' MUHAMMAD JEHANGIR ARSHAD, J.---Appellants Imran Ali and Najam-ul-Hassan have through this Criminal Appeal No,190/L of 2007 challenged the judgment dated 17-9-2007 delivered by Raja Pervaiz Akhtar, learned Additional Sessions Judge, Mandi Bahauddin whereby they were convicted under section 302(b) of Pakistan Penal Code and sentenced to life imprisonment each with compensation of Rs,100,000 (Rupees one lac) each to be paid to the legal heirs of the deceased or in default thereof to further undergo six months' simple imprisonment each. They were also convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to ten years' rigorous imprisonment each with fine of Rs,50,000 each or in default thereof to further undergo six months' simple imprisonment each. They were further convicted under section 377 of Pakistan Penal Code and sentenced to ten years' rigorous imprisonment each with fine of Rs,50,000 each or in default thereof to further undergo six months' simple imprisonment each. They were also convicted under section 201 of the Pakistan Penal Code and sentenced to five years' rigorous imprisonment each with fine of Rs,50,000 each or in default thereof to further undergo six months' simple imprisonment each. All the sentences were ordered to run concurrently with benefit of section 382-B of the Code of Criminal Procedure.
' Complainant Ahmed Yar has also filed Criminal Revision No,56/L of 2007 for enhancement of sentence of the appellants, which is being disposed of through separate judgment of even date.
2. The prosecution case in brief is that on the statement of complainant Ahmad Yar P.W.11, F.I.R.
No,150, dated 21-2-2006 Exh.PH was registered at Police Station, Kuthiala Shaikhan, District Mandi Bahauddin wherein he stated that on 20-2-2006 at about 2-30 p.m. He along with his son Ahmad Husnain and wife Mst. Kaneez Fatima was present in his house. Accused Imran Ali came there and took Ahmad Husnain deceased to his Haveli but he did not return home till evening upon which the complainant inquired from Imran Ali accused about his son who told him that Ahmad Husnain went back after cleaning the Haveli. During search the complainant met with Manzoor Ahmad and Khalid Mehmood near Jamia Mosque Noor Walayat who informed him that they had seen accused Imran Ali and Najam-ul-Hassan along with an unknown person taking away the dead body of Ahmad Husnain on a red colour motorcycle Honda CD-70 from Dawakhana of Faiz-ul-Hassan. On seeing them accused Imran threatened them on pistol point that in case they came near he would kill them. Then the accused put the dead body on the motorcycle and proceeded towards East. The complainant further stated that the motive of the occurrence was that accused Imran Ali and Najam-ul-Hassan used to persuade his son for carnal intercourse but his son was not agreeing and he told this fact to the complainant. The complainant further stated that the accused murdered his son in furtherance of their common intention.
3. Investigation ensued as a consequence of registration of crime report. Mukhtar Ahmad, Assistant Sub-Inspector P.W.14 undertook the investigation. He arrested accused Imran Ali and Najam-ul- Hassan on 27-2-2006 and on the disclosure of the accused persons dead body of Ahmad Husnain was recovered from Gujrat branch canal in the presence of Bashir and Saif P.Ws. He prepared visual site plan of the place of recovery Exh.PJ, inspected the dead body, prepared inquest report Exh.PM, injury statement Exh.PN and sent the dead body to mortuary of DHQ Hospital, Mandi Bahauddin through Muhammad Mansha, Constable. He took into possession last worn clothes of the deceased i,e, Shalwar P.2, Qameez P.3, five pieces of string P.4/1-5 along with one phial and relevant papers through recovery memo Exh.PA which were produced before him by Muhammad Mansha, Constable. He recovered blood-stained Danda P.6 from the premises of Darbar situated in Kot Nawab Shah on the pointation of accused Imran Ali which he took into possession through recovery memo Exh.PB, prepared site plan of place of recovery Exh.PB/1 and recorded statements of Masheer/P.Ws. Of recovery memo under section 161 of the Code of Criminal Procedure. On 10-3- 2006 during investigation he recovered motorcycle P.8 on the disclosure of Imran Ali accused from the premises of Darbar situated in Nawab Shah and prepared site plan of place of recovery Exh.PG/1. He, on the disclosure of Najam-ul-Hassan accused, recovered blood-stained Chadar P.7 used for carrying the dead body from the place of occurrence to canal bridges which was taken into possession through recovery memo Exh.PF. He prepared site plan of place of recovery Exh.PF/1.
