and deliberation.
12. It may be observed that the statements of both the eye-witnesses are also in conflict with the medical evidence P.W.6 Mah Ganj stated that the appellant gave three hatchet blows to the deceased whereas the medical evidence shows that the appellant had received two incised wounds on his skull. Similarly, P.W.8 Khan Muhammad stated that when he woke up he saw the appellant giving hatchet blows to the deceased. He has not mentioned as to how many hatchet blows he had given to the deceased. Record of the case further indicates that this witness had made material improvements in his statement before the Court when he was confronted with his statement recorded before Tehsildar under section 161, Cr.P.C. He had not mentioned in the Court that on hearing the noise he woke up. Furthermore, he had not stated that he saw the appellant giving hatchet blows to the deceased and he in his statement before the Court stated that Abdul Ghafoor had also reached the place of incident but in his statement under section 161, Cr.P.C. Had not stated so, thus, the presence of both the witnesses becomes highly doubtful at the place of incident.
13. Reverting to the next contention of Mr. Nazir Ahmed learned counsel for the appellant that both the eye-witnesses i.e, P.W.6 Mali Ganj and P.W.8 Khan Muhammad are interested witnesses and their testimony cannot be relied upon without any independent corroboration. Admittedly a matrimonial dispute was' going on between the appellant and P.W.6 Mah Ganj. It has come on record that prior to incident the appellant had beaten his wife and had sent her to the house of her father (deceased) as the appellant was demanding Rs,1,50,000 from the deceased. The relations between the parties at the time of incident were strained and the possibility could not be ruled out that P.W.6 wanted to take divorce from the appellant, thus, they had motive to involve the appellant in the commission of offence. The statements of both the said witnesses have not been corroborated by any independent source rather the manner in which they have deposed against the appellant the story put forth does not fit in the facts and circumstances of the case. Therefore, the contention of Mr. Nazir Ahmed, Advocate has substance that the statements of the said witnesses cannot be relied upon without any strong corroborative evidence qua the appellant which is lacking. In this regard we are fortified with the following case-laws:--
(1) Haroon alias Harooni v. The State and others 1995 SCM R 1627 wherein the following observations were made:- "Mere fact that a witness is either related to the complainant or inimical towards the accused does not stamp his testimony necessarily with truth. Acid test of the veracity of a witness is inherent merit of his own statement. Since the facts of the two cases seldom coincide, therefore, no hard and fast rule for the appreciation of evidence can be laid down. The general rule, however, is that the statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought."
(2) Muhammad Ashraf and 2 others v. The State 1998 SCMR 279 wherein the Honourable Supreme Court made the following observations:-- ' "The rule of caution which enjoins on the Court to seek corroboration to the testimony of any interested witness from other independent and unimpeachable piece of evidence in the case, implies' that the corroboration must come as to the identity and complicity of the accused in offence.' No doubt motive is one of the relevant piece of evidence which furnishes support to the case of prosecution as to the involvement of accused in the offence but as held in the case State v.
Muhammad Sharif (1995 SCM R 635), motive is a double-edged weapon. While motive may be a sufficient reason for commission of the offence by the accused, it can equally serve as a reason for the false involvement of the accused in the crime. Therefore, in our humble view, where the prosecution case rests solely on the testimony of interested and inimical witnesses, it would not be safe, in such a case, especially when the punishment prescribed for the offence is capital punishment, to rely for corroboration of interested testimony of such witnesses, solely on the motive in the case. In the circumstances of the present case, the motive alleged against the appellant could not furnish as an independent and unimpeachable piece of evidence to corroborate the interested testimony of eye-witnesses in the case."
(3) Sardar Khan and 3 others v. The State 1998 SCM R 1823 wherein the Honourable Supreme Court observed as follows:-- ' "Some of the broad legal principles enunciated by this Court which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye-witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused and secondly, whether he should be believed for convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence, his evidence is to be accepted without corroboration as substitution is a thing of rare occurrence and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case. (See Niaz v. State PLD 1960 SC 387). The next question arises, in what manner the corroboration to the testimony of the interested witness is to be sought by the Courts before relying on it for conviction. The corroboration to the testimony of an interested witness need not always to be from an independent witness supporting the story put forward by the interested witness. Corroboration may be sought from any circumstances in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances, is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case."
