' MUHAMMAD NAWAZ ABBASI, J.---This petition has been directed against the judgment dated 8-1- 2002 passed by a Division Bench of High Court of Sindh, at Karachi, in an appeal filed by the petitioner against his conviction and sentence of death awarded to him by the Special Court, established under Anti-Terrorism Act, 1997 at Karachi.
2. The petitioner was tried under sections 302/149/34 P.P.0 and section 17(4) Offences Against Property (Enforcement Hudood) Ordinance, 1979 read with section 7 of Anti-Terrorism Act, 1997 and section 13-E of Arms Ordinance 1965 and the trial Court having found him guilty of all the charges convicted and sentenced as under:-
(a) sentence of death under section 302 (b) P.P.0 read with section 17(4) Offences Against Property (Enforcement' of Hudood) Ordinance, 1979 with direction to deposit an amount of Rs,1,75,000 as Diyat for payment to the legal heirs of deceased.
(b) sentence of five years' R.I with a fine of Rs,10,000 under section 13-E Arms Ordinance, 1965 and in default of payment of fine to undergo R. L for one year.
' He was, however, allowed the benefit of section 382-B, Cr.P.C. The High Court in appeal, while maintaining the conviction and sentence awarded to the petitioner under section 302(b), P.P.C, converted the conviction under section 17(4) Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 into section 392, P.P.0 and sentenced him to R.I. For 10 years. The Diyat amount of Rs,1,75,000 was also converted into compensation under section 544-A, Cr.P.C., and the sentence under section 13-E of the West Pakistan Arms Ordinance, 1965, was upheld.'
3. The facts precisely are that Col. (Retd.) Bilal, (deceased) who was employed as Manager (Administration) in Pearl Continental Hotel, Karachi, on 21-11-1998 after obtaining certain cash from Habib Bank Limited, JPMC Brach, Karachi, while driving car bearing No,V-2477, provided to him by his employer, followed by Muhammad Fakhar Hussain, (complainant) his driver in his private car bearing No,W-2065 when reached near Mohajar Mosque, Lines Area, at 10.30 a.m., suddenly a white Margalla car in which three persons were sitting, overtaking the car of deceased, forced him to stop his car, whereupon, the deceased coming out of the car, put resistance and one of them who was armed with pistol, having scuffled with the deceased, fired at him by putting pistol at his neck.
The culprit after snatching his purse and removing some other articles lying in the dash board of his car, ran away from the spot. The petitioner while in custody in another case at Sukkur, disclosed about the commission of crime in this case and desired to make judicial confession, therefore, he was produced before a Magistrate at Sukkur who recorded his confessional statement under section 164 Cr.P.C.
4. The prosecution mainly relied upon his confessional statement in which he disclosed the occurrence in detail as was found mentioned in the F.I.R. Lodged by Fakhar Hussain immediately after the occurrence.
' The Magistrate, who recorded the statement of petitioner in his statement before the Court stated that the confessional statement of the petitioner was recorded by him under section 164, Cr.P.C., on oath. Ijaz Ahmed, Inspector/S.H.O. Police Station B-Sector, Sukkur, arrested the petitioner and his co-accused as an accused in a case at Sukkur and on the disclosure of the petitioner that he committed murder of Col. (Retd.) Bilal, at Karachi, produced him before a Magistrate at Sukkur for recording his judicial confession. Syed Jehangir, S.H.O./Inspector, of the concerned Police Station recovered 4 crime empties from the place of occurrence and Rao Muhammad Iqbal, at the instance of petitioner recovered pistol from a flat bearing No,310 Belli Paradise, Gulshan-eJauhar, Karachi, in his occupation. The post-mortem examination of the deceased revealed that he sustained a fire arm entry wound on his throat with an exit wound on his neck which was caused from close contact. The petitioner was identified as culprit of the occurrence by Muhammad Faheem, complainant, in the identification parade conducted by Sadiq Hussain Khan, Judicial Magistrate (P.W.12) and in the second identification parade, he was identified by Haji Muhammad Arif. Raza Imdad Haider (P.W.13) Manager of the Habib Bank, JPMC Branch, Karachi, deposed that on the fateful day, deceased presented a cheque amounting to Rs,15,000 in the bank and at about 10 a.m., he encashed the cheque.
5, The petitioner in his statement under section 342, Cr.P.0 pleaded innocence and false implication. In the statement under section 340(2), Cr.P.C. He admitted that he was dismissed from police service and was also involved in a number of the criminal cases.
