Maj.(Retd.) TARIQ MEHMOOD Versus THE STATE

1. MUHAMMAD NAWAZ ABBASI, J. ‑‑‑This criminal petition for leave to appeal (Crl.P. 245 of 2000) under Article 185(3) of the Islamic Republic of Pakistan has been preferred against the judgment dated 8‑11‑2000, passed by a Division Bench of the Peshawar High Court, Abbottabad Bench in Criminal Appeal No.48 of 1999 filed by the petitioner (.convict) and Murder Reference No.1 of 2000, sent by learned Sessions Judge. Abbottabad under section 374. Cr.P.C. to the High Court for confirmation of sentence of death awarded to the convicts.

2. The petitioner namely Major (Retd.) Tariq Mehmood alongwith Dr. Shazia Aslam were tried by learned Sessions Judge, Abbottabad for the charges under sections 302/109/120‑B of Pakistan Penal Code for committing the murder of Dr. Naeem Sultan, ‑the husband of Dr. Shazia Aslam and the learned trial Judge having found the petitioner and Dr. Shazia guilty of the charge convicted and sentenced both of them to death with the direction to pay a fine of Rs.1,00,000 (Rupees one lace) each, which on realization was to be paid to the legal heirs of the deceased as compensation under section 544‑A, Cr.P.C. and in default of payment of fine the convicts were directed to undergo R.I. for six month each, vide judgment dated 8‑11‑2000.

3. The petitioner and his co‑convict filed separate Criminal Appeals bearing Nos.48 and 50 of 1999 in the Peshawar High Court, Abbottabad Bench whereas Mst. Bibi Kalsoom, the mother and Major Faheem Sultan, the brother of the deceased, jointly filed a Criminal Revision No.23 of 1999 for enhancement of the amount of compensation under section 544‑A of the Cr.P.C.

4. The sentence of death awarded to the present petitioner by the trial Court was maintained by the High Court by dismissing his appeal (Criminal Appeal No.48 of 1999) whereas Criminal Appeal No.50 of 1999 filed by Dr. Shazia Aslam was allowed and she was acquitted from the charge. The murder reference was answered accordingly and the Criminal Revision Petition filed by Mst. Kalsoom was dismissed.

5. The petitioner Major (Retd.) Tariq Mahmood has filed Criminal Petition No. 245 of 2000 against his conviction and sentence and Mst. Kalsoom Bibi (the mother of deceased) preferred Criminal Petition No.22 of 2001 against the acquittal of Dr. Shazia Aslam. The leave to appeal is being sought in these petitions against the judgment dated 8‑11‑2000 passed by a Division Bench of the Peshawar High Court, Abbottabad Bench, Abbotabad.

6. The occurrence in the present case had taken place on 25‑11‑1998 in the area of Police Station Mirpur, Abbottabad, It was as unseen occurrence and Ali Hussain, Additional S.H.O. Police Station Mirpur while on patrol duty at 6‑25 p.m. on 25‑11‑1995 having found the dead body of Dr. Naeem Sultan lying on the road side near Musaddaq Town, Mansehra Road, Abbottabad set the law at motion. Upon search of the dead body by Additional S.H.O. and recovery of Identity Card, it transpired that it was dead body of Dr. Naeem Sultan. The Additional S.H.O. after preparation of the inquest report and injury statement of the deceased dispatched the dead body to Ayub Medical Complex for post‑mortem examination and sent a Morasala to the police station through a constable, on the basis of which a case was registered vide F.I.R. No.667 dated 25‑11‑1998 at Police Station Mirpur. Abbottabad. Ali Hussain, Additional S.H.O. during search of dead body also took into possession, the service card, telephone diary, a little cash, a wrist‑watch and five photographs out of which one was of Dr. Shazia Aslam wife of deceased and a handkerchief. During the course of investigation, Dr. Shazia Aslam, having been found suspected to be involved in the murder was taken into custody and on her desire to make a confessional statement she 'was produced before a local Magistrate who recorded her statement under section 164, Cr.P.C. Dr. Shazia in her statement while disclosing her illicit liaison with Major (Retd.) Tariq Mahmood stated that said Tariq Mahmood with a view to continue sexual connections with her intended. to eliminate doctor Naeem Sultan, her husband. Consequent upon this disclosure a case under section 5 read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Dr. Shazia Aslam and Major (Retd.) Tariq Mehmood, vide F.I.R. No.579 dated 5‑12‑1998 at Police Station Mirpur, Abbottabad and they both were arrested in the said case. Major Tariq Mehmood while under arrest volunteered to make a confessional statement and therefore, he was produced before a Magistrate at Abbottabad who recorded his confessional statement. The petitioner Major (Retd.) Tariq Mehmood and Dr. Shazia were accordingly arrested in murder case and were challaned to face the trial. The last worn clothes of the deceased i.e. sweater, shirt, waist, Shalwar and jacket all stained with blood and corresponding cuts alongwith two spent bullets in separate sealed parcels which were handed over to a constable by the doctor who conducted post‑mortem of the dead body having taken into possession, were sent to the Chemical Examiner and Forensic Science Laboratory for analysis and expert opinion. Sadiq Hussain, Inspector, C.I.A., Abbottabad (P.W.22) having taken over the investigation, interrogated Major (R.) Tariq Mehmood petitioner who while in custody led to the recovery of revolver '.30 bore with a bandoleer containing 10 live cartridges from his bed room. On the pointation of the petitioner the Inspector also recovered three empties of .32 bore revolver with one live cartridge from an open place opposite Ayoub Medical College. The revolver, the empties and live cartridge were sent to Forensic Science Laboratory for opinion of the fire‑arms expert and as per report of fire‑arms expert, the crime empties and two spent bullets were found to have been fired from revolver recovered from Major (R.) Tariq Mehmood petitioner. The reports of Chemical Examiner and fire‑arm experts were produced in evidence and made part of the record.

