' This judgment will dispose of Criminal Appeal No,608 of 2001 titled Taj Muhammad and 3 others v.
The State Criminal Appeal No,714 of 2001 Tahir alias Pappa v. The State, Criminal Appeal No,715 of 2001, Muhammad Ijaz v. The State and Criminal Revision No,302 of 2001, Hidayat Ali v. Tahir alias Pappa and others as all are outcome of the same judgment.
2. Tahir alias Pappa son of Muhammad Siddique, aged 19 years, Muhammad Ejaz son of Muhammad Anwar aged 17 years, Taj Muhammad son of Yasin Khan aged 17 years, Mumtaz Ahmad son of Hassan Khan aged 17 years, Hassan Khan son of Changay Khan and Yasin Khan son of Changay Khan have challenged judgment, dated 14-4-2001 passed by the learned Additional Sessions Judge, Narowal in case F.I.R. No,436, dated 2-12-1999 under section 364, 34, P.P.C. (later on converted into section 302, 109, P.P.C.) Police Station Niddokey District Narowal, for murder of Shahzad Ali son of Hidayat Ali aged 20 years, whereby they were convicted and sentenced as under:-- ' Tahir alias Pappa under section 302(b), P.P.C.
' Imprisonment for life and Rs,30,000 as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of deceased, or in default to further undergo 3 months' S.I. ' under sections 364, 109, 34, P.P.C.
' 10 years' R.I. And to pay a fine of Rs,10,000 or in default to further undergo 1 months' R.I.
' Muhammad Ejaz, ' Under section 302(b), P.P.C. Read with section 308, P.P.C.
' 14 years' R.I. With a fine of Rs,30,000 as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default to further undergo R.I. For three months.
' Under sections 364, 109, 34, P.P.C.
' 10 years' R.I. And to pay 'a fine of Rs,10,000 or in default to further undergo 1 months' R.I.
' Hassan Khan and Yasin Khan Under section 302(b), P.P.C.
' Life imprisonment with a fine of Rs,30,000 as compensation under section 544-A, Cr.P.C., to be paid to the legal heirs of the deceased.
' Under sections 364, 109, 34, P.P.C.
' 10 years' R.I. And to pay a fine of Rs,10,000 as compensation to the legal heirs of the deceased or in default to undergo one months' R.I.
' Taj Muhammad and Mumtaz Ahmad ' Under section 302(b) read with section 308, P.P.C.
' 14 years' R.I. With a fine of Rs,30,000 to be paid to the legal heirs of deceased under section 544-A, Cr.P.C. Or in default to further undergo R.I. For three months.
' Under sections 364, 109, 34, P.P.C.
' 10 years' R.I. And to pay a fine of Rs,10,000 as compensation to the legal heirs of the deceased or in default to undergo one months' R.I.
' All the abovesaid sentences were ordered to run consecutively. However, all the convicts were given benefit of section 382-B, Cr.P.C.
3. Briefly stated the facts of the prosecution case are that statement of Hidayat Ali Exh.P.A. Was recorded by Ham Din, S.-I./S.H.O. On the basis of which Exh.P.A./1 F.I.R. No,436, dated 2-12-1999 under section 364, 34, P.P.C. (later on converted into sections 302, 109, P.P.C.) Police Station Niddokey District Narowal was registered, wherein he stated that he is resident of Mauza Wallikay and is 'Tinning Gas Cylinder shop at Adda Siraj. On 29-9-1999, his elder son Shahzad Ali went to the house of his paternal-uncle Noor Muhammad and did not return till night. During search Parveen Akhtar wife of Noor Muhammad informed the complainant that on last evening when she alongwith her son Asif were going home after fetching milk, they met Taj Muhammad, Mumtaz Ahmad, Muhammad Ijaz coming from the village, After some time Muhammad Ejaz came to her house and asked for a book and about Shahzad Ali son of the complainant, Who had already gone to Master Muhammad Iqbal for tuition purpose. Thereafter Parveen Akhtar P.W.3 went to fetch Lassi from the house of Allah Rakhi widow of Din Muhammad and she met Muhammad Ijaz, Tahir alias Pappa, who called Shahzad Ali, who was going to his house from the house of Master Muhammad Iqbal.
