Khadim Hussain Jagirani (Appellant) VS The State (Respondent)

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t IN THE HIGH COURT OF S [NDH, CIRCUIT CO URT, LARKANA Cr[. ]ail Appeal No.D-67 of 20L8 Crl. Reference No.D-09 of 2018

PRESENT:

Mr. ]ustice Mohammad Karim Khan Agha, Mr. ]ustice Zulfiqar Ali Sangi,

Appellant : Khadim Hussain, through Mr, Abdul Hakeem Brohi, Advocate.

Respondcnt : The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Date of hearing : 0?.03.24T'.

Date of Announcement : 09.03.2021

I UDGMENT

MO HAMMADKARIM KHAN AGHA.- By means of instant

appeal, appeltant Khadim Hussain son of Amannullah Jagirani, has assailed the judgment dated 14.1L 2018 delivered by learned

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Additional Sessions Judge-I, Shahdadkot in Sessions Case No.287 / 201,4, re-state v. Khadim Hussain, arising out of Crime No.34/ 201.4, registered at Police Station A-Section Shahdadkot, for offence under Sections302,34, PPC .

r Z. The learned trial court after full-dressed trial found the appellant guilty of alleged charges and has punished him for offence under Section 302(b), thus has convicted and sentenced him to death subject to confirmation by this court with fine of Rs.500,000/-, to be paid ro tire legal heirs/walis of deceased Khadim Hussain son of Abdullah Siya1 and in case of clefault to undergo S.I for 06 months more

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3, The crux of prosecution case as narrated in the aforesaid t, which was lodged on 10.03.2014 by Abdullah son of Mohammad Hassan siyal are that on a7.ffi.I}]4- at 9:00 a'm in the morning that he would Khadim Hussain son of comprainant informed him reave for ]amshoro for doing rabour and reft on Chingchi Rickshaw Mour along with Mumtaz ]agirani, Khadim Hussain Jagirani' on 09.0 3.201,4 the complainant was available in his house Jagirani.

resident of usta where his nephew waheed son of Ghulam Hyder son of Khuda Bux Mohammad Baloushistan and relative Habibullah and brother in law siyar resident of shambozai Mohailah shahdadkot pm in the evening' on AIi Dost were available as guests' At about 7:30 along with his hearing noise of chingchi Rickshaw the complainant above named guests went out of the house and saw that Khadim of Amanullah Jagirani Hussain, Mumtaz Ali and" Mour all three sons Hussain was driving the were riding on chingchi Rickshaw. Khadim white colour bugtowards Chingchi, the above named persons threw and fled away on Chingchi' the enfrance d"oor of the house of AIi Dost The comprainant opened the prastic bag which contained the skull of complainant informed Khadim Hussain son of complainant' The necessary proceedings, porice. The porice arrived and after initiating over to the complainant for the skull of Khadim Hussain was handed busy in searching for burial and thereafter the complainant remained H Hussain- on 10'03'2014, tl're remaining body of his son Khadim the bank of sim body of Khadim Hussain was found on il- o adjacent to Imam Bux road.. The body of Khadim Hussain o ?

loin cloth' The was tied with stone lYing in water, with the help of discovered at d-00pm in the * dead body of deceased Khadim was porice about the dead body and evening. The complainant informed Khadim Hussain' Mumtaz lodged FIR on 10.03.2014 against accused and unknown accused Ari and Mour a1r sons of Amanu[ah ]agirani Hussain by slitting throat for committing murder of his son Khadim cutting object of Khadim Hussain with some sharp p

4.After registration of FIR, I.O investigated the case, who after completion of legal formalities submitted the challan before A the

competent court of law having jurisdiction.

framed s. Learned trial court after completion of codal formalities he pleaded not charge against the appellant on 03.02.2015, to which guilfy and claimed to be tried'

6.In order to Prove its case, the Prosecution examined 12 other items and witnesses, who exhibited numerous documents and statement of thereafter prosecution side was closed. Thereafter, accused was record.ed under sectio n 342 Cr.PC in which he denied to old enmity' the allegations and claimed his false implication due The accused however did not examine himself on oath or call any

DW's in suPPort of his defence case'

