MIFTAH-UD-DIN KHAN, J.---Appellant Sher Azam was tried by the learned Additional Sessions Judge, Ghazi for the murder of deceased Sadaqat Ali along with co-accused Mst. Farah Naz, in case F.I.R. No, 184 dated 4-9-2009 of Police Station Ghazi, District Haripur registered under section 302/109, P.P.C. and he was found guilty of the offence under section 302(b), P.P.C. and sentenced to death vide judgment and order dated 19-5-2010.
2. The brief facts of the case are that complainant Muhammad Riaz on 4-9-2009 at 2-20 a.m. along with his injured nephew Sadaqat Ali reported to police in R.H.C., Ghazi that injured Sadaqat Ali slept in the verandah of his house along with other inmates as usual. That at 1-15 a.m. Mst. Gulzari Jan informed the complainant that some body has fired at Sadaqat Ali. On this information. complainant proceeded to the spot and saw that Sadaqat Ali is hit by the bullet in front of his head on left side and is unconscious. The complainant did not charge anyone for the occurrence. The report of complainant was recorded in the shape of Murasila Exh.PA/I. upon which the present case was registered vide Exh. PA.
3. The present case was investigated by Javed-ur-Raman ASI P.W.10. who visited the spot and prepared site plan Exh.P13 with all its footnotes and drawings at the instance of Mst. Farah Naz. He took into possession blood Exh.P-1 from beneath the cot of the deceased, an empty of .30 bore Exh.P-2 lying nearby having fresh sme ll of discharge and cover of pillow blood-stained Exh.P-3 having corresponding cut marks and sealed them into separate parcels vide recovery memo Exh.P.W.3/1. He also took into possession the blood-stained clothes of deceased consisting of shalwar Exh. P.4, Banyan Exh.P.5 and sealed the same in parcel in the presence of marginal witnesses vide recovery memo Exh.P.W6/1. On 6-9-2009 he received spy information that widow of deceased and accused Sher Azam are involved in the murder of the deceased, therefore, he visited the house of deceased for the purpose of recording statements of widow of deceased and sister- in-law. He met with Nazakat, brother of deceased who told him that he (brother of deceased) was in search of accused and after his satisfaction. he would get record the statements of the P.Ws. On 8-9-2009 Investigating Officer recorded statements, of complainant and brother of deceased Nazakat under section 161, Cr.P.C. wherein, they charged the appellant and his co-accused Farah Naz for the murder of the deceased. He also got recorded their statements under section 164, Cr.P.C. He arrested appellant Sher Azam from village Paki Ban on receipt of spy information about his presence and issued his card of arrest. He interrogated the appellant, who disclosed that he had relations with Mst. Farah Naz for 3/4 years and he wanted to marry her but her hand was refused to him by her parents.. He further disclosed that two months prior to the occurrence. Mst.
Farah Naz was married to the deceased without her consent. It was also disclosed by the appellant that Mst. Farah Naz told her to kill deceased Sadaqat Ali so that they could marry each other and as such they had committed the murder of deceased. The appellant also disclosed during said interrogation that he could point out the place of occurrence and could recover a pistol. weapon of offence which was concealed by him in his house. On this disclosure of the appellant, Investigating Officer took him to the house of deceased where he pointed out the place of occurrence and the Investigating Officer made additions in the site plan in this regard. Thereafter, appellant led the police party to his house and on his pointation, the Investigating Officer recovered and took into possession a .30 bore pistol Exh.P-6 along with magazine containing five live cartridges from a grain box lying the in verandah of the house of appellant vide recovery memo Exh.P.W.8/2 in presence of marginal witnesses. He also prepared the sketch Exh.P.W.10/1 of the house of appellant.
He recorded the statements of P.Ws. under section 161, Cr.P.C. Since the pistol was unlicensed, therefore, separate challan under section 13, A.O. was lodged against appellant. On 9-9-2009 appellant was produced before Judicial Magistrate, Ghazi for recording his confessional statement, where he confessed his guilt and his statement was recorded by the Judicial Magistrate and then he was sent to judicial lockup. On 10-9-2009 accused Mst. Farah Naz was produced by her father in PS and she was also arrested in the case. The Investigating Officer sent the blood recovered from the spot the cover of pillow stained with blood and clothes of deceased to the F.S.I, vide application Exh.P.W.1O/2 and report of FSL is Exh.P.W.10/3. Similarly, he sent the empty of .30 bore recovered from the spot and .30 bore pistol to Fire Arms Expert vide application Exh.P.W.10/4 and report of Arms Expert is Exh. P.W.10/5. After completion of investigation, challan was submitted against the appellant.