Shahzad Ali was also seen by Muhammad Aslam P.W.7 in the same evening in the company of Muhammad Ejaz, Tahir, Taj Muhammad and Mumtaz and he informed this fact to the complainant.
The complainant inquired about the accused and found Muhammad Ijaz, Tahir alias Pappa missing from the village, whereas families of Taj Muhammad and Mumtaz Ahmad have also left their houses. The complainant suspected Muhammad Ejaz, Tahir, Taj Muhammad and Mumtaz having abducted his son Shahzad Ali in order to murder him.
' Motive for the occurrence was a quarrel took place between the accused and Shahzad Ali over a cricket match which was compromised due to intervention of the parents but the accused had borne grudge.
4. Ilam Din, S.-I./S.H.O. P.W.9 after recording statement Exh.P.A. Of Hidayat Ali, sent the same for registration of formal F.I.R. And he himself arrived at the spot. On the same day complainant made a supplementary statement implicating Hassan Khan and Yasin Khan as abettors and the said S.-I.
Recorded statements of P.Ws. Under section 161, Cr.P.C. At the spot and prepared the site plan. He searched for the accused and arrested Hassan Khan and Yasin Khan on 3-12-1999. On pointation of Hassan Khan, the police recovered the dead body of Shahzad Ali from the wheat field of Haji Allah Rakha where the dead body was buried which was taken into possession through memo. Exh.P.D.
Attested by Muhammad Aslam P.W .7 alongwith the Investigating Officer P.W.9. The said P.W.9 prepared the inquest report of dead body through memo. Exh.P.L. And dispatched the same for postmortem examination through Mubarak Ali and Muzaffar, Foot Constables. He also took into possession the burnt earth from the place of recovery of dead body through Exh.P.M. Thereafter Yasin Khan also led the police party to the place of burial of dead body of Shahzad Ali. Ilam Din P.W.9 prepared the "Nishan Dehi" Exh.P.E. He also took into possession last-worn clothes of the deceased produced before him after post-mortem examination which were taken into possession through memo. Exh.P.C. On 22-12-1999 he arrested Tahir alias Pappa, who while in police custody on 23-12-1999 led to the place of murder i,e, Tube-well of Muhammad Anwar and place of burial of dead body of Shahzad Ali i,e, wheat field of Haji Allah Rakha. The Investigating Officer prepared the memo. Exh.P.F. On 5-10-2000, he arrested Muhammad Ejaz, Tahir, Taj Muhammad and Mumtaz and all of them also made disclosure that they can lead the police party to the place of murder and that of burial of dead body of Shahzad Ali, so, they did so. Taj Muhammad also led to the recovery of "Kassi" by which earth was dug for burial of dead body and the same was taken into possession through memo. Exh.P.6. After completion of investigation challan against the accused was submitted.
5. The trial Court framed the charge which was denied by the accused and they claimed trial.
6. During the trial the prosecution examined as many as nine witnesses to prove the guilt of the accused.
7. The medical evidence was furnished by Dr. Sadat Ali, P.W.2 who on 3-12-1999 conducted the post-mortem examination on the dead body of Shahzad Ali and found the following injuries on his person:-- "There was a white cotton around the neck in the upper part tightly tied having two circles and knot on left side of neck. No other mark of ligature on the neck. Mouth was opened. On removing the rope around the neck mark of ligature was present all around the neck underline skin muscles were congested. Hyoid bone was fractured and third cervical spine was fractured.
' Dissection Cranium and spinal card, scalp, skull and brain were intact third survical spine were fractured.
