' Sabz Ali son of Mir Sayab resident of village Pabbi Tehsil and District Peshawar is charged under section 302, P.P.C. For committing the murder of Altaf Muhammad. He was tried by the learned Additional Sessions Judge Nowshera, who found him guilty of the offence under section 302, P.P.C. And convicted him as such vide his judgment and order dated 14-9-1983 and sentenced him to imprisonment for life and a fine of Rs,5,000 or in default of payment of fine to undergo two years further R.I. The amount of fine on recovery has been ordered to be paid as compensation to the legal heirs of the deceased. It was further ordered that the pistol (the weapon of offence) is confiscated and his licence is cancelled and the cash amount recovered from the deceased be returned to his legal heirs alongwith his Chappals and Chadar. The convict has filed an appeal against his conviction whereas Sardar Muhammad complainant has filed a revision petition for the enhancement of the sentence to the normal penalty of death and has also prayed for the enhancement of the compensation. This order will dipose of both the appeal and the revision petition.
2. The facts which are relevant are that on 3-1-1982 at 9.00 in the morning Sardar Muhammad resident of Pabbi appeared in the Police Station Pabbi and made a report that his nephew Altaf Muhammad son of Jan Muhammad left his house on Thursday the 31st of December, 1981. He is the son of his brother who has gone to Saudi Arabia. He has no control over him and is in the habit of hunting with dogs. His nephew has left the house on 31st of December, 1981 and has not come back. He has neither any enmity with nor suspects anybody. He has enquired from his relatives but his nephew has not gone to any of his relations. He had been enquiring about him but since he could not locate his whereabouts therefore he had come to lodge the report.
3. The above report was recorded at serial No,14 of the daily diary by Amanullah Khan then S.H.O. Pabbi (P.W.11) and is Exh.PA/2. He then wrote an application for taking permission from the Illaqa Magistrte for enquiry regarding the disappearance of Altaf Muhammad as required under section 156(3), Cr.P.C. And sent the same by hand of Muhammad Mahboob IHC to the relevant Magistrate for his permission which was accordingly allowed the same day. This application is Exh.PH. He deputed Ghafar All Khan A.S.I. To investigate into the matter. After the investigation Ghaffar All Khan A.S.I. Sent the Murasila Exh. PA/1 for the registration of the case. This Murasila was duly incorporated in the F.I.R. Exh. PA. This witness alongwith Chaffar All Khan and Amin Khan PWs was then led by Sabz Ali accused to his house where on his pointation one 32 bore country- made automatic pistol bearing No,2280 was recovered from a box lying in a Kotha alongwith a licence bearing No,48/AC-N, dated 27-1-1975 which was in the name of his father. The pistol is Exh.P.7 whereas the licence is Exh.P.8. Both these articles were taken into possession in the presence of the marginal witnesses vide memo.
Exh.PC/5. He sealed the pistol into a parcel in the presence of marginal witnesses. This witness also took into possession a bottle containing two spent bullets Exh.P.6 vide recovery memo. Exh.PC/6, sent by the doctor in the presence of marginal witnesses. He also submitted an application on 7-1-1982 for recording the confessional statement of Sabz Ali accused which is Exh.PH/1. Vide application Exh.PH/2 the pistol and three empties giving smell of fresh discharge were sent to the Forensic Science Laboratory, Pehsawar and the result of the Arms Expert is Exh.PH/3. The witness in hand also sent the blood-stained earth for its chemical examination vide his application dated 4-1-1982 which is Exh.PH/4, its result is Exh.PH/5. Exh.PH/6 is his application to the Handwriting Expert through which he sent the original letters alongwith different subsequent handwritings of the accused in the presence of the Magistrate for comparison. The complete challan in this case was submitted by this witness on 19-1-1982, till then the report of the Handwriting Expert had not been received.
