P L D 2007 Quetta 12 (PLP)

AKHTAR ZAMAN MALGHANI, J.

This Criminal Appeal is directed against the judgment dated 31-5-2006, whereby; the appellant was found guilty under sections 364-A/34, P.P.C. and sentenced to death. He was also found guilty under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 25 years' R.I and thirty strips, whereas, he and absconding accused Izat Bakht were found guilty under sections 7-A & 21-I read with sections 302(b)/34, P.P.0 and sentenced to death. They were also fined to Rs.1,00,000 each. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. Briefly. stated, facts of the case are that on 16-9-2004 a case under sections 364-A, P.P.C, 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 302, P.P.C. was registered in Police Station, Satellite Town, Quetta on the report of Raz Muhammad, wherein; it was alleged that on 15-9-2004 he was informed at about 1-00 p.m. by his wife about missing of their daughter, I whereupon; he started search for her and also informed Satellite Town, Police Station about her missing. It was further stated that at about 6-15 p.m. after receiving information from his father he reached at. Civil Hospital where doctors told him that Zina had been committed with Samia Bibi and after torture she was murdered whose dead body was found in a grapes orchard situated at Qambrani Road. It appears from the record that during investigation appellant was arrested and it is alleged that he confessed guilt before the police and lead them to the places from where he kidnapped the minor girl and where her body was thrown after murder. He also involved his mother and acquitted accused Dawood. According to the prosecution version on 2-10-2005 he got recorded his confessional statement, whereafter; he was sent to judicial custody and a challan was submitted.

3. On commencement of trial charge was read over to the appellant as well as Dawood (acquitted accused), to which they pleaded not guilty. Whereafter; prosecution in order to substantiate the accusation produced following witnesses:-- P.W.1 Raz Muhammad is father of deceased Samia Bibi who lodged report with the Police Station. He supported contents of his report, however; in cross-examination he stated that Dawood had no concern with the murder and throwing of dead body. P.W.2 Agha Muhammad is brother of P.W. who deposed that he was married to sister of appellant about seven months back. He further stated that after twenty or twenty five days of marriage he had a quarrel with his wife, whereupon; he slapped her. After passage of sometime of the first quarrel there was again quarrel between them which attracted his brother Raz Muhammad who slapped his wife and on the next morning appellant and his mother Izat Bakht came to their house, to whom his wife complained about beating and quarrel, whereupon; they threatened him and stated that he would pay heavy price for such beating. On the next morning his niece was abducted and after committing Zina she was murdered. In cross-examination he stated that her niece went missing on 16-9-2004 at about 11-30 a.m or 12-00 noon. He further stated that police recorded his statement on 18-9-2004. P.W.3 Wali Muhammad Is also brother of complainant who identified the bag wherein dead body of the girl was packed and thrown in the orchard as of appellant in identification parade held in supervision of Judicial Magistrate. He also produced identification parade form as Ex. P/3-A. P.W.4 Doctor Baqir Shah Medical Legal Officer examined the appellant and found him potent and able to perform sexual act. P.W.5 Ghulam Qasim Sub-Inspector deposed that on 16-9-2004 at about 2-30 or 3-00 p.m he along with Khalid Mehmood S.-I./S.H.O. reached at Qambrani Road during patrol of the area where one person informed Khalid Mehmood, S.-I. about presence of a suspected bag in the orchard of Abdul Hakeem, whereupon; they went there and saw a locked bag there wherein dead body of a minor girl aged about two and half years old was found, which was taken into possession through seizure memo Exh.P/5-A and brought to Civil Hospital. He identified the bag in the Court as Article-P/1. P.W.6 Doctor Shamim Gul Mashwani examined dead body of the minor girl. According to her the dead body was of a girl aged about 3-4 years old and at the time of examination rigors mortis were not developed. She had bloodstains on the right side of abdomen and had also received lacerated wound on the right side of her forehead which was round in shape and skin deep. She also noticed another lacerated wound skin deep and red in colour. There were two finger bulb "V" shape in front of her neck. According to her opinion death of the deceased was caused due to throttling and she was also sexually assaulted and probable time between death and post mortem was within six to twelve hours. P.W.7 Ishaq Ali S.-I. is witness to the seizure of bag, twenty seven bangles, three ear clips, one pair of Pa'zeb, one pair of chapel and one pair of shirt and trouser, which were handed over to S.-I. Ghulam Fareed by S.-I. Khalid Mehmood and taken into possession through seizure memo Exh.P/7-A. He is also witness to the disclosure allegedly made by the appellant, wherein; he admitted his guilt and stated that on 15-9-2004 at about 1-00 p.m. he took daughter of Raz Muhammad to his house and after committing Zina murdered her by throttling, whereafter; his mother put the dead body into a bag which was thrown in a grapes orchard with the help of co-accused Dawood. According to him appellant also pointed out the place where dead body of the girl was thrown. According to him appellant also pointed out the place where he committed Zina with the girl and the place from where he took away her. P.W.8 Imran Siddique, Judicial Magistrate recorded statement of the appellant on 2-10-2004, whereafter; he sent him to judicial custody. P.W.9 Abdullah Jan S.H.O. took over the investigation on 21-9-2004 and got recorded confessional statement of the appellant from Judicial Magistrate, whereafter; he prepared the challans and submitted before the Special Judge. P.W.10 Ghulam Fareed was entrusted with the investigation after registration of case who prepared inquest report of the deceased as well as site plan from where dead body was recovered. He also prepared site plan of the place from where the girl was kidnapped which he produced in the Court as Exh.P./10-C. According to him he arrested the appellant on 18-9-2004, got identified bag from Wali Muhammad and prepared disclosure and pointation memo.

