2004 P Cr (PLP)

MUHAMMAD MOOSA K. LEGHARI, J.‑‑‑ This appeal is directed against the judgment, dated 23‑12‑2000 passed by the learned Judge, Anti‑Terrorism Court No.III, Karachi in Special Case No.169 of 2000 whereby he convicted the appellant under section 302(b), P.P.C. and sentenced him to suffer life imprisonment and to pay fine of Rs.1,75,

000. In case of default in payment of fine the appellant was to suffer further R.I. for 2 years. Besides, the appellant was convicted under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 6(c) of A.T.A., 1997 and sentenced to suffer R.I. for 10 years plus a fine of Rs.1,00,

000. In case of default in payment of fine, the appellant was to suffer further R.I. for one year. The appellant was, however, granted benefit under section 382‑B, Cr.P.C. and both the sentences were directed to run concurrently.

2. The version of the prosecution as per F.I.R. No. 158 of 2000 registered at Police Station Soldier Bazar under section 10(4) of Offence of Zina (E.H.O.) Ordinance, 1979 read with section 302, P.P.C. further read with section 6(c) of the A.T.A., 1997 could be summarized as follows:‑‑

3. According to the complainant Fakhruddin son of Noor Ahmed, he was residing at Al‑Kashif Arcade, Garden West Karachi alongwith his sister Haseena and her children including Baby Khajista aged about 8 years. On 8‑9‑2000 at about 11‑30 a.m. when he returned from his job, he found the room of his flat locked and that his niece Khajista was not present. On enquiry from the occupant of the adjoining room he was informed that she had gone to fetch her younger brother and, sister from the school. But when she did not return, he inquired from Chowkidar Aman Khan, the appellant, who, informed that Baby Khajista had gone outside the building at 11‑00 a.m. At about 4‑30 p.m. the school teacher accompanied by the peon of the school brought his nephew and niece from the school and informed the complainant that nobody reached the school to take the children. At 5‑00 p.m. his sister Haseena also returned from her job but Baby Khajista did not return. The complainant started searching for the girl but could not succeed with the result that he submitted an application on 9‑9‑2000 at the police station. On 17‑9‑2000 at about 11‑30 a.m. after coming out from Flat No.302, the appellant who was Chowkidar of the building informed the complainant that a bag was lying in the bath room of the said flat and that blood was also lying on the earth. Apart from that, foul smell was also coming out. The complainant informed his elder brother Nuzhat Ali and both of them alongwith the Chowkidar/appellant went to the said flat and found that a suit‑case duly locked was lying there. Foul smell was felt by them and blood on the earth was also noticed. The complainant then went, to the police station and conveyed such information to the police. On arrival the police opened the suit‑case and found therein decomposed corpse of the missing, girl, as such, the case was registered.

4. The appellant was arrested on the same day, the memo. of Vardat was prepared. However, the crime weapon and blood‑stained clothes of the appellant were recovered on the discovery of the appellant. After usual investigation, the appellant/accused was sent up to stand trial before the Anti‑Terrorism Court No.III, Karachi.

5. A formal charge was framed against the accused/appellant to which he pleaded not guilty and the trial commenced.

6. In order to prove their case the prosecution examined as many as eight witnesses including the Medical Officer, the Judicial Magistrate, the Mashirs of Vardat and recovery etc.

7. On conclusion of the prosecution evidence, statement of the accused was recorded under section 342, Cr.P.C. wherein he denied the allegations. In his statement the appellant specifically denied to have produced the crime weapon. He also denied to have made any voluntary confession. On the contrary the applicant alleged maltreatment at the hands of the police.

8. On the basis of the evidence brought before the trial Court, the learned trial Court came to the conclusion that the charges of Zina and Qatl‑e‑Amd were proved against the appellant. Consequently the appellant was convicted in the terms as stated hereinabove.

9. We have heard Mr. Salahuddin Gandapur, learned counsel for the appellant and Mr. Habib Ahmed, learned A.A.‑G. for the State.

10. It was contended by the learned counsel for the appellant that the confession was inadmissible inasmuch as that the same was got recorded as a result of maltreatment of the appellant by the police after' a considerable delay. It was next contended that the recovery, of the crime weapon was doubtful as no private person was associated as witness of the said recovery. It was vehemently contended that it was an un-witnessed incident and there was no ocular evidence. It was next contended that the offence' was not proved and that the conviction recorded for the said offence was illegal. It was argued that the judgment was against the evidence on record and that the same was not sustainable in law.

