Iftikhar Muhammad Chaudhry, C.J.--By this common judgment we intend to dispose of both the listed appeals as they have arisen out of the same judgment of the Peshawar High Court, Abbottabad Bench dated 23.12.1999 passed in Cr. A. No, 13 of 1999 and Murder Reference No, 3 of 1999.
2. Precisely stating facts of the case are that Haji Muhammad Nazir appellant in CA 123/2000 lodged a report on 24.11.98 about missing of his maternal nephew namely Muhammad Ejaz son of Muhammad Riaz aged about 19/20 years, who was the student of 1st Year of FA in Government Post Graduate College, Mansehra. He stated that Ijaz Ahmad set out for the college on 24.11.98 but did not return home till evening. In the process of search, Zulfiqar Ahmed, son of the maternal aunt of Ejaz, was told by a shopkeeper namely Noman (PW-10) that Ejaz had come to his shop in the morning left his note books with him and then accompanied accused Khurram Malik. Zulfiqar still continued his search and met Ismail (PW-2) and on his enquiry Ismail told him that he saw the deceased sitting in the company of appellant in a vacant plot. On this Zulfiqar Ahmed and Ismail went to the house of accused Khurram Malik, who on questioning, replied that Ijaz (deceased) was in his company in the morning but thereafter he did not know about his whereabouts.
3. On 25.11.1998 Khawaja Muhammad (PW-5) found a sac near Ghazo Mor containing something and a human leg without foot at some distance from the sac. This fact was brought to the notice of Adalat Shah, ASHO, who visited the spot alongwith DSP and collected the limbs and cloths and registered a case vide FIR 511 dt. 25.11.1998. He prepared injury sheet (Ex. PW-20/1) and inquest Report (Ex. PW/4) and sent them to DHQ Hospital Mansehra for Post Mortem where Nazir complainant and mother of the deceased identified the parts to be of deceased Ijaz. Adalat Shah, ASHO recovered remaining parts of the body beneath a bridge and took them into possession. On 26.11.1998, Jaffar Shah, SHO arrested accused Khurram Malik in the light of the police statements of Ismail (PW-2) and Noman (PW-10) who had last seen the deceased in the company of the accused. On interrogation, Khurram Malik, accused disclosed the commission of offence.
In this respect he pointed out the house where he had killed the deceased and a well where he had thrown the parts of the body and the place where he had concealed revolver (Ex. PB/6) with which he had killed the deceased. He later on made a statement u/S. 164 Cr.P.C. before Senior Civil Judge/Magistrate wherein he made fully confession of his crime. The gist of his confession is to the effect that he was in love with Mst. Nazia daughter of Ghulam Rasool. Since the deceased was also on visiting terms with Mst. Nazia, which he had not like, and so made his mind to do away with the deceased. On 24.11.1998 at morning time, he met deceased and asked him to got together to the house of Mst. Nazia. He then went to his house and took the revolver of his father as it was a good chance for him to get rid of the deceased. On 27.11.1998 accused Khurram Malik while in police custody, also led the police party to the house of one Ghulam Rasool, situated in Mohallah Dab No, 2 and pointed out the room located on its upper storey where he had killed the deceased by firing at him with the revolver and thereafter cut his dead body into pieces which a Churri and packed them into bags for disposal. During the course of investigation, the offence was found to have been committed within the jurisdiction of P.S. City, hence another FIR 1020 dated 28.11.98 was registered under Section 302/201/202 PPC at PS City Mansehra. After conclusion of the necessary investigations the accused Khurram Malik was sent up to face trial u/S. 302 PPC and Sections 201/202/34 PPC before the Court of Sessions Judge, Mansehra where he did not plead guilty to the charge and claimed trial. The Prosecution in order to substantiate accusation against the accused produced as many as 22 witnesses whereafter the statement of accused u/S. 342 Cr.P.C. was recorded. However he did not opt to make his statement u/S. 340(2) Cr.P.C. He also did not produce any one in his defence.
