2002 PLP 2843 (YLR)

All the four appellants neither opted to appear as a witness of their own under section 340(2), Cr.P.C. nor had desired to produce any defence evidence.

6. After the conclusion of the trial, arguments of the parties were heard by the leaned trial Court, and all the accused appellants were convicted and sentenced as stated above. Hence this appeal by the convicts.

7. We have heard the yearned counsel for the parties at length and have carefully gone through the record with their assistance. Learned counsel for the appellants has strenuously argued that there was no evidence at all to connect Behra‑Mand and Tapir Ikram appellants, while the retracted judicial‑confession of bmar Zameen and Said Naseeb appellants, being full of infirmities of grave nature could not be made basis of their conviction for the capital charge of the commission of dacoity with murder. Elaborating his submissions, he asserted that the two confessional statements were the result of torture and coercive measure adopted by the police and thus were not admissible in evidence being neither voluntary nor true and were also not corroborated by any other reliable evidence. Reliance in. this respect was placed on Bahadur Khan v. The State PLD 1995 SC

336. Learned Deputy Advocate General as well as the learned counsel for the complainant on the other hand have vigorously supported the impugned judgment by submitting that the confessional statement of the two appellants namely Umar Zameen and Naseeb accused were recorded after compliance of all the legal formalities by the two learned Courts below who had amply satisfied themselves regarding voluntariness of the confessions being made before them, as such these confessions were alone sufficient to base the conviction of the two appellants without seeking any corroboration. Reliance in this respect was placed on the observation of this Court in the case of Atlas Khan v. The State (1995 PCr.LJ 1996). Both the learned counsel have, however frankly conceded, that no case was made out against Behra‑Mand and Tahir Ikram appellants as there was no reliable evidence to connect them with the crime.

8. We have anxiously considered the contentions of the learned counsel for the parties and have carefully perused the impugned judgment and the case‑law cited at the Bar.

9. The prosecution has mainly kept its reliance on the retracted judicial‑confessions of Umar Zameen and Naseeb appellants Exh.P.W.9/1 and Exh.P.W. 5/1 respectively, coupled with the recovery of a Blanket and a Kanashinkov with a charger containing seven rounds at the instance of Naseeb accused from the house of Tahir Ikram appellant. Besides this the medical evidence furnished by Dr. Muhammad Siddique P.W.4 was also considered as a corroboratory piece of evidence to prove the murder of the deceased Siraj‑ul‑Haq.

10. We have critically examined the above‑said evidence and have assessed its intrinsic worth. We are of the considered view that the alleged judicial‑confession duly recorded by Shahid Khan, Aal Ilaqa Qazi of Malkand P.W.5 and Mohammad Ullah Ilaqa Qazi P.W.9, suffered from no legal infirmities, and were thus sufficient to base the conviction of the two appellants namely Umer Zameen and Naseeb accused, who had voluntarily made clean breast of their crime before the said Courts.

