' MIAN MUHAMMAD AJMAL, J.---By this common judgment we propose to dispose of Criminal Appeals Nos.235 and 236 of 1995 as both of them have arisen from the common judgment impugned herein and involve identical factual background.
2. Brief facts are that on 28-7-1987, Javed Haider. Tareen, S.-I., Police Station Hashtnagri, Peshawar received information that Ahmed Sultan and Muhammad Hamayun, both Afghan Nationals, the convict/respondents herein, have arranged to bring explosive material from Afghanistan to Peshawar in a truck, which would be unloaded in Haji Baboo Sarai Chughal Pura. Consequently, he alongwith other Police Officials went there and found Truck No,JV 93 Kabul parked there and from its search, recovered explosive material alongwith two batteries and arms ammunition. The truck was taken into possession and report was sent to Police Station Chamkani, where F.I.R. No,222 under sections 5/6 of Explosive Substances Act was registered against the respondents and others.
The respondents were taken into custody by the Police in aforesaid case, who during investigation, disclosed that prior to their arrest they- had been residing at Quetta, where they had murdered three persons namely, Engineer Fahim, Mst. Kishwar Kamal alias Laila and Syed Faqir. They confessed their guilt, as such, their confessional statements were recorded by the Magistrates, on the basis whereof, Letter No,2782/Crimes dated 13-8-1987 was sent to the S.S.P., Quetta by the Assistant Inspector-General of Police Crimes Branch (N.-W.F.P.), Peshawar. In their confessional statements, they further disclosed that they buried the dead bodies of Syed Faqir and Kishwar Kamal alias Laila in the house of one Muhammad Aslam at New Faqir Muhammad Road, Quetta.
On the basis of confessional statement F.I.R. No,49 of 1987 was registered against them under sections 302/148/149, P.P.C. With Police Station Industrial Area, Quetta on 20-8-1987. The respondents were shifted from Peshawar to Quetta in Police custody and after necessary investigation they were sent to face trial. Another F.I.R. No,40 of 1989 under section 302/34, P.P.C.
Regarding murder of Engineer Fahim was registered at Police Station Sariab. The respondents moved applications under section 265-K, Cr.P.C. In both the cases which were accepted by the learned trial Judge and they were acquitted. However, on appeal, the said order was set aside and the cases were remanded to the trial Court to conclude the trial on merits. The prosecution case mainly hinges on the confessional statements of the convict/respondents wherein they stated that they alongwith absconding accused namely Khushhal, Qasim and Syed Masood Rahim committed the murder of the aforesaid persons. Both the cases were tried by the Additional Sessions Judge-III, Quetta. The respondents denied the allegations against them in their statements under section 342, Cr.P.C. They also made statements under section 340(2), Cr.P.C. The learned trial Judge, vide his judgment dated 31-7-1994, while believing the prosecution evidence, confessional statements corroborated by pointation of place of burial of the dead bodies, recovery of the dead bodies therefrom and the medical evidence convicted the respondents under section 302, P.P.C. For the murders of Mst. Kishwar Kamal alias Laila and Syed Faqir and sentenced them to imprisonment for life with fineof Rs,1,00,000 each or in default thereof to undergo two years' R.I. Each. On recovery, the fine was ordered to be paid to the legal heirs of the deceased in equal shares. Vide separate judgment of even date, the learned Judge convicted the respondents under section 302, P.P.C. For the murder of Engineer Fahim and sentenced them to imprisonment for life plus fine of Rs,1,00,000 each or in default to undergo R.I. For two years. The fine on recovery was ordered to be paid to the legal heirs of the deceased. The respondents were given the benefit of section 382-B, Cr.P.C. On appeals and revisions, a learned Division Bench of the High Court of Balochistan, Quetta vide its common impugned judgment dismissed both the revision petitions and the appeals and maintained the conviction and sentences of the respondents. Leave to appeal was granted by this Court to consider:- "While convicting the respondents accused under sections 302/34, P.P.C. For an offence punishable with death, the trial Court has sentenced them to imprisonment for life without stating reasons why sentence of death was not passed. In the impugned judgment, the A High Court has also failed to give reasons for not passing the sentence of death. Leave to appeal is, therefore, granted to consider whether, in the circumstances of the case, death sentence was the appropriate sentence or lesser sentence of imprisonment for life would have served the cause of justice."
