TALAT QAYUM QURESHI, J.--- Appellants have assailed a judgment delivered by the Court of learned Additional Sessions Judge, Mansehra on 5-9-1998 whereby Mst. Hamida was convicted under section 302-B, P.P.C. And sentenced to death and she was ordered to be hanged by neck till she is dead. She was also convicted under section 201, P.P.C. And sentenced to three years rigorous imprisonment with fine of Rs,5,000 and in default to undergo six months rigorous imprisonment.
Mst. Sajeela was convicted and sentenced to 10 years rigorous imprisonment under section 302(c), P.P.C. Accused Shahzad and Bilal were acquitted of the charges levelled against them. A criminal murder reference has also been referred as required under section 374, Cr.P.C. We hereby dispose of both criminal appeal and criminal reference together through this order.
2. Syed Dilawar Shah, complainant (P.W.18) reported that his son Bilal aged about 6 years was found .Missing while playing near'his house on 27-2-1997 at about 12 noon and despite hectic efforts could not be traced. During the course of search, the complainant and his relatives satisfied themselves that one Syed Ashiq Hussain Shah in consultation with Tabariq Shah has abducted the minor Bilal and kept him in illegal confinement. The motive stated in the F.I.R. Is dispute over landed property.
3. During the course of investigation, Dilawar Shah complainant received certain letters and the Investigation Officer also interrogated accused Ashiq Hussain Shah and Tabariq Shah but they were exonerated. The present accused were also interrogated by the Investigating Officer and were found guilty in the investigation. Mst. Hamida and Mst. Sajeela have confessed their guilt.
Accused Shahzad and Bilal are minors but they were charged by the major accused. The dead body of the minor was also recovered from the cattle-shed of the accused.
4. After completing the investigation, prosecution challaned the four accused. Charge against them was framed by the learned trial Court to which they did not plead, guilty.
5. The prosecution in order to prove its case examined 18 P.Ws. In all. On the conclusion of prosecution evidence the statements of accused/appellants Mst. Hameeda, Mst. Sajeela and Bilal were recorded under section 342, Cr.P.C. While Shahzad who was aged about 9/10 years and was not able to fully understand the questions was not examined under section 342, Cr.P.C. The accused did not wish to appear as their own witness nor wished to produce their evidence.
6. Dr. Abid Sherazi, Medical Officer, D.H.Q. Hospital, Mansehra was examined as P.W.12. He conducted post-mortem examination on the dead body of minor Bilal on 28-4-1997 at 8 a.m. His report is as under:-- Dead body found with rope around the neck. External examination Mark of legature on neck. There was a rope around the neck in two circles with rope tied very tightly. The knot on right side of neck. The rope removed by cutting in two parts (sootar) rope, handed over to police. Condition of subject. Stout decomposed body having clothes. Qamees, Shalwar, two swa ter blue and red colour, cap, the clothing having clay on it. Ghulail (Rubber), Taweez (amulets), small black coloured ball recovered from the pocket, handed over to police. The body putrified with maggots over it. Skin is easily peeling off. No other injury found.
Cranium and spinal cord Membrances, brain and spinal cord decomposed. Thorax Walls (muscles) putrified. Larynx and trachea fractured. Right lung black coloured. Left lung black coloured. Pericardium and heart black coloured. Blood vessels not healthy.
Abdomen Walls decomposed. Mouth and pharynx decomposed. Organs of generation external decomposed.
Remarks The doctor conducted the post-mortem examination on dead body of child Bilal Shah son of Syed Dilawar Shah at 8-00 a.m. On 28-4-1997 The cause of death was strangulation by rope. The clothes (Qameez, Shalwar two sweaters red and blue coloured, cap, rope in two parts Ghulail (Rubber) small black coloured ball, l'aweez (amulets) handed over to the police alongwith police papers, Post-mortem Examination Report No,19 of 1997 (consisting of six leaves).
According to the doctor, the time between injury and death immediate and between death and post-mortem was more than one month.
The doctor had seen the post-mortem examination repor which was in his handwriting and correctly bore his signature and is Exh.P.W.12/1. It is consisting of six leaves including pictorial. The inquest report bore his endorsement which was in his handwriting and bore his signature correctly.
