' RAHMAT HUSSAIN JAFFERI, J.--- Present appeal, by leave of the Court, is directed against the judgment dated 31-5-2004, passed by a learned Division Bench of the High Court of Balochistan, Quetta by which appeal of the appellant was dismissed, maintaining the conviction for offence punishable under section 302(b), P.P.C. And sentence of imprisonment for life with benefit of section 382-B, Cr.P.C. Awarded by the Special Judge S.T.A., Turbat.
2. It is the case of the prosecution that on 7-12-1998 Mir Shandad and his son Mujeeb-ur-Rehman were coming to their house on a motorcycle from Dasht Khuddan. When they reached at a place known as Maksar their motorcycle was intercepted by the appellant and co-accused who were armed with kalashnikovs. They fired upon Mir Shandad and Mujeeb-ur-Rehman due to which Mir Shandad died at the spot while Mujeeb-ur-Rehman became injured. On the fire-arm reports P.W.3 Abdul Rehman, P.W.4 Muhammad Amin and P.W.7 another Abdul Rehman reached there. The deceased Mujeeb-ur-Rehman disclosed that the appellant and Ismail caused them injuries. The deceased Mujeeb-ur-Rehman succumbed to the injuries. The complainant Muhammad Anwar also arrived there and lodged the report on 7-30 p.m.
3. Motive of the incident was that on the day of occurrence Mir Shandad apprehended a proclaimed offender Sawali and handed him over to the Levies authorities of Tehsil Dasht Khuddan.
4. The police investigated the case and collected the evidence of dying declaration of deceased Mujeeb-ur-Rehman in presence of P.Ws.3, 4 and 7. After the arrest, the appellant was produced before a Magistrate where his judicial confession was recorded. After completing the investigation the appellant was challaned in the Court where he was tried, convicted and sentenced as mentioned above.
5.. 'We have heard learned counsel for the appellant as well as the State. Learned counsel for the appellant stated that dying declaration is doubtful and that the judicial confession was not recorded in accordance with law, therefore, the case of the prosecution has not been proved. The learned State Counsel has stated that the prosecution has proved the dying declaration and confession, therefore, he supported the impugned judgment.
6. We have given consideration to the arguments and have gone through the evidence available on record with the assistance of learned counsel for the appellant.
7. The evidence of P.Ws.3, 4 and 7 reveals that when they reached on the fire-arm reports they found the deceased Mir Shandad lying dead while Mujeeb-ur-Rehman was alive but lying in injured condition who disclosed that the appellant Majeed and Ismail had fired at them. P.W.7 apart from naming the above two persons also named Naseer and Bashir. All these three witnesses were cross-examined but nothing came on record to discredit their evidence. No serious effort was made to challenge their statement on the question of dying declaration. From the evidence it has been established beyond any shadow of doubt that deceased Mujeeb-ur-Rehman made dying declaration immediately after the incident, eliminating the possibility of influence etc. Before the witnesses making the appellant responsible as one of the accused for causing them injuries. It is a well-settled principle of law that if dying declaration is made even before a private person, is free from influence and the persons before whom such dying declaration was made was examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction. This Court gave following guiding principles for relying upon the dying declaration in the case of Farmanullah v. Qadeem Khan 2001 SCM R 1474.
"(i) There is no specified forum before whom such declaration is required to made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be examined.
(vi) Such declaration becomes substantive evidence when it is proved that it' was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii)Such declaration when proved by cogent evidence can be made a base for conviction."
' Thus, the prosecution has proved the dying declaration which by itself is sufficient to maintain the conviction and sentence.
8. As regards confessional statement, the accused made the confession of committing the crime by specifically admitting that he had caused fire-arm injuries to the deceased. This statement is supported and corroborated by the dying declaration. Both the Courts below have relied upon the above pieces of evidence and we do not find any reason to interfere with their findings.
9. Learned counsel for the appellant has criticized the confession on the grounds that there was a delay of 12 days in recording the confession; that it was not voluntary and true and that only half an hour was given to the appellant for reflection.
10. No doubt there was delay of 12 days in recording the confession but this by itself is not sufficient to discard the same. This Court in the case of Nabi Bakhsh v. State 1999 SCM R 1972 held that delay in recording the confessional statement by itself is not sufficient to affect its validity. However, no hard and fast rule can certainly be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation. Reference is also invited to Muhammad Yaqoob v. State 1992 SCM R 1983.
11. We have examined the confessional statement and found that the Magistrate after performing requirements of law and giving a time of half an hour recorded the same and he was of the opinion that the confession was voluntary and true. In the case of Gul Jamal v. State 1980 SCM R 654, it was held that no hard and fast rule as to how much time is to be allowed to the accused for reflection before confession is recorded. However, period of time depends on each case. In the present circumstances of the case, we find that the period given by the Magistrate for reflection purposes to the appellant was sufficient and it has not caused any prejudice to the appellant. Even otherwise, any lapse by Magistrate in recording the confession cannot always be treated as fatal to the evidentiary value of confession when the Court is satisfied that lapse on the part of the Magistrate is not in any way adversely affected the voluntariness or truthfulness of the confession.
Reference is invited to Naseem Akhtar v. State 1999 SCM R 1744 and Muhammad Yaqoob v. State 1992 SCM R 1983: We do not find any infirmity in the confessional statement which is corroborated by the dying declaration. Even otherwise, the recorded confession is sufficient for conviction if it is voluntary and true and requires no corroboration but as a rule of procedure the Court is required to seek corroboration of the same on material particulars. Reference is invited to Gul Muhammad v.
The State 1991 SCM R 942. In this case confession has been fully corroborated by dying declaration.
12. After scrutinizing the evidence, we are of the view that there is no misreading or non-reading of the evidence on record. There is no infirmity in the assessment of evidence by, the learned High Court and the trial Court as such no interference is required to the impugned judgment.
Consequently, the appeal fails and conviction and sentence awarded by the trial Court and affirmed by the learned High Court is maintained. However, we may point out that both the Courts below did not pass any order as required under section 544-A, Cr.P.C. Which was required to have been passed and further they also did not give any reason for not passing such an order, therefore, We direct the appellant to pay compensation of Rs,1,00,000 for each deceased to be paid to their legal heirs or in default thereof to undergo R.I. For six months.
' Resultantly, the appeal stands dismissed.