2017 M L D 1235
[Balochistan]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
GHULAM MURTAZA ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.97 and Murder Reference No.7 of 2007, decided on 2nd January, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 364- A---Anti -Terrorism Act (XXVII of 1997), S.7 ---Offence of Zina
(Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3) ---Qatl -i-amd, kidnapping or
abducting a person under the age of ten, act of terrorism, zina -bil-jabr liable to tazir ---
Appreciation of evidence ---Medical evidence--- Medical Officer examined the dead body of the
deceased female and opined that "sexual assault was roughly done" that death had occurred due
to strangulation with piece of cloth and that death had occurred way book 50/60 days ---Medical
report was supported by the circumstantial evidence ---Appeal against conviction was dismissed.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 364- A---Anti -Terrorism Act (XXVII of 1997), S.7 ---Offence of Zina
(Enforc ement of Hudood) Ordinance (VII of 1979), S. 10(3) ---Qatl -i-amd, kidnapping or
abducting a person under the age of ten, act of terrorism, zina -bil-jabr liable to tazir ---
Appreciation of evidence ---Circumstantial evidence ---Prosecution case was that the accused
kidnapped the deceased minor girl, committed zina -bil-jabr with her and done to death---No one
witnessed the occurrence except the admission of accused and circumstantial evidence---
Accused had made disclosure in the presence of private witnesses abou t the commission of
offence ---Consequent upon the disclosure made by accused, Rickshaw used for kidnapping the
deceased minor girl, her clothes and seat cover were recovered ---Weapon of offence (knife) used
in the commission of offence was recovered on the pointation of accused---Accused pointed out
the place where after the commission of offence, he had thrown the dead body ---Prosecution sent
all the incriminating articles to Forensic Science Laboratory and the expert confirmed that there
was human blood i nside the Rickshaw ---Expert confirmed that knife was stained with human
blood---Accused got recorded confessional statement ---All the prosecution witnesses not only
supported the prosecution version but even in cross examination, they could not be shaken-- -FIR,
recovery of dead body of deceased minor girl, confessional statement, disclosure made by
accused followed by certain incriminating articles and the medical evidence proved that
prosecution had successfully built a chain starting from the foot of the deceased and touching the
neck of accused ---Neither the accused had denied unnatural death of deceased minor girl nor it
was the case of accused that he had been involved in the commission of offence due to previous
enmity with police or complainant of the case or he had been substituted with that of the real
culprit ---Appeal against conviction was dismissed in circumstances.
(c) Criminal Procedure Code (V of 1898) ---
----S.164---Confession--- Voluntariness ---Scope--- Even sole confessional statement could be
made basis for recording conviction against the accused if same was truthful, confidence
inspiring and qualified the test of voluntariness.
Manjeet Singh v. The State PLD 2006 SC 30; Anwar Khan and another v. The State 2006
SCMR 1343 and Murad Ali v. T he State 2007 SCMR 146 rel.
(d) Qanun- e-Shahadat (10 of 1984) ---
----Art. 40---Disclosure of accused ---Admissibility ---Disclosure if followed by recovery of
certain incriminating articles was admissible.
Qadan alias Qadir Bakhsh and another v. The State PLD 2015 Sindh 426 rel.
(e) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 364- A---Anti -Terrorism Act (XXVII of 1997), S.7 ---Offence of Zina
(Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3) ---Qatl -i-amd, kidnapping or
abducting a person under the age of ten, act of terrorism, zina -bil-jabr liable to tazir ---
Appreciation of evidence ---Weapon of offence was recovered at belated stage ---Evidentiary
value ---Knife, weapon of offence was recovered after more than three months of the occurrence-
--Record sho wed that initially for about two months, it was not known to any body that abductee
had been killed---Factum of her death for the first time exposed when her dead body was
recovered ---Statement of medical officer indicated that deceased minor girl was murd ered 50/60
days before her medical examination ---Accused was arrested later ---Accused admitted in the
presence of private persons, about the commission of offence and on his disclosure, police
recovered the knife, as such, recovery of weapon of offence aft er 2/3 months of the occurrence
was not fatal to the prosecution case ---Appeal against conviction was dismissed.
