' MUHAMMAD ALAM KHAN, J.--- This criminal appeal filed by the convict/appellant Nawab Khan son of Gul Wali is directed against the judgment, dated 12-12-2006 passed by the learned Additional Sessions Judge-II, Bannu in case F.I.R. No,378, dated 3-8-2002 under section 302/34, P.P.C. Of Police Station Mandan, District Bannu, whereby the appellant has been convicted under section 302(b), P.P.C. And sentenced to imprisonment for life and to pay compensation amounting to Rs,1,00,000 to the legal heirs of the deceased Mst. Bas Saleha under section 544-A, Cr.P.C. Benefit under section 382-B, Cr.P.C. Has, however, been extended to him.
2. The prosecution story as narrated by the complainant Nek Sardar Khan is to the effect that he was married to Mst. Shahnaz about 3/4 years ago and his sister named Mst. Shazia was married to the brother of his wife namely Nawab Khan. He had two daughters from Shahnaz Bibi while his sister Mst. Shazia had only one baby from Nawab Khan. A month prior to the occurrence, his wife got annoyed and went to her parents house while his sister Mst. Shazia Bibi also came back to their house. His daughter Mst. Bas Saleha aged about 5/6 months was left with the complainant. On the eventual day at Digar Vela, his uncle named Amanullah decided that he (the complainant) will hand over his minor daughter Mst. Bas Saleha to his wife Mst. Shahnaz Bibi in order to save the life of the minor baby to which he agreed and in presence of Nisar Ali, his cousin, handed over the minor Bas Saleha to Nawab Khan, convict/appellant herein. On the following morning when Fazal Rabbi and Nisar Ali went to the fields to answer the call of nature, on the embankment they found the dead body of the said minor bas Saleha which was brought to the house of the complainant.
The apparent cause of death was noted to be suffocation as there was bleedings from the mouth and nose of the deceased. Thus, the complainant charged Nawab Khan, Khan Wali, Shafi-ur- Rehman and his own wife Mst. Shahnaz Bibi for the murder of his minor daughter Bas Saleha vide F.I.R. (ibid).
3. After completion of investigation, all the accused were summoned to the Court. Of them, accused Nawab Khan on 25-10-2003 applied for his acquittal on the ground of unsoundness of mind and his examination through Civil Surgeon. He was accordingly examined by the Medical Board at Bannu but since no conclusive and definite opinion could be formed, he was referred for examination by a Standing Medical Board in the Police and Services Hospital, Peshawar and vide its report, dated 22-4-2003, the proceedings against him were stopped by order, dated 31-5-2004 as he was found unfit to plead his case in a Court of law, while his co-accused Khan Wali, Shafi-ur- Rehman and Mst. Shahnaz Bibi were tried and subsequently, acquitted by the learned Additional Sessions Judge-V, Bannu vide order, dated 26-2-2005. Later on, the Standing Medical Board at Peshawar vide their report, dated 11-8-2005 once again examined the accused Nawab Khan who was kept under observation at Central Jail Peshawar for fifteen days, whereafter the following remarks were passed:--- "Now the Standing Medical Board on the basis of staff observation and mental state assessment is of the opinion that presently he is stable and knows the nature and consequences of the crime.
Therefore, he is presently able to plead his case in the Court of law."
4. After the aforesaid observations of the Standing Medical. Board at Peshawar, the accused Nawab Khan was again put on trial.
5. In order to prove its case against him, the prosecution produced and examined eight witnesses, whereafter statement of the accused was recorded and he produced no defence. The learned trial Judge on evaluating the evidence convicted and sentenced him as mentioned above, hence, this appeal.
6. Mr. Gohar Zaman Khan Kundi, learned counsel for the appellant, vehemently contended that on the same set of evidence the other three accused, namely, Shahnaz Bibi, Khan Wali and Saif- urRehman, have been acquitted and thus, the appellant could not be convicted on that evidence which has already been rejected by the trial Court. It was also submitted that the confessional statement of the appellant was the result of duress, as no independent advice was available to him and it is not certain that in which language the confessional statement has been recorded. It was also submitted that there was long-standing enmity and strained relations between the accused and the complainant and in these circumstances, the deceased-child could not be handed over to the accused. The learned counsel went on to say that there was no circumstantial evidence on record to warrant conviction of the appellant. In support of his contentions, reliance was placed on the cases of Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCM R 1047, State v. Muhammad Naseer 1993 SCM R 1822, Ali Khan v. The State 1999 SCM R 955 and Imran Sharaf and 7 others v. The State 2001 SCM R 424.
7. On the other hand, the learned Deputy Advocate-General representing the State vociferously defended the impugned conviction and sentence of the appellant by submitting that the prosecution has proved its case against the convict beyond any shadow of reasonable doubt and no dint was available in the prosecution story and the appellant was rightly convicted and sentenced through the impugned judgment of the learned trial Judge. He submitted besides the clean breast confession by the appellant, there was strong circumstantial evidence in the case which could reasonably connect him with the commission of the offence.
8. We have scanned the record thread barely and minutely considered the arguments advanced at the bar by the learned counsel for the parties.
9. We are, however, of the considered view that the prosecution had successfully been able to prove its case against the convict/appellant beyond any shadow of reasonable doubt and the impugned judgment of conviction is the result of correct appraisal of evidence brought on record.
