Akhtar Zaman Malghani, J.--By this common judgment, we intend to dispose of Criminal Appeal No,193 of 2004 and Criminal Revision Petition No,51 of 2004 directed against the same and common judgment dated 16th June, 2004, whereby; appellants Daleel Khan and Ghulam Rasool were found guilty under Section 302 (c) P.P.0 and sentenced to twenty-five years R.I. They were also directed to pay Rs,50,000/- each as compensation to legal heirs of both the deceased as required under Section 544-A Cr.P.0 or in default thereof to further undergo six months S.I.
The mother of deceased Abdul Khaliq also filed revision petition for enhancement of sentence.
2. Briefly stated, facts of the case are that on 9th April, 2001 a case under Sections 302, 109, 34 P.P.0 was registered in Levies Station, Mastung on the report of Khalil, Hawaldar. Levies, wherein; it was stated that during his duty at Lakpass one woman informed about murder of a man and woman, on account of `Siakari' by Mubarak, Habibullah, Daleel and Abdul Rasool. After registration of case, investigation was carried out by PW-15 Naseer Ahmed the then Tehsildar, who inspected the place of occurrence situated in Ghanja Dhori, where he found dead bodies of Mst. Sabra and Abdul Khaliq in the house of appellant Daleel Khan. He prepared site plan Ex. P/15-A and also took into possession bloodstained floor-sheet and a spade through seizure memo Ex.P/15-B. He also seized Suzuki Pickup bearing Registration No, LSB-2800 alongwith driving license and identity card of appellant Daleel Khan and registration book through seizure memo Ex.P/15-C. He then proceeded to the place where Abdul Khaliq. was murdered and prepared site plan Ex.P/15-F. During investigation, bloodstained clothes of deceased were produced, which he took into possession through seizure memo Ex.P/15- G and dispatched dead bodies to Civil Hospital, Mastung, where doctor examined the dead bodies externally. On the request of legal heirs of deceased Mst. Sabra her dead body was referred to Civil Hospital, Quetta for postmortem, whereas; dead body of deceased Abdul Khaliq was handed over to his legal heirs. He also arrested Mubarak, but he could not lay hand on the other nominated accused namely Daleel, Habibullah and Abdul Rasool, as such; he submitted interim challan showing them absconders.
3. It appears from the record that appellant Daleel Khan and Ghulam Rasool were arrested on 7th February, 2001, who during investigation got recorded their statements under Section 164 Cr.P.C, whereafter, challan was submitted before the Court. Record further reveals that learned Sessions Judge, Kalat Division at Mastung decided to try the appellants separately instead of joining them in the trial already commenced against Mubarak.
4. The appellants pleaded not guilty to the charge, whereafter; prosecution in order to substantiate accusation produced following witnesses:-- PW-1 Khalil Ahmed lodged report Ex. P/1-A, who was informed by a woman that her son had been murdered on account of `Siakari' by Mubarak, Daleel, Abdul Rasool and Habibullah. He further deposed that after registration of case, Tehsildar came to the place of occurrence, where he took into possession one Suzuki pickup alongwith registration book, driving license and identity card of appellant Daleel Khan in his presence through seizure memo Ex.P/1-B. He is also witness to the seizure of one spade and one bloodstained groundsheet.
PW-2 Dr. Abdullah Jan deposed that on 9th April, 2001, Tehsildar, Mastung brought two dead bodies to Civil Hospital, Mastung, which were examined by Dr. Wali Shah, whereafter dead bodies were referred to Civil Hospital, Quetta for postmortem.
PW-3 Dr. Muhammad Ameen Mengal deposed that on 9th April, 2001, he was performing his duties in Civil Hospital, Quetta as police surgeon when on the said date, dead body of Bibi Sabra was brought for postmortem. He further stated that postmortem was conducted by Lady Dr. Shameem Gul Mushwani, who prepared the postmortem report Ex.P/3-A, which was countersigned by him.
