HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No.02 of 2011

Confirmation Case No.01 of 2011

Present: Muhammad Ali Mazhar, J.

Naimatullah Phulpoto, J.

Appellant: Sher Khan through Mr. Irfan Aziz, Advocate

Respondent: The State through Mr. Khadim Hussain Khuharo, Dy. Prosecutor General Sindh.

Date of hearing: 13.11.2014

Date of Announcement: 24.11.2014

JUDGMENT

Naimatullah Phulpoto, J.-- This judgment will dispose of Special Anti-Terrorism Jail Appeal No.02 of 2011 and Reference No.02/2011, which arise out of judgment dated 29.12.2010, passed by the learned Judge, Anti-Terrorism Court-I, Karachi, in Special Case No.88/2010 (The State versus Sher Khan) by which learned Judge had convicted and sentenced the appellant as under:

(i) Under Section 364A PPC to death

(ii) Under section 376 PPC to imprisonment for life.

(iii) Appellant was also convicted under section 7(a) of the Anti-Terrorism Act, 1997, read with section 302 PPC and awarded death sentence and fine of Rs.200,000/-, out of which 50% was ordered to be paid to the LRs of the deceased in terms of section 544A Cr.PC.

2. Reference for confirmation of death sentence was made to this Court by the trial Court under section 374 Cr.PC.

3. The succinct facts of the case are that on 17.07.2010 granddaughter of complainant Rehmat Ali, namely, Nadia daughter of Khanan, aged about 5 years, went out of the house at 03:00 p.m. for playing with the children. When baby Nadia did not return back till the evening, Rehmat Ali and other family members were worried and started search of baby Nadia. Information was also conveyed to police station Clifton. On 18.07.2010, in the morning at about 0700 hours, dead body of baby Nadia was found at Katchra Kundi and there were marks of violence around her neck, such F.I.R. was lodged by the complainant against unknown persons at P.S. Clifton. F.I.R. was recorded by ASI on 18.07.2010 at 0745 hours vide Crime No.184/2010 under sections 302, 364A PPC. After registration of F.I.R., investigation was entrusted to SIP Mehboob Illahi of P.S. Jamshed Quarters for investigation. On the same day, on the pointation of the complainant Rehmat Ali at 1030 hours I.O. prepared mashirnama of place of wardat in presence of mashirs, recorded 161 Cr.PC statements of PWs Muhammad Rafiq and Abdul Samad. IO directed ASI Zawar Hussain to proceed to the Civil Hospital for preparation of 174 Cr.PC report. Investigation officer arrested accused Sher Khan on 19.07.2010 in presence of mashirs and prepared such mashirnama. During investigation, accused produced his clothes from washing machine of his house in presence of mashirs and led the police party to the place of occurrence where he had committed offence on the second floor of his house. Such mashirnama was prepared in presence of mashirs. Investigation officer got the accused medically examined on 19.07.2010 and dispatched material for DNA test and sent clothes of accused for chemical examination. On 21.07.2010, investigation officer recovered rope used in crime on the pointation of accused from Tanzeem ground in presence of mashirs and sealed the same at the spot. On 24.07.2010, I.O. recorded 161 Cr.PC statement of PW-12 Ramesh Kumar. On 29.07.2010, he produced accused Sher Khan before the Judicial Magistrate South, where his confessional statement was recorded. On the completion of usual investigation, IO submitted challan against the accused under the above referred sections in the Court of learned Administrative Judge, ATCs, Karachi. Case was transferred to the Court of Anti-Terrorism Court No.I for disposal according to law.