3-A. The learned Sessions Judge Mansehra, after hearing both the sides, evaluating the entire evidence found the accused guilty of the offence u/S. 302(b) PPC and vide his judgment dated 16.3.1999 sentenced him to death as Tazir with direction that he would pay Rs, 30,000/- as compensation to the LRs, of the deceased under Section 544-A Cr.P.C. or suffer R.I. for six months in case of default.
4. On appeal filed by the convict learned High Court vide judgment dated 23.12.1999 partly allowed his appeal by modifying his sentence of death to that of life imprisonment and increased the amount of compensation from Rs, 30,000/- to Rs, 100,000/- to be paid to the LRs of the deceased.
5. Against the above judgment Khurram Malik/accused filed Appeal No, 122/2000 for acquittal of the charge while Haji Nazir filed Appeal No, 123/2000 for enhancement of sentence of the accused.
6. Learned counsel for convict/appellant contended that prosecution has miserably failed to substantiate accusation against him. The evidence brought on record is not confidence inspiring as according to him in the cases where conviction is based alone on circumstantial evidence it becomes the duty of the Court to scrutinize the evidence carefully because in such like cases the element of false involvement of innocent person cannot be overruled. He further contended that the High Court being mindful of these facts awarded lesser sentence to the convict although he was entitled for acquittal therefore, he prayed that on accepting the appeal the convict may be exempted of the charge.
7. On the other hand learned counsel appearing on behalf of the complainant contended that in presence of overwhelming strong circumstantial evidence learned High Court erred in law in reducing the sentence of the convict. He explained that the circumstances proved on record by the prosecution, if are put together sequence-wise no other conclusion can be drawn except that it was the convict who committed brutal murder of the deceased. He further stated that the convict is a desperate criminal as it is evident from the manner in which he committed the crime i,e, after killing the deceased, Ijaz @ Goga aged about 18/19 years by a shot of fire. He cut into pieces his dead body and had thrown them in different places therefore, lenient treatment extended to him by the Appellate Court warrants interference by this Court in the interest of justice and to ensure that in such like cases an exemplary punishment is awarded which would not only meet the ends of justice but would also be detterence for life-minded persons.
8. We have heard learned counsel for both the sides and have also gone through the available record carefully. A perusal of the prosecution case indicates that the convict killed the deceased in the house of Mst. Nazia, a lady with whom both of them had fallen into love. It seems that convict/appellant, to achieve the nefarious goal had planed the murder of his rival/competitor as while leaving the house he had picked up his revolver and while sitting alongwith the deceased and Mst. Nazia, created an occasion for entangling himself with the deceased and on having succeeded in doing so, availed the chance promptly to remove the deceased from his way as he fired on his skull, resulting in brain damage and causing instantaneous death. The prosecution version also depicts his desperateness as after the commission of the crime he went to Bazaar from where he purchased a knife and on coming back cut his dead body into pieces and managed to throw the same at different places recovery of which was affected by the police later on, at his pointation. It is a case in which prosecution has entirely relied upon circumstantial evidence including the statements of PWs Muhammad Ismail and Noman. Scrutiny of their evidence leads to believe their version to be correct and true. Both of them had seen the accused in the company of the convict, Khurram Malik PW(10) Noman had also testified that accused Khurram Malik on the day of incident i,e, 24th November 1998 at about 9:00 a.m came to his shop and left his two note-books with him saying that he would get them back in the evening thereafter the deceased and accused proceeded towards the street which is leading downward beside the Ice Factory. Both the witnesses had supported the version of each others. From their statements, prosecution had established the presence of deceased with the accused in the morning time when both of them left together. The company of both the persons with each other was not for a noble cause but for an anti-social activity as they had gone to visit Mst. Nazia with whom both of them were carrying on.