7. Dr. Nasir Ikarm Khan (P.W.16) conducted the post‑mortem examination on the dead body of Dr: Naeem Sultan and found the following injuries on his person:‑‑

(1) Entry wound on right side of the chest is third intercostal space 2' lateral to sternam 3/4" in size diameter.

(2) Entry wound on lateral aspect of left upper area 1" c.m. size.

(3) Visible clinical fracture of left upper third of humerus.

(4) Abrasion on right shoulder size 3" x 2".

(5) Bruise on back of right shoulder size 2" x 1".

(6) Nameatoma in the right side of lumber region in front of 9th rib size

8. 3" x 2".

(7) Abrasion of right dersal aspect of wrist joint size 1 " x 1 ".

(8) Bruises on both right and left suckle approximately 1/2" in size.

9. In the opinion of the Doctor the death was the result of injuries caused on vital organs and probable time between injuries and death was 30 to 35 minutes and about 14 hours between death and post‑mortem examination.

10. The police on completion of investigation submitted challan against the present petitioner and Dr. Shazia Aslam. to face the trial before the Sessions Judge, Abbottabad. The prosecution in support of the charge produced 23 witnesses in all who remained associated with investigation. The confession made by the petitioner is reproduced hereunder:‑‑

11. "My illicit relation with Mst. Shazia daughter of Muhammad Aslam Khan started in 1994. Our first sexual encounter took place on 8‑11‑1994 at Abbottabad. She considered the first sexual encounter as special occasion and celebrated it with great enthusiasm. After marriage of Mst. Shazia with doctor Naeem Sultan my sexual relation with Mst. Shazia discontinued and restarted after departure of Dr. Naeem Sultan to England for Higher Education. Since, she was residing at Family Hostel Complex my fanuly used to visit to her house/flat frequently to look after her. This resulted in our renewal of illicit relations with her foil consent and free‑will. I use to visit Shazia for a short time and she would be entirely on her own and free‑will for rest of the time. On return of Dr. Naeem Sultan from England Mst. Shazia and Dr. Naeem Sultan had engaged in a fighting over demand of money by Dr. Naeem Sultan from Shazia. She never liked his demanding money from her, rather she expected him to look after her needs and give her the money. I tried to console Mst. Shazia that her husband had got some rights and that she should try to adjust herself with Dr. Naeem Sultan. I also advised her that her future is bright with Dr. Naeem Sultan because of his Higher Education. I felt that my advice over Mst. Shazia to adjust with Dr. Naeem Sultan was not liked by her. However, their differences developed to such an extent that Dr. Naeem Sultan beat her and thereafter Mst. Shazia showed as her bruised body. This incident left a bad effect on Mst. Shazia and she wanted to get rid of Dr. Naeem Sultan so that she become free. I again advised her to adjust herself with Dr. Naeem Sultan and told her that our relations should finish now and we should revert back towards our respective household/families. Her relation was that she just cannot think of living with such‑like person like Dr. Naeem Sultan and would get rid of him at any cost. I told her that if you are so desperate ask for divorce. Her response was that their parents would never let it happen and I want to become free immediately. She further stated that I cannot tolerate Naeem just for a minute, the sooner he goes she will become free from all the pressures. Then she seriously started talking of the ways and means to get rid of Dr. Naeem Sultan. One option before us was accidental death of Naeem but how, though very suitable, next option was drowning of Naeem on water lake during course of hunting (Shikar) but these options were not easy to be acted upon. The only safe way which we discussed was to shoot Naeem silently, but she was afraid of subsequent inquiries/investigations by the police. She told me that I am not serious in eliminating Naeem and she threatened me that if I failed to eliminate Naeem she would make public our illicit relations. I will be disgraced publicly and she will get of