HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No. 272 of 2013 &

Confirmation Case No.04 of 2014

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††††††† Present:

††††††††††† ††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† †††††† ††††Mr. Justice Naimatullah Phulpoto

††††††††††††††††††††††† ††††††††††† ††††††††††††††††††††††††††††††††††† ††††††††††† Mr. Justice Aftab Ahmed Gorar

 

Appellant††††††††††††† ††††††††† :†††††††† Muhammad Ishaq through Mr. Abdul ††††††††††††††††††††††††††††††††††††† †††††††††††††††††† Rasheed Nizamani, †††††††† advocate

 

Respondent †††††††††††††††††††††††††††† :†††††††† The State through Mr. Mohammad ††††††††††††††††††††††††††††††† †††††††††††††††††† Iqbal Awan, A.P.G.

 

Complainant ††††††††††††††††† :†††††††† Syed Umar Bin Sagheer through††††††††† ††††††††††††††††††††††††††††††††††††† †††††††††††††††††† Mr. Haroon Shah, advocate

 

Date of hearing†††††††††††††† :†††††††† 11-03-2016
Date of Announcement:†††††††† 30-03-2016†††††††††††

 

J U D G M E N T

NAIMATULLAH PHULPOTO, J--- Appellant Muhammad Ishaq was tried by learned IInd-Additional Sessions Judge, South-Karachi, in Sessions Case No. 181 of 2012 for offence under Section 302 PPC. After full-dressed trial, by Judgment dated 09-09-2013, appellant was convicted under Section 302(b) PPC and sentenced to death for five counts. Appellant was also ordered to pay compensation of Rs.100,000/= for each deceased to be paid to the legal heirs of each deceased under Section 544-A Cr.P.C. In case of default in the payment of the compensation, it was ordered that appellant shall suffer R.I for six months more. Appellant was also convicted under section 392 PPC and sentenced to 10 years R.I and to pay fine of Rs.200,000/- (Two lacs), in case of default in the payment of fine, he was ordered to suffer S.I for six months. Trial Court made reference to this Court for confirmation of death sentence. By this single judgment, we intend to decide aforesaid appeal and death reference.

 

2.†††††† Brief facts of the prosecution case as disclosed in the FIR are that Arif Yousuf (now deceased) was residing along with his family in rented bungalow No.SD-35, Askri-III, Karachi. Complainant along with his wife Mst. Zaitoon went to their office. At about 11:30 a.m. his wife received a call on mobile of driver of her father. Wife of complainant after receiving such call, made a call at the house of her parents but it was not responded. Complainant was informed by his wife that driver had called her and complainant at bungalow of Arif Yousuf. She was further told by driver that baby girl had also not gone to school. On hearing such information, complainant reached at the house of his in-laws. Driver Imran was standing outside of the bungalow, on the inquiry, driver informed that there was no voice inside the bungalow. Thereafter, door of the bungalow was broken. Complainant entered into the bungalow and found articles lying scattered. Thereafter, he opened the door of a room, there was blood in the room. Complainant contacted the Committee of Askari-III and information was given to the police. Complainant saw dead bodies of his father-in-law, namely, Arif Yousuf, aged about 68 years, Mst. Zainab Banoo, aged about 60 years, brother-in-law Zubair, aged about 40 years and Mst. Aliya, wife of his brother-in-law. Complainant also saw dead body of baby Rida Zubair, aged about 12/13 years, lying at the upstairs. All the deceased persons had received injuries by means of sharp cutting weapons. Complainant went to the police station Saddar and lodged F.I.R. on 29.02.2012 at 2000 hours. It was recorded vide Crime No.62/2012 at P.S. Saddar, District South, Karachi under sections 302/34, PPC.

 