This endorsement is Exh.P.W.12/2.
Similarly, Dr. Riaz Muhammad, Medical Officer, Government D.H.Q Hospital, Mansehra examined minor Shahzad and Bilal in order to determine their ages and understanding. His opinion is as under:--
(1) Shahzad son of Muhammad Irshad, identification mark old scar on nose. Age according to radiologist is 7/8 years. His I.Q. Is according to age and he can understand the nature of act.
(2) Bilal son of Muhammad Irshad, identification mark a black mole on right cheek. Age according to Radiologist is 11/12 years. He is intelligent and can understand the nature of act.
The doctor had seen his report Exh.P.W.7/l which bore his signature correctly. It was in his handwriting.
7. Mst. Hameeda and Mst. Sajeela had confessed their guilt and their statements to this effect were recorded by Muhammad Gustasap Khan E.A.C. III/M.I.C. And Farhatullah Khan J.M., Mansehra. The confessional statement of Mst. Hameeda has been placed on record as Exh.P.W.9/2 whereas the confessional statement of Mst. Sajeela is Exh.P.W.16/3. Raja Gustasap Khan E.A.C.-III/Judicial Magistrate, Mansehra was examined as P.W 9. This witness had recorded the confessional statement of Mst. Hameeda Exh.P.W:9/2. His certificate is Exh.P.W.913 which was signed by him and was correct The questions asked by this witness contained in memorandum of inquiry Exh.P.W 9/1.
8. Furhatullah Khan, Civil Judge-II/Judicial Magistrate, Mansehra was examined as P.W.16. He had recorded the confessional statement of Mst. Sajeela alias Sahira. The questions asked by this witness to accused as contained in memorandum of inquiry is Exh.P.W 16/2 whereas the confessional statement of the accused-appellant is Exh P.W.16/3 and certificate is Exh.P:W.16/4 which bore his signatures correctly. Muhammad Fazil Khan, S.H.O., Police Station Shinkiari conducted the investigation of the case under the directions of Superintendent of Police, Mansehra.
On 25-4-1997 the complainant produced a letter to him in the light of which he proceeded further.
The said letter was taken into possession vide recovery memo. Exh.P.W.5/1. This letter has been exhibited as Exh.P.W.17/2. During interrogation Mst. Shamim and Mst. Tajun Nisa disclosed to the Investigating Officer that about a fortnight after the disappearance of Bilal Shah minor Mst.
Hameeda accused approached them and informed that Muhammad Jamil Taxi Driver had killed minor Bilal Shah and that they should depose against the said Taxi Driver. Mst. Shamim and Mst.
Tajun Nisa declined to become false witnesses against the said driver on the plea that they were poor and they do not want to make false statement. Muhammad Jamil Taxi driver was also interrogated who disclosed that Mst. Hameeda, present appellant, owed Rs,32,000 to his aunt, namely, China Wali Tai and because she did not return amount, therefore, their relations remained strained and on that account Mst. Hamida charged him for hitting the minor thereby causing his death which was absolutely false. On the basis of this material Mst. Hameeda was interrogated and during the investigation she disclosed that she had borrowed money from complainant Syed Dilawar Shah and she had been returning the amount alongwith the interest. This was the great burden on her and, therefore, she got annoyed and offended and resolved to teach lesson to the complainant by way of killing his only son. She further disclosed that she wanted to sell her land so as to pay back the entire amount to the complainant yet he did not let her dispose of her land to any one else and demanded that she should sell the property to him alone. On the pointation of accused Mst. Hameeda in presence of Assistant Commissioner, Mansehra, D.S.P. And many others the dead body of the deceased was dug out from the cattle-shed of the accused Mst. Hameeda, while she was in police custody accompanied by lady Constables. The pointation memo. Has been placed on record as Exh.P.W.2/1. Site plan prepared at the instance of pointation of accused Mst.