4. A formal charge against the appellant was framed at Ex-3 under sections 364A, 376, 302 PPC read with section 7(a) of the Anti-Terrorism Act, 1997. Appellant pleaded not guilty and claimed to be tried. In order to substantiate the charge against the accused, prosecution has examined the following witnesses:

1. PW-1, complainant Rehmat Ali at Ex-4, who produced F.I.R. at Ex.4/A.

2. PW-2 Ajab Khan at Exhibit 5.

3. PW-3 Muhammad Rafiq at Ex-6. He produced memo of inspection and memo of seizure of clothes at Ex-6/A.

4. PW-4 Mr. Abul Ala, Judicial Magistrate at Ex-7.

5. PW-5 Dr. Rohina Hassan at Ex.8. She produced Postmortem report, chemical examiner and final report at Ex-8/A, 8/B and 8/C, respectively.

6. PW-6 Mehmood Ahmed at Ex.9.

7. PW-7 Naimatullah at Ex.10.

8. PW-8 Khanan at Ex-11.

9. PW-9 Zawar Hussain at Ex-12.

10. PW-10 Zaffar Iqbal at Ex.13, who produced memo of arrest of accused at Ex.13/A.

11. PW-11, Dr. M. Tayyab at Ex.14, who produced medical certificate at Ex-14/A.

12. PW-12 Ramesh Kumar at Ex.15.

13. PW-13 Mehboob Illahi, I.O., at Ex.16.

14. PW-14 Jamil Ahmed at Ex.17.

Thereafter, prosecution side was closed at Ex-18.

5. Appellant in his statement recorded under section 342 Cr.PC denied all the prosecution allegations and stated that complainant has involved him in this case falsely as he wanted to occupy his house and stated that PWs are interested. Accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

6. After considering the evidence available on record, the trial Court convicted the appellant as mentioned above under the impugned judgment. The appellant was dissatisfied with the said judgment, therefore, he has preferred the present appeal.

7. Sole point for determination in this appeal is whether the appellant was rightly convicted for the offences charged?

8. We have heard Mr. Irfan Aziz, learned advocate for appellant and Mr. Khadim Hussain, learned Deputy Prosecutor General Sindh for the State, perused the evidence minutely.

9. Mr. Irfan Aziz, learned counsel for appellant has argued that prosecution story is unnatural and unbelievable, incident was un-witnessed, prosecution case is based upon circumstantial evidence. Confessional statement of the appellant was obtained by torture by the police. He contended that there was enmity between complainant party and appellant over a house. It is argued that appellant neither led the police party to the place of incident nor produced rope used in the commission of offence. It is also argued that appellant was of tender age at the time of incident but he was not tried as juvenile offender by the trial Court. Lastly, it is submitted that prosecution case is doubtful and accused is entitled to benefit of doubt. In support of his contentions, he relied upon the cases reported as Jamshed alias Jammi vs. The State and others (2004 P.Cr.L.J 1239), Ghulam Qadir Dayo Vs. The State (2005 P.Cr.L.J 578), Muhammad Rafique through Muhammad Anwar vs. The State (PLD 2008 Lahore 268), Muhammad Hayat alias Liaquat vs. The State (PLD 2008 Karachi 603), Babar Taj vs. The State (2008 P.Cr.L.J 1075) and Imran Khan Vs. The State (2009 P.Cr.L.J 1031).

10. In the case of Jamshed alias Jammi vs. The State and others (2004 P.Cr.L.J 1239), it has been observed that the Magistrate while recording the confessional statement had not given any time for reflection to the accused, such confession was not relied upon.

11. In the case of Ghulam Qadir Dayo Vs. The State (2005 P.Cr.L.J 578), it was held that a single circumstance creating a doubt in a prudent mind is sufficient to entitle the accused to have benefit of doubt as a matter of right.

12. In the case of Muhammad Rafique through Muhammad Anwar vs. The State (PLD 2008 Lahore 268), it is held that numerous infirmities are not necessary to disbelieve a witness. If only one infirmity impeaches the credibility of the witness, the same may make his entire statement doubtful. One tainted piece of evidence cannot be corroborated with other tainted piece of evidence.