6. Learned counsel for the petitioner has contended that the Magistrate who recorded the judicial confession of petitioner admitted that the confessional statement was recorded on oath and under the law, the confessional statement which was recorded on oath would not be admissible in evidence and that with the exclusion of the judicial confession of the petitioner from consideration, there was no other evidence, direct or circumstantial, to connect him with commission of offence.
The learned counsel, however, has not been able to point out any other defect in the confessional statement of the petitioner and conceded that a retracted judicial confession, if is found confidence inspiring can be relied upon. The learned counsel having taken us to the statement of Muhammad Fakhar, complainant, contended that he was not present at the place of the occurrence and subsequently reached in the hospital along with the wife of deceased on receipt of information of the occurrence and his statement was recorded in the hospital. The learned counsel argued that it was an unseen occurrence, therefore, identification of the petitioner would be of no significance and similarly the recovery of the pistol allegedly used as weapon of offence from residential flat at his instance, was not reliable as neither the petitioner was in occupation of the flat in question nor there was any plausible explanation that why the police officer who firstly raided at the flat did not effect the recovery of pistol. In nutshell, learned counsel contended that the prosecution evidence in the present case was shaky and not confidence inspiring to be relied upon.
7. The prosecution, in support of the charge against the petitioner, mainly relied upon the retracted judicial confession of the petitioner and this is settled proposition of law that retracted judicial confession if is found confidence inspiring, alone can be made basis of conviction but in the interest of criminal administration of justice, the rule of independence corroboration is insisted in a case in which the retracted judicial or extra-judicial confession is the sole evidence. The main contention of the learned counsel was that judicial confession having been recorded on oath would not be admissible in evidence and was not a legal evidence to be made basis of the conviction. There was nothing in the confessional statement of the petitioner to indicate that he was administered oath by the Magistrate before recording the statement but the Magistrate in his statement has stated that he recorded the confessional statement of the petitioner on oath. Be that as it may, detail examination of the evidence on record would show that the involvement of petitioner in the case and only on his desire to make a confession, produced him before a Magistrate. The perusal of the statement of Magistrate who recorded the confession of petitioner, would show that petitioner confessed his guilt without any compulsion or coercion or outside influence. The Magistrate before recording the statement of petitioner, had informed him that he was not bound to make the confessional statement which could be used against him as an evidence and also put all necessary question to him to satisfy himself about the volunteerness of the petitioner to make such a statement. The trial Court and also the High Court, having made a detailed scrutiny of the circumstances, under which petitioner confessed his guilt before a Magistrate found that the confession was truthful and confidence inspiring.
8. The careful perusal of evidence would lead to an irresistible conclusion that the petitioner made confessional statement free from any outside influence or inducement and the circumstances would amply suggest that he willingly and voluntarily confessed his guilt before the Magistrate. We agree with the learned counsel that the confessional statement of an accused should not be recorded on oath but mere fact that a judicial confession was recorded on oath, would not be sufficient to reject it as it may be only a procedural mistake in the form of an irregularity in exercise of jurisdiction which may not affect .The statement in substance. The rule is that notwithstanding the procedural defect in recording the confession, a retracted judicial or extra-judicial confession if is found true, voluntary and confidence inspiring, it can safely be made basis of conviction. The deceased was carrying cash of Rs,15,000 with him at the time of occurrence and he in order to put resistance to the forcible snatching of amount by the accused, scuffled with the petitioner and during this process, petitioner fired at him with pistol from the close distance. The occurrence disclosed by the petitioner in his confessional statement was narrated in the same manner in the F.I.R and this similarity of confessional statement of the petitioner with the story of F.I.R would strongly suggest the truthfulness of statement of complainant and also of the confessional statement of the petitioner which was found independent, true and voluntary. The proposition that judicial confession recorded on oath is not admissible and must be excluded from consideration was dealt with by the Shariat Appellate Bench of this Court in Criminal Appeal No,53(S) of 2001 wherein it was held as under:-- "11. There is clear distinction of the standard of evidence for proof of an offences punishable as Hadd and of an offence punishable as of Ta'zir and the combined effect of above provisions of law is that the evidence to prove an offence punishable as Hadd, must be in terms of Injunctions of Islam and for an offence punishable as Ta'zir, proof can be in either form provided in Article 17 of Qanun-e-Shandat, 1984. Islam emphasizes that Muslims must speak truth and abstain from telling lie which is a sin. Allah Almighty in His Command Says, in Holy Qur'an "0 believers! Stand steadfast with justice as a witness for Allah even if it is against you or against your parents or nearer, even if he is rich