1. ' RAHMAT HUSSAIN JAFFARI, J.---The appeal is in respect of unwitnessed murder of deceased.
2. Muhammad Iltaf Hussain which occurred on 23-1-2000 at 2-00 a.m. At Hassan Company Deh Ghulam Shah Taluka Kandiaro. It is alleged that the complainant Muhammad Suhail brother of the deceased who was residing in District Khanewal came to meet his brother where he met P.W.
3. Ghulam Shabbir who informed him that the deceased and the appellant Faisal Shaikh were residing in Shop No.5 but on that day he did not see him. Ghulam Shabbir was also going to that direction on the instruction of his master Muhammad Madni to enquire as to why the godown was closed therefore Ghulam Shabbir, complainant Muhammad Sohail and Qaiser went to the place of the incident where they saw shutter of the shop closed. They opened the shutter and found the dead body of the deceased lying with Churri injuries on his person. Two blood stained Churries were also lying there. The complainant and the above named P.Ws were present when on the wireless set Ghulam Shabbir received message from his Master Muhammad Madni Shaikh that the appellant was with him and he had confessed the guilt that he had killed the deceased and he was in custody of the Chowkidar therefore they should come there. The complainant and above named P.Ws. Went to Kandiaro where they met P.Ws. Muhammad Madni. The complainant also met with the appellant who was present there. He enquired from him as to why he had killed the deceased to which he replied to him that the deceased was forcing him to commit sodomy therefore he killed him. Thereafter the complainant in the company of Muhammad Madni and Ghulam Shabbir and other took the accused to the Police Station where the complainant lodged the report.
4. ' The police after usual investigation challenged the appellant in the Court. The case was tried by learned Sessions Judge, Naushahro Feroze. The prosecution examined six witnesses. The trial Court after considering the evidence and hearing the parties counsel convicted the appellant under section 302(b), P.P.C. And sentenced him to suffer imprisonment for life. The trial Court further directed the appellant to pay Rs.20,000 as compensation to the heirs of the deceased or in default thereof to suffer R.I. For six months, with benefit of section 382-B, Cr.P.C.
5. ' I have heard the learned Advocate for the appellant, Addl. A.-G. And perused the record of this case very carefully.
6. ' The learned Advocate for the appellant and Addl. A.-G. Have admitted that the entire case rests upon the extrajudicial confession of the appellant made before P.Ws. Muhammad Madni and complainant Sohail.
7. ' The important evidence in this case is the statement of P.Ws. Muhammad Madni. His evidence reveals that the deceased and the accused were residing in the Shop No.5 as they were employees of Hassan Company. He was also employee of that company. The company had weighing machines for weighing trucks therefore the deceased and P.Ws. Were residing in the shop. On the night of the incident he was sleeping in his room when at about 4-5 a.m. Appellant Faisal came to him. He awakened him and informed him that there was quarrel between him and the deceased therefore he murdered him in anger. He further stated that the appellant did not inform him about the manner in which he committed the murder of the deceased. His evidence further reveals that in the first instance, he did not believe the appellant but subsequently he got him apprehended through Chowkidar thereafter he informed the incident to P.W Ghulam Shabbir on his wireless then the P.W Ghulam Shabbir came there.
8. ' P.W. Ghulam Shabbir and complainant Sohail gave the same details of the incident as mentioned in the earlier part of the judgment. They specifically stated that Ghulam Shabbir received wireless message from P.W. Muhammad Madni therefore they went there where they found the accused present there. Complainant Sohail further disclosed-that he met with the accused and enquired from him about the cause of death to which the accused disclosed him that he killed the deceased as the deceased used to tease him and tried to commit sodomy with him therefore he murdered him. All the P.Ws. Have stated that they took the accused to the Police Station. It has also come in the evidence that the accused was not handcuffed or tied with anything.
9. ' All the P.Ws. Were fully cross-examined by the defence counsel. They have successfully passed the test of cross-examination. There are no material contradictions or discrepancies in their evidence. Their evidence is unanimous on all the material facts of the case which goes to show that the witnesses are truthful and believable. There is no enmity whatever with the appellant and the witnesses nor any enmity was suggested between them. There is no motive or cause with any of the P.Ws. To falsely implicate the appellant. The evidence of witnesses is confidence inspiring and I do not find any reason to disbelieve their evidence.
10. It is well-settled principle of law that extrajudicial confession is a weak type of evidence. However three conditions are required to be examined before relying upon extrajudicial confession. They are;
1. The confession was made,
2. The confession was voluntarily,
3. The confession was true.
11. ' In the present case the appellant did not allege that any force was applied or he was maltreated by the P.Ws. No such question was put by the appellant to any of the P.Ws. The incident took place at about 2-00 a.m in the night immediately thereafter at about 4 or 5-00 a.m on the same night the appellant voluntarily went to Muhammad Madni who was the employee and head of the Hassan Company. The appellant felt fully safe in the hands of Muhammad Madni being the head of company and with a view to get some help from him therefore it was but natural that the appellant had gone to a person who might help him in such a situation. There is no relationship between him and the deceased. There is no between the P.W. Muhammad Madni and the appellant therefore the confession before Muhammad Madni was voluntarily made. Apart from the above facts it has come on the record that the appellant was not handcuffed or tied with any rope. He was just sitting in the custody of Chowkidar. He was sitting like a free man thereafter all the persons took the appellant without any handcuff or tying him with any rope to the police station. If the appellant had felt some apprehension then he could have easily slipped away from there but he did not do so and voluntarily went to the Police Station where his custody was handed over to the police. This fact has been supported by the Investigating Officer and Mashir of arrest. As such I am satisfied that the extrajudicial confession was not only made but it was voluntarily made.
12. ' The evidence of Medical Office'r shows that the deceased has as many as five incised wounds which were caused' on the neck and other parts of the body. The evidence of Muhammad Madni reveals that the appellant disclosed to him that there was fight between the accused and the deceased therefore he murdered him. The injuries on the person of the deceased clearly show that the same were caused on different parts of the body. The recovery of two Churries from the place of the incident also indicates/supports the extrajudicial confession of the appellant. As such extrajudicial confession of the appellant is true.
13. ' All the main conditions for relying upon extrajudicial confession are fulfilled in the present case.
14. The appellant has not taken any defence in his statement recorded under section 342, Cr.P.C. He simply stated that he has been involved falsely. After considering the material available on record I am of the considered view that the prosecution has proved the case against the appellant beyond any reasonable doubt therefore the learned trial Court has rightly convicted and sentenced the appellant under the impugned judgment.
15. ' Above are the reasons of my short order, dated 5-7-2005 by which I had dismissed the appeal.