2013 P Cr. L J 127
[Balochistan]
Before Muhammad Noor Meskanzai and Abdul Qadir Menga l, JJ
ABDUL BAQI ---Appellant
Versus
The STATE ---Respondent
Criminal Jail Appeal No.60 and Murder Reference No.21 of 2009, decided on 3rd September,
2012.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qanun -e-Shahadat (10 of 1984), Art. 40 ---Qatl-e-amd---Appreciation of
evidence ---F.I.R. had been lodged against four persons, on the basis of suspicion and incident
was blind ---Out of four persons, three were discharged by the prosecution under S.169,
Cr.P.C. ---Axe, which was recovered on the poin tation of accused, was sent to Ballistic
Expert, who gave positive report in respect thereof ---Disclosure made by accused followed
by the recovery of blood -stained axe at the instance of accused was an admissible piece of
evidence within the meaning of Art .40 of Qanun -e-Shahadat, 1984 ---While recording the
statement of acquitted co -accused under S.164, Cr.P.C. said co -accused was not provided an
opportunity to cross -examine the maker of statement ---No evidence was available on record
to prove the fact that said acquitted co -accused had helped or abetted accused in any manner
while accused was committing murder of the deceased ---Trial Court, in circumstances, had
rightly extended the benefit of doubt to co -accused ---Confessional statement of accused,
though h ad been recorded with delay of almost six days, but chain of the circumstances that
led to pointation of place of occurrence, recovery of blood -stained axe, recording of the
confessional statement, did not appear to have been recorded with delay ---No such delay had
taken place which could reduce the veracity and admissibility of the statement recorded under
S.164, Cr.P.C. ---No eye -witness of the incident being available, judgment had been rendered
on the basis of circumstantial evidence and confessional sta tement of accused ---Four persons
were nominated in the F.I.R., and informant was not an eye -witness, and names were given
on suspicion, but the Police by carrying out impartial investigation had rightly discharged
the innocent persons nominated in the F.I.R. ---Prosecution had proved the guilt of
accused to the hilt, and the Trial Court after proper appreciation and analysis of the material
available on record had rightly convicted and punished the accused ---Findings of the Trial
Court which were l egal, proper and justified, needed no interference ---Appeal was dismissed,
Murder Reference was answered in the affirmative and death sentence awarded to accused by
the Trial Court was confirmed, in circumstances.
2001 PCr.LJ 86 and 1985 SCMR 1793 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 164 ---Confessional statement ---Evidentiary value ---Scope ---While evaluating the
confessional statement, main object of law was to ensure the voluntariness and truthfulness of
said statement ---If the sta tement was found to have been given voluntarily, without duress,
coercion and inducement; and simultaneously rang true, there was no impediment to accept
the same, irrespective of delay (if any), if recorded within the period of legal physical remand
with the Police.
Majeed v. The State 2010 SCMR 55 and Muhammad Ismail and another v. The State
1995 SCMR 1615 rel.
(c) Criminal trial ---
----Circumstantial evidence ---If the circumstantial evidence established the guilt of accused
without any chain bein g broken, there was no harm in imposition of capital punishment on
accused.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-e-amd--- Appreciation of evidence --- Awarding sentence of death ---
Accused had committed a cold -blooded murder of an innoc ent, armless, helpless and
defenceless person by causing several serious injuries on vital parts of his body, at odd hours
of night, by depriving the deceased of the facility of medical aid and treatment ---Act on the
part of accused was premeditated, inten tional, callous ---Accused, in circumstances, did not
deserve any leniency ---No extenuating or mitigating circumstance was present to justify the
commutation of the sentence ---Trial Court, in circumstances, had rightly passed the normal
sentence of death to accused, which required to be confirmed ---In case, the court was
satisfied that the person was guilty of commission of murder, and there was no mitigating
circumstance, in such eventuality, the court was bound to pass the normal sentence.
Manzoor Ahme d v. The State 1999 SCMR 132; Muhammad Tahir Aziz v. The State
2010 PCr.LJ 1787; Nabi Bakhsh v. The State and another 1999 SCMR 1972; 1998
SCMR 862 and PLD 1976 SC 452 rel.
