' MUFTAKHIRUDDIN, J.-- The appellant Akhtar Muhammad son of Jan Muhammad Popalzai was tried in respect of a charge under section 302 of the Pakistan Penal Code in the Court of the Sessions Judge, Quetta for committing the murder of one Fazal Muhammad on 11-11-1981 at about 9 a.m. In Moosa Jee Lane, Quetta and has been convicted and awarded life imprisonment.
2. The prosecution case is that on 11-11-1981 at about 9-30 a.m. a telephonic message was received in Quaidabad Police Station Quetta that a dead body was lying in Moosa Jee Lane, Quetta S.H.O.
Abdul Manan proceeded there and found a dead body lying there. One Amir Muhammad came there and identified the dead body as of his father Fazal Muhammad. The statement of Amir Muhammad was recorded. A bullet wound on the back side of the ear was found. The S.H.O.
Prepared the inquest report of the dead body. The blood-stained earth was secured from there and a broken tooth of the deceased was also found which was also taken under a recovery memo, in the presence of the witnesses. The dead body was sent to the Civil Hospital for postmortem examination. Amir Muhammad had disclosed the name of Akhtar Muhammad as the accused in the case. The report lodged by him of the incident runs as follows:- "I alongwith my parents used to live near Madresa Rahimia, Sirki Road, Quetta and I used to earn livelihood by selling goods such as screw driver and foreign spare parts at the footpath of Quetta town whereas my father Fazal Muhammad used to deal in exchange of foreign currency of Afghanistan, Iran and Pakistan. Today at 8 a.m. As usual my father Fazal Muhammad went to Qandhari Bazar for business with currency of 30/35 thousands consisting of Afghan Iran and Pakistan. I also went to sell my goods to Jinnah Road, Quetta. At about 10 a.m., Akhtar Muhammad who is known to my father and so I know him, who is not related to us, came to me at Jinnah Road and asked me to accompany him. I asked for the reason but he did not tell me anything. He took me in a rickshaw to Moosajee Lane, Mission Road, Quetta. Akhtar Muhammad asked me to pay the fare to Rikshawman, and I paid Rs,10 to him. The balance was paid as a tip to Rikshawman by Akhtar Muhammad, when we reached in the lane, I saw my father lying dead in a pool of blood.
Police also reached at the scene of offence. As my father used to deal in currency, hence he and Akhtar Muhammad used to know each other. Akhtar Muhammad is a suspicious person and belongs to Afghanistan. I suspect that Akhtar Muhammad killed my father with firearm to obtain the money and taken all the currency. I file complaint against Akhtar Muhammad and necessary action be taken in the matter.
3. The S.H.O. Went to the room of Akhtar Muhammad which was found locked. He deputed guards at the room of the accused. At about 12 noon when he returned to the room of the accused, he was found sitting there and was detained by the Police guard. Form the person of the accused a cash of 17,600 Afghan currency and Rs,2,820 Pakistan currency were recovered from the side pocket of the shirt, 4,100 Afghan currency blood-stained was also recovered from the same pocket and Rs,8,000 were recovered from the "Shalwar" of the accused. The accused had a key of the lock of the room which was opened by him. Inside the room one matress was found spread on the floor on which a lead of cartridge, damaged by hitting the floor was found. This bullet was taken into possession vide an inventory in the presence of Muhammad Anwar and Head Constable Ghulab Khan. The matress was found bloodstained and was secured in the presence of the same witnesses. On search of one almirah fixed in the wall, Afghan currency 27,700 and Iran currency 21,350 were recovered. One pair of Afghani shoes were recovered from the room. The recovery memo. In respect of these articles were prepared. From the almirah 130 Afghan currency notes blood-stained were recovered. The recovery memo. In this respect was prepared. The S.H.O.
