MIAN MUHAMMAD AJMAL, J.---This appeal, by leave of the Court, is directed against the judgment of he High Court of Balochistan, Quetta dated 6-1-1998, whereby Criminal Jail Appeal No,291 of 1997 of the appellant was dismissed and his conviction and sentence were maintained.
2. The facts of the case have elaborately been given in the leave granting order, which is reproduced hereinbelow:-- "Raz Muhammad petitioner stands convicted under section 302, P.P.C." and sentenced to imprisonment for life plus fine for the triple murders of Abdullah, Muhammad Ullah and Mst. Saad Bibi deceased. He has also been convicted under section 324/34, P.P.C. And sentenced to 8 years'
R.I. Plus fine for causing injuries to Amanullah P.W. AlL the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. On appeal, his conviction and sentences were maintained by the High Court vide judgment dated 6-1-1998. He has petitioned from jail against his conviction and sentences. The prosecution case, in brief, is that on 16-7-1995 Raz Muhammad petitioner alongwith Rehmatullah visited the house of the in-laws of his sister where a quarrel ensued in the course of which the petitioner and his co-accused opened fire resulting in the deaths of Abdullah, Muhammad Ullah and Mst. Saad Bibi and injuries to Amanullah P.W. During investigation, the accused led to the recovery of a pistol which circumstance was not considered of any significance by the learned trial Court, for, it was not found in a working condition. The prosecution failed to examine any eye-witness including the injured witness for want of their availability and mainly relied on the confessional statement of the petitioner recorded by Mr.Hamidullah Sherani P.W.1, M.I.C. In his statement under section 342, Cr.P.C. The petitioner retracted from having made any such confessional statement. Considering the confessional statement to be true and genuine the learned trial Court convicted and sentenced the petitioner as stated above. The extreme penalty was withheld as in the opinion of the learned trial Court the occurrence had taken place in the heat of moment without any premeditation and the petitioner was provoked on the allegation levelled by the deceased party about the modesty of his sister. Raz Muhammad convict-petitioner contends that he is innocent and there is no material justifying his conviction.
Since neither any eye-witness, nor the complainant, nor the injured witness was examined to prove the charge against the petitioner and his conviction is solely based on his retracted confession, it is considered appropriate to grant leave to consider whether in the absence of any other evidence it was safe to record conviction of the petitioner on that piece of evidence alone."
3. According to F.I.R. Lodged by Qudrat Ullah son of Muhammad Ullah on 16-7-1995, he was informed by his younger brother Abdul Haq at 9-20 a.m. In city where he had gone for labour that their brother-in-law Raz Muhammad alongwith his father Fazal Muhammad, brother Rehmat alias Nanai and mother Taj Bibi came to their house. Raz Muhammad and Rehmat alias Nanai started firing at his mother Saad Bibi, father Muhammad Ullah and brothers Amanullah and Abdullah and injured them. Upon this information he rushed to the hospital and found his brother Abdullah dead while mother Saad Bibi was seriously injured, his father Muhammad Ullah and brother Amanullah were lying injured. Motive was that his sister Noor Bibi was married to Raz Muhammad while Raz Muhammad's sister Fatima was married to his brother Abdullah, due to which there was a family dispute. The appellant was arrested on the same day by Gulzar Hussain, S.-I. (P.W.6) who after necessary investigation submitted challan of the case in Court. The trial Court framed the charge to which the appellant pleaded not guilty and claimed trial. At the trial, prosecution produced Hameedullah Sherani, A.C. ,(P.W.1), Muhammad Naseem Lehri (P.W.2), Abdul Khaliq, Head Constable (P.W.3), Muhammad Jabbar, Constable (P.W.4), Akhtar Hussain Fire-Arms Expert (P.W.5), Gulzar Hussain Shah, S.-I. (P.W.6) and Dr. Khalid Humayoon (P.W.7). After close of prosecution evidence, accused/appellant was examined under section 342, Cr.P.C., who refuted the allegations put to him. In this case no eye-witness even the complainant and the one who got injured in the occurrence appeared before the trial Court to record their statements. The only evidence against the appellant is his confession which was retracted by him at the trial in his statement recorded under section 342, Cr.P.C.
4. According to Gulzar Hussain Shah, S.-I. (P.W.6) accused-appellant was arrested on the same day i,e, the day of occurrence, from Killi Almas Sheikhamanda, Quetta and on the next day on his pointation pistol .22 bore was recovered containing three live cartridges in the magazine from under the grass near his house. On 19-7-1995 he was produced before Hamidullah Sherani, EAC for recording his confession, who recorded his confessional statement.
