' MUNAWAR AHMED MIRZA, J.---Criminal Appeal No,312 of 1995 (Nabi Bakhsh v. The State and another) and Criminal Petition for Leave to Appeal No,144 of 1995 (Ghulam Haider v. The State and another) are directed against common judgment, dated 20-6-1995, passed by Balochistan High Court, Quetta.
2. Occurrence had taken place on 16-11-1990. Dead body of Lal Bakhsh, stab wounds on the body and sharp-edge cutting injury near neck, was found lying in a date-grove located at 3 K.M.
Towards north-east of Police Station Turbat. P.W.10 Muhammad Hassan Baloch, S.I.P., recorded Fard-eBian of Roshan Khan, uncle of deceased Lal Baksh providing information about occurrence, which was incorporated in F.I.R. No,82 of 1990 lodged with Police Station Turbat on 16th November, 1990 at 8-45 a.m. During investigation appellant Nabi Bakhsh, petitioner Ghulam Haider and accused Muhammad Khalid (since acquitted) were apprehended on 17-11-1990. Appellant Nabi Bakhsh gave confessional statement on 25-11-1990. Whereas confessional statement of petitioner Ghulam Haider was recorded on 26-11-1990. Recovery of crime weapon, chappel and other articles was also effected. After completion of investigation appellant Nabi Bakhsh, petitioner Ghulam Haider and acquitted co-accused Muhammad Khalid were sent up for trial before Sessions Judge, Turbat.
3. At the commencement of trial above-named three accused were indicted for causing murder of deceased Lal Bakhsh. They refuted the charge and pleaded 'Not Guilty'. Prosecution adduced ten
(10) witnesses to substantiate accusations against them. The accused were examined by trial Court under section 342, Cr.P.C., when they denied all the accusations and claimed to be innocent.
They also gave their statements on oath within the purview of section 240(2). Cr.P.C. In disproof of prosecution allegations on 10-10-1994. However, no defence evidence was led.
4. Learned Sessions Judge, Turbat, on appraisement of entire evidence on record found appellant Nabi Bakhsh and petitioner Ghulam Haider guilty for causing murder. Of Lal Bakhsh. Thus, on conviction under section 302/34, P.P.C. These two accused by means of judgment, dated 20-11-1994 were sentenced to imprisonment for life. Whereas co-accused Muhammad Khalid was acquitted.
5. Appellant Nabi Bakhsh and petitioner Ghulam Haider assailed above conviction and sentence by preferring Criminal Appeal No,4 of 1995 before Balochistan High Court. Complainant Roshan Khan also filed Criminal Revision Petition No,4 of 1994, seeking enhancement of sentence awarded to them. Both these matters were taken up together and eventually decided by the High Court through common judgment, dated 20-6-1995. Revision petition filed by Roshan Khan for enhancement as regards appellant Nabi Bakhsh was accepted and his sentence of life imprisonment was converted into penalty of death, whereas appeal filed by petitioner Ghulam Haider and petition for enhancement of his sentence were dismissed. Operative portion of impugned judgment is reproduced below:-- "Learned trial Court had believed the confessional statements and other evidence as brought on record by the prosecution. However, he passed sentence of life imprisonment most probably under the impression that no ocular evidence was available.
' As stated hereinabove we have no reason to disagree with the conclusions drawn by the trial Court. The accused persons had made confessional statements voluntarily and had given motive to commit murder which appears to be convincing because there was no previous enmity of the deceased with the accused persons. Furthermore, the fact that P.W.3 Abdul Ghafoor, who was a recovery witness was the cousin of the deceased, would not ipso facto render his testimony as unreliable.
' Next question would arise whether the punishment awarded would meet the ends of justice. Mr. Tariq Mehmood learned counsel appearing for petitioner in Criminal Revision for enhancement argued that the act of the accused persons was wanton and brutal. On the pretext of committing sexual intercourse with she-ass in fact, they wanted to commit sodomy with deceased Lal Bakhsh.
The deceased had resisted unnatural act upon which the accused persons instead of allowing him to go started inflicting him knife injuries causing his death. So much so that after receiving many knife injuries the deceased became unconscious but the accused persons in order to make it sure that he be dead cut his throat. Learned counsel submitted that it is not necessary in each and every case that eye-witnesses should be produced. If the Court is satisfied with the circumstantial evidence and believing the confessional statements as voluntarily made which otherwise are true in view of the circumstances of the case, then the ordinary punishment awarded would be death penalty.
