HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.233 of 2006

Confirmation Case No.08 of 2006

Present:      Sajjad Ali Shah, J.

                                    Naimatullah Phulpoto, J.

 

Appellant:                       Dr. Muhammad Saleem son of Muhammad Siddique through Mr. Amir Mansoob Qureshi, Advocate

 

Respondent:                   The State through Ms. Rahat Ashan, Deputy Prosecutor General Sindh.

 

Complainant:                  Muhammad Younus through Mr. Shahadat Awan, Advocate.

 

Date of hearing:              30.03.2015

 

Date of Judgment:          16.04.2015

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JUDGMENT

 

Naimatullah Phulpoto, J.--   Through this Criminal Appeal, judgment dated 27.04.2006 passed by learned 1st Additional Sessions Judge, Karachi West in Sessions Case No.411 of 1997, arising out of Crime No.222 of 1996 under section 302 PPC of P.S. TPX, Karachi has been challenged by appellant Dr. Muhammad Saleem son of Muhammad Siddique, whereby the appellant was convicted under section 302 PPC and sentenced to death.

 

2.       Brief facts of the prosecution case as disclosed in the FIR are that on 23.12.1996 complainant Muhammad Younus lodged his report, alleging therein that deceased Shakeela 18-19 years of age was his sister. About 4 years prior to the incident, deceased Shakeela was engaged with his maternal cousin       Dr. Saleem (accused). It is alleged that accused Saleem used to visit the house of the complainant. He was running clinic at Muhammadi Colony, Lyari, Karachi. On 03.12.1996 at 12:00 noon complainant was present in his house, his sister Shakeela and mother Hajra went to the house of Fareeda, sister of deceased. Thereafter, it is alleged that deceased Shakeela went from there with accused Saleem for outing. After two days Saleem returned back alone. Complainant inquired from accused about his sister Shakeela, to which he replied that she would return back after one day. Thereafter, accused Saleem went to some unknown place. Complainant made search for Saleem and his sister Shakeela. It is alleged that missing/disappearance of Shakeela was reported at P.S. Kalri, Karachi. It is further alleged in the FIR that complainant came to know that accused (appellant) Dr. Saleem had developed relations with one lady doctor, namely, Uzma and accused wanted to marry her and made planning to eliminate/remove Shakeela from his way by killing her. Complainant suspected that accused Saleem has committed murder of Shakeela. It is alleged that after murder of Shakeela, she was buried by Dr. Saleem in his clinic. Thereafter, dead body was recovered from the clinic of accused Saleem. In the end of FIR complainant has stated that accused Saleem has committed murder of his sister Shakeela along with his servants and buried her dead body in his clinic. F.I.R. was recorded on 23.12.1996 vide Crime No.222/1996, under sections 302/34 Qisas and Diyat Ordinance at Police Station T.P.X.

 

3.       After registration of F.I.R., investigation was entrusted to Syed Abid Hussain Shah, Additional SHO of P.S. TPX. He visited the clinic of        Dr. Saleem, situated at Muhammadi Colony, Lyari Medicare Centre in presence of mashirs, namely, Muhammad Usman and Haji Ishaq and prepared mashirnama of wardat. Investigation officer secured one blood stained chadder/sheet, bloodstained earth, soap and pickaxe (belcha) in presence of mashirs and sealed the same, for sending to the Chemical Examiner. Investigation officer recorded statements of PWs under section 161 Cr.PC. He got recorded 164 Cr.PC statement of PW Abdul Razzak before the Civil Judge and Judicial Magistrate, in absence of accused Saleem as he was absconder. After usual investigation challan was submitted against accused Saleem under section 512 Cr.PC. ASI Ghazanfar Ali on spy information arrested accused Dr. Saleem at Sialkot Hotel, Karachi on 07.02.2002 in presence of mashirs and produced him before the trial Court.