(f) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 364- A---Anti -Terrorism Act (XXVII of 1997), S.7 ---Offence of Zina
(Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3) ---Qatl -i-amd, kidnapping or
abducting a person under the age of ten, act of terrorism, zina -bil-jabr liable to tazir ---
Appreciation of evidence ---Sentence, quantem of ---Accused had abducted a minor girl,
thereafter committed zina with her and done her to death---Trial Court had rightly awarded the
normal penalty of death sentence ---Appeal against conviction was dismissed accordingly.
Hamid Mahmood and another v. The State 2013 SCMR 1314 rel.
Shaukat Ali Rakhshani for Appell ant.
Yahya Baloch, D.P.G. for the State.
Date of hearing: 23rd November, 2016.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instant appeal is directed against the judgment
dated 14th April, 2007 passed by the learned Special Judge, ATC -I, Quetta whereby the
appe llant was found guilty under section 364- A, P.P.C. read with section 7 of the Anti -Terrorism
Act, 1997, 10(3) Offence of Zina ( Enforcement of Hadood) Ordinance, read with Section 7 of
the Anti -Terrorism Act, 1997, 7(a) of the Anti -Terrorism Act, 1997 read with section 302(b),
P.P.C., as such; convicted and sentenced as under: --
"For kidnapping of deceased minor girl the accused Ghulam Murtaza is convicted Under
Section 364- A, P.P.C. read with section 7 of the Anti -Terrorism Act, 1997 to suffer the
sentence of life imprisonment R.I Benefit of section 382- B, Cr.P.C. is also given to the
accused;
"For committing Zina -bil-Jabr with minor girl Shagufta Paracha, he is convicted under
section 10(3) Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with
section 7 of the Anti -Terrorism Act, 1997, and sentenced to suffer death. He be hanged
by neck till he is dead.
"For causing murder of deceased minor girl Shagufta Paracha, the accused is convicted
under section 7(a) of the Anti -Terrorism Act, 1997 read w ith section 302(b) of P.P.C. to
suffer the sentence of death as Tazir. He be hanged by neck till he is dead. He is further
sentenced with a fine of Rs. 1,50,000/ - (one lac fifty thousand only), which shall be paid
as compensation as provided under section 544- A, Cr.P.C., to the legal heirs of deceased
Shagufta Paracha. In case of default of payment of fine, accused shall further suffer R.I.
for two years. Benefit of section 382- B, Cr.P.C. is also given to the accused.
2. Precise facts giving rise to this ap peal are that on 29th March, 2006 the complainant
Muhammad Riaz Paracha, lodged FIR No. 62/2006 with Police Station City, Quetta alleging
therein that his daughter namely Shagufta Paracha aged about 10 years went to Faisal General
Store, situated near his house for purchasing grocery. As she had five rupees less with her,
therefore she return to house and after taking rupees five again went to the said shop but did not
return. She was searched in the nearby houses and in the houses of relative but could not be
traced.
3. After some days the complainant submitted an application to the police authorities and
suspected that some unknown person has kidnapped his daughter. On the basis of above written
report FIR was lodged under Section 363, P.P.C. and investiga tion commenced during course
whereof on 28th May, 2006 a dead body was recovered from the area of police station Civil
Line, Quetta which was brought to Civil Hospital, Quetta for post mortem. The complainant of
the instant case was also called and the Doctor after post mortem produced the hair along with
'poney', pair of tops and a coin of Rupees five. All these articles were shown to the complainant
where upon he identified the said articles to be of his daughter. Thereafter the case was
transferred to Cr ime Branch, Quetta for investigation. Mr. Nadeem I.P/SHO started investigation
and recorded the statements of witnesses. On 2nd June, 2006 appellant was arrested who
volunteered to record his statement under section 164, Cr.P.C. Accordingly the appellant w as
produced before PW.8 Haroon Agha, Judicial Magistrate -V, Quetta who recorded confessional
statement of appellant. On completion of investigation 'challan' of the case was submitted before
the learned Special Judge, Anti Terrorism Court -I, Quetta.
