FARIDULLAH ALIAS FARID Versus STATE

MUHAMMAD ISHAQ KHAN, J. --- Faridullah alias Farid (20/22) and Mst. Naushad Bibi (18/19) daughter of Pir Sahib Shah, residents of Dheri Kala, Tehsil Lakki, District Bannu faced trial, under section 302/34, P.P.C., alongwith their co-accused Muhammad Bashir son of Yar Muhammad and by his judgment dated 21-9-1988 the learned Additionl Sessions Judge, Bannu at Lakki convicted Faridullah and Mst. Naushad Bibi under section 302/34, P.P.C. and sentenced them each to imprisonment for life. Faridullah accused was also sentenced to pay a fine of Rs.40,000 or in default to undergo 4 years, further R.I. However, by the said judgment their co-accused Muhammad Bashir was given the benefit of doubt and was acquitted. Aggrieved by their convictions and sentences Faridullah alias Farid has preferred Criminal Appeal No.24 of 1988 while Mst. Naushad Bibi has preferred Criminal Appeal No.27 of 1988. Khan Sahib Shah, complainant has also filed Criminal Revision Petition No.11 of 1988 for the enhancement of the sentences imposed upon the two convicts appellants to that of death. Since both the criminal appeals and the criminal revision petition are the outcome of one and [lie same trial. these are disposed of through this judgment.

2. Facts of the case in brief are that on 14-1-1986 at 8.55 a.m. Khan Sahib Shah complainant went to the Police Station Naurang and lodged the report that the night preceding after finishing with his normal duties of Electrician in the Bannu Sarai Naurang Mills, when he reached his house his niece Shamima came there and told him that her father had been killed by some one whereupon he alongwith his brother Gul Sahib Shah went to the house of Pir Sahib Shah who was lying murdered on the `Charpai' in his residential `Kotha'. On his enquiry his sister-in-law, Mst. Bibi Khana (widow of the deceased) and Mst. Naushad Bibi, his niece (daughter of the deceased) told him that the night preceding early at `Azan' time Muhammad Bashir (acquitted-accused) and Faridullah accused ?appellant came to their house. Faridullah accused-appellant having friendly relations with Pir Sahib Shah came inside the house while Muhammad Bashir acquitted-accused stood up in the door of the house. Faridullah Khan accused appellant told Pir Sahib Shah that he will arrange for him employment at Karachi whereafter both Farid Khan accused-appellant and Pir Sahib Shah deceased entered the residential `Kotha'. Mst. Bibi Khana and Mst. Naushad Bibi went inside another `Kotha'. Suddenly they heard the report of a fire-shot. When they came out they saw Farid Khan coming out of the residential `Kotha' and both Muhammad Bashir (acquitted-accused) and Farid Khan (accused-appellant) ran away. When both the said ladies entered the `Kotha' they saw Pir Sahib Shah lying injured on the `Charpai' and died subsequently. Out of fear they could not give him timely information. The S.B. shotgun with which Farid Khan accused?appellant had killed the deceased was lying on the spot. Motive for the offence was that Farid Khan accused-appellant was demanding the hand of Mst. Naushad Bibi but since he belonged to an inferior `Neelgar' tribe while the deceased was `Syed' therefore the deceased had refused him the hand of Mst. Naushad Bibi. In his report Khan Sahib Shah complainant further alleged `secret' relations inter se Farid Khan accused-appellant and his niece Mst.Naushad Bibi accused-appellant and that Farid Khan accused-appellant was bcnt upon marrying her by hook or by crook. According to the complainant both Farid Khan accused-appellant and Muhammad Bashir acquitted accused were the culprits for the murder of his deceased brother Pir Sahib Shah.

3. This report was recorded by Taj Ali, A.S.1. (P.W.8) by way of the F.I.R. Exh.P.A. Since the dead body of the deceased had also been taken to the Police Station, the A.S.I. prepared his injury sheet Ex.P.l1. and inquest report Ex.P.J. respectively and despatched the dead body to the mortuary for post-mortem examination. He also took into possession from underneath the dead body of the deceased a pcllct P.C./1 and a cardboard disc P.C./2 lying on the cot vide memo Exh.P.C. He then proceeded to the spot where he prepared site plan. He took into possession the shotgun EXh.P.D /1 produced to him by Gul Sahib Shah with an empty shell in its chamber vide memo Exh.P.D. He also seized 4 bulbs of 100 Watts each from inside the `Kotha' of Pir Sahib Shah deceased and one such bulb from the outer wall of the `Kotha' of the deceased vide memo Exh.P.E. Faridullah accused-appellant and Muhammad Bashir acquitted-accused were -arrested on the same day. The S.B. shotgun alongwith the empty were sent to the Forensic Science Laboratory whose result is Exh.P.Q. On 19-1-1986 since Faridullah accused-appellant was prepared to give confessional statement, he was produced before a Magistrate for the purpose. On 21-1-1996 he also produced Mst. Naushad Bibi for recording her confessional statement, as she too was ready to get her confessional statement recorded. The confessional statement of Faridullah accused-appclhint is Exh.P.M. and that of Mst. Naushad Bibi accused? appellant is Exh.P.N.