Hameeda is Exh.P.W.17/5, injury sheet Exh.P.W.17/6, inquest report Exh.P.17/7. The Investigating Officer also took into possession shirt (Exh.P.1), Shalwar Exh.P.2, two banyans Exh.P.3, one cap Exh.P.4, one ball Exh.P.5, one rubber Exhs.P.6, 5 amulets (Taweez) Exh.P.7 and two pieces of card Exh.P.8 vide recovery memo. Exh.P.W.10/1. Mst. Hameeda was arrested by the Investigating Officer on 27-4-1997 before the exhumation of dead body of minor Bilal. In the light of statement of Mst. Hameeda, her daughter Mst. Sajeela was also arrested on 29-4-1997. The application moved by the Investigating Officer for recording confessional statement of Mst. Sajeela alias Sahira is Exh.P.W.17/1. The application for summoning Mst. Hameeda on "zamima-bay" from Sub-jail Mansehra and recording her statement is Exh.P.W.17/11. He recorded the statements of P.Ws. Under section 161 and also recorded supplementary statement of complainant Dilawar Shah. He also moved an application under section 169, Cr.P.C. Exh.P.W.17/13 for cancellation of case against two persons charged by the complainant in the F.I.R. After completing the investigation he handed over the case to S.H.O. For onward submission of challan.
9. Manzoor Hussain P.W.2 is marginal witness of pointation memo. Exh.P.W.2/1. According to this witness, Mst. Hameeda accused herself pointed out the place in the Bandi (cattle-shed) where she had buried the child's body. In his presence the earth was dug out with the help of spade and dead body of minor Bilal was brought out. Sajjad Hussain Shah was examined as P.W.6, is another witness in whose presence the dead body of deceased Bilal Shah was dug out from the ditch pointed out by accused Mst. Hameeda. This witness had identified the dead body of the minor.
After the post-mortem report has received the dead body. Syed Dilawar Shah was examined as P.W.18. He narrated the same episode as mentioned in F.I.R. Exh.P.W.11/1. He further stated that he found a letter lying in his drawing room which was anonymous. The said letter contained important contents pointing towards some clues in the present case. He handed over the said letter to Fazil Khan, S.H.O., P.W.17 who was conducting the investigation.
10. Mr. Ejaz Afzal Khan, Advocate, the learned counsel representing the appellants argued that Mst.
Hameeda was arrested on 26-4-1997 but she was shown to have been arrested on 27-4-1997 by the police. Her 5 days police custody was taken which was to expire on 1-5-1997. On 29-4-1997 Mst.
Sajeela, appellant No,2 was also arrested. She was interrogated by police and on the same day she was produced before the Judicial Magistrate for recording her confessional statement. She named Mst. Hameeda, Shahzad and Bilal her brothers for commission of offence. On 30-4-1997 Mst.
Hameeda was also produced for recording her confessional statement before the Judicial Magistrate. Her statement was recorded and she confessed her guilt. In the memorandum Exh.P.W.9/1 the following question was put to her:--
(Q) For how many days you remained in the policy custody?
(A) One day and night in the police station and one day and two nights in the jail.
The distriction between "police custody" and "judicial lock-up" was not clear in her mind when she replied the above question. For her judicial custody was synonymous wita that of police custody.
After recording her confessional statement she was given back to the custody of Shabbir Ahmad Sepoy of jail and S.H.O., Mansehra as is clear from the order approached on Exh.P.W.17/1. This shows that she was even interrogated in jail and it was the bounded duty of the Judicial Magistrate to make it clear to the accused that after her statement she would be sent to a place which would not be accessible to police which was not done, therefore, she was not free from fear, pressure, inducement and promise from person in authority. This fact gets more strength when in her statement recorded under section 342, Cr.P.C. In reply to a question she stated that her confessional statement was tutored by police by using third degree methods and she made the same under threat. Moreover, the confessional statement was verbatim reproduction of her statement recorded by police. Reliance was placed on Ghulam Hassan v. The State PLD 1974 Kar.
91. P.W.17 Fazil admitted that Mst. Hameeda confessed her guilt on 27-4-1997 but her police statement was recorded on 29-4-1997. It is on record that her police remand was obtained on 28- 4-1997 and she was kept with police till 30-4-1997 when her confessional statement was recorded.
The reasons for keeping her in police custody clearly show that she had been constantly tortured to state whatever the Investigation Officer wanted her to state in the Court. The delay in recording the confessional statement creates serious doubt about voluntariness of accused. Reliance was placed on Najeeb Raza v. The State PLD 1978 SC 2000 and 1995 SCMR 1359.
