IFTIKHAR MUHAMMAD CHAUDHRY, J.- Muhammad Yousuf son of Gul Hassan has been convicted and sentenced under section 302 PPC for life imprisonment and fine of Rs. 20,000/- and in default of payment of fine to further undergo two years R.I. By Additional Sessions Judge-I, Quetta vide impugned judgment dated 31.8.1991.
1. Briefly stating the facts of prosecution case are that on 8.10.1989 Abdul Razzaq lodged report with Civil Lines Police Station Quetta stating that he is employed in WAPDA as Welder and his younger brother Muhammad Irfan was learning work with him, he left his work at 1-30 p.m. And by a local bus went home, whereas he himself came home on his own motorcycle. At about 2-00 P.M. When he was taking his luncheon, it was informed by Akhtar son of Habib who is also his neighbour that his brother is lying injured on the back side of cabin at joint road, as such, complainant went there and saw his brother lying injured at the place which was pointed out by aforesaid person.
The complainant observed injuries on left side of the chest below the ribs, however, he was shifted to hospital. In view of above facts FIR Ho. 165/89 was registered at Civil Lines Police Station, Quetta under section 307 PPC but as injured Muhammad Irfan succumbed to the injuries, therefore, offence was altered to 302 PPC. The investigation of the case was taken in hand by Muhammad Ayaz, Sub-Inspector, Civil Line Police Station who recorded Fard-e- Biyan Ex.P/A of complainant and handed over dead body of deceased to heirs without autopsy in pursuance of order passed by S.D.M. Quetta. The bloodstained clothes worn by deceased were taken in possession vide Fard Ex.
P/B, statement of witnesses under section 161 Cr.P.C, were recorded and on 15.10.1989 arrested co- accused Ghulam Rasool under section 54 Cr.P.C, and on his information and pointation accused Muhammad Yousuf was arrested on 23.10.1989.
Muhammad Yousuf pointed out the place of occurrence to investigating officer who prepared sketch of site plan, subsequently accused also led the police for recovery of knife which was taken in possession vide Fard Ex.P/D and knife was sealed in a parcel. During investigation accused expressed his inclination to make statement under section 164 Cr.P.C, as such he was produced before Magistrate on the following date i.e. 24.10.1990 and thereafter other formalities were completed and challan was submitted against appellant as well as Ghulam Rasool under section 302/34 PPC.
2. The trial court framed charge against accused on 14.2.1990 to which he did not plead guilty and claimed trial. During trial prosecution produced following witnesses:- PW-1, Abdul Razzaq, complainant.
PW-2, Nazir Muhammad who prepared sketch of site plan on pointation of investigating officer Ex.P/B, PW-3, Dr. Abdul Sattar who issued medical certificate regarding external examination of dead body of Muhammad Irfan Ex.P/D, PW-4 Ahmad Yar, witness of inventory Ex.P/D dated 27.10.1989 relating to production of knife by accused to police and PW-5 Sher Ahmad witness of inventory for taking clothes of deceased produced by complainant to investigating officer on day of incident vide Ex.P/E and Shalwar and Kamiz and Sweater Article 2, PW-6 Zahir Kasi who recorded 164 Cr.P.C, statement of appellant Ex.P/F PW-7 Yawar Arshad, he was also arrested on suspicion by police, PW-8 Muhammad Ayaz. Investigating officer who produced Ex.P/8-A sketch of site plan, prepared on pointation of appellant, besides two other site plans Ex.P/8-C and P/E, chemical examiner's report Ex.P/8-D, challan Ex.P/8-F.
The statement of accused under section 340(2) as well as 342 Cr.P.C, was recorded in which appellant has shown himself to be innocent and not involved in the commission of offence. The appellant did not produce any defence evidence, whereas co-accused Ghulam Rasool besides his own statement also produced two defence witnesses.
3. The trial court on completion of trial passed impugned judgment whereby accused was convicted and sentenced as mentioned in above paras, whereas co-accused Ghulam Rasool was acquitted from the charge.
4. Raja Rab Nawaz, learned counsel appearing for appellant contended as under:- 1) 'The confessional statement of accused is neither true nor given voluntarily.
2) Recovery of knife has not been proved against appellant by prosecution because evidence to this effect is not confidence-inspiring.
3) Injuries or person of deceased Muhammad Irfan were not in conformity with the prosecution witnesses as well as medical certificate.
4) Prosecution case is full of doubts as such appellant be acquitted while extending benefit of doubt to him.
5. On the other hand, Mr. Salahuddin Mengal, learned Assistant Advocate-General contended as under:-
(1) The confessional statement made by accused is true and voluntary.
(2) Recovery of knife has been proved by prosecution on basis of independent evidence, as such no doubt can be expressed in this behalf.
