Shahminzar Vs The State

I

Judsme nt Sheet

Prsnaw.nnHrcn CouRT.Anno TTABAD BTXCTT

JTJDICTAL DEPARTMENT

inal Ao al No.25 l-N202lwith Murder rence N o.O2-N2 02L

Shahminzar... (Appellant) verSus

The State... (Respondent)

Present: Mr.Faisal Rahim, Advocate for appellant.

Malik Amjad Inayat, Assistant Advocate General for State, Mr.Muhammad Asjad Parvez Abbasi and Sardar Muhammad Asif, Advocates for complainanVrespondent No.2.

Date of hearing: 28.11.2023.

JI]DG NT

Murralryrln Lnz Krux. J.- Through the instant Criminal Appeal, appellanUconvict namely Shaminzar alias Gul Shameem has challenged the order and judgment of leamed Sessions Judge, Battagram dated 08.122021 passed in a case registered vide FIR No'232 dated p 20.12.2015 under sections 3021201/404 PPC' Police Station Kuzabanda District Battagram whereby the appellant was convicted and sentenced as under:

(Jamil) (DB) Hon'ble Mr.htstice Kamran HaYat Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

(D Death as Tazir under section 302(b) PPC, subject to conlirmation bY the Peshawar High Court. The convict shall be hanged from his neck till he is declared dead. He is further directed to paY Rs.500,000/- (five lac rupees) to the legal heirs of the deceased as a comPensation under section 544-A of the Criminal Procedure Code. In default of payment thereof, he shall further undergo six months simPle imprisonment.

(iD Simple imPrisonment for two years and fine of Rs.50,000/- (Iifty thousand) under section 201 PPC and in defautt thereof he shall further undergo simPle imprisonment for three month' (iii) Simple imprisonment for one year and fine of Rs.50,000/- under section 404 PPC and in default thereof he shall further undergo simPle imPrisonment for six Y months. Benefit of section 382-B Cr.PC is extended to the convict and all the sentences of imPrisonment shall run concurrentlY.

(Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhamm ad Ijaz Khan.

2.Precisely, the facts ofthe present case are that on I 1.12.20 I 5 complainant Faiz-ur-Rehman son of Haider Zanan (AR-PW-l2) submitted a written application (Ex.AR-PW-12/I) to SHO Police Station Kuzabanda District Battagram to the effect that he is resident of Naraza Kuzabanda and is running a butcher shop in Kuzabanda Bazar; his son namely Aziz'ur- Rehman alias Babu aged about 22123 years left his house for Bilandkot Qalagay on 09.12.2015 to purchase cattle who was contacted on Cell Phone No.03459518199 and 03075686821 by the complainant from his mobile phone No.03025621154 at 09.00 hours on the same date who told the complainant that he was on the way and had not yet reached at Bilandkot Qalagay and as soon as he reached there, he

t would contact him; thereafter the complainant tried to contact his son on rhobile phone but his mobile phone was responding switched off; till night the complainant kept waiting for his son but he did not retum to home; his son was (Jamil) (DB) Hon'ble Mr.Justice Kamran HaYat Miankhel, Hon'ble Mr.Jrctice Muhammad liaz Khan.

having cash with him; the aforesaid application was incorporated into Naqal Report No.l7 dated 11.12.2015 and the matter was entrusted to Abdul Hameed IHC for enquiry under section 157(l) Cr.PC and during the course thereof, on the basis of mobile phone's Call Data Record, the appellant was interrogated and on his pointation the dead body of son of the complainant namely Aziz-ur-Rehman alias Babu was recovered from village Tangay Nala Pani on 2O.l2.2Ol5.In the wake thereof, the instant FIR (Ex.PA) was registered.

