----S. 302(b)--Conviction and sentence recorded against accused by trial Court--Maintained by High Court--Appeal to Supreme Court--Appreciation of evidence--Held: Prosecution case rests on the confessional statements of the appellants the confidence inspiring deposition of (PW9) wife of deceased establishing that deceased left his house in the company of appellant and did not return home, pointation of place of occurrence by the appellant, the recovery of crime empties therefrom, the recovery of crime weapon at the instance of appellant the medical evidence, the ballistic expert report, the documentary evidence establishing that the appellant was client of the deceased and other circumstantial evidence--The prosecution was able to prove its case against them beyond any shadow of doubt--The appellant shared common intention with the other accused to rob the deceased and as per his own confession, he also received a sum of Rs. 25,000/- as his share out of robbed amount--Appellants were rightly convicted--Appeals were dismissed. [Pp. 261 & 262] B
Confession--
----The confession of any kind can become the basis of conviction if it is found voluntary and true. [P. 261] A
PLD 2006 SC 30, ref.
Abdul Sattar Khan, ASC for Appellant (in Criminal Shariat Appeal No. 27 of 2009).
Haji M. Zahir Shah, ASC for Respondent No. 1 (in Criminal Shariat Appeal No. 27 of 2009).
Haji Muhammad Zahir Shah, ASC for Appellant (in Criminal Shariat Appeal No. 28 of 2009).
Abdul Sattar Khan, ASC for Respondent No. 2 (in Criminal Shariat Appeal No. 28 of 2009).
Mr. Arshad Ali Chaudhry, ASC for Appellant (in Criminal Shariat Appeal No. 29 of 2009).
Qari Abdul Rashid, ASC for State (in all cases).
Date of hearing: 29.4.2009.
PLJ 2011 SC 255[Shariat Appellate Jurisdiction]Present: Justice M. Javed Buttar, Chairman, Muhammad Farrukh Mahmud, Mahmood Akhtar Shahid Siddiqui, Dr. Allama Khalid Mahmud, Dr. Rashid Ahmed Jullundhari, JJ.NIZAM-UD-DIN and others--AppellantsversusRIAZ and another--RespondentsCrl. Shariat Appeals No. 27, 28 and 29 of 2009, decided on 29.4.2009.(On appeal from the judgment dated 2.2.2006 of the Federal Shariat Court
Order
M. Javed Buttar, Chairman.--Hon'ble Additional Sessions Judge,
Taj Muhamma alias Torak
Under Section 302(b) PPC:--
Death and fine of Rs.50,000/- as compensation to pay to the legal heirs of the deceased or in default thereof to further undergo S.I. for six months.
Riaz
Under Section 302(b) PPC:--
Life imprisonment and a fine of Rs. 50,000/- as compensation to pay to the legal heirs of the deceased or in default thereof to further undergo. S.I. for six months.
Benefit of Section 382-B Cr.P.C was, however, extended to appellant Riaz.
2. Federal Shariat Court, vide its judgment dated 02.02.2006, dismissed Criminal Appeals No. 58/P of 2004, 18/P of 2005 respectively filed by the convicts/appellants Taj Muhammad and Riaz and Criminal Revision No. 01/P of 2005 filed by the complainant Nizam-ud-Din for the enhancement of the sentence awarded to Riaz convict and for the enhancement of compensation awarded against convicts.
3. Appellants/convicts have assailed their conviction and sentences through Criminal Appeal No. 29/S/09, Criminal Appeal No. 28/S/09 and the complainant has filed Criminal Appeal No. 27/S/09 asking for the enhancement of sentence awarded to appellant Riaz.
4. In this case, the occurrence took place on 27.04.2002. The report was lodged with the police on 02.05.2002, which became the basis of FIR No. 191 registered on 10.05.2002. The facts in brief are that on 02.05.2002 complainant Nizam-ud-Din (PW.8), father of the deceased Abid Nadeem, Advocate, lodged a report with Police Station Bhana Mari alleging that the deceased Abid Nadeem who was a practicing Advocate, at about 8.00 p.m. on 27.04.2002 had gone with his client Taj Muhammad alias Torak and did not return. It was further alleged that Mst. Bishmina (PW.9), wife of his above named son had informed him that Abid Nadeem had been taken along by Taj Muhammad from his house. It was stated by her that at hearing the knock on the door, Abid Nadeem went out and then came back and informed her that his client Taj Muhammad was standing outside and he was going out with him.
