2006 P Cr (PLP)

IJAZ-UL-HASSAN KHAN, J.

This Jail Criminal Appeal No. 892 of 2004, is directed against judgment, dated 10-11-2004, passed by learned Additional Sessions Judge, Peshawar, whereby he convicted Muzaffar Khan appellant under section 324, P.P.C. and sentenced him to suffer R.I. for 7 years along with a fine of Rs.10,000 or in default to undergo four months' S.I. He was also convicted under section 353, P.P.C. and sentenced to suffer R.I. for one year. The appellant was further convicted under section 13, Arms Ordinance, 1965 and sentenced to R.I. for two years with 'a fine of Rs.2,000 or in default of payment of fine to further undergo S.I. for one month. All the sentences were directed to run concurrently. Benefit of section 382-13, Cr.P.C.. was extended to the appellant.

2. Shortly narrated the prosecution case is, that pursuant to spy information, stated to have been received by the police on 15-8-2002, that proclaimed offender, Muzaffar Khan, required by the police in a number of criminal cases, was present in his house in village Shero Jhangi, District Peshawar, a police party headed by D.S.P. (Rural), raided the house of the accused same day i.e. 15-8-2002 at 8-00 a.m. On seeing the police party, the accused, started firing at the police party. Luckily the police party escaped unhurt. The accused was arrested along with .30 bore pistol loaded with charger containing two live rounds of the same bore. On further search of the house, two hand-grenades were recovered from the residential `Kotha' of the accused. A case was registered against him under sections 324/353, P.P.C. read with section 13, Arms Ordinance, 1965 and 5, Explosive Substances Act, 1908, vide F.I.R. No.581 dated 15-8-2002, Police Station Daudzai District Peshawar.

3. The accused, on completion of the investigation, was challaned(?) to the Court for trial. The copies of relevant documents as required under section 265-C, Cr.P.C. were supplied to the accused. The charge was accordingly framed against the accused, to which he pleaded not guilty and claimed trial.

4. The prosecution, in order to prove the charge and substantiate the allegations levelled against the accused, produced five witnesses, S.H.O. Shah Nawaz (P.W.1) on receipt of `Murasila' incorporated the same into F.I.R. Exh.P.A. He proceeded to the spot,' prepared site plan Exh.P.B. at the instance of S.H.O. Riazul Islam, S.-I. Abdul Samad and A.S.-I. Rashid Iqbal Khan, produced the accused before Illaqa Judicial Magistrate for recording his confessional statement, sent the crime weapon i.e. .30 bore `pistol along with empties to the laboratory for examination, received the F.S.L. report Exh.P.Z. and placed the same oil file. He also sent hand-grenades to Bomb Disposal Squad for analysis and placed report Exh.P.Z./1 on the file.

5. S.-I. Riazul Islam (P.W.2), the then S.H.O. (Operation), Police Station Daudzai, one of the members of the raiding party, drafted the `Murasila' and sent the same to police station for registration of case, apprehended and recovered a .30 bore pistol, loaded with two rounds of the same bore, from possession of the accused and recovered two hand-grenades from the residential `Kotha' of the house of the accused. A.S.-I. Shah Jehan (P.W.3) partially investigated the case. Safiullah Jan, Civil Judge/Judicial Magistrate, Peshawar (P.W.4) on 21-8-2002 recorded confessional statement Exh.P.W.4/1 of the accused, issued certificate Exh.P.W.4/2 and the questionnaire Exh.P.W.4/3. S.-I. Rashid Iqbal (P.W.5) stood marginal witness to the recovery memos.

6. The accused, on the conclusion of prosecution evidence, was examined under section 342, Cr.P.C. He, pleaded not guilty, professed innocence and' claimed to have been falsely charged. He did not opt to produce evidence in his defence or to depose on oath in disproof of the allegations appearing against him in the prosecution evidence.

7. At the conclusion of trial, the learned trial Court found the prosecution case against the accused to have been proved beyond reasonable doubt, qua offences under sections 324/353, P.P.C. read with section 13, Arms Ordinance, 1965 and thus, he was convicted and sentenced by him as mentioned and detailed above.