3.After the completion of investigation, the complete challan was submitted before the court against the appellant upon which trial was conducted. Prosecution in order to prove its case against the appellant, produced as many as seventeen (17) witnesses and on conclusion of trial, the learned trial court after hearing arguments, convicted and sentenced the appellant vide order/judgment dated 03'03'2018 which order/judgment was challenged by the (Jamil) (DB) ion' bl e Mr. Jus t ic e Kamran Hayat )ufiankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan

appellant through Jail Criminal Appeal No.51- N2018 which was allowed by this court vide judgment dated 26.01.2021 arrd the impugned judgment of the leamed trial court was set aside and the case was remanded back for denovo trial with the direction to trial court to reframe the charge by issuing a certificate under the provision of Section 364(2) Cr.PC and then conclude the trial. On receipt of case file on remand, the leamed trial court accordingly framed charge against the appellant on 03.03.2021to which he pleaded not guilty and claimed trial which accordingly commenced.

4.Prosecution to bring home charge against the appellant, produced as many as seventeen

(17)witnesses including the important statements of Nisar Muhammad No.452 recorded as AR-PW-I who is marginal witness q b to the recovery memo (Ex.AR-PW-15/I) vide which the appellant during interrogation took out Rs.36,630/- and a Nokia Mobile from his pocket and handed over the same to the I'O' with (Jamil) (DB) Hon'ble Mt.Justice Kamran Hayat Miankhel, Hon'ble lulr.Justbe Muhammad Iiaz Khan.

deposition that he had obtained Rs.45,000/- and a Nokia Mobile from the pocket of deceased.

AR-PW-2 is Akhtar Islam son of Muhammad Saeed. He stated that on 13.12.2015 he went to Mansehra while his employee namely Sohail was in his shop and when he retumed from Mansehra his employee told that he had bought a mobile Nokia 101 in lieu of Rs.300/- from one Gul Shamim (appellant herein) and recorded the transaction in the relevant register, lateron Sohail sold the same to a Taxi driver. AR-PW-3 is Fayaz Malik No.283 who is statedly the marginal witress to pointation memo (Ex'PW- 3/1) vide which appellant in handcuffs led the I.O. to the place of the occurrence and pointed out the place of the occurrence where the dead body was lying and disclosed about the murder of the deceased by hitting him with axe and v collection of Rs.45,000/- and one Nokia Mobile from the pocket of the deceased' AR-PW-5 is Amanullah son of Sher Ali who statedly purchased a mobile phone set in lieu of (Jamil) (DB) Hon' bI e Mr. Jus t ice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan

Rs.ll00/- from Akhtar Mobile Shop situated in main Bazar Battagram which was lateron taken into possession by the local police in Battagram Bazar on 18.12.2015. AR-PW-6 is constable Ali Rehman No.l45 who is statedly the marginal witness to recovery memo (AR-PW-6/1) vide which Abdul Hameed ASI (AR-PW-l4) took into possession Nokia Mobile number 101 from Amanullah, a taxi driver (AR-PW-5) in Battagram Bazar near Petrol Pump on 18.12.2015 who told that he bought the same for consideration of Rs.ll00/- from Akhtar Mobile Shop. In presence of the aforesaid AR-PW-6, statedly owner of the said shop verified selling of the said mobile to Amanullah Khan and servant of the said shop namely Sohail (AR-PW-

7)produced his SIM card to the I.O who sealed the same in parcel. AR-PW-7 is Sohail son of Zxin Khan. He stated that on 13.12'2015 he purchased mobile in question in lieu of Rs'300/- from appellant in his shop and inserted his SIM No.0320-5040081 which was registered in the (Jamil) (D B) Hon' ble lulr. Jus ttu e Kamran HaYat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

name of his brother Ztrbair which he lateron handed over to the local police. He recorded the said transaction in his diary. He also stated to have identified the appellant after his arrest and sold out the said mobile to Amanullah (AR-PW- 5). AR-PW-9 is constable Charzeb No.4667 who is statedly marginal witness to recovery memo (AR-PW-9/I) vide which I.O. took into possession mobile SIM No.0320-5054400 Ex.PB (though in the said recovery memo it is written as 03205054001) produced by one Sohail by disclosing the same has been used by the deceased on 13.12.2015. He is also statedly the co-marginal witness to the aforesaid recovery memo (AR-PW-6/1). AR-PW-I0 is constable Muhammad Manzoor No.3 who is statedly the marginal witress to pointation memo (Ex'PW- V l0/l) vide which appellant led the I'O' to Akhtar Mobile Shop where he pointed out shopkeeper of the shop namely Sohail to whom he sold the mobile of the deceased. He is also the marginal witness to the recovery memos (Ex'PW-10/2 and (Jamil) (DB) Hon' bl e Mr. Jus t ice Kamran Hoyat Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khon'