(3) Injuries recorded in medical certificate pertaining to body of deceased is quite in conformity with evidence available on record.
(4) Prosecution has proved its case by producing best kind of evidence leaving no doubt of whatsoever nature.
6. We have heard both the learned counsel at length and with their assistance record of the case has also been perused carefully.
7. The accused was undoubtedly arrested on 23.10.1989 whereas his confessional statement was recorded by PW- Zahir Kasi on following date i.e. 24.10.1989. Raja Rab Nawaz controverted this fact and stated that appellant was in custody of police with effect Arshad. We have carefully examined the statement of witness who stated that alongwith him some other boys were arrested by police on suspicion for the purpose of investigation on 8.10.1989, but he does not say that accused Muhammad Yousuf was also with him in police custody with effect from the date of incident.
Similarly we have examined statement of investigating officer which also confirmed that accused Muhammad Yousuf was taken in custody by police on 23.10.1989. Accused Muhammad Yousuf also made statement on oath before trial court but he had not contended that he was in police custody prior to 23.10.1989. Raja Rab Nawaz attempted to argue that confessional statement of accused has been procured by police after subjecting him to torture for so many days. But unfortunately no material has been brought on record to successfully establish this plea. The learned counsel also stated that according to PW- Zahir Kasi he is not" sure whether investigating officer was present in this court when he recorded confessional statement of accused. Therefore, according to counsel this creates doubt in favour of accused to the effect that in presence of police his statement was procured. It may be seen that no doubt PW-6 in his testimony before court expressed that he is not aware whether investigating officer was present in his court or not. However, accused himself had also not complained about the presence of investigating officer at the time of recording statement, rather his version under section 340 Cr.P.C, was that Magistrate gave him Rs. 50/- and asked him to confess the guilt. Had the accused stated that due to fear of police he was compelled to make confessional statement, in that case, argument of counsel would have carried some weight. In the same context he further contended that confessional statement has been retracted by the accused Muhammad Yousuf therefore, same cannot be made basis for sustaining conviction.
Moreover, confessional statement should either be accepted or rejected as a whole. To substantiate his stand, reliance was placed on "Wali Muhammad and others Vs. State" reported in 1985 P.Cr.L.J, p. 756, "Rasool Bakhsh-appellant Vs. State-respondent" 1974 P. Cr.LJ, p. 325, 1983 SCM R p. 1292, PLD 1973 Lahore p. 714.
Whereas on the other hand, Mr. Salahuddin Mengal A.A.G, urged that authorities cited by counsel are not attracted and applicable on the facts and circumstances of present case. According to him court is competent to base conviction solely on confessional statement if it is shown that confession is true and made voluntarily and fairly. To substantiate his stand he also relied on judgments reported in SCM R 1980 p. 937 and SGMR 1969 page 442.
9. We have considered this aspect of the case, broad line principle regarding accepting or rejecting of retracted confessional statement was laid by Honourable Supreme Court in case of "Min Hun alias Gul Hassan Vs. State" reported in PLD 1964 Supreme Court p. 813. Relevant para is reproduced as under: - "As for the confessions the High Court it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra-judicial could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well-settled that as against the maker himself his confession, judicial or extra-judicial whether retracted or not retracted 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 an entirely different question , which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, CJ. In his commentary on the law of Evidence at page 168 (Vol.1)" it is a settled-rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is 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 and satisfy itself fully that the confession cannot but be true."
The aforesaid principle of law was re affirmed by Supreme Court in the case reported in 1983 SCM R p. 1292 which has been relied upon by the appellant's counsel.
Keeping in view the facts and circumstances of the case, we are inclined to hold that trial court rightly considered confessional statement of appellant true and voluntary, and has rightly based conviction on it. In addition to this there are other piece of evidence which corroborates the confessional statement of accused. In this behalf sketch of site plan Ex.P/8-B and C, can be referred because after his arrest accused pointed out to investigating officer the place where offence was committed by him and on his pointation aforesaid site plan was prepared and same was produced in court by PW-8 Muhammad Ayaz. Surprisingly on this point his statement was accepted because no question was put to him. Likewise, recovery of knife cannot be doubted because accused led the police party for recovery of the same which was accordingly effected in presence of civilian witnesses. Raja Rab Nawaz contended that recovery of knife is doubtful because in Fard Ex.P/D it is mentioned that knife, the weapon of offence was produced by accused from the roof of the house of his aunt, whereas PW-4 Ahmed Yar stated that recovery was effected from the roof of the house of his father. As such this piece of evidence cannot be used against accused. We have considered objection of learned counsel. It may be seen that defence counsel in lower court has not clarified that the two house named above are situated at different places , there can be possibility that in the same house aunt and father of accused might have been living.