4. On 4th July, 2006 charge was read over to the appellant to which he pleaded not guilty
and claimed trial. The prosecution in order to substantiate the accusation produced 21 PWs.
Thereafter the appellant was examined under section 342, Cr.P.C., wherein he denied all the
incriminating pieces of evidence and claimed innocence. The appellant opted to get himself
examined as envisaged under section 340(2), Cr.P.C., However, he did not adduce any witness in
his defence. The learned trial Court after hearing the par ties and evaluating the evidence found
the appellant guilty, as such; convicted and sentenced him as mentioned hereinabove.
5. Learned counsel for the appellant argued that the appellant is innocent. He has committed
no offence what so ever. The learned tr ial court while convicting the appellant based its
judgment on misreading and mis -appreciation of evidence. The prosecution failed to prove guilt
of the appellant beyond reasonable doubt. There is no direct evidence connecting the appellant
with the commis sion of offence. The evidence produced by the prosecution was not of such a
nature which could have been made basis for recording conviction against the appellant. Learned
counsel emphasized that there is no evidence against the appellant except retracted confessional
statement which required independent corroboration, lacking in the instant case but this aspect of
the case escaped notice of the trial court. Learned counsel stressed that one of the ground
prevailed upon the trial court while passing the imp ugned judgment was recovery of knife, which
too, was recovered after three months. Learned counsel canvassed that the disclosure made by
the appellant during investigation was inadmissible because place of occurrence was already
visited by the I.O. The med ical evidence is absolutely biased and prejudicial in the circumstances
of instant case.
On the other hand the learned D.P.G strenuously opposed the appeal by submitting that
there was ample evidence connecting the appellant with the commission of offence . The
prosecution fully succeeded to prove guilt of the appellant to the hilt. All the PWs have fully
corroborated each other on material points. So far as the retracted confessional statement is
concerned, the trial court has rightly considered the same b ecause the same was truthful,
confidence inspiring and qualified the test of voluntariness. No specific illegality or irregularity
could be pointed out by the learned counsel for the appellant in the judgment impugned. Minor
discrepancies and contradiction s are neither sufficient to make the case of prosecution doubtful
nor entitle the appellant to be acquitted of the charge. While recording the confessional statement
the appellant himself disclosed the naked picture of the incident, therefore, there was no occasion
for the trial court to have acquitted the appellant. The prosecution succeeded to recover the
Rickshaw so used in kidnapping of deceased minor girl, later on committing 'Zina' with her and
killing the minor girl, clothes of accused Ghulam Murtaza , cushion/ seat cover of Rickshaw from
cushion maker shop (as after commission of offence in Rickshaw the old seat cushion of
Rickshaw stained with blood and the appellant replaced the old cushion with that of new
cushion).The police also recovered crime w eapon on the disclosure of appellant in presence of
'Nazim' (an independent witness), as such it could not be said that the disclosure made by the
appellant was inadmissible.
6. We have considered the arguments advanced by the learned counsel for the parti es and
perused the record of the case with their able assistance. It may be noted that in the instant case
the trial court formulated following points for determining the guilt or innocence of the
appellant: --
i. Whether the deceased minor girl Shagufta di ed due to unnatural death?
ii. Whether the accused Ghulam Murtaza kidnapped Minor Girl Shagufta Paracha
and also committed Zina -bil-Jabr with her?
iii. Whether the accused Ghulam Murtaza Strangulated the Minor Girl Shagufta
Paracha with the help of scarf ( ) and after- words gave knife blows with intention to
murder her?
iv. What offence is committed by accused person and what will be the quantum of
sentence?
