1999 PLP 2028 (SCMR)

NASIR ASLAM ZAHID, J.

The above appeal, by leave of this Court, is directed against the judgment, dated 11 - 10- 1994, of the Lahore High Court whereby the appeal of the appellants/convicts, Zafar son of Tanvir and Muhammad Nawaz son of Ameer was dismissed and the death sentences awarded to both the appellants were confirmed, Leave has been granted to the appellants only on the question of sentence, Leave granting order, dated 31-7-1995 reads as under:... "For murder of Suleman on 16-3-1991 at 5-00 p,m., at Khokhar Colony, in presence of Umar Draz (P.W.7), and Sarfraz (P.W,9) by deadly weapons petitioners Zafar and Muhammad Nawaz were convicted for offence under section 302(a), P,P.C. and sentenced to death, fine and compensation by the learned Sessions Judge, Jhang on 12-8-1991. Their appeal was dismissed by the Lahore High Court, Lahore, on 11-10- 1994 and their 'death sentences were confirmed. (2) They have approached this Court and sought for leave to appeal. (3) On 25-6-1995 a three Members Bench of this Court passed order in the words as under:

'Notice to the Advocate-General Punjab, as to why leave to appeal should not be granted to the petitioners on the question why the conviction of the petitioners be not, altered to one, under section 302(b), P.P.C., Obviously the Larger Bench had declined to hear petition on merits. (4) We have heard Sardar Muhammad Latif Khan Khosa, the learned counsel for the petitioners and the counsel on behalf of the Advocate- General Punjab. We too do not find the petitioners have any case on merits. This was the view taken by the three Members Bench of this Court on 25-6-1995. We as such are not inclined to grant leave to appeal to the petitioners on merits. Their such request is declined. However, we are inclined to grant leave to appeal to the petitioners to consider whether their conviction from section 302(a), P.P.C. be altered to section 302(b) and what sentence be awarded to them. Leave to appeal is granted accordingly. We have heard at length the arguments of Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for the appellants, and Mr. Ainul Haq, learned Advocate Supreme Court for & State, and, with the assistance of the teamed counsel, referred to the relevant record.

2. For the proposition that appellants could not be convicted under section 302(a), P.P.C., as the requirements of Hadd punishment were not fulfilled in this case, learned counsel for the appellants referred to Article 17 of the Qanun-e-Shahadat, 1984 and also relied upon the judgment of this Court in the case of Sojhro Khan v. Ghulam Murtaza (1993 SCMR 87) and a judgment of the Sindh High Court in the case of Ghulam Murtaza v. State (PLD 1989 Kar, 293). In PLD 1989 Kar. 293, It was held that, in a case of murder to award death sentence i.e. life for life (Qisas retaliation), It is necessary under the Qur'an and Sunnah that two adult male witnesses of unquestioned integrity be produced in evidence for proof of the offence. In Sojhro Khan v. Ghulam Murtaza (supra) this Court, while commenting upon the judgment of the High Court impugned in that case where it was inter alia held that the evidence of the two eye-witnesses produced by the prosecution was not satisfactory had given the reason that for a case of murder in which death sentence could be imposed by way of Qisas as required under Qur'an and Sunnah, evidence of two adult male witnesses of unquestioned integrity be produced and in support reference was made to verses from the Holy Qur'an, observed that Article 17 of the Qanun-e-Shahadat, 1984, envisaged this requirement as essential in a case of murder liable to Hadd and not liable to Ta'azir and the case under appeal was tried under the ordinary law.

3. On the question of sentence, the following points were raised for making out a case that the appropriate and legal sentence for the appellants was life imprisonment and not death:

(a) The complainant party and appellants are related to each other (b) There was no previous enmity. (c) The appellants had no criminal antecedents (d) No reason had been given by the Trial Court or by the High Court for awarding the death sentence. (e) The two appellants had only fired once from their respective fire-arms and the fire was not repeated by either. (f) Both the appellants were young. (g) The two young appellants, who are cousins, acted under the influence of Zafar's father. (h) The appellants had reacted to the beating given by deceased Suleman to his brother-in-law Dilmeer (father of appellant Zafar) 7/8 days prior to the occurrence and in this background, action of the appellants does not call for capital punishment. (i) Two persons should not be awarded death sentence for murder of one victim and only the accused responsible for causing the death of the victim could perhaps be given the maximum punishment.

4. In support of his contentions on the question of sentence, Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for the appellants, referred to the following reported judgments:

