HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.491 of 2011 and

Confirmation Case No.15 of 2011

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Aftab Ahmed Gorar

J U D G M E N T

Date of Hearing: 18^th March 2016

Date of Announcement: 31^st March, 2016

Appellant: Abdul Ghaffar through Mr. Waseemuddin A. Shaikh, Advocate

Respondent: The State through Mr. Abrar Ali Khichi, A.P.G.

NAIMATULLAH PHULPOTO, J.--- Appellant Abdul Ghaffar was tried along with Illahi Bux alias Allah Bux by learned II Additional Sessions Judge, Malir Karachi in Sessions Case No.335 of 2007, Crime No.325 of 2007 of P.S. Sohrab Goth, Karachi. After full-dressed trial, by judgment dated 22.11.2011 appellant Abdul Ghaffar was convicted under section 302(b), PPC and sentenced to death. Co-accused Illahi Bux alias Allah Bux was acquitted of the charge. Learned trial Court made reference to this court for confirmation of death sentence awarded to the appellant. By this judgment, we intend to dispose of the aforesaid appeal as well as death reference made by the trial Court.

2. Precise but relevant facts are that complainant Iftikhar Ahmed lodged report at P.S Sohrab Goth on 03.07.2007 at 1700 alleging therein that he is doing his business at Punjab. On 02.07.2007 at 10:00 p.m. Muhammad Iqbal informed him about missing of his brother namely, Zulfiqar alias Zulfi through phone. On 03.07.2007 at 05:00 a.m. Muhammad Iqbal again informed complainant Iftikhar Ahmed through phone that he met with his brother-in-law Abdul Ghaffar while searching Zulfiqar, who disclosed him that on 02.07.2007 at 10:30 am, he called Zulfiqar deceitfully at his home for compromise on account of un-ceremonial marriage with Zakia, when Zulfiqar entered into the house of the accused, he killed/slaughtered him by inflicting knife blows and buried his dead body in the courtyard of his house. On such information, complainant came from Punjab to Karachi and on enquiry from his sister-in-law Zakia, he came to know that Zulfiqar was missing from the house. Later on, it is alleged that P.W Muhammad Iqbal met with accused Abdul Ghaffar, he admitted commission of offence and disclosed that he had committed murder of Zulfiqar by inflicting knife blows and buried dead body along with weapon in the Courtyard of the house. However, complainant suspected in the F.I.R. that Abdul Shakoor son of Manzoor, Mohammad Farooq son of Manzoor, Allah Bakhsh son of Muhammad Din and Mst. Sughran w/o Allah Bakhsh all by caste Jabeel r/o Saudagaran Tehsil Khanpur District Rahimyar Khan presently, residing at Atawa Society Ahsanabad Karachi, in collusion with each other by hatching conspiracy have committed murder of his brother-in-law Zulfiqar. F.I.R. was recorded on 03.07.2007 at 1700 hours vide Crime No. 325/2007 at P.S Sohrab Goth u/s 302/365/201/34 PPC.

3. During investigation, SI Rehmatullah inspected place of wardat in presence of the mashirs. I.O had also recovered knife from place of incident on 03.07.2007 and secured the same in presence of the mashirs and prepared such mashirnama. Accused Abdul Ghaffar was arrested on 03.07.2007 in presence of the mashirs. During interrogation, he admitted the commission of the murder of the deceased. Accused Abdul Ghaffar was produced by IO before the Magistrate on 04.07.2007, where confession of accused was recorded and accused was remanded to the judicial custody. In the confession, accused Abdul Ghaffar mentioned that he had buried dead body in the courtyard of his house. I.O submitted an application to the learned Sessions Judge, Malir on 04.07.2007 for proceeding u/s 176(2) Cr.P.C. Learned Sessions Judge appointed Mr. Zakaullah Abro, Judicial Magistrate to supervise the proceedings. Judicial Magistrate directed Superintendent Central Prison, Karachi to handover the custody of accused Abdul Ghaffar to the I.O for investigation purpose. On the same day Judicial Magistrate ordered for constitution of the medical board. On 07.07.2007 custody of the accused Abdul Ghaffar was handed over to the I.O. Accused Abdul Ghaffar led the police, Magistrate and the team of the medical board to the courtyard of his house, where he had buried dead body. There was exhumation of the dead body in order to discover cause of death. After usual investigation challan was submitted against accused Abul Ghaffar and Illahi Bux and remaining accused were shown as absconders.

