KHAN RIAZ-UD-DIN AHMED, J.---Muslim Shah aged about 30 years and Muhammad Khan aged 31 years appellants have filed Criminal Appeal No 4/P of 2000 and Jail Criminal Appeal No, 12/P of 2000 respectively, to challenge their conviction and sentences passed by the learned Sessions Judge Peshawar vide judgment dated 1-12-1999, whereby both of them were convicted under section 302/34(b), P.P.C., as Tazir and were sentenced to undergo Life Imprisonment and fine of Rs,50,000, each in default whereof, to undergo R.I. for two years. The accused/appellants were further directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased, as provided by section 544-A, Cr.P.C. or in default to undergo R.I. for six months each.
The two appellants were, however, awarded the benefit of section 382-B, Cr.P.C.
2. The complainant Muhammad Naeem Khan has also filed a Criminal Revision No, 1/13 of 2000 for enhancement of the sentences of the appellants- to death penalty and increase in the amount of compensation awarded under section 544-A. Cr.P.C.
As all the three matters arise from the same judgment, we have, therefore, decided to dispose of the said matters through this single judgment.
3. Briefly the facts of the case as gleaned from the written complaint Exh.P.A/1 lodged by Muhammad Naeem P.W.3 which formed the basis for the registration of F.I.R. Exh.P.A under section 17(4) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979 at Police. Station Sharki Peshawar Cantt, on 9-2-1997 at 12-40 p.m. are, that the complainant Muhammad Naeem Khan Secretary Communication and Works Department Government of N.W.F.P., Peshawar had gone to his village Khair Abad Tehsil and District Mardan to celebrate Eid. On 9-2-1997 at 11-00 a.m. he received a telephonic call from the duty clerk of Deputy Commissioner Office Peshawar, that his servant Habib had been shot dead in the kitchen. He rushed to Peshawar reaching there at about 12-30 p.m. The dead body of Habib deceased had already been removed to the mortuary for post- mortum examination. The complaint further disclosed that the deceased was shot dead probably by a .30 bore pistol on the back of his head. There was blood all over in the kitchen, but no sign of any struggle were found there in. The doors of the two top storey bed rooms were found to have been forcibly opened. The two drawers of the wooden dressing table were also forced open and Jewellery and cash kept therein was ("mind to have been stolen, rest of the house was reported to have not been touched. The complainant drafted the complaint Exh.P.A/1, and handed it over to S.I.
Tajpur Khan additional S.H.O. P.W.8 who got the F.I.R. Exh.P.A registered at Police Station Sharki and resumed the investigation at the spot. He inspected the spot and prepared site plan Exh.P.B at the instance of the complainant. He took into possession two empties of .30 bore Exh.P.1 and two spent bullets Exh.P.2 vide memo. Exh.P.C/1 and sealed' it into parcels in the presence of the witnesses. He also took into possession 'blood-stained earth vide memo. Exh.P.C/3 and sealed it into a parcel. The Investigating Officer then prepared injury sheet Exh.P.D and inquest report Exh.P.D/1 in respect of the dead body of Habib deceased and despatched the same to the mortuary for post-mortem examination through Constable Qadeem Shah P.W.1 who brought back the clothes of the deceased Exh.P. 5, shalwar Exh.P. 3, banyan Exh.P. 4 and other Banyan Exh.P. 6 from the hospital, which were taken into possession vide memo. Exh.P.0 Later on the investigation was transferred to CIA Staff Peshawar and was entrusted to S.I. Murtaza Khan P.W.10, who arrested Muslim Shah accused/appellant on 12-2-1997 and on his pointation, recovered a .30 bore pistol Exh.P.7 alongwith five rounds and a spare charger, having five other rounds in it and a copy of the licence and took the same into possession vide recovery memo. Exh.P.C.4. He also recovered two golden bangles, Exh.P.8 at the instance of said Muslim Shah accused and took the same into possession vide memo. Exh.P.0 /5. He also recovered one hammer P.18 and a screw driver P.19 at the pointation of Muslim Shah accused, which were taken into possession vide memo. Exh.P.W-10/1 duly signed by the witnesses.
He then produced Muslim Shah accused before the Ilaqa Magistrate for recording his confessional statement, which was duly recorded by the said Magistrate. He prepared the site plan Exh.P.B/1 showing the recovery of stolen property and recorded the statements of the witnesses.
Muhammad Khan accused was arrested on 2-3-1997, and on his pointation the Investigating Officer recovered golden ornaments and other articles Exhs.P.9 to P.15 vide recovery memo.
