' KHAWAJA MUHAMMAD SHARIF, J---Muhammad Saleem, Shabbir Ahmad and Saeed Ahmad were tried by the learned Sessions Judge, Rajanpur, for offences under sections 302/34 P.P.C. For having caused the Qatl-i-Amd of Muhammad Ansar. Vide judgment dated 2-4-2001, the learned trial Judge found all the aforesaid accused guilty of the offence and accordingly convicted and sentenced them as follows:--
(I) Muhammad Saleem for offence under Section 302(b)/34 P.P.C. To death plus payment of Rs,50,000 as compensation, to the legal heirs of the deceased, in default whereof to suffer R.I. For six months.
(II) Shabbir Ahmad and Saeed for offences under section 302(b)/34 P.P.C. Each to. Imprisonment for life each plus payments of Rs,50,000 each, as compensation, to the legal heirs of the deceased or in default in payment of compensation to undergo further R.I. For six months each.
2. Aggrieved by the above noted conviction and sentence, Muhammad Saleem has filed Criminal Appeal No,264 of 2001, while Shabbir Ahmad and Saeed Ahmad have preferred Criminal Appeal No,302 of 2001. The learned trial Court has sent the reference bearing Murder Reference No,309 of 2001, seeking confirmation or otherwise of death sentence imposed upon Muhammad Saleem. We propose to decide all these matters through this single judgment.
3. Briefly, the facts of the prosecution case as narrated by Muhammad Akhtar-complainant, per F.I.R. (Exh. PE), are that his brother Muhammad Ansar (deceased) contracted marriage with Mst.
Musarrat alias Mishu daughter of Muhammad Saleem-accused about 2-1/2 years prior to the occurrence. Mst. Musarrat disliked her husband,oftenly used to quarrel with him and live in her parental house. Her father wished to get rid of her from the deceased. Ten days prior to the registration of case, she was living with Muhammad Ansar. On 28-11-1996, Muhammad Ansar went to the house of his in-laws along with his wife, informing that he would be back by the evening but did not come as per commitment. On 29-11-1996, the complainant along with his father Hazoor Bakhsh and uncle Wazir went to the house of the in-laws of his brother in search of him at Kotla Khudai. They were told by Muhammad Saleem, father-in-law of Ansar that Ansar, leaving his wife in their house had returned on the previous day (28-11-1996). The complainant party continued for his search but could not trace him. On 30-11-1996, Malik Hussain met them and told that on the previous day at about 1-0 p.m. When he was returning from Basti Bait Bakhshaywali of Mauza Kotla Androon, he saw near the said Basti that Muhammad Saleem, Ghulam Shabbir and Muhammad Ansar were going towards 'Zakheera' on a tractor which was being driven by Saeed Ahmed. On the day of registration of the case at morning time, Saeed Ahmad, the driver of Muhammad Saleem's tractor, after a lot of hesitation, disclosed that on 29-11-1996, he, Muhammad Saleem and Shabbir Ahmad took Muhammad Ansar to 'Zakheera' Thul Manghraj where he and Shabbir laid Ansar on the ground, after tying his both legs, while Muhammad Saleem killed Muhammad Ansar by repeatedly driving the tractor over him; that after leaving the dead body in the Government 'Zakheera' they came back, and that he could get the dead body recovered. Upon this disclosure, the complainant, alongwith Hazoor Bakhsh and Wazir, P:Ws., and Saeed Ahmad came to the police station and reported the matter, alleging that Muhammad Saleem, Shabbir Ahmad and Saeed, after having committed the murder of the deceased with their common intention, had concealed the dead body in the above noted 'Zakheera' and the same be recovered and proceedings be initiated.
4. After registration of formal F.I.R., on 2-12-1996, Rana KaleemAkhtar, I/S.H.O., P.W.11, arrested Saeed Ahmad, who led the Investigating Officer as well as the P.Ws. Muhammad Akhtar and Hazoor Bakhsh to the jungle and got the dead body of Muhammad Ansar recovered. The Investigating Officer inspected the spot. He prepared the injury statement (Exh.P.B) and inquest report (Exh.PC) and sent the dead body for post-mortem examination. He collected blood-stained earth from underneath the dead body and took the same into possession through memo. Exh.P.G. He also took into possession a pair of Softee P.3 and P.4, lying at a distance of 3-1/2 Karms from the dead body, vide memo. Exh.P.H. Banian P.7 and shirt P.8 were also taken into possession vide memo. Exh.PJ. A cassette P.5 and a wedding card P.6 were also taken into possession through memo. Exh.P.I. He also recorded the statement of the P.Ws. Under section 161, Cr.P.C. Afterpost-mortem examination, he took into possession turban P.1 and Shalwar P.2, alongwith post-mortem report, vide memo. Exh.P.E.
