1. ' IFTIKHAR MUHAMMAD CHAUDHARY, J.--- Appellant Muhammad Ibrahim, has been convicted under section 302, P.P.C. And sentenced to capital penalty, vide impugned judgment, dated 28th November, 1997, subject to confirmation or otherwise, by' this Court. As such, we have proposed to dispose of Murder Reference No,21 of 1997 and Criminal Appeal No,347 of 1997, preferred by convict against his conviction and sentence, by this judgment.
2. ' Precisely the prosecution case is, that on 17th November, 1996, P.W.2 Haji Shah Karim, vide Fard-e- Biyan (Exh.P.2/A) informed the Tehsildar, Nushki, that when in the morning time, he came to Bazar, he was informed that a dead body of an unknown person is lying in Doso Nalla, Nushki. After registering the case, the dead body was taken into possession. Thereafter the same was sent for medical examination to hospital and as the dead body was not identified, therefore, it was kept in Mortuary. During investigating, it was revealed that deceased's name is Dad Karim. As such, on 18th November, 1996, Saleh Muhammad brother of deceased, resident of Mastung, identified the dead body, which was handed over to him, after observing formalities. During investigation, convict was arrested on 28th November, 1996. Subsequently on 12th December, 1996, he got recorded his confessional statement (Exh.P.5/B) before P.W. Nasrullah Khan, the Assistant Commissioner. On completion of investigation, convict was sent up to face trial before the Sessions Judge.
3. ' As he did not plead guilty to the charge, framed and read over to him on 22nd August, 1997, therefore, prosecution examined P.Ws. Dr. Abdul Sattar, Haji Shah Karim, Ali Akbar, Attaullah, Nasecbullah, A.C./M.F.C. And Fateh Khan. Thereafter, convict was examined under sections 342 and 340(2), Cr.P.C. Wherein he denied the prosecution case and pleaded innocence. However, no defence witness was produced.
4. ' Ultimately, on the conclusion of trial the learned Sessions Judge, Nushki, found the appellant guilty of the offence under section 302(a), P.P.C. And sentenced him to death, with fine of Rs,20,000.
5. ' Mr. Saleem Ansari, learned counsel for convict, contended that there is delay in recording the confession, as such, it cannot be used against the convict for recording conviction. He further emphasised that as confession has been retracted and there is no corroborative evidence, therefore, it was not safe and in the interest of justice, to rely on it. He further stated that no motive has been put up by prosecution therefore, accused is entitled for the benefit of doubt.
6. ' On the point of delay in recording the confession, learned counsel referred to PLD 1987 SC 96; ' With regard to non-disclosing of motive, he referred to 1995 PCr.LT 1037; and ' On the point of extending benefit of doubt, he referred to 1991 PCr.LJ 1645 and 1998 SCMR 32.
7. ' On the other hand, Mr. Ahmad Khan Lashari, learned counsel for complainant, argued that it was an unseen murder, therefore, initially on 28th November, 1996, accused was arrested from Mastung, under suspicion. He was then brought to Nushki, where the case was registered and after interrogation, it revealed that he is the person, who has committed the murder of Dad Karim, therefore, under these circumstances, delay per se, in recording the confessional statement, would not be fatal to the prosecution case. He referred to PLD 1978 Quetta 1, 1985 PCr.LJ 2375 and 1997 PCr.LJ 280.
8. ' Mr.. Abdul Karim Yousafzai, learned State Counsel, supported the contentions put forth by complainant's counsel.
9. ' We have heard the parties' counsel at length and have also thoroughly gone through the evidence available on record.
10. ' As it has been disclosed hereinabove that dead body of Dad Karim was found lying in Doso Nalla, unattended, which means, that at the time of commission of crime, incident was not witnessed by anyone. Inasmuch as, no crime weapon was recovered from the possession of accused.