13. In the case of Muhammad Hayat alias Liaquat vs. The State (PLD 2008 Karachi 603), it is held that not a single witness has implicated the accused in the commission of the offence. The piece of evidence used against appellant is pointation of place of commission of the crime and recovery of the dead body, male organ and testicles and this piece of evidence was in the knowledge of the police party, therefore, such piece of evidence cannot be used against the appellant.

14. In the case of Babar Taj vs. The State (2008 P.Cr.L.J 1075), it is held that extra-judicial confession is the weakest type of evidence and it should be confidence inspiring and appealing to a person of ordinary prudence being based on reliable material.

15. In the case of Imran Khan Vs. The State (2009 P.Cr.L.J 1031), it has been observed that trial courts usually record the age of accused at the time of recording his statement under Section 342 Cr.P.C at random and in a routine manner on the basis of the claim of the accused, therefore, the same cannot be made a basis for giving a conclusive finding on an important matter regarding the age of accused.

16. On the other hand, Mr. Khadim Hussain, learned D.P.G. has argued that the appellant led the police party to the place where he had subjected baby Nadia to lust and murdered her. It is also argued that accused led the police party and mashirs to the place from where he produced rope, which was used in the commission of offence. He further submitted that the appellant was lastly seen with deceased baby Nadia by PW-12 Ramesh Kumar, shopkeeper, from where appellant had purchased ‘papars’ for the victim. It is argued that accused made judicial confession of the incident, which is corroborated by medical evidence. He has also argued that complainant party had no enmity or motive to falsely implicate the appellant in this case. Defence plea regarding occupying the house of the accused, was afterthought and no witness had been cross-examined on this point. Learned D.P.G. has further argued that there is no substance in the plea that appellant was minor at the time of commission of offence, such plea was neither raised during investigation nor at trial. He has submitted that prosecution has proved its case against the accused by cogent evidence. He has fully supported the judgment of the trial Court. In support of his contentions, he has relied upon the case of JUMA alias Jamal versus the STATE (PLD 1958 Peshawar 147).

17. We have given our due consideration to the arguments advanced by the learned counsel for the parties and find that the case of the prosecution is based upon the following pieces of evidence:

(a) Last seen evidence

(b) Judicial Confession.

(c) Recovery of rope on the pointation of accused.

(d) Medical Evidence.

(e) Positive chemical report.

18. PW-5 Dr. Rohina Hassan had conducted postmortem examination of deceased on 18.07.2010. From external examination of the body, it was found as under:

External Examination:

On examination she was female aged about 5 years old, wearing purple silky embroidered qamiz and shalwar. Rigor mortis was fully developed. The features were identifiable. There were no sign of decomposition. Postmortem lividity developed over posterior depending parts and were fixed, tongue beaten between the teeth, eyes congested, pupils dilated and fixed, frothy blood mixed with fluid oozing out from mouth and nostrils.

Surface wound and injuries:

A ligature mark noted all around the neck, disappearing at the nape of the neck, measuring about 10 c.m. in length and 1 c.m in width at the level of thyroid cartilage and is about 8 c.m away from the chin anteriorly. Neck vein and chest veins above and below the ligature mark are engorged. Face was deeply congested. Lips cyanosed.

Per Vaginal Examination:

Labium major and minor bruised bluish black in colour, vestibule reddish purple in colour deeply congested, hymen torn a third degree tear noted extending towards the anus, margins of hymen deeply congested. Vaginal slides prepared for chemical and DNA analysis. Purple colour shalwar also taken and sealed and handed over to I.O. of the case.

From the Internal Examination the WMLO found as under:

Head: Scalp and vault of skull are intact but deeply congested.

Neck: All muscles of neck are deeply congested. Hyoid bone intact, larynx trackel rings intact but deeply congested.

Thorax: Ribcage intact, no free fluid or blood noted inside the cavity, heart and lungs normal inside and shape but deeply congested.

Abdomen: All viscera’s were intact, but deeply congested.