On 15-12-1996, he arrested Shabbir Ahmad and Muhammad Saleem and recovered the tractor from them, which was taken into possession through memo. Exh.P.F. After completion of investigation, the accused were challaned to face trial.
5. To prove its case at the trial, the prosecution examined eleven witnesses in all and after tendering in evidence the positive reports df Chemical Examiner (Exh.P.K.) and Serologist (Exh.PK/1)
(with regard to the earth) closed its side. Thereafter, the accused/appellants in their statements under section 342, Cr.P.C. Pleaded their innocence and false implication due to enmity.
6. Learned counsel for Muhammad Saleem, appellant, submits that it was an unseen occurrence; that the case has been made against the appellants on the basis of circumstantial evidence, i.e,, evidence of last seen, extra judicial confession and recovery; that crime weapon/the tractor, which has been recovered, does not belong to " any of the appellants; that neither the police nor the trial Court tried to ascertain the ownership of the tractor. Learned counsel submits that the Investigating Officer (10) had admitted that he could not recover the foot prints as the soil on the spot was solid one; that he also admitted that near the 'Zakheera' there was a river and it was sandy area; that the 'Zakheera' belongs to the Forest Department and people also pass through the same; that Hazoor- Bakhsh, father of the deceased, and Bashir Ahmad were given up by the prosecution, as being unnecessary, while Muhammad Safdar was given up as won over by the accused; that on the site-plan only the name of Saeed-accused has been mentioned; that Saleem and Shabbir were arrested on 15-12-1.996 and there is no explanation by the police for not arresting them for 13 days. Learned counsel submits that as far as motive in the instant case is concerned, the statements of complainant Muhammad Akhtar P.W.5 and Wazir Ahmad P.W.6 are contradictory to each other. Learned counsel submits that the dead body was lying in the area surrounded by thick trees as per P.W.6 but simultaneously P.W.6 stated that the dead body was lying 6/7 feet aside from the thick area. Learned counsel submits that at such place deceased could not be run over by the tractor. Learned counsel submits that the deceased might have gone to take bath in the river and he could have been killed by any of the vehicles belonging to the Forest Department; that it is not possible for the father-in-law to kill his son-in-law; and that had the appellants committed the murder of the deceased, the dead body would have been thrown in the river. Learned counsel lastly submits that the prosecution has failed to prove its case against the appellant, so he is entitled to acquittal.
6A. Sahibzada Farooq Ali, learned counsel for Saeed and Shabbir, appellants, submits that there is no evidence against Shabbir; that there are two pieces of evidence against Saeed, i.e,, last seen and extrajudicial confession. Learned counsel submits that the F.I.R. Was lodged after the extra- judicial confession was made at the police station and that, too, in the presence of the police.
Learned counsel submits that it is admitted by P.Ws. That before Saeed could point out the dead body, many people had gathered there at the place. According to the learned counsel, then this is not the pointation; that the death had occurred a day earlier, even there is no molestation on the dead body. Learned counsel submits that, in fact, somebody had identified the dead body and information was given to the police; that thereafter, the case was concocted. Relying upon Zia-ur- Rehman v.The State (2000 SCM R 528) and Sarfraz Khan v. The State and 2 others (1996 SCM R 188), the learned counsel submits that it is unsafe to convict a person merely on the basis of extra- judicial confession, as it is a weak type of evidence and cannot render any corroboration, unless it is proved to have been made factually, voluntarily and truly.
7. On the other hand, learned counsel for the State has defended the impugned judgment, contending that the prosecution has proved its case against the appellants through evidence of last seen, recovery of tractor/crime weapon and the medical evidence, coupled with the motive.
According to the learned counsel, the doctor, who had conducted postmortem examination, stated that the deceased died due to the pressure of a heavy object.