3.†††††† Investigation Officer Muhammad Siddique inspected place of wardat situated in a bungalow of Askari-III where the dead bodies were lying, the same were shifted to hospital. Investigation Officer secured blood stained clothes, blood, blood stained clothes of deceased and prepared such mushirnama in presence of the mashirs. Investigation Officer recorded 161 Cr.P.C statements of the prosecution witnesses. On 06.03.2012 accused Muhammad Ishaq was arrested by IO Atiq-ur-Rehman in front of Al-Tahir Hotel, Cantt. Station Karachi and recovered two mobile phones from his possession in presence of mashirs. During interrogation accused disclosed that after commission of murders of deceased persons, he had taken jewellery and mobile phones from the house of the deceased persons and accused led the police party to Surjani Town, House No.656 and knocked the door. One person, namely, Mustafa came out of the house. Accused disclosed that on 29.02.2012 he had given robbed articles to Ghulam Mustafa. P.W Ghulam Mustafa produced the looted articles to the police party, the same were secured by the IO in presence of the mashirs. Thereafter, accused led the police to Gulshan-e-Sikandar where he had concealed bloodstained shirt and dagger used by him in the commission of offence. The same were secured by the Investigation Officer in presence of mashirs and were sealed. Mashirnama was prepared in presence of private mashir, namely, Muhammad Ali. Investigation Officer sent bloodstained shirt of accused to the chemical examiner. On 07.03.2012 accused led the police party to the JPMC to produce shirt of deceased Arif which accused had worn when his shirt was stained with blood, given to laundry. Accused led the police to dry cleaner shop situated in front of JPMC and shopkeeper at the instance of accused handed over the shirt of deceased so also the receipt to the police, the same were sealed in presence of mashirs. Investigation Officer got 164, Cr.PC statements of PWs Ghulam Mustafa and Ghulam Murtaza recorded. On 13.03.2012 ornaments of gold were identified by PW Mst. Zaitoon before Magistrate and she stated that same ††belonged ††to ††her ††deceased ††mother ††Mst. Zainab. On 13.03.2012 IO issued letter for comparing the sample of the finger prints of accused with the finger prints preserved from place of incident. Finger Print Expert confirmed that the thumb impressions of accused matched with the samples taken by the police from vardat. Investigation Officer had also sent bloodstained clothes of the deceased persons and bloodstained shirt of accused for DNA test. As per DNA report, bloodstained shirt of deceased Mrs. Alia matched with the shirt of accused. On the conclusion of the investigation, challan was submitted against the accused under above referred section.

 

4.†††††† Charge was framed against the accused under Section 302, PPC at Ex-5. Accused pleaded not guilty and claimed to be tried.

 

5.†††††† In order to prove itís case, prosecution has examined following witnesses:-

(1)              PW-1 Syed Umer Bin Saghir at Ex.6. He has produced statement U/s 154, Cr.P.C, as Ex.6/A.

 

(2)              PW-2 Muhammad Danish at Ex.7, he produced inquest report and memos of inspection of dead bodies of deceased persons namely Mst.Zainab wife of Arif Yousuf Alia wife of Zubair, Baby Rid a daughter of Zubair, Arif Yousuf son of Yousuf and Zubair Arif son of Arif Yousuf as Ex.7/A to Ex.7/J, respectively.

 

(3)              PW-3 Mst.Zaitoon Umar at Ex.9.

 

(4)              PW-4 Iftikhar Hussain at Ex.10.

 

(5)              PW-5 PC Lal Muhammad at Ex.11. He produced memo of recovery of ornaments of gold and mobile phones as Ex.11/A.

 

(6)              P.W-6 Mr. Mumtaz Ali Solangi at Ex.12. He had recorded Judicial confession of accused and produced it at Ex.12-K and recorded 164 Cr.P.C statements of P.Ws Ghulam Murtaza Ex.12-A and Ghulam Mustafa 12-C.

 

(7)              P.W-7 Dr. Kalim at Ex.14. He had conducted post mortem examination of deceased Arif Yousif and Zubair and produced post mortemreports at Exh.14-A and 14-B respectively.

 

(8)              P.W-8 Ghulam Mustafa at Ex.15.

(9)              P.W-9, Muhammad Siddique at Ex.16, he produced memo of place of vardat and seizure at Ex.16-A and copy of F.I.R at Exh.16-B.

 

(10)         P.W No.10, Ghulam Murtaza, he has produced memo of seizure of shrit at Ex.17-A.

 

(11)         P.W-11 Muhammad Ali at Ex.18, he produced memo of sezuire and arrest of accused at Ex.18-A.

 

(12)         P.W-12 Dr. Rohina at Ex.19. She has produced post mortem reports of deceased Zainab Bano at Ex.19-A,Mst. Aalia at Ex.10-D and baby Rida at Ex.19-F.

 

(13)         P.W-13 Zahoor Ahmed at Ex.20.

(14)         P.W-14 ASI Muhammad Asif at Ex.21, he produced memo of search, seizure and arrest of accused at Ex.21-A.

 

(15)         P.W 15, Inspector Atiqurehman, Investigation Officer at Ex.22. He produced report of finger print expert at Ex.22-G. He has produced DNA report at Ex-22-K and positive chemical reports at Ex.22.

 

††††††††† Thereafter, learned DDPP closed prosecution side vide statement at Ex.23.

