HAQ NAWAZ Versus STATE

1. SAIDUZZAMAN SIDDIQUI, C.J.--- We propose to dispose of the abovementioned two criminal appeals by a common judgment as they arise from the same impugned judgment. Criminal Appeal No. 175 of 1999 is filed by the convict Haq Nawaz against the State while Criminal Appeal No. 176 of 1999 is filed by the State against the acquitted accused Zakiullah, Muhammad Arif, Muhammad Hussain @ Kaka, Waseem Aslam and Muhammad Haneef. For the sake of convenience, we will refer in this judgment hereinafter, the appellant Haq Nawaz in Criminal Appeal No. 175 of 1999 as 'the appellant', the respondent/State in Criminal Appeal No. 175 of 1999 and appellant/State in Criminal Appeal No. 176 of 1999 as 'the respondent' and the five respondents in Criminal Appeal No. 176 of 1999 as 'the acquitted accused'.

2. The appellant was tried alongwith acquitted accused, Riaz Basra and Javed Ahmed (the last-mentioned two accused' were declared absconder (hereinafter to be referred as 'the absconders') in the case and were tried in absentia) under section 302/120-B, P.P.C. and section 3 of the Explosive Substances Act, 1908, before the. Special Court (Suppression of Terrorist Activities), Lahore (hereinafter to be referred as 'the STA Court'). Appellant was convicted under section 302, P.P.C. and awarded death penalty. He was also convicted under section 120-B, P.P.C. and sentenced to 7 years' R.I. He was further found guilty under section 3 of the Explosive Substances Act, 1908 and awarded death penalty and his entire property was ordered to be forfeited. The acquitted accused and the absconders were also found guilty under section 302/120-B, P.P.C. and sentenced to imprisonment for life with fine of Rs.20,000 each and in default of payment of fine to undergo R.I. for six months each.

3. The F.I.R. in the case was lodged by one of the eye-witnesses, Majeed Shahanshanipur, through a signed statement drawn in the Services Hospital, Lahore and forwarded to S.H.O. Race Course Road, Lahore. According to the F.I.R., the incident took place at 7-30 p.m. in Hotel International, Lahore. The deceased Sadiq Gunji, Director of Khanae Farhang, Islamic Republic of Iran, came to attend a function arranged in his honour by Afaq Hussain. The deceased Sadiq Gunji arrived in his Mercedes Car CC.29-AL, driven by his driver Mukhtar Shah. The complainant alongwith some Pakistani and Irani friends including Dr. Masoom Abidi, Mujahid Hussain and Qaiser Abbas Bukhari, was present on the stairs of the main gate of the Hotel to receive the deceased. As soon as the deceased and Muhammad Ali Mukarram, got down from the car, 3/4 persons, who were standing in a corner, advanced towards deceased Sadiq Gunji, and one of them who was wearing a green colored jacket, "Shalwar and shirt" and was armed with Kalashnikov, opened fire on the deceased and Muhammad Ali Mukarram. Deceased Sadiq Gunji and Muhammad Ali Mukarram were wounded by the firing and they fell down on the ground, whereupon others accompanying the assailant, also opened fire and they ail escaped from the scene. The firing caused damage to the car of the deceased. One of the assailants, who escaped on a motor cycle, was chased by the complainant alongwith Mujahid Hussain and Qaiser Abbas Bukhari, in Car. No.LHZ 2937. The number of motor cycle was noted as LHU 6310. The motor cycle of the accused was stopped near Mozang Chawrangi where police had put 'Nakabandi'. The accused fell down from the motor cycle and in that process, his kalashnikov went off which injured the face of the accused. The complainant alongwith police, overpowered the accused. The accused disclosed his name as Haq Nawaz son of Sheikh Khalid. He was removed to Services Hospital. Deceased Sadiq Gunji and Muhammad Ali Mukharram were also brought to the Services Hospital. Sadiq Gunji was pronounced dead. The background of this murder was stated to be the statements of a religious group of people who had extended murder threats a few months back to the deceased Sadiq Gunji and Ali Consulate General of Islamic Republic of Iran. The incident was described as a conspiracy on the part of influential of that religious group to strain the relations between Iran and Pakistan. It was prayed that the conspiracy be unraveled and persons involved in it be punished appropriately. The incident was witnessed, according to complainant, apart from him, by Dr. Masoom Abidi, driver Mukhtar Shah, Mujahid Hussain, Qaiser Abbas Bukhari and many Irani and Pakistanis present there.

4. The appellant was arrested the same day from Mozang Chowrangi, where he fell down from his motor cycle during 'Nakabandi' of the police, The remaining accused in the case, except the two absconders and Wasim Aslam, were arrested on 29-12-1990, Wasim Aslam was arrested on 31-12-1990. The judicial confessions of the accused arrested on 29-12-1990 were recorded on 30-12-1990 while the judicial confessions of Wasim Aslam, arrested on 31-12-1990, was recorded on the same day. The identification parade of all the arrested accused, except the appellant, was held on 3-1-1991. All the accused, except Muhammad Hanif, were duly identified in the parade. The police recovered from the appellant at the time of his arrest, one Kalashnikov (P.8), Magazine of Kalashnikov (P.9), handgrenade (P.11), Mauser Pistol (P.12), 3 empties (P.7/1 to P.7/3), from his personal search at the Hospital, a commando Jacket, a prescription chart (P.13), plastic piece (P.14), 8 live bullets (P.15/1 to P.15/18), silver ring (P.16) and a badge (P.17). The police also recovered from the place of incident blood-stained earth, 9 crime empties of Kalashnikov (P.34/1 to 34/9), motor cycle, driving licence, identity card of Muhammad Shafiq, Mercedes Car, pieces of wrist watch, broken pieces of glass, two empties of 7.62 MM (P.23/1 to 2), bullet lead (P.21), Bullet head (P.22), 12 pieces of Bomb (P.23), pieces of handgrenade (P.24). From accused Muhammad Hanif police recovered r cycle and posters and literature of Anjaman Sapah-e-Sahaba. From accused Wasim Aslam, police recovered 2 pistols, 3 maganzines and a motor cycle. Besides the above recoveries, the police also took into possession a damaged taxi car (P.2).

5. All the accused were put on trial before STA Court, Lahore. The trial Court by judgment, dated 13-3-1991, convicted the appellant under section 302, P.P.C. and awarded death penalty. He was also convicted under section 3 of the Explosive Substances Act and was awarded death penalty and under section 5-A forfeiture of his entire property was also ordered. Under section 120-B,. P.P.C. the appellant was awarded 7 years' R.I. The trial Court convicted the acquitted accused and the absconders in the case under section 302 read with 120-B, P.P.C. and awarded them life imprisonment with fine of Rs.20,000 each and in default of payment of fine to suffer 6 months' R.I. On appeal, the High Court maintained the conviction and sentence of the appellant awarded by the trial Court but allowed the appeals of acquitted accused giving them the benefit of doubt and acquitted them in the case. Against the judgment of the Lahore High Court, dated 12-3-1991, both the appellant and the respondent have fit; petitions for leave to appeal before this Court. The appellant has challenged his conviction and sentence by the two Courts below while respondent has challenged the acquittal of acquitted accused in the case by the High Court. Leave was granted in both petitions as follows:-- .