(i) Iftikhar v. State (1994 PCr.LJ 1933). In this case the trial Court had awarded life imprisonment to the accused on a murder charge. The High Court dismissed the appeal of the convict against his conviction and also dismissed the revision petition filed by the complainant for enhancement of the sentence. A learned single Judge of the High Court did not find it a case for enhancement of the sentence observing that, immediately prior to the murder, father of the convict was belaboured by the complainant and his sons and hence there was justification for the Trial Court to withhold the capital sentence. There are two distinguishing features in the case. The first being that, immediately prior to the murder, father of the convict had been belaboured by the compl4inant and his sons and, secondly, the High Court was not inclined to interfere in the facts and circumstances of that case with a sentence which could legally be awarded by the Trial Court. (ii) Zahid v. State (199 PCr.LJ 2000). In this case, sentence of death awarded by the trial Court was altered to life imprisonment on a murder charge where it had been argued that the appellant, a young man of 25/26, acted under influence of his uncle and had fired a single shot at the deceased deserved leniency. A Division Bench of the Lahore High Court after holding that the case against the appellant had been established beyond any reasonable doubt and his conviction under section 302, P.P.C., was unexceptionable, considering that there was no serious enmity between the parties and the appellant being a young man having failed to pocket insult of his uncle fired a single shot at the deceased reduced the sentence to life imprisonment holding the facts as mitigating circumstances. On going through the report of this judgment, it has been noticed that, one day prior to the murder, son of the complainant and another person had a fight with appellant Zahid, his uncle Nazir and another person and the reason for the fight was that a few days earlier son of the complainant had given kicks and fist blows to appellant Zahid. Then on the day of occurrence at 7-30 a.m. deceased Abdul Khaliq alongwith his brother were waiting for a bus when Nazir (uncle of the accused Zahid) came there who was given kick blows by deceased Abdul Khaliq and his brother for the reason that previously he had given a beating to their brother and then the murder incident took place in the evening the same day when appellant Zahid fired at the deceased after raising a Lalkara to teach a lesson for giving beating to his uncle Nazir. The distinguished features in this case are that physical fights as well as exchange of abuses between the parties had taken place before the murder. (iii) Abdus Sattar v. State (1984) SCMR 832). In this, case, appellant was the younger brother of one Fazal-ul-Qadir and both of them were convicted and sentenced to death for murder of the deceased who had given slaps to appellant Abdus Sattar in the village panchayat' at about 9-00 a.m. on the day of the murder and, at 'peshiwela' the same day, appellant Abdus Sattar and his brother Fazal-ul-Qadir committed the murder. Both the brothers were convicted for the murder and sentenced to death, but the High Court, maintaining the conviction, reduced the sentence only of Fazal-ul-Qadir as he had used the blunt side of the 'Datar' and had no direct motive. In appeal this Court held that, in the circumstances, where appellant had been slapped twice by the deceased, who was an adversary in the dispute before the village 'panchayat' and the High Court had held such action on the part of the deceased as provocation, the benefit of the provocation ought to have been given to the appellant particularly when such benefit had been extended to his elder brother. Distinguishing features are evident. (iv) Muhammad v. State (1993 PCr.LJ 2L88). In this case the accused, a person of 65 years of age, had been awarded death sentence for a murder, but a Division Bench of the Lahore High Court altered the sentence to life imprisonment on the ground of his age and for the reason that, according to the prosecution case, deceased had given slap to his daughter a few days prior to the occurrence. The facts are clearly distinguishable from the facts of the present case. (v) Sohail Iqbal v. State (1993 SCMR 2377). In this case, leave had been granted by this Court only on the question of sentence and, from the record, three different ages of the appellant/convict appeared. From the date of birth appearing in some record, his age at the time of occurrence was shown as over 21 years; trial Court had recorded hi age by appearance as 16/17 years when his statement under section 340, Cr.P.C., was recorded, while his age was recorded as 16 years when his statement under section 342, Cr.P.C. was recorded. In view of the said discrepancy in the age of the appellant, it was held by this Court that it was only fair that benefit of the discrepancy should be extended to him and a reference was made to an earlier judgment of this Court in the case of Javid Iqbal v. State (1982 SCMR 447). In the reported judgment, therefore, the age of the accused was taken as less than 16 years at the time the incident took place. Facts also show that immediately before the incident, in a badminton match there was exchange of hot words and grappling between the appellant and the deceased and on account of this incident the appellant was thrown out of the Hall and he straight went to his house about a few furlongs away and came armed with a gun and shot at the deceased on his left shoulder. The facts and the background with the discrepancy of age in the cited judgment show that the judgment does not support the contention of learned counsel. (vi) Nasrullah v. State ('1998 PCr.LJ 1055). In this case the sentence of death awarded to the appellant was altered to life imprisonment -by the Lahore High Court on the ground that deceased had given shoe beating to appellant's father in the night preceding the day of the occurrence. (vii) Haider Zaman v. State (1972 SCMR 666). Here this Court altered the sentence of death awarded to the appellant to life imprisonment on the ground that there were mitigating circumstances in as much as the act of the appellant was in retaliation of the assault made on appellant's father shortly before the occurrence as a result of which the appellant's father had to be hospitalised for several days. Features of this case cannot be equated with the present case. (viii) Ghulam Abbas v. Mazhar Abbas (PLD 1991 SC W59). The judgment in this case was authored by the then Chief Justice Mr. Justice Muhammad Afzal Zullah and, in the judgment, a distinction between family honour and private revenge was highlighted. It was observed as follows:-- "As is some times thought by some Members of the Bar, there is no conflict of authority on the subject under discussion. It was explained very vividly in the case of Ajun Shah that the reduction of sentence on the question of family honour or duty can be allowed notwithstanding the fact that an element of private revenge is involved in such like cases. The ratio in all these cases being that it depends upon the circumstances of each case, to determine the very delicate balance between whether family honour and duties overtook the human thought and action and whether the private revenge predominantly overtook such thought and action. To put it otherwise it is very delicate process of making a judgment and rendering a decision on such like most painful situations. The Judge has to go through the process of rationalization, and psychological analysis. By experience and knowledge of human nature he decides a difficult point; whether the family honour or for that matter a duty ends and private revenge takes over. In one case the lesser penalty and in the other the extreme penalty is then awarded - " 5.Mr Ainul Haq learned Advocate Supreme Court for the State, opposing the arguments on behalf of the appellants, submitted that no case was made out for substitution of the capital sentence with life imprisonment as it was a pre-mediated murder. It was argued that, in the circumstances of the case, death sentence was the legal sentence which has been awarded to both the appellants and the same be maintained.