6.†††††† Statement of accused was recorded under section 342, Cr.PC at Ex-24. Accused denied the prosecution allegations. Accused did not lead evidence in defence and declined to give statement on oath. Thereafter, Syed Ikram-ur-Rehman, Additional Sessions Judge, Karachi South was transferred. Mr. Sohail Jabbar Malik was posted as Additional Sessions Judge-II, Karachi South. After perusal of the statement of accused already recorded, he came to the conclusion that his learned predecessor had not put all the incriminating pieces of evidence to the accused while recording his statement under section 342, Cr.PC. Vide orders dated 12.07.2013 learned A.D.J. ordered for putting material questions which were not previously put to accused and statement of accused under section 342 Cr.P.C was recorded to that extent only at Exh.26. Accused denied the commission of five murders at night time in the bungalow, situated in Askari-III, Karachi. Accused had also denied the recovery of articles of the gold from house of PW Mustafa. Accused has stated that churri has been foisted upon him.

 

7.†††††† Learned trial Court after hearing the learned counsel for the parties, and assessment of the entire evidence, convicted accused under Section 302(b), PPC and sentenced to death as stated above. Accused was also convicted under section 392, PPC and sentenced to 10 years R.I. Appellant has challenged the conviction and sentence recorded against him. We intend to dispose of the aforesaid appeal as well as death reference made by the trial Court.

 

8.†††††† Mr. Abdul Rasheed Nizamani, learned advocate for appellant contended that incident was un-witnessed, there was no evidence regarding the entry of appellant in Askari-III bungalow at night time from outside. It is also argued that no guard of Askari-III Apartments has been examined by the prosecution in support of its case. It is also argued that it was impossible for appellant to commit murder of five persons alone. He has also argued that all the pieces of evidence were not sufficient for conviction without independent corroboration which was lacking in the case. ††††††††††Mr. Nizamani argued that evidence of recovery of the ornaments of the gold from the house of friend of accused was not reliable as identification of ornaments of gold through PW Mst. Zaitoon was held in absence of the appellant before the Magistrate. Mr. Nizamani further argued that confession of accused was not voluntary as accused was in police custody since two days and he was maltreated for such confessional statement. It is also argued that the evidence of finger prints could not be relied upon as finger prints were not preserved through some expert method. Regarding DNA test, it is argued that such report has been managed by the police. He argued that circumstantial evidence was not sufficient for awarding death penalty to the appellant. Lastly, argued that prosecution case is doubtful.

 

9.†††††† Mr. Mohammad Iqbal Awan, learned APG, assisted by learned advocate for the complainant argued that appellant was driver of the deceased persons and he was aware about the rooms and articles lying in the bungalow of the deceased persons. He has argued that appellant was removed from service by the deceased. Appellant again approached to the deceased Arif for joining as a driver but he was refused. Mr. A.P.G. argued that appellant was habitual of taking drugs and was gambler and he had entered into the house of the deceased persons at night time for committing the robbery when the inmates woke up appellant committed murder of five deceased persons. It is submitted that prosecution has established motive against appellant for commission of offence. As regards to the pieces of evidence collected against appellant are concerned, it is argued that appellant was arrested by the police on 06-03-2012 and during interrogation disclosed that he had given looted articles to his friend and led police to the house of PW- Mustafa to Surrjani Town and ††††††††††††††††PW-Mustafa, produced ornaments of the gold given to him by the appellant and those ornaments were identified by Mst. Zaitoon before the Magistrate and stated that same articles belonged to Mst.Zainab Bano. Learned APG further argued that at the time of inspection of the place of wardat, finger prints were taken by the Investigation Officer which were sent to the finger print expert by taking samples of accused, positive report was received; He has also contended that accused led police party and produced blood stained shirt which he was wearing at the time of incident and the shirt of deceased Arif which was worn by the accused after the commission of the offence. Learned APG has also argued that blood stained shirt of Mst. Aliya was sent along with blood stained shirt of the accused for DNA test, report was positive. As regards to the confession of accused, learned APG argued that after arrest, accused was produced before Magistrate where he had voluntarily confessed the guilt and narrated the manner in which he had committed the offence. It is further argued that medical evidence corroborates whatever has been stated by the accused in his confessional statement. Regarding the contention of learned defence counsel that there was no evidence that from which entry point appellant had entered in Askari-III bungalow, it is argued that appellant was driver of the deceased persons and he was familiar with guards of Askari-III, he had no restriction to reach at the bungalow of the deceased persons. Learned APG submits that prosecution had produced different pieces of circumstantial evidence to connect appellant in the commission of the offence. In support of the contentions, he has relied upon the case law reported as:-

