MUHAMMAD ARSHAD Versus PERVEZ

ORDER

SAAD SAOOD JAN, J .‑‑‑This is a petition for special leave to appeal against the judgment of the Lahore High Court whereby the convictions and sentences of Pervez, respondent; on charges under sections 302, 392 and 435, Pakistan Penal Code, as recorded by the Punjab Special Court (Suppression of Terrorist Activities) Faisalabad, were set aside. This petition has been filed by Sqn. Leader Muhammad Arshad Bajwa, son of the deceased.

2. The deceased, Mst. Ghulam Zohra, aged about 55 years, was found dead on the morning of 10‑1‑1991 in her house in Chak No. 107/JB within the area of Police Station Chak Jhumra. On receiving information about her death her son, Sqn. Leader Muhammad Arshad Bajwa, reached the village and had her buried on the same day. Three days later, on 14‑1‑1991, he filed a written complaint with the Officer Incharge of Police Station Chak Jhumra wherein he alleged:‑‑

Earlier, in pursuance of an application made by the petitioner the body of his mother was exhumed. It was examined by Dr. Rashad Maqbool, who was posted as Casualty Medical Officer at the District Headquarters Hospital in Faisalabad. He was of the opinion that the deceased had died on account of asphyxia caused by strangulation.

3. After the investigation the respondent was challaned for causing the death of the deceased, robbing her of gold bangles and a gold ring and removing Rs.500 from her purse and destroying the account books. It appears that the respondent was cultivating the land of the deceased as a leasee and he owed a large sum of money on that account to her.

4. The case of the prosecution against the respondent rested upon the extra judicial confession which he allegedly made before Ch. Muhammad Aslam (P.W.10), the recovery of certain articles belonging to the deceased and the statements of the witnesses who had seen the respondent coming out of the house of the deceased. The Trial Court accepted this evidence as substantially true and convicted the respondent. However, in appeal, the High Court found the said evidence to be of doubtful validity and insufficient to support his convictions.

5. As stated above, the extra‑judicial confession was allegedly made by the respondent before Ch. Muhammad Aslam (P.W.10) on 24‑2‑1991, that is, about six weeks after the occurrence. Ch. Muhammad Aslam (P.W.10) was almost a stranger to him and was hardly in a position to offer him any assistance; there was thus no occasion for the respondent to make a confession voluntarily before him. The High Court was therefore right in not acting upon the said confession. As regards the recovery evidence it appears that after his arrest the respondent took the investigating officer to two places. From one place he dug out a plastic bag which contained a purse; inside the purse were golden ornaments and the identity card of the deceased. From the other place he dug out the ashes allegedly of an account book alopgwith a bottle with lid containing some kerosene oil. The evidence relating to the recoveries was attended upon with doubtful circumstances and the High Court was right in not relying upon the same. The last seen evidence too was unsatisfactory. The High Court was therefore justified in holding that the prosecution had not been able to prove its case in respect of any of the charges against the respondent. This petition is without any merit and is hereby dismissed.

N.H.Q./M‑3081/S ????????????????????????????????????????????????????????????????? Leave refused.