' JAVED IQBAL, J.--- This petition with leave of the Court is directed against the judgment, dated 19- 10-2004 whereby the criminal appeal preferred on behalf of appellant has been dismissed however, his conviction under section 302(b), P.P.C. Was set aside and he was convicted under section 364, P.P.C. And sentenced to life imprisonment.
2. Brief facts of the case as disclosed by Muhammad Akram complainant are that on 29-5-2002 at about 11-00 a.m. He was present in his house, when Muhammad Wakeel along with two persons came and called from his son Javed to accompany them to catch the parrots from Chhanga Manga Forest. Hence on their asking his deceased son, namely, Muhammad Javed accompanied to them. However, when his son did not come back till evening time, then he went to the house of Muhammad Wakeel etc. But they tolerated the complainant. On his stress Muhammad Wakeel etc. Told that they caught parrots from Chhanga Manga Forest. However, on 1-6-2002, he accompanied the complainant party to Ghora Poli of Canal to search out Javed deceased but he did not take them towards the place of occurrence. However, the complainant continued the search of his son at different places. It has also been alleged by the complainant that today i,e, 2- 6-2002 at about 2/3 p.m. One Zulfiqar Lumberdar, informed him that the dead body of his son lying in field No,73 of Chhanga Manga Forest, near Ghori Poli, whose legs and hands were tied, upon this information the complainant along with his brother and other P.Ws. Reached in the Forest of Chhanga Manga and saw there the dead body of his son Javed. It was further that Muhammad Wakeel along with his co-accused with their common intention has murdered his innocent son Javed, hence this case". The appellant was arrested and after completion of investigation sent up for trial and on conclusion whereof he was convicted under section 302(b)/34, P.P.C. And sentenced to life imprisonment with further direction to pay Rs,25,000 as compensation to the legal heirs of the deceased pursuant to the provisions as contained in 544-A, Cr.P.C. And in case of default to suffer S.I. For six months with benefit of section 382-B, Cr.P.C.
3. Leave to appeal was granted by means of order, dated 15-11-2005 which is reproduced hereinbelow for ready reference:-- "Waked' petitioner was about 11/12 years old in the year 2002 when he was accused of having enticed away Javed deceased, from his house whereafter he had been found murdered. This Javed deceased was also about 12/13 years old at the said time. Wakeel petitioner was tried by a learned Additional Sessions Judge at Chunian as a Juvenile; was found guilty of the offence under section 302(b)/34, P.P.C.; was convicted accordingly and was punished with a sentence of imprisonment for life. His co-accused, namely, Arif was tried separately. He was also convicted under section 302(b), P.P.C. And was also punished with a sentence of imprisonment for life. We are informed by the learned Advocate Supreme Court for Wakeel petitioner that the appeal filed by Arif convict before the learned High Court was accepted and he had sine been acquitted. The appeal of Wakeel petitioner bearing No,268/J of 2003 was, however, partly allowed as a result whereof the conviction recorded against him under section 302(b)/34, P.P.C. Was set aside along with the sentences passed on the said charge but he was instead convicted under section 364, P.P.C. And was punished, inter alia, with 14 years' R.I. He is now before us canvassing acquittal.
4. Mr. Muhammad Farooq Qureshi Chishti, learned Advocate Supreme Court entered appearance on behalf of appellant and urged with vehemence that prosecution has failed to substantiate the accusation by producing any cogent and concrete evidence which aspect of the matter went unnoticed by the learned Single Judge of the Lahore High Court, Lahore resulting in serious miscarriage of justice. It is urged with vehemence that the provisions as contained under section 364, P.P.C. Have been misinterpreted and misconstrued as the appellant could not have been convicted under section 364, P.P.C. As no evidence worth the name could be produced by the prosecution inferring that offence under section 364, P.P.C. Has been committed by the appellant. It is also pointed out that the prosecution has failed to prove the factum of intention in absence whereof the question of conviction dogs not arise. It is also argued that the appellant remained associated with the family members of the deceased to search out deceased for three days, which depicts his innocence. It is also pointed out that merely on the basis of suspicion and conjectural presumptions no conviction could have been awarded which aspect of the case has been ignored not only by the learned trial Court as well as by the learned Single Judge in Chambers.
5. Mr. G.N. Gohar, learned Advocate Supreme Court represented the State and supported the judgment impugned with the submission that prosecution has established the guilt to the hilt by producing worthy of credence eye account which has rightly been considered and relied upon by the learned Courts below.
