' MRS. SYEDA TAHIRA SAFDAR, J.---It is a jail appeal preferred by convict Muhammad Lal son of Rehmatullah, against judgment dated 28th April, 2011 of Sessions Judge, Zhob, whereby he had been convicted for the offence punishable under section 302 Pakistan Penal Code (P.P.C.) and awarded punishment to suffer regrious imprisonment for a period of ten years, and also liable to pay Diyat to legal heirs of the deceased. The appeal had been preferred with only contention that he has been falsely implicated in the case due to personal grudge, and tribal feud. It was prayed that keeping in view his financial position, as he is unable to pay the amount of diyat, and further keeping in view his family condition. The conviction awarded to him be reduced, and the punishment to the extent of payment of amount of Diyat be set aside.
2. Brief facts of the case are that pursuant to F.I.R. No. 109 of 2010 it was reported by one Mir Wali son of Sahib Jan, that he had been informed by one Abdul Bari son of Jamal-ud-Din that his (complainant's) brother namely Nadir Khan had been killed by Muhammad Lal (present appellant) and Fazal Qadir, at watercourse near Bypass. On information he reached there, found the dead body of his brother. After registration of First Information Report (F.I.R), investigation was made, and the police report was submitted for trial. The trial court while commencing the proceedings framed charge on 3rd November, 2010 to the effect:-- "That on 10-9-2010, you and Fazal Qadir, in furtherance of your common intention, committed murder of Nadir Khan and thereby you committed the offence of Qatl-e-Amd punishable under section 302/34 of the Pakistan Penal Code and with in the cognizance of this court".
' The appellant being accused denied the charge, whereby the prosecution was directed to produce evidence. Thereby seven witnesses appeared from the prosecution side. While in his defence the appellant only recorded his statement on oath, but did not opt to produce any witness.
The trial court on completion of trial through judgment dated 28th April, 2011 arrived to the findings that the appellant is guilty of the ch4rge, but due to mitigating circumstances, as noted in the judgment, the quantum of sentence was decided to be ten (10) years rigorous imprisonment, with liability of payment of Diyat amount to the legal heirs of the victim. Feeling aggrieved of the conviction order, the instant appeal has been filed by the appellant raising only one ground that he had been falsely involved in the instant case, with prayer for reduction in period of imprisonment, and exemption from payment of Diyat amount keeping in view the financial position of him and his family.
3. Learned counsel for the appellant while arguing the matter contended that the prosecution based its case solely on the confessional statement of the accused/ applicant, which in fact was recorded with the delay of 7/8 days, that too without any reasonable cause. It was further his argument that the delay in recording of confessional statement was fatal, therefore cannot be relied upon. It was further his argument that there was no direct evidence about commission of the offence, rather the only piece of evidence against the appellant was, his alleged confessional statement, which in fact was retracted, therefore, no conviction can be made on a retracted confessional statement. But, the trial court failed to consider this legal preposition and recorded findings which are in contravention of law. It was further argument of the learned counsel that there were several contradictions in the evidence produced by the prosecution, but there was lack of due consideration on the part of the trial court. The learned counsel pointed out the fact that the S.H.O. Received information about commission of the offence at 10-00 p.m. While the complainant got information about the incident at 11-00 p.m. Which creates doubt. Further, the medical evidence is not in conformity with the complaint. Furthermore, the time, and date of the incident was also not correctly described by the witnesses, and the most important witness of the occasion Abdul Bari was never produced during the course of trial. Therefore, all these facts create reasonable doubt. Learned counsel lastly contended that the trial court failed to ascertain the diyat amount, which is to be paid, thus committed an illegality. While replying to the argument, the learned State counsel was of the view that the accused was specifically nominated in the F.I.R., while the material on record was properly appreciated by the trial court. It was further his argument that after proper appreciation of evidence, conviction was rightly granted to the appellant; therefore, no interference is required.
4. From the facts of the case it is evident that the complainant Mir Wali, who appeared as prosecution witness No.1 (P.W.1), is not the eye-witness of the occasion; rather it is an unseen incident. Because the complainant/P.W.1 was informed about the occurrence by, one Abdul Bari son of Jamal-ud-Din, that Lal Muhammad, and Fazal Qadir killed Nadir Khan brother of the complainant near watercourse at Bypass. It is apparent that the matter was reported without any delay with specific nomination of the present appellant along with Fazal Qadir being involved in commission of the offence. The Investigating Officer, A.S.-I., Saeed Ahmed, while appearing as P.W.7 stated that though he arrested Fazal Qadir, but due to no evidence, the said Fazal Qadir was discharged, while exercising powers under section 169 Criminal Procedure Code (Cr.P.C). During course of trial no material was brought on record from which the involvement of Fazal Qadir in commission of offence can be ascertained. Therefore, this act of discharge remain in field. The fact that both Fazal Qadir and appellant were arrested on 10th September, 2010. But to the extent of the appellant the Investigating Officer while recording his statement as P.W.7 contended that the accused was handed over to the police by the elders of the area. Recovery of the knife, being used in commission of offence was also asserted by the prosecution, and produced it as Art/P-11. P.W.4 A.S.-I., Muhammad Rahim is a marginal witness of the recovery memo Exh.P/4-A. The Medico-legal Officer Dr. Saba Khan, appeared as P.W.2, who produced the Medico-legal Certificate (MLC) as Exh.P/2-A. This Certificate disclosed six (6) stab wounds on the body of the victim. P.W.5 Allah Wasaya, being Patwari prepared the site map Exh.P/5-A; it bears date 15th September, 2010. It was also the case of the prosecution that the appellant accused got recorded his confessional statement on 17th September, 2010. The Judicial Magistrate Farmanullah Khan (P.W.6) produced the confessional statement Exh.P/6-A. The Investigating Officer appeared as P.W.7, described the evidence collected by him. This witness also prepared the site map Exh.P/7-B. The trial court while relying on these pieces of evidence recorded conviction, which is hereby challenged by the appellant.