+ 7. on conclusion of the trial, learned trial court after hearing evidence learned counsel for the parties and' appraisal of prosecution appellant/ accused as brought on record, convicted and sentenced the dated 14'11'2018 mentioned. earlier in this judgment vide Judgment against his conviction' hence the appellant has filed this appeal S.ThefactsoftheCaseaswellasevid.enceproducedbeforethe judgment dated 1'4.11"20L8 triar court find an eraborate mention in the the same may not be passed by the trial court and, therefore, reproduced. here so as to avoid duplication and unnecessary a

o Tl repetition.

that he is g. Learned counsel for the appellant has contended been falsely implicated on * completely innocent in this case and has unexplained delay in lodging account of enmity; that there was an that there was no eye FIR r';hich is fatal to the prosecution case; that the appellant's confession wibress to the murd.er of the deceased; cannot be safely relied upon as this was extracted by the police torture and was allegedly made after an through coercion and arres! that the recoveries unexplained Period of 10 daYs after his L7

have all been foisted upon him; that the so called eye witnesses are 6j A all related and cannot be safely relied upon and for any of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions he has placed reliance on HamzoY The State (1983 P Cr. L|892), Hamzo V The State (PLD 1960 (W. P.) Karachi 817) and Said Begum V The State (PLD 1958 (W.P.) Lahore 559).

10.On the other hand learned Addl. Prosecutor General who was also representing the complainant fully supported the impugned judgment and contended that the deceased was seen leaving by eye witnesses with the appellant and other co-accused and then eye witnesses identified the appellant as being one of the persons who threw the head of the appellant in a bag outside the home of the complainant's relatives and the evidence of these eye wifnesses was reliable, confidence inspiring and was to be believed; that the confession of the appellant although later denied was voluntary and fruthful and could be used against him; that the medical evidence fully supported the prosecutions case; that the recoveries had been made on the pointation of the appellant and as such the prosecution had proved its case beyond a reasonable doubt against the appellant and as such his appeal should be dismissed and his conviction and sentence maintained. In particular he stressed that due to the GH barbarity of the murder the death sentence should be maintained. In support of his contentions he has placed reliance on ]afar Ali V The f State (1998 SCMR 2669), Khurshid V The State (PLD 1996 Supreme 3 o ? Court 305), Allahditto v The state (1968 SCMR 378), Rafaqat Ati v The State (2016 SCMR 1766) The State through A.G., V Waqar Ahmad (199?SCMR 950) and Dadullah V State (2015 SCMR 856).

11.We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, the impugned judgment with their able assistance and have considered the relevant law including that cited at the har.

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12.Based on our reassessment of the evidence of the PW's, especially the PW eye witnesses, PW MLO's and other medical reports, and recovery of head of the deceased outside Dost Ali's house and shortly thereafter the recovery of the torso (headless) of the deceased in Sim Shaikh , we find that the prosecution has proved beyond a reasonable doubt that Khadim Hussain (the deceased) was murdered by sharp cutting object by having his head cut off from his torso on 07.03.201,4 at 9am to 09.03 .2014 at about 7pm adjacent the Sim Shakh at Iman Shahdadkot road sifuated in Deh Kot Karira, Taluka Shahahdadkot which severed head was thrown in a plastic bug at the house of Dost Ali.

13.The only question left before us therefore is who murdered the deceased by decapitating his head from the rest of his body with a sharp cutting object at the said time, date and location and whether the appellant was involved in the murder of the deceased.

1,4. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;

(u)That the FIR was lodged with promptitude based on the particular facts and circumstances of the case and any delay in lodging the same has been fully explained. According to the evidence of the complainant on 09.03.L4 at 9am he saw the appellant along with other absconding co-accused on a Chineghi Rickshaw which was being driven by the appellant when one of the co-accused riding in the Chingehi threw a plastic bag at the house of Dost AIi where he was with other PWs.when the bag was opened decapitated head on his son was found. He f immediately informed the police who came to his house and inspected the head and carried out other necessary legal formalities. Despite being under severe shock and trauma the complainant along with other PW's searched for the headless torso of his son which was found on L0.03.14 (the next duy) at Sim Nalla and there after he immediately registered the FIR and as such the complainant had no time to cook up a false case against the ippellant as he had informed the police immediately about his sons head being cut off from his body and thrown outside the house of Dost AIi and the police /ttt Slr

arrived at such house shortly thereafter. Even otherwise A no enmity has come on record between the appellant and the complainant party which would motivate them to lodge a false case against the appellant. The appellant is named in the FIR with a specific role.

