2006SCMR366 (PLP)

ABDUL HAMEED DOGAR, J.

Petitioner Suleman seeks leave to appeal against judgment, dated 27-4-2004 passed by a learned Division Bench of Peshawar High Court, Peshawar, whereby Criminal Jail Appeal No.835 of 2003 filed by him was dismissed and sentence of death awarded by the trial Court was maintained. Murder Reference No.44 of 2003 was also answered in affirmative.

2. Briefly, stated the facts leading to the filing of instant petition are that on 30-5-2003 minor son of Sharifullah complainant, namely, Saddam Hussain aged about 7/8 years after taking his lunch went outside the house and till evening did not come back, thus, complainant along with the co-villagers started the search of his son but in vain. On the same day the complainant reported the matter to the police about missing of his son. On 31-5-2003 police in the company of complainant while searching the boy in the village when reached near the house of Rehmat Ali, they suspected a septic tank, over which the cover was lying disorderly. The same was removed and a gunny bag of green colour was found inside the said tank. On opening the bag, the dead body of minor boy Saddam Hussain was found. A piece of cloth was wrapped around his neck. On the statement of complainant case under sections 302/ 364-A/109/34, P.P.C. was registered vide F.I.R. No.90 at Police Station Alpuri, District Shangla.

3. Petitioner was arrested on 1-6-2003 and on the following day i.e. on 2-6-2003 he made confessional statement before Syed Ali Raza, Civil Judge (P.W.7) wherein he confessed the guilt and admitted to have killed minor boy Saddam Hussain on the instigation of Dilawar Khan and Muhammad Ismail as they promised to pay him Rs.2,00,000, if anyone of among the sons of complainant is brought before them either alive or dead.

4. After usual investigation petitioner and Dilawar Khan were sent up to face trial before Judge, Anti-Terrorism Court, Malakand Division. However, accused Muhammad Ismail could not be arrested and was declared proclaimed offender.

5. The prosecution in order to prove its case examined as many as 12 witnesses.

6. In their respective statements recorded under section 342, Cr.P.C. petitioner and his co-accused Dilawar denied the case of prosecution and claimed innocence. However, they neither examined themselves on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence.

7. On conclusion of trial, petitioner was convicted under section 7(a) of the Anti-Terrorism Act, 1997 (hereinafter referred to as `the Act') and sentenced to death as Tazir whereas his co-accused Dilawar was sentenced to imprisonment for life with a fine of Rs.2,00,000 under section 109, P.P.C. read with section 7(a) of the Act or in default to suffer two years' R.I. more. It was directed that fine if realized shall be given to the legal heirs of the deceased child.

8. We have heard Sardar Muhammad Siddique Khan, learned counsel for the petitioner, Pir Liaquat Ali Khan, Additional Advocate-General, N.-W.F.P. for State and Mr. Sanaullah Zahid, learned counsel for the complainant at length and have gone through the record and proceedings of the case in minute particulars.

9. At the very outset learned counsel for the petitioner stated that petitioner confessed the guilt voluntarily on the next day of his arrest and also made extra-judicial confession before Sardar Zeb (P.W.2). Learned counsel further stated that the deposition of P.W.2 Sardar Zeb is not free from doubt as being a practising lawyer he should have been in the District Courts at Shangla at the relevant time and not at the place of occurrence. He, however, urged for reduction of the sentence as the motive is not proved which is sufficient mitigating circumstance to reduce the sentence of petitioner.

10. Learned counsel appearing for the State and complainant while supporting the impugned judgment contended that a minor boy of 7/8 years has been killed in a gruesome manner, therefore, petitioner does not deserve any leniency in the sentence.

11. We are not persuaded with the contentions of the learned counsel for the petitioner mainly for the reason that petitioner in his confessional statement before Judicial Magistrate (P.W.7) has categorically admitted to have killed the deceased on the instigation of Dilawar Khan and Muhammad Ismail as they promised to pay him Rs.2,00,000, if anyone of among the sons of complainant is brought before them either alive or dead. During investigation, the petitioner led the police at the site where he had taken the deceased to his house and then he pointed out the room of his house where he had kept the deceased on a double bed lying over there. He also got recovered a pair of shoes of deceased from the bathroom of his room. He also got recovered silver bowl having lime stains of bluish colour. The entire story has been disclosed by petitioner himself voluntarily and without any duress before P.W.7 Syed Ali Raza, Civil Judge. It is well-settled principle of law that the judicial confession alone if it is found true, convincing and made voluntarily without any duress or coercion, the same can be basis for conviction. In this case, it is on his own that petitioner confessed his guilt and there is no reason to disbelieve the same which even otherwise is corroborated by his extra-judicial confession made before P.W.2 Sardar Zeb. Learned counsel for the petitioner has neither pointed out any extenuating circumstance to reduce the sentence nor referred any misreading, non-reading or illegality in the impugned judgment.

12. For what has been discussed above, we are of the considered view that the petition being devoid of force is dismissed and leave to appeal refused. N.H.Q./S-149/SC??????????????????????????????????????????????????????????????????????????????? Leave refused.