He, on receipt of report of Chemical Examiner Exh.PD, added offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. He recorded statements of Mukhtar Ahmad, Moharrir and Muhammad Mansha, Constable regarding the safe transmission of the parcels to the concerned offices on 5-4-2006. During investigation he found accused Imran Ali and Najam-ul- Hassan fully involved in the case whereas Faiz-ul-Hassan accused was not found involved in the case. His investigation was duly verified by DSP, Investigation. After completion of investigation, he submitted report under section 173 of the Code of Criminal Procedure through Tariq Mehmood, Station House Officer, before the Court on 23-4-2006 requiring the accused to face trial.
4. The learned trial Court framed the charge against all the three accused on 15-8-2006 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 34 of the Pakistan Penal Code and under sections 377/34, 201 and 302/34 of the Pakistan Penal Code. The accused did not plead guilty and claimed trial.
5. The prosecution in order to prove its case produced 14 witnesses at the trial. The gist of the deposition of the witnesses need not be reproduced as the same is already mentioned in detail in the impugned judgment. However, the prosecution evidence shall be examined, assessed and discussed in this judgment, wherever required.
6.After recording of prosecution evidence including documentary evidence i,e, report of Chemical Examiner Exh.PQ relating to Chadar, report of Chemical Examiner Exh.PR relating to blood-stained earth and report of Chemical Examiner Exh.PS relating to Danda. Thereafter, the prosecution closed its evidence on 19-6-2007. Thereafter, the learned trial Court recorded statements of the accused persons under section 342 of the Code of Criminal Procedure on 10-7-2007. The accused/present appellants denied the allegations levelled against them and in reply to question No,15, "Why this case is against you and why the P. Ws. Have deposed against you? All the accused including the appellants got recorded similar replies as follows.
"The P. Ws. Are closely related inter se. I have been falsely roped in this case. The deceased was murdered by some unknown persons. The complainant party roped me and other accused in order to blackmail us".
6. The appellants neither appeared as their own witnesses under section 340(2) of the Code of Criminal Procedure nor lead any defence evidence.
8. The learned trial Court, after completion of the trial, convicted and sentenced the appellants as mentioned in opening paragraph of this judgment but acquitted co-accused namely Faiz-ul- Hassan from the charges. Hence, this appeal.
9. Learned counsel for the appellants inter alia submitted:--
(i) All the P.Ws. Are admittedly related inter se, hence being interested witnesses were wrongly believed by the learned trial Court.
(ii) The prosecution story as well as evidence is full of doubts and the appellants deserve benefit of doubt.
(iii) The prosecution witnesses are inconsistent and do not corroborate each other.
(iv) No witness of extra-judicial confession as disclosed by P.W.11 Ahmad Yar complainant in his cross-examination has been produced by the prosecution to corroborate to P.W.11 Ahmad Yar complainant. Further, P.W.11 Ahmad Yar complainant said nothing about so-called extra-judicial confession in his examination-in-chief.
(v) Finally, except medical evidence, the remaining prosecution evidence does not connect the appellants with the commission of offence, therefore, according to the learned counsel for the appellants, this being a doubtful case, the benefit thereof should be given to the appellants.
Learned counsel for the appellants in support of his contention has placed reliance on the judgment of apex Court reported as 1995 SCMR 1345 as well as of this Court in 2013 YLR 15.
10. On the other hand, learned counsel for the complainant submitted that:---
(i) The prosecution case is mainly based on circumstantial as well as last seen evidence and the defence failed to come up with any sufficient ground for their false involvement. Even, in their statement under section 342, Cr.P.C., the appellants while answering question No,15 noted above said nothing plausible for their false involvement, except that the P.Ws. Were related inter se.
(ii) The medical evidence coupled with recovery of dead body on the pointation of appellants and further recovery of motorcycle from Imran Ali and blood-stained Chadar from Najam-ul-Hassan accused-appellants leave no doubt, regarding the involvement of the appellants in the commission of offence.
