1. Ch. Ejaz Yousaf, C.J.--This judgment will dispose of two connected appeals i,e, Criminal Appeal No, 58/P of 2004 filed by appellant N Muhammad alias Torak son of Khan Muhammad, Criminal Appeal No, 18/P of 2005 filed by appellant Riaz son of Zafeer Gul as well as Criminal Revision No, 1/P of 2005, filed by petitioner/complainant Nizam-ud-Din as all the three arise out of the same judgment dated 3.11.2004 passed by the learned Additional Sessions Judge/JSC, Peshawar whereby both the appellants, aforenamed, were convicted and sentenced as under:-- Taj Muhammad alias Torak Under Section 302(b) PPCDeath and a fine of Rs, 50,000/- as compensation to pay to the legal heirs of the deceased or in default thereof to further undergo S.I. for six months.
2. Riaz-- Under Section 302(b)
3. PPCLife imprisonment and a fine of Rs, 50,000/- as compensation to pay to the legal heirs of the deceased or in default thereof to further undergo S.I. for six months.
4. Benefit of Section 382-B Cr.P.C. was, however, extended to the appellant Riaz.
5. Petitioner/complainant Nizam-ud-din has assailed the impugned judgment, through the afore- mentioned, revision for enhancement/ modification of the sentences of compensation as well as the sentence of imprisonment to the extent of respondent/appellant Riaz. Learned Additional Sessions Judge has also sent murder reference Bearing No, 1/P of 2005 for confirmation of the sentence of death inflicted on appellant Taj Muhammad alias Torak which too, is being disposed of by this judgment.
2. Facts of the case, in brief, are that on 2.5.2002 report was lodged by one Nizam-ud-din with P.S Bhana Mari wherein, it was alleged that complainant's son namely, Abid Nadeem who was a practicing lawyer, had on 27.4.2002 at about 8.00 p.m. gone with his client namely, Taj Muhammad zlias Torak but did not return. The complainant searched for him but in min. It was further alleged in the report that Mst. Bishmina daughter-in-law of the complainant and wife of the deceased had informed the complainant that Abid Nadeem was taken along by said Taj Muhammad from his house. It would be pertinent to mention here that since on 30.4.2002 a dead body of to unknown person, aged about 28 to 32 years, was found lying on the bank Budni canal, therefore, a murasala was prepared and accordingly sent to the Police Station Mathra. FIR Bearing No, 151 dated 30.4.2002 was Registered at the said police station against unknown persons on the report Dent by Hastam Khan, A.S.I. However, since the dead body could not be identified and whereabouts of his family members were not possible to be ascertained therefore, the dead body after, taking photographs and conducting postmortem examination was buried in the graveyard. However, subsequent to the report by the complainant, the grave was exhumed and dead body was taken out which was got identified by the father and rother of the deceased to be that of missing Abid Nadeem. On the completion of investigation the accused persons were challaned to the Court for trial.
6. 3.Charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial.
7. 4.At the trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the accused persons produced 13 witnesses, in all. P.W. 1 Hastam Khan, ASI had on 30.4.2002 found the dead body of the deceased. He had prepared the injury sheet Exh. PW-1/1 and inquest report Exh. PW.1/2, besides drafting report/murasala, Exh. PA/1. P.W. 2 Dr. Muhammad Hamayun, had, on 30.4.2002, conducted postmortem examination on the dead body and found the following injuries on his person:-- 'Injuries 1.Fire-arm entry wound size 2 x 1 cm at right front of abdomen 3 cm from midline and 4 cm below costal margin.
8. 2.Fire-arm exit wound 7 x 3 cm in size on left side front of lower abdomen 5 cm from midline and 2 cm below the aliac crest.
9. 3 A superficial abrasion on left side of the face 2 x 1 cm in size 2 cm from nose and 2 cm from left eye. Internal Examination: Peritoneum injured, small and large intestine injured, liver injured."
