SH. NAJAM UL HASAN, J.---Through this judgment we are deciding Cr. Appeal No.21-Q/2012 filed by appellant Aminullah and Criminal Revision No. 1-Q/2012 filed by the complainant Atta Ullah for enhancement of sentence of Aminullah from life to death. Appellant Aminullah was convicted undersection 302-B, P.P.C. Read with section 308, P.P.C. And section 379, P.P.C. He was sentenced to life imprisonment under section 302(b) and also to pay Diyat amount as prescribed by the Government for the year, 2011-12 to the legal heirs of the deceased Zafarullah as provided under section 308, P.P.C. He was also sentenced to three years R.I under section 379, P.P.C. And was to pay a fine of Rs.10,000/- or in default thereof to further undergo S.I for six months. Benefit of section 382- B Cr.P.C. Was also extended to him. While co-accused Bismillah was acquitted by learned Additional Sessions Judge Killa Saifullah vide judgment dated 16.5.2012 in case FIR No.05/2011, dated 16.1.2011 under section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Muslim Bagh District Killa Saifullah.
2. It is the prosecution case that on 16.1.2011 the complainant Atta Ullah got registered FIR No. 05/2011 of this case. It was stated that his brother Zafarullah was working in Public Health Department and he also used to drive Town Ace wagon on hire. He left for his house along with the wagon on 13.1.2011 and thereafter his mobile phone was found switched off. On 16.1.2011 dead body of his brother was found lying under the bridge and he was strangulated to death. The dead body was recovered on 15.1.2011 so proceedings under section 174, Cr.P.C. Were initiated in consequence thereof. On the written application of the complainant post mortem examination of the deceased was not conducted and only medico-legal examination of the deceased was conducted by the doctor P.W.
10 who opined that the deceased died because of strangulation two three days ago. The dead body was handed over to the complainant and his relative. During investigation, on secret information the Town Ace wagon was recovered from a Star Show Room of Abdul Hakeem alias Gul Agha, P.W.2. The appellant was arrested on 28.1.2012 and during investigation got recovered the cash of sale price which he received after selling the wagon of deceased to Aminullah son of Abdul Salam, P.W.3. On 29.1.2011 the appellant was identified by Abdul Hakeem alias Gul Agha, P.W.2, the owner of the car show room and Aminullah son of Abdul Salam purchaser of the wagon P.W.3. In the identification parade got conducted by DSP the appellant made confessional statement before the Judicial Magistrate on 7.2.2011 in which he also implicated his brother Bismillah as his co- accused. Bismillah was arrested on 28.2.2011 and he also faced the trial along with Aminullah.
Challan was submitted in the court. Charge was framed against both the accused who pleaded not guilty.
3. The prosecution produced 12 witnesses to prove its case. Thereafter the appellant and his co- accused made - statement under section 342, Cr.P.C. The appellant appeared as his own witness under section 340(2), Cr.P.C. And also produced two witnesses Sawab Khan and Ahmedullah as D.W.1 and D.W.2 to prove his version. That he was working in the show room of P.W.2 and there was dispute over payment of salary to appellant with P.W.2.
4. The learned trial court after concluding the trial, vide order/judgment dated 16.5.2012 convicted the appellant Aminullah under section 302-B, P.P.C. Read with section 308, P.P.C. And under section 379, P.P.C. And sentenced him as mentioned above. The co-accused Bismillah brother of the appellant Aminullah was acquitted. No appeal against acquittal of Bismillah is before us.
5. The learned counsel for the appellant inter-alia contends that the FIR was lodged after un- explained delay of three days. That there is no eye-witness of the occurrence in which the deceased lost his life. The stolen Wagon of the deceased was recovered from P.W.2 and P.W.3 Abdul Hakeem and Aminullah son of Abdul Salam and not from the appellant, that the recovery of Rs.103000/- statedly the amount which the appellant took after selling the wagon does not tally with the sale receipt or the statements of P.W.2 and P.W.3, that the vehicle was purchased by them for Rs.130,000/-. It is stated that picture of the appellant with the purchaser later-on found in the mobile of Najeebullah,P.W.4 does not connect the appellant with the commission of this offence.
