ROZI KHAN BARRECH, J. The Criminal Jail Appeal No (S) 03 of 2020 and Murder Reference No. (S) 01 of 2020 are emanating from the judgment dated 31.08.2020 ("impugned judgment") passed by learned Additional Sessions Judge, Bhag at Dhadar in Murder Case No. 12 of 2020 handed down in case FIR No. 16 of 2019 dated 23.12.2019 under section 302, P.P.C. registered at Levies Thana Mach District Kacchi, whereby the present appellant Hafiz Obaidullah son of Abdullah was convicted and sentenced as under: "29 therefore, accused facing trial is hereby convicted under section 302(b), P.P.C. and is hereby sentenced to Death for causing death of deceased Arsalan Ahmed. Accused facing trial is further ordered to pay fine of Rs.200, 000/- as compensation under section 544-A, Cr. P. C. which after realization be distributed among the legal heirs of deceased Arsalan Ahmed. In case of default of payment of said amount the accused is ordered to suffer R.I of six months. Benefit of section 382- B, Cr.P.C. is extended in favour of accused facing trial."
2. The occurrence was reported by the complainant Muhammad Hassan (PW1) on 23.12.2019 at 12:30 am at Levies Thana Mach, according to which on 22.12.2019 at 11:20 pm he was present in his house situated at Kolpur. His brother Arsalan Ahmed (deceased) called him on the phone and told him that he is lying on the road near the railway station in injured condition. Upon this information he rushed toward railway station where he found his brother Arsalan Ahmed lying in the injured condition who told him that he went to Mashallah hotel for some work at 11:00 p.m., he was returning back towards the house, when reached near Railway Station, he stopped for making a phone call (on receipt of mobile signals), and when he was talking on the phone, suddenly 2/3 stones hit his vehicle. He alighted out of the vehicle but could not find anybody. He went towards the street, but no one was there and when he turned back a person hidden along the wall, made fire shot at him, which hit him in the back and when he turned and saw Hafiz Obaidullah armed with a pistol. He scuffled with him and his pistol fell down, however, due to severe bleeding, he fell down on the ground, and the accused managed to flee away after taking his pistol. It is further alleged in the report that in the meanwhile, Naimatullah and Meer Ahmed also reached the spot who took the injured to Civil Hospital Quetta. The complainant went to Levies Thana Mach for registration of the FIR on his written report Ex.P/1-A the FIR Ex.P/9-A was registered on 23.12.2019 at 12:30 am.
3. The deceased was shifted by PW-2 Naimatullah and PW-3 Meer Ahmed to Sandeman Provincial Hospital Quetta, and there PW-7 Dr. Aisha Faiz examined the injured Arsalan Ahmed and found the following injuries on his body: "1. Ent/W 0. 5 x 0.5 Cm on Mid lumbar region.
2 Exit/W 1 x 1 Cm on left side of Abdomen with fresh bleeding."
The patient was referred to a trauma center for operation, and later on, the deceased was shifted to Combined Military Hospital at there on 28.12.2019; the injured succumbed to the injuries.
4. The investigation was conducted by Zabir Ali (PW-9) Naib Tehsildar Mach. During the investigation he visited the place of occurrence. He prepared the site plan, recovered blood- stained earth, two empties of T.T. pistol and took into possession and prepared a parcels. He recorded the statement of the injured under section 161, Cr.P.C as well as other witnesses. He took the bloodstained garments of the deceased into possession and prepared a parcel. On 26.12.2019, he arrested the accused/appellant. On 27.12.2019, he obtained the remand of the accused from the judicial magistrate. On 28.12.2019, the deceased Arsalan succumbed to the injuries, and he obtained the death certificate of the deceased from CMH hospital Quetta and prepared the inquest report of the deceased. On 30.12.2019, he recovered the crime weapon, i.e. pistol, on the pointation of the accused/appellant. The appellant was produced before the Judicial Magistrate Mach Abdul Khalid (PW-8), on 10.01.2020 who recorded the confessional statement of the appellant (Ex.P/8-A). He obtained the FSL report regarding the bullet empties and blood stained articles and positive of firearms expert.