In order to prove the point No. 1 prosecution produced PW -6, Doctor Shamim Gul
Mashwani, Police Su rgeon, Civil Hospital, Quetta who deposed that on 30th May, 2006 she was
posted as police surgeon, Civil Hospital, Quetta. On the same day she was called at mortuary for
examining a corpse. She examined the dead body and found the following injuries: --
"External Appearance. On examination of dead body it was found dry dead body of
female wearing full sleeves shirt and under shirt of the colorful printing dry blood
staining on clothes. Head was covered with hair tied with ponney to back. Easily
separating fr om scalp. Face dried skin, eyes protrude, instance sclera and pupil dilated,
mouth semi open, teeth visible, one incisor tooth was missing and developed tooth feeble
in the socket.
"Neck Tightly tied with cloth piece same as her shirt with the same printed cloth. The
other end of the cloth was tightly bound with the right arm which was twisted to back
right hand. Right hand was tightly closed with Rs.5/ - coins in her hand which was visible.
Left hand was missing, right leg and foot is present and the right toes were missing.
"Throx is present with advance stage of putrefaction and dried. Left feet missing,
abdomen is partially present with missing viscera dried after putrefaction. Pelvis is
present on right side with long bones of left side of lower limbs. P artial pelvises and the
rough opening shows some entrance into pelvis and manipulation.
"Sexual Assault. For sexual assault no material could be collected due to advanced stage
of putrefaction and dryness of the body.
"Collected Items.
i. Pony with hair bunch.
ii. Coin of Rs. 5/ -
iii. Cloths, with which the unfortunate girl was strangulated, were handed over to
police.
"Opinion. It is certify that dead body of the deceased unknown, later on known as
Shagufta Daughter of Riaz Paracha MLC, No.191 P.M.S.V/06 examined in detail. I am
of the opinion that dead body is of female age about 8/9 years advance stage of
purification (dried) sexual assault roughly done, death occurred due to strangulation with
piece of cloth, same as wearing cloths. Death occurred 50/60 days ago. Item collected is
already mentioned. I issued post mortem report as well as certified which I produce as
Ex. P/6 -A. I recognize my signature over the same.
7. So far as the point Nos. 2 and 3 is concerned, It may be noted that during course of
investigation on 2nd June, 2006 the appellant was arrested, interrogated and on the very next day
of his arrest i.e. 3rd June, 2006 the appellant in presence of Nazim and other private witnesses
disclosed that he can get recover the Rickshaw used for kidnapping of deceased Minor girl and
consequent upon the disclosure made by appellant the Rickshaw was recovered. The appellant
further got recovered his clothes. On the same day cushion/seat cover was also taken into
possession from the shop of cushion maker s ituated at Kansi Road Quetta. The Prosecution was
further able to prepare site plan and recover the knife used in the commission of offence on the
pointation of appellant. The appellant also pointed out the place where after commission of
offence he had thrown the dead body. The prosecution sent all the incriminating articles to FSL
and the expert confirmed that there is human blood inside the Rickshaw. The expert also
confirmed that 'Churri' was stained with human blood. The case of prosecution further
strengthened when on 6th June, 2006 the appellant volunteered to record his confessional
statement. Regarding truthfulness and voluntariness of the confessional statement the
prosecution produced PW -8 who deposed that on 6th June, 2006 he was posted as Magist rate.
On the same day Muhammad Nadeem I.P Crime Branch produced the appellant for recording his
confessional statement. He made sit the appellant in his Chamber and turned out the I.O. and
other Court Staff from Chamber. He removed handcuffs of the appella nt and introduced himself.
He made clear to the appellant that he is not bound to record his confessional statement and that
he will not be handed over to the police if he records confessional statement or otherwise. He
provided half an hour to the appella nt for thinking. The appellant stated that he wants to record
his confessional statement under section 164, Cr.P.C. voluntarily. In his confessional statement
the appellant deposed that for the last 4/5 years he is working as line man in Pakistan Cable.
Amir Paracha and Ejaz Paracha are the owners of Pakistan Cable. He used to take Shagufta
(deceased) to the school. In March, 2006 at evening time Shagufta Paracha came out from her
house. She went to Faisal General Store and from Faisal General Store again w ent to her house.
