P L D 2006 Supreme Court 219 (PLP)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment dated 5-9-2005 whereby the criminal appeal preferred on behalf of petitioner has been dismissed and the judgment dated 10-9-2003 passed by learned Judge Anti-Terrorism Court Mekran at Turbat has been kept intact whereby the petitioner was convicted under section 302(b), P.P.C. read with section 7(a) of the Anti-Terrorism Act, 1997 and sentenced to death for two counts. The petitioner was also directed to pay an amount of rupees one lac as compensation pursuant to the provisions as contained in section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default to suffer R.I. for six months has been kept intact.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "P.W.2 Tariq in his report dated 22-5-2003, registred with Tehsildar Tump District Kech vide F.I.R. No.16 of 2003, offence under sections 302/109/34, P.P.C. alleged that on the said date at about 11-00 a.m. his two brothers Nasir and Hakeem, who were teachers, after performing their duties were coming back to their home on a motorcycle, near Gomazi cross accused Jameel, Hakeem and Amin, made firing on them, due to which Nasir died at the spot while Aslam succumbed to the injuries on his way to hospital. The complainant by means of supplementary statement Exh.P/2-A, recorded by Naib Tehsildar/Investigating Officer at the spot, added that accused Jameel, Hakeem and Amin with Kalashnikov, rifle made firing upon his brothers, due to which Nasir died at the spot while Aslam, who sustained injures, told him that nominated accused persons made firing upon them, he after informing Tehsildar Tump over telephone took his injured brother to RHC Tump but he died on his way to hospital. The motive behind the incident was old enmity. P.W.7 Bashir Ahmed Naib Tehsildar was appointed Investigating Officer of the case, he reached at the place of incident seized the dead bodies vide memo. Exh. P/7-A, inspected the site and prepared sketch Exh.P/7-B, blood-stained clothes were seized vide memo. Exh. P/5-A. He arrested accused Muhammad Amin on 3-6-2003, who during investigation on 4-4-2003 vide disclosure Exh.P/4-A led the recovery of a TT pistol along with magazine and two cartridges and memo. Exh.P/4-B was prepared. On the very day the appellant made confession and his statement was recorded by Judicial Magistrate Tump, co-accused Hakeem and Jameel absconded as such on completion of investigation incomplete challan Exh. P/7-C was filed in the Court and appellant was sent up to face trial." On conclusion whereof the petitioner was convicted and sentenced as per detail mentioned in the preceding paragraph.

3. Mr. Muhammad Aslam Chishti, learned Sr. A.S.C. entered appearance on behalf of petitioner and contended strenuously that on the basis of retracted confession which otherwise not true and voluntary, no conviction could have been awarded in the absence of any corroboratory material. It is also contended that medical evidence does not lend corroboration to the retracted confession which, according to him, was not examined in its true perspective by the learned Courts below. Mr. Muhammad Aslam Chishti, learned Senior Advocate Supreme Court also argued that the alleged recovered pistol could not have been treated as `crime weapon', hence no corroboration could be sought from it qua retracted confession. It is contended emphatically that dying declaration should have been discarded as the deceased was not in a position to make such statement.

4. We have carefully examined the above mentioned contentions in the light of relevant provisions of law and record of the case. The judgments of learned trial as well as appellate Courts have been examined carefully and evidence which has come on record scrutinized with the eminent assistance of learned ASC. After having gone through the entire record we are of the view that the prosecution has established the guilt to the hilt by producing cogent and concrete evidence. We are not persuaded to agree with the prime contention of Mr. Muhammad Aslam Chishti, learned Sr. ASC that on the basis of retracted confession no conviction could have been awarded in the absence of any corroboratory material and more so it was not voluntary and true which elements are sine qua non for believing such statement because it transpired from scrutiny of record that the petitioner was arrested on 3-6-2003 and confessional statement was got recorded on 4-6-2003 which eliminates the possibility of use of coercion, inducement or persuasion. The promptitude with which the confessional statement was got recorded depicts voluntariness. We have gone through the statement of learned Judicial Magistrate namely Abdul Saboor (P.W.1) by whom the confessional statement of petitioner was recorded which revealed that all the necessary formalities as enumerated in section 364, Cr.P.C. were complied with in letter and spirit. The learned Judicial Magistrate (P.W.I) was subjected- to cross-examination but nothing beneficial could be extracted rendering any assistance to the case of petitioner. No question regarding maltreatment or coercive measure was asked from the learned Judicial Magistrate and the only irresistible conclusion would be that the confessional statement was got recorded by the petitioner voluntarily and at his own. It is also indicative from the answers to the questions No.5, 6, 7 and 8 asked from the petitioner at the time of recording his confessional statement. A careful scrutiny of the confessional statement would further reveal that it was admitted in a categoric manner that at the time of occurrence the petitioner was armed with TT pistol and fired upon Aslam on his, feet and also fired upon Nasir at his chest who showed resistance and both of them (Aslam deceased and Nasir) fell at the spot. The operative portion of the confessional statement is reproduced herein below. in the words of the petitioner:-