' Thorax. Trachea was edematous and hyoid bone was fractured. Walls, ribs, cartridges, pleurae right and left lung, pericardium, heart and blood vessels were healthy and intact and undergoing putrefaction.
' Opinion. Cause of death in this case was cardio respiratory arrest and resulting shock due to ligature on the neck by rope which was sufficient to cause death in ordinary course of nature. Time that elapsed between injury and death was within half an hour and between death and post- mortem 2 to 7 days."
8. The ocular account was furnished by Hidayat Ali P.W.1, complainant, who narrated the version of the F.I.R. And motive for the occurrence. He was father of Shahzad Ali deceased. Mst. Parveen Akhtar P.W.3, complainant's elder brother Noor Muhammad's wife and Muhammad Aslam P.W.7 paternal- uncle of the complainant and the witnesses of last-seen. Both of them stated that they had lastly seen the deceased in the company of the accused Muhammad Ejaz, Mumtaz Ahmad, Taj Muhammad and Muhammad Tahir alias Pappa. Muhammad Aslam P.W.7 had also attested the recovery memo. Of dead body Exh.P.G. Zafar Iqbal P.W.4 Zafar Iqbal constable escorted the dead body of Shahzad Ali to the mortuary wherefrom he was handed over Qameez P.1, Shalwar P.2, Chaddar P.3, Bunyan P.4 alongwith ligature of jogger shoes P.6/1-2 and socks P.7/1-2, which were produced before the Investigating Officer by him who took the same in to possession vide recovery memo. Exh.P.C. Which was attested by him. Muhammad Sharif Khan P.W.5 recorded the F.I.R.
Exh.P.A./1. Atta Ullah, Patwari Halqa P.W.6 prepared the site plan Exh.P.C. And got recorded his statement under section 161, Cr.P.C. Muhammad Yaqoob P.W.8 is the recovery witness of dead body of Shahzad Ali which was taken into possession vide memo. Exh.P.F. And Exh.P.J.
9. After closing the prosecution evidence statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement.
Hassan Khan and Yasin Khan appellants in reply to question as to why the case against them and the P. Ws. Deposed against them, they stated as under:-- "Only to suppress the illicit and nefarious activities of Shahzad deceased with mala fide intention and to spoil the brilliant future of the accused and to damage the good repute of the family of accused to whom the complainant family had been in jealous mind. P.Ws. Are inter-related and inimical towards the accused who have deposed with mutual consent falsely."
' Tahir alias Pappa, Mumtaz Ahmad, Muhammad Ejaz and Muhammad Taj denied the allegations and claimed their innocence and false involvement and in reply to question as to why the case against them and the P.Ws. Deposed against them, Tahir alia Pappa stated as under:-- "I and other co-accused were falsely implicated in this case only to suppress and hide the nefarious, bad repute activities of the deceased Shahzad and to spoil the brilliant future of mine and others and to damage the family repute to which the complainant party had been in jealous mind."
10. The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through these appeals. Complainant has also filed Criminal Revision No,302 of 2001 for enhancement of sentences of the accused/ appellants.
11. Learned counsel in Criminal Appeal No,714 of 2001 Mr. Shaukat Ali Bajwa. At the very outset took legal objection by arguing that Mumtaz Ahmad, Taj Muhammad and Muhammad Ejaz were juvenile offenders, their age at the time of occurrence was less than 18 years and their trial alongwith their co-accused was illegal. He also pointed out that in this regard a reference was also sent by the learned Sessions Judge, Narowal to this Court but has not been decided due to pendency of the appeals and has prayed that trial to their extent stands vitiated. Learned counsel has further argued that it was unwitnessed occurrence; that the circumstantial evidence based on last-seen of the deceased in the company of all the accused namely Mumtaz Ahmad, Taj Muhammad, Muhammad Ejaz and Tahir alias Pappa by Parveen Akhtar P.W.3 and Muhammad Aslam P.W.7 has not been supported by any independent witness. Parveen Akhtar P.W.3 is admittedly wife of Noor Muhammad elder brother of complainant while Muhammad Aslam P.W.7 is maternal-uncle of the complainant. Both of them are closely related to the complainant and deceased and are inimical towards the accused/appellants, therefore, their evidence without independent corroboration cannot be relied upon. It has been further argued that Hassan Khan and Yasin Khan were not nominated in the F.I.R.; that they were implicated in supplementary statement due to their relations with the other accused as.Hassan Khan is father of Mumtaz while Yasin Khan is father of Taj Muhammad. It is further argued that delay of three days in lodging the F.I.R. Has not been explained.
