THE HIGH COURT OF SINDH
AT KARACHI
Special Criminal Anti-Terrorism Appeal No.05 of 2012
Special Criminal Anti-Terrorism Appeal No.07 of 2012
Confirmation Case No.01 of 2012
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Ghulam
Qadir Leghari
J U D G M E N T
Appellants: Rashid
Aslam son of Muhammad Aslam Arain through Mr. Abdul Qadir Halepota, advocate
(in Special Cr. ATA No.05/2012)
Arshad
Nabi son of Altaf Nabi Dar through Mr. Muhammad Ashraf Kazi, advocate (in Spl.
Cr. ATA No.07/2012)
Respondent: The State through Mr. Abrar
Ali Khichi, A.P.G.
Complainant: Abdul
Sattar son of Nawab Khan, through M/s.
Muhammad Ilyas Khan and Jamil Ahmed Rajper, Advocates
Dates of hearings: 05.05.2016, 06.05.2016, 11.05.2016
Date of Announcement: 25.05.2016
Naimatullah Phulpoto,
J.--- Appellants Rashid Aslam and Arshad
Nabi were tried by Mr. Ghulam Mustafa A. Memon, Judge, Anti-Terrorism Court, Hyderabad
and Mirpurkhas Divisions at Hyderabad for offences under sections 365-A, 302,
34, PPC read with section 6/7 of the Anti-Terrorism Act, 1997, who found both appellants
guilty. Vide judgment dated 06.02.2012, appellants were convicted under
Sections 302(a), 365-A, 34, PPC read with section 7(a) and (e) of the
Anti-Terrorism Act, 1997 and sentenced to death on both counts. Both accused
were directed to pay fine of Rs.10,00,000/- (Rupees Ten Lac) each, to be paid
to the legal heirs of deceased Abdul Sami as required under section 544-A,
Cr.PC. In case of default in payment of fine, accused were ordered to suffer 5
years’ R.I. Moveable and immovable properties of both accused were confiscated
to the Government. Trial Court made reference for confirmation of death
sentence.
2. Brief facts of the prosecution case,
which have occasioned this appeal, are that complainant owns cotton factory at
Mirpurkhas. He had a son, namely, Abdul Sami, aged about 16/17 years, who was
studying in First year in ZABST College, Mirpurkhas. Complainant left home on
05.12.2006 at 09:00 a.m. and went to his factory, while leaving behind his son Abdul
Sami and other family members. Complainant returned home at 2200 hours, at that
time his son Abdul Sami was not present. Complainant inquired from the family
members about his son Abdul Sami and he was informed that Abdul Sami had left
home at 04:45 p.m. and did not return back. Thereafter, complainant made call
to his son on Cell No.0333-2986239 but it was switched off. Complainant
telephoned his relatives and inquired about Abdul Sami but without any clue. On
06.12.2006 at morning, complainant narrated the fact of missing of his son to his
elder brother Nadeem and cousin Abdul Hakeem. Search of Abdul Sami was made at
different places but without any result. It is alleged that complainant was
present at his cotton factory on 06.12.2006 at 1530 hours, he received a call
on his PTCL No.874944 from an unknown caller. Complainant was informed by said
caller that his son Abdul Sami was with them and complainant was required to
make arrangement of ransom. Complainant went to the police station and lodged
FIR against unknown persons. FIR was recorded by ASI Roshan Ali vide Crime
No.230/2006 at police station Town Mirpurkhas under section 365-A, PPC. Inspector Muhammad Arif Bhatti, initiated
investigation of this case. He recorded 161, Cr.PC statements of PWs Abdul
Hakeem and Nadeem on 10.12.2006. He arrested accused Arshad Nabi and Imran from
bus terminal Mirpurkhas on 12.12.2006. IO recovered one mobile phone with SIM
of UFone from accused Arshad Nabi in presence of mashirs Abdul Rehman and
Imtiaz and prepared such mashirnama. SIM No.03333285609 was recovered from
accused Arshad Nabi. On 12.12.2006 IO had also arrested accused Rashid Aslam
from Station Chowk Mirpurkhas in presence of the same mashirs and recovered
mobile phone and SIM No.0304-2266955. Both accused were interrogated. On
14.12.2006 investigation officer along with his police staff and private
persons, namely, Abdul Rehman and Imtiaz went to P.S. Darakhshan, Karachi along
with both accused. SIP Munir Chandio of P.S. Darakhshan accompanied with them
to the place where dead body of deceased Abdul Sami was thrown by accused. It
was Khayaban-e-Iqbal, DHA Phase-VIII, Karachi and place was pointed out by both
accused, separately. Such mashirnama was prepared in presence of the mashirs.
SIP Munir Ahmed of P.S. Darakhshan showed photographs of dead body to the
police party and private mashirs PW Abdul Rehman, uncle of deceased Abdul Sami
identified the photographs and clothes of his nephew Abdul Sami. Investigation
officer submitted an application before the learned Sessions Judge, Karachi
South for exhumation of the dead body. Application was allowed. Medical board
was constituted and concerned Magistrate was deputed. IO took team of doctors
and Magistrate Mr. Khushi Muhammad
to the Edhi graveyard. Dead body was exhumed and medically examined by the
doctors. During investigation, both accused pointed out the house in which
deceased Abdul Sami was confined by them for ransom. Under the bed sheet,
identity card of deceased Abdul Sami of ZABST College was also recovered. IO
secured the same and prepared such mashirnama in presence of mashirs Imtiaz and
Abdul Rehman. IO secured Rent-A-Car bearing No.ALW-138, used by the accused in
the commission of offence. During investigation, accused had shown the place
where they had thrown mobile phone, keys and purse of deceased Abdul Sami, such
mashirnama was prepared. Investigation Officer recorded 161, Cr.PC statements
of PWs Saad Hashmi, Moazam Iqbal, Muhammad Aqeel, Muhammad Azeem and Abdul Aziz
on 21.12.2006. On 23.12.2006 IO produced witnesses before Judicial Magistrate,
Mirpurkhas for identification parade of the accused through these witnesses.
Magistrate conducted identification parade of accused Arshad Nabi and Rashid
Aslam and they were identified by the PWs, namely, Muhammad Aqeel, Abdul Aziz,
Muhammad Azeem and Muhammad Qasim. Imran was let off by investigation officer
on 18.12.2006. IO sent blood samples of deceased and his parents for DNA
report. IO collected call data record. On the conclusion of investigation,
challan was submitted by the IO against accused Arshad Nabi and Rashid Aslam under
Sections 302, 365-A, 34, PPC read with section 6(2)(A) and 7 of the
Anti-Terrorism Act, 1997.
