ABDULLAH BALOCH, J.---This Judgment disposes of Criminal (ATA) Appeal No,153 of 2015 filed by the appellant Shadi Khan son of Sahib Khan, against the Judgment dated 8th May 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Special Judge Anti- Terrorism Cuurt-1, Quetta (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 302(b), P,P.C. RAV section 07 of ATA 1997 and sentenced to suffer life imprisonment, with the benefit section 382(b), Cr.P.C.
2. Facts of the case are that on 24th December 2012 the complainant Tota Khan, S.I. lodged FIR No,12/2012 at Police Station Kaichi Baig Quetta under section 302, P.P.C., with the averments that on the night of occurrence he along with other police officials were on patrolling duty when at about 02.00 a.m. reached at Killi Baro and on hearing noises entered into the house of one Shadi Khan, where in the courtyard of the house found the dead bodies of a man and woman lying in a pool of blood and besides the dead bodies found a person duly armed with a pistol, who disclosed his name as Shadi Khan and stated that he found his sister Yasmin with his paramour Abdul Ghani Marri in suspicious condition and by making firing killed them. The complainant further averred that he found a T.T. pistol .30 bore containing four rounds in the left hand of deceased Abdul Ghani.
3. In pursuance of above FIR, investigation was entrusted to PW-6 Zafar Iqbal, S.I., who during investigation visited the place of occurrence and prepared site plan; took into possession the crime weapon i,e, T.T. pistol; prepared inquest report under section 174, Cr.P.C.; took into possession the blood stained clothes of deceased and blood stained earth; obtained MLC of deceased; recorded the statements of witnesses under section 161, Cr.P.C.; produced the appellant by Judicial Magistrate for recording his confessional statement under section 164, Cr.P.C.; on completion of investigation, challan was prepared and submitted in the trial Court; sent the blood stained clothes of deceased as well as the recovered pistol to FSL for expert opinion and on receipt of reports, submitted the same through supplementary challan.
4. At the trial, the prosecution produced six witnesses. The appellant was examined under section 342, Cr.P.C. However, neither he recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and hearing the arguments, the trial Court awarded conviction to the appellant as mentioned above, whereafter the instant appeal has been filed.
5. Learned Counsel for appellant contended that the impugned judgment suffers from mis-reading and mis-appreciation of material available on record; all the prosecution witnesses have contradicted each other on material counts; that the prosecution has failed to produce any direct or concrete circumstantial evidence against the appellant connecting him with the commission of crime; that the retracted confessional statement of appellant recorded under section 164, Cr.P.C. is not helpful to the case of prosecution being recorded in contravention to the relevant provision of law and after delay of 12-days; that no one has witnessed the crime being committed by the appellant and his involvement is based on surmises and conjectures; that the case of prosecution is lacking independent corroboration as despite availability no eyewitness was associated in the investigation and only the evidence of police official was produced.
6. Learned Additional Prosecutor General assisted by the learned counsel for complainant side while supporting the impugned judgment have contended that the prosecution through consistent and concrete ocular medical and circumstantial evidence has succeeded in proving the charge against the appellant, who was caught red-handed from the spot along with crime weapon; that the prosecution evidence cannot be disbelieved solely for the reasons that the PWs are police officials; that the appellant during investigation confessed his guilt by voluntarily recording his confessional statement under section 164, Cr.P.C. and the concerned Judicial Magistrate while recording his confessional statement has observed all the legal formalities; that the appellant has failed to place on record any material suggesting his false implication by the police; that the appellant has failed to take any specific plea with regard to his false implication.
7. Heard the learned counsel and perused the available record with their able assistance. Perusal of record reveals that the unnatural death of deceased Abdul Ghani son of Gul Din and Yasmeen wife of Wali Muhammad is not disputed. The defence admitted the unnatural death of deceased, but pleaded false implication. PW-4 Dr. Ali Mardan, Medical Legal Officer Civil Hospital Quetta, examined both the deceased and confirmed that both they received multiple injuries on their person. The nature of injuries were fresh caused by fire arm and according to the opinion of Medical officer the probable cause of death of deceased were damage to vital organs of chest and neck and severe bleeding by firearm and homicidal. PW-4 issued death certificates Ex.P/4-A and Ex.P/4-B, which establishes the unnatural death of deceased.
8. Now diverting to the prosecution evidence, the complainant of the case appeared as PW-1, who reiterated the contents of his fard-e-bayan Ex.P/1-A. The statement of PW-1 confirms the arrival of police party at the place of occurrence and presence of appellant nearby the dead bodies of deceased in armed condition and its recovery by the police. The statement of PW-2 is in line with the statement of PW-1, who along with PW-1 was patrolling the area and confirmed that soon after receipt of information, they reached at the place of occurrence and found the appellant nearby the dead bodies having pistol in his hand and disclosure of the appellant at the spot with regard to murder of both deceased on the allegations of liaison. .PW-2 is also recovery witnesses of pistol recovered from the appellant and deceased Abdul Ghani as well as the witness of empties recovered from the place of occurrence. PW-3 is the recovery witness of blood stained earth, clothes. PW-5 Allah Muhammad Judicial Magistrate, has recorded the confessional statement of appellant. PW-6 is the Investigating Officer of the case, who counted, the steps taken by him during course of investigation.