11. Surprisingly P.W. Atta Muhammad, claims himself to have seen the accused, prior to the incident, on the board of a Bus, bounded from Dalbandin to Mastung, but after arrest of convict, no identification parade was managed through him. Thus, in absence of all these incriminating factors, the prosecution case mainly hinges on confessional statement of convict, medical evidence and his own statement under section 340(2), Cr.P.C. Which he got recorded to disprove the accusation.
12. 'It is to be observed that in criminal administration of justice, it is an ordinary practice that the Court first of all takes into consideration the ocular testimony of witnesses, if available and in absence thereof, the circumstantial evidence will be taken into consideration to determine; whether the accused facing trial is involved in the commission of crime or otherwise and if circumstances provide, some link of accused, then the confessional statement would be considered and if it has been retracted, then the Court is duty bound to search for independent supporting corroborative evidence to prove the guilt against accused. In the instant case, admittedly there is no ocular testimony of any of the witness, for the reason that dead body of Dad Karim was found lying unattended in Doso Nalla. However, after its medical examination by P.W. Dr. Abdul Sattar, it was kept in mortuary. It may be noted that when P.W. Fateh Muhammad visited the place, where the dead body was lying, he recovered certain articles, particularly, knife lying near the neck. During investigation it revealed that the deceased belongs to Mastung. Thus, from this angle, when investigation commenced, the Investigating Officer succeeded in establishing contact with the brother of deceased who accordingly came and identified the dead body on 18th November, 1996, as such, it was handed over to him. Later on during investigation at Mastung, appellant was arrested under suspicion, from the house of Muhammad Hassam on 28-11-1996, which he himself admits in his statement under section 340(2), Cr.P.C. After his arrest on 5th December, 1996, he made confessional statement, which now has been retracted by him, therefore, it would be seen; whether the confessional statement has rightly be used for awarding the capital sentence to convict, or not?
13. ' It may be noted that a careful scrutiny of the statement of P.W. Naseebullah, who had examined the convict under section 164, Cr.P.C. Indicates that he followed all necessary measures prescribed by law, to ascertain that appellant is making true and voluntary statement. In the text of confession, accused confessed that he is actually resident of Dalbandin. In connection with his business he went to Mastung. The house of his aunt is in Mastung. He was residing in the house of his aunt for the last two months, because he had given some money for the purpose of business to Muhammad Hassan, son-in-law of his aunt. In the house of his aunt, he developed friendship/relation with the daughter of his aunt namely Haleema. Haleema had already been engaged with Dad Karim son of Sher Dil, caste Shahwani, resident of Mastung, but Haleema had no liking for Dad Karim. He and Haleema wanted to many. For this purpose, to accomplish the object, it was necessary to remove fiance of Haleema from the way. He consulted with Haleema, and she also agreed to it. The marriage of Haleema and Dad Karim was fixed for 18th November, 1996. On this he went to Dalbandin, so that after having help of one or two persons, he can commit the murder of Dad Karim, in his house, at Mastung. He chalked out the plan with his brother Ismail, cousin Aslam (son of aunt) and another person Nefasoo to commit the murder of Dad Karim at his house in Mastung. During this time, he saw Dad Karim at Dalbandin, who had gone there to invite his relatives, to participate in his marriage. He and his companions started supervision of Dad Karim. In the evening of 14th November, 1996, they saw that Dad Karim had boarded in a Mini Bus.
14. They also boarded in the same bus. During journey, they had a chit chat with Dad Karim. At a distance from Nushki, Dad Karim wanted to get down from the bus, as he was intending to go to his relatives. He also invited them to accompany him. Therefore, they also got down from the bus. After covering some distance, he and his other companions jointly caught hold and fell down Dad Karim.
15. He gave blows with knife and also cut his throat and when they were assured that Dad Karim had died, they again came on the road and went back to Dalbandin by boarding on a truck. During cross-examined P.W. Naseebullah confirmed that on his enquiry, accused told him that he was not subjected to torture. He also stated that it is incorrect that due to torture accused gave the statement. The witness denied that accused was not produced before him, for recording confessional statement. Next question to the witness was put that the confession was recorded by his Reader, which he denied. It was also suggested to the witness that he handed over the convict to the same levies personnel, who brought him, but he denied this question as well. The trend of cross-examination on the statement of witness, suggests that the defence had taken different pleas, as it is indicative from the relevant portion of cross-examination, noted hereinabove. It is important to note that while recording statement under section 342, Cr.P.C. The appellant stated that it is not correct, I have not recorded my statement before the Assistant Commissioner, Nushki.