Ex.PW-10/3). AR-PW-I2 is complainant himself namely Faiz-ur-Rehman. He while sticking to his application (Ex.AR-PW-12/l) nanated some post occurrence events and stated that he recorded statement before the magistrate whereby he charged the appellant. AR-PW-I3 is Faiz Muhammad son of Wazir Muhammad. He is statedely marginal witness to the recovery memo (Ex.PW-10/3) vide which the appellant led him and police party to a Bandi near his house and picked up an Axe from its comer and handed over the same to the I'O. by telling that with the said Axe he murdered the deceased and threw his dead body in water stream' AR-PW-l4 is Abdul Hameed IHC. He carried out enquiry under section 157(1) Cr.PC and conducted initial investigation of the case. AR-PW-l5 is Dr'Pir \, Adil Shah who conducted autopsy on the dead t/ body of the deceased vide post mortem report Ex.AR-PM. AR-PW-16 is Mr'Amanullah I(han (then) Judicial Magistrate-Il, Battagram' He recorded confessional statement of the appellant (Jamil) (DB) Hon' ble Mr.Jus t ice Kamran Hoyat lufiankhel, Hon'ble Mr.Justice Muhammad ljaz Khan'

on23.12.2015 and exhibited the same as Ex.AR- PW-16/1. AR-PW-I7 is Muhammad Ilyas Khan SVO.I.I. He conducted investigation after the registration of FIR. When the prosecution closed its evidence, statement of the appellant was recorded under section 342 Cr.P.C before the leamed trial court, wherein he claimed innocence. However, he neither wished to produce the defense evidence nor desired to be examined as witness under section 340(2) Cr.PC.

After hearing arguments of both the sides, the leamed trial court passed convictions and sentences against the appellant under tlle relevant sections of law as stated in Para No' 1 of this judgment, through order and judgment dated 08.12.2021 which order and judgment has now V been challenged by the appellant through the instant criminal aPPeal.

5.Arguments of the learned counsel for the appellant as well as learned Assistant Advocate General assisted by the leamed counsel for (Jamil) (DB) Hon' ble Mr. Jrc t ice Kamran Hayat Mankhel, Hon'ble Mr.Justice Muhammad ljaz Khan

complainant were heard in considerable detail and record perused with their able assistance.

6.It is the case ofprosecution as spelling out from the record that the son of the complainant namely Aziz-ur-Rehman went missing on 09.12.2015 and in this regard he submitted an application @x.AR-PW-12/l) to the SHO concemed on 11.12.2015 which was

incorporated into Madd No.17 and thereafter investigation under section 157(1) Cr.PC started and during the aforesaid investigation, Call Data Record (CDR) with respect to the mobile phone of the deceased was obtained which ultimately led the investigation agerrcy to the arrest of the present appellant and who after his arrest led the police parly to the dead body ofthe deceased and thereafter he also recorded his confessional statement before the Judicial Magistrate and thus v on the basis of the aforesaid evidence, the present appellant was awarded the capital punishment of death by the learned trial court, therefore, this court being an Appellate Court (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon' bl e Mn Justic e Mu hamm ad ljaz Khan.

would evaluate and analyz,e the evidence produced by the prosecution qua the award of the capital punishment to the appellant on the basis of aforesaid evidence.

7.It merits to mention here that initially complainant Faiz-ur-Rehman (AR-PW-l2) submitted an application (Ex.AR-PW-l2ll) to the concerned SHO whereby he stated that his son namely Aziz-ur-Rehman alias Babu has gone missing on 09.12.2015 and in the same application he provided two SIM numbers of his son as well as his own SIM number and it was stated that on that day he contacted his son on the aforesaid SIM numbers but lateron his mobile was responding off. On the basis of above application, an enquiry was initiated under section 157(l) Cr.PC and in that enquiry, the CDR report of the deceased SIM numbers was r7 requested vide application (Ex.AR-PW-14/1) dated 11.12.2015 which CDR Report was provided to the enquiry officer on 20'122015 which data was reflecting the SIM number as (Jamil) (DB) Hon'ble Mr.Justice Kamran HaYat Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

