1. ' AFTAB AHMED GORAR, J.---By this single Judgment I propose to dispose of above-noted two Criminal Jail Appeals as both the appeals arise out of the same Judgment.
2. ' Through the instant Criminal Jail Appeals filed under section 410, Cr.P.C., the appellants have impugned Judgment dated 14-9-2009 passed by Vth Additional Sessions Judge Karachi Central in Sessions Case No.354 of 2005 whereby he convicted the appellants and sentenced each of them for an offence punishable under section 302, P.P.C. To suffer imprisonment for life and to pay compensation of Rs.100,000 to the legal heirs of deceased Muhammad Waqas in default whereof to suffer simple imprisonment for a period of six months more. They were also convicted for an offence punishable under section 201/34, P.P.C. And sentenced to suffer imprisonment for seven years and to pay compensation of Rs.50.000 to the legal heirs of the deceased in default whereof to further undergo simple imprisonment for six months. However, they were extended benefit of section 382-B, Cr.P.C. And both the sentences were ordered to run concurrently.
3. ' The prosecution case, in nutshell, is that complainant Qutubuddin lodged F.I.R. No.299/2005 under sections 302/364-A/ 291/34, P.P.C. At Police Station North Nazimabad on 30-8-2005 at about 1415 hours stating therein that on 5-8-2005 at about 6-30 p.m. His son namely Muhammad Waqas aged about 9 years disappeared from the street of his house situated at Katchi Abadi Pehalwan Hotel Khundo Goth, Block-B, North Nazimabad, Karachi. He tried himself to trace his whereabouts but could not succeed, hence he reported the incident regarding missing of his child at P.S. North Nazimabad and during search he came to know that his brother in law namely Allah Ditta son of Karam Hussain, his friend Muhammad Jehangir along with their companions kidnapped his son Muhammad Waqas aged about 9 years from the street of his house, hence he approached police station where Duty Officer SI Liaquat Ali Aril' on verbatim of complainant registered F.I.R. Of instant crime under section 364-A/34, P.P.C. Against accused Allah Ditta, Muhammad Jehangir and their companions and sent its copy to Incharge Investigation Cell for investigation.
4. ' After usual investigation challan was submitted against the accused persons in the court showing accused Allah Ditta and Muhammad Jehangir to be in custody. A formal charge was framed against the accused as Exh.2 to which they pleaded not guilty and claimed to be tried.
5. ' In support of its case, prosecution examined P.W.1, complainant Qutubuddin Exh.3, who produced copy of F.I.R. Exh.3/A, P.W.2 Saleem Akhtar Exh.5 who produced memo of piontation of place of incident Exh.5/A, memo of pointation of place where dead body was thrown Exh.5/B, P.W.3 Muhammad Baldish Exh.6, who produced memo of arrest Exh.6/A, P.W.4 Civil Judge & J.M. Erum Jehangir Exh.7, who produced confessional statement of accused Allah Ditta and Muhammad Jehangir Exh.7/A and 7/B. P.W.5 SIP Haseeb Ahmad, I.O. Of the case, Exh.7. Thereafter prosecution side was closed vide statement Exh.9.
6. ' Statements of accused Allah Ditta and Muhammad Jehangir were recorded under section 342, Cr.P.C. As Exh.10 and Exh.11 respectively wherein they denied the prosecution allegations and claimed that they are innocent and that the witnesses are interested and hostile, however they did not examine themselves on oath nor led any evidence in their defence.
7. ' Thereafter counsel for the complainant moved application under section 540, Cr.P.C. For recording the evidence of Mst. Irshad Bibi wife of Qutubuttin as she was not cited as a witness in the challan.
8. The application was allowed and she was examined as P.W.6 at Exh.13. Again the statements of aforesaid two accused were recorded under section 342, Cr.P.C. As Exhs.14 and 15 respectively.
9. ' After recording the evidence and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the appellants as stated above, hence these appeals.
10. ' Learned counsel for the appellants submitted that the appellants are innocent and have been falsely implicated by the complainant due to enmity; that the incident is unseen and un-witnessed, hence the case is of no evidence; that the charge against the accused was not properly framed and is defective, as such the accused cannot be convicted on the basis of such charge. He further contended that the accused Jehangir had made confessional statement after maltreatment by the police; that there are material contradictions in the evidence of the prosecution witnesses, particularly on the point of place of incident. He further contended that the learned trial court has not properly appreciated the evidence recorded during the trial. Reliance was placed on the case- law reported in 1987 PCr.LJ 676, 1997 PCr.LJ 1, 1993 PCr.LJ 251, 2004 PCr.LJ 30, 1995 PCr.LJ 339, 2004 YLR 206, 2003 YLR 1327, PLD 1998 SC 21, 2002 PCr.LJ 1463, 2000 PCr.LJ 1786; 1973 SCM R 26; 1968 SCM R 18, 2003 YLR 1309, PLJ 1997 SC 352(sic.), PLD 2004 SC 663; PLJ 1870 SC 258(sic.) and 1973 SCM R 12.