12. Mr. Manzoor Hussain, Basra; Advocate in Criminal Appeal No,608 of 2001 has argued that there is no evidence against Hassan Khan that how he came to know about the burial of body and where Hassan Khan and Yasin Khan joined their co-accused for murder of Shahzad Ali and the charge under section 364, P.P.C. Or 302, P.P.C. Has not been proved beyond shadow of doubt against the appellants'.
13. Learned counsel for Muhammad Ijaz has adopted arguments of learned counsel representing Tahir alias Pappa.
14. Learned counsel for the State and complainant have opposed the appeal and supported the impugned judgment.
15. Learned counsel for the complainant has also prayed for enhancement of the sentence.
16. I have given due consideration to the contentions raised at the bar and has also perused the record.
17. First of all I would like to deal with preliminary objection raised by the learned counsel for appellants Muhammad Ejaz, Mumtaz Ahmad and Taj Muhammad that the above-named appellants were minors at the time of occurrence so their trial should have been held separately under the Juvenile Justice System Ordinance, 2000 and their trial with adults stands vitiated. He has made reference to section 4(3) of Juvenile Justice System Ordinance to argue that the Juvenile Court shall have the exclusive jurisdiction to try the cases where the child is an accused of commission of an offence while under section 4(4) all the cases pending before the trial Court in which child is an accused shall be transferred to the Juvenile Court having the jurisdiction. Child has been defined in section 2(b) means "a person who at the time of commission of offence has not attained the age of 18 years".
18. Learned counsel for the complainant and for the State in reply have argued that those appellants were aged more than 18 years and learned counsel for the complainant has made reference to their birth certificates attached with his criminal revision and has argued that it was known to the appellants, therefore, purposely they had not raised such objection before the trial Court otherwise had their age been determined under section 7 of the Juvenile Justice System Ordinance, they would have been found more than 18 years of age and objection has been taken at this belated stage without any justification.
19. I have examined the relevant provision of law and record. No attempt was made on behalf of those accused to move the learned trial Court for separation of their trial. Trial Court has already taken a lenient view while convicting them under section 308,. P.P.C. Instead of 302, P.P.C., therefore, I find that no prejudice has been caused to them by the joint trial and no useful purpose can be served by remanding the case for retrial at this belated stage, therefore, objection raised by the learned counsel for the appellants is overruled. So, I have proceeded to decide the appeal on merits.
20. The delay in lodging the F.I.R. Has been fully explained by the complainant Hidayat Ali. He stated that he remained busy in search of his B son and accused before reporting the matter to the police. Regarding motive it is settled law that motive is not essential for commission of crime even without motive people take lives of others and as per law declared by Honourable Supreme Court "absence or weakness of the motive is no ground for awarding lesser penalty".