6. "3. The learned counsel for the petitioner. Haq Nawaz, inter alia, contends that inconsistent improvements had been made during the trial and that the eye-witnesses were not independent and were connected with a particular sect. It is also contended that the alleged incident occurred in a hotel yet none from the hotel was examined. In the circumstances the testimony of the interested eye-witnesses without independent corroboration could not be relied upon. In the other petition (Cr.P. 175-L of 1999) the contention of the learned Assistant Advocate-General, inter alia, is that Zakiullah had absconded from the jail after filing the appeal and, therefore, it was not proper for the Court to have heard the appeal and acquitted him, that the learned Judges gave undue consideration to the provision of section 7 of the Suppression of Terrorist Activities Act, 1975 and that the said provision is not mandatory and its non-compliance could not have furnished a ground for a judgment on merit in respect of a fugitive from law. It is further contended that the confessional statements were voluntarily recorded and the procedure, therefore, was followed and, as such there was no justification for rejecting the same.

4. We are inclined to grant leave in both these petitions so as to examine the respective contentions of the petitions.

7. We have heard Mr. Asghar Rokari, Advocate Supreme Court for the appellant, Miss Yasmin Saigal for the respondent and Mr. Rasheed Murtaza Qureshi, Advocate Supreme Court for acquitted accused.

8. The prosecution evidence in the case consisted of ocular evidence, recoveries, confessional statements of accused, medical evidence, expert evidence and circumstantial evidence. We will first take up the appellant's appeal.

9. Mr. M. Asghar Rokari, the learned Advocate Supreme Court for the appellant, has assailed the judgment of the High Court on the following grounds:-------

(i) That the omission on the part of the prosecution to examine Muhammad Ali Mukarram, the injured witness in the case, had rendered the prosecution story highly doubtful;

(ii) that similar omission by the prosecution to produce the important eye-witness, namely, Hassan Rizvi who was allegedly accompanying the deceased Sadiq Gunji and Mukhtar Shah, who was driving the car of deceased Sadiq Gunji, further made the case of prosecution doubtful;

(iii) that the High Court having disbelieved the part of the statements of eye-witnesses that they chased the accused in their car, there was no reliable evidence left in the case to sustain the conviction of the appellant;

(iv) that according to the statement of complainant in the F.I.R. as well as before the trial Court, the appellant and the acquitted accused also fired at the deceased while his statement was belied by other evidence in the case and as such the prosecution case could not be said to have been established beyond reasonable doubts;

(v) that the confessional statement of the appellant could not be taken into consideration as the same was recorded after the cognizance in the case was taken by the trial Court;

(vi) that the confessional statement of the appellant otherwise should have been excluded from consideration by the Courts below as it was not possible for the appellant who had suffered such serious injures to have made such a statement;

(vii) that no identification parade of the appellant was held in the case and as such qua the offences alleged in the case, his identity was not at all established, and

(viii) that appellant having not been arrested in the case (F.I.R. No.285 of 1990 of Police Station Race Course, Lahore he could not be convicted for the offences alleged in the said F.I.R.

10. Miss Yasmin Saigal, the learned Assistant Advocate-General, ' supported the judgment of the High Court in so far it maintained the conviction and sentence awarded by the trial Court to the appellant.

11. As earlier pointed out, the prosecution case against the appellant consisted of ocular evidence, confessional statement of the appellant, recoveries and expert evidence:

12. Mr. Rokari, the learned Advocate Supreme Court for the appellant, has assailed the judgment of the High Court on a number of grounds which we have mentioned above. We will first take up his contention that the judicial confession of the appellant could not be, taken into consideration by the Courts below as this confession was recorded after commencement of the trial of the appellant. To support his contention, the learned counsel argued that challan in the case was filed before the trial Court on 5-1-1991 and on the same day, the trial Court directed issuance of summons for production of all the accused in Court on 6-1-1991. According to learned counsel for the appellant, as there is no section in the Code of Criminal Procedure (hereinafter to be referred as 'the Code') which defined commencement of trial, the date on which challan was filed in the Court and the Court ordered issuance of summons to the accused for appearance before the Court, was to be considered as the date of commencement of trial. It is accordingly, contended that as challan in the case was filed before the trial Court on 5-1-1991, this date was to be treated as the date of commencement of the trial of the appellant, and therefore, the confessional statement of the accused could not be recorded in the case after 5-1-1991.

13. The learned Assistant, Advocate-General, on the other hand, contended that mere submission of challan in Court or issuance of summons to the accused for appearance in Court is not the commencement of trial as before commencement of trial certain formalities like, copies of F.I.R., the police report, statements of all witnesses recorded under sections 161 and 164, Cr.P.C., inspection notes recorded by the Investigating Officer (I.O.) on his first visit to the place of occurrence and notes recorded on recoveries etc. are to be supplied to the accused as required by section 265-C of the Code. The learned Assistant Advocate-General accordingly, argued that unless these formalities are completed and the accused is called upon to answer the charge framed in the case, the trial cannot be said to have commenced. The learned Assistant Advocate-General further contended that the appellant never raised this objection either before the trial Court or before the High Court or even in the memo. of appeal before this Court, and as such he is not entitled to raise it for the first time in arguments before the apex Court.

14. The contention of the learned Assistant Advocate-General is not without force. The appellant raised no objection to the validity and admissibility of his confessional statement on the above ground when it was tendered in evidence before the trial Court. Similarly, in his appeal against conviction before the High Court, the appellant did not challenge the validity of his confessional statement on these grounds. Even in his memo. of appeal before this Court, the appellant has failed to challenge the validity of his confessional statement on these grounds. The learned Assistant Advocate General, therefore, is right in contending that the learned counsel for the appellant cannot challenge the validity of the confessional statement of the appellant for the first time in argument before the Supreme Court. We could have repelled the above contentions of the learned counsel for the appellant on the short ground that he failed to raise these objections before the trial Court or before the High Court or even in his memo. of appeal before this Court, but considering the fact that the appellant has been awarded capital punishment, we have examined this contention on merit and find no merit in it.

15. Confessional statement of an accused is recorded under section 164, Cr.P.C., which reads as follows:--

16. "164. Power to record statements and confessions. ---(1) Any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Provincial Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.

17. (1-A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement).

(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confession shall be recorded and signed in the manner provided in section 364, and such statements or confession shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.

(3) A Magistrate shall, before, recording any such confessions explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession he shall make a memorandum at the foot such record to the following effect:--

18. "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and was' read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

19. (Signed) A.B. Magistrate.