Exh.P.C/6. He prepared site plan Exh.P.B/2 showing the recovery at the instance and pointation of accused Muhammad Khan, who was also produced before the Ilaqa Magistrate, where he made confessional statement. The Investigating Officer then got testified the copy of the licence of the pistol of accused Muslim Shah from the licence clerk through his report Exh.10/7. The parcel of the pistol and the crime empties was duly despatched to the Director of Forensic Science Laboratory, while the clothes of the deceased were sent to the office of Chemical Examiner, wherefrom positive reports Exh.P.W.10/5, Exh.P.W.10/3 and Exh.P.W 10/4 were received and were placed on the record.
Atter completion of the various formalities of the investigation both the accused were challened to Court to face their trial.
4. Dr. Taimoor Khan of K.M.C. conducted the post-mortem examination on the deceased Habib Khan on 9-2-1997 at 12-00 noon and had found the following:- "External Examination.
No legature marks present. A young man of a good built wearing steel gray shalwar, qamees and white vest and a dark brown sweater with design. The P.M. lividity and Rigor were fully developed.
(1)F.A entry wound 5 x 5 c.m. on the left side of head 4 c.m. behind the left ear.
(2)F.A exit wound 2 x 1 c.m. on right side of neck 5 c.m. below the right ear and 14 c.m. from the mid line.
Internal Examination Scalp and skull, membrain and brain and corresponding blood vessels, mouth pharynx and oesophagus injured.
Opinion In his opinion the deceased, died due to injuries to brain and vital structures in the neck due to F.A.
Probable time between injury and death was immediate and time between death and P.M. was 9 to 12 hours.
The P.M. report and its pictorial is Exh.P.M . He had also endorsed the inquest report Exh.P.D/1 and the injury sheet Exh.P.D. The P.M. report was in his hand writing and correctly bear his signatures."
The learned trial Judge framed a formal charge under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 on 10-9-1997 against both the accused/appellant, who pleaded not guilty and claimed their trial.
5. The prosecution produced as many as 11 P.Ws. to prove the guilt of the accused/appellant at the trial.
F.0 Qadeem Shah No,1121 appeared as P.W.1 and stated to have escorted the dead body of deceased Habib to the mortuary for post-mortem examination and had brought back the blood- stained shirt P.5, shalwar P.3 and two banyan P.4-6 of the deceased handed over to him by the doctor, which were taken in possession by the Investigating Officer vide' recovery memo. Exh.P.0 signed by him.
Abdul Qayyum No,499 of C.I.A.appeared as P.W.2 and deposed that the Investigating Officer had recovered a hathora P.18 and screw-driver P.19 on the pointation of Muslim Shah accused, who was then in police custody and had led to the said recovery from the spot. Memo. Exh,P.W 10/1 was prepared which was signed by him.
Naeem Khan complainant appeared as P.W.3 and reiterated the contents of the complaint Exh.P.A/1. He further disclosed that Muslim Shah accused was an employee of Survey of Pakistan and was posted at Branch Office at Peshawar, while the complainant was working as Secretary Communication and Works Department Government of N.W.F.P. at Peshawar, when Muslim Shah accused was sent to him by Col. Sher Afgan Khan Deputy Secretary General Survey; as he was considered to be reliable person. The complainant then kept the accused Muslim Shah as a driver, thinking, that he was from his area, so he would be more dependable it was on 7th of February 1997, that a telephonic call was received by his son Kamran. from whom Muslim Shah accused wanted to know about their programme for the Eid, which fell on the 8th February in Mardan District, although the official Eid was to be celebrated on 9th February. Muslim Shah accused was then told, that they were all going to village to celebrate Eid leaving Habib deceased alone in 'the house to take care of the Bungalow in their abs het.. On Saturday after offering Eid prayers, the complainant was away went to the Hujras of other relations to offer Eid Mubarak, when Muslim Shah accused visited his house twice but could not meet him. It was about 3-00 p.m. that he again visited the Hujra of the complainant on a motorcycle alongwith another person, and offered Eid Mubarak to him. Both of them took sweets and tea quickly and left the place. Subsequently thereto, on 9th of February, when the official Eid was being celebrated, the complainant received a call of a duty clerk from the office of Deputy Commissioner Peshawar, informing him, about the death of Habib deceased, which made him to rush to Peshawar, where he lodged the F.I.R. in respect of Harraba with murder committed in his Bungalow. He further stated to have supplied the detailed list of stolen currency and golden ornaments and jewellery to the police, which was subsequently recovered from the accused and was handed over to him on Supardari. While under cross- examination he admitted that Investigating Officer had not recorded his supplementary statement after the submission of the list of missing articles, in which he had not mentioned the theft of Saudi Rayals. He denied the suggestion that the deceased Habib was done to death by Abdullah P.W.5 in connivance with his son Azim and Kamran. He termed the suggestion as incorrect that his sons were aware of the jewellery etc. and cash lying in his bed room, and that they had made the whole dram, otherwise the deceased was murdered by one Abdullah with his connivance. He also termed it as incorrect, that the recovery list Exh.P.A/4 was incorrect and nothing was recovered from the accused, nor the same has been handed over to him by the police. He also denied the suggestion that the parents of the deceased were charging someone else for the murder of their son but he had prevented them and instigated them to charge the present accused.
