' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,132 of 1999, Murder Reference No,252 of 1999 (submitted by S.J. Chakwal for confirmation of death sentence awarded to the appellant or otherwise) and Criminal Revision No,82 of 1999 directed against the judgment, dated 12-6-1999 passed by the learned District and Sessions Judge, Chakwal, whereby he convicted the appellant as under:-
(1) Under section 302(b), P.P.C. To the appellant was awarded death sentence.
(2) Under section 377, P.P.C., he was awarded 10 years' R.I. With fine of Rs,50,000 or in default 2 years'
R. I.
(3) Under section 201, P.P.C., 5 years' R.I. With a fine of Rs,25,000 or in default one year's R.I.
2. Brief facts as narrated by the complainant in the F.I.R. Are that on 21-1-1996 at about 11-30 his son Asad Abbas, aged 4 years and 5 months was playing in the street near the house who did not return. It was suspected that some persons had kidnapped the child.
3. After getting the information about the occurrence the local police completed all the necessary formalities and the investigation of the instant case was handed over to the S.H.O., concerned. Later on the complainant was informed by Khalawat Mahmood P.W.14 that on 21-1-1996 at about 11-30 a.m. Asad Abbas the deceased was seen sitting with the Khurran Shahzad son of Muhammad Bashir. On 24-1-1996 Maqsood Ahmad P.W.8 told the complainant that at about 1-30 p.m. On 21-6- 1996 at about 1-30 p.m., he had seen the accused going on a cycle towards the well of his father with a sack on the carrier of the cycle. On the same day Zafar Iqbal P.W.9 told the complainant that on 21-1-1996 at about 4 p.m. While he was coming from Chakwal and was proceeding to his house in the village he had met the accused near the Jandwal Town. The accused was on a cycle and he accompanied him to the village and there was nothing on the carrier of the cycle. During the investigation on 26-1-1996 Aziz Asmat P.W.12 and Azhar Abbas P.W.13 informed the I.O. That the accused had made extrajudicial confession of his guilt before them and had requested to get him pardoned. The accused/appellant himself appeared before the S.H.O. Who arrested the appellant and got recovered on his pointation the, dead body of the deceased vide memo. Exh.P.M. He prepared the inquest report Exh.P.E. And injury statement Exh.P.D. Ultimately he completed the investigation and submitted the challan against the accused appellant.
4. Prosecution in order to prove its case has produced as many as 19 witnesses including Doctor, I.O. Eye-witnesses and other formal witnesses. Thereafter statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded his innocence. After taking into consideration every aspect of the case and hearing the arguments of both the parties, learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal .
5. Learned counsel for the appellant in support of this appeal submits that it was blind murder and un-witnessed by any body. In the F.I.R. Nobody was named as an accused or as a suspect, that three days after the dis-appearance of the deceased the father of the deceased made an application about the incident. Learned counsel submits that evidence regarding to last seen, recovery of cycle relates to 21-1-1996 but the same does not find mention in the F.I.R., that the F.I.R.
Was lodged on 24-1-1996, though the witnesses produced by the prosecution are closely related to the complainant and remained with the complainant from 21-1-1996 to 24-1-1996 in order to recover the deceased who was a minor boy of 4-1/2 years.
6. Learned counsel adds that last seen evidence, was produced by Khalawat Mahmood P.W.14 who is maternal cousin of the complainant, that Khalawat Mahmood P.W.14 remained with him from 21- 1-1996 to 24-1-1996 but did not disclose the above said fact. Learned counsel submits that Khalawat Mahmood had admitted that father of the accused had been joining with him in order to search out his deceased son. This fact also does not find mention in the F.I.R.
7. Learned counsel submits that ' Maqsood Ahmad first cousin of the complainant had stated before the learned trial Court that he had seen the appellant on his cycle having a sack on the carrier of the said cycle on 21-1-1996. Learned counsel submits that same is the position of Khalawat Mahmood but he did not disclose this fact to the complainant who lodged the F.I.R. On 24-1-1996.
8. Learned counsel submits that as far as extra-judicial confession is concerned, that evidence was furnished by Aziz Asmat P.W.12 and Azhar Abbas P.W.13 but this was not put to the appellant in his statement recorded under section 342, Cr.P.C. Being incriminating evidence. Aziz Asmat on whose Dera the appellant made an extrajudicial confession was the first cousin of the complainant.
