' SH. RIAZ AHMED, J.---This appeal through leave of this Court is directed against the judgment and order dated 16-11-1994 whereby an appeal preferred by the appellant assailing his conviction and sentence on the charge under sections 302, 201 and 420 read with section 34, P.P.C. Was dismissed and the sentence of death awarded to the appellant on the charge under section 302, P.P.C. Was maintained and the reference made by the. Trial Judge under section 374, Cr.P.C. Was answered in affirmative while conviction under section 201, P.P.C. Was also maintained, but the conviction under section 420, P.P.C. Was set aside.
2. The prosecution case against the appellant was that on the morning of 8-8-1990 deceased Muhammad Hussain, a retired Divisional Forest Officer left his house, but did not return till late in the night. Members of his family started his search and his brother Umer Hayat informed Humayun Khan about the disappearance of the deceased and thus both Umer Hayat and Hamayun Khan also started a search for the deceased. On 9-8-1990 in the morning, Humayun Khan went to the shop of Haji Noor Muhammad, father of Fazal Mahmood appellant to make inquiries about the whereabouts of the deceased. Haji Noor Muhammad informed that on the preceding day the deceased had come to his shop and had deputed the appellant to collect a sum of Rs,35,000 from Umer Bakhsh. The appellant returned without the money. The appellant was then sent to the shop to Shah Sultan P.W. From where he succeeded in collecting Rs,58,000 which the appellant handed over to the deceased and after the receipt of this amount the deceased left his shop leaving his bicycle. The disappearance of the deceased coupled with the information disclosed by Haji Noor Muhammad led Humayun Khan to lodge a report at Police Station Kohat City where this information was recorded in daily diary of the police station. On the basis of this information, Haji Noor Muhammad and Fazal Mahmood appellant were associated in the investigation. In course of investigation, Farid Khan, A.S.I. Police Station Jungle Khel, Kohat received information that some foul smell was emitting from a drum placed on the road side in Sector 10, Kohat Development Authority Township. The police proceeded to find out the nature of the smell and when the drum was opened a dead body with two injuries on the head was found therein. Rs,555 and a telephone bill in the name of the deceased Muhammad Hussain was also found during the search of the dead body. A complaint was drafted by Farid Khan A.S.I. And was sent to the police station for registration of a case and on the basis of the said complaint, a formal F.I.R. Was scribed in the police station. Sum of Rs,555, a pen, telephone bill and a pair of spectacles found on the dead body were taken into possession. The dead body was sent to the hospital for autopsy and one firearm entry wound on the left temporal region with mark of charring was found. An exist wound was also found behind pina of the right ear. The death in the opinion of the doctor occurred due to injury on brain leading to cardio-respiratory arrest. Gul Muhammad S.H.O., Police Station Jungle Khel, Kohat arrested the appellant, who confessed his guilt, and thus, he was produced before Mr. Asmatullah Khan, Magistrate for recording his confession. On 13-8-1990 the appellant made a confession, which was recorded by the said Magistrate. The appellant in his confession further disclosed that Masood Ahmed was also a party to the crime. Masood Ahmed was also arrested and he also confessed the guilt and offered to make a confession, and thus, he was also. Produced before the same Magistrate, who recorded his confession on 15-8-1990. In these circumstances, the appellant was sent up to face his trial.