20. Explanation.--It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case."

21. In terms of section 164, Cr.P.C. the confession of an accused can be recorded by any Magistrate of the 1st Class or by a Magistrate of the 2nd Class specially empowered in this behalf by the Provincial Government either during investigation of a case carried by the police under Chapter XIV of the code or at any time afterwards but before the commencement of the inquiry or trial by the Court. The question, therefore, which arises for consideration in the case before us is, when the trial of appellant commenced before the Trial Court.

22. Mr. Asghar Ali Rokari, the learned Advocate Supreme Court for the appellant, contended before us that as there is no specific provision in the Code defining commencement of trial, the date on which challan was submitted against the appellant and Court took cognizance by summoning him in the case, is to be considered as the date of commencement of the trial. According to learned counsel for the appellant, the taking of cognizance of case by the Court, is synonymous to the commencement of the trial of the accused. It is, accordingly, contended that as challan in the case against the appellant and the other co-accused was filed before the trial Court on 5-1-1991 and the Court issued summons to them for appearance on 6-1-1991, the trial of appellant commenced either on 5-1-1991 or 6-1-1991 and therefore, the confession of appellant recorded on 19-1-1991 was invalid and could not be looked into by the Court.

23. The contention of Mr. Rokari does not appear to be correct. Section 190 of the Code defines, as to how cognizance is taken by the Court. It reads as follows:--

24. "190 Cognizance of offence by Magistrate.--- (1) Except as hereinafter provided any Judicial Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of High Court may take cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

(2) The Provincial Government may empower any Judicial Magistrate' to take cognizance under subsection (1); clause (a) or clause (b) of offence for which he may try or send to the Court of Session for trial;

25. Provided that in the case of a Judicial Magistrate the Provincial Government shall exercise this power on the recommendation of the High Court.

(3) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial. "

26. Section 192 provides that the District Magistrate or the Sub-District Magistrate after taking cognizance of a case may transfer it to any Magistrate subordinate to it for enquiry or trial. Section 200 provides that after taking cognizance of offence on a complaint in. writing, the Magistrate shall at once examine the complainant on oath. Section 202 provides that the Court on receipt of a complaint of the offence which he is authorised to take cognizance or which has been sent to it under section 190(3) or under section 191 or 192, Cr.P.C., may postpone the issue of process to the person complained against and either itself enquire into the case or direct an enquiry or investigation to be made by a police officer or by such other person as it thinks fit, for the purpose of ascertaining the truth of falsehood of the complaint. Section 203 provides that the Court to which complaint is made or to whom it has been transferred or sent, may dismiss the same after considering the statement on oath (if any) of the complainant and the result of the investigation or enquiry, if any under section 202, if it is of the opinion that no sufficient ground exists for proceedings in the case. Sections 221 to 224 of the Code prescribe the form and contents of a charge. Section 227 authorises the Court to alter the charge in the case at any stage of the case before pronouncement of the judgment. Section 228 provides that if the charge framed or the addition or alterations made it: the charge under section 227 is not such that the immediate commencement of trial would in its opinion likely to prejudice the accused or the prosecutor in the conduct of the case, may proceed with the trial immediately. Section 241-A (i) of Chapter XX of the Code which deals with the trial of cases by Magistrates provides that in all cases instituted on police report except those which are to be tried summarily or punished with fine or imprisonment not exceeding six months, copies of statements of all witnesses recorded under sections 161 and 164 and of the inspection note recorded by the investigating officer on his first visit to the place of occurrence, shall be supplied free of cost to the accused not less than 7 days before the commencement of trial. The procedure for trial of cases prescribed under Chapter XX of the Code, is also applicable, by virtue of section 262, Cr.P.C., to the summary trial under Chapter XXII. The provisions contained in Chapter XXII-A of the Code deal with the trial of cases before High Courts and the Courts of Sessions. Section 265-C (1) in Chapter XXII-A which is similar to section 241-A of Chapter XX, provides that in all cases instituted upon police report, 7 days before the commencement of the trial of the accused, copies of the F.I.R., police report, statement of all witnesses recorded under sections 161 and 164, Cr.P.C: and inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, will be supplied to the accused free of cost. Similarly, subsection (2) of section 265-C, provides that in cases instituted upon a complaint in writing, the complainant shall supply to the accused at least 7 days before the commencement of trial, copies of the complainant and other documents filed with the complaint and statements recorded under section 200 or 202, Cr.P.C, free of costs.

27. From a review of the above provisions of the Code, it is quite clear I to us that taking of cognizance of a case by a Court is not synonymous with the commencement of the trial in a case. Taking of cognizance of a case by the Court is the first step, which may or may not culminate into the trial of the accused. The trial in a criminal case, therefore, does not commence with the taking of the cognizance of the case by the Court. A careful examination of the above provisions in the Code makes it clear that until charge is framed and copies of the material (Statement of witnesses recorded under sections 161 and 164, Cr.P.C., inspection note of the first visit to the place of occurrence and recoveries recorded by investigating officer, if the case is initiated' on, police report, and copies of complaint, other documents filed with complaint and statements recorded under section 200 or 202 if it is a case upon complaint in writing) are supplied to accused free of charge and he is called upon to answer the charge. In the case before us, the challan was filed before the Court on 5-1-1991 and the accused were also summoned to appear before the Court on 6-1-1991, which may amount to taking of the cognizance of the case by the Court. However, in view of the provisions of the Code referred to above, these steps could not amount to commencement of the trial of the appellant.

