' SARDAR TARIQ MASOOD, J.---Akhtar appellant was tried by the learned Additional Sessions Judge, Chiniot, in case F.I.R. No,516 dated 15-8-2004 under section 302/201, P.P.C., registered at Police Station Saddar, Chiniot. The learned trial Judge vide judgment dated 18-1-2010 convicted the appellant under section 302(b), P.P.C. For the murder of Shahid Ali (deceased) and sentenced him to death. The appellant was further directed to pay compensation of Rs,1,00,000 under section 544- A, Cr.P.C. To the legal heirs of deceased, or in default whereof to further undergo six months' S.I. He was further convicted under section 201, P.P.C. And sentenced to two years' R.I. With a fine of Rs,50,000, or in default whereof to further undergo six months' S . I .
' The appellant has filed Criminal Appeal No,168 of 2010 against his conviction and sentence whereas the learned trial Court has sent a reference (Murder Reference No, 366 of 2010) under section 374, Cr.P.C. For the confirmation of death sentence of Akhtar appellant or otherwise. We propose to dispose of both these matters by this single judgment.
2. Brief facts of the case as narrated in the F.I.R. (Exh.P-B/1.) lodged on the application (Exh.P-B) of P.W.4 Shaukat Ali complainant, are that he had a son Shahid Ali aged 12/13 years and four daughters. Shahid Ali was a student of 5th class and during vacations, he used to get tuition for homework from Nawaz, the brother of appellant, at the shop of Akhter appellant. On 11-8:1004, he went to the shop of Akhter appellant as per routine, but did not return. Complainant and other inmates of village asked Akhtar about his son, but he made dilly dally. On 15-8-2004, after Fajr prayers:complainant along with his brother Kausar Ali and P.W.6 Muhammad Aslam went to Akhtar and inquired about Shahid Ali, but he did not properly reply, upon which they told him that they were going to initiate legal proceedings, whereby while seeking pardon, appellant made confession that on 11-8-2004, at noon time, it was raining, he took Shahid Ali with him, with intention to commit sodomy, in the vacant house of Aslam, who had migrated to Chiniot city and key of house was with him. He further told that Shahid Ali was not consenting, upon which he tied his limbs, but even then he did not succeed in his aim. Then, with the help of an iron wire, throttled Shahid Ali and his dead body was concealed in an iron container and after closing its door, house was locked. Upon his disclosure, the complainant and others overpowered him and his custody was handed over to the police.
3. After completion of the investigation, report under section 173, Cr.P.C. Was submitted against the appellant. Charge was framed, to which, he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 8-P.Ws. In all.
' Shaukat Ali complainant (P.W.4) and Muhammad Aslam (P.W.6) are the witnesses of extra-judicial confession and recovery of dead body. Muhammad Aslam is also witness of certain recoveries.
' P.W.8 Ejaz Hussain S.I. Is. The Investigating Officer of this case. Rest of the witnesses are formal in nature.
' P.W.5 Dr. Muhammad Shafee Saleem, conducted the postmortem examination upon the dead- body of Shahid Ali (deceased) on 15-8-2004, and found following injuries on his person:-
(1) A contusion mark 15 cm x 2 cm into all around the neck, upper part underlying the ligature.
(2) A contusion mark 5 cm x 2 cm into all around the right wrist except on inner side.
(3) A contusion mark 5 cm x 2 cm into backside and both outer sides on left wrist.
' In his opinion, the cause of death in this case was sudden cardio respiratory arrest as a result of strangulation causing asphyxia as a result of injury No,
1. This injury along with other injuries was sufficient to cause death in ordinary course of nature. All the injuries were ante mortem and were caused by blunt weapons. Opinion regarding sodomy was to be given after receipt of report of Chemical Examiner. The probable duration between injuries and death was immediate and between death and postmortem examination was about 4 to 7 days. Vide his endorsement on report of Chemical Examiner Exh.P-H, act of sodomy was performed on the victim (Shahid All son of Shaukat Ali) as the anal swa bs were stained with semen.
' The said doctor also medically examined Akhtar appellant on 16-8-2004 and found the following injuries on his body:--
(1) A healed abrasion .8 cm x .1 cm on back of middle of left thumb.
(2) A contusion mark black in color .2 cm x .2 cm on back of left thumb nail outer part.
(3) A healed abrasion .7 cm x .1 cm on front of left thumb middle part.
