RAJA SAEEO AKRAM KHAN, J. The captioned appeal has been addressed against the judgment of the Shariat Court dated 28.12.2011, whereby the appeal filed by the convicts-appellants has been dismissed and the murder reference has been answered in affirmative.
2 Facts forming the background of the case are that a case under Sections 302, 34. 201, APC, was registered at police station, Dudyal on the complaint of Haji Sharf-ud-Din. It was reported by the complainant that his cousin is missing since 21st/22nd January, 2002. The complainant failed to find out his whereabouts and requested the police to search for him. During the investigation it was disclosed by the residents of the locality that Muhammad Akram's wife Mst. Sakina Bibi was having illicit relations with Muhammad Pervaiz. On 02.02.2002, both the suspects were interrogated. They confessed about the illicit relations and told the police that they had planned to kill Muhammad Akram. On 21.01.2002 at about 11:30, p.m., when the deceased was sleeping they were murdered him by inflicting hatchet blows and thereafter buried the dead-body near to north wall of the residential room of the deceased's house.
3. After registration of the case, the matter was thoroughly investigated and challan was presented in the Additional District Criminal Court, Dadyal, camp Mirpur. On completion of the trial, the learned Additional District Criminal Court, Dudyal camp Mirpur vide judgment dated 17.01.2007 convicted the accused and awarded the death sentence as 'Tazir' under Sections 302(b) and 34, APC. The convicts were also awarded the sentence of 5 years' rigorous imprisonment alongwith fine of Rs. 5000/- each under Sections 201 and 34, APC. The convicts were also ordered to pay the compensation to the tune of Rs. 20,000/-each, under Section 544, Cr.P.C., to the legal heirs of the deceased. The benefit under Section 382-B, Cr P.C., was also extended to the convicts.
4. Feeling aggrieved from the judgment of the Trial Court dated 17.01.2007 the convicts-appellants filed an appeal before the Shariat Court for acquittal, whereas. The trial Court also filed a reference before the Shariat Court for confirmation of death sentence awarded to the convicts-appellants.
The learned Shariat Court vide impugned judgment dated 28.12.2011 dismissed the appeal filed by the convicts-appellants for acquittal, whereas, the murder reference filed by the Additional District Criminal Court was answered in affirmative. Hence, the instant appeal filed by the convicts- appellants.
5. Ch. Muhammad Mehfooz, Advocate, the learned counsel for the convicts-appellants argued that both the Courts below have failed to appraise the evidence in its true perspective. He further argued that this is not a case of direct evidence rather the whole case is based on circumstantial evidence. The circumstantial evidence cannot be relied without strong corroboration. Under the police custody recovery of dead-body on the pointation of accused is not admissible in evidence.
He further argued that all the witnesses are interested and their testimony cannot be believed for recording the capital punishment. He contended that motive established by the prosecution has not been proved and in absence of that the capital punishment is too harsh. He further contended that all the prosecution witnesses made the statements in different manners and full of contradictions which cannot be overlooked. The recovery of crime weapon is highly doubtful as in the F.I.R. It is alleged that the deceased was murdered while giving hatchet blows, whereas, the axe has been recovered which itself shows that the recovery is fake in nature. He further contended that the site-plan also does not support the prosecution version. The extra-judicial confession which made the basis for the capital punishment is weakest type of the evidence. He submitted that no statement under Section 164, Cr.P.C., was recorded. He further submitted that the room from where the dead-body was recovered was locked and opened with key, but no lock and key were recovered which itself create doubt in the prosecution story and even a smallest doubt must be extended to the accused.
