1998 P Cr (PLP)

4. After assessing the evidence on record, the learned Additional Sessions Judge, Khuzdar vide judgment, dated 5‑11‑1997 convicted the appellant as mentioned hereinabove.

5. We have heard Mr. K.N. Kohli, Advocate for the appellant and Mr. Noor Muhammad Achakzai, learned Additional Advocate‑General for the State.

6. Mr. K.N. Kohli, Advocate stated that since klashnikov was used in the commission of offence; as such the offence being a scheduled one, only the Suppression of Terrorist Activities Court had jurisdiction to try the case; as such trial of the case before Additional Sessions Judge was without jurisdiction. The learned counsel further contended that the trial Court has wrongly convicted the appellant on the sole basis of confessional statement. As the confessional statement has not been corroborated as such the conviction is not sustainable under the law. The learned counsel further stated that the cause of death was not known as the medical certificates have not been produced; as such on this score also the conviction was not sustainable. Mr. Noor Muhammad Achakzai, learned Additional Advocate‑General while supporting the judgment of the trial Court argued that as far as jurisdiction of the Additional Sessions Judge, Khuzdar is concerned, no objection was raised before the Additional Sessions Judge, Khuzdar: The appellant submitted to the jurisdiction of the said Court. Besides, no prejudice has been caused to the appellant. The learned Advocate‑General regarding the confession of the appellant stated that it was rightly believed by the trial Court being voluntary in nature and the appellant has given truthful account of the incident and further that conviction can be based on the sole confessional statement provided the same bears truth and is confidence inspiring. Regarding medical certificate he stated that the relatives of the deceased did not want that post‑mortem be conducted; as such the medical certificate could not be produced and besides, unnatural death of the deceased persons has not been denied by the defence.

8. We have perused the record and have considered the arguments of the learned counsel for the parties.

9. Adverting to the objection of Mr. K.N. Kohli, Advocate that since klashnikov was used and being a scheduled offence, the case was exclusively triable by Suppression of Terrorist Activities Court, the learned Additional Sessions Judge had no jurisdiction to try the case. It may be observed that it is well‑settled that the jurisdiction of the Court to try the case is to be determined on the basis of the allegations contained in the F.I.R. and material collected by the prosecution at the time of submission of the challan. In the case in hand in the F.I.R. Exh.P./1‑A there is no mention of use of klashnikov and in recovery memo. Exh.P/3‑A, it is only mentioned that 9 empties of 7.62 rifle were taken into possession. The word klashnikov has been used for the first time during the trial by P.W.3 Kaleem Bakhsh wherein he stated that 9 empties of klashnikov were taken into possession from the place of incident vide recovery memo. Exh.P./3‑A. Further in the confessional statement of appellant Exh.P./4‑A, which was produced by PWA Asmatullah wherein it has been stated that klashnikov was used. Thus, in our considered opinion the challan was rightly submitted before the Additional Sessions Judge Khuzdar as when the trial commenced there was nothing on record to show that the case was triable by the Special Court; we are fortified by the dictum laid down in Allah Din and 18 others v. The State and another 1994 SCMR 717.

10. It may be pointed out that the jurisdiction of the learned Additional Sessions Judge was not challenged, the appellant submitted to the jurisdiction of the ordinary Court and throughout the proceedings did not raise the question of jurisdiction. Moreover, the learned counsel for the appellant failed to show as to what prejudice has been caused to the appellant. Thus, the argument of Mr. K.N. Kohli, learned counsel objecting to the jurisdiction of Additional Sessions Judge, Khuzdar is devoid of force, hence repelled.

11. Turning to the next limb of arguments that conviction cannot be based on the sole confessional statement, it may be observed that the incident was un-witnessed; there is no ocular evidence of the incident and after commission of the offence, the appellant alongwith the co‑accused absconded. The appellant was arrested on 15‑2‑1997 and his confessional statement was recorded on 17‑2‑1997. The appellant has been convicted on the sole basis of his confessional statement which has retracted at the trial. As mentioned hereinabove, there was no direct evidence against the appellant as the incident was un-witnessed. The arguments of Mr. K.N. Kohli, Advocate that conviction cannot be based on sole confessional statement has no substance. It is well- settled now that conviction can be based on the sole confessional statement provided the same is voluntary and true, though as a rule of prudence, corroboration of the confessional statement is sought when there is no other evidence. Reliance is placed on the following cases:‑‑ (i) Syed Mehr Gul v, The State PLD 1962 Pesh. 91 wherein it has been held:‑‑ "Conviction of an accused person can be based on his retracted confession if it is found to be voluntary and true and is not hit by any of the factors that might legally vitiate it although as rule of prudence, the Courts do also look for its corroboration. In the present case we do not find any circumstance to hold the confession otherwise than as voluntary and true." (ii) State v. Minhan alias Gul Hasan PLD 1964 SC

813. In this case the Honourable. Supreme Court observed:‑‑ "As for the confession the High Court; it appears, was duly conscious of the fact that retracted confessions whether judicial or extra judicial could legally be taken into consideration against the maker of those confession himself, and if the confessions were found to he true and voluntary, then there was no need at all to look for further corroboration. It is now well‑settled that as against the maker himself, his confession, judicial or extra‑judicial, whether retracted or not retracted can in law validly from the sole basis of his conviction if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement." (iii) Wazir Khan v. State 1989 SCMR

