2005 PLP 908 (YLR)

(iii) The confessional statement of accused has been recorded with unexplained delay of seven days. (iv) The evidence of prosecution does not provide any reason for committing of murder of deceased by accused. (v) The sole retracted confessional statement could not be made basis for conviction. (vi) The confessional statement does not show commission of offence under section 302, P.P.C., the same at the best makes out offence under section 315, P.P.C. punishable under section 316, P. P. C. Mr. Jaffar Raza, the learned State counsel supported the conviction and sentence awarded to the appellant and argued that the confessional statement of accused/appellant reflects the voluntariness of the accused. The same contains the reason and circumstances which led to the death of Faiz Muhammad. The burial of dead‑body in a well and behaviour of accused/appellant reflects that he voluntarily caused the death of Faiz Muhammad which constitutes offence under section 302, P.P.C. and in absence of any mitigating circumstances the normal penalty of death is the appropriate punishment. The submissions made by the learned counsel for the parties considered, record of the case perused. The case of prosecution is that Faiz Muhammad s/o Ahmed went missing. After 12 days his dead‑body was traced out by P. W. 2 Zahir Shah and P. W.3 Gul Muhammad from a well wherein it was buried. To connect the accused/appellant with the commission of offence, the case of prosecution rests on following pieces of evidence:‑‑ (i) Ocular evidence consisting of statements of P. W.1 Zahir Shah and P.W.3 Gul Muhammad. (ii) Confessional statement of accused recorded under section 164, Cr.P.C. by P.W.5 Malik Muhammad Yahya, Judicial Magistrate. P.W.2 Zahir Shah stated that he along with P.W.3 Gul Muhammad and Bado made search for Faiz Muhammad, but failed when P.W.2 in order to drop P.W. 3 Gul Muhammad at his house on his motorcycle reached near a well. P. W.3 Gul Muhammad asked him to stop and he jumped inside the well as foul smell was emitting from the same. P.W.2 claimed that he also went in the well, accused was found near the well he was asked for a spade so as to dig out the well, which accused refused. Thereafter P.W.2 went to his house and brought a spade and Ayaz was also accompanied by him, Abdul Ghafoor reached there they dug the earth and on unearthing one foot of Faiz Muhammad, they stopped digging. They went to the house of Abdul Ghafoor, accused was present there, he was detained, Levies official Gul Khan was called. People of the area also gathered there and they took out the dead‑body of Faiz Muhammad, Tehsildar came there and accused was arrested. P.W.3 Gul Muhammad stated that his brother Faiz Muhammad was missing from last 11/12 days, he made search to trace him out, in said connection he along with Bado and P.W.2 Zahir Shah jointly searched Faiz Muhammad for about two days but he could not be traced. Whether he was being carried to his house by P.W.2 Zahir Shah on his Motorcycle, on the way the well situated near the house of accused was checked as they had been checking the other wells in the area and foul smell was emitting from the well. He went inside the well. Accused Abdul Sattar was asked to provide a spade which he refused, thereafter, Zahir Shah went to the house of Abdul Ghafoor and brought a spade, he was accompanied by a relative of accused namely Ayaz. They started digging the earth, one leg of deceased Faiz Muhammad appeared. They went to the house of Abdul Ghafoor where Gul Baran and women‑folk asked him for‑mercy for the sake of Qur'an whereupon he assured them that he would not harm him (accused) but they were asked to detain him, meanwhile Zahir Shah called Levies and Tehsildar, on their arrival the dead‑body was recovered which was found to be of his brother Faiz Muhammad, thereafter accused Abdul Sattar was arrested. P. W.2 Zahir Shah and P. W. 3 Gul Muhammad have been cross‑examined at length but their statements could not be shaken on any material point while they denied the defence plea that Abdul Bari cousin of accused went missing before the said incident and that Abdul Bari has been murdered by P. W.3 and his father. P. W.5 Malik Muhammad Yahya Khan Khuajakhel, Judicial Magistrate stated that on 9‑6‑2003 at about 1‑40 p.m. Naib Tehsildar Qamar Din Karez produced accused Abdul Sattar before him for recording of his statement under section 164, Cr.P.C. He got removing the handcuffs of accused and turned out the Levies as well as Investigating Officer. P.W.5 stated that as he could not correctly