ABDUL MAALIK GADDI, J.---Through this criminal jail appeal, the appellant has assailed the legality and propriety of the judgment dated 28.03.2012, passed by the learned Additional Sessions Judge, Tando Adam in Sessions Case No.34 of 2008, arising out of Crime No.27/2008, registered at Police Station Shandadpur, under section 302, P.P.C., 'whereby the learned trial Court after full-fledged trial, convicted and sentenced the appellant in the term as mentioned in point No.23, which reads as under:-
23. The result of my above discussion is that the prosecution has successfully established the charge of Qatl-i-Amd against the accused through strong circumstantial evidence beyond shadow of reasonable doubt and defence side has failed to create any doubt or dent in the prosecution case. The circumstances wherein this unfortunate incident had occurred, in which mother had asked her son (accused) to earn for livelihood and having been annoyed of the same, the accused brutally murdered his real mother by causing seven incised wounds with hatchet and Chhuri, the injuries caused by accused indicate his mensrea for committing murder. Had he no such intention, he could not have repeated such series of injuries firstly with Chhuri and then with hatchet. The circumstances wherein the accused has committed murder of his own mother mercilessly, in no any way entitle him for any leniency. A cruel son if is escaped of the sentence for brutally causing murder of his real mother then it would give an encouragement to such kind of accused in society , which is to be discouraged with iron hands.
24. Off course, the incident is un-witnessed but confessional statement of accused is itself sufficient for awarding the conviction in the case; as is held in 2011 PCr.LJ 21. There are no notifying conclusions for taking lenient view in the case. Accordingly, I, convict accused Muhammad Azam under section 265- H(2), Cr.P.C. and award him death sentence as Tazir under section 302(b) P.P.C, he be hanged by neck till he is dead. Accused may file appeal within seven days. Let reference for confirmation of death be made to the Honourable High Court of Sindh in terms of section 374, Cr.P.C. Accused is present in custody, he is remanded to C.P. Hyderabad to serve out sentence by supply him true copy of judgment free of costs."
2. Briefly the facts of prosecution case are that on 07-02-2008, complainant Muhammad Yaseen lodged FIR alleging therein that he with his wife Mst. Shahida, two sons Azam and Asif and three daughters, was residing in the house. On the day of report/occurrence at about 05:00 a.m. Asif left the house for his labour work in Ali Hassan Shadi Hall Tando Adam Road while his three daughters went to school and complainant leaving his wife and son Azam in the house went to Dargah Nangey Shah, where at about 10:00 a.m his son Azam (present accused) came and informed that when he (Azam) left for city his mother was sweeping in the house but on his return he found her "murdered". Complainant immediately informed the incident to his nephews Abdul Hameed and Muhammad Yousif and went to his house, in the meantime, so many neighbourers also gathered there. He saw deceased lying dead having injuries on both sides of her face and neck and on other parts of body, where a hatchet and chhuri stained with blood were also found lying adjacent to the dead body. On search nothing was found stolen from the house by the complainant.
Leaving the witnesses over the dead body, complainant went and lodged FIR against unknown accused, which was recorded by SIP Agha Muhammad Hashim.
3. It appears from the record that after completing the usual investigation challan was submitted against the accused/ appellant and trial Court framed charge against him to which he pleaded not guilty and claimed trial. Thereafter, in order to prove its case, prosecution examined PW-1 Dr. Nasreen at Ex.05, she produced post-mortem report of deceased Mst. Shahida at Ex.05-A, police letter at Ex.05-B; P.W-2 Muhammad Yousuf at Ex.07; P.W-3 Abdul Hameed at Ex.08; P.W-4 Mashir Muhammad Sharif at Ex.09, who produced memo of inspection of vardat and dead body, inquest report, memo of seizer of clothes of deceased, memo of arrest of accused and memo of recovery of churri and hatchet (crime weapons) at Ex.9-A to 9-E respectively; P.W-5 SIP Syed Agha Muhammad Hashim at Ex.10, who produced FIR at Ex.10-A; P.W-6 Tapedar Aijaz Hussain at Ex.12, who produced sketch of place of vardat at Ex.12-A; P.W-7 Inspector (R) Dhani Bux I.O. of the case at Ex.13, who produced chemical report at Ex.13 -A and P.W-8 Syed Zahid Hussain Shah (R) Civil Judge and Judicial Magistrate at Ex 14, who produced judicial confessional statement of accused and letter of police whereby accused was produced before him at Ex.14- A and 14-B respectively and thereafter prosecution side was closed vide statement at Ex 15. Thereafter, statement of the appellant/accused was recorded under section 342, Cr.P.C. wherein he pleaded his innocence and claimed his false implication in this case due to enmity with his cousins. He further stated that his mother was killed by his cousins. However, neither he examined himself on oath in order to disprove the prosecution case nor led any evidence in defense.