Prepared the sketch of the scene of offence. The blood-stained clothes of the deceased were secured from the hospital through Doctor in the presence of Ghulam Hassan and Irshad H.C. A bullet found from the dead body by the Doctor was also secured under a memo. Of recovery in the presence of Ghulam Hussain and Mushtaq. The dead body was handed over to the relations of the deceased. On 12-11-1981 the accused led the police to the shop of one Amanullah known as "Dente Cycle Works" at Prince Road, Quetta and in the presence of Haji Rafique and Baig Muhammad asked Amanullah to return his "Amanat" to him and Amanullah gave him something wrapped in the cloth. It contained a revolver of .22 bore with number S.11.33 made in England and also four empty cartridges and three live cartridges inside it. The recovery memo. In the presence of witnesses was prepared and signed by Amanullah besides witnesses Haji Rafique and Baig Muhammad, whose statements were also recorded by the Police. An offence of 13-E, Arms Ordinance was added against the accused for which a separate challan had been filed the appeal against the conviction for that offence is also before us (Crl. Appeal No, 6 of 1984). On 14-11-1981 the statement of Amanullah under section 164, Cr. P.C. Was got recorded before the Magistrate, in the presence of the accused. On 18-11-1981 accused volunteered to make a confession hence he was produced before the City Magistrate Quetta who recorded his confession. The parcels were sent to the Chemical Analyser and forensic laboratory for examination and on receipt of their report the challan was put up in the Court.
' Since the confession of the accused (Exh.P.10) would have to be scrutinized by us it is necessary to reproduce it. It reads: "Resident of Qandhar at present Moosa Jee Lane, Quetta states that I am original resident of Afghanistan. I have come to Quetta one year ago. Here at Quetta, I stay with a person of my caste namely Sher Muhammad Popalzai has gone to Afghanistan for Jihad. In his absence I continued to live in his room (Kothi). Fazal Muhammad deceased who used to live at Sirki Road, and used to deal in currency, used to come three or four times a day to my room. On 11-11- 1981 at about 8 a.m. I went to Qandhari Bazar where Fazal Muhammad met me from there he came with me to my room. After reaching my room Fazal Muhammad took out Afghani, Irani and Pakistani currency and he started counting the same. On seeing such a huge amount I felt the temptation, I took out a small revolver from my pocket which I had purchased from one Afghani Mujahid and fired four shots, one after the other at Fazal Muhammad, but I do not know how many bullets had hit Fazal Muhammad. Fazal Muhammad in an injured condition, leaving the amount etc. Ran way and starting raising the cries. I collected all the currency and kept in the pocket and kept some amount in the draws of almirah. After locking the room I went out when I reached on the eastern corner of Moosa Jee Lane, then I saw that Fazal Muhammad had fallen down on the road. I from there went straight to Amir Muhammad son of Fazal Muhammad and brought him myself to Moosa Jee Lane, where Police reached. From there I alongwith Amir Muhammad went to the hospital with the dead body of Fazal Muhammad from there I reached my room so that after taking out the remaining amount I may go away. When I reached my room the Police arrested me and searched my person. They recovered Afghani currency from my person which I had taken from Fazal Muhammad. I have committed the mistake due to greed of money. I committed the murder of Fazal Muhammad by firing revolver shots at him. I confess of my crime."
4. The prosecution in order to prove its case produced nine witnesses. The medical evidence in the case is the following and consists of:- 'Dr. Arbab Muhammad Yousuf who has held the post-mortem examination on the dead body of the deceased Fazal Muhammad on 11-11-1981 and found the following injuries on external examination:-
(1) Gun-shot wound right mastoid behind right ear in circumference (wound of entry).
(2) Gun-shot wound left cheek 1/4" circumferences irregular (wound of exit).
(3) On left side upper jaw third molar tooth is missing. On internal examination: It was found:- ' There is fracture of right mastoid. The bullet after entering skull on right side and after fracturing the mastoid bone passed to the left side, struck the third molar tooth and after temporomandibular joint on left side passed out of the body through left cheek. The fragment of bullet body was removed and handed over to the police."