 

4.       Charge against appellant Dr. Muhammad Saleem was framed by learned 1st Additinoal Sessions Judge, Karachi West under section 302 PPC at Ex-2. To the charge, accused pleaded not guilty and claimed to be tried.

 

5.       In order to substantiate the charge, prosecution has examined the following witnesses:

1.                  PW-1 Usman at Ex.4

2.                  PW-2 Haji Ishaq at Ex-5

3.                  PW-3 Abdul Razzak at Ex.6

4.                  PW-4 Abdul Wahid at Ex.7

5.                  PW-5 Abdul Aziz at Ex.8.

6.                  PW-6 Muhammad Iqbal at Ex-9.

7.                  PW-7 Hajra at Ex-10.

8.                  PW-8 Khalid Ishaq at Ex-11

9.                  PW-9 Dr. Zakia Khursheed at Ex-12

10.             PW-10 ASI Imran Shah at Ex-14.

11.             PW-11 ASI Muhammad Shabbir Lodhi at Ex-15.

12.             PW-12 Inspector Syed Abid Hussain Shah at Ex.16

13.             PW-13 Ghazanfar Ali at Ex.17

14.             PW-14 Muhammad Ashraf at Ex-18.   

          Thereafter, prosecution side was closed at Ex.19.

 

6.       Statement of accused was recorded under section 342 Cr.PC in which he claimed false implication in this case and denied the commission of murder of Shakeela and raised plea that he had no clinic at Muhammadi Colony. Accused stated that PWs had deposed against him as they are related to the complainant and have political enmity with the accused. Accused did not lead any defence and declined to give statement on oath in disproof of prosecution allegations. In a question what else he has to say in his defence, he replied that he is innocent and he has been falsely implicated in this case. Accused has raised plea that his engagement with       Ms. Shakeela was broken and deceased ran away with some other person and complainant has lodged a false case against him.

 

7.       The learned 1st Additional Sessions Judge, after hearing the learned counsel for the parties and assessment of entire evidence, convicted the appellant/accused and sentenced him to death. The learned trial Court submitted Reference to this Court for confirmation or otherwise of death sentence awarded to the appellant/accused.

 

8.       The appellant/accused being aggrieved with the impugned judgment of the learned trial Court, filed the instant Criminal Appeal before this Court.

9.       We have carefully heard Mr. Aamir Mansoob Qureshi, learned counsel for the appellant, Ms. Rahat Ahsan, D.P.G. appearing on behalf of the State and Mr. Shahadat Awan, learned counsel for the complainant and have minutely perused the evidence. Case of prosecution is based upon the following pieces of evidence:

(i)      Last seen evidence.

(ii)      Medical evidence.

(iii)     Recovery of dead body from clinic of accused Dr. Saleem.

(iv)     Motive.

(v)     Unexplained abscondence.

 

10.     The sole point for determination in this appeal is, whether the appellant/accused was rightly convicted and sentenced to death?

 

11.     In order to prove unnatural death of Ms. Shakeela, prosecution has examined Dr. Zakia Khursheed at Ex.13, W.M.O., who stated that dead body of Ms. Shakeela daughter of Allana was brought to Abbasi Shaheed Hospital through ASI Muhammad Shabbier Lodhi of P.S. TPX on 23.12.1996 at 12:30 A.M. for postmortem examination and report. W.M.O. started postmortem examination at 01:30 a.m. and finished it at 02:30 a.m. On the external examination of dead body, WMO found that it was the dead body of a female aged about 20 years, she had blue colour shalwar/qameez over her body. Dead body was decomposed. There was lot of dust over the dead body. Her features were not identifiable. Abdomen was ruptured. Nothing could be detected. No visible mark of injury was seen over the dead body. Duration of death and postmortem was about 7 to 9 days. On internal examination, WMO found no bone injury on skull. Thorax was intact. WMO reserved the cause of death till receipt of Chemical Examiner’s report. In the cross-examination, WMO replied that dead body was unidentifiable. In the cross-examination, unnatural death of Shakeela has not been denied by defence. Efficiency of doctor has also not been questioned. We, therefore, hold that Shakeela died her unnatural death as described by the WMO.