Y

well as the IMEI number of his mobile set where it was noted that the mobile number of the deceased was once used on 13.12.2015 and then thereafter it is in continuous use since 16.12.2015, therefore, the police rushed towards Habib Ullah son of Sher Ali in whose name the relevant SIM was registered and who stated to the local police that though the SIM is registered in his name but the mobile is in the use of his brother Amanullah and then the said mobile set was recovered from Amanullah (AR-PW-5) in Battagram Bazar who further stated that he has purchased the said mobile set from Akhtar Mobile Shop Battagram. The police thereafter visited the said shop at Battagram Bazat whete Sohail who appeared in the case as AR-PW-7 stated that it was on 13.12.2015 when a person with the name, parentage and address of the appellant had sold a mobile set to him in lieu of Rs.300l and for checking the same, he put his SIM No.0320-5040081 in the same and in this respect he also produced his diarylregister (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble lv[r.Justice Muhammad Ijaz Khan.

(Ex.PW-6/5) where name, parentage and address of the appellant was mentioned, therefore, the local police rushed towards the appellant and arrested him and then thereafter the said Sohail (AR-PW-7) identified the appellant by stating that he was the man who had sold the said mobile set to him on 13.12.2015.

8.The aforesaid materials available on file were duly established and proved by the prosecution during the course of trial as Akhtar Islam who was the owner of the shop was produced as AR-PW-2 and he stated that on 13.12.2015 he was purchasing some articles from Mansehra Bazar, whereas his agent/employee namely Sohail was attending the work at his shop namely Akhtar Mobile Zone- He has further stated that Sohail has told him that he has bought v a mobile Nokia number 101 from one Gul Shamim (appellant herein) and has also recorded the transaction in a diary/register' Similarly, Sohail also appeared in the trial court as AR- PW-7 and who too has stated that on 13 '12'2015 (Jamil) (DB) Hon'ble Mr.Justice Kamran HaYat Miankhel, Hon'ble Mr.hrtice Muhammad ljaz Khan.

at about 03.30/04.00 p.m., the appellant brought Nokia Mobile set 101 which he purchased the same as against Rs.300/- and the seller disclosed his name as Gul Shamim (appellant herein), his father's name as Qadeem Khan and who has further stated that on that day he inserted a SIM in the said mobile for checking which SIM was registered in the name of his brother namely Zubair. Not only this but even Amanullah who purchased the mobile phone of the deceased from Sohail (AR-PW-7) was also produced as AR-PW-5 who too supported that he has purchased the mobile Nokia set 101 from Akhtar Mobile Shop situated in main Bazar Battagram in the name of his brother namely Habib Ullah and the same was handed over to the local police, therefore, the prosecution has been able v to prove the change of hands of the mobile phone set of the deceased from the appellant to Sohail (AR-PW-7) and from him to Amanullah (AR-PW-5) and thus it has been established that the recovered mobile set was the ownership of (Jamil) (DB) Hon'ble Mr.Justice Kamran IIaYat Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

the deceased which was sold by the present appellant to Sohail (AR-PW-7) and who lateron sold the same to Amanullah (AR-PW-5) and from him the same has been recovered by the local police vide recovery memo Ex.AR-PW- 6/t.

9.The record further shows that after obtaining the CDR report with respect to the mobile set of the deceased, the appellant was arrested and who straightaway led the police party to Nala Pani (stream) situated at village Tangay to point out the dead body which he threw in a pond of deep water where he also stated that ot 09.12.2015 he murdered Aziz-ut- Rehman alias Babu with blows of an Axe and took Rs.45 thousand as well as a Nokia mobile set and threw the SIM ofthe deceased from it and in this regard a proper recovery/ pointatior/ discovery memo was prepared which is available on file as Ex.PW-3/I. It would be relevant to mention here that before pointation of the dead body ofthe deceased by the appellant, neither the (Jamil) (DB) Hon'ble Mr.Justice Kamran HaYat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

