MUHAMMAD ISMAIL Versus THE STATE

SAJJAD ALI SHAH, J. ‑‑This appeal is filed against the impugned judgment, dated 22‑5‑1984 of learned Sessions Judge, Sanghar, whereby appellant has been convicted for offence under section 302, P.P.C. and sentenced to death. There is also before us reference for confirmation of death sentence. We propose to dispose of both the appeal and the reference by this single judgment.‑

2. Briefly stated the case of the prosecution is that appellant Muhammad Ismail is maternal‑uncle of deceased Mst. Zareena, who had eloped with complainant Muhammad Saleh and then married thin without the consent of her parents. Matter was amicably settled between the parties by Nekmard Haji Haroon. After reconciliation Mst. Zareena with her husband complainant Muhammad Saleh went and settled down in Tando Adam, where her parents also lived. On the day of incident i.e. 16‑3‑1982 Mst. Zareena and her husband complainant Muhammad Saleh were present in the house of parents of Mst. Zareena where they had come to see them. At 11‑30 a.m. Mst. Zareena passed by in front of the room where appellant Muhammad Ismail was present and she was shot at by the appellant with a country‑made pistol, in the result of which she became injured on the head and died at the spot. Incident was seen by eye‑witnesses namely complainant Muhammad Saleh, Bahadur and Mst. Shaher Bano the latter two being father and mother of deceased respectively. Appellant was seen by the witnesses to be armed with pistol and after having made extra‑judicial confession ran away from the spot alongwith weapon of crime. After the departure of appellant P.W. Umer came to the spot on cries and was apprised of the incident. Complainant went to Police Station Tando Adam at a distance of three furlongs from the spot and filed F.I.R. which was registered by Sub-Inspector Muhammad Yameen. Thereafter, investigation was taken over by S.H.O. Zarar Khan. He went to the scene of offence which was in the house of Yaqoob father of appellant in Ward No.3, Wishanabad, Tando Adam. He prepared Mashirnama of Wardat, Mashirnama of injuries on the dead body and inquest report. He sent the dead body to the hospital.for post‑mortem examination. He secured the blood‑stained earth from the spot and put it into a sealed parcel. He recorded statements of witnesses. On 19‑3‑1982 at 11‑00 a.m. acting on spy information he went to Railway Station, Tando Adam and arrested the 'appellant. On the same day he secured pistol, weapon of crime from the graveyard on the pointation of appellant. An empty was already in the chamber of pistol which was put into a sealed parcel and sent to the Ballistic Expert. On 20‑3‑1982 judicial confession of appellant was recorded before the Magistrate First Class. Statements of witnesses under section 164, Cr. P.C. were also recorded on 1‑4‑1982 and after completing of the steps of investigation challan was presented in the Court.

3. Before the trial Court prosecution examined eleven witnesses in support of its case. Ocular testimony is furnished by three eye witnesses, out of whom P.W.1 complainant Muhammad Saleh has supported but the other two witnesses namely Bahadur and Mst. Shaher Bano father and mother of deceased have not supported and were declared hostile. Their statements previously recorded under section 164, Cr.P.C. were brought on the record and have been relied upon by the trial Court. P.W.4 Mr. Muhammad Sadiq, who was at the relevant time Mukhtiarkar and First Class Magistrate had recorded judicial confession of the appellant and produced same in the Court as Exh.12. P.W.5 is Doctor Gada Hussain, who conducted post‑mortem examination on the dead body of Mst. Zareena on 16‑3‑1882 in taluka Hospital at Shahdadpur. He found the following injuries on the dead body:‑‑

(1) Lacerated puncture wound with inverted margins with 1 c.m. in diameter on right temporal region, brain deep.

(2) Lacerated irregular wound 0.5 c.m. skin deep 3 cm below injury No. 1.

(3) Lacerated puncture wound 0.5 c.m. in diameter perforating middle of right ear.

(4) Lacerated puncture wound 0.5 c.m. perforating middle of ear 1 c.m. above of injury No.3.