Opinion: From external and internal examination of deceased, cause of death was asphyxia due to construction of neck, resulting from strangulation. She has been subjected to the act of sexual intercourse before her death.

19. The time between injury and death was instantaneous and time between death and postmortem was about 12 hours to 14 hours. WMLO prepared such postmortem report, which was produced as Exhibit 8/A. WMLO also prepared chemical report, which is produced as Exhibit 8/B. In the cross-examination, WMLO has replied that shalwar of the deceased baby was sealed and parcel was sent for DNA test.

20. PW-1 complainant Rehmat Ali has deposed that at the time of incident he was residing with his son-in-law, namely, Khanan, the father of deceased baby Nadia, in House No.444, Street No.3, near Marwat Hospital, Upper Gizri, Karachi. On the fateful day, the daughter of the complainant, namely, baby Nadia went out of the house for playing with other children at 03:00 p.m. Baby Nadia did not return back till evening. Thereafter, announcements were made on loudspeakers in the Masjid about the missing of baby Nadia. Complainant Rehmat Ali gave such information to the police station Clifton and started search of the baby. On 18.07.2010, at 07:00 a.m., he received information that dead body of baby was lying in Katchra Kundi at Tanzeem ground. He went to the pointed place where he found the dead body of baby Nadia, having strangulation marks by means of rope around her neck. He lodged such F.I.R. at police station Clifton, which he has produced as Exhibit 4/A. In the cross-examination, he has replied that accused Sher Khan is son of his late brother Muhammad Ali.

21. PW-2 Ajab Khan has deposed that on 17.07.2010, after Maghrib prayers he was returning to the home from Tariq Road. On the way, he received a call from his father, who told him that baby Nadia was missing. Ajab Khan reached at home and started search of baby along with other relatives. On 18.07.2010, he saw his grandfather Khan Sheeren and his uncle Gul Khan who were standing outside of the house. Accused Sher Khan went there and disclosed that he has been informed by his friend that a baby was standing at midnight at Tanzeem ground. Thereafter, PW Ajab Khan along with accused Sher Khan and uncle Gul Khan went to Tanzeem ground in search of the baby. When they were proceeding to Tanzeem ground, accused Sher Khan on the pretext of passing urine sat there and informed Ajab Khan that clothes of baby were lying in Katchra Kundi. PW Ajab Khan stated that there was a rope around her neck. Thereafter, dead body of baby was taken to Marwat Hospital. The relatives of the deceased inquired from accused Sher Khan about the rope and shirt of the baby to which he replied that he had thrown such articles in Katchra Kundi.

22. PW-3 Muhammad Rafiq has deposed that he resides opposite the house of the complainant in the same street. On 17.07.2010, complainant informed him about the missing of baby Nadia. On 18.07.2010 at 07:00 a.m. he came to know that dead body of baby Nadia has been recovered from Katchra Kundi, Tanzeem ground. Thereafter, he went to the police station along with complainant and the police inspected the place of wardat in his presence and prepared mashirnama of inspection and place of wardat by making him a mashir. On 19.07.2010, he was offering condolence with the complainant outside of his house. Accused during arrest prepared to produce his clothes, which he was wearing at the time of occurrence and accused produced clothes from the washing machine lying in his house. Clothes were shalwar and qameez of accused. Thereafter, accused pointed out place of wardat, situated at the second floor of his house where he had committed the crime.

23. PW-4 Mr. Abul Ala, Civil Judge and Judicial Magistrate, Karachi South, has stated that on 29.07.2010, SIP Mehboob Illahi produced accused Sher Khan before him for recording his confessional statement in Crime No.184/2010 under sections 302, 364-A, PPC of P.S. Clifton. Judicial Magistrate got handcuffs of accused removed and directed the police officials to leave the Court premises and introduced himself to the accused as Judicial Magistrate and informed the accused that he was not bound to give confessional statement the same could be used against him and he provided time to the accused from 12:00 noon to 14:30 hours for reconsideration. No marks of violence were found on the body of the accused. Despite sufficient time accused expressed that he was prepared to confess his guilt. No threat, inducement or torture has been given to him. After satisfaction, Judicial Magistrate recorded his statement in his verbatim after observing all the legal formalities, accused put his left thumb impression on it. Confessional statement was produced at Exhibit 7/B. Judicial Magistrate has categorically stated that accused present in Court is same, who confessed before him that he had committed murder of baby Nadia after subjecting her to lust.