complainant party nor the local police was in the knowledge of the dead body, therefore, it was a discovery within the meaning of Anicle 40 of the Qanun-e-Shahadat Order, 1984 and thus under the law it amounts to a fact disclosed by the accused and the same could be used against him if such fact has been proved by the prosecution. The investigation officer also prepared a site plan ofthe place ofrecovery ofthe dead body ofthe deceased on the pointation of the present appellant and in order to prove the said discovery the prosecution produced one marginal witress of recovery/po intation/discovery memo (Ex.PW- 3/l) namely Fiaz Malik No.283 as AR-PW-3. Similarly, the complainant who wzls accompanying the local police at the time of discovery has also supported the same when he appeared as AR-PW-I2. Over and above, Abdul v Hameed IHC who recovered dead body of the deceased on pointation of the appellant through the aforesaid memo (Ex.PW-3/l) was also produced as AR-PW-I4 and who has accordingly (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel' Hon'ble Mr.Justice Muhammad ljaz Khan.

verified the aforesaid recovery/discovery. In view of the above, the prosecution has also been able to prove the discovery of the dead body of the deceased on the pointation of the present appellant.

10.It is relevant to mention here that soon after the discovery of the dead body of the deceased, the local police produced the appellant before the Judicial Magistrate who granted three days police custody and it was on 23.12-2015 when he recorded a confessional statement whereby the appellant has admitted his guilt and has stated the pre and post events of the occurrence. Before recording of the aforesaid confession, the leamed Judicial Magistrate who appeared as AR-PW-16 has stated that he fulfilled all the codal formalities before recording the confession which are duly a

L reflected from the questionnaire (Ex.AR-PW- 1611. The statement of the Judicial Magistrate who appeared as AR-PW-16 would show that he has not committed any material irregularity to outrightly render the said confession as not (Jamil) (DB) Hon'ble Mr.Justicekamran Hayat Miankhel' Hon'ble Mr.Justice Muhammad ljaz Khan.

sufficient for the grant of a legal punishment, therefore, the prosecution has been able to prove that the appellant has made a true and voluntary confession. Though during his statement recorded under section 342 Cr.PC, the appellant has retracted from confessional statement recorded by him before the Magishate, however, it is settled that if the same is corroborated by other independent evidence the same can be considered one ofthe grounds for recording conviction ofan accused. This court in the case titled

"IBBABU@E.@"

reported as 2020 PCr. N tes 141 has held that it is settled law that retracted confession, if corroborated by independent evidence of reliable nature, can be made basis for conviction, but it must be subject to thorough judicial scrutiny.

11.It is also relevant to mention here that the contents ofthe confession are duly supported by other attending circumstances especially the post mortem report as in his confessional statement, (Jamil) (DB) Hon'ble Mr.hntice Kamran Hayat Mankhel, Hon'ble lufr.Jttstice Muhammad ljaz Khmt.

the appellant has categorically stated that he inflicted axe blows on the mouth and neck of the deceased and such injuries were exactly found when the deceased was examined by Dr.Pir Adil Shah (AR-PW-I5) and the same is also reflected from the post mortem report available on file as Ex.AR-PM, therefore, it is confession which is duly corroborated by other material available on file and thus the same could be relied upon for awarding a legal punishment.

12.In view of the above discussed material and evidence available on file especially recovery of mobile phone of the deceased, discovery ofhis dead body on the pointation of the appellant and the confession made by the appellant before the Judicial Magistrate ate sufficient for the award of punishment and thus the leamed trial court has rightly convicted the appellant under the relevant sections of law.

13.In view of the above, the next question before the court would be that as to whether on the aforesaid material where no direct evidence is available on file and the entire prosecution (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhe I, Hon'ble Mr.Justice Muhammad ljaz Khan.

case is hinging upon the circumstantial evidence, the leamed trial court was justified to award the capital punishment of death to the appellant or not? The answer to this question as per the available evidence is that there are some mitigating circumstances spelling out from the evidence which could be considered for reduction of the sentence from death into any other legal punishment. These mitigating circumstances are as under:-

(i)As stated hereinabove that though the mobile phone of the deceased was recovered from Amanullah and who had purchased the same from Sohail an employee in Akhtar Mobile ShoP to whom the same was sold bY the present appellant and in support ofthe same, Amanullah and Sohail were

produced as AR-PW-5 and AR-PW- g.

r/ 7, respectively and even owner of the said shop namely Akhtar Islam was also produced as AR-PW-2, however, it was the CDR report of the mobile of the deceased from where IMEI

(Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble l+fr.Justice Muhammad ljaz Khan.

