1. ' MUHAMMAD NAWAZ ABBASI, J.---This jail petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by Tariq Hussain Shah, alias Billoo through which he sought leave to appeal against the judgment, dated 25-1-2001 passed by a Division Bench of Peshawar High Court, Abbottabad Bench, by virtue of which the conviction and sentence of death awarded to him by the learned Additional Session Judge, Abbottabad, was maintained.
2. ' The petitioner and his co-accused namely Aamir Shah were charged by the learned Additional Session Judge, Abbottabad, under sections 302/324/120-B/34, P.P.C. For committing the murders of Irshad Hussain and Nazar Hussain real brothers at 16-30 hours on 11-8-1995 within the area of Police Station Havalian District Abbottabad.
3. ' The relevant facts of prosecution case in the background are that Abdul Saboor, S.-I. Police Station, Havalian, District Abbottabad, while on patrol duty on coming to know about the occurrence reached at the spot and recorded the statement of Arshad son of Irshad Hussain deceased who narrated that his brother Dilshad and one Ali Akbar were sitting in the company of Irshad Hussain Shah, his father, in their shop situated in Havailan Bazar when at about 4-30 p.m.
4. Tariq alias Billoo accused armed with 222 bore rifle while appearing there suddenly opened firing at Irshad Hussain Shah who having sustained injuries expired on the spot. Ali Akbar was also injured in occurrence at the hands of accused and that shortly after the occurrence he came to know that Tariq had also killed Nazar Hussain, his uncle, at Mohallah Mahboobabad. The complainant stated that there was no enmity between the parties. The Investigating Officer having sent the statement of complainant to Police Station for registration of case, himself proceeded to the hospital where he having prepared injury statement of two deceased and Ali Akbar injured eye-witness, dispatched the dead bodies for post-mortem. During the spot inspection the Investigating Officer recovered empties and blood-stained earth from the place of two occurrences. The accused was arrested on 9-11-1995 and while in Police custody he desired to make a confessional statement under section 164, Cr.P.C. Therefore, the Police produced him before a Magistrate who recorded confessional statement of accused and sent him to judicial lock up. The Investigating Officer having completed the investigation submitted Challan against the accused to face trial for the charges of murder of Irshad Hussain Shah and Nazar Hussain Shah and also for committing injuries to Ali Akbar. The prosecution in addition to eyewitnesses the doctor who conducted post-mortem examination of the deceased and medically examined Ali Akbar injured eye-witness, the Investigating Officer and the police officials who remained associated with the investigation of the case also placed on record the report of Chemical Examiner and Ballistic Expert. Dr. Muhammad Irshad, P.W.4, having medically examined Ali Akbar traced the following, injuries or his person:-- "(1) .Entrance wound 1/4" x 1/3" left side 4 from acromonin.
(2) Exit wound 3" x 1-1/2" left side the chest at latest border of left scapula (mid portion) 1".
5. ' The same doctor also conducted post-mortem examination of two deceased namely Irshad Hussain and Nazar Hussain on 8-11-1995. The following injuries on the person of Nazar Hussain deceased were traced out:--- "(1) Entry wound 1/3" x 1/4" at right side midline 3" above the umbilicus.
(1) Exist wound 2-1/2" x 1/2" at right sub-costal 1" from Xephisternum.
(2) Exit wound 1" and 5" from axilla at mid axillary line left side.
(3) Entry wound 1" x 1" at left side of buttock at the Leval of greater trochanter.
(4) Exit wound 1.1/2" x 1/3" at scrum (left side of vertibral column) 3" above natal clift.
(5) Entry wound 1/4" x 1/3" from 1" above right side."
6. ' The detail of injuries sustained by Irshad Hussain was described by the doctor as under:-
(1) Entry wound 1/3" x 1/4" at left side of chest at posterior axillary line at 12th rib left side.
(2) Exit wound 3" x 2" at mid line at apigastrium,
(3) Entry wound 1/3" x 1/3" at right lumber region 3" from vertebral column and 2" above postrior iliac spine.
