' SHAKEEL AHMED BALOCH, J.---This Criminal Jail appeal is directed against the judgment dated 19- 11-2012, passed by learned Sessions Judge, Turbat, whereby; the appellant was convicted under section 302(b), P.P.C. And sentenced to suffer R.I for life and fine of Rs,5,00,000 as compensation to be paid to the legal heirs of deceased Mohsin Qazi, in default whereof to further suffer S.I for one year, with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that on 9-3-2012, the complainant namely Sabghatullah lodged an F.I.R. No,3 of 2012, under sections 17/3/4, Harraba with Levies Station Buleda, District Kech, alleging therein that on 8-3-2012, he was present at his house, meanwhile his uncle informed him by telephone that his cousin namely Mohsin Qazi, who had left from Alandor to Koshk by Surf Vehicle, and in the way at Alandor Kor (river) Muhammad Hussain made firing at him and threw his dead body in the river and escaped from the spot in he Surf Vehicle of the deceased. On 12-3-2012, the appellant was arrested and after completion of the investigation the challan was submitted before the trial Court under section 302, P.P.C. The charge was framed and read over to the appellant, to which the appellant denied the allegation and claimed trial. The prosecution in support of its case, produced eight witnesses, and also exhibited relevant documents. After close of prosecution side, the appellant was examined under section 342, Cr.P.C., wherein he denied the allegation levelled against him. The appellant did not opt to record his statement under section 340(2), Cr.P.C., nor produced any witness in his defence. On conclusion of the trial, the appellant was convicted and sentenced as mentioned hereinabove, hence this appeal.
3. The learned counsel for the pauper appellant argued that there is no eye-witness of the incident and the case of the prosecution hinges upon the circumstantial evidence. He further argued that the appellant was convicted merely on the basis of confession, which lacks independent corroboration. He contended that the recovery of the empty cartridge cannot be relied upon as corroborative piece of evidence. He further contended that the trial Court has not properly appreciated the evidence and there were numerous contradictions amongst the statements of the witnesses, but the trial Court has failed to dilate upon the same, as such he prayed for setting aside the impugned judgment.
4. On the other hand the learned Deputy Prosecutor-General opposed the contentions put forth by the learned counsel for the appellant and stated that the trial Court after proper appraisal of the evidence and material available on record, has rightly convicted and sentenced the appellant, as such, the impugned judgment is a result of proper appreciation of the evidence and the material available on record, needs no interference.
5. We have heard the learned counsel for the parties and have perused the record. The complainant Sabghatullah, appeared before the trial Court as P.W.1. He exhibited the report as Exh.P/1-A. He reiterated the contents of report. P.W.2 Fazal Karim is circumstantial witness. P.W.3 Zafarullah (recovery witness) appeared before the trial Court and exhibited recovery memo of empty shell of T.T pistol, as Exh.P/1-A and recovery memo of dead body of deceased as Exh.P/3A. He identified sealed parcel No,1 as Article P/1, blood stained earth as Article P/2, sample of seal as Article P/3,. Sealed Parcel No,2 as Article P/4, empty shell as Article P/5 and sample of sea: as Article P/6. P.W.4 Mujeeb-ur-Rehman (recovery witness) appeared before the trial court and exhibited the blood-stained shirt of deceased as Exh.P/4-A and sealed parcel No,3 as Article P/7, blood-stained shirt as Article P/8 and sample of seal as Article P/9. P.W.5 Dr. Altaf Hussain, who examined the dead body of the deceased appeared before the, trial Court and exhibited death certificate as Exh.P/5-A. P.W.6 Muhammad Rahim appeared before the trial Court and exhibited disclosure memo as Exh.P/6-A. P.W.7 Abdul Qadir Baloch, the Judicial Magistrate, who recorded the confessional statement of the accused appeared before the trial Court and exhibited confessional statement of appellant along with pro forma as Exh.P/7-A and Certificate Exh.P/7-B. He identified the envelope as Article P/10. P.W.8 Muhammad Naeem, Naib Resaldar (Investigating Officer) appeared before the trial Court and exhibited site sketch as Exh.P/8-A, F.I.R. As Exh.P/8-B, incomplete challan as Exh.P/8-C, complete/supplementary challan as Exh.P/8-D and inquest report as Exh.P/8-E.