' In his opinion, all the injuries were declared under section 337-L(2), P.P.C. And were caused by blunt weapon (may be teeth bite). The probable duration of injuries was found about 5 to 7 days.
4. The statement of the appellant under section 342, Cr.P.C. Was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to the question, "why this case against you and why the P. Ws. Had deposed against you, Akhtar appellant stated as under:-- "All the P. Ws. Are close relatives inter se. The complainant and Aslam P. W. Have grudge against my family. My family also belongs to other political wing of the Nazim of the area and for that, Shaukat, Aslam, Ch. Munir-ud-Din Nazim of the Union Council involved me in this case falsely."
' Neither the appellant opted to appear under section 340(2), Cr.P.C. In disproof of the allegations levelled against him by the prosecution, nor produced any evidence in his defence.
5. Learned counsel for the appellant in support of this appeal contends that there is no direct evidence in this case and it is a case of circumstantial evidence; that extra-judicial confession of the appellant is a weak type of evidence; that the disclosure of the appellant in the presence of the police is inadmissible; that the deceased was missing from his house since 11-8-2004 but the F.I.R.
Was chalked out on 15-8-2004 and prior to that the complainant did not make any effort to lodge the report; that the extra-judicial confession of the appellant before the witnesses is negated from the fact that after the said extra-judicial confession, the complainant instead of going to the said place where dead body was concealed, took the appellant to the police; that it had come on the record that the place of recovery of the deceased was not in the exclusive possession of the appellant rather Muhammad Ashraf, the brother of Muhammad Aslam barbar was also utilizing the said house; that the witnesses of extra-judicial confession are related to the deceased, hence they are interested witnesses; that the dead body was not identifiable; that the prosecution remained fail to prove that the deceased used to get tuition from Nawaz at the shop of the appellant; that there is no corroborative piece of evidence to the extra-judicial confession which otherwise is a weak type of evidence.
6. On the other hand, learned DPG for the State assisted by learned counsel for the complainant has vehemently opposed this appeal by submitting that Shahid Ali deceased was a student of 5th class and he used to get tuition from Nawaz (brother of the appellant) at the shop of the appellant; that on 11-8-2004, he went to the shop of the appellant but did not return home; that natural conduct of the close relatives of the deceased was to inquire from the appellant; that in the F.I.R., the factum of extra-judicial confession made by the appellant before the witnesses is specifically mentioned, even the names of the witnesses and the mode through which the appellant committed the murder of the deceased is also mentioned; that although it is a case of circumstantial evidence but the same is confidence-inspiring being linked with each other; that the dead body was in the exclusive knowledge of the appellant and he got recovered the same; that the doctor had categorically stated that the dead body was identified by the witnesses and the doctor had also categorically refuted the suggestion that the dead body was not identifiable; that the injury of teeth bite on the thumb of the appellant is also a circumstance which supported the circumstantial evidence.
7. We have heard the arguments of learned counsel for the parties as well as the learned DPG for the State at length and have perused the record minutely with their able assistance.
8. According to the prosecution case, Shahid Ali deceased used to get tuition from Nawaz, the brother of the appellant at the shop of the appellant. It is mentioned in the F.I.R. That on 11-8-2004, he went to the shop of the appellant as per routine but did not return back to home. The natural conduct of the family members of the deceased was that they searched the deceased and also inquired from the appellant. Although, learned counsel for the appellant argued that till 15-8-2004, no report was lodged by the complainant but the complainant during cross-examination categorically stated that "I orally informed to Moharrar of police station about the loss of my son on the next day of his missing. The said Moharrar told me that the police would make search about my son."
' So, prior to the recovery of the dead body, the complainant had made effort to lodge the report but as he was given assurance that the police will search his son, so he kept on searching his son instead of lodging the F.I.R. It had come on the record that during the said period, the complainant party kept on inquiring from the appellant about the whereabouts of Shahid Ali deceased.
' On 15-8-2004, the complainant along with Kausar Ali, Muhammad Aslam P.W.6 and Muhammad Ali along with other persons of the village went to the appellant after Fajar prayer and inquired about Shahid Ali deceased who could not give any satisfactory answer and when the complainant told him that he intends to initiate legal proceedings, thereafter the appellant made disclosure and extra-judicial confession before the witnesses that on 11-8-2004, when it was raining, he took Shahid Ali with him in the house of Aslam son of Rehma who had already shifted to Chiniot after giving him keys of the locks of the house. He further disclosed that he brought Shahid Ali in the said house with the intention of commission of unnatural act with him but Shahid Ali did not agree whereupon he tied his hands but did not get success of committing unnatural act whereupon he picked iron wire lying there and strangulated the throat of Shahid Ali deceased and put his dead body in the iron container (Jisti Bharola) lying there and covered the said iron box and after locking the house went to his house.
