' 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 Taj 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/J.S.C., Peshawar whereby both the appellants aforenamed, were convicted and sentenced as under:-- Taj Muhammad alias Torak Under section 302(b), PPC. Death 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.
Riaz Under section 302(b), P.P.C.Life 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.
' Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant Riaz.
Petitioner/complainant Nizam-ud-Din has assailed the impugned judgment through the aforementioned, 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 Police Station Bhana Mari wherein, it was alleged that complainant's son namely, Abid Nadeem who was a practising lawyer, had on 27-4-2002 at about 8-00 p.m. Gone with his client namely, Taj Muhammad alias Torak but did not return. The complainant searched for him but in vain. 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 an unknown person aged about 28 to 32 years, was found lying on the bank of Budni canal, therefore, a Murasala was prepared and accordingly sent to the Police Station Mathra. F.I.R. Bearing No,151, dated 30-4-2002 was registered at the said police station against unknown persons on the report sent 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 post-mortem examination was buried in the graveyard.
However, subsequent to the report by the complainant, the grave was exhumed and the dead body was taken out which was not identified by the father and brother 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.
3. Charge was accordingly framed against the accused persons to whom they pleaded not guilty and claimed trial.
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, A.S.-I. Had on 30-4- 2002 found the dead body of the deceased. He had prepared the injury sheet Exh.P.W.1/1 and inquest report Exh.P.W.1/2, besides drafting report/ Murasala, Exh.P.A./l. P.W.2 Dr. Muhammad Hamayun, had, on 30-4-2002, conducted post-mortem examination on the dead body and found the following injuries on his person:-- "Injuries
(1) Fire-arm entry wound size 2 x 1 c.m. At right front of abdomen 3 c.m. From midline and 4 c.m.
Below costal margin.
(2) Fire-arm exit wound 7 x 3 c.m. In size on left side front of lower abdomen 5 c.m. From midline and 2 c.m. Below the aliac crest.
(3) A superficial abrasion on left side of the face 2 x 1 c.m, in size 2 c.m. From nose and 2 c.m. From left eye.
' Internal examination: ' Peritoneum injured, small and large intestine injured, liver injured."
' 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 post-mortem was 48 to 72 hours and between injury and death immediate. He produced in Court the post-mortem report as Exh.P.M. 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, A.S.-I. Is a marginal witness of the recovery memo. Exh.P.W.4/1 vide which P.W.3 had produced last-worn clothes of the deceased before the Investigating Officer 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. 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.P.W.6/2 and Exh.P.W.6/5. He confirmed that he had recorded the confessional statements after taking all precautionary measures and satisfying himself that it were being made voluntarily. P.W.7 Mir Hassan Khan S.-I. 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 F.I.R. 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. Somebody 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 his client Taj Muhammad was standing outside and wanted him i,e, the deceased to accompany him. 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.P.W.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.P.W.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, S.-I. Police Line, Peshawar had also partially investigated the case. He is a marginal witness of the recovery memo. Exh.P.W.10/1 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.P.W.12/3 whereby photographs of the dead body were taken into possession by the police. He also tendered in evidence the Fire-Arms Expert report i,e, Exh.P.W.12/7. P.W.13 Muhammad Ashfaq Khattak, Inspector, had on the receipt of Murasala, incorporated contents thereof into the F.I.R. Exh.P.Z. He had also prepared the site plan Exh.P.B./1.
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.
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 Mahafiz Khana, Sessions Judge, Peshawar along with record of B.A. No,17 of 2001. The said application was allowed and Incharge' Mahafiz 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.
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.
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 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.
8. Miss Farhana Marwat, 'Advocate, learned counsel for appellant Taj Muhammad has contended that unexplained delay in lodging the F.I.R. Was fatal; that conviction could not have been recorded on the basis of retracted confession 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.
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 nobody 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.
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 F.I.R. 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, per force, keep quiet. In the circumstances the delay in lodging the F.I.R. 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.
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 F.I.R. 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.
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 the Police Station Mathra on 30-4-2002. Resultantly, F.I.R. Exh.P.Z.
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 post-mortem examination was also got conducted.
Subsequently, on 2-5-2002 report Exh.P.A. Was lodged by Nizam-ud-Din, father of the deceased, about his missing, with Police Station Bhana Mari, hence, on the basis thereof F.I.R. Bearing No,191 under sections 302/364/34, P.P.C., 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 and 120-B, P.P.C. At the said police station was registered. Since it was mentioned in the F.I.R. 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 they 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 P.W.6/2 and Exh.P.W.6/5. The empties recovered from the place of occurrence along with 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.P.W.12/7 is explicit, in this regard.
13. Though the learned counsel for appellant Taj Muhammad has tried to canvass that unexplained delay in lodging the F.I.R. Was fatal to the prosecution case yet, we do not see force in the contention. No doubt, there is some delay in lodging the F.I.R. 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, P.P.C. Contents thereof were incorporated into Exh.P.Z. And the other by father of the deceased and though they said report was lodged with a delay of five days yet, it cannot be said that the delay was unexplained. 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 b en 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 P.Ws. 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 occurrencel and recovery of empties therefrom lead to the only inference that the appellants were the persons responsible for the offence.
15. Adverting 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 elapsed 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, therefor, 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. 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 that corroboration to a confession is sought for as a matter of prudence only otherwise legally confession judicial or extra-judicial, F 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 v. The State PLD 2006 SC 30; (2). Muhammad Azam and others v. The State 2006 PCr.LJ62; (3) Shehzado. v. The State PLD 2005 SC 477; (4) Muslim Shah v. The State PLD 2005 SC 168;
(5) Fazal Rehman and others v. The State PLD 2004 SC 250; (6) Khuda Bakhsh v. The State 2004 SCM R 331; (7) Tariq Hussain Shah v. The State 2003 SCM R 938; (8) Shaukat Ali alias Tayyab Ali and others v. The State 2003 SD 554; (9) Muhammad Ashraf v. The State 2001 FSC 13; (10) Khan Muhammad and others v. The State 1999 SCM R 1818; (11) Daulat Ali and others v. M. Aslam and others 1989 M LD 944; (12) The State through A.-G. N.-W.F.P., Peshawar v. Waqar Ahmad 1992 SCM R 950; (13) Muhammad Gul and others v. The State 1991 SCM R 942 and (14) Wazir Khan v. The State 1989 SCM R 446.
' 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 appellant and is incompatible with any reasonable hypothesis of their innocence.
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.
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/J.S.C., Peshawar vide his judgment, dated 3-11-2004 are maintained. The Murder Reference No,1/P of 2005 is answered in affirmative.