28. According to the order sheet of the case recorded from 6-1-1991 onwards, it appears that the appellant was not produced in Court on 6-1-1991 when the accused were summoned in the case by trial Court as he was reported to be admitted in the hospital. On 7-1-1991 the counsel for the appellant filed application before the trial Court complaining that he was not allowed to meet his client and sought permission to meet his client in the General Hospital to seek instructions. On the application of the counsel of the appellant, the trial Court asked for the report of M.O. regarding condition of the appellant. In response to the order of the Court, Dr. Muhammad Moazzam, Registrar, Ward No.15 and Dr. Jafar Ali, M.O., General Hospital appeared before the Court on 8-1-1991 and stated that although the appellant was improving but be was still not fit to make statement. The Special Public Prosecutor then suggested to the Court to summon Dr. Bashir Ahmed Neuro Surgeon for his opinion regarding condition of the appellant to which counsel for the appellants agreed and accordingly, Dr. Bashir Ahmed was summoned, who appeared before the Court on 9-1-1991 and stated that the appellant can understand things now but he is unable to speak properly. He further stated, after about 3 days he will be in a position to speak properly. On 12-1-1991 Dr. Bashir Ahmed, Neuro Surgeon, General Hospital, Principal, K.E.M.C., again appeared before the Court and stated that the appellant has improved a lot and is in a position to give instruction to his counsel. The Court, accordingly, allowed the counsel for the appellant to meet him in the hospital and seek instructions. Mr. Abdul Baqi, Advocate, after meeting the appellant in the hospital, filed his Power of Attorney to represent the appellant in the case, on 13-1-1991. On 16-1-1991 Copies of F.I.R., dated 19-12-1990 and Roznamcha were supplied to defence counsel. An application filed by one of the defence counsel for certified copies of challan and all other documents attached with the challan was fixed for hearing on 19-1-1991. On 19-1-1991 the application of defence counsel for copies of challan and other documents was accepted. The Court was informed that statement of the appellant was recorded and supplementary challan against the appellant will be filed within next two days. The case was then adjourned to 21-1-1991 for giving copies of statement under section 161, Cr.P.C. and first inspection notes to the accused. The copies of 161, Cr.P.C. statements and inspection notes were supplied to the accused present in the case on 21-1-1991 as well as to the counsel for the appellant. The counsel for the appellant, however, moved application for supply of copies of the statement other than 161, Cr.P.C. statement recorded during investigation which was opposed by the Special Public Prosecutor. The counsel for the appellant then asked for inspection of the report under section 173, Cr.P.C. which was directed to be produced on the next date, i.e. 22-1-1991. On 22-1-1991 complete copies of statement under section 161/164, Cr.P.C. alongwith First Information Report were supplied to the accused and after inspection of 174, Cr.P.C. report, the advocate for the appellant did not press his application filed on 21-1-1991. The case was then adjourned to 30-1-1991 for framing of charge. However, charge could not be framed against the appellant on 30-1-1991, 3-2-1991 and 4-2-1991 as he could not be produced in Court because of his unstable condition. The appellant was produced in Court on 7-2-1991 in police custody when charge was framed against him to which he pleaded not guilty.

29. From the above facts stated in the order sheets, it is quite clear that the trial of the appellant commenced on 7-2-1991 when he was produced before the Court to answer the charge in the case. We, therefore, find no substance in the contention of learned counsel for the appellant that his confession could not be validly recorded on 19-1-1991 as the trial had commenced on 5-1-1991.

30. The learned counsel for the appellant also contended that the confession of the appellant otherwise should not have been accepted by the Courts as it was not possible for a person who had suffered such serious injuries 'on face and mouth to have made such a lengthy statement. The contention of the learned counsel is speculative in nature. No doubt the appellant had suffered serious injury on his mouth and face and was unable to speak when he was brought to the hospital in the injured condition. However, from the orders passed by the Court' between 5-1-1991 to 7-2-1991 which we have reproduced above it is quite clear that the appellant improved slowly and he gave instructions to his advocate who visited him in the hospital on 13-1-1991. Similarly, he was produced in the Court on 7-2-1991 to answer 'the charge to which he pleaded not guilty. Dr. Ayaz Mehmood (P.W.27) R.M.O., General .Hospital, Ward 15, in his statement on oath before the trial Court categorically stated that Habibullah Goraya, Magistrate came alongwith Sakhawat Ali, Inspector at 3-30 p.m. in the hospital to record the statement of the appellant. He duly entered their arrived in a register. On enquiry from the Magistrate, he declared the appellant fit to make statement and identified him to the Magistrate. He produced the duty register to prove his presence at the time of arrival of the Magistrate and the Police Inspector and the register where entries about the arrival of Magistrate and police officer were made, in his evidence. In cross-examination, he admitted that when he declared the appellant fit he could speak with some difficulty. He also stated in cross-examination that statement of the appellant was not recorded in his presence. To a suggestion that the police and the Magistrate had come with a prepared statement of the appellant on which they obtained his thumb-impression and left, he stated he could not say about it as he was not present at the time of recording of the statement of the appellant.

31. Habibuliah Goraya, Magistrate in his statement on oath before the Court, testified that he recorded the confessional statement of the appellant after completing all legal formalities. In view of the categorical statement of the doctor that at the time, the statement of the appellant was recorded by the Magistrate in the hospital, ' he was fit to record his statement which is supported by the evidence of Magistrate who recorded the statement, we are unable to accept the contention of the learned counsel for the appellant that because of his injured condition, the appellant could not have made his confessional statement before the Magistrate.

32. The learned counsel for the appellant next contended that prosecution case was rendered highly doubtful on account of omission by the prosecution to examine the injured witness Muhammad Ali Mukaram, Hassan Rizvi who was sitting in the car with deceased Sadiq Gunji and Mukhtar Shah, the driver of the scar of the deceased Sadiq Gunji. The argument has not impressed us at all. The prosecution is not bound to examine all the witnesses cited in the F.I.A. or calendar of witnesses. The prosecution has the right to examine only those witnesses in a case which it considers best and relevant to its case. On 17-3-1991, the prosecutor filed the following statement before the trial Court giving up some of the prosecution witnesses in the case:--

33. "Statement of Kh. Sultan Ahmad,

34. Chief Prosecutor.

35. "I give up Musaddiq Hussain, S.I., who has, died, Muhammad Ali Makarram P.W. who was returned to Iran and is not available, Dr. Masoom Abidi, Yawar Hussain, Mukhtar Shah, Muhammad Sharif, HC, Muhammad Shafi. Constable, Soba Khan A.S.I., Muhammad Rashid DI, Akbar Ali Shah S.I. and Inspector Sakhawat Ali P.Ws. as unnecessary. I also give up Allah Ditta P.W. as having been won over by the accused persons.

36. The witnesses now to be examined are Majeed Shahshanipur, Ramzan Ali Shah, Dr. Ayaz Mehmood, Munir Hussain Sherazi and Ch. Shafqaat Ahmad D.S.P."

37. There is nothing wrong in the above statement of the prosecutor. The learned counsel for the appellant is unable to cite any rule of law or any precedence in support of his contention that on account of omission by the prosecution to examine all the witnesses mentioned in the calendar of witnesses, the prosecution case should have been thrown out. The prosecution-in support of its case examined besides the complainant (P.W. 26) two other eye7witnesses Syed Mujahid Hussain (P.W.20) and Qaiser Abbas Bukhari (P.W.21) who were named in the F.I.R. It is the quality of evidence and not the quantity which is relevant for proving the case by the prosecution. The learned counsel for the appellant is unable to demonstrate that omission by the prosecution to examine the other witnesses mentioned as eye-witnesses of the incident in the F.I.R. or in the calendar of witnesses, had the effect of causing any prejudice to the defence. In any case, the defence was free to summon and examine those witnesses which were mentioned in the F.I.R. or the calendar of witnesses by the prosecution and not produced in the case, as defence witnesses, if it considered them helpful or necessary for its case. The learned counsel for the appellant relied on the case of Haroon v. State (1995 SCMR 1627), in support of his contention that omission by the prosecution to examine the injured witness (Muhammad Ali Mukarram) and other two eye-witnesses (Mukhtar Shah, driver of car and Hassan Rizvi, who was accompanying the deceased Sadiq Gunji) made the prosecution case against the appellant doubtful and therefore, he was entitled to acquittal in the case. The case cited by the learned counsel is distinguishable on facts and is of any assistance in the facts and circumstances of the present case.