3. Learned counsel for the appellants argued that both the Courts while passing sentence for brutal triple murder did not record any reason for not awarding the normal penalty of death to the respondents. Both the respondents confessed their guilt and made detailed and exhaustive confessional statements after they were apprehended at Peshawar. On their confessional statements, the investigation was carried out and on their pointation the dead bodies were recovered from inside the house/bungalows in presence of the marginal witnesses of the recovery memos., which fully corroborate their incriminating confessional statements. In such circumstances, the Courts under the law were required to award normal penalty of death to the respondents.
4. Learned counsel for the respondents argued that except for the confessional statements, there is no other evidence against the respondents, therefore, the sentences awarded to them are adequate and do not warrant enhancement.
5. After hearing the learned counsel for the parties and going through the record of ,the case, we find that both the Courts below have failed to record reasons for not awarding the normal penalty of death to the respondents in offences punishable with death. Section 367(5), Cr.P.C. Provides:-- "(1) to (4)....
(5) If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed: (6)
The recording of reasons for not awarding normal penalty of death in offences punishable with death, are mandatory, therefore, non-recording thereof would amount to non-compliance of the legal provisions. In various pronouncements, the superior Courts have deprecated the practice of noncompliance of the said provision by the Courts, who while convicting the accused in offences punishable with death, ignore the mandatory provision of law and award lesser penalty of life imprisonment. Some of the case-law on the subject is given hereinunder.
' In Mosaddi Rai v. Emperor (AIR 1933 Patna 100), it was observed that the Sessions Judge was bound to pass sentence of death unless there were substantial reasons for passing lesser sentence, which must be adequate and express and that the person accused of murder should not be sentenced to lesser penalty merely on the ground that the evidence was not strong enough to justify an irrevocable sentence because if the Court had any doubt as to the guilt of the accused, it should acquit him. In Abdus Sattar v. Muhammad Anwar (PLD 1974 SC 266), this Court set aside the acquittal of the respondents and restored the death sentences awarded to them by the trial Court as their acquittal recorded by the High Court was based on specious and conjectural reasoning leading to grave miscarriage of justice and there was no extenuating circumstances in their favour warranting lesser penalty in view of their cruel and inhuman conduct in burning alive two human beings in order to satisfy their lust for revenge. In Nabu v. The State (PLD 1975 SC 478), this Court declined to reduce the sentence of death as mere fact that _other three co-accused of the appellant, guilt of whom proved almost equal and undistinguishable had been awarded lesser penalty was no ground far interference. In Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452), this Court observed:-- ' "It has come to the notice of this Court that in an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial. Courts in awarding the normal penalty of death. I cannot also avoid an impression that there is often a marked tendency in the High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the Rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The, matter does not end with the finality of judicial proceedings as the Executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F.I.Rs,, the reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subordination and above all the lingering trial and appeals all combine to help out the murders of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the stating of deterrence, thus, indirectly contributing to the incidence of heinous crime of, which the Courts cannot fully escape the share of responsibility. Once the conviction is recorded under section 302, P.P.C. In a case of premeditated and concerted attack launched -with the intention of killing the invocation of section 34 or 149, P.P.C. Does not make the slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be, exacted and no discrimination could justifiably be made on that score in the matter of sentence."