3. Charge was framed against accused Arshad
Nabi and Rashid Aslam on 16.01.2007 at Ex-4. Mr. Akhlaq Hussain Larik, Judge,
Anti-Terrorism Court, found charge defective. On the application of S.P.P., Amended
charge was framed against both accused at Ex-13. Accused pleaded not guilty and
claimed to be tried.
4. At the trial prosecution examined Abdul
Sattar (PW-1), Muhammad Azeem (PW-2), Muhammad Aqeel (PW-3), Muhammad Qasim (PW-4),
Saad Hashmi (PW-5), Moizam Iqbal (PW-6), Abdul Aziz (PW-7), Muneer Ahmed (PW-8),
Tahir Aziz (PW-9), Dr. Qarar Ahmed (PW-10), Muhammad Asif (PW-11), Abdul Rehman
(PW-12), Capt. Dr. Farhat Hussain Mirza (PW-13), Roshan Ali (PW-14), Muhammad
Asghar (PW-15), Dr. Syed Farhat Hussain (PW-16), Kamran Zafar (PW-17), Wiqar
Hussain (PW-18), Zeeshan Hyder (PW-19), Mr. Nadeem Badar (PW-20), Mr. Muhammad
Aslam (PW-21), Muhammad Tariq Khan (PW-22), Tharo Khan (PW-23), Muhammad Arif
Bhatti (PW-24). Thereafter, prosecution side was closed at Ex-53.
5. Statements of accused Arshad Nabi and
Rashid Aslam were recorded under sections 342, Cr.PC at Ex-55 and 56. Both
accused denied the prosecution allegation. Accused Arshad Nabi stated that he
was picked up by DSP on 19.12.2006 from Naval PHQ, Karachi. He denied the
pointation of place where dead body of Abdul Sami was thrown. He has stated
that he had never led the police to any showroom of rant-a-car. Accused Arshad
Nabi in reply to question No.17 has answered that he was shown to the witnesses
before identification parade and his photographs were also printed in the
newspapers. He has also denied his confessional statement before the
Magistrate. In a question why the PWs have deposed against him, he replied that
he is the victim of personal grudge of DSP Qamar Ahmed, who had poisoned the
complainant against him. Accused Arshad Nabi did not examine himself on oath in
disproof of prosecution allegations, however, he has examined witnesses in his
defence. He pleaded his innocence and produced written statement at Ex-55/A.
6. Accused Rashid Aslam has also denied the
prosecution allegations and claimed false implication in this case and stated
that in fact he was arrested from his house, situated in Gulshan-e-Hadeed on
11.12.2006 by ASI Naeem Ashraf of Mirpurkhas. He has also denied that he led
the police party to the showroom of rent-a-car. He has also replied to question
No.17 that witnesses had seen him before identification parade and his
photographs were printed in the newspapers. In reply to question No.19, he
replied that he was not produced before Magistrate at Digri for recording confessional
statement but his signatures were obtained by the police on blank papers. He
has also claimed personal grudge with DSP Qamar Ahmad and raised plea that said
DSP had poisoned the complainant against him. Accused Rashid Aslam declined to
give statement on oath in disproof of prosecution allegations. He has examined
in defence DWs ASI Naeem Ashraf, Nayar Alam and Ahsan Ahmed Channa. In a
question, what else has to say? He has adopted the written statement filed by co-accused
Arshad Nabi.
7. Learned Judge, Anti-Terrorism Court,
Mirpurkhas, after hearing the learned counsel for the parties and assessment of
evidence, convicted and sentenced both appellants Arshad Nabi and Rashid Aslam
to death as stated above.
8. We have carefully heard Mr. Abdul Qadir
Halepota, learned advocate for appellant Rashid Aslam, Mr. Muhammad Ashraf
Qazi, learned counsel for appellant Arshad Nabi and Mr. Abrar Ali Khichi, learned
Assistant Prosecutor General Sindh, assisted by Mr. Muhammad Ilyas Khan and
Jameel Ahmed Rajper, learned counsel for the complainant and perused the
evidence minutely.
9. Mr. A. Q. Halepota, learned counsel for
appellant Rashid Aslam has raised the following contentions:
(i) That
conviction and sentence under section 302(a), PPC is bad in law as prosecution
witnesses were not subjected to Tazkiat-ul-Shuhood test before recording the
evidence.
(ii) That no sentence of fine can be imposed upon accused in case of
their conviction under section 302 PPC.
(iii) That the dead body of Abdul Sami deceased had been completely
de-composed and there was no material before the Trial Court to hold that the
dead body recovered from the Defence area was that of Abdul Sami, deceased.
(iv) F.I.R. is delayed by at least two days. The explanation
furnished was not plausible.
(v) That statements of PWs under section 161, Cr.PC were recorded
with inordinate delay, without plausible explanation.
(vi) That no separate identification parade of each accused through
witnesses was held and joint identification parade of both accused was not the requirement
of the law.
(vii) That memo of arrest of accused Rashid Aslam was false and
fabricated
viii) That place of recoveries of dead body was on joint pointation of
accused, where dead body was allegedly thrown by accused. Such piece of
evidence cannot be termed as discovery as a consequence of information given by
accused.
ix) That it is the case of joint pointation of House No. 57/2,
Phase-IV, Khayaban-e-Karachi, where deceased was confined for ransom.
x) That recovery of the identity card from house No.57/2, Phase-IV,
Khayaban-e-Karachi, on the pointation of accused was inadmissible in evidence.
xi) That it was the case of joint pointation of the place near sea,
where key of car and purse of deceased Sami were thrown by the accused.
xii) (a) That confessions of
accused Rashid Aslam and Arshad Nabi were involuntarily.
(b) That Magistrate
did not inform the accused that in case they refused to make confession, they would
not be sent back to the same police.
(c) That judicial
confession of accused is inconsistent with prosecution case.
xiii) That mashir of all the mashirnamas, except two, is real brother
of complainant, namely, Abdul Rehman, co-mashir was Imtiaz Panhwar, who was an
independent person but he was not examined by the prosecution at trial.
xiv) That one tainted piece of evidence could not corroborate another
piece of tainted evidence.
xv) That from Mobile No.0333-2986239 call was made to the mobile of
deceased Abdul Sami No.0333-3286609 on 06.12.2006 at 1059 p.m. from Mirpurkhas.
Mr. Halepota
argued that a single circumstance creating reasonable doubt makes accused entitled
to its benefit not as a matter of grace but as a matter of right. Lastly, he argued
that from the prosecution evidence, ingredients of Sections 365-A, PPC are also
not satisfied. In support of his submissions he relied upon the following
cases:
10. Mr. M.A. Kazi,
learned advocate for accused Arshad Nabi, adopted the arguments of Mr. A.Q.