' On the contrary Raja. M. Afsar, learned counsel for convicts submitted that nobody knows who inflicted the fatal blow and what was the role of convict Ghulam Haider and the third accused (Khalid.). How it happened, according to counsel is still a mystery except their own statements.
' We have already believed the confessional statements. The same have been made not under duress or torture but voluntarily, therefore, there is no reason to disbelieve the confessional statements. It would become crystal clear from mere reading of the confessional statements that deceased Lal Bakhsh was taken by the accused persons to the date grove on the pretext that the accused persons would commit unnatural offence with she-ass. In fact they wanted to commit sodomy with deceased Lal Bakhsh. Lal Bakhsh resisted but convict Ghulam Haider forcibly tried to untie the cord of his trousers. However, it was convict Nabi Bakhsh who started giving knife blows to the deceased. As and when he fell down accused Ghulam Haider told Nabi Bakhah to kill him otherwise his relatives would not spare them. As such Nabi Bakhsh cut the throat of the deceased with Knife. This finds support from circumstantial evidence, i.e, medial evidence and other recoveries.
' It is, thus, clear that appellant Nabi Bakhsh in fact gave knife blows to the deceased and unlimitedly cut his throat when so asked by Ghulam Haider. The act of Nabi Bakhsh was wanton, brutal and cold-blooded He killed the deceased simply because the deceased refused to allow the accused persons to commit sodomy with him. Thus, Nabi Bakhsh has committed an offence which is heinous in nature and deserves no sympathy. We are, therefore, inclined to enhance his sentence from imprisonment for life to death. He shall be hanged by neck till he be dead.
' As far as appellant Ghulam Haider is concerned he was party in the whole transaction. He caught hold of the deceased and on his behest Nabi Bakhsh cut the throat of the deceased. We are inclined to dismiss his appeal but uphold the conviction and sentence of imprisonment for life.
' The result of the above discussion would be that appeal filed by the convicts is dismissed and the revision petition filed by complainant is accepted to the extent of convict Nabi Bakhsh. The sentence of Nabi Bakhsh, as stated hereinabove, shall be enhanced from imprisonment for life to death, whereas Ghulam Haider shall be sentenced to life imprisonment.
' The criminal appeal and revision are disposed of accordingly."
6. Appellant Nabi Bakhsh has challenged his above conviction and sentence by filing Criminal Appeal No,312 of 1995. Similarly co-convict Ghulam Haider aggrieved from conviction and sentence awarded to him by the Court below has filed Criminal Petition for Leave to Appeal No, 114 of 1995.
' Since both these matters are directed against common judgment and involve consideration of identical points, therefore, same are being taken up together.
7. Mr. Mehta W.N. Kohli, Advocate-on-Record, for appellant Nabi Baldish and petitioner Ghulam Haider has raised following contentions:-
(i) The evidence regarding recovery of knife is highly improbable, materially contradictory and has been proved through interested witnesses, therefore, same cannot be relied upon.
(ii) Confessional statements of appellant Nabi Bakhsh and petitioner Ghulam Haider were recorded after considerable delay, therefore, they cannot be deemed to be voluntary. Even otherwise confessions have not been recorded in accordance with requirements of law.
(iii) Retracted confessions cannot be safely relied upon without independent corroboration which is lacking in material particulars as regards present case. Therefore, conviction based upon the same is not sustainable.
(iv) High Court has seriously erred in enhancing the sentence warded to appellant Nabi Bakhsh.
(v) Recovery memo (Exh.PW3-B) of crime weapon reveals that police became aware about involvement of accused persons on 19-11-1990 therefore, recording of confessional statements after 6/7 days looses its significance and evidentiary value.
8. Raja Abdul Ghafoor, Advocate Supreme Court, appearing for Advocate-General Balochistan, vehemently opposed the appeal and petition. He canvassed that confessions were voluntary and true, therefore, same have been rightly believed by both the Courts below. There exists preponderant evidence connecting the convicts with commission of murder, therefore, conviction and sentence recorded against them is based on sound reasoning.
9. We have carefully perused the record and considered arguments advanced before us by learned counsel for the parties. It may be seen that prosecution case mainly hinges upon confessional statements of appellant Nabi Bakhsh and petitioner Ghulam Haider, which is supplemented by medical evidence, recovery of crime weapon and other circumstantial factors.