From her house again she went to Faisal General Store and he (appellant) remained standing at
the corner of Tahir Khan Road. As the deceased already used to go to school with him, therefore,
she came to appellant. He took the girl toward the Officer Banglow, situated at Zarghoon Road.
He had no intention to commit Zina with Shagufta or kill her however, mistakenly he committed
forcibly 'Zina' with Shagufta. Initially he closed mouth of Shagufta with his handkerchief
thereafter he tied her hands back with her scarf ( ). Thereafter he committed forcibly 'Zina' with
her. After committing 'Zina' he noted that the condition of girl became worst and she became
unconscious. On this he frightened and strangulated her with the handkerchief with whic h he had
closed her mouth. Thereafter he inflicted knife blows on her body where upon she died. After
commission of offence he took the girl and threw her dead body on the back side of servant
quarters of 'Zakir's Banglow' in the bushes. The appellant furt her deposed that he committed
'Zina' with the girl and also killed her inside the Rickshaw. He cleaned the Rickshaw and
wrapped the Knife in a cloth and threw the same in 'Nala'.
8. Now adverting to the contention of learned counsel that the prosecution failed to prove
the guilt of appellant beyond reasonable shadow of doubt. In this regard it may be observed that
in all prosecution examined 21 witnesses. To prove the 'Fard- e-Bayan/FI R' and the factum of
missing of the deceased the prosecution produced PW -17 who produced the FIR as Ex. P/17- A.
To prove that the deceased Minor girl died due to unnatural death the prosecution produced PW -
6, Doctor Shamim Gul, who produced post mortem report Ex. P/6- A. To substantiate the factum
of recovery of 'poney' pair of tops and the coin of 5 Rupees and clothes of deceased girl the
prosecution examined PW -7 who produced recovery memos. as Ex. P/7- A&B. The factum of
recording voluntary confessional st atement PW -8 Judicial Magistrate furnished the evidence and
produced letter in respect of recording confessional statement as Ex. P/8- A, Envelope as Ex. P/8-
B, statement of appellant Ex. P/8 -C&D, certificate Ex. P/8 -E and application filed by the I.O.
about providing confessional statement, as Ex. P/8- F, PW -9 produced recovery memo. of
Rickshaw Ex. P/9- B, memo. of one Piece of cloth Ex. P/9- C, memo. of pair of slippers and
suspected material taken into possession from the spot as Ex. P/9- D, PW -12 produced a piece of
wood of Rickshaw containing human blood as Ex. P/12- A. To prove the recovery of knife on the
disclosure of appellant the prosecution examined PW -13 who produced disclosure memo. as Ex.
P/13- A, memo. of pointation of place of incident as Ex. P/13- B, recovery memo. of knife along
with cloth as Ex. P/13- C and sketch of weapon as Ex.P/13- B. PW -18 produced memo of
'Shalwar' of deceased girl as Ex. P/18 -A. All the above referred PWs not only fully supported the
prosecution version but even in cross -exam ination they could not be shaken, as such we do not
agree with learned counsel for appellant that prosecution failed to prove guilt of the appellant
beyond reasonable doubt. On the contrary perusal of statements of PWs makes it crystal clear
that the prose cution has fully been able to connect the appellant with the commission of offence.