Halepota, counsel for appellant Rashid Aslam. He further added that appellant
was arrested from Naval PHQ Karachi. Mr. Kazi emphasis that mashir Abdul Rehman
had identified the dead body on the basis of clothes of the deceased and
bandage on his leg but no bandage or injury was found in the postmortem examination
report. Mr. Kazi, argued that
prosecution case is highly doubtful. In support the contentions, he has relied
upon the following cases:
1.
Muhammad Pervez & Others vs. The State and others (2007 SCMR 670)
2.
Naqibullah and another vs. The State (PLD 1978 SC 21)
3.
Siddiqullah versus The State and another (PLD 2009 Peshawar 1)
4.
Muhammad Sadiq & another Vs. The State (PLD 1960 SC [Pak] 223)
5. Amir Ali versus The
State (PLD 1960 [W.P] Karachi 753)
11. Learned A.P.G., assisted by M/s. Muhammad
Ilyas Khan and Jamil Ahmed Rajper, learned counsel for the complainant, made
following submissions:
(i)
That deceased was lastly seen alive in the car of the
accused by PWs Muhammad Aqeel, Abdul Aziz and Muhammad Azeem. Inference can
reasonably be drawn that accused are responsible for the death of the deceased.
(ii)
The accused were arrested on 12.12.2006 from
Mirpurkhas and led the police party to Karachi and separately pointed out
place, where dead body was thrown in defence area and pointed out the house where
the deceased was confined for ransom and identity card of deceased was recovered
underneath the bed where Abdul Sami was murdered by way of strangulation. It is
submitted that such recovery was based on the information furnished by both the
accused to the IO.
(iii)
That discovery was based on the information furnished
by both the accused to the IO, prior to
said information place of throwing the dead body and place where deceased was
murdered and his school card were recovered, were not known to anyone. It is
argued that same can be used against accused under Article 40 of
Qanun-e-Shahadat Order, 1984.
(iv)
That deceased was identified by his uncle PW Abdul
Rehman on the basis of his clothes and photographs.
(v)
That chain of circumstances
from the stage of last seen evidence till the death of victim have been established
by conclusive evidence.
(vi)
That confession of
accused was recorded after 14 days of their arrest would not be indicative of
any doubt regarding their voluntariness.
(vii)
That call data has been produced in the evidence which
proved that both the accused contacted complainant/father of deceased for
ransom.
(viii)
Both the accused were identified by PWs in the
identification parade held before the Civil Judge & Judicial Magistrate
Mirpurkhas on 23.12.2006.
(ix)
That both the accused made confession before Civil
Judge & Judicial Magistrate Digri on 24.12.2006 and it was voluntary.
(x)
That investigation officer had sent blood samples
taken from the dead body and of parents of deceased. DNA report was positive.
(xi)
That medical evidence reflected that deceased died
unnatural death by asphyxia.
(xii)
That prosecution has succeeded to prove the motive
against the accused of kidnapping the deceased for ransom.
(xiii)
Regarding defence plea it is argued that it has not
been substantiated by cogent evidence.
(xiv) That PWs had no motive
to falsely implicate the accused in this heinous offence.
(xv)
Lastly, it is argued that though this is the case of
circumstantial evidence, yet chain has not been broken. Each and every
circumstance connects with each other and leads to the guilt of the accused.
In
support their contentions, reliance is placed upon the following cases:
1. Saeed Ahmed Vs. The
State (2015 SCMR 710)
2. Sh. Muhammad Amjad vs.
The State (PLD 2003 SC 704)
3. Ch. Muhammad Yaqoob and
others vs. The State and others (1992 SCMR 1983)
4. Muhammad Ishaq Vs. The
State (2009 SCMR 135)
5. Talib Hussain versus
the State (1995 SCMR 1538)
6. Hamid Mehmood and
another Vs. The State (2013 SCMR 1314)
7. Ghazanfar Ali Vs. The
State (2012 SCMR 215)
8. Nasrullah Khan and 2
others vs. The State (2010 SCMR 881)
9. Ghulam Hussain Soomro
Vs. The State (PLD 2007 SC 71)
10. Noor Muhammad Vs. The
State (1999 SCMR 2722)
11. Ghulam Nabi versus The
State (2007 SCMR 808)
12. Manjeet Singh versus
The State (PLD 2006 Supreme Court 30)
13. Maj. (Retd.) Tariq
Mehmood and others vs. The State (2002 SCMR 1493)
14. Nazir Shehzad and
another versus The State (2009 SCMR 1440)
15. Dr. Javaid Akhtar
versus The State (PLD 2007 Supreme Court 249)
16. Khan Muhammad and
others vs. The State (2011 SCMR 705)
17. Javed Iqbal and another
versus The State (2012 SCMR 140)
12. After hearing the learned counsel for the
parties, we have carefully perused the entire evidence.
13. Complainant Abdul Sattar deposed that on 05.12.2006, his son Abdul Sami disappeared from street in
front of his house situated at Mirpurkhas. Complainant Abdul Sattar received a
call in his factory from unknown caller on 06.12.2006. He was informed that
Abdul Sami was with them and ransom was demanded from him. He was threatened
not to inform anybody about kidnapping of his son. Complainant waited for
another call of the culprits. On 09.12.2006 complainant lodged F.I.R. of the
incident at PS Town Mirpurkhas against unknown persons. On 10.12.2006, while hearing
the news of disappearance of Abdul Sami, his class fellows came at his residence
and informed the family members that Abdul Sami was talking with one Arshad on
his mobile. Complainant was advised by family members to collect some
information from those class fellows regarding Arshad. Complainant contacted
Arshad through PW-11 Tariq. Tariq was class fellow of Arshad and he arranged
meeting of complainant with father of Arshad. Thereafter, according to
prosecution case, Arshad also met with complainant and disclosed that Imran and
Rashid Arain made programme were scheduled to go to Mirpurkhas. Thereafter,
Abdul Sattar contacted Imran. He denied about such programme. Complainant
suspected the correctness of story narrated to him by accused Arshad and he
came from Karachi to Mirpurkhas and informed the police about meeting with Arshad
and Imran at Karachi and their evasive replies. P.W-2 Muhammad Azeem was
residing in the same Mohalla where complainant resides. He informed complainant
that on 05.12.2006 at about 05:00 or 5:15 pm he came out of his house and was
going to Doctor, when he came in the street in front of the house of
complainant he saw Abdul Sami talking with two boys at footpath of the house.
