IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
MR. JUSTICE DOST MUHAMMAD KHAN  
MR. JUSTICE QAZI FAEZ ISA 
MR. JUSTICE FAISAL ARAB 
 
 
Criminal  Appeal  No.  430  of  2011 
(On appeal from the judgment dated 10.5.2011 
passed by the Lahore High Court, Lahore, 
Multan Bench in Criminal Appeal No.66/08) 
 
Muhammad Ismail 
 
 
 
 
… Petitioner(s) 
VERSUS 
The State  
 
 
 
 
 
… Respondent(s) 
 
For the petitioner(s): 
Dr. Farhat Zafar, ASC 
 
For the State: 
 
Ch. Zubair Ahmed Farooq, Addl. P.G. Pb. 
 
Date of hearing:  
30.1.2017 
 
 
ORDER 
 
 
  
Dost Muhammad Khan, J.— Charged for the murder of 
his own brother Liaqat, the appellant, Muhammad Ismail, faced trial 
and at the conclusion of that, the learned Sessions Judge, Rajanpur, 
vide judgment dated 9.6.2005, upon conviction, sentenced the 
appellant to death u/s 302(b) PPC and also to pay Rs.50,000/- as 
compensation, to the legal heirs of the deceased u/s 544-A Crl.P.C.  
2. 
  
The appellant challenged his conviction and sentence in 
Crl.A. No.66/08, while the Trial Court sent Murder Reference 
No.343/05 for confirmation of the sentence. Both were decided vide 
impugned judgment dated 10.5.2011, hence this appeal from Jail, with 
the leave of the Court dated 17.11.2011, to see whether there was 
any mitigating circumstance to consider the reduction of the sentence.  
Crl. Appeal No.430 of 2011 
2 
 
We have heard Dr. Farhat Zafar, learned ASC for the appellant, 
appointed on State expenses and Ch. Zubair Ahmed Farooq, learned 
Additional Prosecutor General, Punjab. 
3. 
  
In brief, the prosecution case against the appellant is that, 
the complainant Mst. Bachi Mai, alongwith her deceased husband 
Liaqat, was present in their house when, the appellant alongwith 
acquitted co-accused (son) entered there and inflicted blows with 
hatchet on the head, beneath the armpit and ear of the deceased. The 
complainant raised hue and cries, which attracted Samar (PW-7) and 
Salam (not produced), who witnessed the crime.  
Motive for the crime was that, the appellant demanded the hand 
of the daughter of the deceased, namely, Mst. Ashraf, for his maternal 
uncle’s son, which was refused by the deceased. 
4. 
  
When the formal charge was framed by the Trial Court, the 
appellant did not plead guilty to the same and claimed trial. During the 
trial, besides other PWs, the complainant Mst. Bachi Mai (PW-6) and 
Samar (PW-7) appeared. The crime report was made during the transit 
to the Police Station by the complainant, a common pattern of the 
Police, the Court has disapproved; anyhow, we have to see, as to 
whether the prosecution has been able to bring charge home to the 
appellant or not, and to what extent? 
5. 
  
Although Mst. Bachi Mai (PW-6) has made some 
improvements 
at 
the 
trial 
but 
otherwise, 
she 
has 
given 
a 
straightforward statement, consistent with the facts on record and 
being the inmate of the same house, her entire testimony cannot be 
discarded for that reason alone. 
Crl. Appeal No.430 of 2011 
3 
6. 
  
So far as the testimony of Samar (PW-7) is concerned, we 
have some reservations about his witnessing the crime because he 
was attracted to the crime house on the outcry of the complainant. His 
house is at some distance and being a cultivator by profession, he was 
supposed to be present in his fields, otherwise too, he has given 
inconsistent statement. The appellant was living in the adjacent house 
to that of the deceased, the partition wall was of a little height. He 
scaled over the wall and in quick succession inflicted blows, which 
might have consumed hardly 3/4 minutes, at the most and if the two 
witnesses including Samar (PW-7) had reached there, they would have 
caught hold of the appellant but they did nothing and only witnessed 
the crime. The way and manners, this witness has painted the picture 
of the crime, bespeaks a lot that he was not at all the witness of the 
crime, however, the testimony given on oath by the complainant, the 
widow of the deceased, is so firm and reliable that it cannot be 
doubted in any manner, to the extent of witnessing the crime. 
7. 
  
Both, the Trial Court and the learned Judges of the High 
Court, have heavily relied upon the so called confession of the 
appellant, which is not at all a confession under the law but an 
admission of guilt. Both the Courts conveniently ignored that the 
appellant, in the first instance, denied the formal charge and pleaded 
innocence, therefore, they should have probed into the mind of the 
appellant, as to what prompted him to make such an admission at a 
belated stage. We will discuss it in the latter part of the judgment. 
8. 
  