According to the Doctor these injuries were caused by firearm and the death was due to shock and haemorrhage as a result of those injuries. Injury No.1 individually and all other injuries collectively were sufficient to cause death in the ordinary course of nature. P.W.6 Nazeer Ahmad is Tapedar, who prepared sketch of scene of offence on 27‑6‑1983 and produced it in the Court as Exh.16. P.W.7 is Umer who came to the spot on cries after the departure of appellant. He did not support the prosecution case and was declared hostile. He was confronted with his 164, Cr.P.C. statement. P.W.8 is Ghulam Murtaza Mashir, who prepared Mashirnama of Wardat Exh.20 and inquest report Exh.21. P.W.9 is Muhammad Yameen, Sub‑Inspector who registered F.I.R. and subse quently on 31‑3‑1982 got 164, Cr.P.C. statements of witnesses Umer, Mst. Shaher Bano and Bahadur recorded before the Magistrate First Class. P.W.10 is S.H.O. Zarar Khan who has investigated the case. Prosecution has produced report of Chemical Examiner Exh.27 according to which earth was found to be stained with human blood. Prosecution has also produced report of Ballistic Expert Exh.28, according to which crime empty was found to have been fired from the crime weapon. P.W.11 is Haroon, who is Mashir. He produced Mashirnama of arrest of appellant Exh.25 and Mashirnama of recovery of pistol Eich.26. Prose cution closed its side.

4. Before the trial Court appellant in his 342, Cr.P.C. statement stated that complainant had abducted Mst. Zareena and married her but there was no compromise between them. He further stated that he was not present in the house at the time of incident but was subsequently arrested alongwith other relatives of deceased and taken to Police Station, where he was compelled to make a confession. He further proclaimed innocence and false implication. Appellant did not examine any witness in defence.

5. We have heard at length Mr. Azizullah Shaikh counsel for the appellant and Mr. Imam Bux Shaikh, for A.‑G. for State. On behalf of appellant, evidence produced iYt the trial Court by the prosecution was subjected to severe criticism and inherent weaknesses and infirmities were spotlighted. There is no dispute about the fact that before the trial Court, out of three eye‑witnesses, two did not support the prose cution case and were declared hostile. These two hostile witnesses are P.Ws. Bahadur and Mst. Shaher Bano who are father and mother of deceased Mst. Zareena. The reason is understandable that both parties to the case are closely related to each other. While deceased Mst. Zareena is daughter of P.Ws. Bahadur and Mst. Shaher Bano on one hand, on the other appellant Muhammad Ismail is brother of Mst Shaher Bano, Sala of Bahadur and maternal‑uncle of deceased Mst. Zareena. Comp lainant Muhammad Saleh apart from having married Mst. Zareena is also even otherwise related to this family. In these circumstances it is understandable that having realised that somehow or the other Mst. Zareena is no more in the world, attempt has been made deliberately to save the life of another close relative, who is appellant. Normally the witnesses do not support the prosecution case in the trial Court, then as contemplated under section 265‑J, Cr.P.C statements of such witnesses recorded under section 164, Cr.P.C., if they are consistent with prosecution case, and are brought on the record may be treated as evidence for all purposes subject to the provisions of Evidence Act, 1872. The law has prescribed some prerequisite conditions for use of statements under section 164, Cr. P. C. of the witnesses provided such statement is made in presence of accused, who has notice and was given an opportunity of cross‑examining the witness making such state ment. In fact language of section 265‑J, Cr.P.C. clearly shows that statement under section 164, Cr.P.C. of witness shall be perfect and reliable only when it is made in presence of accused who has notice and is given opportunity to cross‑examination of that witness. This requirement is mandatory in nature and has to be followed in letter and spirit. If there is non‑compliance of provisions of section 265‑J, Cr. P. C. and statement under section 164 , Cr.P.C. of a witness is not recorded in presence of accused and no opportunity is given to him for cross‑examination of the witness then such statement is inadmissible. In the instant case statements under section 164, Cr.P.C. of eye witnesses Bahadur and Mst. Shaher Bano were not recorded in presence of accused, hence they are inadmissible in evidence and no reliance hem in favour of prosecution. Consequently we can be placed upon them hold that evidence of these two eye‑witnesses namely Bahadur and Mst. Shaher Bano cannot be relied upon for the purpose of prosecution case. Incidentally it may be stated here that P.W.7 Umer, who has been examined as corroborative witness when he came to the spot on cries and was apprised about the details of incident by eye‑witnesses also did not support the prosecution case and was declared hostile. This witness is "Masat" (maternal‑cousin) of the appellant as is admitted by him in his cross‑examination before the trial Court. He was declared hostile and his statement under section 164, Cr.P.C. has been brought on the record. Reliance cannot be placed on the evidence of this witness in favour of the prosecution for the reason that although he has been declared hostile still his 164, Cr. P. C. statement is not recorded in presence of accused.

