' IJAZ-UL-HASSAN, J.---Criminal Appeal No,2 of 1998 is filed against the judgment dated 9-1-1998 passed by Mr.Muhammad lrshad Khan, the then Additional District and Sessions Judge, Mansehra whereby appellant lshtiaq Ahmad, having been found guilty of committing the murder of his wife Mst. Dilshad Bibi was convicted under section 302, P.P.C. And sentenced to suffer life imprisonment and a fine of Rs,30,000 as compensation to be paid to the legal heirs of the deceased or in default thereof to undergo two years' R.l.
2. P.W. Shah Jehan, the then A.S.-1.Punjab Police City Mansehra, was on a routine 'Gushy in Muhallah Dab No, i, Mansehra when Ishtiaq Ahmad and his father Sarfraz met him on 20-7-1996 at 2-00 hours. Lshtiaq Ahmad made a report to the effect that on 19-7-1996 he along with his wife Mst.
Dilshad Bibi, had gone to the house of his sister Mst. Ruqia P.W. At Mauza Ganda Mansehra. After having the meals they were coming back. When they reached near the bridge at 10-30 p.m., all of a sudden his co-villagers Shaukat, Anwar and Ahmad Nawaz sons of Younas appeared there. He Ishtiaq Ahmad) recognised them in the torch light. Ahmad Nawaz was having an axe in his hand whereas his brothers were armed with pistols. They tried to catch hold of the complainant lshtiaq Ahmad but they failed to do so. The complainant and his wife managed to run away. From the back the accused fired. He heard the cries of his wife. He succeeded to reach the house of his co- villager P.W. Rashid Ahmad son of Noor Alam and got him awakened and told him that he and his wife have been murdered. The inhabitants of the locality and Rashid Ahmad accompanied him to the spot and on reaching there found the wife of the complainant lying murdered. Ahmad Nawaz was alleged to have taken the life of the wife of the complainant with his axe. Explaining the motive it was disclosed that 3/4 years prior to the occurrence the complainant had injured Ahmad Nawaz with a dagger on account of which Ahmad Nawaz was nursing grudge against the complainant.
3. P.W. Shah Jehan, A.S.-l. Recorded the report Exh.P.A/1 and sent the same to police station where it was incorporated into F.l.R. Exh .-P. A . By P.W. Nisar Muhammad the then S.H.O., Police Station City Mansehra. He then repaired to the spot and on reaching there prepared injury sheet and inquest report of the deceased. He sent the dead body of the deceased for post-mortem examination under the escort of P.W. Rafique Constable. Then he prepared site-plan at the pontation of complainant lshtiaq Ahmad. During spot inspection he took into his possession 3 empties of .30 bore and sealed the same into a parcel. He also took into possession some blood stained earth, live round of .30 bore pistol and sealed the same in different parcels vide recovery memo.
Exh.P.W.2/1 in the presence of marginal witnesses. On further inspection of the spot, one black shoe was also recovered. The same was taken into possession vide recovery memo Exh.-P.W.2/2. The other shoe was stated to be lying in the house of P.W. Rashid Ahmad. This shoe was also taken into possession. These shoes were stated to be that of the complainant. The last worn clothes of the deceased stained with blood sent by Lady Dr.Tanveer Chaudhry P.W. Through Muhammad Rafique Constable were also taken into possession by the A.S.l. Shah Jehan vide memo. Exh.P.W.1/1. The witness despatched the parcels referred above to Chemical Examiner Forensic Science Laboratary, Peshawar for opinion and report. He raided the houses of Ahmad Nawaz, Shaukat and Anwar for their arrest but they were not available. During the investigation the complainant was found the author of the crime. He was arrested on 21-7-1996 at 1345 hours. In the meanwhile P.W. Nisar Khan S.H.O. Took over the investigation and conducted partial investigation. He recovered the crime weapon, i,e,, pistol of .30 bore (country-made) at the pointation of accused lshtiaq Ahmad. A black dial Seiko Watch was also recovered at the instance of the accused left behind by the accused at the time of commission of offence. He prepared recovery memos in respect of the pistol and the Seiko Watch. One cartridge of .30 bore was found in the Chamber and two cartridges were found lying in magazine of the pistol at the time of its recovery. The recovered articles were sealed into parcels and sent to the Arms Expert, Peshawar for report. During the course of investigation accused lshtiaq Ahmad confessed his guilt. He was produced before Mr. Hussain Bahadur Khan P.W., the then Senior Civil Judge/Judicial Magistrate, Mansehra for recording his confessional statement. The latter recorded his confessional statement accordingly. S.H.O. Nisar Muhammad placed on record the reports of chemical examiner, fire-arms expert, recorded statements of P.Ws.