8. We have heard Miss Farhana Marwat and Aftab Ahmad Khobai, Advocates, for the appellant and Mr. Muhammad Saeed Khan, learned A.A.-G. for the State.

9. Learned counsel for the appellant mainly contended that the case against the appellant is totally of no evidence and the trial Judge failed to apply his mind to the facts of the case. The manner in which the trial Judge has proceeded in the case is violative of the principle governing administration of criminal justice. It was also contended that it is a laboured judgment which is reflective of not only non-reading and misreading of evidence brought on record but the same cannot stand the test of judicial scrutiny as the same is fanciful, artificial and against the weight of record. The statements of the prosecution witnesses suffer from major contradictions, which make the case highly doubtful, therefore, no reliance could be placed on that evidence. It was also submitted that confessional statement has been recorded after inordinate delay of 7/8 days, which had been retracted and was not corroborated by any independent evidence. Additionally it was urged that the provisions of section 103, Cr.P.C. have been seriously violated and in spite of availability of independent persons, only police personnel were cited as recovery witnesses. Concluding the arguments, the learned counsel submitted that the prosecution story thus, absolutely is against all standards of common sense and the same sounds not well to the reason and that the appellant was not justifiably convicted and sentenced. In this regard, reliance was placed on Sabir v. The State 1998 PCr.LJ 1941 (Quetta); Abdullah v. The State 2002 PCr.LJ 1424 (Peshawar); Muhammad Shafiq v. The State YLR 2003 1482 (Peshawar) and Mushtaq v. The State 2002 PCr.LJ 1312 (Peshawar).

10. Learned Additional Advocate-General, on the other hand, contended that the impugned judgment is well-reasoned, based on correct appreciation of evidence on record and cannot be allowed to be interfered with by this Court.

11. The prosecution, in order to prove its case, has produced five witnesses and the positive report Exh.P.Z. of the Fire-Arms Expert. Incriminating statements of the prosecution witnesses and the positive report Exh.P.Z. of the Fire-Arms Expert, were enough to connect the appellant with the commission of crime. The defence could not prove as to why police would involve the appellant falsely, specially when none of A the police party had any enmity against him. The prosecution witnesses who were police officials, had made statements on material points and the appellant had failed to point out any discrepancy in their statements. Contradictions pointed out by the learned counsel for the appellant are so minor that on the basis of those it cannot be held that trial of the accused stood vitiated.

12. The prosecution case is further supported by the confession of appellant voluntarily made before the Judicial Magistrate, who appeared as P.W.4 and confirmed its voluntariness. No doubt, the confession was recorded on 21-8-2002 i.e. 6 days after the arrest but the delay itself could not render the confession nugatory, if the same was recorded in accordance with law. Khan Muhammad v. The State 1999 SCMR 1818. There' is no material to suggest that the appellant has been coerced or induced to make confessional statement. The facts brought out in the judicial confession find corroboration in material circumstances. There is no cavil with the proposition that if the confession was not confidence-inspiring, the use of same to convict a person without independent corroboration is not proper and legal and the Courts generally refrain from passing the conclusion solely on retracted confession and while following the rule of abundant caution, look to corroboration in material particulars to ensure safe administration of justice. The Court, if is satisfied, that the confessional statement though recorded was true and voluntary, the same can safely be made basis of conviction. Retraction per se, is not always a valid ground to discard judicial confession unless and until it is proved that it was obtained through coercion, threat, pressure or inducement. The details of event given by the appellant in confessional statement are strong circumstance to establish that confession was true and voluntary.

13. For the foregoing reasons, the prosecution had proved the guilt of the appellant beyond all reasonable doubts and had successfully discharged its burden through consistent and confidence-inspiring evidence. The prosecution witnesses had no malice or ill-will against the appellant to falsely implicate him in the instant case. The findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The trial Court has appraised the evidence existing on the record thoroughly on the principles for reappraisal of evidence in criminal cases for safe administration of justice. The judgment is based on correct application of law and proper evaluation of evidence and, therefore, I see no reason to interfere in the finding of the learned trial Court. The appeal having been found bereft of merit is dismissed. H.B.T./543-/P????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.