6. Now we are left with evidence of only one eye‑witness who is P.W.1 Muhammad Saleh complainant husband of deceased Mst. Zareena. He has supported the prosecution case.

7. Mr. Azizullah K. Shaikh has argued that in the circumstances when there is solitary eye‑witness, as a rule of prudence, conviction should not be based on the evidence of solitary eye‑witness unless such witness is found to be absolutely reliable or his evidence is corroborated by other reliable evidence. He has referred us to the case of Mumtazuddin v. State P L D 1978 S C 114 in support of his contention. Learned counsel for the appellant further argued that in the instant case no other reliable piece of evidence is available for corroboration.

8. In the instant case incident took place on 16‑3‑1982 at 11‑30 a.m. and appellant was arrested on 19‑3‑1982 i.e. on the fourth day of the incident. Judicial confession was recorded on the following day of arrest of appellant. Now before we go into the merits of judicial confession, question arises for consideration as to what is the legal value of a retracted judicial confession. On this point the correct legal position is enunciated by the Supreme Court in the case of the State v. Minhun alias Gul Hassan P L D 1964 S C 813. The relevant portion from the judgment is reproduced as under:‑

"It is now well‑settled that as against the maker himself his confession, judicial or extra‑judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, C.J. in his commentary on the law of Evidence at page 168 (Vol.1) it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."

9. It is, therefore, clear that retracted judicial confession can form basis of conviction provided the Court is satisfied that the confession is true and voluntary. Along‑side there is rule of prudence that if the basis is retracted judicial confession then it is the duty of the Court to look for corroboration on material particulars to satisfy itself that the confession cannot but be true. Reference can also be made to the case of Majnoo v. The State 1981 P Cr. L J 463 and that of Noor Nabi Agha v. The State P L D 1972 Kar. 292.

10. The question which has engaged our attention, is that whether ocular testimony of complainant Muhammad Saleh should be made the basis and judicial confession of appellant be used as corroboration or alternatively judicial confession be made the basis and ocular evidence of complainant be used as corroboration but then it was pointed out to us that there is inherent inconsistency inter alia in both these pieces of evidence as in the judicial confession presence of complainant Muhammad Saleh at the spot at the time of incident is not admitted. In these circumstances at least one thing is clear that we cannot use ocular testimony of complainant Muhammad Saleh as the main basis and use judicial confession as corroboration because in the judicial confession presence of complainant at the spot is denied.