Light golden color Alto car was also parked in the street. P.W-3 Muhammad Aqeel
stated that complainant is related to him. On 05.12.2006, PW Muhammad Aqeel
went to purchase a car and when he was returing from Tando Allahyar to
Mirpurkhas. At 5:30 pm when he reached near Ratanabad, where he stopped car as
traffic was jam. He saw a car there, wherein Abdul Sami was sitting in the car
on front seat, one person was driving car and another was sitting non rear
seat. He identified both accused in identification parade as well as before
trial Court. He clearly stated that accused Arshad was driving car and accused
Rashid Aslam was sitting on a rear seat. PW-7 Abdul Aziz was resident of same
Mohallah where complainant resides. He has stated that on 05.12.2006 at 5:00 pm
or 5:15 pm, he left home for recovery and saw two boys along with Abdul Sami
sitting in one Suzuki light golden color car in front of house of complainant
Abdul Sattar. Abdul Sami sat on front seat of the car, one person was driving
car and another person sat at the rear seat of the car. He identified both
accused in identification parade and before trial Court. P.W-4 Muhammad Qasim
had a Rent a Car business at Karachi. He deposed that on 04.12.2006 accused
Arshad Nabi and Rashid came to his showroom and hired his car No. ALW-138. He
obtained copy of CNIC of Arshad Nabi and he produced the same in evidence. He
has stated that car was returned by both accused on 06.12.2006. It was damaged.
He charged extra damages of Rs.8000/- from them. He identified both accused in
Court. PW-5 Saad Hashmi student of ZABIST and class fellow of Abdul Sami
deposed that on 05.12.2006, he had heard conversation of deceased Abdul Sami with
one Arshad when he was accompanied with Abdul Sami in his car. P.W-6 Mozzam
Iqbal deposed that on 05.12.2006 he contacted Abdul Sami at about 8:00 pm from
his Cell No. 0345-3702725 on the number of Abdul Sami Cell No.
0333-2986239 and enquired from him the number of his father Abdul Sattar. P.W
Mozzam Iqbal found Abdul Sami sleepy/drowsy at that time. PW-18 Wiqar Hussain, Regional
Manager, UFone has produced call data record at Ex.44/A showing that call was
made from Cell Nos.0345-3702725
to Cell No. 0333-2986239. P.W-8 SIP Munir Ahmed of P.S Darakshan deposed that
on 11.12.2006 he was posted as Incharge Investigation Team of PS Darakshan. At
about 10:30 am he received information that dead body was lying at Street No.
27, Khayaban-e-Iqbal, Phase-VIII, Defence, Karachi. He proceeded to the pointed
place, where S.H.O. Ziaul Hassan Rizvi and ASI Kamran Zafar had already
arrived. SIP Munir took photographs of the dead body through digital camera and
produced such photographs in evidence at Ex.30-A and took dead body to the
hospital for postmortem examination and report. PW-09 SIP Tahir Aziz deposed
that on 11.12.2006 he was posted in Investigation Branch of PS Darakshan.
Investigation of F.I.R. bearing No. 547/2006 u/s 302 PPC lodged at P.S
Darakshan was entrusted to him. He visited place of incident and recorded 161
Cr.P.C statements of P.Ws ASI Kamran Zaffar, Tahir Mirza and Khalid Hussain.
PW-10 Dr. Qarar Ahmed deposed that on 15.12.2006 dead body was exhumed in
presence of Magistrate. He was member of the medical board. He opined that
death of the deceased was caused due to Asphyxia. PW-11 Muhammad Asif cousin of
the deceased stated that in his presence, PW-12 Abdul Rehman uncle of deceased
identified photographs of deceased Abdul Sami shown to him by police. P.W-12
Abdul Rehman acted as mashir of arrest and place where dead body was thrown by
accused and mashir of place which was pointed out by accused. He also acted as
mashir of a pointation of house where deceased was confined by the accused at
Karachi and mashir of recovery of the I.D card of the deceased from the house
underneath of the bed as well as mashir of identification of deceased through
photographs. PW-13 Dr. Farhat Hussain Mirza has also opined that death of
deceased was result of Asphyxia. PW-14 ASI Roshan Ali deposed that on
09.12.2006 he was posted as duty officer at PS Mirpurkhas, he lodged F.I.R. of incident
of complainant bearing Crime No. 230/2006 u/s 365 PPC against unknown accused.
PW-15 SIP Muhammad Asghar of Motorway police deposed that on 05.12.2006, he was
on patrolling duty at Superhighway near Nooriabad. At 9:05 am in between
Noriabad and Dadabhoy Cement Factory near Hescol Petrol pump, he found one car
with high speed on Superhighway coming from Karachi. Car was stopped. Licence
of driver Arshad Nabi was checked. He challaned the driver Arshad Nabi on
account of high speed and imposed fine of Rs.750/- and obtained signature of
Arshad Nabi on the challan. He produced the receipt in evidence at Ex.38-A.
PW-16 Dr. Syed Farhat Hussain had taken blood samples of Abdul Sattar and his
wife, the parents of deceased Abdul Sami for DNA in presence of Civil Judge
& Judicial Magistrate Mirpurkhas and in civil hospital Mirpurkhas. PW-17
ASI Kamran Zafar deposed that on 11.12.2006, he had received information that a
dead body was lying at Defence area and he kept such entry in the record. Such
entry was produced in evidence at Ex.43-A. PW-18
Waqar Hussain Regional Manager UFone has produced call data of Cell number of
Arshad Nabi made on the mobile of deceased and record of calls made from
Karachi to the number of complainant Abdul Sattar on his PTCL No. 874944 on
06.12.2006 so also the call of P.W-6 Mozzam Iqbal. He has deposed that on
05.12.2006 a call was made from 0333-29862398 at 1359 hours to cell
No0333-3285609. Another call was made on same number at 1711 hours. On
06.12.2006 at 1629 hours a call was made to PTCL No.0233874944. PW-19 Dr.
Zeeshan Hyder has deposed that on 11.12.2006 he was posted as M.L.O at JPMC
Karachi. On that day at about 3:00 pm ASI Kamran Zafar brought dead body of
unknown person for conducting postmortem examination and report. He had
conducted first postmortem examination. He opined that cause of death was cardio
respiratory arrest due to asphyxia. P.W-21 Mr. Muhammad Aslam Civil Judge &
Judicial Magistrate Mirpurkhas conducted identification parade of both the
accused through P.W-2 Muhammad Azeem, P.W-3 Muhammad Aqeel, P.W-7 Abdul Aziz and
Muhammad Qasim on 23.12.2006. P.Ws identified the accused before Magistrate. Before
the same Magistrate, blood samples of the parents were taken in hospital at
Mirpurkhas by the medical board for DNA test. P.W-20 Mr. Nadim Badar Civil
Judge & Judicial Magistrate Digri recorded confession of both the accused. He
has deposed that on that
on 24.12.2006 SIO Muhammad Arif Bhatti produced accused Rashid Aslam and Arshad
Nabi in Crime No.230/2006 of P.S. Mirpurkhas for recording the confession. He
separated both the accused and called accused Rashid Aslam and issued warnings.