(b)In our view the prosecution s case mainly rests on the eye witnesses to the decapitated head of the deceased being thrown to them by the co-accused from the rickshaw which the appellant was driving and the finding of his torso whose evidence we shall consider in detail below and the appellant's judicial confession ;

Turning first to the judicial confession by the appellant. This was made on 26.03 .202'J." which was 10 days after his arrest which was made before PW 11 Shafqatullah who was a judicial magistrate.

The appellant's confession reads as under:

"Q.. What have you to say?

t Ans. I am plying Qingqi Rickshaw. Deceased Khadim Hussain had fought with me over the matter of our minor children ahout one month prior to the incident and had beaten me. I was Poor, therefore/ Iemained calm. I, then narrated such facts to my relative Abdul Sattar who replied that we would also fight. On the duy of incident, I and Abdul Sattar took Khadim on my Qingqi Rickshaw to Sim Shaakh (Salinily Canal) via Qubo Road, where we alighted for washing hands and face. While Khadim was washing his face, I inflicted hatchet blow on backside of his neck and he felt down in the minor (shaakh). we then cut his head and by roping stone with his body threw it in the minor(Shaakh). Then we brought his head to the town and threw it in front of house of his relatives in Massan Mohalla. I had to say this much." f

Law on retraction of judicial confessions.

In this case we find that the accused has not actually retracted his judicial confession but has contended that it was made after torture and inducement by the police of which we have found no evidence of and appears to be a bald allegation. In any event we consider it appropriate to consider the law on the retraction of judicial confessions to a$sess whether they can be relied uPon under any circumstan"*".1,r, tll

Afterareviewoftherelevantlawonthelegalvalidityofjudicial the Hon'ble supreme court in the case of ch' Muhammad v I confessions yaqoob v The state (rggzscMR 1983) reached the following conclusion:

"Thetegatposition'rphichhasemergedf'omtheaboae judge the euidentiary reports,"seeftts to be thqt in order to aalueofretractedconfession,theCourtistoadaerttothe -i{g;rimw:i!ff:,--':{ii,# is satisfieit ott the-aboae flspect, the rnere fact that there were some irtegularities in recotding the o!

-o confession, would not warrant disregatding "f sfrtfle".ftold added)

can be Iegally It is settled law that a retracted judicial confession in certain circumstances. In the later admissibre and used against its maker case of Muhammad Amin v rhe state (pLD 2006 sc 219) it was held at P.224 Para 9 as under;

,,g.Thereisnocaailtothepropositionthatconaiction -v couldhaaebeenawarded.onthebasisofretracted, in case of examined confession whi.ch proposition u)frs Mst. Ioygun Bibi'o' tl" State PLD 1960 (SC Qak) 31-3 as under:- ,Weareunabletosupportthepraposition.oflazulaid regar_d.-The retraction d'awn by the learned lidges in this ruhich has no,.beaing, oy a coilfession is a ciriumstance ruhatsoeaet upon the question ruhether in the first made' and on the further -qurrtfon it ruas uoluntarily instance of the whether it is true'"The flcy.tnat :!::.'k'r -c-onf,s,ionlaterdoesnotadhere.toitcannotbyitselfhaae as to whether the any effict upon the findings reached so' ruhet.her it Tttns trtte' confession Ttas aoluitary, ifa't a"s,elf-accusing statement in direct 7or! to withdrartt from nccisation' is explicable face of tl* conr'rqulences it.i" consequences and need futty by the proximit1 oi those haue no cortnection zuhaisoeuer tuith either its aoluntary stated' The lesrned natrtre, or th; truth of the f':lt { nght in first de.ciding these tttto ludges ruere perfectly in the afflrmatiue' in questions, oni ih' in"'iers being itself aws sufficient' declaring that the confession by circumstances to support talcen tuith the otlrcr fazts and AbdulMaiid'sconaiction'Theretraction'fthe once it wfls confession was whotly immaterial well as true'" \ii"a that it ias uoluitary as the State u. Minhun alias Gul Hassan 1,0, SimilarlY in the case of under:- PLD 1'964 SC 8L3 this Cou rt has obseraed as

