' IJAZ-UL-HASSAN KHAN, J.--- Vide judgment dated 2-11-1999, rendered by learned Special Judge, Lakki Marwat, in case No,21 of 1997, Muhammad Jamil Afridi, appellant was convicted under section 302(b), P.P.C. For causing murder of his colleague Nazir Gul and was sentenced to life imprisonment. A fine of Rs,1,00,000 (one lac) was also imposed upon the appellant, which, if recovered, was to be paid to the legal heirs of the deceased, as compensation under section 544- A, Cr.P.C. And in default of payment of fine, the appellant was to undergo further S.I. For six months.
Benefit of section 382-B, Cr.P.C. Was accorded to him.
2. Feeling aggrieved, appellant has challenged his conviction and sentence, by filing the instant Jail Appeal No,107 of 2004, which is before us for consideration.
3. The prosecution story in brief is, that on the night of occurrence i,e, 7-6-1996 at 11-56 NK Nazar Gul, Platoon No,3, F.C. Post Qila Masti Khel, complainant in this case and NK Muhammad Umer were on duty as Guard Commanders. The complainant woke up on hearing the report of two fire shots at mid-night along with other F.C. Personnels. He checked the cots and found F.C. Nazir Gul breathing his last in a pool of blood. The complainant attended him and climbed upstairs and checked the rifle of Muhammad Jamil and found the same with 8 loaded rounds while 60 live rounds of 7.62 bore were issued to him for duty. Two rounds were found deficient. The rifle was giving smell of freshly discharged powder. Sahibzada, Muhammad Jamil and Muhammad Siddique, Senteries were made to sit and information regarding the incident was conveyed to F.C. Line, Bannu. Subedar Major Minadad came from Bannu to the site of occurrence. Muhammad Jamil, accused confessed his guilt before him and admitted to have killed F.C. Nazir Gul. P.W. Nazif Shah, S.H.O., Police Station Tajori on receipt of information, reached the spot, recorded the report Exh P.A./1, sent the same to police station for registration of case, prepared injury sheet Exh.P.W.9/1 and inquest report Exh.P.W.9/2 of the deceased and dispatched the dead body to the mortuary for post-mortem examination. He then prepared site plan Exh.P.B. With all its foot notes and sketches, took into possession rifle 7.62 bore and 8 live rounds of the same bore, produced to him by Lal Hamid, vide recovery memo. Exh.P.W.4/1. He also took into possession blood-stained earth, one cot, quilt, mat and pillow, vide recovery memo. Exh.P.W.4/2. He also secured into, possession two empties of 7.62 bore, separated out of 8 live rounds of the same bore, vide recovery memo. Exh.P.W.4/4. The empties and live rounds along with rifle were sent to the Fire-arm Expert, Peshawar and the last- worn clothes of the deceased to the Forensic Science Laboratory, Peshawar for opinion and report.
The reports (Exh.P.K. And Exh.P.K./l) were placed, on the record. On.Completion of investigation, challan was submitted in Court.
4. On the conclusion of the trial, learned trial Judge convicted and sentenced the appellant by the judgment now under challenge, in the manner aforesaid.
5. P.W.1 Dr. Aurangzeb, Medical Officer, Rural Health Centre, Tajori on 8-6-1996 at 6-00 a.m.
Conducted autopsy on the dead body and found the following injuries on the person of Nazir Gul deceased:-- "Wounds
(1) Fire-arm entrance wound 5 mm x 5 mm in size on the right side of the chest 3" below the right nipple and 4" lateral to the xiphisternum.
(2) Fire-arm exist wound 2 x 2.1/2" in size on the right lateral aspect of the chest 6.1/2" below the right axillary pit. Pieces of liver were protruding out of the wound.
(3) Fire-arm entrance wound 5 x 5 c.m. In size on the lateral aspect of the right buttock 3.1/2" below the right iliac crest.
(4) Fire-arm wound 1.1/2" x 1.1/2" in size on the posterior aspect of the right buttock, 3" from the anal cleft (towards right). Crenium and spina.
' Probable time between injury and death ... 10-15 minutes. Between death and post-mortem 6-8 hours.
6. To prove the charge, prosecution produced as many as 11 witnesses. After close of the prosecution evidence, the accused was examined under section 342, Cr.P.C. And the prosecution case was put to him, to which he denied and claimed to have been charged falsely. In reply to a question, as 'to what is your statement and why are you charged' he stated:-- "I am innocent and have been wrongly implicated. Since, the occurrence took place within the four walls of the Fort, these paramilitary discipline demanded that even if the actual assailant was not identified, someone must be nominated as accused. Resultantly, three sentries were summoned and since they were on duty and admittedly awake, therefore, they were summoned and to my misfortune I fell a victim. It is in the evidence that there were as many as 70 persons sleeping together and the deceased was flanked by either side by his sleeping colleagues. The lights had been put off at 9-00 p.m. I was in a picket on duty much far away and above the ground. The recovery of two empties allegedly from points Nos.8 and 9 completely contradicts the blind charge and the locale of injury and medical evidence also contradicts the ocular version. The best evidence has been either withheld or suppressed. There is no motive at all for me to have committed the murder and motive stands completely unproved. There is not even the evidence that I was around the ground where Jawans were asleep. On the contrary it is on record that immediately on hearing of shots, the P.Ws.7 climbed up and found me on my place of duty."
7. He did not produce any defence evidence nor did he appear in the witness-box as required under section 340(2), Cr.P.C.