(4) Exit wound 2.1/2" x 1-1/2" at medial and of right clavical; Clavical and 1st rib fractured.
(5) Entry wound 1" x 1.1/2" grazed 2" from right hypocondirum midline, anterior.
7. ' In the opinion of the doctor injuries were caused with fire-arm which proved fatal to the lives of the deceased. All Akbar inured eyewitness was examined as P.W,5 who fully supported the prosecution version given in the F,I,R. And stated that he had no blood relation with the accused or enmity with Tariq Hussain petitioner and that he being present in the shop with Irshad Hussain deceased also sustained injuries as a result of firing of Tariq Shah, Arshad, P, W.6 son of Irshad Hussain and nephew of Nazar Hussain, the first informant, while repeating the story of F.I A. In his statement before the Court stated that Tariq Shah while appearing at the shop armed with 222 bore rifle suddenly opened firing at his father without any reason in the background. Mat. Chann Bibi P.W.7, wife of Nazar Hussain is an eye-witness of occurrence in which her husband namely Nazar Hussain was killed by the petitioner. She stated that on the fateful day at about 4-50 p.m. On knock at the door of house she on coming out saw that Tariq alias Billoo was standing outside the door of her house. The accused inquired from her about her husband and on information given to the accused that her husband was not present at home, he went away and shortly thereafter she heard fire reports outside her house and on coming out of the house saw that Tariq Shah was firing on her husband. Later she came to know that Tariq petitioner had also killed Irshad, real brother of her deceased husband. She stated that deceased had no enmity with the accused and that he was killed at the instance of Aamir Shah and Dr. Rehmat, Syed Haq Nawaz, P.W.8, another eye-witness of the occurrence in which Nazar Hussain was murdered stated that Tariq Shah accused while armed with 222 bore rifle confronted the deceased near his house and opened firing at him who later succumbed to the injuries. Syed Jamshaid P. W.10, the third eye-witness of the occurrence, having made the similar statement corroborated Syed Haq Nawaz. Abdul Saboor, S.-I. Police Station Havalian on completion of investigation having found the petitioner responsible for committing murder of Irshad Hussain and Nazar Hussain challaned him alongwith his co-accused to face the trial. Haji Qasim P.W.13, Judicial Magistrate, Abbottabad, recorded confessional statement of accused on 16-11-1996. This witness stated that he having completed the formalities of satisfying himself about voluntariness of the confession, recorded the statement of accused under section 164, Cr.P.C. The accused in his statement under section 342, Cr.P.C. While denying the allegation pleaded innocence and false implication. The learned trial Judge at the conclusion of the trial convicted and sentenced Tariq Shah petitioner on two counts for committing Qatl-e-Amd of Irshad Hussain and Nazar Hussain and sentenced him to death on each count under section 302(b), P.P.C.
8. As Tazir. The petitioner was also directed to pay Rs.40,000 as compensation on each count to the legal heirs of two deceased under section 544-A, Cr.P.C. And in default of payment of compensation to undergo R.I. For six months on each count. The petitioner was further convicted under section 324, P.P.C. And was sentenced to R.I. For 10 years with a fine of Rs.10,000 and in default of payment of fine to suffer R.I. For one year. Dr. Rehmat co-accused of the petitioner died during the trial whereas Aamir Shah was acquitted by the trial Court with the following observations:--- ' "So far as accused Aamir Shah is concerned, in this respect I would like to mention that the prosecution has not been able to produce direct or other strong circumstantial evidence against him except the retracted confession of accused Tariq Shah Accused Aamir Shah is not charged in the F.I.R. He was not seen on the spot. There is no evidence including the Court statement of complainant and eye-witnesses to prove the charge against him. According to Article 43 of Qanun-e-Shahadat Order, 1984 when more persons than one are being tried jointly for the same offence and the confession made by one of such persons is proved, such confession shall be proof against the person making it and the Court may take into consideration such confession as circumstantial evidence against such other person. In this particular case, the confession of accused Tariq Shah is proved but the same is only of circumstantial value against accused Aamir Shah which is not supported by any other evidence, to prove charge against Aamir Shah accused, therefore, only on this piece of circumstantial evidence not corroborated through any other evidence, no conviction can be recorded. Hence, accused Aamir Shah is entitled to the benefit of doubt."