4. Case was sent up to the court of Sessions and it was transferred to II-Additional Sessions Judge, Malir for disposal according to law.

5. Charge was framed against accused Abdul Ghaffar and Illahi Bux at Ex.2. To the charge both the accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined PW-1 Muhammad Iqbal at Ex-3, he had produced mashirnama of arrest and personal search of accused Abdul Ghaffar at Ex.3/A; PW-2 Tahiq Mehmood at Ex-4, he has produced mashirnama of place of wardat at Ex-4/A; PW-3 Dr. Abdul Haq Arain at Ex-5, who produced photostat copy of postmortem report of deceased Zulfiqar alias Zulfi at Ex-5/A; PW-4 Dr. Bashir Ahmed Shaikh at Ex-6, PW-5 Dr. Munir Ahmed Soomro at Ex-7, PW-6 HC Masat Ali at Ex-8, he has produced mashirnama of digging the grave, recovery of dead body and inspection of dead body of deceased at Ex-8/A, inquest report at Ex-8/B; PW-7 complainant Iftikhar Ahmed at Ex-9, he has produced F.I.R. at Ex-9/A; PW-8 Mr. Zakaullah Abro, Judicial Magistrate at Ex-10, he had produced statement of accused under section 164, Cr.PC at Ex-10/A; PW-9 Rehmatullah Khan Marwat, investigation officer at Ex-11, he has produced application submitted before Sessions Judge, Karachi Malir for exhumation of the dead body at Ex-11/A, letter for handing over the custody of accused to him at Ex.11/B, order of police Surgeon for constituting medical board at Ex.11/C, letter for handing over the custody of accused at Ex.11/D, Photographs at Ex.11/E/1 to 11/E/17, copy of CD at Ex.11/F. Thereafter, learned Prosecutor closed prosecution side vide his statement at Ex-13.

7. Statements of accused were recorded under Section 342 Cr.P.C at Ex.15 and 16. Accused Abdul Ghaffar denied the prosecution allegations and stated that his confessional statement was recorded under pressure and threats as his maternal niece and sister were in the custody of the investigation officer. As regards to the question that on 07.07.2007, dead body of Zulfiqar alias Zulfi was dug out on his pointation whereupon, accused Abdul Ghaffar has replied that police had already shown him the place from where dead body was recovered. Accused Abdul Ghaffar further stated that all the PWs are interested. In reply to a question, what else he has to say? Accused Abdul Ghaffar replied that he is innocent. Deceased was his brother-in-law, PW Tahir was interested in his sister and he was arrested on 01.07.2007. PWs Tahir and others met investigation officer and falsely involved him in the murder of Zulfiqar. Accused has stated that his sister and niece were brought at police station. IO issued threat that ladies would be disrespected then he made judicial confession. Accused did not lead any evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

8. Learned trial Court on the conclusion of the trial, after hearing learned counsel for the parties and on the assessment of the evidence, awarded death penalty to appellant Abdul Ghaffar and acquitted co-accused Elahi Bux alias Allah Bux as stated above.