' In Balohshish Elahi v. The. State (1977 SCM R 389), it was observed that the Legislature has conferred very wide discretion on the Courts in the matter of sentences and they are required to award severer sentences in view of increase in crime and exercise their discretion judicially keeping in view law and order situation. In yet another case, Jetharam v. Weram (1986 SCM R 1056), this Court enhanced the sentence of the respondent therein from life imprisonment to death as his act to kill an 'unarmed and helpless woman in sanctuary of her own house was condemnable and no mitigating circumstance existed. In Maqbool Ahmad v. The State (1987 SCM R 1059), the appellants claimed reduction in their sentences on the ground that because of delay in the disposal of their appeals before the High Court and the Supreme Court they had acquired expectancy of life but their plea was rejected by this Court holding that to reduce the sentences merely on the ground of delay in disposal of appeals of the convicts would amount to releasing almost all the murderers and letting them loose on the public, endangering human life and destroying whatever is left of peaceful existence of the ordinary citizen. In Muhammad Shard v. The State (1991 SCM R 1622), it was held:-- '"There can be no controversy that the normal penalty prescribed for the murder by the Divine Law as also the law of the land is death. A murderer is guilty of his action before The Almighty Allah. He is regarded as the murderer of humanity: A Judge is required to do justice on each and every aspect strictly in accordance with law and should nor would the alternatives to favour the guilty. It is the Divine will that we must be firm and resolute to do justice whether it be detrimental to our own interests or the interest of those who are near and dear to us. Mercy is the attribute of God but we are warned not to allow that which is otherwise unlawful---moreover, we should not show mercy to those who themselves are proved to have acted mercilessly."
' In Noor Muhammad v. The State (1999 SCM R 2722), this Court declined to reduce the sentence of the appellant as he committed the murder of two innocent girls in brutal and gruesome manner and observed that the people are losing faith in the Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It was observed that the Courts while deciding the question of guilt or innocence in murder and other heinous offences owe duty to the legal heirs/relations of the victims and also to the society and should award severer sentences to act as a deterrent to the commission of offences. In Muhammad Afzal v. Ghulam Asghar and others (PLD 2000 SC 12). It was held as under:-- ' "There may be cases where, though, motive is not established, but owing to heinous nature of the crime the accused may not be entitled to any leniency while awarding punishment to him.
Therefore, the question would depend upon the circumstances of each case.
' However, circumstances of the present case clearly indicate that there are no mitigating factors, benefit of which may go to appellant Ghulam Asghar. The circumstances of the case indicate that the act of the accused was too brutal and merciless. The deceased was a young man of about 18 years and he was deprived of his life when he was in the prime of his youth. It is no gainsaying that if circumstances of the case do not justify awarding of lesser penalty of imprisonment for life, sentence of death is to be awarded by the Court."
6. It is obvious from the above-cited case-law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the even doers an example and a warning to the like-minded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty-bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice C from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment, the Courts while awarding lesser punishment have to record reasons justifying the same. In the present case so far as question of sentence is concerned, both the trial Court and the High Court have failed to record reasons for awarding lesser punishment to the respondents, who committed preplanned triple murder in a very brutal and gruesome manner and buried the dead bodies in the houses, where they were killed. Till the time of disclosure of murders by the respondents themselves in their confessional statements, it was not known to anybody that they had killed three persons namely, Engineer Fahim, Mst. Kishwar Kamal alias Laila and Syed Faqir and their dead bodies had been buried in the houses, which were recovered at their instance from the places specified in the confessions, in presence of the Magistrates. Keeping in view the findings of both the Courts below that the prosecution has proved its cases against the respondents beyond any shadow of doubt, they did not deserve any leniency in sentence in premeditated cruel triple murder.
