2017 P Cr. L J Note 22

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

NADEEM AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.83 and Reference No.07 of 2008, decided on 23rd February, 2016.

(a) Penal Code (XLV of 1860)---

----S. 302---Qatl-i-amd---Appreciation of evidence---Accused, admitted commission of murder and in his confession, narrated manner of the incident---Confessional statement of accused, was not the result of maltreatment and coercive measures---Judicial Magistrate, who recorded confessional statement of accused gave time for reflection/relaxation---Confessional statement was found to be true, voluntary and confidence inspiring by the Trial Court---Accused at the time of framing of charge, pleaded guilty, and said plea of accused was recorded in detail---Accused in his statement recorded under S.342, Cr.P.C., admitted all the incriminating pieces of evidence---Prosecution had proved its case against accused beyond any shadow of doubt---Trial Court had rightly awarded death sentence to accused as he had committed murder in a very brutal manner and cut the dead body into pieces--- Accused, in circumstances, should not be dealt with leniency; as there was no mitigating circumstance in the case---Death sentence in a murder case, was a normal penalty; and the courts while diverting towards lesser sentence, should have to give detailed reasons---Appeal being meritless was dismissed---Reference made by the Trial Court for confirmation of death sentence, was answered in affirmative, in circumstances. [Paras. 12, 14, 15, 16, 17 & 19 of the judgment]

(b) Criminal Procedure Code (V of 1898)---

----S. 164---Confession---Conviction could not be recorded on the sole basis of confessional statement, and the prosecution had to prove its case beyond any shadow of doubt. [Para. 12 of the judgment]

(c) Penal Code (XLV of 1860)--

----S. 53---Punishments, concept and awarding of---Conceptually, punishment to an accused, was awarded on the concept of retribution; deterrence or reformation---Deterrent punishment was not only to maintain balance with gravity of wrong done by a person, but also to make an example for others as a preventive measure for reformation of the society. [Para. 17 of the judgment]

            Abdul Razzak for Appellant.

            Muhammad Iqbal Awan, A.P.G. for the State.

            Date of hearing: 10th February, 2016.

JUDGMENT

            NAIMATULLAH PHULPOTO, J.---Appellant Nadeem Akhtar was tried along with co-accused Muhammad Nasir Saleem by learned IV-Additional Sessions Judge, Hyderabad in Sessions Case No. 526/2007 (Crime No. 90/2007) registered at P.S B-Section Latifabad, Hyderabad, for offences under sections 302/364/34, P.P.C. After full-dressed trial, learned IV-Additional Sessions Judge, Hyderabad, vide judgment dated 29.08.2008, convicted appellant Nadeem Akhtar under section 302, P.P.C. and sentenced him to death. Appellant Nadeem Akhtar was also directed to pay compensation of Rs.1.00,000/- to the legal heirs of deceased Haseeb Lodhi. Co-accused Muhammad Nasir Saleem was acquitted. Trial Court made reference to this court for confirmation of death sentence or otherwise. By this judgment, we dispose of the aforesaid appeal as well as connected Reference made by the trial Court.

2.         Brief facts of the prosecution case as disclosed in FIR are that on 28.10.2007 at 2030 hours son of the complainant namely Muhammad Haseeb Lodhi (now deceased) aged about 34 years, teacher in Government High School, Tando Muhammad Khan left house by telling his wife that he was going to his fast friend Nasir through whom, he would meet Nadeem who is exorcist for obtaining winning number as Nasir has won prize bonds through said Nadeem. It is alleged that deceased had also purchased prize bonds of more than Rs.100,000/- of Rs.7500/- each. Thereafter, son of the complainant did not return back to home. Complainant made search of his son but without any result. In the end of FIR, complainant has stated that accused Nasir and Nadeem had abducted his son in order to murder. FIR was recorded by ASI Muhammad Ayub Soomro at P.S B-Section Latifabad, Hyderabad vide Crime No. 90/2007 under sections 364/34, P.P.C.

