Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 363 of 2005, filed by Mehboob Alam appellant, who was convicted under Section 302(b) PPC and sentenced to death and also to pay Rs, 300,000/- (rupees three lacs) as compensation to the legal heirs of the deceased or in default six months S.I. by the learned Sessions Judge, Islamabad, vide judgment dated 28.09.2005.
2. Murder Reference No, 62 of 2009 filed by the State against Mehboob Aalam, appellant for confirmation of death sentence or otherwise shall also be disposed of through this single judgment.
3. Briefly stated the facts of the case are,that on 17.6.2005, on receipt of information from Rescue 15, that a young boy, in injured condition was lying in green area of Sector G-612, near to Atiq Road, Islamabad, Ejaz Ahmed ASI being Duty officer at Police Station Margalla, Islamabad, alongwith Aziz- ur-Rehman constable, reached the spot and found that an unknown boy was, lying there, in an injured condition. He contacted rescue 15 and arranged for the Ambulance and shifted the injured to Pakistan Institute of Medical Sciences, Islamabad, for medical treatment. The CMO after examination of the said injured declared him dead. The ASI contacted with Police Station Margalla and informed the situation whereupon, Shaukat Ali SI reached Pakistan Institute of Medical Sciences, Islamabad with other police officials. Shaukat Ali. SI conducted the personal search of unknown deceased boy, a chit whereon word "Aakash and a mobile Phone No, 9853336" was written were recovered. Shaukat Ali SI/PW also examined the dead body and found that there was an entry wound in the front of chest of left side of the deceased and there was an exit wound on the back of the chit Meanwhile, the complainant, Ali Haider father of deceased also reached the PIMS, Islamabad and he presented a complaint (Ex.PC) before the -1.0. expressing therein, that he was permanent native of District Larkana, was employed in National Book Foundation and residing in Sector G-8/2, Islamabad for the last 22 years. His son, the deceased namely Sajjad Haider, aged 18 years was a student of Matric. At 8.30 p.m. after attending telephone call by someone, he went out of house but did not return home till late night whereupon, the complainant with one of his friend namely Abdul Haee ( PW given up ) started searching for his son. It was at about 12.40 mid night when he received information from Police Station Margalla, he reached Pakistan Institute of Medical Sciences, Islamabad and identified the dead body of his son in the mortuary. According to the complainant, his son has been murdered by unknown accused persons by firing at him with .30-bore pistol.
4. The investigation of the -case was taken over by Shaukat Ali SI/PW-13 made endorsement on the above said complaint and sent the same to the Police Station Margalla for registration of the FIR.
During the course of investigation, the complainant made a supplementary statement on 17.6.2005, wherein, he nominated the present accused to be responsible for the murder of his son Sajjad Haider. Shaukat Ali SI/PW-13 inspected the dead body, prepared injury statement Ex.PB. He conducted personal search of the dead body and prepared memo. Ex.PA and recovered Rs,35/- and one chit whereon mobile Phone No, 0300-9853336 and word "Akash" was written on the same.
Thereafter he prepared inquest report Ex.PZ, application Ex.PY for post-mortem examination, inspected the spot, secured blood-stained earth from the spot vide memo. Ex.PF, took into possession a pair of sleeper/ shoes of the deceased vide memo. Ex.PH, He also secured bullet of .30-bore pistol P.7 from the spot vide memo. Ex.PG and prepared rough site-plan Ex.PAA. On 18.6.2005, he arrested Mehboob Alam appellant from Suzuki stand Peshawar More G-9 Islamabad.
On 20.6.2005 the accused made pointation of the place of recovery of dead body and he prepared a memo. of pointation Ex.PR. On the same day Mehboob Alam accused got recovered mobile phone P-17 having connection No, 0300-5802141 from his residence which was taken into possession vide memo. Ex.PT. The accused also got recovered one sim of U-fone P. 18, four snaps of the deceased Ex.P-15/1-4, visiting cards Ex.P. 16/1-8 which were secured vide memo. Ex.PT, birth certificate of accused Mehboob Alam Ex.PS were also recovered On 22.6.2005 he got the accused medically examined with regard to his potency. On 28.6.2005 the accused led to the recovery of one mobile phone of the deceased P-9 which was secured vide memo. Ex.PJ and the same was identified by the complainant to be that of his son Sajjad Haider. On 28.6.2005 Shafqat Ullah PW produced record of phone of PTCL and U-fone pertaining to Cell No, 0300-5802140 of accused Mehboob Alam, 0300-5256236 of accused, 0300-9853236 of deceased Sajjad Haider, 2260892 of PCO Faizan General Store which he secured vide memo. Ex.PU. On 29.6.2005 accused led to the recovery of pistol P-10 which was taken into possession vide memo. Ex.PN. On unloading the pistol, 3 live bullets were recovered which were taken into possession vide memo. Ex. PL On 30.6.2005 the complainant produced before him one CD containing the snaps of the accused and the deceased which was secured vide memo. Ex.PM and after completion of formal investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced thirteen witnesses in all. Thereafter, the learned SPP after tendering in evidence reports of Chemical Examiner, Ex. PEE & Ex.PFF, report of Serologist Ex.PGG and that of Forensic Science Laboratory Ex.PHH, closed the case of prosecution.
The accused, in his statement, under Section 342 Cr.P.C. pleaded false implication. After conclusion of the trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court.
