' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special Anti-Terrorism Appeal No.82 of 2000 and Confirmation Case No.8 of 2000 as they arise out of a common judgment.
2. On 17-6-1996 the complainant Saleem Khan left his House No.34/35, Street No.1, near Park Jumman Shah Plot, Kalakot, Karachi leaving behind his wife P.W.2 Nasreen, deceased daughter Samina and a minor baby girl Kunwal. At about 12-30 p.m. He was present at the place of his duty when P.Ws. Fayyaz and Naveed came and informed him that his house was on fire. He immediately rushed to his house where he found people collected outside his house. Police were already present before his arrival. He then went inside the house on the first floor as the ground floor was given on rent. When he reached there he found his wife Mst. Nasreen weeping. He found the burnt dead body of his daughter Mst. Samina aged about 12 years. He also found some ornaments, cash missing from the house. The police recorded his statement at 2-30 p.m. Which was sent to Police Station for incorporating it in 154, Cr.P.C. Book.
3. The police started the investigation. They prepared inquest report of the deceased. They secured pieces of plastic pipe, one pliers and one big match box. They also found a telephone wire wrapped around the neck of the deceased. Her feet were tied with hand-wear of pink colour. The police also secured burnt ashes of hair and then dead body was sent to hospital. The police also prepared the memo. Of place of incident. On 19-6-1998 the police arrested the appellant who led the police party and produced the robbed articles from the Dera of Shahjahan. The articles were identified by the complainant to be his articles. The appellant was produced before a Magistrate for recording his judicial confession where his confession was recorded. After completing usual investigation the appellant was challaned in the Court where he was tried and convicted for offence punishable under section 392, P.P.C. And sentenced to suffer RI for 10 years and fine of Rs.10,000 or in default thereof to suffer RI for one year. He was further convicted for offence punishable under section 302(b), P.P.C. And sentenced to death. He was also convicted under section 10(3) read with section 19 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer RI or 25 years with whipping of 30 stripes. He was further convicted for offence punishable under section 7(i)(a) of Anti- Terrorism Act, 1997 (in short Act, 1997) and sentenced to death. The learned trial Judge directed the appellant to pay compensation of Rs.200,000 to the legal heirs of the deceased or in default thereof to suffer RI for 6 months with benefit of section 382-B, Cr.P.C. The sentences were ordered to run consecutively. The learned trial Judge also sent Reference under section 374, Cr.P.C. For confirmation of death sentence.
4. The appellant was dissatisfied with the said judgment, therefore, he has filed the appeal.
5. We have heard Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
6. The learned Advocate for the appellant has stated that the case rests upon confession only but the same was not recorded in accordance with law, therefore, the said piece of evidence is not sufficient to convict the appellant. He has further stated that there is no eye-witnesses in the case; that there is no allegation that the appellant has committed Zina but the trial Court has wrongly convicted him for the said offence; that the appellant was below 18 years of age at the time of incident, therefore, he cannot be sentenced to death and has relied upon a case of Umer Hayat v.
Jahangir (2002 SCM R 629). In the alternative he has stated that the sentence of death may be reduced to imprisonment for life.
7. Conversely, the learned A.A.-G. Has stated that the case of the prosecution rests upon the confession of the appellant which has been recorded in accordance with law. However, the technicalities in recording the confession would not affect the voluntariness or truthfulness of the confession and defects, if any, can be cured. He has relied upon Shehzado v. State (PLD 2005 SC 477), Nasim Akhtar v. State (1999 SCM R 1744) and Muhammad Yaqoob v. State (1992 SCM R 1983).
He has further stated that there was no allegation of rape against the appellant, therefore, he has not supported the said conviction. He has further stated that the offence would not fall under section 7(i)(a) of the Act, 1997 but the offence would fall under section 7(ii) of the Act, 1997, therefore, the appellant may be adequately convicted. He has conceded that the appellant was below 18 years of age at the time of incident and that it is a fit case where a sentence can be reduced to imprisonment for life.
8. We have given due consideration to the arguments and gone through the evidence with the help of learned Advocate for the appellant.