' The medical officer was of the opinion that the cause of death was sudden massive haemorrhage into the mouth cavity due to fractured bones from gun-shot wound, leading to asphaxia shock and dead. The death was immediate after injuries. The time between death and postmortem was within twelve hours. All the injuries were the result of one shot fired from a firearm in which bullet is used. These injuries were sufficient to cause death in the ordinary course of nature.
' The dead body was identified to be that of Fazal Muhammad by his son (P.W.2) Amir Muhammad.
The dead body was found lying in Moosa Jee Lane where blood was found on the ground where one tooth was also found lying. A piece of lead of bullet was recovered (Exh. P/6). The blood was found on the matress secured from the room occupied by the accused/appellant.
' Thus it was established beyond doubt that Fazal Muhammad was murdered with revolver shot.
The appellant has also not denied this aspect of the prosecution case but the real dispute in this case is whether the accused intentionally committed the murder of Fazal Muhammad with revolver or it was due to any provocation and self-defence as the learned counsel for the appellant has attempted to establish before us.
5. The prosecution in support of its stand that it was an intentional act of murder has relied on the following pieces of evidence and circumstances:-
(i) Recoveries from the possession of the appellant and from the room in his occupation and at his instance.
(ii) Report of Chemical Analyser Forensic Expert and medical evidence.
(iii) Confession of the accused recorded under section 164, Cr.P.C. And its admission in his statement recorded under section 342, Cr.P.C.
(iv) Statement of P.W. Amir Muhammad.
(v) Compromise and (vi) Motive.
6. Amanullah (P.W.6) in his statement has said that on 11-11-1981 at about 11-30 a.m. The accused had come to his shop and had given him something wrapped in a cloth and the witness was asked to keep the same as trust. This "amount" was returned to the accused when he came accompanied by witnesses and police and on opening it a revolver, 4 empty catridges and 3 live catridges were found, all these articles were taken into possession before the witnesses. This recovery was also witnessed by Amanullah who has stated the above facts before the Magistrate in his statement recorded under section 164, Cr.P.C. And in the presence of the accused. The recovery of the revolver and catrdiges has thus been established not only by the witness Amanullah but by P.W.5 an independent witness, Haji Muhammad Rafiq. The recoveries of the money and blood-stained currency from the pocket of the accused lead to the only conclusion that after the deceased was done away with, the accused in order to utilize the same had kept in his pocket and some in the Almirah.
' The learned counsel for the appellant has not been able to dislodge the prosecution on these points. All that was said by him was that the recoveries were proved only through the police officials. The argument has not impressed us. The P.W. Amanullah is not inimical with the accused but rather is a person in whom the accused had reposed confidence and while he was being examined nothing has been suggested which may dislodge him either before the Magistrate or the trial Court. The confession recorded before the Magistrate under section 164, Cr.P.C. Has been criticised by the counsel of the accused/appellant on the ground that it was recorded after seven days of the arrest and he was handed over to the police instead of being remanded to judicial custody. Bashir Ahmed Raisani (P.W.8) who has recorded the judicial confession had asserted that the accused was remanded to judicial custody and P.W.9 has confirmed the fact that the accused was taken to judicial custody after the confession of the accused was recorded. The learned Sessions Judge while discussing this contention of the learned counsel has ruled out the same on the authority of the Full Bench case of Shaukat Saeed v. State PLD 1978 Quetta 1. We have no reason to depart from that view. Every confession is to be considered on its own merits in the light of the surrounding facts and circumstnaces. The Magistrate who has recorded the judicial confession of the accused has said in his evidence before the Sessions Judge that after putting questions to the accused he was satisfied that the accused was giving voluntary confession. It was read over to the accused and after his admission that it was correct, he had taken his signature on it. He has appended certificate on it. It is significant that the accused is literate.
