1995 PLP 1615 (SCMR)

The post‑mortem on the dead bodies was not conducted by the Medical Officer as their relatives resisted, after noting their injuries on direction of Magistrate handed over their dead bodies to their relatives:

3. On 2nd of April, 1989, appellants Muhammad Ismail and Ghulam Ghous were arrested by police. On 4th of April 1989, the appellants under the supervision of P.W.3 Muhammad Aslam, Magistrate, were put to identification parade to P.W.1 Hazrat Ali. The witness identified both the appellants for shaving committed murders of his father, mother and brother. On 9th of April, 1989, appellant Muhammad Ismail gave judicial confession before Magistrate, Naveed Ahmed. P.W.7.

4. After completion of the investigation both the appellants were sent for trial before the Court.

5. On 14th of November 1989 charge for offence under section 302/34, P.P.C. was framed against the appellants who did not plead guilty to it and claimed trial.

6. To prove the charge prosecution examined:‑‑ P.W.1 Hazrat Ali, son of deceased Syed Ali, Mst. Bibi Fatima and brother of deceased Nazar Ali, He is the only eye‑witness of the incident. Under the supervision of Magistrate, he identified both the appellants for having committed murders of his father, mother and brother. In cross‑examination he first admitted that faces of accused were muffled but later clarified that after killing his brother they opened their faces and he identified them correctly. He identified them in Court also. P.W.2 Sangzai. He is brother of Mst. Bibi Fatima. He acted as attesting witness of recoveries made from the place of incident. He is a formal witness. P.W.3 Muhammad Aslam. E.A.C‑II,/M.F.C. Quetta. On 4th of April, 1989, he arranged identification parade. He stated that during the parade P.W.1 Hazrat Ali twice correctly identified the appellants to be murderers of his father, mother and brother. P.W.4 Muhammad Yaqoob, Inspector /S.H.O. On 11‑3‑1989 he was S.H.O. Police Station, Sariab. On telephonic message he went to the site, saw dead body of Mst. Bibi Fatima lying in the field. Dead bodies of Syed Ali and Nazar Ali lying in the house. He saw 7/8 years boy Hazrat Ali P.W.1, and a small girl there. He made enquiry from Hazrat Ali and sent Murasala for recording F.I.R. in 154, Cr.P.C. Book at the Police Station. He entrusted investigation of the case to S.I. Behram Khan. P.W.5 Muhammad Akram, S.I. He accompanied S.H.O. Muhammad Yaqoob to the place of incident and acted attesting witness of recoveries etc. He is a formal witness. P.W.6 Dr. Abdul Sattar. On 12‑3‑1989 he inspected the injuries of the dead bodies of the three deceased. The description of which has already been given hereinabove. P W 7 Naveed Ahmed. Magistrate. After observing all formalities he recorded 164, Cr.P.C. statement of appellant Muhammad Ismail on 9th of April, 1989. P .W.8 Behram Khan. S.I. On 11‑3‑1989 he accompanied S.H.O. Muhammad Yaqoob to the place of incident. He was entrusted with the investigation of the case. On 2‑4‑1989 he arrested both the appellants. On 4‑4‑1989 he requested the Magistrate to arrange identification parade. On 9‑4‑1989 he produced appellant Muhammad Ismail for recording his confessional statement before Magistrate. He challaned the appellants before the Court for trial. 7.In their statements recorded under sections 342 and 340(2), Cr.P.C. the appellants denied the allegation and convassed innocence.

8. Vide judgment dated 30th of November, 1991, the learned Sessions Judge (Ad hoc), Quetta, found both the appellants guilty for offence under section 302/34, P.P.C. and awarded them sentence of death.

9. The appellants filed appeal before the High Court of Balochistan, Quetta. The learned Sessions Judge (Ad hoc) also sent record for confirmation of the death sentences awarded to the appellants.

10. On 16th of March, 1992, a Division Bench of the High Court of Balochistan, Quetta, dismissed the appeals filed by the appellants and confirmed their death sentences.