5. It may be mentioned here that on 30.4.2002, a dead body of an unknown person aged about 28 to 32 years was found lying on the bank of Budni canal. A Murasala was therefore, prepared and Police Station Mathra registered FIR No. 151 dated 30.04.2002. against unknown persons and as the said dead body could not be identified and where about of its family members could not be ascertained, therefore, the said dead body after being photographed and post-mortem examination, was buried. Subsequently, on the report of the complainant Nizam-ud-Din (PW.8), the dead body was exhumed, which was identified by the complainant and the brother of the deceased.
6. On completion of the investigation, both the convicts/appellants were challaned to face trial, who pleaded not guilty to the charge framed by the trial Court and claimed trial.
7. The prosecution in order to prove its case produce 13 witnesses whose depositions have been discussed in detail in the impugned judgment as well as the judgment passed by the trial Court. However, just to highlight the material features of the case, some of the material evidence, relevant for the decision of the present appeals is discuss below.
"Injuries:--
1. Fire-arm entry wound size 2x1 cm at right front of abdomen
2. Fire-arm exit wound 7x3 cm in size on left side front of lower abdomen
3. A superficial abrasion on left side of the face 2x1 cm in size
Internal Examination:
Peritoneum injured, small and large intestine injured, liver injured.
9. In his opinion the deceased had died due to injuries to the liver, intestine and corresponding blood vessels caused by fire-arm. Probable time between death and post-mortem was 48 to 72 hours and between injuries and death immediate. PW.6 Muhammad Azam Khan, Judicial Magistrate had recorded the confessional statements of both the convicts on 20.05.2002. PW.7 Mir Hassan Khan, S.I is a marginal witness of the pointation memo. Exh.PW.7/1 vide which appellant Taj Muhammad alias Torak, while in police custody led the police party to the graveyard situated in Nauthia and pointed out the place where crime weapon, the pistol was concealed. We have noted that this spot was within the exclusive knowledge of appellant Taj Muhammad. PW.8 complainant Nizam-ud-Din reiterated the FIR version. PW.9, Mst. Bishmina, the widow of the deceased reiterated the version contained in the complaint. She further confirmed that she had informed her father-in-law regarding the absence of her husband and him having left the house with his client whose name was Taj Muhammad. PW.10 Muhammad Ashfaq Khan, Inspector partially investigate the case. He is also a marginal witness of the recovery memo. Exh. PW.10/1 whereby two empties of .30 bore pistol were recovered form the place of occurrence on the pointation of the accused. We have again noted that this place of occurrence was also within the exclusive knowledge of the accused because the dead body was recovered from different spot. PW.12 Noor-ul-Qamar Khan, SI, had also partially investigated the case. He is a marginal witness of the recovery memo. Exh.PW.10/1 vide which not only the place of occurrence was pointed out by the convict/appellant Taj Muhammad but .30 bore pistol was also got recovered.
10. The accused in their statements under Section 342 Cr.P.C. denied the participation in the occurrence and pleaded innocence. They opted not to appear as their witnesses on oath under Section 340(2) Cr.P.C. and did not produce any evidence in their defence.
11. CW. 1 Muhammad Arshad Khan, Incharge Muhafiz Khana produced the record in Court in regard to certain bail matters wherein the deceased was engaged as an Advocate by the appellant Taj Muhammad.
12. We have heard the learned counsel for the convicts/appellants, the learned counsel for the complainant, learned counsel representing the State and have also seen the available record with their able assistance.
13. It is submitted by the learned counsel representing the appellant Taj Muhammad that the delay in lodging the FIR was fatal which was not explained, the conviction could not have been recorded merely on the basis of retracted confessions which were extracted from both the accused by torturing them and since the direct and best evidence of last seen was not available because the widow of the deceased did not see the deceased leaving the house in the company of appellant Taj Muhammad as the appellant Taj Muhammad was standing outside the house and she was merely informed to this effect by the deceased before leaving the house, therefore, it is not a case of capital punishment.
14. Learned counsel for the appellant Riaz has submitted that the murder was committed by the appellant Taj Muhammad and absconding co-accused Zamir and there is noting on the record to show that appellant Riaz had any intention to kill the deceased, therefore, Riaz could not have been convicted for the offence alleged against him and Riaz was convicted merely on the basis of retracted confession which was the result of torture and there is no evidence available on the record in regard to the receiving of cash amount of Rs. 25,000/- by Riaz as his share of the looted amount from the deceased which has allegedly been said by the Riaz in his confession before the Magistrate.
15. Learned counsel for the complainant, on the other hand, while vehemently opposing the appeals filed by the convicts has supported the judgments of the Courts below and has further submitted that since Riaz fully participated in the occurrence, therefore, he also deserves capital punishment alongwith Taj Muhammad.