11. It was further argued that as per prosecution story, she led the police party for recovery of the dead body of deceased on the night of 27/28 April, and as mentioned above, she had confessed her guilt before P.W.17 Fazil, then it is not understandable as to why her police custody was taken on 28-41997. Why she was not produced on 27-4-1997 for recording her confessional statement. No convincing answer has come forth to explain her custody after 27-4-1997.
12. , Regarding the confessional statement of Mst. Sajeela the learned counsel argued that no second warning before recording the confessional statement was given to Mst. Sanjeela by the Judicial Magistrate. Reliance was placed on Mst. Said Begum v. The State PLD 1958 Lah.
559. It was further argued that the task of killing Bilal minor was accomplished by the minor sons of Mst. Hameeda, namely, Shahzad and Bilal as according to the report of the doctor the death of the deceased was instantaneous. The criminal act was accomplished by minors acquitted accused and the appellants searched late.
13. It was further argued that another plausible story which can be spelt out is that while playing Shahzad and Bilal might have killed the deceased. Subsequently, when it transpired that minor had been killed, The dead body was concealed.
15. Another version which is also possible in the case is that he complainant is on dagger drawn with the nephew who was deprived of his property by the complainant. The said nephew might have killed the deceased and buried him in the cattle-shed belonging to appellant which is not bounded by a boundary wall and is accessible to all.
16. If the statement of Mst. Hameeda is taken to be true then three minors were involved, namely, Shahzad, Bilal and Mst. Sajeela who is also minor being 17 years of age. Being minors they were not liable to Qisas and in such a case they were to be punished under section 308, P.P.C. The involvement of Mst. Sajeela was used as a vehicle to pressurize Mst. Hameeda. When Mst.
Hameeda and Bilal as per the confessional statement of Mst. Hameeda were pulling the string, the help of Mst. Sajeela was not at all required because for strangulating a minor boy no extra force is required and as per the statement of Mst. Sajeela, the minor was tossing his legs before she reached there.
17. The learned counsel for the appellants further argued that the only evidence to connect the appellants with the commission of offence is the discovery of dead body on the pointation of Mst.
Hameeda. The said discovery or recovery has also not been properly proved by the prosecution.
P.W. Manzoor Hussain stated that on 27-4-1997 at 12 O'Clock he was sleeping in his house, S.H.O., D.S.P. And A.C. Came to his house and he was taken to the place of recovery. This statement of P.W.2 has been negated by Abdul Malik, D.S.P. P.W.14. In cross-examination he stated that recovery was made between 8 to 9 p.m. Nobody was summoned to the spot by the police. There is material contradiction between statements of Manzoor Hussain P.W.2 and Abdul Malik P.W.14 on the recovery of dead body at the pointation of Mst. Hameeda. Moreover, the discovery/recovery is admissible only when the accused led the police party. In this case the place of recovery was already in the knowledge of police as is clear from Exh.P.W.17/4, application submitted to A.C./S.D.M., Mansehra by S.H.O. Seekirg an order for deputing a Magistrate for exhumating the dead body of deceased. In the said application, the Investigating Officer had himself stated:- {{URDU TEXT} Manzoor Hussain P.W.2 in cross-examination stated that dead body was recovered from north- eastern side corner of Bandi whereas Fazil Khan P.W.17 stated that dead body was recovered from east southern side of the Bandi. Keeping in view the material contradictions, the discovery/recovery is not admissible. Reliance was placed on Muhammad Yousaf v. The State 1995 SCMR 351 and Abdul Samad v. The State PLD 1986 FSC 265. It was further argued that both the accused- appellants had retracted their confession, hence they could not convicted on the basis of retracted confession. Reliance was placed on Nadir Hussain v. The Crown 1969 SCMR 442. {{URDU TEXT}}
18. It was further argued that confessional statements of Mst. Hameeda and Mst. Sajeela are self- contradictory. Mst. Hameeda in her confessional statement stated:-- {{URDU TEXT}} Whereas Mst. Sajeeal has stated that:-- {{URDU TEXT}}
19. 1 he minute study of the above confessional statements indicates ibsolutely two version. {{URDU TEXT}}
20. On the other hand, Mr. Muhammad Muzaffar Khan Swati, Advocate, the learned counsel representing the complainant and the A.A.-G. Representing the State while repelling the arguments of the learned counsel for the appellants argued that both the confessional statements are voluntary and if there was any delay in recording the confession the same would not make any difference as the confession is corroborated with other independent evidence. Judicial Magistrate had taken all the precautions before recording the confessional statements. Reliance was placed on Khan Muhammad v. The State 1999 SCMR 1818. The recovery of the dead body at the pointation of Mst. Hameeda corroborates with her confession. Reliance was placed on Abdul Ghafoor v. The State 1999 PCr.LJ 1739 and Mir Azam v. The State PLD 1994 Pesh.