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"As for the confessions the High Court, it appears, was duly conscious ,f the fact that retracted confession t uthether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions Tilere found to be true and aoluniary, then there uias no need at all to look for further corroboration, It is well-settled that ns against the maker himself his confession, iudicial ir extra judicial, 'law whether retracted or not retracted, cnn in aalidly fo* the sole basis of his conaiction, if the court is satistied and belieues that it Tt)fls true and uoluntary and was not obtained by torture of coercion or inducement." (bold added)

Thus, the court laid down a two pronged test as under (a) whether the retracted judiciat confession appears to have been made voluntarily, without any inducement, duress or coercion and (b) was made with the object to state the truth'

Notably it was also held that if both (a) and (b) were satisfied that even if

there were some irregurarities in recording of a confession it would not

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warrant disregarding of the same. In our view however following the case must of Azeem Khan V Mujahid Khan (2016 SCMR 274) such irregularities be of a minor nature and must not have detracted from either the

voluntariness or truthfulness of the confession- In the case of Bahadur v state (pLD 1996 sc 336) although it was suggested that a judicial con{ession alone can be made the basis of was any corroborative conviction the safer course was to look to see if there material available to determine its truthfulness \ In the case of Manjeet singh v state (pLD 2006 sc 30) a further o the truthfulness of the 7l requirement seemed to be added that in determining

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confession it had to be placed within the context of the whole of the

* prosecution evidence/ case'

a retracted confession In our view therefore we are not in any doubt that before a magistrate can form the ba$is of convicting in a capital case however it must be;

and

(a)Voluntary i.e. without threat or inducement

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"As for the confessions the High Court, it appearst wns duly conscious of the fact that retracted confession Ir whether judiciat or extra iudicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions \ilere found ta be true and uoluniary, then there wns no need at all to look for further corroboration. It is utell-settled that ns against the maker himself his confession, iudicial oi extra judicial, whether retracted or not retracted, can in law uatidly fo* the sole basis ,f his conuiction, if the court is satistied and belieaes that it tpfls true and aoluntary and was not obtained by torture or coercion of inducemettt." (bold added)

Thus, the court laid down a two pronged test as under (a) whether the retracted judicial confession appears to have been made voluntarily, without any inducement, duress or coercion and (b) was made with the object to state the truth.

Notably it was also held that if both (a) and (b) were satisfied that even if there were some irregularities in recording of a con-fession it would not f warrant disregarding of the same. In our view however following the case

must of Azeem Khan v Mujahid Khan (2016 SCMR 274) such irregularities be of a minor nature and must not have detracted from either the voluntariness or fruthfulness of the con{ession' In the case of Bahadur v state (pLD 1996 sc 336) although it was suggested that a judicial confession alone can be made the basis of was any corroborative conviction the safer course was to look to see if there material available to determine its truthfulness \ In the case of Manjeet singh v state (pLD z00b sc 30) a further

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o .,I requirement seemed to be added that in d.etermining the truthfulness of the l confession it had to be placed within the context of the whole of the

* prosecution evidence/ case'

confession In our view therefore we are not in any doubt that a retracted before a magistrate can form the ba$is of convicting in a capital case however it must be;

and

(a)Votuntary i'e. without threat or inducement

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(b)Its object must be to state the truth; assistance for which tt can be ascertained from (i) whether the confession appears truthful within the context of the prosecution case and (ii) whether there is any other evidence on record which tends to corroborate the truthfulness of the conJession and

(c)Only minor irregularities regarding the rules concerning the recording of judicial confessions can be permitted as determined on a case to case basis the main criteria being that such irregularities have not adversely effected the voluntariness or truth-fulness of the conJession.

(d)It is preferable that there is some independent corroboration of the confession.