1.      Muhammad Amin versus The State (PLD 2006 Supreme Court 219)

2.      Muhammad Ihsan versus The State (PLD 2004 Supreme Court 376)

 

8.†††††† We have carefully heard learned counsel for parties and perused evidence. With regard to the unnatural death of deceased persons, Arif Younuf, Mst. Zainab, Zubair Arif, Mst. Aliya Zubair and baby Rida, PW-7 Dr. Kaleem deposed that on 29.02.2012 he was posted at JPMC. At about 02:30 p.m. dead bodies of Arif Yousuf son of Yousuf and Zubair son of Arif Yousuf were brought to JPMC. He conducted postmortem examination of deceased and found 3 stab wounds on the dead body of Arif Yousuf and medical officer opined that his death had occurred due to cardiorespiratory failure in result of injuries caused by sharp edged weapon. During postmortem examination of deceased Zubair son of Arif Yousuf, medical officer found 12 injuries. In his opinion death occurred due to cardiorespiratory failure resulting from sharp edged weapon.

 

10.†††† PW-12 Dr. Rohina Hashmi has deposed that on 29.02.2012 she was posted in JPMC. Dead body of Mst. Zainab Banoo wife of Arif Yousuf was brought by police for conducting postmortem examination and report. She conducted postmortem examination and in the opinion of WMO death occurred due to hemorrhage caused by sharp edged weapon. WMO had also conducted postmortem examination of Aliya Zubair wife of Zubair Arif, on the same day. She opined that her death occurred due to hemorrhage, shock resulting from multiple injuries over chest and abdomen and upper limb inflicted from some sharp edged weapon. On the same day WMO conducted postmortem of Ms. Rida aged about 13/14 years and opined that death had occurred due to hemorrhage shock resulting from multiple injuries over chest and abdomen and upper limb inflicted with sharp edged weapon, leading to the cardiorespiratory failure.

 

11.†††† Learned counsel for the appellant has also not disputed the unnatural death of five deceased persons. We, therefore, hold that five deceased persons were killed by means of sharp edged weapon as described by medical officers.†††††

 

12.†††† P.W-1 Syed Umer Bin Saghir has deposed that present incident occurred on 29.02.2012. At that time, he was present in his office along with his wife. At about 11:15 am to 11:30 am, his wife received call from the driver of father that door of the house was closed and baby had also not gone to the school. Thereafter, Syed Umer Bin Saghir went to the house of his in-laws and reached there at 11:45 am and saw that driver of his in-laws was present outside of the home at SD-35, Askari-III Apartment, while informing Committee of Askari-III. He entered into house and found dead bodies of his father-in-law Arif Yousuf, his wife Zainab, son Zubair and wife of Zubair Alia who had received knife/churry blows. At the upper floor of the house, baby Rida aged about 12/13 years was also lying dead. He reported the matter to the police and produced statement u/s 154 Cr.P.C at Ex.1/A.

 

13.†††† P.W-2 Muhammad Danish has deposed that on 29.02.2012 at 12:30 pm, he received information that house of his maternal aunty was closed and nobody was responding. He went to the place of occurrence, entered into the house along with complainant Umer and found dead bodies of Mst. Zainab, Arif, Zubair, wife of Zubair namely Alia and Baby Rida aged about 12/13 years. Deceased had sustained knife injuries. He acted as mashir of inquest reports.

 

14.†††† PW-3 Mst. Zaitoon Umer has deposed that on 29.02.2012 she along with her husband was performing duties in the office. At 11:15 to 11:30 a.m. she received a call from driver that her bhabi and her children had not gone to the school and main gate was closed since morning. After hearing this news, Mst. Zaitoon Umer called her father, mother, but their numbers were switched off. Thereafter, her husband made her to stay in the office and he went to check the situation to the house of Arif Yousuf. After sometime, her husband called her that blood was lying in the house of her parents and all family members have been murdered. Mst. Zaitoon, on hearing this news became senseless and after a few days came to know that Muhammad Ishaq driver of her parents had committed such murders and took ornaments of the gold from the house. Mst. Zaitoon identified six bangles of gold and mobile phones recovered from accused in the identification before Magistrate.

 

15.†††† P.W-5 Lal Muhammad has deposed that on 06.30.2012, he was posted at Crime Branch Karachi. Inspector Ch. Amir arrested accused Muhammad Ishaque on the same day at 9:30 am from footpath of Al-Tahir Hotel, Cantt. Karachi. Thereafter, accused led police party to Surjani Town phase-II and PW Ghulam Mustafa came out from house and police recovered three mobiles, six bangles of gold and two rings of gold and other articles given to PW Mustafa by accused.

