2007 PLP 808 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment dated 10-9-2005 passed by a Division Bench of High Court of Balochistan Quetta, whereby criminal appeal filed by the petitioner against the conviction and sentence of death awarded to him on two counts under section 302(b), P.P.C. and 364-A, P.P.C. with different sentences of imprisonment under sections 382 and 404, P.P.C. by a Special Court established under Anti-Terrorism Act, 1997 vide judgment, dated 13-12-2004, was dismissed.

2. The petitioner namely Ghulam Nabi along with his co-accused Ali Akbar, was tried for the charges under sections 302/364-A/382/404/411/109/34, P.P.C. for kidnapping and murder of a minor girl namely Shahzadi daughter of Mir Hassan (complainant) on 25-11-2003 in the area of Police Station Daira Murad Jamali, District Naseerabad, Balochistan. The prosecution mainly relied upon the statement of complainant Mir Hassan (P.W.1), Muhammad Rafique (P.W.2) who furnished last-seen evidence, the recovery. of dead body on the pointation of petitioner and golden ear-ring etc. of the deceased which were identified by Mir Hassan (complainant), the confession made by the accused before a Judicial Magistrate, and medical evidence. Mir Hassan (P.W.1) has stated that petitioner being nephew of his wife used to visit his house and he being a bad character was suspected by him to have abducted his daughter and on the information conveyed to him by Muhammad Rafique (P.W.2) he lodged report of abduction of her daughter. The police during the investigation on the pointation of accused, recovered dead body of the daughter of complainant as well as her golden ear-rings which were identified by the complainant. Muhammad Rafique (P.W.2) who is closely related to the family of complainant stated that prior to the occurrence he had seen the deceased in the company of petitioner and on coming to know about her disappearance, brought the above facts to the notice of Mir Hassan. Allah Rakhiay (P.W.5) and Ghulam Mustafa (P. W. 10) have witnessed recovery of dead body with its remain on the pointation of accused. Jan Muhammad (P.W.12) the Investigating Officer has corroborated the statements of all the witnesses and also deposed on the same lines. Fida Muhammad, Judicial Magistrate (P.W.7) who recorded confessional statement of the petitioner, deposed that before recording the statement of accused, he completed all legal formalities. The petitioner in his statement under section 342, Cr.P.C. denied the charge and pleaded false implication due to enmity. The learned trial Judge as well as High Court having concurrently found the petitioner guilty of the charge, convicted and sentenced him as stated above.

3. Learned counsel for the petitioner has contended that the deceased girl disappeared on 25-11-2003 whereas his dead body was recovered on 28-11-2003 and Muhammad. Rafique (P.W.2) claimed to have seen the girl with petitioner on the day of her disappearance but in absence of any evidence that deceased remained in the company of petitioner till death, the last-seen evidence would be of no evidentiary value and significance. He argued that with the exclusion of last-seen evidence from consideration, the evidence of recovery of dead body on the pointation of petitioner and the golden car-rings of the deceased may not be sufficient to prove the charge of murder, whereas the judicial confession of the accused was manipulated by the Investigating Officer by way of torture and putting undue pressure on the petitioner (luring the physical remand, therefore, judicial confession was also of no evidentiary value. He added that the judicial confession of the petitioner was recorded on the last clay of his physical remand with police which would seriously reflect upon its voluntariness to have any legal sanctity and value. The learned counsel argued that in absence of direct evidence it was not possible to ascertain that who and under what circumstances committed the murder of deceased, therefore, even in case of holding the petitioner guilty, the facts and circumstances of the case may not justify the capital punishment rather sentence of' life imprisonment would be sufficient to meet the ends of justice.

4. Learned Additional Advocate-General Balochistan appearing on behalf of the State, argued that nothing was brought on record to suggest the false implication or substitution and the evidence brought on record to prove the charge was quite natural and independent.

5. This is an unseen occurrence and in addition to the confessional statement of the petitioner, prosecution has also relied upon circumstantial evidence of last-seen and recoveries of dead body and golden ear-rings etc. of the deceased at the pointation of the petitioner. The witnesses of last-seen evidence and the recoveries were quite independent and confidence inspiring and learned counsel has not been able to point out any material discrepancy or contradiction in the prosecution evidence to suggest any doubt qua the credibility of the evidence of recovery of dead body and other articles belonging to the deceased at the pointation of the petitioner.

6. We, with the help of learned counsel for the petitioner and learned Additional Advocate-General, Balochistan have gone through the record and examined the statement of Muhammad Rafique (P.W.2), who has lastly seen the deceased alive in the company of the petitioner and Mir Hassan (complainant) who narrated the facts in detail but have not been able to find out any discrepancy in the statement of these witnesses indicating a slight doubt qua the truthfulness of their testimony. The petitioner being nephew of the wife of complainant had free access to his house and was not a stranger, therefore, he must have close acquaintance with the deceased and inmates of the house and clue to close relationship with the family, he was not probably suspected to have committed a mischievous act and thus, the minor unhesitantly, went with him to the bazar and in the circumstances the last-seen evidence was rightly found quite independent and confidence-inspiring. The witness of last-seen evidence has no enmity, personal grudge or malice against the petitioner to make a false statement and similarly, the witnesses of the recovery of dead body an ear-rings of the deceased, were entirely independent and have no reason to make a false statement against the petitioner in a case of capital punishment. The Magistrate who recorded the confessional statement of the petitioner has categorically stated that he recorded the statement of the accused after completion of all formalities and providing sufficient time to him to think over the matter before making the confession. The perusal of statement of the witnesses together with the confessional statement of the petitioner would suggest that there was no element of coercion, undue influence or pressure rather the record shows that confession was made voluntarily- and was truthful. The mere fact that confessional statement was made on the last day of physical remand would not be indicative of any doubt regarding its voluntariness to exclude it from consideration, instead it would ensure its voluntariness because petitioner was aware of the fact that he would not be again given in the custody of police and was being sent to the judicial custody.

7. We having heard the learned counsel for the parties and perused the record with their assistance have not been able to find out any material discrepancy or contradiction in the prosecution evidence or any misreading or non-reading of the evidence by the trial Court or the High Court in coining to the conclusion regarding guilt of the petitioner. We having considered the question of sentence have found that a girl of tender age was murdered by the petitioner by way of suffocation, in a brutal manner, therefore, he would not deserve any leniency in the matter of sentence.

8. In the light of foregoing reasons we do not find any substance in this petition and the same is accordingly dismissed. Leave refused. S.M.B./G-31/SC Leave refused.