9. We have scrutinized the statements of all the witnesses with utmost care and caution and have observed that all the witnesses have recorded their statements in line with each other and nowhere they have been derailed from their depositions. They correctly narrated the whole story with regard to commission of crime and arrest of the appellant from the place of occurrence and recovery of crime weapon from his possession as well as the disclosure and confession of the appellant before them. All the witnesses have correctly identified the appellant in the Court. The witnesses have correctly stated the date, time and the place of occurrence, where both the deceased were murdered and the arrest of the appellant was caused nearby the dead bodies. The statements of all the witnesses were subjected to lengthy cross by the defence counsel, but the defence has failed to create and dent in the prosecution story. It has been observed that unsuccessful effort was made by the defence counsel to scandalize or distrust the statements of the prosecution witnesses by making basis the minor discrepancies or contradictions, but in our view those are not adequate to throw aside the entire prosecution evidence as a whole or to believe that the appellant has falsely been involved in the crime, when otherwise the appellant has failed to place on record any single iota of evidence suggesting that his involvement in the crime is on account of previous enmity or any ill-will on the part of prosecution witnesses. These police official witnesses prima-facie had no motive or grudge to substitute the real culprit with an innocent within such short-span of time. This also eliminates chances of claim of substitution of the culprit particularly when the death of the deceased in claimed manner i,e, at place of incident with fire-arm, is never disputed. We would like to take advantage of the case of Akhter Ali v. State 2011 SCM R 937, wherein it is held that:--
10. We have considered the arguments put forth by the learned counsel for the parties and perused the record. The appellant was apprehended immediately after the occurrence by the P.
Ws who have absolutely no motive to implicate the appellant. The defence plea is Wounded besides being an afterthought. We have found no reason to take any exception to the findings of the trial Court as well as of the appellate Court, Therefore, this appeal fails and is herd') dismissed.
10.The case of prosecution has further been strengthened from the recovery of crime weapon i,e, T.T. pistol from the possession of appellant soon after the occurrence, who otherwise was present at the place of occurrence nearby the dead bodies. The defence has also not disputed the arrest of the appellant or recovery of crime weapon from his possession soon after the commission of crime.
11.According to the contention of learned defence counsel that the prosecution has failed to produce any direct evidence against the appellant and the appellant has been arrested on the basis of mere presumptions, suffice to observe here that the crime was committed within the' boundary walls of house of appellant during the midnight and all the witnesses present within the boundary wall of the house were belonging to the same family of the appellant and thus there is no possibility at all that the family members of the appellant's family may come forward to give testimony against the appellant. However, the facts and circumstances of the case establish the guilt of the appellant, who at the time of commission of crime was found nearby the dead bodies, having pistol in his hand and admission before the police that the crime was committed on the basis of liaison by his deceased sister with his paramour, hence the contention of the learned defence counsel is without any substance.
12.Now coming to the next contention of the learned counsel for the appellant that the prosecution has only produced the evidence of police official and no independent witness was associated in the investigation or examined in the Court. As discussed in the preceding pars that the crime was committed within the boundary walls of house, hence there was no chance of outsider to witness the crime directly and with regard to non-association of a private witness from the neighbours etc. it has become impossible for the investigating agencies to associate any independent witness in the prosecution cases. Even otherwise, the police officials are competent witnesses and their testimony cannot be discarded merely for the reason that they are police officials unless or until the defense succeeds in giving dent to the statements of prosecution witnesses and prove their mala fide or intentions against the appellant. Furthermore the statements of police officials are as good as the statements of private witness, unless through evidence it has been proved that previous grudge had existed in between the parties. Whereas, in the case in hand, the admitted position of the case is that neither there had existed any relationship in between the police officials and to that of the appellant nor earlier they knew each other, thus there was no occasion for the police to falsely implicate the appellant in the crime. The testimony of police officials is entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge.
Even otherwise, there is no bar upon the police, officials to become witness of any crime. It has further been observed that the police officials in the present case were the natural witnesses of the crime, who at the relevant time were patrolling the area and soon after commission of crime reached at the spot and caught red-handed the appellant, hence their presence at the spot could not be disputed. Reliance in this regard is placed on the case of Muhammad Mushtaq and another v. State 2008 SCM R 742, whereby the Hon'ble Supreme Court has observed that the police officials are also competent witnesses and their testimony cannot be discarded merely for the reason that they are the employees of police force. Reliance can also be placed from the cases reported in 2016 M LD 920, 2016 PCr.LJ 81, 2016 YLR 2173, 2011 PCr.LJ 511, 2011 PCr.LJ 221, 2011 PCr.LJ 1342. Hence, in view of above legal and factual position the objection of the learned defence counsel is absolutely without any substance.