9. Mr. Muhammad Waseemuddin Abid, learned counsel for appellant Abdul Ghaffar contended that confession of accused was not voluntary, family of accused was brought at police station and accused was compelled to make the confessional statement. It is argued that confession of accused was not corroborated by other pieces of evidence. It is further contended that dead body was recovered from open plot, it was not pointed out by accused. It is contended that bloodstained churry was not sent to the chemical examiner. It is also argued that whole prosecution story has been managed by PW Tahir Mehmood as he was interested in Mst. Zakia and wanted to eliminate the deceased. It is contended that motorcycle on which deceased came to appellant has not been recovered. It is further contended that in the confessional statement it is mentioned that deceased’s hands and feet were tied with electric wire but the same was not recovered by the police. Lastly, it is contended that prosecutor story is highly unbelievable. Learned counsel for appellant, in support of his contentions has placed reliance upon the following cases:

(i) Aala Muhammad and another versus The State (2008 SCMR 649)

(ii) Nasir Mehmood and another versus The State (2015 SCMR 423)

(iii) Fareed Ahmed Langra versus The State (1998 PCr.LJ 1368)

(iv) Abid Ali and another versus The State and another (2011 YLR 700)

(v) Siraj Ahmed versus The State (2011 PCr.LJ 48)

10. Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh argued that incident had occurred on 02.07.2007, on the same day accused Abdul Ghaffar was arrested by police on suspicion, F.I.R. was recorded on 03.07.2007 at 1700 hours. It is argued that on 03.07.2007 accused produced churry from his house to the police and made confession before the Judicial Magistrate, Malir on 04.07.2007. It is argued that in the judicial confession accused has narrated the manner of the incident and it was true and voluntary confession. He argued that after recording the confession of accused, he was remanded to the judicial custody as per requirement of law. Thereafter, investigation officer got permission from learned Sessions Judge, got the custody of accused and accused Abdul Ghaffar led the police on 07.07.2007 to Courtyard of house, pointed out place, where dead body was buried by him, dead body was recovered in presence of the Magistrate and medical board. It is argued that dead body was pointed out by accused that it was in the courtyard of the house of the accused. As regards to the motive, it is argued that prosecution has established its motive as Mst. Zakia had contracted love marriage with deceased Zulfiqar and she was sister of accused. Lastly, it is argued that prosecution has proved it’s case against the appellant. In support of his contentions, learned A.P.G. relied upon the following cases:-

(i) MUSLIM SHAH versus THE STATE (PLD 2005 S.C 168)

(ii) KHURRAM MALIK and others versus THE STATE and others (PLD 2006 S.C 354)

(iii) NABI BAKHSH and another versus THE STATE and another (1999 SCMR 1972)

(iv) MUHAMMAD ISHAQ versus THE STATE (2009 SCMR 135)

(v) MUHAMMAD AMIN v. THE STATE (PLD 2006 Supreme Court 219)

(vi) Mst. ASKAR JAN and others versus MUHAMMAD DAUD and others (2010 SCMR 1604)

(vii) NOOR MUHAMMAD v. STATE (1999 SCMR 2722)

11. We have carefully heard learned counsel for the parties and perused the evidence minutely.

12. As regards to unnatural death of deceased Zulfiqar is concerned, PW-3 Dr. Abdul Haque Arain has deposed that he conducted postmortem examination of deceased on the orders of Judicial Magistrate, Malir on 07.07.2007 along with medical board and found that dead body was decomposed. Cause of death was cardio respiratory failure, portion of nose was cut/missing, throat was cut by sharp cutting weapon. Learned advocate for appellant has not disputed unnatural death of deceased.

13. PW-1 Muhammad Iqbal has deposed that present incident took place on 02.07.2007, deceased Zulfiqar was working with him at pan shop. His duty hours were from 12:00 noon to 1:00 am. On the day of incident Zulfiqar did not reach at his duty. Thereafter, P.W Muhammad Iqbal telephoned his wife, she informed him that he had left house at 9:00 pm. P.W Muhammad Iqbal started search of Zulfiqar at different places such as police stations and hospitals but without any clue. At 10:00 pm wife of Zulfiqar told to Muhammad Iqbal that she has suspicion over her brothers, sisters and brother-in-law of Zulfiqar that they had confined him somewhere. P.W Muhammad Iqbal and wife of Zulfiqar went to the police Chowki Ahsanabad and gave such information. On the same night police arrested accused in presence of P.W Muhammad Iqbal and in the morning he came to know that accused Abdul Ghaffar has committed murder of Zulfiqar Ali.