6. Learned counsel for the appellant submits that motive is shrouded in mystery; that another motive was introduced by the complainant in his supplementary statement to the effect that the appellant had called the deceased for the purpose of committing sodomy and thereafter committed his murder but the report of chemical examiner in this respect is negative in nature; that duration between death and the post-mortem examination is very necessary for the just decision of the case that Ishtiaq Ali Bhutto PW-10 witness of last seen is chance witness because Ali Haider complainant father of the deceased was examined as PW-3 had-stated that it was the routine of the deceased to return the home at 10.00 p.m. but Ishtiaq Bhutto PW-10 had stated that the deceased was seen in the company of the appellant at 11.00 p.m. in the market, therefore the evidence of last seen is weak type of evidence; that last seen evidence is not corroborated by any independent witness and the conviction and sentence cannot be awarded or maintained; that as far as recovery of mobile phone is concerned, he submits that while lodging the FIR, the complainant neither mentioned any-where that the deceased took the mobile phone with him nor he has mentioned this fact in his supplementary statement. Learned counsel for the appellant has drawn our attention towards recovery of mobile phone which was secured vide memo. Ex.PJ lying underneath of "Toot" tree in the shopping bag which was far away from where the dead body of the deceased was found and same is the position regarding recovery of pistol Ex. PL, that mobile phone was recovered on 28.6.05 while pistol was recovered on 29.6.05 from the same place and both these articles i.e: pistol and mobile phone have been planted upon the accused. Learned counsel has relied upon 1997 P.Cr.LJ 1628 and submits that no case is made out against the appellant and he is entitled to acquittal. Adds that there are mitigating circumstances in this case because two motive have been set up by the complainant, one in the FIR and the other in his supplementary statement; that the prosecution has failed to prove both the motive against the appellant.
On the other hand learned standing counsel for the state submits that no suggestion was put to Ishtiaq Bhutto who is witness of last seen to dislodge his evidence; that there is statement of Muhammad Ishaq PW-9 owner of the PCO from where appellant made telephone calls to the deceased; that both the witnesses are natural and independent having no animus against the appellant; that on the pointation of the appellant mobile phone of the deceased and pistol by which he fired at the deceased had been recovered; that the prosecution has prayed its case through last seen evidence and recoveries, therefore the appeal filed by the appellant is liable to be dismissed.
We have heard learned counsel for the parties and gone through the evidence available on record with their able assistance. The deceased has left his house on 16.6.2005 as reported by his father Ali Haider on hearing the telephone call at 8.30 p.m. and thereafter the complainant tried to contact the deceased but his mobile phone was not responding. Then he along with Abdul Haee left his house for search of his son and ultimately he found the dead body of the deceased in the PIMS Hospital: Had the complainant animus against the appellant he could have named the appellant in the FIR. The complainant made supplementary statement and he levelled the allegation that the deceased had been killed by the appellant for the purpose of committing sodomy is not proved according to the report of chemical examiner as swabs were not found to be stained with semen taken from the anus of the deceased but there is evidence of last seen furnished by Ishtiaq Bhutto PW-10 who is an independent witness. He had seen the deceased with the appellant in the market at 11.00 p.m. where the deceased had served drinks not only to Ishtiaq Bhutto PW.10 but also to Matah-ud-Din, (not produced by the prosecution). No suggestion was put to this witness that he was not an independent witness. Then there is statement of Muhammad Ishaq PW9, owner of the PCO who had stated that the appellant made telephone calls to Sajjad Haider deceased from his PCO and the appellant paid Rs,50/- to this witness. Then there is evidence of Qadeer Ahmed PW-12 who stated that the deceased and appellant used to come his shop for purchasing bettle leaf and for playing video games. There is also statement of Zahoor Ahmed PW-11 who stated that the accused had been giving his clothes to him for dry cleaning for the last 14/15 years. The appellant also got recovered mobile phone of the deceased which was taken into possession vide memo.
Ex.PJ and the same was identified by the father of the deceased. He also got recovered .30-bore pistol along with live bullets which was taken into possession vide memo. Ex.PL. He also pointed out the place where he had committed the murder of the deceased. The complainant has produced one CD containing snaps of the deceased and the accused which was secured vide memo. Ex.PM.
The crime empties also matched with the pistol recovered from the appellant and the report of the fire-arm expert Ex.PFF is positive in nature. Dr. Wasim A. Khawaja PW-8 conducted post-mortem examination on the dead body of the deceased on 17.6.2005 and found one bullet shot on his chest. This fact has been mentioned by the complainant after seeing dead body of the deceased in his supplementary statement. Now the question is that why the complainant would falsely implicate the appellant in this case, we are of the view that there is no reason for false implication of the appellant in the instant case. We are aware of the fact that it is a case of circumstantial evidence but the prosecution has proved its case against the appellant which lead to the conclusion that it was the appellant who committed the murder of deceased but there are some mitigating circumstances in favour of the appellant for lesser sentence i,e, that the motive furnished by the complainant ln the FIR or in his supplementary statement was not proved that why the appellant had committed the murder of the deceased. Moreover, it is a case of single shot and the fire was not repeated by the appellant, so though we maintain the conviction of the appellant u/S. 302(b) PPC but convert his sentence from death to. imprisonment for life. As far as compensation awarded by the learned trial Court to the appellant is concerned, i,e, maintained.
Death sentence is not confirmed and the murder reference is answered in the negative.