2012 PLP 109 (SCMR)

NASIR-UL-MULK, J.

Mazharul Haq, the Resident Director of Lakson Tobacco Group of Companies, was killed by strangulation during the night between 31-5-1995 and 1-6-1995 in his house in Sector F-6/3, Islamabad. His car was found abandoned in the morning on the road leading towards Pind Paracha within the limits of Police Station, Tarnol. Hashim Khan, ASI, then posted at Police Station Tarnol, received information about the abandoned car. He proceeded to the spot where the car was parked and upon opening it, found a number of articles, including a V.C.R., bottles of liquor, some clothes and documents. He also found visiting card of Mazharul Haq in dashboard of the car. He called the office of the Lakson Tobacco Group of Companies and informed Nazakat Hussain (P.W.3), Admin Officer, about the abandoned car. On his part, Nazakat Hussain tried to contact Mazharul Haq and finding no response he along with the police officials proceeded to his house. Upon unlocking the house, they discovered the dead body of Mazharul Haq in his bedroom. Simultaneously, Suleman Ghani, maternal nephew of the deceased, the Deputy Managing Director Pakistan Television, Islamabad, was informed. He reached the house and on his report, an F.I.R. was registered, wherein he had only mentioned names of three domestic servants, employed in the house of the deceased, namely, Raftaz Ahmed, resident of Abbottabad, Gul Wali and Ghulam Khaliq (mentioned in the F.I.R. as Khaliq Khan); the latter two residents of Mardan.

2. During investigation the police on 30-6-1995 arrested Ghulam Khaliq and one, Mushtaq, who were domestic servants in a house opposite to that of the deceased. Gul Wali Khan, also named in the F.I.R., was arrested on 8-7-1995. Mushtaq and Ghulam Khaliq recorded their confessional statements on 15-7-1995 and Gul Wali Khan on 23-7-1995. The three accused were tried and the trial Court found all of them guilty, convicted each of them under section 302/34, P.P.C. and sentenced them to death. They were also convicted and sentenced to various sentences of imprisonment and fine under sections 457 and 382, P.P.C. On appeal the Lahore High Court maintained the conviction of all the convicts; the sentence of Ghulam Khaliq was reduced to imprisonment for life and those of the other two maintained. Gul Wali Khan and Mushtaq filed petitions for leave to appeal, assailing their conviction and sentences. They were granted leave to appeal on 31-3-2005 only to consider the question of quantum of sentences.

3. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court, appearing for the appellant Mushtaq, wanted to argue not only on the quantum of sentence but also on the finding of the guilt of the appellant. In view of the leave granting order, expressly stating that "leave to appeal is granted in both cases to consider the question of quantum of sentence only", we restricted the learned counsel to the limits mentioned in the said order. On the quantum of sentence, the learned counsel submitted that the conviction of the appellant was primarily based on his confessional statement, wherein while admitting his participation in the breaking into the house of the deceased, did not admit his direct or indirect involvement in the killing of the deceased. The learned counsel contended that whereas the other two accused were related and had been working in the house of the deceased, they share common intention, whereas the appellant was not related to them and was employed in another house. He maintained that the appellant had no personal grouse against the deceased.

4. Mr. Arshad Ali Chaudhry, Advocate Supreme Court, representing Gul Wali Khan, argued that on the principle of consistency the appellant also deserves treatment similar to that of Ghulam Khaliq. That since the conviction of the appellant was based only upon his confessional statement, death sentence be not confirmed out of abandoned caution.

5. For the complainant, Mian Abdul Rauf, Advocate Supreme Court, submitted that since the death was caused as a result of conspiracy between the three accused, each of them was responsible for the consequences following from the execution of the conspiracy.

6. Mr. Ahmed Raza Gillani, the Additional Prosecutor-General, adopted the arguments of the learned counsel for the complainant.

7. The First Information Report was registered on the report of the maternal nephew of the deceased, who was neither an eye-witness nor possessed much information of the incident. Details of the incident were unfolded in the confessional statements of the three accused. For the present purpose, it would be enough to refer to the confessional statement of Gul Wali Khan. He disclosed that he was employed by Mazharul Haq as domestic servant a month before the incident; that earlier his cousin (co-accused Ghulam Khaliq), who was similarly employed by Mazharul Haq, was removed from his job on the allegation of theft of alcohol; that he (Gul Wali Khan) was also removed on the same allegation; that neither he nor his cousin was paid salary, and thus both of them decided to take revenge from Mazharul Haq; that Mushtaq also joined in the plan and in the middle of the night the three entered the house of Mazharul Haq. They found him asleep; that they had planned to tie Mazharul Haq with the rope and compel him to sign a cheque. When they attempted to do this, Mazharul Haq awoke and started screaming. To prevent him from making noise he shut Mazharul Haq's mouth with his hand and in the mean while the other two co-accused also started pressing his throat, who died after about ten minutes. Having killed Mazharul Haq they took 35 bottles of liquor, V.C.R., some clothes and put them in his car and fled toward Peshawar; that they were stopped by the police at the check post at Tarnol; that when the police inquired about the registration documents of the car and asked them to open its boot, they fled from the scene.

8. The confessional statements of the other two accused in substance are similar to that of Gul Wali Khan except that neither of them admits participation in the actual murder of the deceased. Mushtaq appellant stated that it was Gul Wali Khan, who alone strangled the deceased to death by pressing his mouth with a piece of cloth. He only admits his presence in the bedroom at the time of the murder. Not much distinction can be drawn between the role that he attributes to himself and that admitted by his co-accused, Ghulam Khaliq. The latter also in his confessional statement denied his involvement in the murder and shifted the blame to the other co-accused. Gul Wali Khan in his confessional statement had not only implicated himself but also the other two accused in the actual killing of the deceased.

9. Whereas confessional statement of an accused can be made the basis of his conviction for the crime, the confessional statement of a co-accused can only be taken as circumstance against him, but no conviction can be recorded upon it. The confessional statements of Gul Wali Khan and Ghulam Khaliq can be used to corroborate that of Mushtaq to the extent of facts admitted by the latter but not as regards the part denied by him. This is in line with the principle that the confessional statement of an accused is to be accepted as a whole. As Mushtaq appellant did not admit to have killed the deceased, he cannot be held responsible for the killing on the confessional statements of the co-accused. Additionally, unlike Gul Wali Khan and Ghulam Khaliq, he had no personal motive for killing the deceased. He was employed in another household and had no grouse against the deceased.

10. The case of Gul Wali Khan is distinguishable. He had an immediate grievance against the deceased for having been dismissed from service on allegation of theft and was turned out of the house without payment of his salary. He admits that he had decided to take his revenge after he was taunted by his aunt. He was motivated by revenge. From the confessional statements of all the three accused, it appears that he was the mastermind of the plan and the moving spirit behind it. He is the only one out of the three accused who in his confessional statement admitted to have participated in the killing of the deceased. This admission finds corroboration from the confessional statements of the co-accused. Thus there is no mitigating circumstance to modify the sentence awarded to him by the trial Court and upheld by the appellate court.

11. Above are the reasons for the following short order dated 28-1-2011:-- "For the reasons to be recorded separately, while partly allowing the appeal of Mushtaq-convict (in Criminal Appeal No.70 of 2005) his conviction is maintained and death sentence is altered to imprisonment for life whereas the appeal of Gul Wali Khan (in Criminal Appeal No.71 of 2005) is dismissed. Rest of the convictions/ sentences of Mushtaq-convict are maintained. The sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. is also extended to him." M.H./M-87/SC Order accordingly.