3.         The case was investigated by SIP Zulfiqar Baloch. He recorded 161, Cr.P.C. statements of P.Ws Moin-ul-Hassan and Irshad. House of accused Nadeem was shown to the I.O by complainant Hanif Lodhi. I.O prepared mashirnama of place of wardat in presence of mashirs and arrested accused Nadeem Akhtar and Nasir Saleem on 30.10.2007 from Katcha Bund Unit No.10, Latifabad, Hyderabad and prepared mashirnama of their arrest in presence of mashirs Irshad Ahmed and Moin-ul-Hassan. Thereafter, Investigating officer interrogated accused. During interrogation, accused Nadeem Akhtar admitted that he had committed murder of Haseeb for money/prize bonds. On such admission, I.O. took accused Nadeem Akhtar to his house and on the pointation of accused Nadeem Akhtar, I.O secured one Chopper and one dagger so also pieces of the dead body of the deceased from water tank of house. Thereafter, accused Nadeem Akhtar produced one motorcycle CD-70 model 1999 and mobile phone belonging to the deceased, so also blood stained shalwar and shirt of deceased in torn condition. I.O prepared such mashirnama of recovery in presence of the same mashirs. Thereafter, I.O sent pieces of the dead body of deceased Haseeb in Edhi Ambulance through PC Shafique to Shah Bhittai Hospital for conducting postmortem examination of deceased and report. I.O sealed crime weapons and clothes for sending to the chemical examiner and brought accused Nadeem Akhtar back to the police station. It appears that during investigation, accused Nadeem Akhtar disclosed that eleven prize bonds of Rs.7500/- each belonging to the deceased have been handed over by him to P.W Abdul Subhan and one prize bond to Khadim Hussain. I.O also interrogated co-accused Nasir. Thereafter, I.O went to P.W Abdul Subhan, who disclosed to I.O that he had received eleven prize bonds of Rs.7500/- from accused Nadeem Akthar and I.O recovered the same and prepared such mashirnama in presence of HC Muhammad Akhtar and PC Shafique. I.O recorded 161, Cr.P.C. statement of PW Abdul Subhan on 30.10.2007. On 05.11.2007, I.O recorded 161, Cr.P.C. statement of Tarique Khan, from whom accused Nadeem Akhtar had purchased the crime weapons i.e. chopper and churri. It appears that during investigation, accused Nadeem Akhtar prepared to make confessional statement and I.O produced him before Civil Judge and Judicial Magistrate-X, Hyderabad, who recorded confessional statement of the accused. After receipt of reports from chemical examiner and on conclusion of the investigation, challan was submitted against both the accused for offences under sections 302/364/34, P.P.C. Case was sent up to the Court of Session.

4.         A formal charge was framed against both accused by learned IV-Additional Sessions Judge, Hyderabad at Ex.2. Accused Nasir Saleem pleaded not guilty and claimed to be tried. However, appellant Nadeem Akhtar pleaded guilty to the charge and narrated the manner of the incident in detail. The Trial` Court for its satisfaction recorded prosecution evidence as offence was punishable with death or imprisonment for life.

5.         At trial, prosecution examined the following witnesses:

1.         P.W-1 Complainant Muhammad Hanif at Ex.5

2.         P.W-2 Tarique at Ex.7

3.         P.W-3 Syed Moin-ul-Hassan at Ex.9

4.         P.W-5 Dr. Itefaque Hussain at Ex.14

5.         P.W-6 ASI Muhammad Ayoub Soomro at Ex.16

6.         P.W-7 Abdul Subhan at Ex.18

7.         P.W-8 Mr. Muhammad Asif Soomro Civil Judge and J.M at Ex.19

8.         P.W-9 Muhammad Akbar at Ex.21.

9.         P.W-10 SIP Zulfiqar Baloch at Ex.23

            Thereafter, prosecution side was closed vide statement at Ex.30.

6.         Appellant Nadeem Akhtar in his statement recorded under section 342, Cr.P.C. at Ex.31 admitted that he had called deceased Haseeb with prize bonds and demanded, on his refusal, he had committed his murder. He had admitted that he had voluntarily produced crime weapons, blood stained clothes, Nokia phone and motorcycle of deceased before the I.O/ SIP Zulfiqar in presence of mashirs. In a question what else he has to say? Accused Nadeem Akhtar confessed his guilt before the trial Court that he has committed murder of deceased Haseeb on his refusal to give the prize bonds as he had to pay loan of Rs.80,000/- to one Subhan. Accused repeated in his statement under section 342, Cr.P.C. that he had pleaded guilty to charge and admitted commission of murder of deceased without any pressure or inducement. Accused Nadeem Akhtar has stated that co-accused Nasir Saleem has no concern whatsoever in the commission of the offence. Accused did not lead evidence in defence.

7.         Trial Court on the conclusion of the trial, after hearing learned counsel for the parties and on the assessment of the evidence, acquitted co-accused Nasir Saleem vide judgment dated 29.08.2008 and convicted and sentenced the appellant as stated above.

8.         The facts of this case in detail as well as evidence produced before the trial Court find an elaborate mention in the judgment passed by trial Court dated 29.08.2008. Therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9.         Mr. Abdul Razzak learned Advocate for appellant Nadeem Akhtar contended that incident was un-witnessed. He has further contended that prosecution story appears to be unnatural and unbelievable. It is argued that appellant Nadeem Akhtar pleaded guilty to the charge, but it was discretion/option of court to record conviction or not. It is submitted that it was the primary duty of the prosecution to prove its case against accused beyond any shadow of doubt. Learned counsel for the appellant contended that confessional statement of accused was also not voluntarily and trial court without appreciating the evidence has wrongly awarded death sentence to the appellant. Mr. Abdul Razzak lastly argued that prosecution has failed to prove its case against the accused beyond any shadow of doubt. In support of his contentions, learned defence counsel has relied upon the cases reported as Hakam Deen v. The State through Advocate General and 15 others (PLD 2006 SC(AJ&K) 43), Tariq Mehmood v. The State (2000 PCr.LJ 837) and Khan Baig v. The State (PLD 1984 Lahore 434).