Khalid Ahmed Kubdani for Appellant (in Jail Appeal No.60 of 2009).
Khalid Ahmed Kubdani for Respondent (in Murder Reference No.21 of 2009).
Muhammad Wassay Tareen, P. -G. for the State (in both cases).
Date of hearing: 8th August, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Through this common judgment, we
propose to decide the fate of Criminal Jail Appeal No.60 of 2009 and Murder Reference
No.21 of 2009, as both are the outcome of judgment dated 12th October, 2009 passed by
Additional Sessions Judge, Panjgur, whereby the appellant was convicted and sentenced in
the following terms: --
(i) Under section 302(b), P.P.C. to death sentence with fine of Rs.1,00,000 (one hundred
thousands) to be paid as compensation as provided under section 544 -A, Cr.P.C. to the legal
heirs of deceased Ali Muhammad. In case of defaul t of payment of compensation to further
suffer S.I. for six months.
2. Facts relevant for the disposal of instant appeal are that on 5th March, 2009,
complainant Muhammad Noor lodged F.I.R. No.33 of 2009 with Police Station, Panjgur. It
was alleged in th e F.I.R. that after having dinner, his brother abruptly disappeared from the
house. On the next morning, foot -prints of Ali Muhammad were chased which lead to date
palm trees and found the blood -stained corpse of his brother Ali Muhammad lying in a water
drain. The complainant suspected that his brother was murdered by Abdul Baqi, Manzoor,
Ghulam Nabi and Hazoor Bakhsh.
3. After registration of F.I.R., investigation was commenced. During course whereof
accused persons were arrested, however, latter on acc used Manzoor, Ghulam Nabi and
Hazoor Bakhsh were discharged by the prosecution under section 169, Cr.P.C. On
completion of the investigation, challan was submitted before Additional Sessions Judge,
Panjgur against appellant and acquitted accused Mst. Taj B ibi. Charge was framed to which
the appellant did not plead guilty and claimed justice through trial. The prosecution to
substantiate the accusation examined following P.Ws.: --
P.W.1 Muhammad Noor (Complainant),
P.W.2 Abdul Waris, SI recovery witness ,
P.W.3 Dr. Ehsan Ahmed, Medical Officer, who examined the dead body,
P.W.4 Sher Ahmed Rind, Judicial Magistrate, who recorded the statement of
appellant under section 164, Cr.P.C. and
P.W.5 Liaqat Ali SI, Investigating Officer.
Thereafter, the accused were examined under section 342, Cr.P.C., wherein they
denied the incriminating pieces of evidence and claimed innocence, however; neither opted to
record statement on oath nor examined any witness in defence. The learned trial Court after
hearing the parties and evaluating the evidence acquitted the co -accused, whereas found the
appellant guilty, as such; convicted and sentenced him as mentioned hereinabove.
5. We have heard Mr. Khalid Ahmed Kubdani, Advocate for pauper appellant; whereas
the St ate was represented by Mr. Muhammad Wassay Tareen, P.G. It was inter alia
contended as under: --
(i) The alleged disclosure is not admissible within the purview of Article 38 of
the Qanun -e-Shahadat Order, 1984, besides there is no independent eye -witness .
(ii) The confessional statement was recorded after delay of seven days and in such
circumstances, the confessional statement is not admissible in evidence.
(iii) The deceased was having previous enmity and it is not impossible that he
might have been killed by his rivals.
(iv) In the F.I.R., four persons were nominated, whereas three were discharged by
the Investigating Officer, meaning thereby the F.I.R. did not reflect, clear confirm and
true picture of the incident.
(v) Neither there is eye -witness nor statement of foot tracker written statement
recorded or mould of the seen of occurrence was prepared/made.
(vi) Neither there is any expert report nor for that matter the finger prints of
appellant are available on record.