11. P.W.5 Shahid Khan has coherently deposed at the trial that on 13‑3‑1998 Naseeb accused was produced in his Court with handcuffs for recording his confessional statement. He further disclosed that the handcuffs of the accused were got removed and the accused was made to sit in the chair. He was duly warned that if he made a confession of his guilt, the same would be treated as evidence against him at the trial and the accused was also told that if he makes a confessional statement or not, he would not be handed over to the police and that he would be sent to judicial lock‑up. The accused was then given time to ponder over matter, and was finally warned about the consequences of making judicial confession. Besides, the accused was also put various questions from the questionnaire recorded as Exh. P. W.5/2 and after having been fully satisfied that the accused was willing to make the confessional statement of his own free will, he had then recorded his statement Exh.P.W.5/1 correctly, which was read over to the, accused and was signed and thumb marked by him as token of its correctness. While under cross‑examination he replied in affirmative that the accused had told him that the police had tortured him by giving injuries on his hand‑feet and buttocks, but, on examination of the person of the accused, no such injuries were found by him on his person. He however has denied the suggestion that the confessional statement of the accused was recorded in the presence of the police. Similarly Mohammad Ullah, Illaqa Qazi P.W.9 has‑candidly given the account of recording the confessional statement Exh.P.W.9/1 of Umar Zamen accused, who was produced before him in handcuffs on 4‑3‑1998 for the said purpose. He further explained that the accused was put all the relevant questions mentioned in the questionnaire Exh.P.W.9/2 and was further explained that he was not bound to make a confessional statement, as the same would be treated as evidence against him at the trial. It was thereafter that his confessional statement Exh. P.W.9/1 was recorded which was duly certified under section 364, Cr.P.C. He while under cross‑examination stated that before recording the confessional statement he had asked the accused as to whether he was tortured by the police to make the confessional statement or that he was making it voluntarily of his own free‑will. He further stated that on receipt of the positive reply of the accused that he was making the statement .of his own free‑will, he had recorded his confessional statement, after giving him the time to ponder over the matter. He however denied the suggestion that the accused was handed over to the same Investigating Officer, who had produced him for recording his confession and that despite the fact that the accused had told him about the torture by the police, but the same was not taken notice of by him.

12. The appraisal of the abovesaid testimony of the two prosecution witnesses would reveal that both of them had taken all the required legal pre‑cautions, before recording the' confessional statements of Naseeb and Umar Zameen appellants, which were then correctly recorded by them after having been satisfied regarding the voluntariness of the same. The said confessional statements have been further scrutinized by us, so as to assess, whether these were inculpatory or exculpatory in nature and if these could be relied upon without any necessary corroboration.

13. Umar Zameen appellant while making clean breast of his guilt has given the details of the occurrence in his confessional statement Exh.P.W.9/1 by disclosing therein that Fareed, Kote, Naseeb and Behra‑Mand were his friend, who all had gathered in the Baithak of his uncle namely Khoona Gul some days before the occurrence and had decided that Sira‑ul‑Haq deceased, who used to recover the cash on Saturdays, Sundays and Mondays and deposit the same in the bank, be deprived of the same and the cash be divided amongst them. He further disclosed that on the appointed days i.e. Monday, Fareed, Kote Behra‑Mand and Naseeb sat in the graveyard but due to delay the object was not fulfilled and they returned. It was on the next Monday that the said four accused again tried but with no success. Ultimately Naseeb and Behra‑Mand decided to do the job, as Famed and Kote had then refused to join them. On the day of occurrence Naseeb accused accompanied him to the Bazar and left him by saying that he alongwith Behra Mand would snatch the cash from Siraj‑ul- Haq deceased. He thereafter went to the shop of Khan Zareen (father of Siraj‑ul‑Haq deceased) where he heard the firing of the shots. It was on the other day that Naseeb had told him that they had tried to snatch the cash but on his refusal he was murdered' as he had identified them.

14. The confessional statement of Naseeb appellant Exh. P. W.5/1 have also revealed the similar facts by stating therein that he alongwith Behra-Mand, Kote, Tahir Fareed, Bawar, Farooq and Asghar planned to commit dacoity, and on the day of occurrence he met the above‑said accused near the place of wardat where accused Tahir handed him over clothes and a gun. He alongwith Tahir and Kote followed Siraj‑ul‑Haq deceased while others dispersed. As soon as deceased appeared Behra‑Mand had put his hand on him, while the gun shot was fired by him, which had hit die deceased. He further pleaded guilty and begged pardon.

15. The above disclosure of the facts contained even minutest details, which were not expected to be in the knowledge of the investigating agency or that of the complainant, who had not charged anyone at the tune of lodging the report with the police.