Undisputedly the appellant and petitioner were arrested on 19-11-1990. Recovery of crime weapon at the instance of appellant Nabi Bakhsh was effected on the same day in presence of P.W.3 Abdul Ghafoor and one Muhammad . Yousaf. Therefore, in this context, pivotal question requiring consideration would be whether delay of 6/7 days in recording confessional statements was fatal and affects its validity or admissibility. It may be seen that Superior Courts while dealing with this aspect have invariably observed that delay in recording A confessional statements by itself is not sufficient to affect its validity. No hard and fast rule can certainly be placed about period within which confessional statement of the accused ought to be recorded during the course of investigation. No doubt long period of detention in police custody is looked with suspicion and tends to cast doubts about voluntary nature of such statement. However, Courts are obligated to properly scan and thoroughly scrutinize the truthfulness and voluntary basis of making confession before the Magistrate. In case Syed Sharifudin Pirzada v. Sohbat Khan (PLD 1972 SC 363) this Court had ruled that mere fact of accused having been in police custody does not lead to draw inference of procuring confession by coercion or torture. The evidentiary value was considered on the basis of opportunity provided to the accused during trial for explaining circumstances about making confessional statement. Relevant observations read thus; "It may be noted that the learned trial Judge and the High Court have discarded the judicial confessions on the ground that they had been in the police custody for sometime before they were produced before him for getting their confessions recorded and that they were not asked question as to how long they had been in the police custody and why they had been chosen to get their confessions recorded. In our opinion, the reasons given by the learned trial Court and the High Court on this point are unsatisfactory. 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. Mr Azizuddin, A.C.M., who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confession. This shows that the confessions were made voluntarily."
10. This Court in case Muhammad Ismail v. State (1995 SCM R 1615) has observed that delay per se in recording confession cannot constitute suitable ground for discarding the same unless proved to have been recorded under threats or coercion. It would be profitable to reproduce here relevant, observations:- "(18). Then comes the confession of appellant Muhammad Ismail. Delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. Indeed, the learned Magistrate after observing formalities recorded his confession and certified that it was true and voluntary. In his confession the appellant has advanced different motive for committing murders. But undisputedly he has admitted that he alongwith Ghous Muhammad had committed the triple murders. The details given by the appellant in confession establishes that it is not only true but voluntary one also. The learned trial Court, thus, has rightly treated as evidence against the appellants. The High Court has offered its view that under Article of Qanun-e-Shahadat Order it can be used as evidence against Muhammad Ismail and as circumstantial evidence against Ghulam Ghous. The learned trial Court and the High Court has correctly relied upon the confession. To us also it appears to be true and voluntary one. The ocular version of Hazrat Ali and confession of the appellant Muhammad Ismail is sufficient to prove charge against the appellants. Besides, there is concurrent findings of facts against the appellants. We do not see any reason to interfere with it."
11. In the background of above circumstances it is pertinent to note that appellant Nabi Bakhsh and petitioner Ghulam Haider in their respective statements on oath recorded by trial Court under section 340(2), Cr.P.C. Have admitted their production before Tehsildar and signing of some statement which according to them had already been prepared. They have not made any allegation regarding torture or coercion in procuring said statement from them. They have also not alleged enmity or motive against any of the prosecution witness including P.W.7 Tehsildar Lal Bakhsh.
12. Record maifests that P.W.7 Tehsildar Lal Bakhsh, who had recorded confessional statement of convicts Nabi Bakhsh and Ghulam Haider, appeared before the trial Court on 29-1-1991 and was subjected to lengthy cross-examination but nothing substantial suggesting any impropriety or serious defect in recording said confessions could be elicited. Besides, absolutely no question was asked to Investigating Officer about alleged delay in bringing convicts before concerned Magistrate for recording confessions. From the circumstances of this case dictum laid in afore- quoted reports and foregoing discussion we are inclined to observe that mere delay of 6/7 days in recording confessional statements of appellant Nabi Bakhsh and petitioner Ghulam Haider has not affected its voluntary status, indepefident character and validity. Both the Courts below while finding appellant Nabi Bakhsh and petitioner Ghulam Haider guilty for causing murder of deceased Lal Bakhsh have drawn conclusions believing the confessional statements as true and voluntary by assigning sound and cogent reasons. At this stage even if the contention raised by learned counsel for convicts is accepted that on 19-11-1990 when recovery of crime weapon was affected police became aware about their involvement in the commission of offence; nevertheless, extensive details concerning actual happening of the incident and motive for the crime has been factually revealed when confessional statements were made by above two convicts. Thus, objection raised by learned counsel for convicts has no relevancy or legal significance.