(vii) On same set of evidence, one co -accused i.e. Mst. Taj Bibi was acquitted,
whereas the appellant was convicted, therefore, it can easily be concluded that the
trial Court committed material irregularity in appreciating of evidence by violating the
golden principles of ap preciation of evidence. The learned counsel for the appellant
requested for acceptance of appeal and prayed for acquittal of appellant by setting
aside the impugned judgment and answering the murder reference in negative.
On the other hand, the learned Prosecution -General opposed the submissions so made
and submitted that the prosecution has succeeded to prove the guilt. Though, there is no eye -
witness, yet the disclosure made by the appellant followed by recovery of crime weapon and,
the confessional st atement recorded by the appellant corroborated by medical evidence are
sufficient to justify the conclusions drawn by the trial Court, therefore, the appeal is liable to
be dismissed and the murder reference to be answered in affirmative.
7. We have cons idered the arguments advanced by learned counsel for parties and
perused the record of the case minutely. It is admitted position that the F.I.R. has been lodged
against four persons on the basis of suspicion and there is also no cavil to the fact that the
incident is blind. The case of the prosecution hinges upon following pieces of evidence: --
(a) disclosure made by appellant followed by recovery of blood -stained axe at the
pointation of appellant Exh.P/2, corroborated by the report of Ballistic Expert.
(b) confessional statement Exh.P/4 -C. corroborated by Medical evidence Exh.P/3 -
A, as well as recovery of crime weapon.
8. As far as the disclosure is concerned, the record reflects that the F.I.R. of the incident
was lodged on 5th March, 2009 and the appellant was arrested who made the disclosure on
7th March, 2009 to the effect that the appellant, on account of illicit relations with co -accused
Mst. Taj Bibi and wanted to solemnize marriage with her after the death of Ali Muhammad,
committed murder of Ali Muhammad with an axe and concealed the same in the bushes near
the venue. On the pointation of the appellant, the axe was recovered and sent to Ballistic
Expert, wherefrom there is a positive report. Prior to disclosure, three things were not in the
knowledge of police i.e. (i) the deceased had called his wife Mst. Taj Bibi four days prior to
the incident from Shinger to Panjgur (ii) illicit relations between Taj Bibi (iii) the
concealment of crime weapon near the venue. The recovery of axe was proved through
unimpeachable and confidence -inspiring evidence. As far as coming of Mst. Taj Bibi four
days prior to the incident at the instance of her husband (deceased Ali Muhammad) stood
proved by the statement of Mst. Taj Bibi recorded under section 342, Cr. P.C. in response to
question No. 6. For ready reference question No.6 is reproduced: --
Q.No.6 Is it correct that the deceased called you accused from Shinger Nag to Panjgur 4 clays
prior to incident?
Ans: -- Yes.
9. Therefore, we have no hesitation to hold that the disclosure made by the appellant
followed by the recovery of the blood -stained axe at the instance of appellant is an admissible
piece of evidence within the meaning of Article 40 of Qanun -e-Shahadat Order, 1984. By
holding the view, we are fortified by the dictum laid down in the judgment reported in PCr.LJ
2001 page 86 and 1985 SCMR 1793 relevant at page 1804. Relevant observations from the
latter judgment are reproduced herein below: --
"As regards the first reason it may be mentioned he re that as provided by Articles 37
to 39 of the Qanun -e-Shahadat Order, 1984, a confession made by an accused person, while
he is in police custody, is not admissible. However, if something related to the case is
recovered or any fact is discovered in cons equence of the information conveyed by the
accused person, then the information so received would be admissible in evidence within the
purview of Article 40 of the Qanun -e-Shahadat Order, 1984 because then the presumption
would be towards its truthfulness. It would be advantageous to reproduce hereinbelow the
said Article which reads as follows: --
"40. When any fact is deposed to as discovered in consequence of information
received from a person accused of any offence, in the custody of a police officer, so much of
such information whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved."