16. In this view of the matter we are of the considered view that the above-said two confessional statements were truly and voluntarily made by the two appellants, which were properly recorded by the two learned Courts after, taking due legal precautions. We have also seriously dilated on the intrinsic worth of' the two confessional statements, which are found to be inculpatory in nature, and thus were worth reliance to base conviction of the two appellants without seeking any further corroboration. We stand fortified in. adopting the abovesaid view by the observations of the Full Bench of this Court in the case of Javed Masih and others v. The State (1992 PCr.LJ 1304) wherein it was observed that "confession of one accused which is inculpatory can lawfully and validly be used not only against maker of it, but also against other accused persons." Similar observations were made in yet another case of Full Bench of this Court reported as Daulat Ali and others v. Muhammad Aslam and others (1998 MLD 944) wherein Article 37 of Qanun‑e‑Sahadat was discussed and it was observed that "conviction on confession alone where Court believe a confession judicial or extra‑judicial, retracted of unretracted to be a voluntary and true, it can convict the accused on its sole basis." Besides this, we are also influenced by 'the observations of the learned Supreme Court of Pakistan in the case of Wazir Khan v. The State (1989 SCMR 146) wherein the obitor-dicta was as under:‑ "Section 302‑‑Case of no evidence‑‑ Retracted Confession, whether sufficient in law to maintain conviction‑‑‑Appeal against conviction‑-No eye‑witnesses of occurrence‑-Prosecution based on retracted confession of accused‑‑Plea that retracted confession was not sufficient in law to main conviction, not entertained‑-No legal bar exists for recording a conviction on a confession which is subsequently retracted if it is voluntary and true‑‑‑No infirmity having been found in confessional statement of accused to render it unacceptable and accused having told truth, he was rightly found guilty." Reliance in this case was placed on the earlier decision of the learned Supreme Court of Pakistan in the case of the State v. Minhun alias Gul Hassan (PLD 1964 SC 813) which reads as under:‑ "Retracted confession of accused‑‑-No ocular evidence was available about the incident and case of prosecution entirely depended upon retracted confession of accused‑‑‑Confessional statement of accused, in circumstances required close scrutiny‑‑-Accused had recorded his confessional statement after two days of his arrest and in his statement accused had given motive for firing at the deceased persons‑‑‑Motive which was only known to accused, came from the mouth of the accused and he alone had knowledge about the previous enmity with deceased and accused had also given the account of his absconding‑‑‑Retracted confession of accused rang true even intrinsically as he had given detailed account of the incident and nothing was on record to discredit credibility of confession‑‑‑Accused had retracted his confession when he was examined under section 342, Cr.P.C. Accused only stated that he did not record any confession without assigning any reason‑‑‑When an accused retracted or resiled from his confession, onus would lay on him that he did not record any confession‑‑‑Accused had brought nothing on record to show that his confession was not voluntary or same was obtained through coercion or inducement‑‑‑In absence of any, allegation of coercion or inducement, retraction of confession seemed to be pulpably false, absured and incorrect‑‑‑Confession of accused being weighty evidence against accused nothing was to hold such confession otherwise, than as voluntary and true‑‑‑Accused was rightly convicted and sentenced on basis of his confession. " The case in hand being similar on all fours with the abovecited cases, we feet constrained to observe that the retracted confession of Naseeb as well as Umar Zameen appellants being inculpatory in nature and having been voluntarily made by the twos appellants could conveniently be treated as sufficient evidence to warrant the conviction of these two appellants. Besides these confessional statements, the prosecution had produced Fareed. Khan P.W.10 to prove the complicity of Umar Zameen accused in hatching the conspiracy to deprive the deceased of the cash collected by him on the fateful day, while Moharrir Humayun P. W.6 and Saeed‑ur- Rehman Sepoy P. W.7 were examined to prove the recoveries of a blanket and a Kalashnikov alongwith its charger and seven rounds at the instance of Naseeb accused from that house of Tahir Ikram appellant. We have considered the evidentiary worth of the above two pieces of evidence, as to