1555. Manzoor Hussain P.W.2, Abdul Malik P.W.14 and Fazil Khan P.W.17 have witnessed the recovery of dead body at the pointation of Mst. Hameeda. Their statements could not be shattered during cross-examination. The prosecution has proved its case beyond any shadow of doubt. The confession made by the appellants coupled with the recovery of dead body at the pointation of one of the appellant is sufficient to uphold the conviction of the accused-appellants.
21. We have heard the learned counsel for the parties and perused the record carefully.
22. The case of the prosecution is based on the following:--
(i) confessional statements of Mst. Hameeda and Mst. Sajeela;
(ii) medico-legal evidence;
(iii) discovery of dead body of minor Bilal at the pointation of Mst. Hameeda;
(iv) circumstantial evidence.
23. The argument of the learned counsel for the appellants that the confession made by the appellants was not voluntary and that the same was tutored by Investigation Officer by using third degree methods and was obtained under threat and duress has no force. Mst. Sajeela was arrested on 29-4-1997 and on the same day her confessional statement was recorded. She remained in police custody for a few hours. There is nothing on record to show that any third degree method was used against her. So far as confessional statement of Mst. Hameeda is concerned, she was arrested on 27-4-1997. Her police remand was obtained on 28-4-1997 and on 30-4-1997, she was summoned on Zamima-Bay from Sub-jail and produced before the Judicial Magistrate where she made clean breast confession. There is nothing on record to show that she was tortured in Sub-jail where she was kept or any third degree method was used against her by the Investigation Officer. Both the appellants did not raise plea before the Judicial Magistrate who recorded their confessional statements that they were forced to make such a statement and that they have stated whatever the Investigation Officer asked them to State. We, therefore, hold that the confessional statements made by the accused-appellants were voluntarily made without any pressure, threat or inducement and the same, therefore, are admissible in law. Reliance is placed on judgment of August Supreme Appellate Court in Muhammad Rafique Kambu and another v. The State 1993 PCr.LJ 1043, and Mir Azam v. The State PLD 1994 Pesh.
155.
24. The argument of the learned counsel for the appellants that the confessional statement of Mst.
Hameeda was recorded after delay of 3 days, hence it has lost its evidentiary value equally has no force. In case Khan Muhammad and others v. The State 1999 SCMR 1818 it was held:-- "Delay in recording the confession by itself cannot render the confession negatory if otherwise it is proved on record that the same was made voluntarily."
25. A similar view was taken by August Supreme Court of Pakistan in Muhammad Ismail and another v. The State 1995 SCMR 1615 wherein it was held:- "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."
A similar view was taken in case The State v. Sher Zaman NLR 1994 Cr. 485 wherein it was held that retracted confession cannot be kept out of consideration merely on the ground that it was recorded 3 days after police custody of the accused. Likewise in Rozi Khan v. The State PLD 1987 Pesh. 104 it was observed that mere fact that confession was recorded 4 days after obtaining accused's police custody would not by itself suggest that the confession was result of coercion or torture by police.
26. The argument of the learned counsel for the appellant that discovery of dead body on the pointation of Mst. Hameeda was doubtful has no force. Manzoor Hussain P.W.2 stated that on 27-4- 1997 at 12 O'Clock he was sleeping in his house, S.H.O., D.S.P. And Assistant Commissioner came to his house and he was taken to the place of recovery. In his presence on the pointation of Mst.