14. Coming to the next contention of Mr. Nazir Ahmed, Advocate that the recovery of the hatchet is very doubtful has been effected in sheer violation of principles of section 103, Cr.P.C. Record reveals that the recovery of the hatchet was witnessed by P.W.1 vide Exh.P.1/C who in his statement stated that the appellant produced hatchet before the Tehsildar, which was taken into possession whereas the Investigating Officer in his statement stated that the hatchet was recovered on the pointation of the appellant from the house of his father. There is nothing on record to show as under what circumstances the hatchet was recovered. It has come on record that at the time when the appellant was arrested many persons were present but Tehsildar, did not associate any private witness to witness the recovery of hatchet. It has been held by the Superior Courts that the provisions of section 103, Cr.P.C. Are mandatory and if private witnesses are available and non- association of the same would be a violation of principles of section 103, Cr.P.C. And recovery in such circumstances becomes doubtful, especially when no reasons are given for effecting recovery without associating independent persons of the vicinity. The contradiction in the statement of P. W.1 and Investigating Officer regarding recovery of the hatchet makes the same doubtful. Further, the recovery of the hatchet cannot be used as a piece of corroborative evidence as the Investigating Officer stated that at the time of recovery the hatchet was stained with blood but surprisingly the same was not sent to the expert for chemical analysis, thus, in absence of the report from chemical analyst the recovery of the hatchet too cannot be relied upon. Even otherwise, we have not believed the statement of the eye-witnesses regarding the involvement of the appellant. Therefore, the recovery of the hatchet becomes immaterial and of no significance to the prosecution case.
15. Reverting to the next contention of Mr. Nazir Ahmed, Advocate the confessional statement recorded at a belated stage does not corroborate the contents of the prosecution story is to be ruled out of consideration, it has not corroborated the prosecution case. In his confessional statement the appellant stated that since the deceased had not allowed his wife to go to his house, therefore, on the day of incident when he went to bring his wife the deceased (father-in- law) of the appellant did not allow his daughter P.W. Mah Ganj to accompany him. It is further, stated that he (appellant) had a hatchet, while the deceased was armed with Kalashnikov. It is further stated that if he (appellant) had not hit the deceased he would have murdered him. It is well-settled principle of law that if a retracted confession has to be believed the same has to be taken into consideration in toto and in its I-entirety. Besides, it is also a well-entrenched principle of law that a retracted confession has to be scrutinized minutely by the Courts while relying upon the same. As we have already disbelieved the ocular version put forth by the prosecution, after thorough scrutiny of the confessional statement the same is not corroborated by any piece of evidence. The plea taken by the appellant in / his confessional statement that he gave hatchet blow to the deceased in exercise of his self-defence as the deceased was armed with Kalashnikov, this portion of the confessional statement is not corroborated by any piece of evidence and the same does not fit in the prosecution story, therefore, the confessional statement is ruled out of consideration. Besides the investigation of the case as per statement of the Investigating Officer was completed at the same time and no reason was given as to why the appellant was produced on 29-6-2000 before the Judicial Magistrate i.e, after a delay of 5/6 days which makes the confessional statement more doubtful. Reliance is placed on Bahadur Khan v. The State PLD 1995 SC 336 wherein the Honourable Supreme Court held the following observations;-- ' "Admittedly appellant has retracted from the confession should be accepted only if it is corroborated by clear, cogent and independent evidence. Although there is no such provision to accept retracted confession on this basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reasons given for retracting are palpably false, absurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek some corroboration for retracted confession. The corroboration of such confession should be of material particulars connecting the accused with the offence. In Naqibullah and another v. The State PLD 1978 SC 21 referred by the learned counsel for the appellant. The law relating to confession has been elucidated in an authentic and authoritative manner, with reference to several judgments of this Court and foreign Courts. While referring to State v. Minhun alias Gul Hassan PLD 1964 SC 813 it was observed:-- ' 'They both retracted from their confessions at the earliest opportunity in their respective statements recorded by the committing Magistrate as well as in the Sessions Court. In State v.
Minhun alias Gul Hassan this Court observed that it is now well-settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it is 'true and voluntary' and was not obtained by torture or coercion or whether in the facts and circumstances of a given case the Court should not act upon such a confession alone is an entirely a different question which related to the weight evidentially value of the confession and not to its admissibility in law. In that connection this Court further remarked that:-- 'As observed even by Munir, C.J. In his Commentary on the Law of Evidence at page 168 Vol. 1 it is settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstance and satisfy itself fully that the confession cannot but be true' ."
16. For the foregoing reasons the appeal is accepted as the prosecution has failed to establish its case against the appellant beyond any shadow of doubt, therefore, giving the appellant the benefit of doubt he is acquitted of the charge, he be released forthwith if not required in any other case and the reference made by the learned Sessions Judge is answered in negative.