11. ' Conversely, learned A.P.G. Appearing for the State contended that the impugned judgment is well- reasoned and in accordance with the law. He submitted that real sister of appellant Allah Ditta in her deposition has implicated the accused in the commission of the alleged offence. He further contended that the defence has not been able to establish previous enmity between the parties so as to persuade the complainant to falsely implicate the accused persons. In the circumstances, he supported the judgment passed by the learned trial court and prayed for maintaining the same.
12. ' I have heard the arguments advanced by the learned counsel for the appellants as well as learned A.P.G. And perused the material available on the record.
13. ' P.W.1 complainant Qutubudin deposed that Muhammad Waqas is his real son. On 5-8-2005 at about 6-30 p.m. He, his wife and his son were available at their house situated at Khando Goth, Block-2, North Nazimabad. Suddenly his son asked him for purchasing eatable items. At that time accused Allah Ditta and Jehangir were sitting in the drawing room of his house. Allah Ditta, who is real maternal uncle of his son, offered that he will accompany his son for purchasing the eatable items from the market. Accordingly, he took the child with him to market, however, after considerable time Allah Ditta came back to the house, whereupon the complainant made query about his son to which he replied that after purchasing eatable items for the child he sent back him to the house. On this, the complainant started searching his son in the neighbourhood but he could not succeed, thereafter he went to P.S. North Nazimabad for lodging the report where he was advised to make efforts of his own for searching the child. Be thereafter personally tried his best to search his missing son. On the following day viz. 6-8-2005 at about 10-33 a.m. Accused Allah Ditta received a call on his mobile and then he informed him that his son has been kidnapped and now he is available in Punjab and on payment of Rs.25,000 as ransom, custody of the child would he returned to him. Upon such information he along with accused Allah Ditta went to Punjab. On 30-8- 2005 F.I.R. Was registered on his verbatim against accused Allah Ditta and Jehangir for kidnapping his son Waqas.
14. ' P.W.2 Saleem Akhtar deposed that he is neighbourer of the complainant. On 5-8-2005 at 6-30 p.m. He was present in the market of their mohallah, where he saw complainant's son namely Waqas with Allah Ditta and Jehangir and then he left the market. However, on the same day in between 7.00 to 7.15 p.m. An announcement was made regarding missing of complainant's child namely Waqas whereupon he informed the complainant that he was in the market at 6-30 p.m. In connection with purchase of grocery when he saw his child Waqas with their guest namely Allah Ditta and Jehangir in the said market. On the next day i.e. 6-8-2005 at about 10-30 a.m. He visited the house of complainant in order to give him moral support being a neighbour where he saw accused Jehangir in the house of complainant who in his presence told the complainant that he has received a telephone call from Punjab that in case complainant gives Rs.25,000, he may obtain custody of his child. He further deposed that on 2-9-2005 he was available in his house when his child informed him that police has come in their mohallah in a police mobile whereupon he came out of his house and saw that both the accused persons were pointing out the place where murder of complainant's son was committed and on their pointation Investigating Officer prepared such memo. He identified both the accused in court to be the same persons who pointed out the place of occurrence and the place where the dead body of complainant's son was thrown.
15. ' P.W.3 H.C. Muhammad Bakhsh deposed that during investigation accused Allah Ditta and Jehangir admitted that on 5-8-2005 they gave sleeping pills to the son of the complainant Waqas and thereafter strangulked his neck and killed him due to old enmity, thereafter threw his dead body in Gujar-Nala. Upon such statement, I.O. Raja Haseeb arrested them and prepared such memo.
16. ' P.W.4 Erum Jehangir is the Civil Judge & Judicial Magistrate who deposed that both the accused were produced before her for recording their confessional statement, however, accused Allah Ditta refused to get his confession recorded but accused Muhammad Jehangir made confessional statement before her after fulfilment of all necessary formalities.
17. ' P.W.5 SI Haseeb Ahmed is the Investigating Officer who conducted the investigation in the case and prepared necessary memos and arrested the accused persons.
18. ' P.W.6 Mst. Irshad Bibi, who is real sister of accused Allah Ditta, deposed that this incident took place about four years back. Her brother accused Allah Ditta took away her deceased son Waqas outside her house for purchasing some items. Accused Jehangir was also along with her brother accused Allah Ditta. After one hour both the accused returned back to the house but her son was not with them, therefore she asked about her son. They replied that after taking items he had returned back to house. Then for whole the day and night they tried to trace out her son but could not succeed. Ultimately incident was reported at police station. On the next date accused Allah Ditta received mobile call and he informed her that her child had been abducted by his friend and he is available in Punjab, then he demanded Rs.25,000 as ransom which were handed over to him.
19. On the same night accused Allah Ditta called her and demanded more money of Rs.2.00,000 but she did not pay the same and repeatedly requested him to return her child but he did not return.
20. Lastly he confessed his crime and stated that he had killed her son. Thereafter police arrested him.
21. Even till today accused confessed the crime and repeatedly requested her to forgive him.
22. From the above, it is clear that that the prosecution witnesses have categorically implicated both the appellants in the commission of alleged offence. Even real sister of accused Allah Ditta has made categorical statement that after payment of Rs.25,000 to accused Allah Ditta, he demanded further sum of Rs.2,00,000 which were not paid to him and she repeatedly requested him to return the custody of her son but he did not do so and ultimately her child was killed. It is not understandable that as to why a sister would involve her real brother in the commission of such a heinous offence and would spare the real culprits.