9. Dead body of the deceased of Ijaz Cn Goga was found in a dried well lying into different pieces.
Though it was difficult to identify the pieces of the dead body, to be of the deceased but when they were brought to District Headquarter, Mansehra on 25th November 1998, Muhammad Nazir, complainant and the sister of mother of the deceased on having seen the cloths i,e, Shalwar Qameez pullover etc. identified that part of the human body were of the deceased Ijaz. The recovered parts of the human body i,e, lower portion of the trunk from the umblicus down to buttock and perimeum, Anus, secotum and penis intact were subjected to postmortem on by PW- 11 Dr. Niaz Muhammad who vide report dated 27th November 1998 expressed his opinion as follows:-- "The cause of death is fire-arm injury to skull resulting in brain damage and death. A plastic bag and one bullet recovered from the body weighing 2 grams and 8 grains, sealed in bottle and handed over to the police. Time between injury and death, sudden and between death and postmortem examination within three days. The P.M. report is Ex. PW/2."
10.It may be noted that PW Jaffar Shah SHO Sadar Mansehra, on having received information about the recovery of the parts of the body had registered the case on 25th November 1998 vide FIR No, 511. The SHO, in view of the statement of PWs Ismail and Noman, arrested Khuram Malik on 26th November 1998. It is important to note that on the same day he took the police to Mohallah Neelan and led them to recover of severed head, two hands, two feet of the deceased from a dried well. The place of recovery was preserved by PW Zahoor Photographer. The parts of the human body found lying in plastic bags were taken into possession vide memo Ex. PB/7. The site-plan Ex.
PB/2 was also prepared by the SHO. On the same day vide recovery memo Ex. PB/6 at the pointation of the convict, SHO/IO took into possession the revolver (crime weapon) five live rounds out of which three were of .32 bore revolver and two of .32 bore pistol and one empty of .32 bore pistol hanging with the wall in a bandolier in the room of his house. The recovery was duly testified by PW Asif Gohar. On the same day at the instance of the convict, Churri was recovered being second crime weapon used by him for cutting the dead body of the deceased, with the help of a string and magnet from a well inside the office of "Aurat (women) Association Mansehra. The handle of churri was stained with the blood. It was taken into possession in presence of witnesses vide Ex. PB/8. The sketch of Churri was prepared as Ex. PW/22/1. It is important to note that on the same day i,e, 27th November, 1998 Suzuki Carry bearing Registration No, 6773/RIT was got recovered, which was used by him in disposing of the severed parts of the body of the deceased.
Same was taken into possession in presence of witnesses. On inspection it was found that vehicle contained stains of blood on the right door and on the lock of Diggi (boot). As far as recovery of these articles is concerned it duly stand established against the accused because depsite of the cross-examination on the witnesses no favourable material was extracted therefore, the recoveries of different parts of the human body were identified to be of the deceased Ijaz Goga with the help of the clothes which he was wearing. From the room where he committed the offence, PW-Jaffar Shah also took into possession the cot bearing stains of the blood vide Ex. PB/9. With the medical evidence furnished by PW-Dr. Niaz Muhammad alongwith other incriminating pieces of evidence particularly the statement of PW-2 and PW-10, a strong circumstantial evidence is available against the convict to draw a presumption that he is guilty for the commission of offence. There is another most important piece of evidence against the convict namely, his confessional statement which he got recorded before Senior Civil Judge/Judicial Magistrate on 27th November 1998. It may be noted that in the confessional statement convict Khurram Malik disclosed that Mst. Nazia daughter and Mst. Ameeran. Bibi wife of Ghulam Rasool were also present at the spot when he committed the murder of Ijaz @ Goga. (deceased), as a result of receiving such information PW-17 Muhammad Fazal Khan arrested both the female accused on 28th November 1998. On the same day he produced them before Senior Civil Judge/Judicial Magistrate Mansehra for recording their confessional statement. The gist of the statement of the accused/convict got recorded by him u/S. 164 Cr.P.C. is as follows: He was in love with Mst. Nazia daughter of Ghulam Rasool co-accused. The deceased was also on visiting terms with her which he did not like and so decided to do away with him. On 24th November 1998 at morning time he