14. PW-2 Tahir Mehmood had deposed that on 02.07.2007 present incident had occurred. Deceased Zulfiqar was his friend, he went to his shop in the evening but shop was closed. He along with PW Iqbal searched Zulfiqar till night and met with the wife of Zulfiqar, she suspected her brothers and stated that her brothers were annoyed with Zulfiqar on her love marriage. Thereafter, he along with Iqbal went to the police station for lodging the report. Police arrested accused Abdul Ghaffar and Illahi Bux. Police inspected place of incident, it was surrounded by a compound wall, there was a room, such mashirnama was prepared and produced it at Ex-4/A.

15. PW-4 Dr. Bashir Ahmed Shaikh has deposed that on 07.07.2007, a medical board was constituted, headed by him. After postmortem examination of deceased, report was prepared.

16. PW-5 Dr. Munir Ahmed Soomro deposed that he was a member of the medical board, constituted on 07.07.2007, headed by Dr. Bashir Ahmed Shaikh. After postmortem examination he signed the certificate as a member.

17. PW-6 Mast Ali had deposed that on 07.07.2007 he was posted as head constable at police station Sohrab Goth. On the same day, he along with SI Rehmatullah Khan Marwat visited Atawa Housing Society, Scheme-33, Karachi, on the pointation of accused Abdul Ghaffar, Zakaullah Magistrate was also there, so also some doctors. There was a plot of four acres in which a room was constructed. 4/5 feet away from the gate of the room there was a cart (thella), accused Abdul Ghaffar pointed out that he had buried the dead body there. Thereafter, by digging earth upto 3 feet, dead body was found, the same was wrapped with cloth/rally. Neck and nose of the deceased were cut and face was without nose, dead body was decomposed, such mashirnama was prepared by the investigation officer in presence of the mashirs. He produced it at Ex-8/A.

18. P.W-7 Iftikhar Ahmed has deposed that present incident occurred on 02.07.2007. Deceased was his cousin and he was salesman at the pan shop of Iqbal Memon. On 02.07.2007 P.W Iqbal and wife of deceased telephoned him about missing of Zulfiqar. On 03.07.2007 at 5:00 am P.W Muhammad Iqbal informed Iftikhar about murder of Zulfiqar. Complainant came to Karachi and met with wife of deceased and Muhammad Iqbal. Thereafter, he went to the police station and saw that accused Abdul Ghaffar confessed his guilt and prepared to produce dead body and churri. Thereafter, accused led complainant Iftikhar and police party on a land where small room was constructed from where dead body and crime weapon were recovered. Thereafter, he went to the police station and lodged FIR and produced it at Ex.9/A.

19. PW-8 Mr. Zakaullah Abro, V^th Judicial Magistrate, Malir, Karachi deposed that on 04.07.2007, investigation officer Rehmatullah Marwat produced accused Abdul Ghaffar son of Manzoor before him under arrest in Crime No.325/2007 under sections 302, 365, 201, 34, PPC of P.S. Sohrab Goth for recording confession of accused. Magistrate took the custody of accused from IO and handed over to the Court staff and provided accused a chance for refreshing his memory for about two hours from 11:00 a.m. to 01:00 p.m. After two hours, Magistrate has stated that he was satisfied that accused was giving statement voluntarily. He recorded his statement in his own handwriting while putting necessary questions. Magistrate has stated that accused admitted that no member of his family was arrested nor tortured by the police. Accused disclosed that deceased Zulfiqar alias Zulfi had illicit terms with his sister Mst. Zakia then he contracted love marriage with her against the wishes of accused. For taking such revenge, on 02.07.2007 at 10:00 a.m. he attacked upon deceased with dagger and cut his nose down then cut his throat and caused his death. Accused admitted before the Magistrate in his statement that after commission of murder he buried his dead body in the courtyard of his house and he was arrested by the police. After recording confession of accused, Magistrate remanded him to the judicial custody and produced original statement of accused at Ex-10/A. Magistrate has further stated that on 07.07.2007 on the pointation of accused he along with IO and medical team excavated the grave of deceased Zulfiqar alias Zulfi in the house of accused, such mashirnama was prepared in his presence.