1a

Number of the deceased was traced but the prosecution has neither named the person who has prepared the CDR report nor he was produced in the court in support thereof nor the same has been signed nor the same is bearing any stamp of the company/ authority.

(ii)Similarly, though the prosecution has relied on the discovery of the dead body ofthe deceased on the pointation of the appellant, however, one of the marginal witnesses of the aforesaid recovery namely Fiaz Malik No.283 who appeared as PW-3 has stated that the dead body was recovered at Maghrib Vela, whereas the complainant who was accomPanYing the local police at that time has stated that it was Issha time, whereas * inquest-report available on file shows that it was 00.40 hours i.e. midnight time and thus the time of recovery of the dead body has not been established by the prosecution.

(Jamil) (DB) Hon'bte Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

(iiD It was also noted that though the prosecution has relied on the confessional statement of the appellant, however, the Judicial Magistrate namely Mr.Amanullah Khan (AR-PW-16) who recorded the confessional statement of the appellant has stated in the certificate appended to the said confession that the appellant gave his confessional statement in Pushto language which was translated into Urdu language by his Computer Operator namely Akhtar Nawaz, however, the Judicial Magistrate has not explained those compelling reasons as to whY he has not recorded the confession of the r appellant in his own handwriting.

Similarly, he has also not stated that before translation he administered oath to his Computer Operator namely Akhtar Nawaz and over and above, the said Akhtar Nawaz has also not been (Jamil) (DB) Hon'ble Mr.Justice Kamron Hayat Miankhel, Hon'hle Mr.Justice Muhammad Ijaz Khan

produced by the prosecution before the court, albeit in his cross- examination, the learned Judicial Magistrate has admitted that though his mother-tongue is Hindko but he also understands Pushto, Urdu and English. The Judicial Magistrate namely Mr.Amanullah Khan (AR- PW-16) has also admitted in his cross- examination that no second time for thinking time was given to the accused for recording his confessional statement. The august Supreme Court of Pakistan in the case titled "AZEEM ICIAN and another v. MUJAHID KHAN and others" reoorted as 2016 SCMR 274 has given guideline for Courts before recording confession of accused which is replicated below for 4,, ready reference:

Y "Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the Provision of (Jamil) (DB) Hon'ble Mr.Justbe Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recordins Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the hrst waming is administered. At the expiry of that time, Recording Maeistrate has to administer the second warnin and the accused shall be assured that now he was in the safe hands. All Police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kePt outside the Court and beYond the $ view of the accused. After / observing all these legal requirements if the accused person is willing to confess, then all required questions formulated bY the High Court Rules should be put to him and the answers given, be recorded in the words sPoken (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon' bl e Mr. Justic e Muhatnm ad Ijaz Khan.

by him. The statement of accused be recorded by the Maeistrate with his own hand and in case there is a genuine comp ellins reason then. a special note is to be siven that the salne was dictated to a responsible off,rcial of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct versl0n the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police (\ official/officer whether he is Naib t Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused."

'ankhel, (Jamil) (DB) Hon'ble Mr.l.tstice Kamran Hoyat Mi' Hon'ble Mr.Justice Muhammad ljaz Khan.

Similarly, this court in the case titled "ALI REIIMAN and another vs. The STATE throu h Additional Advocate General and 3 others" reported as 2021 YLR Note 118 observed that in cross-examination the Judicial Masistrate admitted that he is Urdu speaking whereas the appellant was Pashto speakins.

however. he did not ask him about his educational backsround. He further admitted that he had not administered oath to the Reader before utilizine his services as a translator. The moot question before this Court is whether confession of the appellant recorded in the above mentioned mode and manner was authentic and reliable enough to provide a valid foundation for conviction of the appellant on capital Charge.