4. Statement made by Ghafar All Khan A.S.I. Who appeared as P.W.12 at the trial reveals that on 3-1-1982 he was posted as A.S.I. Police Station Pabbi. He was on 'Gasht' in Pabbi Bazar when he received an endorsed application under which he was directed to hold enquiry into the disappearance of Altaf Muhammad. During the enquiry he was informed that Sabz All was the friend of Altaf Muhammad. He apprehended Sabz All and during the interrogation Sabz Ali confessed that on 31st of December, 1981 he has killed Altaf Muhammad at Tor Khan Naka by firing at him with pistol and that his dead body is lying there. Sabz All accused in handcuffs led Ghafar All Khan A.S.I. And Mirzaman Khan Lumbardar (P.W.1) who was taken by the police from his village to the spot where on his pointation the dead body of Altaf Muhammad was recovered bearing two injuries on his head. His injury sheet Exh.PE and inquest report Exh.PD were prepared and the dead body was sent to the mortuary for post-mortem examination through Ibrahim Constable and a Murasila Exh.PA/1 was sent to the P.S. For registration of the case. He then prepared the site plan Exh.PB at the instance of the accused. Ghaffar Ali PW also recovered a pair of Chappals Exh.P/4, a woollen Chadar Exh.P/5 belonging to the deceased vide recovery memo. Exh.PC/1. He also took into possession blood-stained earth from the spot vide recovery memo.
Exh.PC/3. He took into possession one empty shell of .32 bore Exh.P/1 from point No,4, one empty shell of .32 bore from point No,5 and one empty shell of .32 bore from point No,6 which are Exhs.P/2 and P/3 respectively vide recovery memo Exh.PC/4. The same were sealed into parcels. He also took into possession an envelop containing a letter in the name of Jan Muhammad and Sardar Muhammad produced by Sardar Muhammad PW vide recovery memo Exh.PC/2. At the instance of the accused the S.H.O. Recovered a .32 bore pistol as the weapon of offence in his presence through recovery memo Exh.PC/5 which is in his hands and is correct. The sketch of the place from wnere pistol was recovered was prepared in his presence by the S.H.O. And is Exh.PB!1. He produced the accused before the Magistrate for recording his confessional statement. The letters recovered were handed over to him by the complainant which were sealed by him and through his application Exh.PB/7 he obtained the permission of the Magistrate for sending the letters to the Handwriting Expert for comparison.
5. At the trial 12 witnesses appeared in support of the case of the prosecution. Sabz Ali accused in his statement under section 342, Cr.P.C. Has denied the recovery of the dead body of Altaf Muhammad at his instance on 3-1-1982. He also denied to have led the police party on 3-1-1982 to his house and the recovery of .32 bore pistol Exh.P/7 at his instance and stated that in order to strengthen the case the police had recovered the licensed pistol of his father from his house in his absence. He also denied that 3/4 days prior to the occurrence he was seen in the company of Altaf Muhammad and Fazli Amin by Mahmood P.W. He also denied to have made voluntary confession before M.I.C. Nowshera on 7-1-1982 and stated that he was arrested on 1- 1-1982, was forced and tortured by the police during 4/5 days when he was kept in the police station and was compelled to thumb impress a written statement which he did in order to save his life from further torture and to protect his honour. In fact he did not make any confession. As to his signatures on each page of the confessional statement he stated that the Investigation Officer had given him two written papers and had asked him to sign which he did accordingly. The same was not read over to him. He denied to have said in his confessional statement that he had illicit relations with the deceased prior to the occurrence. As to the charge he stated that he has not been charged by anybody, the complainant party was influential so at their instance the police had dragged him in the case. He was a school going boy and was innocent. The witnesses produced in this case were stock and interested witnesses. On the same day in answer to the supplementary question he expressed his ignorance about the report of the Arms Expert with regard to the firing of empties Exhs. P.1, 2 and 3 from pistol Exh.P/7 produced by him.
6. The trial ended in the impugned judgment.
7. Dr.Ali Gohar, Medical Officer, Civil Hospital, Pabbi conducted the post-mortem examination on the dead body of Altaf Muhammad deceased on 4-1-1982 at 8.00 a.m. And found the following external injuries on his person: ' The condition of the deceased was normal and putrefaction had started.
(1) Firearm entry wound size 1/4" x 1/4" on the left temporal region, about one inch above the left ear.
(2) Firearm entry wound on the right parietal region size 1/4" x 1/4".
' On internal examination the doctor found the scalp injured, membranes and brain injured and skull fractured.