Perusal of the record reveals that the convict/appellant is directly nominated for commission of the offence by the complainant in his promptly lodged report. The appellant had confessed his guilt before the Judicial Magistrate, Bannu. The plea of insanity of the appellant being A afterthought is without force and not appealing to reason. There is nothing on the record to show that the appellant was insane at the time of committing the crime and the opinion of the Medical Board reflects his mental condition after the occurrence. The appellant has committed the brutal murder of his niece who was a minor baby of 5/6 months. The injury sheet Exh.P.W.6/2 of the deceased baby reveals that she was killed through strangulation. Perusal of the post-mortem report Exh.P.W.6/1 also indicates that the cause of death of the deceased girl was due to strangulation.
The appellant was arrested in the case in hand on 13-9-2002 and on the next day, i,e, 14-9-2002 he was produced before the Senior Civil Judge/Judicial Magistrate, Bannu, where after observing all the legal formalities by the learned Judicial Magistrate, his confessional statement was recorded wherein he narrated the entire episode of the occurrence, i,e, the way he strangulated the girl child in retaliation of the attitude of his relatives who had caused the miscarriage of his child. The site plan was initially prepared at the pointation of the complainant and after his arrest, the appellant had led the police party to the place of occurrence and pointed out the place where after strangulation the minor child, her dead body was placed on the embankment of the field of Khan and thus, the Investigating Officer after pointing out the place of occurrence by the accused/appellant made entries with red-ink in the site plan vide Exh.P.W.6/4. While narrating the mode and manner and reasons for committing the offence, the appellant had recorded his confessional statement on 14-9-2002 before the learned Senior Civil Judge Bannu and stated that he was married with Mst. Shazia Bibi, daughter of Islam Sardar some three/fours years ago and in exchange his sister named Shahnaz was married with his brother-in-law Nek Sardar. After some time, relations between the two families became strained and in the meantime a son named Roman was born from his wedlock. When became pregnant for the second time, his wife went to her parents house due to the strained relations and thus, her parents were following him duly armed. Out of fear he went inside the screen. The pregnancy of his wife was destroyed by her parents which gave him annoyance. On 2-8-2002, he along with his minor cousin Jamshed went to the house of Amanullah Khan, maternal-uncle of Nek Sardar and enquired from him about the coming back of his wife who gave assurance to him in this behalf and when returning took' the child, namely, Saleha, daughter of his brother-in-law Nek Sardar in order to meet with her mother Mst. Shahnaz Bibi who was residing with him due to the aforesaid strained relations. In the way he thought that when Nek Sardar had destroyed the pregnancy of his wife, why he should take care of his children and thus, by pressing finger on her neck, she was strangulated and done to death whereafter her dead body was thrown in the fields near the house of Nek Sardar and then he and his cousin ran towards Zaker Khel. The appellant has thus, made a clean breast confession in the above manner. The above facts were further confirmed by Sher Afzal Khan Marwat, Senior Civil Judge, Balm who had recorded the confessional statement of the appellant who while appearing as P.W.5 had stated that on 14-9-2002 the appellant was produced before him and after fulfilling the requisite requirements, his hand cuffs were removed and after affording him an opportunity for thirty minutes to think on making the confession and obtaining his willingness, his confession was recorded which is Exh.P.W.5/1 which lead to the irresistible conclusion that the confession was free from duress and voluntary in nature.
10. We have also examined the case-law relied by the learned counsel for the appellant. We are, however, of the view that the facts and circumstances of the case-law cited and relied upon by the learned counsel for the appellant are distinguishable from the facts and circumstances of the case in hand and thus, have no nexus herewith.
11. In view of the proved, voluntary and true judicial confession, which is although retracted, but strongly corroborated, by the circumstantial and medical evidence as well as the statement of P.W.2 Amanullah Khan who had personally delivered the baby to accused and whose statement could not be shattered by cross-examination, the prosecution had been able to successfully prove its case against him, while his only plea of insanity at the time of occurrence was not proved. The insanity developed during trial is quite different from that at the time of occurrence. There is nothing on the record to show that the appellant or any of his relatives had raised such plea of insanity. The appellant was arrested after forty days of the occurrence on 13-9-2002 and was produced before the learned Judicial Magistrate on 14-9-2002 where his confession was recorded without remanding him to the local police for a single day. The plea of insanity of the appellant raised after the occurrence was a weaker 'type of evidence on two-fold grounds; Firstly that if he was insane at the time of occurrence, then why he became fugitive from law for a long period of forty days after committing the crime and he could be easily arrested by the police during his insanity and secondly, that if the appellant was really insane, then how the learned Judicial Magistrate knew the background of the case wherein the accused has described the whole story which led him to commit the murder of the deceased minor' girl and lastly, that there is nothing on the record to show that after the occurrence the convict/appellant or any of his relatives moved an application to the trial Court raising the question of his insanity. The learned Judicial Magistrate without remanding the accused to the local police recorded his confessional statement (Exh.P.W.5/1 to Exh.P.W.5/3) which makes it crystal clear that the offence was voluntarily confessed by the accused which was reduced into writing in the same way what the accused uttered before him.
12. From whatever angle we see, the prosecution had successfully brought home guilt to the convict/appellant and thus, the learned trial Judge has correctly appraised the evidence and rightly drawn the impugned conclusion which is not open to interference by the Court.
13. Consequently, while maintaining the impugned conviction and sentence of the appellant, we find no substance in this appeal which is accordingly dismissed.