This appeal is directed against the judgment dated 21.11.2002 passed by he learned Additional Sessions Judge, Gujranwala, whereby, after having tried the appellants, convicted Tahir Javed appellant under Section 302(b)/34 PPC and sentenced him to imprisonment for life with a direction to pay a compensation of Rs, one lac as provided under Section 544-A Cr.P.C. in default whereof to further undergo six months SI, convicted Muhammad Arif (acquitted accused on the basis of compromise by this Court) and sentenced him to imprisonment for life with a direction to pay a compensation of Rs, one lac as provided under Section 544-A Cr.P.C. in default whereof to further undergo six months SI, convicted Muhammad Farooq appellant and sentenced him to imprisonment for life with a direction to pay a compensation of Rs, one lac as provided under Section 544A Cr.P.C. in default whereof to further undergo six months SI and convicted Ghulam Yasin appellant and sentenced him to imprisonment for life with a direction to pay a compensation of Rs, one lac as provided under Section 544A Cr.P.C. in default whereof to further undergo six months SI. Benefit of Section 382-B Cr.P.C. was not extended to the convicts.
2. Brief facts of the case, as explained by Muhammad Sarwar complainant are that on 12.9.2002 at about 3.00 p.m. he was present at his Dera, Rana Farooq appellant came there on a bicycle alongwith appellant Tahir, they took his deceased son Rafaqat with them, they went towards Ojla Pul, his said son did not come back whereupon he inquired from Rana Farooq appellant about his son, he showed his ignorance, on the same day Mushtaq disclosed him that he saw Rana Farooq (appellant), Rafaqat Ali (deceased) and Muhammad Tahir (appellant) on a bicycle going towards Pul Ojla, on the same day at 8.00 a.m. dead body of his son was recovered from the Bank Canal, after registration of the case the I.O. recorded statements of the prosecution witnesses under Section 161 Cr.P.C. coupled with recording of supplementary statement of the complainant, arrested the accused, they were found guilty.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced fifteen witnesses during the trial.
4. Mr. Muhammad Ali Dogar, Learned counsel for the appellant Muhammad Javed, in support of this appeal submits that the when the complainant lodged the FIR, he was not in his senses; that the FIR was got recorded by Iftikhar and Muhammad Arshad; that he did not know what was written in the FIR; that Mushtaq. PW had told the complainant about the presence of dead body at 8.00 a.m. but he met him at the said place at 10.00 a.m.; that thereafter the story was concocted against the said appellant; that the learned trial Court has disbelieved the motive part of the prosecution case but has based conviction on the last seen evidence, extra judicial confession and recovery; that the complainant had stated before the learned trial Court that he did not see the cycle but in the complaint the stated that Farooq and Tahir came on a cycle when they had taken the deceased alongwith them; that the complainant did not give the name of Tahir Javed appellant; that the motive, if any, was against Yasin and Farooq; that the appellant is resident of Basiwala while the witnesses of recovery are residents of Village Roop Chand; that according to the complainant he stated before the learned trial Court that he did not know any person from Village Basiwala; that the complainant had stated before the learned trial Court that nobody comes at the place of occurrence as the occurrences like dacoity frequently took place there; that PW8 is very closely related to PW14; that PW8 stated that he did not tell the complainant of having seen his son in the company of the accused; that the statements of PW9 and PW10 are not believable because they could not produce any documentary proof regarding their departure and arrival to Kharian Cantt. and that according to their statements when they arrived back, they saw many people standing near the dead body of Rafaqat deceased.
That Muhammad Javed PW11, who is recovery witness of the daggers from Arif and Tahir Javed, is first cousin of the deceased; that the place of recovery is near to the gas pipeline but in the recovery memo there is no mention of the said gas pipelines; that the newspaper in which the daggers in question were wrapped were not taken into possession by the police; that the place of recovery is bank of flown canal and it was not difficult to have thrown the daggers in the water of the said canal; that there is a difference of number of places of recovery i,e, "Buiji"; that the Investigating Officers did not tell the size of the dagger to the learned trial Court; that the recovery witnesses failed to show whether they went to the place of recovery on the official or private vehicle and that PW12 is the witness of extra-judicial confession which was, a joint one and is inadmissible in evidence and that it was not a voluntary confession.