Perusal of FIR, coupled with the recovery of dead body of deceased girl, confessional statement,
disclosures made by the appellant followed by certain incriminating article s and the medical
evidence prove that the prosecution has successfully built a chain starting from the foot and
touching the neck and defence failed to break the prosecution chain. So far the next limb of the
argument of learned counsel for the appellant t hat there is no direct evidence against the
appellant is concerned, it is true that the incident was un -witnessed but all the subsequent events
i.e. recovery of dead body, confessional statement, disclosures made by the appellant followed
by certain incriminating articles and the medical evidence all lead to no other conclusion except
that the appellant is the person who initially kidnapped the minor girl, committed Zina -bil-Jabr
with her and finally done her to death. Here it may not be irrelevant to menti on that neither the
appellant has denied unnatural death of deceased girl nor it is case of the appellant that he has
been involved in the commission of offence due to previous enmity with police and complainant
of the case or he has been substituted with that of the real culprit. Even otherwise it does not
appeal to a prudent mind that the complainant whose daughter was not only kidnapped but after
committing Zina -bil-Jabr with her done to death, would replace the present appellant leaving the
real culprit , which too, without any rhyme or reason. So far the contention of learned counsel
regarding retracted confessional statement is concerned, we are of the considered opinion that
even sole confessional statement could be made basis for recording conviction against an
accused if the court comes to the conclusion that the same is truthful, confidence inspiring and
qualifies the test of voluntariness. In this regard the trial court in its judgment relied upon PLD
2006 Supreme Court Page 30, 2006 SCMR page 366 a nd we are in respectful agreement with the
above referred judgment. It would be beneficial to reproduce relevant observation from the
judgment titled as Manjeet Singh v. The State reported in PLD 2006 SC page 30: --
"there is no cavil to the General Rule th at it is not prudent to base the conviction in a
criminal case only on the strength of retracted confession without independent
corroboration in necessary particular and Court is under obligation to inquire into all the
material points and surrounding circ umstance to satisfy itself regarding the truthfulness
and voluntariness of the confession but it is not an inflexible rule that the retracted
confession cannot be made basis of conviction with independent corroboration rather the
rule of corroboration is a rule of abundant caution which is insisted only to exclude any
possibility of doubt qua the guilt of a person. The law is that a retracted confession can be
legally taken into consideration against the maker, if the confession is found true and
voluntary and can also be used as sole evidence for conviction without any corroboration
if the court is satisfied about its voluntary character and truthfulness.
Reliance can also be made on the judgment titled as Anwar Khan and another v. The
State reported in 2 006 SCMR 1343 wherein it was held as under: --
"The contention of the learned counsel regarding the inadmissibility of confessional
statement of Anwar Khan (petitioner has no substance as nothing has been brought on
record to suggest that the confession was the result of coercion, undue influence. The
confessional statement of a person, if is found voluntary and confidence inspiring must
not be discarded for mere reason that it was retracted at the trial".
Likewise in the judgment titled as Murad Ali v. The State reported in 2007 SCMR 146 it
was observed as under: --
"No hard and fast line is to the conduct of a person at a given time, situation and
thereafter depending upon various factors, mental capacity and capability could be
drawn, foreseen or meticulously calculated, which differ and varies from time to time,
person to person and remain fluctuating or consistent and firm, therefore, one cannot
conclude definitely or assess a man's behavior before hand nor any definite opinion with
regard thereto could be formed. So it could not be safely assumed that since the accused
had surrendered in the police station and had produced pistol along with live rounds
admitting to have murdered the deceased would not essentially motivate the accused to
have had volunteer ed to make confession of his guilt before the Judicial Magistrate on the
same day or on the following day and; as per evidence a couple of days thereafter during
the course of investigation of the case he voluntarily had offered to make confession
before t he Magistrate, hence; the contention so raised on the point by the learned counsel
appears to be devoid of substance in view of the evidence that the accused when offered
to make confession of his guilt was produced before the Judicial Magistrate. The lear ned
Judicial Magistrate after his due and necessary satisfaction recorded his confessional
statement."
9. The contention of learned counsel that disclosure made by the appellant is inadmissible
has also no force because under Article 40 of the Qanun- e-Shah adat Order, 1984 a disclosure if
followed by recovery is admissible. In the instant case the disclosure made by the appellant since
was followed by recovery of certain incriminating articles including the knife used for
assassination of the deceased girl, therefore, the same is very much admissible. Reliance can be
placed on the judgment titled as Qadan alias Qadir Bakhsh and another v. The State reported in
PLD 2015 Sindh page 426. Relevant observation there from reads as under; --
"So far as to the recover y of crime weapon (s), i.e. Gun and DANDA effected from the
appellants, there is no cavil in proposition of law that the recovery at the pointation of
disclosure of the accused is admissible under Article 40 of the Qanun- e-Shahadat. Which
only requires tha t there should be (i) Statement/information by accused and which should
lead to discovery/recovery, inference if any can be drawn from the case of Mst. Askar Jan
and others v. Muhammad Daud and others reported as 2010 SCMR 1604".
