' MALIK SAEED EJAZ, J.--- The appellant Riaz-ul-Haq was tried by the learned Additional Sessions Judge, Multan, in case of F.I.R. No,183 registered on 17-11-1999 at Police Station Pak Gate, Multan, for offences under sections 364/302/201, P.P.C. Vide judgment, dated 28-4-2000, the learned trial Judge convicted and sentenced the appellant as under:-
(a) for the offence under section 302(b), P.P.C. To death plus payment of Rupees one lac as compensation to the legal heirs of the deceased, in default whereof to further undergo S.I. For two years; and
(b) for offence under section 201, P.P.C. To suffer R.I. For three years plus payment of Rs,10,000 as fine, in default whereof to undergo further S.I. For three months.
2. Aggrieved by his above noted conviction and sentence, the appellant has filed the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No,579 of 2001, seeking confirmation or otherwise of death sentence imposed upon the appellant. Both these matters are being decided together through this consolidated judgment.
3. Brief facts of the prosecution case per complaint Exh.P.G., recorded by Manzoor Ahmad, S.- I./P.W.14, while he along with other. Police officials, was present at Gul Road in connection with patrol duty, at the instance of Ghulam Sakhi, complainant/P.W.9, which based the registration of formal F.I.R. Exh.P.G./1, are that the complainant was an Afghan refugee and resident of Baghwana, District Peshawar. Ghulam Nabi deceased was his son. From the last two years, he had been dealing in different articles including toys in Multan. During this period he had friendship with Riaz- ul-Haq (appellant). Riaz-ul-Haq appellant along with the deceased twice or thrice came to their house at Baghwana, District Peshawar 35/40 days prior to the registration of the case, at about 8- 00/9-00 a.m., the complainant, Jumma Gul/P.W.13, Amin Gul and Ghulam Nabi deceased were taking tea in Junnna Hotel, Gul Road, Multan, when in the meanwhile, Riaz-ul-Haq appellant came there, sat with his son, took tea and started business talks with him. Meantime, the appellant and deceased made a programme of proceeding to Peshawar and to take toys from there, whereupon on demand of Ghulam Nabi deceased, the complainant gave Rs,21,000 to him. Accordingly, the appellant and deceased proceeded to Peshawar. The complainant remained in the said hotel and waited for his son but he did not come back. Subsequently, the complainant went to his house at Peshawar and searched for his son who was not found there also. Then the complainant came to Multan where despite his efforts, neither his son nor the appellant was found. Riaz-ul-Haq appellant with a view to usurp the aforesaid amount might have played some foul with his son.
4. On 17-11-1999 at about 11-00 p.m. Manzoor Ahmad, S.-I./ P.W.14, after having recorded and dispatched the complaint Exh.P.G. For registration of the F.I.R., went to the place of occurrence; prepared its site plan Exh.P.S. And recorded the statements of the witnesses under section 161, Cr.P.C. On 20-11-1991, the appellant was arrested. During the investigation, the appellant disclosed that he had buried Ghulam Nabi deceased in Faisalpura Colony in a rented house. The appellant led to that place and after digging out got the dead body recovered from that house. Memo. Of pointation of dead body Exh.P.H. Was prepared. The Investigating Officer prepared the injury statement Exh.P.M. And inquest report Exh.P.N. Of the deceased and sent the dead body for post- mortem examination. Chappal P.36/1-2 and wrapper of ativan tablets P.37/1-15 were recovered from the ditch where the dead body was buried and took the same into possession through memo.
Exh.P.I., attested by Ghulam Sakhi/P.W.9 and one Muhammad Ismail. The Investigating Officer prepared the site plan of the place of recovery of the dead body Exh.P.T. On 23-11-1999, Shahbaz Amin, photographer/P.W.6 produced before the Investigating Officer photographs P.8 to P.17, which were taken into possession vide memo. Exh.P.C. Rent deed P.18 produced by Malik Ashiq Hussain was taken into possession through memo. Exh.P.D. Attested by Manzoor Ahmad/P.W.1, Abdul Rehman/P.W.4 and Ashiq Hussain/P.W.11. On the same day, the appellant led to the recovery of Kassi P.19, Gainti P.20, Tagari P.21 and register P.22, which were taken into possession vide memo.