him. She threatened me that Dr. Naeem's family will take revenge from your children. If I did not help her to get rid of Dr. Naeem Sultan she will always doubt my sincerity and whenever got chance to try to disgrace me. In the meantime they had a big fight and she left for her parents at Turbela who brought her back the same night, called Dr. Naeem's mother and brothers but could not patch up and she left with the parents for Turbela after having lunch with us. During lunch I asked Naeem to keep visiting us. He promised for 24th November to have dinner with us. On 25th at about 5‑45 I saw him from the hospital side to the pump and immediately my conversation with Dr. Shazia flashed into my mind and I impulsively decided to finish Naeem. I immediately took revolver with me and met him on the roadside and by hiring a Suzuki we proceeded towards Mansehra. On main road near Neely Pair opposite Muqadas Town Road, we stopped and started walking upward. On reaching at a safe spot from the main road we stopped. At that moment I was unable to get courage to shoot Dr. Naeem, but after great difficulty I picked up the courage, took out my revolver and shot/tired on him. He started running towards main road. Then I repeated 4/5 more shots which hit at his back and also started running after him. In the meantime he almost jumped on the windscreen of a Suzuki pick‑up coming front Abbottabad. Two people came out of the said Suzuki pickup and they tried to throw Dr. Naeem away. I quietly got down the road and started walking towards Zaffar Market. I boarded a Hiace which was coming from Mansehra and when reached the site, the Hiace stopped over there alongwith other vehicles to see the dead body. A police vehicle was also standing on the spot. Then the Hiace in which I was sitting started towards Abbottabad. I got very upset after I saw the dead body and became repent on my act. When Hiace reached near my Petrol Pump I. stopped it and stepped down of it. I must add here that myself and Dr. Shazia had illicit relation and she instigated me to kill Dr. Naeem. I myself and Dr. Shazia are responsible for the murder of Dr. Naeem and no one else is responsible in this offence. However, Dr. Shazia was the main planner and instigator. I can identify the place where I threw off empty cartridges. I have recorded my statement at my free will and there is no compulsion upon me."

12. The statement made by Dr. Shazia before the Magistrate is as under:‑‑

13. The prosecution case mainly rests upon the judicial confession made by the petitioner before a Magistrate which was retracted by him on the next day through a written application.

14. The petitioner while denying the charge pleaded innocence and false implication and also denied to have voluntarily made the confessional statement. The learned trial Judge and also the Appellate Court having come to the conclusion that despite retraction the judicial confession made by the petitioner was confidence‑inspiring and was sufficient to convict the petitioner.

15. Learned counsel for, the petitioner contended that it was not safe to place reliance on confessional statement and made the same basis of conviction without independent corroboration and that no such corroboration was available in the present case. The emphasis was that:‑‑

(a) Spent bullets allegedly recovered from the body of the deceased were sent to the forensic science' laboratory after recovery of revolver from the house of the petitioner, therefore, the positive result of fire‑arm exert being of no consequence would not be used for corroboration to the confessional statement;

(b) the motive behind the occurrence of illicit relations of the petitioner with the widow of the deceased disclosed in the confessional statement without any other evidence in proof thereof would not be used as corroborative evidence. In nutshell, the argument of the learned counsel was that it was not safe to make basis the retracted judicial confession for conviction on the capital charge without independent corroboration and that in the case in hand there was no independent corroborative evidence available on record to convict the petitioner.