16. Whereas in his statement on oath, he deposed that he did not record confessional statement before the Assistant Commissioner. Further stateed that he was produced before the Assistant Commissioner, who obtained his signatures on the paper, again stated, that his thumb-impression was affixed, while he has not given any statement. On the basis of statement of accused on oath, it can safely be inferred that he was produced before the Assistant Commissioner, where he got recorded statement. As for as the plea of extracting confession due to torture is concerned that was not raised at all by him in his statement on oath. It means that he was not subjected to torture at all by the Investigating Officer otherwise, there was no impediment in his way to have taken this plea in his oath statement.
17. 'Now turning towards the objection of learned counsel for convict that there is delay in recording the confession. In this behalf, it is to be seen that per se delay in recording the confession itself, would not be sufficient, unless it is not established that accused has been subjected to torture or coercion. In this context, reference can be made to Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363. Even otherwise, no time has been prescribed for recording the statement of accused, either in the Code of Criminal Procedure or the High Court Rules and Orders, as it has been held in Shaukat Saeed v. The State PLD 1978 Quetta 1. No doubt in the judgment PLD 1987 Quetta 96 cited by learned counsel Mr. Saleem Ansari, it was held that confessional statement of accused recorded after five days of his arrest and no reasonable explanation of such delay was offered, same will be doubtful but in this judgment no definite rule of discarding the confessional statement if recorded with delay, has been laid down. With utmost respect, we would like to observe that at the time of hearing of that case, the judgment in the case of Shaukat Saeed which has been pronounced by three Judges of this Court, was not cited nor the principle of law laid down in this behalf by Honourable Supreme Court in the case of Syed ' Sharifuddin Pirzada was relied upon, therefore, we are inclined to hold that if the facts and circumstances of the case are sufficient to satisfy the conscience of the Court that the delay in recording confession statement was not intentional, but due to reasons, which can be noticed from record, then even if there is delay in recording the confessional statement and the accused has not established that he recorded statement under duress or coercion, there is no prohibition in accepting the retracted confession, provided other tests to accept the confession to be voluntary and true statement of fact, are fully satisfied. Thus, it is held that delay in recording the confession, in peculiar circumstances of the case, would not be sufficient to discard the same.
18. 'Now adverting towards the important aspect; whether the confessionals statement, which has been retracted, can be accepted without any independent corroboration? In this behalf, we would, first of all like to make reference to the case of State v. Minhum alias Gul Hassan PLD 1964 SC 813. In this report, the Full Bench of honourable Supreme Court, comprising of three Judges, laid down that retracted confession, whether judicial or extra-judicial, could legally be taken into consideration, against the maker of those confession himself and if the confessions were found to be true and voluntary then there is no need at all, to look for further corroboration. It was further observed that it is now well-settled that as against the maker himself, his confession, judicial or extra-judicial, whether retracted or not retracted, can under the law validly form a role 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 the given case the Court should act upon such a confession alone, is an entirely different question and relates to the main and fundamental value of the confession and not to its admissibility under the law. The Honourable Supreme Court in another .Case of Bahadur Khan v. The State PLD 1995 SC 336, took into consideration the principle discussed in the judgment, referred to hereinabove as well as in the case of Naqibullah and another v. The State PLD 1978 SC 21, and with reference to acceptance of retracted confession, opined as follows:-- "From the confession it is clear that while admitting the murder of Waris Khan it has been stated that as the deceased was not agreeable to take part of the money and the rest at a later date he started pelting stone upon his head and he sustained injury. As he apprehended that he would further injure him he gave an axe blow on his neck. Therefore, this part of the story should also be taken into consideration while relying on the confession of the appellant. Admittedly appellant has retracted from his confession should be accepted only if it is corroborated by clear cogent and independent evidence. Although there is no such provision to accept retracted confession on this basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reason given for retracting is pulpably false, absurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek some corroboration for retracted confession. The corroboration of such confession should be of material particulars, connecting the accused with the offence."
