SH. NAJAM-UL-HASAN J.---Muhammad Sajjad son of Muzaffar Hussain appellant was tried by learned Additional Sessions Judge, Ferozewala in case F.I.R. No.172 of 2004 dated 12-6-2004 for the offence under section 302, P.P.C. Registered at Police Station City Muridke, District Sheikhupura. The learned trial Court vide judgment dated 25-6-2005 convicted the appellant under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay Rs.100,000 (rupees one lac) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., and in default whereof to undergo six months' S.I.
2. Feeling aggrieved by the impugned judgment, the appellant has filed Criminal Appeal No.1345 of 2005, whereas the trial Court has sent Reference (M.R.No.442 of 2005) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together through this single judgment.
3. Briefly stated the facts of the prosecution case as penned in F.I.R. (Exh.P.J) are that complainant Muhammad Arif is resident of Chak at Muridkey and driver by profession and he has three children.
On 11-6-2004 at about 7-15 p.m., Shan Ali son of the complainant went to the shop for purchasing something. Thereafter the light went off. The complainant kept on searching for his child who could not be traced and on 12-6-2004 at 1-00 p.m., a noise arose from the Haveli of Rana Rashid that the corpse of Shan was lying in the South Eastern corner of the Haveli. The complainant along with Manzar Hussain and Muhammad Jamil reached the spot and saw the dead body of his son having injuries on different parts of his body with sharp-edged weapon.
4. Dr. Mubarik Ahmed (P.W.4) performed autopsy on the dead body of Shan Ali on 12-6-2004 and found the following injuries on his person:--
(1) A penetrating (hole) wound of 1-1/2 cm x 1/2 cm on the left side of head (left temporal area) with underline bone exposed 4 cm above left ear.
(2) A penetrating (hole) wound of 2 cm x 1 cm on left eye brow with underline bone exposed.
(3) A blackened/burnt (tanned) area of 11 cm x 10 cm on the left side of upper 2/3 of face, involving lower 1/3 of left side of nose and left side of upper lip, a small piece of left upper lip was also absent.
(4) An abrasion of 2 cm x 2 cm on middle of right side of neck.
(5) A transverse incised wound pf 21 cm x 8 cm on front of abdomen just above the umbilicus, intestines are protruding out.
(6) A contusion mark of 4 cm x 2 cm on back of lower aspect of left side of chest.
As per opinion of the doctor, the death in this case on clinical observations made during autopsy had occurred due to neurogenic and haemodynamic shock caused mainly by injuries Nos.1 and 2; all these injuries were ante mortem in nature, injuries Nos.1, 2, 4 and 6 were caused by blunt weapon, whereas injury No.3 by chemical burn and No.5 was caused by sharp edged weapon; duration between injuries and death was within two to four hours and between death and postmortem was within twenty four hours.
5. Investigation of this case was conducted by Moeen Ashraf Inspector (P.W.11). On 12-6-2004 Muhammad Arif complainant appeared before him and got his statement recorded which was reduced into writing and on the basis of the same formal F.I.R. Was registered. Then he proceeded to the place of occurrence, secured blood-stained earth vide memo Exh.PK, prepared unsealed site plan Exh.PL, application Exh.PM for conducting the postmortem examination, injury statement Exh.PM/1, inquest report Exh.PM/2 and sent the dead body to the mortuary for postmortem examination. After the postmortem examination, the last worn-clothes of the deceased were handed over to this police officer which were taken into possession vide recovery memo. Exh.PC. He also got prepared scaled site plan through draftsman Exh.PJ and Exh.P.1/1. He also recorded the statements of Rana Riaz and Rana Kabir Ahmed before whom the appellant had admitted about his guilt and on 20-6-2004 both the said persons produced the appellant before the investigating officer and the appellant was arrested in this case. On the same day, appellant got recovered Sooa P.1 and chhuri P.2 which were taken into possession vide recovery memo. Exh.PB. He also got registered a separate F.I.R. For the offence under section 13 of Pakistan Arms Ordinance XX of 1965 for possessing the chhuri. On 21-6-2004, appellant was produced before the Illaqa Magistrate and he was sent to judicial lock up after recording of his statement (confessional statement) under section 164, Cr.P.C. He recorded the statement of Sughran Bibi (mother of the deceased) under section 161, Cr.P.C. And on 18-6-2004 Mst. Sughran Bibi also recorded her statement under Section 164, Cr.P.C. Before a Magistrate. After recording statements of other witnesses under section 161, Cr.P.C. As well as complying with legal formalities, he prepared the challan and sent the same to the court.