6. On the other hand, Mr. Muhammad Younas Tahir, Advocate, the learned counsel for the complainant, strongly refuted the arguments advanced by the learned counsel for the convicts- appellants. He submitted that the prosecution narrated a natural story and there is no padding and improvement in the evidence. He argued that all the prosecution witnesses are independent as no enmity come on the record to falsely implicate the convicts-appellants. He further argued that the motive setup by the prosecution for the murder has been proved. He contended that although this is a case of circumstantial evidence, but the prosecution successfully connected all the links of the facts with each other and no link has been disconnected, The recovery of dead- body on the pointation of convicts-appellants is a strong piece of evidence which is further corroborated with the medical and other evidence brought on the record. He further contended that all the PWs made the statements in line with each other and even after the lengthy cross- examination the defence failed to shake the confidence of the witnesses. He submitted that the discrepancies pointed out by the learned counsel for the convicts-appellants are minor in nature which can be ignored. He further submitted that while making statements under Section 342, Cr.P.C., no enmity regarding false implication in the offence has been alleged by the convicts- appellants. He maintained that the Courts below thoroughly examined the prosecution evidence and rightly came to the conclusion that the prosecution has successfully proved the case against the convicts-appellants. He further submitted that there is no mitigation, therefore, the Trial Court was fully justified to award the capital punishment which was confirmed by the learned Shariat Court. He lastly argued that it is a celebrated principle of law that once a case has been proved the normal penalty should be awarded, therefore, the convicts-appellants do not disserve for any lenient view.
7. Mr. Muzaffar Ali Zaffar, the Additional Advocate-General, while adopting the arguments advanced by the learned counsel for the complainant argued that there are concurrent findings recorded by both the Courts below after due appreciation of evidence which cannot be disturbed.
He further argued that the convicts-appellants failed to bring any thing on the record in defence.
The recovery of dead-body is a strong piece of evidence which has been recovered on the pointation of the convict-appellants. He contended that the prosecution has proved the case by overwhelming evidence. No allegation from defence side regarding animosity of the witnesses with the convicts came on the record. The prosecution witnesses are quite independent and their testimony cannot be discarded on the ground of relationship.
8. We have heard the arguments of the learned counsel for the parties and gone through the record minutely alongwith the impugned ,judgment. This is a case of murder of one Muhammad Akram whose dead-body was recovered on the pointation of convicts-appellants, after 11 days of occurrence. It is not a case of direct evidence and whole case is based on circumstantial evidence.
We are aware that in the case of circumstantial evidence the principle for appraising the evidence are quite different as compared to the direct evidence. In the circumstantial evidence it is duty of the prosecution to establish that every link of the facts interconnected like a chain. If a single link is disconnected it will spoil the whole case. There is no bar for recording the capital punishment if all the links are connected with each other. Reliance can be placed on a case reported as Munawar Hussain and 2 others v. Imran Waseem and another [2013 SCR 374] wherein it has been held that:-- - "7. Admittedly, this is a case of unseen occurrence and the whole case hangs on the circumstantial evidence. Originally nobody was nominated in the F.I.R. It was lodged after a considerable delay and in this regard no explanation has been brought on the record. Although, there is no bar on recording conviction on the basis of the circumstantial evidence but for that purpose the principles settled by the superior Courts must be kept in mind while analyzing the evidence. Even, death penalty can also be awarded on circumstantial evidence but it should be beyond any shadow of doubt. The chain of facts be such that reasonable inference can be drawn that the accused has committed the offence. All the facts established should be consistent only with the hypotheses of guilt of the accused. Lf any link is missing that will destroy the whole lings of such evidence and all the links of the circumstances must lead to the guilt of the accused. It is not a such type of evidence, but it is sufficiency and quality which matters. The circumstantial evidence should be so interconnected that it forms such a continuous chains that its one end touches the dead-body and the other the neck of the accused thereby excluding all hypothesis of his innocence....