20. PW-9 SI Rehmatullah Khan Marwat had deposed that on 03.07.2007 he received F.I.R. No.325/2007 for investigation. He inspected place of wardat, it was shown to him by complainant. He recorded 161, Cr.PC statement of PWs Tahir Mehmood and Muhammad Shahid. Knife was recovered from the place of wardat. Accused Abdul Ghaffar and Illah Bux were already in custody under section 54, Cr.PC. Investigation officer interrogated the accused and accused Abdul Ghaffar admitted that he had committed murder of Zulfiqar alias Zulfi and buried his dead body in his plot. Accused were arrested by investigation officer in F.I.R. No.325/2007. Mashirnama of arrest and recovery was prepared in presence of mashirs Muhammad Iqbal and HC Chakar. Thereafter, investigation officer submitted an application to the Magistrate for recording confession of accused and it was recorded by him. After recording confession accused was remanded to judicial custody. On the orders of Magistrate, he got custody of accused Abdul Ghaffar from jail. Magistrate constituted medical board. On 07.07.2007 investigation officer took accused Abdul Ghaffar to Atawa Housing Society. Magistrate and members of the medical board were with the investigation officer and accused. Dead body was recovered from the plot of accused. Investigation officer took photographs. Medical team prepared such certificate/postmortem report. On the conclusion of investigation, investigation officer submitted challan against accused on 19.07.2007.

21. After close scrutiny of evidence, we have come to the conclusion that it was an un-witnessed incident. Entire edifice of the prosecution case is based on circumstantial evidence.

22. Judicial confession made by Abdul Ghaffar on 04.07.2007 before Judicial Magistrate Malir Karachi is the material piece of evidence with the prosecution. Therefore, we have decided to discuss such piece of evidence in the first instance. We have perused the evidence of Judicial Magistrate. It appears that he had observed all the mandatory pre-cautions before recording confession of accused. The fundamental logic behind the same is that all signs of fear in the mind of accused are removed and accused is to be provided full assurance that in case he refuses to make confession, he would not be handed over back to the police. In the present case, Judicial Magistrate, recorded confession of accused and deposed that accused Abdul Ghaffar son of Manzoor was produced before him by Sohrab Goth police on 04.07.2007 at 11:00 am. Custody of the accused was handed over to the court staff and police was directed to leave the court premises. Accused was warned that he was not bound to make confession and any complaint he makes shall be taken down in writing. Then accused was allowed time for reflection from 11:00 am to 1:00 pm. During the said period, police had no access to accused. Magistrate has mentioned that accused was brought before him in the Chamber because it was more appropriate place. After satisfaction that there was no policeman in the Chamber or at any place where proceedings could be seen or heard, again accused was asked if he was prepared to make confession on his own freewill. Accused replied in affirmative. Magistrate found no marks of violation on the body of the accused. Accused was also enquired about the length of time during which accused was in police custody. He replied that he was arrested on 02.07.2007 from his house. Accused denied any maltreatment. On a question what else he has to say? Accused replied before the Magistrate that he is originally resident of District Rahim Yar Khan and presently, he was residing with sister and brother Illah Bux at Karachi. 5/6 months back, younger sister of accused namely Zakia came from Rahim Yar Khan to Karachi. House of deceased Zulfiqar was adjacent to the house of accused. Zulfiqar developed relations with Zakia, sister of accused and demanded her hand, but accused refused. Accused in his confession has stated that Zulfiqar contracted love marriage with Zakia against the wishes of parents. On 02.07.2007 at 9:30 am Zulfiqar came in the house of the accused and accused cut his nose and slaughtered with knife. After commission of his murder, buried his dead body in the courtyard of house. Accused further stated that his shirt was blood stained and he had kept shirt along with dead body and left motorcycle of the deceased at Sohrab Goth.