 

16.†††† P.W-6 Mr. Mumtaz Ali Solangi, Judicial Magistrate has deposed that on 07.03.2012, Inspector Atiq ur Rehman produced P.Ws. Ghulam Murtaza son of Ghulam Sarwar and Ghulam Mustafa son of Muhammad Sadiq for recording their 164 Cr.P.C statements in Crime No. 62/2012 registered at P.S Saddar u/s 302 PPC. He recorded the same. On 08.03.2012, I.O produced accused Muhammad Ishaque for recording his confession at††† 01:15 pm. Thereafter, he has stated that custody of the accused was handed over to the Court staff and IO was directed to leave the Court premises. Accused was warned that he was not bound to make confession, in case he makes confession, the same will be used against him. After completing legal formalities, time of reflection from 1:30 pm to 3:30 pm was provided to the accused. After 3:30 pm, again accused was brought in open court. Police was not present there. He was informed that his custody will not be given to the same police in case, he refuses to make confession. Thereafter, Magistrate has deposed that he put questions to the accused regarding any inducement, threat or promise by the police. After satisfaction, he recorded confession of accused, in which accused admitted that he had committed murder of five innocent persons.

 

17.†††† P.W-8 Ghulam Mustafa, deposed that on 29.02.2012, he was present at his house. At about 11:30 am, Muhammad Ishaque (present accused) came to his house and handed over him six bangles, two tops, two finger rings, two earrings and one locket without chain so also three mobiels two Nokia and one Q mobile and told to Ghulam Mustafa that he has won these articles in gambling. On 06.03.2012 at noon time, door of the house of Ghulam Mustafa was knocked, he came at the door and saw that police Inspector was present along with accused and Ghulam Mustafa informed the inspector that accused had kept articles at his home and articles were produced by Ghulam Mustafa. Mashirnama of recovery of the articles was prepared by the Inspector in presence of mashirs.

 

18.†††† P.W-9 Muhammad Siddique has deposed that on 29.02.2012, he was posted at P.S Saddar. He received information that five persons have been murdered in a bungalow of Askari-III. On the directions of the S.H.O., he went to the place of incident. During inspection, he secured Khajoor, Zamzam water from the bungalow. He collected blood and blood stained clothes in presence of mashirs Bahadur Khan and Iftikhar and prepared such mashirnama. He recorded 161 Cr.P.C statements of the P.Ws. Thereafter, he was transferred.

 

19.†††† P.W-10 Ghulam Murtaza has deposed that he runs Ghousia Hair cutting and Dry cleaners shop near JPMC Karachi. On 29.02.2012, accused Muhammad Ishaque came at his shop in berween 7:30 am to 7:45 am for taking bath. After taking bath, accused Muhammad Ishaque gave him a suit, trouser and shirt for washing. On 07.03.2012, in the evening police came along with accused Muhammad Ishaque at his shop and police took clothes i.e. one suit, trouser and blue shirt and sealed the same and prepared such mashirnama.

 

20.†††† P.W-11 Muhammad Ali has deposed that on 06.03.2012, he went to see plot situated at Sikandarabad. At 4:00 pm, he was standing at bus stop where police mobile came, in which accused was sitting. Police official told to Muhammad Ali that accused wanted to produce something from earth. On the pointation of accused, police secured one plastic bag lying under the land. On opening of the same one blood stained dagger and shirt were recovered. Police sealed the same at spot and he was made as mashir.

 

21.†††† PW-13 Zahoor Ahmed had deposed that on 29.02.2012 he was posted at police station Saddar, he received entry No.18 from Major (Retd) Akbar Lodhi of Askari-III regarding incident which had taken place in bungalow No.SD-35 in which five persons were murdered.

22.†††† PW-14 ASI Muhammad Asif deposed that on 06.03.2012 he received information from Inspector Chaudhry Muhammad Amir that accused was standing in front of Al-Tahir Hotel, Cantt. Station, Karachi, thereafter, present accused was arrested and two mobile phones were recovered from him. He acted as mashir of recovery.††