5. After the investigation, the challan was submitted before the trial court. The formal charge was framed against the appellant to which he did not plead guilty and put himself at the option to face trial for the offence. The prosecution in order to prove its case against him, produced and examined as many as nine witnesses. When examined under section 342, Cr.P.C the appellant negated the allegation levelled against him by the prosecution. He retracted his confession, and opted not to record his statement on oath as envisaged under section 340(2), Cr.P.C and he also did not produce any witness in his defense.
On conclusion of the trial, the trial court vide impugned judgment dated 31.08.2020 convicted the appellant under section 302(b), P.P.C. the detail of the sentence has already been given in the earlier part of this judgment. Hence, this appeal and the connected murder reference.
6. We have paid our anxious consideration to arguments of learned counsel for the parties as well as learned APG and gone through the record with their able assistance.
7. There is no direct evidence of the occurrence, and the whole case of the prosecution is structured upon the dying declaration of the deceased made before the complainant/PW-1, confessional statement of the appellant recorded by PW-8 Judicial Magistrate Abdul Khalid on 10.01.2020, recovery of crime weapon, i.e. pistol on the pointation of the appellant and positive report of the firearms expert. The record depicts that the matter was reported on the same night at 12:30 am within one hour of the occurrence. The parties were known to each other before the occurrence. There was no chance for false implication. These circumstances are enough to believe that the FIR was registered without pre-consult or premeditation to levies Thana. The evidence of PW-1 reveals that when he reached the place of occurrence, he found his brother Arsalan in an injured condition, who disclosed that accused/appellant Hafiz Obaidullah had fired at him. The said witness was cross-examined, but nothing came on record to discard his evidence. No serious efforts were made to challenge his statement on the question of dying declaration.
8. From the evidence, it has been established beyond any shadow of a doubt that deceased Arsalan Ahmed made a dying declaration immediately after the incident, eliminating the possibility of influence etc. before making the appellant responsible for causing him injuries. It is a well-settled principle of law that if the dying declaration is made even before a private person is free from influence and the person -before whom such dying declaration was made was examined, then it becomes a substantive piece of evidence, and for that, no corroboration is required and such declaration can be made the basis of conviction. The Hon'ble Supreme Court gave the following guiding principles for relying upon the dying declaration in the case of Farmanullah v. Qadeem Khan 2001 SCMR 1474.
"(i) There is no specified forum before whom such declaration is required to made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii) Such declaration when proved by cogent evidence can be made a base for conviction."
Thus the prosecution has proved the dying declaration, which by itself is sufficient to maintain conviction and sentence.
9. Besides, another important substantive piece of evidence with the prosecution is the confessional statement of the appellant which has been believed and relied upon by the trial court while recording the conviction of the appellant. Though the appellant has retracted his confessional statement during the trial, but before dilating upon the evidentiary value of his retracted confession and its voluntariness or otherwise, for the sake of convenience, we deem it appropriate to produce the relevant portion of confessional statement of the appellant with English translation below: "The deceased was his friend. Once, he told the accused that he is going to be engaged with the daughter of his aunt. The accused asked the deceased to bring his fianc for sexual intercourse with him. He refused, and on another day, the deceased again demanded to bring his fiance, but he became furious and made a fire upon the deceased with a pistol who received injury."
10. As stated above, there is no direct evidence of the crime in question, and the main evidence on the basis of which the appellant was found guilty of the charge was his own confessional statement. The corroborative evidence produced by the prosecution to prove the facts relating to the occurrence in which an innocent person was killed may not be independently sufficient to prove the charge against the appellant and establish his participation in the occurrence; however, if combined together, provide a strong chain of circumstances, leading to the conclusion that it was the appellant, who had committed the murder of deceased. The main ground weighed with the learned trial Court while convicting the appellants is his own confessional statements; as such, an essential question for consideration, in this case, would relate to the admissibility of the confessions and their evidentiary value for the purpose of conviction and was voluntary or otherwise?
11. It is trite law that for accepting a confession, two essential requirements must be fulfilled, i.e. the confession was made voluntarily, it was based on true account of facts, leading to the crime and the same was proved at the trial. It appears from the record that the appellant was arrested on 26.12.2019 and was produced before the Judicial Magistrate for taking remand on 27.12.2019, and after remaining in police custody for fourteen days, he recorded his confessional statement on 10.01.2020. An iota of evidence is not available on record to remotely show that the appellant was subjected to any torture, inducement or promise. Mr. Abdul Khalid, the learned Judicial Magistrate, who has recorded the confessional statement of the appellant while appearing as PW-8, deposed that after fulfilling all legal formalities within the meaning of section 364, Cr.P.C., he recorded the confessional statement of the appellant; that sufficient time was given to the appellant to think over his confession. Before recording the confessional statement of the appellant, he has answered questions Nos. 4, 5 and 7 of the questionnaire, extract of which are reproduced below:- "Q.4. Have you been subjected to any torture?