The appellant has taken a specific stance that such photographs in the mobile phone of Najeeb Ullah P.W.4 was taken when appellant was working with P.W.2 Abdul Hakeem in his car show room.
The pointation of the place of murder by the accused is not admissible under Article 40 of the Qanun-e-Shahadat Order, 1984. It is argued that some important witnesses such as the person in whose mine the appellant was statedly working. Qaisar Khan Tareen who statedly called P.W.2, the very nextday and informed that a wagon was snatched and driver was missing. Even Mullah Waheed who was statedly relative of the deceased and who came to the car show room of P.W.2 along with the complainant and identified the wagon of deceased were not produced. The learned counsel strongly criticized the identification proceedings of appellant by the DSP and confessional statement of the appellant by the Magistrate, P.W.9. It is stated that the appellant was in police custody, so such identification of the appellant has no value. The confessional statement was made after 12 days of his arrest as he was tortured by the police. Lastly it is stated that in absence of any direct evidence the appellant was not entitled to conviction solely on his retracted judicial confessional statement which he made after considerable delay. The appellant was handed over to the same police after confessional statement was recorded in violation of rules, that the co- accused with the same role has been acquitted, so the appellant deserves the same relief.
6. On the other hand, learned counsel for the complainant has defended the prosecution case by submitting that the witnesses produced by the prosecution had no enmity to falsely implicate the appellant, that the chain of the circumstance is so linked with each other that it only leads to clear involvement of the appellant in the murder of the deceased. The appellant was duly identified by the independent witnesses as a person who sold the stolen vehicle of the deceased on the very next day, when the deceased was found missing with his wagon. The appellant impersonated himself and showed himself to be the brother of the deceased Zafarullah and produced identity card of deceased and the identity card of his mother and father and while showing himself to be brother of Zafarullah deceased sold the wagon of deceased to P.W.2 and P.W.3. The picture of the appellant was found available in the mobile phone of Najeebullah who appeared as P.W.4. He took the pictures of appellant secretly when he came to sell the stolen wagon of deceased. He identified the appellant as the same person who sold the vehicle of deceased to P.W.2 and P.W.3. The judicial confession of the appellant speaks lauds of truth as for the first time the appellant introduced his brother Bismillah as his accomplice. The confessional statement gets corroboration from the recovery of the sale amount of stolen wagon of deceased at the pointation of the appellant from a box in his house. In the medical evidence, presence of injuries on hand of deceased corroborates his confessional statement wherein he stated that firstly the hands of the deceased were tight and later-on he was murdered while strangulating him with cloth. The recovery of the wagon and the presence of the pictures of the appellant in the mobile phone of Zafarullah before the registration of case are the circumstances which clearly connect the appellant with the commission of the crime. The learned counsel states that the prosecution has proved its case beyond any reasonable shadow of doubt.
7. The learned Additional Prosecutor General Baluchistan has adopted the arguments of learned counsel for the complainant while defending the prosecution case. He added that the appellant was not entitled to any concession or leniency. He should have been sentenced to death. He has killed an innocent man. It was a cold blooded murder so his sentence of life imprisonment be converted to death.
8. We have heard learned counsel forthe parties and have also gone through the record and evidence recorded by the learned trial court.
9. The deceased Zafarullah was found missing along with the Town Ace wagon on 13.1.2011. On 14.1.2011 the appellant came to the car show room of Abdul Hakeem alias Gul Agha P.W.2 to sell the vehicle. He showed himself to be brother of Zafarullah deceased and to prove it, he produced the identity card of Zafarullah, his mother Mst.Taj Bibi and his father Gul Khan further stated that he wanted to sell wagon in emergency as their close relative is in hospital. The wagon was purchased by Aminullah son of Abdul Salam, P.W.3 and he statedly paid Rs.130,000/- to the appellant and the transaction regarding the sale was duly written on the pad of the Show room signed by the parties.