Accused Arshad Nabi was also called and Magistrate issued him same warnings and
inquired about any inducement, threat or promise for making confession but they
denied. Magistrate provided them two hours’ time for reflection. Thereafter,
firstly called Rashid Aslam in the Court and repeated same warnings. After that
accused was giving statement voluntarily, he started recording his statement.
After recording such statement magistrate read over its contents to accused
Rashid Aslam to which he admitted the same to be true and correct and put his
signatures and thumb impression. Magistrate gave certificate that it was true
and voluntarily. Thereafter, he called accused Arshad Nabi in the Court and
repeated same warnings. After satisfaction, he recorded statement of accused
Arshad Nabi. Thereafter, accused Arshad Nabi put his signature and thumb
impression on his confession. Magistrate affixed photographs of both the
accused on their statements and stated that due to lapse of long time he could
not exactly identify accused in the Court. After
recording confession he remanded the accused to jail. P.W-22 Muhammad Tariq
Khan was friend of deceased as well as of both the accused. He had arranged
meeting of father of deceased with accused Arshad Nabi at Karachi. P.W-23 ASI
Tharo Khan had recorded 161 Cr.P.C statement of P.W-22 Tariq Khan at the
instance of SIP Khuda Bux on 26.05.2008. P.W-24 IO Muhammad Arif carried out investigation of F.I.R. No.
230/2006 registered at P.S Mipurkhas u/s 302/365 PPC. He recorded 161 Cr.P.C
statements of P.Ws. He arrested accused Arshad Nabi and Imran (later on let
off) from Bus Terminal Mirpurkhas on 12.12.2006 in presence of mashirs namely Abdul
Rehman and Imtiaz. Personal search of accused Arshad Nabi was conducted and a
mobile phone No. 0333-3285609 was recovered. On 12.12.2006 IO also arrested
accused Rashid Aslam from Station Chowk Mirpurkhas in presence of same mashirs
and his personal search was conducted and a mobile phone of Nokia along with
sim No. 0304-2266955 was recovered. On 14.12.2006, IO along with mashirs Abdul
Rehman and Imtiaz and both accused proceeded to PS Darakshan, Karachi. He made
such entry at PS Darakshan. Thereafter, SIP Munir Ahmed Chandio, Tahir Aziz
Abbasi accompanied with IO and mashirs and accused persons led them to the
place, where both accused separately pointed out place where they had thrown
dead body in the defence area. IO further stated that SIP Munir Ahmed had shown
photographs to PW Abdul Rehman who identified that same were of his nephew deceased
Abdul Sami. IO further stated that on 14.12.2006, both accused led IO and same
mashirs to the house where both accused had confined deceased for ransom. IO
has further stated that he had recovered ID Card of deceased underneath the bed
from said house and secured the same in presence of same mashirs and prepared
such mashirnama. On 14.12.2006, IO
visited Rent a Car showroom of PW Muhammad Qasim, on the pointation of both accused
in presence of masahirs. PW Muhammad Qasim produced NIC of accused Arshad and
record of car No. ALW-138 given to both accused on 04.12.2006. IO got dead body
exhumed through medical board on the orders of Court and handed over dead body
to mashir Abdul Rehman uncle of deceased Abdul Sami. IO inspected place in
front of house of complainant from where deceased was kidnapped by the accused
persons in a car. Accused Imran was released by IO on 18.12.2006 u/s 169
Cr.P.C. On 21.12.2006 IO recorded statements of P.Ws Saad Hashmi, Mozzam Iqbal,
Muhammad Aqeel, Muhammad Azeem and Abdul Aziz u/s 161 Cr.P.C. On 23.12.2006 IO
produced both accused before Civil Judge and Judicial Magistrate Mirpurkhas for
identification parade through P.Ws Muhammad Aqeel, Abdul Aziz, Muhammad Qasim
and Muhammad Azeem. IO has stated that accused prepared to make confession and
he produced both accused before Civil Judge & J.M Digri on 24.12.2006 where
confessions of both accused were recorded. Thereafter, IO has stated that accused
were remanded to judicial custody. He has produced DNA reports of deceased and
his parents. On the conclusion of the investigation, he submitted challan
before learned Judge, Anti-Terrorism Court Hyderabad and Mirpurkhas Division at
Hyderabad.
14. Accursed
Arshad Nabi has raised defence plea that his father was posted as Principal
Cadet College, Sanghar on 05.12.2006. DSP Qamar Ahmed Shaikh of Mirpurkhas had
approached his father for admission of his son, in Cadet college, as session
had already been started, admission to the son of DSP was refused, which caused
much annoyance to the DSP, hence he has involved him in this case falsely.
Accused Arshad Nabi has denied his arrest from Mirpurkhas on 12.12.2006 as alleged by prosecution but
raised defence plea that he was arrested by DSP Qamar Ahmed Shaikh from Naval
PHQ Karachi. He has raised plea that Naval officer had handed over him to I.O. Appellant
Rashid Aslam has also denied his arrest from Mirpurkhas Station on 12.12.2006
but raised defence plea that he was arrested from his House No. B-212,
Gulshan-e-Hadeed, Karachi by one ASI Naeeem Ashraf IT of Mirpurkhas and
examined DWs and both accused filed written statements in support of their
defence pleas.
15. It has been
vehemently submitted by Mr. A.Q.Halepota learned counsel for appellant Rashid
Aslam that dead body of Abdul Sami deceased had been completely de-composed and
there was no material before the Trial Court to hold that dead body recovered
from Defence area Karachi was that of Abdul Sami, deceased. Trial Court has
considered this issue with care and caution. Dr. Farhat and Dr. Qamar Ahmed had
opined that death occurred due to Asphyxia. Dead body was identified by his
uncle Abdul
Rehman (PW-12) on the basis of clothes of
the deceased and photographs, which were taken by the police when an
unidentified dead body was found by the police at Defence area, Karachi. He has
further deposed that he had identified dead body of his nephew on the basis of
bandages on his left foot. It is clarified by PW Abdul Rehman that 15 days
prior to the incident, deceased had sustained injuries on his left foot in motorcycle
accident. Accused Rashid Aslam in his confessional statement before the Civil
Judge & Judicial Magistrate Digri stated that on 06.12.2006, he along with
co-accused Arshad Nabi strangulated Abdul Sami by means of red wire in house,
situated in Khayaban-e-Iqbal, Karachi. Accused Arshad Nabi in his confessional
statement recorded before Civil Judge & Judicial Magistrate Digri on
24.12.2006 confessed that on 05.12.2006, he along with co-accused Arshad Nabi
hired rent-a-car from Karachi, went to Mirpurkhas, kidnapped Abdul Sami in the
evening from his house in the state of intoxication, brought him to Karachi in
a bungalow, situated in Defence at Karachi where his hands and feet were tied with
red colour wire and he was confined in a store of a house. Accused Rashid Aslam
took key and purse from the pocket of Abdul Sami. On 06.12.2006 accused
strangulated Abdul Sami by means of red coloured wire then dead body of Abdul
Sami was wrapped in a thick cloth and it was thrown at Khayaban-e-Iqbal, Sea
View, Karachi in an abandoned area and father of Abdul Sami was contacted on
the mobile of Abdul Sami, ransom was demanded from him. Co-accused Arshad Nabi
in his confessional statement stated the same facts as narrated by accused
Rashid Aslam. Inspite of the fact that the dead body was highly decomposed, the
identity of deceased Abdul Sami stood proved from the consistent and cogent
evidence brought on record. As such, question of any doubt in identification of
the dead body of Abdul Sami could not arise and finding of the trial Court on
this issue is affirmed.