23.†††† PW-15 Atique Rehman, investigation officer, has deposed that on 06.03.2012 accused Muhammad Ishaq was arrested in front of Al-Tahir Hotel, Cantt. Station Karachi and recovered two mobile phones from his possession in presence of mashirs. During interrogation accused disclosed that after commission of murders of deceased persons, he had taken jewellery and mobile phones from the house of the deceased persons and accused led the police party to Surjani Town, House No.656 and knocked the door of his friend. One person, namely, Mustafa came out of the house. Accused disclosed that on 29.02.2012 he had given robbed articles to Ghulam Mustafa. P.W Ghulam Mustafa produced such articles before the police party, the same were secured by the IO in presence of the mashirs. Thereafter, accused led the police to Gulshan-e-Sikandar where he had concealed bloodstained shirt and dagger used by him in the commission of offence. The same were secured by the Investigation Officer in presence of mashirs and were sealed. Mashirnama was prepared. Investigation Officer sent bloodstained shirt of accused to the chemical examiner. On 07.03.2012 accused led the police party near JPMC to produce shirt of deceased Arif which accused had used when his shirt was blood stained. Accused led the police to dry cleaner shop situated in front of JPMC and shopkeeper handed over the shirt of deceased so also the receipt to the police, the same were sealed in presence of mashirs. Investigation Officer got 164, Cr.PC statements of PWs Ghulam Mustafa and Ghulam Murtaza recorded. On 13.03.2012 ornaments of gold were identified before Magistrate by PW Mst. Zaitoon and she stated that same belonged to her deceased mother†† Mst.Zainab. On 13.03.2012 IO issued letter for comparing the sample of the finger prints of accused with the finger prints preserved at place of incident. Finger Print Expert confirmed that the thumb impressions of accused matched with the samples taken by the police from vardat. Investigation Officer had also sent bloodstained clothes of the deceased persons and bloodstained shirt of accused for DNA test. As per DNA report, bloodstained shirt of deceased Mrs. Alia matched with the shirt of accused. On the conclusion of the investigation, challan was submitted against the accused under above referred sections.

24.†††† After close scrutiny of prosecution evidence, we have come to the conclusion that undeniably, it is an un-witnessed incident. The entire edifice of the prosecution case is based on circumstantial evidence, judicial confession of accused and recoveries of the incriminating articles, details of which are mentioned above.

25.†††† Judicial confession made by appellant is material piece of evidence with the prosecution. Therefore, we discuss such piece of evidence in the first instance. It is settled law that before recording confession in a case entailing capital punishment, the Magistrate has to essentially observe all the mandatory pre-cautions. The fundamental logic behind the same is that, all signs of fear in the mind of accused are removed and accused is to be provided full assurance that in case he refuses to make confession, he would not be handed over back to police. Sufficient time for reflection is to be given after the first warning is administered after observing all the legal requirements, if accused is willing to confess, then all required questions should be put up to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by Magistrate with his own handwriting and in case there is genuine compelling reason, then special note is to be written that same was dictated to a responsible official of the court. In case accused is illiterate, confession he makes if recorded in other language i.e. Urdu or Sindhi then after its completion, the same be read over and explained to him in the language accused fully understand and there after a certificate as required under section 364 Cr.P.C with regard to these proceedings be given by the Magistrate under his seal and signature and the accused shall be sent to the jail.

26.†††† In the present case, accused Muhammad Ishaq was brought by the IO Atiq-ur-Rehman before Judicial Magistrate in his Court at 01:30 pm on 08.03.2012 for recording his confession in Crime No.62/2012 under section 302, PPC. Custody of the accused was given to the court staff. Accused was warned by Magistrate that he was not bound to make confession yet any statement he makes will be taken down in writing and may thereafter be used against him. Then time was allowed to accused for reflection from 01:30 pm to 03:30 pm. Accused was again produced before Magistrate at 3:30 pm, thereafter, Magistrate satisfied that there was no police man in the Court or at any place where the proceedings could be seen or heard. Accused was asked if he is ready to make confession of his own freewill. The body of accused was examined with his consent and no violence mark was seen on whole body of accused. Questions and answers were as follows:

Question:†††† Have you been given inducement, threat or promise by the police or any one also which induce you to make this confession?

Answer:†††††† No Sir, no any inducement, threat or promise by the police.

Question:†††† Have you been beaten or maltreated by the police?

Answer:†††††† No Sir.

Question:†††† Has any family member of your male or female been sent to you by the police in order to pressurize you to confess?

Answer:†††††† No Sir.

Question:†††† What the circumstances which are inducing you to confess?

Answer:†††††† I confessed with my own consent. I feel guilty of murder of 5 innocent persons.

Question:†††† Are you aware that I am Magistrate and if you make a confession, I am required to record it?

Answer:†††††† Yes Sir.

Question:†††† Are you aware that if you make a confession it will be used against you at your trial and on the basis you may be convicted and sentenced for offence?

Answer:†††††† Yes Sir, I committed the offence u/s 302 PPC.