4. Learned trial Judge after hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the appellant as stated above through impugned judgment. Hence this appeal.
5. It appears from the record that the learned trial court in the impugned judgment has already discussed the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.
6. The learned Counsel for the appellant contended that the appellant has been falsely involved in this case due to enmity; that there are material contradictions in the evidence of prosecution witnesses, but the trial Court did not consider the same at all and passed the impugned judgment, which is against law and facts; that the complainant and the other prosecution witnesses in the case namely Muhammad Yousuf and Abdul Hameed were closely blood related, therefore, they were interested witnesses and in absence of any independent corroboration of the facts when there is no eye-witnesses of occurrence, no implicit reliance can be made merely on the evidence of interested witnesses; that there is conflict in between ocular testimony and medical evidence; that there are material contradictions in between statement of SIP Agha Muhammad Hashim, who was author of the FIR, eye-witnesses and mashir, which make the case of prosecution highly doubtful and it is settled law that if any single doubt arises then benefit of such doubt must be extended in favour of the accused and prayed for acquittal of the appellants/accused. As regard the confessional statement of the appellant, learned counsel for the appellant submits that since such confessional statement was retracted, therefore, under the law, it cannot be relied upon while recording conviction.
7. Conversely, the learned APG while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on recorded, which needs no interference.
She further submits that the FIR was lodged promptly; that the evidence of the I.O./SIP Dhani Bux and the eye-witnesses is in consistence with each other and also corroborated by the Medical Evidence so also by strong circumstantial evidence in shape of recovery of crime weapons on the pointation of the appellant; that the discrepancies pointed out by the learned counsel for the appellant are of minor nature which can be overlooked and are not at all fatal to the prosecution case; that the prosecution evidence is convincing, cogent and reliable. Lastly, she prayed that the appeal may be dismissed and the conviction and sentenced awarded to the appellant be maintained.
8. We have considered the arguments advanced before us and perused the record.
9. Perusal of record shows that complainant Muhammad Yaseen could not be examined before the trial Court for the reason that at the initial stage of the trial he had expired; however, the FIR has been produced and exhibited through its author SIP Agha Muhammad Hashim (P.W No.5), who while deposing before the trial Court has fully corroborated the prosecution version.
10. As is evident from the facts narrated in the FIR, the incident was unwitnessed because the offence was committed inside the house of appellant, as is clear in the sketch of vardat produced by P.W.6/Tapedar Aijaz Hussain in his evidence at Ex:12/A, even otherwise defence has not disputed the place of vardat which is common house of complainant and appellant. The prosecution has therefore, relied upon circumstantial evidence viz. last seen of the deceased in the house with present appellant, the recovery of crime weapons on the pointation of appellant, extra judicial confession made by the appellant before his father (complainant Muhammad Yaseen) and P.Ws Muhammad Yousuf and Abdul Hameed and judicial confession of the appellant recorded before the Judicial Magistrate.
11. SIP Agha Muhammad Hashim, the author of the FIR, while recording his evidence before the trial Court has fully reiterated the contents of the FIR As per FIR Asif son of complainant had left house at 5.00 a.m. for Ali Hassan Shadi Hall where he was working as labour and his three daughters went for school and he himself leaving present appellant in the house with deceased, went to Dargha Nanga Shah. These contents of HR clearly indicate that before her murder the deceased was left in the company of accused in their house. At about 10.00 a.m. complainant was informed about the murder of deceased by present accused. As per FIR nothing was missing from the house except the deceased lying dead, which shows that the object of the culprit was only to commit the murder of deceased and nothing else. The reason/ motive of committing murder of deceased has been disclosed by appellant himself in his confessional statement that his mother used to insist him to do work. The FIR was lodged by complainant Muhammad Yaseen, who is not other person but real father of the appellant. The defence could not convert the above contention except that author of FIR was simply suggested to have not read over contents of FIR to complainant which he denied. No enmity or interest to falsely depose in the case has been alleged against author of FIR (SIP Agha Muhammad Hashim), as such his evidence cannot be discarded from consideration, therefore, following the principle that if a deceased was lastly seen alone in the company of the accused shortly before the time she was presumed to have killed at the place of occurrence, reasonable inference can be drawn that appellant is responsible for the death of deceased, reliance is placed on 2001 SCMR 1914..
