2002 PLP 1247 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against judgment dated 27-12-2001 passed by learned Division Bench of Lahore High Court, Lahore, whereby the appeal preferred on behalf of petitioner has. been dismissed and judgment dated 21-6-2000 passed- by learned Special Judge, Lahore has been kept intact whereby the petitioner was convicted under section 302, P.P.C. and section 7(ii) of Anti-Terrorism Act, 1997 and sentenced to death.

2. Briefly stated the facts of the case are that the alleged incident was reported vide F.I.R. (Exh. P/A) got lodged by the father of unfortunate victim namely Kiran aged about 10 years who was allegedly done to death in a brutal and merciless manner by the petitioner. It was alleged in the F.I.R. (Exh. P/A) by the complainant Allah Rakha (P.W.4) that "his daughter Kiran alias Chanda aged ten years and son Salman aged 5-1/2 years were studying tuition from Amjad tutor who for the last about three years was residing in a rented house. The landlord of the said house was Shahid Javed. Kiran and Salman went to the house of Amjad tutor for the said purpose. At about Maghrib prayer time, Salman his son told him while-raising hue and cry that Amjad had killed Kiran by infliciting hatchet blows. Complainant alongwith Riaz and Saeed Ahmad Akhtar rushed to the spot and saw that Kiran had been brutally murdered. Her right hand, fingers and neck had been amputated. She was besmeared with blood. Complainant and abovesaid witnesses saw Amjad while levanting from the spot alongwith weapon of offence". The petitioner was arrested and after completion of investigation sent up for trial. In order to substantiate the accusation, the prosecution produced Muhamamd Azam S.-I./S.H.O. (P.W.1), Shaukat Ali Constable (P.W.2), Ijaz Ali Constable (P.W.3), Allah Rakha (P.W.4), Muhammad Riaz (P.W.5), Syed Nisar Haider Jaffari (P,W.6), Muhammad Amin (P,W.7), Mukhtar Ali, Head Constable (P.W.B), Munawar Hussain Constable (P.W.9), Prof. Iqbal Hussain (P.W.10), Dr. Naheed Zaman, W,M.0, (P,W.11), Muhammad Riaz (P.W.12), Muhammad Yaqoob, S.-I. (P.W.13) and Salman son of Allah Rakha (P.W.14). The reports of Chemical Examiner (Exh. PM and Exh. PN) and Serologist (Exh. PK and Exh,PL) were also brought on record,

3. The statement of accused was got recorded under section 342, Cr.P.C. who professed innocence and denied the authenticity of all the incriminating evidence with the plea that he was got involved in a false case on the basis of suspicion. He did- not prefer to get his statement recorded on oath under section 340(2), Cr.P.C. No defence witness whatsoever was produced. The learned trial Court after conclusion of trial convicted the petitioner under section 302, P.P.C. and section 7(ii) of Anti- Terrorism Act, 1997 and sentenced him to death. The appeal preferred on behalf of petitioner was rejected vide judgment impugned, hence this petition. 4.. It is mainly contended by Mr. Rab Nawaz Khan Niazi, learned Advocate Supreme Court on behalf of petitioner that no conviction could have been awarded under section 302, P.P.C. as the prosecution failed miserably to substantiate accusation by producing cogent and concrete evidence. It is urged with vehemence that the statement of Salman son of Allah Rakha (P.W.14) being a child witness should have been discarded as he was not present at the spot and the alleged occurrence was never witnessed by anyone. It is pointed out that the statement of complainant, namely, Allah Rakha (P.W.4) could not have been relied upon being an interested witness without corroboration which is lacking in this case. It is also contended that it is not clear under which clause of section 302, P.P.C. the conviction has been awarded and that section 302 (a), P.P.C. cannot be made applicable in view of the peculiar circumstances of the case.

5. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment dated 21-6-2000 passed by the learned Special Court and the judgment impugned. The entire evidence has been evaluated with care and caution. We have not been persuaded to agree with the prime contention of Mr. Rab Nawaz Khan Niazi, learned Advocate Supreme Court who appeared on behalf of petitioner that the statement of Salman (P.W.14)- should have been discarded being a child witness coupled with the fact that he was not present at the spot for the reason that the said plea has been raised in oblivion of the reality as record is indicative of the fact that Salman (P.W.14) used to accompany his sister Kiran to the house of petitioner being their tutor as such the question of his absence from the place of occurrence does not arise by whom information of unfortunate incident was communicated to his father. A careful scrutiny of his statement would reveal that it is not only worthy of credence and confidence-inspiring but consistent and straightforward having the ring of truth and innocence. Salman (P.W.14) stood firm to the test of cross-examination in spite of various searching questions and nothing advantageous could be elicited. The learned trial Court has put various questions and on the basis of answers given by Salman (P.W.14) he was found intelligent enough to portrait the facts of event and accordingly his statement was recorded. In such view of the matter we are of the considered view that the statement of Salman (P.W.14) has rightly been considered and relied upon by the learned trial Court as well, as learned Division Bench of the High Court. We have absolutely no hesitation in our mind that on the basis of such statement conviction could safely be awarded. In this .regard we are fortified by the dictum laid down in case titled Muhammad Ajmal v. The State (1997 SCMR 1595). It is worth mentioning here at this juncture that the statement of Salman (P.W. 14) has been corroborated by circumstantial evidence, medical evidence, recovery of hatchet (P.5) found with blood-stained duly supported by the report of Serologist (Exh. PL). Besides that extra-judicial confession was made by the petitioner before Muhammad Amin (P.W.7) which cannot be ignored. We are conscious of the fact that it is a weak type of evidence but cannot be kept out of consideration if corroborated by other worthy of credence evidence which is available as mentioned and discussed hereinabove. If any authority is needed reference can be made to Sarfraz Khan v. The State (1996 SCMR 188). There is no cavil with the proposition that extra-judicial confession must be proved by a very high and unimpeachable character and in our considered view the prosecution has proved it by producing confidence-inspiring evidence.

6. In view of what has been stated above in our considered opinion the prosecution has proved its case by producing worthy of credence evidence which cannot be brushed aside on flimsy.grounds as agitated by the learned counsel on behalf of petitioner. The eye account is not only consistent but finds corroboration from recovery and medical evidence. There is no reason whatsoever to discard the statement of Salman (P.W.14) who is an eye witness and moreso, the petitioner was also found running from the place of occurrence and seen by Allah Rakha (P.W.4), Muhammad Riaz (P.W.5) and Syed Nisar Haider Jaffari (P. W .6) who have no animus or malice whatsoever against the petitioner and thus their statements cannot be discarded. We are conscious of the fact that the motive is missing but it hardly affects the overwhelming incriminating evidence on the basis whereof the accusation has been substantiated by the prosecution. It is an admitted feature of the case that conviction and sentence has been awarded under section 302, P.P.C. without mentioning the relevant clause of the said section. The contention of learned counsel that conviction and sentence could not have been awarded under section 302 (a), P.P.C. seems convincing in view of the provisions as contained in section 304, P.P.C. There is no denying the fact that "Tazkiyah al-Shuhood may be undertaken at the end of the evidence at least in criminal cases. It can be done even at the appellate stage or by remanding case if the facts and circumstances of the case so warrant. If a party to the case assails the credibility of a witness then Tazkiyah-al-Shuhood is necessary in every case otherwise. It is a must only in Hudood and Qisas cases whether any party objects or not". (Mumtaz Ahmad v. The State 1991 PSC 450 FSC). In such view of the matter section 302, P.P.C. as mentioned in the impugned judgment whereby death sentence was awarded is substituted to that of section 302(b), P.P.C. and death sentence shall remain intact.

7. In the light of foregoing discussion and the barbaric, callous and merciless manner in which a young girl was murdered and overwhelming incriminating evidence as discussed herein above the petition being devoid of merit is dismissed and leave declined. N.H.Q./A-198/S Leave refused.