16. Learned
counsel for the appellants have attacked the judicial confession on the ground that
accused were arrested on 10th and 12th December 2006 from
Mirpurkhas but they were produced before the Civil Judge & Judicial
Magistrate Digri on 24.12.2006 and it was Sunday. It is further contended that the
Magistrate before recording the confessions did not put material questions, and
since the accused at the earliest opportunity retracted confession, the same
needed corroboration by unimpeachable character, which was lacking in this case.
17. In the case of
Ch. MUHAMMAD YAQOOB and others versus The STATE and others (1992 S C M R 1983),
Honourable Supreme Court while considering the evidentiary value of retracted
confession observed as under:
(i) That if a statement of fact made by an accused in a confession
is of the nature that if it is assumed to be true, it would negate the offence
alleged to be confessed, it is called an exculpatory confession.
(ii) That a statement of an accused that contains self-exculpatory
matter cannot amount to a confession.
(iii) That a retracted confession is sufficient to sustain a conviction
for a capital offence, if the Court is of the view that the same is voluntary
and is true, but as a rule, of prudence, the same should not be acted upon
unless corroborated by some other reliable evidence in material particulars.
(iv) That though the confession of a co-accused cannot be made
foundation of conviction but it may be used in support of other evidence.
(v) That the confession of a co-accused is an evidence of a weak
character.
(vi) That under Islamic Jurisprudence, in order to
make a confession reliable, it should be voluntarily made and not on account of
any coercion, duress or violence.
(vii) That any delay in recording of a confession may, or may not, be
fatal as to the evidentiary value of a retracted confession as the factum that
the accused were in the police custody for 11 to 15 days, was not fatal as to
the credibility of the retracted confessions for the reason that the Court was
satisfied that the retracted confessions were not tutored and were, in fact,
made voluntarily.
(viii) That any lapse on the administrative side on the part of a
Magistrate recording a confession, may not be fatal as to the evidentiary value
of such confession provided the Court is satisfied that the lapses on his part
have not, in any way, adversely affected the voluntariness or truthfulness of
the confession.
(ix) That if an accomplice's evidence is not corroborated in material
respect, it cannot be acted upon and that the evidence of an accomplice cannot
be used to corroborate evidence of another accomplice.
18. In the case of GHULAM QADIR
and others versus The STATE (2007 SCMR 782) the confessional statement of the
appellants was recoded by the Magistrate seven days after their arrest. It was
held by Honourable Supreme Court that delay in recording judicial confession
becomes relevant to determine its voluntariness. However, delay does not render
the confession involuntarily.
19. Legal position which has emerged seems to be that in order to
judge the evidentiary value of a retracted confession, the Court is to advert
to the question, whether the same appears to have been made voluntarily,
without any inducement, duress or coercion with the object to state the truth.
If the Court is satisfied on the above aspect, the mere fact that there were
some lapses/irregularities and delay in recording of a confession, would not
warrant disregarding of a confession. Trial Court while discussing the
confession of accused in para 3 of the judgment came to the conclusion that
confession of both the accused was voluntarily and delay in recording the
confession would not be fatal to the prosecution case.
20. In the present case, recording
of confession on Sunday and delay of 14 days after arrest of accused in
recording confessions as highlighted by Mr. A.Q. Halepota in our considered
view, would not be fatal as to evidentiary value of the confessions for the
reasons that Civil Judge & Judicial Magistrate was on duty on Sunday and
from the delay in recording confessions prosecution has not derived any undue
advantage, as such, these factors in no way adversely affect the voluntariness
of confession. Record reflects that both the appellants are educated persons,
if police wanted confessions on account of any coercion, accused had full
opportunity to refuse the making of confessions before the Magistrate but it
was not done in this case. There was corroboration between confession and other
evidence. Trial Court rightly based conviction on confession and other
evidence. We are also satisfied that confessions of both accused appear to
have been made voluntarily, without any inducement or coercion. Mere fact that
there were some irregularities in recording of confession would not warrant
disregarding the same.
21. In this case, after arrest both accused had
led the police and mashirs on 14.12.2006 to the place where they had thrown the
dead body, situated at Khayaban-e-Iqbal, Phase-VIII, Karachi. Both accused had also
led police and mashirs on same date to the house, situated in Defence Karachi, where
they confined deceased Abdul Sami and had also shown store in the house where
they committed murder of Abdul Sami with wire by strangulation and college identity
card of deceased was recovered underneath the bed. Contention of learned
advocates for the appellants that it was the case of joint pointation, it
appears that place where dead body was thrown by accused was separately pointed
out by accused persons, the mere plurality of information received before discovery
shall not necessarily take any of these informations out of Article 40 of
Qanun-e-Shahadat Order, 1984. In a suitable case, it is possible to ascribe to
more than one accused, the information which leads to discovery. In the present
case, no explanation has been furnished by accused as to how they had the
knowledge of place where dead body was thrown. No explanation was furnished by
accused as to how they led police and mashirs to bungalow situated at Defence
Karachi where they had committed murder of deceased Abdul Sami by way of
strangulation. Trial Court rightly presumed that accused were the persons who
had thrown dead body at the place pointed out by them and they had committed
murder in the bungalow pointed out by them. The information furnished by the appellants to the
Investigating Officer could be used against them under Article 40 of
Qanun-e-Shahadat Order, 1984. In the case of NAZIR SHEHZAD and another
versus THE STATE (2009 SCMR 1440) Honourable Supreme Court of Pakistan has
observed as follows:-
“7. Having rejected, above noted pieces of evidence, we have considered and
scrutinized the remaining prosecution evidence, in depth. P.W.13 stated in
clear terms that, after arrest of the accused he firstly interrogated Samar Jan
and later on he interrogated Nazir Shehzad. Both the appellants, who were
separately interrogated, informed the Investigating Officer about the place
i.e. Rohi Nala in the area of Police Station Kahna, where they had thrown the
dead body. This discovery based on the information furnished by the appellants
led to the recovery of dead body from the Nullah. There is no doubt about it
that prior to information furnished by the appellants the whereabout of dead
body were not known to anyone. The information furnished by the appellants to
the Investigating Officer can be used against them under Article 40 of
Qanun-e-Shahadat Order, 1984. As in a case of circumstantial evidence where
there has been discovery as a result of confession made under Article 40 of the
Qanun-e-Shahadat order, 1984, it is expected to find the discovery of something
which can be associated with the deceased.