5. The perusal of the evidence on record reveals that P.W.1 Mir Wali, the complainant is not the eye- witness. The person, who informed the complainant about occurrence of the incident namely Abdul Bari never appeared before the court. The perusal of the case file reveals that process were issued for said Abdul Bari, being one of the witnesses of the prosecution, but the process remained unserved with report that he has left for Afghanistan. An important witness did not appear before the court. Further, the recovery of the crime weapon At t. P-11 is asserted but the prosecution failed to produce some further evidence to establish the recovered knife being the weapon used in commission of the offence. Though the Medico-legal Certificate noted down several injuries being stab wounds but failed to disclose the measurement of the wounds, as depth and width of the wounds are not recorded therein, which helps in to connect the recovered knife being the object used, which caused death of the victim Nadir Khan. In view of the admitted position that no direct evidence is available, rather the evidence collected is circumstantial in nature. The Medico-legal Certificate Exh.P/2-A established the fact of unnatural death, cause of injuries inflicted through sharp object, while the report of the Forensic Science Laboratory (F.S.L) Exh.P/7-C, described the stains present on clothing of the deceased and on stones, being of human blood. But, mere presence of these reports are not sufficient. Rather, some more evidence is required to connect the appellant in commission of the offence.
6. In view of the stated facts the only positive piece of evidence against the appellant is the confessional statement Exh.P/6-A, allegedly made by him (appellant). The trial court not only believed this confessional statement, but recorded conviction on its basis. While analyzing material on record it appeared that the accused/appellant was arrested on 10th September, 2010, being an admitted fact, and he remained in custody of the Police till recording of the confessional statement, which was made on 17th September, 2010. There was delay of seven days in recording of the confessional statement. The delay so occurred is to be considered carefully, because the delay in recording of the statement can be fatal, if it is established that the confessional statement was result of coercion, threatening, undue influence and torture. And if it is established no reliance can be made on it, nor conviction can be recorded on its bases. In present case the prosecution asserted that the appellant, being the real culprit, voluntarily, and with his free-will recorded confessional statement before the Judicial Magistrate, b, Farmanullah Khan. This Judicial Magistrate appeared as P.W.6, and stated categorically that the statement was recorded with free will and consent of the accused, and sufficient time was given to the accused for thinking, with no complain of torture or maltreatment. In rebuttal the appellant did not deny the recording of the confessional statement, rather it was his suggested plea that he was threatened and induced by the Investigating Officer that if he (appellant) recorded his confessional statement, he would be set free. It was further suggested that the appellant/accused was tortured in order to get Fazal Qadir free from commission of the offence. The appellant, while answering to question No.10, during course of examination conducted under section 342, Criminal Procedure Code (Cr.P.C), deposed that: "Q. No.10. Is it correct that on 17-9-2010, your confessional state ment under section 164, Cr.P.C.
Exh.P/6-A was recorded by Judicial Magistrate, Zhob who appended his certificate as Exh.P/6-B to it?"
"Ans:--recorded by the police after torturing and under influence."
7. In view of the same, it is apparent that the appellant took a specific plea of being tortured, and put under undue influence by the Police. In addition in reply to question No.14 that why the prosecution witnesses deposed against him, it was his reply that it was "with mala fide intention just to harass him." The 'appellant through this reply tried to emphasize his plea taken earlier. In his statement on oath he (the appellant) stated that on 20th Ramazan, he went for shopping, and on his return at 1-00 a.m. It was informed that his younger brother was apprehended by the police, whereupon in the morning at 10-00 a.m. He went to Police Station, where he was taken into custody, and his brother was set free. Since then he remained in custody for. 11/12 days, whereby he was tortured, and pressurized to confess the murder, but he refused. It was further his statement that before his arrest, Abdul Bari and Fazal Qadir were under investigation, but during course of cross- examination he admitted that he was produced before a Magistrate. But he denied that he with his free-will made statement before the Magistrate. Apart from this denial it was his statement, that at the time he was under influence, and torture and he was not in his proper senses. He further stated that he did not disclose the fact to the Magistrate, that the police had tortured him. He admitted the suggestion that he did not disclose plea taken by the appellant, the fact of recording of confessional statement is not denied. But the only explanation given by the appellant was to the effect that he made the statement due to torture and under compulsion of the police.