4. Post-mortem examination on the dead body of Pir Sahib Shah deceased was performed by Doctor Muhammad Saleem (P.W.6) who on external examination found the following injuries on the person of the deceased:-

(1) ??????? One entrance wound on the back at the level of above 1st and 2nd lumber vertebrae, on the right side, about one inch lateral to the vertebral column, about one inch circular with irregular margins having charging marks.

(2) ??????? One exit wound on front of chest on right side about one inch lateral to ? xiphisternum at the level of 6th/7th internal costal space.

On internal examination right lung, plcaura, abdominal walls, blood vessels, peritonium, stomach, large intestine, liver and kidney were all found injured. Death in the opinion of the Doctor, had occurred due to the injuries to the aforesaid vital organs leading to haemorrhage, shock and death. Time between injury and death was S to 30 minutes and that between death and post-mortem examination was 8 to 1.1 hours.

5. After completing the, investigation the local police challaned Faridullah and Mst.Naushad Bibi accused-appellant and Muhammad Bashir acquitted ?accused in the Court of the learned Additional Sessions Judge, Bannu at Lakki to face trial on the charge of murder of Pir Sahib Shah deceased in furtherance of their common intention. At the trial the prosecution examined as many as nine witnesses. All the three accused facing trial in their statements under section 342, Cr.P.C. alleged false implication and claimed total innocence. The learned trial Judge, however, extended benefit of doubt to Muhammad Bashir while convicted Faridullah and Mst.Naushad Bibi of the charge of murder of Pir Sahib Shah deceased and sentenced them as aforesaid. Dissatisfied with their convictions and sentences Faridullah and Mst. Naushad Bibi have preferred independent criminal appeals while Khan Sahib Shah complainant has applied for the enhancement of the sentences of the two convicts-appellants to the normal penalty of death through criminal revision petition.

5-A. We have heard the arguments of Haji Saadullah Khan Miankhel, Advocate on behalf of Faridullah accused-appellant, Mr. Maihar Alam Khan Miankhel, Advocate on behalf of Mst.Naushad Bihi accused-appellant, Mr. Sanaullah Khan Gandapur, Advocate for Khan Sahib Shah complainant and Mr. Ejaz Muhammad Khan. Assistant Advocate-General on behalf of the State and have gone through the record care fully.