10. So far as the contenti on of learned counsel for the appellant that the knife was recovered
after 2/3 months. If we see the background of the incident, the same negates the contention of
learned counsel because initially for about 2 months it was not known to anybody that the
abductee has been killed and the factum of her death for the first time exposed when her dead
body was recovered. According to PW -6 when she examined the dead body the minor girl was
murdered 50/60 days before. Initially the police had no clue of actual culprit and on 2nd June,
2006 the appellant was arrested and on the very next day of his arrest. i.e. 3rd June, 2006 the
appellant in presence of Nazim and other private witnesses made disclosure about the
commission of offence. Consequent upon disclosure of t he appellant the police recovered the
knife, as such neither we have any reason to disbelieve the recovery of knife nor the recovery of
knife after 2/3 months is fatal to the prosecution case. There is sufficient explanation in this
regard. Though the lear ned counsel contended that the medical evidence is biased and prejudicial
but during arguments he badly failed to prove his such argument nor on perusal of medical
evidence we could find that the same is biased or prejudicial. Conversely, we are of the opi nion
that it was the medical report which helped the police to trace out the real culprit. There is no
conflict in the medical as well as circumstantial evidence. It is also beyond comprehension that
the medical officer will issue a biased a prejudicial re port without any justifiable reason.
11. Adverting to sentence of death awarded to the appellant, it may be observed that in the
instant case the appellant initially abducted the minor girl of 8/9 years, thereafter committed Zina
with her and after committing Zina done her to death as such; to our perception the trial court has
rightly awarded the normal penalty i.e. death sentence to the appellant. Reliance can be placed on
the judgment titled as Hamid Mahmood and another v. The State reported in 2013 SCMR 1314.
Relevant observations therefrom are reproduced herein below: --
"In the facts and circumstances of the case, the considerations pertaining to quantum of
sentence, have been examined. The reasons for the award of the death penalty far out
weigh the co nsideration for the award of the death penalty far out weigh the
considerations for the award of lesser sentence. The tender age of the minor, the brutal
and heinous nature of the crime and pre -mediation persuades us to agree with the
sentence awarded by t he learned trial Court as well as the learned High Court. The
deterrent aspect of the sentence cannot be lost sight of either as it was a crime of
kidnapping for ransom of minor, followed by murder. In such an eventuality, the normal
sentence of death shou ld be awarded and the Court should neither hesitate nor search for
labored pretexts to award a lesser sentence, as has been held by this court, in the case,
reported as Muhammad Sharif (supra)."
The Hon'ble Supreme Court in case titled as Malik Muhammad M umtaz Qadri v. The
State reported in PLD 2016 SC 17 has held as under: --
"In a case of murder two questions are of paramount importance and they are
i. Was it the accused person facing the trial who had committed the murder in issue?
and
ii. If it was th e accused person facing the trial who had committed the murder in
issue then did he have any factual or legal justification for committing the murder?
12. In the instant case since the appellant was well known to the deceased girl, therefore,
after committing 'Zina' with the minor girl there was no other option with the appellant except to
commit her brutal and merciless murder which is understandable in the circumstance of the case.
All what has been discussed hereinabove leads us to the irresistible, una voidable and
inescapable conclusion that prosecution succeeded to prove that it was none but the appellant
who committed the murder in issue at the date, time and place alleged by the prosecution and
that the appellant had no factual or legal justification for commission of the offence.
For the foregoing reasons we are of the considered opinion that the prosecution fully
succeeded to bring home the charge against the appellant and the defence failed to make out a
case for acquittal of the appellant as such ; appeal has no force which is accordingly dismissed
and the murder reference is answered in affirmative.
JK/20/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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