2002 PLP 1243 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑Petitioner seeks leave to appeal against the judgment of the Lahore High Court, Lahore, dated 16‑3‑1999, passed in Criminal Appeal No.321 of 1992.

2. Briefly stated the facts of the case are that Rab Nawaz complainant (P.W.8) lodged an F.I.R. (Exh.P.U/1) with Police Station Shuja Abad, District Multan, stating therein that on 13‑2‑1984, at evening time, his son, Muhammad Nadeem (deceased) aged about seven/eight years went out to play but he did not come back. The parents tried to search the child, but in vain. Finally they got lodged the aforesaid report with the police. On 23‑2‑1984 the police recovered the dead body of Muhammad Nadeem from a canal. Musharaf Khan (P.W.5) stated that he along with Nek Muharntnad (P.W.6), at about Zoherwela, was passing through the street of Rab Nawaz complainant when they heard cries of a female child saying that someone was running in the street having thrown a letter in her house. They chased the said person who was apprehended at some distance and in the process he also received injuries. On being caught he disclosed his name as Muhammad Farooq and further stated that he had kidnapped Muhammad Nadeem minor with the help of Muhammad Siddique Jakari, Akbar Pathan and Mian Nasir, that the said Nadeem was taken to various places and that Akbar Pathan strangulated the neck of Nadeem, Siddique Jakari inflicted injury on his person, that after Nadeem's death he alongwith co‑accused threw. his dead body in the canal and that he could lead to the recovery of Koti, Topi and photo of Nadeem which were with Akbar Pathan and Siddique Jakari co accused. The petitioner confessed that he had been sending letters to Rab Nawaz for extorting money from him. A knife (P.5).was recovered from the petitioner, which was taken into possession vide memo. (Exh.P.N.) and the letter alongwith an envelop (Exh.P.O.) which consisted of eight pages. Muhammad Nawaz, Inspector (P.W.7) arrested Muhammad Farooq (petitioner) on 7‑6‑1984 when P.Ws. 5 and 6 produced him. On 9‑6‑1984 the police produced the petitioner before the Magistrate 1st Class for recording of his statement under section 164, Cr.P.C. According to the confession, the petitioner alongwith others kidnapped Muhammad Nadeem, as he had illicit relations with Mst. Farzana, the daughter of Rab Nawaz, who did not agree for her marriage with him; that on the fateful day at about 7‑30 p.m. he and co‑accused Nasir (since absconded) forcibly made Muhammad Nadeem sit on a bicycle and handed him over to Siddique Jakari, who kept the child for about four days at his house and thereafter they shifted the child to the house of Akbar Khan; that the petitioner and his brother Bashir wrote a letter to Rab Nawaz complainant to the effect that if a sum of Rs.8,000 is given to them as ransom, his child would be returned to him; that. the complainant reached the appointed place bat the petitioner and other co‑accused did not reach there. The petitioner further stated in his statement that Akbar Khan and Siddique made photographs of the child by borrowing a camera from Azam photographer, and subsequently deceased was done to death.

3. The petitioner when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication in the case. He though did not deny having appeared before the Magistrate, but took the plea that his signatures were obtained forcibly.

4. The learned trial Court vide judgment dated 30‑11‑1992 acquitted Muhatntnsd Siddique and Muhammad Halim co‑accused giving them the benefit of doubt. Nasir co‑accused was declared proclaimed offender, therefore, it was directed that his case would be tried when he will be arrested and produced before the police. Petitioner Muhammad Farooq was convicted under section 364‑A, P.P.C, and sentenced to undergo 10 years' R.I. He was further convicted under section 302, P.P.C: and sentenced to death. He was also directed to pay a fine of Rs.10,000 or in default thereof he would undergo one year R.I. He was also convicted under section 507, P.P.C. and sentenced to undergo R.I. for two years. He was further directed to pay a fine of Rs.25,000 as a compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. and in case of default to further undergo six months' R.I.

5. The learned Division Bench of the Lahore High Court vide impugned judgment dismissed the appeal of the petitioner and confirmed his death sentence. Hence, this jail petition.

6. Mr. Arshad Ali Ch. learned Advocate Supreme Court for the petitioner, inter alia, contended that the conviction of the petitioner could not be based on the judicial confession, which was not recorded in terms of Chapter 13, Volume 3 of the High Court Rules and Orders; that P.Ws.5 and 6, who allegedly apprehended the petitioner were chance witnesses, as such, they could not be relied upon; and that it was an unwitnessed occurrence and the petitioner had been implicated falsely.

7. We have considered the arguments of the learned counsel for the petitioner and minutely scanned the material available on record. The prosecution case is based on the extra‑judicial confession made before P.Ws. 5 and 6 and petitioner's apprehension by the two eye‑witnesses. The extra -judicial confession is corroborated by the confession made before the ` Magistrate and this confession is further corroborated by the letters which were produced in the Court. Admittedly, P.Ws.5 and 7, who apprehended A Farooq petitioner had no animus against him to have falsely implicated in the case of such a heinous crime. Even the complainant had no enmity or reason to falsely implicate the petitioner. Had there been any enmity or reason to falsely implicate the petitioner, there was nothing to prevent the complainant to specifically name the petitioner in the F.I.R., which was lodged after a delay of more than ten days. The confession of the petitioner itself shows that how he alongwith others kidnapped Nadeem deceased, various letters were written to the deceased's father to receive the ransom amount, the manner in which deceased was done to death, and in order to save their skins the accused had thrown the dead body in the canal, from where it was recovered. Even, during cross‑examination the defence was not able to put any dent in the prosecution evidence. Extra‑judicial confession made by the petitioner before the P.Ws. as well as the confession e trade before the Magistrate are in total conformity with the prosecution story and surrounding circumstances. Man can speak a lie but circumstances cannot speak lie.

8. On a careful and conscious examination of the facts and circumstances of the case from every angle, we are of the firm view that the High Court was perfectly justified in dismissing the appeal of the petitioner. The impugned judgment is well‑reasoned and based on the law laid down by this Court in Joygun Bibi v. The State (PLD 1960 SC (Pak.) 313), Wazir Khan v. The State (1989 SCMR 446) and The State v. Minhun alias Gul C Hassan (PLD 1964 SC 813). There is no misreading or non‑reading of evidence, or misconstruction of law. Moreover, this petition is barred by 742 days, and no plausible explanation has been given for the condonation of delay.

9. Resultantly, this jail petition fails and is hereby dismissed on merits as well as on the point of limitation. N.H.Q./M‑359/S Petition dismissed.