The most striking feature in the case, is the motive part of 
the incident and to that extent, we have no hesitation to hold that 
Crl. Appeal No.430 of 2011 
4 
except the mere bald statement of the complainant, Mst. Bachi Mai 
(PW-6), no other evidence was furnished by the prosecution to 
establish the same, in a reasonable manner. In the statement of the 
appellant, recorded u/s 342 Cr.P.C., in reply to a question with regard 
to the motive, the appellant stated as follows:- 
 
“(Q-No.3). I do not want to discuss the motive.” 
9. 
  
The reluctance of the appellant to disclose the true motive, 
indeed, was sufficient whispering into judicial mind, to be alerted. The 
appellant has shown allegorically his typical rustic character of dignity, 
not to go for washing a dirty linen in public, at the cost of his own life. 
The appellant has apparently muffled, what was probably going 
seriously wrong in the family of the deceased, having a young virgin 
daughter of vulnerable age and the complainant, his wife too, was of 
the age of 28. Probably the appellant decided to withhold the true 
motive for the sake of family honour, a typical characteristic of dignity 
and virtues, still possessed by the rustic countrymen of our rural 
society. It was for the judicial mind to have correctly perceived what 
was not expressly conveyed to it, but much was silently hinted upon. 
These hints convey a bulk of pains, the appellant had absorbed in the 
past. When this agony became unbearable to sustain, sufficient to 
cause extreme annoyance to the appellant where, human blood starts 
boiling, and the sentiments of anger fly so high, leaving little to re-
take its seat. The legitimate inference thus, would be that some 
detestable affairs in the family of the deceased were prevailing, 
rendering the appellant unable to bear the stigma/blot on the 
escutcheon (family honour). The rustic and conservative mind, a 
Crl. Appeal No.430 of 2011 
5 
distinct feature of our rural society, is always susceptible to drive away 
a person to a point, retrieval wherefrom, becomes impossible.   
 
Unfortunately, the learned Judges of the High Court and the 
Trial Court, both, could not read between the lines, the silent 
message conveyed to them, was conveniently ignored. In the 
case of Syed Ali Beopari v. Nibaran Mollah and others (PLD 
1962 SC 502) the learned Courts below were under legal obligation 
by acting on the third probable theory as has been firmly held in the 
case of Zahid Parvez v. The State (PLD 1991 SC 558).  
10. 
  
The 
above 
conceivable 
inference 
apart, 
once 
the 
prosecution sets up a particular motive but fails to prove the same, 
then, ordinarily capital sentence of death is not awarded, which is a 
consistent view of the Courts since long. Probably, it was in the 
backdrop of the real motive, not disclosed clearly by the appellant and 
the prosecution both that, father of the appellant, namely, Allah 
Wasaya, aged 70 years recorded his statement on 26.5.2005, in the 
Trial Court stating on oath that he had waived off his right of Qisas 
and Diyat both. The Courts below rightly held that this singular 
statement of the father was not sufficient for acquittal of the appellant 
but conveniently ignored that the same was certainly having bearings 
on the quantum of sentence.  
11. 
  
There is a considerable different between confession and 
admission. The former is regulated by Articles 42 and 43 in 
particular, of Qanun-e-Shahadat Order, 1984. 
  
The Trial Court recorded the statement of the appellant on oath 
u/s 340(2) Cr.P.C. and he re-affirmed his admission made in his 
Crl. Appeal No.430 of 2011 
6 
statement u/s 342 Cr.P.C. about his guilt, although he never opted for 
to record such statement. The two learned Courts below also could not 
perceive the correct legal position that, confession of accused as they 
have held it to be, if is recorded on oath, becomes absolutely 
inadmissible in evidence and for this reason alone, the same can be 
discarded.  
 
For recording of confession, whether by a Magistrate or the Trial 
Court, the procedure laid down under the High Court Rules and 
Orders and the safeguards provided u/s 364 Cr.P.C. have to be 
essentially followed.  
 
12. 
  
True, that u/s 265-E Cr.P.C the Trial Court in a session 
case, has a discretion to record the plea of the accused and if he 
pleads guilty to the charge, it may convict him in its discretion. 
Nevertheless, it is also provided in S.265-F Cr.P.C. that if the Trial 
Court does not convict him on his plea of guilt, it shall proceed to hear 
the complainant (if any) and take all such evidence as may be 
produced in support of the prosecution. This discretion is to be 
exercised with extra care and caution, and ordinarily on such 
admission, awarding capital sentence of death shall be avoided and to 
prove the guilt of an accused, evidence of the complainant or the 
prosecution has to be recorded, in the interest of safe administration 
of justice.  
 