7. The word voluntary used in respect of a confession means a confession not caused by inducement, threat or promise. The Supreme Court of Pakistan in State v. Minhim alias Gul Hassan PLD 1964 SC 815 has held that:- "Retracted confession whether judicial or extra-judicial could legally be taken into consideration against the maker of the confession himself and if the confession were found to be true and voluntary then there was no need at all to took for further corroboration, as against the maker himself his confession, judicial or extra-judicial whether retracted or not, can in law validly form the sole basis of his conviction if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law". It is this the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances itself fully that the confession cannot but the true."
' Keeping the above guidelines we have carefully considered the evidence on record and found that the statement filed in Court is very belated as pointed by the learned Sessions Judge. The learned trial Court has expressed on this point in these words:- "At this stage it is worth consideration that the judicial confession of the accused was recorded after seven days of the alleged incident while the statement Exh. D/A was filed in this Court, more than two years of the incident. The natural conclusion is that statement Exh. D/A has been filed after much consideration and even with consultation and it is an afterthought and a made up story. If this statement of the accused had been correct, then he should have disclosed it at the earliest moment after his arrest by the police. He had the opportunity for disclosing the same when the statement of P.W. Amanullah was recorded by the Magistrate in his presence and he was given the right of cross-examination. Thereafter he had the chance of disclosing the same in his judicial confession which was recorded by the Magistrate after seven days of the alleged incident. Here I may further point out that the P.Ws. Have been cross-examined at a great length and this (sic) of the accused, if it had been true, then it should have been disclosed in the cross-examination of P.Ws. But it has not been done."
In Principles and Digest of the law of Evidence by Mr. Monir 1974 Edition, the learned author at page 257 has commented that "Court can take into consideration the lapse of time before it was retracted and the reason given by the confessor for making and retracting confession and the nature and quantum of proof which was available against the confessor before he confessed.
7 The circumstances which were found during the investigation before the accused was produced for getting his confession were that the accused had made an attempt to conceal the weapon of offence and for that purpose had gone to Amanullah (P.W.6) and had kept the revolver there. The empties had been recovered from the room. He had kept a major part of the money robbed from the deceased in the almirah in the room which was in his occupation admittedly and some part in his pocket and had managed to escape from the scene leaving the dead body. In these circumstances the statement of the accused Exh. P/A that he had shot the accused with revolver but this was so because the deceased wanted to commit sodomy on him does not appear to be true and on this statement of the appellant the learned counsel argued that the appellant has committed murder in grave and sudden provocation and that the statement at the trial which is qualified admission has to be accepted or rejected as a whole is not worth 'consideration. We are not inclined to agree with him because we have shown above that there is eviaence and circumstances shown above which renders the plea of the accused unbelievable. We have come to a decision that circumstances of the instant case do justify a well-founded conjecture which is sufficient for excluding if from evidence. In Khan Muhammad v. State PLD 1960 Lah. 359 it has been ruled that when there is other evidence direct or circumstantial showing that the exculpatory part is false, the Court is at liberty to reject it and act upon the inculpatory part.
8 ' The accused has not denied that the confession was not correctly recorded. There is nothing on record to corroborate the statement of the accused that he was maltreated or coerced by the Police.
' The confessional statement of the accused has been found to be voluntary and has been corroborated in material particulars thus it is found to be true. It is further corroborated by the recovery of the weapon of offence within the purview of section 27 of the Evidence Act. We are clear in our minds that the guilt of the accused is established.
' For the reasons given above we maintain the conviction of the appellant under section 302 of Pakistan Penal Code but in view of the fact that the deceased's son has compromised with the accused and has been paid Rs, 50,000 by the accused as pointed out by the trial Court the accused is entitled to a lenient view. We are of the opinion that in the circumstances of this case the compromise has been correctly treated as a mitigating circumstance. We, therefore, uphold the conviction and maintain the sentence of life imprisonment awarded to the appellant. The appeal is, therefore, dismissed.