4. The appellant was formally charged but he pleaded not guilty and claimed trial. The prosecution produced eleven witnesses in support of its case. After recording statement of appellant under section 342, Cr.P.C. and hearing the learned counsel for complainant and learned Defence counsel the learned Additional Sessions Judge Haripur at Ghazi found guilty the appellant and vide judgment and order dated 19-5-2010 awarded the following sentence:-- "Accused Sher Azam is convicted under section 302(b), P.P.0 and is sentenced to death as Tazir He shall be hanged by neck till his death. However, the sentence of death shall not be executed until it is confirmed by the Hon'ble High Court and for that purpose proceedings of this case shall be submitted to the Hon'ble High Court as required under section 374, Cr.P.C. The accused is further directed to pay compensation of Rs,2,00,000 to the legal heirs of the deceased and in default thereof lie shall suffer. S.I. for six months.
5. The appellant has preferred Criminal Appeal No, 115 of 2010 against the order of conviction while the learned Additional Sessions Judge. Haripur at Ghazi has sent Murder Reference No, 13 of 2010 for confirmation of death sentence under section 374, Cr.P.C. As the present Appeal and the connected Murder Reference are the outcome of the same judgment, therefore, they are being disposed of through the present single judgment.
6. Mr. Azmatullah Malik Advocate, learned counsel for the appellant contended that the present is an unseen and un-witnessed occurrence and the entire prosecution case is based on the retracted confessional statement and recovery of weapon of offence at the instance and pointation of the appellant. He further submitted that no one from inmates of the house was examined during investigation and it is not known as to when and how the story of illicit relations of appellant with co-accused Farah Naz was developed by the prosecution He further submitted that in fact the appellant was taken into custody by the Investigating Officer on 6-9-2009 and was subjected to pressure and torture to compel him for confessional statement. He further submitted that after compelling the appellant for confessional statement, the supplementary statements of other P.Ws. were recorded just to enrope the appellant in a false case. He further submitted that the confessional statement of the appellant was not recorded after compliance of all the legal formalities and the aforesaid statement was not duly certified under section 364, Cr.P.C. He further submitted that the recovery of weapon of offence was made from a joint house, therefore, this recovery cannot be attributed exclusively to the appellant. He argued that other co-accused has been acquitted on the same type of evidence, therefore, the appellant cannot be convicted on the basis of a retracted confessional statement, without corroboration from other source. He lastly submitted that the present is un-witnessed occurrence and none of the inmates of house has been produced to support the prosecution case, therefore, the appellant is entitled to acquittal. He placed reliance on 1989 SC (FSC) 43 and 2008 SCM R 336.
7. Mr. Saeed Akhtar Khan Advocate, learned counsel for complainant assisted by Mr. Abdul Wahid Khan, learned State counsel defended the judgment of learned trial Court and contended that soon after the arrest of the appellant, he was produced before Magistrate during twenty four hours who confessed his guilt before Judicial Magistrate who had recorded the confessional statement of the appellant after compliance of all the legal formalities including certificate under section 364, Cr.P.C. therefore, the same can be relied as sufficient proof against the appellant. He further submitted that the defence plea during trial was that the appellant was not produced for confessional statement before Magistrate. He further submitted that for the first time appellant in his statement under section 342, Cr.P.C. retracted the confessional statement in reply to question No,13 put to the appellant. He further submitted that conviction can be based on the sole confessional statement as the same shall be treated as proof against the appellant under Article 43 of Qanoon-e-Shahadat. He further submitted that inculpatory confessional statement of the appellant is duly supported by the Medical Officer as well as incriminating recoveries in the shape of recovery of weapon of offence at the instance and pointation of the appellant duly supported by independent and impartial witness. He further submitted that there was sufficient evidence against the appellant in the shape of confession medical evidence incriminating recoveries to prove the charge of murder of an innocent Sadaqat Ali, therefore, the Larned trial Court was justified to award the normal penalty of death to the appellant. He placed reliance on 2010 SCM R 55, PLD 1976 Peshawar 135, 1992 SCM R 950, PLD 2006 SC 354, PLD 2005 SC 168, 2002 SCM R 1493, 1999 SCM R 1972, 1992 SCM R 1983, 2004 SCM R 477 and 1703, 1995 SCM R 614 and PLD. 1996 SC 1.
8.Admittedly, the present is an unseen and unwitnessed occurrence, therefore, there was hardly any need to produce and examine the inmates of house of deceased. The learned trial Court has convicted the appellant on the basis of retracted confessional statement, medical evidence and incriminating recoveries in the shape of recovery of empty. from the spot, recovery of weapon of offence at the instance and pointation of appellant and positive report of Arms Expert in this connection.
