RASOOL BAKHSH Versus STATE

MAMOON KAZI, J. ---By this common judgment, we propose to dispose of Criminal Appeal No.8 of 1995 and Criminal Appeal No.9 of 1995, both having arisen out of Jail Petitions Nos.2'79 of 1993 and 201 of 1993 respectively.

2. Appellant Rasool Bakhsh son of Suleman was convicted by the Additional Sessions Judge, Usta Muhammad under section 302(b), P.P.C. and sentenced to suffer imprisonment for life. He was also convicted under section 13-E of the Arms Ordinance and sentenced to undergo R.I. for two years with a fine of Rs.1,000. In default, he was further sentenced to suffer a month's R.I. His appeals before the High Court were dismissed, however, benefit under section 382-B was allowed.

3. The appellant is alleged to have caused death of deceased Abdul Haleem and his own wife, Mst. Naz Khatoon, with a shot-gun on account of suspicion of Siah Kari, F.I.R. in respect of the incident was recorded at Police Station Usta Muhammad on 17-2-1991 at about 02-30 a.m. at the instance of Khan Muhammad son of Ali Muhammad. The appellant was arrested by the police on 22-2-1991 from his village, Goth Muhammad Ali Rind, after which he got his confession recorded. According to the said confession, which' was recorded by P. W.4, Syed Khurshied Shah, on the 4th March, 1991, the former had doubted his wife, Mst. Naz Khatoon, of having illicit relations with deceased Abdul Haleem Lashari. He had initially seen them in an objectionable position a year prior to the said occurrence and had again seen them together just before the said incident. Thus he got provoked and killed both of them with his shot-gun.

4. Although, there was no eye-witness of the alleged incident, but the prosecution nevertheless relied upon medical evidence, recovery of empties from the scene of incident and the shot-gun recovered from underneath Palal behind the house of the deceased and the judicial confession made by the appellant.

5. The appellant in the statement made before the Court, denied having made the confession and also denied to have committed the alleged offence.

6. However, both the High Court as well as the learned trial Court have found the evidence of the prosecution sufficient to sustain the charge of murder as well as the offence allegedly committed by the appellant under section 13-E of the Arms Ordinance.

7. Leave was granted on the question, whether it was a case of murder falling under section 302, P.P.C. or that under Ikrah-i-Naqis, falling under section 303(b), P.P.C. and whether the evidence in the two cases had been properly evaluated by the Courts below.

8. Sardar Muhammaa Ghazi, learned counsel for the appellant, has argued that since the confession was retracted, therefore, it needed further corroboration which was not provided by the prosecution. Further, according to the learned counsel, the confession had been made after a lapse of about ten days and, therefore, no evidentiary value could be attached to the same, Since there was no ocular evidence, the circumstantial evidence was not sufficient to sustain the two charges. Even in the case of recovery of shot gun, according to the learned counsel, the provisions of section 103, Cr.P.C. had not been complied with.

9. The judgment of the High court has, however, been fully supported by Mr. Muhammad Ashraf Khan Tanoli, learned Advocate-General, who has appeared on behalf of the State.

10. We are however, unable to agree with the said contentions of the learned counsel for the appellant. So far as the confession is concerned, no doubt, the same was retracted by the appellant and had been recorded after about ten days after the arrest of the appellant by the police, but, since it is not at variance with the other evidence produced by the prosecution, reliance can still be placed thereon. Reference in this regard may be made to the case of Mst. Naseem Akhtar v. The State (1999 SCMR 1744). In this case, although the confession was made after a lapse of twelve days, but since it tallied with other evidence produced by the prosecution, this Court held that it could still be relied upon. In the present case also, the confession is further corroborated by other evidence, such as recovery of empties from the place of incident and that of the shot-gun which was allegedly recovered by the police at the instance of the appellant. Therefore, it fully tallies with other pieces of evidence. No doubt, the recovery of the gun was not witnessed by an independent witness as required by section 103, Cr.P.C., but what the said section lays down is only a rule of procedure and not that of evidence. Therefore, when an independent witness is not easily procurable and the rule laid down by section 103, Cr.P.C. cannot be strictly followed, evidence of a police officer under such circumstances can be relied upon. Therefore, reliability of such evidence would depend upon the circumstances of each case. In the present case, report of the Ballistic. Expert Exh.P/7-G indicates that the empties recovered from near the bodies of Abdul Haleem and Mst. Naz Khatoon had been fired from the shot-gun said to have been recovered at the instance of the appellant. The injuries on the persons of the deceased, according to the medical evidence, also were pellet injuries which could be caused by such weapon. Therefore, there appears to be sufficient evidence to sustain the charge of murder against the appellant.

11. So far as the question, whether an offence under section 302, P.P.C. or 303(b), P.P.C. is made out from the circumstances of the case, no doubt, an offence under Ikrah-i-Naqis may entail lesser punishment than that the imprisonment for life, as according to section 303(b), P.P.C. it is punishable even with imprisonment which may extend to only ten years, but I there appear to be no circumstances to indicate commission of such offence. Ikrah-i-Naqis in section 229, P.P.C. has been defined to mean as "any form of duress which does not amount to Ikrah-i-tam". Ikrah-i-tam has been defined as under:--

299(f). "Ikrah-e-tam" means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or Zina-bil -Jabr.

Be that as it may, but perusal of the confession further indicates that the deceased had not become victims of any sudden provocation as the appellant had failed to react when he first saw the deceased in an objectionable position. They were again seen together after about an year which is said to have provoked the accused to commit the crime. Therefore, there was no justification for any concession other than the one already allowed to the appellant. Even otherwise, murder cannot be condoned on the ground of Siah-Kari. Notwithstanding such allegations, murder is to be punished with death unless there are mitigating circumstances to justify imprisonment for life. The appellant in this case has already been dealt with leniently by receiving the lesser punishment of imprisonment for life. The confession also appears to be voluntary as notwithstanding its retraction by the appellant, no other circumstance was brought by him on record to render it doubtful.

12. So far as the appellant's conviction under section 13-E of the Arms Ordinance is concerned, no arguments have been addressed on behalf of the appellant by his learned counsel.

13. In the result, the conviction of the appellant and the sentence of imprisonment for life and two years' R.I. respectively together with fine of Rs.1,000 is upheld and the appeals are dismissed.

N.H.Q./R-1/S Appeals dismissed.