 

12.     Evidence of complainant Muhammad Younus could not be recorded as he expired on 07.07.1997 before evidence, such statement of process server was recorded at Ex.3.

 

13.     PW No.3 Abdul Razzak, the employee of accused Dr. Saleem is the most important witness in this case. He has deposed that on 03.12.1996 he went to the clinic of Dr. Saleem at 05:00 P.M. at Machar Colony where Dr. Saleem gave him a prescription to purchase some medicine. He got injection from one medical store. The injection was for the use of buffalo. He gave such injection to Dr. Saleem and he injected the same to Shakeela and she went unconscious. He inquired from Dr. Saleem that it was injection for buffalo why it was injected to Shakeela, to which Dr. Saleem replied him to keep calm and asked PW Abdul Razzak to go at 07:00 P.M. or 08:00 P.M. On the same night at about 10:00 P.M. said PW was standing near his house, accused was passing, while seeing him Dr. Saleem stopped his motorcycle and inquired why he was standing there. Dr. Saleem appeared to be upset, he inquired from Dr. Saleem about Shakeela to which doctor replied that she has been taken home by her brother. On the next day, at 05:00, said employee went to the clinic on duty but doctor Saleem told him that clinic would remain closed for one week. He saw that plastic lying in the room of Dr. Saleem was removed and there was some smell in the room. He inquired from Dr. Saleem about the smell to which he replied that his nose was closed and some rat might have been died in the clinic. On the next day, when above named witness went to the clinic and saw that fresh cemented thalla has been constructed at the point of smell. Thereafter, doctor closed the clinic for 15 days. Above named witness went to home. On the same night, brother of Dr. Saleem, namely, Iqbal and said PW went to the house of Dr. Saleem where family members of Shakeela were present. They inquired from him about Shakeela, he narrated them all facts. Thereafter, facts were brought to the notice of Kalri police station and dead body was recovered by the police from the clinic of Dr. Saleem. He has stated that his statement was recorded before the Magistrate. In the cross-examination, he has denied the suggestion that he was deposing falsely at the instance of complainant Younus. He has also denied the suggestion that Dr. Saleem has no clinic. 

 

14.     PW-1 Usman has deposed that on 22.12.1996 some persons of Hingora community, namely, Younus and Allana went to him and informed him that his sister Shakeela, who was engaged with Dr. Saleem, was missing, she had gone with Dr. Saleem on 03.12.1996, then Usman went to the police station Kalri and narrated the incident. On the same day, D.S.P. Gul Hameed Sama, informed the incident to T.P.X. police station and the police reached at the clinic of Dr. Saleem.

 

15.     PW Abdul Wahid has deposed that on 03.12.1996, he was going from Mauripur to Muhammadi Colony, he saw Dr. Saleem and Shakeela, both were going to the clinic of Dr. Saleem. Thereafter, he came to know that Shakeela was missing and her whereabouts were not known. On 22.12.1996, after Isha prayers he came to know that dead body of Shakeela has been recovered from the clinic of Dr. Saleem. He went to the clinic of Dr. Saleem from where dead body was recovered by the police same was sent for postmortem examination. He has stated that clinic of Dr. Saleem was at Machar Colony. In the cross-examination, he has denied the suggestion that dead body was not recovered from the clinic of Dr. Saleem. In the cross-examination he has replied that he is not related to deceased Shakeela but only belongs to the same community. He has denied the suggestion that he had not seen lastly Shakeel with Dr. Saleem.