9. The first link of the chain of facts is the recovery of dead-body of the deceased which has been made on the pointation of the convict-appellants. According to the prosecution story, the dead- body was buried in the room belonged to the deceased. During the investigation the convicts- appellants made the confession that they murdered the deceased as he was the main hurdle in the illicit relations between them. Thereafter, the investigating agency alongwith convicts proceeded for recovery of deadbody on 02.02.2002. The statement made before the- police is admissible in evidence subject to fulfilment of the requirements of Article 40 of the Qanoon--e- Shahadat Order. 1984, which reads as under.- "40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
From bare reading of Article 40, it transpires that any information conveyed or disclosed by an accused to a police officer which actually leads to the discovery of some fact which fact was unknown to the police officer before such disclosure was made or information was conveyed or for the first time was derived from the accused: and further that the discovery of the fact related to the commission of the offence. Then such information whether it amounts to confession or not may be proved. The information or disclosure of the accused in custody of a police officer would be admissible as evidence if in consequence thereof something relating to the commission of the crime is recovered. Even a statement made by way of confession which distinctly relates to the fact discovered is admissible in evidence against the accused. Now keeping in our mind, the principle laid down in Article 40 of the Qanoon-e-Shahadat Order. 1984, we have scrutinized the evidence as to whether the recovery has been made in accordance with the provisions of this Article or not It would be advantageous to reproduce the relevant portion of recovery memo. Exh.DD, which speaks as under:--- [(Urdu Text)] After recovery of dead-body the dead-body was identified by 1 Sharaf-ud-Din and Muhammad Siddique and its autopsy was conducted. After going through the post-mortem report, it appears that the injuries were caused by a sharp-edged weapon. After this piece of evidence which is the second link of the chain it would be immaterial to discuss that whether the hatchet was recovered or axe, as it make no difference, admittedly both are sharp-edged weapon. Therefore, the reccvery of crime weapon which cannot be said to be recovery of dead-body is further corroborated with the doubted merely on the ground that the recovery witnesses are related. The argument of the learned counsel for the convicts-appellants in this regard is ill-founded as mere relationship is no around for discarding the evidence of related witnesses until and unless any or enmity against the accused is proved for their false implication. Nothing came on the record that there was any enmity of the witnesses with the convicts-appellants to falsely implicate them As in F.I.R. No one was nominated by the complainant and later on during the investigation the convicts-appellants themselves disclosed regarding the murder of deceased and on their pointation the dead-body was recovered. Therefore, recovery of crime weapon cannot be disbelieved. Reliance can be placed on a case reported as Liaqat Hussain & another v. Ulfat Khan & another [2007 SCR 39], wherein it has been observed:--- "It has no substance for the reason that it is well-settled principle of law that mere relationship of witnesses is no ground for discarding the evidence unless and until the enmity with the accused person is established."
10. It is also evident from the record that information received through accused was not in the knowledge of the police officer before the recovery of the dead-body. The discovery is based on the information furnished by 'the convicts-appellants led to the recovery of dead-body from the room owned by the deceased. There is no doubt about it that prior to information furnished by the convicts-appellants the whereabouts of dead-body were not known to anyone. In these circumstances the evidence cannot be discarded. The dead-body was duly identified by the PWs, therefore, there is also no doubt about the identification of the dead-body.
11. While attending the defence taken by the accused, Sakina Bibi that she is innocent and at the time of occurrence she was in Sargodha, it may be observed that according to the record immediately after the occurrence she proceeded to Sargodha for which she has not offered any explanation. If it is presumed, that the accused at the time of occurrence was at Sargodha even then the surprising aspect of the case is that after coming to know about the disappearance of her husband she did not take any measures for his search or lodged any report. The stand taken by the accused in the light of her own conduct and the record is not tenable.
12. So for the argument of the learned counsel for the convicts-appellants regarding the site plan is concerned, it may be observed that in uncounted judgments from the Pakistan jurisdiction as well as Azad Jammu and Kashmir it is held that site plan is not a substantive piece of evidence and in case the other convincing evidence is available the same can be ignored. Therefore, the argument of the learned counsel has no substance and the same is hereby repelled. We are fortified in our view by a case reported as Arshad Mahmood & another v. The State & another [2010 SCR 75], wherein it has been observed:--- ........................... We observe that the site-plan is not a substantive piece of evidence and cannot be used to contradict or discard unchallenged ocular testimony. The only purpose to prepare the same is to appreciate or explain the evidence on the record and cannot be given preference on direct evidence of credible eye-witnesses. Same is the position of other confirmatory and secondary evidence."
