' ABDUL HAMEED DOGAR (CHAIRMAN).----This Criminal Shariat Appeal arises out of judgment dated 24-5-2001 of learned Federal Shariat Court whereby Criminal Revisions No,1 /P/2000 filed by complainant Muhammad Naeem was allowed and the sentence was enhanced to death whereas Criminal Appeal No,4/P of 2000 filed by appellant was dismissed with the modification in the sentence.
2. Precisely, stated, the facts of the case are that Crime No,77 was lodged on 9-2-1997 at Police Station Sharki, Peshawar Cantt., on the statement of Muhammad Naeem complainant in the following narration: "Subject: Murder/Theft in House No,8 SAQRD Civil Officers, Colony Peshawar Cantt.
' I had gone to my village Khalabad, Tehsil, and District Mardan, to celebrate Eid. This morning at about 11 a.m. 9th February, I got a telephone call from the duty clerk of DC Office Peshawar that my servant Habib had been shot dead in the kitchen. I rushed for Peshawar arriving at about 12-30 p.m.
9-2-1997 (sic) dead body of Habib had been removed in the meanwhile for post mortem. He had been shot in the kitchen by probably a .30 bore pistol in the back of the head. There was blood all over in the kitchen, however, there was no sign of any struggle anywhere. The doors of the top storey bedrooms were forcibly opened. The two drawers of the wooden dressing table were also forced opened. Jewellery and cash were all removed. The rest of the house was not touched."
3. On 12-2-1997 appellant Muslim Shah was arrested by the police who got recovered a .30 bore pistol along with five rounds and a spare charger, having five other rounds in it and copy of the licence. He also got recovered two gold bangles, one hammer and a screw driver. On 2-3-1997 police also arrested accused Muhammad Khan and on his pointation, the police recovered gold ornaments and other articles. Both Muslim Shah and Muhammad Khan made confessional statements before the Magistrate.
4. On 9-2-1997 Dr. Taimoor Khan, P.W. Examined the dead body of the deceased at the place of occurrence and found two injuries on his person.
5. On completion of investigation both were sent up to face trial under section 17(4) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") before the learned Sessions Judge, Peshawar.
6. The prosecution in order to establish its case examined 11 P.Ws in all.
7. In their respective statements recorded under section 342, Cr.P.C., they denied the case of the prosecution and claimed innocence. The did not produce any defence. However, appellant Muslim Shah examined on oath as required under section 340(2), Cr.P.C.
8. Appellant and co-accused were convicted under section 302/34 and were sentenced to imprisonment for life and also to pay a fine of Rs,50,000 each or in default thereof to suffer further R.I. For two years each. They were also directed to pay Rs,50,000 each as compensation to the legal heirs of deceased within the meaning of section 544-A, Cr.P.C. Or in default thereof to undergo further R.I. For six months each. However, benefit of section 382-B, Cr.P.0 was extended to them.
9. Feeling aggrieved appellant and co-accused assailed the judgment before the learned Federal Shariat Court in appeal whereas complainant Muhammad Naeem Khan filed Criminal Revision for enhancement of their sentence. The sentence of appellant was enhanced from the imprisonment for life to death whereas that of co-accused Muhammad Khan was maintained. With this modification, the appeal as well as the criminal revision were disposed of vide impugned judgment.
10. We have heard Mr. Javed Aziz Sindhu, learned Advocate Supreme Court for the appellant and Mr. Imtiaz Ali, Additional A.-G., N.-W.F.P. And have gone through the record and the proceedings of the case in minute particulars.
11. Learned counsel for appellant contended that the incident is un-witnessed one and the case of prosecution hinges upon the circumstantial evidence only. According to him, only piece of evidence against appellant is retracted confessional statement which admittedly is recorded after six days of arrest of appellant and lacks independent corroboration from other circumstantial piece of evidence. He contended that the recoveries are not of intrinsic value and cannot be relied upon as corroborative piece of evidence.
12. On the other side, Mr. Imtiaz Ali, Additional A.-G., N.-W.F.P. Controverted the above contentions of appellant's counsel and argued that the prosecution has fully established its case by producing strong circumstantial evidence in the shape of confessional statement of appellant, medical evidence and recovery of incriminating articles, namely, .30 bore pistol along with five rounds, a spare charger, two gold bangles, one hammer, screw driver and golden ornaments from appellant.
According to him, the delay in recording the confessional statement of appellant would not be fatal to the case of prosecution as the appellant at his own accord and voluntarily confessed the guilt and narrated the entire episode without any coercion or duress.
13. The factum of unnatural death of deceased is not disputed which stands confirmed by the evidence of Medical Officer Dr. Taimoor Khan who opined that the cause of death of deceased was the result of fire-arm injuries.
14. For better appreciation, it would be appropriate to examine the intrinsic value of the pieces of circumstantial evidence collected against appellant. As regards confessional statement, the same cannot be rejected merely on the ground that it was recorded after six days of the arrest of appellant. It is well-settled that confessional statement although retracted would be sufficient piece of evidence for conviction if it is found true, voluntary and was not obtained by coercion or inducement or torture. In the instant case, the intrinsic value of retracted judicial confession of appellant has been examined by two Courts below and both of them have come to a judicious conclusion that the same does not only inspire confidence but is fully corroborated by medical evidence. Irrespective of the above, the factum of confessional statement being true is further supported by the statement of P.W. Muhammad Yar Said Khan, Judicial Magistrate, who in unequivocal terms stated before the trial Court that all the legal formalities were fulfilled prior to the recording of confessional statement of appellant as required under rules. To that effect, he appended certificate categorically mentioning that due care and caution was taken and it was on his own appellant volunteered to give the detailed narration of the incident which was recorded by him in his own verbatim. The factum that appellant was the driver of complainant Muhammad Naeem who was in Government service and had gone to celebrate Eid in his village was exclusively within his knowledge and finding such a chance he in 'collusion with his co-convict Muhammad Khan arranged a programme to commit a dacoity in his house. It was with that purpose, they went in the house of complainant and finding his cook Habib available in the kitchen fired at him and killed him and then committed robbery of gold ornaments, cash in Pakistani rupees and dollars.
Confession though retracted is corroborated by strong circumstantial piece of evidence such as matching of empty bullets .30 bore secured from the place of occurrence with the pistol recovered from appellant and report of Forensic Science Laboratory. Irrespective of above, it is corroborated by recovery of gold bungles, other gold ornaments and currency etc. In the cases of Wazir Khan v.
The State (1989 SCM R 446) and The State V. Minhun alias Gul Hassan (PLD 1964 SC 813), this Court has held that retracted confessions, 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. As regard the delay of six days in recording of confessional statement, we are fortified from the case of Khuda Bukhsh v. The State (2004 SCM R 331), wherein learned Shariat Appellate Bench of this Court did not consider the delay of 15 days in recording the confessional as it was found true and voluntary and was not obtained under duress or coercion.
15. For what has been discussed above, we are of the considered opinion that the prosecution has successfully established case against the appellant beyond any shadow of reasonable doubt.
' Accordingly, appeal stands dismissed.