23. We are satisfied that confession of accused Abdul Ghaffar was true, voluntarily and it was not obtained by torture, coercion or inducement by the police. In the case of MUHAMMAD AMIN versus THE STATE (PLD 2006 Supreme Court 219) Honourable Supreme Court of Pakistan has held that conviction can be based on confession if Court satisfies and believes that it was true and voluntary and was not obtained by pressure, coercion or inducement. It is held as under:

“9. There is no cavil to the proposition that conviction could have been awarded on the basis of retracted confession which proposition was examined in case of Mst. Joygun Bibi v. The State PLD 1960 (SC (Pak) 313 as under:

"We are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."

10. Similarly in the case of the State v. Minhun alias Gul Hassan (PLD 1964 SC 813) this Court has observed as under:

"As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession, whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well-settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly A form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement."

24. Even at the cost of repetition, it will be worthwhile to mention here that PW-9 SI Rehmatullah Khan Marwat has deposed that on 03.07.2007 he was posted at P.S. Sohrab Goth. He received FIR No.325/2007 for investigation. He inspected the place of wardat on the pointation of complainant, recorded 161, Cr.PC statements of PWs. Accused Abdul Ghaffar and Illahi Bux were already under arrest. During interrogation accused Abdul Ghaffar admitted that he had committed murder of Zulfiqar and buried his dead body in the plot situated at Attawa Society. Investigation officer submitted an application before the Magistrate for recording the confession of accused and it was recorded and accused was remanded to judicial custody. On the same day, investigation officer submitted application to the Sessions Judge Malir for proceedings under section 176(2), Cr.PC. Magistrate was nominated for such proceedings. On the orders of the Court, custody of accused was handed over to the investigation officer on 07.07.2007 for further investigation. On the same day, medical board was constituted. IO took the accused in custody to Attawa Society. Judicial Magistrate and members of the medical board also reached there. Dead body was recovered from courtyard of house of accused, such mashirnama was prepared in presence of mashirs. Photographs of the dead body were also taken. Learned Judicial Magistrate has deposed that, “on 7.7.2007 at the pointation of accused I along with IO and medical team got excavated the grave of deceased Zulfiqar Ali alias Zulfi laid in the house of accused. I drafted such memo at spot in presence of mashir which I see today already produced at Exh-8/A, which is same correct and bears my signature.”

25. PW HC Masat Ali has deposed that, “on 07.07.2007 I was I was posted at P.S. Sohrab Goth. On the same day I along with SI Rehmatullah Marwat visited Atawa Housing Society, Scheme-33, Karachi, on the pointation of accused Ghaffar. Magistrate was also there. Few doctors were also present there. The plot had an area of 4 acres and a room was constructed there. At about 4/5 feet away from the gate of the room, one cart (THELLA) was parked. The accused pointed out that dead body had been buried there. We started to dig the earth up to three feet and found a dead body which was wrapped in a Rally. The neck of the deceased had been cut. His nose was not on the face. It was removed after cutting. The dead body was decomposed. The deceased was wearing shalwar kameez. A memo was prepared at the same time. I signed the memo which I produce at Ex-8/A. It was written by the IO. on the dictation of the IO. I acted as witness. Magistrate also prepared a report regarding dead body and obtained my signature which I produce as Exh-8/B.” From perusal of evidence and confession of accused Abdul Ghaffar it appears that accused Abdul Ghaffar disclosed that after committing murder of Zulfiqar he had buried the dead body at courtyard of his house. Discovery of this fact on the pointation of the accused is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as “The Order), which reads as under:-

“40. How much of information received from accused may be proved. 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.