9. When the appellant made this extra-judicial confession before the witnesses, the complainant and the witnesses apprehended and proceeded towards the police station but the police met the complainant near the Cool Storage of Wahla Rahi and the complainant delivered the application Exh.PB along with appellant to the police officer. The I.O. After incorporating necessary proceedings in the said application sent the same to the police station for lodging the F.I.R. Where Umer Hayat constable P.W.2 recorded the formal F.I.R. Exh.PB/1 at 8-05 a.m. The argument of the learned counsel for the appellant that after the extrajudicial confession of the appellant, the complainant should have rushed to the house. Of Aslam barber where according to the extra-judicial confession of the appellant, the dead body of Shahid Ali was lying but we observe that the complainant had already informed the appellant that he intended to initiate legal proceedings and after the disclosure/confession of the appellant, he rightly took him to the police and firstly lodge the report.
So, one thing is quite clear that before the recovery of the dead body, it had come to the knowledge of the complainant and the other witnesses that the appellant in. Order to commit unnatural act with the deceased took him to the house of Aslam barber and committed his murder: All the details of the extra-judicial confession are mentioned in the said F.I.R., even the names of the witnesses of extra-judicial confession are also mentioned in the F.I.R. After the disclosure of the appellant, he was taken to the police and the complainant lodged the report. So, after the extra-judicial confession of the appellant, there was hardly any chance for consultation or deliberation and the complainant and the witnesses in a very straightforward manner took the appellant to the police and lodged the report.
10. The extra-judicial confession is normally considered as a week type of evidence but conviction can be passed on such extra-judicial B confession, if it was made voluntarily. In this case, Shaukat Ali P.W.4 and Muhammad Aslam P.W.6 appeared before the learned trial court and made statements regarding the extra-judicial confession of the appellant. Shaukat Ali although is the father of the deceased but Aslam P.W.6 is remotely related with the complainant. Both the witnesses had no enmity or motive to falsely implicate the appellant. They remained consistent on the point that when the complainant informed the appellant that he intended to initiate legal proceedings the appellant made extra-judicial confession. While making extra-judicial confession, he sought pardon from the father of the deceased. Earlier he concealed the facts but when complainant informed him for initiating legal proceeding, he voluntarily made extra-judicial confession. The appellant is a single accused in this case and it is not expected from a father of the deceased that he will involve some innocent person- for the murder of his son and it is not expected from him that he will let off the real culprit and substitute the appellant with whom he has no enmity or It is also a circumstance that before the recovery of the dead body certain facts which were not known to anyone were brought into the notice of the complainant through the mouth of the appellant which were further supported by the other circumstances.
' Before the recovery of the dead body, the claim of the appellant was that he tied the hands and legs of the deceased, then strangulated him with the help of iron wire. The doctor who conducted post mortem examination found contused marks around the right and left wrist and found the upper limbs tied with multi-colour cloth. He also found the iron wire encircled around the whole neck in three turns and both ends of wire were tied - together on right side of neck. So, the disclosure/confession of the appellant was confirmed by the medical evidence. It was not the case of the defence that the appellant was arrested after the recovery of dead body. So, the wording of the disclosure/confession were confirmed by the medical evidence.
' It is also a circumstance that before recovery of the dead body, while making extra-judicial confession, the claim of the appellant was that he took the deceased for committing unnatural act with him and for that purpose, he tied him but remained unsuccessful in committing the said act.
Three swa bs were obtained from the anal region by the doctor and the same were sent to the Chemical Examiner and according to the report of Chemical Examiner the said swabs of anal region were found to stain with semen, so the extra-judicial confession made by the appellant also supported by the medical evidence and Chemical Examiner report.