(iii) The MLR as well as Chemical Examiner report fully established the commission of sodomy with the deceased by the appellants.
(iv) Finally in the presence of creditworthy statement of P.Ws., there was no chance of false implication of appellants, when the complainant, P.Ws. And the accused lived in the same vicinity, especially with regard to identity of the appellants.
11. Learned DPG Punjab for State in support of his arguments submitted that it is established from the evidence that the accused were seen with the dead body by the P.Ws. And there was no mala fide or padding on the part of the prosecution to involve the accused/appellants merely on the basis of suspicion as alleged by the learned counsel for the appellants.
12. We have examined the above-noted contentions of the learned counsel for the parties and have also minutely examined the record by going through the entire evidence.
13. At the beginning, we would like to deal with the case of Najamul-Hassan appellant first, as according to our view, he was wrongly convicted and sentenced under section 302(b) of the Pakistan Penal Code as well as under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 and under section 377 of the Pakistan Penal Code without any iota of evidence. Only allegation against Najamul-Hassan appellant in the F.I.R. As well as the evidence of P.Ws. Is that he was seen engaged in transporting the dead body of Ahmad Husnain victim, but there is no evidence against him that he either participated in the commission of murder of the deceased or committed sodomy with him. From the perusal of entire evidence, the only conclusion which we can draw with regard to his role is that he committed the offence of removing and causing disappearance of the dead body of Ahmad Husnain in order to screen Imran Ali accused/appellant from legal punishment within the meaning of section 201 of the Pakistan Penal Code, therefore, we firmly believe that his conviction under section 302(b) of the Pakistan Penal Code and under section 377 of the Pakistan Penal Code read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was not called for and the same was not justified by prosecution evidence.
14. Resultantly, we are inclined to accept this appeal to the extent of conviction recorded and sentence awarded by the learned trial Court to Najam-ul-Hassan under section 302(b) of the Pakistan Penal Code and under section 377 of the Pakistan Penal Code read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and acquit him from the said charges. However, from the perusal of evidence on record, it is established beyond any shadow of doubt that he actively participated along, with Imran Ali accused/appellant in causing disappearance of the dead body of Ahmad Husnain in order to screen off Imran Ali accused/appellant from the legal consequences. His involvement in this respect is fully established from the evidence of Manzoor P.W.6 which has not been disproved or shaken by the defence in cross-examination. Accordingly, we hold that the learned trial Court rightly convicted Najam-ul- Hassan appellant/accused under section 201 of the Pakistan Penal Code and awarded him appropriate punishment of five years' R.I. Along with fine of Rs,50,000 or in default thereof to further undergo S.I. For six months, hence the same is maintained and to this extent, his appeal is dismissed.
15. So far as the case of Imran Ali accused/appellant is concerned, we again find that he was wrongly convicted and sentenced under section 201 of the Pakistan Penal Code because he committed murder of Ahmad Husnain deceased, therefore, could not be equally held guilty of charge under section 201 of the Pakistan Penal Code. In this respect, we are fortified by a Division Bench judgment of Peshawar High Court Peshawar in the case of Gulzar Khan v. The State PLD 1963 (PLD 1963 (W. P.) Peshawar 178 the relevant portion of the said judgment at P.189 is reproduced below:-- "There are authorities for the view that when the murderer himself tried to screen the offence and removes the evidence of his he cannot be convicted under section 201, P.P.C. 1 any precedent is needed, Farid Muhammad v. The State (1) can be referred to with advantage.. In this judgment it has been laid down "that it has been admitted by the learned counsel appearing for the State that the conviction of the accused-appellant under section 201, P.P.C. Cannot be sustained, because a person cannot both be convicted of murder and for concealing evidence of murder".
15. Resultantly, the conviction of Imran Ali accused/appellant under section 201 of the Pakistan Penal Code is set aside and he is acquitted of the charge. Similarly, we find that after convicting Imran Ali accused/appellant under section 377 of the Pakistan Penal Code, there was hardly any occasion for the learned trial Court to convict and sentence him under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, simultaneously, because the appellant never abducted or kidnapped Ahmad Husnain. According to evidence available on record) Ahmad Husnain voluntarily accompanied Imran Ali/appellant to his "havaili" in order to unfasten their goats, Hence, the necessary ingredients for constituting an offence falling within the mischief of section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 were not available in the evidence of the prosecution. Resultantly, the conviction of the appellant Imran Ali under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 is not sustainable and the same is set aside and his appeal to this extent is allowed.