After carefully considering the evidence of PW 11 Shafqatullah the judicial magistrate and PW 8 Muhammed Suleman who arrested the appellant and produced him before the judicial magistrate for his confession to be recorded we are satisfied that the confession has been made voluntarily, is truthful and fits in within the context of the f entire prosecution case (as will be elaborated further below) and that all the relevant precautions and warnings were given to the appellant before and after he made his judicial confession as laid down in the case of Azeem Khan V Mujahid Khan (201,6 SCMR 274). For example, there were no signs of torture on his body, he was warned that if he made a confession it could be used against him in a court of law, that he was given adequate reflection time, that no police were present when he made his confession, his hand cuffs were removed, H he stated that his confession was being made voluntarily without coercron or inducement and he was told that he would not be

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o handed back to the police whether he confessed or not and indeed til was remanded to judicial custody after his confession and as such we believe that confession of the appellant albeit retracted in terms of him stating that the confession was made on account of torture and coercion by the potice (especially as we have found no evidence on the record to suggest that the appellant was subiect to any coercion or torture by the police) and rely on the same as against its maker who is the appellan t subject to some corroborative evidence. We

@p consider the delay in recording the judicial confession of the t appeilant based on the particular facts and circumstances of this particular case does not effect its reliability. For example, although he was arrested on 16.03.'1,4, on 25.03.201,4 the appellant on his pointation lead the police to the ricksaw and murder weapon and then the day after (26.03.2014) he made his judicial confession which ties in with the prosecution case in all material respects. In this regard reliance is placed on Majeed V State (2010 SCMR 55) where it was held at P.59 para L0 as under;

"1-0.No doubt there was a delay of 12 days in recording the confession but this by itself is not sufficient to discard the same. This court in the case of Nabi Bakhsh V State (1999 SCMR L972) held that delay in recording the confessional statement by itself is not sufficient to effect its validify. However no hard and fast rule can be laid down about the period in which the confessional statement of the accused ought to be recorded during f investigation"

Thus, we will now see what other direct or corroborative or supportive evidence is on record to corroborate the judicial confession of the appellant-

Other direct evidence against the appellant;

(c)It is true that there are no eye witnesses to the actual murder of the deceased. Namely, the decapitation of his head from the rest of his body but in this particular case last seen evidence is important when read in conjunction with the eye witnesses who sar,tr the deceased leave with the appellant on his Rickshaw and saw the appellant return on his rickshaw a d"y later one of whose occupants threw the decapitated head of the deceased. towards the house of Dost Ali'

(d)In Fayyaz's case (Supra) at P.2030 at Para 7 it was held as under regarding last seen evidence; L,

11 fl o "The last seen evidence is one of such categories h of evidence. In this category of cases some fundamental principles must be followed and the Prosecution is under-Iegal obligation to fulfill the same/ some of which may be cited below:-

(i)There rnust be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the Prosecution.

(ii)The proximity of the crime seen plays a vital role because if within a short distance the deceased is done to death then, ordinarily the inference n'ould be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnish those circumstances under which, the deceased Ieft him and parted ways in the course of transit.

(iii)The timing of that the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting I away frorn the accused or the accused getting away from him.

(i") There must be some reasons and objects on account of which the deceased accompanied the accused for accomplishment of the same towards a particular destination, otherwise giving company by the deceased to the accused would become a question mark.

(") Additionally there must be some motive on the part of the accused to kill the deceased othenr.ise the Prosecution has to furnish evidence that it was during the ffansit that something happened abnormal or unpleasant which motivated the accused in killing the deceased.

("i) The quick reporting of the matter without any undue delay is essential, othentrise the f prosecution story would become doubtful for the reason that tl-re story of last seen was tailored or designed falsely, involving accused person- Beside the above, circumstantial evidence of Iast seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak E pe of evidence in cases involving capital punishntent'

(vii)The recovery of the crime weaPon from the accused and the opinion cf the expert must be.,

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t2 ,a carried otrt in a transparent and fair manner to exclude ali possible doubts, r.vhich may arise if it is not done ilr a proper and fair mamer.

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(viii)The Court has also to seriously consider that whether the deceased was having any contributory role in the cause of his death inviting the frouble, if it was not a pre-planned and calculated murder."(Bold added)

(e)In this case the evidence is far better than last seen evidence as the eye witnesses saw the deceased leave with the appellant and other co-accused in search of work at Jamshoro and then saw the appellant the next day in the rickshaw whilst one of the co- accused tossed the head of the deceased in a bag to Dost Ali's house. Henee the connection is in seeing.the appellant leave with the deceased in his rickshaw to search for work and then see the appellant return in his rickshaw a da1, later with the decapitated head of the deceased points directly to his involvement in the murder of the deceased especially whem read with the confession of the deceRsed which we have already' found to be reliable and atlmissible.