10.       Mr. Muhammad Iqbal Awan learned APG argued that appellant committed murder of deceased on his refusal to give him prize bonds and produced before I.O churri and chopper used by him in the commission of offence. Learned APG argued that appellant had pointed out water tank where he had thrown dead body after cutting into pieces and the same was recovered by the I.O. He has argued that prize bonds were also recovered during investigation. He argued that appellant made confessional statement during investigation before Magistrate. It is further argued that accused pleaded guilty to charge and admitted allegations in his statement recorded under section 342, Cr.P.C. Lastly, it is argued that trial Court had properly appreciated the evidence and awarded death sentence to the appellant. He prayed for dismissal of the appeal.

11.       We have carefully heard the learned counsel for the parties and perused the entire evidence.

12.       Evidence shows that accused Nadeem Akhtar was arrested on 30.10.2007. During interrogation, he admitted commission of the murder of deceased, on his refusal to give prize bonds to the appellant. Thereafter, appellant led I.O. to his house and he pointed out water tank where appellant had thrown dead body of the deceased by cutting into pieces, the same was recovered by the I.O. Blood stained churri, a chopper blood stained clothes, mobile and motorcycle of deceased were also produced by appellant from his house. During investigation, appellant prepared to make confessional statement and I.O produced accused before Civil Judge and Judicial Magistrate-X, Hyderabad where confession of accused was recorded. Appellant Nadeem Akhtar did not retract later on. In his confession; appellant narrated manner of the incident. It is settled law that conviction could not be recorded on the sole basis of confessional statement and the prosecution has to prove its case beyond any shadow of doubt. After going through the prosecution evidence, we have found that the confessional statement of the accused was not the result of maltreatment and coercive measures. The Judicial Magistrate has stated that the accused was given time for reflection/relaxation. Notwithstanding the procedural defect in the confessional statement as argued by learned counsel for the appellant, a confessional statement was found to be true, voluntary and confidence inspiring by the Trial Court.

13.       In the case of Muhammad Amin v. 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:

"9. 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 hearing 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 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 coercion or inducement."

14.       Record further revealed that accused Nadeem Akhtar at the time of framing of charge, pleaded guilty and plea of accused was recorded in detail as narrated/uttered by accused. On conclusion of the prosecution evidence, in the statement recorded under section 342, Cr.P.C., accused Nadeem Akhtar admitted all the incriminating pieces of evidence brought on record against him by prosecution during trial and replied that he had committed murder of deceased when he refused to give him prize bonds. Accused has stated that loan of Rs.80,000/- was outstanding against him and he had to repay the loan and committed murder of the deceased for prize bonds. Evidence shows that after arrest, accused Nadeem Akhtar led the police to his house, produced crime weapons, mobile phone, motorcycle of the deceased from his house and pointed out dead body, he had thrown in pieces in the water tank of the house.

15.       We have come to the conclusion that prosecution has proved its case against appellant beyond-any shadow of doubt for the reasons that during investigation appellant led police to his house and produced mobile phone and motorcycle of deceased and led police to the water tank of the house and produced crime weapons and dead body cut by him into pieces. Appellant made confessional statement before the Magistrate. Trial Court rightly believed that it was true and voluntary and was not obtained by torture or coercion. Appellant pleaded guilty to the charge at trial and admitted prosecution case in his statement recorded under section 342, Cr.P.C.

16.       We, therefore, hold that trial Court rightly awarded accused death sentence as appellant had committed murder in a very brutal manner and cut the dead body into pieces as such appellant should not be dealt with leniently.

17.       Conceptually punishment to an accused is awarded on the concept of retribution, deterrence or reformation. Deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society. In the present case, appellant has committed murder of a young person by cutting his dead body into pieces as such there is no mitigating circumstance or factor to persuade us to show any leniency to the culprit by converting the death sentence into imprisonment for life. Sentence of death would create deterrence in the society due to which no other person would dare to commit the offence of murder. We are satisfied that prosecution has proved its case against appellant beyond any shadow of doubt. If we take lenient view, then peace, tranquillity and harmony of society would be jeopardized and Vandalism would prevail in the society. Death sentence in a murder case is a normal penalty and the Courts while diverting towards lesser sentence should have to give detailed reasons. Nowadays, the crime in the society, has reached an alarming situation and the mental propensity towards the commission of the crime with impunity is increasing. Courts could not sacrifice such deterrence and retribution in the name of mercy and expediency. Sparing the accused with death sentence is causing a grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has been proved as held by the Honourable Supreme Court of Pakistan in the case reported Dadullah and another v. The State (2015 SCMR 856).

18        The honourable Supreme Court 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 insecured. 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."

19.       For the aforesaid facts and reasons, there is no merit in this appeal, which is hereby dismissed. Consequently, Reference made by the Trial Court for confirmation, of death sentence is answered in affirmative.

HBT/N-25/Sindh                                                                                Appeal dismissed.