3. The prosecution with a view to establishing its case has relied upon the confession and the circumstantial evidence corroborating links in the confession. Before proceeding further, it will be apt to reproduce the salient features of the confession. The appellant stated as follows:-- "I have a General Merchant Store in the Main Bazar Kohat. I am indebted to Muhammad Hussain alias Abu Master, a retired Divisional Forest Officer for Rs,30,000. The deceased used to visit me time and again to demand the return of the amount. On the fateful day, the deceased visited my shop and I told him that I would pay him the loan. The deceased had a bicycle, and thus, I asked him to accompany me and we both riding the bicycle went to our home in Mohallah Niazi, Kohat. I made the deceased to sit in upper portion of the Baithak and I asked the ladies to prepare tea for the guest. In the meantime I proceeded. To Bokhari Medical Store and purchased four intoxicating tablets. On return to the house, I administered the same to the deceased in a cup of tea. After 15/20 minutes of taking tea, the deceased became unconscious. I took his national identity card from his picket and came to my shop on the bicycle of the deceased. At that time, my father Haji Noor Muhammad, Haji Hanif and Bilawar were present. I told them that I was proceeding to the shop of Umer Bakhsh for the recovery of Rs,35,000 on behalf of the deceased for which the latter had requested me to do so. When I went to the shop, I found Qadir Bakhsh, brother of Umer Bakhsh present and I told him that Muhammad Hussain had asked me to receive the loan of Rs,35,000 from his brother Umer Bakhsh on his behalf. Qadir Bakhsh informed me that he had no money at that time and few days before he had discussed the settlement of loan with the deceased. I then came back to my shop and then to my house and found Muhammad Hussain still unconscious. I then proceeded to the Suzuki Stand and hired a Suzuki No, KA-1078 from a driver with whom I had good relations. I told him that I needed the Suzuki because I wanted to go with my family. I then went to the shop of shah Sultan situated in Lakkar Mandi, Kohat, where his nephew was present. I showed the national identity card of the deceased to him and asked that the deceased, who is friend of his uncle Shah Sultan, was in need of Rs,58,000 and that I had come to receive such amount on behalf of Muhammad Hussain deceased. The nephew then rang up his uncle Shah Sultan, who instructed him on telephone that whatever money was available should be paid to him. Thus, the nephew of Shah Sultan paid me Rs,58,000 and then I came to Bazar and purchased few empty bags from a shop. I then took my friend Masood Ahmed with me and we both proceeded to our house. Masood Ahmed had prior knowledge of the scheme. I then with the assistance of my friend Masood Ahmed put the deceased in an empty bag and then we left for our garage by means of the Suzuki, which was situated in the New Khan Bus Stand Kohat. I threw the bag in the garage and then I dropped my friend Masood Ahmed at King Gate, Kohat City. I then handed over the Suzuki to the driver and thereafter, I went to my home and picked my 30-bore pistol and proceeded again to the garage where I killed the deceased with the said pistol. At 1.00 p.m. I came back to my house and kept the weapon of offence and the money which I had received from the nephew of Shah Sultan. At about 2.00 p.m. I rang up the family members of the deceased Muhammad Hussain telling them that the deceased had gone to Peshawar and would be returning the next day and that his bicycle was lying near the shop of my father Haji Noor Muhammad. At about 6.00 p.m. I was present in my shop when nephew of the deceased came to me and I handed over the bicycle of the deceased to him. Then I again joined my friend Masood Ahmed and we both went to the Suzuki Stand and I hired another Suzuki and we went to our house, took an empty drum, put the same into the suzuki and again proceeded to the garage where I had killed the deceased. We put the dead body into that drum, filled its outer portion with another empty bag. Masood Ahmed suggested to throw that drum in some secluded area of Kohat Development Authority. Thus, we proceeded to that area and after entering its first gate, we threw the drum containing the dead body of the deceased and came back to the King Gate from where we parted from each other."
4. The confessional statement of Masood Ahmed was recorded two days after the confessional statement of the appellant was recorded. He admitted to have accompanied the appellant to the upper portion of his Baithak where the deceased was lying unconscious and that he provided assistance to the appellant in putting the deceased into a bag and then into the Suzuki pick-up in which the bag was transported to the garage of Fazal Mahmood appellant.