Ans. No. Q5. Have you been forced or induced to record your confession?
Ans. No. Q7. Are you making your confession voluntarily?
Ans. Yes. "
Replies of the appellant to the aforesaid questions leave no room for any doubt that his confessional statement is involuntarily or the result of torture, force, inducement or promise. Abdul Khalid Judicial Magistrate (PW-8) has been subjected to lengthy and taxing cross-examination by the defense, but nothing could be extracted from his mouth to prove that the confessional statement of the appellant was the result of force, torture, promise or inducement. The learned Magistrate while recording the confessional statement of the appellant, has taken all the precautions and had faithfully complied with all the formalities as envisaged under section 364, Cr.P.C.
12. The accumulative effect of all the circumstances leads to only one conclusion that the appellant made true judicial confession voluntarily and without any pressure, and is fully involved in this matter. It is now well settled that retracted judicial confession voluntarily made that 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 the absence of any material, does not appeal to the mind. Especially when he was given ample time and chance by the Magistrate before making a confessional statement. He made the statement when he was alone with the Magistrate in court; after the statement, he was sent to judicial remand, and the 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. Admittedly the said two essential requirements of the confessional statement had been fulfilled, and through the evidence, it has not only been established to have been recorded voluntarily, but it was proved at the time of trial.
13. The chain of circumstance brought on record by the prosecution fully corroborate the confessional statement of the appellant, the appellant remained unable to give a 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 SCMR 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 of doubt---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 SCMR 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 SCMR 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 ".
14. The admissibility of the statement is being challenged on the ground that the same has been recorded with a delay of fourteen days. Admittedly the accused/ appellant was arrested on 26.12.2019, and his statement under section 164, Cr.P.C has been recorded on 10.01.2020, i.e. after fourteen days of his arrest. PW-8, who recorded the statement of the accused is found to be having no motive/malice for implicating the accused in the crime. While PW-9 Zabir Ali Domki, Naib Tehsildar, who investigated the matter, was not alleged to have induced, pressurized or tortured the accused so as to obtain the confessional statement. His statement as well as cross- examination do not reflect any motive on his part for fabricating false evidence to involve the accused/appellant in the crime. We are also inclined to hold that since the Rule of admissibility of a confession prescribes no time for recording the confession, if recorded within the period of legal, physical remand with police. Confession of an accused and its different aspects in each case are to be looked into in light of its attending facts and circumstances; therefore, it is not a rule of universal application that in each and every case the delay will essentially damage the evidentiary value of confession. This court, in a number of cases, i.e. PLD 1978 Quetta 1, 1985 PCr.LJ 2375, 2005 YLR 908, 2013 PCr.LJ 127, 2004 YLR 1088, 2006 PCr.LJ 62 and 2021 MLD 729 held that recording the confessional statement with delay by itself is not sufficient to discard the same. There is no doubt there was a delay of fourteen days in recording the confessional statement of the accused, but this by itself is not sufficient to discard the same. The Hon'ble Supreme 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 can also be made to the judgment titled as Muhammad Ismail and another v. The State reported in 1995 SCMR page 1615 (relevant at page 1621) wherein it has been observed as under:-- "Then comes the confession of appellant Muhammad Ismail. 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."
Reliance is also placed in the case titled "Majeed v. The State" 2010 SCMR 55 wherein it was held that: "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".
14. It is pertinent to mention here that the appellant did not directly or indirectly take the plea before the trial Court at any stage that the confession was involuntary. Undoubtedly, the appellant had retracted his confession, but the same could be relied upon because the events disclosed by him for the purpose of the commission of a crime in his confessional statement, including the manner adopted by him was fully corroborated by prosecution evidence available on record. The appellant had also disclosed the motive of killing the deceased indicated that his confessions was voluntary, and true and the same could not be discarded for the sole reason of having been recorded after fourteen days in view of the facts and circumstances of the case.