38. In Haroon v. State the prosecution had named amongst others, three eye-witnesses including an injured witness. However, at the trial none of the three eye-witnesses was examined by the prosecution. One of the witnesses examined in the case was not only found to be closely related to the deceased but was also found' inimical and hostile to the accused. The other witness examined in the case by the prosecution though was found to be an independent witness but his evidence was rejected as he falsely involved the two co-accused in the case. It was in this context that this Court made the following observations which are relied by the learned counsel for the appellant:--

39. "9. On a careful examination of evidence and circumstances of the case made in the light of the arguments addressed by the learned counsel for the parties, we find that according to the F.I.R., three persons namely, Muhammad Yousuf, Naeem and Muhammad Saleem had seen the occurrence of them Muhammad Yousaf sustained injuries during the occurrence. Strangely enough, none of them has been produced by the prosecution. Muhammad Zafarullah Khan P.W. 9 is the real brother of Abaidullah deceased. Learned trial Court found 'in this case Zafarullah P.W: is not only a relative of the deceased but also inimical and hostile towards the accused for the reason that the parties were having previous litigations with each other. In his statement before the Court, Muhammad Zafarullah P.W. admitted that about ten years before the present occurrence, a case was registered against Abdul Jabbar accused in which he and his brother Shujaullah were witnesses against him. So, enmity of Muhammad Zafarullah with the appellant is a proved fact. No doubt, Muhammad Hussain Javed P.W. 8 is an independent witness having no motive whatsoever to involve the appellant falsely in the case, but he has not been believed to the extent of the two acquitted accused, particularly Muhammad Ilyas to whom he had attributed effective role of firing shot at Muhammad Rafiq deceased. The High Court was of the view that the eye-witnesses had thrown the net wide enough to involve all the members of the accused family and that Abdul Jabbar and Muhammad Ilyas were involved in the case because they were real brothers of Haroon. This will show that Muhatnmad Hussain Javed although an independent witness had shown reckless disregard for the truth by falsely involving the two co-accused in the case. Mere fact that a witness is neither related to the complainant nor inimical towards the accused does, not stamp his testimony necessarily with truth. Acid test of the veracity of a witness is inherent merit of his own statement. Since the facts of the two cases seldom coincide, therefore, no hard and fast rule for the appreciation of evidence can be laid down. The general rule however, is that the statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought."

40. In the case before us, the prosecution examined the complainant (P.W.26), Syed Mujahid Hussain (P.W.20) and Qaiser Abbas Bukhari (P.W.21) all of whom were mentioned in the F.I.R., as the eye-witness of the incident. In these circumstances, non-production of injured witness in the case or other eye-witnesses mentioned in the F.I.R. was of no consequence as the prosecution was not bound to examine all the witnesses mentioned in F.I.R. or calendar of witnesses in the case. As earlier pointed out by us, it is the quality of the evidence and not quantity of evidence which had the bearing on the fate of the case. We, therefore, find no merit in the contention of the learned counsel for the appellant that non-examination of Muhammad Ali Mukarram' (the injured witness), and Hassan Rizvi (who was accompanying the deceased Sadiq Gunji and Mukhtar Shah (the driver of the car of the deceased Sadiq Gunji) knocked the bottom out of the prosecution's case.

41. The next contention of Mr. Rokri, the learned counsel for the appellant is, that no identification parade of the appellant was held in the case and as such a the offences alleged in the case, and his identity was never established. The contention is equally devoid` of any force. The appellant was apprehended within minutes of the incident and his name was clearly mentioned in the F.I.R., which was lodged within 45 minutes of the incident. According to the F.I.R., the complainant alongwith police had overpowered the appellant when he fell down from his motorcycle. The appellant then disclosed his name as Haq Nawaz son of Sheikh Khalid. In his statement on oath before the Court, the complainant stated that he identified the appellant to the police as the person who had fired on deceased Sadiq Gunji in the International Hotel when he fell down from his motorcycle. He further stated that the name of the appellant was disclosed by a police officer in the hospital where the appellant was brought in injured condition, at the time when he was dictating the contents of F.I.R. No doubt there appears to be discrepancy between the statement made in the F.I.R. and the statement of complainant before the Court in so far the source of information about the name of the appellant was concerned, According to F.I.R. the appellant had himself disclosed his name when he fell from the motorcycle and was overpowered by the police and the complainant while according to the statement of complainant before the Court he came to know the name of the appellant from a police officer, when the appellant was brought in injured condition in the hospital at the time when the complainant was dictating the contents of the F.I.R. However, this discrepancy in the F.I.R. and the statement of complainant before the Court did not justify holding of any identification parade of the appellant as the fact remained that the name of the appellant clearly transpired in the F.I.R., which was lodged within 45 minutes of the incident and the complainant made a positive assertion both in the F.I.R. and in his statement before the Court that he had identified the appellant as the person who had fired at deceased Sadiq Gunji. In these circumstances, in our view, the absence of identification parade of the appellant was of no consequence.

42. It is next contended by the learned counsel for the appellant that the appellant was never arrested in the F.I.R./case lodged by the complainant and as such his conviction in that case was wholly illegal. We find no substance in the submission of the learned counsel. The appellant never raised any such argument before the trial Court or the High Court. In the challan submitted before the trial Court, the appellant was shown arrested in the case. The appellant was produced before the trial Court at the time of framing of the charge as one of the accused arrested in the case. The charge framed in the case by the trial Court clearly mentions the appellant as the person who murdered Sadiq Gunji on 19-12-1990 at 7-30 p.m. by firing with his Kalashanikov outside Hotel International, Lahore. In these circumstances, we fail to understand how the appellant can now raise the plea that he was never arrested in the case relating to the murder of Sadiq Gunji.