And after completion of investigation, submitted complete challan against the accused.
4. Lady Dr. Tanveer Chaudhry P.W. Medical Officer, D.H.Q. Hospital, Mansehran 20-7-1996 at 8-00 a.m. Conducted p.m. Examination of Dilshad Bihi deceased and noted the following:-
(1) Fire-arm entrance wound 3"x3" with charring marks on the left orbit, half of brain along with the bones absent.
(2) Fire-arm entrance wound with charring marks on left side of chest just lateral to the left nipple, 1/8"x1/8" in diameter.
(3) Wound of exit 1/2"x1/2" on posterior aspect of the chest in the middle. Lnjury No,2 continuous with injury No,3.
(4) Fire-arm entrance wound 1/8"x1/8" on left shoulder joint with no charring marks.
(5) Wound of exit 1/2"x1/2" on middle of right illiac crest. Injury No,4 continuous with injury No,5.
INTERNAL EXAMINATION ' Scalp, membrance and brain were found crushed whereas ribs, cartridges, plearae left lung, heart and blood vessels were found injured. Mouth phrynx and ocsophangus were also found injured.
Stomach was found full of undigested diet, small and large intestines were found full of faecal matter and gases.
' Death was found to have been caused by fire-arm resulting into internal and external haemorrhage and shock. The probable time between injury and death was found 1 hour whereas between death and post-mortem examination 9 to 10 hours.
5. The prosecution in order to prove its case, produced 11 witnesses and abandoned Mst. Zaitoon, Riaz and Aurangzeb P.Ws. As unnecessary.
6. In his statement recorded under section 342, Cr.P.C., the accused denied the charges levelled against him and retracted from his confessional statement. He also denied the recovery of pistol and stated that the same was foisted on him by Nisar Muhammad, S.H.O. And Shah Jehan, A.S.-I. In order to strengthen the fabricated case against him. He did not wish to produce defence evidence or to give statement on oath in his defence under section 340(2), Cr.P.C.
7. Upon consideration of the evidence, the learned trial Judge, taking into account, the confessional statement of the accused, recovery of the crime weapon, the empties from the spot and reports of the chemical examiner and fire-arms expert and medical evidence, convicted and sentenced the accused as noted above.
8. We have heard Mr.Abdullah JanMirza, Advocate for the appellant, Mr. Muhammad Ayub, A.A.-G.
For the State and Syed Amjad Hussain Shah, Advocate for the complainant in the light of the material on record and the case-law cited by learned counsel for the parties.
9. The death of the deceased by firearm stands proved in the light of post-mortem examination conducted by Lady Dr.Tanveer Chaudhry P.W. Therefore, the point for determination would be, whether the deceased was done to death by the appellant or not.
10. Assailing the prosecution case, learned counsel for the appellant contended that the learned trial Judge has taken into consideration extraneous matters in corroboration of principal pieces of evidence which cannot be legally taken into account. The learned counsel added that the appellant remained in illegal confinement since 20-6-1996 till recording of his confessional statement on 22-6-1996 which is clearly indicative of the fact that the confessional statement retracted subsequently was obtained by the police through third degree method. The learned counsel also questioned the recovery of the pistol and other recoveries in question. The learned counsel attempted to argue that since the confession was got recorded during illegal confinement, hence it stands vitiated and has no legal value at all. Additionally, it was argued that there is no direct evidence in this case and learned trial Court convicted appellant on basis of his judicial confession. From his cross-examination of Magistrate it will appear that basic requirements for recording confession were not complied with by him. No effort was made to find out about any inducement, coercion or promise. Appellant was not informed that if he makes a confession it can be used against him. The learned counsel added that as direct evidence fails, recovery evidence is of no consequence. The credentials of the witnesses to the recovery memos. Were also brought under challenge and an attempt was made to show that the provisions of section 103, Cr.P.C. Had not been complied with which have made the recoveries doubtful.