6. In this case the occurrence has admittedly taken place at night time in the house of Pir Sahib Shah (deceased) where he alongwith his widow Mst. Bibi Khana (P.W.4), his daughter Mst. Naushad Bibi (accused-appellant) and other children was living. The presence of Mst. Bibi Khana (P.W.4) and Mst. Naushad Bibi (accused-appellant) is thus natural. It is to be seen whether through evidence of Mst. Bibi Khana (P.W.4) the only solitary witness claiming herself of having witnessed the murdering of the deceased by Faridullah (accused-appellant), the prosecution has been able to bring home charge to the accused-appellant. The First Information Report which although not by itself a substantative piece of evidence, sets the investigating agency in motion to resolve the various aspects of the incident, in this case nowhere suggests even of the slightest doubt or hand in committing the murder of the deceased by either Faridullah (accused-appellant) or Mst. Naushad Bibi (accused-appellant). According to Khan Sahib Shah, the maker of the F.I.R., when in the morning he returned home from the sugar mills, Serai Naurang, he was informed by the daughter of Pir Sahib Shah (deceased) namely Mst. Shamima Bibi that her father had been killed by somebody. This Khan Sahib Shah was produced by the prosecution as (P.W.3) and in his statement at the trial he stated that Mst. Shamima Bibi had told him that the deceased was murdered by the present accused Faridullah and that it was incorrectly recorded in the F.I.R. (hat he had been done to death by someone. The improvement made by him at the trial makes his credibility doubtful. Even otherwise he being not the eye-witness of the occurrence, his statement might lend support to the prosecution case by way of corroboration but by itself his statement is of no avail to the prosecution. The pivot prosecution witness in this case is Mst.Bibi Khana. According to her on the night of occurrence she alongwith her deceased husband, her daughter Mst. Naushad Bibi and three minor kids including Mst. Shamima were asleep in the `Kotha' of their house when at about 44) a.m. there was a knock on the main entrance door of their house. She woke up her husband who proceeded to the main gate followed by her. When the deceased opened the door, Faridullah accused entered the house and went alongwith the deceased into the 'Kotha' while she went inside her own 'Kotha'. She stated that Bashir the acquitted-accused kept standing outside in the entrance door. According to her there was a window in between the two 'Kothas' from where she saw the accused Farid Firing a shot at the deceased with which he was hit whereafter throwing his gun Farid ran away. Since it was too early Mst.Shamima did not go to inform her uncle immediately after the occurrence but in the morning she went to the house of her uncle Khan Sahib Shah on whose arrival she narrated him the occurrence. The occurrence has taken place on 14-1-199) and Pir Sahib Shah (P.W.3) has admitted that Mst. Bibi Khana (P.W.4) was taken by the police to the police station on the following day but her statement was recorded after six days i.e. on 20-1-1986 by the Investigating Officer under section 161, Cr.P.C. The fact that Mst. Shamima Bibi who was sent by Mst. Bibi Khanai to inform her uncle about the murder of the deceased, did not charge any one for the commission of the murder of the deceased and the statement of Mst. Khanai having been recorded after lapse of considerable time, makes her assertion doubtful. Even her statement at the trial is full of improvements and inconsistencies in that she states that when the deceased and Faridullah accused entered the `Kotha' and she entered another Kotha she heard a report of fire shot subsequently improving upon this assertion and saying that she saw from the window inter se the two Kothas that Faridullah accused fired shot at the deceased. According to this lady she had been examined by the I.O. on the very day of occurrence but the record is silent about any such statement and the only statement of this lady coming forth on the record is dated 20-1-1980. Even her statement which was recorded after the lapse of six days is not consistent with her statement recorded at the trial. In her police statement she did not mention the fact that on hearing the knock at the door she woke up her husband who started proceeding towards the main gate and she followed him. Similarly the entering of the deceased with Faridullah accused into the Kotha is also not recorded in her statement before the police. The existence of the window in between the two rooms is also not recorded in her statement before the police. On the other hand in her police statement it is recorded that she woke-up on hearing the report of the fire shot and that it was Mst. Naushad Bibi her daughter who informed her that the deceased was done to death by Faridullah accused. She disowned her statement before the police that Faridullah had committed the murder in connivance with Mst. Naushad Bibi (accused-appellant). She has admitted at the trial that due to enmity the deceased during those days used to carry his unlicensed shotgun and that when Faridullah (accused-appellant) came to their house and entered the room of the deceased he was empty handed. From whatever angle we look at the statement of this lady recorded by the police and her statement at the trial the two statements are full of contradictions on almost every material particular and, therefore, no reliance can be placed on her statement. Thus, from the statement of Khan Sahib, the maker of the F.1.R. who has not himself seen the occurrence and Mst. Bibi Khana, the prosecution has not been able to establish its case beyond reasonable doubt and no reliance can be placed on such evidence.

7. The main stress is made on the confessional statements of the accused? appellants. Both these confessional statements are exculpatory, neither of the two accused admitting the committing of the murder of the deceased himself/herself. B According to Mst. Naushad Bibi when she and Faridullah accused-appellant decided to get rid of the deceased a hurdle in the way of their union, since she did not know the method of handling the gun, she after picking up the gun from underneath the feet of her father handed it over to Faridullah who after loading it fired a shot at the deceased and killed him. On the other hand Faridullah accused-appellant placed the burden of firing at and killing the deceased at Mst. Naushad Bibi accused-appellant. Both the appellants have retracted from their C confessional statements. It is well-established principle that the evidentiary value of a retracted confession against a co-accused is considerably less and such a retracted confessional statement requires full corroboration. It is also a well recognised principle of law that retracted confession of an accused cannot be used against the co-accused except other independent evidence establishing the connection of such an accused with the commission of the crime in which case reliance can, however, be placed even on similar retracted confession. In Abdul Alim alias Abdul alias Abdul Awal and 22 others v. The State 1971 P Cr. L J 1230 it was held: -?

?Retracted confession of an accused cannot under the law, be used against the co-accused but when other independent evidence proves the complicity and the guilt of the co-accused reference may also be made to the confessional statement involving co-accused even though only to strengthen the other evidence on record.?