43. The next contention of the learned counsel for the appellant is that the evidence on record failed to satisfy the test of proving the case against the appellant beyond reasonable doubts. It is argued that the confessional statement of the appellant was retracted. The High Court did not believe the part of the statement of eye-witnesses that they chased the appellant in their car. The recoveries and other circumstantial evidence in the case, in the submission of the learned counsel for the appellant, were equally unreliable and should not have been relied upon. In these circumstances; it is contended by the learned counsel for the appellant that the conviction of appellant was against the principle of safe administration of justice laid down by this Court in large number of cases. The following cases were cited at the bar during the course of hearing of the above appeals:--

(1) Haroon alias Harooni v. The State (1995 SCMR 1627);

(2) Riaz Masih alias Mithoo v. The State (1995 SCMR 1730);

(3) Muhammad Pervaiz v. The State (1993 SCMR 2185);

(4) Ch. Muhammad Yaqoob v. The State (1992 SCMR 1983);

(5) Fazal Mahmood alias Pappu v. The State (1999 SCMR 2040);

(6) Khan Muhammad v. The State (1999 SCMR 1818);

(7) Mst. Naseem Akhtar v. The State (1999 SCMR 1744);

(8) Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53);

44. (9)Alam Din v. The State (PLD 1973 Lahore 304);

(10) Muhammad Arif v. The State (1970 SCMR 178);

(11) Falak Sher v. The State (PLD 1967 SC 425);

(12) Muhammad Shafi v. The State (PLD 1968 Lahore 869);

(13) Brig. (Retd.) F.B. Ali v. The State (PLD 1975 SC 506);

(14) Hayat Bakhsh v. The State (PLD 1981 SC 265);

(15) Chan Shah v. The Crown (PLD 1956 FC 43);,

(16) Rahim Bux v. Abdul Subhan (1995 SCMR 99).

45. The prosecution case against the appellant rests on retracted confession of the appellant, ocular evidence, recoveries and other circumstantial evidence. The appellant was arrested by the police few minutes after the incident in injured condition, on 19-2-1990. From the evidence in the case, it is quite clear that though arrested by the police on the date of incident his physical custody was not handed over to the police and throughout the - proceedings of the trial he remained admitted in the hospital. The evidence further shows that only person allowed to see him before recording his confessions was his advocate, who visited him in the hospital on 13-1-1991. The confessional statement of the appellant was recorded on 19-1-1991 by the Magistrate after he was certified by the doctor fit for recording his statement. There is nothing in the evidence to show that the appellant was subjected to any torture or coercion by the police before recording of his confession. On the contrary, the evidence shows that even appellant's advocate was not allowed to see him before 13-1-1991. The evidence of the Magistrate, who recorded the statement of appellant, shows that the appellant was in a fit condition to make the statement when his confession was recorded and that he completed the necessary legal formalities before recording his statement. The evidence also shows that even after recording his confession, the appellant remained admitted in the hospital and was produced from there before the Court to answer the charge on 7-2-1991 and was again sent back to hospital. Mere fact that the appellant retracted his confession at the trial, in the circumstances, could not lead to the conclusion that the confession was involuntary. It is a settled law that the conviction of an accused can be based even on a retraced confession, if the Court is satisfied that the confession was made voluntarily. However, as a rule of caution and prudence, the Court looks for other evidence and material on record of the case to seek corroboration of the retracted confession, before convicting the accused (Muhammad Gul v. The State 1991 SCMR 942). It is also well settled that the retracted confession can also be used as a corroborative piece of evidence for proving prosecution theory (Muhammad Akram v. The State 1995 SCMR 1359). The following broad principles were laid down by this Court in the case of Ch. Muhammad Yaqoob v. The State (1992 SCMR 1983) to evaluate the evidentiary value of a confessional statement:-----

46. "19. From the above-cited cases, inter alia, the following principles of law are deducible:--

(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession. ,

(ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession.

(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.

(iv) That though the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.

(v) That the confession of a co-accused is an evidence of a weak character.

(vi) That under Islamic Jurisprudence, in order to make a confession reliable, it should be voluntarily made and not on account of any coercion, duress or violence.

(vii) That any delay in recording of a confession may or may not be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others (supra), this Court has held that the factum that the accused were in the police custody for 11 to 15 days; was not fatal as to the credibility of the retracted confessions for the reasons that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily.

(viii) That any lapse on the administrative side on the part of a Magistrate' recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.

(ix) That if an accomplice's evidence is not corroborated in material respect it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.

20. The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession would not warrant disregarding of the same."

47. Judges in the light of the above-stated legal position, we are of the view that the confessional statement of the appellant could not be ruled out of consideration by the Courts below. Having said this much about the confessional statement of the appellant, we now proceed to examine whether the confessional statement of the appellant found corroboration from other pieces of evidence and material on record of the case. The appellant in his confessional statement admitted his participation in the offence. His statement was substantially corroborated by the evidence of eye-witnesses, recoveries, expert evidence and motive. The learned Judges of the Division Bench while critically examining the confessional statement of the appellant, observed as follows:--

48. "While appearing as P.W.1, the learned Magistrate stated that the accused had himself informed him that right from the date of occurrence he was in the hospital and never stayed with the police. It appears that in view of this information, the learned Magistrate did not feel it necessary .to question him as to whether he had remained in police custody. The learned Magistrate put the following 4 questions to Haq Nawaz, appellant before recording his statement:-------

49. "(1) Do you know that you are not bound to have your statement recorded under section 164 of the Cr.P.C.?

(2) Do you know that at this time you are present before the Magistrate 1st Class?

(3) Are you making the statement of your own free will?

(4) Why do you want to make a statement under section 164 of the Cr.P.C.?

50. The learned Magistrate stated in the Court that first of all he made it clear to the accused that it was not necessary for him to get his statement recorded and asked him whether he was making the statement with his free will and without any coercion or pressure. He told the accused to have some time for thinking about the matter but he replied that there was no such need as he was going to make the statement freely Thereafter, the learned Magistrate recorded statement (Exh.P.C./3) of Haq Nawaz, appellant in his words. The appellant initially admitted that he as well as his friend Javed (absconder) belonged to Anjuman-i-Sipah-i-Sahaba; that he as well as Zakiullah, appellant used to meet Maulana Zia-ur-Rehman Farooqi, Ashfaq Secretary and Maulana Esarul Qasimi, and that they had made a conspiracy to kill Aqa-i-Sadiq Gunji. He did not initially implicate Muhammad Arif, Waseem Aslam, Muhammad Hussaia and Muhammad Hanif in the alleged conspiracy to kill the deceased. However, in the later part of his statement he said that he met Riaz Basra, Zakiullah, Javed, Arif, Waseem Aslam, Muhammad Hussain alias Kaka and Mahmood in the office of Anjuman-i-Sipah-i-Sahaba situated at 111-Lyton Road and that they prepared the practical plan to kill Aqa-i-Sadiq Gunji deceased. In the alleged plan of killing the deceased, Muhammad Hanif, appellant was not named. He included one Mahmood in the conspiracy though he was not an accused to the present case. He also stated that he and Muhammad Hussain sat on one motorbike while Waseem Aslam and Zakiullah on another. Arif and Javed, absconders were on the 3rd Motorbike. According to him Riaz. Basra and Muhammad Hanif, appellants did not even go to Hotel International on the fateful evening. As mentioned above. Haq Nawaz had stated that he and Zakiullah used to meet Maulana Zia ur-Rehman Farooqi, Ashfaq Secretary and Maulana Esarul Qasimi and added.