16. Learned counsel for State while opposing the appeals of the convicts and while supporting the judgment impugned before us, has submitted that the appellant Taj Muhammad was specifically named in the FIR as he had taken the deceased alongwith him and the prosecution version was corroborated by the medical evidence as well as circumstantial evidence and empties recovered, from the place of occurrence on the pointation of the appellant Taj Muhammad were found wedded with the pistol recovered on his pointation.
17. We have given our anxious consideration to the entire facts and circumstances of the case and respective contention of the learned counsel for parties.
18. The complainant, at the trial categorically stated that since they were told by the wife of the deceased that the deceased had been taken away by his client Taj Muhammad, who was notorious person, therefore, they did not think it proper to report the matter immediately as they were told by the people that if the report was lodged, kidnappers may kill the deceased. Therefore, it cannot be said the delay in lodging the report was un-explained. Both the Courts below considered the explanation as plausible and satisfactory. We also find the explanation quite satisfactory because father of the deceased, even at the time of lodging the report, was not aware of the murder of his son.
19. We also find that there was no delay in the recovery of the crime weapon and the empties. No sooner the accused pointed out the place of occurrence to the police, the recovery of crime empties was affected and later on the pistol was also recovered on the pointation of the appellant Taj Muhammad from the place where it had been concealed by him.
20. It may be mentioned here that the dead body was found lying on the bank of Budni canal, which was a spot different then the place of occurrence where the deceased, according to the convicts, was murdered which was within the exclusive knowledge of the convicts and it was a different place from where the empties were recovered, otherwise empties would have been recovered earlier at time of discovery of the dead body. The recovery of empties, therefore, is a strong piece of corroborative evidence of prosecution story. Similarly, the spot where the pistol was concealed was within the exclusive knowledge of the appellant Taj Muhammad and the recovery of pistol on his pointation also strongly corroborated the prosecution case. These recoveries also strongly corroborated the confessional statements of the convicts because if the confessional statement are believed then, the actual place of occurrence was only within the exclusive knowledge of either the convicts or the absconder Zamir. In "Abdus Samad v. The State (PLD 1964 SC 167)", the murdered child was last seen in the company of the accused who had the exclusive knowledge of place where remains of child were found. It was held that it was sufficient to establish charges of kidnapping and murder.
21. As regards confessional statements of the convicts before the Magistrate, the record does not show that the confessions were extracted from them forcibly or that the same were not voluntary. Although the confession of appellant Taj Muhammad was recorded on 20.05.2002 i.e. 8 days after his arrest on 12.05.2002, he pointed out the place of occurrence on 14.05.2002 and got recovered the crime weapon, also on the said date i.e. 6 days prior to the recording the confessional statement, therefore, he was willing to confess few days prior to recording of his confessional statement. Hence there was no occasion for the police to apply force for extracting confession from him. The confessional statements were recorded by PW.6 Muhammad Azam Khan, Judicial Magistrate, after fulfilling all the necessary formalities under the law and satisfying himself that the same were being made voluntarily.
22. As regards the contention of the appellant Riaz that since the deceased Abid Nadeem had been murdered by appellant Taj Muhammad and the absconding co-accused Zamir, therefore, Riaz could not be convicted on the basis of his own confession because it was un-corroborated, we do not agree with the contention. The confession of any kind can become the basis of conviction if it is found voluntary and true. Reference in this regard can be made to the judgments cited in
23. The prosecution case rests on the confessional statements of the appellants Taj Muhammad and Riaz, the confidence inspiring deposition of Mst. Bishmina (PW.9), wife of the deceased establishing that deceased left his house in the company of appellant Taj Muhammad and did not return home, pointation of place of occurrence by the said appellant, the recovery of crime empties therefrom, the recovery of crime weapon at the instance of appellant Taj Muhammad, the medical evidence, the ballistic expert report, the documentary evidence establishing that the appellant Taj Muhammad was client of the deceased and other circumstantial evidence. All the above pieces of evidence taken together lead to the guilt of the appellants Taj Muhammad and Riaz. Therefore, in our opinion the prosecution was able to prove its case against them beyond any shadow of doubt. The appellant Riaz shared common intention with the other accused to rob the deceased and as per his own confession, he also received a sum of Rs. 25,000/- as his share out of the robbed amount, therefore, he was also rightly and lawfully convicted.
24. As regards the complainant's appeal for the enhancement of sentence of life imprisonment awarded to Riaz, we find no merit in the said appeal because he did not cause any injury to the deceased, therefore, we are not inclined to enhance his sentence to death.
25. In view of the above mentioned, we find no merit in these appeals, which are dismissed.
(M.S.A.) Appeals dismissed.
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