Exh.P.E. Attested by Manzoor Ahmad/P.W.1, Abdul Rahman/P.W.4 and Tahir Hussain/P.W.5. On the same day, the appellant led to the recovery of wrapper of ativan tablets P.23 to P.33, which was taken into possession through memo. Exh.P.F. Attested by P.W.1 and P.W.4. On 25-11-1999, the appellant, while in custody, led to the recovery of Rs,21,000 P.38/1-40, which was taken into possession vide memo. Exh.P.J. , attested by P.W.9 and P. W.13. After completion of investigation, the appellant was sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced fourteen witnesses. Evidence with respect to last-seen was furnished by Ghulam Sakhi/P.W.9 and Jumma Gul/P.W.13. Ghulam Sakhi/P.W.9, Jumma Gul/P.W.13 and Manzoor Ahmad, S.-I./P.W.14, stated about the disclosure and recovery of dead body from a rented house of the appellant. Recovery of Rs,21,000 at the instance of the appellant was attested by P.W.9 and P.W.13. Tahir Hussain/P.W.5 stated ,that the appellant had taken on rent from him Kassi, Gainti and Tagari. He also produced a registered with respect to the entries of the aforesaid articles in his register. Dr. Mushtaq Ahmad Chaudhry/P.W.12, who conducted post-mortem examination on the dead body of the deceased on 20-11-1999, while observing two injuries, i.e. Injury No,1 consisting of multiple redish patches in the form of bruises over face measuring 6 c.m. x 4 c.m. Multiple bruises on chest and abdomen in an area of 10 c.m. x 8 c.m. And injury No,2, a lacerated wound measuring 8 c.m x 1 c.m. Muscle deep situated on the occipital region 4 c.m. Above the occiptal protuberance; opined that both the injuries were ante- mortem and caused by blunt weapon. According to him injury No,1 was sufficient to cause death of a person in ordinary course of nature. He further opined that death was caused by asphyxia due to suffocation/traumatic. He further opined that as per report of the Chemical Examiner regarding viscera, no poison was detected. Duration between injuries and death was immediate, while between death and post-mortem examination was within one month.
7. In his statement recorded under section 342, Cr.P.C. The appellant pleaded his innocence and false implication in the folio wing words:--- "I am innocent. In fact, one Akbar Pathan was my friend and he was relative of Ghulam Nabi deceased. Memora was also the friend of Akbar. I and Akbar Pathan used to visit Peshawar. Akbar Pathan was residing with me. In August, 1999, Akbar Pathan brought Ghulam Nabi deceased, Ismail, Suleman, Memora and Aurangzeb came to my house in Faisal Colony, Multan. Akbar introduced all the above mentioned persons to me. After taking tea Akbar remained with me, while the other above mentioned persons left my house, In September, 1999 on the date 5 or 7, Akbar Pathan again brought Memora and Ghulam Nabi deceased to my house. He stated that they were his relatives and will also reside with me. I told him that I had no objection. They remained with me for about one week. During this a son of my friend Bashir fell ill and I took him to Nishtar Hospital, Multan in Ward No,8. I remained there fore 15 days round the clock. On the 3rd day, Memora, Ghulam Nabi deceased and Akbar Pathan visited me in Nishtar Hospital, in Ward No,8. Akbar Pathan again visited me in Nishtar Hospital after one week and offered his help. After a few days, complainant party visited me in the Nishtar Hospital, Multan including Sakhi Khan and others. They asked me about the whereabouts of Ghulam Nabi, but I showed them ignorance about him. I asked them to inquire from Akbar. It was about 4 p.m. After one day of that, complainant party also came to me in Nishtar Hospital along with police party of Police Station Haram Gate. At that time, I was having Rs,15,435, a gold ring, and watch Seiko-5, all the above articles were obtained by the police from me. They took to Police Station Haram Gate. They detained me there for three days. After verification about the jurisdiction, the Police Station Haram Gate handed over to me to Police Station Pak Gate. During this the police party tortured me for 15 days. Then police party took me to my house in Faisal Colony at 9 a.m. On the following day, police party again took me to my house and recovered the dead body of Ghulam Nabi from the ditch in the compound of my house. I was made to stand in the ditch upto my knees and a Kassi was handed over to me and snaps were taken. No one from the complainant party was present at that time. I have no concern with the dead body, nor I have committed the murder of Ghulam Nabi. I asked the police party to arrest Akbar Pathan in this connection but police party refused stating that they cannot go to Peshawar for his arrest. All the proceedings were taken in my presence in the police station. Police party asked me to give Rs,one lac and after that they will not recover the dead body. The complainant party deposed against me on the direction of the police and the. P.Ws. Are related inter se and they have falsely deposed against me."
