' RASHID AZIZ KHAN, J.----Facts leading to the filing of this appeal are that appellant Fazal Din son of Wali Muhammad was reported against with Police Station Dera Allah Yar Khan, District Nasirabad on 1-9-1992 for the murders of Allah Dad and Mst. Alia. Sessions Judge, Nasirabad, at Dera Allah Yar, vide his judgment, dated 21-10-1993 found him guilty under section 302(c), P.P.C. And sentenced him to imprisonment for life with a direction to pay fine of Rs,20,000 or in default to suffer imprisonment for one year. Benefit of section 382-B, Cr.P.C. Was allowed. The convict appealed. A learned Division Bench of High Court of Balochistan vide its judgment, dated 3-3-1994 dismissed the appeal and maintained the conviction and sentence of the appellant. Leave in the instant case was granted to reappraise the evidence and to consider whether the confessional statement can be partly relied upon or not?
2. Prosecution story in brief as disclosed by Malik Muhammad Ali, S.H.O. P.W.5, who got the case registered, was to the effect that on the fateful day at about 6-30 p.m., he alongwith other police officials, was patrolling the area. They heard some commotion from the house of Fazal Din, therefore, they entered the house. They saw Allah Dad lying dead and Mst. Alia, wife of Fazal Din accused and. Mst. Wazir Bibi, sister of accused, lying in an injured condition. The appellant Fazal Din was present armed with blood-stained hatchet. They apprehended the appellant at the spot.
Blood-stained hatchet was also taken into custody and sealed into a parcel. In the F.I.R. It was stated that the occurrence was on account of illicit relations of the deceased persons.
3. Learned counsel for the appellant contended that it is a case of no evidence because there was no ocular account available. The alleged confessional statement was, also retracted, therefore, no reliance on the same could be placed. Contentions were opposed by the learned State Counsel who submitted that immediately after the occurrence, the appellant was apprehended at the spot with blood-stained hatchet near the bodies and he has not been able to furnish any explanation.
4. At the time of hearing on an earlier occasion, the then learned Bench noticed that the confessional statement was recorded by a Magistrate, which in cases of Qisas could not be admissible unless the same was made before the competent Court. In the instant case, accused in his statement under section 342, Cr.P.C. Had denied the allegation as well as judicial confession made before the Magistrate. In order to decide this law point, Mr. Ibrahim Satti, learned Advocate Supreme Court, was appointed as amicus curaie who argued at length and drew the attention of the Bench to the various provisions of law. According to him, section 302, P.P.C. Provided three types of punishment. The first is 'death as Qisas', 2nd punishment provided is 'death or imprisonment for life as Tazir' and thirdly 'imprisonment of either description which may extend to 25 years in cases where Qisas is not applicable'. He also drew our attention to section 304, P.P.C. Which reads as follows:-- "304. Proof of Oatl-i-Amd liable to qisas, etc.---(1) Proof of Qatl-e-Amd liable to Qisas shall be in any of the following forms, namely:--
(a) The accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No,10 of 1984).
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to Qisas."
' It was submitted that in cases of sentence of death as Qisas based on confessions, it has to be 4before the Court competent to try the offence. In all cases liable to Qisas, confessional statements before Magistrate are inadmissible but as far conviction as Ta'zir are concerned, the confessions made before a Magistrate are still inadmissble. Reliance was placed on Abdul Zahir v. State (2000 SCM R 406); Abdus Salam v. State (2000 SCM R 338); Naseem Akhtar v. State (1999 SCM R 1744) and Muhammad Aslam v. Shaukat Ali (1997 SCM R 1307). We have gone through the file as well as the relevant law with the assistance of learned amicus curiae.
5. Admitted facts of the case are that the accused voluntarily made the confessions before .a Magistrate competent to record the same but at the time of trial, he retracted the same. He was, however, convicted under section 302(c), P.P.C. And in such circumstances, the confession recorded by a Magistrate did not fall within the restrictions of section 304, P.P.C., therefore, the same was admissible and can be relied upon if inspired confidence.
' So far merits of the case are concerned, appellant was apprehended at the spot with blood- stained hatchet. The police officials who apprehended him inside his house, have deposed to that effect. On a specific question, learned counsel for the appellant could not give any reason for not relying on the statement of police officials who apprehended him at the spot. In the absence of any allegation of enmity or being under influence of the opposite-party, statements of police officials can be relied upon. Neither in the cross-examination nor before us anything was alleged against the police officials regarding their being inimical, interested or partisan. Both the Courts below have elaborately attended to this aspect of the case as well as have arrived at just conclusions. The judgments of both the Courts below do not suffer from infirmity which could prompt us to interfere with the same. The appeal fails which is dismissed.