14.In view of the above mitigating q t' circumstance, the leamed trial court was not justified to award the capital punishment of death to the appellant and thus keeping in view the aforesaid shortcomings in the prosecution case, the award of capital punishment AS (Jamil) (DB) Hon' ble Mr. Jus tice Kamran Hayat Miankhel, Hon'ble Mr.Juslice Muhammad ljaz Khan.

sentence of death to appellant would not be justified and the same needs to be reduced into imprisonment for life especially when it is seen that award of life imprisonment is also a legal punishment provided under the law.

15.As far as the punishment awarded to the appellant under section 201 PPC is concemed, the record would SHO that after the murder of Aziz-ur-Rehman, the appellant tried his level best to conceal the evidence which may go against him as he has put and concealed the dead body of the deceased into a pond of water which was not visible and it was he who pointed out the same to the local police which fact of the discovery of the dead body of the deceased has fully been established by the prosecution by producing Abdul Hameed IHC who besides r conducting some investigation, recovered the dead body of the deceased on the pointation of the appellant and prepared recovery/pointation/ discovery memo @x.PW-3/1) as AR-PW-I4 as well as one of its marginal witnesses namely Fiaz Malik No.283 as AR-PW-3 therefore, the (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

appellant has rightly been convicted and sentenced under section 201 PPC.

16.As far as the conviction awarded to the appellant under section 404 PPC is concemed, the same has also been proved by the prosecution as it is part of the record that the mobile set of the deceased was disposed of by the appellant by selling the same to Sohail (AR- PW-7) and who lateron sold the same to Amanullah (AR-PW-5). Similarly, he initially took Rs.45 thousand from pocket of the deceased and utilized the same for himself which fact also finds support from the available record therefore, on this score too, the appellant has rightly been convicted and sentenced under section 404PPC.

17.Keeping in view the above aspects of the case, this court has come to the conclusion that ? as like the concept of benefit of doubt for considering the question of guilt or otherwise, the court of law could also consider any mitigating circumstance(s) for awarding lesser (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat lufi'ankhel, Hon'ble Mr.Justice Muhammad ljaz Khan.

penalty keeping in view the facts and circumstances of the case. The aforesaid principle of appreciating of evidence qua considering the mitigating circumstances for the purpose of reduction in capital punishment was applied by the Apex Court in the case titled "lVlIR MUIIAMMAD alias MIRO vs THE rylE" reported as4g:ljx]MRllggwhere the Apex Court converted the death sentence awarded to the accused into that of life imprisonment. Similarly, in the case titled "MUHAMMAI) RIAZ and another vs. THE STATE and another" reoorted as 2007 SCMR 1413, it has been observed by the Apex Court that normally penalty for an act of commission of Qatl-i-Amd provided under the law is death, but since life imprisonment also being a legal -0 9 sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case' (Jamil) (DB) Hon'ble l*[r. Justice Kamran HaYat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khan.

18.In view of the above discussions, expositions of law on the subject and mitigating circumstances, the conviction awarded to the appellant namely Shaminzar alias Gul Shamim by the leamed trial court vide order and judgment dated 08.12.202 I under section 302(b) PPC, is maintained, however, sentence awarded to the appellant under section 302(b) PPC is only reduced from death to the imprisonment for life as Ta'zir under section 3020) PPC, whereas the rest of his convictions/sentences under section 201 PPC and 404 PPC as well as the payment of compensation amount of Rs.500,000/- to the legal heirs ofdeceased under section 544-4 Cr.PC and payment of fine amounts shall remain intact. All the sentences of imprisonment awarded to the appellant shall run concurrently and the benefit of section 382-8 I Cr.PC is also extended to him. With the Y aforesaid modification, the instant appeal is partially allowed. Since we have reduced the sentence of the appellant from death to the (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad liaz Khan

imprisonment for life, therefore, Murder Reference No.02-N2021 sent by the learned trial court to this court is answered in negative.

The above are the detailed reasons ofour short order ofeven date.

ANNOT'NCED.

(Jamil)

J

-a7

JUD G

(DB)Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon' bl e Mr. Jus tic e Muhamm ad ljaz Khan.