or poor, Allah is more nearer than all those both. (4/35)". The Holy Prophet said "Tell truth even if it goes against you". The concept of English Law that an accused is not bound to speak truth, appears to be in conflict with the concept of truth in Islam that a person must speak truth and must not tell lie. Therefore, according the rule of evidence in Islamic Law a confession, made by an accused before the Court is presumed to be based on truth and the principle of English Law that a retracted judicial confession if found confidence inspiring can be made basis of conviction, is based on the rule of evidence of Islamic Law that a judicial confession if is not retracted by the maker, is sufficient evidence for punishment of an offence as Hadd and if a person after making a confession of his guilt before a competent Court, retracts from his confession at any subsequent stage, the punishment of Hadd on the basis of such confession cannot be enforced but it is a valid and legal evidence to sustain conviction of a person for such an offence as Ta'zir. In the light of this rule the subsequent retraction of judicial confession by an accused would neither reduce its value nor affect the truthfulness and admissibility of confession as evidence and consequently, a judicial confession recorded on oath despite being not legal under Oaths Act, 1873, if contained true statement of facts, may be admissible in evidence subject to the test of it being true and voluntary and can validly be used as an evidence in Hadood cases punishable as Ta'zir. We therefore, without going into the question regarding the enactment of section 5 of Oaths Act, 1873, on the touchstone of Injunctions of Islam or not, concentrate to the question relating to the admissibility of a confession which was recorded on oath. The rule of evidence of Islamic Law, envisages that the real test to believe or disbelieve a confessional statement is not the method in which the confession is recorded rather it is to be seen that what is stated in the confessional statement is true and the confession was made voluntary. However, there is difference of opinion of Imam Abu Hanifa with Abu Yousaf and Imam Muhammad on the subject. According to Imam Abu, Hanifa giving of oath to an accused as Hadd except in a case of theft, is not valid whereas Imam Abu Yousaf and Imam Muhammad held giving of oath is valid in all matters except in lian. (Al-Jami-ul- Saghir by Imam Mohammad Bin Hassan Al-Sheebani Kitabul Qada'P 318). The recording of judicial confession on oath is certainly prohibited under Oath Act, 1873 and a Magistrate if recorded the statement of an accused in the manner which is prohibited under the law, may have committed an illegality in exercise of jurisdiction but if the confessional statement contained true statement of, facts, it may not lose the status of legal evidence merely because of adopting of the procedure for recording the confession by the Magistrate which is prohibited under the law unless it is shown that the accused was misled and injustice was caused to him by adopting such procedure, therefore, such procedural illegality would assume the character of an irregularity which may not render the confession inadmissible. The object of procedure for conducting criminal proceedings is to enable the Court to ensure the fair trial an3 to do the justice and if in a particular case, despite departure to the rule of procedure, justice was done and order was found just and proper which caused no prejudice and injustice to the accused, there would be no necessity to undo it and set it aside for the mere reason that a wrong procedure was adopted. The perusal of confessional statement _ of appellant, , would show that the Magistrate either due to lack of sufficient experience or by mistake recorded the confessional statement of the appellant on oath but adhered to the strict compliance of all necessary formalities required under the law for recording the confession. Therefore, the mere defect of recording such statement on oath and bare denial of the appellant, in his statement under section 342, Cr.P.C., that confession was not voluntary, without raising specific objection that he was not prepared to make the confessional statement on oath or he would not like to confess his guilt if his statement would not have been recorded on oath, would not make it inadmissible.
There is no cavil to the rule of criminal administration of justice that an accused cannot be compelled to make a confession on oath or without oath but in the light of concept of truth in Islam if an accused Muslim by faith, wants to make a confessional statement, he must speak truth and disclose the true facts and notwithstanding the procedural violation of recording the confessional statement on oath, the Court if finds that confession is true and voluntary and is satisfied that by such a procedural defect no prejudice was caused to the accused and there was also no failure of justice, may on the basis of such retracted judicial confession, convict an accused. It was held by this Court in Anwara Chowdhury v. M. Majid (PLD 1964 SC 813), 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."
9. We having made detailed scrutiny of the evidence, find that the petitioner by making the judicial confession willingly and voluntarily disclosed the true facts in detail. Muhammad Fakhar, (complainant) and petitioner were not previously known to each other and there was no reason with the complainant to falsely involve the petitioner in the case and substitute him for unknown culprit in a case of capital punishment. The careful examination of the evidence would not suggest any legal or factual infirmity in the appraisal of evidence and we would take no exception to the finding of two Courts holding the petitioner guilty of the charges being based on sound principles of criminal administration of justice.
10. For the reasons given above, this petition having no substance is accordingly dismissed. Leave is refused.