Zahir Shah No,1839 appeared as P.W.4 and deposed that two crime empties Exh.P.1. of .30 bore giving the smelling of fresh discharge were taken into possession from the spot vide recovery memo. Exh.P.C/1 while blood-stained earth P.2 was also taken into possession vide memo. Exh.P.C!3 which bears his signatures.
Abdullah son of Khan Mir appeared as P.W.5 and deposed that the Habib deceased was known to him, being an employee of Naeem Khan complainant whose dead body was identified by him at the spot before the police. He was however not cross-examined by the defence.
Muhammad A fsar Khan, EAC/ Judicial Magistrate Peshawar appeared as P:W.6 and stated to have recorded the confessional statement of Muhammad Khan accused on 23-3-1997 at 10-30 -a.m. after observing all the legal formalities as required by section 364, Cr.P.C. which was Exh.P.W.6/3. it was then read over to the accused and was got thumb marked by him as token of its correctness.
He testified the certificate Exh.P.W.6/4 duly issued by him. He denied the suggestion that confessional statement was not recorded by him, rather the same was recorded by the Reader of the Court. He also denied the suggestion that no legal requirements were observed before and after recording the confessional ,statement. He however admitted it correct that co-accused Muslim Shah was not present at the time of recording of the confessional statement of Muhammad Khan accused.
Yar Said Khan Judicial Magistrate Peshawar appeared as P.W.7 and stated that Muslim Shah accused was produced before him for recording his confessional statement on 18-2-1997. He after observing the legal formalities and after putting all the relevant questions provided in the confessional proforma Exh.P.W.7/1, he recorded his statement Exh.P.W.7/2 correctly, which was in his handwriting and bear his signatures. Certificate Exh.P.W.7/3 also was duly signed by him. He further deposed that after recording the confessional statement of the accused, he was remanded to the judicial lock-up. While under cross-examination he denied the suggestion that the Reader of the Court had recorded the confessional statement of the accused and he had only signed it.
S.I. Tajpur of Police Station East appeared as P.W.8 and had given the details of his investigation conducted by him, reproduced in earlier paras. While under cross-examination he admitted it as correct that he had not mentioned the details of room No,6 situated on the first floor, however, he had shown the stairs leading to the said room in the site plan prepared by him. He termed it as incorrect, that nothing incriminating was recovered at the instance of the accused and that the recovery memo. was prepared in the police station and not at the pointation of the accused. He also denied the suggestion that the recovery of pistol was planted on the accused.
H.C. Mir Rehman No,661 of C.I.A. Peshawar appeared as P.W.9 and stated that he was a marginal witness to the recovery memo. Exh.P.C/6 vide which the Investigating Officer had taken in possession the golden ornaments wrapped in a bag having been dug out from the earth at the pointation of Muhammad Khan accused from his village Hamzakot. He also gave out the details of ornaments thus recovered i,e, neckless Exh.P.9, another neckless Exh.P.10, a Harr Exh.P.11, one pair of karas Exh.P.12, two big size karas Exh.P13, two Jem stones, another pearl ring, diamond ring Exh.P14.
45 notes of different denomination Exh. P15 and testified his signatures. While under cross- examination he denied the suggestion that the recovery memo. was prepared at the police station.
S.I. Murtaza Khan appealed as P.W.10 and narrated the details of the investigation conducted by him, including the arrest of the two accused and the recoveries effected at their instance. While under cross-examination he termed it as incorrect that the alleged recoveries were fake and nothing has been recovered at the pointation of the accused and that the receipt list by the complainant was the photocopy of the articles allegedly recovery at the instance of the accused.