The van was kept in the show room when on the next day P.W.2 Abdul Hakeem of the show room received a phone call from one Qaisar Khan Tareen of Daki. He informed that a wagon Town Ace was snatched and its driver was missing. He was informed by P.W.2 Abdul Hakeem that a wagon has been sold through him to Aminullah P.W.3 and that the wagon is still lying in the show room.
Later on one Mullah Waheed statedly relative of the deceased came to the show room along with the complainant Atta Ullah and they identified the wagon to be the same which Zafarullah deceased was driving. The complainant was shown the pictures of the appellant snapped by Najeebullah P.W.4 on his mobile phone the complainant identified the appellant as a worker of mine. The photo copy of identity card of Zafar Ullah the deceased and that of his mother and father were also identified by the complainant to be that of his deceased brother, mother and father. On 15.1.2011 the dead body of the deceased was found and was identified through the copy of the identity card found in his pocket. He was found strangulated to death. There was a piece of cloth and string around his neck. His body was medically examined and he was found dead 2/3 days prior to the recovery. Later on the body was identified by the complainant on the next day to be that of his brother Zafarullah, and FIR was registered. During investigation the stolen vehicle was recovered from the show room of P.W.2 and was taken into possession by the police along with mobile phone having the photographs of the appellant and the identity card of the deceased, his mother and his father and his service card. The appellant was arrested on 28.1.2011. He was identified by both the witnesses Abdul Hakeem and Aminullah P.W.2 and P.W.3 the persons to whom the appellant sold wagon of the deceased on the next day when he was found missing, the mobile phone of Najeeb Ullah P.W.4 was also taken into possession which was having photograph of the appellant statedly snapped at the time when he was selling the vehicle to P.W.2 and P.W.3 as he was not having his identity card. During investigation the appellant got recovered an amount of Rs.103000/- from a box in his house statedly the amount which he received by selling the stolen wagon of the deceased. The investigation was in process when on 7.2.2011 the appellant made a request for making judicial confession. He was produced before the Magistrate who after fulfilling all the procedure and informing the appellant of the consequences of making such confessional statement and after informing that he would not be sent the police after making such statement and after being satisfied that the appellant was making statement voluntarily and without any fear and after providing appellant time to think the statement was recorded. The appellant in his judicial confessional statement before Magistrate 1st Class admitted his guilt and narrated each part of the story. He admitted of hiring the wagon of the deceased. Later-on he along with his brother tied the hands of the deceased with the rope, as they were identified by the deceased so they strangulated him with the cloth which was available in the wagon and threw him under the bridge and took away the wagon to the show-room and sold the same to P.W.2 and P.W.3. In his statement under section 340(2), Cr.P.C. The appellant retracted his confession but admitted his picture available in the mobile phone of Najeeb Ullah by saying that the same was snapped when he was working in the showroom of Abdul Hakeem, P.W.2. He admitted of making the confessional statement before a Magistrate but stated that the same was made as he was earlier tortured by the police. No sign of torture was observed by the Magistrate who recorded the confessional statement of appellant. Even the appellant was asked by the Magistrate 1st Class if he was tortured by the police to which he answered in negative. This is a case which is based on circumstantial evidence coupled with the retracted judicial confessional statement of the appellant, and the recovery of sale amount received by the appellant after selling the wagon of the deceased to P.W.2 and P.W.3, the medical evidence is relevant as statedly the deceased died 2/3 days prior to the recovery of the dead body so the medical evidence fully corroborate the time of occurrence. The wagon was sold on the very next day through fake identity of the appellant. The presentation of identity card and service card of the deceased, the copy of identity card of the mother and father of the deceased to P.W.2 and P.W.3 on the very next day when the deceased was found missing even before registration of the case at the time of selling of the stolen vehicle of deceased indicates his clear involvement in this murder. Availability of such identity cards with him fully supports the prosecution case. The circumstance and the medical evidence indicate that the appellant was killed on the very same day when the van was hired. After murder of the deceased the wagon was sold on the next day by the appellant while impersonating himself as brother of deceased Zafarullah. The sale amount was received by him and was kept in a box in his room by him which was later-on recovered on his pointation, is a circumstance which supports and corroborates the judicial confession of the appellant. The presence of photo of the appellant in the mobile phone of Najeeb Ullah P.W.4 an independent witness, which he snapped at the time when appellant came to sell the stolen vehicle of the deceased is a very strong evidence which connects the appellant with this crime.