9. In order to prove the cases, the prosecution examined 13 witnesses. P. W . 1 Saleem Khan is the complainant, who is not an eye-witness but the incident was narrated to him by P.Ws. Fayyaz and Nadeem and that too that his house was on fire. P.W.2 Mst. Nasreen wife of the complainant stated in her deposition that she left the house leaving behind the deceased in the house. She returned at 11-00 a.m. And found her house on fire and people gathered there. P.W.3 Fayyaz Ahmed also stated that he came out from the house on noise and found the house on fire and when they entered the house they found the dead body of baby Samina. The evidence of P.W.4 Muhammad Hanif reveals that on 17-6-1998 he and P.W. Abdul Rahman were standing outside the Street No.1 when they saw three persons coming towards their side from the house of complainant. On seeing them they turned towards opposite direction and went away. On 26-6-1998 he identified the appellant in an identification test supervised by P.W. I I Magistrate to be one of those persons who was coming towards them and that he was having a shopping bag in his hand. F.W.5 Abdul Rahman stated the same facts as disclosed by P.W.4. He further stated that he identified the appellant in ale identification test held before P.W.11 to be one of the persons whom he saw along with two other persons and turned towards opposite direction. Later on, he came to know his name as Imran and he was having a shopping bag in his hand at that time. Evidence of P.W.6 Sher Alam reveals that he acted as Mashir of recovery of the articles from the place of incident. He also acted as Mashir of the arrest of the appellant and recovery of robbed articles from Dera of Shahjehan. Evidence of P.W.7 A.S.-I. Muhammad Arshad Khan reveals that he reached the place of incident on information about the incident where he recorded the statement of complainant which was sent to Police Station for registration of case. P.W.8 Syed Azmatullah was the Judicial Magistrate. He recorded the confession of the appellant after performing all the formalities. He produced the confession of the appellant. The evidence of P.W.9 S.I.P. All Muhammad reveals that he conducted the investigation, prepared the Mashirnama of place of incident where he recovered the articles and then sent the dead body of Mst. Samina to hospital for post-mortem examination. P.W.10 was S . I. P. Muhammad Aslam. He also conducted the investigation and produced the appellant before the Magistrate for recording his onfession. P.W.11 Saad SalamAnsari was the Senor Civil Judge-IX, Karachi South. He held the identification test of appellant Imran through P.Ws. 4 and 5, where they identified the appellant. P.W.12 Ghazala Usman was Medical Officer. She conducted post-mortem examination of the dead body. She found the dead body burnt, strangulated and died on account of said injuries.
The Court also examined Dr. Munir Ahmed who stated that appellant Imran was potent and was capable to perform sexual intercourse. The appellant in his statement recorded under section 342, Cr.P.C. ,denied all the allegations of the prosecution.
10. From the above evidence it is clear that there is no eye-witnesses of the incident but the case rests upon the judicial confession of the appellant, that reads as under:-- "I reside with my maternal uncle Shah Jehan for the last 6 years. I do labour work. Accused Shah Hussain is my relative. He had come to me during vacation of school some days ago. Royat Khan is also my relative. He resides at same Dera and he used to do labour with me. On 17th of this month, I accompanied Shah Hussain and Royat Khan and at about 1100 hours went to the house of my paternal uncle at Imam Shah Plot to have money from my paternal uncle. I knocked the door.
Samina, daughter of my paternal uncle, came at the door. She disclosed that her mother was not present in the house and her father had gone on. His job. We then came back. And we all the three had juice from juice cart. After 10/15 minutes we again went to the house of my paternal uncle and left Shah Hussain outside. When we reached at the door Royat Khan knocked the door. Samina came at the door and said that her father and mother did not come back at the house. We told her to give N.I.C. Of her father. She replied that she did not know. We both entered the house. Royat kept his hand on the mouth of the girl and told me to bring scarf. I gave him scarf. He kept the scarf on her mouth and told me to put knot to the scarf. I put the knot. He demanded another scarf. I brought the another scarf. He tied hands and feet of Samina and made me sit near Samina. And Royat Khan opened the door with screw driver and brought the V.C.P. I took out stitched cloth from Almirah and took out ear-rings. I put clothes and ornaments in pillow case and also put the cassette into it. Royat Khan told me to give the bag to Shah Hussain. I put the beg, V.C.P. On stairs and went outside the house to see Shah Hussain. He was not available outside. I searched him. He met me in the nearest mosque. I came back at the house of my paternal uncle and saw that half shalwar of Samina was removed and she was bleeding from her vagina. Royat Khan was patting hands in Alimrah. Eyes of Samina came out from their sockets and she was little bit breathing. We both picked her and took her to other room. He demanded wire from me and Royat Khan put the wire around the neck of Samina and pulled it. He then demanded a big cloth and put it on her body and set her on fire with match box. We both took the goods and fled away. I picked bag and Royat Khan picked V.C.P: We took Shah Hussain from mosque and went to the Dera. Later, at about 10-00 p.m. Police arrived at Dera and picked me and Shah Hussain, while Royat Khan taking advantage and opportunity ran away."