446. In this case the Honourable Supreme Court held:‑‑ "There is no legal bar for recording a conviction on a confession which is subsequently retracted if it is voluntary and true. We have not come across any infirmity in the confessional statement of the appellant to render it is unacceptable. On the other hand, we are of the view that the appellants had told the truth." (iv) State through Advocate‑General, N.‑W.F.P., Peshawar v. Waqar Ahmed 1992 SCMR

950. In this case the Honourable Supreme Court made the following observations:‑‑ "When an accused has given an account of the incident and its truth is not doubted and such statement is proved to be correct in all its parts, such solitary piece of evidence can be used against the accused without any further corroboration. There is no basic difference between a confession or a retracted confession, if the element of truth is not missing. It is always a question of fact which is to be adjudged by the Courts on the attending circumstances of a particular case. In this case we have come to the irresistible conclusion that the confessional statement of the accused is true and voluntary and conviction could be recorded in such statement." (v) Behadur Khan v. The State PLD 1995 SC

336. It was observed:‑‑ "It is well‑settled that retracted confession should be accepted only if it is corroborated by clear, cogent and independent evidence. Although there is no such provision to accept retracted confession on the basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily, free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reason given for retracting this pulpably false, absurd and incorrect, the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek some corroboration for retracted confession."

12. The main point to he determined in the case in hand is, as to whether the confessional statement believed by the trial Court is upto the required standards laid down by the Superior Courts. As there is no ocular evidence of the incident and the case of prosecution entirely depends upon the retracted confession of the appellant thus, the confessional statement requires close scrutiny. 12‑A. To begin with the confessional statement, the appellant stated before the Committing Magistrate that the deceased Ali Hasan had murdered his brother Manzoor Ahtnad and thereafter, the deceased alongwith Amanullah and Nazar Khan murdered our relatives Rasool Bakhsh and Bahadur Khan. To avenge the said murders he alongwith Sayeed Khan, Juma Khan and Ata Muhammad planned to murder deceased Ali Hussain and Saadullah. On the day of incident, both the deceased persons had gone to Gulzar and we waylaid them on the road. While they were coming from Gulzar to Bazar Zehr, we fired upon them with klashnikov and they succumbed to the injuries. Thereafter. he alongwith Ata Muhammad and Sayeed Khan and Juma Khan took motor‑cycle of the deceased persons from Kohan to Zehri and at Zehri they left Juma Khan and he alongwith the other three accused persons went to Mangochar near Kalat and sold the motorcycle to one Afghan Muhajir for Rs.38,000 and thereafter, went to Nawab Shah, Sindh, where his father is residing in Goth Ghulam Hyder at Nawab Shah. He further stated that Ata Muhammad has gone to Masqat while Sayeed Khan and Juma Khan are in Zehri. As it has been observed, the appellant after commission of the offence absconded alongwith the other co‑accused and he was arrested on 15‑2‑1997 and in his confessional statement he has also given the detailed account of his absconsion. 12‑B. The appellant was produced before the Magistrate for recording of his confessional statement after two days of his arrest. Before the trial Court, the Magistrate deposed that he took all necessary precautions as required under the law. He further stated that after being satisfied that the appellant was recording iris confession voluntarily and without coercion and inducement, he proceeded to record the same. He further stated that he asked the appellant whether he has been tortured by the Levies to which the appellant replied in negative. The Magistrate was not cross-examined on the point that the confessional statement was not voluntary and no question was put to him in cross‑examination that he I had recorded the confessional statement without complying with the pre requisites of law. Where the statement of Magistrate is unchallenged as .in the case in hand, it is not possible to presume that the Magistrate had recorded the statement without complying with the requirements of law as laid down under section 164(e), Cr.P.C. and inference would be that the accused made the confessional statement voluntarily and has deposed the truth.

13. The appellant recorded his confessional statement after two days of his, arrest and in his statement has given the motive for firing at the deceased persons. The motive which was only known to him, came from the mouth of the appellant and he alone had knowledge about the previous enmity and has also given the account of his absconsion as after commission of the offence he absconded to Nawab Shah, Sindh. Thus, in our considered opinion the retracted confession of the appellant rings true even intrinsically as he has given the detailed account of the incident and there is nothing on record to discredit the credibility of the confession.

14. The appellant has retracted his confession when he was examined under section 342, Cr.P.C. He only stated that he did not record any confession, without assigning any reason retracted the same. It is well‑settled that when an accused person retracted or resiles from his confession, then the onus lies on him that he did not record any confession. The appellant has brought nothing on record to show that the confession was not voluntary or the same was obtained through coercion or inducement. Thus, in our considered opinion the retraction of the same seems to be pulpably false, aburd and incorrect, we find the confession as weighty evidence against the appellant, thus, there is nothing to hold the confession otherwise than as voluntary and true.

15. Coming to the argument of Mr. K.N. Kohli, Advocate that the cause of death was not known, it may be observed that the unnatural death of the deceased, persons has not been disputed throughout the trial. Even the G Investigating Officer stated that the dead bodies of the deceased persons were handed over to their legal heirs on their request that they did not want any post- mortem hence for the aforesaid reasons, the contention of the learned counsel has no substance, thus, not tenable.

16. For the foregoing reasons we see no merits in the appeal. Consequently, the same is dismissed and the impugned judgment, dated 5‑11‑1997 passed by the trial Court is upheld. N.H.Q./679/Q Appeal dismissed.