' SARMAD JALAL OSMANY, J.--- These appeals impugn the judgment of learned Lahore High Court, dated 2-7-2002 whereby Criminal Appeals No,915 of 1999 filed by appellant Mubashar Ahmad and No,743 of 1999 filed by appellant Muhammad Sharif were dismissed and the Murder Reference answered in the affirmative while confirming the death sentence awarded to both the appellants.
However, the compensation was reduced from Rs,5,00,000 to Rs,1,00,000 each. The other sentences awarded, to them by the learned A.T.A. Court i,e, life imprisonment under section 364, P.P.C. And R.I.
For ten years under section 392, P.P.C. Along with fine of Rs,1,00,000 each in default of which they were to further undergo R.I. Of 2-1/2 years each were kept intact.
2. Briefly stated the prosecution case is that complainant Kaneez Bibi daughter of Mahllay Khan, who was serving in AFIC-National Institute of Cardiology, Rawalpindi received a telephonic call from her father on 6-12-1998 that her brother deceased Muhammad Nawaz had been missing along with his Car bearing No,LOL-2121 since 4-12-1998. On receiving such information, she came to her father's house at Lallian on 7-12-1998 and mounted a hectic search for Muhammad Nawaz, when P. Ws. Sher Muhammad and Shabbir informed them that they had seen Muhammad Nawaz going in his car on 4-12-1998 at 11-00 a.m. Towards Sargodha accompanied by appellants as well as two unidentified persons. Accordingly the complainant was convinced that the appellants and two others unknown culprits had abducted Muhammad Nawaz with a view to murdering him and hence the F.I.R. Lodged on 7-12-1998 at 6-55 p.m. Thereafter on 8-12-1998 P.W. Haji Muhammad Sher and P.W. Sikandar had gone to the house of appellant Muhammad Sharif who told them that he along with appellant Mubashar Ahmad had taken away the deceased in his car from the taxi stand at Lallian and after murdering him had thrown his dead body in a sugarcane field. These P.Ws. Disclosed such information to the police officials who arrested appellant Muhammad Sharif when he led to the recovery of deceased's dead body. Thereafter on 27-4-1999 appellant Mubashar Ahmad was also arrested along with Car No,LOL-2121 belonging to the deceased. Both the appellants were thereafter sent up for trial before the learned Anti-Terrorism Court at Faisalabad who after convicting them awarded capital sentence etc. As aforesaid, which the learned High Court only modified to the extent of fine as observed above.
3. In support of Criminal Appeal No,110 of 2004 (filed by Mubashar Ahmad) Mian Aftab Farrukh, learned Senior Advocate Supreme Court has submitted that the pieces of evidence available against his client is the last-seen evidence, recovery of deceased's car from his possession and the extra-judicial confession of appellant Muhammad Sharif. According to learned Senior Advocate Supreme Court last-seen evidence is the weakest type of evidence and unless an unbroken chain is established starting from the discovery of the dead body, as in the present case, to the arrest of the accused, conviction is not possible. In this regard he has firstly submitted that uptill the arrest of appellant Mubashar Ahmad none of the official documents kept by police authorities mentioned him at all. He has invited our attention to the site plan Exh.P.F., the report endorsed in the police diary of 8-12-1998 at 8-45 p.m. Regarding the information of the discovery of deceased Muhammad Nawaz's dead body etc. He further submitted that the police have failed to associate the most relevant witnesses who were the taxi drivers available at the taxi stand on the day of the deceased allegedly went away in his car with the appellants and two others, which can only lead to one conclusion that these independent witnesses would not have deposed against the appellants.
4. Learned Senior Advocate Supreme Court has further pointed out other discrepancies in the statements of the P.Ws. Before the learned Anti-Terrorism Court i,e, P.W. Shabbir Ahmad has stated that he informed the complainant Kaneez Bibi on 7-12-1998 regarding the last-seen evidence but in his police statement he had not said so. Secondly P.W. Sher Muhammad the other witness introduced by the prosecution on the theory of last-seen evidence has supported P.W. Shabbir.
According to the learned Advocate Supreme Court admittedly Sher Muhammad does not reside in Lalian Town but about. 8-9 miles away. Consequently, it is strange that he should know the deceased and the appellants, who all belong to Lalian or live in its close proximity. Next per learned Advocate Supreme Court P.W. Sher Muhammad has stated that he had come to fetch a taxi in order to take his ailing wife to Sargodha whereas admittedly there are hospitals and clinics in Lalian. In such event, this reason does not appeal to common sense. Again Sher Muhammad has admitted under cross-examination that the administration of the taxi stand keeps a record of all taxis/cars, which are hired out but strangely enough there is no such record of the deceased's car for going to Sargodha.
5. Next learned Senior Advocate Supreme Court has referred to the deposition of the Investigating Officer, who admits under cross-examination that on 8-12-1998 both the appellants had been arrested then how can Mubashar Ahmad be arrested later on 27-4-1999.
