Mst. GUL NISSA and another Versus MUHAMMAD YOUSUF

ORDER

CH. IJAZ AHMAD, J.--- We intend to decide both the aforementioned petitions by one consolidated order having similar facts and law arising out of the same impugned judgment.

2. The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petitions arise are that respondent Muhammad Yousaf in Criminal Petition No.25-Q of 2005 and petitioner in Criminal Petition No.26-Q of 2005 is involved in a case F.I.R. No.17 of 2000 registered against him under section 302/34, P.P.C. at police station Levies Thana Tamboo along with his co-accused Abdul Fateh, Ghulam Muhammad and Abdul Haleem on 9-3-2003 on the complaint of Liaqat Ali P.W.2 for the murder of Niaz Muhammad and Mst. Malik Naz. The investigating agency investigated the case, found the respondent guilty and submitted challan before the competent Court. The learned Sessions Judge, Nasirabad at Dera Murad Jamali convicted and sentenced the respondent to death on each account. It is pertinent to mention here that remaining three co-accused were declared absconders. The respondent being aggrieved filed criminal appeal in the High Court of Balochistan. The learned High Court after reappraisal of the evidence found that prosecution had proved the case against the respondent beyond any shadow of doubt. However, keeping in view the circumstances of the case specially confessional statement of the convict, the learned High Court converted the sentence of death into life imprisonment under section 302(b) of P.P.C. and benefit of section 382-B, Cr.P.C. was also extended to him. Hence, the present petitions.

3. Mr. Tariq Mehmood, learned Advocate Supreme Court appearing on behalf of petitioner in Criminal Petition No.26-Q of 2005 submits that learned High Court had disbelieved the ocular account as furnished by the prosecution through P.W.2 Liaqat Ali, P.W.3 Muhammad Waqar. He further urges that learned High Court had also noted the contradictions in the statements of the P.W.2 Liaqat Ali and P.W.3 Muhammad Waqar. He further urges that P.W.3 Muhammad Waqar was chance witness as observed by the learned High Court in the impugned judgment on the ground that Muhammad Waqar was a student of Government College Quetta and he failed to furnish sufficient explanation qua his presence at the time of incident at the place of occurrence. He further urges that the learned High Court had awarded the sentence to the convict after rejecting the evidence of the prosecution on his confessional statement. He further urges that convict had not given confessional statement of his own free will and in fact he had given confessional statement under duress and this fact was not noted by the Court below therefore the benefit of same was not given to him in. accordance with the mandatory provisions of law. He further urges that confessional statement of the convict must be read as a whole and not any piece of the statement.

4. Mr.Amanullah Kanrani, learned counsel appearing on behalf of petitioner in Criminal PetitionNo.25-Q of 2005 submits that both the Courts below had given finding of fact against the convict to the extent that prosecution had proved the case against him beyond any shadow of doubt. He further urges that the learned trial Court had awarded the capital punishment to the convict whereas the learned High Court had reduced the sentence of death into life imprisonment without any cogent reasons and it was the duty of the learned High Court to give reasons for reducing the sentence of the convict.

5. We have given our due consideration to the contentions of learned counsel of the parties and perused the record. It is an admitted fact that learned High Court after reappraisal of evidence had given findings of fact that P.W.3 Muhammad Waqar was not present at the place of occurrence. The learned High Court had after analyzing the evidence of the two witnesses namely Liaqat Ali and Muhammad Waqar came to the conclusion that their statement on material points are at variance. The learned High Court had convicted the convict by accepting the confessional statement of the convict by holding that the confessional

6. statement was given by him without duress of his own free will. It is better and appropriate to reproduce the confessional statement to resolve the controversy between the parties.:--

6. Mere reading of the aforesaid. confessional statement, it is crystal clear that convict had committed murder of the deceased in grave and sudden provocation. It is a settled law that confession or admission when made sole basis of conviction must consider as a whole. See Hamid ullah Khan's case PLD 1989 Pesh. 22 and Muhammad Aksar's case 1990 SCMR 1053. The learned High Court was justified to convert the death into life imprisonment. This Court had reduced the even sentence in such type of cases to sentence of five years. Therefore, learned High Court was justified and with cogent reasons reduced the sentence of the convict from death to life imprisonment. It is pertinent to mention here that the same is inconsonance with the law laid down by the superior Courts. See Kamal's case PLD 1977 SC 153, Karamat Ali's case 1976 SCMR 138, Mst. Fazal Elahi's case 1984 SCMR 137, Allah Wasaya's case 1982 Pakistan SC cases 1482, and Muhammad Iqbal's case 1990 ALD 693(1).

7. It is settled principle of law that accused can be convicted on his own statement even if the prosecution evidence is rejected. See Fazal Hussain's case PLD 1958 Lah. 142 and Baboo's case PLD 1961 Kar. 240.

8. The learned High Court keeping in view all the circumstances had already reduced the sentence from death to life imprisonment. The learned counsel of the parties have failed to point out that discretion exercised by the learned High Court amounted to miscarriage of justice.

9. In view of what has been discussed above we do not find any force in both these petitions which are dismissed. Leave to appeal declined.

M.H./G-18/S Petition dismissed.