51. Though in the later part he stated that after getting the invitation card for attending the reception being arranged in honour of Aqa-i-Sadiq Gunji, deceased he met Riaz Basra, Zakiulllah, Javed, Arif, Waseem Aslam. Muhammad Hussain alias Kaka and Mahmood in the office of Anjuman-I Sipah-i-Sahaba and then added:

52. His statement to the extent of preparation of the plan will bind himself. So far as other appellants and the absconding convicts are concerned, they cannot be held guilty of conspiracy unless same is supported either by their own confessional statements or any other independent evidence. It is also significant to mention that as per the statement of Haq Nawaz after reaching the hotel, he went inside the compound while his remaining companions stayed outside. His statement in this respect is consistent with that of Tariq Maqsood (P. W.18) who also pointed out that the other accused had stayed outside the hotel, and that he had seen one person inside the hotel firing at the deceased. At the trial, Haq Nawaz, appellant retracted his confession by giving the following answer to question No.29.--

53. '....It is incorrect. A police officer and a person in plain clothes had once visited the ward where I was admitted and obtained any signature and thumb-impression. I did not make any confessional statement It is a sheer fabrication.'

54. However, his statement is corroborated by` the recoveries of the empties from the compound of the Hotel International and Chowk Qartaba, recovery of Kalashnikov (P.8), recovery of hand-grenade, the technical report of the expert (Exh.PVV) and medical evidence. The throwing of hand-grenade is established by the physical circumstances obtaining at the site, the recovery of pieces of grenade and damage caused to the taxi of Tariq Maqsood (P.W.18) and the ' opinion of the Firearms Expert that the hand-grenade recovered from the appellant was the Russian-made GRD-5 anti-personnel hand-grenade and that the 13 metallic pieces found from the place of occurrence were also of GRD-5 hand-grenade. All these facts and circumstances leave no manner of doubt that Haq Nawaz appellant had deliberately murdered Aqa-i-Sadiq Gunji, deceased to take revenge of murder of Haq Nawaz Jhangvi, a renowned religious leader who was vocal against the Shia community. "

55. The above examination of the evidence by the learned Judges of the Division Bench of Lahore High Court does not suffer from any infirmity. On the contrary, it shows full application of mind and indepth analysis and consideration of the evidence on record produced against the appellant. The learned counsel for the appellant has, however, very vehemently contended that no reliance can be placed on the statement of the eye-witnesses by the Courts below as a part of the statements of these eye-witnesses relating to the presence of co-accused inside the hotel as well as chasing of the appellant by them after the incident, was not believed by the Court. We have gone through the evidence of the eye-witnesses in the case with the assistance of the learned counsel for the appellant and the State Counsel and are of the view that no doubt the Court has not placed reliance on the part of the evidence of the eye-witnesses which related to the presence of the co-accused inside the hotel premises at the time of firing at Sadiq Gunji as well as the statements of these witnesses in relation to their chasing the appellant after he had escaped from the hotel in their car but this fact alone could not render their evidence unreliable. In the case of Muhammad Pervaiz v. State (1993 SCMR 2185) this Court held that if the Court acquits some of the accused in a case on the same evidence, it does not necessarily mean that the said evidence cannot be relied upon for conviction of other accused in the case. The following observations were made to the case at page 2187:--

56. "We have gone through the entire evidence in the case and are of the view that no case for interference is made out. It is true that on the same ocular evidence the trial Court acquitted the co-accused Muhammad Nawaz in the case but this does not mean that the ocular evidence was found to be false and as such it could not be relied upon for sustaining the conviction and sentence of appellant in the case. Whether there are more than one accused persons1n a criminal case, the Court in order to ensure the safe administration of justice undertakes the process of sifting of evidence in order to eliminate the possibility of involvement of innocent persons in the case by the complainant side. In this- process, if the Court extends the benefit o doubt to some of the accused persons in the case is only with a view to enforce the principles of safe administration of justice in criminal cases and it is not correct to say that in such a case the Court by implication holds the ocular evidence in the case as false. No such implication about-falsity of ocular evidence in the case, therefore, arises if some of the accused persons are let off by the Court giving them the benefit of doubt. In the present case the trial Court while acquitting the co-accused Muhammad Nawaz observed as follows;----

57. "

18. From the facts stated above, it is clear that the prosecution has not been able to prove the case against accused Muhammad Nawaz. As such he is given benefit of doubt and is acquitted. He is presently on bail and his bail bond stands discharged."

58. The above observations cannot be interpreted as meaning that the ocular evidence in the case was held to be false. We are, therefore, of the view that the ocular evidence in the case, if it was found consistent and confidence inspiring against the other co-accused (appellant), could validly form the basis of conviction of the appellant. Both, the trial Court as well as the High Court found that the ocular evidence in the case inspired confidence."

59. Similarly, in the case of Ch. Muhammad Yaqoob v. The State (1992 SCMR 1983) this Court while considering the effect of contradiction and improvement in the statement of prosecution witnesses, made the following observations:--

60. "The Court is to sift grain from chaff and, therefore, any contradiction or improvement or any other factor which may adversely reflect on the credibility of a witness, would not be by itself sufficient to reject the testimony as a whole of such a witness. The Court can rely upon a portion of the testimony of such a witness, if it is corroborated by other reliable evidence or circumstances. "

61. The Courts below rightly came to the conclusion that the retracted confession of the appellant found substantial corroboration not only from ocular testimony in the case but also from the recoveries of the crime weapon and the empties which were recovered from the original site where the murder of Sadiq Gunji took place and from the place where the appellant was arrested in injured condition. It is significant that the empties recovered from two different places namely, the place where Sadiq Gunji was murdered by the appellant and the place from where the appellant was arrested in injured condition after he fell down from his motorcycle while escaping from the scene of offence, matched with the kalashnikov recovered from his possession. We are, therefore, of the view that there was ample evidence on record to show that the prosecution succeeded in proving the cash against the appellant beyond reasonable doubts and no exception can be taken to his conviction by the Court below: We therefore, see no reason to interfere with the judgment of the High Court maintaining conviction and sentence of the appellant.

62. We now take up Criminal Appeal No. 176 of 1999 filed by the State challenging the acquittal of the respondents. The learned State Counsel very vehemently contended that the acquittal of the respondents in the above case was on wrong premises as sufficient evidence was led by the prosecution to sustain their conviction. The learned State Counsel also very vehemently contended that in so far respondent Zakiullah is concerned, he was fugitive from law and therefore, his appeal should have been dismissed by the High Court at the hearing. Before considering the contention of the learned State Counsel on merits, we would like to dispose of the contention that the case of appellant Zakiullah could not be decided by the High Court as he was fugitive from law. This argument was fully considered by the learned Judges of the High, Court but repelled. The learned State Counsel does not dispute that the time the appeal was filed before the High Court, he was in prison. It is subsequent to the filing of the appeal that the was stated to have absconded from the jail custody. In our view, in such a circumstance, it was discretionary with the High Court either to defer consideration of the appeal of Zakiullah or to hear the same and decide on merits. Since Zakiullah was not absconder and fugitive from law at the time he lodged his appeal and his subsequent act of absconding from jail was an independent act punishable under the law separately, no exception could be taken if the High Court, in such circumstances, decided to deal with his case on merits. We therefore, find no substance in the contention of the learned State Counsel that the case of appellant Zakiullah could not be heard on merits.