(i)Eye witness PI4/ 1 Abdullah. FIe is the coryplainant in the case and the father of the deceased who rvas hib eon. According to his eviclence on 07.03.2014 at garn he sarv his sor: Jeave to gI to catch transport to ]amshoro on a rickshaw with th* ",ppellant and other co-accrlsed. On 09.03.2014 he, Habibuliai and Waheed had gone to the house of Dost Ali when in the ei,eri.ng they heard the sound of.a ricksharn,. I{e immediately came oui of the house where he saw the appellant and the co-accused pll sons of Amanullah Jagirani sitting' in the rickshaw by ttre appellant. He saw one of the co-accused (Mour) throw a plastit: bog from the Rickshaw which cirove off. On opening tl-re plastic

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bug l"re found the head of his son. He immediately informed the police who came to the wardah and car:ried out all legal L formalities. He then serrrcheC for the tofso of his sr.)n with t o others, Accolding to his evidence on 10.03.2014 at al'rout 6pm ? he reached Sim'Naia near knan Bux Roacl where he saw hJood stains as well as rnalks of r,vheeJs of rickshalr.. They,then fc md + the heaclless body of the ctecease,i fronr Sim ltJala,, lvtrich w ai lied vrith Romal of decefirici{ ancl hea.;\, stonr:.With kifn \,veru I{atrribrrllah, Wahee,"[, eri ir/ell as ivlaslrir-q Azam and Quhan.He [eftrlremanc{'',lenttothe,[--litc,i.;ctgehjs;FIIi. . :l

I{e knew the appeiiarlt,, Ire si,ii'.'1r,tlre appellant dr:ive, the rickshaw frorn whicht one o:t t*re fo-fli:rcused tlrrew the bug . t,1

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containing the head of his son. It was about 6.30pm in the month of March and as such it would have been light at that i, time and as such he would easily have been able to recognize and identify the appellant. Even otherwise ,in his FIR he states that light bulbs were glowing which would have made the identification of the appellant even easier so there is no case of mistaken identify and no need to hold an identification parade. The appellant was also named and given the same specific role in the FIR lodged promptly after the incident. The fact that he could see the incident clearly was corroborated by the evidence of the other eye witness PW's who also saw the appellant throw the head of the deceased in a bug from the rickshaw.

Admittedly the eye witness was related to the deceased however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or enmity between the eye witnesses and the accused which has not been proven in this case by any reliable evidence. Reliance is placed on ljaz Ahmed V The State (2009 SCMR 99) and Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2L52).In fact in this particular case the complainant drrring cross examination specifically states that there l,vas no enmitv between him and the appellant prior to this incident f The complainant is not a chance rvitness es he lived in the locality and was visiting his relatirre flost ,\li who was also living in the same locality.

As mentioned earlier he loclged his FIR with promptitude based on the particular facts and circumstances *:: this case rvhich named the accused with specific roles and the ufher eye witnesses. Any delay in registering the FrIR is fully explaiited by the complainant in his evidence. His evidence reflects tha,t of his FIR and there have been no significant improvements irr tr'e saffre so as to render his evidence unreliable. He h.ad no enmity with the appellant and had no reason to falsely implicate him in the murder of his son. His evidence was not dented despite Iengthy crLlss examination.,We find his er.iclence to be reliable, trust worthy and confidence inspiring and we can convict on this evidence alone if corrobor:ated by medical evidence. In this Y respect reliar,"ce is placecl on hltrhaurrtratl Ehsan v. th. State (?.005 SCMR 1857),Anrvar Shamim v State (2010 SCMR 1791) ancl Qurbarr Httssain V State (2017 SCMR 880). As also 1, r rnd in Faroorl Khan v. Ihe State (2008 SCI\,IR 917)r what I,i of significance is the quality of the evidence and not'its quantit.,' and in this case we find the evictence of this eye rvitnes"g to be of,,, *ti

(ii)Eye witness l'14I ?'Abdrrl Waheed. He corroborate* rye witness PW I" Abclullah. in all material,respects; T{e is namecl in

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t4 f ] the FIR as an eye witness shortly after the incident and gave his t 5.161 Cr.PC eye witness statement promptly which left no room for concoction and there has not been any significant improvements in his evidence so as to render it doubtful and the same considerations apply to him as to eye witness pW 1 Abdullah..