Dr. Taimoor Khan appeared as P.W.11 and testified the post-mortem report, alongwith its pictorial diagram Exh.P.M., to be the correct carbon of the original which bear his signatures. He also testified injury sheet Exh.P.D and inquest report Exh.P.D/1 having been correctly endorsed by him. While under cross-examination he stated that the dead body of the deceased was brought by the police to the mortuary and he had examined it at 12-00 noon on 9-2-1997.
6. After close of the prosecution evidence statements of both the accused/appellants were recorded under section 342, Cr.P.C. Muhammad Khan appellant pleaded innocence and denied having got recovered any of the stolen articles Exh.P.9 to Exh.P.15 mentioned in the recovery memo.
Exh.C/6. He also denied having made any confessional statement before the Magistrate as according to him he was tortured by the police and was pressurized to make confession in the case, otherwise he would be further tortured. He further stated that the legal formalities were not observed by the Magistrate while recording the alleged confession. He also denied having absconded after the occurrence till the date of his arrest on 2-3-1997 and stated that as he was not charged in the F.I.R., he had no knowledge about the said occurrence. He refused to produce any evidence in defence and denied to appear on Oath as a witness of his own.
Muslim Shah accused, while ,replying to question, that during the course of Harraba, he committed the murder of deceased Habib Khan with his .30 bore pistol. He replied as under:- "This is totally incorrect. I was deputed by P.W.3 Naeem Khan to drive vehicle with his brother at village and he has granted me leave from my own department through Deputy Surveryor General namely Sher Afgan Khan, hence, I have no concern with the alleged occurrence, nor was aware of the very intention of the P.W.3, who ultimately implicated me in the said occurrence. Moreso, my box wherein my clothes pistol alongwith copy of licence were present in the house of Naeem. Khan as I used to be their personal servant during the days of my leave from the department so the pistol lying in his house alongwith the copy of licence were handed over to the local police just to connect me with the alleged offence." While replying to another question, that he had made a voluntary confession in the Court of P.W.7 Yar Said Khan, he stated as under:- "This is incorrect. No confession whatsoever, has been made by me before the magistrate rather to say that the complainant at the relevant time was Secretary to the Government of N.W.F.P., and has compelled the Magistrate to record my statement in line with his direction, rather I have stated the real story as. I was deputed by the very complainant to perform duties with his brother at the village during the days of occurrence. Even then I was tortured by the local police and compelled to sign the very statement. Moreso, I was given impression by the complainant through the said Magistrate, that I will' e acquitted of the - charge by submitting a compromise in the Court, hence, the very confession is incorrect."
In reply to yet another question, as to why he involved in this case Muslim Shah accused stated as under:- "Complainant P.W.3 Muhammad Naeem Khan is Khan of my Ilaqa. Whole of my family was serving under them. I have been driver for long 3 years with his uncle namely Afzal Khan and later on P.W.3 took me from him and I remained for 2-1/2 years as driver with him. Later on I was provided service in the Survey of Pakistan by the complainant but even then I was driving with him as personal driver and used to be on -leave from my department. Never in my life I have committed any sort of stealing, dacoity, theft. During the. days 'of occurrence, the complainant obtained leave for me through Deputy General Surveyor namely .Sher Afgan Khan and deputed me to driver with the brother of complainant, who was contesting general election as a candidate for Provincial Assembly.
The complainant has not only provided me service but everything else and I was residing in his house as his personal servant. I have been implicated for the alleged occurrence under the impression that they will release me of the said charge and I being personal servant to them obeyed their orders at the relevant time but later on to save their own skin, I was held responsible and charged for the, alleged occurrence from which I am unaware and the charge is false and fabricated against me."
He, however, refused to produce any defence evidence, and had not opted, to be examined on Oath, but subsequently he made an application and appeared as a witness of his own under section 340(2), Cr.P.C. On 31-8-1999 and stated that " he had not committed the murder for which he was involved. He was innocent and have falsely been charged."
7. After conclusion of the trial, the learned trial Judge proceeded to convict and . sentence both the accused as stated above. Hence this appeal.
8. We have heard the learned counsel for the parties at length and have perused the record carefully with their assistance.