6. Finally the learned trial Court proceeded with the matter and at the commencement of trial framed charge against appellant to which he pleaded not guilty and claimed for trial. During the trial the prosecution produced as many as twelve witnesses to prove the charge against the appellant.
7. After recording of evidence, learned trial Court examined the appellant under section 342, Cr.P.C., who while answering to question "Why this case against you and why the P.Ws. Deposed against you?", replied as under:-- "Six/five children were murdered in City Muridke by a Pir as well as his followers to improve their chillas. The murder of this child was also one of the above said series. As the above said Pir and his followers were already challaned by the police and they were not available to the police for the murder of this child, the police only to save their own skin from the departmental inquires as well as from the pressure of public and media falsely involved me in this case. All the P.Ws. Are closely related and they have deposed against me falsely on the asking of police"
8. The appellant also opted to make statement under section 340(2), Cr.P.C. On oath, appeared as D.W.3 and examination-in-chief of his statement reads as under:-- "On 14-6-2004 at about 7-30 p.m. I was arrested by the police from the shop of Sheikh Zaheer where I was working as salesman in those days and told me that one Rana Sahib Thanedar had called me. Then I was taken to the police station where I was locked up. At about 11-00 p.m. (night) I was taken out from the lock-up, police injected patrol through my anus and after that police started crushing me through roller made of iron and then I was hanged through my feet. They gave severe beating upon my feet due to which my feet were swollen. Police kept on torturing me for three days. During this time I remained pleading my innocence but police did not pay heed to my request. On 21-6-2004 police took me in the court of Magistrate at Ferozewala. For about half an hour police kept me in the official vehicle outside the court premises and gave severe beating to me and asked that I would be murdered in police encounter if I would not confess about the present occurrence. Then I was taken in the court room where my statement was recorded by the Magistrate in the presence of the police. After the statement I was again handcuffed and I was taken to the Police Station and not to the Jail. On 22-6-2004 some higher police officers came in the Police Station and inquired from me about the occurrence. I replied to the officers that I am innocent and I have not committed the murder. There were about 70/80 people present in the Press Conference where I showed my injuries to the Press and the public which I sustained as a result of police torture. I pleaded my innocence before the Press. I also pleaded before the press that my confessional statement is a result of police torture. I was taken to Jail at about 1-30 p.m. On the same day. After 3-1/2' months I was again taken out from the Jail by the police and kept in the Police Station for three days and after this I was again sent to the Judicial lock-up".
The appellant also produced Muhammad Amjad Ajmal (D.W. I) and Sajid Farooq (D.W.2) in his defence. The learned trial Court after appraising the evidence available on record vide judgment dated 25-6-2005; convicted and sentenced the appellant as narrated earlier, hence, this appeal.