Learned counsel, while concluding his submissions, submits that it is an un-witnessed occurrence, is a blind murder, there is no motive against the appellant and. the motive, if any, was against Farooq and Yasin co-accused and that the prosecution has failed to prove the case against the appellant who is entitled to acquittal.
Sheikh Najamul Hassan, learned counsel for Ghulam Yaseen appellant submits that no motive was mentioned in the FIR and the motive of borrowing of Rs, 50,000/- was introduced before the learned trial Court for the first time; that there is difference regarding the amount; that the appellant is not named in the FIR and only names of Tahir and Farooq have been mentioned; that PW 8 had stated that he had seen Ghulam Yasin and Arif at 3.30 p.m. on 12.9.2001 at the bank of the canal; that the only evidence against the appellants that PW9 and PW10 had seen this appellant and the deceased while coming out of the Bus at 9.15 p.m. on 12.9.2001 white he had left home with Farooq and Tahir at 3.30 p.m. on 12.9.2001; that, according to the doctor(PW6) the time between the death and the post-mortem examination is 8 to 9 hours which means the murder had taken place at about 7/9 a.m. on 13.9.2001; that no body knows where the deceased remained between 9.30 p.m. of 12.9.2001 upto 7/8 a.m. on 13.9.2001; that in his cross-examination, PW6 stated that "....I cannot state the exact time of death. I recorded the time of death according to policepapers .According to my assessm ent death took place roughly about ten hours beforepost-mortern report.
Learned counsel for this appellant, while advancing his arguments, contends that the exact time of death is ten hours before the post-mortem examination and it is an observation of a specialist; that only a suggestion was put to the Investigating Officer regarding the illicit relations of the deceased with the wife of Yasin appellant and sister of Farooq appellant but that was denied; that there was no such evidence of illicit relations; that no investigation was conducted by the Investigating Officer regarding motive which was not believed by the learned trial Court; that the extrajudicial confession was a joint one which is inadmissible in evidence and even the same was not voluntary in nature that no weapon of offence was recovered from Yasin appellant; that only a watch and an account book was recovered from him; that it has not come on record whether the deceased was carrying those articles with him; that the appellant is resident of Basiwala while the recovery witnesses are residents of Roopchand at a distance of 30 miles; that it is clear violation of Section 103 Cr.P.C. that there was no reason for the appellant to keep the watch with him in the broken condition and that said recovery evidence was inadmissible. While canvassing acquittal of the appellant, learned counsel has placed reliance on 1993 SCM R 1378; PLJ 1992 Cr1. Cases Lahore 205, 1995 SCM R 1350, 1980 P.Cr.L.J. 163 and 1970 SCM R 743.
Miss Nausheen Taskeen, learned counsel for appellant Rana Farooq, (appointed at State expense) after having adopted arguments of the learned counsel for both the parties, adds that the said appellant has wrongly been convicted on the ground of recovery of identity card and photograph of-the deceased and is entitled to acquittal as well.
5. On the other hand, learned counsel for the State submits that he would defend the impugned judgment on the point of recoveries.
6. I have heard learned counsel for the parties at a very great length on more than one date of hearings, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The complainant in this case is Muhammad Samar (PW14). He is father of the deceased.
According to the FIR, the 'deceased was taken by Rana Farooq appellant from his house on a cycle.
Thereafter, the went to his house who could not give any plausible explanation. On the same day, dead body of his son was recovered. During the course of investigation, present appellants were arrested alongwith acquitted accused Arif (on the basis of a compromise reached between the parties). It is very important to note that Arif, while appearing before the learned trial Court and while making his statement under Section 342 Cr.P.C., in reply to Question No, 14, stated as under: "In fact Ghulam Yasin and Farooq my co-accused have committed the murder when I was left behind for urine purpose on the night of occurrence. I have never snatched anything of deceased".