6. Here it would be appropriate to give the prosecution case which was established at the trial against the two appellants. The relevant facts are given in paras. 2, 3, and 4 of the judgment of the High Court which read as under:

"

2. Both the appellants are cousins inter se the eye-witnesses, namely, Umar Draz..-P.W.7 is son of the-deceased while Sarfraz P,W.9 is his cousin.

3. The prosecution case is that on 1&3-1991 at about 5 p.m. Umar Draz was present in his house. Sarfraz P.W.9 came here to purchase a buffalo and enquired about Suleman deceased. Umar Draz told him that his father had not yet returned from Shorkot. Sarfraz P.W. left the house of Umar Draz. The latter came out to see him off. They were still present in the Ihata of the house when Suleman deceased returned. No sooner did he come there than Zafar appellant armed with a Carbine and Muhammad Nawaz armed with 7 MM Rifle appeared there. Raising Lalkara Zafar fired from his carbine hitting the deceased on the left hip. Muhammad Nawaz also fired at the deceased hitting him on his left armpit. On receiving the injuries Suleman deceased fell on the ground. Umar Draz P.W.7, Sarfraz P.W. 9 and Yousaf P.W. took shelter in a room and came out after the departure of the appellants. Suleman died instantaneously of the injuries.

4. The motive for the offence was that some 7/8 days prior to the occurrence Suleman deceased had quarrelled with his brother-in-law Dilmeer and had beaten him. They were separated by Sarfraz P.W. Zafar appellant who is the son of Dilmeer had threatened the deceased of taking the revenge of the beating given to his father." It may be repeated that the Trial Court found both the appellants guilty of the murder of Suleman, which finding was confirmed by the High Court and in this Court also, as evident from the Leave Granting Order, dated 31-7-1995 (reproduced hereinabove), whereby the finding has been confirmed. It was observed in the Leave Granting Order that "We too do not find the petitioners have any case on merits".

7. Submission of learned counsel for the appellants was that conviction of the appellants. under section 302(a), P.P.C. was not legal and maintainable and this was a cast where conviction could only have been recorded under section 302(b), P.P.C: The charge against the appellants had been framed under section 302/34, P.P.C. but we find that conviction was recorded under section 302(a) P.P.C., which is evidently a typographical error and, as rightly submitted by the learned counsel for the appellants, the conviction should have been recorded under section 302 (b), P.P.C. This being a typographical error is corrected/altered to read as -conviction under section 302(b), P. P.C.

