' FAZAL-I-HAQ ABBASI, J.---We intend to dispose of Jail Criminal Appeal No, 335 of 2010, filed by Usman Ali and Murder Reference No, 11 of 2010, sent by the trial court, through this judgment.
2. On 30-8-2010 at 1350 hours, the complainant Khaista Muhammad lodged a report alleging therein that on the said date at 10-00 a.m, he along with Muhammad Nazir, his brother, and Said Muhammad, his cousin, were busy in repairing the cattle shed, heard the report of fire shot and cry, attracted to the crime spot and saw Maryum wife of Usman, lying murdered in a pool of blood, while Usman son of Fazal Muhammad, his nephew, armed with single barrel shotgun was present, who was apprehended. Motive for the occurrence was strained relation between the spouses.
Occurrence was stated to be witnessed by Muhammad Nazir, Said Muhammad besides him.
Report was recorded by Mazaker Shah ASHO, P.W.6, in shape of Murasilla, Exh.PA, which was thumb- impressed by the complainant in token of correctness. P.W.6 then prepared the injury sheet Exh.P.W.6/1 and inquest Exh.P.W.6/2 of the deceased. Sent the Murasilla to the Police Station through Nazir Constable No,1197 for registration of the case and dead body for postmortem examination.
Case was registered vide F.I.R. No,493 dated 3-8-2007 under section 302, P.P.C. At Police Station, Khawaza Khela, District Swat.
3. Said Rehman SI, P.W.7, who was accompanying P.W.6, who was entrusted the investigation, prepared site plan Exh.PB at the pointation of complainant and witnesses, during spot inspection, took into possession blood-stained earth and grass, Exh.P1, through memo Exh.P.W.7/1 and sealed the same into a. Parcel in presence of the witnesses. He also took into possession Shotgun No,10487, Exh.P-2, extracted empty shell, Exh.P-3, from is chamber and sealed the same in separate parcels, though memo Exh.P.W.7/2, in presence of the witnesses, arrested Usman Ali accused, produced by Khaista Muhammad etc, his uncles, and issued card of arrest Exh.P.W.7/4. He also took into possession shirt, Exh.P-4, of the deceased, produced by Fazal Muhammad and sealed the same into a parcel through memo Exh.P.W.7/3 and recorded the statements of the witnesses under section 161, Cr.P.C. As the recovered shotgun was without licence, issued letter Exh.P.W.7/6 and added section 13 of Arms Ordinance in the charge. He produced the accused on 31-8-2007 before the court of Illaqa Qazi, vide application Exh.P.W.7/7, for recording his confessional statement, which was recorded and the accused was sent to judicial lock up. Through applications Exh.P.W.7/8 and Exh.P.W.7/9, case property was sent to the laboratories, report of Fire Arm Expert is Exh.P.W.7/10 and opinion of Serologist is Exh.P.W.7/11. The Investigating Officer applied for recording the statements of P.Ws., namely Muhammad Nazir, Said Muhammad and Said Ali Shah under section 164, Cr.P.C.
Through applications Exh.P.W.7/12 and Exh.P.W.7/13, which were recorded by the court and placed by him on the case file. He verified the signatures of Umar Farooq SHO, (murdered during the violence) on F.I.R., Exh.PA/1 and complete challan, Exh.P.W.7/14.
4. After submission of the complete challan learned trial Court complied with provision of section 265-C, Cr.P.C, framed the charge to which the accused did not plead guilty and claimed trial.
Prosecution examined eight witnesses to prove its case, whereafter, statement of accused was recorded under section 342, Cr.P.C. By the trial Court. Accused claimed innocence and denied the allegations; however, he did not produce any defence evidence nor offered statement under section 340(2), Cr.P.C.
5. Learned trial Court, after conclusion of the trial, held the accused guilty, through judgment dated 27-3-2010 and convicted and sentenced him under section 302(b), P.P.C., to death as Ta'zir, with a direction to pay Rs, 2,00,000 (Two Lacs) as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default to suffer six months' S.I.
6. Feeling aggrieved, Usman Ali, appellant, has filed Jail Criminal Appeal No, 335 of 2010, while learned Additional Sessions Judge/Izafi Zila Qazi-III, Swat has sent Murder Reference No,11 of 2010, for confirmation of the death sentence awarded to Usman Ali.
