1. This appeal with the leave of the Court has arisen out the judgment dated 30.04.2009 of a Division Bench of the Lahore High Court, Lahore whereby it dismissed the appeal filed by the appellants and answered the Capital Sentence Reference No. 69 of 2006 in the affirmative.
2. Brief facts of the case, as can be culled from the FIR and the statements of the PWs recorded in the Court are that on 23.09.2004 at about 1:30 PM, Husnain Riasat a son of the complainant who was 4 years old left his house to purchase toffees but did not come back. The complainant went far and wide in search of his son, made announcements on loudspeakers of the mosques and also reported the matter in Police Station, Dhulla, District, Gujranwala but of no avail. On the night intervening 24 and 25.09.2004 when the complainant along with his brother while searching Husnain Riasat, reached a street adjoining his residential house, he noticed a nylon bag lying near the gate of his factory wherefrom blood was oozing. The brother of the complainant on opening the bag found the dead body of the latter’s son soaked in blood. It was without footwear. “Asif is a dog; it is the result of his cruelty; my blood boils when I see him” were the words written on the bag. Nasir Javed and Qaisar Javed the appellants alongwith their two brothers, Tariq Javed and Asif Javed, the acquitted co-accused, were charged for committing the gruesome murder in a case registered against them under Sections 302/34/364A PPC and 7(a) ATA vide FIR No. 318 of 2004 dated 23.09.2004 at Police Station Dhulla, District Gujranwala. The motive for the occurrence is that the complainant supported one Muhammad Nadeem in a case of murderous assault registered against Nasir Javed appellant and purchased a shop the latter was working in, which also resulted in exchange of threatening words in between the complainant and the appellants a few days before the occurrence.
3. During the course of investigation the appellants and their acquitted co-accused were found linked with the commission of the crime. After the completion of investigation, they were forwarded to the Court of the learned Judge Anti-Terrorism Court No. 1, Gujranwala for trial who on its conclusion convicted and sentenced the appellants to death on three counts under Section 364-A, 34, 302(b) PPC and 7(a) ATA and to pay compensation of one lac each or in default to undergo six months S.I., acquitted the co-accused vide judgment dated 25.4.2006 and sent the capital sentence reference to the High Court for its confirmation. The appellants preferred an appeal before the High Court against the conviction and sentence which was dismissed while the capital sentence reference was answered in the affirmative.
4. Learned ASC appearing on behalf of the appellants contended that the occurrence is blind and un-witnessed; that the circumstantial evidence collected during the course of investigation does not form a chain as could link the appellants with the crime; that the last seen evidence, appears to be concocted because of its belated appearance; that the evidence relating to disposal of the dead body at 11:00 PM near the workshop also appears to be concocted when no source of light near or around the place has been indicated in the site plan nor any recovery thereof has been made. Extra-judicial confessions, the learned ASC argued, have been attributed to the appellants and the acquitted co-accused but they being of weak probative worth cannot be used as either evidence or corroborative of the charge, that too, when no reason much less plausible has come forth for making such confession before Ghulam Ahmed, Basharat Ali and Muhammad Zaman. Discoveries so called, the learned ASC argued, cannot boost up the case of the prosecution when none of the pieces of evidence commands credence.
5. Learned ASC appearing on behalf of the respondents contended that motive, last seen evidence, extra-judicial confession, recoveries and evidence relating to disposal of the dead body not only form a chain but connect the appellants with the dead body of the deceased. He next contended that these pieces of evidence when linked together rule out the hypothesis of innocence of the appellants, therefore, both the Courts have rightly convicted and sentenced them. Such finding, the learned ASC maintained, being in line with the principles laid down by this Court for appraisal of evidence in criminal cases is not open to any exception.
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