8. Most of the grounds advanced by Sardar Muhammad Latif Khan Kosa, learned Advocate Supreme Court for the appellants, for reduction of the sentence need not take much time for consideration. The grounds that the complainant party and appellants are related to each other; there was no previous enmity, the appellants had no criminal antecedents; no reason had been given by the trial Court or by the High Court for awarding the death sentence to the appellants and, the two appellants had only once fired from their respective fire-arms and the fires were not repeated by either have no substance in the facts of this case. The fact that the complainant party and the appellants are related to each other and there was no previous enmity and that the appellants had no criminal antecedents might have been relevant while considering merits of the case but have no relevance for reducing the sentence. As observed, the fact that the appellants, had fired at and killed deceased Suleman was proved at the trial which finding has been confirmed by the High Court and also by this Court. As regards the ground that no reasons have been given by the trial Court or by the High Court for awarding death sentence, it is sufficient to observe that the normal sentence for committing a murder is death even under Ta'zir. If, therefore, a Court awards death sentence for the offence of murder, the Court is not required to give any reason for awarding such sentence. It is only when the lesser sentence under the old law (old section 302, P.P.C.) and under the current law, as was also applicable at the time the offence in this case was committed, under section 302 (b), P.P.C. is awarded, the Court is required to record reasons for awarding such sentence. In the circumstances, we are of the view that the fact that the trial Court or the High Court did not give any reason for awarding the death sentence is no ground for altering the. sentence or for making any grievance against the award of the death sentence, a legal sentence under section 302(b), P.P.C. The next ground taken was that the two appellants only fired once from their respective fire-arms and the fire was not repeated by either. As already observed, the case against the two appellants for murdering Suleman has been established beyond reasonable doubt and the finding in this regard by the trial Court has been confirmed by the High Court as well as by' this Court. Death sentence has been awarded. Merely the fact that the two appellants had only fired once is in the facts of this case no ground for altering the sentence to life imprisonment. Another contention was that the two appellants were cousins and they acted under the influence of the father of Zafar (one of the appellants). Zafar's father was, neither an accused in the case nor he appeared as a witnesses either for the prosecution or for the defence. There is no evidence on 'record that the two appellants had acted under the influence of Zafar's father. From the evidence on record also, no inference can be drawn that the two appellants had acted under the influence of Zafar's father. Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for the appellants, had ragued with great emphasis on the ground that the appellants reacted to the beating given by deceased Sulemian to Dilmeer, father of appellant Zafar, 7/8 days prior to the occurrence and, in this background, action of the appellants does not call for capital punishment. We don't see how such a petty incident and that also having taken place 7/8 days prior to the occurrence would give the two appellants a plausible reason for committing the cold-blooded murder of Suleman. From the proved facts, it follows that the two appellants came fully prepared with fire-arms and with the intention to kill deceased Suleman. It was a premeditated callous and cold-blooded murder. It has to be kept in mind while considering such-reasons as mitigating circumstances that the principle of proportionality is not lost sight of. If a person is slapped, the aggrieved person or a -close relative of the aggrieved person does not get the right to come back after a week duly armed with the specific intention of killing and commit a cold-blooded murder. The person who had slapped him a week back cannot take a plea in the trial for reduction of sentence that this was natural reaction to the salp given to him or to his close relative a week back by the deceased. There should be at least some semblance of proportion between the injury or insult given by the deceased and the "reaction" by the accused in killing the deceased and then the question of time lag between the so-called provocation and the reaction in the form of cold-blooded murder is also relevant. There is always a distinction of degree between a fight which leads to a murder on the spur of the moment or within a short time and a case where there is considerable time lag between the so-called provocation and the so called reaction in the form of murder. In the first category of cases, perhaps it might be possible- to advance the argument that a case for lesser sentence is made out subject to proportionality between "provocation" and "reaction" but in the other category of cases without there being other mitigating circumstances, no case would be made out for awarding the lesser sentences. We find no substance in the submission of learned counsel for the appellants that the beating given by deceased Suleman to Dilmeer 7/8 days prior to the occurrence was a mitigating circumstance for altering the sentence awarded to the appellants.

9. The other submission which was also advanced with great emphasis by the learned counsel for the appellants was that the appellants were young and, therefore, it was not a case for awarding capital sentence. We also find no merit in the submission. According to learned counsel, appellant Zafar was 23 years and appellant Muhammad Nawaz was 24 years of age at the time of occurrence. The two appellants were of reasonably mature age. They cannot be described as of "tender ages". In our view, their ages at the time of occurrence is no ground for reduction or alteration of the sentence to life imprisonment. We may refer to a decision of this Court in the case of Zulfiqar v. State (1995 SCMR 1668). In that case appellant was about 15 years of age when the occurrence had taken place and he was described in the judgment as a person of tender age. In the cited judgment the plea for reduction of death sentence to life imprisonment on the ground of tender age of the appellant was not accepted, although on the other grounds the sentence was reduced. In the cited judgment reference was made to the following judgments: (a) Din Muhammad v. The State (1985 SCMR 625). (b) Abdullah v. Shaukat (1988 SCMR 370). (c) Muhammad Hanif v. The State (1994 SCMR 1152) (d) Hukamdin v. The State (1994 SCMR 2134) (e) Noor Muhammad v. The State (1988 SCMR 1640) (f)Mushtaq Ahmad v. The State (1988 SCMR 165) (g) Muhammad Siddiq v. The State (PLD 1990 SC 1079) After referring to the aforesaid judgments, it was observed as follows:-- "A perusal of all these judgments will show that while awarding sentence to a young person up to the age of 16 years, such tender age has been taken into consideration leaning towards leniency. However, the ground of tender age alone may not be the firm rule applicable in cases where the offence is heinous, premeditated, brutal and cruel. In cases where a young person of tender age commits a crime under the influence of his elders, the Courts have taken a lenient view and as a mitigating circumstances for a reduced punishment. While dealing with cases of accused of tender age, besides this fact overall circumstances of the case have to be considered. "

10. In the present case, as observed, according to the learned counsel for the appellants, Appellant Zafar was 23 years of age whereas appellant Muhammad Nawaz was 24 years of age. They cannot be described young persons of tender ages. As already noted, there is no evidence or indication that either of them acted under the influence of any elder. There is no substance in the contention that on the ground of their ages they are entitled to alteration of sentence.

