' By his order, dated 2-12-1998 Additional Sessions Judge, Chakwal, held Zahid Iqbal, accused guilty of offence under section 302(b), P.P.C. For causing the intentional death (Qatl-e-Amd) of Mst.
Bushra and sentenced him to imprisonment for life plus a compensation amount of Rs,50,000.
Feeling aggrieved Zahid Iqbal/convict has come up in appeal.
2. Brief facts of the case as unfolded in the F.I.R. Exh.P.A. Are as under:-- ' "Sohnda Khan (complainant) P.W.3, who is a resident of Village Simbal has some agricultural land within the area of Village Karooli and he was putting up alongwith his family at his Dera situate in his agricultural land. On the date of occurrence i.e, 25-11-1997 at about 6-30 p.m., he was going towards the Dera of his brother-in-law (Muhammad Aslam) alongwith his deceased daughter Mst.
Bushra, Sumera aged five years and son Dilbar Jan aged four years. The minor children were proceeding ahead of them and they were followed by Mst. Bushra deceased. Sohnda Khan (complainant) was following them at a little distance. When they reached the bank of Karooli Road, some unknown person fired at Mst. Bushra, hitting on her abdomen. She fell on the ground. The complainant raised alarm, which attracted Muhammad Aslam, Gulistan and Allah Ditta P.Ws. To the spot. Mst. Bushra was immediately removed to the D.H.Q. Hospital, Chakwal, for treatment.
However, she succumbed to her injury. The complainant went to the Police Station, Kalar Kahar and reported the matter. Where Muhammad Sabir, Sub-Inspector (P.W.11) recorded his statement (Exh.P.A.). Subsequently, it transpired that she had been done to death by Zahid Iqbal accused at the instance and abetment of his co-accused Muhammad Safdar and Umaid Ali, who are his real brothers. The motive for the occurrence as disclosed by the complainant during the trial was that his eldest daughter Mst. Saila was engaged with Muhammad Safdar accused. Mst. Safia died and after her death the accused demanded the hand of his second daughter Mst. Bushra deceased for Zahid Iqbal accused. The complainant accepted this offer but subsequently, he refused to marry his deceased daughter with Zahid Iqbal accused, whereupon the accused got offended and done the deceased to death."
3. Muhammad Sabir, S.-I. (P.W.11) after recording F.I.R. Exh.P.A., went to D.H.Q. Hospital, Chakwal, where the dead body of Mst. Bushra was lying. He prepared her inquest report Exh.P.C. And despatched the dead body for autopsy under the escort of Abdul Ghafoor, Constable. He then went to the spot and collected blood-stained earth from the place of occurrence and took it into possession vide memo. Exh.P.E. The same was made into a sealed parcel. After the post-mortem examination, the said constable produced before him the last-worn clothes of the deceased, Exhs.P.1 to P.3, which were taken into possession vide memo. Exh.P.D. Thereafter, the said Thanedar recorded the statement of the P.Ws. Muhammad Amir P.W. Appeared before the police on 29-11- 1997 and got recorded his statement. Muhammad Sabir, S.-I., apprehended the accused persons, deposited the sealed parcels with the Moharrar/Head-Constable of his police station, got prepared the site plan Exh.P.G. And its copy from Rashid Minhas, Patwari. On 11-12-1997 Zahid Iqbal accused while in police custody led to the recovery of .12 bore gun Exh.P.4 from his residential house, which was taken into possession vide memo. Exh.P.F. Alongwith its licence P.5 and three live cartridges P.4/1-3, recorded the statement of the remaining P.Ws., completed the investigation and submitted the challan against the accused persons after its verification from Muhammad Ijaz, Inspector/S.H.O., in Court.
4. Lady Doctor Hijjab Farrukh, P.W.4, conducted the post-mortem examination on the dead body of Mst. Bushra and found the following injury on her person:-- ' "On thorax N.A.D. There was a fire-arm wound 8 x 8 c.m. With inverted margins on lower abdomen, 7 c.m. Below the umbilicus slightly towards right omentum alongwith intestines was protruding out of the wound."