 

††††††††† Manner of the incident in detail has been mentioned by the accused in his confession that he committed murders, took away ornaments of gold and mobiles.†††

 

27.†††† In the instant case, Mr. Mumtaz Ali Solangi, Judicial Magistrate, after observing precautions, required under the law recorded confession of accused. Accused in his confessional statement stated before Magistrate that he was performing duty as driver in Karachi since 14-15 years. He had served as driver at Ghazi Ambulance. He was driver with deceased Arif. After service of 6 months, he went to village by providing the services of another driver. After 10 days of availing leave, when accused returned back he knocked the door of deceased Arif but deceased Arif refused to continue his service while saying that he was drinking wine, and was gambler. He further stated to driver that children of Arif told him that he was driving the car fast. Accused has stated in his confession that on 28.02.2012, he purchased a dagger from Saddar, Karachi. On 29.02.2012 at 02:30 a.m. or 03:00 a.m through wall of the bungalow, he entered into the room where deceased Zubair, the son of Arif was sleeping. Accused has stated that he was proceeding to the room of father of Zubair. Remote bell fell down on the ground and deceased Arif woke up and accused went to the store room. Wife of Zubair also raised cries and accused committed murders of Zainab Bibi, Arif Yousuf, Alia, Zubair Arif and baby Rida. Accused in his confession has stated that he searched the rooms and took the mobile phone model 6030 and three other mobiles, six bangles of gold and cash Rs.7500/-, ear rings and other ornaments of the gold. His shirt was stained with blood and he put on shirt of deceased Zubair. Thereafter, he put his shirt and dagger in a shopper and came out from Askari-III from school side and went to barber shop for taking bath at 07:30 a.m. He has further confessed that he gave clothes to Murtaza, hamam owner and proceeded to Kiamari where he had hidden the dagger and blood stained shirt by wrapping in a plastic shopper near sea. Then, he went in a bus to Khuda ki Basti, Surjani Town, Karachi to his friend, namely, Ghulam Mustafa and gave him looted articles, mobile phones while saying that he has won all articles in gambling and he returned back in the evening. On 06.03.2012 at 09:30 a.m. he was standing in front of Al-Tahir Hotel Cantt. Station, Karachi. Police arrested him and recovered mobile phones from his possession. He produced bloodstained shirt and dagger from Kiamari and led the police to the house of Ghulam Mustafa at Surjani Town and Mustafa produced ornaments of gold and mobile phones given to him by the accused. Accused in his confessional statement has narrated minute details of offence committed by him and details of recoveries. Learned Magistrate has stated that confessional statement of the accused was true and voluntary.

 

28.†††† We find that confessional statement of accused Muhammad Ishaque was true and voluntary, conviction can be based on his confession. In the case of MUHAMMAD AMIN versus THE STATE (PLD 2006 Supreme Court 219) Honourable Supreme Court of Pakistan has held that conviction can be based on confession if Court satisfies and believes that it was true and voluntary and was not obtained by pressure, coercion or inducement. It is held as under:

 

ď9. ††† There is no cavil to the proposition that conviction could have been awarded on the basis of retracted confession which proposition was examined in case of Mst. Joygun Bibi v. The State PLD 1960 (SC (Pak) 313 as under:

 

"We are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."

 

10. ††† Similarly in the case of the State v. Minhun alias Gul Hassan PLD 1964 SC 813 this Court has observed as under:

 "As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession, whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well-settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly A form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement."

 

29.†††† There are other pieces of evidence against the accused that on 06.03.2012 accused was arrested at 09:00 am in front of Al-Tahir Hotel, Cantt. Station, Karachi and two mobile phones were recovered from his possession. During interrogation, accused admitted that after commission of murders he had taken jewellery and mobile phones from the house of the deceased persons and accused led the police party to Surjani Town, House No.656 and knocked the door. One person, namely, Mustafa came out of the house. Accused stated that on 29.02.2012 he had given robbed articles to Ghulam Mustafa. Accused Ghulam Mustafa produced such articles before the police, the same were secured by IO in presence of the mashirs. Accused stated that after committing murder his shirt was bloodstained, he changed it at the place of occurrence with shirt of Zubair and took the police to Gulshan-e-Sikandar where he had concealed these articles and produced bloodstained shirt and dagger used by him in the commission of offence. The same were secured by the Investigation Officer, in presence of mashirs and were sealed. Mashirnama was prepared in presence of private mashir, namely, Muhammad Ali. Thereafter, Investigation Officer sent bloodstained shirt of accused to the chemical examiner. On 07.03.2012 accused led the police party to the JPMC to produce shirt of Arif which accused had used when his shirt was bloodstained. Accused led the police to dry cleaner shop situated in front of JPMC and shopkeeper handed over the shirt of accused so also the receipt to the police, the same were sealed in presence of mashirs. Ornaments of gold were identified before the Magistrate by PW †††††††††††Mst. Zaitoon and she stated that same belonged to her deceased mother Mst. Zainab. Samples were taken from the accused from Central Prison, Karachi. Finger Print Expert confirmed that the thumb impressions preserved at place of vardat matched with the samples of accused. Investigation Officer had sent bloodstained clothes of the deceased and bloodstained shirt of accused for DNA test. As per DNA report bloodstained shirt of deceased Mrs. Alia matched with the shirt of accused. This piece of evidence has also not been questioned by defence counsel. Medical evidence shows that all the deceased persons died unnatural death by receiving injuries with sharp cutting weapon.