11. Finally it has been submitted that the two appellants should not be awarded death sentence f6r the murder of one victim. There is no such principle in our jurisprudence. The trial Court framed the following charge against the two appellants:-- "That you (Zafar and Muhammad Nawaz accused) on 16-3-1991 at 5.90 p.m. in the area of Khokhar Colony Dhakhli Mauza Bhangoo, Police Station Shorkot, District Jhang, in furtherance of your common intention had intentionally murdered Suldman son of Mian Reehan by causing injuries by firing with Carbine and rifle with which you (Zafar and Muhammad Nawaz) were respectively armed and as such you both have committed Qatal-e-Amad and are guilty of the offence punishable under section 302/34, P.P.C. which is within the cognizance of this Court.." The trial Court held as follows:

"As a result of the above discussion I have come to the conclusion that the prosecution has been able to bring home the guilt of the accused beyond reasonable doubt having committed Qatl-e-Amd of Suleman son of Reehan in furtherance of their common intention." This finding of the trial Court has been confirmed by the High Court and also by this Court. Both the appellants carrying separate firearms came fully armed with common intention to kill the deceased. Both fired at the deceased and both the fires hit the deceased and deceased died on account of injuries received. In the facts of this case, therefore, no difference is to be made as to whose shot ultimately was the cause of death of the deceased. In the facts of this case, therefore, no concession can be extended for altering the sentence of one of the appellant.

12. It may further be added that, for the murder of Suleman, both the appellants have been held liable and sentenced to death which is a legal sentence that could be awarded to them under the law. We find no illegality or compelling reason to alter the legal sentence awarded to the appellants. In this' context reference can be made to the following reported decisions:-- (i) Abdur Rahim v. State (PLD 1960 SC 401) (ii) Shaukat Hussain v. State (1971 SCMR 132) (iii) Rustam Khan v. State (1972 SCMR 657) (iv) Ghulam Haider v. State (1980 SCMR 289)

13. The upshot of the above discussion is that this -Appeal fails and is dismissed. N.H.Q/Z-27/S Appeal dismissed 1999 S C M R 2040 [Supreme Court of Pakistan] Present: Ajmal Mian, C. J. Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ FAZAL MAHMOOD alias PAPPU

Appellant versus THE STATE

Respondent Criminal Appeal No.212 of 1995, decided on 17th March, 1999 (On appeal against the order dated 16-10-1994 of the Peshawar High Court, Peshawar in Crl. Appeal No. 112 of 1992 and M. R. No. 13 of 1992). (a) Penal Code (XLV of 1860)

Ss. 302 & 201

Constitution of Pakistan (1973), Art.185

Appraisal of evidence

Judicial confession made by accused, though retracted at the trial, stood corroborated through the statements of reliable witnesses who were related to both the accused as well as the deceased

Use of the bicycle of the deceased by the accused, visit of accused to the shop of prosecution witnesses, hiring of two Suzuki Pick-ups, pointing out the venue of occurrence, mode of murder and the disposal of the dead body, all stood amply corroborated

Accused and the deceased were related inter se and were not inimically disposed towards each other

Retracted confession if believed to be true and voluntary made could form the basis of conviction

Conviction and sentences of accused were upheld in circumstances. State v. Minhum PLD 1964 SC 813; Joygun Bibi v. State PLD 1960 SC (Pak.) 313; Subramania v. State PLD 1958 SC (Ind.) 254 and Sarwan Singh v. State PLD 1957 SC (Ind.) 555 ref. (b) Criminal Procedure Code (V of 1898)

S. 164 read with S. 364

Judicial confession

Retracted confession-- Principles for assessment. The confession of crime by a person, who has perpetrated it, is usually outcome of penitence and remorse and in normal circumstances is the best evidence against the maker, To arrive at a conclusion as to whether a retracted confession may form basis of conviction if believed to be true and voluntarily made, the Court has to take into consideration not only the reason given for making the confession or retracting, but the attending facts and circumstances surrounding the same. There can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. However, the prudence requires that by way of caution, to convict a person on the basis of retracted confession, corroboration must be sought. This, however, does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that corroboration must come from facts and circumstances discovered after confession was made. State v. Minhum PLD 1964 SC 813; Joygun Bibi v. State PLD 1960 SC (Pak.) 313; Subramania v. State PLD 1958 SC (Ind.) 254 and Sarwan Singh v. State PLD 1957 SC (Ind.) 555 ref. M. Zahoorul Haq, Senior Advocate Supreme Court for Appellant. Fateh Muhammad, Advocate Supreme Court and M.A. Qayyum Mazhar, Advocate-on-Record for the State. M. Ilyas Siddiqui, Advocate Supreme Court and M.A Zaidi Advocate-on-Record for the Complainant. Date of hearing: 17th March, 1999. JUDGMEENT SH. RIAZ AHMED, J.

This appeal through leave of this, Court is directed against the judgment and order dated 16-11-1994 whereby an appeal preferred by the appellant assailing his conviction and sentence on the charge under sections 302, 201 and 420 read with section 34, P.P.C. was dismissed and the sentence of death awarded to the appellant on the charge under section 302, P.P.C. was maintained and the reference made by the. trial- Judge under section 374, Cr.P.C. was answered in affirmative while conviction under section 201, P.P.C. was also maintained, but the conviction under section 420, P.P.C. was set aside.