10. He was of the opinion that deceased had died due to injuries i,e, to the liver, intestine and corresponding blood vessels caused by fire-arm. According to him, probable time between death and postmortem was 48 to 72 hours and between injury and death immediate. He produced in Court the postmortem report as Exh. PM. P.W.3 Adil Sher, Constable had escorted the dead body to the mortuary and had also taken into possession clothes of the deceased. P.W. 4 Muhammad Naeem, ASI is a marginal witness of the recovery memo Exh. PW.4/1 vide which P.W. 3 had produced last worn clothes of the deceased before the I.O. P.W. 5 Taza Gul is a witness of burial of the deceased, exhumation of the grave subsequently and identification of the dead body by the heirs.
11. P.W.6 Muhammad Azam Khan, Judicial Magistrate, had on 20.5.2002 recorded confessional statements of both the appellants. He produced the same as Exh. PW.6/2 and Exh. PW-6/5. He confirmed that he had recorded the confessional statements after taking all pre-cautionary measures and satisfying himself that it were being made voluntarily. P.W.7 Mir Hassan Khan, SI is a marginal witness of the pointation memo Exh. P.W. 7/1 vide which appellant Taj Muhammad alias Torak while in police custody had led the police party to the graveyard situated in Nauthia and pointed out the place where crime weapon i,e, Article P.2 the pistol was concealed. The same was recovered at his instance. P.W.8 Nizam-ud-din is the complainant. He, at the trial, reiterated the version contained in the FIR. P.W. 9 Mst. Bismina is widow of the deceased. She, at the trial, deposed that on 27.4.2002 at about 8.00 p.m. some body knocked at the door of their house. Her husband went outside and then came back. On the query made by her he disclosed her that her client Taj Muhammad was standing outside and wanted him i,e, the deceased to accompany him.
12. Subsequently, he left the house. She confirmed that she had informed her father-in-law regarding the absence of her husband. P.W. 10 Muhammad Ashfaq Khan, Inspector had partially investigated the case. He is a marginal witness of the recovery memo Exh. PW.10/1 whereby two empties of .30 bore pistol were recovered from the place of occurrence the pointation of the accused. P.W. 11 Salar Mian Muhammad is a marginal witness of the recovery memo Exh. PW.11/1 vide which the dead body of the deceased was identified by his father and brother namely Mohiuddin. P.W. 12 Noor-ul- Qamar Khan, SI, Police line, Peshawar had also partially investigated the case. He is a marginal witness of the recovery memo Exh. PW10/1 vide which not only the place of occurrence was pointed out by the accused Taj Muhammad but .30 bore pistol were also got recovered. He is also a marginal witness of the memo Exh. PW.12/3 whereby photographs of the dead body were taken into possession by the. police. He also tendered in evidence the Fire Expert Arms report i,e, Exh. PW.12/7.
13. PW.13 Muhammad Ashfaq Khattak, Inspector had, on the receipt of murasala, incorporated contents thereof into the FIR, Exh. PZ. He had also prepared the site-plan Exh. PB/1.
14. 5.After the close of prosecution evidence the accused persons were examined under Section 342 Cr.P.C. In their above statements the accused persons denied the charge and pleaded innocence.
15. They, however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of Section 340(2) Cr.P.C. It would be pertinent to mention here that later on the learned counsel for the complainant, in order to prove the relationship of client and counsel between Taj Muhammad and deceased Abid Nadeem, also submitted an application for summoning the record keeper of Mhafiz Khana Sessions Judge Peshawar alongwith record of BA No, 17 of 2001. The said application was allowed and Incharge Mhafiz Khana namely Muhammad Arshad Khan was summoned and examined as C.W.1. He produced in Court record of certain bail matters wherein deceased was engaged by accused Taj Muhammad as counsel.
16. 6.After hearing the learned counsel for the parties the learned trial Judge convicted the appellants and sentenced them to the punishments as mentioned in the opening para hereof.
17. 7.We have heard Miss Farhana Marwat, Advocate, learned counsel for appellant Taj Muhammad alias Torak, Mr. Shakeel Ahmad, Advocate, learned counsel for appellant Riaz in Criminal Appeal.