Learned counsel for the appellants has vehemently argued that there being no ocular evidence to connect the appellants ;with the crime, the circumstantial evidence adduced by the prosecution was not sufficient to 'prove the guilt of the accused at the trial. According to learned counsel the retracted judicial confessions were the result of inducement by the complainant and coercion by the police, therefore, these were of no legal-worth. The alleged recovery of pistol and robbed ornaments from the appellants, having not been testified by independent witnesses, would not provide the requisite corroboration to the tainted judicial confessions which were recorded after the unexplained delay of 3 to 5 days in the case of Muslim Shah, while it took 15/18 days to record the confession of Muhammad Khan accused, which also cast grave doubts on the authenticity of the two confessions. Reliance was placed on Mst. Naz Bibi v. Mst. Roz Khatoon (PLD 1987 Queeta 1) and Muhammad Naseer v. The State (PLD 1988 FSC 58).
Learned counsel for the complainant as well as the State have vigorously defended the conviction of the appellants by submitting that the case against the two appellants stands proved beyond any reasonable doubt through unimpeachable testimony of Naeem Shah complainant P,W.3 who had no rancour or animosity against the accused; rather he was the benefactor of Muslim Shah appellant who was retained by the complainant as driver, as a man of trust coming from his own area. Besides this, the version Of the complainant gets full support from the confessional statements of the two accused which were voluntarily made by them without any coercion or inducement from any quarter.
The matching of the crime empties recovered from the spot with the licensed pistol recovered at the instance of the accused was yet another circumstantial evidence which connected the appellant Muslim Shah with the crime. The recoveries of two Karas from Muslim Shah and other golden ornaments and cash from Muhammad Khan appellant have gone a long way to prove the fact that the murder of Habib Khan deceased was caused during the course of Harraba committed by the accused/appellants in the house of Naeem Khan complainant.
The learned counsel For the complainant while arguing the criminal revision for enhancement of sentence laid great emphasis on the point that the reason recorded by the learned trial Court for awarding lesser penalty of life imprisonment was uncalled for, in the circumstance of the case, as the deceased has been callously done to death without any motive except to eliminate him from the scene of occurrence to facilitate themselves in escaping from the spot. Reliance in this respect was placed on Waris Khan v. The State (2001 SCM R 387). He, therefore, prayed that the sentence of Muslim Shah accused who has been attributed fatal fire on the deceased may be enhanced to death and the amount of compensation may also be appropriately increased to meet the ends of justice.
9. We have dispassionately considered the submissions made by the learned counsel for the parties and have also perused the impugned judgment as well as the case-law cited at the bar.
10. The prosecution has kept its reliance mainly on the testimony furnished by Naeem Khan complainant P.W.3. The judicial confessions made by Muslim Shah and Muhammad Khan appellants 'Exhs.P.W.7/3 and P.W.6!3 respectively, the recoveries of stolen golden ornaments and cash at the instance of the two appellants coupled with the recovery of the licensed pistol at the instance of Muslim Shah accused which was duly matched with the crime empties recovered from the spot. Besides this, the medical evidence furnished by Dr. Taimoor Khan P.W.11 was also taken as a corroboratory piece of evidence to prove the intentional murder of Habib. Khan deceased who was fired at his head, the vital part of the body.
11.The careful appraisal of the testimony of the complainant Naeem Khan who has made a coherent and straightforward statement before the learned trial Court, revealed that Muslim Shah accused was working as a driver with him when he was posted at Islamabad as Joint Secretary Establishment Division and was considered by the complainant a reliable person so the complainant had, kept him at Peshawar, thinking that since he was from his area, he would be more dependable. It was because of this trust that on the asking of Muslim Shah accused on telephone, Kamran the son of the complainant told him the details of the programme of celebrating the Eid in the village. On Eid day at about 3-00 p.m. Muslim Shah, alongwith another unknown person visited the complainant to say Eid Mubarak and then quickly left his 'Hujra after taking tea and sweats. It was subsequently thereto, that the occurrence had taken place at Peshawar. Wherein the jewellery and cash of the complainant was robbed of after committing the murder of Habib Khan deceased.
12. This statement of the complainant was duly corroborated by the retracted judicial confession made by Muslim Shah accused, who in the said statement has categorically admitted these facts but, subsequently during the trial he has tried to sling some mud on the complainant by suggesting that the murder of the deceased was got committed by the complainant through one Abdullah but this suggestion remained unsubstantiated and came out to be a bald assertion, as the same was not put to said Abdullah, when he appeared as P.W.5 before the learned , trial Judge and deposed about the identification of the dead body, beside this, the testimony furnished by the complainant regarding the theft of ornaments, jewellery and cash, was duly proved as the recovery of the said property was subsequently effected at the instance of the two accused. We therefore, are of the considered view that the statement of the complainant being straightforward and honest deposition, inspired confidence and was worth reliance.