whether the same could be untilised to further strengthen the case of prosecution. We feel that these recoveries would not be of mush importance in this case, as neither any crime empty was recovered from the spot nor the Kalashnikov was sent to the Forensic Science Laboratory so as to get experts opinion. We therefore are of the humble view that the said evidence cannot be stretched in favour of the prosecution. So far the testimony of Fareed Khan P. W.10 is concerned; we also do not attach much importance to it, as he was earlier named as an accomplice of the appellants, but subsequently after about a month of the occurrence, he was transformed as a witness and his statement was recorded under section 161, Cr.P.C. as such his testimony was liable to be struck off on this sole ground. The other evidence consists of the medical evidence furnished by Dr. Muhammad Siddique P. W.4 who had examined the deceased on 21‑1998, when he was received dead in the hospital and had found the following injuries on his person. (1) One wound on front of chest 3 " below (Lt) nipple. (2) 2nd wound 4" to the medial aspect of (LH) nipple charring marks were present. (1) Post aspect of (LA) lumber region. (2) Back of chest on the right side." While under cross‑examination by Naseeb accused he replied that he had not conducted the post‑mortem‑examination, as such he was unable to particularise as to which exit wound was the result of which entry wound. As the death of the deceased by fire arms has not been challenged by the defence, so we are not dilating on the intricacies of non‑performance of post‑mortem examination, which was otherwise necessary to know the cause of the death of the deceased. We therefore feel constrained to consider this medical evidence to be sufficient corroboration of the retracted confessional statements of the two appellants which have, already been declared as voluntary and true, and worth keeping reliance to warrant the conviction of the makers of the said statements without any corroboration. We have duly considered the stance of Umar Zameen and Naseeb appellants who had retracted their judicial confessions by alleging that those were the result of coercion and torture inflicted by the police. We are, afraid, that the said bald statements of the two appellants would not carry any weight in the eyes of law, in the presence of reliable and trust‑worthy testimony furnished by Shahid Khan. Aala Illaqa Qazi P.W.5 and Muhammad Ullah Illaqa Qazi P.W.9 who, had given consistent and Cogent statements before the learned trial Court, which we have evaluated to be worth reliance for basing the) conviction of the two appellants. Moreover the appellants had failed to bring on record and evidence to show, that their confessions were not voluntary or that the same were obtained through coercion or inducement. We, therefore, are of the view that the, retraction of confessions was false in the circumstances of this case, hence the stance of the appellants stand discarded as worthless. The upshot of the above discussion is that the prosecution has successfully proved its case beyond any reasonable doubt against Umar Zameen and Naseeb appellants under section 336 P.P.C. as Ta'zir and they have been rightly convicted by the learned trial Judge vide the impugned judgment dated 30‑8‑1999 which is hereby upheld. So far the quantum of sentence awarded to the two appellants is concerned we feel that the same required no interference by this Court, as both of them have conjointly committed the callous and gruesome murder of an innocent person only to deprive him of the cash collected by him on the fateful day. The so‑called absence of Umar Zameen appellant at the spot at the time of occurrence would not exonerate him from the liability of the murder of the deceased, committed by Naseeb appellant his co‑accused, who had executed the plan of committing the dacoity with murder at the instance of Umar Zameen appellant, the master‑mind behind this occurrence, as Umar Zameen being the employee on the shop of father of deceased, was in the know of the periodical collection of the cash by the deceased, which the appellants had desired to deprive him off. We, therefore, are of the confirmed view that, both Umar Zameen and Naseeb appellants being conjointly concerned with the crime deserve no leniency in the sentence, which commensurates with the gravity of the offence. We in this respect feel fortified by the observations of, the Honourable Supreme Court of Pakistan in the case of Jaffar Ali v. The State (1998 SCMR 2669) wherein it was observed that "if the circumstantial evidence connects the accused with the offend punishable with death, without any reasonable doubt, the same can form the basis of