Learned counsel submits that Azhar Abbas is real brother of Khalawat Mahmood P.W.14 and they are maternal cousins of the complainant. Learned counsel submits that in the natural circumstances, it would not be proper on the part of the appellant to have gone to the Dera of Aziz Asmat who had made an extra-judicial confession. Learned counsel submits that from the first day the stance of the appellant was that he was taken into custody on 21-1-1996 and this fact is verified from the first line of cross- examination of Mazhar Hussain P.W.7, father of the deceased and complainant in this case. Learned counsel submits that if the appellant had allegedly made an extra-judicial confession on 26-1-1996 and admitted his guilt of murdering the deceased then there was no necessity on the part of the police to take into custody Ashfaq subsequent to 26-1- 1996 and to interrogate him for the murder of the deceased. Learned counsel submits that P.W.7 Mazhar Hussain, complainant, P.W.13 and P.W.14, admit that one Ashfaq was taken into custody as a suspect for the murder of the deceased, on 30-1-1996 four days after the alleged extra-judicial confession by the appellant. Learned counsel submits that had the appellant made an extra- judicial confession before the close relatives of the complainant, the natural course of event is that they should have apprehended the appellant there and then and then to hand over him to the police. Learned counsel submits that after the receipt of the report of Chemical Examiner these witnesses have improved their statements recorded under section 161, Cr.P.C. In order to make it in line with the said Chemical Examiner's report which suggested that semens were found in the swa bs of the deceased and they were duly confronted with their previous statement. Learned counsel submits that Aziz Asmat P.W. Of extra-judicial confession was inimical towards the father of the appellant because they had ousted Muhammad Bashir father of the appellant from his Brick- Kiln, although, he was co-sharer with Khalawat Mahmood P.W. 14 through an oral agreement.
9. Learned counsel submits that as far as recovery of cycle is concerned, that was not recovered on the pointation of the appellant. Learned counsel submits that according to the statement of Nasir Abbas P.W. 11, the appellant used to keep his cycle at the shop of said Nasir Abbas when he used to attend Government College Chakwal where he was a student of intermediate. The time of opening of college was 8-30/8-45 a.m. As given by the said witness. Learned counsel submits that this fact proves that the story of the prosecution that the appellant was driving this cycle with a sack on its carrier vanishes.
10. Learned counsel submits that as far as recovery of dead body is concerned, that was not recovered on the pointation of the appellant. He further submits that in this regard Ghulam Shabbir P.W. 16 had appeared when the proceedings under section 512, Cr.P.C. Were being taken against the appellant as he had jumped the bail and was declared P.O. He submits that even in statement before the learned trial Court, dated 2-10-1996 at page 73-B, Ghulam Shabbir did not take the name of the appellant to have pointed out the dead body of the deceased. He further submits that Ghulam Shabbir had also given an affidavit which is Exh.D.C. At page 222 on 1-12-1996 that he was introduced as a false witness. Learned counsel in this regard has also referred to the statement of Muhammad Akbar I.O. Who had admitted that Ghulam Shabbir P.W. Had never mentioned the name of the appellant who pointed out the dead body which was allegedly recovered from the well of father of the appellant. Learned counsel submits that Patwari who had prepared the site plan with scale had not shown anywhere that it was the appellant who had appointed out the dead body to get it recovered, then also get recovered the cycle but he had stated that site plan was prepared on the pointation of the P.Ws. And the I.O. Adds that the said Patwari P.W. Had admitted that appellant was not present at the time of preparation of the site plan. Learned counsel has also referred to the report of the Chemical Examiner Exh.P.H. At page 39. He submits that though the case was registered in Chakwal but the seals on the said parcel of swabs were of T.H.Q., Hospital, Daska but all the witnesses are unanimous that the seals were of D.H.Q. Hospital, Chakwal and the said statement was also made by the doctor who conducted the post-mortem examination. Learned counsel for the appellant submits that the prosecution has failed to prove its case against the appellant and he is entitled to acquittal. Lastly he submits that the appellant was less than 18 years on the day of occurrence and he was not adult, even, according to the statement of P.W. 19 Muhammad Ismaeel and also to the police record his age was 17 years' 9 months and 13 days. Learned counsel submits that if this Court is not satisfied with the arguments of acquittal made before this Court then it is not a case of death sentence as there are mitigating circumstances in favour of the appellant.