13.The next piece of evidence and the mainstay of the prosecution is the judicial-confession made by Muslim Shah accused, who was produced before Judicial Magistrate Peshawar on 18-2- 1997 and had voluntarily confessed his guilt by making an inculpatory statement disclosing therein, that during the month of Ramzan he was in need of some money to celebrate Eid for which he planned to commit a theft in the house of the complainant, from whose son Azeem Khan, he came to know that they would be going to their village for celebrating. Eid. So, in pursuance thereof he also went to his village where he took into confidence Muhammad Khan co-accused and after being sure about the arrival of Naeem Khan complainant in the village, they both went to Peshawar. Muslim Shah furtehr disclosed that he was armed with a .30 bore pistol while Muhammad Khan accused accompanied him empty-handed. On reaching Peshawar, they went straight to the house of Naeem Khan complainant and met. Habib Khan deceased in the servant quarter, where they were served tea and were asked about the purpose of their visit, who was told that they had brought a patient to the hospital. It was then that Habib Khan deceased went to the kitchen and started preparing the meals when Muslim Shah accused fired at him twice in consequence of which he died at the spot. It was thereafter that he alongwith Muhammad Khan took a hammer and screwdriver from the kitchen and after break opening the drawers of almirrah, lying in the special room of Naeem Khan, they committed the theft of golden rings, golden karas, golden earrings, taj and some cash consisting of Pakistani as well as foreign currencies, and escaped from the said bungalow, by hiring a taxi for their village Hamzakot. This confessional statement of Muslim Shah accused Exh.P.W.7/2 was recorded by . the Judicial Magistrate after fulfilling all the legal requirements and after satisfying himself regarding the voluntariness of them same. The accused Muslim Shah was put all the relevant qustions including the question as to how many days, he had been in police custody and whether he was subjected to any torture by the police, the accused Muslim Shah had replied in the negative and after pondering over the matter for some time, he made the above said inculpatory judicial confession, giving the details of the occurrence which were exclusively in his own knowledge i,e, the joining of Muhammad Khan co- accused with him and the manner of doing away with the decesed. In the same manner Muhammad Khan appellant was produced before Judicial Magistrate on 6-3-1997 who after fulfilling legal requirements and putting the relevant questions for satisfying himself regarding the voluntariness of the confessions, recorded the statement Exh.P.W 6/3 at the dictation of the said accused who was properly warned that if he will make confession that will be used against him, as an evidence in. the crime. Muhammad Khan appellant, on the querry made by the Magistrate, as to why he was making a confessional statement, disclosed that he was brought at the spot by Muslim Shah accused fraudulently and he wanted to ''speak the truth.
14. We having dispassionately considered the intrinsic worth of the two confessional statements of the appellants, we feel that the in culpatory confessional statement made by Muslim Shah accused, being the voluntary deposition of the details of the occurrence, including the fatal shot fired at the deceased and thereafter committing theft of the valuables from the hirz of the complainant it goes to prove the culpability of the accused to a great extent, as there was no legal infirmity, to cast doubt on the authenticity .and reliability of the said confessions or to render it as unacceptable. The provision of Article 43 of Qanun-eShahadat Order, 1984 being relevant is reproduced below for the sake of reference:- Article 43:- "Consideration of proved confession, effecting 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 persons, making it, and (b)the Court may take into consideration such confession as circumstantial evidence against such other person."
15. This confessional tatement even if retracted would thus be reretant against its maker as well as co-accused Muhammad Khan, who too has made a confessions statement, although exculpating himself from the crime, but the tenor of his statement clearly disclosed that he had shared common intention with Muslim Shah accused, who was duly armed with pistol and had "accompanied him willingly to the house of the complainant, where they both had committed Harraba and -murder of Habib deceased in furtherance of their common intention.
16.The Judicial Magistrates Muhammad Atsar Khan P.W.6 and Yar Said Khan P.W.7 had candidly deposed about recording of the confessional statements of the accused, which according to them were voluntarily made by the two accused, as they were given time to ponder over the matter and 'were also warned about the consequences of making the confession. Both these witnesses had testified Exh.P.W.6/3 and Exh.P.W.7/2 the respective confessional statements of the accused which were correctly recorded and duly signed by them.