11. The appellant retracted from the confession. However, it is well settled principle of law that a retracted judicial confession is sufficient for conviction but as a rule of procedure the Courts seek corroboration of the same on all material particulars. Reliance is placed on the case Muhammad Gul v. State (1991 SCM R 942) and Haq Nawaz v. State (2000 SCM R 785). The above confession is supported and corroborated by evidence of the complainant and other witnesses. The complainant stated that articles were robbed from his house. The said articles were recovered from the possession of the B appellant as per statement of the P.W.6 Mashir of recovery and Investigating Officer. The confession is further supported as the house was on fire. The dead body of Mst. Samina was burnt. The dead body was strangulated through a telephone wire which was also secured and confirmed by the Medical Officer. A match box was also secured from the place of incident. The appellant and two of his companions were found near the place of incident. The appellant was identified by P.Ws. 4 and 5 in the identification test held before P.W.11 to be one of the persons who was seen by them at the place of incident just after the incident with a shopping bag.
Thus, the confession is fully supported and corroborated by other pieces of evidence available on record. As such, it is sufficient to convict the appellant.
12. The learned Advocate for the appellant has pointed out that the learned Magistrate did not inform the appellant that after recording the confession or otherwise he would not be handed over to the police but he would be sent to judicial custody, therefore, the confession is not a 'voluntary confession. Conversely, the learned A.A.-G. Has stated that technicalities of law would not make the confession as involuntary and untrue; that the said technicalities can be overlooked. In the case of Shehzado v. State (PLD 2005 SC 477) the confession was recorded on oath but such technicality was overlooked and the confession was relied upon. At page 281 it has been observed as. Under:-- "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."
13. In the case reported as Nasim Akhtar v. State (1999 SCM R 1744) it was held that any lapse on administrative side on the part of a Magistrate in recording the confession may not be fatal as to the evidentiary value of such confession, provided the Court is satisfied that the lapse on his part has not, in any way, adversely affected the voluntariness or truthfulness of the confession.
14. We have gone through the confessional statement and found that the prosecution has established that the confession has not been obtained or tendered on account of pressure, influence or coercion from any quarter. It has also not been brought on record that the Magistrate had obtained the confession under pressure, influence or coercion. From the perusal of confession it is clear that the learned Magistrate asked all the relevant questions from the appellant and recorded their answers properly except the above mentioned question. However, he stated in the cross-examination that appellant and co-accused were remanded to judicial custody. Thus, no prejudice has been caused to the appellant. From the proceedings and the confession itself we are satisfied that the confession was voluntary and true which has been fully supported and corroborated by other pieces of evidence, therefore, the above lapse on the part of the Magistrate cannot adversely affect the voluntariness and truthfulness of the confession. The lapse might have been taken place due to ignorance of law or inefficiency of the Magistrate and for the fault of the Magistrate voluntariness and truthfulness of the confession cannot be doubted.
15. After considering the material available on the record we are of the considered view that the prosecution has proved the above piece of evidence.
16. We have also gone through the evidence and found that allegation of Zina was levelled against the co-accused. We could not find any evidence connecting the appellant with the commission of offence of Zina as at the time of said offence the appellant was outside the house, therefore, he was not liable for conviction of the said offence. We have also noticed that the ingredients of section 7(i)(0 of Act, 1997 are not attracted but the ingredients of section 7(H) of the Act, 1977 are attracted, therefore, the appellant is liable to be convicted for the said offence.
17. It is an admitted position that at the time of incident the appellant was under the age of 18 years. The. Honorable Supreme Court of Pakistan considered the above point in the case of Umer Hayat v. Jahangir (2002 SCM R 629). In the said authority the appellant was also minor at the time of incident, therefore, it was observed that as the respondent, at the time of occurrence, was not adult, therefore, the death penalty, awarded by the trial Court, was not legal and proper. Following the said dictum the benefit of section 299, P.P.C. Read with section 306, P.P.C. Is extended to the appellant, hence he is entitled to the reduction of death sentence to imprisonment for life.
18. Above are the reasons of our short order dated 24-1-2006, by which we had disposed of the appeal in the following manner:-- "For reasons to be recorded separately, the conviction and sentence awarded to the appellant under the impugned judgment for offence punishable under section 392, P.P.C. Are maintained. The conviction under section 302(b), P.P.C. Is also maintained but sentence of death is reduced to imprisonment for life. The convictions and sentences for Offences punishable under section 10(3), read with section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and for offence punishable under section 7(i)(a) Of Anti-Terrorism Act, 1979 are set aside but we convict the appellant for offence punishable under section 7(ii) of Anti-Terrorism Act, 1979 and sentence him to suffer imprisonment for life for striking terror and creating sense of fear and insecurity in the people for committing scheduled offence of murder with robbery. We further maintain the compensation awarded under the impugned judgment. All the sentences are to run concurrently with benefit of section 382-B, Cr,P.C.
' With the above modification in the convictions and sentences, the appeal is dismissed.
Consequently, the Confirmation Case No.8 of 2000 is also dismissed."