 

16.     PW Abdul Aziz has deposed that accused Dr. Saleem and deceased Shakeela are his paternal cousins and both were engaged and were to be married. On 03.12.1996, he came to know that Shakeela had gone to the clinic of Dr. Saleem thereafter did not return back to home. He inquired from Dr. Saleem about Shakeela, he replied that she would return back, thereafter, Dr. Saleem went underground. He was approached by the brothery people and the clinic of Dr. Saleem was searched. There was recently constructed Thalla in the clinic from where dead body of Shakeela was secured by TPX police. In the cross-examination, he has denied the suggestion that Dr. Saleem had no clinic. He has also denied the suggestion that dead body was not recovered from the clinic of Dr. Saleem.

 

17.     PW Muhammad Iqbal has also deposed that deceased Shakeela and accused Saleem are his cousins both were engaged. Deceased Shakeela visited the clinic of Dr. Saleem on 03.12.1996. After 5 to 6 days, he came to know that Shakeela did not return home. He has deposed that Dr. Saleem was inquired about the whereabouts of Shakeela to which he became upset and could not give satisfactory reply. Thereafter, Dr. Saleem absconded away. He has deposed that clinic of Dr. Saleem was checked and employee of Dr. Saleem, namely, Abdul Razzak was also interrogated. Brothery people had suspicion that Shakeela has been murdered by Dr. Saleem for the purpose to marry Dr.Uzma. He has deposed that dead body of Shakeela was found in the clinic under Thalla. In the cross-examination, he has denied the suggestion that he was deposing falsely against the accused as he is related to the deceased.

 

18.     PW Mst. Hajra is the mother of deceased Shakeela. She has deposed that on 03.12.1996 in the afternoon deceased Shakeela went with            Dr. Saleem to see his clinic but Shakeela did not return back for three days. Thereafter, Mst. Hajra and relatives of the deceased inquired from           Dr. Saleem about Shakeela, he could not give satisfactory reply and absconded away. He was approached by brothery people then he promised that Shakeela would return back soon. On 22.12.1996 Mst. Hajra came to know that dead body of Shakeela has been recovered from the clinic of Dr. Saleem. Motive behind the incident has been disclosed that Dr. Saleem had established love affairs with Dr. Uzma and Dr. Saleem had decided to remove Shakeel from his way and committed her murder and buried his dead body in his clinic. She had denied the suggestion for deposing falsely against the accused.                 

 

19.     PW Khalid Ishaq has deposed that on 03.12.1996 deceased Shakeela had gone with Dr. Saleem at his clinic thereafter she did not return. Brothery people inquired from accused Saleem about Shakeela, he could not reply properly and went underground. He has deposed that conduct of             Dr. Saleem made him suspicious. Thereafter, dead body of Shakeela was recovered from the clinic of Dr. Saleem. In the cross-examination, he has replied that employee of Dr. Saleem, namely, Abdul Razzak disclosed that Dr. Saleem has relations with Dr. Uzma. He has denied the suggestion that he has deposed falsely against the accused.

 

20.     PW Haji Ishaq has deposed that deceased Shakeela was his paternal cousin. Clinic of Dr. Saleem is situated at Machar Colony. On 03.12.1996 he had gone to the clinic of accused Dr. Saleem and inquired from him about missing/disappearance of Shakeela and Dr. Saleem told him that she would return back. Thereafter, Dr. Saleem disappeared/absconded away. Then Haji Ishaq contacted PW Abdul Razzak, employee of Dr. Saleem, who led Haji Ishaq and others to the clinic of Dr. Saleem where a fresh thalla was constructed. Situation was suspicious. He submitted application to the Kalri police station regarding commission of offence. On 22.12.1996 at 08:30 p.m. he went to the clinic of Dr. Saleem along with Kalri police station and by digging Thalla dead body wrapped in a chadder was recovered. In the meanwhile, TPX Police also reached in the clinic. Chadder was blood stained in which dead body was wrapped. Deceased was wearing light blue colour shalwar/qameez and dead body of Shakeel was decomposed. Police prepared such inquest report by making him as mashir, co-mashir was Usman. After postmortem examination, he received the dead body. He has deposed that complainant Younus went to TPX where he lodged such report of incident. On 23.12.1996, PW Haji Ishaq went to the clinic of Dr. Saleem and in his presence police secured Pickaxe (Belcha), bloodstained earth and clothes of deceased and such mashirnama was prepared. In the cross-examination, he denied the suggestion that Dr. Saleem had no clinic. He had also denied the suggestion that dead body was not recovered from the clinic of Dr. Saleem.   