' The cause of death in his opinion was due to injury of the brain. The injury was caused by firearm. Two bullets were recovered from the skull weighing about 140 grains and were handed over to the police.
' Time between injury and death five to ten minutes and between death and post-mortem examination 3-4 days.
The injury sheet Exh.PE and inquest report Exh.PD were endorsed by him.
' In cross-examination the doctor admitted that since putrefaction had started therefore in his view death in this case had occurred 3/4 days prior to post-mortem examination. He stated that he did not remember whether the police gave him the information about the time and death of the deceased but stated that in column No,3 of the inquest report the date and time of death has been given by the police.
8. The learned counsel for the parties heard in detail. In this case we have no eye-witness and its edifice has been raised purely on circumstantial evidence such as the recovery of the dead body of the deceased, his woollen Chadar, his Chappals, three crime empties and blood-stained earth from the spot, the pistol from the house of the accused at his instance and pointation, the medical report, the report of the Arms Expert and the retracted confession of the accused. The prosecution has also relied on the statement of Mahmood P.W.8 who had allegedly last seen the deceased and the accused going together in village Pabbi 3/4 days prior to the occurrence, though it has not been relied upon by the learned trial court.
9. The learned counsel for the appellant has vehemently disputed the finding of the learned trial Court and his contention was that the prosecution has failed to bring home the charge to the appellant. He submitted that initially the report was made by Sardar Muhammad P.W.9, the uncle of the deceased on 3-1-1982 at 9-00 a.m.
About the disappearance of the deceased from 31-12-1981. Thus, the police, could not take cognizance of and could not investigate into without obtaining the permission of the Illaqa Magistrate, which as the record stands had not been taken before the start of the investigation and thus the whole trial is vitiated. He further submitted that the F.I.R. In this case has admittedly been recorded after the investigation, it has, therefore, lost its evidentiary value and cannot be looked into. Reliance was placed by him on Ghulam Qadir v. Crown PLD 1950 B J 51, Aziz Khan v. State 1974 P Cr. L J 367 and Anwar v. State 1975 P Cr. L J 750. He further disputed the genuineness and authenticity of the retracted confession made by the appellant on the ground that the same was recorded after six days of his arrest which obviously was as a result of torture and coercion of the police. In this regard he relied on Tooh v. State 1975 P Cr. L J 440, Said Anwar v. State PLD 1977 Pesh. 64 and Abdul Majeed v. State PLD 1977 Kar.
760. He further argued that the so-called confessional statement of the appellant has not been corroborated by the medical evidence inasmuch as in the confessional statement the appellant has alleged to have fired three effective shorts at the deceased. Whereas the medical evidence indicates two firearm injuries on the head of the deceased, therefore, the retracted confession cannot be made the sole basis of the conviction unless corroborated by circumstantial evidence. Reliance in this respect has been placed by him on Javed Iqbal v.
State PLD 1975 Pesh.
230. He further submitted that the alleged recovery of the Chappals and Chadar of the deceased and the three empties from the spot was made before the investigation, yet neither the Murasila Exh.PA/1 nor the inquest report carry any mention of the alleged recovery, therefore, in all probabilities it has been planted by the police.
The recovery of the dead body and the pistol at the pointation of the appellant, he submitted has not been established through independent evidence. Reliance in this respect was placed on Sultan v. State 1972 P Cr.L J 435, Raziqdino v. State 1975 P Cr.L J 590 and Ghulab Khan v. State PLD 1971 Kar.
299. It is a mere fabrication. Concluding his arguments he submitted that the whole case is full of doubt, therefore, its benefit must go to the accused.
10. We have given our careful consideration to the arguments advanced by the learned counsel for the appellant in support of his appeal but we think none has any merit. As to the illegality of the investigation, it is true that the initial report made by Sardar Muhammad P.W. On 3-1-1982 was about the disappearance of his nephew Altaf Muhammad deceased. None was charged therein for any mischief. No investigation into the case could be initiated unless permission had been obtained from the Magistrate as required under the law. It is in the evidence of Amanullah Khan P.W. Then S.H.O. P.S. Pabbi that on receipt of the complaint by Sardar Muhammad he deputed Muhammad Mahboob I.H.C. With an application to obtain the necessary permission from the Magistrate for enquiry under section 156(3), Cr.P.C. And the said Muhammad Mahboob returned to the P.S. At 1615 hours after obtaining the necessary permission. As against the above, Ghafar Ali Khan, A.S.I.