9. Learned counsel for the appellant while challenging the legality of the impugned judgment states that this is a case in which there is no eye witness of the occurrence; in the F.I.R. The name of the accused was not mentioned, it was stated that some unknown persons committed this offence; the deceased was a young boy of six years of age; he went out of the house on 11-6-2004 at 8-00 or 9-00 p.m., and thereafter he did not come back; there was no electricity throughout the night and on the next day at about 1-00 p.m., a dead body was found in the ground of house of one Rana Rasheed, later on the same was identified as that of son of the complainant namely Shan Ali, and as such the case was registered; after the postmortem examination and burial of the deceased Mst. Sughran Bibi made statement under section 161, Cr.P.C. Before the Investigating Officer stating therein that she met the appellant who has confessed his guilt before her to the effect that he has murdered the deceased; even said Mst. Sughran Bibi did not see the occurrence herself and made statement only with respect to the extra-judicial confession of the appellant made before her; Mst. Sughran Bibi also appeared before the Magistrate and made her statement under section 164, Cr.P.C. On 18-6-2004 in which she has again narrated the same story and has stated that the appellant has confessed his guilt before her under which circumstances he has killed the deceased; the appellant was produced by Rana Riaz and Rana Kabir before the police on 20-6-2004 and both the said witnesses stated that the extra-judicial confession was made by the appellant before them, so the appellant was arrested in this case; thereafter the appellant was produced before the Allaqa Magistrate on the next day where he recorded his confessional statement in which he has narrated the whole story and the way in which he committed the occurrence. Learned counsel contends that while recording statement of the appellant under sections 164, Cr.P.C., the learned trial Court has not observed the conditions laid down in High Court Rules and Orders, Volume 3 Chapter 13 and as such the said so called confessional statement has got no value; the appellant was not informed by the Magistrate that he would be sent to the judicial lock-up after recording the statement, appellant was also not asked any question as to how much time he remained in police station. Learned counsel has relied on case titled Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329) wherein it was held by the honourable Supreme Court that the confessional statement should be exactly in accordance with the High Court Rules and Orders and any, deviation from such rules is illegality which is not curable.
Learned counsel has relied on case titled Hafiz Muhammad Arshad v. The State (PLD 2007 Lahore 324) in which such infirmities regarding the statement of appellant under section 164, Cr.P.C. Were brought on the record and the learned High Court acquitted the accused. Learned counsel submits that the appellant appeared under section 340(2), Cr.P.C. As his own witness and narrated the whole story and stated that he was tortured and that is why he was forced by the police to make such statement. In this view of the matter, learned counsel submits that when the appellant was tortured and was under threat, the said questions were material and non-asking of such questions makes the whole confessional statement of the appellant useless especially when the same was retracted by the appellant in court. Learned counsel further contends that Muhammad Amjad Ajmal D.W.1 and Sajid Farooq D.W.2 appeared in defence of the appellant and they stated that they had seen the appellant on 15-6-2004 in the police custody along with his father and brother and on their intervention father and brother of the appellant were released by the police whereas the appellant was having injuries on his feet. Learned counsel submits that the statements of these defence witnesses support the defence version that appellant was tortured and thereafter he made statement under coercion. Learned counsel submits that while appearing in Court the appellant resiled from his confessional statement and denied the charges levelled against him; in the prosecution case Mst. Sughran Bibi was the main witness, she narrated the whole story and stated that she was having illicit relations with the appellant and that as his son Shan had seen them in objectionable condition so under threat the appellant killed her son and confessed the guilt before her; she also stated that the deceased was last seen in the company of the appellant and thereafter he was found dead. It is contended that in p. Osecution case there is also evidence of recovery of crime weapons from the appellant i.e. Sooa and Chhuri, statedly the recovered Churri was blood stained whereas there is no mention of any blood stains on the Sooa in the recovery memo. But the report of the Chemical Examiner and the Serologist indicates that both these weapons were stained with blood, such a circumstance makes the prosecution case highly doubtful. It is contended that there is no other corroboration of any kind to this respect, therefore, only retracted confessional statement of the appellant is not sufficient for his conviction for capital sentence. Learned counsel further contends that there is a conflict in the medical evidence and the confessional statement of the appellant; the appellant while making confessional statement before the Magistrate narrated that he gave Sooa blow on the head and forehead of the deceased but the doctor who conducted the postmortem examination has stated that these injuries were result of blunt weapon. It is also contended that there were also certain injuries on the person of the deceased which were not explained by the appellant while making confessional statement.