30.†††† In this case, learned trial Court has properly appreciated the evidence according to the settled principles of law. There were different pieces of evidence, connecting the accused with the commission of offence. Confession of accused was voluntary, it was corroborated by medical evidence. Recovery of ornaments of gold and two mobile phones of the deceased persons, bloodstained shirt of accused was sent to the chemical examiner for report, positive report was received, positive DNA report regarding the matching of the blood stained shirt of deceased Mst. Aliya with the shirt of accused was received. No evidence has been produced by accused in defence. PWs had no motive to falsely implicate the accused in this heinous crime. Accused has committed five murders in a brutal manner. This is the case of circumstantial evidence. It is settled principle of law that death sentence can be awarded on circumstantial evidence, provided that circumstances constituted a chain and itís no link is missing and their combined effect is that the guilt of the accused is established beyond any shadow of doubt. In the case of MUHAMMAD ISHAQ versus THE STATE (2009 SCMR 135), the Honourable Supreme Court of Pakistan as observed as under:-

 

ďIt is the settled principle of law that death sentence can be awarded on circumstantial evidence, provided that circumstances constituted a chain and itís no link is missing and their combined effect is that the guilt' of the accused established beyond any shadow of doubt. The brutal and atrocious manner in which the appellant committed murders of his wife and his mother-in-law does not call for any leniency in the sentence. Reliance is placed on the case reported as Muhammad Ajmal v. The State PLD 2003 SC 1 wherein this Court had held that the brutal and atrocious manner in which the petitioner committed the cold-blooded murders of his wife and her mother does not call for any leniency in the sentence. Moreover, the learned trial Court as well as the learned High Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. Learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned judgment warranting interference by this Court. Accordingly, the appeal being devoid of merit is dismissed

 

31.†††† In this case, after arrest accused had led the police to the house of his friend Mustafa and produced jewellary and mobile phones robbed by him from the house of the deceased persons, produced bloodstained shirt and dagger used by him in the commission of offence. Investigation Officer had sent bloodstained clothes of deceased and bloodstained shirt of accused for DNA test. As per DNA report bloodstained shirt of deceased Mrs. Alia matched with the shirt of accused. Accused made voluntary confession and medical evidence reflected that all the deceased persons died unnatural death by receiving injuries with sharp cutting weapon. As regards to the motive, accused in his confession before the Magistrate has clearly stated that he was driver of deceased Muhammad Arif. He went on leave, on his return, deceased refused to continue his service as driver, which caused much annoyance to accused. He purchased dagger, entered into the house of deceased at night time for committing robbery when the deceased persons woke up, he committed their murders and looted jewellary and mobile phones, which were recovered during investigation. As such, prosecution has succeeded to prove the motive against the accused. From the circumstantial evidence, it is proved that chain has not been broken, each and every circumstance connect with each other and lead to the guilt of the accused.

 

32.†††† Death sentence has rightly been awarded to the accused. There are no mitigating circumstances in this case for awarding lesser penalty. In the case of NOOR MUHAMMAD V. STATE (1999 SCMR 2722) has also adverted to this aspect of the matter and has observed as under:--

"However, we may observe that the people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It is high time that the Courts should realise that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such which should act as a deterrent to the commission of offences. One of us (Ajmal Mian, C.J., as he then was) has highlighted this aspect, inter alia in the case of State through the Advocate-General Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1), relevant portion whereof at page 19 reads as follows:--

(3) ††† It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences, the people are feeling insecure. The learned trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution the technicalities should be overlooked without causing any miscarriage of justice."

 

33.†††† For whatever has been discussed above, we hold that prosecution has proved its case against the appellant beyond any shadow of doubt. Trial Court has appreciated the evidence according to the settled principles of the law. Judgment of trial Court requires no interference. Resultantly, appeal is dismissed and Reference for confirmation of death sentence is answered in affirmative.

 

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Gulsher/PS