10. Therefore, the first contention of learned counsel for the pauper appellant is repelled.
As far as the conte ntion i.e. the acquittal of the co -accused on same set of evidence is
concerned, in our opinion, the contention loses force. However, while recording the statement
under section 164, Cr.P.C., Mst. Taj Bibi was not provided an opportunity to cross -examine
the maker of the statement. Secondly, the confessional statement to the extent of illicit
relation. There is no evidence available on record to prove the fact that the acquitted accused
Mst. Taj Bibi had helped or abetted the appellant in any manner while a ppellant was
committing the murder of Ali Muhammad. Moreover, the engagement between the appellant
and Mst. Taj Bibi were also repudiated by the appellant while replying the question No.12 of
the questionnaire, which reads as under: --
Q.No.12. Is it corr ect that your companion co -accused Mst. Taj Bibi made disclosure
wherein she stated that you accused obeyed her and committed the murder of deceased Ali
Muhammad as he was the obstacle for marriage as she was engaged with accused but her
father managed her marriage with deceased Ali Muhammad instead of accused. The
Investigating Officer prepared disclosure memo and produced as Exh.P/2 -E?
Ans. Incorrect, she looks my mother.
11. In such view of the matter, the trial Court, has rightly extended the benefit of
doubt to the co -accused Mst. Taj Bibi, hence the second point pressed into service is
of no avail to appellant. Now coming to the next contention of learned counsel i.e. delay in
the recording of the confession, apparentl y, though the statement appears to have been
recorded with delay of almost six days but the chain of the circumstances that led to
pointation of place of occurrence, recovery of blood -stained axe on 7th March, 2009 and
thereafter within four days, the recording of the confessional statement does not appear
to have been recorded with delay. The perusal of statements reflects that all the
necessary questions were put to the appellant. The relevant answers to cross -questions are
reproduced as under: --
12. We are conscious that one necessary question is lacking in the questionnaire,
however, while examining the Magist rate the same was clarified to have been put and the
answer to cross -examination No.4 is quite relevant. The same is reproduced: --
13. In view of peculiar circumstances of this case, we are of the opinion that there is no
such delay which may reduce the veracity and admissibility of the statement recorded under
section 164, Cr.P.C. There is no cavil with the legal proposition that while ev aluating the
confessional statement main object of law is to ensure the voluntariness and truthfulness of
the statement. If a statement is found to have been made voluntarily, without duress, coercion
and inducement and simultaneously rings true, there is no impediment to accept the same
irrespective of delay (if any), if recorded within the period of legal physical remand with
police, Reliance is placed on judgment titled Majeed v. The State reported in 2010
SCMR page 55 (relevant at page 59) w herein it has been held as under: --
"No doubt there was delay of 12 days in recording the confession but this by itself is
not sufficient to discard the same. This Court in the Case of Nabi Bakhsh v. State 1999
SCMR 1972 held that delay in recording the confessional statements by itself is not sufficient
to affect its validity. However, no hard and fast rule can certainly be laid down about the
period within which the confessional statement of the accused ought to be recorded during
investigation. Refere nce is also invited to Muhammad Yaqoob v. State 1992 SCMR 1983."
Reference can also be made to the judgment titled as Muhammad Ismail and another
v. The State reported in 1995 SCMR page 1615 (relevant at page 1621) wherein it has been
observed as under: --
"Then comes the confession of appellant Muhammad Ismail. Delay for recording
confession per se is no ground to discard it unless it is proved or emerges from the
circumstances that it was obtained by coercion, threat, pressure etc. Indeed, the learne d
Magistrate after observing formalities recorded his confession and certified that it was true
and voluntary."
14. As far as non -availability of eye -witness is concerned, admittedly there is no eye -
witness of the incident, therefore, the judgment has be en rendered on the basis of
circumstantial evidence and confessional statement. The law stands settled that if the
circumstantial evidence establishes the guilt without any like of the chain being broken, there
is no harm, in imposition of capital punishme nt, hence this submission is without substance
and rejected.
15. As far as nomination of four persons in the F.I.R. is concerned, this argument is of no
avail because the informant is not an eye -witness and the names were given on suspicion but
the polic e by carrying out impartial investigation rightly discharged the innocent persons.