2. The prosecution case against the appellant was that on the morning of 8-8-1990 deceased Muhammad Hussain, a retired Divisional Forest Officer left his house, but did not return till late in the night. Members of his family started his search and his brother Umer Hayat informed Humayun Khan about the disappearance of the deceased and thus both Umer Hayat and Hamayun Khan also started a search for the deceased. On 9-8-1990 in the morning, Humayun Khan went to the shop of Haji Noor Muhammad, father of Fazal Mahmood appellant to make inquiries about the whereabouts of the deceased. Haji Noor Muhammad informed that on the preceding day the deceased had come to his shop and had deputed the appellant to collect a sum of Rs.35,000 from Umer Bakhsh. The appellant returned without the money. The appellant was then sent to the shop to Shah Sultan P.W. from where he succeeded in collecting Rs.58,000 which the appellant handed over to the deceased and after the receipt of this amount the deceased left his shop leaving his bicycle. The disappearance of the deceased coupled with the information disclosed by Haji Noor Muhammad led Humayun Khan to lodge a report at Police Station Kohat City where this information was recorded in daily diary of the police station. On the basis of this information, Haji Noor Muhammad and Fazal Mahmood appellant -were associated in the investigation. In course of investigation, Farid Khan, A.S.I. Police Station Jungle Khel, Kohat received information that some foul smell was emitting from a drum placed on the road side in Sector 10, Kohat Development Authority Township. The police proceeded to find out the nature of the smell and when the drum was opened a dead body with two injuries on the herad was found therein. Rs.555 and a telephone bill in the name of the deceased Muhammad Hussain was also found during the search of the dead body. A complaint was drafted by Farid Khan A.S.I. and was sent to the police station for registration of a case and on the basis of the said complaint, a formal F.I.R. was scribed in the police station. Sum of Rs.555, a pen, telephone bill and a pair of spectacles found on the dead body were taken into possession. The dead body was sent to the hospital for autopsy and one firearm entry wound on the left temporal region with mark of charring was found. An exist wound was also found behind pina of the right ear. The death in the opinion of the doctor occurred due to injury on brain leading to cardio-respiratory arrest. Gul Muhammad S.H.O., Police Station Jungle Khel, Kohat arrested the appellant, who confessed his guilt, and thus, he was produced before Mr. Asmatullah Khan, Magistrate for recording his confession. On 13-8-1990 the appellant made a confession, which was recorded by the said Magistrate. The appellant in his confession further Aisclosed that Masood Ahmed was also a party to the crime. Masood Ahmed was also arrested and he also confessed the guilt and offered to make a confession, and thus, he was also. produced before the same Magistrate, who recorded his confession on 15-8-1990. In these circumstances, the appellant was sent up to face his trial.

3. The prosecution with a view to establishing its case has relied upon the confession and the circumstantial evidence corroborating links in the confession. Before proceeding further, it will be apt to reproduce the salient features of the confession. The appellant stated as follows:-- "I have a General Merchant Store in the Main Bazar Kohat. I am indebted to Muhammad Hussain alias Abu Master, a retired Divisional Forest Officer for Rs.30,

000. The deceased used to visit the time and again to demand the return of the amount. On the fateful day, the deceased visited my shop and I told him that I would pay him the loan. The deceased had a bicycle, and thus, I asked him to accompany me and we both riding the bicycle went to our home in Mohallah Niazi, Kohat. I made the deceased to sit in upper portion of the Baithak and I asked the ladies to prepare tea for the guest. In the meantime I proceeded to Bokhari Medical Store and purchased four intoxicating tablets. On return to the house, I administered the same to the deceased in a cup of tea. After 15/20 minutes of taking tea, the deceased became unconscious. I took his national identity card from his picket and came to my shop on the bicycle of the deceased. At that time, my father Haji Noor Muhammad, Haji Hanif and Bilawar were present. I told them that I was proceeding to the shop of Umer Bakhsh for the recovery of Rs.35,000 on behalf of the deceased for which the latter had requested me to do so. When I went to the shop, I found Qadir Bakhsh, brother of Umer Bakhsh present and I told him that Muhammad Hussain had asked me to receive the loan of Rs.35,000 from his brother Umer Bakhsh on his behalf. Qadir Bakhsh informed me that he had no money at that time and few days before he had discussed the settlement of loan with the deceased. I then came back to my shop and then to my house and found Muhammad Hussain still unconscious. I then proceeded to the Suzuki Stand and hired a Suzuki No. KA-1078 from a driver with whom I had good relations. I told him that I needed the Suzuki because I wanted to go with my family. I then went to the shop of shah Sultan situated in Lakkar Mandi, Kohat, where his nephew was present. I showed the national identity card of the deceased to him and asked that the deceased, who is friend of his uncle Shah Sultan, was in need of Rs.58,000 and that I had come to receive such amount on behalf of Muhammad Hussain deceased. The nephew then rang up his uncle Shah Sultan, who instructed him on telephone that whatever money was available should be paid to him. Thus, the nephew of Shah Sultan paid me Rs.58,000 and then I came to Bazar and purchased few empty bags from a shop. I then took my friend Masood Ahmed with me and we both proceeded to our house. Masood Ahmed had prior knowledge of the scheme. I then with the assistance of my friend Masood Ahmed put the deceased in an empty bag and then we left for our garage by means of the Suzuki, which was situated in the New Khan Bus Stand Kohat. I threw the bag in the garage and then I dropped my friend Masood Ahmed at King Gate, Kohat City. I then handed over the Suzuki to the driver and thereafter, I went to my home and picked my 30-bore pistol and proceeded again to the garage where I killed the deceased with the said pistol. At 1.00 p.m. I came back to my house and kept the weapon of offence and the money which I had received from the nephew of Shah Sultan. At about 2.00 p.m. I rang up the family members of the deceased Muhammad Hussain telling them that the deceased had gone to Peshawar and would be returning the next day and that his bicycle was lying near the shop of my father Haji Noor Muhammad. At about 6.00 p.m. I was present in my shop when nephew of the deceased came to me and I handed over the bicycle of the deceased to him. Then I again joined my friend Masood Ahmed and we both went to the Suzuki Stand and I hired another Suzuki and we went to our house, took an empty drum, put the same into the suzuki and again proceeded to the garage where I had killed the deceased. We put the dead body into that drum, filled its outer portion with another empty bag. Masood Ahmed suggested to throw that drum in some secluded area of Kohat Development Authority. Thus, we proceeded to that area and after entering its first gate, we throw the drum containing the dead body of the deceased and came back to the King Gate from where we parted from each other."