4. At the end of prosecution evidence the appellant was examined under section 342, Cr.P.C. wherein he denied all the allegations. He neither opted to give statement on oath nor produced any witness in defence.

5. On conclusion of trial the learned Special Judge, Anti-Terrorism Court found the appellant guilty and sentenced him as mentioned above.

6. The learned Special Judge has also forwarded reference for confirmation of death sentence and we intend to dispose of both the matters by this common judgment.

7. We have heard the learned counsel for the appellant as well as learned counsel for the State. It may not be out of place to mention here that the father and mother of the deceased girl have submitted compromise supported by their affidavits that they had compromised with the appellant.

8. The learned counsel for the appellant vehemently contended that there was no evidence on record to implicate the appellant with the commission of offence except his so called confessional statement, which even taken into consideration in toto, no case for committing murder or kidnapping the girl was made out against the appellant. He further contended that according to the site plan both the parties were next door neighbours, therefore, question of kidnapping for the purpose of committing murder did not arise, which even otherwise was not borne out from statement of the appellant. According to statement of the appellant he brought the girl to his house on demand of her mother and at that time it was not in the knowledge of the appellant that she would be murdered. He further argued that the confessional statement was neither true nor voluntarily but contrary to medical evidence, therefore; no implicit reliance could be placed on the said statement.

9. On the other hand, the learned State counsel supported the judgment and contended that in his confessional statement the appellant admitted his guilt which was corroborated by medical evidence as well as statements of prosecution witnesses showing motive and the bag from where the dead body of the girl was recovered, owned by the appellant.

10. We have carefully considered the contentions put forth by the parties' learned counsel. It may be noted that against the conviction order passed by Special Judge Anti-Terrorism Court in respect of offence under section 10 of the' Offence of Zina (Enforcement of Hudood Ordinance, 1979 the appellant has preferred appeal before the Hon'ble Federal Shariat Court, which is pending, therefore, the learned counsel did not advance any argument to the extent of conviction recorded under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

11. According to prosecution allegations deceased girl Samia Bibi aged about 3-4 years old went missing on 15-9-2004 at about one O'clock and her body was found on the next day i.e. 16-9-2004 at about 4-00 p.m. in grapes orchard. It is further case of the prosecution that the appellant was the person who kidnapped the minor girl and after committing Zina she was murdered by his mother Izat Bakht by means of throttling, whereafter, with the help of acquitted accused Dawood the appellant thrown her dead body in an orchard. In order to substantiate the accusation the prosecution mainly relies upon confessional statement of the appellant recorded by Judicial Magistrate, wherein; he admitted to have taken away the minor girl to his house where he committed Zina with her on the instance of his mother coupled with pointation of place of occurrence as well as place from where the body was recovered by the police and evidence showing ownership of the bag of appellant. As far as; disclosure made by the appellant before the police authorities B admitting his guilt or pointation of the place of occurrence and place from where the dead body was recoveredis concerned, in our considered view it has no evidentiary value because any confession made by an accused before the police is not admissible in evidence except in the cases which fall under Article 40 of the Qanun-e-Shahadat Order, 1984. As no new fact or circumstance was discovered on the disclosure and pointation of the appellant the confession made by him before the police or pointation of the places which were already in the knowledge of police could not be used as evidence against him. In this regard we are fortified by the judgment reported in PLD 1976 SC 404 wherein it was observed as under:- "Apart from the above articles the prosecution also relied on the appellant's conduct during the investigation immediately after his arrest in that he led the police to the sand dune where the skeleton lay and pointed out the place where the deceased was done to death. This can scarcely be admitted as evidence in the case having regard to the provision of section 27 of the Evidence Act, 1872. The skeleton had already been discovered near the sand dune by Abdul Shakoor who having lodged the information had apprised the police of the discovery, and no fresh discovery was made "in consequence of the information received" from the appellant. Therefore, this part of the evidence must be excluded from consideration. So what remains of the prosecution evidence hearing on the identity of the skeleton in the evidence of the approver which by itself cannot be sufficient on the point".