9.The contention of learned counsel for appellant that on the same type of evidence the other co- accused was acquitted, therefore, appellant could not be convicted on the same evidence is totally without substaike because the case of appellant is not at par with acquitted co-accused as she had not confessed her guilt before a competent court. Similarly, the contention of learned counsel for appellant that appellant was arrested by police on 6-9-2009 is not supported by any fact or evidence available on record. The card of arrest of appellant and other police record indicate that the appellant was arrested on 8-9-2009 and produced for confessional statement on 9-9-2009 without obtaining any police custody, hence, medical examination of appellant was not required. The appellant in his confessional statement Exh.P.W.2/2 recorded by the learned Judicial Magistrate has stated that he had old friendship with Farah Naz. That he sent his mother for relationship to the house of Farah Naz but her parents refused. That two months prior the marriage of Sadaqat Ali took place with Farah Naz against her wishes as she was loving appellant. After marriage meeting between the two continued during the course of which she compelled him to kill Sadaqat Ali in order to marry each other. That on the night of occurrence, he scaled over the wall of house of Sadaqat Ali and found Farah Naz awakened in a cot in verandah, while Sadaqat was sleeping. That on pointation of Farah Naz, he fired at the head of Sadaqat and decamped from the spot. The confessional statement was recorded within 24 hours of arrest of the accused by the learned Judicial Magistrate after observing all necessary codal formalities by putting all relevant and necessary questions to appellant in accordance with High Court Rules and Orders and issuing requisite certificate in accordance with section 364, Cr.P.C. Thus. presumption of genuineness is attached to such certificate under Article 90 of Qanoon-e-Shahadat. The learned Magistrate after his satisfaction that appellant is making voluntary confession has recorded the same.. Such confessional statement of appellant shall be taken as proof against appellant under Article 43 of Qanoon-e-Shahadat. Nothing on the record exists that the confession was made under pressure, coercion, duress or inducement. In the past confessions used to be recorded by Executive Magistrates which has to be analyzed and scrutinized with care and caution due to possibility of mutual cooperation and coordination between police and Magistrate as both were part and parcel of Administration. In the present case, confessional statement has been recorded by Judicial Magistrate, who is part and parcel of an independent Judiciary excluding possibility of any pressure of police executive and other quarters. Thus, the confessional statement which is inculpatory in nature appears to be free truthful voluntary excluding the possibility of pressure coercion and inducement. The contention of learned counsel for appellant that conviction cannot be based on retracted confession is without any substance. There is hardly any difference in confession and retracted confession. The apex Court in 1992 SCM R 950 observed as under:-- "Confession- --Retracted confession---No basic difference exists between confession or a retracted confession, if the element of truth is not missing and it is always a question of fact which is to be adjudged by the Courts on the attending circumstances of a particular case---When an accused has given an account of the incident and its truth is not doubted and such statement is proved to be correct in all its parts, such solitary piece of evidence can he used against the accused without any further corroboration---Where the confessional statement of the accused was found to be true and voluntary, conviction could be recorded on such statement.
' Similarly, in PLD 2005 SC 168 the apex,Court observed.
"Confessional statement--- Effect--- Confessional statement although retracted would be sufficient piece of evidence for conviction if it is found true, voluntary and having not been obtained by coercion, inducement or torture."
' In 1999 SCM R 1972, conviction on the basis of confession recorded after 6/7 days was duly maintained.
' In 1995 SCMR 617 the apex court observed that:-- "The recovery to be made on the pointation of the accused is relevant under Article 40 of the Qanun-e-Shahadat, 1984. The association of the two respectable inhabitant of the locality is not required in a case where the accused himself leads the Police to a particular place and gets the article recovered."
' Similarly in PLD 2006 SC 354 the apex Court observed that:-- "S. 164---Criminal trial---Confessional statement of accused--- Scope---Accused got recorded his statement on the day following his arrest but in court proceedings in his statement under S.342, Cr.P.C., he denied recording of confession along with recovery of incriminating evidence--- Effect-- - Voluntariness of confessional statement under S. 164, Cr.P.C. of accused could be adjudged if it was recorded without unexplained delay after his arrest---As recovery of incriminating evidence was duly established against accused, his confessional statement also got strong ' corroboration from the same---Such confessional statement could be used against the accused."
10. According to confessional statement of appellant the deceased was fired at his head, which fact is corroborated by medical evidence. Per statement of Dr. Muhammad Ayaz P.W.1 a firearm entry wound was found on the skull of deceased. The confessional statement is further corroborated by the recovery of weapon of offence at the instance and pointation of appellant from a box containing wheat grain inside the house. No doubt, the house is jointly owned but the recovery was made at the pointation of appellant from a place which was exclusively within the knowledge of appellant. The prosecution version in this connection is supported by Jamroz Khan P.W.6, who is an independent and impartial witness. It was brought by defence from the mouth of this P.W. during cross-examination that deceased and appellant are his relatives. This P.W. further stated that the box was full of grain and that the appellant himself recovered the pistol and this fact was in his knowledge only and that the pistol belongs to the appellant. Thus, no reason exists to disbelieve or doubt the credibility of.this witness in respect of recovery of weapon of offence at the instance and pointation of appellant. The weapon of offence along with empty of .30 bore recovered from the spot was sent to Arms Expert and report of Arms Expert is Exh.P.W.10/5. Thus, the confessional statement is fully corroborated by medical evidence and incriminating recoveries. In these circumstances, the charge of murder of deceased Sadaqat Ali was proved beyond doubt against appellant, therefore, the learned trial Court was quite justified to convict the appellant and award the normal penalty of death. The conviction and sentence awarded to appellant is maintained, while appeal of appellant is devoid of merits, hence, dismissed. The reference sent by the learned Additional Sessions Judge is answered in positive and death sentence awarded to appellant is confirmed.