' According to the opinion of the Lady Doctor, the sole injury detailed above was inflicted with fire- arm. It was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. The cause of death described by her was due to haemorrhage and shock. Probable time between injury and death was about 1 to 4 hours and between post-mortem about 12 to 18 hours.
5. The accused persons namely Zahid Iqbal, Muhammad Safdar and Umaid Ali denied the prosecution allegation and pleaded false implication. Umaid Ali and Muhammad Safdar accused persons also alleged that they were found innocent during the investigation. Zahid Iqbal, who was adjudged as murderer of Mst. Bushra by the police, pleaded substitution. In answer to Question No,9 he came out with the following defence version:-- ' "The P.Ws. Of this case and their close relatives in the village with whom we have different disputes were not in good terms with me and my family members. They hatched conspiracy after the murder of Mst. Bushra and fabricated false evidence against me and my co-accused and indulged me in the false case. The witnesses are also closely related to Sohnda Khan P.W. And with each other. This is one of the reasons that they have deposed falsely against me. Sohnda Khan complainant has enmity with the relatives of one Fateh Khan, who was accused in a murder case of the real brother of Sohnda Khan complainant and Umaid Ali co-accused who is my real brother who had good and close friendship with Samrez Khan son of Fazal Dad resident of Chak Khushi real nephew of Fateh Khan. Umaid Ali my brother has been helping in pursuing that murder case before police and in Courts on which Sohnda Khan complainant became hostile towards our family and took against my brother Umaid Ali, accused's relationship with the relative of Fateh Khan accused.
The P.Ws. Of this case under the mysterious circumstances concocted the whole story against me and they prevailed upon the complainant who named me in the case."
6. Zahid Iqbal, accused alleged that gun P.4 was his licensed gun, which was seized by the police during the investigation. The same was never sent to the Office of the Director, Forensic Science Laboratory, Lahore. Hence it carries no evidentiary value. He and his brothers namely Muhammad Safdar and Umaid Ali, however, did not produce any evidence in defence nor they opted to enter the witness-box as envisaged under section 340(2), Cr.P.C.
7. On the complainant's own showing some unknown assailant had fired at Mst. Bushra, when she was accompanying her father Sohnda Khan (P.W.3), proceeding towards the Dera of her maternal- uncle on 25-11-1997 at about 6-30 p.m. This is what he has stated in the F.I.R. Exh.P.A.
8. The prosecution case entirely rests on the circumstantial evidence, which is available in the form of extra-judicial confession of Zahid Iqbal, accused, allegedly made before Muhammad Amir, P.W.1, the evidence of Wajtakar furnished by Shahid Arif, P.W.2, medical evidence, motive and recovery of weapon of offence i.e, .12 bore gun P.4.
9. The learned trial Judge believed the aforesaid pieces of evidence and came to the conclusion that the prosecution had fully established the guilt of Zahid Iqbal for causing the intentional death (Qatl-e-Amd) of Mst. Bushra by giving her a fire-arm injury with his .12 bore gun on the day of occurrence, when she was present on the spot and convicted him under section 302(b), P.P.C. And sentenced him to imprisonment for life and also mulcted him with a compensation amount of Rs,50,000. His co-accused namely Umaid Ali and Muhammad Safdar, against whom there was no incriminating evidence available on the file were given the benefit of doubt and acquitted from the said charge vide the impugned judgment, dated 2-12-1998.
10. Feeling aggrieved Zahid Iqbal, accused/convict has come up in appeal and I have heard the learned counsel for the parties at length.