5. Learned counsel for the appellant contended that confessional statement was neither voluntary nor true as the same was made when the appellant was in police custody and was under its pressure and duress, therefore, the same cannot be relied upon. He further submitted that in absence of corroboration, it is not safe to base conviction on such a confession.
6. On the other hand, learned State Counsel submitted that the accused confessed his guilt on 3rd day of the occurrence and gave a detailed narration of events which were in his knowledge alone, and he made a clean breast confession of the triple murder and an attempt to murder on Amanullah.
7. The appellant remained in police custody for two days and on the third day he was produced before the Magistrate for recording confession. The recording of judicial confession after two days of police custody would not affect its voluntariness. Before, recording confessional statement, the Magistrate, in order to satisfy himself that the accused was not under pressure and was in a position to make voluntary statement put him the questions as contained in the form. The accused while answering Questions Nos.6 and 7 whether he was tortured by the police and whether police has pressurized or induced him to confess his guilt, replied in the negative. Vide Questions Nos.8 and 9, he was asked as to why he was making confession and whether he was voluntarily recording his statement, he stated that he was voluntarily making the confession without any duress or coercion. Had there been any torture, duress, coercion of inducement from the police, he would have complained the same to the Magistrate who had provided him free atmosphere to say anything but he opted and showed his willingness to make voluntary confession wherein he disclosed the facts which were only known to him. Hamidullah Sherani, A.C. (P.W.1) stated that he after observing all the legal formalities recorded confessional statement of the accused and in this respect issued a certificate which is appended with the confession. The appellant in his confession stated that about 2 years back he was married to Abdullah's sister and Abdullah was married to his sister. After about a year Abdullah told his mother that her daughter was not of a good character which came to the notice of his father and he also came to know of it. He went to the house of his father-in-law and complained against Abdullah who told him that Abdullah is a fool and he will make him understand. Thereafter, Abdullah went to Gulistan alongwith his wife and returned after a month. His mother went to Abdullah's house to enquire about the welfare of her daughter and to bring her home for a few days but it was not agreed by her daughter's in-laws. On 16-7-1995 he alongwith his mother, father and brother Noor Muhammad went to Abdullah's house. During the talk altercation took place, Abdullah attacked his mother and injured her on her head and hand with knife. Upon this he and Noor Muhammad took out their pistols. He fired at Abdullah, Muhammad Ullah, his father and gave a blow with pistol on the head of Amanullah. In the meantime, Amanullah's mother intervened, he also fired at her which hit her at her abdomen. He stated that firing was done by him alone and Noor Muhammad did not fire. Many people came to the spot and they made their escape good. Thereafter, he went into hiding and at about 4-30 p.m.
Left for his house, where he was arrested.
8. The bare reading of the aforesaid statement would show that it is inculpatory in nature and rings true. The detail given by the appellant regarding their relationship and subsequent events established its voluntariness. Although confession was retracted at the trial yet it being voluntary and true could be relied upon and used against its maker. In Wazir Khan v. The State 1989 SCM R 446 this Court has held as under:-- "There is no legal bar for recording a conviction on a confession which is subsequently retracted if it is voluntary and true. We have not come across any infirmity in the confessional statement of the appellant to render it as unacceptable. On the other hand, we are of the view that the appellant had told the truth."
There is no reason to disbelieve the statement of the Magistrate who is independent official witness, who stated that before recording confessional statement of the accused, he removed his handcuffs and informed him that he has been produced by police for recording his statement. He was warned by him that he was not bound to give any statement and if he does not wish to record his statement he would not be handed over to police. He gave him time to think over it and thereafter he recorded his confessional statement with his own consent. The confessional statement finds corroboration from medical reports of the deceased and the injured. The locale of the injuries and the weapon with which the same were caused as given in the medical certificates are the same as stated in the confessional statement.
9. The complainant has admitted the relationship of the parties as given by the appellant in his confession, altercation before the murderous assault and fatal firing by the appellant and his brother in his statement which was incorporated in the F.I.R.
10. In view of the above, confession has been proved to be voluntary and true and thus it could be relied upon. Consequently, we concur with the judgment of the learned High Court and finding no merit in this appeal, dismiss the same.
11. With utmost regards for my learned brother, I entirely agree with conclusion and reasons recorded in support of the judgment. However, cannot subscribe to the observations made in paragraph No,9 of the judgment for the reasons that complainant Qudrat Ullah did not appear in the dock to substantiate the contents of the F.I.R. Exh. P.6-A. It is well-settled that contents of a document must be proved by direct evidence of the author. In the instant case, since the complainant was not examined at the trial, in my humble view contents of the document cannot be relied upon in support of the judicial confession of the appellant as a corroborative piece of evidence. Irrespective of the above note, the fact remains that the appeal is without any merit and the findings of the trial Court as well as the High. Court do not warrant any interference.