19. Thus, in view of the above principle of law, now it is well-recognized that to look forward for an independent corroboration on material particulars of retracted judicial or extra-judicial confession, is the rule of prudence, for the purpose of safe administration of justice, otherwise if the conscience of the Court is satisfied that the accused had made a confession voluntarily and true events have been narrated in the statement, there is no prohibition in accepting the same, even without corroboration, as it has been held in the case of Minhum alias Gul Hassan. Before applying the above test on the case in hand, it would be appropriate, at this juncture, to make reference to the injuries noted by P.W. Dr. Abdul Sattar, in the certificate which are reproduced hereinbelow:-- Injuries--
(1) An incised wound of about 6" x 2" x 1-1/2" horizontally in front of the neck with tailing to right side, the trechea is totally cut and the right juguler vein and right sternocheiclamostocid muscle is cut.
(2) An incised wound about 4" x 2" x 2" hotizontally on left side of back of the neck, the cervical vertebra are visible and one vertebra was partially cut.
(3) An incised wound about 4" x 2" x 2" in horizontal direction from medial to leteral atrenal area on the baca.
(4) Two lacerated wounds of about 1" x 1/2" on the base of left thumb. Duration About more than 8- 10 hours. Weapon Sharp.
20. Cause of death: In my opinion due to severe bleeding and due to cutting of trachea and neck vessels."
21. ' In the confessional statement, accused has stated that he gave knife blows on the person of deceased and also cut his throat. His this version gets corroboration from injuries Nos.1 and 2 and with regard to giving blows on the person of deceased, injuries Nos.3 and 4 can be referred. It may be noted that in cross-examination, no question was put to the doctor, with regard to the injuries which were noted by him on the person of deceased.
22. ' Likewise there is another important circumstance, which furnishes strong corroboration to the confession statement i,e, the arrest of accused from Mastung. In this behalf, his confessional statement may be referred, wherein he stated that he is resident of Dlbandin, but had gone to Mastung as he had given some money for business to son-in-law of his aunt whose name was disclosed by him as Hassan. In his statement on oath, the accused himself admits that on 27th November, 1996, he had gone to Mastung to recover the amount and he was sitting in the house of Muhammad Hassan, from where he was arrested. On our careful and independent appreciation of above referred pieces of evidence, we are fully satisfied to hold that accused has made a true and voluntary confession, in which, he has disclosed the motive as well, for the commission of murder, namely; that after developing relation with Haleema daughter of his aunt, he wanted to marry her, but as she was already engaged with Dad Karim, therefore, he planned to remove him from his way. Once the confessional statement is accepted to be true, then the motive, which has come through the same, is bound to be accepted.
23. ' There is also another piece of evidence, which has come on record through statement of P.W.
24. Attaullah that lastly he has seen the accused in the company of Dad Karim, but we ate not inclined to use this piece of evidence, because the Investigating Agency did not arrange identification test parade of accused through this witness, immediately after his arrest. Although in the Court P.W.
25. Attaullah has identified the appellant, but in our opinion it would not be safe to use this piece of evidence, because in presence cf true and voluntary confessional statement, which gets corroboration from the medical evidence as well as from the own statement of convict, there is no necessity to rely on any other piece of evidence, as it is also the recognized principle of criminal administration of justice that it is the quality and not the quantity of evidence, which can establish the guilt against accused, facing trial. Thus, for the foregoing reasons, appeal filed by appellant is dismissed. Murder reference sent by Sessions Judge, Nushki, is accepted. Consequently, the death sentence awarded to convict Muhammad Ibrahim by Sessions Judge Nushki, vide judgment, dated 20th November, 1997, is confirmed.