16. There is no cavil with the proposition that if the confession was not confidence‑inspiring the use of same to convict a person without independent corroboration is not proper and legal and the Courts generally refrain from basing the conclusion solely on retracted confession and while following the rule of abundant caution, look for corroboration in material particulars to ensure safe administration of justice but the judicial confession does not always loose its value for lack of corroboration. The Court if is satisfied that the judicial confession through retracted, was true and voluntary the same can safely be made basis for conviction. The true test to judge the evidentiary value of a retracted confession would be that it must be voluntary, truthful, free of any duress and coercion, therefore, the retraction per se is not always a valid ground to discard judicial confession until and unless it is proved that it was obtained through coercion, threat, pressure or inducement. The detail of events given by the petitioner in his confessional statement is a strong circumstance to establish that confession was true and voluntary. While judging the voluntariness and truthfulness of the confession in the light of; principle laid down in Muhammad Ismail v. State (1995 SCMR 1615), it would appear that the confessional statement made by the petitioner was free from any outside pressure and would hardly need any corroboration. We may point out that the requirement of corroboration is not an inflexible rule to be applied in each case and in each detail rather if the circumstances of the case satisfy the mind of the Court that the confession was truthful, it would be sufficient to sustain the conviction. Therefore, the conclusions drawn are as

(a) The retracted judicial confession if is voluntary, true and confidence‑inspiring is alone sufficient to sustain conviction;

(b) the rule of corroboration being rule of abundant caution, is not an inflexible rule to be insisted in each case; and

(c) if by the circumstances of the case, the mind of the Court is satisfied, it would be sufficient to sustain conviction.

17. With a view to judge the evidentiary value of judicial confession it is essential to determine its voluntariness and truthfulness. If the Court is convinced that the confession was voluntary and truthful, the same even if retracted can be sufficient to sustain the conviction on the capital charge However, the rule of prudence demands that a confession statement should be corroborated by other evidence direct or circumstantial in material

18. This Court in Muhammad Gul v. State (1991 SCMR 942) observed that evidentiary value of a judicial confession would not be affected unless it is established that the Magistrate. who recorded the same, had tampered the confession.

19. In the light of foregoing conclusion, the essential question for determination would be whether the judicial confession made by the petitioner before a Judicial Magistrate at Abbottabad while in police custody after five days of his arrest which was subsequently retracted by him through a written‑ application sent to the learned Sessions Judge, Abbottabad was voluntary, free from any outside pressure and confidence‑inspiring. This is correct that while in police custody, the delay in recording the confessional statement is seen with suspicion but mere delay of few days would not be a ground to doubt the voluntariness of the statement and reject it. The confessional statement of the petitioner was recorded by the Civil Judge exercising the powers of a Magistrate Section 30 and the said Magistrate while appearing before the Court has stated that he recorded the confession of the petitioner after satisfying himself about its voluntariness. It is in his statement that petitioner had not lodged any complaint of coercion, torture or inducement for making the confessional statement, therefore, the written application sent by the petitioner to the learned Sessions Judge on the next day of making the confessional statement in absence of any sign of outside pressure would not affect its voluntariness. It is noticeable that the petitioner in his statement under section 342, Cr.P.C. in reply to the questions relating to the making of confessional statement before the Magistrate and the reason of his being charged for the murder of Dr. Naeem Sultan made the following replies:‑‑

20. "Answer to question No.17

21. I was not arrested in this case. I was produced before any Magistrate for confessional statement nor I did make any confession as in imputed to true. It is only a photostat copy which has been produced and placed on record in shape of Exh. P.W.21/6, it is not admissible in evidence. The Magistrate has, himself admitted that he did not record my confessional statement in the case in hand. I retracted the confession at the earlier stage vide application Exh.D.A/1 addressed to this Court.

22. "Answer to Question No 21

23. I am innocent and has been falsely charged on the basis of unfounded suspicions. There was neither ocular nor circumstantial tangible nature evidence and I have been singled down as scapegoat. The pressure of the official is apparent. Even in the documents prepared by the police it has been stated that unless confession, is recorded the case will go un raced to the confession was manipulated in another case in place of the absence of other evidence.

24. I was on bail before arrest from the Court of Sessions Judge, until 9‑12‑1998, another case was created which was rightly or wrongly supposed to be a motive in the present case and by frustrating the order of Sessions Judge and violating the law thus alleged confession in the other case. In this case there was pressure from the high‑ups. In this case after my arrest on 12‑12‑1998 no which clearly speaks of the mala fide of the police and the hinder hand.