PW-4 Shakar Khan deposed that on 9th April, 2001, he was present in his house and was preparing himself to proceed to his duties when Mubarak son of Azad Khan came there and enquired about his brother Abdul Khaliq, and went to his room where both of them took breakfast, in the meanwhile, he went to his duty and when he came back at about 4:30 p.m., he noticed large gathering of people in front of his house and came to know that his brother had been murdered by Daleel Khan, Abdul Rasool, Mubarak and Habibullah. He also handed, over bloodstained clothes of Abdul Khaliq to Tehsildar. In cross-examination, he denied the suggestion that his statement under Section 161 was recorded on 17th April, 2001.
PW-5 Mst. Zarina deposed that Mst. Sabra was her elder sister and they both were residing jointly in Railway Housing Society, Quetta alongwith their family. She further deposed that about 3-4 days prior to occurrence her sister Mst. Sabra was beaten by appellant Daleel Khan, on account of which her clothes were stained with blood, whereafter; Daleel Khan went out of the house and at about 2:00 p.m. he came back alongwith Saadullah and Manzoor, who took tea. At about 4 or 5 p.m., he and Sabra went to Mastung and at the time of leaving house, her sister handed over bloodstained clothes to her. She also stated that after three days, she came to know about murder of Mst. Sabra, whereupon; she handed over bloodstained clothes to her father.
PW-6 Sher All deposed that on 9th April, 2001 at about 12:00, Adam Khan came to his house and informed, him that Daleel Khan had murdered his sister on the pretext of `Siakari', whereupon; he went to Ghanja Dhori. He further stated that dead body of Mst. Sabra was handed over to him after postmortem vide receipt Ex.P/6-B.
PW-7 Muhammad Yousaf deposed that on the day of occurrence, he was going on road when he heard hue and cry of womenfolk, whereupon; he went there and enquired about the matter. He was informed by sister of Abdul Khaliq that her brother had, been murder by appellant Daleel Khan and his brothers in Killi Rodani, whereon he went there.
PW-8 Jaffar Khan Mengal, Judicial Magistrate recorded confessional statements of appellants and produced the same in the Court as Ex.P/8-A and Ex.P/8-F.
PW-9 Dr. Wali Shah deposed that on 9th April, 2001, he was performing his duties as medical officer Civil Hospital, Mastung when on the said date, dead body of Abdul Khaliq was brought there, he examined the dead body and entered details of examination in MLC register. He further deposed that as no facility of post-mortem was available in Civil Hospital, Mastung, therefore; he referred the dead body to Civil Hospital, Quetta for postmortem.
PW-10 Naik Bakht deposed that she was present in her house and her son Abdul Khaliq was sleeping in his room when Mubarak came there, who enquired about Abdul Khaliq, whereafter, Abdul Khaliq and Mubarak took breakfast and 'went out. After one and half hour, Bakhtawar came to her house and informed about, murder of her son, whereupon; she informed the Leviesmen, who came to the place of occurrence alongwith her, where she found dead bodies of Mst. Sabra and Abdul Khaliq.
PW-11 Muhammad Jan deposed that on the day of occurrence, he was going to his shop situated at Lakpass when he saw Babu and Abdul Khaliq coming towards Lakpass. After about 10-15 minutes, he saw a Suzuki coming from Quetta towards Mastung, wherein; Daleel Khan, Abdul Khaliq and Mango were sitting in the front seat. After about one and half hour, he came to know that Abdul Khaliq and one woman have been murdered.
PW-12 Haji Muhammad Karim is Witness to the seizure of bloodstained stones taken into possession from the plate where Abdul Khaliq was allegedly murdered, PW-13 Dr. Shameem Gul Mushwani conducted postmortem of Mst. Sabra and found following injuries on her person:--
1. Fire Arm entrance wound on right side of fact, Lateral to right eye, 2.0 Cm x 1.5 Cm.
2. Fire Arm exit wound on left side of skull at temporal region 2.5 x 1.5 Cm.
3. Multiple lacerated wounds on front of Chest skin deep blood stained.
4. Bruise on right Hapochondrium 5 Cm x 3 Cm blue in colour.
5. Lacerated wound in right finger of left hand.
PW-14 Mir Khan deposed that on the day of occurrence, he was cutting wood in the orchard of Dil Murad when he saw a Suzuki vehicle stationed near a pole, and three persons beating another person, he asked them to stop but before his going near to them, the said person fell down, who was bleeding, whereafter; the other three persons put him in the vehicle and proceeded towards main road. He identified appellant Daleel Khan as one of those three persons.
