1. This Jail Criminal Appeal No, 892/2004 is directed against judgment dated 10.11.2004, passed by learned Additional Sessions Judge, Peshawar, whereby he convicted Muzaffar Khan appellant under Section 324 PPC and sentenced him to suffer RI for 7 years alongwith a fine of Rs, 10,000/- or in default to undergo four months S.I. He was also convicted under Section 353 PPC and sentenced to suffer RI for one year. The appellant was further convicted under Section 13 Arms Ordinance, 1965 and sentenced to R.I. for two years with a fine of Rs, 2000/- or in default of payment of fine to further undergo S.I. for one month. All the sentences were directed to run concurrently. Benefit of Section 382-B Cr.P.C. was extended to the appellant.
2. Shortly narrated the prosecution case is, that pursuant to spy information, stated to have been received by the police on 15.8.2002, that proclaimed offender, Muzafar Khan, required by the police in a number of criminal cases, was present in his house in village Shero Jhangi, District Peshawar, a police party headed by DSP (Rural), raided the house of the accused same day i,e, 15.8.2002 at 8.00 a.m. On seeing the policy party, the accused, started firing at the police party. Luckily the police party escaped unhurt. The accused was arrested alongwith .30 bore pistol loaded with charger containing two live rounds of the same bore. On further search of the house, two hand grenades were recovered from the residential lotha' of the accused. A case was registered against him under Sections 324/353 PPC read with Section 13 Arms Ordinance, 1965 and 5 Explosive Substances Act, 1908, vide FIR No, 581 dated 15.8.2002, Police Station Daudzai District Peshawar.
2. 3.The accused, on completion of the investigation, was challenged to the Court for trial. The copies of the relevant documents as required under Section 265-C Cr.P.C. were supplied to the accused.
3. The charge was accordingly framed against, the accused, to which he pleaded not guilty and claimed trial.
4. 4.The prosecution, in order to prove the charge and substantiate the allegations levelled against the accused, produced five witnesses, SHO Shah Nawaz (PW.1) on receipt of `murasila' incorporated the same into FIR Ex. PA. He proceeded to the spot, prepared site-plan Ex. PB at the instance of SHO Riazul Islam, SI Abdul Samad and ASI Rashid Iqbal Khan, produced the accused before Illaqa Judicial Magistrate for recording his confessional statement, sent the crime weapon i,e, 30 bore pistol alongwith empties to the laboratory for examination, received the FSL report Ex. PZ and placed the same on file. He also sent hand grenades to Bomb Disposal Squad for analysis and placed report Ex. PZ/1 on the file.
5. 5.SI Riazul Islam (PW.2), the then SHO (Operation), P.S. Daudzai, one of the members of the raiding party, drafted the `murasila' and sent the same to police station for registration of case, apprehended and recovered a 30 bore pistol, loaded with two rounds of the same bore, from possession of the accused and recovered two hand grenades form the residential lotha' of the house of the accused. ASI Shah Jehan (PW.3) partially investigated the case. Saifullah Jan, Civil Judge/Judicial Magistrate, Peshawar (PW.4) on 21.8.2002 recorded confessional statement Ex.
6. PW.4/1 of the accused, issued certificate Ex. PW.4/2 and the questionnaire Ex. PW.4/3, SI Rashid Iqbal (PW.5) stood marginal witness to the recovery memos.
7. 6.The accused, on the conclusion of prosecution evidence, was examined under Section 342 Cr.P.C.
8. He, pleaded not guilty, professed innocence and claimed to have been falsely charged. He did not opt to produce evidence in his defence or to depose on oath in disproof of the allegations appearing against him in the prosecution evidence.
9. 7.At the conclusion of trial, the learned trial Court found the prosecution case against the accused to have been proved beyond reasonable doubt, qua offences under Sections 324/353 PPC read with Section 13 Arms Ordinance, 1965 and thus he was convicted and sentenced by him as mentioned and detailed above.
10. 8.We have heard Miss Farhana Marwat and Aftab Ahmad Khobai, Advocates for the appellant and Mr. Muhammad Saeed Khan, learned AAG for the State.
11. 9.Learned counsel for the appellant mainly contended that the case against the appellant is totally of no evidence and the trial judge failed to apply his mind to the facts of the case. The manner in which the trial judge has proceeded in the case is violative of the principle governing administration of criminal justice. It was also contended that it is a labored judgment which is reflective of not only non-reading and mis-reading of evidence brought on record but the same cannot stand the test of Judicial scrutiny as the same is fanciful, artificial and against the weight of record. The statements of the prosecution witnesses suffer from major contradictions, which make the case highly doubtful, therefore, no reliance could be placed on that evidence. It was also submitted that confessional statement has been recorded after inordinate delay of 7/8 days, which had been retracted and was not corrobbrated by any independent evidence. Additionally it was urged that the provisions of Section 103 Cr.P.C. have been seriously violated and in spite of availability of independent persons, only police personnel were cited as recovery witnesses.
12. Concluding the arguments, the learned counsel submitted that the prosecution story thus absolutely is against all standards of common sense and the same sounds not well to the reason and that the appellant was not justifiably convicted and sentenced. In this regard, reliance was placed on Sabir vs. The State (1998 P.Cr.L.J. 1941 Quetta), Abdullah vs. The State (2002 P.Cr.L.J. 1424 Peshawar), Muhammad Shafiq vs. The State (2003 YLR 1482 Peshawar) and Mushtaq vs. The State (2002 P.Cr.L.J. 1312 Peshawar).
13. 10.Learned Additional Advocate General, on the other hand, contended that the impugned judgment is well reasoned, based on correct appreciation of evidence on record and cannot be allowed to be interfered with by this Court.
14. 11.The prosecution, in order to prove its case, has produced five witnesses and the positive report Ex. PZ of the Fire Arms Expert. Incriminating statements of the prosecution witnesses and the positive report Ex. PZ of the Fire Arms Expert, were enough to connect the appellant with the commission of crime. The defence could not prove as to why police would involve the appellant falsely, specially when none of the police party had any enmity against him. The prosecution witnesses who were police officials, had made statements on material points and the appellant had failed to point out any discrepancy in their statements. Contradictions pointed out by the learned counsel for the appellant are so minor that on the basis of those it cannot be held that trial of the accused stood vitiated.
15. 12.The prosecution case is further supported by the confession of appellant voluntarily made before the Judicial Magistrate, who appeared as PW.4 and confirmed its voluntariness. No doubt, the confession was recorded on 21.8.2002 i,e, 6 days after the arrest but the delay itself could not render the confession nugatory, if the same was recorded in accordance with law. Khan Muhammad vs. The State (1999 SCM R 1818). There is no material to suggest that the appellant has been coerced or induced to make confessional statement. The facts brought out in the Judicial confession find corroboration in material circumstances. 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 passing 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 confessional statement though recorded was true and voluntary, the same can safely be made basis of conviction. 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 strong circumstance to establish that confession was true and voluntary.
13. For the foregoing reasons, the prosecution had proved the guilt of the appellant beyond all reasonable doubts and had successfully discharged its burden through consistent and confidence inspiring evidence. The prosecution witnesses had no malice or ill-will against the appellant to falsely implicate him in the instant case. The findings of the trial Court could not be shown to have been passed on mis-reading or non-reading of evidence. The trial Court has appraised the evidence existing on the record thoroughly on the principles for reappraisal of evidence in criminal cases for safe administration of justice. The judgment is based on correct application of law and proper evaluation of evidence and, therefore, I see no reason to interfere in the finding of the learned trial Court. The appeal having been found bereft to merit is dismissed.