 

21.     PW ASI Imam Shah had stated that on 23.12.1996 he was on mobile duty. One dead body was recovered from Machar Colony and he took the dead body to the Abbasi Shaheed Hospital in Edhi Ambulance. After postmortem examination, clothes of the deceased were handed over to him.

 

22.     PW, ASI Muhammad Shabbier Lodhi has stated that on 22.12.1996 one Usman came to police station TPX at 10:00 p.m. and informed about the smell in the clinic. Thereafter, ASI went to the clinic along with HC Imam Shah and Sajid. Clinic was opened and they saw floor was cemented. It was dug and a dead body was recovered. Then he took the dead body to the Abbasi Shaheed Hospital and prepared such mashirnama in presence of mashirs.

 

23.     PW Inspector Syed Abid Hussain Shah has deposed that on 23.12.1996 he was posted as Additional S.H.O. at Police Station TPX. He received copy of F.I.R. bearing Crime No.222/1996 under Section 302 PPC at 02:30 a.m. for investigation. Thereafter, investigation officer took complainant Younus and police party to place of wardat/Lyari Medicare Centre, situated at Machar Colony. On the pointation of the complainant in presence of the mashirs Muhammad Usman and Haji Ishaq, he prepared mashirnama of wardat. He secured from place of wardat one bloodstained chadder, one bloodstained soap, bloodstained earth and pickaxe (belcha). Thereafter, he sent all these articles alongwith clothes of the deceased to the Chemical Examiner for the report. IO recorded 161 Cr.PC statements of PWs. As accused Dr. Saleem was absconding, challan was submitted against the accused under section 512 Cr.PC. In the cross-examination, investigation officer has replied that brothers and other relatives of deceased had identified the dead body of Shakeela and her clothes.

 

24.     PW HC Ghazanfar Ali had stated that on 07.02.2003 he was on patrolling duty along with subordinate staff, when they reached near PSO Patrol Pump, Shah Waliullah Road, they received spy information that accused Dr. Saleem was present at Sialkot Hotel and he arrested accused, on the identification of one spy informer and prepared such mashirnama in presence of mashirs.

 

25.     PW, HC Muhammad Ashraf had stated that accused Dr. Saleem was arrested by ASI Ghazanfar Ali in his presence on 07.02.2002. Such mashirnama was prepared and it was signed by co-mashir Haji Jaffer. Accused Saleem was arrested from Sialkot Hotel, Karachi.

 

26.     It was entire prosecution evidence, which has been brought on record by the prosecution.

 

27.     Mr. Aamir Mansoob Qureshi, learned counsel for the appellant    Dr. Muhammad Saleem contended that prosecution case is based upon last seen evidence, which has not been materially corroborated by some other pieces of evidence. He has argued that there was delay of 20 days in lodging of F.I.R. for which no plausible explanation has been furnished. It is also argued that offence was committed within the territorial jurisdiction of P.S. TPX but the dead body was recovered by Kalri police station. Learned defence counsel further argued that compounder/employee of appellant Dr. Saleem, namely, Abdul Razzak had not produced prescription/slip of injection in evidence before the trial Court. It is also argued that dead body was not identifiable and Dr. Saleem had no clinic in the area from where dead body has been recovered. Lastly, he argued that appellant is in continuous detention for the period exceeding 13 years, which may be considered as mitigating circumstance. In support of his contentions, he has relied upon the following reported cases