Even otherwise, contradiction is not glaring and material in its nature. As such this evidence can also be used as corroborative piece of evidence against accused.
The learned counsel also contended that prosecution was under obligation to record confessional statement of accused within 24 hours after his arrest, in this behalf he relied on authority which has been noted above (PLD 1973 Lahore p. 714).
It may be seen that in present case statement of accused under section 164 Cr.P.C, was recorded within 24 hours after his arrest because appellants' counsel failed to show any material on record to prove that accused was in police custody from the date of incident. Even otherwise there is no hard and fast rule that prosecution necessarily produce accused for making confessional statement within shortest possible time. In this behalf it is important to mention that in order to avoid any doubt regarding admissibility of confessional statement efforts should be made for producing the accused before Magistrate, if he is ready and willing to make such statement freely and without any coercion and inducement as early as possible. However, it depends on attending circumstances and facts of such case, that what should be minimum period for recording of confessional statement. In this behalf in case of "Shaukat Saeed Vs. State" reported in PLD 1978 Quetta p.1, it was ruled as under:- As far as I understand the law relating to delay in recording of a confession, I must state that the rules of admissibility prescribe no limit in regard to the time of detention preceding the recording of the confession. I may also state that getting a confession recorded is an intimate function of the police during the investigation of a case, and if section 167 of the Code of Criminal Procedure allows a maximum period of days for completion of investigation, an inference may be drawn that for the mere fact of the confession having been recorded after 24 hours of detention would not make the confession inadmissible. However, a wealth of case law has grown over the years which cast a duty on the courts to consider factual aspects and circumstances attending the recording of confessions often such circumstances may appear to render even confession recorded within less than 24 hours of the arrest of the accused inadmissible, and conversely confession recorded after substantial time may still be relied upon. No confession can be ruled out solely on the ground of delay except by reference to the other evidence attending the confession. No doubt confession obtained after a long period of detention in police custody have rightly been looked upon with suspicion and that casts a duty on the court to scan the confession and other evidence deeper and to look for any other evidence which may taint the confession itself, but surely a short period of detention in police custody for 24 hours preceding the recording of confession would not make it inadmissible.
In this context I may also refer a Division Bench Judgment in the case of Muhammad Karim Vs. The State (I) In that case the confessional statement was recorded after 5 days of the accused in police custody and their Lordships of the Peshawar High Court relying on the Supreme Court case of Sohbat Khan concluded that the mere facts of the accused being in police custody for 5 days before the confession would not raise a presumption that the confession was product of inducement, threat or promise.
On a careful consideration of all the aspects of the proposition I am of the view that the question referred to the Full Bench must be answered in the negative. I would however, enter a caution that every confession is to be considered on its merits in the light of surrounding facts and circumstances and the courts have to take all such circumstances into consideration. The mere fact of delay beyond period of 24 hours cannot be considered in isolation."
3. The next question for consideration would be whether injuries noted in medical certificate are in conformity with the statement of witnesses. To resolve this controversy it is imperative to reproduce injuries herein below:-
1. Incised wound on the left side of chest 1" x 1-1/2" muscle deep.
2. Stab wound on the left side of chest of cardial region.
Raja Rab Nawaz argued that complainant Abdul Razzaq in his Fard-e-Biyan i. e. Ex.P/1 contended that his brother Muhammad Irfan had injury on below left ribs and he had not specified that there were two injuries on this side. Similarly inquest report, according to learned counsel, does not indicate that there were two injuries noticed and recorded by investigating officer when he had seen deceased -in hospital. In this context we have seen the inquest report available on record, the contents whereof indicate that there was blood-stained wound on the chest towards left side below the ribs and blood was oozing from it. As inquest report has not been exhibited, therefore, without asking explanation from investigating officer, it is difficult to observe that deceased had received one or two injuries. However from PW-Dr. Abdul Sattar's statement it can be inferred that there was one major injury and perhaps during causing the same a stab wound was also inflicted on the same side of the chest. As such there was no inconformity between medical certificate Ex.P/C as well as statement of complainant Abdul Razzaq (Fard-e-Biyan Ex.P/D).
11. Raja Rab Nawaz lastly contended that case of prosecution is full of doubts, as such benefit of doubt may be extended to --accused. We have discussed his contentions one by one, and we failed to understand that due to which contention it has been inferred by him that doubt has arisen in the case of prosecution. The facts and circumstances indicate that cold Mood murder erf an innocent person without any justification has been committed. Therefore, lower court has rightly awarded adequate punishment to accused.
12. For the foregoing reasons, we see no force in the appeal, which is accordingly dismissed.