KHURAM MALIK and others vs THE STATE and others

1. ' SYED DEEDAR HUSSAIN SHAH, J.---By this common order, we intend to dispose of these two petitions as they involve common questions of fact and law and impugn the same judgment of conviction of the Peshawar High Court, dated 23-12-1999 passed in Criminal Appeal No.13 of 1999 and Murder Reference No.3 of 1999.

2. The facts of the case briefly mentioned are the Ejaz alias Goga, aged about 18/19 years and students of 1st year F.A. in the Government Post Graduate College, Mansehra, set out from his house for the college on 24-11-1998, but did not return home till evening, and this prompted his relatives to search him in the area. In this process, Haji Muhammad Nazir, who is the maternal uncle of Ejaz, with whom the latter was residing, and who is running a shop of cotton products in Chehra Bazar, Mansehra, went out to look him around in the locality. But being clueless about his missing nephew, he lodged a report on same day at 8-20 p.m. with Police Station City Mansehra.

3. In the process of search, Zulfiqar Ahmed, son of the maternal aunt of Ejaz, was told by a shopkeeper named Noman (P.W.10) that Ejaz had come to his shop in the morning, left his note books with him and then accompanied petitioner Khuram Malik. Zulfiqar Ahmed continued to search Ejaz and somehow he approached Ismail (P.W.2) who told him that he had seen Ejaz (deceased) and convict Khuram Malik sitting on vacant plot. Therefore, both Zulfiqar Ahmed and Ismail went to the house of Khuram Malik to enquire about Ejaz but he could not give them any satisfactory reply and could say only this much that Ejaz was in his company in the morning but thereafter he did not know about his whereabouts.

4. Next morning, on 25-11-1998, Khawaja Muhammad (P.W.5) found a sack containing something and a human leg without foot at some distance from the sack. He brought this fact to the notice of Muhammad Saleem, LHC Police Station Saddar, Mansehera (P.W.3), who, in turn, passed this information on to the concerned police officials. Adalat Shah, A.S.H.O. Police Station Saddar alongwith the D.S.P. of the area visited the spot, collected the limbs and clothes, and registered a case vide F.I.R. No.511, dated 25-11-1998. These human parts were sent to the hospital for post - mortem examination where Nazir complainant and the mother of the deceased identified the parts to be of deceased Ijaz. Adalat Shah, A.S.H.O., found remaining parts of the body beneath the bridge and took them into possession. He recorded the statements of P.Ws. Noman, Ismail and Bilal and then proceeded to arrest convict Khuram Malik who confessed the commission of the crime.

5. During the course of investigation, the offence was found to have been committed within the jurisdiction of Police Station City, hence another F.I.R. No.1020, dated 28-11-1998 was registered under section 302/201/202, P.P.C. at Police Station City Mansehra. After completion of the investigation, the case was challaned.

6. The learned Sessions Judge, Mansehra, vide his judgment, dated 16-3-1999, convicted accused Khuram Malik and sentenced him to death under section 302(2), P.P.C. with a direction that he would pay Rs.30,000 as compensation to the L.Rs. of the deceased under section 544-A, Cr.P.C., or suffer R.I. for six months in case of default. He also sent a murder reference to the High Court under section 374, Cr.P.C. for confirmation of the death sentence. The convict Khuram Malilk also preferred an appeal to the High Court. The High Court, vide judgment, dated 23-12-1999 partly allowed the appeal of the convict, modified his sentence of death to that of life imprisonment and increased the amount of compensation from Rs.30,000 to Rs.100,000 to be paid to the L.Rs. of the deceased.

7. Mr. Muhammad Munir Peracha, learned counsel for the petitioner/convict, contends that there is no ocular evidence and that the petitioner has been convicted and sentenced only on the basis of the circumstantial evidence and the judicial confession made by him before the Magistrate. He further states that the learned Peshawar High Court was mindful to this fact and, therefore, converted the sentence of death into life imprisonment. On this point alone, he says, the petition merits grant of leave to appeal.

8. On the other hand, Mr. Ejaz Afzal Khan, the learned Advocate Supreme Court for complainant/petitioner in Cr.P.26 of 2000, submits that convict/respondent Khuram Malik has committed a brutal murder of the deceased and that the prosecution has produced sufficient circumstantial evidence corroborated by the medical evidence as well as the confession made by him before the Magistrate. He states that the learned Sessions Judge, Mansehra has properly appreciated and evaluated the evidence and rightly convicted respondent Khuram Malik and sentenced him to death, and that the learned Peshawar High Court has, without plausible reason and explanation and without recording any reasons, modified the sentence of death to that of imprisonment for life. He, therefore, contends that this is a fit case for grant of leave to appeal.

9. We have considered the arguments advanced by the learned counsel for the parties. Admittedly, the learned Peshawar High Court has converted the sentence of death imposed on convict Khuram Malik to life imprisonment. Petitioner Khuram Malik in Cr. P.20 of 2000 wants acquittal, whereas Haji Nazir, petitioner in Cr.P. 26 of 2000, urges for restoration of death sentence awarded to convict Khuram Malik by the trial Court. The contentions raised require consideration and re- appraisal of evidence to ensure safe administration of justice. Consequently, leave to appeal is granted in both the petitions.

10. In the appeal arising out of Criminal Petition No.26 of 2000, issue notice to respondent Khuram Malik as to why the sentence of death awarded to him by the learned trial Court be not restored.