8. In view of the narrated facts, it is a retracted judicial confession. Though there are general principles that no conviction can be based on retracted confession, or conviction cannot be made solely on basis of a confessional statement, But with certain exceptions. On the first instance it appeared to be voluntary and true. Secondly the contents of the confession are to be corroborated by other pieces of evidence. Therefore, it is the prosecution who has to produce some reliable evidence to establish the commission of the offence and further to connect the accused person with its commission. In case of retracted confession help can be taken from the judgment made in Criminal Petition titled as Manjeet Singh v. The State, reported in PLD 2006 SC 30, whereby their lordship provide complete guideline in such like cases. It was held:-- "The Court should be very careful in ascertaining the true character of the confession for conviction and must consider the reasons given for retraction of the confession to find out the truth in such reason before making use of the confession for conviction."
"This is settled law that a retracted confession either judicial or extrajudicial, 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."
' It is further held that "There is no cavil to the general rule that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particulars and the Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession but it is not an inflexible rule that retracted confession cannot be wide basis of conviction without independent corroboration rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person. The law is that a retracted confession can be legally taken into consideration, against the maker, if the confession is found true and voluntary and can also be used as sole evidence for conviction without any corroboration if the Court is satisfied about its voluntary character and truthfulness."
' Keeping in view the principles so laid down, the material on record is to be assessed in present case. The appellant admitted making of confessional statement with plea of torture, undue influence. But he failed to retain this plea because he in addition admitted that he neither complained, nor disclosed this fact to the Judicial Magistrate before whom he was appearing and had full opportunity to disclose the same. But he did not avail the opportunity, that too without disclosing any reason. In addition, the appellants according to his own statement did not mention this fact to his father or brother, which seemed to be unnatural. Nor he ever tried to produce them before the court for confirmation of his own statement. Furthermore, it is observed that the facts narrated in the confessional statement are in conformity with the facts of the case as described by the prosecution. He described the place of occurrence as near watercourse situated at Bypass, where the incident happened. This fact got support from the material on record, as the dead body of the victim was recovered from the watercourse near Bypass. He further described the crime weapon as knife, from which he inflicted injuries to the body of the victim. He further stated that he twice or thrice gave blows to the victim, which got support from the Medico-legal Certificate, wherein at least six injuries were noted, and the nature of the injures are described as stab wounds with some sharp object. Furthermore, during course of cross-examination of his statement on oath, he admitted the recovery of knife from his possession with assertions that he kept the knife for cutting of vegetables in his pocket. Though knife was not got examined by the Expert, but it is not fatal in the circumstances. Because Medico-legal Certificate described the object used as sharp.
The evidence collected by the prosecution not only corroborate the confessional statement, but also establish involvement of appellant in commission of the offence. In view of his own admission, and in absence of any evidence or material that the confession was result of torture or undue influence, reliance can be made on this statement which was rightly done by the trial court.
10. The trial court properly assessed the material on record and while considering circumstances as noted herein above. The appellant was lightly convicted.
' As tar as quantum of sentence is concerned, it is proper in the circumstances, therefore, needs no further reduction. As far as payment of Diyat amount is concerned, the trial court has failed to mention the specific amount in the judgment, which, is to be payable by the appellant. Section 323 of Pakistan Penal Code (P.P.C.) describes the value of Diyat, which is to be fixed by the trial court, while making order to same effect. Section 323, P.P.C. Reads as under:-- "Section 323. Value of Diyat (1) The Court shall, subject to the injunctions of Islam as laid down in the Holy Qur'an and Sunnah and keeping in view the financial position of the convict and the heirs of the victim fix the value of diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver.
(2) For the purpose of subsection (1), the Federal Government shall, by Notification in the official Gazette, declare the value of silver on the first day of July each year (or) on such date as it may deem fit which shall be value payable during a financial year."
10. In view of the same, while directing the payment of Diyat, the trial court is required to assess the same keeping in view the financial position of the parties. But only with condition that it shall not be less than the value of 30630 grams of silver, which is to be assessed by the Federal Government for each financial year. Therefore, as the offence pertains to year 2010/2011, the notification issued to the effect will be relevant, whereby the value of 30630 grams silver is declared as Rs.1,465,163 (Rupees one Million four hundred sixty five thousand one hundred sixty three only). As there is no evidence about the financial position of the convict and the heirs of the victim, therefore, it deemed appropriate to fix the amount of Diyat as Rs.1,465,163, and the appellant is bound to pay the amount to the legal heirs of the deceased Nadir Khan. It is further ordered that the payment of Diyat amount be made in three equal instalments payable in month of July of each year, and till payment of diyat amount, the convict/appellant be kept in jail as per requirement of section 331, P.P.C.
' The judgment of the trial court is upheld with addition and alteration. 'The appeal stands disposed of.