Present: Salem Akhtar, Zia Mehmood Mirza and Fazal Karim, HBAHADUR

' SALEEM AKHTAR, J.--The appellant has challenged the judgment of the learned Judges of Division Bench of the High Court, by which appeal filed by him against the judgment of the learned Sessions Judge was dismissed and the death sentence awarded to him was confirmed.

2. One Bacha son of Mangal lodged First Information Report on 24-7-1989 alleging that on 17-7- 1989 Bahadur Khan resident of Dabbi Mar Thana Augi came to his house at Camp No,6 to purchase mule. The bargain was struck with him for Rs,8,000 but as Bahadur Khan had no money, he suggested to the deceased to accompany him alongwith the mule to his house in village Dabbi Mar where he would pay him the price of the mule. The complainant's brother Waris Khan brought a Datsun on which the mule was loaded and he alongwith Bahadur, the appellant, started for his house and told him that he would return after taking the sale price. Waris Khan did not return in the night and therefore Bacha alongwith his four relations went to Augi to search for his brother. In this process they reached Manchora and there they found the mule in possession of Toor Gul whom he told that this was his mule. Toor Gul informed him that he had purchased the mule from one Aurangzeb. The complainant with the persons accompanying him went to the house of Aurangzeb who told them that he had purchased this mule from Bahadur Khan resident of Dabbi Mar. The complainant reported to Augi Thana where the mule was kept. He also complained that his brother Waris Khan has not been found out after hectic search. His brother Waris Khan had gone with Bahadur Khan to Dabbi Mar and since then nothing was known about him. On the basis of this report, investigation was started and when the police party alongwith the complainant, Jamshed Anwar P.W.4 and Moosa Khan reached the house of the appellant he tried to run away but was apprehended. He was arrested and he admitted his guilt. He made the following confession before the Magistrate:-- "On 17-7-1989 I came to Khaki Bazar and came to know that one person namely Bacha and Afghan Refugee wanted to sell a mule. I proceeded to his home at Camp No,6 and had purchased a mule in lieu of Rs,8,000 to Bacha. I had taken the mule to Oghi, where I had sold the mule in lieu of Rs,10,000 in favour of Aurangzeb Shah of Manawal. He had paid me a cash of Rs,5,000 and promised to pay the remaining amount within period of 20 days.

' Waris brother of Bacha accompanied me for receiving the amount of mule. I alongwith Waris Khan stayed for night in the house of Aurangzeb Shah of Manawal. We came back from Manawal

(Oghi) on 18-7-1989. We alighted from the bus at Susal Gali. I alongwith Waris deceased proceeded towards the forest. When we reached at the place known as Matta, Waris Khan deceased asked me to'pay him a sum of Rs,8,000 'as cost of the mule. Waris Khan also wanted to purchase a donkey for himself. Waris Khan deceased again demanded the entire amount of the mule but I told him that he should get a sum of Rs,5,000 which I received from Aurangzeb Shah, while the remaining amount will be paid later on. Waris Khan deceased did not agree with me and pelted stone upon my head and I sustained injury on my head. Waris Khan wanted to pelt another stone but I gave axe blow upon his neck as a result of which he fled down there. The deceased Waris Khan expired there. I had given an axe blow on the neck of Waris Khan deceased as a result of which he succumbed there. As a matter of fact the altercation took place upon the payment of cost of mule. The deceased wanted to pelt stone upon me but in return I had given an axe blow upon his neck as a result of which he succumbed there. The dead body and the axe were recovered by the police at my instance and pointation."

3. Later during the proceedings the appellant retracted from this confession. However, the learned trial Court convicted and sentenced him to death. In appeal the death sentence was confirmed.

The learned Judges relying upon the confession also observed that there was corroborative evidence, viz. Recovery of Chappal, the dead body and the hatched at the instance of the accused, deceased was last seen with the appellant, statement of P.W.4 for recovery and also the statements of Aurangzeb Shah and Bacha son of Mangal which were sufficient to confirm the death sentence,

4. Leave was granted to consider the contention of the learned counsel for the appellant that if the Courts below would have considered the retracted confession of the appellant as a whole, the appellant would not have been awarded the death penalty in the case. The learned counsel for the appellant has contended that the confession was retracted and, therefore, in order to convict the appellant, there should has been corroboration and further that the confession should have been read as a whole and reliance should not have been placed merely on the inculpatory part and ignoring the other portion.

5. From the confession it is clear that while admitting the murder of Waris Khan it has been stated that as the deceased was not agreeable to take part of the money and the rest at a later date he started pelting stone upon his head and he sustained injury. As he apprehended that he would further injure him he gave an axe blow on his neck. Therefore, this part of the story should also be taken into consideration while relying on the confession of the appellant. Admittedly appellant has retracted from his confession should be accepted only if it is corroborated by clear cogent and independent evidence. Although there is no such provision to accept retracted confession on this basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reason given for retracting is palpably false, absurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek some corroboration for retracted confession. The corroboration of such confession should be of material particulars, connecting the acc1ised with the offence. In Naqibullah and another v. The State (FLD 1978 Supreme Court 21) referred by the learned counsel for the appellant, the law relating to confession has been elucidated in an authentic and authoritative manner, with reference to several judgments of this Court and foreign Courts. While referring to State v. Minhun alias Gul Hassan (PLD 1964 SC 813), it was observed:-- "They both retracted from their confessions at the earliest opportunity in their respective statements recorded by the Committing Magistrate as well as in the Sessions Court. In State v.

Minhun alias Gul Hassan this Court observed that 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 is 'true and voluntary' and was not obtained by torture or coercion or inducement. In the opinion of the Court the question, however, as to whether in the facts and circumstances of a given case the Court should not act upon such a confession alone is an entirely a different question which related to the weight evidentially value of the confession and not to its admissibility in law. In that connection this Court further remarked that:-- `As observed even by Munk, CJ. In his commentary on the Law of Evidence at page 168 (Volume 1) it is sk-tled 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 circumstance and satisfy itself fully that the confession cannot but be true'."

6. Applying these principles on the facts of the case we find that the occurrence was not seen by any witness. It entirely depends upon the evidence of the deceased last seen with the appellant, the sale of mule to Aurangzeb Khan and Toor Gul, recovery of hatchet, dead body and Chappal of the deceased at the pointation of the appellant in a desolate jungle. These corroborative pieces of evidence support the confessional statement though retracted. However, recognized well-principle is that confession has to be read as a whole and not by relying only on the inculpatory part of the statement. If the entire statement is to be read as a whole and if it is to be taken as correct it creates an impression that on payment of sale price of the mule there seems to have occurred some dispute and altercation between the parties. Both of them were alone in the forest and the deceased must have felt aggrieved by the fact that the appellant having bargained from his brother had sold the mule at a higher price and had not been paying him even the full price which he was entitled to have. In these circumstances according to his statement the deceased attacked the appellant by pelting stone on him and in order to save himself he attacked him with axe and hit at his neck causing death. It also seems from his statement that he had not planned or premeditated the murder of Waris Khan. In these circumstances we dismiss the appeal but convert the death sentence into life imprisonment.