7. Now we advert to examine the validity of the confessional statements of the respondents to see whether conviction could be based on them. It is now well-settled that conviction can be based on confession alone even though retracted, if the same is found to be true and voluntary. The respondents, on their apprehension at Peshawar, voluntarily confessed their guilt in detailed statements made before the Magistrates. The facts of murders of three persons which were disclosed by the respondents in their confessions were not in the knowledge of anybody. On their disclosure of murders, the investigation was taken in hand and the dead bodies were recovered from the places which were pointed out by them in presence of the Magistrates. The Magistrates in their depositions have stated that they recorded the confessions after observing all legal formalities and the respondents voluntarily got their statements recorded, which were certified by them to be true and voluntary. The respondents recorded their detailed confessions disclosing various facts which were only known to them and the details whereof establish their voluntariness and truthfulness as such, both the Courts have correctly based their conviction by relying on the same. Some of the pronouncements on 'confession' are cited hereunder. In Habibullah v. The State (1971 SCM R 341), this Court observed:-- ' "In his statement before the Inquiry Magistrate the appellant did not repudiate the confession recorded by the S.D.M., Lakki, but said that he will make a full statement in the Sessions Court. The Statement made by the Sub-Divisional Magistrate during the trial left no doubt that the confession repro' duced above was made voluntarily. It was corroborated by the recovery of blood-stained dagger at his instance and the direct testimony furnished by Mir Zalam Khan and Ali Khan, real, paternal uncles of Sattar Khan, accused. We examined their statements. They appear to be witnesses of truth. Neither had any enmity with the appellant or the co accused Sattar Khan. The trial Judge was, therefore, not right in excluding their testimony from consideration which fully corroborated the retracted confession made by the appellant. In this view, we agree with the learned Judges of the High Court that the confession of the appellant was supported by ample and satisfactory evidence."
' In Abdul Majid v. The State (1980 SCM R 935), the learned Magistrate making a detailed statement at trial, which has been fully accepted by the Courts below as indicating that even though he did not record on paper that he had informed the petitioner that he was a Magistrate, yet he asserted that he had explained this fact to the petitioner. From the evidence of the Magistrate, we are fully satisfied that the Courts below were right in holding that the confession was voluntary and had been properly recorded in accordance with law. In Sheri Zaman v. The State (1989 PCr.LJ 1526), it was held that inculpatory confessional statement which is true and voluntary, though retracted at trial, would be acceptable for conviction and could be used against the accused. It was further held that a statement of confession would be acceptable to base conviction on, even without corroboration, if it be found to have a ring of truth and sound voluntary. In Wazir Khan v. The State (1989 SCM R 446), this Court rejected the plea that retracted confession was not sufficient in law to maintain conviction and held that there was no legal bar for recording conviction on a confession which was subsequently retracted if it was voluntary and true. In Muhammad Gul v. The State (1991 SCM R 942) it was held that retracted confession was sufficient to make basis for conviction and the Court as a rule of prudence seeks corroboration of the same on material particulars. It was further held that delay in getting judicial confessions recorded was not fatal as identification of the accused was proved by independent and reliable evidence and the same though retracted were found voluntary and consistent with prosecution case and were corroborated by ocular testimony of various witnesses. In Arabistan v. The State (1992 SCM R 754), it was observed that the judicial confession if rings true and voluntary can be made tL. Sole basis for the conviction of the maker thereof. However, if the same was retracted, even then its evidentiary value did not diminish if the same was corroborated from other facts and circumstances of the case. In other words in such eventuality independent corroboration from other evidence, direct and circumstantial, was essential. In Javaid Masih v. The State (1993 SCM R 1574), it was held that retracted confession could be taken into consideration if it was fully corroborated by authentic evidence as regards factum of crime and connection of the accused with that crime was concerned. In Muhammad Ismail v. The State (1995 SCM R 1615), it was held that delay in recording judicial confession per se was no ground to discard the same unless it was proved to have been obtained by coercion, threat, pressure etc. In Mst.Naseem Akhtar v. The State (1999 SCM R 1744), it was reiterated that conviction for a capital offence could be sustained on the basis of a retracted confession alone provided it was voluntary and true and the Courts as a rule of prudence, look for its corroboration by other reliable evidence.
It was further observed that any lapse on the part of the Magistrate recording a confession, may not be fatal as to its evidentiary value provided the Court was satisfied that the lapse on his part had not, in any way, adversely affected its voluntariness or truthfulness. In Fazal Mahmood v. The State (1999 SCM R 2040), it was held:-- ' "Lastly it was argued that the retracted confession could not form basis of conviction. The argument is without any substance. The confession of crime by a person, who has perpetrated it, is usually outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. To arrive at a conclusion as to whether a retracted confession may form basis of conviction if believed to be true and voluntarily made, the Court has to take into consideration not only the reason given for making the confession or retracting, but the attending facts and circumstances surrounding the same. There can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially.