6. The factum of the unnatural death of the deceased was not disputed even stands confirmed by the death certificate issued by the P.W.5 Dr. Altaf Hussain, Medical Officer RHC Buleda, who opined that the cause of the death of the deceased was the result of fire injury. Similarly the P.W.2 Fazal Karim who alleged to have lastly seen the appellant and the deceased, deposed before the trial Court that on the night of the occurrence, the appellant and deceased came to the drawing room (Bethak) of his house. The appellant insisted the deceased to give him a ride to Koshk Buleda but the deceased asked him to leave his pistol with Fazal Karim as there will be checking by the F.C.
During the way from Menaz to Koshk but the appellant did not listen to the deceased and carried his pistol with him. The statement of the P.W.2 supported the confessional statement recorded by the appellant before the P.W.7 (the Judicial Magistrate). The recovery of the empty shell (cartridge) of the pistol used in the commission of the crime further corroborates the above piece of evidence.
The contention of the counsel for the pauper appellant regarding the rejection of the confessional statement of the appellant is out of the context as it was recorded voluntarily without any duress.
There is nothing on record to show that the confession was either due to any threat, coercion or pressure. Similarly we have not come across any flaw in recording the confession, because the Judicial Magistrate complied with all the pre-requisite formalities for recording the confession, which was voluntary and truthful. There is no legal bar for recording conviction on a confession which is subsequently retracted if it is voluntary and true. We have not come across any flaw, infirmity in the confessional statement of the appellant to render it as unacceptable. In this regard we are fortified from the case. Of Joygum Bibi v. The State (PLD 1960 Supreme Court Pak-313), the relevant portion is reproduced (A herein below:-- "We are unable to support the proposition of law laid down by the learned. Judges in this regard.
The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does no adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw' from a self-accusing statement in direct, fact of the consequences of the accusation, is explicable folly by the proximity of those consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions and the answer being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances, to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."
7. As regards the validity of the last seen evidence where the deceased was seen in the company of accused by the P.W.2, reliance is placed in the case of Khuda Bakhsh v. The State (2004 SCM R 331), the relevant portion is reproduced hereinbelow:- ' On last seen evidence the trial Court as well as the Federal Shariat Court found the evidence furnished by P.W.2 Haji Badal Khan. P.W.3 Muhabbat Khan and P.W.4 Ghulam Sarwar as inspiring- confidence, fully corroborated by medical evidence, recoveries and confessional statement of the appellant. For safe administration of justice, it is essential to have a glance over the statements of these -witnesses, P.W.2 Hap Badal Khan and P.W.3 Muhabbat Khan have categorically deposed at trial that on the day of incident, they saw the deceased in the company of appellant Khuda Bakhsh.
As regards P.W. Ghulam Sarwar, he stated that on 9-12-1995 at Mughrib time, he saw appellant filling petrol in the motorcycle of the deceased at the 'shop of one Abdul Khaliq. Thus we do not find any exception/illegality in the conclusion drawn by the two Courts below on the last seen evidence furnished by these witnesses and believed the same to be true."
8.' The statements of the prosecution witnesses reveal that they are consistent and corroborate each other. Their statements further get support from the prompt registration of the F.1.R., the recovery memo and the confessional statement made by the appellant. The witnesses have thoroughly been cross-examined by the counsel of the appellant during the trial, but they remained firm and have not been shaken. The trial Court after proper appraisal of the evidence and the material available on record has come to a just and right conclusion. The learned counsel for the appellant has failed to point out any illegality or irregularity, in the impugned judgment, warranting interference by us.
' Thus, in view of what has been stated and discussed hereinabove, we see no force in the appeal, as such, the same is dismissed.
' These are the reasons of our short order dated 12th December, 2013.