13. Additionally, learned counsel referring to the observation in case Nadir Hussain v. The Crown (1969 SCM R 442) has stressed that retracted confession unless corroborated in material particulars cannot be effectively relied upon.
14. It may be seen that details in the confessional statements are further independently supported by medical version and corroborated by circumstantial evidence. The relevant aspects including voluntary and true nature of confessions have been thoroughly discussed by both the forums below. Concurrent findings arrived at by two Courts in the light of above discussion are not open to exception. Accordingly we find no merit in appeal as well as petition.
15. Lastly, adverting to contention regarding quantum of sentence, needless to say that once prosecution accusations regarding involvement of convict for causing murder are duly established then in the absence of justifiable extenuating circumstances normal punishment required to be awarded is "Death".Reference in this behalf can be made to following observations in cases (i)
Abdur Rashid v. Umid Ali (PLD 1975 SC 227) (ii) Mst. Bismillah v. Muhammad Jabbar (1998 SCM R 862) and (iii) Pervaiz v. The State (1998 SCM R 1976):--
(i) Abdur Rashid v. Umid Ali (PLD 1975 SC 227): "(26). I would, therefore, accept the appeal, set aside the order of acquittal and restore the conviction of the respondents under section 302/34, P P .0 .
(27). As regards the question of sentence, in view of the circumstances of the case coupled with the increasing danger to and insecurity of human life and liberty in the context of an alarming rise in the incidence of crime, I would be inclined to restore the sentences of death despite the lapse of 6 years and the respondents' expectancy of survival. This Court has of late consistently looked askance at the indiscriminate invocation of the doctrine of expectancy. Reference may be made in this regard to Asadullah v. Muhammad Ali and 5 others. Abdus Sattar v. Muhammad Anwar and 6 others and an unreported judgment of this Court Mst. Nuran v. Nura and another Criminal Appeal No,73 of 1970 decided on 7-5-1974. Accordingly, having regard to the brutality and cold bloodedness of the murders the sentence of death awarded to the respondents by the trial Court is restored."
(ii) Mst. Bismillah v. Muhammad Jabbar (1998 SCM R 862): "(15). Consequently, there appears to be no justification for modification of the sentence by converting it from sentence of death to that of imprisonment for life. In case conviction under section 302, P.P.C., if there are no mitigating circumstances justifying awarding of sentence of imprisonment for life, then ordinarily, sentence of death is to be awarded. In Muhammad Sharif v.
Muhammad Javed alias Jeda Tedi (PLD 1976 SC 452), this Court, while noticing hesitance on the part of the Courts to award death sentence even in cases where a sentence of imprisonment for life is not warranted, disapproved such tendency find a laboured pretext to alter a sentence of death to imprisonment for life."
(iii) Pervaiz v. The State (1998 SCM R 1976): "In respect of Saghir and Mehrban the High Court merely stated that they were rightly awarded imprisonment for life. We fail to understand that on what basis this observation was made by the High Court. The law is clear and the normal penalty for the offence under section 302, P.P.C. Is death unless mitigating circumstances exist, on the record. In fact neither the Trial Court nor the High Court has adverted to this aspect of the case. Of course lesser punishment can be awarded to a guilty person provided, as discussed above, mitigating circumstances exist on record. In this context, the failure to award normal penalty of death to person guilty of murder was also deprecated and this aspect was highlighted in a judgment of this Court reported as Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452.
(12). For the foregoing reasons and because there are no mitigating circumstances on the record and all the appellants having acted in furtherance of their common intention, all of them ought to have been punished with the normal penalty of death. Accordingly, we accept this appeal and hereby order that the appellants Saghir and Meharban are awarded sentence of death. They shall be hanged till they be dead. As far as enhancement of sentence of fine is concerned, we do not find any substance in the same."
For the foregoing reasons, Criminal Appeal No, 312 of 1995 (Nabi Bakhsh v. The State and another) is dismissed and leave to appeal in Criminal Petition No,114 of 1995 (Ghulam Haider v. The State and another) is declined.
Appeal and .