11. It would be pertinent at this stage to dilate a little further on the evidence of complainant Muhammad Saleh because we have a lingering doubt with regard to his presence at the spot at the relevant time. It is the case of the prosecution that father and mother of deceased Mst. Zareena were living in the house of Yaqoob (father of Mst. Shaher Bano and appellant Muhammad Ismail) in Wishanabad and their own house at a short distance in Manganhar Para in Tando Adam was in dilapidated condition and required repairs. Plea taken by the defence is that since incident is alleged to have taken place at 11‑30 a.m. in the morning, male eye‑witnesses namely complainant Muhammad Saleh and P.W. Bahadur were not present in the house and were busy in the repairs of the house in Manganhar kPara, hence they cannot have witnessed the incident. It was further argued that complainant being mason by profession had willingly agreed to take part in repairs of the house particularly after there was reconciliation between him and his father‑in‑law and both he and his wife deceased Mst. Zareena were accepted by her parents. In this context complainant Muhammad Saleh stated in his cross‑examination before the trial Court that he is a mason. There was abandoned house of his father‑in‑law Bahadur in Manganhar Para in Tando Adam. The house was in dilapidated condition. It was two furlongs away from the house where the incident took place. Complainant denied the suggestion that on the fateful day, he and his father‑in‑law and some labourers were working on the construc tion of the abandoned house in Manganhar Para. He further denied that P.W. Bahadur had brought tea and they were taking tea when they were apprised of this incident. He also denied that he and his father‑in- law had not witnessed the incident but were informed about it subse quently. Mr. Azizullah K. Shaikh further argued that defence plea that male eye‑witnesses cited by prosecution have not seen the incident finds support in the evidence of eye‑witnesses and corroborative witness P.W. Umer, who have been declared hostile in the trial Court. Learned counsel for the appellant further submitted that portion of evidence favourable to the defence in the evidence of witnesses declared hostile can be relied upon and further cited the case of Kaloo and 2 others v. The State 1973 P Cr. L J 334 in support of the proposition. It is held in the reported case that while dealing with a hostile witness it is open to the Court to act on such particulars in the evidence of a hostile witness as may be considered to be true in relation to the circumstances of the case. It would be wrong to assume that the evidence of a hostile witness has to be discredited wholly. The testimony of a hostile witness cannot be left out of consideration and the evidence has to be considered like the evidence of any other witness, but with a caution for the simple reason that the witness has spoken in different tones. When a person speaks in different voices, it is for the Court to decide in what voice he speaks the truth. In such cases the determining test is corroboration from independent source and conformity with the remain ing evidence. Reliance has been placed in the reported case on the case law and we are in respectful agreement with decision.

12. In the instant case defence plea as stated above has been supported by P.W. Bahadur father of deceased when examined in the trial Court. P.W. Mst. Shaher Bano mother of deceased, also stated before the trial Court that she was not present in the house at the time of incident and on her return she found her daughter Mst. Zareena lying dead. Nobody was available in the house. On her cries neighbours came to the spot. P.W.7 Umer when examined before the trial Court stated that he went to the place of incident on cries of Mst. Shaher Bano and saw Mst. Zareena lying dead. Mst. Shaher Bano did not give the name of assailant. He informed complainant Muhammad Saleh and Bahadur about the incident. In these circumstances we feel doubtful about the presence of complainant Muhammad Saleh at the spot at the time of incident.

13. Retracted judicial confession, as it is, does not mention presence of complainant Muhammad Saleh at the spot at the time of incident. Confessional statement is assailed on many grounds. It is stated that this statement is not consistent with prosecution case on all material particulars. It does not mention presence of male eye‑witnesses namely Muhammad Saleh and Bahadur at the time of incident, while the prose cution case is that incident was seen by three eye‑witnesses. In the confessional statement, it is stated that complainant Muhammad Saleh and his uncle Menhoon had abducted deceased Zareena, while the prosecution case is that Mst. Zareena voluntarily eloped with Muhammad Saleh. Furthermore, confessional statement is very short and does not cover all the aspects of the prosecution case. From the reading of confessional statement it appears that it is not voluntary and' truthful but is tutored. If the confessional statement is taken for consideration, as such, to be made basis for conviction then, there is nothing on the record to corroborate it in material particulars. So far recovery of pistol is concerned, it is the case of the prosecution that no crime empty was found at the spot but crime empty was already in the chamber of country‑made pistol which was recovered at the pointation of the appellant after he was arrested. This piece of evidence is also open to serious criticism. When the crime empty was already in the chamber of the pistol, there was no point in sending it to the Ballistic Expert for the reason that in such circumstances it could not be said with judicial certainty that the pistol was used in the commission of offence. In the above‑said circumstances recovery of pistol has no corroborative value. Reference can be made to the case of Ch. Zafar‑ul -Haq and another v. The State P L D 1968 Lah.437.