11. Conversely, the learned A.A. ‑G. supported the judgment arguing that apart from the confession, there were other pieces of evidence which were sufficient to connect the accused/appellant with the commission of the crime. It was argued that the corpse of the deceased was secured from the flat which was in the exclusive possession of the appellant. Further that recovery of crime weapon from the possession of the appellant was also established.

12. We have anxiously considered the arguments advanced at the bar and have minutely examined the evidence available on the record with the assistance of the learned counsel for the appellant and the learned A.A.‑G.

13. Admittedly, the appellant was arrested on 17‑9‑2000. He remained in police custody till 25‑9‑2000 when his confessional statement was recorded. Learned Magistrate who recorded the confession of the appellant found marks of violence on the feet, knee and other parts of the body of the appellant. Keeping in view the above position, learned trial Court was correct in observing that in such circumstances, the Magistrate should have declined' to record the confessional statement of the appellant. Apart from the fact that the appellant was tortured, his remaining in police custody for about eight days before the recording of the confessional statement were sufficient reasons to disbelieve the confession. By no stretch of imagination, such confessional statement could be termed to be voluntary. In the circumstances, this piece of evidence has to be discarded.

14. The fact that the corpse of the deceased was recovered from the bath room of Flat No.302 of the said building was never disputed by the defence. The fact that the keys of the said flat were in the possession of the appellant was also not challenged at any stage. Thus, the flat from, where the dead body of the deceased girl was recovered was in the exclusive possession of the appellant. This piece, of evidence to implicate the appellant/accused has, thus, gone unrebutted. The recovery of crime weapon viz. blood‑stained Toka (dagger) and blood‑stained clothes on the discovery of the appellant was also established. The chemical report in respect of the abovesaid articles was also in positive. Merely because the said articles were recovered in presence of the police witnesses would not be a sufficient ground to disbelieve the recovery. More particularly, when the crime weapon was recovered from the small room meant for Chowkidar/appellant. The factum that the said room was in exclusive possession of the appellant was never disputed. The crime weapon Toka/dagger was produced in the Court and the appellant was confronted with the same. Not only this but the accused/appellant also produced his own Shalwar Qamees which he was wearing at the time of commission of the crime. The clothes were also found blood‑stained and were subjected to chemical examination. The report of Chemical Examiner in. respect of crime weapon was also in positive, which lend support to the case of the prosecution. Furthermore, a small key was also secured from the pocket of the Qamees which according to the appellant, .was the key of the suit case in which the corpse of the deceased girl was dumped. The factum of l recovery of blood‑stained Toka/dagger and blood‑stained clothes were note disproved by the defence side. In the circumstances we are fully satisfied with the guilt of the appellant with regard to murder of the baby Khajista. However, the motive in the case is shrouded in mystery. The prosecution has neither set up any motive, nor the same was proved. The appellant is thus, entitled for reduction of sentence.

15. While taking into consideration the peculiar circumstances of the case, and applying the principles laid down in the case of Abdul Haq v. the State PLD 1996 SC 1; we are of the view that the case in hand falls in the category of Qatl‑e‑Amd, punishable under section 302(c), P.P.C. To arrive at the above decision we have taken note of Ali Muhammad v. Ali Muhammad PLD 1996 SC

274. Similar view was taken by the Honourable Supreme Court in Bilal Ahmad v. The State 1999 SCMR 869 and the recent case of Gul Muhammad Gondal v. Muhammad Nawaz 2002 SCMR 1188. Accordingly the conviction awarded to the appellant under section 302(b), P.P.C. needed to be altered. In the circumstances, the conviction recorded under section 302(b),. P.P.C. is altered to the one under section 302(c), P.P.C. Consequently, the appellant is convicted` under section 302(c), P.P.C. and sentenced to suffer R.I. for 10 (ten) years. The appellant shall be entitled to the benefit of section 382‑B, Cr.P.C. as already granted to him by the trial Court.

16. So far as the commission of the Zina is concerned, the prosecution has not been able to prove this offence beyond reasonable doubt for the simple reason that the vaginal slides and vaginal swabs were not sent for chemical examination. There is no other positive evidence to that effect. Consequently, we are convinced that the conviction awarded to the appellant under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 6(c) of. A.T.A., 1997 was not warranted by law. Accordingly, the said conviction is hereby set aside. With the above modification, the appeal is dismissed. These are the reasons for the short order, dated 22‑1‑2003. N.H.Q./A‑521/K Order accordingly.