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Jail Petition No. 15‑R of 1984, decided on 28th October, 1985.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Question whether evidence of motive, Wajtakkar witnesses and extra‑judicial confession of co‑accused sufficient to sustain conviction of accused on capital charge‑ Important aspect of case that extra‑judicial confession made by co‑accused was retracted escaping notice of High Court while maintaining conviction‑‑Retracted extra‑judicial confession also not direct evidence of commission of offence‑‑Leave to appeal granted to consider question whether evidence produced by prosecution sufficiently corroborated retracted confession of co‑accused in material particulars to be made foundation of conviction of accused.

‑‑‑Ss. 302134‑‑Retracted extra‑judicial confession of co‑accused alone unless corroborated in material particulars, held, was not 'to be made a base for conviction‑‑[Confession].

‑Ata Muhammad deceased in this case was the husband of Mst. Bhag Bhari. The case of the prosecution is that she developed illicit liaison with petitioner which came in the knowledge of the deceased. The deceased is said to have objected to this strongly preventing the petitioner from visiting his Dera.

2. On 27th December, 1980, Mst. Bhag Bhari started crying in the middle of the night and proclaimed that deceased had died a natural death owing to illness. However, when the body of the deceased was taken to his ancestral village the witnesses, on seeing the body found some marks of violence on the deceased and suspected foul play. On questioning Mst. Bhag Bhari is said to have made an extra‑judicial confession in presence of Muhammad Hayat, P.W., that by virtue of a plan she and the petitioner, who was her paramour, committed the murder of the deceased. According to this extra‑judicial confession, the petitioner came and waited outside the house of deceased, and when he went to sleep, Mst. Bhag Bhari called him (the petitioner) inside and while she held the deceased by his legs, the petitioner throttled him and killed him.

4. On the motive, i.e. that petitioner and Mst. Bhagh Bari were on illicit terms the prosecution produced Sardar P.W., the father of the latter. Reliance was also placed on the testimony of two Wajtakkar witnesses, namely, Muhammad Nawaz (P.W.) and Ata Muhammad P.W., who testified that they met the petitioner during the night of the occurrence and he told them that the deceased was ill and he was coming from his house. Reliance was also placed on extra‑judicial confession of the petitioner before witnesses.

5. The trial Court convicted both accused and sentenced them to life imprisonment, besides fine. Mst. Bhagh Bari did not challenge her conviction. However, the petitioner appealed but his appeal has been dismissed by a learned Single Judge of the Lahore High Court, vide judgment, dated 8th July, 1984. The petitioner now seeks leave to appeal from jail.

6. In upholding the conviction of the petitioner the High Court, while rejecting the extra‑judicial confession of the petitioner, has relied on the evidence of motive, Wajtakkar witnesses and extra‑judicial confession of the co‑accused Mst. Bhagh Bhari. The important question that arises for consideration is whether this evidence is sufficient to sustain the conviction of the petitioner on a capital charge. The evidence of Sardar, P.W. is to the effect that Mst. Bhagh Bhari and the petitioner were carrying on illicit relations and that in his presence the deceased had asked the petitioner not to visit his Dera. An important aspect of this case which seems to have escaped the notice of the High Court is that the extra‑judicial confession made by the co‑accused was retracted. Mst. Bhagh Bhari pleaded her innocence at the trial. The Wajtakkar evidence and the fact that there was illicit liaison between Mst. Bhag Bhari and the petitioner can at best qualify as corroborative evidence. The retracted extra‑judicial confession is also not direct evidence of the commission of offence. 'The rule is well laid down that unless retracted extra‑judicial confession of the co‑accused is corroborated material particulars it is not prudent to base conviction in a criminal case on its strength alone. There is no direct ocular testimony implicating the petitioner in this case and, therefore, the question is whether the evidence produced by the prosecution sufficiently corroborates the retracted confession of the co‑accused in material particulars to be made the foundation of the conviction of the petitioner. I am, therefore, of the opinion that the leave may be granted in this case.

I agree.

M.Y.H. Leave granted.

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