' SH. IJAZ NISAR, J.--This criminal appeal by leave of the Court is directed against the judgment, dated 28-9-1993, passed by a learned Division Bench of Peshawar High Court, Peshawar, dismissing the appeal of Nasar Khan appellant and confirming his death sentence.
2. Briefly stated the facts of the case are that Siraj Muhammad deceased, a contractor by profession, was engaged in the construction of three bungalows in Hiyatabad, Peshawar. He was not traceable since 17-11-1988. Mir Rehman P.W.6 (complainant), uncle of the deceased, searched for him and ultimately came to know that he was last seen with one Ghaffar, who was also called by the name of Nasar. The complainant further learnt .That motorcycle of the deceased was also with the said Nasar. Consequently, he lodged a report at Police Station Hiyatabad to the above effect on 8-2-1989.
3. The Police joined Nasar appellant in the investigation, who is alleged to have disclosed to have murdered Siraj Muhammad deceased at the instigation of Basharatullah co-accused (since acquitted) and buried the dead body in.An under-construction bungalow in Hiyatabad. On this disclosure, Nasir Ali, S.H.O. (P. W.7) sought the assistance of Mr. Fakhre Alam, M.I.C. And a doctor and in their company proceeded to an under-construction house on the pointation of the appellant and exhumed the dead body of Siraj Muhammad deceased clad in usual clothes such as shirt, Shalwar and shoes etc. He prepared the injuries statement and the inquest report of the deceased.
The appellant also led to the recovery of 3 empty cartridges of 30 bore, which were duly scaled. The S.H.O. Also prepared a site plan. Later, on the same day, i,e, 9-2-1989 the appellant led to the recovery of his licensed pistol from his shop. It was also made into a sealed parcel. The appellant also led to the recovery of motorcycle of the deceased from the house of his father.
' The crime empties recovered from the spot and the licensed pistol of the appellant were sent to the Fire-arms Expert, who reported that the same had been fired from the pistol in question.
4. Dr. Sultan Farrukh, Medical Officer, P.W.B. Conducted autopsy on the dead body of Siraj Muhammad deceased immediately after its exhumation. According to him, though the dead body was unidentified, nevertheless, his relatives present there identified it from its features. He found three fire-arm injuries on the skull and one on the forehead, the skull was found fractured, The cause of death was fire-arm injuries.
5. The appellant is also alleged to have made judicial confession before Noman Shah Jadoon, M.I.C., Peshawar on 11-2-1989. On completion of the necessary formalities he recorded his confessional statement Exh.P.F wherein he furnished a detailed account of the occurrence. After recording the confession, the learned Magistrate handed over the custody of the appellant to his NaibCourt for taking him to the judicial lock-up.
6. After concluding the investigation the police challaned Nasar Khan appellant and Basharatullah, Both of them were tried jointly. By judgment, dated 11-11-1991, the learned Additional Sessions Judge, Peshawar, convicted Nasar Khan appellant under section 302, P.P.C. And awarded death sentence to him plus a fine of Rs,20,000 or in default to undergo 5 years' S.I. He was also convicted under section 201, P.P.C. For causing disappearance of evidence and sentenced to 4 years' R.I. With a fine of Rs,2,000, or in default to undergo 6 months' Si His co-accused Basharatullah was also convicted under section 302, P.P.C. And sentenced to imprisonment for life. However, during the pendency of appeal in the High Court he compromised the matter with the heirs of the deceased, and in consequence was acquitted. Nevertheless, the learned High' Court maintained the conviction and sentence of Nasar Khan appellant by the impugned judgment and dismissed his appeal.
7. Leave was granted by this Court on .23-5-1995 to consider whether the retracted judicial confession relied upon by the Courts below suffered from any "legal infirmity ".
8. The prosecution case rests on the evidence of Muhammad Ghufran P.W.2, uncle of the deceased.
He had identified his dead body and also witnessed the recovery of the dead body at the behest of the appellant. He is also an attesting witness of the recovery of three crime empties at the instance of the appellant. Noman Shah Jadoon, M.I.C. P.W.3 proved the judicial confession of the appellant made before him on 11-2-1989. Shahid Ali, S.I. P.W.4 is an attesting witness of the recovery of pistol P.7 and its licence at the instance of the appellant. He is also a witness to the recovery of motorcycle of the deceased from the house of the appellant's father on his pointation. Fakhre Alam, M.I.C. P.W.5 is a witness to the recovery of the dead body of the deceased on the pointation of the appellant. Mir Rehman P.W.6, uncle of the deceased, furnished details of the disappearance of the deceased and of having learnt that the deceased was last seen with the appellant riding a motorcycle. He reported the matter to the police on 8-2-1989. Exh.PA/2 is the report made by him.
