Javed Iqbal, J.--This petition for leave to appeal is direct against the judgment dated 28.11.2002 passed by learned Division Bench of the Peshawar High Court, Peshawar, whereby the Criminal Appeal Bearing No, 193 of 2002 has been dismissed and the judgment of learned Additional Sessions Judge Swat dated 17.6.2002 whereby petitioners were convicted under Section 302/34 PPC to death on two counts has been kept intact
2. Precisely stated the facts of the case are that the petitioners were apprehended by the police of Mingora for committing murder of Abdur Rahim and Naz Parwara on 8.8.2000 at 3.30 a.m. in their house. After completion of investigation the petitioners were sent up for trial and on conclusion whereof convicted under Section 302/34 PPC and sentenced to death.
3. Mr. Asadullah Khan Chamkani, learned ASC entered appearance on behalf of petitioners and urged strenuously that it is a case of sheer non-reading and misreading of evidence and conviction has been awarded on the basis of conjectural presumptions having no nexus with the record which. according to him was never perused in depth. It is next contended that no conviction could have been awarded on the basis of retracted confession which was got recorded with an inordinate delay and in violation of the mandatory provisions as contemplated in Sections 164 and 364 Cr.P.C. It is urged vehemently that the dubious character of Mst. Naz Parwara was ignored who could have been killed due to her misdeeds by anyone. It is also pointed out that harsh punishment has been awarded which does not commensurate with the gravity of offence.
4. We have carefully examined the contentions as agitated on behalf of petitioners in the light of relevant provisions of law and record of the case. We have also gone through the judgment of the learned trial Court dated 17:6.2002 as well as the judgment impugned. We have scanned the entire evidence with the eminent assistance of learned counsel. We are not persuaded to agree with the prime contention of Mr. Asadullah Khan Chamkani, who appeared on behalf of petitioners that the conviction could not have been awarded on the basis of retracted confession for the reason that once the confession is found true and voluntary irrespective of the fact whether it is retracted or otherwise conviction could have been awarded subject to corroboration. We have arrived at this conclusion after having gone through the entire case law from our own jurisdiction as well as that of Indian jurisdiction laid down in the following cases:- Javaid Masih v. The State (1993 SCM R 1574), Muhammad Amin v. The State (PLD 1990 SC 484), Muhammad Akram v. The State (1995 SCM R 1359), Muhammad Yaqoob v. The State (1992 SCM R 1983), Bhuboni Sahu v. The King (PLD 1949 PC 90), Nadir Hussain v. The Crown (1969 SCM R 442), Rasool Bux v. The State (1974 P.Cr.L.J. 325), Wali Muhammad v. The State (1986 P.Cr.L.J. 1153), Muhammad Amin v. The State (PLD 1990 SC 484), Syed Sharifuddin Pirzada v. Sohbat Khan (PLD 1972 SC 363), Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53), Muhammad Gul v. The State (1991 SCM R 942), Arabistan v. The State (1992 SCM R 754), Habibullah v. The State (1971 SCM R 341), Inayat Masih v. The State (1980 SCM R 937), Bahadur Khan v. The State (PLD 1995 SC 336), Muhammad Yousaf v. The State (1995 SCM R 351), Najib Raza Rehmani v. The State (PLD 1978 SC 200), The State v.
Minhun (PLD 1964 SC 813), Joygun Bibi v. The State (PLD 1960 SC [Pak.] 313), Wazir Khan v. The State (1989 SCM R 446), Karam Ali v. State (1968 SCM R 1025), Abdur Rashid v. Umid All (PLD 1975 SC 227), Naqibullah v. The State (PLD 1978 SC 21), Kamir v. Nazir Ahmad (1980 SCM R 791), Muhammad v. The State (PLD 1981 SC 635), Varand s/o Fazal u. Emperor (AIR [31] 1944 Sind 137), Sultanalias Sullah v.
Emperor (AIR [32] 1945 Lah. 91), State v. Balchand (AIR 1960 Rajasthan 101), Ram Chandra v. U.P.
State (AIR 1957 SC 381), Krishna Nandan v. The State (AIR 1958 Pat. 166), Emperor v. Lal Bakhsh (AIR
32. 1945 Lah. 43), Subrmania Goundan v. The State of Madras (PLD 1958 SC [Ind.] 254), Hanumant Govind Nargundla u. State of Madhya Pradesh (AIR 1952 SC 343), Bakhshan v. Emperor (AIR 1936 Lah. 247).
5. The judicial consensus seems to be as follows:-- (a)Retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary then there was no need at all to look for further corroboration. As against the maker himself his confession, judicial or extra judicial whether retracted or not retracted, can in law validly from the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture of coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law.
(b) The retracted confession unless it is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true.
(c) The retraction of a confession is a circumstances which has no bearing whatsoever upon the questions whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether confession voluntary, and if so, whether it was true, for to withdraw from a self-explicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntarily nature, or the truth of the facts stated.
(d)For the purpose of arriving at the conclusion whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made, the Court has to take into consideration not only the reasons 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. But as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated. This, however, does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made.
(e) The inculpatory part of a confession can be accepted and exculpatory part rejected if there is corroborative evidence to support the inculpatory part. Similarly where there is evidence upon the record to show that the exculpatory part is false, the Court can ignore the exculpatory part and convict the accused on the basis of the inculpatory portion of the confession.
(f) The confession of an accused person is substantive evidence and a conviction can be based solely on the confession. The question, however, as to whether on the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession. Normally speaking it would not be quite safe, as a matter of prudence if not of law, to base a conviction for murder on the confession of the alleged murderer, by itself and without more, when the confession is open to good deal of criticism.