15. There is also circumstantial evidence of reliable nature on record against the appellant proving his proper nexus with the offence of murder of the deceased. The deceased Arsalan was examined by Dr. Aisha Faiz PW-7 on the night of the occurrence, and she issued the medical certificate Ex.P/7- A, according to which the deceased received the following injuries.
"1. Ent/W 0.5 x 0.5 Cm on Mid lumbar region.
2. Exit/W 1 x 1 Cm on left side of Abdomen with fresh bleeding."
16. The above observations of the doctor are in line with the confession of the appellant, whereas he has admitted that he made a fire upon the deceased due to which he received injuries. Thus the medical evidence available on record abundantly corroborated the confession of the appellant.
17. The investigation officer, after registration of the FIR visited the place of occurrence from where he secured the blood of the deceased and recovered two empties of pistol, and the same were taken into possession through recovery memo. The investigation officer also took the blood stained garments of the deceased into possession and prepared a parcel. Both the parcels were sent to the Forensic Science Laboratory and thereafter obtained positive report i.e. Ex.P/9-E. The FSL report Ex.P/9-E regarding the blood and blood stained articles is positive for human blood.
18. Now turning towards the recovery of crime weapon, in pursuance of the appellant's disclosure, the crime weapon was recovered on his pointation and the pistol along with empties secured from the place of occurrence were sent for the report of the ballistic expert. The ballistic expert report has been produced as Ex.P/9-F, which shows that the crime empties were fired from the pistol recovered on pointation of the appellant in pursuance of the disclosure made by him.
19. So far as the alleged disclosure of the appellant is concerned, it may be stated that as provided by Articles 37, 39 the Qanun-e-Shahadat Order, 1984, a confession was made by an accused person in police custody is not admissible. However, if something related to the case is recovered or any fact is discovered in consequence of information conveyed by the accused person, then the information so received would be admissible in evidence within the purview of Article 40 of the Qanun-e-Shahadat Order, 1984 because then the presumption would be towards its truthfulness but if nothing in consequence of the disclosure is recovered or discovered, then the information so received by itself would not be admissible.
20. Keeping in view the natural mode and manner of the above mentioned recoveries from the spot coupled with recovery of crime weapon on the pointation of the appellant as well as the confidence inspiring statements of PWs, any probability of false procurement of the said evidence by levies is excluded.
21. After thrashing out the material on record, we have come to the conclusion that the prosecution story stands to reason and is natural, convincing and free from any inherent improbability. All the circumstances mentioned above are interlinked with each other in the manmr making out an unbroken chain connecting the present appellant with the murder of the deceased, thus, qualifies the criteria of acceptable circumstantial evidence discussed by the august Supreme Court of Pakistan in the case of Hashim Qasim and another v. The State (2017 SCMR 986) wherein it was laid down that: "Placing reliance on circumstantial evidence, in cases involving capital punishment, the superior Courts since long have laid down stringent principles for accepting the same. It has been the consistent view that such evidence must be of the nature, where, all circumstances must be so inter-linked, making out a single chain, an unbroken one, where one end of the same touches the dead body and the other the neck of the accused."
These circumstances exclude every hypothesis of his innocence, and thus, the learned trial court has rightly relied upon the aforementioned pieces of circumstantial evidence; there is no space to entertain any hypothesis of innocence, guilty verdict calls for no interference, the appeal fails.
22. So far as the question of quantum of sentence is concerned, we have particularly attended to the sentence of death passed against the appellant Hafiz Obaidullah and have noticed some peculiarities of this case, warranting exercise of discretion in the matter of his sentence of death. In this regard, we have noticed that although all the other formalities vis--vis was recording the statement of the appellant under section 164 Cr.P.C. have been duly complied with, yet same were recorded after a delay of fourteen days. This was an irregularity, not vitiating the confessional statement itself but putting the court to caution. The appellant made one fire upon the deceased and has not repeated the same. Taken from this angle, alteration of. the death penalty into imprisonment for life would be a conscionable wage in the circumstances. Consequently, the penalty of death awarded to appellant Hafiz Obaidullah, son of Abdullah, is altered into imprisonment for life while the amount of fine and compensation is kept intact.
With the above modification, Criminal Jail Appeal No. (S) 03 of 2020 is otherwise dismissed on merits, and Murder Reference is answered in NEGATIVE.