23. ' There is also circumstantial evidence which supports the prosecution case. Complainant Qutubuddin and his wife Mst. Irshad Bibi deposed that accused persons took their son Muhammad Waqas to market for purchasing eatable items, however, after considerable time they came back to the house but the child did not return, whereupon they made query about their son to which they replied that after purchasing eatable the child was sent back to the house. Their statement is corroborated by P.W. Saleem Akhtar who is their neighbourer. He categorically stated that on 5-8- 2005 at 6-30 p.m. He was present in market of their mohallah where he saw the son of complainant namely Waqas with Allah Ditta and Jehangir in the market and then he left market thereafter he never seen them. He further deposed that on the next day i.e. 6-8-2005 at about 10- 30 a.m. He visited the house of complainant in order to give him moral support being a neighbour where he saw accused Jehangir in the house of complainant who in his presence told the complainant that he has received a telephone call from Punjab that in case complainant gives Rs.25,000, he may obtain custody of his child. He also deposed that in his presence both the accused persons pointed out the place where murder of son of complainant was committed and on their pointation Investigating Officer prepared such memo. All the three witnesses are unanimous on the point that both the accused had taken the child to market for purchasing certain items.
24. ' Besides, there is also confessional statement of accused Jehangir. In his statement he stated that accused Allah Ditta is his old friend and the deceased boy namely Waqas son of Qutubuddin aged 10 years was his real nephew. About a month ago, Allah Ditta disclosed him that moral fiber of Qutubuddin's family is not good as his son Waqas communicates messages of the outsiders to his mother i.e. Sister of Allah Ditta and this fact is in the knowledge of his father Qutubuddin. Allah Ditta restrained the boy and his parents but they paid no heed so Allah Ditta was annoyed and was ready to do anything on account of 'ghairat'. Allah Ditta asked accused Jehangir to help him as he intended to kill the boy. Jehangir showed his willingness. Then on 5-8-2005, as per plan, they took Waqas from the quarter of Qutubuddin and reached at the quarter of Allah Ditta where they offered juice to the boy by mixing intoxic medicine. After drinking the .Juice Waqas felt trembling and slept. He put his hand on the face of Waqas who expired in unconscious condition and his face below the eyes became black. In the meantime, Allah Ditta went outside. After Waqas had expired, Allah Ditta put his dead body in a sack which was held by Jehangir. Then by transporting the said sack in a rickshaw they reached at the evolute's bridge and threw his dead body in the revolute.
25. Thereafter, they returned to the house of Qutubuddin and searched Waqas whole the night with Qutubuddin but failed as he had already expired. Thereafter, Allah Ditta went to Punjab. After sometime Qutubiddin's family brought him back by capturing from Punjab on suspicion. Thereafter he confessed before the police and also disclosed name of Jahangir and both of them were arrested. He further stated that he was feeling shame on what he did but, according to him, whatever he did, was done on the instigation of Allah Ditta as it was the matter of his honour. Allah Ditta left him with the boy by locking the door and compelled him to do such job.
26. ' His confessional statement was recorded by P.W.4 Erum Jehangir, Civil Judge and Judicial Magistrate. She in her statement deposed that she asked both the accused i.e. Allah Ditta and Muhammad Jehangir whether they were willing to give their confessional statements to which both of them replied in positive. She gave the accused one hour time for relaxation. Thereafter firstly statement of Allah Ditta was to be recorded. All necessary questions were put to him, however when she introduced herself to be the Magistrate and informed him that his statement can be used against him, Allah Ditta replied that he did not want to give any confessional statement and that he was giving his statement due to fear of the police because police had maltreated him.
27. Thereafter confessional statement of accused Jehangir was recorded. Prior to recording his statement, all necessary questions including the above-noted last question were put to him and he showed his willingness to get his statement recorded, as such his statement was recorded by her. She appended her signatures on the statements and issued the required certificates and remanded both the accused to judicial custody. In the cross-examination defence did not put any question regarding any irregularity in the process of recording the confessional statement of accused Muhammad Jehangir. The only question put was as to whether accused Jehangir gave his statement in presence of police and complainant to which she replied in negative.
28. ' In this view of the matter, the confessional statement of accused Muhammad Jehangir appears to be voluntary which corroborates the prosecution case. Defence has not been able to show any irregularity having been committed by the Judicial Magistrate while recording the confessional statement, as such the same cannot be discarded and is an important piece of evidence.
29. ' So far as the case-law relied upon by learned counsel for the appellants is concerned, there is no cavil to the propositions laid down in the cited decisions, however, it is well settled that each case is to be decided on its own merits. The cited decisions are not attracted to the facts of the present case, hence distinguishable.
30. ' The upshot of above discussion is that the prosecution has succeeded in proving its case beyond reasonable doubt, as such the appellants have rightly been convicted and sentenced vide the impugned judgment which requires no interference by this court. Consequently both the appeals are dismissed and the judgment of conviction is maintained.