' The appellant neither made his statement under section 340(2), Cr.P.C. In disproof of the allegations against him nor did he produce any witness in his defence.
8. Learned counsel for the appellant submits that this was an unseen occurrence; that there are contradictions in the statement of the P. Ws. With regard to the departure of the deceased with the appellant and also with regard to the place of recovery of the dead body of the deceased; that there is a delay of 35/40 days in lodging the F.I.R. And the complainant, who is father of the deceased, remained silent for such a long period; that admittedly, the complainant also proceeded to Peshawar when the deceased and the appellant allegedly went there but there is no explanation as to why they all did not go to Peshawar together; that the Register P.22 is not reliable, as the entries made therein are not in chronological order; and that the recovery of Rs,21,000 from the appellant is also not believable, as no one would keep any incriminating article with him for such a long time so as to produce it before the police and that the amount was not identifiable, as no specific marks were available there. The learned counsel has urged that the prosecution has not been able to prove its case against the appellant, so he deserves acquittal.
9. Conversely, the learned D.P.-G. For the State has defended the impugned judgment, stating that the prosecution has proved its case against the appellant beyond any shadow of doubt through last-seen, recoveries effected at the instance of the appellant and the medical evidence.
10. We have heard the learned counsel for the parties and have also gone through the entire record.
11. Prosecution has tried to prove its case on the basis of last- seen evidence; extra-judicial confession and the pointation and the recovery of the dead body of the deceased at the instance of the appellant. Last-seen has been sought to be proved through Ghulam Sakhi/P.W.9, the father of the deceased, and Jumma Gul/P.W.13, who stated that in their presence, the appellant and the deceased went together to Peshawar from the hotel of Jumma Gul on the pretext that they had to purchase toys etc. From Peshawar. On demand of the deceased and under the instructions of P.W.9, Jumma Gul/P.W.13 paid Rs,21,000 to the deceased for the purposes of such purchase. On the same day, P.W.9 also proceeded to Peshawar. In his statement recorded on 20-3-2000, P.W.9 stated that three months prior to that, the deceased went along with the appellant from the hotel of Jumma Gul, whilst Jumma Gul/P.W.13 controverted the statement of P.W.9 by stating that in October, 1999, the deceased went along with the appellant from the said hotel. As such time, place and date of departure of the deceased with the appellant is contradictory and not corroboratory in the statements of P.W.9 and P.W.13. Similarly, the alleged recovery of Rs,21,000 from the possession of the appellant is not proved in a sense that the same was shown to be recovered from a house other than the one which was taken on rent by the appellant, from where the dead body of the deceased was recovered. Besides this, the recovery was shown to be effected on 25-11-1999, i.e. After about one and half months of the alleged first departure of the deceased. It is unbelievable that a person would keep the said amount intact for such a long time so as to produce the same before the police as a souvenir. The other aspect of the matter is that when P.W.9/father of the deceased was to go to Peshawar on the same day, then there was no fun to allow the deceased to go with the appellant to Peshawar on the same day without associating him., It is interesting to note that P.W.9, who is real father of the deceased, remained silent for about 35/40 days knowingly that his son did not visit his house at Peshawar. His silence for such a long period by itself is sufficient to shake the evidence of last-seen. From all this, it appears that after recovery of dead body, the information was conveyed to P.W.9 about the death of his son so he might have been made complainant of this case. As far as statement of Jumma Gul/P.W.13 is concerned, admittedly, he is close friend of P.W.B. As far as extra-judicial confession before the police is concerned, the evidence of such witnesses is not trustworthy and reliable because if the said