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Criminal Petition No 16‑P of 1980, decided on 23rd June 1980

(On appeal from the judgment and order of the Peshawar High Court, dated 13‑9‑79 in Criminal Appeal No. 19; D of 1978).

(a) Criminal Procedure Code (V of 1898)‑‑

‑ S. 164‑Confession, recording of‑Magistrate making a detailed statement at trial, and such statement fully accepted by Courts below, as indicating that even though he did not record on paper of having informed accused, petitioner of his being a Magistrate yet he explained such fact to petitioner‑Courts below, held, right, In holding confession to be voluntary and properly recorded in accordance with law‑

.

Muhammad Ramzan v The State P

L D 1961 Lah 167; Hakim Gut v The State P

L D 1964 Pesh 1 Shail Anwar v The State P

L D 1977 Pesh. 61 and Nasibullah and another v The Stare P L D 1978 S C 21 ref.

(b) Evidence Act (I of 1972)‑

----Ss. 21 8t 30‑Confession‑‑Admissibility‑Witnesses corroborating various portions of petitioner's confession‑Confession showing him to be a member of criminal gang and having travelled by bus to place of commission of dacoity‑‑Nothing brought on record to show witnesses noticing presence of petitioner having any motive to give false evidence against petitioner‑Statements of witnesses further showing their being fully acquainted with confessing accused before incident‑‑Court below, held, justified in circumstances in acting on retracted confession of petitioner as corroborated by oral evidence of certain; prosecution witnesses [ confession].

Mahfuz Khan, Advocate with‑ Nur Ahmad Khan, Advocate‑on‑Record for Petitioner

Nemo for the state.

Date of hearing 23^rd June 1980.

‑Petitioner Abdul Majid was tried, along with 9 others, by the4earned Sessions Judge, Mardan. While 5 persons were acquitted, the petitioner and 4 others were convicted under section 395/397, P. P. C., and each of them sentenced to undergo rigorous imprisonment for seven years and also fine of Rs. 500, or in default to undergo further rigorous imprisonment for one month. Their appeals have been dismissed by a learned Judge of the Peshawar High Court by his judgment dated the 12th of September, 1979. Only the petitioner seeks leave to appeal against this judgment.

According to the prosecution, the petitioner and his associates stopped a passenger bus near a place called Nar Sahibzada Milad Khel Adda, in the jurisdiction of Police Post Gambeela in the Mardan District, at about 3‑30 a.m. on the 19th of January, 1976. They were all variously armed. Five or six of them entered the bus and the rest stood near the door of the bus. They snatched valuables like cash and watches from the passengers and the conductor of the bus, and also gave blows with the butts and barrels of their rifles to the driver of the bus. They deprived him of his wrist‑watch and wallet. Owing to the arrival of a truck the bus driver Umer Khan got an opportunity of driving away. Thereupon the culprits started firing at the bus from the rear, as a result of which a passenger inside the bus was injured, and the two left side rear tyres and the left side front tyro were hit, but the driver managed to drive on to the bus stand at Gambeela. Reaching there, he lodged the F. I. R. at 4‑10 a.m. at the Police Post. He stated that he would be able to identify the culprits.

As a result of investigation, the petitioner and his co‑accused were arrested, and all the

ten made confessional statements before Mr. Ghulam Muhammad Khan, Assistant Commissioner Lakki. At the instance of some of the accused persons some recoveries were also made, and they were also found to have sustained some injuries, which corresponded to the time and date of the occurrence. Although the accused persons retracted their confessions, yet they have been treated by the Courts below as voluntary and true. As against the present petitioner, the Courts have also taken into consideration the evidence of Abdul Majeed (P. W.8), Fazal Rehman (P. W. 9), Abdul Ghafoor (P. W. 11) and Abdul Qayyum (P. W. 21) as providing corroboration of certain parts of the confession.

Leave to appeal is sought on the grounds that the confession by the petitioner was not voluntary, as it was made on the 8th day of his arrest; and that the Magistrate did not comply with all the formalities enjoined by the law, inasmuch as he did not record that he had informed the accused that ha was a Magistrate; and that, in any case, the confession was self‑exculpatory. It is further contended that the retracted confession stood uncorroborated, and, therefore, it was not safe to rely on the same for convicting the petition. In support of his submissions, the learned counsel has placed reliance on Muhammad Ramzan v. The State (P L D 1961 Lah. 167), Hakim: Gut' v. The State (P L D 1964 Pesh. 1), Said Anwar v. The State (P L D 1977 Pesh. 61), and Naqibullah and another v. The State (P L D 1978 S G A).

After perusing the available record and hearing the learned counsel for the petitioner at some length, we have formed the view that there is no justification

for our interference with the conviction and sentence recorded against the petitioner

by the trial Court and, upheld by the High Court.

As

regards the validity of the confession made by the petitioner before a Magistrate of the First Class, the first point to be noticed is that the petitioner is a literate person; and he fully knew that he was before a Magistrate, when he was produced in a Court of law and all the Police Officers were asked to leave the room. It is not necessary for us to refer to all the cases cited by the learned counsel at the Bar, and it will be sufficient if mention is made only of the latest case, namely, that of Naqibullah and another v. The State. It was observed by this Court that even if there had been delay in the recording of a confession, there was no reason to disbelieve the statement of the Magistrate, who was found to have taken precautions to assure himself that the confession was voluntary and was being made without any inducement. Now, in the present case, the learned Magistrate made a detailed statement at the trial, which has been fully accepted by the Courts below as indicating that event 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.

It is true that the petitioner has asserted, during the course of his confession, that he did not voluntarily join the commission of this crime, but he nevertheless admits his participation in various stages of the preparation for the crime, and his participation therein. The witnesses, already mentioned by us, have corroborated various portions of the petitioner's confession , which go to show that he was a member of the criminal gang, and that he travelled by bus to the place where ultimately the dacoity was committed by stopping the passenger bus in question. His presence was also noticed by witnesses Abdul Majid, Abdul Ghafoor and Fazal Rehman. Nothing was brought on the record to show that they had any motive to give false evidence against the petitioner. They have further shown that they were fully acquainted with the petitioner before the incident.

In the circumstances, the Courts below were justified in acting on the retracted confession of the petitioner, as corroborated by the oral evidence o certain prosecution witnesses.

The petition, therefore, fails and is hereby dismissed.

Appeal dismissed.

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