Hameeda, dead body of minor was recovered. Abdul Malik, D.S.P. Who was examined as P.W.14 has also stated that in his and Assistant Commissioner, S.D.M., Mansehra's presence on pointation of accused Mst. Hameeda dead body of minor was recovered and referred to D.H.Q. Hospital, Mansehra for post-mortem examination. Muhammad Fazil Khan, S.H.O. P.W.17 also stated that he moved an application Exh.P.W.17/4 for disintering of dead body of minor Bilal Shah and obtained order of Assistant Commissioner/S.D.M., dated 28-4-1997 Exh.P.W.15/1. The Assistant Commissioner, Mansehra personally accompanied police party and witnessed the disinterment on the pointation of accused Mst. Hameeda in the presence of A.C., D.S.P., Mansehra and other witnesses dead body of deceased minor Bilal Shah was dug out from the cattle-shed of accused Mst. Hameeda.
Accused was present as she was in police custody being accompanied by lady Constable. The pointation memo. Was placed on record as Exh.P.W.2/1, site plan prepared on the pointation of accused Mst. Hameeda was placed on file as Exh.P.W.17/5. He prepared injury sheet Exh.P.W.17/6, inquest report Exh.P.W. 17/7 of the deceased Bilal Shah and despatched his dead body for post- mortem examination to D.H.Q. Hospital Mansehra. Under the escort of Constable Sardar (FC No,73).
He also took into possession one shirt (Exh.P.1), Shalwar (Exh.P.2), two Bunyans (Exh.P.3), one cap (Exh.P.4), one ball (Exh.P.S), one rubber (Exh.P.6), 5 amulets (Taweez) (Exh.P.7) and two pieces of cord (Exh.P.8) vide recovery memo. Exh.P.W.l0/1. Sajjad Hussain Shah was examined as P.W.6. He also stated that in his presence on the night intervening 27-4-1997 to 28-4-1997 dead body of deceased Bilal Shah was dug out from ditch was pointed out by accused herself. He identified the dead body and after postmortem examination received the same. The prosecution has proved the recovery/discovery of the dead body of Bilal. Shah minor on the pointation of Mst. Hameeda accused from her cattle-shed. Statements of Manzoor P.W.2, Abdul Malik Khan, D.S.P. P.W.14, Fazil Khan, S.H.O./Investigating Officer P.W.17 and Sajid Hussain P.W.6 corroborate with each other on the material point that dead body was recovered at the pointation of accused Mst. Hameeda. Our attention was drawn by the learned counsel for the appellant to the statement of Abdul Malik D.S.P.
P.W.14' who has in the cross-examination stated that recovery was made at 8 to 9 p.m. This minor contradiction would not demolish the case of prosecution so far as recovery/discovery of dead body of minor Bilal on the pointation of accused Mst. Hameeda is concerned. We may mention here that association of two respectable inhabitants of the locality is not required in a case where the accused himself/herself leads the police to a particular place and gets the articles recovered.
Reliance is placed on Mir Muhammad v. The State 1995 SCMR 614 wherein it was observed by their Lordships:-- "In the instant case the appellant had led the police to his house and pointed the place wherefrom gun was recovered. Neither search warrants were issued by Magistrate for the search of house of the appellant nor the police had searched his house/place of its own. The plain reading of section 103, Cr.P.C. Would show that the provisions of this section apply to a case where the police conducts search of a house/place to recover an article for which search is made and not to a case where anything is to be discovered in consequence of information given by or on the pointation of accused. The recovery to be made on pointation of the accused is relevant under Article 40 of Qanun-e-Shahadat, 1984. The association of two respectable inhabitants of locality is not required in case where the accused himself leads the police party to a particular place and gets the articles recovered."
Likewise in another case Nazeer Hussain v. The State 1984 SCMR 1382 the order of conviction was maintained by August Supreme Court of Pakistan with the following observations:-- "As pointed out already, Chhuri !Ay buried in the ground and the petitioner led the Investigating Officer precisely to the spot where it lay buried. This special knowledge as to the spot where lay buried in the graveyard unmistakably leads to the conclusion of the petitioner's vicarious possession for which he was rightly convicted and sentenced, being unable to produce its licence."
27. The next argument of the learned counsel for the appellants that the confessions made by the appellants were retracted, hence they cannot be convicted on the basis of retracted confessions.
