SARDAR MUHAMMAD SARFRAZ DOGAR, J.---Naeem Shahzad, the appellant, was embroiled in case FIR No.1224/2008, dated 09.10.2008, registered with the Police Station FIA, Gujranwala, in respect of the offences under sections 17/22 of Emigration Ordinance, 1979, and was tried by the learned Special Judge, (Central), Lahore. The learned trial Court seized with the matter in terms of order dated 06.1.2009, convicted the appellant under section 22(b) of the Emigration Ordinance, 1979, and sentenced him Rigorous Imprisonment for the period already undergone by him while awarding benefit under section 382-B, Cr.P.C. The appellant was also ordered to pay Rs.10,000/- (rupees ten thousands only) as fine and in default thereof to suffer further Simple Imprisonment for one month. Being aggrieved of impugned convicting order dated 06.1.2009, Naeem Shahzad appellant preferred instant appeal.
2. The prosecution story as alleged in the FIR is that during the inquiry No.577/2008 dated 23.5.2006, it has been found that the appellant has received an amount of Rs.3,00,000/- from the complainant to send his son namely Zaib Hassan to Italy for employment in presence of the witness namely Shabbir Hussain through bank account. Thereafter, the appellant send the complainant's son Malaysia instead of Italy, where, he remained for three months and during interregnum the appellant has received further 2500 Euro. After three months, the complainant's son came back and on his return the complainant has demand his money back from the appellant but he refused. During the inquiry, the appellant has been found guilty for the offences under sections 17/22 of Emigration Ordinance, 1979.
3. During the investigation, the appellant was found guilty, resultantly, he was challaned. On 06.1.2009, the appellant appeared before the learned trial Court and got recorded his confessional statement, on the basis whereof, the learned trial Court convicted and sentenced the appellant in the above stated terms.
4. Learned counsel for the appellant, while opening her arguments, contended that the learned trial Court has erred in law while awarding conviction and sentence to the appellant because the appellant has patched up the matter with the complainant and the complainant has no objection if the appellant be acquitted. Further added that the confessional statement has not been recorded in accordance with the law; that no conviction can be recorded on the basis of said confessional statement, which is in violation of settled principles of law; that the conviction and sentence awarded to the appellant by the learned trial Court is not in accordance with the law and thus the same is liable to be set aside.
5. In opposition, learned DPG, appearing on behalf of the State, while opposing the contentions of learned counsel for the appellant has argued that the appellant is not entitled for any sympathy from this Court as the learned trial Court has already taken a lenient view while awarding the conviction and sentence to him despite the fact that he recorded his confessional statement before the learned trial Court and the offences have been proved against him.
6.Heard. Record perused.
7. The appellant has been saddled with the allegation of receiving an amount from the complainant to send his son namely Zaib Hassan to Italy for employment but later on send him to Malaysia and on his return A when the complainant demanded his amount, the appellant refused to do so. During the trial, on 06.1.2009, the appellant appeared before the learned trial Court with a request for recording his confessional statement in the following manner:- "I pleaded guilty in this case. I have made entire disputed amount of Rs.5,00,000/- to the aggrieved person today who has made statement before this Court in my bail application and submitted affidavit in this case for my acquittal however I am repentant upon my folly and I assure the Court not to repeat the offence if lenient view is taken against me."
On the basis of above confessional statement, the learned trial Court has passed the impugned convicting order dated 06.1.2009 in the following manners:- "3. Keeping in view the voluntary confessional statement of the accused he is issued show cause notice as to why he should not be convicted as per his confessional statement. He still owns his confessional statement. Since the aggrieved has made statement in hail application of the petitioner that he has received Rs.5,00,000/- in cash today from the accused and has patched up the matter with the accused and he has no objection for his acquittal or release from the jail, therefore, by taking lenient view, he is convicted and sentenced under section 22(b) of the Emigration Ordinance, 1979 for R.I. for the period already undergone by extending benefit of section 382-B, Cr.P.C. He will also pay fine of Rs.10,000/- and in case of default of payment of fine, he will undergo further simple imprisonment for one month. Accused has paid the amount of fine.
He is in police custody. He be sent to the jail to serve out the aforementioned sentence. The file be consigned to the Record Room after its due completion."
The term 'Confession' has not been defined either in the Qanune-Shahadat Order, 1984, or in the Code of Criminal Procedure, 1898. According to its dictionary meaning and juristic interpretation, confession means 'a statement made by an accused which must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence'. The appellant in his statement before the learned trial Court has admitted not only payment of Rs.5.00,000 - to the complainant but also pleaded guilty, therefore, his statement is termed as confession.
8.The learned trial Court has convicted the appellant mainly because of his confession of commission of offence. Now the question is that whether the 'confession of appellant was volunteer or not? It is noticed that the appellant at his own got recorded his above quoted statement before the learned trial Court and despite issuing of a show cause notice by the learned trial Court, he owned the same. Meaning thereby, the confessional statement of the appellant was volunteer. ##TE# (underline is mine for emphasis).
9.It is well settled by the Hon'blc Supreme Court of Pakistan in the case of Joygun Bibi v. The State (PLD 1960 Supreme Court (Pak) 313) wherein it has been held that the retraction of the confession is wholly immaterial once it is found that it was voluntary as well us true. D In the head-note of said judgment, it has further held as under:- "The Traction of a confession is a circumstance which has no bearing whatsoever upon the questions 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 not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntarily, and if so, whether it was true, for the withdraw from, a self-accusing statement in direct face of the consequence of the accusation; is explicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated."
In the attending circumstances, the learned trial Court has rightly convicted the appellant on the basis of his volunteer confession. In this respect, the wisdom is drawn from Manjeet Singh v. The State (PLD 2006 Supreme Court 30) wherein the guidelines have been provided that 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 reasons before making use of the confession for conviction. In the said judgment it has further been held that: "Retracted confession either judicial or extra judicial, if found truthful and confidence inspiring and also qualified the test of voluntariness, can be used for conviction without looking for any other sort of corroboration."
Once confessional statement was found true and volunteer, the conviction can be recorded on the basis thereof. Wisdom is drawn from Muhammad Amin v. The State (PLD 2006 Supreme Court 219).
In the head-note of said judgment, it has been held that: "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."
In view of above discussion, this Court does not feel to discuss the merits of the case and finds that in view of volunteer confessional statement of the appellant, the prosecution has proved its case beyond any reasonable doubt. Therefore, I am persuaded to hold that the appellant was rightly convicted by the learned trial Court keeping in view his confessional statement. There is no legal infirmity in the impugned convicting order and as such, this Court finds no ground or justification to warrant interference in the same.
10.As regards quantum of sentence awarded to the appellant by the learned trial Court is concerned, perusal of the record reveals that the appellant has made his confessional statement and has saved the precious time of learned trial Court. Moreover, he is first offender as no report/record has been produced to show that he was previously convicted or involved in the cases of like nature. In this type of the situation it would be appropriate and in the interest of justice that by taking a lenient view, the appellant is to be awarded already undergone sentence.
11.For what has been discussed above, the learned trial Court has rightly convicted and sentenced the appellant through impugned order. Learned counsel for the appellant has failed to point out any legal infirmity in the impugned order, which called for any interference by this Court. Therefore, this appeal having no merits is dismissed.