11. The learned counsel for the appellant has vehemently contended that it was a blind murder. Mst.
Bushra deceased was done to death by some unknown assailants. Sohnda Khan, complainant had made a faithful statement before the police, wherein he had unambiguously stated that he had no enmity with anybody and some unknown assailants had killed his daughter. Subsequently, a false and fabricated extra-judicial confession was concocted against Zahid Iqbal, accused at the behest of his enemies, which is hardly sufficient to award conviction to the appellant without corroboration, which is not forthcoming in this case. The evidence of Wajtakar is of no avail to the prosecution because the statement of Shahid Arif, who allegedly saw Zahid Iqbal accused armed with a .12 bore gun coming from the place of occurrence on 25-11-1997 at about 6-45 p.m. In a nervous and crestfallen condition, had not disclosed this fact either to the complainant or the police promptly. His statement was recorded on 8-12-1997 i.e, after about 12/13 days of the occurrence and this inordinate delay in disclosing this very important material evidence rendered his version doubtful. The motive is farfetched and the recovery of the gun, which is a licensed weapon, is of no avail to the prosecution because it was never sent to the Forensic Science Laboratory, as no crime-empty was recovered from the spot.
12. Prosecution has relied on the following modes of evidence:--
(1) Motive. (2) Extra-judicial confession. (3) Evidence of Wajtakar,
(4) Medical evidence and (5) Recovery of weapon of offence.
' Now I propose to discuss each piece of evidence in seriatim.
13. As regards motive the prosecution has alleged at the trial that the deceased (Mst. Bushra) was betrothed to the accused (Zahid Iqbal) but subsequently, this engagement was revoked by her father (Sohnda Khan) generating hostility and active in the mind of the accused. This motive is alleged in the statement of Sohnda Khan (P.W.3) and I quote the relevant portion:- ' "Motive for the occurrence is that I had engaged my eldest daughter Safia with Safdar accused.
Safia died later on. On the death of my eldest daughter the accused was demanding hand for my second daughter Bushra deceased for Zahid accused, to which I initially agreed but later I refused.
In the background of above motive, Zahid accused done to death my deceased daughter Bushra."
14. Assuming, that this motive was valid, then why did Sohnda Khan (P.W.3) (father of Mst. Bushra deceased), who lodged the F.I.R. Exh.P.A. Not mentioned such devastating fact? On the other hand, the complainant (Sohnda Khan P.W.3) just categorically asserted in the F.I.R. That he had no enmity with anybody and I quote the relevant portion:- {{URDU TEXT}} ' As such whatever is alleged by the complainant at the trial in this context, is obviously an afterthought, which is not worthy of any credence whatsoever? Even otherwise, no other resident of the village supported the motive part of the prosecution story during the investigation. I am, therefore, constrained to reject the aforesaid motive as being false and afterthought.
15. The complainant has tried to make certain improvements at the trial by saying that there was sufficient light to identify the assailant and he had identified that person, who fired at his deceased daughter. He further alleged that he had not mentioned in the F.I.R. That some unknown person fired at the deceased. He was confronted with the F.I.R. Exh.P.A., where it was so mentioned. The complainant's version on this point stands contradicted by the Investigating Officer (Muhammad Sabir, P.W.11), who unambiguously stated in his cross-examination, which appears in portion mark "A" to "A" at page No,5 of his statement:-- ' "I asked Sohnda Khan P.W. If he had identified the culprit of the case, who replied he did not identify the culprit/offender."
' This admission of the Investigating Officer casts a cloud of doubt on the credibility of the entire warp and woof of the complainant's version, which he narrated at the trial.
16. The prosecution case chiefly rests on extra-judicial confession allegedly made by Zahid Iqbal, accused/appellant, before Muhammad Amir P.W.1 on 29-11-1997 at about 7-30 p.m., when he summoned by Zahid Iqbal, accused/appellant in his house and he being friendly with him went there. The accused/appellant took him into a room and disclosed before him that Mst. Bushra deceased was at first betrothed by her father with him, who later engaged her with one Gulistan and on the day of occurrence at about Digar Wela, when he saw the deceased, he became emotional and fired at her, when she was accompanying her father and other family members proceeding towards the house of Aslam. Muhammad Amir P.W.1, further alleged that the accused also disclosed before him that since Arif P.W. Had seen him after the occurrence and Sohnda Khan P.W. Had laid information with the police, he was apprehending his arrest. He, therefore, solicited his help to obtain forgiveness from Sohnda Khan. However, this P.W. Refused to offer any help and told all about this extra-judicial confession to the police on 29-11-1997.