speak Pashto and accused could not speak any other language but Pashto, therefore, he appointed Gul Shah Steno as translator, he was administered oath. Through the translator/interpreter he introduced him to the accused and informed him that he has produced for recording of his statement under section 164, Cr.P.C. Accused was asked questions so as to make him understand about the legal aspects of statement under section 164, Cr.P.C. P.W.5 stated that after he was satisfied that accused is making the statement with his free will and not because of any pressure and torture, he recorded his statement. The answer of accused to each of the question was recorded. The thumb‑impression of accused was obtained on each of the answer made to the questions as well as on the statement. In the end of which he issued his certificate and the accused was transferred to judicial custody. Statement was sealed in an envelope and sent to Sessions Judge, Zhob, P.W.5 faced exhaustive cross examination but neither his statement could be made doubtful nor any material beneficial to the accused could be brought on record. To the contrary in reply to the question so put to him by the defence counsel P. W.5 stated about providing of 35 minutes to accused for reflection. In such view of the matter the proceedings so drawn by P.W.5 with regard to recording of the confessional statement of accused are found to be free from any infirmity. The admissibility of the statement is being challenged on the ground that the same has been recorded with delay of seven days. Admittedly accused/appellant was arrested on 2‑6‑2003 and his statement has been recorded on 9‑6‑2003 i.e. after seven days of his arrest, P.W.5 who recorded the statement of accused is found to be having no motive/malice for implicating the accused in the crime, while P.W.6 Muhammad Khan, Naib Tehsildar, who investigated the matter was not alleged to have induced, pressurized or tortured the accused so as to obtain the confessional statement. His statement as well as cross examination do not reflect any motive on his part for fabricating false evidence to involve the accused/appellant in the crime. In such circumstances mere delay in recording of the confessional statement cannot he considered fatal to the case of, prosecution. It is well-settled law that not time as to recording of confession prescribed by law and delay simpliciter in recording of a confessional statement is not fatal. For such view we rely on the judgments reported in 1992 PCr.LJ 756 and 1985, PCr. LJ 2375. In the last cited judgment the Division Bench of this Court dilated upon the issue and following was held:‑‑ "We are also inclined to hold that since the Rule of admissibility of a confession prescribes not time as to the recording of the confession, the simpliciter delay in recording of a confession will not be fatal. The Court is to examine the circumstances of each case and the nature of the confession and if the Court is satisfied that the confession is voluntary, it can rely upon the same notwithstanding the there may be some delay recording of the confession. In the present case, the accused arrested on 29th January, 1983 and according to P. W. 6 Raja Bashir Ahmed, he had recorded 161 statement of the appellant on 2nd February, 1983 and on the same day, he produced the appellant for recording of the confession. There seems to be some delay on the part of the Investigating Officer in getting the above confession recorded, but from the circumstances of the present case, we are satisfied that the confession was voluntary. It is an admitted position that the appellant was an old man of about 70 years at the relevant time, as per his 342 statement, his wife was 38 year old and her dead‑body was found lying together with the other deceased Muhammad Hasan who was about 23‑24 years of age in the Verandah of the appellant's house. The appellant in his 342 statement admitted the production of his licensed double barrel gun before the police. The version given by the appellant in the confession fits in, in the circumstances of the case." Having regard to the statement P.W. 5 and P.W.6 the circumstances o the case in the light of the case‑law on the subject we are of the view that the statement of accused recorded under section 164, Cr.P.C. cannot be kept out of consideration only on account of delay of seven days in recording of the same if the same is otherwise admissible and fits in the case of prosecution. For such evaluation the statement itself needs to be examined. To have the true account of statement