10. While appearing as his own witness and by producing his brother and another witness in his defence the appellant has tried to make the case of his false involvement due to enmity with P.W.2 Abdul Hakeem as he was working in his show-room and he was not paid his salary. The appellant did not take this stance in his statement before Magistrate or thereafter when he was produced before Magistrate on different dates for remand or even before the trial court when he was produced on different dates. It was only after the trial was concluded and while making statement under section 342, Cr.P.C. That he has been involved because of enmity. In this case the complainant remained associated with the investigation and accepted the appellant tobe the main culprit. He has filed revision petition for enhancement of appellant's sentence bearing Cr.Rev.No.1-Q-2012 he ispursing the case till date against the appellant. No reason for him to leave real culprit who killed his brother and involved the appellant who has no enmity with himhas been brought on record. The appellant made a confessional statement on 7.2.2011 at the time of making such statement a specific question was asked by the Magistrate, in respect of any torture or threat by the police the appellant answered in negative. Even the Magistrate himself did not observe any sign or symptom of torture, he after satisfying himself and after giving reasonable time and warning to the appellant regarding consequence of recording the confessional statement recorded his confessional statement when appellant was alone in the court in accordance with law after fulfilling all legal requirements. There is another aspect that in the confessional statement and after informing him that he will be sent to jail after his statement. The appellant has associated his brother Bismillah for the first time in this crime. There was no reason for him to have involved his brother in this matter at that stage. The doctor observed marks of ropes on the neck and hands of C the deceased which corroborate the confessional statement made by the appellant during his statement he stated that before strangulating deceased his both hands were tied with the rope. Presence of marks on both the wrists of deceased corroborate this part of confessional statement.
11. Recovery of such an huge amount from the house of appellant on his pointation without any plausible explanations another circumstance which corroborates the confessional statement. The difference of amount mentioned in the statement of P.W.2 and P.W.3 and writing of pad of car show-room does not affect the prosecution case keeping in view huge amount. The amount of commission may have be deducted.
12. The accumulative effect of all the circumstances leads to only one conclusion that appellant made true judicial confession voluntarily and without any pressure and he is fully involved in this matter. It is now well settled that retracted judicial confession voluntarily made which gets some kind of corroboration from other circumstance is itself sufficient for the conviction of the appellant.
The explanation of the appellant that he was tortured and as such he made a confessional statement, in absence of any material does not appeal to mind. Specially when he was given ample time and chance by the Magistrate before making confessional statement. He made statement when he was alone with the Magistrate in court after the statement he was sent to judicial remand and challan was immediately submitted in court. After recording his confessional statement the appellant had ample opportunity to retract from his confession but he remained mum till the conclusion of the trial. The chain of circumstance brought on record by the prosecution fully corroborate the confessional statement of the appellant, the appellant remained unable to give plausible explanation for his false involvement by the complainant and the witnesses. The Hon'ble Supreme Court of Pakistan has observed in the case reported as 2015 SCM R 856 (Dadullah and another v. The State) as follows:-- S.164----Confession of guilt before the Judicial Magistrate---Conviction----Scope---- Conviction could not of recorded on the sole basis of confessional statement and the prosecution had to prove its case beyond any shadow ofdoubt.---Notwithstanding the procedural defect in the confessional statement, if any, a judicial confession if it was found true, voluntary and confidence inspiring could safely be made basis for conviction----When the confessional statement of the accused was not the result of maltreatment and coercive measures, and the Judicial Magistrate had provided the accused with relaxation of time and informed him that he was not bound to record his statement, then such confession could be made basis for conviction.
