' JUSTICE ABDUL HAMEED DOGAR (MEMBER).---This Criminal Shariat Appeal, by leave of the Court, is directed against the judgment dated 13-5-1998 passed by the learned Federal Shariat Court, in Criminal Appeal No,61 (Q) and Criminal Murder Reference No,2(Q) of 1997 whereby the appeal filed by the appellant was dismissed whereas the murder reference against him, was answered in affirmative.
2. Leave to appeal was granted by this Court on 1-1-2001 to consider the evidentiary value of the confession of the appellant, which was recorded after more than fifteen days and that too after Court hours. Leave was also granted to reappraise the other evidence on record to find out as to whether the same could safely form the basis of conviction. It was directed that the date of arrest of the appellant be ascertained from record and if it was not available in the judicial record, then the same may be ascertained from the police file or from the concerned Police Investigating Agency.
3. In consequence whereof, the Deputy Registrar (Judicial) on behalf of Registrar of Federal Shariat Court intimated the date of arrest of the appellant as 1-1-1996.
4. In nutshell the prosecution version of the occurrence is that on 9-12-1995 at 1-30 p.m., deceased Eid Muhammad son of complainant Haji Abdul Sattar an employee of T&T Department had gone for official duty on his official Motorcycle No,KZ-773 but did not return, therefore, he lodged complaint about his missing with the police and started his search of his own. It was on 12-12-1995, the dead body of Eid Muhammad was recovered from a mountain known as Koh-e-Amach. Asper complaint, the complainant suspected appellant Khuda Bukhsh and his co-accused Nisar Ahmed about the murder of his son and robbery of the motorcycle. While disclosing the reasons of suspicion, he stated that the deceased had been usually seen alongwith appellant and his co- accused Nisar Ahmad on motorcycle.
5. Police arrested the appellant and his co-accused Nisar Ahmad. On 15-5-1998 both were sent up to facts trial under section 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 (hereinafter called as the Ordinance) before the Sessions Judge, KalatDivision at Mastung.
6. The prosecution in order to establish its case examined 13 witnesses in all.
7. On 12-12-1995, Dr. Abdullah (P.W.10) examined the dead body of the deceased at the place of occurrence and found three bullet injuries on his person.
8. Appellant Khuda. Bukhsh in his statement recorded under section 342, Cr.P.C. Denied the case of the prosecution and claimed innocence.
9. On conclusion of trial, the appellant was found guilty of the murder and was convicted and sentenced under section 302, P.P.C. To death whereas his co-accused Nisar Ahmad was acquitted from the charges. Murder Reference was also forwarded for confirmation or otherwise of the sentence of death to the Federal Shariat Court.
10. We have heard Malik Jehanzeb Tammon, learned Advocate Supreme Court for the appellant, Mr. Muhammad Ibrahim Satti, learned Advocate Supreme Court for the complainant and Raja Abdul Ghafoor, learned Advocate Supreme Court for the State and have gone through the record and proceedings of the case in minute particulars.
11. Learned counsel for the appellant mainly contended that there is no ocular account of the incident but the entire case hinges upon the evidence of last seen furnished by P.W.2 Haji Badal Khan, P.W.3 Muhabbat Khan and P.W.4 Ghulam Sarwar. He seriously attacked upon this piece of evidence as according to him, it is not worthy of credence and has not come from any independent source. Their evidence cannot be relied upon mainly for the reason that they are not cited as witnesses in the F.I.R. The confessional statement of the appellant is also not worth- consideration as it was recorded after 15 days of his arrest and that too by an unauthorized Officer after the close of the Court hours. The same being retracted requires ample corroboration from other pieces of evidence. According to him even recoveries were also wrongly ' relied upon as incriminating piece of evidence against the appellant. Neither the dead body was recovered at the pointation of the appellant nor Kalashinkov or motorcycle was recovered from his possession. Simply number plate of the motorcycle said to have been recovered at his pointation would not in any case connect him with the offence.