(iii)Ey* witness Pw 3 Habibullah. He corroborates eye witness Pw 1 Abdullah and eye witness PW 2 Abdul Waheed in all material respects. He is named in the FIR as an eye witness shortly after the incident and gave his S.L6L Cr.PC eye wihress statement shortly after the incident which left no roorn for concoction and there has not been any significant improvements in his evidence so as to render it doubtful and the same considerations apply to him as to eye witnes$es PW 1 Abdullah and PW 2 Abdul Waheed.

Having believed the eye-witness evidence we find that the authorities cited by the appellant are of little, if any, assistance to him since they mainly relate to delay in recording a judicial confession which we have already dealt with earlier in this judgment. The judicial confession of the appellant which we have found reliable and admissible also ties in with the above referred eye witness evidence which corroborates and supports its truthfulness along with other prosecution evidence.

Thus, based on our believing the evidence of the 3 PW eye- witnesses and the appellant's confession what other suPPortive/corroborative material is there against the appellant?

(f)That the evidence of the 3 eye-witnesses is corroborated by PW-7 Muhammed Azam who was the mashir of the head of the deceased, the headless torso and arrest of the appellant. PW 9 PC Amanullah who reached the wardat after the head of the d.eceased was thrown at Dost Ali's house and was reported by the complainant also corroborates the three eye witnesses. PW 6 Shahid Ahmed who registered the FIR of the complainant also corroborates the complainant's story.

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(g)That the medical evidence of PW's 4 Dr.Ramesh Lal who

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was the MLO who carried out the post mortem on the severed head corroborates the deceased being beheaded by a sharp cutting substance/weapon which he opines as a dagger and which beheading was the cause of death. PW 5 Dr.Mohammed Idrees MLO who examined the headless body of the deceased and gave evidence that the head was removed from the neck by a sharp cutting weapon and that no other injury was visible on the body and that the beheading caused the death also corroborates the prosecution evidence. No post mortem of the body was carried out however based on the particular facts and circumstances of the case we find this to be inconsequential as it is apparent that the cause of death was by beheading through a sharp cutting weapon.

Y

(h)That the PW's give evidence that they were able to find the headless body at Sim Nalla by following the blood trail and the marks made by the wheels of the rickshaw which was used by the appellant, The stone and romel used to tie the stone to the body was also recovered at the scene and exhibited as evidence which ties in with the appellant's confession.

GH

(i)That the appellant took the police and the mashirs on his pointation to where he had kept the rickshaw and hidden the o o hatchet (murder weapon) which was a place which only he could have known about and not the police or the complainant

Y

* which ties in with his confession.

(,) That the recovered hatchet was covered with blood stains and the chemical test on the blood was positive.

(k)That all the PW's are consistent in their evidence and even if there are some conffadictions in their evidence we consider

these contradictions as minor in nature and not material and l certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on Zakir Khan V State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).

(l)That the police PW's had no enmity or ill will towards the appellant and had no reason to falsely implicate him in this case by for example making up his arrest or foisting the rickshaw and hatchet on him and in such circumstances it has been held that the evidence of the police PW's can be fully "relied upon. In this respect reliance is placed on Mustaq Ahmed V The State (2020 SCMR 474),

(m)That it does not appeal to reason, logic or commonsense that the father who was both the complainant and eye witness a would let the murderer of his son go scot free by substituting him with an innocent person (the appellant).In this respect reliance is placed on Allah Ditta V State (PLD 2002 SC 52).

(n)The evidence of the PW's provides a believable corroborated unbroken chain of events from the deceased leaving with the appellant in his rickshaw to the deceased's head being cut off and thrown at the house of Dost AIi by the appellant and his co-accused from his rickshaw to the recovery of the headless torso to the arrest of the appellant to the recovery of the rickshaw and hatchet (murder weapon) on the pointation of the appellant to the appellants confession before

Y

the judicial magistrate which we find would even meet the test of their being sufficient circumstantial evidence connecting the appellant to the murder of the deceased as was laid down in Fayyaz Ahmed V State (2017 SCMR 2026) as the prosecution has produced all the links in chain in an unbroken one where the one end of the same touches the dead body and the other

l7

the neck of the accused so as to lead to his conviction on the l basis of circumstantial evidence.

