' M. JAVED BUTTAR, J.--- The petitioner Noor Sada Khan and 7 others, were sent up for trial in case F.I.R. No,139 (Exh.P.A.) dated 16-8-2001, registered at Police Station Takht-i-Nasrati, District Karak, for the offences under sections 302/364/120-B/201/109/149, P.P.C. At the instance of complainant Mst.
Haroon Bibi (P.W.9), before Sessions Judge, Karak. During the trial six co-accused namely Zar Badshah, Nadir Khan, Moweez Khan, Kaynon, Gul Hamid and Laeeq Shah, into a compromise with the complainant party and vide order, dated 21-1-2003 they were acquitted. The petitioner and the co-accused Mir Zali Khan were tried for the aforesaid offences. The learned trial Court vide its judgment, dated 28-10-2003, while acquitting co-accused Mir Zali Khan, convicted the petitioner as under:--
(a) Under section 302/149, P.P.C., imprisonment for life.
(b) Under section 120-B, P.P.C., imprisonment for life.
(c) Under section 201, P.P.C. R.I. For three years, with a fine of rs,.5,000 or in default thereof to further suffer one month's S.I. All sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. The petitioner through Jail Criminal Appeal No,764 of 2003 challenged his convictions and sentences. The State filed Criminal Appeal No,70 of 2003 against acquittal of Mir Zali Khan.
Complainant Mst. Haroon Bibi filed Criminal Revision No,175 of 2003 for the enhancement of the sentence of the petitioner. The learned Division Bench of the Peshawar High Court vide its judgment, dated 17-5-2005 dismissed both the appeals and the criminal revision. The petitioner through this jail petition, is seeking leave to appeal against the dismissal of his appeal.
3. The relevant facts of the present case are somewhat complicated but the same have been given with remarkable clarity in the impugned judgment which are reproduced hereunder:-- "(2) The brief facts, as given in the F.I.R. Exh.P.A., are that on 16-8-2001, complainant Mst. Haroon Bibi (P.W.9) submitted an application to S.P. Karak, wherein she stated that about 1-1/2 months back, accused Noor Sadda Khan (appellant herein), Laeeq Khan, Ali Mat Jan and Musharaf Khan (absconding co-accused) took her husband from his house on the pretext of providing him employment. At the time of departure, her husband told her that he will return after a month but since then, his whereabouts are not known. Accordingly, the above four accused have either kidnapped or killed him. This application was sent to Police Station Shah Salim, on which Raufullah Khan, A.S.-I. (P.W.7) started inquiry under section 156(3), Cr.P.C. During the inquiry, he recorded the statement of accused Ali Mat Jan (since absconding) and then handed over the case file to Mir Chaman Khan, S.H.O. (P.W.6). The latter recorded the statements of P.W. Ghulam Akbar and Mst.
Haroon Bibi. They were also produced in Court, wherein their statements were recorded under section 164, Cr.P.C. On the statements of both P. Ws. Ghulam Akbar and Mst. Haroon Bibi, the case was referred to the Legal Branch and on receipt of opinion of the P.1. Headquarter, initially a case vide F.I.R. Exh.P.A. Under section 364, Cr.P.C. Was registered against the foregoing four accused Mir Zali Khan (accused respondent herein), acquitted co-accused, namely, Zar Badshah, Nadir Khan, Kanyon, Gul Hamid, Laeeq Shah, Moweez Khan and absconding co-accused namely Faizullah, Musharaf Khan, Ali Mat Jan, Laeeq Khan and Shawal accused Zar Badshah, Nadir and Mir Zali Khan were accordingly arrested in the case.
(3) In the meantime, the case was entrusted to Crime Branch, Peshawar on 28-9-2001. Adam Khan, Inspector (P. W.15) along With Ghilaf Khan (P.W.12) and other contingents came to Police Station Takht-i-Nasrati. Accused Zar Badshah and Nadir Khan were already in custody. P.W. Adam Khan, Inspector interrogated them. On 2-10-2001, he produced both accused, Zar Badshah and Nadir Khan before the Court for recording their confessional statements. After recording their confessional statements, they were handed over to the local police. On 17-10-2001, he arrested the appellant Noor Sadda Khan. After his arrest, he obtained his two days' custody. During interrogation, appellant Noor Sadda Khan disclosed the entire story. While in custody, appellant Noor Sadda of elders, of the police party in the presence of elders, of the locality to the place where he had buried the body of deceased Nisar Khan without its head. After digging the place, P.W.
