2017 PLP 147 (YLRN)

QALANDAR ALI KHAN, J.

This appeal by Shakeel Khan, appellant, is directed against the impugned judgment of learned Additional Sessions Judge-II, Haripur dated 26.09.2012, whereby, he was convicted for the Qatl-i-Amd of deceased Arsalan alias Nomi by throttling and awarded the sentence of death under section 302(b) of Pakistan Penal Code. The appellant was further sentenced to pay compensation to the tune of Rs.200,000/- or in default to suffer imprisonment for six months. The entire amount of compensation, if realized, was to be paid to the legal heirs of deceased in terms of section 544-A of the Cr.P.C. A reference for confirmation or otherwise of the death sentence in terms of section 374 Cr.P.C. was forwarded to this Court; and benefit of section 382-B of the Cr.P.C. was extended to the appellant.

2. Muhammad Sajjad, complainant, reported to Aurangzeb Khan SI Police Post Pind Muneem on the spot at 2030 hours on 10.11.2009 that his son Muhammad Arsalan aged 9/10 years and a student of 4th class in the Government Primary School, Pind Gujran who had left for the school at 0800 hours, did not return to the school after he was sent by his teacher Mukhtiar Shah for fetching eggs at 0830 hours. The complainant stated that he was informed about disappearance of his son by a boy namely Amad son of Liaqat at 1030 hours in his grocery shop on the direction of the said teacher Mukhtiar Shah. On the receipt of the information, he along with his family members and the said Amad went to the school and inquired about his son from Mukhtiar Shah teacher who narrated the same story, whereafter, they searched for his missing son and when failed to trace Muhammad Arsalan, the complainant lodged report about disappearance of his son at about 5.00 PM in Police Post Pind Muneem and also continued search for his missing son and was informed at about 8.00 PM by Abdur Rashid son of Mir Afzal about the dead body of his son lying in the fields of Malik George Zaman. The complainant rushed to the said place and found the dead body of his son bearing signs of strangulation on his neck. The complainant stated that he had no enmity with anyone and would charge the person(s) responsible for the commission of the offence after his satisfaction. On the report of the complainant, the case was registered under section 302, P.P.C. vide FIR No.437 dated 10.11.2009 in Police Station Khan Pur, Haripur.

3. The postmortem examination of deceased Muhammad Arsalan on 11.11.2009 confirmed death by ligature, and presence of thumb and finger marks on the neck of the deceased, and the external appearance of the deceased also showed compression on the right side of the neck below right ear looking thumb impression with compression on the left side of the neck below left ear also looking finger impression besides struggle marks on the neck on left side, and cervical vertebrae was found dislocated (scalp, skull and vertebrae). Larynx and trachea were also found injured. In the opinion of the Medical Officer, congestion of brain due to stoppage of blood by ligature and throttling caused in anoxia to brain and stoppage of blood supply to lungs and heart caused death. The probable time between death and postmortem was recorded in the P.M report as 6-24 hours. The personal search of the deceased by the I.O. led to the recovery of a currency note of Rs.10/-. The appellant was arrested by the I.O on 13.11.2009 and on the following day i.e. 14.11.2009, he recorded his confessional statement wherein he confessed commission of the offence of Qatl-i-Amd of Arsalan alias Nomi by throttling him with his hands. The appellant also narrated the facts of the deceased coming to his shop for fetching eggs, and his committing Qatl-i-Amd of the deceased because of his business rivalry with the complainant/father of the deceased and threats to him by the latter. The complainant also charged the appellant for the Qatl-i-Amd of his son Muhammad Arsalan alias Nomi for the same reasons as narrated by the appellant in his confessional statement, in his statement under section 164, Cr.P.C. recorded on 17.11.2009. The statement of Muhammad Riaz PW was also recorded under section 164 Cr.P.C., on the same date i.e. 17.11.2009, wherein, he deposed about the pointation of the scene of occurrence by the appellant and recovery of a rope on his pointation from the spot. The I.O also prepared the pointation memo, and after recording statements of the P.Ws and completion of investigation, complete challan was submitted in the case on 20.11.2009.

