JUDGMENT MUHAMMAD NOOR MESKANZAI, J. - Through this common judgment, we propose to decide the fate of Criminal Jail Appeal No. 60 of 2009 & 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 thousand) 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 default 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 the F.I.R, that after having dinner, his brother abruptly disappeared from the house. On the next rooming, foot prints of Ali Muhammad were chased which lead to date palm trees and found the bloodstained 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 accused 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 Bibi. Charge was framed to which the appellant did not plead guilty and claimed justice through trial. The prosecution to substantiate the accusation examined following PWs:- PW.1 Muhammad Noor (Complainant), PW.2 Abdul Waris, S.I. Recovery witness, PW.3 Dr. Ehsan Ahmed, Medical Officer, who examined the dead- body, PWA Sher Ahmed Rind, Judicial Magistrate, who recorded the statement of appellant under Section 164, Cr.P.C, and PW.5 Liaqat Ali, S.L, 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 oh 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 State was represented by Mr. Muhammad Wassay Tareen,-'P.0, 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.
(i.e) . 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 appreciation 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 Prosecutor 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 statement 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 considered 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 bloodstained axe at the Plantation of appellant Ex. P/2, corroborated by the report of ballistic expert.
(b) confessional statement Ex. P/4-C, corroborated by medical evidence Ex. 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 0n 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 Plantation 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 were Mst. Taj Bibi four days prior to the incident from Shinger to Panjgur, (i.e illicit relations between Taj Bibi, (i.e) 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 days 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 2001 P.Cr.L.J.
Page 86 and 1985 SCMR 1793 relevant page 1804. Relevant observations from the latter judgment are reproduced herein below:--- "As regards the first reason it may he mentioned here that as provided by Articles 37th 39 of the Qanun-e-Shahadat Order, 1984 a confession made by cm 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 consequence of the information conveyed by the accused person, then the information so received puld 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 contention i.e. The acquittal of the co- accused on same set of evidence is concerned, in our opinion, the contention looses 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 appellant 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 questioner, which reads as under:- Q. No. 12. Is it correct 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 Investigation Officer prepared disclosure memo, and produced as Ex. 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 the confession, apparently, though the statement appears to have been recorded with delay of almost six days but the chain of the circumstances that led to Plantation 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 Magistrate 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 evaluating 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) wherein it has been held as under:- "No doubt there was delay of 12 days in recording the confession hut this by itself is not sufficient to discard the same. This Court in the act. Of Nabi Bakhsh v. State 1999 SCMR 1972 held that delay in recordist, 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. Reference 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 &s 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 learned 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 been rendered on the basis of circumstantial evidence and confessional statement. The law stands settled that if the circumstantial evidence establishes the guilt without any link of the chain being broken, there is no harm, in imposition of capital punishment 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 eyewitness and the names were given on suspicion but the police 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 murder reference, the perusal of the record reflects that the appellant has committed a cold blooded, murder of an innocent, armless, helpless and defenseless 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 and 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 stands settled that in case, the. Court is satisfied that the person is guilty of the commission of murder and there is no mitigating circumstance, in such an eventuality, the Courts are bound to pass the normal sentence. By holding the view we are fortified by the dictum laid down in the case of 'Manzoor Ahmed v. The State' reported in 1999 SCJ page 103, 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 un-armed 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 justify lesser penalty. Even otherwise keeping in view seven incised wounds on the person of the deceased almost III 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 P.Cr.L.J. 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 satisfactory 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 sa that no one should dare to commit the slay of any person, The sentence 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, tranquility and harmony of society will be jeopardized and vandalism shall prevail in the society. "
17. Further we are supported by the dictum laid down in case titled "Nabi Bakhsh v. The State and another" reported in NLR 1999 Criminal 641. Wherein it has been held that:- "15. Lastly, adverting to contention 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 awarded is "Death". Reference in this behalf can be made to following observations in cases (i)
Abdur Rashid v. Umid Ali (PLD 1975 SC 227), (ii) Mst. Bismillah v. Muhammad Jabbar (1998 SCMK862) and (i.e) Pervaiz v. The State (1998 SCMR1976):- 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 is confirmed.