13. So for as the contention of the learned counsel regarding the motive is concerned, the motive setup by the prosecution is that the cause of the murder was illicit relation of deceased's wife with the accused, Muhammad Pervaiz and the deceased had disclosed this fact to Muhammad Latif.
However, the said PW did not disclose the same before any other person and the deceased did not take any measures to stop the accused from involvement of such illegal activities. The convicts- appellants while appearing before the Court for recording their statements under Section 342, Cr.P.C., has not levelled any allegation that they have been in roped in the case due to animosity, etc. Even the convicts-appellants did not opt to record their statements under Section 340, Cr.P.C., on oath and no evidence in defence has been produced. In this situation, both the Courts below have rightly relied upon the prosecution witnesses as the prosecution succeeded to connect all the links of the facts with each other while making a chain. As it is a case of circumstantial evidence and there is no bar for recording the capital punishment but one fact which clicks in our minds is that the manner in which the occurrence took place remained behind the curtain and to that extent the story is shrouded in mystery. As one of the PW namely, Muhammad Latif, has stated that the husband of co-accused was aware about the illicit relations between the convict-appellants but nothing has come on the record that despite knowing this fact why he remained mum and did not take any measures. According to the said PW the deceased asked the convict-appellants to refrain from illegal activities and on this they threaten him, but no report has been lodged by the deceased. All these aspects of the case leads us towards the. Fact that something was there which remained out of picture and prosecution failed to bring the same on the record. If such-like situation emerged then the Courts always seriously consider the quantum of sentence and reluctant to award the death sentence rather to award the alternative sentence of life imprisonment. Our this view find support from an unreported judgment of this Court in a case titled Shaukat Khan v. The State (Criminal Appeal No. 1 of 2011 decided on 10.01.2013), wherein it has been observed that:- "10. We have come to the conclusion that the correct picture of the occurrence has not been placed before the Court and prosecution tried to suppress that what had happened prior to the occurrence, especially the manner in which the occurrence took place. It cannot be said with certainty that what sort of situation arose before the occurrence in the result of which Sajid, deceased, was murdered. Therefore, we can safely hold that the manner in which the occurrence took place is shrouded in mystery for which the accused-appellant is entitled to the lesser punishment..."
This view is further fortified from another case reported as Mst. Fazal Begum & 2 others v.
Muhammad Yaseen and another [2013 SCR 389], wherein it has been held that:--- "20. After above analysis of the evidence, in our considered opinion, although the prosecution has established the firing by the accused, Razzaq, which resulted into death of Jahangeer, deceased, but the exact part of the story and scene of firing in the light of the analyses of the prosecution evidence specially the variation in the statements of the prosecution witnesses, remains cloudy.
Keeping in view the admitted relationship of some of the prosecution witnesses with the deceased, the capital punishment is too harsh, therefore, we deem that a sentence of 14 years' imprisonment will meet the ends of justice..."
14. After thorough examination of evidence produced by the prosecution we are of the view that the prosecution has produced unrebuttable strong circumstantial evidence against the accused in the form of recovery of dead-body, evidence of recoveries, medical evidence and inculpatory extra- judicial confession made by the accused. The evidence leads to the irresistible conclusion that the convicts-appellants have committed the murder of the deceased. However, while keeping in view the fact which has been discussed in the preceding para we are intended to modify the impugned judgment while converting the sentence of death into life as the life imprisonment is also a legal and normal punishment provided by law. Our this view find support from a recent judgment of this Court in the case titled Ansar Mehmood & another v. Manazir Hussain & others, (Criminal Appeal No. 24 of 2009, decided on 3.12.2013), wherein it has been observed that:---
14. The perusal of the judgment of learned Shariat Court reveals that in the opinion of Shariat Court, only the death sentence is a normal penalty. But in our opinion, in view of clear statutory provision the punishment of death or life imprisonment as 'Ta'zir' are alternate sentences, hence, both can be treated as normal sentences. Our this view finds support from the latest judgment of the apex Court of Pakistan handed down in the case reported as Hassan and others v. The State and others [PLD 2013 SC 793]. It will be useful to reproduce here the relevant portion of the judgment which speaks as under:--- '23. Upon the strength of the provisions of sub-section (5) of Section 367, Cr.P.C., it has been maintained before us that the normal sentence for an offence of murder is death and while considering a prayer for reduction of a sentence of death passed against a convict this Court may remain mindful of that statutory stipulation. We have found such a submission to be suffering from multiple misconceptions. Sub-section (5) of Section 367, Cr.P.C. Provides as follows:---
(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, then the Court shall in its judgment state the reason why sentence of death was not passed.'