1.   1995 SCMR 127 (SC) (Mehmood Ahmed & 3 others vs. The State)

2.   2002 SCMR 1797 (Subhan Khan versus the State)

3.   1981 PCr.LJ 1072 [Karachi] (Muhammad Ayub vs. The State)

4.   1981 PCr.LJ 1066 [Karachi] (Rajib vs. The State)

5.   1981 PCr.LJ 898 [Karachi] (Khamiso versus the State)

6.   1981 PCr.LJ 768 [Karachi] (Lal Bux & 4 Others Vs. The State)

7.   1981 PCr.LJ 857 [Karachi] (Guloo vs. The State)

8.   1972 SCMR 574 (Khan Zaman Vs. Kachkol & Another)

9.   1983 SCMR 1292 (Bagh Ali vs. Muhammad Anwar & Another)

10. 1989 PCr.LJ 1093 [Karachi] (Shadoo alias Zhahzado vs. The State)

11. PLD 1969 SC 469 (Bashir Ahmad vs. Muhammad Azam & 3 Others)

12. SBLR 2006 Balochistan 46 (Gul Muhammad vs. The State)

13. 2013 MLD 836 (Pesh) (Naseeb-ur-Rehman Vs. Muqarab Khan & Other)

14. 2013 YLR 806 (Lahore) (Ghulam Shabbir & Other v. The State & Others)

 

28.     Ms. Rahat Ahsan, learned Assistant Prosecutor General Sindh, assisted by Mr. Shahadat Awan, learned counsel for the complainant, argued that deceased was last seen in the company of accused/appellant and the appellant had failed to furnish the plausible explanation that at which point of time and where deceased separated from him. It is contended that conduct of accused for not joining the investigation and absconsion of accused for long period connects him in this crime. It is also argued that appellant had motive to commit murder of Shakeela as he had developed relations with one lady Dr. Uzma and wanted to marry her. It is submitted that PW Abdul Razzak, employee of the accused had brought injection and Shakeela was injected by Dr. Saleem and it was injection for animals/buffalo. It is argued that dead body was recovered from the clinic of accused Dr. Saleem and prosecution has proved all the pieces of evidence against the appel lant to connect him in this case and argued that trial Court has rightly awarded death penalty to the appellant in the circumstances of the case. In support their contentions, learned D.P.G. as well as learned counsel for the complainant have relied upon the following reported cases:

1.         2001 SCMR 177 (Riaz Hussain vs. the State)

2.         PLD 1998 SC 1445 (Mehram Ali Vs. Federation of Pakistan)

3.         1990 SCMR 1284 (Nisar Ahmed Vs. the State)

4.         2011 SCMR 670 (Gul Muhammad Vs. the State)

5.         1998 SCMR 2669 (Jaffer Ali versus the State)

 