The most important factors and required standards of confession 
may be cited below:- 
 
“It should be ensured, 
Crl. Appeal No.430 of 2011 
7 
(i) 
that the accused is in full senses and understands the 
consequences of making a confession; 
(ii) 
that, the confession was not a result of any duress, coercion or 
any promise by the prosecution, to be made an approver; 
(iii) 
that, during transit of the accused by the police from and to the 
Trial Court from the prison, on each “Paishi” no threat or 
pressure was applied by the escorting police guard or incharge 
thereof; 
(iv) 
what were the actual facts, which induced the accused to confess 
after facing trial, during which he pleaded innocence all the way; 
(v) 
the court recording the confession has to ensure that the mental 
capacity of the accused is not diminished due to any illness and if 
some indication of abnormality is suspected by the Court, it is 
better to refer the accused to the Standing Medical Board to 
ascertain the true cause thereof; 
(vi) 
While recording the confession, the same safeguards and 
precautions be adopted, by directing the Public Prosecutor, the 
complainant’s counsel, the Naib Court and all other officials to 
leave the Court. If need be, the counsel who represents him, 
may be given an opportunity to be present inside the Court 
during the whole process, if the accused person, on asking by the 
Trial Judge, so demands; 
(vii) 
the handcuffs of the accused be removed and he be provided a 
chair on the dais. He may be given some time to think over the 
making of the confession and in that regard particular questions 
be put to him, as to why he was making the confession when he 
has already pleaded innocence and claimed trial at the time, the 
formal charge was framed; 
(viii) the Trial Judge shall explain to the accused that, in case of 
making confession, he has to face a capital sentence in a murder 
case or any offence punishable with death; 
(ix) 
the entire record of all the questions and answers recorded, be 
properly maintained and thereafter, a proper certificate be 
appended thereto, showing the satisfaction of the Trial Judge that 
the accused person was not mentally sick and he was making the 
confession voluntarily, based on true facts and that, there was no 
other compelling reason behind that.  
Crl. Appeal No.430 of 2011 
8 
 
 
As the above procedure was not adopted, therefore, it was 
incorrectly construed by the Courts below as confession of the 
accused. Under the law, it may be treated as an admission of the 
appellant, however, on the basis of admission alone, accused person 
cannot be awarded a capital punishment because admission, as has 
been defined by Article 30 of the Qanun-e-Shahadat Order, 1984, 
is only a relevant fact and not a proof by itself, as has been envisaged 
in Article 43 of the Order, 1984, where a proved, voluntary and true 
confession alone is held to be a proof against the maker therefore, 
both the Courts below have fallen in error by treating this halfway 
admission to be a confession of guilt on the part of the appellant.  
13. 
  
It is a bedrock principle of law that, once a Statute or rule 
directs that a particular act must be performed and shall be construed 
in a particular way then, acting contrary to that is impliedly prohibited. 
That means, doing of something contrary to the requirements of law 
and rules, is impliedly prohibited. Therefore, it is held that the 
admission of the appellant cannot be a substitute for a true and 
voluntary confession, recorded after adopting a due process of law 
and it cannot be made the sole basis of conviction on a capital charge.  
14. 
  
At the same time, we are not supposed to make a 
departure from the principle of law, consistently laid down that 
testimony of a solitary witness, if rings true, found reliable and is 
also corroborated by some other evidence as well then, it can be made 
basis for conviction on capital charge. As has been discussed above 
that, Mst. Bachi Mai (PW-6) was the inmate of the same house, being 
the widow of the deceased, her presence at the fateful time, cannot be 
Crl. Appeal No.430 of 2011 
9 
doubted on any premises whatsoever. Thus, her testimony is sufficient 
for conviction of the appellant because the same is supported by the 
recovery of the crime weapons on the spot, stained with the human 
blood; besides, the medical evidence provides ample support to the 
same.  
15. 
  
Judged and considered from all angles, we are of the 
considered view that on the basis of evidence, recorded at the trial, 
the appellant was rightly convicted u/s 302(b) PPC however, his capital 
sentence of death awarded, was not justified in law in view of the 
peculiar facts and circumstances of the case. 
 
These are the detailed reasons for our short order of even date, 
which is reproduced as under:-  
“For the reasons to be recorded later, this appeal is partly 
allowed. The conviction of the appellant u/s 302 PPC is 
maintained, however, his death sentence is reduced to 
life imprisonment with benefit of S.382-B Cr.P.C. along 
with compensation awarded by the Trial Court and in 
default thereof he shall further undergo six months S.I.” 
 
 
Judge  
 
Judge  
 
Judge  
Islamabad, the  
30th January, 2017 
Nisar /- 
 
 
Approved For Reporting. 