12. On the other side, learned counsel for the complainant vehemently controverted the above contentions of the appellant's counsel and argued that the prosecution has fully established its case by producing strong circumstantial evidence in the shape of last seen evidence, recovery of incriminating articles from the appellant and confessional statement of the appellant. According to him, the delay in recording the confessional statement of the appellant would not be fatal to the case of prosecution as the appellant at his own accord and voluntarily confessed the guilt and narrated the entire episode without any coercion or duress. In support of his contentions, he placed reliance upon the cases of this Court reported as Syed SharifuddinPirzada v. Sohbat Khan and 3 others PLD 1972 SC 363; Ch. Muhammad Yaqoob and others v. The State 1992 SCM R 1983 and AbdusSamadv. The State PLD 1964 SC 167.
13. Raja Abdul Ghafoor, learned Advocate Supreme Court on behalf of the State supported the impugned judgment and adopted the arguments advanced by the learned counsel for the complainant.
14. The factum of unnatural death of the deceased is not disputed which stands confirmed by the evidence of Medical Officer, Dr. Abdullah who opined that the cause of death of deceased was the result of fire-arm injuries. Admittedly there is no ocular account of the incident and the case of the prosecution entirely depends upon the circumstantial evidence. The requirement of proof in such cases is that every link has to be proved by good and convincing evidence. In that context, the role of the prosecution agency collecting evidence against the accused is very important and it is to be seen that the same is above board and free from any doubt and suspicion. The motive also plays an important role in a case depended entirely on circumstantial evidence. Above all, it is to be established on record that every piece of circumstantial evidence fits in with another piece of such evidence in the chain and corroborates each other.
15. For better appreciation, we deny it proper to examine the intrinsic value of the pieces of circumstantial evidence viz, last seen evidence, recovery of incriminating articles, confessional statement and pointation of the place of incident and recovery of motorcycle of the deceased. On last seen evidence the trial Court as well as the Federal Shariat Court found the evidence furnished by P.W.2 Haji Badal Khan, P.W.3 Muhabbat Khan and P.W.4 GhulamSarwar as inspiring-confidence, fully corroborated by medical evidence, recoveries and confessional statement of the appellant.
For safe administration of justice, it is essential to have a deposed glance over the statements of these witnesses. P.W.2 Haji Badal Khan and P.W.3 Muhabbat Khan have categorically at trial that on the day of incident, they saw the deceased in the company of appellant KhudaBukhsh. As regards P.W. GhulamSarwar, he stated that on 9-12-1995 at Mughrib time, he saw appellant filling petrol in the motorcycle of the deceased at the shop of one Abdul Khaliq. Thus we do not find any exception /illegality in the conclusion drawn by the two Courts below on the last seen evidence furnished by these witnesses and believed the same to be true. Similarly, more significant and incriminating piece of evidence collected against the appellant was the pointation of the place where deceased Eid Muhammad was done to death by him and also the recovery of number plate of the motorcycle thrown by him after the commission of offence. The above mentioned places being in exclusive knowledge, of the appellant thus, it was found sufficient circumstantial evidence to connect him with the commission of the offence. This Court in the case of AbdusSamad (supra) had dealt with this aspect of the matter and relied upon the last seen evidence as well as the evidence of recovery place. The factum of murder of deceased by the fire-arm is corroborated by medical evidence, according to which, the deceased had sustained three bullet injuries. Further corroboration lends support from the confessional statement of the appellant wherein he, while narrating the entire episode admitted his guilt and confessed that the deceased was done to death for the purpose of robbery of his motorcycle. The recovery of said motorcycle from his possession further corroborates the above piece of evidence. The contention that the confessional statement of the appellant should be rejected outrightly as it was recorded belatedly and after Court-hours, is rejected mainly on the ground that the appellant during the entire trial did not claim that the same was extracted under duress or was tutored as given under influence or was not voluntarily made. In the similar circumstances, this Court in the case of Muhammad Yaqoob (supra) had accepted the confessional statement as true even if it was recorded after 15 days of the incident though there has been some lapses on the administrative side of the Magistrate while recording confession. As regards delay in recording the confessional statement, Investigating Officer, namely, Muhammad Ilyas and the Magistrate had furnished the explanation whereof which remained unchallenged though sufficiently cross-examined by the defence.
16. For what has been discussed above, we are of the considered opinion that the prosecution has successfully established its case against the appellant beyond any shadow of reasonable doubt.
While maintaining the conviction and sentence recorded by the Courts below, we dismiss the appeal of the appellant.