29.     It transpires from the evidence that deceased was last seen in the company of accused (appellant) such evidence has been deposed in a categorical manner by PWs Abdul Razzak, Abdul Wahid and Mst. Hajra. PW Abdul Razzak has clearly stated that he was employee/compounder of Dr. Saleem. On 03.12.1996, he went to the clinic of Dr. Saleem at 05:00 P.M. at Machar Colony, deceased Shakeela was present there. Dr. Saleem gave him a prescription for purchasing the injection from the medical store. When injection was purchased by him it revealed to PW Abdul Razzak that it was injection for buffalo disease but according to PW Abdul Razzak said injection was injected by Dr. Saleem to Shakeela and she went unconscious. He inquired from Dr. Saleem that it was injection for buffalo why the same has been injected to Shakeela, to which accused Dr. Saleem asked him to keep quiet. One same date at 07:00 P.M. accused Saleem allowed Abdul Razzak to go home. Abdul Razzak was standing near his house at 10:00 p.m., accused Dr. Saleem passed from there on his motorcycle and inquired from Abdul Razzak as to why he was standing there. Dr. Saleem appeared to be upset he inquired from Dr. Saleem about Shakeela to which doctor replied that she has been taken home by her brother. On the next day, at 05:00 pm he went to the clinic on duty but doctor Saleem told him that clinic would remain closed for one week, when PW Abdul Razzak felt smell in the clinic and inquired from  Dr. Saleem to which accused Saleem replied that a rat might have died in the clinic. On the next day, again Abdul Razzak went to the clinic and found fresh Thalla constructed in the clinic. Dr. Saleem informed him that clinic would remain closed for 15 days. Thereafter, Abdul Razzak went to home. Brother of accused Saleem called him, at the house where family of Shakeela was present, he narrated the entire story to them and matter was reported to Kalri police and dead body of Shakeela was recovered by the police under cemented Thalla from the clinic. 164 Cr.PC statement of PW Abdul Razzak was also recorded before the Magistrate. PW Abdul Wahid had seen deceased Shakeela with Dr. Saleem on 03.12.1996 while going to his clinic. Mst. Hajira, mother of deceased has also deposed that on 03.12.1996 deceased went with Dr. Saleem to his clinic and did not return back. We are unable to disbelieve the evidence of PWs Abdul Razzak, Abdul Wahid and Mst. Hajira for the reasons that recovery of dead body from the clinic of Dr. Saleem provides full corroboration to the last seen evidence. Honourable Supreme Court of Pakistan in the case of Jafar Ali vs. The State (1998 SCMR 2669) has relied upon last seen evidence and observed as under:

“The last seen evidence provided by the prosecution in this case is so consistent and approximity of time is such that it is sufficient to connect the appellant with the offence, particularly, keeping in view the fact that the victim was an infant and could not have left the company of the accused of her own accord. It is fully established on the record that the appellant took the girl from her house and on the same evening she was found murdered after being raped and in the intervening period she was seen in the company of the appellant by Muhammad Ali and Hakim Ali P.Ws., and thereafter by Charagh Din. In these circumstances it was the liability of the appellant to give an explanation for the death of the baby, but in his statement under section 342, Cr.P.C. he not only failed to give any explanation, but flatly denied that he had taken the baby with him which is otherwise fully proved on the record.”

30.     As regards to the contention of the defence counsel that there was delay in lodging of F.I.R., it appears that deceased Shakeela went with accused Dr. Saleem to his clinic on 03.12.1996 but she did not return home. After three days of her disappearance matter was reported to police and after the recovery of the dead body F.I.R. was lodged on 23.12.1996 by her brother, namely, Muhammad Younus against accused Dr. Saleem. Relatives of deceased Shakeela had made efforts to trace out/search Shakeela and to contact Dr. Saleem as such delay in F.I.R. has been sufficiently explained. In the circumstances of the case, such delay would not be fatal to the prosecution evidence. Contention of learned counsel for the appellant that it is the case of last seen evidence and it lacks independent corroboration. Such contention is also devoid of any legal force for the reasons that PW Abdul Wahid had seen deceased Shakeela in the company of Dr. Saleem on 03.12.1996 while going to the clinic of appellant. PW Abdul Razzak, employee/compounder of accused            Dr. Saleem had also seen deceased in the clinic of appellant where she was injected buffalo injection. Evidence of these PWs is fully corroborated by the medical evidence, which is quite reliable. PW Abdul Wahid had no relationship with deceased but only he belongs to the community of deceased and accused. PW Abdul Razzak was employee/compounder of accused Dr. Saleem, he had no motive to falsely implicate accused in this case. There are no reasons for us to disbelieve their evidence. Evidence in this case is quite reliable, trustworthy and confidence inspiring. PW Abdul Razzak has also given details of entire episode, which happened in the clinic. There is sufficient evidence to connect the appellant in this case. Last seen evidence, corroborated by medical evidence, connects the accused in the commission of the offence.  It is argued by learned counsel for the appellant that dead body of Shakeela was not recovered from his clinic. There is huge evidence on the record which has established that it was the clinic of Dr. Saleem from which dead body was recovered so also incriminating articles such as pickaxe, bloodstained chadder and blood stained soap. Evidence of the prosecution witnesses on the point of recovery of the dead body from the clinic of Dr. Saleem is straightforward, no mala fide has been brought on the record against the prosecution witnesses. Inspector Syed Abid Hussain Shah has clearly stated that brothers and other relatives of deceased had identified the dead body of Shakeela and her clothes. No enmity or defect in the evidence has been pointed out. Clinic was in exclusive possession of Dr. Saleem. After commission of offence accused absconded away for long period and absconsion of the accused was deliberate and intentional so that he could not be interrogated. His conduct and unexplained long absconsion is also corroborative piece of evidence against him to connect him in this case. In the case of RIAZ HUSSAIN versus THE STATE (2001 SCMR 177), Hon’ble Supreme Court has held as under:-