(g) Corroboration of confession can be furnished by a piece of evidence only when it renders inculpatory part of confession more probable.
(h) The Court can base conviction solely on confession or on statement of accused yet could not reject part of confession or statement going against prosecution case.
(i) It is bounden duty of the prosecution to prove that the confessional statement is voluntary in order to use as evidence.
(j) Retracted confession can be taken into consideration provided it is fully corroborated by authentic evidence as' regards factum of crime and accused's connection with that crime.
(k) Retracted confession should be accepted only if it is corroborated by clear cogent and independent evidence. Although there is no such provision to accepted retracted confession on this basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily, free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reason given for retracting is probably false, absurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though no necessary to seek some corroboration for retracted confession. The corroboration of such confession should be of material particulars connecting the accused with the offence.
(l) The Court before convicting an accused person solely on the basis of his retracted confession must satisfy itself that it is voluntary and true and is corroborated by some independent direct or circumstantial evidence, to ensure safe administration of justice.
(m)A retracted confession is sufficient to make the basis of recording a conviction, but Court as a rule of procedure seeks corroboration of the same on all material particulars.
(n)No legal bar exists for recording a conviction on a confession which is subsequently retracted if it is voluntary and true. No infirmity having been found in confessional statement of accused to render it unacceptable and accused having tole truth, he was rightly found guilty.
(o)The genuineness, authenticity and truthfulness of the recording confessional statement becomes above board when it is proved by the Magistrate recording the same.
(p)The judicial confessions if ring true and are voluntary can be made the sole basis for the conviction of the makers thereof. However, if the same are retracted, even then its evidentiary value is not diminished if the same gets corroboration from other facts and circumstances of the case. In other words in such eventuality independent corroboration from other evidence, direct and circumstantial, is essential.
(q)That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.
(r)In order to judge the evidentiary value of a 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 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 a confession, would not warrant disregarding of the same.
6. The case in hand has been examined on the touchstone of the criterion as laid down in various judicial pronouncements as discussed above. It transpired from scrutiny of record that confessional statements were got recorded by Muhammad Hussain, Maga Qazi (P.W.1) after completion of all the mandatory legal requirements as envisaged under the relevant provisions of law. No infirmity or illegality could be pointed out by Mr. Asadullah Khan Chamkani, learned ASC except that the confessional statements were got recorded by coercion and duress which hardly deserves any consideration because no such suggestion was put to Muhammad Husain, Illaqa Magistrate (P.W.1) by whom the confessional statements of both the petitioners were recorded separately. Here at this juncture the question would arise as to whether any corroboratory material is available which lends support to the confessional statements? The answer would be in affirmative as the factum of murder was in the exclusive knowledge of petitioners at whose pointation the dead bodies of Abdur Rahim and Mst. Naz Parwara were got recovered from the house of deceased situated in Mohallah Bostan Khel Mingora. We are of the considered view that the said recovery could not have been made without pointation which was admittedly made by the petitioners. The factum of recovery of dead bodies of Abdur Rahim and Mst. Naz Parwara at the pointation of petitioners lends full corroboration to the retracted confession. Besides that blood stained daggers were also recovered from the bundle which was being carried out by both the petitioners at the time of their apprehension by police. As mentioned herein above the conviction could have been upheld if the confessional statements are found true and voluntary. "In so far as the corroboration is concerned it is not rule of law but usually it is followed in the interest of justice and for the sake of abundant caution. In the case in hand the retracted confession finds corroboration from the recovery of dead bodies made at the pointation of the petitioners as well as by medical evidence. In our view recovery of dead bodies at the pointation of petitioners, medical evidence and blood stained daggers lend sufficient corroboration.
7. The motive as narrated by petitioner namely Fazal Rehman in his confessional statement that Mst. Naz Parwara used to instigate his wife for leading immoral life due to which he nourished grudge finds support from the manner in which Mst. Naz Parwara was done to death who received 18 stab wounds which demonstrates the gravity of offence, extreme degree of grudge and revengeful conduct of the petitioner namely Fazal Rehman. The prosecution has established the guilt beyond shadow of doubt by producing cogent and concrete evidence. The confessional statements made by the petitioners being voluntary and true duly corroborated by the recovery of dead bodies at their instance, medical evidence, recovery of blood stained daggers and motive has rightly been relied upon by the Courts below. We may mention here that the confessional statements were got recorded with promptitude and no inordinate delay whatsoever was caused rendering any assistance to the case of defence as pressed time and again by Mr. Asadullah Khan Chamkani, learned ASC.
8. We have also adverted to the alternate plea that sentence of death does not commensurate with the gravity of offence as such it may be altered to that of life imprisonment appears to be devoid of merit because in the absence of mitigating circumstances the question of alteration of the sentence of death to that of life imprisonment does not arise as the normal prescribed sentence for Qatl-e-Amd is death which has rightly been awarded, to the petitioners who had committed murder of two persons in a callous and brutal manner and don't deserve any leniency.
In this regard we are fortified by the dictum laid down in the following authorities:--
(i) Muhammad Sharif v. Muhammad Jawed (PLD 1976 SC 452).
(ii) Wazir Ali v. The State (1999 SCM R 1469).
(iii) Muhammad Afzal v. Ghulam Asghar (PLD 2000 SC 12).
(iv) Sakhawat v. The State (2001 SCM R 244).
(v) Ijaz v. The State (2002 SCM R 294).
The conclusions as arrived at by the learned High Court being well based and unexceptionable does not warrant interference. The petition being devoid of merit is dismissed and leave refused.