24. PW-6 ASI Mehmood Ahmed has stated that 17.07.2010 he was posted as duty officer at police station Clifton. On the same day, at 08:15 p.m., one Muhammad Saleem appeared at police station and informed him about the missing of baby Nadia aged about 5 years. He made such entry in the record. On 18.07.2010 at 07:05 hours one Rehmat Ali appeared at police station and lodged F.I.R. that dead body of baby Nadia has been recovered from Katchra Kundi, situated in Tanzeem ground, upper Gizri, he lodged such F.I.R.

25. PW-7 Naimatullah has deposed that on 21.07.2010 he was present at house. On the same day, IO SIP Mehboob Illahi asked him to act as mashir in this case. Investigation officer further informed him that accused Sher Khan was prepared to produce a piece of rope, which he had used in the commission of offence. Thereafter, PW Naimatullah proceeded to Tanzeem ground where IO had also reached along with accused. He had deposed that accused led the police party and above named mashir to Katchra Kundi, Tanzeem ground where accused searched the rope from Katchra and produced it. It was secured by the IO such mashirnama was prepared. He acted as mashir.

26. PW-8, Khanan, the father of the deceased, has deposed that on 17.07.2010 at 08:30 a.m. he had gone from his house for labour. After finishing his work at 15:00 hours, he returned back to the home on Suzuki. When he reached near his house, he heard cries of his wife. On inquiry, he was informed that his daughter baby Nadia was missing since 03:00 p.m. or 03:30 p.m. PW Khanan proceeded to Masjid where announcement was made regarding missing of his baby and he started search of his baby in the vicinity but without any result. On the next morning, i.e. 18.07.2010, wife of Khanan asked PW Ajab Gul and cousin Sher Khan (present accused) to continue search of the baby. When PW Khanan reached at Biryani shop, he saw that people of the area had gathered near Katchra Kundi, Tanzeem ground. He proceeded there and saw that persons of the locality were taking his daughter to Civil Hospital and baby was dead. After postmortem examination, dead body was handed over to him.

27. PW-9 Zawar Hussain had deposed that on 18.07.2010 he was directed by SIP Mehboob Illahi to proceed to Civil Hospital where, after preparation of the inquest report and completion of other formalities, he handed over dead body of baby Nadia to her father.

28. PW-10, HC Zafar Iqbal has deposed that on 19.07.2010 IO Mehboob Illahi arrested accused Sher Khan in his presence in this case and prepared such mashirnama. He acted as mashir, co-mashir was PC Muhammad Riaz Malik.

29. PW-11 Dr. Muhammad Tayyab had medically examined accused Sher Khan, produced before him by IO Mehboob Illahi in Crime No.184/2010 of P.S. Clifton. After examination of the accused medical officer opined that accused was capable to perform sexual intercourse and he was aged about 22 years. He issued such certificate at Ex-14/A. Despite opportunity medical officer was not cross-examined by accused.

30. PW-12 Ramesh Kumar. He is material witness in this case. He had seen deceased in the company of accused on 17.07.2010 at about 03:30 p.m. He had deposed that he runs a shop. On 17.07.2010 at 03:30 p.m, he was sitting at his shop where accused Sher Khan appeared along with five years’ old baby. Sher Khan purchased from his shop papers and blades and in the evening he came to know that baby was missing. He has further deposed that his shop is situated adjacent to the house of the accused and he came to know on the next morning that little baby has been murdered. He has clearly deposed that present accused went to his shop on 17.07.2010 along with baby and purchased papers.