13. So far as the contention of defence with regard to non-admissibility of confessional statement of appellant under section 164, Cr.P.C. on the ground that the same was retracted and recorded after delay of 12-days, is concerned, suffice to observe here that mostly in all the criminal cases it is a common practice that once the confessional statement is recorded during investigation by an accused, it is retracted during trial of the case, but solely retraction of an accused from his confessional statement is not enough to vitiate its evidentiary value. Even the conviction only be made on the basis of retracted confession. At the most, with regard to its admissibility, the Court has to see that the concerned Magistrate prior to recording the confession of an accused, had fulfilled all the legal formalities and adopted all mandatory precautions to shed out the signs of fear taught by the Investigating Agency and warning had been given to accused that such statement will be used against him as evidence or that he was to be provided full assurance that in case of his denial he will not be handed over to police and if the recorded Magistrate it sure that such statement is being recorded voluntarily without any pressure, coercion, blackmailing or torture, then under circumstance he will commence recording of the same.
14. Careful perusal of confessional statement of appellant establishes the fact that the learned Judicial Magistrate before recording such statement had introduced himself before the accused and also explained the consequences of such statement during trial of the case being used against him, besides assuring the appellant that he is in safe custody and thereafter being satisfied he commenced with recording the confession, therefore, mere retraction of the appellant from the confessional statement is not enough to effect its validity. However, delay of eleven days in recording of confessional statement which had been retracted by accused in his statement under section 342, Cr.P.C., by itself, was not sufficient to affect its validity; because conviction could be based on confession alone, even though retracted, if the same was found to be true and voluntary. Reliance in this regard is placed on the case of Said Jehan alias Saidy v. The State 2014 PCr.LJ 1625. The relevant portion is reproduced herein below:-- "... There is no cavil with the legal proposition that while evaluating the confessional statement main object of law is to ensure the voluntariness and truthfulness of the statement. If a statement is found to have been made voluntarily, without duress, coercion and inducement and simultaneously rings true, there is no hurdle to accept the same irrespective of delay (if any), if recorded within the period of legal physical remand with police. No doubt, there is delay in recording of confessional statement for about (3) days and the same has also been retracted by the appellant in his statement under section 342, Cr.P.C., but mere delay in recording the confessional statement or subsequent retraction by the accused from his confessional statement, by itself is not sufficient to affect its validity because it has now been settled that conviction can be based on confession alone even though retracted, if the same is found to be true and voluntary."
Similarly, the Hon'ble Supreme Court of Pakistan with regard to delay in recording confession statement in case of Muhammad Ismail and another v The State, 1995 SCM R 1615, held as under:-- "...delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. Indeed, the learned Magistrate after observing formalities recorded his confession and certified that it was true and voluntary."
15. In the case in hand the appellant was arrested on, 24th December, 2012, while his confessional statement was recorded on 4th January 2013 i,e, after delay of 12-days, but mere delay of 12-days in recording the confession is also not enough to question mark the validity of such statement, but the same was recorded voluntarily without any coercion or duress. Even otherwise, no hard and fast rules have been laid down about the period within which such statement ought to have been recorded. The Hon'ble Supreme Court in case titled Majeed v. The State, 2010 SCM R 55, whereby the confessional statement was recorded after delay of 12-days has held as under:-- "10. No doubt there was delay of 12 days in recording the confession but this by itself is not sufficient to discard the same. This Court in the case of Nabi Bakhsh v. State 1999 SCMR 1972 held that delay in recording the confessional statement by itself is not sufficient to affect its validity.
However, no hard and fast rule can certainly be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation. Reference is also invited to Muhammad Yaqoob v. State 1992 SCMR 1983."
16.The ocular account, furnished by the prosecution has also got corroboration from the alleged motive, which has been stated to be the allegation of 'Saya kari, as dual murder of a lady and her alleged paramour was committed by the appellant. The said motive has been deposed by the appellant at the time of his arrest as well as before the Judicial Magistrate while recording his confessional statement. Hence, successfully the motive behind the occurrence has also been established.
17.It has been observed that during trial the appellant has neither taken any specific plea with regard to his false implication nor has become his own witness by recoding his statement on oath rather he has simply denied the allegations and pleaded his innocence, whereas to the contrary the prosecution has produced solid and concrete evidence against the appellant connecting him with the commission of crime, thus the entire prosecution evidence cannot be discarded on the basis of mere bald denial of the appellant.
18.The reappraisal of the evidence available on record on the shape of ocular, medical, circumstantial, it is concluded that the prosecution has successfully proved the charge against the appellant beyond any shadow of reasonable doubt; that the appellant was caught red-handed along with the crime weapon; that all the witnesses remained firm in their deposition; that they fully supported the prosecution version and the defence has failed to cause any dent in the same; that the trial Court after proper appraisal of evidence available on record has rightly awarded conviction and sentence to the appellant; that the appellant has failed to point out any mala fide on the part of the prosecution witness for his false implication; that the appellant has failed to point out any material contradiction and discrepancy which could benefit the defence version; that there is no error of law, misreading or non-reading of evidence in judgment passed by the trial court calling for interference by this Court.
For the above reasons, the appeal being devoid of merits is dismissed.