Sayed Zahid Hussain, J.--Gul Muhammad appellant was charge sheeted by the learned Additional Sessions Judge, Khushab u/Ss. 364/302 PPC for abduction and murder of five years old lad Shahbaz son of Allah Ditta. He pleaded not guilty and faced trial. On conclusion whereof he was convicted u/S. 302(b) PPC and sentenced to death for Qatal-i-Amd of deceased Shahbaz, he was also sentenced to fine of Rs, 100,000/- and in case of default to suffer R.I. for two years. On realization, the half of the fine was to be paid to the legal heirs of deceased. This was vide judgment dated 31.5.2000. Criminal Appeal No, 361-J of 2000 alongwith Murder Reference No 464 of 2000 came up for hearing before the learned Division Bench of the Lahore High Court Lahore on 19.12.2005 when the appeal of the 'convict was dismissed and death sentence was confirmed. On his jail petition, leave was granted by this Court on 2.8.2006, which order reads as follows:-- "The conviction, and sentence of death awarded to the petitioner on the charge under Section 302(b) PPC by learned Additional Sessions, Judge, Khushab has been maintained by the High Court by dismissing his appeal vide impugned judgment.
The charge against the petitioner was that he on 14.3.1999 having, kidnapped Shahbaz, a minor son of the complainant committed his murder and on 19.3.1999 led to the recovery of dead body from the western bank of river, Jhelum at a reasonable distance from the house of the deceased.
The learned counsel for the petitioner has contended that sole evidence, of last seen and alleged recovery of dead body at the instance of petitioner being of highly doubtful character was not sufficient to sustain the conviction and sentence on capital charge, in absence of any other evidence direct or circumstantial.
The learned counsel for the State on the other hand opposed this petition mainly on the ground that the witnesses of last seen evidence were quite independent and reliable and that recovery of dead body on the pointation of petitioner would provide a strong corroboration to the last seen evidence.
After having heard the learned counsel for the petitioner and the State and also perused the record with their assistance, we having found force in the contention, are inclined to grant leave to consider the questions whether the chains of facts are linked in a manner which would suggest no other possibility except the guilt of the petitioner and for proper appreciation of the above question the entire evidence is required to be examined. Leave is accordingly granted in this petition."
2. Mr. Arshad Ali Ch. ASC, the learned counsel for the appellant and Mr. Muhammad Aslam Sindhu Addl. Prosecutor General. Punjab, have been heard.
3. The contention of the learned counsel for the appellant is that there was delay in lodging FIR and involvement of the appellant in the commission of offence has not been proved by convincing evidence nor the case has been proved against him beyond any shadow of doubt. According to him, the last seen evidence could not be made basis for his conviction, particularly when the recovery of the dead body at his pointation was doubtful. It has further been contended that he was insane person, calling for at least reduction in sentence. The learned Addl. Prosecutor General Punjab, has quite vehemently controverted the contention of the learned counsel for the appellant and supported the concurrent view taken by the Courts for convicting the appellant. It is contended that the dead body was recovered on the disclosure made by the appellant from the place pointed out by him, which was identified by the father of the minor boy.
4. The incident as reported by Allah Ditta, the father of the minor boy Shahbaz, to the Police was that on 14.3.1999, the complainant along with Muhammad Aslam and Muhammad Afzal was present in his house when at Peshiwela Gul Muhammad came on a cycle. After some time, Gul Muhammad took Shahbaz aged 5 years son of the complainant along with him on the cycle with the pretext to purchase the cigarettes. Till evening, Gul Muhammad did not turn up and on being worried, the complainant searched for his minor child but failed. It was on 19.3.1999 that the complainant along with Bahadur Khan and Muhammad Akhtar went to the father of Gul Muhammad but the father showed his ignorance about Gul Muhammad. In the same sitting, Muhammad Sardar came there and told that at about 8 a.m. on 19.3.1999 Gul Muhammad met him at Jhal Ludaywali and on his asking Gul Muhammad had told that he would not return back the son of the complainant as the complainant had snatched his (Gul Muhammad's) wife and daughters.