It thus follows that a retracted confession of a co-accused can only be considered for lending assurance to other evidence against a co-accused. In other words the foundation of the case against a co-accused is the other independent evidence in the case and the confession of a co-accused can be used merely to corroborate that other evidence. 1n Muhammad Aslam and another v. Sarkar P L D 1974 Note 98 at page 148 it was laid down:-?

?The general rule of corroboration of the testimony of an accomplice is that the statement of an accomplice requires corroboration, the need for corroboration of the confession of a co-accused is still greater. And since generally one accomplice cannot corroborate another accomplice, the confession of a co-accused which carries an inferior evidentiary value, cannot be used to corroborate the statement of an accomplice. Similarly, the confession of one co-accused cannot corroborate the confession of another co-accused, as against a non-confessing accused. Tainted evidence is not made better by being doubled in quantity and when there are two sets of evidence, each requiring corroboration, one cannot be used to corroborate the other. But the prisoner's own retracted confession may constitute, as against himself, sufficient corroboration of the confession of a co-accused or of the testimony of an approver.?

Now it is to be seen whether the two retracted exculpatory judicial confessions find any corroboration from an independent quarter or through confidence inspiring independent evidence. As we have observed earlier the only eye-witness to the occurrence is Mst. Bibi Khanai (P.W.4) but her statement besides having been recorded after the lapse of considerable time does not inspire confidence in that she has improved upon materially on almost every material particular. The statement of Khan Sahib Shah is of little value for he is not a witness to the occurrence and although at the trial he claimed that in the first place Mst. Shamima and on his arrival at the scene of occurrence Mst. Bibi Khanai did narrate him the occurrence telling him that the deceased was done to death by Faridullah (accused appellant), in the F.I.R. lodged by him he has named no one for the commission of the murder. Thus, the two retracted confessional statements finding no corroboration from any evidence what to speak of independent evidence, the same cannot be used against one and other.

8. Even though, as observed above, a retracted confessional statement cannot be used against co-accused, in the absence of independent corroborating evidence, yet it cannot be lost sight of that a confessional statement can well be used against the maker thereof if of course it is held to be admissible in evidence. We have perused both the confessional statements. Although the Magistrate who recorded the confessional statement while giving evidence at the trial deposed that he had administered warning to the confessor that he was a Magistrate of the First Class and that it was not binding on them to make a confessional statement yet from the record of the confessional statements, the propriety of this assertion of the learned Magistrate does not find corroboration. In Abdul Haleem v. The State 1984 P Cr. L J 611 the mode of recording the confessional statement was reviewed and it was laid down that:--

?As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following question should be put to him: --

(i) ??????? For how long you have been with police?

(ii) ?????? Has any pressure been brought to bear upon you to make confession?

(iii) ????? Have you been threatened to make confession?

(iv) ????? Has any inducement been given to you?

(v) ?????? Why are you making this confession?

(vi) ????? Have you been maltreated by police?

After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim.?

In this case since the learned Magistrate did not disclose his identity, the recording of the confessional statement became defective. Besides, the learned Magistrate himself admitted of certain cuttings in the confessional statement which were initialled but no initials or thumb-impression of the concerned accused were obtained for those cuttings. In a similar situation in S. Ramzan v. The State P L D 1906 Kar. 241 it was observed that:--

?Magistrate, however, in his statement in the trial Court did state that he that he was a First Class Magistrate and that they were not bound to make a confession and they did so, it would be used as evidence against them. From the cord it is not clear if the Magistrate did give such a warning.

The aforesaid view was followed in a recent authority reported as S. Noor Muhammad v. The State 1988 P Cr. L J 1310. Besides it is on the record that right from 14-1-1980, the date of occurrence up to 19-1-1986 when Faridullah (accused-appellant) made his confessional statement, he remained in the physical custody of the police and from the statement of Sher Muhammad, Magistrate (P.W.9) it is clear that while granting remand for police custody no request had been made for recording their confessional statements. Similarly Mst. Naushad Bibi also remained in police custody since 14-1-1986 upto 21-1-1986, according to the statement of Mst. Bibi Khanai (P.W.4) and from 19-1-1986 upto 21-1-1986 according the statement of the Investigating Officer. Moreover, Mst. Bibi Khanai who has been produced by the prosecution for the success of its case admitted that Mst. Naushad Bibi had been maltreated and tortured by the police for extorting a confessional statement from her. These factors taken together render the two confessional statements as inadmissible in evidence.

N.H.Q./1091/P ??????????????????????? ??????????????????????? ??????????????????????? ??????????? Appeals accepted.