7. Learned counsel for the appellant argued that very short time of fifteen (15) minutes was given to the accused for reflection, before A making confessional statement. He further contended that the confession was retracted by.The accused, therefore, the same cannot be relied upon for conviction. He further argued that the complainant and witnesses have not supported the case of prosecution and the motive was also not proved, as such, prosecution failed to prove its case against the appellant, in such a situation, he deserves acquittal. Placed reliance on 1992 SCM R 196, 1993 SCM R 417, 1993 SCM R 1322, PLD 1995 SC 336, PLD 1996 SC 1 and 2010 SCM R 97.
8. Learned A.A.-G. For the State/complainant argued that there was no reason for false implication of the accused by-the complainant and the witnesses, who are his uncles and have no relationship with the deceased party. He contended that obliging concessions made by the complainant and the witnesses are of no help to the appellant because report lodged by the complainant was proved by P.W.6. Khaista Muhammad complainant P.W.3 supported the prosecution case in examination-in-chief, however, made concessions in the cross-examination but when declared hostile and cross-examined by prosecution, supported the prosecution case.
Learned AAG submitted that the accused made a clean-breast confession on the following day of the occurrence, which by itself is sufficient for upholding the conviction.
9. We have heard the arguments of the parties and perused the record.
10. Khaista Muhammad, complainant, P.W.3, in his examination-in-chief, confirmed the version given by him in the report, lodged by him. He made some obliging concessions in the cross- examination but, when B declared hostile, admitted the relationship in between him and the accused, also admitted the presence of the accused near the place of occurrence and his apprehension by them. Muhammad Nazir P.W.4, supported the prosecution version and recovery of blood-stained earth and grass, shotgun having empty shell in its chamber, from the spot. He also admitted the recovery of blood-stained shirt of the deceased in his presence. He also admitted recording of his statement under section 164, Cr.P.C. He only suppressed the presence of the accused at the spot. He was not cross-examined by defence on material points. Said Muhammad, P.W.5, supported the prosecution case and the recoveries, however, stated that Usman Ali accused, after the occurrence, threw the shotgun at the spot and ran away, who was apprehended by the people. He was also not cross-examined by the defence on material points.
11. Dr. Muhammad Amin Khan, P.W.2, conducted autopsy on the dead body of Maryum, aged 19/20 years, and found:-- ' Multiple small pellets entry wounds on whole face. Left maxillary sinus bones broken with overlying avulsed skin.
' On x-ray, multiple pellets were found in the body few of which reaching the brain tissues.
' He was not cross-examined at all despite given opportunity.
12. Confessional statement of the accused was recorded by Haya-udDin, Illaqa Qazi, Khawaza Khella, P.W.1. He was also not cross-examined on material points. Accused for the first time retracted confession, in his statement under section 342, Cr.P.C, recorded on 17-2-2010, i,e,, after about 2-1/2 years. He stated that he was never produced before the court for recording confessional statement. Such plea taken by the accused at such a belated stage is of no avail to him.
13. In the present case confessional statement was made by the accused on the following day of his arrest. No hard and fast rule can be laid down, that how much time for reflection should be given to an accused before recording confessional statement because it depends on the circumstances of the case.
' In case of "Muhammad Yaqub v. The State", reported in 1992 SCM R 1983 it was held:-- In order to judge the evidentiary value of a retracted confession, the court has to advert to the question whether the same appears to have been made voluntarily, without any inducement, duress or coercion, with the object to state the truth. If the court is satisfied on that aspect, the mere fact that there were some irregularities in recording a confession would not warrant disregarding the same."
' In case of "Bakhtawar Khan v. The State" reported in PLD 1995 SC 336 it was held:-- "The Court ought to examine, whether a confession is made voluntarily, free from coercion and torture and also examine the circumstances under which it was made or retracted. However, if the reason given for retracting is palpably false, absurd and incorrect the court can accept such confession without corroboration".
14. Motive is best known to the accused, who commits an offence, it is only a guess on the part of witnesses. Absence or weakness of motive or failure to prove the same cannot be taken as mitigating circumstance.
15. Confession was made by the appellant on the following day of his arrest without any duress, coercion, torture or threat, which is voluntary in nature. Confession of the accused is corroborated by the ocular, medical evidence, recoveries from the spot and the positive reports of the Experts.
In the light of the above discussion, we are of the firm view that the prosecution proved its case against the appellant without any shadow of doubt and the judgment dated 27-3-2010, passed by learned Additional Sessions Judge/Izafi Zila Qazi-III, Swat, is based on proper appraisal of the evidence, therefore, needs no interference. Appeal filed by Usman Ali is devoid of any merit, and, therefore, dismissed. Death sentence awarded to him is confirmed. Murder Reference is answered in positive.