' However, the prudence requires that by way of caution, to convict a person on the basis of retracted confession, corroboration must be sought. This, however, does not necessarily mean that each and every circumstances mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that corroboration must come from facts and circumstances discovered after confession was made."
' In Nasar Khan v. The State (2000 SCM R 130), it was held:-- ' "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 pointation 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 pointation. This is yet another strong piece of evidence linking him with the crime."
' In Nasreen Akhtar v. The State (2000 SCM R 1634), it was held that mere fact that the co-accused had retracted the extra-judicial confession would not by, itself lessen its evidentiary value if it had been fully corroborated in material particulars by recovery evidence of crime weapons, medical evidence and opinion of Handwriting Expert.
8. The above-cited case-law makes the proposition fully established that the confessional statement even if retracted subsequently but found to be voluntary and true and is supported by some corroborative material, the same can solely be made the basis for conviction. In this case, the confessions are corroborated by recovery of dead bodies from the places specified in the confessional statements. Alongwith the dead bodies, rope, revolver alongwith its empties and gold ring of Mst. Laila, were also recovered, in presence of the Magistrates, who have proved the factum of recovery in their depositions in Court. According to Dr. Muhammad Younas Zarkoon P.W.8, the dead bodies of Mst. Laila and Said Faqir were exhumed from the lawn of the house, who had ligature (rope) around the neck and their hands and legs were tied with ropes. The cause of death of both the deceased was obstruction to their air passage, i.e, trachea caused by a ligature followed by shock and death. Their hyoid bone and thyroid cartilage were also found fractured.
Similarly, the cause of death of Engineer Fahim, according to Dr. Abdul Sattar (P.W.2), was obstruction to the air passage by a ligature shock and death. The confessional statements of the respondents also find corroboration from the medical evidence as both the accused had stated in their confessions that they with the help of absconding accused strangulated Mst. Laila and Said Faqir and buried them in the lawn of the house and they also strangulated Engineer. Fahim and buried him there where he was killed. The confessional statements are fully corroborated by the circumstantial evidence which has proved that the convict/respondents committed the pre- planned calculated murders in a highly brutal and callous manner.
9. It is pertinent to point out that the respondents had filed petitions for leave to appeal against their conviction and sentences, which were dismissed by this Court on 14-3-1995 with the following observations:-- ' "We find no merit in the contention of the learned counsel. Admittedly no report was ever lodged about the commission of offence in question at Quetta as these were blind murders committed inside the boundaries of the house/bungalow and buried therein. It was for the first time after recording of the confessional statement of the petitioners that the investigation was started by the Crime Branch, Quetta in line with the confessional statement. The accused/petitioners led to the place of occurrence, as deposed in the confessional statement, and the dead bodies were recovered in presence of the witnesses who have been believed by both the Courts below. The fact that the confessional statement has not been relied upon by the learned Judge in the High Court at Peshawar is of no substance in the context of the present case as in the instant case the investigation was taken in hand for the first time on receipt of confessional statement from A.I.-G.
Police, N.-W.F.P., Peshawar. This confessional statement was fully corroborated by the circumstantial evidence of pointation by the accused and recoveries of the dead bodies, which is incompatible with the plea of innocence of the accused/petitioners. Such being the case when the confessional statement is fully corroborated by the circumstantial evidence in the instant case the Courts below were justified in basing reliance on it and recording conviction of the accused petitioners. Petitioners have been found guilty of heinous offence of murder of three persons in all and that they have been leniently dealt with while not imposing on them the normal penalty of death.
' Accordingly, leave is refused."
' The review petitions filed by the respondents were also dismissed by this. Court on 13-8-1998.
10. In view of the above discussion, we are of the view that no mitigating or extenuating circumstances existed warranting lesser penalty to the respondents, therefore, they were not entitled to be awarded lesser punishment. We, accordingly, accept these appeals and alter the sentence of the respondents from life imprisonment to death on three counts. They shall be hanged by neck till they are dead. The rest of the sentences are maintained.
Sentence enhanced.