Upon this information, the complainant was going to Police Station when Qaiser Raza SI met him at old bus stand. Initially the case was registered under Section 364 PPC but later on SectOn 302 PPC was added. Before the Trial Court the prosecution produced twelve witnesses. The ocular account was furnished by Allah Ditta PW-9 father of the boy, Muhammad Aslam PW-10, Muhammad Sardar PW-11. Dr. Muhammad Sarfraz, PW-5 conducted the post-mortem examination of the deceased.
Qaisar Raza Zaidi S.I. appeared as PW-12, who on information received about the presence of Gul Muhammad in Mauza Nomiwali, arrested him on 20.3.1999. Before him he made disclosure that after abducting Shahbaz he had murdered him by throttling and thrown him in the river Jhelum, who then found and recovered the dead body in the "sarkandas" near the western Bank of river Jhelum in presence of the father of the deceased and some other persons and completed the formalities including the preparation the site-plan.
5. In the context of the occurrence, the testimony. of Allah Ditta, the father of the deceased is of great relevance and significance in whose presence Gul Muhammad appellant his maternal nephew had come to his house and took Shahbaz with him on bicycle on the pretext of fetching cigarette. It was afternoon of 14.3.1999 and till evening when they did not return, he became worried and started searching for his son. He then went to the village of Gul Muhammad, who was not found there. He thereafter had been searching around, visiting his relatives and ultimately took the Numberdar of the village with him to the father of Gul Muhammad, who also showed ignorance about the whereabouts of Gul Muhammad. Muhammad Sardar PW-11, met them there and told that he had seen Gul Muhammad that day in the morning and on his inquiry about whereabouts of Shahbaz, Gul Muhammad told him that his maternal uncle Allah Ditta had deserted his wife and, children, therefore he will not return his son Shahbaz to him, so that he should shed tears the whole life for his son Shahbaz. It was then that he lodged complaint with the police. The delay in lodging of FIR by the father stand explained, who initially made efforts to find out his son and Gul Muhammad of his own. It was not unnatural nor unusual as he being a father, was more interested and concerned in finding out his son than thinking of other options. Qaisar Raza PW-12, the Investigation Officer also explains the delay in lodging of FIR.
6. There is consistency that the disclosure about the killing of Shahbaz was made by Gul Muhammad appellant, who led the police to the place where from the dead body was recovered and identified by his father and others. Muhammad Aslam PW-10, who was present with Allah Ditta in his house when the boy was taken by Gul Muhammad on bicycle, supports the testimony of Allah Ditta likewise Muhammad Sardar PW-11, reiterates his talk with Gul Muhammad and later with Allah Ditta complainant. Dr. Muhammad Sarfraz PW-5, who conducted the post-mortem examination of the deceased boy gave his observation and opinion that:-- "It was a dead body of a boy aged 5 years, lying flat on the mortuary table. Eyes and mouth were open. Eye balls were protrude out, whole of the body was swollen and putrified smell coming out from the body. He was wearing dark brown shalwar and shirt. Skin of palm and soles of foot were wrinkled. Face was swollen, eyes were protruded out and dark blue. Rigor mortis was not present. I found following injuries on the dead body:--
1. Multiple bruise mark on the right side front left side of neck.
2. A contused swelling 4 cm x 4cm on the left parietal region of the skull.
3. Multiple bite marks on the whole legs of both sides In my opinion Injury No, 1 was antemortel and was due to throttling and was sufficient to cause death in ordinary course of nature due to asphisia. Injury Nos, 2 and 3 were postmortel. Injury No, 2 was due to blunt weapon, injury No, 3 was due to biting of acetic animals."