4. The trial Court framed charge against the appellant under section 302, P.P.C., to which he pleaded not guilty and claimed trial. In support of its case, the prosecution produced as many as sixteen P.Ws, including important witnesses like Shah Hussain, Civil Judge/Judicial Magistrate (PW-4), who recorded the confessional statement of the appellant; Aurangzeb Khan Additional SHO (PW-5), scribe of the Murasila (Ex.PW 5/1); Dr. Sajawal Khan SMO (PW-8), Muhammad Riaz (PW-10); Syed Mukhtiar Hussain Shah teacher (PW-11); Muhammad Sajjad complainant and father of the deceased (PW-12), Amad Ali (PW-13); Abdur Rashid (PW-14) and Muhammad Afzal Khan SI/I.O (PW-16). After the prosecution closed its evidence, statement of the accused was recorded under section 342, Cr.P.C., wherein, he refuted the allegations of the prosecution against him, but declined to be examined on oath under section 340(2), Cr.P.C. or produce defence evidence.

5. On conclusion of trial, and after hearing arguments of learned SPP assisted by the learned counsel for the complainant and learned defence counsel, the learned trial Court/Additional Sessions Judge-II, Haripur, found the appellant guilty of the commission of the offence and while convicting him for Qatl-i-Amd of the deceased, the appellant was awarded the sentence of death and was also held liable to pay compensation to the tune of Rs.200,000/- to the legal heirs of the deceased or in default thereof to suffer imprisonment for six months, vide impugned judgment dated 26.09.2012; hence the instant appeal and Murder Reference forwarded by the learned trial Court.

6. Arguments of learned counsel for the appellant, and learned Additional AG assisted by learned counsel for the complainant heard, and record perused.

7. In this case, an innocent student of 4th class, aged 9/10 years was brutally and mercilessly killed by throttling only because his father had business rivalry with the appellant who had lately opened a grocery shop and was facing threats from the father of the deceased. In the FIR, the complainant and father of the deceased charged no one for the commission of the offence, as, according to him, he was not having enmity with anyone to suspect him for the commission of the offence; and it was only after the disclosures made by the appellant in his confessional statement before the Magistrate on 14.11.2009 that the complainant also charged the appellant for the commission of the offence. The confession of the appellant also enabled the I.O. to collect other corroborative evidence and recording statements of the witnesses which connected the appellant with the commission of the offence. Besides, the postmortem report, showing cause of death as ligature and throttling, recovery of rope on the pointation of the appellant further augmented case of the prosecution against the appellant.

8. Mr. Fazal-i-Haq Abbasi, Advocate, learned counsel for the appellant argued that the appellant is not charged in the FIR nor there is ocular account of the occurrence and that the conviction of the appellant is solely based on his confession after the appellant had already remained in illegal confinement and in the custody of the police for two days before recording his statement on 14.11.2009, though, shown arrested on record on 13.11.2009. The learned counsel pointed out that even in his statement under section 342, Cr.P.C., the appellant stated that in fact the local police took him along with his brother and father on 11.11.2009 and kept him in illegal custody and that the confession was result of pressure, undue influence and torture. The learned counsel also referred to the P.M. report and the confessional statement of the appellant showing strangulation of the deceased with both hands by the appellant, which create doubt about use of rope for the purpose and would also cast doubt on the recovery of the rope as an incriminating piece of evidence against the appellant. The learned counsel vehemently argued that in the circumstances of the instant case confession alone was not sufficient to bring home charge against the appellant. In support of his contention, the learned counsel referred to 2009 SCMR 4, PLD 2012 Peshawar 22, 1993 SCMR 1822, 2015 PCr.LJ 735 (Peshawar), 1980 SCMR 889, 2010 SCMR 637, 2001 PCr.LJ 1300 (Karachi), 1995 SCMR 1793 and 1996 PCr.LJ 546.

