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Criminal Petition for Special Leave to Appeal No. 72 of 1970 decided on 20th April 1.970.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 12th February 1970, in Criminal Appeal No. 787 of 1968 (Murder Reference No. 242/ 1968).
----S. 164‑Confession Appreciation of evidence‑Confessional statement produced in Sessions Court arid proved in accordance with Law Mere fact of such statement being not produced before committing Magistrate No ground to discard it from evidence‑Penal Code (XL h of 1860), S. 302.
Sh. Ata Ullah Qureshi, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing ; 20th April 19.70,
‑Petitioner Muhammad Iqbal was tried under sections 376 and 302, P. P. C. by the learned Sessions Judge, Dera Ghazi Khan, for committing rape upon Mst. Sabri, a girl aged 8/9 years and thereafter for murder by strangulating her with her dopatta m at uninhabited dera of Zulfiqar Khan. The learned Sessions Judge, by judgment dated the 25th July 1968, acquitted the petitioner of the charge under section 376 but convicted him under section 302, P. P. C. and sentenced him to death. The petitioner's appeal, namely, Criminal Appeal No. 787 of 1968 (Murder Reference No. 242 of 1968) was dismissed by judgment dated the 12th February 1970, by a Division Bench of the West Pakistan High Court, Lahore. The petitioner seeks permission to file an appeal against the said judgment.
The prosecution case is that on the morning of 12th April 1967, P. W. Faqir Bakhsh sent his daughter Mst: Sabri deceased to bring curry for him from the bazar. As she did not turn up, Faqir Bakhsh went out in search for her. He was met by Noor Din and Ali Ahmad P. Ws. in the street. He asked them to help him in searching his daughter. They joined him. On teaching near an uninhabited dera of Zulfiqar Khan, they heard screams coming out from the dera. The door of the dera was pushed but as it was chained from inside the witnesses scaled over the wall and found the petitioner sitting on the chest of Mst. Sabri deceased. She was lying dead and a dopatta was found around her neck. The petitioner, on seeing them, tried to escape but was apprehended on the spot. Faqir Bakhsh P. W. recovered on a search, two ear rings, Exh. P. 1‑2, nose ring, Exh. P. 3 and a pair of bungles, Exh. P. 4, of the deceased from the pocket of the shirt of‑the petitioner.
The conviction of the petitioner is based on the testimony of P. W. 9 Faqir Bakhsh, father of the deceased and P. Ws. Noor Din and Ali Ahmad. It is also based on the confessional statement‑of the petitioner.
In support of the petition, Sh. Ata Ullah Qureshi, learned counsel for the petitioner, has contended that the confessional statement, Exh. P. M.; should not have been relied upon by the prosecution because it was not brought before the committing Magistrate. He further contended that it was the outcome of duress, pressure and torture of the police. The contention of the learned counsel has not impressed us. The mere fact that' the confessional statement was not produced before‑ the, committing Magistrate is no ground to discard it from evidence. It was produced in the Sessions Court and was proved in accordance with law. The learned Sessions Judge and the High Court, therefore, fully justified in using it as piece of evidence against the petitioner. The confessional statements of the petitioner was recorded on the 4th April 1967 at Rest House. Kot Mithan Sharif. It cannot be said to have been made under police pressure as the petitioner was produced from judicial custody before the Magistrate who recorded the confessional statement.
Even otherwise there is reliable independent evidence against the petitioner to prove that he was responsible for the murder of deceased Mst. Sabri, a girl of about 8/9 years. There is no ground to disbelieve their evidence because the prosecution witnesses had no motive to falsely charge the petitioner with the crime. The medical evidence also shows that Mst. Sabri was strangulated. In these circumstances, the conviction of the petitioner is based on proper appreciation of the evidence. There is no ground to interfere. The petition is dismissed.
Leave refused.
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