17. This P.W. Was subjected to a searching cross-examination but there is nothing on the file, which may tend to discredit his testimony.
18. No doubt, the appellant has denied having made this extra-judicial confession. This may amount to retraction of the confession but a retracted extra-judicial confession can also legally form the basis of a conviction, though as a matter of prudence the Courts try to look for corroboration for some independent source so as to satisfy their conscience that the confession was true. It is now well-settled that extra-judicial confession is a weak type of evidence because it has been judicially observed that so much fabrication has been perpetrated in blind murder cases (both by the police and the complainant party) that superior Courts have more often than not forced to insist that retracted extra-judicial confession cannot be made the sole basis of conviction in a case of capital charge unless it is corroborated by some independent source. A retracted confession may form the legal basis of conviction if the Court is satisfied that it was true and was voluntarily made.
' However, rule of prudence, which has now crystalized into a rule of law, requires that a Court should not base conviction on extra-judicial confession, which is retracted by the accused without corroboration. It is indeed true that it cannot be laid down as an inflexible rule of practice or prudence that under no circumstance such a conviction can be made without corroboration, for Court may, in a particular case, be convinced of the absolute truth of confession and prepared to act upon it without corroboration but it may be ruled out as general rule of practice that it is unsafe to rely upon a confession muchless one a retracted confession, unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. Reliance may be placed on PLD 1997 SC 813, PLD 1978 SC 21, PLD 1995 SC 336, PLD 1997 SC 408 and 2000 SCM R 683.
19. In this regard, a reference may be made to Naqeeb Ullah's case reported in PLD 1978 SC 21. In this celebrated judgment, law relating to confession has been elucidated in an authoritative manner with reference to judgment of the apex Court and foreign Courts. While referring to State v.
Minhun alias Gull Hassan PLD 1964 SC 813, it was observed as under:- ' "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 not 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 and inducement. In the opinion of th Court the question, however, was 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 and evidentiary value of the confession and not to its admissibility in law. In that connection the Court further remarked that:-- ' As observed even by Munir, C.J. In his commentary on the Law of Evidence at page 168 Vol. I, 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 circumstances and satisfy itself fully that the confession cannot but be true."
20. In the present case, die extra-judicial confession allegedly made by Zahid Iqbal, accused/appellant before Muhammad Amir P.W.1, considered in the background and attending circumstances of the case, does not appear to be safe to make the sole basis of conviction of its maker Zahid Iqbal. It is indqed true that Muhammad Amir, P.W.1, has no motive or malice to trump up a false story/case against the appellant (Zahid Iqbal). His evidence, of course, inspires confidence and there is nothing on the file, which may tend to show that he perjured in Court in fabricating a false extra-judicial confession or it was not voluntarily made. However, the law of the land and also the Islamic administration of justice demand that retracted extra-judicial confession should not be made the sole basis of conviction of an accused unless it is corroborated by some independent source on material particulars. In the instant case all other pieces of circumstantial evidence of corroborative value which are available in the form of motive, evidence of Wajtakar end recovery of weapon of offence, are not free from suspicion and I have discarded them for the reasons elicited in the paragraphs of follow. I am, therefore, constrained to hold that extra-judicial confession allegedly made by Zahid Iqbal, appellant, before Muhammad Amir, P.W.1, cannot be made the sole basis of his conviction for two-fold reasons, first it is retracted and secondly for want of corroboration.
21. The other piece of circumstantial evidence is "Wajtakar evidence" furnished by Shahid Arif (P.W.2). He deposed on oath that on 25-11-1997 at about 6-45 p.m., while heading towards the Dera of Sohnda Khan when he reached a place known as Ratti Chari Chowk, he saw Zahid Iqbal, accused with .12 bore gun in his hand coming from the side of Sohna Khan's Dera. He was almost running and was going towards his house. He was looking nervous and perplexed. Later he learnt about the murder of Mst. Bushra. He further deposed that he informed about the above fact to Sohnda Khan P.W.