31. PW-13 Mehboob Illahi has carried out investigation of this case. He had prepared mashirnama of place of wardat on the pointation of complainant Rehmat Ali in presence of mashirs, recorded 161 Cr.PC statements of PWs Muhammad Rafiq and Abdul Samad. IO directed ASI Zawar Hussain to proceed to the hospital for preparation of inquest report. He arrested the accused on 19.07.2010 in presence of mashirs. During interrogation accused prepared to produce the clothes, which he was wearing at the time of incident and he produced clothes from washing machine of his house, which IO secured in presence of mashirs. Accused also pointed out the place of house where he committed rape with baby Nadia and finished her life on the roof of second floor of his house by means of rope. He prepared such mashirnama in presence of mashirs. Investigation officer produced accused for his medical examination on 19.07.2010 and collected such certificate from the medical officer. He had written a letter to the S.S.P. for seeking permission for DNA test. IO had also sent clothes for chemical examination and received positive report. He had also secured rope, which was produced by the accused on 21.07.2010 in presence of the mashirs from Katchra Kundi and prepared such mashirnama and produced before trial Court. IO recorded statement of PW Ramesh Kumar on 24.07.2010. On 29.07.2010, IO produced accused before the Judicial Magistrate, Karachi South, where his confessional statement was recorded. Thereafter, he submitted challan against the accused in the concerned Anti-Terrorism Court.

32. PW-14 Jamil Ahmad has stated that on 02.08.2010 he was posted as Tapedar at Saddar Town. He had prepared sketch of place of wardat of this case and produced it as Exhibit 16/G.

33. After close scrutiny of the above evidence, we have come to the conclusion that prosecution had proved its case against the accused by cogent evidence for the reasons that PW Ramesh Kumar had seen baby Nadia in the company of accused on 17.07.2010 at about 03:00 p.m. when accused Sher Khan appeared at the shop of PW Ramesh Kumar along with baby and he purchased papars and blades from his shop. PW Ramesh Kumar had no enmity or motive to falsely implicate the accused in this heinous crime. Last seen evidence has been corroborated with other pieces of evidence. Under Article 20 of the Qanun-e-Shahadat Order, 1984 last seen evidence is admissible in evidence. Accused along with PW Ajab Khan had left for search of baby on 18.07.2014 and led PW Ajab Khan to the clothes of baby lying in Katcha Kundi. After his arrest by the police, accused voluntarily led the police party to Katchra Kundi from where he produced a rope which he used in the commission of offence. Accused also pointed out the place, which was upper portion of his house, where he committed the shameful act of rape with baby Nadia and committed her murder. Accused also led the police party in presence of mashirs to the washing machine of his house, produced his clothes which he was wearing at the time of commission of offence. WMLO has categorically stated that baby was subjected to rape and was murdered by way of strangulation. Medical officer has also opined that accused was capable to perform sexual intercourse and his age was 22 years at the time when he examined him and issued such certificate and produced in trial Court. As per report of Chemical Examiner the vaginal swabs contained human sperms. Medical evidence is always considered as corroborative piece of evidence in the case.

34. Confessional statement made by accused is a strong piece of evidence, such judicial confession of the accused was voluntarily, truthful, free from any duress and coercion, even though, retracted was relevant, retraction, per se was not always a valid ground to discard judicial confession until and unless it is proved that it was obtained under coercion, threat, pressure or inducement. Mere fact that accused was arrested on 19.07.2010 and made confession on 29.07.2010, does not lead to conclusion that confession was tutored. Record reflects that full opportunity was given to accused to explain circumstances in which he was making confession. Judicial Magistrate was satisfied with regard to voluntariness of confessional statement of accused. Accused in his confession before Magistrate has admitted that on 17.07.2010 he was sitting outside of his house, baby Nadia went to him, he went to a shop, baby came behind him, he purchased “papar” for baby and took her to roof of his house and removed her shalwar and abused her, baby was crying. Due to fear, he strangulated her and put dead body in a box. Then early in the morning, threw dead body in garbage of Tanzeem ground. From the evidence of the Judicial Magistrate, it appears that learned Judicial Magistrate recorded such confessional statement by observing all the legal formalities and recorded his satisfaction that it was voluntarily, nothing has been brought on the record to discard it.