11. On the other hand learned counsel for the complainant assisted by the learned counsel for the State and learned counsel for the petitioner in Crl. Revision, submits while opposing the submissions made by the learned counsel for the appellant that it was not a blind murder. He submits that during the course of investigation the identity of the appellant was established. He submits that had there been any enmity between the parties the complainant party could have named the appellant on 24-1-1996 while lodging the F.I.R. Learned counsel has referred to the statement of P.W.10 Niaz Hussain, specifically his examination in chief who had stated that appellant made a disclosure and pointed out to the place from where the dead body of the deceased was spoted out from the well of the father of the appellant by Ghulam Shabbir P.W. Who had taken out the dead body of the deceased from the well. Learned counsel submits that Muhammad Akbar P.W. 18, the I.O. Had also stated that after his arrest the appellant pointed out the well where he had thrown the dead body and thereafter Ghulam Shabbir diver was called to take out the dead body from the said well. Learned counsel further submits that statement of Ghulam Shabbir at page 73-B and the affidavit Exh.D.C. Filed by him has no bearing on the case and is not adverse to the prosecution. Learned counsel submits that after getting bail during the trial by this Court the appellant jumped the bail and became P.0 so proceedings under section 512 Cr.P.C. Were initiated against him. Learned counsel submits that surety amount was imposed on his father because he was not able to produce the accused before the learned trial Court. Learned counsel submits that if the statement of Mazhar Hussain P.W.7 is read as a whole then no presumption can be gathered that the appellant was arrested on the night between 21/22-1-1996 but he had voluntarily stated that the appellant was arrested on 26-1-1996. Learned counsel submits that if the position had been that the appellant was arrested on the night between 21/22-1-1996 in this case by the police then in the natural course of events the complainant must have mentioned in the F.I.R. The name of the appellant. Learned counsel submits that there was no malice on the part of the complainant party to have falsely implicated the appellant in this case. Learned counsel submits that Khalawat Mahmood P.W. Had stated before the learned trial Court that he had seen the deceased in the company of the appellant on 21-1-1996 at 11-30 a.m. The reason for his coming to the Baithak of Muhammad Bashir father of the appellant has been explained in his examination- in-chief. Learned counsel submits that deceased used to visit the house of the appellant prior to that. If this fact that the presence of the deceased on 21-1-1996 at 11-30 a.m. In the house of the father of the appellant was not told to the complainant even it does not affect the prosecution case. Learned counsel submits that in fact Khalawat Mahmood P.W. Purchased the share of Aziz Asmat and continued to be co-sharer with the father of the appellant in the brick kiln. In this regard learned counsel for the complainant has referred to Exh.D.B. Which is a suit for permanent injunction filed by Muhammad Bashir against the complainant party including the prosecution witnesses and the complainant himself on 18-3-1996 two months after the registration of the F.I.R.
Learned counsel submits that this civil suit was filed after the registration of the F.I.R. And prior to that there was no litigation between the parties.
12. Learned counsel submits that appellant himself admits that the cycle recovered from the shop of Nasir Abbas belonged to him but did not get recovered by the appellant on his pointation.
Learned counsel adds that if he used to leave the cycle daily at the shop of Nasir Abbas then why he did not take the cycle from there on the evening of 21-1-1996 and the same was produced by Nasir Abbas on 29-1-1996. Learned counsel submits that the said cycle was left in the evening as per recovery memo, of cycle Exh.P.N at page 198. According to the narration of the said recovery memo, the cycle was left by the appellant in the evening on 21-1-1996 at the shop of Nasir Abbas.
Learned counsel submits that there is evidence on the record that this cycle was seen being driven by the appellant and was having a sack on its carrier and thereafter, after disposing of dead body there was no sack on the carrier of the cycle. Learned counsel submits that the prosecution has proved its case against the accused/appellant beyond any shadow of doubt. Lastly he submits that juvenile system of justice came in 2000 while the occurrence had taken place in January, 1996.
No benefit can be given to the accused being a minor but admits that the appellant was less than 18 years of age on the day of occurrence. Learned counsel has relied upon 2002 SCM R 1455 Ijaz Hussain v. The State. Learned counsel submits that in the instant case death sentence has been awarded to the appellant not under Qisas Ordinance but on the basis of Ta'zir and if sections 306/307, P.P.C. Read with section 302, P.P.C. Are read together then the only sentence which can be awarded or maintained, is death sentence and not life imprisonment. He has relied upon 2003 PCr.LJ 35.
12-A. Learned counsel for the State on the other hand submits that as the appellant was adult at the time of occurrence and this fact has not been rebutted by the prosecution so it is mitigating circumstance and it is not the case of death sentence.
13. We have heard the learned counsel for the parties at a great length and have also gone through evidence recorded by the learned trial Court in the instant case. It has been established on the record that there was no previous background of enmity. Had there been so the name of the appellant could have been mentioned by the complainant in the F.I.R. We have also gone through the evidence recorded in this case. The extra-judicial confession as furnished by Aziz Asmat and Azhar Abbas P.Ws. Produced by the prosecution was not put to the appellant as incriminating evidence against him in his statement recorded under section 342, Cr.P.C. Coupled with the fact that the conduct of both the P.Ws. Was most unnatural. They were closely related to the complainant. Had the complainant who was a young boy had made an extra judicial confession before these two witnesses then they should have apprehended him and then to produce him before the police. However, we are mindful of the fact that as far as last seen evidence is concerned, that is furnished by Khalawat Mahmood P.W.14 who had seen the appellant on 21-1- 1996 at 11-30 a.m. In the Baithak of the appellant and the said Baithak was owned by his father.