In cross-examination he stated that since he was satisfied with the innocence of Basharatullah co- accused, therefore, he would not charge him with the murder for the deceased. Nasir Ali, S.H.O., P.W.7 carried out most of the investigation and witnessed the recovery of the dead body on the pointation of the appellant. He also recovered the crime empties and pistol at the instance of the appellant. He had arrested the appellant on 9-2-1989 and on completion of the investigation challaned him.
9. The appellant in his statement under section 342, Cr.P.C. Denied prosecution allegations and explaining his innocence stated that the complainant party had received huge amount from Basharatullah co-accused and compromised with him. The same demand was made from him which he could not fulfil on account of poverty, and hence he was falsely involved. He added that he had left the service of Hidayatullah, father of Basharatullah co-accused, before the occurrence and thus could not have any access to the under-construction bungalow. He did not examine any evidence in defence.
' The learned trial Court relying upon the circumstantial evidence mentioned above, convicted and sentenced the appellant as indicated above.
10. It is contended on behalf of the appellant that the circumstantial evidence relied upon by the Courts below was not sufficient to sustain his conviction, particularly the retracted judicial confession. He further maintained that since essential legal formalities for recording the judicial confession were not complied with, it could not be pressed into service against the appellant. Lack of motive attributed to the appellant by the prosecution is another argument advanced on his behalf. It is also stressed that in the absence of any direct evidence the circumstantial evidence relied upon by the prosectuion had failed to link the appellant with the crime.
11. It is an admitted fact that the deceased used to work in the aforementioned under-construction houses and that he had disappeared with his motorcycle and a report to that effect was lodged by his Mir. Rehman with the police on 8-2-1989. Since in the said report uncle there was a mention of the deceased having been last seen alive in the company of the appellant, the police associated him in the investigation, during the course of which the appellant made important disclosures to the police and led to the recovery of the dead body, crime empties which matched with his licensed pistol. He also led to the recovery of motorcycle of the deceased from the house of his father. On the top of all lie made a judicial confession before a Magistrate giving all the details of the occurrence. The witnesses examined by the prosecution to prove the above circumstances had no enmity whatsoever with the appellant, nor was any such material brought on record to dub them as interested witnesses. No doubt some insignificant lapses on the part of the Magistrate, who had recorded the judicial confession of the appellant, were pointed out, but those can be safely ignored as all the essential pre-requisites of recording a judicial confession were followed c by the learned Magistrate. The appellant was clearly told that he was not bound to make a statement, and if he made the same, it could be used against him and that he would not be remanded to the police custody whether or not he made the confession and he was given adequate time to ponder and after being satisfied that he was making a voluntary statement he proceeded to record the same. The mere fact that an accused retracts from the confession made by him cannot by itself be made a ground for its rejection, the only requirement in this respect is to ensure that when the same was made, it was voluntary, true and fits in with the prosecution story.
In the confessional statement attributed to him he stated to have fired four shots at the deceased on his skull. This circumstance stands supported by the autopsy on the body of the deceased, as four fire-arm injuries were found on the head/skull of the deceased. It also speaks of the burial of the dead body in the under-construction house. This fact stands corroborated by the recovery of the dead body from that place on the potation of the appellant. The matching of crime empties, recovered from the place of occurrence, with the licensed pistol of the appellant, is another important circumstance .Going against the appellant. The appellant could not advance any reasonable explanation for the recovery of motorcycle of the deceased from his father's house at his potation. This is yet another strong piece of evidence linking him with the crime.
12. Keeping in view the circumstances narrated above, the prosecution case stands fully established against the appellant so far as the murder of Siraj Muhammad deceased is concerned, he was, therefore, rightly convicted. And properly punished. However, as regards his conviction under section 201, P.P.C., it may be stated that it is a well-settled proposition of law that an accused charged with the main offence i,e, murder cannot be convicted for disappearance of evidence or offence to screen or save himself. Farid Muahammad v. The State (PLD 1959 (W.P.)
Peshawar 12) and Gulazr Khan v. The State (PLD 1963 (W.P.) Peshawar 178) may be cited in this behalf.
' In this view of the matter, we accept this appeal to that extent and set aside the appellant's conviction and sentence under section 201, P.P.C. With the above modification the appeal is