18. No, 18/P of 2005, Mr. Ishtiaq Ibrahim, Advocate, learned counsel for petitioner Nizam-ud-Din in Criminal Revision No, 1/P of 2005, Mr. Sajid Ali, Advocate, learned counsel for the State and have also perused the entire record with their assistance, carefully.
19. 8.Miss Farhana Marwat, Advocate, learned counsel for appellant Taj Muhammad has contended that un-explained delay in lodging the FIR was fatal; that conviction could not have been recorded on the basis of retracted confessions which were extracted from the .accused persons by applying third degree method; that since the empties were recovered after considerable delay and that too, from a different place, therefore, it could not have been taken as an incriminating piece of evidence against the accused.
20. 9.Mr. Shakeel Ahmad, Advocate, learned counsel for appellant Riaz has contended that since in his confessional statement the appellant Riaz had stated that it was appellant Taj Muhammad and absconding accused Zamir who had killed Abid Nadeem, the deceased and he i,e, appellant Riaz had no intention to kill him therefore, he could not have been convicted for the offence. It is further his case that since nothing incriminating was recovered from the possession of the said appellant and no body had seen him committing the offence and he was merely convicted on the basis of the confession which too, was retracted, therefore, the said appellant could not have been convicted for the offence.
21. 10.Mr. Ishtiaq Ibrahim, Advocate, learned counsel for the complainant, on the other hand, while controverting the contentions raised by the learned counsel for the appellants has stated that though there was some delay in lodging the FIR yet, it was duly explained at the trial and it was made clear that since Taj Muhammad had taken away the deceased from his house and it was apprehended that the deceased would be killed, in case the report was lodged, therefore, family members of the deceased had to, perforce, keep quiet. In the circumstances the delay in lodging the FIR was inconsequential; that both the appellants voluntarily got recorded their confessional statements. They also got recovered the crime weapons besides pointing out the place of occurrence wherefrom the empties were recovered and it wedded with the crime weapon, hence guilt of the appellants was fully brought home.
22. 11.Mr. Sajid Ali, Advocate, learned counsel for the State while adopting the arguments advanced by the learned counsel for the complainant has stated that in the FIR not only name of appellant Taj Muhammad was given but it was mentioned that he had taken away the deceased and since prosecution version was corroborated by the medical as well as circumstantial evidence, therefore, both the appellants were rightly convicted for the offence.
23. 12.We have given our anxious consideration to the respective contentions of the learned counsel for the parties. In this case, dead body of the deceased was found by the police, lying on the bank of Budhni Canal within the limits of Police Station Mathra on 30.4.2002. Resultantly, FIR Exh. PZ was registered at the said Police Station. Though police tried to trace out heirs and other family members of the deceased but efforts remained unfruitful. However, before burial not only photographs of dead body were taken but postmortem examination was also got conducted.
24. Subsequently, on 2.5.2002 report Exh. PA was lodged by Nizam-ud-din, father of the deceased, about his missing, with P.S Bhana Mari, hence, on the basis thereof FIR Bearing No, 191 under Sections 302/364/34 PPC, 17(4) of the Offences Against Property (Enforcement of Hudood)
25. Ordinance, 1979 and 120-B PPC at the said police station was registered. Since it was mentioned in the FIR lodged by Nizam-ud-Din that Taj Muhammad appellant had, prior to the occurrence, taken the accused away therefore, he was interrogated. In the course of investigation the said accused not only confessed his guilt and got recorded his confessional statement but also led the police to the place of occurrence wherefrom the crime empties were recovered. Taj Muhammad also got recovered the crime weapon i,e, pistol vide memo Exh. P.2. Appellant Riaz was also produced before P.W.6 Muhammad Azam Khan, Judicial Magistrate who recorded his confessional statement. The confessional statements were exhibited at the trial as PW.6/2 and Exh. PW. 6/5. The empties recovered from the place of occurrence alongwith the crime weapons too, were sent to the Ballistic Expert who confirmed that it were fired from the crime weapon. Report of the Ballistic Expert i,e, Exh.