25. The petitioner has not specifically stated in his statement under section 342, Cr.P.C. that confessional statement was obtained through coercion, torture, physical or mental inducement. The High Court having fully scanned the truthfulness of confessional statement of the petitioner held that it was voluntary and confidence‑inspiring to be relied upon to sustain the conviction and sentence.

26. The manner in which the confession was made would show that it was not made under any pressure and was voluntary. The petitioner while disclosing the secret of his love affairs with doctor Shazia has given the minute detail of their conversation on different occasions which fact was either known by the petitioner or doctor Shazia and no third person would be aware of their illicit relations inter se and that the disclosure of the secrecy of such matters of exclusive knowledge in minute detail would not be unwilling or due to outside pressure and compulsion.

27. The motive to commit the crime as disclosed by the petitioner in his confession was his sexual commitment with wife of deceased which would appeal to mind to be correct as neither prosecution nor defence has given any other motive for commission of offence.

28. A perusal of the confessional statement made by the petitioner would show that the petitioner and doctor Shazia being indulged in immoral activities were not prepared to discontinue their relation after arrival of Dr. Naeem Sultan from abroad and the petitioner to fulfil his evil designs, took the extreme step of killing the deceased.

29. The dead body was recovered from Mansehra Road, Abbottabad and the petitioner in his confessional statement has stated that deceased was tired at by him with his licensed revolver near Mushtaq Town, Mansehra Road; Abbottabad. The spent bullets recovered from the dead body were sent in a sealed parcel to the forensic science laboratory and the revolver which wad used ad weapon of offence wad Alto sent to forensic science laboratory for test. The fire‑arm expert had reported that the spent bullets were fired from .32 bore licensed revolver recovered from the petitioner which would be an independent source of corroboration to the confession made by the petitioner. The contention of the learned counsel that the spent bullets and the revolve were sent together to the forensic science laboratory and there being no explanation of withholding the spent bullet till recovery of revolver, the report of fire‑arm expert would be of doubtful character has no substance. It is in the evidence that spent bullets were sent to forensic science laboratory before recovery of revolver and further even if as per contention of the learned counsel the spent bullets were sent with revolver, it would be of no help to the petitioner as the spent bullets were recovered from the body of the deceased by the doctor during the post‑mortem examination and there was no possibility of tampering with the same. Therefore, the matching spent bullets recovered from the dead body with the weapon used in the commission or offence can safely be used as corroborative evidence and cannot be excluded from consideration for mere reason that spent bullets were sent after recovery of the revolver. This contention of the learned counsel may be relevant in case of withholding of the crime empties recovered from the spot till the recovery of weapon of offence as the crime empties in such situation would loose the evidentiary value but the position in case of spent bullets recovered from the body of deceased would be different .

30. In nutshell, the judicial confession made by Major (Recd.) Tariq Mehmood seeking ample corroboration from the evidence of motive, the medical and the positive report of fire‑arm expert regarding the spent bullet recovered from the body of deceased was found true, voluntary and confidence‑inspiring. We, therefore, in the light of above discussion, while affirming the view of the evidence taken by the High Court uphold the conviction and sentence awarded to the petitioner and dismiss the Criminal Petition No.245 of 2000 being without any substance. Leave to appeal is refused.

31. The case of Dr. Shazia is distinguishable. We having heard the learned counsel for the petitioner in the connected petition (Criminal Petition No.22 of 2001) filed by Mst. Bibi Kulsoom against acquittal of doctor Shazia by the High Court find that her acquittal was not questionable. The alleged confession made by her in the case registered against her under (Offence of Zina) Enforcement of Hudood Ordinance, 1979, would not suggest that either she conspired to commit the murder of her husband or she was party to the crime. The mere knowledge of the intention of her paramour to commit such an offence would not be an incriminating evidence to suggest that she also joined hands in the murder of her husband. There is nothing in the confessional statement of Msjor (Recd.) Tariq Mehmood that he while acting under the influence of Dr, Shazia or at her instance committed the murder of doctor Naeem Sultan rather he stated that he consulted doctor Shazia about hid intention but she was reluctant to be party to such an act and restrained him from taking such step. The learned counsel for the petitioner has not been able to show us any other convincing evidence from the record to link Dr. Shazia with the murder.

32. For the foregoing reasons, we while dismissing the Criminal Petition No.245 of 2000 also dismiss this Criminal Petition No.22 of 2001 and refuse leave to appeal.

33. M.B.A./T‑32/S

34. Order accordingly.