As far as defence version of the appellants is concerned, they have merely denied it. It is also important to note that Farooq and Yasin are brothers-in-law inter-se as sister of Farooq was married with Yasin. Although no motive was alleged in the FIR by the complainant and set up during trial was that the deceased had to take Rs, 50,000/- from Yasin and Farooq appellants. At page 9 of cross-examination of PW 15 Muhammad Yasin Khan SI/1.0., which spreads over pages and pages, learned counsel for the defence himself introduced the new motive which reads as under: "....On 14.9.2001, I recorded the statements of two witnesses namely Shaukat Ali and Abdul Sattar under Section 161 Cr.P.C. wherein, both the witnesses stated regarding the motive that accused Hafiz Yasin had a suspicion as well as accused Farooq also had a suspicion that sister of accused Farooq and wife of accused Qari Yasin had illicit relations with deceased Rafaqat Ali "
So, the motive part of the prosecution story was itself proved by the defence. Even otherwise, it has repeatedly been held by the Superior Courts of the country including the August Supreme Court of Pakistan that motive is always in the mind of the accused persons.
There is not an iota of evidence on record that any of the prosecution witnesses was inimical towards any one of the appellants. It is neither a case of false implication nor plantation. In order to prove its case, the prosecution has produced three types of evidence i,e,, firstly, last seen, which consisted of PW14 Muhammad Sarwar who is real father of the deceased and had no reason to falsely depose against the appellants, then there is a statements of PW8 Mushtaq Ahmad, PW9 Nasir Mehmood and PW10 Riasat Ali, secondly, extra-judicial confession which was furnished by PW12 Muhammad Nazir and PW13 Zafar Iqbal. Much stress has been laid by learned counsel for the appellants that the same was inadmissible being joint, has no force. In this regard I would like to give reference to few lines of the statement made by PW12 Nazir which are as under: ....On 19.9.2001, I alongwith Javed, Zafar, Ansar and other persons were present in Wahla Rice Mill near Pull Ojla. It was 10/10.30 a.m. Yasin, Farooq, Tariq and Arif came there. All the accused are present in the Court. Yasin accused stated before us that they have committed a mistake and murdered deceased Rafaqat and they asked to get pardon from Rana Muhammad Sarwar father of deceased".
The narration of the above statement would show that it was never stated that all the accused made joint confession, so, it cannot be argued that the same was a joint one.
Thirdly, during the course of investigation Arif and Tahir led to the recovery of blood stained daggers which recovery was duly attested by the reliable witnesses Farooq led to the recovery of purse of the deceased alongwith Rs, 500/- and Identity Card belonging to the deceased. Yasin appellant led to the recovery of a watch and account book belonging to the deceased. Reports of the Chemical Examiner and Serologist were also positive.
So far as contention of the learned counsel for the appellants regarding difference of time between the time of occurrence and the postmortem examination, the same has no force because Dr. Hafiz Muhammad Akram Gondal (PW6) stated that "..I cannot state the exact time of death. I recorded time between death and the post-mortem examination not on the basis of my personal experience and knowledge but on the basis of police report..
Cross-examination of the doctor shows that he himself was not sure when the death of the deceased had taken place and even otherwise opinion of the doctor, which is only confirmatory in nature, is not binding on this Court. Therefore, the contention of the learned counsel for the appellants that from 9.30 p.m. on 12.9.2001 upto 7/8 a.m. on 13.9.2001 no body knows whether the deceased remained with the accused persons or not. Even it was submitted before the learned trial Court that the place from where the dead body was recovered, no body comes there from 5.00 p.m. till the next morning. This is the reason that the murder had taken place at such a place which was not accessible to public-at-large. At this stage, learned counsel for the appellants submit that the benefit of Section 382-B Cr.P.C. has been withheld by the learned trial Court and have prayed for extending the same to all the appellants.
8. After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against the appellants beyond any shadow of doubt to sustain conviction against the appellants. It is, settled by now that when the confession judicial or extra-judicial was corroborated by the circumstantial evidence and the evidence of recoveries, normally the Superior Courts do not interfere with the conviction recorded by the learned trial Court. This is in line with the law laid down by the August Supreme Court of Pakistan in Muslim Shah vs. The State (PLD 2005 Supreme Court 168). The precedent case-law cited by the learned counsel for the appellant Yasin is distinguishable as the facts and circumstances of the case in hand are different. Even otherwise, the Court has to see the quality of the evidence and not the quantity and while deciding a criminal case its approach should always be dynamic one and technicalities to be overlooked. As the learned trial Court has already taken a lenient view qua the quantum of sentence, therefore, there is no need to further take any lenient view. Resultantly, this appeal has no merit which is hereby dismissed. The convictions and sentences recorded against the appellants are maintained in toto .However, benefit of Section 382-B Cr.P.C. shall be given to the appellants.