2004 PLP 477 (SCMR)

(c) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S:302(b)‑‑‑Criminal Procedure Code (V of‑ 1898), S.164‑‑ Appreciation of evidence‑‑‑Judicial confession‑‑‑Principles‑‑‑Confession of accused recorded under S. 164, Cr.P.C. whether retracted or not, must be supported by some connecting evidence as a rule of caution. State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC 813 ref. Roohul Amin Khan, Advocate Supreme Court and M. Ismail Fehmi, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 31st October, 2003. JAVED IQBAL, J.‑‑‑This petition for leave to appeal is directed against the judgment dated 25‑5‑2003 passed by learned Division Bench of Peshawar High Court, Peshawar, whereby the criminal appeal preferred on behalf of petitioner has been dismissed and judgment dated 6‑11‑2002 of the learned Sessions Judge Swabi whereby the petitioner was convicted under section 302(b), P.P.C. for murder of deceased Jehanzeb and Khanzeb and sentenced to death as Qisas with fine of Rs.50,000 as compensation to the legal heirs of both the deceased under section 544‑A, Cr.P.C. or in default to undergo six months R.I. has been kept intact.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "crime was reported at 10‑45 p.m. on 16‑6‑1998 in Hospital at village Yar Hussain which was recorded by Munawar Khan, A. S. A., (P.W.11) in the shape of Murasila Exh.P.A./1. According to the complainant he alongwith his two deceased sons and his nephew Sher Zaman (P.W.16) were present in their tobacco barn situated in village Kalu Khan, it was 9‑00 p.m. when the appellant and the absconding co‑accused Shaukat Ali both came there duly armed with fire‑arms and on the pretext of some business with the two deceased they took them away at some distance but were followed by Aurangzeb and P. W. Sher Zaman, the latter two heard the report of fire‑shots and when they rushed towards the spot found both the deceased having sustained fire‑arm injuries and were lying injured whereas the two accused were seen escaping from the spot. Motive for the crime was that Mst. Gulnar daughter of the complainant was married to the appellant, Wilayat, who divorced her about two years prior to the occurrence which became cause of annoyance to both sides". After completion of investigation the petitioner was sent up for trial and on conclusion whereof he was convicted and sentenced as per details mentioned hereinabove by means of judgment dated 6‑11‑2002 passed by learned Sessions Judge, Swabi. Being aggrieved an appeal was preferred which has been dismissed by learned Division Bench of Peshawar High Court vide judgment impugned, hence this petition.

3. Mr. Roohul Amin Khan, learned Advocate Supreme Court entered appearance on behalf of petitioner and urged vehemently that the legal and factual aspects of the controversy have not been examined in its true perspective due to misreading and non‑reading of evidence resulting in serious miscarriage of justice. It is argued that glaring contradictions in the statements of prosecution witnesses have been ignored without any rhyme and reason causing prejudice against the petitioner. It is pointed out that various visible inconsistencies and glaring improvements went unnoticed. It is contended that no conviction could have been awarded on the basis of the statements of interested witnesses without having independent corroboration which is lacking in this case. It is also argued that the presence of Sher Zaman an eye witness at the spot being doubtful, his testimony should have been discarded being a chance witness. It is contended emphatically that the confessional statement was got recorded under duress and coercion without observing the mandatory legal formalities as envisaged under sections 164 and 364, Cr.P.C. It is argued that the principle of vicarious liabilities has hot been dealt with properly and the sentence of death could not have been awarded in view of the absconsion of co‑accused namely Shaukat who was proceeded under section 512, Cr.P.C. It is also argued that sentence of death could not have been awarded on the basis of inconsistent, sketchy and vague evidence.

4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment of learned trial Court as well as judgment impugned. The entire evidence has been scanned with the eminent assistance of learned Advocate Supreme Court. After having gone through the entire record we are of the view that prosecution has established its case by producing cogent and concrete evidence. The eye‑account furnished by Aurangzeb (P.W.15) and Sher Zaman (P.W.16) being coherent, consistent and worthy of credence has been rightly taken into consideration and relied upon by the learned trial and Appellate Courts. The above mentioned witnesses have corroborated each other on all material particulars and nothing advantageous could be elicited in spite of an exhaustive cross-examination. By no stretch of imagination Sher Zaman (P.W.16) can be termed as chance witness. His presence at the spot was not something unusual. We have noted a few contradictions in their statements which can be ignored safely being insignificant and minor in nature. "If a witness makes any contradiction, improvements, or other factors which may adversely reflect on his credibility would not by itself be sufficient to reject his testimony as a whole. Court can rely upon a portion of his testimony if it is corroborated by other reliable evidence, or circumstance." If any authority is required reference can be made to Muhammad Yaqoob v. The State 1992 SCMR 1983, Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793 and Roshan v. The State.PLD 1977 SC 557.