met the deceased and asked him to go together to the house of Mst. Nazia. Considering it an appropriate chance to get rid of the deceased, he went back to his house and brought the revolver of his father. Deceased left his note books in the shop of Noman, PW-10 on reaching the house of Mst. Nazia they all three sat down in the room of the house. He asked the deceased as to why he visits the house of Mst. Nazia. On this, convict replied that he visits the house of Nazia as he is in love with her but Nazia stated that she loves the deceased. On this he got a chance and fired on the deceased who got injured and fell down. He threatened Nazia and her mother not to disclose the incident to any body otherwise they would too be killed. He locked the door of the house and purchased a churn from a shopkeeper at Shinikiari Road for Rs, 20/- and a rope. He got sharpened the Churri from another shop and came to the house where incident took place and cut the dead body into pieces and put them in a plastic bag. He also took the severed head, hands and feet in separate bag and threw them in a well, situated in Mohallah Neelan thereafter he took the remaining parts in Suzuki carry and threw them in Changa on two different places. After arrest, he pointed out the places to the police from where parts of the body were recovered. The revolver was also recovered from his house at his pointation. He had thrown the Churri in a well in the office Aurat Foundation, Mansehra.
Although PW-Sajjad Anwar Khan, Senior Civil Judge/Judicial Mansehra who recorded the confession of the accused, was put to cross-examination at length but without any substance.
Thus confessional statement which was recorded on the following day of his arrest, being true voluntarily furnishes most important piece of evidence."
11.It is to be noted that voluntariness of a confessional statement u/S. 164 Cr.P.C. of an accused can be adjudged if it is recorded without unexplained delay after his arrest. In instant case, convict got recorded his statement on the following day of his arrest but in Court proceedings had denied recording of confession in statement u/S. 342 Cr.P.C. alongwith recovery of incriminating articles but as it has been stated herein that the recovery of incriminating evidence has been duly established against him and as far confessional statement is concerned, it also gets strong corroboration from the same. Therefore, without any hesitation it can be used against the accused. It may be noted that Mst. Nazia and Amrezan in their confessional statements had also not denied the happening of the incident therefore, their statements can also be considered as circumstance against the convict in terms of Article 43 of the Qanoon-e-Shahadat Order, 1984 which envisages that when more persons than one are being tried jointly for the same offence and confession made by one of such persons is proved, the Court may take into consideration the such confession as circumstantial evidence against such other person.
12.Learned counsel for the convict state that in the instant case, prosecution as failed to establish motive because it was not set up in FIR and subsequently convict, committed the crime on account of the rivalry with the deceased who was also carrying on with the same girl with whom latter had also fallen into love, therefore, the conviction of life imprisonment awarded to him may be maintained. The arguments so put forward, vehemently opposed by the other side. It is to be noted that in the instant case appellate Court had agreed with the findings recorded by the trial Court concerning the commission of offence by the convict but had expressed its reservation only on the quantum of the sentence. Undoubtedly the learned appellate Court is legally empowered to record its own findings but subject to furnishing the reply of the reasons advanced by the trial Court for the purpose of not awarding normal penalty of death to an accused u/S. 302 PPC, as it has been held in the case of Abdul Subhan vs. Rahim Bukhsh & others (PLD 1994 SC 178) wherein it has been observed: The First Appellate Court while disagreeing with the conclusion of the trial Court, on the point of fact, will have to take into account the reasons advanced by the Trial Court and if it disagrees with the reasoning of the trial Court, it must give its own reasoning for such disagreement which should proceed on some logical basis."
Admittedly the learned High Court reappraised the evidence in its own manner and endorsed the findings of the trial Court so far it relates to the happening of the incident is concerned but differed on the question of awarding of sentence, without assigning any reason. Whereas the learned trial Court had advanced the strong reasons in this behalf.