9. ' Learned counsel for the petitioner has contended that petitioner had no motive to kill the deceased and that the eye-witness account was furnished by the closely related person which was not seeking corroboration from any independent sources, therefore, it was not safe to place reliance on sole statement of such interested witness and convict the petitioner. Learned counsel submitted that the recovery of weapon being doubtful was not treated as an incriminating material against the petitioner and similarly confessional statement allegedly made by the petitioner was retracted by him, therefore, the same would be of no use to the prosecution either as an independent or a corroborative piece of evidence. Learned counsel next contended that the occurrence took place in the Bazar but no person from the bazar was produced as a witnesses with a view to withhold the independent evidence, therefore, the testimony of related witnesses would not be alone sufficient to sustain conviction. Learned counsel lastly argued that it being motiveless occurrence, extreme penalty of death was not proper. We having gone through the evidence with the assistance of learned counsel for the petitioner and considering the contentions raised by him in support of this petition find, that there was no exaggeration in the evidence of eyewitness. Irshad Hussain deceased was fired at when he was sitting in his shop with his son Arshad, first informant and All Akbar an injured eyewitness. They were natural witnesses of the occurrence and were entirely independent as they had no enmity, malice or grudge against the petitioner. Arshad, the first informant of the occurrence in which his father was murdered and Ali Akbar an injured witness of the said occurrence have categorically stated that the deceased had no enmity against the petitioner and that they were not even aware of any reason behind the murder of Irshad Hussain.
10. Similarly Mst. Chann Bibi widow of Nazar Hussain and two other witnesses of the occurrence in which Nazar Hussain was murdered by the petitioner, were natural witnesses. The deceased was killed near his house and eye-witness being present at the scene of occurrence categorically stated that neither they nor deceased had any enmity with accused and they were also not aware of any reason for the said occurrence. The accused upon arrest shortly after the occurrence made a confessional statement before the Magistrate wherein he disclosed that he at the instance or Aamir Shah and Dr. Rehmat, since dead, who were inimical to the deceased, committed their murder and that he had no personal enmity or grudge against the deceased. The accused, however, retracted his confessional statement but the same would not lose its value for the mere reason that it was retracted. The perusal of statement of Magistrate and the confessional statement of accused would show that it was made voluntarily.The accused had no personal motive or reason to kill the deceased except the one disclosed by him in his confessional statement and the prosecution has also not set up any other motive behind the occurrences and thus the petitioner while acting as hired assessinator took the lives of Nazar Hussain and Irshad Hussain for monetary consideration, therefore, the motive for killing the deceased was disclosed by the petitioner himself in his confessional statement. The eye-witnesses in the present case, were natural, straightforward and truthful and their evidence was of unimpeachable character and was fully corroborated by the confessional statement of the accused and thus this was sufficient evidence to prove the charge and consequently no exception can be taken to the finding of guilt of the petitioner, arrived at by the trial Court and upheld by the High Court in appeal. This petition having no substance is accordingly, dismissed. Leave is refused.
11. ' Having gone through the evidence, we find that the acquittal of Aamir Shah by the learned trial Judge was not supported by the sound reasons. The inculpatory confessional statement made by Tariq Shah accused would equally be providing incriminating material against Aamir Shah, acquitted accused, who was in the back of occurrence. It is settled law that if a retracted confession was found confidence-inspiring it would alone be sufficient for conviction and we having taken notice of this aspect of the matter, find that the legality of acquittal of Aamir Shah would need examination. We therefore, direct that notice shall be issued to Aamir Shah, the acquitted accused, to show cause as to why he be not convicted and sentenced under section 302(b), P.P.C. The bailable warrants in the sum of Rs.50,000 returnable to Sessions Judge, Abbottabad, be issued against Aamir Shah and notice shalt also be issued to Advocate-General, N.-W.F.P. For his representation.