5. We have absolutely no doubt in our mind that Aurangzeb (P.W.15) is a truthful witness whose testimony finds full support from the medical evidence, confession of petitioner, factum of absconsion, recovery of shotgun and statement of an other eye‑witness namely Sher Zaman (P.W.16). It must be kept in view that Aurangzeb (P.W.15) is real father of the deceased namely Jehanzeb and Khanzeb who were done to death in a callous and merciless, manner. It is hardly conceivable rather impossible that the real father would substitute the assailant with that of petitioner which otherwise is a rare phenomena. There is no denying the fact that Jehanzeb and Khanzeb (deceased) were taken in the presence of their father from tobacco barn and soon after killed by the petitioner and other absconding accused by means of firing and were seen running duly armed from the place of, occurrence. We have also adverted to the prime contention of learned Advocate Supreme Court that sentence of death could not have been awarded on the basis of retracted confession. The confession got recorded by the petitioner has further been attacked by the learned Advocate Supreme Court from different angles with the submission‑ that being involuntarily it should have been discarded. It is also pointed out that on the same date, time and place another confessional statement of the petitioner was also recorded by the same Magistrate against the petitioner vide F. I. R No. 84 qua the murder of Qatl‑e‑amd of one Ihsanullah. It is also pointed out that no independent certificate was attached with the confession and thus the mandatory formalities as envisaged under section 364, Cr.P.C. were not adhered to strictly and on this score alone the confessional statement should have been discarded. In order to determine as to whether the confessional statement was got recorded voluntarily or otherwise, the statement of Muhammad Adil (P.W.17)/Magistrate has been perused carefully which is demonstrative of the fact that all the mandatory formalities have been complied with in letter and spirit. No question worth the name was asked from the learned Magistrate when his statement was being recorded regarding the factum of coercion or maltreatment which hardly deserves any consideration being devoid of merit. We are not persuaded to impress by the contention that two confessional statements were got recorded in different cases on the same day by the same Magistrate and, therefore, the confessional statement got recorded in this case becomes inadmissible for the simple reason that no legal bar whatsoever has been imposed in recording two confessional statements in two different cases on the same day. It is worth mentioning that the confessional statement got recorded in this case is inculpatory in nature and has rightly been considered and relied upon by the learned trial and Appellate Courts. There is no denying the fact that no certificate has been attached with the confessional statement but it would have no adverse effect on the worth and admissibility of this confessional statement being minor irregularity which is curable. The learned Magistrate (P.W.17) by whom the confessional statement was recorded had satisfied himself about the voluntariness of the and also completed the mandatory formalities as envisaged 164 and 364, Cr.P.C. and, therefore, it hardly matters as the certificate was attached or not. In this regard reference to case titled Umar Din v. Crown (D.B.) ILR 1921 (2) Lahore 129.

6. It is well‑established by now that conviction could have been awarded on the basis of retracted confession subject of availability of some corroboration which is not a rule of law but considered inevitable for the sake of abundant caution. The factum of recovery, absconsion, forthright eye‑account and medical evidence lend full corroboration to the retracted confession. There is no cavil with the proposition that "confession got recorded under section 164, Cr.P.C. whether retracted or not as a rule of caution must be supported by some connecting evidence". State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC

813. As mentioned hereinabove even if the confession is treated as retracted it could have been taken into consideration in view of sufficient corroboratory material as noted above and cannot be brushed aside merely on the ground that it was declared as retracted.

7. We have also adverted to the contention of learned Advocate Supreme Court that no proper dying declaration of Khanzeb who became unconscious after sustaining injuries was recorded in this case and accordingly it should have been excluded from consideration. Even if the dying declaration is excluded from consideration it would have no substantial bearing on the fate of the case in view of the overwhelming incriminating material which has come on record and discussed above. No other argument was made.

8. In sequel to above mentioned discussion we are of the considered opinion that the prosecution has proved the guilt of the petitioner to the hilt by producing worthy of credence eye‑account duly supported by medical evidence, voluntary confession made by the petitioner, factum of absconsion and recovery of shotgun. The conclusion as arrived at by the learned trial Court and affirmed by learned High Court being well‑based and unexceptionable does not warrant interference. The petition being meritless is dismissed and leave refused. N.H.Q./W‑54/S Leave refused.