This argument equally has no force. In paragraph 23 above, we have held that the confessional statements made by the accused-appellants were voluntarily made without any pressure, threat or inducement. No doubt the confessions made by the appellants have been retracted by them but mere retraction is not enough to make it involuntary or diminish its intrinsic value. Similarly it cannot be kept out of consideration merely on the ground at it was recorded 3 days after the police custody of the accused. Reliance is placed on The State v. Sher Zaman NLR 1994 Cr. 485 wherein it was held:-- "I am fully satisfied that the fear of police was totally removed from the mind of the accused and the confession made by him was free from extraneous influences such as threat, promise or inducement is voluntary and true and does not suffer from any defect of form or substance. No doubt the confession has been retracted by the accused but mere retraction is not enough to make it involuntary or diminish its intrinsic value."
28. Similarly, in case Khan Muhammad and others v. The State 1999 SCMR 1118 it was held:-- "Having concluded that no illegality had been committed in regard to confession we are of the view that in law the conviction on the basis of retracted Judicial confession alone is sustainable provided the confession has been recorded in accordance with law. However, by way of abundant precaution if we see corroboration to the confession, the same is available on the record of this case."
Likewise in Mir Azam v. The State PLD 1994 Pesh. 155 it was held:-- "Confessional statement although retracted and made by the accused after having remained in police custody for 2 to 3 days could not be shown to be not voluntary and obtained under compulsion which was corroborated by recovery of dead body at his pointation from his house and the medico-legal evidence conforming the happening of the murder in the manner as described in the statement, prosecution had, thus, brought home the guilt of the accused beyond any reasonable doubt."
The post-mortem report Exh.P.W.12/1 shows that the dead body of minor Bilal was found with a rope around the neck in two circles tied very tightly with knot on right side of the leg. The rope, clothes of the deceased, Ghulail, Taweez (Amulets), small black colour ball were taken into possession by the Investigating Officer vide recovery memo. Exh.P.W.17.
29. The confessions made by the applicants, recovery of dead body of minor Bilal on the pointation of Mst. Hameeda from her cattle-shed, the post-mortem report, rope found around the neck of the deceased, clothes, Ghulail, Taweez (amulets), small black colour ball taken into possession by the Investigation Officer bring us to the conclusion that prosecution has proved its case beyond any reasonable doubt. Most of the witnesses were consistent on all material points. Statements of most witnesses corroborate with each other. Nothing was brought on record to show that there was dishonesty in the investigation, therefore, the learned trial Court rightly held the appellants guilty of offences with which they are charged.
30. So far as case of Mst. Sajeela is concerned, the learned trial Court keeping in view the facts and circumstances of the case has awarded her 10 years rigorous imprisonment under section 302, P.P.C. We have not been pursuaded to interfere with the sentence awarded to her. Moreover, a revision for enhancement of her sentence has been filed. Appeal to the extent of Mst. Sajeela is, therefore, dismissed.
31. So far as the sentence awarded to Mst. Hameeda is concerned we feel that the requirement of justice. Would be amply fulfilled if she is awarded a lesser penalty of imprisonment for life because the circumstances of the case show that it was Dilawar Shah, complainant, the father of the deceased Bilal who had made the life of appellant and her family miserable. She had taken a loan of Rs,20,000 from him and despite repayment of Rs,80,000 he was demanding more amount and even would not allow her to sell her landed property in order to settle the outstanding amount. The murder was committed in desperation and utter frustration. The circumstances which furnished very strong motive for the accused to murder the deceased are also well-recognized mitigating circumstances. Wisdom has been gained from Shahid Raza and another v. The State and another 1992 SCMR 1647. We, therefore, partially accept the appeal of Mst. Hameeda Bibi. The sentence of death to accused Mst. Hameeda is modified and commuted to imprisonment for life.
Compensation under section 544-A, Cr.P.C. Is not awarded keeping in view weak financial position of the appellants. Conviction of Mst. Hameeda Bibi under section 201, P.P.C. Is maintained. The murder reference is replied in negative. Benefit of section 382-B, Cr.P.C. Is also extended to them.
The sentences awarded to Mst. Hameeda Bibi under sections 302(b) and 201, P.P.C. Shall ru,n concurrently. File be consigned to record room.