RUKAN ZAMAN Versus KHIZAR HAYAT

1. NASIM HASAN SHAH, J. ‑‑The facts forming the background of this appeal by leave of this Court are that on 27‑10‑1981 at 8.30 a.m. the appellant lodged a report with Khanpur Police Station that on the earlier night his cousin Fiaz Akhtar had visited him and left at about 7.00 p. m. for his house. He himself proceeded for his duty at Farooqia Cement Factory and when he returned at home in the morning at about 7.00 a.m. Abdur Rahim informed him that the dead body of Fiaz Akhtar was lying in the fields. He immediately proceeded to the scene of occurrence where he found Fiaz Akhtar lying dead in a pool of blood. During the police investigation Khizar Hayat accused, the first respondent herein, was arrested and he led the Investigating Officer to the recovery of .12 bore pistol which was proved at the trial to be the same from which the empty cartridge recovered from the scene of offence was fired. Two days later, on 29‑10‑1981, Khizar Hayat accused made a judicial confession to the effect that he had shot the deceased. Out of the two co‑accused Safdar and Fiaz (the second an4 the third respondents herein), the former, namely, Safdar also made a judicial confession about his participation in the crime.

2. At the trial, the prosecution case was supported by testimony of three witnesses Bashir Hussain, Safdar Zaman and Azizur Rehman who claimed to have "last seen" the deceased in the company of the three accused persons. In addition, against Khizar Hayat and Safdar accused reliance was placed on their judicial confessions and so far as Khizar Hayat was concerned, the prosecution also relied on the additional circumstance of the recovery of the crime empty which, according to the expert, matched with the weapon of offence recovered at his instance. The motive, according to the prosecution, was ill‑will between the parties as a result of the elections to the local council.

3. The Additional Sessions Judge, who tried the case did not rely on the evidence of the three witnesses Bashir Hussain, Safdar Zaman and Azizur Rehman. Nor did he reply on the confession of Safdar accused and he, therefore, acquitted the two co‑accused Safdar and Fiaz. The learned Judge, however, placed full reliance on the judicial confession of Khizar Hayat which, according to him, was fully corroborated by the incriminating recoveries of the pistol and the matching of the empty. He, therefore, held Khizar Hayat accused guilty: under section 302/34 P.P.C. and awarded him the sentence of death and fine of Rs.10,000 in default to suffer two years R.I.

4. The judgment of the Additional Sessions Judge was challenged by two appeals and a revision application; one appeal by the convict Khizar Hayat against the conviction and the sentence recorded against him and the other appeal by the State against the acquittal of the co‑accused Safdar and Fiaz while the appellant herein also filed a revision application seeking reversal of the acquittal of the aforesaid two co‑accused and imposition of higher sentence of fine on the convict Khizar Hayat.

5. All these matters were considered by a Division Bench of the Lahore High Court. The learned Judges were of the view that no credence could be given to the evidence of the three witnesses Bashir Hussain, Safdar Zaman and Azizur Rehman, agreeing with the learned trial Judge that the judicial confession of Safdar being exculpatory in nature could not be relied upon and in any case it being retracted it had no substantial value for supporting the conviction of the maker of the confession Learned Judges also did not rely upon' the judicial, confession of Khizar Hayat accused for the reason that it did not appear to be true for it contained no explanation' for the incised wound found on the body of the accused. The circumstantial evidence" as to the recovery of the crime weapon and the crime empty was also not relied upon for the reason that these were not sent to the Court soon after their recovery and no evidence was produced that the crime pistol was resealed as required by law after the earlier seal was removed in order to show it to the accused when his confessional statement was recorded. On this view of the case, the appeal of the convict Khizar Hayat was allowed and the one filed by the State and also the revision application of the appellant herein were dismissed.

6. Leave was ‑granted only against the order of acquittal of Khizar Hayat passed by the High Court to examine whether the acquittal of Khizar Hayat recorded by the High Court was in accord with the well‑settled, principles governing criminal justice, observing as follows:-

7. "After having gone through the record of the case, we find no justification whatsoever .for interference with the acquittal of the two, cu‑accused Safdar and Fiaz for the evidence of the three aforesaid witnesses has been discarded for very cogent and proper reasons. As against Safdar accused there is additional evidence of the judicial confession made by him which has been held to be exculpatory in nature and in the absence of any other piece of prosecution evidence in corroboration thereof there is no safe basis on which the guilt of, this accused could be validly founded. The submissions advanced by the learned counsel, in so far as Khizar Hayat accused is concerned, are, however, weighty and deserve considera tion: ‑

8. The learned counsel for the appellant has taken us through the relevant record. The most important, piece of evidence is the judicial confession of Khizar Hayat respondent. It may therefore, usefully be reproduced below:-

9. In order to assess whether the judicial confession of Khizar Hayat respondent can be acted upon, the statement of Dr. Rahimullah Khan P.W., who performed the autopsy on the dead body of Fiaz Akhtar, is also relevant. The following part of, the said statement may also usefully be re‑produced below: ‑

10. " ..He had bleeding from the nose and was wearing blood‑stained shirt with corresponding holes and a cut and blood‑stained Bunyan with a corresponding cut:

(1) Eight fire‑arm entrance wounds each 1/4" x 1/4" scattered in an area 3" x 2" on the upper and outer part of left scapula region.

(2) Incised wound 1" x 1/6" x 3/4" on the back of left lower chest. "

11. In the course of his cross‑examination the Doctor said:

12. "The direction of the fire was from above downwards and to the right. The victim was slightly on the right and in front of the assailant ."

13. On carefully examining the judicial confession of Khizar Hayat respondent and the statement of Dr. Rahimullah Khan P. W. we have come to the conclusion that the judicial confession cannot be relied upon. According to the prosecution case, the murder was committed because of enmity between the parties engendered by the Local Council elections; whereas according to the confessional statement of Khizar Hayat he shot the deceased because the deceased wanted 'to take off his Shalwar either to disgrace him or to commit sodomy with him. Furthermore, according to the confessional statement of Khizar Hayat he allegedly fired at the deceased from behind whereas the medics: evidence shows that the shot was fired from the front. Indeed, the confessional statement is more of an exculpatory nature rather than a statement implicating its maker. We also observe that there is no mention of how the incised injury, which was also found on the person of the deceased, was caused. The judicial confession is, therefore, inconsistent with the prosecution case and does not support it. We are, therefore, inclined to agree with the High Court that the prosecution has failed to prove its case against the accused.

14. No good ground for interfering with the order of acquittal is, therefore, made out. This appeal, accordingly, fails and is dismissed hereby. The bail bonds shall stand discharged.

15. M.Y.H./R‑44/S Appeal dismissed.