11. According to the complainant, when the appellant was produced before the police, he repeated the said extra-judicial confession before the police and after making disclosure, he led the police party and the witnesses towards the house of Aslam barber but prior to that he took the police party and the witnesses to his tea shop from where he brought out keys P.7-8 from the empty packet of tea and then took the police and the witnesses -to the house of Aslam barber. The said keys were in the exclusive knowledge and possession of the appellant. After reaching the house of Aslam barber, the appellant while applying one key opened the lock of outer gate and led to the northern room of the said house. Thereafter, he opened the lock of said room with another key and pointed out an iron container (Jasti Bharola) lying in the said room. All the witnesses are consistent on the point that it was the appellant who led the police and the witnesses in the said room and after pointing out the iron container, he opened its lid and got recovered the dead -body of Shahid Ali deceased. The police officials took into possession the locks P.5-6 along with keys P.7-8 of the outer gate and the northern room of the house through recovery memo Exh.PD. Vide the same memo, the iron container P.4 was also taken into possession. All these articles were produced during the trial and were duly exhibited. As already discussed, the keys were in exclusive knowledge of the appellant. The outer gate was locked and the northern room of the said house was also locked from outside. The keys were with the appellant, so at that time, he was in the exclusive possession of the said house. Although, the argument of learned counsel for the appellant that one Ashraf brother of Aslam barber was also residing there, has no force because it had come on the record that he was also utilizing the said house, but one thing is quite clear that the keys of the house were with the appellant, hence, the exclusive possession of the said house of appellant is proved beyond any shadow of doubt.
' The argument of learned counsel for the appellant that there should be some bad smell coming out of the said house because the dead body was lying there for the last about four days, has no force because according to extra-judicial confession of appellant, the said iron container was closed with its lid and it had come on the record that when the dead body was brought out from the iron container, then bad smell started coming out of the said iron container. So, in this case, recovery of dead body of deceased, on the pointation of appellant, is a strong piece of evidence which corroborates the extra-judicial confession (substantive evidence). When such a strong corroboration is available to the extra-judicial confession, then such confession cannot be considered as a weak type of evidence. The witnesses of the recovery remained consistent on each and every material point, rather during the cross examination, they confirmed the presence of each witness there.
12. As from the place of recovery, no other article of the deceased was recovered, hence, complainant made a supplementary statement before the I.O. And claimed that the deceased was having one school bag of books including pen, marker and other belongings i,e, shirt.And shoe are also not available there and he requested the police to recover the said articles.
' The doctor observed only sky blue Shalwar on, the person of deceased. On 18-8-2004, the appellant after making disclosure led and got recovered sky blue shirt P-12, along with bag P-9, books P-10/1-5, register P-11. The said articles were taken into possession vide memo Exh.P-K. It is a circumstance that on the books of class 5th, the name of deceased was written. On 21-8-2004, the appellant also got recovered shoe P-13 of deceased from the roof or his shop. So, all these recoveries ,a1so corroborate the extra-judicial confession made by the appellant because these articles were recovered on the disclosure and pointation of the appellant.
13. From the above discussion, it is quite clear that on 15-8-2004, after Fajr prayer, the appellant made extra judicial confession before the witnesses and told that he took the deceased to the house of Aslam barber in order to commit unnatural act with him, but on his refusal, he tied him and tried to commit unnatural act and thereafter with the iron wire strangulated him. This extra- judicial confession was supported by the recovery of dead body which was recovered on the pointation of appellant and the same was in the exclusive knowledge and possession of the appellant. The medical evidence fully supported the wording of extra-judicial confession. The belongings of deceased were also subsequently recovered on the pointation of appellant. The witnesses of extra-judicial confession, recovery witnesses and the medical evidence successfully proved the prosecution case on the basis of circumstantial evidence which was linked with each other and was not broken from any place. The evidence produced by prosecution was confidence inspiring. The prosecution remained successful in proving that the appellant had committed the murder of Shahid Ali deceased by strangulating him with an iron wire and after his murder concealed the dead body in an iron container P-4. The appellant did not point out any enmity of the witnesses with him. Even otherwise, the witnesses had no reason or motive to falsely implicate him. The appellant is a single accused in this case and in such-like cases, substitution is a rare phenomenon. The appellant made extra-judicial confession voluntarily before the witnesses. The prosecution remained successful in proving the case against the appellant beyond any shadow of doubt. The appellant had committed the murder of a child for committing the unnatural act with him. He acted in a very brutal manner, so, he does not deserve any mitigation in his sentence. The learned trial Court had rightly convicted and sentenced the appellant.
14. Consequently, Criminal Appeal No, 168 of 2010 filed by Akhtar appellant is dismissed. His conviction and sentence passed by the learned trial Court is maintained.
15. The sentence of death of Akhtar appellant is confirmed and the Murder Reference No,366 of 2010 is answered in the affirmative.