Similarly in the case of Wazir Khan v. The State, 1989 SCM R 446, the Hon'ble Supreme Court of Pakistan upheld the conviction made on the sole basis of retracted judicial confession. It was observed:-- ----S.302----Case of no evidence-Retracted confession, whether sufficient in law to maintain conviction---Appeal against conviction---No eye-witness of occurrence---Prosecution based on retracted confession of accused---Plea that retracted confession was not sufficient in law to maintain conviction, not entertained---No legal bar exists for recording a conviction on a confession which is subsequently retracted if it is voluntary and true---No infirmity having been found in confessional statement of accused to render it unacceptable and accused having told truth, he was rightly found guilty.
' In the case of Muhammad Amin v. The State reported as PLD 2006 SC 219 wherein it was held that:-- ---S.164---Qanun-e-Shahadat (10 of 1984), Art.39---Confessional statement, when to form sole basis for conviction---Confession, judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of conviction of its maker, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture, coercion or inducement."
' Even in the case of Ahmad Hassan and another v. The State reported as 2001 SCM R 505 it was observed by the Hon'ble Supreme Court of Pakistan that:-- Confessional statements were not shown to have been recorded under any inducement, threat or promise and, thus, they were admissible in evidence in view of Art.37 of Qanun-e-Shahadat, 1984".
13. The delay in recording of retracted judicial confessional statement does not reduce its value It has been observed by the Hon'ble Supreme Court of Pakistan in the case of Ahmed Hassan and another v. The State reported as 2001 SCM R 505 that "Delay in recording of confession by it self cannot render confession nugatory if otherwise it is proved on record to have been made voluntarily--It was further observed by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ismail and another v. The State reported as 1995 SCM R 1615 that:-- "Delay in recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances to have been obtained by coercion, threat, pressure etc.---
14. While taking guidance from the above mentioned cases it is clear that conviction can be based on retracted confessional statement of an accused if it is proved that such statement was made without any inducement, threat or promise. It is based on true, natural, plausible and logical version of accused that before recording such statement the accused was informed of consequence of such confession and he was informed that he will not be handed over to the same police i.e. I.O.
Even if he does not make confessional statement, he is provided time to think before making such confessional statement, his statement is not recorded in presence of the police. After his statement he is not handed over to the same police i.e. 1.0. Rather sent to judicial lock up. As at that time, he is still accused of heinous offence so the court may use the services of police official to send him to jail, but he should not be handed over to the same I.O.
15. The net result is that in this case the prosecution has proved the case against the appellant beyond any reasonable doubt so the conviction and sentence of the appellant under sections 302-B and 379, P.P.C. Is upheld. His appeal to this extent is dismissed.
16. The case of appellant does not fall under any provisions of section 306 or 307, P.P.C. And as such, he cannot be convicted under section 308, P.P.C. His conviction and sentence under section 308, P.P.C. For payment of `diyat' to the legal heirs of the deceased is not maintainable and as such, is set aside.
17. While considering the revision filed by the complainant for enhancement of sentence of appellant from life imprisonment to death, we have observed that in this case there is no eye- witness. The co-accused of the appellant whose name was introduced in the judicial confession of the appellant has been acquitted by the learned trial court while extending him benefit of doubt.
There is no appeal against his acquittal. There are two sentences provided under section 302-B, P.P.C. So in the circumstances we think that sentence of imprisonment for life to the appellant will meet the ends of justice. The revision petition is accordingly dismissed. The sentence of the appellant shall run concurrently and he shall also be given the benefit of section 382-B, Cr.P.C. Both the matters are accordingly disposed of.