PW-15 Naseer Ahmed, investigated the case and submitted challan showing the appellants absconders.
PW-16 Ghulam Muhammad is second Investigating Officer, who recorded statements of Bakhtawar and Naik Bakht on 20th June, 2001 under the direction of Court. He also arrested the appellants Daleel Khan and Ghulam Rasool on 7th October, 2001 and produced them before the Judicial Magistrate for recording their statements under Section 164 Cr.P.C, whereafter; he submitted challan.
At the end of prosecution evidence, the appellants were examined under Section 34: Cr.P.0 in respect of incriminating pieces of evidence, wherein; they denied all the allegations and claimed innocence. They did not opt to give statement on oath, however; produced two witness Allah.
Bakhsh and Mst. Gul Jan in defence.
5. On conclusion of trial, the learned Sessions Judge found the appellants guilty under Section 302
(c) P.P.0 and sentenced them as mentioned above.
6. We have heard learned counsel for the appellants as well as learned counsel for Mst. Bakht Bibi and learned State counsel.
The learned counsel for appellants vehemently contended that, the judgment of trial Court was based on last seen evidence, which was weakest type of evidence and could not be relied upon unless corroborated by other material evidence. He further contended that confessional statements of appellants were liable to be excluded from consideration, as they were recorded after delay of ten days, which were even otherwise contradictory to medical evidence. He next argued that the prosecution version was doubtful as according to medical report Mst. Sabra sustained firearm injuries but neither weapon of offence nor empty was recovered. According to him, there was no medical report in respect of deceased Abdul Khaliq further weakening the case of prosecution.
On the other hand, learned State counsel vehemently argued that the prosecution version was not only substantiated by the confessional statements of the appellants but also by last seen evidence and other circumstantial evidence such as recovery of bloodstained clothes, floor sheet etc. from the place of occurrence, as such; they were rightly found guilty by the learned trial Court.
7. The learned counsel for Mst. Bakht Bibi vehemently contended that the case of prosecution was free from doubts, but the learned trial Court erred in. law by convicting the appellants under Section 302 (c) P.P.C, as it was preplanned murder and the appellants were liable to death sentence.
8. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as evidence on record. According to prosecution case, the appellants murdered Abdul Khaliq and Mst Sabra on the allegations of `Siakarr at two different places, whereafter; dead bodies of both the deceased were placed in the same room.
As regards homicidal death of Mst. Sabra, same has been proved through the evidence of lady Dr. Shameem Gul Mushwani, further supported by Dr. Ameen Mengal as well as Dr. Abdullah Jan, even otherwise death of both deceased by violent act has not been disputed by the defence, however; learned defence counsel argued that no medical certificate in respect of deceased Abdul Khaliq was produced, as such; his death by violence was not proved conclusively, but after having gone through the evidence on record, we are unable to agree with such arguments as not only Dr. Abdullah Jan and Dr. Wali Shah confirmed death of Abdul Khaliq but there is also other ocular evidence confirming that deceased Abdul Khaliq was murdered, which evidence was not seriously disputed in cross-examination. When violent death of decease has been proved through other evidence beyond any doubt, then mere fact that no postmortem was conducted has no material or legal consequences. In this regard, we are fortified by the judgment reported in 1998 SCM R 1778, wherein; it was observed as under:-- "It may be seen that case-law relied upon by learned, counsel for parties has been discussed above. We have thoroughly compared and scrutinized the ratio decidendi in afore-quoted reported judgments and relevant law. We cannot subscribe to the observations which may suggest that failure to conduct post-mortem would demolish the prosecution case. Obviously there would be numerous situations when post-mortem may not even be conducted. -In various parts of the country on account of longstanding customs and established traditions tribesmen do not allow post-mortem of the deceased. Thus, keeping in view all the relevant factors and law, we are persuaded to hold that in cases where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injuries sustained without being any element of negligence or other intervention, the non-performance of post-mortem would not be fatal."
9. Coming to the next point of determination as to who was responsible for murder of Mst. Sabra and Abdul Khaliq, it may be noted that according to prosecution version, the appellants have committed murder of both the deceased and in order to substantiate such accusation, prosecution mainly relies upon confessional statement of both the appellants as well as last seen evidence coupled with other circumstantial evidence.