6. We have carefully examined the respective contentions as canvassed at bar by the learned counsel for the parties, scanned the entire evidence and perused the judgment of learned trial Court as well as the judgment impugned with care and caution. After having gone through the entire record we are of the view that prosecution has proved the case and the appellant has rightly been convicted under section 364, P.P.C. By the learned Single Judge of the Lahore High Court, Lahore in chambers. The statement of Haji Muhammad Akram (P.W.1) is indicative of the fact that deceased was taken from his house by the appellant Muhammad Wakeel on the pretext of catching parrots from the forest of Chhanga Manga. Haji Muhammad Akram (P.W.1) was subjected to lengthy cross-examination but nothing beneficial could be extracted. The version of Haji Muhammad Akram (P.W.1) is confidence-inspiring as no dishonest exaggerations or improvements have been made by him. Besides that he has no enmity whatsoever against the appellant hence the question of false implication of appellant in a concocted case, as pressed time and again by the learned Advocate Supreme Court on behalf of appellant, does not arise. The statement of Haji Muhammad Akram (P.W.1) has been fully supported by Muhammad Ashraf (P.W.2) and Muhammad Aslam (P.W.3) who have stated in a categoric manner that the deceased was seen in the company of Muhammad Wakeel near Canal Bridge of Chhanga Manga forest. It is to be noted that Muhammad Aslam (P.W.3) had inquired from the appellant for their purpose of visiting Chhanga Manga forest who told that they intend to catch parrots from the forest. The cumulative effect of statements of Haji Muhammad Akram (P.W.1), Muhammad Ashraf (P.W.2) and Muhammad Aslam (P.W.3) would be that the deceased was taken out from the house by the appellant and deceased was also seen in his company near Chhanga Manga forest which aspect of the case has rightly been taken care of by the learned Single Judge in chambers of the Lahore High Court, Lahore. On the basis of statements of Haji Muhammad Akram (P.W.1), Muhammad Ashraf (P.W.2) and Muhammad Aslam (P.W.3) it can safely be inferred that the deceased was taken from the house who was also seen in the company of appellant. No reasoning could be given ily the learned counsel for appellant as to why in the absence of any animosity against the appellant, the statements of Haji Muhammad Akram (P.W.1), Muhammad Ashraf (P.W.2) and Muhammad Aslam (P.W.3) should be disbelieved. We are conscious of the fact that the above P.Ws. Are inter se related but inter se B relationship is no ground for discarding their statements. It is well-settled by now "that an interested witness is one who have a motive for falsely implicating an accused". The concept of "interested witness" was discussed elaborately in case titled Iqbal alias Bala v. The State 1994 SCM R 1 and it was held that friendship or relationship with the deceased swill not be sufficient di credit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State PLD 1962 SC 269. In Khalil Ahmed v. The State 1976 SCM R 161 the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained article recovered from the accused and supported by two other witnesses.
In Allah Ditta and others v. The State 1970 SCM R 734 the testimony of four P.Ws. Out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses, injuries sustained by two P.Ws. Proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274 and Shehruddin v. Allah Rakhia 1989 SCM R 1461 at 1465 where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown 1969 SCM R 777 it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not".
7. There is no doubt that the deceased was taken away from the house to the forest of Chhanga Manga and dead body of the deceased was subsequently; recovered. The prosecution has failed to substantiate the accusation up to the extent of Qatl-e-Amd but a case is made out against the appellant beyond shadow of doubt under section 364, P.P.C. And the appellant has rightly been convicted. The learned High Court has relied upon the dictum as laid down by this Court in case Zulfiqar Ali Bhutto v. State PLD 1979 SC 53; relevant portion whereof is as follows:-- "The survey of the cases shows that the law as embodied in sections 236 and 237 of the Criminal Procedure Code read together appears to be that if on the facts alleged it was doubtful which of several offences the proved facts will constitute and on the fact eventually proved, of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their Lordships of the Privy Council have indeed put it simply and shortly by saying that a man may be convicted of an offence although there has been no charge in respect of it if the evidence is such as to establish a charge that might have been made."
8. There is no doubt in it that the appellant could have been convicted under section 364, P.P.C. And it hardly matters as to whether specific charge was framed or otherwise in view of the provisions as contained in sections 236 and 237, Cr.P.C. There is no cavil to the proposition that "cumulative effect of sections 236 and 237, Cr.P.C. Is that if an accused is charged with one offence but from the evidence he appears to have committed, a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with the same. Khuda Bakhsh v. The Crown PLD 1955 FC 378; Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116; Rawapenta Venkalu v. The State of Hyderabad AIR 1956 SC 171; B.N. Sirikantiah v. State of Mysore AIR 1958 SC 672; Jaikrishnadas Manohardas Desai v. State of Bombay AIR 1960 SC 889; Shahadat Khan v. Home Secretary to the Government of West Pakistan PLD 1969 SC 158.
9. As mentioned hereinabove the prosecution has failed to substantiate the accusation up to the extent of Qatl-e-Amd but a case is made out against the appellant beyond shadow of doubt under section 364, P.P.C. It has come on record that the appellant is that of tender age and accordingly his conviction and sentence under section 364, P.P.C. Is converted to that of already undergone which in our considered view would meet the ends of justice. These are the reasons of our short order dated 17-5-2006 which is reproduced hereinbelow:-- "For the reasons to be recorded separately, this appeal is dismissed. However, conviction and sentence awarded to the appellant under section 364. P.P.C. Is converted to that of already undergone which in our considered opinion would meet the ends of justice. The appellant namely, Muhammad Wakeel son of Imam Din be released forthwith in case F.I.R. No,182 dated 2-6-2002 registered under section 302/34, P.P.C. At Police Station Chhanga Manga, District Kasur, if not required in any other case".