the Capital Punishment." There being no mitigating circumstances in favour of the two appellant in the case in hand, we therefore fee constrained to confirm the death penalty awarded to Umar Zameen and Naseeb appellants by the learned trial, Court. The sentence of fine of the accused and compensation under section 544, Cr.P.C. to be paid the heirs of the deceased shall remain intact. So far the complicity of Behra‑Mand and Tahir Ikram appellants is concerned, suffice it to say that either the learned Deputy Advocate‑General nor the learned counsel for the complainant has been able to point out sufficient and unimpeachable evidence to warrant their conviction', but as against this, both of them have frankly concerned that there was no reliable evidence to connect the appellants with the crime. We have, however, carefully perused the evidence led by the prosecution to prove the culpability of these two appellants in the crime and have critically scrutinised the alleged retracted confessional statements of Umar Zameen and Naseeb accused as the said statements were made the basis of the conviction of these two appellants as well. We find that Naseeb accused has given a passing reference of Tahir Ikram appellant, who had allegedly given him clothes and a gun, while Behra- Mand has been assigned a role of putting had on the deceased. This statement being' the statement of the co‑accused was required to be further materially‑ corroborated to keep reliance on, but we find that there was no other evidence to connect these two accused with the crime. The evidence of Moharrir Humayun P.W.6 and Saeed‑ur‑Rehman Sepoy P.W.7, who had allegedly deposed about the recovery of Blanket and Kalashinkove respectively from the house of Tahir Ikram appellant on two different dates at the instance of Naseeb accused, could not be treated as corroboratory piece of evidence, as it was yet to be established, if this Kalanshnikov was used in this crime, because of the non‑availability of the crime empty from the spot, and its non‑despatch to the Forensic Science Laboratory. Similarly the role assigned to Behra‑Mand appellant also lacks any independent corroboration as it is no body's case that someone had caught hold of the deceased and the other had tired shoe on him. Besides this Umar Zameen appellant has not named Tahir Ikram accused in his confessional statement as an accomplice of the crime and had only named Behra‑Mand appellant to be a party to the conspiracy hatched by them for depriving the deceased of the cash. According to retracted confession of Umar Zameen appellant, Behra‑Mand and Naseeb accused had initially undertaken to do the job but on the day of occurrence, it was Naseeb accused only, who had proceeded to the place of occurrence after leaving him in the Bazar. This retracted confession of Umar Zameen appellant inculpating Behra‑Mand in the crime, also do not get any material support from any other confirmatory circumstance, which was sine‑qua‑non in such a situation. We, therefore, hold that the said tainted piece of evidence consisting of the retracted confession of Umar Zameen and Naseeb co‑accused would not be sufficient to prove the case against Tahir Ikram and Behra Mand appellants, as the same were not materially corroborated by any reliable evidence. It is well‑settled principle of law that confession of co‑accused cannot be used as substantive piece of evidence to make it the basis of conviction to the other accused, but it can be used as a corroborative piece of evidence, if other substantive evidence was available on record. Reference in this respect could be made to the observation of this Court in the case of Gul Samber Khan and others v. The State (1997 PCr.LJ 1216) and Muhammad Khalil alias Katch v. The State (1997 PCr. LJ 1639). The resume of the above discussion is that participation of Behra‑Mand and Tahir Ikram appellants in the commission of this crime being doubtful, they would be entitled to its benefit, as per established rule that the benefit of doubt would always be given to the accused/appellants. Under the above circumstances we feel inclined to accept this appeal to the extent of Behra‑Mand and Tahir Ikram appellants whose conviction and sentences passed by the learned trial Court vide judgment dated 3‑8‑1999 are set aside and they are directed to be released forthwith if not required in any other case. Order accordingly. Resultantly the appeal tiled by Umar Zameen and Naseeb appellants being without merit' is dismissed, and their death sentence stands confirmed while Behra‑Mand and Tahir Ikram appellants having been given the benefit of doubt stand acquitted. Cr. Murder Reference No. 1/P of 2001 is answered accordingly. N.H.Q./79/FSC Order accordingly.