8. At the very outset, Chaudhary Muhammad Sharif, learned Deputy Advocate-General raised a preliminary objection that the appeal having been filed on 1-9-2004 against judgment dated 2-11- 1999, is barred by time and merits dismissal on this ground alone. The submission is not tenable.
Having regard to facts and circumstances of the case, we condone the delay in the interest of justice and propose to decide the appeal on merits. Gul Tiaz Khan v. The State PLD 2004 Pesh.
299.
9. Assailing the impugned judgment, Mr. Farooq Akhtar, Advocate for the appellant contended with force that it was an unseen occurrence and blind murder; that the entire prosecution case suffers from infirmities, improbabilities, weaknesses and material contradictions; that the prosecution evidence regarding extra-judicial confession is highly doubtful and possibility that the appellant may have been subjected to some sort of torture and harassment cannot be ruled out; that in absence of cogent reason, why the appellant should commit the murder of the deceased has not been established by the prosecution and the accused cannot be saddled with this occurrence. The learned counsel also contended that the ocular account is in direct conflict with medical evidence, recoveries have not been proved and the best evidence has been withheld, which adversely reflects on the prosecution version. Concluding the arguments, the learned counsel submitted that the whole case being full of doubts, is shrouded in mystery and there being no evidence connecting the accused with commission of crime, the learned trial Court has acted in disregard and settled principle of law and justice by convicting the appellant on capital charge.
10. On the contrary, learned Deputy Advocate-General, assisted by Khawaja Muhammad Khan, Advocate, counsel for the complainant, supported the impugned judgment, maintaining that prosecution has substantially proved its case against the appellant and the appeal merits outright dismissal. In this regard, reliance was placed on Gul Nawaz v. The State 1998 PCr.LJ 1730 (Peshawar) and Muhammad Ibrahim v. The State 1998 PCr.LJ 1993 (Quetta).
11. With the assistance of the learned counsel for the parties, we have gone through the entire evidence and perused the record and heard them at length.
12. The prosecution case mainly rests upon the testimony of complainant Nazar Gul, extra-judicial confession, coupled with the corroboratory and confirmative evidence.
13. The crucial point for determination is whether the extra-judicial confession had been voluntary and true. There is no material to suggest that the appellant has been coerced or induced to make that statement. The facts brought out in the extra-judicial confession find corroboration in material circumstances. The extra-judicial confession has been made before P.W. Minadad Khan, in the presence of complainant, Said Ghafoor and Muhammad Siddique P.Ws. The medical evidence confirms the death of the deceased caused by fire-arm injuries. In the circumstances, the extra- judicial confession is found to be both voluntary and true and as such, even though retracted is relevant. 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 basing 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 confession though retracted was true and voluntary, the same can safely be made basis of conviction. We are satisfied that the extrajudicial confession was voluntary, truthful, free from any duress and coercion. 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 a strong circumstance to establish that confession was true and voluntary. State v. Minhum alias GuI Hassan PLD 1964 SC 813; Bahadur Khan v. The State PLD 1995 SC 336 and Naqibullah and another v. The State PLD 1978 SC 21
14. It was vehemently contended by learned counsel for the appellant that Feroz Khan, Ali Shah and Lal Hamid, constables were independent witnesses but they were not produced by the prosecution at the trial, therefore, inference may be drawn that if they would have appeared in the Court they might have disclosed true picture of the incident. The argument is not tenable, for the reason that law governing administration of criminal justice has not cast a duty upon the prosecution to produce all the witnesses who have seen the incident because it is the quality of the evidence but not quantity which matters. It may be noticed here that P.W. Lal Hamid has since expired during the trial, whereas the remaining witnesses have been withheld for valid reasons. It is not mandatory for the prosecution to produce all the witnesses cited by it in the calendar of witnesses. The appellant could have examined them in defence but having failed to avail that option/right, he cannot be permitted to raise the same plea. Sarfraz alias Sappi and 2 others v. The State 2000 SCM R 1758.
15. It is a case of promptly lodged F.I.R. All necessary details have been given. The prosecution witnesses were subjected to lengthy and grueling cross-examination but we have observed that defence has not failed to shatter the credibility of these witnesses nor the defence has succeeded to bring on record an iota of evidence to show that these witnesses had any malice to falsely implicate the appellant in this case. Nothing much has been elucidated from the cross- examination of the P.Ws. Which could detract from the efficacy of their statements. The ocular account narrated by these witnesses stands corroborated by the medical evidence which proves the fact that the deceased sustained two wounds and died as a result of fire-arm injuries. We see no reason as to why these witnesses who had no axe to grind would implicate the appellant falsely in this case. The discrepancies pointed out by the learned counsel for the appellant are not of the nature to doubt the credibility of witnesses.
16. A strong motive is alleged against the appellant. The motive is furnished in the F.I.R. The motive has been established satisfactorily. Anyhow, it is not denied that mere absence or weakness of motive would not come in the way of prosecution if the case is otherwise proved by reliable evidence. Motive is not considered a sine qua non for proving the offence of murder and mere absence of motive is no ground to doubt the truth of prosecution case as held in Muhammad Ramzan v The State 1992 PLD 302 and State/Government of Sindh through Advocate-General Sindh, Karachi v. Sobharo 1993 SCM R 585.
17. In view of the above discussion, we find that prosecution has successfully established the murder charge against the appellant, through statement of the complainant, extra-judicial confession of the appellant, medical evidence, recoveries, motive and positive reports Exh.P.K. And Exh.P.K./1 of Fire-arm Expert and Serologist respectively. There is hardly any substantial ground for lawfully challenging the impugned judgment. The appeal fails, which is hereby dismissed.