17. So far as the commission of offence under section 377, P.P.C. By Imran Ali/appellant is concerned, it is fully proved by the medical Legal Report coupled with the report of Chemical Examiner, which is in positive. According to the post mortem report Exh.PM, which is prepared and proved by P.W.7 Dr. Umar Murtaza is as under:- "Examination of anal region: Two lacerations each size " 1.5 x .3 c. m. At 5 and 7 O'clock with laxed external s hincter and abrasion all inner mucusa 2 c. m. Len th o anal canal. Colour of mucusa was redish. One external and one internal anal swabs were taken and sealed in a vial. On dissection."
' Further, the swa bs obtained by P.W.7 Dr. Umar Murtaza and sent to Chemical Examiner also confirm the same to be stained with semen. The defence has not been able to shake this evidence as well as the report of Chemical Examiner. Hence, we are satisfied that the learned trial Court rightly convicted and sentenced the appellant/Imran Ali for the commission of offence under section 377, P.P.C, therefore, the same is maintained.
18. So far as the conviction and sentence of the appellant/Imran Ali under section 302(b), P.P.C. Is concerned, we have minutely examined the prosecution evidence consisting of P.W.11 Ahmad Yar complainant as well as PW.4 Muhammad Riaz and P.W.6 Manzoor Ahmad, who are witnesses of last seen evidence. The evidence of said P.Ws. Is in line with prosecution story and except some minor inconsistencies in the evidence of these P.Ws., the defence has not been able to shake their veracity, especially when the accused was already known to them, being the resident of the same locality and there was no doubt about the identification of accused/appellant Imran Ali. Even otherwise, the appellant/Imran Ali in his statement under section 342, Cr.P.C. While answering question. No,15 Why this case is against you and why the P. Ws. Have deposed against you? said nothing substantial except that the P.Ws. Being closely related inter se falsely roped him in this case. The defence has also not taken any plea to satisfy the Court for the false implication of the appellant. Further, the F.I.R. Was got lodged with promptness and the appellant was nominated in the F.I.R. It is also established by the prosecution evidence that the dead body was recovered at the pointation of Imran Ali accused/appellant. Similarly, motorcycle vide recovery memo Exh.PG used for transporting the dead body vide recovery memo Exh.PL was also got recovered at the pointation of Imran Ali accused/appellant. Further, Danda vide recovery memo Exh. PB used in the commission of offence was also got recovered by the Imran Ali accused/appellant vide recovery memo Exh.PB/1. The ownership of said motorcycle is not denied by the Imran Ali accused/appellant. In the presence of above noted evidence coupled with medical evidence in the form of postmortem report and the statement of P.W.7 Dr. Umar Murtaza, we are in agreement with the finding of the learned trial Court holding the appellant/accused Imran Ali guilty of an offence falling under section 302(b), P.P.C., which is neither illegal nor against the evidence on record and as such, the same is accordingly maintained.
19. Resultantly, this appeal is decided in the following terms:--
(i) Conviction and sentence of appellant Imran Ali under section 302(b), P.P.C. Is maintained. He is directed to pay compensation in the sum of Rs,100,000 to the legal heirs of the deceased and in default thereof he shall further undergo S.I. For six months. However, he is acquitted of the charges under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and under section 201, P.P.C., but his conviction and sentence under section 377, P.P.C. Shall remain intact. He shall also pay a fine of Rs,50,000 or in default thereof to further undergo S.I. For six months.
(ii) To the extent of Najam-ul-Hassan, his appeal regarding his conviction and sentence under section 302(b), P.P.C. Under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and under section 377, P.P.C. Is accepted and he is acquitted of the charges. However, his conviction and sentence under section 201, P.P.C. Is maintained.
' All the sentences shall run concurrently. The appellants shall also be granted benefit of section 382-B, Cr.P.C.
20. Above are the reasons of our short order dated 4-10-2013. #EndJudgment