5. After his arrest the appellant in police custody led to the recovery of a blood-stained brick from the garage/godown and the same was witnessed by Javed Iqbal P.W.14. The appellant also got recovered Rs,58,000, 30-bore pistol, bandoleer and spare charger with 25 live rounds of 32-bore from his house. Awwal Zaman P.W.8 testified the recovery of dead body of the deceased from the drum lying in the Kohat Development Authority Township Scheme. Muhammad Riaz alias Jajo P.W.3 and Mushtaq Ahmed P.W.4, the owners of the Suzuki pick-ups hired by the appellant also appeared in support of the prosecution case to testify that on the fateful day the Suzuki pick-ups were hired by the appellant. In addition to this evidence, the prosecution with a view to proving the links in the confessional statement of the appellant, produced Haji Muhammad Hanif P.W.6 who testified that the appellant was present at the shop of his father on the morning of 8-8-1990 and his having gone to fetch money for Muhammad Hussain deceased. Qadir Bakhsh P.W.7 deposed that the appellant visited his shop for collecting Rs,35,000 for the deceased. Haji Shah Sultan P.W.11 and Fazal Rehman P.W.12 deposed that Rs,58,000 were given to the appellant for delivery to the deceased and the identity card of the deceased produced by the appellant was kept by Fazal Rehman.
6. The learned counsel for the appellant in the first instance brought the confession of the appellant under scathing criticism and it was contended that the confession was neither voluntary nor true. It was urged before us that the confession was recorded after two days of the arrest of the appellant and the necessary links in the confessional statement had not been corroborated and therefore the confession is not true. We have carefully examined the confessional statement as well as the evidence adduced by the prosecution to corroborate it. After careful perusal of these facts, we are of the view that the confession in this case is true and voluntary. No doubt it was retracted by the appellant at the trial, but in material respects it stands corroborated by other evidence produced by the prosecution. It was strenuously argued that the confession made by co-accused Masood Ahmed cannot provide corroboration to the confession of the appellant because no question in his statement under section 342, Cr.P.C. Was gut to the appellant in this regard. There is force in this argument inasmuch as it was incriminating piece of evidence and the appellant ought to have been confronted with it if it was intended to be used as corroborative evidence, and thus, we are of the view that the confessional statement of Masood Ahmad cannot corroborate the prosecution case against the appellant. Conversely seeking, the confession of the appellant can be used against Masood Ahmed because the latter was confronted with the incriminating evidence against him in the form of the confession of the appellant. It was also contended that it was imperative on the part of the prosecution to have produced Haji Noor Muhammad father of the appellant, who is alleged to have seen the accused and the deceased together in the shop on the morning of 8-8- 1990 and the prosecution must suffer for not producing him although he was cited as a witness.
The contention has no force because Haji Noor Muhammad father of the appellant was rightly given up by the prosecution because no father is expected to testify against his son. It was further argued that the amount of Rs,58,000 recovered by the police on the pointation of the appellant and the identity card of the deceased produced before the police were not exhibited in evidence, and therefore, the confession of the appellant loses its significance. It was further argued that the shopkeeper from whom the appellant had purchased intoxicating drug was also not examined at the trial. It was also urged before us that no empty was recovered from the godown and although blood stained brick was recovered, no blood was found in the godown, and therefore, the necessary links in the confession of the appellant have not been proved, and therefore, the conviction on the basis of retracted confession would not be in consonance with the law on the subject.