6. Learned Senior Advocate Supreme Court has also submitted that no proclamation was ever issued for the arrest of Mubashar Ahmad and neither any proceedings were taken out under sections 87 and 88, Cr.P.C. Hence he cannot be termed as an absconder as observed by the learned High Court. He has also vehemently urged that strangely enough on the day of his arrest, the same car having the same colour and number plate and being totally intact was being driven by appellant Mubashar Ahmad in the vicinity of Lallian Town which certainly causes a doubt in the matter as no culprit who had robbed a car and killed its owner would in such a brazen fashion display it in the vicinity where the incident took place. Hence the recovery of deceased's car from appellant Mubashar Ahmed is doubtful. Finally per learned Senior Advocate Supreme Court the extra-judicial confession of appellant Muhammad Sharif being a co-accused whereby he has fully implicated appellant Mubashar Ahmad could never be used against the latter in the absence of strong corroborative evidence, which is totally lacking in the matter. Consequently, the chain of events beginning from discovery of the dead body of the deceased to the arrest of appellant Mubashar Ahmad is not an unbroken one in which circumstances both the learned forums below have wrongly convicted him.
7. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court appearing for appellant Muhammad Sharif in Criminal Appeal No,126 of 2008 has only prayed for reduction in his sentence on the ground that in his examination under section 342, Cr.P.C. As well as statement under section 340(2), Cr.P.C. Before the learned trial Court he has nominated appellant Mubashar Ahmad who had killed the deceased despite the former's protest.
8. Mr. Muhammad Ilyas Siddiqui, learned Advocate Supreme Court appearing for the complainant has fully supported the impugned judgment. He has submitted that the P. Ws. Are totally independent and have no enmity whatsoever with the appellants. Further that it was appellant Muhammad Sharif who had exclusive knowledge of the location of the dead body and led to its recovery and hence the same is compatible with the last-seen evidence as deposed by P. Ws. Sher Muhammad and Shabbir Ahmad, who had seen the appellants along with two other unidentified person going to Sargodha on the date of incident at around 11-00 a.m. Similarly, insofar as the appellant Mubashar Ahmad is concerned the car in question was recovered from him upon arrest which again is compatible with the last-seen evidence as well as extra-judicial confession of appellant Muhammad Sharif which has been corroborated in all respects. In support of his submission he has relied upon Binyamin v. State 2007 SCM R 778 and Khurshid v. State PLD 1996 SC 305.
9. Mian Asif Mumtaz, learned Deputy Prosecutor-General, Punjab has also supported the impugned judgment as well as the arguments of Mr. Muhammad Ilyas Siddiqui, learned Advocate Supreme Court. According to him, the last-seen evidence has been fully corroborated by the arrest of appellant Mubashar Ahmad and the car of the deceased and the recovery of the dead body at the instance of appellant Muhammad Sharif.
10. We have heard learned Advocates Supreme Court as well as learned Deputy Prosecutor- General, Punjab and perused the record with their assistance. The case of the prosecution consists of the last-seen evidence, recovery of the deceased's body at the pointation of appellant Muhammad Sharif, recovery of the deceased's car from appellant Mubashar Ahmad when he was arrested and so also the extra-judicial confession made by appellant Muhammad Sharif before P.W. Haji Muhammad Sher.
11. We would first deal with the case of appellant Muhammad Sharif. Regarding the last-seen evidence, it would be seen that P.W. Shabbir Ahmad's.Presence at the taxi stand has been established in cross-examination since he worked as an auto-electrician and used to repair the taxis etc. He is an independent witness bearing no relationship at all wilh the complainant or the deceased except that he knew the latter. He has given a truthful and confidence inspiring narration of the incident i,e, the boarding of the deceased's car by the two appellants as well as two other unknown persons and their departure towards Sargodha. Under cross-examination nothing could be extracted from him except from his denial of having informed complainant Mst. Kaneez Bibi on 6-12-1998 regarding the last-seen evidence, whereas in fact he has stated so in his police statement. In our opinion, this is a minor discrepancy and can be ignored. He has no reason whatsoever to implicate the appellants as no enmity has even been remotely suggested by the defence in his cross-- examination. Similarly, P.W. Sher Muhammad has also given a forthright account of the incident and explained his presence at the taxi stand under cross-examination viz. For taking his ailing wife to Chiniot.
' Again there are minor improvements in his deposition before the learned A.T. Court regarding the purpose of his going to the taxi stand, which was to hire a taxi for taking his wife for medical treatment, which he had not disclosed in his police statement etc. So also he has admitted under cross-examination that the deceased and the complainant Mst. Kaneez Bibi are like his own children. However, in our opinion, this does not detract from the inherent veracity of his deposition because mere relationship is no reason to disregard the evidence of any witness if otherwise his testimony inspires confidence. The last-seen evidence as reported by aforementioned witnesses has in all material particulars been corroborated by the recovery of the deceased's body at the pointation of appellant Muhammad Sharif as he alone had the exclusive knowledge of the location.