The mere plurality of information received before discovery shall not
necessarily take any of these informations out of the section. In a suitable
case it is possible to ascribe to more than one accused the information which
leads to the discovery, so was held in the case Naresh Chandra Das &
another v. Emperor AIR (29) 1942 Cal. 593.
It was held by this Court in the case of Sher Muhammad v. The State 1968
PCr.LJ 221 as follows:---
"In the absence of any explanation by the accused as to how he came
to have knowledge of the dead body in the disused well, it may fairly be
presumed that he was the person who had thrown the body in a dismembered state
into the well."
The medical evidence supports the prosecution case that Junaid Jabbar
was done to death and his death was not natural. The statement of the doctor
also reveals that the dead body was that of a 18 years old boy which was duly
identified by P.W.9 father of the deceased. P.W.9 himself stated that he
identified the dead body of his son after seeing the shoes, belt, and trouser
of the deceased. The statements of both these witnesses were not challenged on
this point. Hence it could not be said that the dead body was not identified.
The motive behind the occurrence is proved through overwhelming
evidence. P.W.9, P.W.10, P.W.12 and P.W.13 have stated that the deceased was
abducted for ransom. It is in evidence that complainant and his wife received
telephone calls demanding ransom. It is also in evidence that the accused
issued threats to the complainant that in case ransom was not paid his son
would be done to death. It is also in the evidence that the ransom amount was
put in envelop and delivered to Nazir Shehzad on the demand of the accused. The
ransom amount was subsequently recovered from appellant Nazir Shahzad after his
arrest. No other motive is available on the record of the case. There is no
reason disbelieve the P.Ws. on this regard. The scooter belonging to the
deceased was being used by both the appellants and was recovered at the time of
the arrest of the accused. Both the accused also led to various recoveries of
articles which fully implicated them and fully corroborated the prosecution case.”
22. We
have anxiously attended the submissions of the learned counsel for the
appellants and found that delay in lodging of F.I.R. has been adequately
explained and accounted for. In any event, mere delay in lodging of F.I.R. is
not always fatal to the prosecution case, though in some cases it militate
against the bona fides of the prosecution. In this case, young boy was
kidnapped for ransom. Complainant invariably endeavoured his best to locate his
son rather than promptly lodging of F.I.R. for fear of death of victim which
may sometimes prove to be counterproductive. We are, therefore, not inclined to
draw any adverse inference against the prosecution on the ground of delay alone
in lodging of F.I.R. Appellants were arrested on 10.12.2006 and 12.12.2006 from
Mirpurkhas. During elaborate investigation incriminating evidence was collected
against them. Contention of the learned advocate for the appellants that both appellants
were not put to identification parade separately and their photographs had been
published in daily newspaper, before holding of identification parade. Even
otherwise, the holding of identification parade is not mandatory and it is
merely a corroborative piece of evidence. Accused were identified by the
witnesses in the Court, such identification inspires confidence as held by
Hon’ble Supreme Court in the case of GHAZANFAR ALI versus The STATE (2012 SCMR
215). Relevant portion is reproduced as follows:-
“13. Even otherwise
the holding of identification parade is not mandatory and it is merely a
corroborative piece of evidence. If the statement of a witness qua the identity
of an accused even in Court inspires confidence, if he is consistent on all
material particulars and there is nothing in evidence to suggest that he is
deposing falsely, the absence of holding of identification parade would not be
fatal to the prosecution. In Harbajan Singh v. State of Jammu and Kashmir
((1975) 4 Supreme Court Cases 480), the Court upheld the conviction where no
identification parade had been held and observed that the failure to hold
identification parade would not be fatal in cases where enough
corroborative and conclusive
evidence was available.
A similar view was taken in
Jadunath Singh v. State of U.P. ((1970) 3 Supreme Court Cases 518).”
23. It is further contended that on the basis
of momentary glimpse of the accused, the question of correct identification
does not arise. From the perusal of evidence, it transpired that the witnesses identified
accused before the Magistrate and identified both accused before trial Court.
Rightly reliance has been placed upon the case of NASRULLAH KHAN and 2 others
versus THE STATE (2010 SCMR 881). Relevant portion is reproduced as follows:-
“2. Sardar
Muhammad Khan, learned counsel entered appearance on behalf of petitioner and
contended with vehemence that the evidence which has come on record has not
been appreciated in its true perspective which resulted in serious miscarriage
of justice. In order to substantiate the said contention it is argued that the
entire prosecution case hinges upon the identification parade which could not
be held in accordance with the relevant provisions of law and directions made
time to time by the learned Lahore High Court and besides that common features
narrated in the F.I.R. make the entire exercise of identification ab initio,
illegal and void. It is next argued that on the basis of momentary glimpse the
question of correct identification does not arise which went unnoticed causing
serious prejudice against the petitioners.
3. We have
carefully examined the contentions as agitated on behalf of petitioners and
perused the judgment impugned with the eminent assistance of learned Advocate
Supreme Court on behalf of petitioners. The question of identification has been
dealt with in depth by scrutinizing the entire evidence which has come on
record in a comprehensive manner and relevant portion of the judgment impugned
is reproduced herein below for ready reference:---
"According
to statement of the complainant, Muzaffar, Zulfiqar Ali and Tasneem Aslam had
also witnessed the occurrence and that complainant and other P.Ws. could
identify the assailants. The descriptions of the two accused who had entered
into the room and resorted to firing was given in the statement. One of the
accused was aged about 24-25 years, was of strong physique, was keeping beard
his. height was about 5 feet 7/8 inches and was wearing `Shalwar Kameez', the
other accused was of the height of about 5 feet 6/7 inches, he was of whitish
complexion, had a strong physique was aged about 20-25 years and was wearing
`Shalwar Kameez'.
It was also
observed in the judgment impugned that "the identification test was
conducted by P.W.30 Muhammad Tajamal Abbas Rana Magistrate. Perusal of his
statement, on oath, reveals that the witnesses while identifying the accused
had also described the role played by them. Furthermore, all the P.Ws.
identified the accused before learned trial Court and also specified their
roles. The argument of the learned counsel that no light was available at the
time of occurrence is devoid of any force as it cannot be presumed that the
Daras was being given in a room which had no lights."
