' FAZAL-I-HAQ ABBASI, J.---Impugned herein, is the judgment dated 26-11-2009, passed by Additional Sessions Judge/Izafi Zila Qazi-I, Swat, whereby Qaiser Ali son of Akbar Ali was convicted and sentenced as follows:--
(i) Under section 302(b), P.P.C. To death with direction to pay Rs,50,000 as compensation under section 544-A, Cr.P.C., payable to the legal heirs of the deceased. Amount of compensation was directed to be recovered as arrears of land revenue or in default of payment to stiffer six months' SI.
(ii) Under section 404, P.P.C. To one year's R.I. With a fine of Rs,5,000 or in default of payment of fine to suffer two months' SI.
' Benefit of section 382-B, Cr.P.C. Was extended to the accused.
2. Learned trial court has sent murder reference under section 374, Cr.P.C. For confirmation of the death sentence awarded to the accused.
3. We intend to dispose of Criminal Appeal No, 595 of 2009 filed by Qaiser Ali and M.R No 30 of 2009 sent by the trial Court through this judgment.
4. Akhtar Ali (P.W.1), lodged the report on 4-6-2009 at 14.00 hours that Mst. Khurshida, his sister is teacher, who had gone to perform her duty in the morning; while he at 09.15 a.m. Went to Mangora Bazar and his mother was alone in the house When he returned to home at 12.30 hours, meter reader and Bakht Karam, his neighbour, were standing outside the house, who inquired whether there is none in the house, because on ringing the bell, time and again no reply is received, he went inside the house and saw his mother in slaughtered condition, lying on the cot. He charged unknown person/persons for the murder, for unknown reasons. Report was recorded by Habib Zaman S.H.O., in shape of Murasila Exh.PA/1 and sent the same to the police station, on the basis of which, case was registered vide F.I.R., Exh.PA bearing No,1110 dated 4-6-2007 under section 302, P.P.C. At Police Station, Mangora, by Hazrat Gul. A.S.H.O. P .W.4. S.H.O. Also prepared the inquest report and sent the dead body under the escort of Sartaj Khan SI to Civil Hospital, Saidu Sharif, for post mortem examination.
5. Post Mortem on the dead body of Mst. Malka aged 70/75 years, was conducted by lady Doctor Hameeda, WMO, P.W.8 and found a cut about 6" long and 3" deep, with clean margins, in front of neck, cutting the skin, muscles, vessels, oesoghagus and trachea of the deceased. Death occurred due to haemorrhage and shock. Cut marks on the dorsal and palmer surface of both hands were also found.
6. Investigation was carried out by Behram Khan SI P.W.7. He inspected the crime spot, prepared site plan Exh.PB, took into possession blood' through cotton Exh.P-1, vide memo Exh.P.W.7/1, spectacle Exh.P-2, through memo Exh.P.W.7/2, one mirror Exh.P-4, having finger print, vide memo Exh.P.W.7/3, from the spot in presence of witnesses. He took into possession blood-stained shirt of deceased Exh.P-3, vide memo Exh.P.W.7/4. He sent the blood taken through cotton from the spot and blood-stained shirt of the deceased to Serologist and received report Exh.P.W.7/5. On 17-6- 2007, he obtained finger prints of Qaiser Ali, Akhter Ali and picked up finger prints from the mirror, taken into possession from the spot and sent the finger prints to the expert and received report Exh.P.W.7/6 but finger prints of both the persons were not found matching with the finger prints on the mirror. On 18-6-2007, he got recorded the statement of Akhter Ali complainant under section 164, Cr.P.C, wherein Qaiser Ali accused was charged. He arrested Qaiser Ali on 18-6-2007 and got recorded statement"- of Mst. Noor Shada on 19-6-2007 under section 164, Cr.P.C, who also charged Qaiser Ali for the commission of murder of her mother, On the said date police custody of Qaiser Ali was obtained by. P.W.7 from the court, who during investigation, admitted the commission'of offence and led the Investigating Officer and the witnesses to a Tomb, and took out an envelope from beneath a tree, containing golden locket and ring Exh.P-4 and produced the same to the Investigating Officer by stating that after the murder of the deceased, he had taken out the same along with Rs,16,000 from suit-case of the deceased. The aforementioned locket and ring were taken into possession by the Investigating Officer in presence of Shah Jehan, P.W.3 and Aman-ud- Din, vide memo Exh.P.W.3/1. The Investigating Officer prepared the sketch Exh.P.W.7/10 of the place of recovery. Section 404, P.P.0 . Was added to the charge. Qaiser Ali accused then led the police and the witnesses to the place of occurrence and pointed out various places and thereafter led them to his house and from the kitchen took out one "churri" P-5, produced the same to the Investigating Officer, which was taken into possession vide memo Exh.P.W.3/3 in presence of the witnesses. On 20-6-2007 an amount of Rs, 16,000 was produced by Akbar Ali, father of accused, which according to Qaiser Ali, was taken away by him along with locket and ring from the suit-case of the deceased. The amount was taken into possession by the Investigating Officer through memo Exh.P.W.4/1 in presence of Hussain Ali LHC, P.W.4 and Aziz-urRehman FC. On 21-6-2007, Qaiser Ali accused was produced before the Judicial Magistrate, Swat for recording his confessional statement, and he confessed his guilt, which was recorded in shape of Exh.P.W.10/2 and thereafter accused was sent to the judicial lock up.
