GHULAM QADIR and others vs THE STATE

' NASIR-UL-MULK, J.--- The four appellants were convicted under sections 302/109/34, P.P.C. By the Special Judge, Kalat Division, on 25-2-1999 for the murder of two brothers, Muhammad Hassan and Abdul Nabi, and each of them was sentenced to imprisonment for life, with the benefit of section 382-B, Cr.P.C. The appellants appealed against their conviction and sentence whereas the father of the deceased filed a revision petition for the enhancement of sentence. By the impugned judgment, dated 20-7-1999, the High Court of Balochistan dismissed the appeal as well as the revision by upholding the judgment of the trial Court. The appellant were granted leave to appeal on 21-7-2000 on the following grounds:- "It is admitted position that there is no direct ocular account about the guilt of the petitioners but their conviction has been founded on circumstantial evidence and retracted confession.

' We, therefore, grant leave to scrutinize the case in the light of the relevant law, the probative value of the evidence used for conviction in this case in order to determine whether guilt of the petitioners has been established beyond doubt."

2. The F.I.R. In the case was registered on the report lodged by Khalil Ahmed Sepoy of the levies on 15-8-1998 which briefly runs as under:-- "It has come to my knowledge just now that Muhammad Hassan and Abdul Nabi sons of Muhammad Hussain, caste Mengal while riding on a motorcycle were shot at by unknown persons from yellow colour car, killing both of them. That the accused had made good their escape in the same vehicle."

3. After registering a case on the above report Manzoor Ahmed, Naib Tehsildar, Kalat commenced investigation and passed on the information to the Assistant Commissioner, Soorab, that the accused had. Proceeded towards his territorial jurisdiction. After receiving the information the Assistant Commissioner alerted the levies of his area, who managed to trace the yellow car and eventually arrested the accused; the present four appellants. Meanwhile the Investigating officer along with the Assistant Commissioner, Kalat reached there, who formally arrested the accused.

On the pointation of Ghulam Qadir appellant, the Investigating Officer recovered the kalashnikov used in the commission of the crime. All the accused made confessions before the Magistrate, recorded on 22-8-1998. From the scene of occurrence 16 empties were secured which were sent to the Fire-arm Expert along with the kalashnikov recovered at the pointation of Ghulam Qadir accused, whose report is positive.

4. Mr. M. Zairian Bhatti, Advocate Supreme Court appeared for the appellants and Mr. Mehmood Raza, Additional Advocate-General Balochistan for the State. The learned counsel for the appellants argued that it was an unseen occurrence and the main prosecution evidence in the shape of confessional statements of the accused are unreliable in that the same were recorded seven days after the arrest of the accused and one of the accused namely, Ghulam Qadir, had in answer to a question put to him by the Magistrate before recording confession stated that he was tortured by the levies personnel. He thus, argued that it would not be safe to maintain the conviction on such evidence. In response, the learned Additional Advocate-General of Balochistan referred to the statement of Ghulam Nabi Magistrate (P.W.9), who recorded the confessional statements, to contend that the Magistrate had clarified that the answer by Ghulam Qadir accused to the question regarding torture was erroneously recorded. He further submitted that the accused were arrested soon after the incident and all of them voluntarily confessed their guilt before the Magistrate. That delay per se in the recording of a confessional statement would not reflect upon its voluntariness.

5. Since the first information report was not recorded on the information by an eye-witnesses but by a personnel of the levies, who was not even aware of the identity of the accused, the complete picture of the incident can be gathered from the confessional statements of the accused, which are consistent in the narration of the incident. The motive for the murder given by the accused in their confessional statements is a dispute between the deceased and the accused over property.

Ghulam Qadir and Ghulam Murtaza appellants are brothers inter se and so are the other two appellants Aziz Ahmad and Nazir Ahmad. A day prior to the murders the accused had gone to settle the dispute through the intervention of third party but instead the two deceased insulted and pelted stones at the appellants. On the day of occurrence the appellants while going in their vehicle had noticed the two accused riding on a motorcycle. The appellants chased them and Ghulam Qadir with his kalashnikov fired and shot the two brothers, killing them instantaneously.

They escaped from the scene in their vehicle and when later surrounded by the personnel of levies, Ghulam Qadir threw his kalashnikov into the bushes to get rid of it, which was later retrieved by the Investigating Officer at his pointation.

6. The prosecution case rests upon the confessional statements of the four appellants, the recovery of the weapon of offence and its matching with the empties secured from the spot as well as the arrest of the appellant soon after the incident.

7. The confessional statements of the appellants were, recorded by the Magistrate on 22-8-1998, seven days after their arrest. Undoubtedly some delay was caused in recording these statements.

Delay in recording judicial confession becomes relevant to determine its voluntariness. However delay, without more, does not render the confession involuntary. (See Muhammad Yaqoob v. The State 1992 SCM R 1983). The Magistrate (P.W.10) recording the confession had complied with all the formalities required under the law to ensure that the accused were making confessions voluntarily.

Nothing has been brought on the record by the defence that would reflect upon the voluntariness of the confessions. The appellants' confessions therefore, cannot be thrown out simply because the same were recorded seven days after their arrest.

8. True that during the recording of the confessional statement of Ghulam Qadir in answer to a question put by the Magistrate as to whether he had been tortured by the levies; his answer is recorded in the affirmative. However, the Magistrate recording the confession in his testimony has clarified that such recording of the answer was a clerical error and that actually the accused answer to the question was in the negative. The explanation put forth by the Magistrate is plausible as all the other three accused had answered the same question in the negative. Even if the accused had been subjected to some kind of torture its affects on the mind of the accused at the time of making confession had disappeared as the accused had still proceeded voluntarily to make confession. In any case the confessional statement of Ghulam Qadir otherwise rings true as it is in line with the confessional statement of the other three accused.

9. Though confession of accused if voluntary and true is itself sufficient to convict an accused, in the present case not only, the confession of each of the accused is corroborated by the confessional statements of the other accused, further corroboration is provided by two other pieces of evidence. The kalashnikov used by Ghulam Qadir accused for shooting down the two deceased and which he threw away into the bushes just before his apprehension was recovered by the Investigating Officer at his pagination soon after his arrest: The empties recovered from the scene of occurrence wedded with the said weapon. Another strong circumstance against the appellant is their arrest soon after the incident, when they were chased by the officials with the help of the levies, from the, same car the description of which was given in the F.I.R.

10. From the above resume of the evidence we have no hesitation in holding that the prosecution had successfully proved its case beyond reasonable doubt. We, therefore, are not inclined to interfere with the concurrent findings of the two Courts. Resultantly the appeal is dismissed.