2004 PLP 907 (SCMR)

A.H. Masood, Advocate Supreme Court with Tanvir Ahmed, Advocate‑on‑Record (absent) for Petitioner. Nemo for Respondent. Date of hearing: 13th September, 2002. MUHAMMAD NAWAZ ABBASI, J.‑‑‑This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 14‑3‑2002 passed by a Division Bench of Lahore High Court, Lahore, through which Criminal Appeal No.1179 of 2000 and Murder Reference No.459‑T of 2000 have been disposed of.

2. The Special Court No.1, Gujranwala, established under Anti Terrorism Act, 1997, tried the petitioner for the charge under section 302(b), P.P.C. for the allegation of committing the murder of one Muhammad Ashraf, and having found him guilty of the charge convicted and sentenced him to death. The High Court by dismissing his appeal, confirmed the death sentence awarded to the petitioner by the trial Court.

3. The occurrence in the present case took place on 4‑7‑1998 at 4‑45 a.m. in the area of Mona Depot Farm situated at a distance of 4 miles from Police Station Miana Gondal, District Mandi Bahauddin. Nisar Ahmed (P.W.7) father of Muhammad Ashraf, deceased, on receipt of information about the murder of his son, reached at the place of murder and lodged the report to the police. During investigation, Muhammad Arif petitioner while seeking help of Shabbir Ahmed (P.W.5) disclosed his guilt before him on 1‑8‑1998 and then while appearing before Lt.‑Col. (Retd.) Maqbool Hussain Khokhar, Deputy Commandant Mona Depot Farm (P.W.10) on 6‑8‑1998 confessed that he committed the murder of Muhammad Ashraf. The crime empty recovered from the place of occurrence was found matched with .8 MM Rifle subsequently recovered from the accused. The motive for the occurrence disclosed by the accused in his confessional statement was that deceased had illicit liaison with an unmarried girl residing in his neighbour, which he could not tolerate.

4. Learned counsel for the petitioner has contended that the petitioner being employed in Mona Depot Farm was subordinate to Lt.‑Col. (Retd.) Maqbool Hussain Khokhar, therefore, the alleged confession before a person of authority, being not be, free from influence, would not be admissible and that non‑disclosure of Shabbir Ahmed (P.W.5) regarding the confessing of guilt by the petitioner before him, prior to his making confession before Lt.‑Col. (Retd.) Maqbool Hussain Khokhar, would create a serious doubt in truthfulness of the evidence of extra‑judicial confession. Learned counsel added that according to P.W.6, father of deceased, the Investigating Officer collected two crime empties from the spot in his presence whereas only one crime empty was sent to Forensic Science Laboratory and the withholding of one crime empty by the Investigating Officer would make the evidence of recovery of doubtful character to be used as independent source of corroboration. The learned counsel argued that with the exclusion of evidence of recovery and motive which were not confidence inspiring to be believed, the conviction on the capital charge on the basis of sole evidence of extra‑judicial confession, a weak type of evidence, would not be sustainable.

5. The contentions raised by the learned counsel in support of this petition requiring examination, we find it a fit case for re‑appraisal of evidence. Leave is, accordingly, granted. N.H.Q./M‑655/S Leave granted.