ABDUL RASHID Versus State

MIAN FASIH-UL-MULK, J .---Abdul Rashid appellant has filed Criminal Appeal No.118 of 2009 against the judgment and order of learned Additional Sessions Judge-I, Mansehra dated 20-10-2009, whereby he was convicted under section 302(b), P.P.C. and sentenced to death with payment of Rs.2,00,000 as compensation under section 544-A, Cr.P.C. payable to the legal heirs of deceased. Learned Sessions Judge has referred Murder Reference No.9 of 2009 for confirmation of sentence. Both the criminal appeal and murder reference are disposed of by this single judgment.

2. The prosecution case as set-up in the F.I.R. is that Abdul Rashid ASI, Police Post 'Khaki send report to the officer-in-charge of Police Station Saddar Mansehra that one Shabbir son of Sher Wali met him at 1900 hours on 18-12-2007 in DHQ Hospital Mansehra and stated that he being a tractor driver was sowing wheat seeds in village Bherkund when his brother Khangir telephonically informed him that Ibrahim had been murdered and his dead body was taken to hospital. Upon such information, he reached the hospital and found that deceased Ibrahim, who is his maternal step-brother has been killed by unknown accused by suffocating him by using string of shalwar. It was further stated that they have got no enmity, thus report regarding murder of deceased was lodged against unknown culprit(s). Upon receipt of such report the F.I.R. was drawn, on the even date and investigation started. During investigation name of present accused divulged, who was arrested. The accused involved his father (complainant) before police and in his confessional statement recorded before Judicial Magistrate. However, the appellant alone faced the charge.

3. At trial, after observing codel formalities, formal charge was framed against the accused, who professed innocence and claimed trial. The prosecution in support of its case examined thirteen witnesses in all.

4. On close of prosecution evidence, accused was examined under section 342, Cr.P.C., who pleaded false implication. He did not appear as his own witnesses on Oath in disproof of allegations levelled against him nor produced evidence in defence. On assessment of evidence, the appellant was found guilty and was convicted and sentenced as mentioned above.

5. Learned counsel for appellant vehemently argued that it is a case of no evidence and appellant has been roped in the case by the local police just to show their efficiency. It was also argued that the appellant was arrested on 9-12-2007 and remained in illegal police custody for more than six days and thus the so-called confessional statement was recorded as a result of threat, inducement and promise therefore, cannot be relied upon for awarding capital punishment. It was further argued that evidence produced before the learned trial Court did not justify conviction as the same is full of contradiction and discrepancies, which cast heavy doubt on the prosecution case. Learned counsel concluded that prosecution has failed to prove its case beyond reasonable doubt and instead of extending benefit of doubt, the learned court has stretched the case in favour of prosecution, thus prayed for acquittal of appellant.

6. On the contrary, learned counsel for State argued that the trial court has considered the entire evidence in its true perspective where no material discrepancies or contradictions were noticed. The appellant has voluntarily confessed his guilt by recording confessional statement. He stressed that appellant has first committed sodomy with the deceased and then murdered him in brutal and callous manner, therefore, normal penalty of death is just and proper. Learned counsel for complainant concluded that the prosecution has succeeded in proving its case beyond reasonable doubt against the appellant.

7. Learned State counsel supported the impugned conviction and adopted the arguments advanced by learned counsel for the complainant.

8. Although it is an unseen occurrence yet the prosecution has been able to prove its case against appellant by leading confidence inspiring circumstantial evidence with no apparent motive. Complainant is the father of convict appellant whereas deceased Ibrahim aged about 15/16 years was the maternal step brother of complainant and maternal l' step uncle of the convict-appellant Abdul Rashid. P.W.3 Sher Wali is grandfather of convict Abdur Rashid whereas deceased Ibrahim was his son. According to P.W.3 the accused took deceased Ibrahim along with him from his house and later on killed him after committing sodomy with him. P.W.13 Shabbir brother of convict appellant stated that "during investigation the police has recovered mobile of deceased and Rs.1500 from accused and thereafter we were confident that occurrence has been committed by accused Abdur Rashid". On pointation of accused the I.O. recovered mobile and Rs.900 of deceased and a white colour polythene bag besides other incriminating material. According to P.W.2, who is marginal witness to the recovery/cum pointation memo Exh.P.W.2/1 vide which accused Abdul Rashid rightly pointed out house of his uncle Jhangir, where he kept the clothes after washing the same in the water of Ichhar Nala. Blood stained clothes with suspected semen were produced at pointation of accused and were sealed into parcel at the spot by the I.O. P.W.2 is also marginal witness to another pointation memo Exh.P.W.2/3. The convict appellant has made voluntary confessional statement and narrated the whole story, the relevant portion of which is l reproduced as under:-

9. P. W.10 Dr. Tariq Khan opined that death has been caused due to suffocation secondary to strangulation and is homicidal not suicider. Besides this, parts and specimens of vital organ i.e. heart, lung, liver and stomach were obtained for chemical examination and report received from Chemical Examiner, Punjab Laboratory speaks "tranquilizer belonging to benzodiazepine group is detected in the above articles. However,, quantitative estimation is not possible", therefore, no discrepancy has been found with it. The medical evidence has verified the folds of evidence collected in investigation and all the evidence found consistent with each other including oral set of evidence on record. In this view of the matter, the P.Ws. have given full evidence which was not shattered and it makes clear cut chain of facts from the dead body of deceased Ibrahim to the hands of convict appellant and thus the convict appellant has caused qatl-e-amd in the shape of first administering poisonous cooked rice and thereafter caused his death by strangulation by using trouser string.

10. So far as the quantum of sentence is concerned, as the convict appellant has been found guilty of commission of heinous crime in brutal and callous manner by firstly administering poisonous cooked rice and thereafter by strangulation of young boy of 15/16 years, who happened to be his maternal uncle, therefore, the sentence imposed by the trial Court would meet the ends of justice.

11. Consequently, the prosecution has been able to prove its case against the convict appellant up to the hilt, and by maintaining impugned conviction and sentence we dismiss Criminal Appeal No. 118 of 2009. The Murder Reference No. 9 of 2009 stands confirmed.

H.B.T./47/P Appeal dismissed.