Post-mortem examination of the deceased is also relevant whereby it has been reported by the Medical Officer that the deceased had received one bullet injury on the right temporal area of the head, the edges of which were blackened being an entry wound whereas there was no exit wound, a lacerated wound deep on the middle of 'the forehead, another wound on the left side of the forehead, a fourth lacerated wound muscle deep on the left cheek and finally a lacerated wound skin deep on the left side of the upper lip. The Medical Officer opined that injury No,1 was inflicted by a fire-arm whereas the others by a hard and blunt substance. As to Muhammad Sharif's extra- judicial confession before P.W. Haji Muhammad Sher this has also been sufficiently corroborated by the pointation of deceased's body by this appellant immediately thereafter. Regarding the deposition of P.W. Haji Muhammad Sher, he too is an independent witness and bears no animosity with the appellants. He has stated in a truthful manner the events which preceded the recovery of the deceased's body at the pointation of appellant Muhammad Sharif i,e, his extra-judicial confession, arrest by the police and the departure of the police party along with him, the appellant, Mahlley Khan and others for recovery of the deceased's body. Nothing in the cross-examination could be gleaned in favour of the defence. Hence we have no reason to disbelieve him. In view of the foregoing discussion we have no doubt in our minds that appellant Muhammad Sharif has been correctly convicted by both the learned Anti-Terrorism Court and the High Court.
12. Insofar as Mr. Bhatti's prayer for reduction in the sentence of appellant Muhammad Sharif is concerned, it would be seen that the in his statement under section 340(2), Cr.P.C., he has admitted the factum of having hired the deceased's care on the date of incident at the instance of appellant Mubashar Ahmad and thereafter proceeding to Sillanwali. On the return journey both the deceased and appellant Mubashar Ahmad had got down for the purpose of easing themselves while he was available in the car when he heard some commotion. At this he also got down from the car and started going towards them when he saw appellant Mubashar Ahmad firing at Muhammad Nawaz at the temporal region upon which he chided the latter as to what he had done. Appellant Mubashar Ahmad asked him to have a seat in the car and after putting the dead body of the deceased in the diggi (truck) he drove the car in the area of Chak No,58(S.B.) and 59(S.B.) and threw it in the sugarcane field. Appellant Muhammad Sharif then managed to escape during their overnight stay at a hotel and return to his home. Then he met the father of the deceased Mahllay Khan who asked him about the deceased to which he replied that he had no knowledge in this regard. However, when a neighbour of Mahllay Khan told him that he had seen him going in the car in Chak No,58(S.B.) and also fire shot was heard, appellant Muhammad Sharif told them everything and ultimately the dead body of the deceased was recovered at his pointation. This version of the events is totally at odds with that disclosed by the appellant in his statement under section 161, Cr.P.C. Before the police. Therein he fully implicated himself and stated that he had been instigated by the deceased's brother-in-law Riaz to do away with the former due to strained relationship between the deceased and his wife. Said Riaz had also assured him that he would take care of all legal proceedings, if any emanating from such crime and that he could sell away the deceased's car in order to appropriate the sale price. Accordingly he had hired the deceased's car on the fateful day and associated appellant Mubashar Ahmad in the venture in execution of which he had caught hold of the deceased's arms whereas the former had shot him to death. Then they had both disposed of the dead body in the sugarcane field etc. In this view of the matter, when there are so many contradictions and improvements in appellant Muhammad Sharif's statement in Court from that under section 161, Cr.P.C., we are of the opinion that his alleged stance of disassociation from the crime is merely an afterthought and resorted to in order to save his own life while attributing the murder of the deceased to appellant Mubashar Ahmad. Hence while placing the prosecution case in juxtaposition with the defence taken by appellant, the only conclusion is his guilt. It is settled law that where an accused takes up a particular line of defence the burden is upon him to exclusively prove it. Consequently, in the circumstances we cannot hold that Muhammad Sharif was not responsible for the murder of the deceased.
13. Regarding appellant Mubashar Ahmad again it would be seen that he has been nominated by both P. Ws. Bashir Ahmad and Sher Muhammad as having accompanied appellant Muhammad Sharif and two other unknown persons in the car of the deceased on the day of incident. We have already held that the testimony of these two witnesses inspires confidence and hence can be relied upon. So also appellant Muhammad Sharif has fully implicated appellant Mubashar Ahmad in his extra-judicial confession before P.W. Haji Sher Muhammad which we have also approved. In this connection it would be seen that per Article 43 of the Qanun-e-Shahadat Order, at a joint trial where confession of an accused is proved, the same may be taken into consideration as circumstantial evidence against the co-accused. Such confession against appellant Mubashar Ahmad as well the last-seen evidence is corroborated by the arrest of this appellant along with the car belonging to the deceased which has been proved by the prosecution through the evidence D of constable Jani Shah who is the witness of recovery. Under cross-examination nothing could be gleaned from this witness as to the alleged false arrest of appellant Mubashar Ahmad and the recovery of the car in question. For all the aforesaid reasons, we are firmly of the view that appellant Mubashar Ahmad has also correctly been convicted by both the learned forums below.##TE#
14. For the foregoing facts and circumstances these appeals are dismissed.