confession was voluntary, then cause of death would have been the same as alleged by the appellant in his confessional statement. Meaning thereby that it is alleged that about thirty-one ativan tablets were given to the deceased by the appellant to keep him senseless but as per report of Chemical Examiner, no sign of tranquillizer were found in the viscera of the deceased. As such, the extra- judicial confession made by the appellant would not be said to be voluntary. For describing such extra judicial confession, another aspect of the matter is necessary to be pointed out and that is that some wrappers of ativan tablets were shown to be got recovered from outside the house after digging out the place, while some were got recovered from the place of dead body. It is not understandable as to why the appellant had thrown the wrappers of ativan tablets at two different places. The same could be easily thrown away at any place or destroyed.
12. However, it is an admitted fact that the dead body of the deceased was found buried in the courtyard of the house which was taken D by the appellant on rent. The house was got on rent on 23-10-1999 through property dealer Mureed Hussain/P.W.7. Rent deed P.18 executed between the owner of the house and the appellant establishes the place of recovery of dead body to be in possession of the appellant. The recovery of dead body from the rented house of the appellant is denied by the appellant in his statement under section 342, Cr.P.C. Before the learned trial Court.
Prosecution has produced P.W.5 Tahir Hussain from whom the appellant had taken Kassi, Gainti and Tagari on 24-10-1999 and deposited Rs,100 and returned the said articles to the witness on 26- 10-1999. Register P.22 was also produced by the prosecution to establish this fact. After perusing the contents of the register, the relevant entry made thereon seems to be doubtful, as there is no sequence in the said register in a sense that one entry is made on 24-10-1999 and immediately after that entry, entry dated 23-10-1999 has been found. The defence taken by the appellant in his statement under section 342, Cr.P.C. Is that three persons namely Akbar Pathan, Memora and the deceased were present in his house when he had to go to Nishtar Hospital to attend a son of his close friend and he remained there for about fifteen days and during that period he did not return to his house. This story is also not convincing because for quite fifteen days, nobody would detain himself in the hospital just for attending the son of his friend who was allegedly admitted there, especially when the rented house from where the dead body was recovered is also situated near Nishtar Hospital, Multan, as stated by the appellant himself in his statement under section 342, Cr.P.C.
13. While keeping both the versions in a juxtaposition, we are of the view that prosecution as well as defence both have failed to establish their respective versions and both are not trustworthy to some extent. The recovery of dead body from the house taken on rent by the appellant fully connects him with the murder of the deceased, especially when no enmity between the witnesses and the appellant has been found on record for his false involvement in the case. The appellant did not produce any witness in support of his defence. Place of dead body is admittedly the rented house and the said house remained in possession of the appellant till the recovery of dead body.
The rent deed, owner of the house as well as property dealer, while appearing as P.W.7 and P.W.11, support the contentions of the prosecution. It was, admittedly, an unseen occurrence and the prosecution case is based on circumstantial evidence, contradictions in the statements of the witnesses and the circumstances narrated by the prosecution create strong mitigating circumstance in favour of the appellant. As such, this is not a case of capital punishment.
14. In view of the above, we, while dismissing this appeal, reduce the death sentence of the appellant to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to the appellant.
However, the order of the learned trial Court passed under section 544-A, Cr.P.C. And the conviction and sentence of the appellant under section 201, P.P.C. Are maintained. The Death sentence is not confirmed. The Murder Reference is answered in the negative.