4. The confessional statement of Masood Ahmed was recorded two days after the confessional statement of the appellant was recorded. He admitted to have accompanied the appellant to the upper portion of his Baithak where the deceased was lying unconscious and that he provided assistance to the appellant in putting the deceased into a bag and then into the Suzuki pick-up in which the bag was transported to the garage of Fazal Mahmood appellant.

5. After his arrest the appellant in police custody led to the recovery of a blood-stained brick from the garage/godown and the same was witnessed by Javed- Iqbal P.W.14. The appellant also got recovered Rs.58,000, 30-bore pistol, bandoleer and spare charger with 25 live rounds of 32-bore from his house. Awwal Zaman P.W.8 testified the recovery of dead body of the deceased from the drum lying in the Kohat Development Authority Township Scheme. Muhammad Riaz alias JaJo P.W.3 and Mushtaq Ahmed P.W.4, the owners of the Suzuki pick-ups hired by the appellant also appeared in support of the prosecution case to testify that on the fateful day the Suzuki pick-ups were hired by the appellant. In addition to this evidence, the prosecution with a view to proving the links in the confessional statement of the appellant, produced Haji Muhammad Hanif P.W.6, who testified that the appellant was present at the shop of his father on the morning of 8-8-1990 and his having gone to fetch money for Muhammad Hussain deceased. Qadir Bakhsh P.W.7 deposed that the appellant visited his shop for collecting Rs.35,000 for the deceased. Haji Shah Sultan P. W. 11 and Fazal Rehman P. W. 12 deposed that Rs. 5 8,000 were given to the appellant for delivery to the deceased and the identity card of the deceased produced by the appellant was kept by Fazal Rehman.

6. The learned counsel for the appellant in the first instance brought the confession of the appellant under scathing criticism and it was contended that the confession was neither voluntary nor true. It was urged before us that the confession was recorded after two days of the arrest of the appellant and the necessary links in the confessional statement had not been corroborated and therefore the confession is not true. We have carefully examined the confessional statement as well as the evidence adduced by the prosecution to corroborate it. After careful perusal of these facts, we are of the view that the confession in this case is true and voluntary. No doubt it was retracted by the appellant at the trial, but in material respects it stands corroborated by other evidence produced by the prosecution. It was strenuously argued that the confession made by co-accused Masood Ahmed cannot provide corroboration to the confession of the appellant because no question in his statement under section 342, Cr.P.C. was put to the appellant in this regard. There is force in this argument inasmuch as it was incriminating piece of evidence and the appellant ought to have been confronted with it if it was intended to be used as corroborative evidence, and thus, we are of the view that the confessional statement of Masood Ahmad cannot corroborate the prosecution case against the appellant. Conversely seeking, the confession of the appellant can be used against Masood Ahmed because the latter was confronted with the incriminating evidence against him in the form of the confession of the appellant. It was also contended that it was imperative on the part of the prosecution to have produced Haji Noor Muhammad father of the appellant, who is alleged to have seen the accused and the deceased together in the shop on the morning of 8-8-1990 and the prosecution must suffer for not producing him although he was cited as a witness. The contention has no force because Haji Noor Muhammad father of the appellant was rightly given up by the prosecution because no father is expected to testify against his son. It was further argued that the amount of Rs.58,000 recovered by the police on the pointation of the appellant and the identity card of the deceased produced before the police were not exhibited in evidence, and therefore, the confession of the appellant loses its significance. It was further argued that the shopkeeper from whom 'the appellant had purchased intoxicating drug was also not examined at the trial. It was also urged before us that no empty was recovered from the godown and although blood stained brick was recovered, no blood was found in the godown, and therefore, the necessary links in the confession of the appellant have not been proved, and therefore, the conviction on the basis of retracted confession would not be in consonance with the law on the subject.

