Ch. Ijaz Ahmed, J.--The petitioner has sought leave to appeal against the judgment of the learned High Court dated 28.6.2005 wherein the punishment of death on two counts and other sentences awarded to the convict/petitioner for the murder of Akhtar Hussain and Mst. Hussain Zeba and for inflicting injuries on the person of Farman Ali complainant/PW7, were confirmed by the learned High Court in the impugned judgment.
2.The learned counsel for the petitioner submits that the statement of Farman Ali, PW 7, was recorded after three days inspite of the fact that he was discharged from the hospital on 4.5.2002 and this fact was not considered by the Courts below in its true perspective. He next submits that PW7 Farman Ali did not state in his statement that he had seen the actual occurrence. His statement is also not in consonance with the medical evidence and in fact medical evidence contradicts his evidence. He further urges that learned Courts below erred in law to award capital punishment to the convict/petitioner on the basis of the confessional statement which was not recorded in accordance with the law and denied by the convict/petitioner in his statement under Section 342 Cr.P.C. He maintains that there is no direct evidence to connect the convict/petitioner with the commission of offence and petitioner/convict was convicted on circumstantial evidence in the shape of his confession, abscondance, medical evidence and recovery of T.V. and VCP. He urges that Akhtar Hussain deceased aged 6/7 was allegedly thrown in a drum which was not recovered and produced by the prosecution which created doubt qua the story of the prosecution.
He contends that the medical evidence belied the confession and in the circumstances extracting the maximum penalty was not warranted and punishment of life imprisonment would meet the ends of justice.
3.The learned Advocate General supported the judgment and submitted that confessional statement was recorded immediately after the arrest of the petitioner which was rightly relied upon by both the Courts below that it was voluntarily. Both the Courts below have considered the evidence on record with judicial application of mind. This Court, ordinarily, does not interfere in the concurrent conclusions arrived at by the Courts below. He urged that if the Court is satisfied that judicial confession is voluntary, it by itself was sufficient to award capital punishment. Reliance was placed on Manjeet Singh v. The State (PLD 2006 SC 30).
4. The submissions have been considered. Both the Courts below have concurrently found petitioner guilty after proper appreciation of evidence on record. The principle of consistency enunciated by this Court is that as an ultimate Court, it must give due weight and consideration to the findings of the Courts below and ordinarily it should not disturb their findings where it is satisfied that these are reasonable and were not arrived at in disregard of any accepted principle regarding appreciation of evidence. The mere fact that the Supreme Court might take a different view of the evidence should not be sufficient to over rule the findings of the Courts A below.
However, if the grounds upon which the High Court has acted are not supportable on the record, or the decision on a question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence, or where there has been a departure from due procedure in the reception of evidence or otherwise, which is calculated to interfere with the due or safe administration of justice, then interference by this Court would be justified and necessary. See Syed Mushtaq Ahmad u.
Siddiquiullah and others (PLD 1975 SC 160).
5. Keeping in view these principles in mind, we now proceed to examine the facts of the present case. The learned High Court had given findings of fact that statement of PW3 was recorded without any loss of time when he became conscious and was able to give statement in para 11 of the impugned judgment. Inspite of the lengthy cross examination PW7 has furnished consistent account of occurrence. His statement also finds support from the following pieces of evidence:-- (a)Medical evidence.
(b)Recoveries meant for electrocution.
(c)Confessional statement.
(d)Abscondance.
(e)Recovery of T.V. and VCP alongwith two video cassettes.
6. Now we will examine the confessional statement of the convict/petitioner. Both the Courts below had come to the conclusion that convict/petitioner had given confessional statement voluntarily before PW1 Syed Zamarud Shah Khan Civil Judge/Judicial Magistrate, Nowshera and petitioner/convict had denied this fact in his statement under Section 342 Cr.P.C. in the following terms:-- "I have not made any confessional statement nor any legal formality was observed for the so called confessional statement allegedly recorded by PW-1".
7. The proposition of law regarding confession was considered by this Court in The State v. Minhun alias Gul Hassan (PLD 1964 SC 813). The relevant observation is as follows:-- "Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true".
8.In the present case, the learned Judges of the High Court have stated in their judgment that the confession had been corroborated in para 11 of the impugned judgment in the following term:-- "We have also noted that independent persons like Murad Ali P.W.5, Taj Muhammad P.W.9 and Sakhawat Gul P.W.10 have furnished evidence in support of prosecution case.In the instant case on the facts and circumstances like confessional statement, the testimony of P.W. Farman Ali and the recoveries read with the medical evidence we have no doubt at all that the abscondance of the appellant provide the necessary corroboration and thus it bears upon guilt of the appellant".
9.Both the Courts below found that confession was recorded by the judicial officer who was well conversant with the legal requirements to be observed for recording a confessional statement. His statement spells no ground to look to confessional statement with any amount of doubt. We have minutely gone through the judgment of the learned trial Court as well as the judgment impugned.
The entire evidence has been examined with the assistance of the learned counsel for the parties.
After having gone through the entire record, we are of the view that prosecution has established its case by producing cogent and concrete evidence. Recent trend of this Court is that conviction could have been awarded on the basis of retracted confession without any corroboration. See Manjeet Singh v. The State (PLD 2006 SC 30). The relevant observation is as follows:-- "This is settled law that a retracted confession either judicial or extra-judicial, if is found truthful and confidence inspiring and also qualifies the test of voluntariness, can be used for conviction without looking for any other sort of corroboration".
10. It is a settled law that if an accused, in his statement under Section 342 Cr.P.C., makes an allegation that his confession was false or was made under mental stress, threat, duress, or inducement, it may qualify as a retracted confession but in this case he disowned having made a confessional statement before the Magistrate suggesting thereby that a judicial officer had fabricated the record. It was not even so suggested to PW.1 the Magistrate, who had recorded the confession. The petitioner was patently lying. Thus, the confession was not even retracted and standing by itself is sufficient to sustain capital punishment.
11. In the instant case PW1 who had recorded the confession of the c petitioner has testified as to voluntary nature of the confession. If confession is proved beyond any shadow of doubt to be voluntary it provides effectual proof. The confession which was recorded in accordance with the law, is presumed to be a genuine within the meaning of Article 91 of the Qanun-eShahadat Order, 1984. Thus, it has to be treated as voluntary. See Hari Pada Debneth vs. The State (1968 P.Cr.L.J. 569).
This is without prejudice to the observations in the preceding paragraph.
12.We may add that in the circumstances abscondance of the petitioner also provides sufficient corroboration, See Muhammad Din's case (1976 SCM R 185) & Gul Hassan's case (PLD 1969 SC 89).
The prosecution case is very straightforward. The parties are closely related to each other, therefore, question of substitution does not arise.
13.Accordingly, the petition has no merit and the same is dismissed. Leave refused.