the same is reproduced as under:‑‑ The above statement of accused shows that accused suspected that Abdul Bari was kidnapped/abducted by the brothers of deceased Faiz Muhammad. During cross‑examination of P. W. 2 Zahir Shah and P. W.3 Gul Muhammad the plea of accused/appellant was that Abdul Bari was murdered by P.W.3 Gul Muhammad and his father. The said plea of the accused corroborates the confessional statement and explain the incident which resulted in death of Faiz Muhammad. The statement of P. W.5 and the contents of confessional statement reflects its voluntariness, the same is somewhat corroborated by the circumstances as reflected by the statements of P. W.2 and P. W.3. Such a confessional statement if even retracted can be made sole, basis for conviction. In said regard we take support of the judgment of Hon'ble Supreme Court 2001 SCMR 988 wherein their lordships have observed as under:‑‑ "Now we advert to examine the validity of the confessional statements of the respondents to see whether conviction could be based on them. It is now well‑settled that conviction can be based on confession alone even though retracted, if the same if found to be true and voluntary. The respondents, on their apprehension at Peshawar, voluntarily confessed their guilt in detailed statements made before the Magistrates. The facts of murders of the three persons which were disclosed by the respondents in their confessions were not in the knowledge of anybody. On their disclosure of murders, the investigation was taken in hand and the dead‑bodies were recovered from the places which were pointed out by them in presence of the Magistrates. The Magistrates in their deposition have stated that they recorded the confessions after observing all legal formalities and the respondents voluntarily got their statements recorded, which were certified by them to be true and voluntary. The respondents recorded their detailed confessions disclosing various facts which were only known to them and the details whereof establish their voluntary‑ness and truthful‑ness as such, both the Courts have correctly based their conviction by relying on the same." Although no medical evidence in available to substantiate the cause of death but the circumstances in which the dead body was recovered coupled with the confessional statement of accused leaves no room to doubt that deceased Faiz Muhammad met violent death. Besides accused never disputed the unnatural death of Faiz Muhammad. In such view of the matter non‑examination of dead‑body by Medical Officer cannot be considered total to the case of prosecution. The only piece of evidence available on the record showing the circumstances in which Faiz Muhammad died unnatural death is the confessional statement of accused/appellant wherein he stated that when he met deceased he asked him about his parentage whereupon deceased abused him and ran away, accused threw stone which the deceased received on his ear and fell down. The above statement of accused shows that neither accused had any intention to commit the murder of deceased nor he had knowledge that his act is so eminently dangerous that it must in all probability will cause death. Further the object which was used by accused is a stone and it cannot be said to be a weapon which in the ordinary course of the nature is likely to cause death, therefore; in such circumstances the ingredients of Qatl‑e‑Amd as defined under section 300, P.P.C. are found to be missing. To the contrary the act of accused is found to be covered under section 315, P.P.C. which defines Qatl‑Shibh‑i‑Amd and reads as under: ‑‑ "Qatl‑Shibh‑i‑Amd. Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit Qalt‑Shibh‑i -Amd." Thus having regard to the facts and circumstances and the discussion made hereinabove we have no hesitation to hold that the offence which is made out against accused/appellant is of Qatl‑Shibh‑i‑Amd and not of Qatl‑i‑Amd, accordingly we alter the charge from section 302(b), P.P.C. to section 316, P.P.C. and after setting aside the death sentence awarded to the appellant under section 302(b), P. P. C. he is convicted under section 316, P. P. C. the accused is liable to pay in accordance with notification for the year, 2002‑2003 to the heirs of deceased and he is also punished with RI of fourteen years as Ta'zir. With above alteration of charge and modification of the sentence the appeal having no merits is dismissed. As sentence of death awarded to the appellant has been set aside, therefore, the Reference is answered in negative. H.B.T./37/Q Order accordingly.