7. After anxious consideration, we are of the view that merely because the confession was recorded two days after arrest of the appellant would not render it involuntary. The statement of Mr. Asmatullah, Magistrate P.W. 21 goes a long way to show that all necessary formalities as enunciated under section 364, Cr.P.C., were complied with. The Magistrate was cross-examined at length and his statement clearly shows that the appellant had voluntarily made a confession and not under any coercion, duress or undue influence. To the contrary the confession is consistent with other circumstantial evidence led by the prosecution in the light of the testimonies of Haji Muhammad Hanif, Qadir Bakhsh, Haji Shah Sultan and Fazal Rehman. These witnesses are related to the deceased as well as the appellant and are interested and in fact they confirmed the material facts as narrated by the appellant in his confession. The statement of Haji Muhammad Hanif, who is related to the deceased as well as the appellant was present on the shop of the father of the appellant on the day of the occurrence and he had seen the appellant at the shop of his father on the morning of the fateful day. Although he expressly denied to have seen the deceased on the shop of the father of the appellant, but his statement at least proves two facts: first, that the appellant was present at the shop in the morning; and two; that he had taken the bicycle of the deceased and had proceeded on it and after a while had returned and left the bicycle at the shop of his father. The visit of the appellant to the shop of Qadir Baksh P.W.7 to collect Rs,35,000 for the deceased is corroborated by the statement of the said P.W. Qadir Bakhsh admits that he owed Rs,60,000 to the deceased and at the time of the visit of the appellant, he had no money with him to meet the demand of the deceased. As already stated above, Qadir Bakhsh is related to the deceased as well as to the accused because both of them happen to be paternal cousins of Qadir Baksh. The visit of the appellant to the shop of Haji Shah Sultan is confirmed by Haji Shah Sultan and Fazal Rehman, his nephew. Haji Shah Sultan has confirmed appellant's confession that on the day of occurrence the appellant had gone to the shop of Haji Shah sultan for the recovery of Rs,65,000, which was part of debt of Rs,200,000 owned by Haji Shah Sultan to the deceased.. Fazal Rehman P.W. Nephew of Haji Shah Sultan was present at the shop, who called his uncle at the telephone and after receiving positive instructions gave Rs,58,000 to the appellant and the identity card produced by the appellant was kept by Fazal Rehman. Haji Shah Sultan P.W. Supported the statement of Fazal Rehman insofar as the telephonic conversation was concerned. The non- production of Rs,58,000 does not at all affect the prosecution case advesely. Similarly, the non- production of the identity card does not go to the root of the matter so as to render the confession untrue.
8. The use of two Suzuki pick-ups in the commission of crime is supported by P.Ws. Riaz and Mushtaq Ahmed, who had lent the Suzuki pick-ups to the appellant. Thus, the Suzuki pick-ups were used by the appellant in carrying the unconscious deceased Muhammad Hussain from the Bathak to the garage and for transporting the dead body of the deceased after he was done to death.
Both these witnesses corroborate the confessional statement of the appellant. The venue of the occurrence was also corroborated by the appellant himself when in police custody he pointed out place of occurrence to the police from where blood stained brick was recovered. The chemical examiner reported the brick to be stained with blood while the Serologist opined it to be human blood. The absence of blood in the garage is explained by the facts that the deceased was shot in the head and had been put in a bag and the blood does not profuse in large volume from the head as compared to other parts of the body. The dead body had been wrapped in bags and the blood emitted must have been absorbed by such bags. The contention of the appellant also stands corroborated by the recovery of dead body lying in a drum in the Kohat Development Authority Township Scheme and the same was discovered by Farid Khan A.S.I.
9. To sum up, the confession stands corroborated through the statements of reliable witnesses, who are related to both the appellant as well as the deceased. The use of the bicycle of the deceased by the appellant is also proved and his visit to the shop of Qadir Baksh and Haji Shah Sultan, the hiring of the two Suzuki pick-ups, pointing out the venue of occurrence, the mode of murder and the disposal of dead body stand amply corroborated. It is further pertinent to mention that both the appellants and the deceased are also related inter se and there was hardly any material on the record nor was it suggested that they were inimically disposed towards each other.
10. Lastly it was argued that the retracted confession could not form basis of conviction. The argument is without any substance. The confession of crime by a person, who has perpetrated it, is usually outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. To arrive at a conclusion as to whether a retracted confession may form basis of conviction if believed to be true and voluntarily made, the Court has to take into consideration not only the reason given for making the confession or retracting, but the attending facts and circumstances surrounding the same. There can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. However, the prudence requires that by way of caution, to convict a person on the basis of retracted confession, corroboration must be sought. This, however, does not necessarily mean that each and every circumstances mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that corroboration must come from facts and circumstances discovered after confession was made. We are fortified in this view by judgments of this Court reported as State v. Minhum (PLD 1964 SC 813), Joygun Bibi v. State (PLD 1960 SC (Pak.)
313) and by judgments of the Indian Supreme Court reported as Subramania v. State (PLD 1958 SC (Ind.) 254) and Sarwan Singh v. State (PLD 1957 SC (Ind.) 555).
11. For the foregoing reasons, we do not find any substance in this appeal. The same is hereby dismissed.