In the given circumstances, we are confident that the prosecution has proved the guilt
to the hilt. The trial Court after proper appreciation and analysis of the material available on
record has rightly found the appellant guilty of the offence, thus the findings so arrived at
and, the conclusions so drawn are proper, legal, justified and need no interference, therefore
the appeal is dismissed.
16. Now coming to the murd er reference, the perusal of the record reflects that the
appellant has committed a cold -blooded murder of an innocent, armless, helpless and
defenceless person by causing; several serious injuries on vital parts of his body at the odd
hours of the night, by depriving the deceased of the facility of medical aid and treatment. The
act on the part of appellant was premeditated, intentional, callous and thus appellant doesn't,
deserve any leniency. There is no extenuating or mitigating circumstance to justify the
commutation of the sentence. The appellant has committed a cold -blooded murder of an
innocent person, therefore, in our considered opinion, the trial Court has rightly passed the
normal sentence, which requires to be confirmed. The law on the subject s tands settled that in
case, the Court is satisfied that the person is guilty of the commission of murder and there is
no mitigating circumstances, in such an eventuality, the Courts are bound to pass the normal
sentence. By holding the view we are fortifie d by the dictum laid down in the case of
'Manzoor Ahmed v. The State' reported in 1999 SCMR 132, wherein it has been held that: --
"The prosecution has been able to prove that the murder committed by the appellant,
was in most cruel and brutal manner as a defenceless and an unarmed person was given
numerous injuries on vital parts of his body when he was lying down in a helpless
state. On the other hand the appellant has not been able to prove any mitigating
circumstance to justi fy lesser penalty. Even otherwise keeping in view seven incised
wounds on the person of the deceased almost all on very vital parts of his body
would suggest that the appellant dealt with the deceased very brutally and callously on a
very petty grievance. It is settled law "to punish the offender in proportion to the character
and extent of his guilt, to be deterrent for him and for the rest of the society without being
unnecessarily harsh or needlessly indulgent."
In view of all these facts the High Court was legally correct in converting the sentence
of life imprisonment into death which is normal penalty for the type of murder perpetrated by
the appellant. The appeal is found without merits and is, accordingly, dismissed. "
In the case of 'Muhammad Tahir Aziz v. The State' reported in 2010 PCr.LJ 1787
observed as under: --
"It is well -settled principle of law that where a case under section 302(a), P.P.C. is
proved against the accused beyond reasonable doubt, then the normal penalty of death is
required and in such case leniency should not be shown, except where strong mitigating
circumstances for lesser sentence are available. Where the prosecution has established the
guilt of accused under section 302 through satisfac tory and reliable evidence, then the penalty
of death has to be awarded. The basic object of punishment in civilized society is to create
deterrence among the citizens so that no one should dare to commit the slay of any
person. The sentenc e of death shall create a deterrence in the society due to which no
other person shall dare to commit the offence of murder. If in any proved case lenient
view is taken then peace, tranquillity and harmony of society will be jeopard ized and
vandalism shall prevail in the society."
Further we are supported by the dictum laid down in case titled 'Nabi Bakhsh v. The
State and another' reported in 1999 SCMR 1972, wherein it has been held that: --
"15. Lastly, adverting to content ion regarding quantum of sentence, needless to say
that once prosecution accusations regarding involvement of convict for causing murder are
duly established then in the absence of justifiable extenuating circumstances normal
punishment required to be awar ded is "Death". Reference in this behalf can be made to
following observations in cases (i) Adur Rashid v. Umid Ali (PLD 1975 SC 227), (ii) Mst.
Bismillah v. Muhammad Jabbar (1998 SCMR 862) and (iii) Pervaiz v. The State (1998
SCMR 1976): --"
Reliance can also be placed on the judgments reported in 1998 SCMR 862 and PLD 1976
Supreme Court 452.
With the result, instant appeal is dismissed. The Murder Reference is answered in
affirmative and the death sentence awarded to the appellant by the trial Court i s confirmed.
HBT/97/Q 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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