7. After completion of investigation, complete challan was submitted for trial of the accused.
8. Learned trial court after compliance of legal formalities, framed the charge, to which the accused did not plead guilty and claimed trial.
9. Statements of ten P.Ws. Were recorded by the trial court and the statement of accused under' section 342, Cr.P.C. Was also recorded. Accused pleaded his innocence, however, did not produce defence evidence nor appeared as his own witness under section 340(2), Cr.P.C. Learned trial Court, after hearing the arguments of the parties, convicted and sentenced the accused as stated earlier.
10. Learned counsel for the appellant argued that the accused was falsely charged and the confession was obtained through third degree methods and the same was neither voluntary nor true and was retracted. He further contended that the recoveries were planted against the accused by the police in connivance of the complainant. He contended that retracted confession cannot be made basis of conviction. Placed reliance on 2009 SCM R 4, 2010 SCM R 1039, 2011 PCr.LJ 48 and 2011 M LD 45.
11. Learned AAG for the State and learned counsel for the complainant argued that there was no malice on the part of complainant for false implication of the accused. Had it been so he should have charged him in the F.I.R. They submitted that delay, if any, in recording confession is of no consequence and a retracted confession can be made basis for conviction, if the same is found voluntary and true. Reliance was placed on 2001 SCM R 988, 2002 SCMR 7493(sic.), PLD 2006 SC 219 and 2007 SCM R 782.
12. Arguments heard, record perused.
13. Admittedly, Akhiar Ali complainant, P.W.1 and Mst. Khurshida P.W.2 are not the eye-witnesses of the occurrence, nor anyone is charged in the F.I.R. Prosecution case is based on the confessional statement of the accused, medical evidence, recoveries and positive report of the Serologist.
14. Confession of the accused was recorded by Tariq Abbas, Judicial Magistrate, P .W.10, on 21-6- 2007. Learned Judicial Magistrate stated before the trial Court that after removing the handcuffs, the court staff, police officials and Naib Court were sent out of the court. He disclosed his identity and informed the accused that he was not bound to make confession and if he makes a confession, it will be used against him as evidence. According. To certificate Exh.P.W.10/3, accused was given two hours to think over the matter. Questions mentioned in Exh.P.W.10/1 were put to the accused by the Judicial Magistrate which were replied by the accused and thereafter when he was satisfied that the accused wants to record his confession voluntarily without any duress or coercion then he recorded ,the confessional statement Exh.P.W.10/2 and then read over and explained the same in Pashto language to the accused, who after admitting the same as correct, signed the confessional statement. Nothing favourable to accused was brought in cross-examination. Moreover, not a single suggestion was put to the Investigating Officer regarding torture or duress or coercion of the accused for extorting confession. For the first time, plea of duress and torture was taken by the accused after about two and half years of his arrest and retracted the confession in his statement, recorded under section 342, Cr.P.C. On 16-11-2009. Such plea, taken at a belated stage, is of no avail to the accused.
15. Court in order to judge the evidentiary value of a retracted confession, is to see as to whether the same appears to be voluntary, without any inducement, promise, duress or coercion and whether the same appears to be true and if it appears to be voluntary and true, then it is supposed to be the best evidence against the maker, even the same is retracted, can be made sole basis of conviction, without looking for corroboration. Confession statement has to he judged by looking into the facts and circumstances of the case. Reliance can be placed on 1989 SCM R 446, 1992 SCM R 754, 1992 SCM R 1983, PLD 2005 SC 168 and 2010 SCM R 457.
16. Confessional statement of the accused is corroborated by the medical evidence, the recovery of blood stained articles and positive report of Serologist.
17. Confession of the accused is further corroborated by the discovery/recovery of golden locket and ring, which is admissible as evidence under Article 40 of the Qanun-e-Shahadat Order, 1984 because the place, where he concealed the same, was in his exclusive knowledge.
18. Qaiser Ali accused was not charged in the F.I.R., but later by Akhter Ali P.W.1 and Mst. Khurshida P.W.2, who are the real paternal uncle and aunt of the accused, because deceased was the real grandmother of the appellant. No ill-well or motive for false implication was suggested to them.
' As discussed above, we are of the firm view that the prosecution proved its case against the appellant without any shadow of doubt and he made true and voluntary confession giving all the details of the occurrence and recoveries. Judgment dated 26-11-2009 passed by learned Additional Sessions- Judge/Izafi Zila Qazi-I, Swat is based on correct appraisal of the evidence on record, as such, needs no interference. Appeal filed by Qaiser Ali being bereft of any merit, is dismissed. Death sentence awarded to him is confirmed. Murder reference is answered in affirmative.