11. We have carefully applied our mind to the facts and circumstances of the case and have also gone through the entire evidence on record with the assistance of learned counsel for the parties.
The perusal of the judgment of the trial Court shows that the appellant was convicted on the basis of his judicial confession coupled with the circumstantial evidence of the recovery of pistol at the instance of the appellant, medical evidence and the reports of chemical examiner and firearms expert.
12. The confessional statement was recorded by Hussain Bahadur Khan (P.W.10) the then Senior Civil Judge/Judicial Magistrate, Mansehra. This witness stated that the accused was produced before him by S.H.O., Nisar Khan P.W. On 22-7-1996 at about 11-45 hours for recording his confessional statement. He disclosed his identity as a Magistrate and made him sit in the Court- room. He explained to the accused that he is not bound to make confession and that if he does so it will be used against him as evidence during the trial of the case. He also explained to the accused that in case of his refusal he would not be remanded back to the police but will be sent to judicial lock-up. While observing these formalities all the police officials, including P.S.I. And Naib Court were sent 'outside of the Court-room. He spent one and 15 minutes putting questions to the accused and when he was satisfied that the accused is giving voluntary statement, he recorded the same in writing. After recording the statement of the accused, the same was read over and after admitting it correct the accused signed the same in the presence as a token of its correctness. The statement of the accused finished It 1-30 p.m. After recording confessional statement the accused was handed over to Shabbir Ahmad, Sepoy Jailor.
13. It is true that unless a retracted confession is corroborated in material particulars it is not prudent to base conviction in a criminal case on its strength alone. But in the present case the retracted confession of the accused-appellant has been corroborated by the prosecution evidence. The accused-appellant was arrested on 21-7-1996 at 13-45 hours and his confessional statement was recorded on the following i,e, 22-7-1996 at about 11-45 hours by P.W. Hussain Bahadur Khan after observing all the legal formalities. The accused was given sufficient time for pondering over the matter and thereafter his confessional statement has been recorded. There is absolutely nothing on the file to show that the accused-appellant remained in illegal police confinement and in consequence thereof he confessed his guilt and admitted having taken the life of his wife. A chain of authorities were cited on behalf of the accused-appellant to show that the confessional statement had not been recorded in accordance with law and the Magistrate before recording confession did not give proper warnings to the accused-appellant. We have gone through the rulings which are quite distinguishable and proceed on different facts. In order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the A object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of confession, it would not warrant disregarding of the same.
We are satisfied that immediately after arrest the accused appellaht confessed his guilt before the Magistrate and his confessional statement was recorded properly after fulfilment of all legal requirements. The confessional statement is corroborated by medical evidence, recovery of the crime weapon at the pointation of the accused-appellant, recovery of crime empties and the reports of chemical examiner and fire arms expert. The credentials of the witnesses of recoveries also cannot be assailed. The mere fact, some of the witnesses belong to different villages and some of the witnesses are relatives of the deceased by itself, provides no ground to discard their testimony when there is nothing on the file to doubt their credentials.
14. An attempt has been made to show that medical evidence runs contrary to the prosecution story and the injuries on the person of the deceased are caused by shot gun and not by pistol. The submission has not impressed us. The medical evidence does not indicate in any manner that the weapon used in the crime was shot gun and not the pistol. The medical report fully supports the prosecution version and corroborates the prosecution story with regard to dimension and size of injuries found on the dead body of the deceased.
15. The accused-appellant admits his presence at the spot at the time of occurrence. Three persons are nominated in the F.I.R. For the crime but nothing has been brought on file in support of the accusation and during investigation of the case the accused-appellant is found guilty for the murder of his wife and rightly so.
16. For the reasons detailed above, we are of the considered view that the accused-appellant is the perpetrator of the crime and he is responsible for the murder of his wife. The evidence produced by the prosecution has been properly considered and appreciated by the learned trial Judge. We maintain the same and dismiss the appeal.