7. After anxious consideration, we are of the view that merely because the confession was recorded two days after arrest of the appellant would not render it involuntary. The statement of Mr. Asmatullah, Magistrate P.W. 21 goes a long way to show that all necessary formalities as enunciated under section 364, Cr.P.C., were complied with. The Magistrate was cross-examined at length and his statement clearly shows that the appellant had voluntarily made a confession and not under any coercion, duress or undue influence. To the contrary the confession is consistent with other circumstantial evidence led by the prosecution in the light of the testimonies of Haji Muhammad Hanif, Qadir Bakhsh, Haji Shah Sultan and Fazal Rehman. These witnesses are related to the deceased as well as the appellant and are interested and in fact they confirmed the material facts as narrated by the appellant in his confession. The statement of Haji Muhammad Hanif, who is related to the deceased as well as the appellant was Present on the shop of the father of the appellant on the day of the occurrence and he had seen the appellant at the shop of his father on the morning of, the fateful day. Although he expressly denied to have seen the deceased on the shop of the father of the appellant, but his statement at least proves two facts: first, that the appellant was present at the shop in the morning; and two; that he had taken the bicycle of the deceased and had proceeded on it and after a while had returned and left the bicycle at the shop of his father. The visit of the appellant to the shop of Qadir Baksh P.W.7 to collect Rs.35,000 for the deceased is corroborated by the statement of the said P.W. Qadir Bakhsh admits that he owed Rs.60,000 to the deceased and at the time of the visit of the appellant, he had no money with him to meet the demand of the deceased. As already stated above, Qadir Bakhsh is related to the deceased as well as to the accused because both of them happen to be paternal cousins of Qadir Baksh. The visit of the appellant to the shop of HaJi Shah Sultan is confirmed by Haji Shah Sultan and Fazal Rehman, his nephew. Haji Shah Sultan has confirmed appellant's confession that on the day of occurrence the appellant had gone to the shop of Haji Shah sultan for the recovery of Rs.65,000, which was part of debt of Rs.200,000 owned by Haji Shah Sultan to the deceased. Fazal Rehman P.W. nephew of HaJi Shah Sultan was present at the shop, who called his uncle at the telephone and after receiving positive instructions gave Rs.58,000 to the appellant and the identity card produced by the appellant was kept by Fazal Rehman. Haji Shah Sultan P.W. supported the statement of Fazal Rehman insofar as the telephonic, conversation was concerned. The non-production of Rs.58,000 does not at all affect the prosecution case adversely. Similarly, the non-production of the identity card does not go to the root of the matter so as to render the confession untrue.

8. The use of two Suzuki pick-ups in the commission of crime is supported by P.Ws. Riaz and Mushtaq Ahmed, who had, lent the Suzuki pick-ups to the appellant. Thus, the Suzuki pick-ups were used by the appellant in carrying the unconscious deceased Muhammad Hussain from the Bathak to the garage and for transporting the dead body of the deceased after he was done to death. Both these witnesses corroborate the confessional statement of the appellant. The venue of the occurrence was also corroborated by the appellant himself when in police custody he pointed out place of occurrence to the police from where blood stained brick was recovered. The chemical examiner reported the brick to be stained with blood while the Serologist opined it to be human blood. The absence of blood in the garage is explained by the facts that the deceased was shot in the head and had been put in a bag and the blood does not profuse in large volume from the head as compared to other parts of the body. The dead body had been wrapped in bags and the blood emitted must have been absorbed by such bags. The contention of - the appellant also stands corroborated by the recovery of dead body lying in a drum in the Kohat Development Authority Township Scheme and the same was discovered by Farid Khan A.S. I.

9. To sum up, the confession stands corroborated through the statements of reliable witnesses, who are related to both the appellant as well as the deceased. The use of the bicycle of the deceased by the appellant is also proved and his visit to the shop of Qadir Baksh and Haji Shah Sultan, the hiring of the two Suzuki pick-ups, pointing out the venue of occurrence, the mode of murder and the disposal of dead body stand amply corroborated. It is further pertinent to mention that both the appellants and the deceased are also related inter se and there was hardly any material on the record nor was it suggested that inimically disposed towards each other.

10. Lastly it was argued that the retracted confession could not form basis of conviction. The argument is without any substance. The confession of crime by a person, who has perpetrated it, is usually outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. To arrive at a conclusion as to whether a retracted confession may form basis of conviction if believed to be true and voluntarily made, the Court has to take into consideration not only the reason given for making the confession or retracting, but the attending facts and circumstances surrounding the same. There can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. However, the prudence requires that by way of caution, to convict a person on the basis of retracted confession, corroboration must be sought. This, however, does not necessarily mean that each and every circumstances mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that corroboration must come from facts and circumstances discovered after confession was made. We are fortified in this view by judgments of this Court reported as State v. Minhum (PLD 1964 SC 813), Joygun Bibi v. State (PLD 1960 SC (Pak.) 313) and by judgments of the Indian Supreme Court reported as Subramania v. State (PLD 1958 SC (Ind.) 254) and Sarwan Singh v. State (PLD 1957 SC (Ind.) 555).

11. For the foregoing reasons, we do not find any substance in this appeal. The same is hereby dismissed. N.H.Q./F-53/S Appeal dismissed.