Both the appellants after their arrest were produced before the Judicial Magistrate, Mastung, who recorded their statements under Section 164 Cr.P.C, wherein; both the appellants admitted to have committed murder of Abdul Khaliq and Mst. Sabra. Appellant Daleel Khan in his confessional statement further stated that he saw Abdul Khaliq and his wife Mst. Sabra in objectionable position, but Abdul Khaliq escaped, whereafter; he brought his wife and children from Quetta to Ghanja Dhori, Mastung and informed his brother about the incident, whereafter; they started search of Abdul Khaliq and on the day of occurrence, they saw Abdul Khaliq coming on road, whereupon; they forcibly put him in the Suzuki and brought him in the orchard, where he was severely beaten by them and then brought to their home, where Mst. Sabra was murdered by means of sticks.
Similar is statement of appellant Abdul Rasool.
Learned counsel for the appellants objected upon admissibility of their confessional statements by arguing that the statements were recorded after delay of ten days, as such; were not admissible in evidence. Suffice to observe that mere delay in recording of confessional statement is not itself sufficient to discard such confessional statement, if it is otherwise found to be voluntary and truthful. If any judgment is needed, we may refer to the judgment reported in 2001 SCM R 505, wherein; the Hon'ble Apex Court held as under:-- "This Court in the case of Khan Muhammad and others v. The State (1999 SCM R 1818) has dealt with the above aspect in detail and has concluded that delay in recording of confession by itself cannot render the confession nugatory if otherwise it is proved on record that the same was made voluntary."
Similarly; confessional statements of both the appellants could not be discarded merely because they have not given correct account with regard to kind of weapon and have stated falsely to that extent provided remaining part of confessional statement is corroborated by other evidence. It may be noted that admission made by appellants in their confessional statements to the extent of taking away Abdul Khaliq in a Suzuki and thereafter committing his murder as well as of Mst. Sabra, is further corroborated by the statement of Muhammad Jan, who saw the appellants alongwith Abdul Khaliq in the Suzuki pickup coming from Quetta towards Mastung, soon whereafter Abdul Khaliq was murdered as well as from the fact that dead bodies of both deceased were found in the house of appellants, from where bloodstained floor sheet was also recovered. In the judgment reported in PLD 1958 Peshawar C 147, it was held that where a part of confessional statement is found to be false, the Court can rely upon the remaining confessional statement, which found corroboration from other evidence. The relevant observations are reproduced herein below:-- "The correct proposition of law as enunciated from time to time by different High Courts is that if the only evidence in a case consists of the confession of an accused person and there is no other ocular or circumstantial evidence to connect him with the crime, the confession must be accepted or rejected as a whole. But if on the other hand, apart from the confession, there is evidence, whether ocular or circumstantial, which contradicts a part of the confession, it is perfectly permissible to a Court to accept, that part of the confession which is consistent with the evidence and reject that part of the confession which is inconsistent with it."
On the other hand, defence version is neither plausible nor believable, as both the appellants in support of their plea of alibi did not enter into witness box to depose on oath. Though in ordinary course, no adverse inference could be drawn against an accused for not recording his statement on oath as provided under Section 340 (2) Cr.P.C, but in view of specific plea of alibi taken by appellants, burden was shifted to them to prove such plea, but they were not ready to support such plea by their own statements.
In view of above discussed factors, in our considered view prosecution has successfully proved that the appellants have committed murder of Mst. Sabra and deceased Abdul Khaliq, however; next question arises as to whether the appellants were rightly convicted under Section 302 (c) P.P.0 or they were liable to be convicted under Section 302 (b) P.P.C. It may be noted that according to prosecution's own version, the deceased were murdered on account of Siakari' and in this regard, prosecution mainly relied upon confessional statement of both the appellants, wherein; they have stated that appellant Daleel Khan found both the deceased in objectionable position, but Abdul Khaliq escaped at that time, therefore; the appellants were rightly found guilty under Section 302
(c) P.P.0 instead of Section 302 (b) P.P.C.
For the foregoing reasons, we find no merits in the instant appeal as well as revision petition, which are dismissed accordingly.