9. Mr. Muhammad Naeem Abbasi, learned Additional Advocate General assisted by Mr. Abdur Razaq Chughtai, Advocate, counsel for the complainant, on the other hand, submitted that there was no motive for false implication of the appellant on the part of the complainant, as, had the complainant any predisposition against the appellant there was nothing to stop him from charging the appellant in the first instance. They pointed out that it was only after the appellant recorded a voluntary confession before the Judicial Magistrate that true facts came to the light implicating the appellant for the commission of the offence, which also received corroboration from the medical and other circumstantial evidence. They maintained that what to speak of weakness of the motive, even absence of motive could not lead to acquittal of the appellant if charge was proved on the basis of his confessional statement receiving full corroboration from medical and other circumstantial evidence. In support of their arguments, they placed reliance on 2011 SCMR 1026, PLD 2006 SC 30, 2003 SCMR 938, 2008 SCMR 1352, PLD 2006 SC 457, 2006 SCMR 366, 2011 PCr.LJ 844 (Peshawar), 2012 PCr.LJ 85 (Peshawar), 2011 PCr.LJ 495 (Peshawar) and 2016 YLR 487.

10. The perusal of record in the light of submissions made at the bar by learned counsel for the parties, one feels constrained to arrive at the irresistible conclusion that prosecution has been able to bring home charge against the appellant on the basis of his voluntary confession receiving corroboration from the medical and other circumstantial evidence. The voluntary nature of the confessional statement of the appellant is proved by the coherent and confidence inspiring statement of the Judicial Magistrate (PW-4), who was subjected to lengthy and searching cross-examination by the defence, but nothing detrimental to the prosecution case was brought on record from him. He, rather, belied the assertion of the defence that the appellant was subjected to torture by the police in order to extract confession from him. Needless to say that the appellant never complained about torture, pressure and undue influence by the police before his statement under section 342, Cr.P.C., nor such a complaint by his relatives is available on the record to substantiate his these allegations. These allegations, therefore, appear to be an afterthought, especially in the absence of statement on oath under section 340(2) Cr.P.C by the appellant and his failure to produce defence evidence.

11. The testimony of the Medical Officer (PW-8) indicating the use of both hands and rope for strangulation would clear ambiguity, if any, about ligature mark in the report as ante mortem i.e. prior to death. Besides, the testimony of independent and disinterested P.Ws, like Muhammad Riaz (PW-10), Syed Mukhtiar Hussain Shah Teacher (PW-11), and Amad Ali (PW-13) furnished evidence which corroborated confessional statement of the appellant as well as recovery on his pointation. Had there been any motive on the part of the complainant to falsely implicate the appellant, a single accused in the case, for the gruesome murder of his young son, he would have charged the appellant in the FIR; but his charging the appellant after the latter had himself made a confessional statement before the Judicial Magistrate therein also disclosing motive for the offence would make him a truthful and credible witness and his testimony confidence inspiring, fully supporting other incriminating evidence against the appellant.

12. As such, there is nothing forthcoming on the record to persuade one to reverse findings of the trial Court with regard to conviction of the appellant under section 302(b) of the Pakistan Penal Code on the charge of his committing Qatl-i-Amd of Muhammad Arsalan alias Nomi by throttling.

13. However, being a young boy of about 20/21 years age, together with remorse and penitence expressed by the appellant in his confessional statement, and also trivial nature of motive, should serve as a mitigating circumstance for commuting the sentence of death to life imprisonment.

14. Consequently, while upholding conviction of the appellant under section 302(b), P.P.C., the sentence of death is converted into life imprisonment on the partial acceptance of the appeal, while retaining rest of the penalty of liability of the appellant to pay compensation to the tune of Rs.200,000/- to the legal heirs of deceased or in default to suffer imprisonment for six months. The murder reference is, accordingly, answered in negative. JK/225/P Order accordingly.