26. Perusal of the above Article reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order. Secondly, it is based upon the principle that if statement or information of the accused amounts to confession or otherwise is supported by discovery of a fact, it may be presumed to be true and not to have been extracted. It comes into operation only (i) if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody; and (ii) if the information relates distinctly to the fact discovered. Honourable Supreme Court in the case of Mst. ASKAR JAN and others versus MUHAMMAD DAUD and others (2010 SCMR 1604) has held as under:-

“9. Having heard the learned counsel for the parties, learned Deputy Prosecutor-General and perusing the record of the case with their assistance, we find that the appellant Muhammad Daud was convicted by the High Court on the evidence of discovery of dead body and blood stained bailchas on his information. The discovery of any fact on the-information of the accused in custody of Police is admissible under Article 40 of Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order'), which reads as under:-

 "40. How much of information received from accused may be proved. 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."

A perusal of above Article reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order. Secondly, it is founded on the principle that if the statement or information of the accused amounts to confession or otherwise is supported by the discovery of a fact it may be presumed to be true and not to have been extracted. It comes into operation only (i) if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody; and (ii) if the information relates distinctly to the fact discovered.

 10. Thus, firstly there should be an information or statement of the accused whether it may be confession or otherwise and that too when he was in police custody and secondly on the basis of such information or statement a fact is discovered. If there is no statement of the accused or information given to the Police, which is an essential requirement of the Article, then the subsequent discovery would become inconsequential. Further such information either oral or recorded by the police is required to be proved by the prosecution through evidence.”

27. Appellant has been convicted and sentenced by trial Court on the basis of his confession and on the evidence of discovery of dead body from the courtyard of his house on his pointation. Discovery of any fact on the information of accused in the custody of police is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984.

28. Evidence shows that appellant Abdul Ghaffar led the police party to courtyard of house, where he buried the dead body of Zulfiqar alias Zulfi, such place was not known to anybody except the appellant. We are conscious of the fact that the conduct of accused soon after incident played an important part in determining the guilt of accused. Article 21 of Qanun-e-Shahadat Order, 1984, which reads as under:-

“21. Motive, preparation and previous or subsequent conduct.(1) Any fact is relevant which shows or constitutes a notice or preparation for any fact in issue or relevant fact.

(2) The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

29. We have come to the conclusion that prosecution has proved its case against appellant Abdul Ghaffar beyond any shadow of doubt for the reasons that appellant made confession before Judicial Magistrate. Trial Court rightly believed that it was true and voluntary and was not obtained by torture or coercion. Appellant Abdul Ghaffar gave information to the police and led to courtyard of house where he buried the dead body of the deceased. Prosecution has also proved motive that before this incident, deceased Zulfiqar had contracted love marriage with the sister of accused Abdul Ghaffar and in order to take such revenge appellant committed murder of deceased.

30. For the above stated facts and reasons we hold that trial Court rightly awarded death sentence to the appellant as he had committed murder in a very brutal manner by cutting the nose of the deceased and separating it from the dead body, which clearly shows the deep rooted enmity of appellant with deceased Zulfiqar, as such, appellant does not deserve any leniency. The Honourable Supreme Court in the case of Noor Muhammad v. State (1999 SCMR 2722) has also adverted to this aspect of the matter and has observed as under:--

"However, we may observe that the people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It is high time that the Courts should realise that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such which should act as a deterrent to the commission of offences. One of us (Ajmal Mian, C.J., as he then was) has highlighted this aspect, inter alia in the case of State through the Advocate-General Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1), relevant portion whereof at page 19 reads as follows:--

(3) It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences, the people are feeling insecure. The learned trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution the technicalities should be overlooked without causing any miscarriage of justice."

31. For the aforesaid facts and reasons, there is no merit in this appeal, which is hereby dismissed. Consequently, Reference made by the Trial Court for confirmation of death sentence is answered in affirmative.

J U D G E

J U D G E

Gulsher/PS