Learned counsel further contends that Rana Riaz and Rana Kabir the witnesses before whom the appellant made extra-judicial confession appeared before the police but they were given up by the prosecution as won over and the presumption shall be that if they had appeared before the trial Court they would not have supported the prosecution case. It is contended that in those days there were series of child killing incidents and this occurrence appears to be the result of the same and the police just to show their efficiency has falsely implicated, the appellant; the appellant has no previous record and the prosecution has failed to prove case against him. Learned counsel has also relied on case titled Ibrahim and others v. The State (2009 SCMR 407) wherein it has been held by the honourable Supreme Court that in a case of circumstantial evidence every chain should be well connected. Learned counsel lastly submits that in the said circumstances the appellant is entitled to get the benefit of doubt.
10. Conversely learned Deputy Prosecutor-General while supporting the impugned judgment states that Mst. Sughran Bibi (PW.7) has made statement under section 161, Cr.P.C., on the very same day and thereafter she made a statement under section 164, Cr.P.C. And even in the court she stuck to her statement and her statement is corroborated from other evidence; the appellant made a confessional statement before a Magistrate and that statement is just in line with the statement of Mst. Sughran Bibi; no reason for Mst. Sughran Bibi to falsely implicate the appellant is available on the record especially when she made statement after a delay of considerable time and she remained consistent to her previous statement; there is no reason to discard her statement. It is contended that the recovery of weapons from the appellant also corroborates the ocular account; the motive has been proved through the statement of Mst. Sughran Bibi; the circumstances brought by her were also confirmed by the other witnesses; the confessional statement of the accused is in accordance with law; he was duly asked the questions by the concerned Magistrate which were required; he was asked in the court that this statement will be used against him and that he is making statement before the court. Learned law officer contends that after the statement he was sent to the judicial lock up and as such all the formalities under section 164, Cr.P.C. Have been fully complied with; the confessional statement of the accused gets full corroboration from the injuries on the person of the deceased wherein the appellant has given the reasons for committing the murder of the deceased. Learned law officer has relied on cases, titled Manjeet Singh versus The State (PLD 2006 Supreme Court 30) and Nizam-ud-Din v. Riaz and another (2010 SCMR 457) wherein it has been held by the honourable Supreme Court that even the retracted statements of accused can be based for maintaining the conviction and sentence. In these circumstances, learned law officer lastly submits that the appellant does not deserve any leniency.
11. We have heard the arguments of learned counsel for the parties and have also gone through the record.
12. In this case, the prosecution has mostly relied on the confessional statement of the appellant.
The complainant was not the eye-witness of the occurrence and he got registered the F.I.R. Against unknown persons. Mst. Sughran Bibi (P.W.7) mother of the deceased made statement before the police on the same day after the burial of the dead body and she has nominated the appellant as an accused mainly on the ground that the appellant made extra-judicial confessional before her regarding the murder of her son. It is also in her statement that it was the appellant who was last seen with the deceased and thereafter the deceased was found dead on the next day. She has also narrated the circumstances in which the appellant developed hatred towards the deceased and ultimately killed him just and to give the occurrence an appearance of murder in series of child killing, the appellant also threw acid on the face of the deceased. The appellant made extra- judicial confession before Rana Riaz and Rana Kabir who were not produced before the trial Court.
After his arrest the appellant was produced before a Magistrate where he made confessional statement. Learned Magistrate observed almost all the formalities. She gave time to the appellant to think over before making statement, he was allowed to sit in the court for more than half an hour and later on after asking the required questions that he was in the court and was free to make statement. He was also asked if there was any pressure on him to which he replied in negative. He was also explained by the Magistrate that the statement made by him can be used against him and on the basis of the same he can be sentenced and that reasons for making statement were also inquired from the appellant. After satisfying herself, learned Magistrate recorded the statement of the appellant in her own hand. This statement of the appellant gets full corroboration from the statement of Mst. Sughran Bibi which she made before the police and the statement she made before the Magistrate under section 164, Cr.P.C. The appellant in his confessional statement has described the way he has committed the offence and also the injuries he caused to the deceased.