26. PW.12/7 is explicit, in this regard.
27. Though the learned counsel for appellant Taj Muhammad has tried to canvass that unexplained delay in lodging the FIR was fatal to the prosecution case yet, we do not see force in the contention.
28. No doubt, there is some delay in lodging the FIR but it cannot be said that it was unexplained. As stated above, in this case, in fact two reports were lodged. One on 30.4.2002 by Hastam Khan, P.W.1 on the recovery of dead body under Section 302 PPC contents thereof were incorporated into Exh.
29. PZ and the other by father of the deceased and though the said report was lodged with a delay of five days yet, it cannot be said that the delay was un-explained. The complainant, at the trial, has categorically stated that since they were told by the wife of the deceased that the deceased was taken away by Taj Muhammad, his client who was a vagabond and notorious person, therefore, they did not think it proper to report the matter, due to fear, as they were told by the people that in case the report was lodged kidnappers may kill the deceased. Hence, they deliberately avoided to inform the police. The explanation so offered is plausible as has been found quite satisfactory by the learned trial Court and we also see no reason as to why it may be disbelieved because from evidence it emerges that father of the deceased, at the time of lodging the report was not aware of the murder of his son, even the recovery of dead body and its burial by the police. In the circumstances, the delay in lodging the report cannot be viewed with suspicion.
14. So far as the delay in recovery of crime empties as well as the weapon of offence is concerned it may be noted here that the contention raised by the learned counsel for the appellants that the delayed recovery thereof had marred evidentiary value thereof, on its face, appears to be devoid of force because it has come on record that no sooner the appellant pointed out the place of occurrence to the police then the recovery of crime empties was affected and later on the pistol was also recovered. It would be pertinent to mention here that the dead body was found lying on the bank of Budni canal at a different place whereas the place of occurrence where the deceased according to the appellants was murdered, as per statement made by the learned counsel for appellant Riaz at the bar, is about 300 paces away. Though the record, in this regard, is silent yet, as per the PWs both the places i,e, where the dead body was found lying and the place where the deceased was allegedly killed are two distinct and separate places. Learned counsel for the said appellant, keeping in view the distance between the two places, has though tried to canvass that since the dead body was recovered from a different place whereas, as per confessional statements of the appellants, the deceased was killed at another place, therefore, recovery of crime empties do not connect the appellants with the crime yet, we are afraid, the argument advanced by him, cannot prevail rather it strengthens the prosecution case for the simple reason that, in case the confessional statements are believed then the actual place of occurrence was only within knowledge of either the deceased or the murderers. Had the empties been recovered from the place where dead body was found lying then, it could have been argued that since the said place was already within knowledge of the police, therefore, empties might have been implanted, yet, in the situation, to the contrary, and peculiar circumstances of the instant case, pointation of the place of occurrence and recovery of empties therefrom lead to the only inference that the appellants were the persons responsible for the offence.
15. Adverting to the next contention of the learned counsel for the appellant Taj Muhammad that since third degree method was applied in extracting confession from the said appellant, therefore, it was not admissible, it may be pointed out here that contention raised by the learned counsel appears to be mere assertion because from evidence on record it does not appear that the confession was extracted from the appellant or that the time lapsed between his arrest and recording of the confessional statement was used in extracting the confession. Admittedly, the hand of the appellant, in the instant case, was taken on 12.5.2002 whereas, he was produced before the Judicial Magistrate for the purpose of recording his confessional statement on 20.5.2002 eight days thereafter. It has also come on record that the place of occurrence was pointed out by the said appellant on 14.5.2002 and appellant also got recovered the crime weapon on the said date, six days prior .to the recording of the confessional statement, therefore, the only inference possible to be drawn is that the appellant was willing to confess his guilt even a few days prior to recording of his confessional statement and, therefore, there was neither any occasion for the police to apply third degree method nor was it needed. Had the situation been other way round, the said appellant would have not certainly, led the police to the place of occurrence and got recovered the crime weapon. Further P.W.6 Muhammad Azam Khan, the Judicial Magistrate, who had recorded the confessional statements of both the appellants has, at the trial, deposed that he had recorded the confessional statements after fulfilling all the necessary requirements prescribed under the law and satisfying himself that it were being made voluntarily. The statement made by the Magistrate was rightly believed by the learned trial Judge and we see no reason as to why a different view may be taken.