17. We, therefore, are of the confirmed view that the two confessional statements 'although retracted would hold the field being voluntary and true and could conveniently be made basis for the conviction of the appellants. We feel strengthened in adopting this view by the dictum laid down made by the Honourable Supreme Court of Pakistan in the case of Wazir Khan v. The State (1989 SCM R 446) wherein it was observed that there is no legal bar for recording a conviction on a confession which is subsequently retracted, if it is voluntary and true." We have not come across any infirmity in the confessional statement of the appellant to render it as unacceptable. On the other hand we are of the view that the appellant had told the truth".
Similarly in, the case of State v. , Mihun alias Gul Hassan (PLD 1964 Supreme Court 813) the.
Honourable Supreme Court observed as follows:- "It is well-settled that as against the maker himself ' his confession,' judicial or extrajudicial, 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' was true and voluntary and was not obtained by torture or coercion or inducement."
18.In the instant case, besides the retracted judicial-confessions, there is further circumstantial evidence, which connects the appellants with the crime by rendering material corroboration to the above retracted confession. The recovery of the licensed pistol of Muslim Shah appellant at his instance from his house alongwith two robbed golden karas, and the recovery of the ornaments, jewellary and cash at the pointation of Muhammad Khan appellant, duly identified by the complainant, were the pieces of evidence, which have gone a long way to prove the guilt of the accused to the hilt. The recovery of hart mere and screw-driver with which the accused had forcibly opened the drawers of the Almirahs and had stolen the valuables of the complainant; was yet another circumstance to be taken serious note of, as it was an important link in the chain of circumstances to connect the appellant with the crime.
19 The positive report of the- Director Forensic Science Laboratory Exh.P.W 10/5 which specifically revealed that crime empty recovered from the place of occurrence was fired from the licensed pistol recovered at the instance of Muslim .Shah appellant, also provided sufficient corroborations - to the above said confessional statement of the appellant wherein he had confessed to have fired pistol shots on the deceased. Who succumbed to the injuries thus caused to him. This fact got further support from the medical evidence rendered by Dr. Taimoor Khan P. W.11 who had categorically opined that injuries Nos, 1 to 2 was the cause of death which occurred immediately after receipt of injuries.
20. The cumulative effect of the circumstantial evidence, discussed above, makes us believe that despite the .absence of ocular testimony, the case of the prosecution stands proved through the chain of circumstances, the links of which are so well-knit with each other that no room for any doubt against the culpability of the accused/appellant is left to exist on record, to give them the benefit of.
21.The facts thus proved through the above reliable circumstantial evidence are, therefore, considered to be sufficient to sustain the conviction of the appellants, as these 'are found to be incompatible with the innocence of the accused and are "incapable of explanation upon any other reasonable hypothesis than the guilt of the accused".
22.We have been enlightened in this respect, by the observations of the Honourable Supreme Court of Pakistan in a case, cited as Jaffar- Ali v. The State (1998 SCM R 2669), wherein it was laid down that if the circumstantial evidence connects the accused with the offence, punishable with death, without any reasonable doubt, the same can form the basis of the capital punishment." The learned Supreme Court, in pursuance thereof had upheld the sentence of death penalty awarded by the learned trial Court on the basis of last seen evidence coupled with retracted judicial- confession, by placing reliance on section 1740 and section 1741 of "Al-Majallah" the Code of Islamic laws, promulgated by the Ottoman Caliphate, which envisaged and recognised the circumstantial evidence even in the case of murder.
23. It was also in this case, that the Honourable Supreme Court, had laid down certain principles for the appraisal of evidence, which are reproduced below for the sake of seeking guidance therefrom:- "The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should. record the conviction though there might have been some technical lapses on the part of the Investigating Agency/ prosecution, provided the same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities."
We being inspired by the above said observations are of the considered view that the overwhelming and reliable circumstantial evidence adduced by the prosecution inspired confidence and was sufficient to warrant the conviction of the two appellants.
24.We have anxiously considered the stance of the accused/appellants taken up during the trial regarding their false implication in this case by the complainant. We feel that the same was not tenable, in the circumstances of this case, as it is based on the circumstantial evidence, mainly consisting of the retracted judicial confessions of the appellants, which stands proved as voluntary and true, through the statements of the Judicial Magistrates P.W.6 and P.W.7 who being independent witnesses could not be labelled as partisan, simply because of the fact that the complainant was one of the senior officers posted at Peshawar.
Moreover there is nothing on record to attribute any enmity of the complainant with the appellants, who, as per record, was the benefactor. of Muslim Shah appellant by keeping him as a dependable driver coming from his area, while Muhammad Khan appellant was not even earlier known to him.