13. The contentions of the learned counsel that the injuries on the head and the forehead of the deceased were stated by the doctor to be the result of the blunt weapon, whereas the appellant has stated in his confessional statement that he gave the injuries with Sooa. We have observed that the doctor has described these injuries as that of penetrating holes of 1-1/2 cm x 1/2 cm and that 2 cm x 1 cm. The description of injuries indicates that they are the result of some weapon like Sooa but may be that Sooa was not so sharp. So the presence of the acid burns and incised wounds on the abdomen of the deceased fully C corroborate the statement of the appellant made before the Magistrate. The contentions of the learned counsel that the appellant was never informed that he would be sent to the judicial lock up and that it was not asked from the appellant as to how much time he remained in the police custody are fatal to the prosecution case but in this regard, we have observed that such defects are curable under section 533, Cr.P.C. Even otherwise, the accused is not prejudiced by the short comings/infirmities as described by learned counsel as he was sent to the judicial lock up just after his statement as required under the law. The recovery of Sooa and chhuri which were later on found to be blood stained also gives support to the confessional statement of the appellant.
14. No doubt this confessional statement of the appellant is retracted one but in case titled Manjeet Singh v. The State (PLD 2006 Supreme Court 30), the honourable Supreme Court held that the retracted confession of an accused either judicial or extra-judicial can be used for conviction.
Relevant portion of the judgment reads as under:-- "There is no rule of criminal administration of justice that the Court having found the retracted confession voluntary and true, must also look for the corroboration and in absence of corroborative evidence conviction cannot be maintained. The retraction of a judicial or extra-judicial confession itself is not an infirmity to be considered sufficient to withhold the conviction because the evidentiary value of a confession is not diminished by mere fact that it was retracted by the maker at the trial and thus the independent corroboration from other source direct or circumstantial, cannot be insisted in every case as a mandatory rule rather the rule of corroboration is applied as abundant caution and in a case depending entirely on the confessional statement of a person or only of the circumstantial evidence, this rule is applied more cautiously".
The same view was taken by the honourable Supreme Court in case titled Nizam-ud-Din v. Riaz and another (2010 SCMR 457). The relevant portion of the judgment is as follows:-- "The confession of any kind can become the basis of conviction if it is found voluntary and true"
15. It has also been observed by us that in this case Mst. Sughran Bibi mother of the deceased has made statement under section 161, Cr.P.C., before the police and under section 164, Cr.P.C. Before the Magistrate in which she has somehow implicated herself and has taken the risk of putting her respect and honour at stake. Thus, we do not find any reasons to disbelieve the statement of Mst.
Sughran Bibi especially when there is no reason for false implication of the appellant. The D. Ws.
Produced by the appellant were never examined by the investigating officer and their statements are mostly regarding the release of father and brother of the appellant.
16. We have also observed that the confessional statement of the appellant was made just on the next day when the appellant was arrested i.e. Within few days of the occurrence. The case-law referred by the appellant has got different footings and in the present case there is a statement of the mother of the deceased implicating the appellant and thereafter the appellant made a confessional statement before the Magistrate. The Magistrate recorded the statement of the appellant in her own hand and after providing opportunities to the appellant to think before making statement, he was duly warned that this statement can be used against him and he can be sentenced because of the same and the Magistrate satisfied herself that the statement was made voluntarily and gave a certificate in this respect at the end of the statement. In these circumstances, we are of the considered view that the prosecution has fully proved the case against the appellant and there is no doubt regarding his involvement in the murder of the deceased. Thus, we do not find any reasons to differ with the findings of the learned trial Court qua the conviction of the appellant.
17. Now coming to the question of sentence of the appellant, it has been observed by us that the appellant has brutally murdered a small child of six years of age and has tried to give it the colour of serial child killing. No reason or mitigating circumstance for awarding lesser sentence to the appellant is available in this case. In these circumstances while maintaining the conviction and sentence of appellant under section 302(b), P.P.C. The appeal filed by him (Criminal Appeal No.1345 of 2005) is hereby dismissed.
18. Resultantly death sentence awarded to the appellant is confirmed and murder reference i.e. Murder Reference No. 442 of 2005 is answered in the affirmative .