There is no animus on the part of Khalwat Mahmood to have deposed against the appellant.
' Moreover, the deceased used to go to the house of the appellant even before that, so he could not have any suspicion against the appellant and this is the reason that this fact was not told to the complainant. Then there is evidence of cycle of having dead body on its carrier furnished by Maqsood Ahmad and Zafar Iqbal P.Ws. Mahmood Ahmad P.W. though related to the complainant had stated that he had seen the appellant on 21-1-1996 driving a cycle having a sack on its carrier.
Then there is other witness namely Zafar Iqbal who had no relationship whatsoever with the complainant, he had stated that he had seen the appellant returning on the same cycle without any sack so this evidence is sufficient against the appellant that he was taking the dead body on the carrier of the cycle for its disposal.
14. As far as pointation of the well where the appellant had thrown the dead body is concerned, the same has been furnished- by Niaz Hussain P.W. 10 in his examination-in-chief and also by the I.O.
Muhammad Akbar P.W.
18. They both are unanimous that it was the appellant who had pointed out the well which belonged to the father of the appellant where he had thrown the dead body of the deceased and thereafter Ghulam Shabbir diver was called who went into the well and took the dead body out from the said well. The affidavit of Ghulam Shabbir Exh.D.C. Is neither here nor there. It has no value or can have any adverse effect on the prosecution, even the appellant had admitted in his statement recorded under section 342, Cr.P.C. That the cycle belonged to him. Nasir Abbas P.W. 11 had stated that appellant used to keep his cycle at his shop till coming back from college but he did not take the same till 29-1-1996 but the same was produced by Nasir Abbas to the I.O. It may also be mentioned here that during the trial on the ground of appearing in the examination, this Court granted bail to the appellant after arrest. He jumped over the bail and remained absconder for three years. The explanation given by him in his statement recorded under section 342, Cr.P.C. Is not accepted by this Court because it is an afterthought. If he was innocent and had been appearing in the examination he could have appeared before the learned trial Court after the examination. All the witnesses who have deposed against the appellant about whom we have mentioned, have no enmity whatsoever with the appellant. Then there is report of Chemical Examiner which is also positive in nature. As far as the contention of the learned counsel for the appellant that the parcel had seal of T.H.Q. Hospital Daska is concerned, it can be clerical mistake because all the witnesses including the doctor, F.C who took the parcel to the office of the Chemical Examiner are of the view that he swabs which were taken from the anus of the deceased were the same swa bs. In our considered view the prosecution has proved its case against the appellant through above said evidence which we have referred.
15. Now the question which is to be determined by this Court is whether there is any mitigating circumstances or not. The answer is yes. It is the case of the prosecution itself that appellant was less than 18 years on the day of occurrence, even this fact is mentioned in the certificate of identification of accused by the police and also at the time of arrest of the appellant the I.O. Has given the age of the appellant as 17 years on 26-1-1996. We have gone through the judgments referred by the learned counsel for the complainant, we have relied upon 2002 SCM R 629, a Full Bench judgment handed by Chief Justice of Pakistan, in which the sentence of the appellant was though maintained under section 302(b), P.P.C. But was converted from death to life imprisonment.
Even in the other judgment cited by the learned counsel for the complainant i.e, 2001 SCM R 536, the Honourable Supreme Court of Pakistan has granted the leave to the accused only on the limited question of sentence on the plea of minority. In that case the death sentence was maintained for the reason that occurrence had taken place in 1989 while the amendment in Pakistan Penal Code was made in 1990, so this was the reason that life imprisonment was not granted. If one goes to sections 299/306 and 308, P.P.C. he will come to the conclusion that when there is an accused who has committed the murder and is not adult, his sentence can be converted from death to life imprisonment. Taking into consideration all the above said circumstances, we though, maintain the conviction under section 302(b), P.P.C., but convert the same from death sentence to life imprisonment with the benefit of section 382-B, Cr.P.C. Death sentence is not confirmed. Murder reference is replied in the negative. The sentence awarded to the appellant under section 377, P.P.C.
Is however, maintained. All the sentences are ordered to run concurrently. As far as sentence under section 201, P.P.C. Is concerned, that is also set aside because while maintaining the sentence under section 302(b), P.P.C. Sentence under section 201, P.P.C. Cannot be maintained. As far compensation is concerned, in default thereof, six months' S.I. Criminal Revision is dismissed.
Sentence reduced.