5. There is no doubt that petitioner has retracted from his statement got recorded under section 164, Cr.P.C. but stated in his statement got recorded under section 342, Cr.P.C. that it was a result of coercion and torture but surprisingly in his statement got recorded under section 340(2), Cr.P.C. a complete somersault was taken by saying that it was not got recorded. The learned Senior Advocate Supreme Courtcould not answer how to reconcile such a contradictory pleas. We are of the considered view that the confessional statement got recorded by the petitioner was true and voluntary. It is to be noted that once a confessional statement was found true and voluntary, conviction could have been awarded. Besides that what has been stated above the confessional statement finds full corroboration from medical evidence furnished by Dr. Nasir Ali (P.W.6) who found the following injuries on the dead body of Aslant:-- "(1) Two bullets wounds seen on posterior aspects of knee joint. Exit was anterior surface of knee joint. Knee cap and knee joint severely damaged and lacerated. (2) One bullet wound seen upper border of right shoulder: Exit seen anterior axillary artery damaged and extremely bleeding."

6. The dead body of Nasir was also examined by Dr. Nasir (P.W.6) and the following injuries were noted:- "(1) A circular bullet wound with entrance on his right lumber region with no exit. (2) A circular bullet wound seen lateral side left upper arm with no exit."

7. A careful scrutiny of the medical evidence would reveal that it lends full corroboration to the confessional statement of the petitioner who did not mention the seat of injuries in the manner as portraited by Mr. Muhammad Aslam Chishti, learned Senior Advocate Supreme Court and no farfetched interpretation on the plain and simple language as used by the petitioner in his confessional statement and reproduced herein above would be required.

8. The factum of recovery has been proved and on the disclosure and pointation of petitioner, a TT pistol bearing No.CAL-30-MAUSER made as China by NORINCO along with two live cartridges and a magazine was recovered duly concealed in a boundary wall which was taken into possession vide recovery memo. (Exh.P/4-B). As mentioned herein above the recovery of pistol was recovered at the pointation of petitioner at his disclosure and disclosure memo. (Exh.P/4-A) was produced before the learned trial Court. It is worth mentioning that the place from where the alleged recovery was effected was within the exclusive knowledge of the petitioner and there could be no other inference except that it was got recovered at the pointation of the petitioner. No doubt that the said 'pistol was never sent to Forensic Science Laboratory but it hardly makes any difference as the above said fact has been admitted by the petitioner himself in his confessional statement which has been adjudged as true and voluntary and besides that an admitted fact is not required to be proved again as there is no such legal requirement.

9. There is no cavil to the proposition that conviction could have been awarded on the basis of retracted confession which proposition was examined in case of Mst. Joygun Bibi v. The State PLD 1960 (SC (Pak) 313 as under: "we are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."

10. Similarly in the case of the State v. Minhun alias Gul Hassan PLD 1964 SC 813 this Court has observed as under: "As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession, whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well-settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly A form 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." The above view also finds support from the following judgments;-- Muhammad Yaqoob v. The State 1992 SCMR 1983; Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793; Roshan v. The State PLD 1977 SC 557; Umar Din v. Crown ILR 1921 Lah. 129; State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v. The Corwn 1969 SCMR 442 and Hibib Ullah v. The State 1971 SCMR 341, State v. Minhun PLD 1964 SC 813.

11. The retracted confession got recorded by the petitioner has been examined on the touchstone of the criterion as mentioned herein above We have not found any irregularity or infirmity in the confessional statement which was got recorded in accordance with law and corroborated by eye account, medical evidence and recovery of pistol at the pointation of petitioner which has rightly been taken into consideration by the learned trial Court determination whereof has been upheld by the learned Division Bench of High Court.

12. An attempt has been made to show that from the place of occurrence empty cartridges of Kalashnikov were recovered and therefore, the alleged murder was not committed by the pistol seems to be futile for the simple reason that the dead body of Nasir was lying on the southern side of the road from where no empty of pistol or kalashnikov was recovered which were subsequently handed over to the Investigating Officer by complainant which aspect of the matter has been made clear by Bashir Ahmad, Naib Tehsildar/Investigating Officer (P.W.7). It is not understood how the Kalashinkov empties produced by the complainant can be treated as `crime weapon' as pressed time and again by the learned Senior Advocate Supreme Court on behalf of petitioner.

13. In the light of what has been mentioned above the question as to whether dying declaration has got any evidentiary value or otherwise? Would have no material bearing on the fate of the case which otherwise has been discarded by the learned High Court. The entire evidence has been appreciated in accordance with the well-entrenched prevalent principles of criminal administration of justice and no illegality or irregularity has been committed by the Courts below. The determination of learned trial Court upheld by the learned High Court vide judgment C impugned which being well-based does not warrant interference. The petition being meritless is dismissed. For the reasons as mentioned herein above the criminal petition bearing No.49-Q of 2005 is also dismissed. N.H.Q./M-10/S Leave to appeal refused.