P.W.12 admitted at the trial that he received information about the disappearance of Altaf Muhammad at 11.00 a.m. This information had been sent to him by the S.H.O. And in fact he received the application and order obtained thereon for enquiry under section 156(3), Cr.P.C. At 11.00 a.m. In the Bazar. Though the statements of these two witnesses are discrepant as to the time of permission, but we think it would hardly affect the investigation, because it is a mere irregularity and it does not affect the jurisdiction of the trial Court. Reliance in this respect is placed on Salah-ud-Din v. The Crown PLD 1956 Lah. 87, followed by a Division Bench judgment reported in the case of Mst. Sadan v. State PLD 1965 B J 12. His Lordship in the former judgment held:- "The conviction or acquittal of an accused person does not depend upon the question what particular officer actually conducts the investigation which results in his trial. The case is determined on the evidence that is given at the trial against an accused person, and the question whether that evidence has in the first place, been collected by an officer not authorized to do so is of very minor importance and does not really affect the result of a trial."
11. As for the inadmissibility of the F.I.R., as the evidence exists, it cannot be disputed that the Murasila Exh.
PA/1 was drawn after the investigation and we have no cavil with the authorities cited by the learned counsel for the appellant. Be that as it may, we think that the learned counsel while disputing the evidentiary value of the F.I.R. Has conveniently forgotton one distinguishing feature in this case and that is, that in fact the investigation agency was for the first time set in motion when a report about the disappearance of the deceased was submitted by Sardar Muhammad P.W. Though in the said report neither any allegation about the commission of an offence was made nor anybody charged but all the same, for all intents and purposes, it was the first information which alerted and prompted the police to probe into the matter. The Murasila Exh.PA/1 on the basis of which the alleged F.I.R. Exh. PA was drawn, in fact was recorded during the investigation and that too at the instance of the appellant. This Murasila, we think, in the circumstances, is not better than the statement of the appellant before the police under section 161,Cr.P.C. Therefore, it can legitimately be said that in fact the F.I.R.
In this case was the complaint filed by Sardar Muhammad P.W. Which is Exh.PA/2 and if that be so, the objections of the learned counsel for the appellant as to the inadmissibility of the F.I.R. Falls to the ground and it is treated as such.
12. As to the genuineness and authenticity of the confession recorded on 7-1-1982 and later on retracted is concerned, it too would not prevail with us. It is true that in this case the appellant was arrested on 3-1-1982 and according to Ghafar All P.W. During interrogation he confessed his guilt before him and then led him to the spot where on his pointation the dead body of the deceased was recovered and that on the same day the appellant in custody led the police party consisting of Amanullah Khan S.H.O., Ghafar Ali A.S.I. And Amin Khan P.Ws. To his house where on his pointation a licensed pistol Exh. P/7, the alleged weapon of offence was recovered.