13.Now we advert towards the arguments of learned counsel for the convict with regard to the non-availability of the motive for the commission of offence. In this context it is to be borne in mind that motive is always known to the accused who commits the crime and there are cases like the one in hand where it is not possible to disclose the motive by the prosecution in First Information Report. As we have noticed in the instant case that the deceased Ijaz Goga and Khurram Malik were carrying on with the same girl and the latter had decided, to get rid to him. This fact was only known to him therefore, to accomplish his object he killed him in the house of Mst. Nazia, thereafter being a highly desperate person, went to Bazar, purchased a churri and with it cut into pieces the dead body and packed the same in separate plastic bags and thrown them on different places.
The police had registered FIR Ex. PA/2 on 25th November 1998, on receiving information that parts of a human body have been recovered. These parts of the body were taken to hospital and a case was registered. The complainant was not any of the relatives of the deceased, therefore for such reasons he was not in a position to disclose the motive which even otherwise was not possible to disclose because as affair of love could not be disclosed by the deceased to any of his relatives. By the time it is well settled that for determining and awarding adequate sentence to an accused involved in capital offence existence of motive is not necessary. Reference in this behalf may be made to Talib Hussain vs. State (1995 SCM R 1776) Muhammad Akbar and another vs. The State (PLD 2004 SC 44).
14.Learned counsel appearing for Nazir Ahmad, maternal uncle of the deceased, contended that prosecution had produced overwhelming incriminating evidence against the convict, therefore, in absence of any mitigating circumstance, he is liable for normal penalty of death, under the circumstances of the case and deserves no leniency on quantum of punishment.
15.On the other hand learned counsel for the convict was of the opinion that he is the first offender and at the time of offence he was riot, therefore, deserves leniency in awarding sentence to him.
16.On having taken into consideration the facts and circumstances of the case we have attended to this aspect of the case as well, carefully. In our independent appreciation of the evidence, which has been undertaken in the interest of justice we, are of the opinion that the convict murdered the deceased in a most brutal and desperate manner. Inasmuch as after the commission of the crime be exhibited inhuman attitude by cutting into pieces the dead body of the deceased and throwing the same in different places, therefore, question for consideration, would be whether there are mitigating circumstances warranting lesser punishment to convict? A perusal of record has persuaded us to answer the query in negative. It is a cardinal principle of criminal administration of justice that if an accused takes a special plea to claim lesser punishment on the basis of particular facts and circumstances of the case burden lies upon him to establish the same, as it has been held in the case of Mandoos Khan vs. The State (2003 SCM R 884), Abdul Haque vs. The State (PLD 1996 SC 1). It is also to be noted that justice is not for one but is for all and while examining the case of convict, the Court owe a duty to the legal heirs/relatives of the convict and also to the society that justice should also be done with them as well, thus the sentence should be such which should serve as deterrent for the like minded persons as observed in the case of Muhammad Saleem vs. The State (PLD 2002 SC 558), State vs. Farhan Ali (PLD 1995 SC 1).
17.Learned counsel lastly contended that the convict has attained expectancy of life because the appeal is being disposed of after a considerable time therefore, keeping in view this angle, his request for lesser punishment may be considered. The arguments so raised by him is not available to him in view of the principle that per se expectancy of life is not a valid ground for awarding lesser punishment. (Moahzam Shah v. Mohsan Shah & another (1995 SCM R 1190).
18.Thus for the foregoing reasons, Criminal Appeal No, 122/2000 filed by convict Khurram Malik is dismissed whereas Criminal Appeal No, 123/2000 filed by Haji Nazir is allowed.
Herein above are the reasons of our short order which is reproduced herein below for convenience:-- "For the reasons, to be recorded later, Criminal Appeal No, 122/2000 filed by convict Khurram Malik is dismissed whereas Criminal Appeal No, 123/2000 filed by Haji Nazir is allowed as a consequence whereof while maintaining conviction u/S. 302(b) PPC awarded to Khurram Malik (convict) his sentence is enhanced to death with direction of payment of compensation of Rs, 30,000/- to the heirs of deceased Ijaz @ Goga if recovered as arrears of land revenue."