 

“We are conscious of the fact that "the conduct of the accused soon after the incident plays an important part in determining the guilt of the accused, and is a corroborative piece of evidence. (Bhamra v. State, 1953 Bhopal 1: 1953 Cr.LJ 217) The conduct of a person absconding after the commission of the offence is evidence to show that he was concerned in the offence.”

 

31.     Recovery of dead body from the clinic of accused Dr. Muhammad Saleem provides full corroboration to the last seen evidence. Medical evidence also supports the prosecution case. Accused failed to furnish plausible explanation that at which point and where deceased separated from him. After commission of offence, accused absconded away for more than 6 years. Conduct of accused was relevant to connect him in this crime. Accused could not be said to have discharged the onus that lay on him in view of the provisions as contained in Article 21 of the Qanun-e-Shahadat Order, 1984, which is reproduced as under:-

 

            “21. Motive, preparation and, previous or subsequent conduct: (1) Any fact is relevant which shows or constitutes a motive 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.”

 

32.     No doubt, all the prosecution witnesses are interse related, closed to the deceased as well as accused. Mere relationship with deceased by itself is not sufficient to discard their evidence. All the prosecution witnesses had fully supported the prosecution version and defence had failed to create dent in their veracity. Prosecution witness, namely, Abdul Razzak was employee of Dr. Saleem and an independent witnesses his presence at the relevant time in clinic of accused could not be doubted. Complainant had expired before his evidence. Its’ benefit cannot be extended to accused. All the pieces of circumstantial evidence, when combined together, provided strong chain of circumstances, leading to conclusion that it was accused, who had committed murder of deceased Shakeela. The above cited authorities relied upon by the learned counsel for the appellant are distinguishable from the facts and circumstances of this case.

 

33.     The learned trial Court has rightly come to the conclusion that prosecution has proved its case against the appellant beyond any reasonable doubt and death penalty has been awarded to the appellant. There is nothing substantial in the statement of the appellant recorded under section 342 Cr.PC to discredit such confidence inspiring evidence. It is contended that appellant has been incarcerated in jail for more than 13 years and has served almost one of the legal sentences, i.e., life imprisonment. Appellant has exhausted legal remedy provided to him under the law. He would not be entitled to plead such a ground towards mitigating circumstances for lesser punishment as held by the Hon’ble Supreme Court in Crl. R.P. No.76/2008 and Crl. R. P. No.12/2001 etc. vide judgment dated 10.11.2014. Present case is one of callous, brutal murder of innocent girl in a premeditated and calculated manner. In case of Miss Najiba and another versus Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988) Honourable Supreme Court of Pakistan was pleased to observe 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.”

 

34.     For the above stated reasons we maintain the death sentence passed by the trial Court to appellant vide judgment dated 27.04.2006 and the reference made by the trial Court for confirmation of death is answered in affirmative. Consequently, appeal is dismissed. 

 

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Gulsher/PA