Adam pillow and a plastic sack. Accordingly, he prepared pointation memo. Exh. P . W .3/1 , and site plan, Exh . P. W.15/1. Thereafter, the police party came to the Hujra of appellant Noor Sadda Khan and on his pointation P.W. Adam Khan prepared the site plan, Exh.P.W.3/2, of his Hujra, where the murder of the deceased was committed. He dispatched the dead body of K.M.C. Peshawar for post-mortem examination/opinion. On 19-10-2001, he received the clothes of the deceased consisting of shirt (P.1), Shalwar (P.2), other belongings of the deceased (a blood-stained knife (P.3), on pair of `Tasbeeh' (P.4), one cap (P.5), and one key chain (P.6), which he took into possession vide recovery memo. Exh.P.W.1/1. On 20-10-2001, P.W. Adam Khan, Inspector, produced appellant Noor Sadda Khan before the Court of recording its confessional statement. On receipt of the postmortem examination (Exh.P.W.17/3) and report of the Forensic Science Laboratory (Exh.P.Z.), he placed the same on the file. He recorded statements of all the P.Ws., whereafter, he was transferred and he handed over the case file to Amir Nawab Khan, S.H.O. (P.W.8), who after completion of the investigation, submitted challan against the accused in Court."
4. The petitioner and the co-accused pleaded not guilty to the formal charge framed by the trial Court under the abovesaid offences and claimed trial. The prosecution examined 18 witnesses. The brief summary of evidence of P.W.6 Mir Chaman Khan, P.W.7 Raufullah Khan, A.S.-I. P.W.12 Ghilaf Khan, Inspector and P.W.15 Adam khan, S.H.O., has already been given.
5. P.W.9 Mst. Haroon Bibi, widow of the deceased P.W.10 Ghulam Akbar and P.W.11 Ahmed Nasir and furnished the last-seen evidence of the deceased in the company of the petitioner and the three absconding co-accused namely Laeeq Khan, Ali Mat Jan and Musharaf Khan. P.W.16 Dr. Anjum Zia, Assistant Professor, K.M.C. Peshawar conducted the post-mortem examination on the dead body of the deceased, P.W.17 Salim Raza Hashmi, Judicial Magistrate, had recorded confessional statement (Exh.P.W.17/2) of the petitioner on 20-10-2001. The rest are formal witnesses.
6. The petitioner and the acquitted co-accused Mir Zali Khan, in their statements under section 342, Cr.P.C. Denied the charges. They neither produced any evidence in defence nor examined themselves as their own witnesses under section 340(2), Cr.P.C.
7. We have heard the learned counsel for the petitioner, the State and have also seen the available record.
8. It is submitted by the learned counsel for the petitioner that the last-seen evidence furnished by P.W.9, P.W.10 and P.W.11 is sketchy and even otherwise it is a weak type of evidence, therefore, it is not safe to rely on the same, these P.Ws. Are closely related to the deceased and are highly interested witnesses and Courts below fell in error in relying on their depositions, both the Courts below have convicted the petitioner merely on the basis of his confessional statements, which was retracted and was not supported and was recovered after two and half months, therefore, the identification of the dead body was highly doubtful and said recovery was wrongly taken as corroborative piece of evidence and since the crime was not witnessed by anyone the circumstantial evidence produced by the prosecution was inconsistent, therefore, the petitioner was liable to be acquitted by extending him the benefit of doubt. The contentions have been opposed.
9. We have given our anxious consideration to the entire facts and circumstances of the case. We have also carefully examined the confessional statement (Exh.P.W.17/2) given by the petitioner before the Judicial Magistrate Takht-i-Nasrati, District Karak. It is a statement in detail. It provides all the links. Its perusal leads to only one conclusion and i.e, that it was voluntary and therefore, the Courts below correctly took the same into consideration and relied upon it. The last-seen evidence furnished by the abovesaid three P.Ws. Is consistent and confidence-inspiring. The said P.Ws. Had no prior enmity or towards the petitioner to suggest his false implication. Mere relationship of the said P.Ws. With the deceased is inconsequential. The statements of P.Ws. Makes it abundantly clear that the deceased had left his house in the company of petitioner and the abovesaid three co- accused. The dead body was properly identified by P.W.11 Ahmad Nasir and P.W.13 Haji Khurs,hid Ahmad from his stature, clothes and other belongings. In our opinion they were correctly believed by both the Courts below.
10. The confessional statement of the petitioner was, therefore, corroborated by the last-seen evidence and also by the recovery of the dead body of the deceased at the pointation of the petitioner from his field. The impugned judgment does not suffer from any misreading/nonreading of evidence or from any legal infirmity. The petitioner's appeal before the High Court had no merit and was correctly dismissed. In view of the above-mentioned, we find no merit in this petition which is dismissed. .