8. We have heard the learned counsel for the parties at a very great length and gone through the evidence with their assistance.
9. The deceased Muhammad Ansar is son-in-law of Muhammad Saleem. Muhammad Akhtar, complainant of the case, is real brother of Ansar. There are three appellants in this case. As mentioned above, the deceased had left his house on 28-11-1996, alongwith his wife, in order to take her to her parental house. He did not return till evening. On the next day, complainant, along with his father Hazoor Bakhsh and uncle Wazir, went in search of Ansar in Kotli Khudai where the house of in-laws of his brother was situated, where Muhammad Saleem met them and told that the deceased had left his wife on the previous day at his house and gone back on the said day.
Then on 30-11-1996, Malik Hussain met the complainant and above said P.Ws. And told that he had seen on 29-11-1996 at about 1-00 p.m. Saeed., Saleem and Shabbir, appellants, sitting on a tractor with Ansar and going towards 'Zakheera'. The complainant party went on searching Ansar. On 2-12- 1996, Saeed Ahmad-appellant, who was driver of Saleem-appellant, after a lot of hesitation, told the three above said P.Ws. That on 29-11-1996, he along with Saleem and Shabbir, appellants, killed the deceased. He gave all the details how he was killed. There are four types of evidence in this case, which have been produced by the prosecution. P.Ws.5 and 6, i.e,, Muhammad Akhtar and Wazir Ahmad, real brother and paternal uncle of the deceased respectively, are witnesses of motive for the murder of the deceased and of extra-judicial confession. Last seen evidence was furnished by Malik Hussain P.W.8. Then there is evidence of pointation of the dead body by Saeed appellant. Then there is evidence of recovery of shirt, Banian, Softee, marriage card and cassette lying near the dead body and tractor. There was no previous background of enmity.Between the parties, especially with Malik Hussian, who is a witness of last seen and pointation of dead body by Saeed appellant. It is most natural that after the extra-judicial confession was made by Saeed appellant, wherein he had implicated Saleem and Shabbir, appellants, the three witnesses mentioned above took him straight to the police station and lodged the F.I.R. Thereafter, the Investigating Officer accompanied Saeed appellant, alongwith P.Ws., to the 'Zakheera' and on the pointation of Saeed, the dead body was recovered. A bare perusal of the site-plan prepared by the Investigating Officer and the Patwari would show that both of them have mentioned the signs of the tyres of the tractor near the dead body. The Investigating Officer, during cross-examination, stated that the space from where the dead body was recovered was solid one, so he could not find any signs of foot steps. The doctor, who conducted post-mortem examination, while appearing as P.W.1, stated that he had found a piece of cloth being tied both legs of the deceased. After observing the injuries, he opined that the object which was used for the murder of the deceased was heavy one and the death was caused by pressure of that heavy object. He gave duration between death and post-mortem examination from 2 to 4 days which coincides with the time of occurrence, as has been stated and seen by Malik Hussain P.W., taking the deceased on the tractor towards 'Zakheera'. Tractor was also recovered on the pointation of the appellants Saleem and Shabbir. Zakheera, it has come on record, is very big one, ranging about 6/7 miles and when the police party entered it from the southern side where the dead body was found lying, it was one Kilometre. If the motor vehicle of the Investigating Officer could reach the place wherefrom the dead body was recovered, why the tractor could not go there. As far as delay in lodging the F.I.R. Is concerned, we may state here that had there been any bad intention on the part of the complainant party against the appellants, on the very next day, the case could have been registered against them but unless they became satisfied about the involvement of present appellants, they did not lodge the F.I.R., against them. This shows bona fide on the part of the complainant party. It is correct that it is a case of circumstantial evidence and the Court should take care while awarding or maintaining the sentence. We are fully satisfied in our mind, after having heard the learned counsel for the parties, going through the independent evidence of the P.
Ws. Having no animus, that all the chains are inter-linked with each other. We are of the considered opinion that the prosecution has proved its case against all the appellants beyond any doubt.
10. In this view of the matter, both these appeals are dismissed. The death sentence imposed upon Muhammad Saleem appellant is confirmed. The Murder Reference is replied in the affirmative.
Shabbir Ahmad appellant is stated to be on bail. He be taken into custody forthwith and sent to jail to serve out the sentence.