22. Having given my careful consideration to the evidence of Shahid Arif (P.W.2), I am convinced that he is a false and imaginary witness. Had he seen the accused (Zahid Iqbal) completely crestfallen and flabbergasted running from the place of incident armed with a gun, it is too natural to presume that in such circumstances, the accused was taking to heels after committing some crime. In the circumstances, this P.W. Should have reacted naturally and gone to the place of occurrence or disclosed the above fact to the complainant or anyone else whatever he saw and felt. But surprisingly enough as a complete negation of logical, natural approach of human conduct, this P.W. On his own showing went to Sargodha, where he stayed for 10/12 days and only subsequently returned to appear before the police on 8-12-1997 after about 12 days of the occurrence. Such paradoxical statement no Court would give credence. Another significant circumstance, which could not be easily glossed over, is that this P.W. Alleged in his cross- examination that he had informed Sohnda Khan P.W. About what he had seen on the day of occurrence after his return from the police station, on the night of 25-11-1997 (and on his own showing he spent this night at the Dera of Sohnda Khan). Had it been a faithful narration of fact, then this P.W. Would have certainly met Muhammad Sabir (P.W.11), who after recording the F.I.R.
Exh.P.A., went to the spot alongwith Sohnda Khan, complainant and collected blood-stained earth from the place of occurrence. Had Shahid Arif (P.W.2) been present at the Dera of Sohnda Khan, he would have certainly met the complainant and the police and could have immediately informed them about the conduct of the accused/appellant just after the occurrence, but instead of joining the investigation he went to Sargodha. As per his version, he had gone there to inform his uncle about the murder of Mst. Bushra (deceased). Assuming, that he had gone to Sargodha for this purpose, he could easily return on the same day because conveyance is available round the clock on Sargodha Chakwal Road. He has not offered any plausible explanation for such a long stay i.e, 10/11 days at Sargodha, particularly when his first cousin Mst. Bushra had been murdered. Sohnda Khan complainant is the maternal-uncle. Of this P.W. And this is what he has admitted in his cross- examination. His quixotic behaviour, which is not in conformity with the normal human conduct, renders his version completely doubtful. Had this P.W. Broken this news to his co-villager or at least appeared before the police on the following morning, his evidence would have been credible, weighty, poignantly. Relevant and would have offered a strong corroboration to the testimony of Muhammad Amir (P.W.1), who deposed about the extra-judicial confession. Moreso the absence of this P.W from the village of occurrence for 10/12 days crumbles his evidence in toto and I discard his testimony as worthless and afterthought.
23. The recovery of gun P.4 at the instance of the accused is of no avail to the prosecution because the Investigating Officer recovered no crime-empty from the spot, when he visited the place of occurrence. Hence, the aforesaid gun was never sent to the Fire-arm Expert for comparison. Even otherwise, it is a licensed gun of the accused/appellant. Thanedar was so ignorant that he did not send it to the Forensic Science Laboratory, Lahore, for obtaining opinion whether it was in working condition, hence this very material and useful piece of corroborative evidence has lost its evidentiary value.
24. Evidence of motive and Wajtakar are false and fabricated and the evidence of recovery of weapon of offence i.e, gun P.4 is of no avail to the prosecution for the non-recovery of crime-empty and non-availability of Fire-arm Expert's Report regarding its working condition. I am, therefore, constrained to hold though with great reluctance, that retracted extra-judicial confession of the appellant (Zahid Iqbal) alone cannot be made the sole basis of his conviction without corroboration and unfortunately the prosecution has failed to bring on record any other piece of direct or circumstantial evidence, which could serve this object. Zahid Iqbal, (accused/appellant) may be the real murderer of Mst. Bushra. However, the standard of proof required for his conviction is lacking in this case, which entails the capital punishment.
25. The upshot of the above discussion, therefore, is that prosecution evidence falls short of legal proof required in a case of capital charge to establish the guilt of Zahid Iqbal accused/appellant for the murder of Mst. Bushra. I, therefore, giving benefit of doubt to Zahid Iqbal, appellant, acquit him from the said charge. He is detained in jail. He should be released forthwith if not required in any other case.