63. In so far the contention on merits in this appeal is concerned, the prosecution case against the respondents mainly rested on their confessional statements and the identification parade held in the above appeal was kept out of consideration by the learned Judge of the Division Bench for the reasons which are stated in the impugned judgment, as follows:

64. "36. Now the question arises whether the learned Magistrate really had 'reason to believe' that the accused persons were making the statements voluntarily and whether the error in recording the statement on solemn affirmation amounted to an illegality vitiating the same. As mentioned above, it is specifically laid down under subsection (3) of section 164 of Cr.P.C. 'A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession...'. this note of caution is meant to make the accused conscious that there is no obligation to him to make confession. In the present case, contrary to the express provisions of section 164(3) of the Criminal Procedure Code, Zakiullah, Muhammad Arif, Muhammad Hanif and Muhammad Hussain alias Kaka, appellants were never cautioned that they were not bound to make confessional statements. They were not questioned for how long they had remained in police custody and that after their statements they would not be remanded to police and would be sent to judicial lock-up. The omission to put these questions may or may not cause prejudice to an accused in the peculiar facts and circumstances of a case. In the present case this omission appears to have caused prejudice to the accused and in our considered opinion, vitiated their statements. The police had formally arrested Zakiullah, Muhammad Arif, Muhammad Hussain and Muhammad Hanif, appellants on 29-12-1990. However, the defence was able to establish that first of all Muhammad Hanif appellant was arrested by the police on 19-12-1990 and after about two days Zakiullah, Muhammad Arif, Muhammad Hussain were also with the police.' In this connection we may refer to the statement of Muhammad Shafique (P.W.17). He stated that from 19-12-1990 to 29-12-1990, the police had been calling him off and on in connection with the investigation of the case. He admitted,' It is correct that on the night of 19-12-1990, I was taken along by the police and Muhammad Hanif was arrested from Madrassa situated in Model Town ...It is correct that two days after the alleged occurrence, I saw Zakiullah and Muhammad Hussain, in police custody at Police Statioh Jchhra. It is correct that I also saw another boy in the custody whose name was Arif'.

65. Shafqat Ahmed, D.S.P. (P.W.30) also admitted, 'It is correct that from 20-12-1990 to 29-12-1990, only Hanif was made to join the investigation of the case.' He further stated that there was some incriminating material against Hanif but he did not arrest him due to some expediency. He denied the suggestion that from 23-12-1990 till 29-12-1990 all the accused were kept in illegal custody and subjected to physical torture. Had the learned Magistrate questioned the abovenamed 4 appellants, regarding their apprehension by police and specifically told them that they would not be remanded back to the police custody- they might have come out with certain facts, regarding their illegal confinement or police - pressure in view whereof the Magistrate might not have recorded their confessional statements. The omission to put the said questions has caused prejudice to the said appellants and also deprived the Magistrate of the material for reaching a reasonable conclusion whether they were making confessions voluntarily or following the dictates of the investigating agency to avoid some serious consequences.

66. The appellants' learned counsel also urged that the statements of Zakiullah, Arif, -Muhammad Hussain and Hanif, were illegally recorded on solemn affirmation in violation of the provisions of section 5 of the Oaths Act, 1873. He referred to the following part of section 5:--

67. ' ....Nothing herein contained shall render it lawful to administer in a criminal proceedings, on oath or affirmation to the accused person.'

68. He placed reliance on the judgment in the case of Muhammad Bakhsh v. The State PLD 1956 SC (Pak.) 420 in which the Crown Counsel had brought another judgment reported as Karam Elahi v. Emperor (AIR 1947 Lahore 92). to the notice of the Hon'ble Supreme Court. The Court adverted to the question whether confession ceased to be admissible if it was made on oath and whether Karam Elahi's case was rightly decide6 The Court was pleased to overrule the dictum laid down in Karam Elahi's case after drawing a distinction between 'compulsion' and 'relevancy'. It was held:-- 'to sum up, a confession is not irrelevant merely because it is made on oath, nor is it inadmissible merely because-it was on oath; but if a person is .compelled to make a confession it cannot be proved against him.'

69. It was further held:--

70. "The law does not compel the prisoner to answer even where the Court is empowered to question him is entitled to hold his tongue against all interrogation; but when he decides to speak, what he speaks is evidence, though not testimony, for as well as against him. And since he cannot be compelled to speak he is under no obligation to speak the truth. The administration to him of an oath or affirmation is thus opposed to public policy and any infringement of the provision prohibiting the Court from putting him under oath is an illegality which cannot be cured on any principle of congest, waiver or estoppel. " .

71. The learned A.A.-G. has referred to the judgment in the case of Mst. Ameer Khatun v. Faiz Ahmed and others (PLD 1991 SC 787) to urge that now the law has been amended arid even during the trial an accused can appear as a witness in his own defence and make a statement on oath under section 340(2) of the Cr.P.C. There is no cavil with the said proposition of law. The Legislature, in its own wisdom, has expressly given an option to an accused to come forward as a witness in his defence and make a statement on oath like any other witness and stand the acid test of cross-examination. The express provisions of section 340(2) of the Cr.P.C. for giving evidence on oath cannot be imported under section 164 or 342 of the Cr.P.C. An accused person cannot be compelled to state the truth. If he is called upon to make a statement on oath or solemn affirmation then psychologically he is impelled to state the truth against himself and narrate much more than what he would have done otherwise.

38. Therefore, respectfully following the dictum laid down by the Hon'ble Supreme Court in Muhammad Bakhsh's case we hold that recording of confessional statement of an accused on oath or solemn affirmation is illegal and opposed to public policy and cannot be accepted as a voluntary confession despite consent or willingness of the accused to make a statement on oath or solemn affirmation.

39. For the foregoing reasons, we do not feel persuaded to place reliance on the confessional statements of Zakiullah, Arif, Muhammad Hussain and Muhammad Hanif. Even otherwise, they have retracted their confessions which cannot form basis for conviction with independent corroboration which is lacking qua them. "

72. The learned State Counsel is unable to point out any perversity in the above reasoning of the learned Judges of the Division Bench. In so far the allegation of conspiracy is concerned, the learned State Counsel is unable to point out any cogent evidence on record to establish the allegation S of conspiracy against the respondents in the case. After going through the impugned judgment and the evidence on record in the case we are of the view that the acquittal of respondents in the appeal does not suffer from any illegality so as to call for our interference with the impugned judgment.

73. As a result of the above discussion, both the appeals are dismissed.

74. N.H.Q./H-3/S Appeals dismissed.