12. As observed above, after perusing the evidence as well as other material available on record, we have come to the conclusion that the prosecution has fully proved its case against the appellant beyond any shadow of doubt for the reasons that this unfortunate incident took place on 07.02.2008, whereas the FIR was lodged on the same date without any delay by complainant Muhammad Yaseen, who is the husband of deceased namely Mst. Shahida and real father of the appellant against unknown persons. It appears from the evidence of P.W Muhammad Yousuf, available at Ex. 07 of the R&P and so also case papers that his uncle Muhammad Yaseen informed him that he had come to know that appellant has committed murder of deceased. On hearing this, P.W. Muhammad Yousuf along with his cousin Abdul Hameed and brother of the accused/appellant inquired from the appellant about the incident in presence of the complainant, whereupon the appellant had admitted his guilt before them and said that his mother/deceased was always insisting him for doing work on which, he was annoyed and committed her murder by causing churri and hatchet blows to her. Thereafter, complainant Muhammad Yaseen went and brought the police, who arrested the appellant on 11.02.2008 in presence of mashirs Muhammad Sharif and Ghulam Nabi and on the pointation of the appellant bloodstained churri and hatchet were also recovered by the police. The statement/evidence of P.W. Muhammad Yousuf finds support from the vidence of P.W Abdul Hameed (Ex.08). These two prosecution witnesses, namely, Muhammad Yousif and Abdul Hameed, are real of the appellant,who in their evidence before the trial Court have deposed that appellant cousins admitted before them and the complainant to have committed the murder of his mother deceased Mst. Shahida. I.O. SIP Dhani Bux Shar has supported this piece of evidence by saying that complainant in his further statement had stated before him that appellant had admitted his guilt before him. So far the veracity of evidence of these two witnesses Muhammad Yousif and Abdul Hameed is concerned, same is without any defect and doubt, being real cousins, having no enmity with appellant, cannot be believed to have deposed falsely against the appellant. Both these witnesses are related inter se and their evidence in the circumstances cannot be disbelieved unless bias, enmity etc is alleged and proved against them. There is no suggestion to that effect to these two witnesses. The evidence furnished by these witnesses appears to be trustworthy, independent and un-interested, therefore , extra judicial confession so made by the appellant before these two witnesses can be used against him in view of the principle laid down by Honourable Apex Court in case of Bahadur Khan v . The State (PLD 1995 SC 336 ).
13. As observed above, the appellant was arrested on 11.02.2008 and bloodstained churri and hatchet were also recovered on his pointation. It also appears from the record that immediately after his arrest, the appellant was produced before the Judicial Magistrate (Zahid Hussain Shah) on 12.02.2008, where his confessional statement under section 164, Cr.P.C. was recorded. In the said confessional statement, the appellant has clearly admitted that he has committed the murder of mother .There is nothing on record that such confessional statement of the appellant was- the his result of any pressure or coercion. Even otherwise, proceedings conducted by the Judicial Magistrate cannot be doubted until and unless proved contrary/ Illustration-(e) of Article 129 of Qanun-e-Shahadat 1984 speaks that the court may presume that judicial and official acts have been regularly performed. We are fully convinced that confessional statement was recorded in proper manner after observing all legal formalities by the Judicial Magistrate and mere retract from such confession is not suf ficient to discard it from consideration.
14. Not only this, but the confessional statement has further been corroborated by recovery of crime weapon i.e. churri and hatchet on the pointation of the appellant. P.W/Mashir Muhammad Sharif, who had attested all proceedings of the investigation including recovery of churri and hatchet, used in the commission of crime, on the pointation of appellant from his house, has fully supported the prosecution case. There is also chemical expert report which is in positive. SIP Dhani Bux Shar I.O. of the case has also supported the arrest, recovery of crime weapons and producing the appellant for recording his judicial confession before the Magistrate immediately after his arrest. Both these witnesses viz mashir Muhammad Sharif and I.O. of the case are independent persons, no enmity or bias is alleged against them, as such their evidence is reliable, trustworthy and inspiring confidence..
15. The medical evidence furnished deceased to have been caused with sharp cutting weapons as is confessed by the appellant and thus medical evidence is consistent to judicial confession as made by the appellant. As discussed above, the confessional statement in the case having been recorded without wastage of time and after observing all legal formalities, appears as voluntarily, truthful and confidence inspiring, which requires no further corroboration as is held in case reported as 2010 SCMR 457.
16. As against the evidence, as discussed above, nothing has been shown by the learned counsel for the appellant to make the same as doubtful. However, in his statement recorded under section 342, Cr.P.C. appellant pleaded that his cousins committed murder of his mother and due to dispute over matrimonial affairs they have falsely involved him in this case. As stated above, no any suggestion to this effect was made to PWs Abdul Hameed and Muhammad Yousuf while recording their evidence. Further, the appellant has not brought on record any sort of evidence to support his contention with regard to his false implication in the commission of the offence due to enmity, as such, the plea taken by the appellant was without force.
17. Now coming to the question of sentence of the appellant, it has been observed by us that the appellant has brutally murdered his real mother, who was also an aged lady only on a petty issue and tried to give it the act of his cousins. No reason or mitigating circumstances 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. through medical officer has also supported the injuries on the person of the appeal filed by him (Cr. Jail Appeal No.D-99 of 2012) is hereby dismissed.
18. Resultantly , death sentence awarded to the appellant is confirmed and death reference i.e. Confirmation Case No.D-06 of 2012 is answered in the af firmative.