(o)In his judicial confession the appellant himself reveals the motive for the murder. Namely, deceased Khadim Hussain had fought with me over the matter of our minor children about one month prior to the incident and had beaten me. I was poor, therefore, remained calm. I, then narrated such facts to my relative Abdul Sattar who replied that we would also fight.

(p)It does not appeal to logic, common sense or reason that if you were innocent you would throw the decapitated head of the deceased outside a neighbors house and run away without explanation which conduct in ancl of itself is virtually an admission of your involvement in the deceased's murder.

I

(q)Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see lf it at all can caste doubt on or dent the prosecution case. The defence case is simply one of false implication based on enmity which has not been substantiated whatsoever by the appellant. He did not give evidence on oath or call any DI,V in support of his defence case which was basically false implication simpliciter.The claim that his confession was made due to coercion and torture is an afterthought especially as no injury marks were found on his body at the time of his confession and he did not make any complaint to this effect to the magistrate who recorded his confession. Thus, for the reasons mentioned above we disbelieve the defence case as an afterthought. Thus, in the face of the appellant's corroborated judicial confession which we rely uporU the eye witness evidence which we have found to be reliable, trust worthy and confidence inspiring the defence CASE

a

(which we disbelieve) has not at all dented the prosecution t

CASC.

15.Thus, based on the above discussion especially in the face of reliable, trust worthy and confidence inspiring eye witness evidence the appellants duly corroborated judicial confession which we believe and place reliance uPon and other corroborutivefsupportive evidence mentioned above we have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offence for which he has been convicted and hereby maintain his conviction.

1,6. With regard to sentencing the prosecution has proved. the motive of the appellant through his judicial confession. The murder itself was extremely barbaric being the beheading of a person with a a hatchet and then throwing his decapitated head in front of his relatives house. Such a brutal and barbaric murder is not deserving of any leniency on the part of the coutts and a deterrent sentence is fully warranted based on the particular facts and circumstances of this case. On particularly brutal crimes justifying the death sentence reliance is placed on Tariq Iqbal V State i2017 SCMR 596) which at P.596 held as under:

"3. Leave to appeal had been granted in this case only to consider as to whether the appellant deserved the sentence of death on the charge of murder or not and the stage of granting leave to appeal the merits of the appellanfs .ur" hud not been pressed before this Court,This shows that the question of the appellant's guilt as well as all the factual allegations leveled by the prosecution against the appellant now conclusively stand settled and accepted. The appellant had frespassed into the complainant's house, had killed the complainanfls wife and had robbed different articles available in the complainant's house which articles had later on been recovered from the appellant's custody. The appellant had made an extra'judicial confession before two wihresses and had also made a judicial confession before a Magisfrate. The murder in issue had been committed by the appellant in furtherance of a robbery and a young lady in her prime had been butchered by the appellant inside her house by giving as many as L0 churri blows on

I

t

I

Fv. 19

t different parts of her body. Such conduct displayed by the appellant clearly shows that the appellant is a cruel desperate person who deserves no sympathy in the matter of his sentence. This appeal is, theref.ore, dismjssed."(bold added)

17.Under these circumstances due to the particular brutality and callousness of the murcler we hereby uphold the death sentence of the appellant. Thus, the appeal is dismissed, the impugnecl judgment is upheld along with its convictions and sentences and the confirrnation reference is answered in the affirnrative.

18.The appeal stancls disposerl of in the above terms.

l(han Agha, ]udge Sd/-Mrrtratnmacl Karirn .ludge Sd/-Zulfiqar AIi Sangi,

Announce bY i't' i" c)Pt'*'(aI'Yt ' It Stl/-Fahitn Ahmed Siddiqui, ]udge

I

Dated 9l\3/2o21, I Dll 5d/-ZaV,iqar Ali Sangi, Juclge 4 f)atecl 9/03/2.021

oYln1)I

v