12. Coming to the next piece of evidence i.e. identification of bag as being of appellant, it may be seen that P.W.3 Wall. Muhammad who identified the bag is brother of complainant Raz Muhammad and according to him on one occasion the said bag was handed over to him by the appellant for repair, therefore,, he was able to identify the same which story is neither plausible nor natural and appears to have been concocted in order to connect the appellant with the commission of offence. Even otherwise; at the best same could be used as corroboratory piece of evidence and no conviction can independently be based on such piece of evidence.

13. Next important piece of evidence produced by the prosecution is confessional statement of the appellant which has been recorded by P.W.8 Imran Siddique Judicial Magistrate, VI on 2-10-2004. The same was retracted by the appellant and according to him was result of torture. It may be noted that the said confessional statement was recorded on 2-10-2004, whereas, the appellant was in police custody since 18-9-2004 according to police record and 16-9-2004 according to the appellant. It is case of the prosecution that on 18-9-2004 the appellant admitted his guilt during investigation and also pointed out place of occurrence as well as place from where body was recovered, if so, then why his statement was got recorded after such considerable delay for which no explanation has come on record from the side of prosecution. Possibility could not be ruled out that confessional statement was- tutored one and result of torture as claimed by the appellant, otherwise, the police would have produced him soon after his disclosure allegedly made on 18-9-2004. The learned Judicial Magistrate also did not satisfy himself as to whether the confessional statement was voluntarily or result of torture as is evident from his following answer:-- Here we may observe that before recording confessional statement the Magistrate is under legal obligation to satisfy himself that the accused was recording his statement voluntarily, in absence whereof the certificate given at the end of confessional statement about his believeness that the confession was voluntarily, would lose its spirit. It may also be observed that before basing conviction upon confessional statement the Court has to satisfy its conscious about truthfulness and voluntary nature of the confessional statement. If one of the above ingredient is missing, then it would be highly dangerous to base conviction upon such confessional statement, particularly on a capital charge. In the instant case according to confessional statement the appellant took away the minor girl on 13-9-2004 on which date he committed Zina with her, whereafter, his mother murdered her and they with the help of acquitted accused Dawood threw dead body in an orchard on the next day but such assertion is contradictory to the medical evidence as according to P.W.6. Dr. Shamim Gul Mushwani she examined dead body on 16-9-2004 at 4-30 p.m. and at the time of examination rigors mortis were not developed. She also opined that the time between death and postmortem was six to twelve hours which means she was murdered at or about 4-00 a.m. on 16-9-2004. Had she been murdered on 15-9-2004 soon after her kidnapping or committing Zina as stated in confessional statement, then rigors mortis should have been developed at the time of recovery of her body and examination by P.W.6 Dr. Shamim Gul Mushwani.

14. Prosecution also relied upon motive which even if taken into consideration after disbelieving other pieces of evidence, would not alone be sufficient to sustain conviction being double edged. 15 In view of above discussed diverse factors voluntarily nature and truthfulness of confessional statement has become highly doubtful and no implicit reliance could be placed upon such statement for sustaining conviction on a capital charge. For the foregoing reasons, we are inclined to set aside the judgment dated 31-5-2006 rendered by Special Judge, Anti-Terrorism Court I, Quetta to the extent of conviction recorded under sections 364-A/34, P.P.C. and section 7-A, 21-I of Anti-Terrorism Act, 1997 read with section 302(b)/34, P.P.C. and acquit the appellant as well as Izat Bakht in the above mentioned offence. Murder reference is answered in negative. H.B.T./39/Q Appeal allowed.