Similarly the Chappals and the Chadar of the- deceased and the three empties were also recovered on the same day i,e, 3-1-1982 which means that almost the whole investigation was complete and in the normal course the appellant should have been produced before the Magistrate for recording his confessional statement on the same day or at the most on the second day, but it is not so. We are alive to the legal proposition that a delay in recording confessional statement whether after 24 hours or 3/4 days renders the genuineness of the confessional statement, absolutely doubtful, moreso when it is retracted. We have also no reason to dispute the law laid down by the superior Courts in the cases cited before us at the bar in this case, but then the Supreme Court in the case of Syed Sharifuddin Pirzada v. Sohbat Khan PLD 1972 SC 363, has also held that:- "The fact that Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tutored. Remaining of accused persons for some time in police custody does not effect their judicial confessions", ' which we think is sufficient to rebut the contention of the learned counsel for the appellant but as the circumstances are, we are of the view that it would be in the fitness of things if the matter is examined in some more detail. Admittedly, the defence has brought nothing on the record that the appellant was not arrested on 3- 1-1982, did not admit his guilt before Ghafar All P.W. Soon after his arrest, did not lead the police to the place of occurrence where from the dead body was recovered at this instance or for that matter the pistol was also not recovered from his house at the pointation and instance of the accused. Had the above material not been collected by the investigating agency and the confessional statement recorded after four days, then we would have agreed with the learned counsel for the appellant in holding that the confession was as a result of coercion and torture and would have discarded the same without hesitation. But here the case is quite the reverse. In this case as stated earlier the entire investigation was complete, there was no other material to be collected, therefore, the production of the appellant before the Magistrate for recording his confession after about four days can be at the most termed as gross negligence on the part of the Investigating Agency and not that the confession was involuntary and not authentic. Yet another very strong circumstance which goes a long way into the genuineness of the confessional statement is that the same stands fully corroborated by the circumstantial evidence. The English version of the text of the confessional statement has been given by the learned Additional Sessions Judge in his judgment and we need not rewrite it, but would only refer to the operative portion of the same wherein the appellant stated:- {{URDU TEXT}} ' The above portion of the confession is self-contained. It shows the deceased going ahead of the appellant, the place of occurrence being situated in a depression, the type of weapon the appellant was armed with, the number of shots fired and the seat of injuries on the person of the deceased. Now if the above is read with the rest of the prosecution evidence, corroboration will be easily visible inasmuch as the perusal of the medical evidence and the pictorial Exh.PF shows that the deceased had two inlet wounds on the back portion of his head. This means that the appellant was following the deceased. The dimension of the two injuries, the recovery of two bullets from the skull of the deceased and the recovery of three empties from the spot would show that the shots were fired from a pistol and the fact that the appellant used pistol in the commission of the crime proved from the recovery of the pistol from his house at his pointation and the report of the Fire Arms Expert Exh.PH/3. The site plan Exh.PB prepared at the instance of the appellant also corroborates the confessional statement of the appellant that the place of occurrence is situated in a depression. The contention of the learned counsel for the appellant that the medical evidence and the confessional statement are at variance as to the number of shots fired by the appellant too has no force. There is no doubt that the deceased had two firearm injuries on his head but the recovery of the three empties near the corpse of Altaf Muhammad clearly indicates that he was fired at thrice, may be one of the shots had missed the target.
13. As to the omission to mention the recovery of the three empties, the Chappals and the Chadar of the deceased in the Murasila Exh.PA/1 and the inquest report Exh.PD is concerned, the same has no significance.
Though these recoveries do not find mention in either of the documents referred to above, but their recovery from near the dead body of the deceased has been proved through Mirzaman Lumbardar P.W.1 and Zainul Abidin P.W.2 who are the marginal witnesses of the recovery. Both the witnesses seemingly are independent and they have deposed that the recoveries were made in their presence. Even otherwise the failure on the part of the Investigating Agency to mention the articles in the two documents is a minor irregularity. Reliance in this respect is placed on Allah Bakhsh v. State PLD 1978 SC 171. Similarly no exception can be taken as to the recovery of the dead body of Altaf Muhammad and that of the pistol Exh.P/7. These recoveries have been made at the instance and pointation of the appellant who soon after his arrest led the police party first to the place of occurrence where the dead-body was recovered and then to his house where from the pistol was recovered.
The record shows that these recoveries were made without any difficulty and no hesitation has been exhibited by the appellant to lead the police to the two places mentioned above. Furthermore, both these places were such that they could be known to nobody else but the appellant. The place of occurrence is situated at a distance of four miles from the main village and its situation is such that in the ordinary course no person or for that matter the police would visit it unless led or directed by a person who has its exclusive knowledge. Reliance in this respect is placed on Abdus Samad v. The State PLD 1964 SC 167 and Allanditto v. The State 1968 SCMR 378. The recovery of the dead-body and the pistol has been witnessed by Zainul Abidin P.W.2 and Amin Khan P.W.7 respectively. There is nothing on the record to discredit the veracity of these two witnesses.
Therefore, the contention of the learned counsel for the appellant is repelled.
14. As for the question of sentence, we are of the view that the question of quantum of sentence was duly considered by the learned trial Court and we have no reason to arrive at a different conclusion and thus maintain the sentence imposed upon the appellant in this case. This appeal is therefore dismissed. The revision petition No,80/83 also fails and is hereby dismissed.