35. Plea has been raised by the accused in his statement recorded under section 342 Cr.PC that complainant wanted to occupy his house. It is requirement of law that when a defence plea is raised by the accused, burden to prove it lies upon him but in this case not a single witness has been examined by the accused in his defence nor such plea has been substantiated by some documentary evidence. We believe that defence plea is afterthought and it was rightly rejected by trial Court. As regards to the contention of learned counsel that it was the case of juvenile offender and case should have been tried by a Juvenile Court, we are unable to accept such contention of the defence counsel for the reasons that plea of tender age was neither raised by the accused during investigation nor at the time of trial. On the other hand, there is evidence of Dr. Tayyab on record to establish that accused was adult of 22 years and capable to perform sexual intercourse at the time of incident, therefore, there is no substance in defence plea.

36. Since the discovery of rope and clothes of deceased was based on information furnished by the appellant by leading the police party and mashirs to Katchra Kundi, the information furnished by the appellant to the IO can be legally used against him under Article 40 of the Qanun-e-Shahadat Order, 1984 as observed by the Honourable Supreme Court of Pakistan in the case of NAZIR SHEHZAD and another versus THE STATE (2009 SCMR 1440), relevant portion is reproduced as under:

“7. We have considered and scrutinized the remaining prosecution evidence, in depth. PW.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 whereabouts 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.

37. We have reached at the conclusion that evidence led by the prosecution is reliable and trustworthy. Prosecution witnesses had no motive to falsely implicate the appellant in this case. Mere relationship of P.Ws with deceased is no basis to discard their evidence. A baby of 5 years was subjected to lust by accused and by way of strangulation was murdered in very brutal manner. As observed above, last seen evidence, the information furnished by appellant to investigation officer, his confessional statement are corroborated by medical evidence. A credible corroboration has also come on record. Chain of events has been completed to establish guilt of accused. Learned trial Court rightly came to the conclusion that the prosecution has proved its case against the appellant beyond any reasonable doubt and death penalty has been awarded to the appellant. Learned defence counsel could not point out any mitigating or extenuating circumstance to award lesser punishment. Above cited authorities, relied upon by the learned advocate for the appellant, are quite distinguishable from the facts and circumstances of the case. The Honourable Supreme Court of Pakistan in the case of Miss Najiba and another versus Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988) has observed that when in the case, involving capital punishment prosecution proves its case, Court is duty bound to impose deterrent punishment to make evil doers an example. Relevant observations are reproduced as under:

“6. It is obvious from the above cited case law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the likeminded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment, the Courts while awarding lesser punishment have to record reasons justifying the same. In the present case so far as question of sentence is concerned, both the trial Court and the High Court have failed to record reasons for awarding lesser punishment to the respondents, who committed preplanned triple murder in a very brutal and gruesome manner and buried the dead bodies in the houses, where they were killed. Till the time of disclosure of murders by the respondents themselves in their confessional statements, it was not known to anybody that they had killed three persons namely, Engineer Fahim, Mst. Kishwar Kamal alias Laila and Syed Faqir and their dead bodies had been buried in the houses, which were recovered at their instance from the places specified in the confessions, in presence of the Magistrates. Keeping in view the findings of both the Courts below that the prosecution has proved its cases against the respondents beyond any shadow of doubt, they did not deserve any leniency in sentence in premeditated cruel triple murder.”

38. 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.

JUDGE

JUDGE

Gulsher/PA