We have not been able to find anything in the said provision of law even hinting at the sentence of death being the normal sentence in such a case. Section 302(b), P.P.C. Clearly provides for two alternative sentences, i.e. Sentence of death or sentence of imprisonment for life for the offence of murder and it does not state that any one of those sentences is to be treated as the normal sentence. As a matter of fact Section 302(b), P.P.C., itself mentions that any one of the two alternative sentences provided for therein is to be passed "having regard to the facts and circumstances of the case". There are cases wherein "the facts and circumstances of the case" do not warrant a sentence of death and what is required by sub-section (5) of Section 367, Cr.P.C. Is that such facts and circumstances of the case ought to be mentioned by the Trial Court in its judgment so that the higher Courts may straightaway become aware of the same while entertaining or deciding a challenge thrown against the Trial Court's judgment. We believe that the general misunderstanding or misconception about the true import of the provisions of sub-section
(5) of Section 367, Cr.P.C. Entertained by the legal community, including the Courts, in this regard needs to be removed and rectified. The other misconception about sub-section (5) of Section 367, Cr.P.C. Is that it is considered to be applicable to the entire hierarchy of Criminal Courts whereas that is not the case. Subsection (5) of Section 367, Cr.P.C. Is placed in Chapter XXVI of Part VI of the Code of Criminal Procedure, 1898 and Part VI of the Code pertains only to 'Proceedings in Prosecutions' before a Trial Court. The matters pertaining to the appellate and revisional Courts are provided for in Part VII of the Code and that Part of the Code does not contain any provision akin or similar to that of sub-section (5) of Section 367, Cr.P.C. It is, thus, evident that the requirements of sub-section (5) of Section 367, Cr.P.C. Are relevant only to Trial Court and they have no application to an appellate or revisional Court. The provisions of Section 423(1)(b), Cr.P.C. Unambiguously show that it is well within the powers of an Appellate Court seized of an appeal against conviction to reduce the sentence of a convict and the requirement relevant to a Trial Court, as contained in sub-section (5) of Section 367, Cr.P.C., is not to be found in Section 423(1)(b), Cr.P.C. The powers conferred upon a revisional Court under Sections 435 and 439, Cr.P.C. Also clearly demonstrate that while exercising revisional jurisdiction a sentence can be reduced and, again the requirement relevant to a Trial Court, as contained in sub-section (5) of Section 367, Cr.P.C., is not to be found in Section 435 and 439, Cr.P.C. It, therefore, goes without saying that when an appellate or revisional Court is considering a question of propriety or otherwise of a sentence passed against a convict the provisions of sub-section (5) of Section 367, Cr.P.C. Cannot be pressed into service before it and any question of the sentence of death being the normal sentence is hardly relevant before the appellate and revisional Courts.
Thus, in the light of the statutory provisions as well as principle of law enunciated by the apex Court of Pakistan, it can safely be concluded that in the punishment as "Ta'zir" for qatl-i-amd, the sentences of death and life imprisonment are alternative and both are normal sentences."
From the survey of above-referred case-law, we reaffirm the view that the sentence of death as well as life imprisonment both are normal sentences.
In the light of what has been discussed above, the death sentence is altered into life imprisonment while maintaining the conviction. The benefit of Section 382-B, Cr.P.C., shall remain available to the convicts-appellants. With these observations this appeal stand disposed of.