11. The appellants approached this Court for leave to appeal and the same was granted on 12th of June, 1993 with observations:‑‑ "During the investigation both the accused/petitioners were apprehended. Muhammad Ismail made a confessional statement before a Magistrate giving a different motive for the occurrence. In a regular identification parade arranged inside the police station by the Magistrate, the complainant correctly picked up the two accused. Conviction of the accused was based on the statement of Hazrat Ali, retracted confessional statement of Muhammad Ismail and identity of the accused before the Magistrate in regular identification parade. Leave is sought for against the judgment of the High Court on the ground that it was a night occurrence, the confession is retracted and not in conformity with the statement of Hazrat Ali and the identification parade is highly doubtful. Leave is granted to consider the contention of the learned counsel in the light of the facts of the present case."

12. We have heard Mr. Nasir Saeed Sheikh, Advocate Supreme Court, for the appellants and Raja Abdul Ghafoor, Advocate Supreme Court, for the State.

13. Mr. Nasir Saeed ‑Sheikh, the learned counsel for the appellants vehemently contended that incident had taken place during dark hours of night; it was not possible for P.W.1 Hazrat Ali, who is a boy of 7/8 years, to have identified the appellants. Besides, in his cross‑examination the witness has admitted that faces of the assailants were muffled at that time. Thus identification of the appellants under the supervision of Magistrate by Hazrat Ali loses its value and no reliance can be based thereon. Appellant Muhammad Ismail has retracted the confession. It was recorded after 7 days. His womenfolk and children were detained by police. The confession thus is neither voluntary nor true. He reiterated that the trial as well as appellate Court has not properly evaluated the evidence of the prosecution and the stand taken by the appellants. Reliance was placed on cases reported in :‑‑ (i) PLD 1995 SC 1. (ii) 1968 SCMR 852. (relied by both the learned counsel)

14. The learned counsel for the State strenuously stressed that prosecution has proved its case beyond reasonable doubt hence conviction and sentence of both the appellants be maintained. Reliance was placed on cases reported in:‑‑ (i) 1971 SCMR 273. (ii) 1968 SCMR 852. (relied by both the learned counsel).

15. The record reveals that before recording the statement of Hazrat Ali the trial Court had put certain questions to him to test his knowledge and understanding. By the replies of the boy the learned Judge was satisfied that the boy was matured enough to understand the ordinary dealings of the day and the nature of the trial and function of the Court. In his deposition before the Court he has stated that the appellants had visited their house earlier before the incident. In cross‑examination he has clarified that "during the night of the incident it was all done in the electric light". The objection of the learned counsel that it was dark night and identification was not possible is repelled.

16. Regarding muffled faces of the appellants it may be observed that during cross‑examination the witness has admitted that faces of the appellants were muffled. Later on re‑examination he has explained that after killing his brother, they unmuffled their faces and he saw them.

17. Witness had clearly seen the faces of the appellants to identify them. The witness further in his statement has stated that in identification parade he identified the appellants thrice. Besides, he also identified the appellants in the Court to be killers of his father, mother and brother. His evidence inspires confidence. The learned trial Court as well as the High Court have properly assessed and appreciated his evidence and relied upon it. It is neither case of misreading nor that of non‑reading. We do not see any reason to take a different view than that taken by the two Courts. It may further be observed that evidence of child witness possessing sufficient understanding can be believed and relied upon for conviction. See 1968 SCMR

852. This authority was relied upon by the High Court. Besides, the High Court relied upon cases reported in 1969 SCMR 79 and 1971 SCMR 273, wherein this Court has held that conviction can be based on evidence of solitary witness. 18'. Then comes the confession of appellant Muhammad Ismail. Delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. Indeed, the learned Magistrate after observing formalities recorded his confession and certified that it was true and voluntary. In his confession the appellant has advanced different motive for committing murders.. But undisputedly he has admitted that he alongwith Ghous Muhammad had committed the triple .murders. The details given by the appellant in confession establishes that it is not only true but voluntary one also. The learned trial Court thus has rightly treated as evidence against the appellants. The High Court has offered its view that under Article of Qanun‑e Shahadat Order it can be used as evidence against Muhammad Ismail and as circumstantial evidence against Ghulam Ghous. The learned trial Court and the High Court has correctly relied upon the confession. To us also it appears to be true and voluntary one. The ocular version of. Hazrat Ali and confession of the appellant Muhammad Ismail is sufficient to prove charge against the appellants. Besides, there is concurrent findings of the facts against the appellants. We do not see any reason to interfere with it.

19. There being no merit in the appeal; appeal is dismissed accordingly. N.H.Q./M‑3083/S Appeal dismissed.