In this view of the matter we do not attach any importance to the bald assertion of the defence and proceed to discard the same as worthless.
25. The upshot of the above discussion is that the prosecution has successfully proved its case beyond any reasonable doubt against both the appellants under section 302(b), P.P.C: as Tazir, and they have been rightly convicted by the learned trial Judge vide the impugned judgment dated 1-12-1999 which is hereby upheld.
26. So far the quantum of sentence awarded to the appellants is concerned, we feel that the same required interference by this Court to the extent of Muslim Shah appellant whose sentence of Life Imprisonment do not commensurate with the gravity of the offence committed by him. We feel inclined to agree with the contention raised by the learned counsel for the complainant that the reason extended by the learned trial Judge to award the lesser penalty, particularly to Muslim Shah appellant was unwarranted in the circumstances of this case, as the appellant has committed the callous and gruesome murder of an innocent person, who was then busy in the preparation of meals in the kitchen. According to learned counsel, it was not incumbent on the prosecution to prove motive in all the murder cases, as murders are often committed on trivial matters or even without any motive. The learned counsel further emphasised that Muslim Shah appellant had intended to commit the murder of the deceased, as he had selected and fired at the vital part of the body of the deceased i,e, the head for doing away with him, in consequence of which, the deceased succumbed to his injuries at the spot. It was in this context that the learned counsel pressed for the enhancement of the sentence of Muslim Shah appellant to death penalty, while the sentence awarded to Muhammad Khan appellant was stated to be appropriate and thus was not challenged.
The learned counsel substantiated his contention by placing reliance on the recent judgment of the Honourable Supreme Court of Pakistan, cited as Waris Khan v. The State (2001 SCM R 387) wherein it was observed that:; "Weakness or absence of motive or failure to prove the same---Effect--Where the eye-witness account was worthy of credence, unimpeachable confidence - inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or' where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances."
27. We are well-aware that many a time the offenders commit heinous offences like murder with very trivial motive and some times without any motive. It is the devil who knows as to what was the intention of the criminal to commit the crime, as the same is always hidden in his mind. However, the intention can very well be gathered from the visible acts committed by the accused and the surrounding circumstances in which the alleged offence was committed.
28. We have analysed the conduct of Muslim Shah appellant in the light of circumstantial evidence adduced by the prosecution, we are of the view that, the accused after ascertaining the presence of Habib Khan deceased in the bungalow of the complainant, and considering him the only stumbling block in their way to fulfil his design of committing Harraba in the said house, decided to remove him from the scene, and it was in pursuance of the same that he after arming himself with a pistol, took into confidence his co-accused and reached the spot. It was then in furtherance of their common intention that Muslim Shah appellant aimed at the head of the deceased and fired at him twice, in consequence of which he succumbed to his injuries at the spot.
The retracted confessional statement of the said accused which stands relied upon coupled with other circumstantial evidence do disclose the above events, which otherwise were not in the knowledge of any-one else except the accused.
29. Under the above circumstances and respectfully following the dictum laid down by 'he Honourable Supreme Court of Pakistan in the case cited supra, we feel constrained to enhance the sentence of Muslim Shah appellant from life imprisonment to Death penalty under section 302/34(b), P.P.C. as Tazir. The appellant is to be hanged by neck till he is dead. The other sentences of fine and compensation are maintained as awarded by the trial Court. The death sentence will operate subject to confirmation by the Honourable Shariat Appellate Bench of the Supreme Court of Pakistan.
30.So far the sentence of life imprisonment awarded to Muhammad Khan appellant is concerned, the same being appropriate in the circumstance of this case, is maintained accordingly.
31.Consequently Criminal Revision for enhancement of sentence is allowed to the extent of Muslim Shah appellant, while the Criminal Appeals filed by both the appellants being without merit stand dismissed with the above, modification in the sentence.
On 24-5-2001 the following short order was passed.
"Arguments heard. For reasons to be recorded later in the detailed judgment, the Revision Petition No,1/P of 2000 is accepted to the extent of Muslim Shah son of Muhammad Shah and his sentence is enhanced from life imprisonment to death. Other sentences of fine and compensation are maintained as awarded to' him by the trial Court and his appeal is dismissed.
The Jail Criminal Appeal No,12/P of 2000 of Muhammad Khan son of Zawar is dismissed. His conviction and sentence are maintained as awarded by the learned Sessions Judge, Peshawar on 1-12-1999. The benefit of section 382-P Cr.P,C. extended to him by the trial Court shall remain intact."
These are the reasons in support of our order referred to above.