7. The medical examination and evidence lends support to the last seen and other circumstantial evidence produced by the prosecution. The appellant convict, and the complainant are close relations. The appellant had nourished ill will and grudge towards the complainant, the father of the boy, as he considered him responsible for separation of his wife and daughters and thus thought of teaching lesson to him. Multiple circumstances corroborate the involvement of the appellant in the killing of the boy i,e, taking of Shahbaz from the house of the complainant on bicycle, not returning of Shahbaz, himself going into hiding, his conversation with Muhammad Sardar, after arrest discloses the manner in which Shahbaz was killed and thrown into the river Jehlum and pointation of the place and recovery of dead body of Shahbaz Ali this prove beyond any shadow of doubt that it was none other than the appellant, who had taken him along on bicycle, killed him thereafter and thrown into river Jehlum. It may be observed that in view of Art. 40 of the Qanoon-e-Shahadat Order 1984, the lead provided by the appellant and pointation of the place where the minor was killed and recovery of dead body are all relevant information about which only the appellant had the information. At this juncture reference may be made to Hakim Ali v. The State (1971 SCM R 412) wherein the statement of the accused leading to recovery of incriminating articles was held to be "a good piece of evidence of corroboration". In the said case the accused petitioner had taken "the Investigating Officer to a field and brought out the decapitated head of the deceased, wrapped up in the loi." In Sh. Muhammad Amjad v. The State (PLD 2003 SC 704), it was observed that "the Banglow in question was in possession of the appellant from where the dead body was recovered. It was also established by an unimpeachable evidence that recoveries of dead body, car or other articles were made on the lead, provided by the appellant. All above pieces of evidence under Article 40 ibid are admissible and were proved by conclusive evidence. It was accordingly held that all such pieces of circumstantial evidence when combined together provided strong chain of circumstances leading to the irresistible conclusion that it was the appellant who had killed the deceased." In Sher Zaman V. State and others (PLJ 2006 SC 931) the disclosures made by Mst. Zarlashta, which led to the recovery of dead body and many incriminating articles including the crime weapon on her pointation were taken into consideration and it was observed that "recovery of dead body and several incriminating articles on pointation of accused Mst. Zarlashta were witnessed by PW-5 Assistant Commissioner Abdul Hamid who had also attested/verified the mushir nama of seizure of such incriminating articles. Presence of PW-5 and attestation by him of the mushirnamas lent credibility and sanctity to the recoveries as well as to the mashirnamas of recoveries. Thus non- association of public would in the instant case not be a circumstance adverse to the prosecution."
Thus, the delay in FIR nor any other discrepancy in any of the statement of the PWs can cast any doubt about the commission of offence by the appellant.
8. An amazing defence was sought to be taken by him before the Trial Court as if he was insane.
Such a fake and mock attempt proved futile inasmuch as the learned Trial Court did obtain the medical opinion about his plea of insanity and the report of Dr. Imtiaz Ahmad Dogar Assistant Professor (Psychiatry), Punjab Medical College, visiting Psychologist, DHQ Hospital Faisalabad, who examined and reported about him, gave his opinion that "he was a sane person." This was duly noted by the Trial Judge in his order dated 6.3.2000 where after he proceeded with his trial. On 21.3.2000 he wag read out the charge, which was explained to him, who replied that he had understood the charge but pleaded not guilty. His non-response to the questions put to him u/S. 342 Cr.P.C. was merely another clever move and a ruse as if he was insane. Such a plea was rightly repelled by the learned Courts. I Have also gone through his petition addressed to this Court through the Superintendent Jail, Shahpur, wherein not a single word has been mentioned about his insanity rather while pleading his alleged innocence, the cause of his involvement projected by him is some political rivalry. But the evidence produced by the prosecution in bringing home the guilt does fully support and justify his involvement in the commission of offence, who has rightly been convicted for taking an innocent life of a child in a merciless and cruel manner for no fault of the minor boy. He does not deserve any leniency.
7. In view of the above, the appeal being without merit is dismissed accordingly.