24. It is contended on behalf of the appellants that the evidence
brought on the record did not establish kidnapping for ransom. It is also
argued that it was unbelievable that deceased was murdered by the accused
without payment of the ransom. It is settled law that to constitute an offence
under section 365-A, PPC it is not necessary that money must have passed on to
the culprits, nor it is necessary that the victim must have been released as
held in the case of Muhammad Amjad vs. The State (PLD 2003 SC 704). Complainant
Abdul Sattar has deposed that his son was kidnapped for ransom on 05.12.2006,
he received call for ransom, as such motive behind occurrence is provide
through overwhelming evidence. The case of prosecution rests upon the
circumstantial evidence, recovery of articles, confessions, pointation of the
place where dead body was thrown, pointation of the place where mobile, key of
the car and purse of the deceased were thrown near sea, pointation of the
bungalow where deceased was brought by the accused persons and strangulated in
the store room of the house, underneath the bed identity card of deceased was
recovered.
25. We are
convinced that prosecution has proved its case against the appellants beyond
shadow of doubt, judgment of trial court did not suffer from mis-reading of
record or misconstruction of evidence as contended by the learned counsel for
the appellants. Crimes like kidnapping for ransom have become rampant in our
society. It is an unfortunate state of affairs
and can only be deprecated. Such kind of criminal acts must be dealt with iron
hands and if there are minor discrepancies and deviations in the evidence or
shortfalls on the part of investigating agency, the Courts should always be
dynamic and pragmatic in approaching the true facts of the case and drawing
correct and rational inferences and conclusions arising out of the facts and
circumstances of each case as observed by the Honourable Supreme Court of Pakistan
in the case of GHULAM HUSSAIN SOOMRO versus THE STATE (PLD 2007 Supreme Court
71). Relevant portion is reproduced as follows:-
“8.
Before parting with this judgment, it may be pertinent to observe that the
crimes like kidnapping for ransom have become rampant in our society, which is
an unfortunate state of affairs and can only be deprecated. Such kind of
criminal acts must be dealt with iron hands and event if there are minor
discrepancies and deviations in the evidence or shortfalls on the part of
investigating agency, the Courts should always be dynamic and pragmatic in
approaching the true facts of the case and drawing correct and rational
inferences and conclusions arising out of the facts and circumstances of each
case. We may not be misunderstood to mean that an innocent person wrongly roped
by prosecution or falsely involved by an unscrupulous investigating officers
should be unreasonably dealt with or made escape goat but he Courts must
maintain balance while arriving at the truth or falsehood of the matter by
sifting the grain from the chaff. This may be treated as a rule of caution and
circumspection.”
26. In the facts and circumstances of the case,
the considerations pertaining to the quantum of sentence have been examined.
Trial Court has rightly awarded death penalty to the accused. Now it is settled
proposition of law that death sentence can be awarded on circumstantial
evidence. Provided all the circumstances
constituted a chain and no link is missing and their combined effect is that
the guilt of the accused is established beyond any shadow of doubt as held in
the case of Sh. MUHAMMAD AMJAD versus The STATE (PLD 2003 Supreme Court 704),
in which it is held that last seen evidence though generally is regarded as a
weak piece of evidence yet capital punishment can be awarded if an unbroken
chain of circumstances from the stage of last seen evidence till the death of
victim is established by conclusive evidence. In the case of MUHAMMAD ISHAQ versus
THE STATE (2009 SCMR 135), the Honourable Supreme Court of Pakistan has
enunciated the following principles of law:-
“It is the settled principle of law that death sentence
can be awarded on circumstantial evidence, provided that circumstances
constituted a chain and it’s no link is missing and their combined effect is
that the guilt' of the accused established beyond any shadow of doubt. The
brutal and atrocious manner in which the appellant committed murders of his
wife and his mother-in-law does not call for any leniency in the sentence. Reliance
is placed on the case reported as Muhammad Ajmal v. The State PLD 2003 SC 1
wherein this Court had held that the brutal and atrocious manner in which the
petitioner committed the cold-blooded murders of his wife and her mother does
not call for any leniency in the sentence. Moreover, the learned trial Court as
well as the learned High Court have elaborately discussed every aspect of the
case and have dealt with the same in detail, leaving no room for further
consideration. Learned counsel for the appellant has failed to point out any
illegality or infirmity in the impugned judgment warranting interference by
this Court. Accordingly, the appeal being devoid of merit is dismissed
27. In another case of HAMID MEHMOOD and
another versus The STATE (2013 SCMR 1314) it has been observed that no rule
exists that sentence of death cannot be awarded in the absence of direct ocular
evidence, if the guilt of accused has been proved beyond reasonable doubt
through circumstantial and forensic evidence.
28. Deterrence
is a factor to be taken into consideration while awarding the sentence
specially sentence of death and in this behalf reference can be made to the
judgment of Honourable Supreme Court of Pakistan reported as case of HAMID
MEHMOOD & another versus STATE (PLJ 2013 SC 772). Relevant portion is
reproduced as follows:-
“25. In the facts and circumstances of the case,
the considerations pertaining to quantum of sentence, have been examined. The
reasons for the award of the death penalty far out weight the considerations
for the award of lesser sentence. The tender age of the minor, the brutal and
heinous nature of the crime and
pre-meditation persuades us to agree with the sentence awarded by the
learned trial Court as well as the learned High Court. The deterrent aspect of
the sentence cannot be lost sight of either as it was a crime of kidnapping for
ransom of minor, followed by murder. In such an eventuality, the normal
sentence of death should be awarded and the Court should neither hesitate nor
search for laboured pretexts to award a lesser sentence, as has been held by
this Court, in the case, reported as Muhammad
Sharif (Supra).”
29. All the
prosecution witnesses have successfully passed the test of lengthy
cross-examination by the defence but no material discrepancies have been
credited by the defence counsel in favour of appellants. Trial Court has
rightly disbelieved the defence theory. We have carefully perused the defence
assertions and evidence of D.Ws and found that defence version was without
substantiation through reliable documentary evidence. Prosecution has succeeded
to prove its case against accused because P.Ws had no motive to falsely
implicate the appellants in this heinous crime.
30. For whatever has been
discussed above, we hold that prosecution has proved its case against the
appellants beyond any shadow of doubt. As a sequel, conviction recorded by
trial Court is maintained. However, sentence under section 302(a) was
erroneous, the same is converted to 302(b), PPC as Ta’zir. Fine imposed by
trial Court is modified to compensation to be paid to legal heirs of deceased,
in case of default thereof, appellants shall suffer S.I. for six months.
Appeals lack merit and are accordingly dismissed and Reference for
confirmation of death sentence is answered in affirmative.
J U D G E
J U D G E
Gulsher/PS