14. In any case in the instant case the recovery of crime weapon has other additional setbacks. Recovery of pistol was made at the pointation of appellant before he made the confessional statement. Appellant was arrested on 19‑3‑1982 and on the same day recovery was made after arrest at I1‑30 a.m. At the pointation of appellant pistol was recovered from Khaber tree in the graveyard of Ismail Shah. Police found crime empty in the chamber of pistol and made two parcels one containing pistol and the other containing empty cartridge. In spite of the fact that after the recovery of pistol, appellant made judicial con fession on the next day but still no mention is made in the confession that he led to the recovery of pistol from under Khaber tree in the graveyard of Ismail Shah and further no mention is made that crime empty was in the chamber of pistol. It is stated in the confessional statement by the appellant that he went to Nawabshah where he stayed with his friend by name Imam Bux Khaskheli who advised him to appear before the Police then he came to Tando Adam by train and was arrested by the Police at the railway station. This shows that extra‑judicial confession must have been made by the appellant before Imam Bux Khaskheli and no attempt was made by the prosecution to confirm this fact and there is nothing in the record to show that any attempt was made to record the statement of Imam Bux. This could have been very good confirmatory circumstance an. the chance was not availed of by the prosecution.

15. Now remains only two pieces of evidence. Medical evidence can be used as corroboration only to show that injuries were inflicted with what weapon. This evidence cannot be used as corroboration qua accused because it does not show that such and such accused has caused those injuries to the deceased. This leaves only evidence of motive which in the instant case comes from the same complainant who is a tainted source. Evidence of motive is on the ground that after the elopement there was Nikah between complainant and the deceased after which there was a "Faisla" which was given by Nekmard of community Haji Haroon Panhwar. According to amicable settlement complainant had to give his two nieces who were engaged with Babu and Abdul Ghafoor, who are "Salas" of Bahadur and brothers of appellant. Complainant has stated in his evidence that these betrothals took place on Holy Qur'an after which there was perfect reconciliation between the parties and he and his wife were wellcome at the house of her parents. Complainant has further stated in his evidence that appellant Muhammad Ismail was not available at the time of first "Faisla" at Thatta but he was present at the time of final settlement at Tando Adam. He has further stated that parents of deceased and Muhammad Ismail were present at the time of betrothal of his nieces with Abdul Ghafoor and Babu. In such circums tances it can be said that appellant could not possibly have any grudge against the complainant and the deceased because there was final settlement between the parties and two nieces of complainant were engaged with brothers of appellant. Strangely the "Faisla" by Haji Haroon and betrothal of nieces of complainant with brothers of appellant are not mentioned in the confessional statement. Secondly Haji Haroon has not been examined by the prosecution. Learned counsel for the appellant has contended that motive originally set up by prosecution is not estab lished as such the prosecution must suffer the consequence and not the defence. Reliance is placed on the case of Hakim Ali and 4 others v. The State 1971 S C M R 432.

In the circumstances and for the facts and reasons mentioned above, after the assessment of evidence produced before the trial Court, we are of the view that all pieces of evidence produced by the prosecution are tainted hence one tainted piece of evidence cannot corroborate another tainted piece of evidence. Mr. Imam Bux for A.‑G. for State also has not supported the impugned judgment. In the result we hold that prosecution has failed in its primary duty to establish the guilt of appellant beyond doubt. We, therefore, give benefit of doubt to the appellant and acquit him. Conviction and sentence are set aside and in the result appeal is allowed. Reference for confirmation of death sentence is hereby rejected. Appellant may be set free at once if not wanted in any other case.

M. A. K. Appeal allowed.