21. I am conscious of the fact that case of the prosecution is based on circumstantial evidence which comprised mainly the "last-seen" of deceased in the company of Muhammad Ejaz, Mumtaz Ahmad, Taj Muhammad and Tahir alias Pappa by Parveen Akhtar P.W.3 and Muhammad Aslam P.W.7 on 29-11-1999. Both are although closely related to the complainant and to the deceased but they have no previous enmity against the appellants for their false implication or substitution by letting off the real culprits. Both of them are simple villagers. They stood the test of lengthy cross- examination but no material discrepancy has been brought on record to discard their testimony, therefore, both Parveen Akhtar P.W.3 and Muhammad Aslam P.W.7 are truthful witnesses. They are consistent in their statements that Shahzad Ali was taken by Muhammad Ejaz, Mumtaz Ahmad, Taj Muhammad and Tahir alias Pappa appellants towards the Southern side of the village in the evening on 29-11-1999. The dead body of Shahzad Ali was recovered buried from a field belonging to Allah Rakha which is also situated towards South of the village. Ocular account furnished by complainant, Parveen Akhtar P.W.3 and Muhammad Aslam P.W.7 has been fully corroborated by medical evidence. According to the medical report the time between death and post-mortem examination was 2 to 7 days and Dr. Sadaat Ali P.W.2, who conducted the post-mortem examination, under the heading of Thorax, observed as under:- "Trachea was edematous and hyoid bone was fractured. Walls, ribs, cartilages, pleurae right and left lung, pericardium, heart and blood vessels were healthy and intact and undergoing putrefaction."
' The prosecution case has been further corroborated against Muhammad Ejaz, Mumtaz Ahmad, Taj Muhammad and Tahir alias Pappa by proximity of time in addition to absence and non- availability of them. Tahir alias Pappa was arrested on 22-12-1999 while other three Taj Muhammad, Mumtaz Ahmad and Muhammad Ejaz were arrested on 5-1-2000. The Honourable Supreme Court of Pakistan about the circumstantial evidence has laid down in The State v.
Manzoor Ahmad PLD 1966 SC 664 at p.680 as under:- "In this view of the matter I have come to the conclusion that the prosecution had succeeded in proving the circumstances other than these relating to motive enumerated earlier in this judgment and that upon these circumstances the inference was legitimate that the deceased met his death at the hands of the respondent, for they could not be explained away upon any other hypothesis consistent with the total innocence of the respondent. This evidence clearly cast a heavy onus upon him which he could hardly expect to discharge merely by hinting at bare possibilities or suggesting some remote hypothesis. Thus the onus lay heavily upon him to explain what happened in the room where they were last together and why he remained absconding for over two years."
' Similarly, in the case of Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515, it has been held as under:-- "On a balance of the decided cases it appears that the circumstances of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of time when'they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person, who, was last seen alive in his company.
22. For what has been discussed above the prosecution has succeeded in proving the case against Taj Muhammad, Mumtaz Ahmad, Ejaz and Tahir alias Pappa, so their conviction is maintained.
23. As far as case of Hassan Khan and Yasin Khan is concerned, admittedly Hassan Khan is father of Mumtaz Ahmad and Yasin Khan is father of Taj Muhammad. They are not nominated in the F.I.R.
But were implicated in supplementary statement of the complainant. Nothing has been brought on record by the prosecution that how they were linked with the commission of crime. No evidence of abetment has been recorded during the trial. Mere pointation of place of burial of dead body by Hassan Khan or recovery of "Kassi" at the instance of Yasin Khan would not connect them with the murder of Shahzad Ali, therefore, case against them is doubtful, so, benefit of doubt is extended in their favor and their conviction and sentence is set aside. They are on bail. Their sureties stands discharged.
24. As far as sentence of Muhammad Ejaz, Mumtaz Ahmad and Taj Muhammad is concerned, their acquittal under section 302, P.P.C. Has not been challenged by the complainant or prosecution and in revision petition, only enhancement of sentence has been sought, therefore, while maintaining the conviction, I order that both the sentences under section 302(b) read with section 308 and 364/109/34, P.P.C., shall run concurrently. Benefit of section 382-B, Cr.P.C. Has also been accorded in their favor.
25. Appeals of Muhammad Ejaz, Mumtaz Ahmad, Taj Muhammad and Tahir alias Pappa are dismissed with above modification.
26. The revision petition filed by the complainant is also dismissed having no force.