16. As to the contention raised by the learned counsel for appellant Riaz that since Abid Nadeem was murdered by appellant Taj Muhammad and absconding accused Zamir, therefore, the said appellant i,e, Riaz, could not have been convicted for the offence particularly on the basis of his own confession because it was uncorroborated, it may be pointed out here that corroboration to a confession is sought for as a matter of prudence only otherwise legally confession judicial or extra- judicial, retracted or unretracted, if found voluntary and true can be made sole basis of conviction particularly against its maker. This view receives support from the following reported judgments:-- 1.Manjeet Singh vs. The State PLD 2006 SC 30; 2.Muhammad Azam and others vs. The State 2006 P.Cr.L.J. 62; 3.Shehzado vs. The State PLD 2005 SC 477; 4.Muslim Shah vs. The State PLD 2005 SC 168; 5.Fazal Rehman and others vs. The State PLD 2004 SC 250; 6.Khuda Bakhsh vs. The State 2004 SCM R 331; 7.Tariq Hussain Shah vs. The State 2003 SCM R 938; 8.Shaukat Ali alias Tayyab Ali etc. vs. The State 2003 SD 554; 9.Muhammad Ashraf vs. The State 2001 FSC 13; 10.Khan Muhammad and others vs. The State 1999 SCM R 1818; 11.Daulat Ali and others vs. M. Aslam and others 1989 M.L.D. 944; 12.The State through AG. NWFP, Peshawar vs. Waqar Ahmad 1992 SCM R 950; 13.Muhammad Gul and others vs. The State 1991 SCM R 942; 14.Wazir Khan vs. The State 1989 SCM R 446.
30. The contention, therefore, has no force.
17. The prosecution case rests on the confessional statements of the appellants, the last seen evidence, account whereof has been furnished by Mst. Bismina, wife of the deceased, pointation of the place of occurrence by the appellants, the recovery of crime empties therefrom, the recovery of crime weapon at the instance of appellant Taj Muhammad, the medical evidence which indicates that the deceased was killed in the manner as suggested by the prosecution and by the fire-arm. The Ballistic Expert Report to the effect that the empties recovered from the place of occurrence wedded with the pistol which was got recovered by appellant Taj Muhammad, the documentary evidence furnished by the prosecution to the effect that appellant Taj Muhammad was client of the deceased and other circumstantial evidence. All the above pieces of evidence when taken together lead to the guilt of the appellants and is incompatible with any reasonable hypothesis of their innocence.
31. 18.As to the last contention raised by the learned counsel for appellant Riaz that since his confessional statement was inculpatory and the deceased was murdered by appellant Taj Muhammad and Zamir Khan, the absconding accused, therefore, appellant Riaz could not have been convicted for the Offence, we may observe here that since the appellant Riaz too, was sharing common intention with the other accused persons to rob the deceased and as per his own confession had also received a sum of Rs, 25,000/- out of the robbed money as his share, therefore, he too, was rightly convicted for the offence, though having not been found directly responsible for killing has been dealt with leniently by the trial Court and has escaped the capital punishment.
32. 19.The upshot of the above discussion is that both these appeals i,e, Criminal Appeal No, 58/P of 2004 and Criminal Appeal No, 18/P of 2005 as well as the Criminal Revision i,e, Bearing No, 1/P of 2005 are dismissed. Convictions and sentences recorded against the appellants namely, Taj Muhammad alias Torak son of Khan Muhammad and Riaz son of Zafeer Gul, by the learned Additional Sessions Judge/JSC, Peshawar vide his judgment dated 3.11.2004 are maintained. The Murder Reference No, 1/P of 2005 is answered in affirmative.
33. These are the reasons of our short order of the even date.