RIAZAT ALI SAHAR, J.---Applicant Sadam has called in question the validity of order dated 28-1- 2013, passed by learned Special Judge for C.N.S., Sukkur in Special Case No, 6 of 2011, culminating from Crime No, 53 of 2011, registered with Police Station A-Section, Sukkur for offence under section 9(c) of C.N.S. Act, 1997, whereby an application moved by applicant under section 4(4) read with section 5 of the Juvenile Justice System Ordinance, 2000 (for short, the Ordinance) for declaring him as juvenile, was turned down.
2. Record reveals that the applicant moved an application under section 4(4) read with section 5 of the Ordinance before the trial Court claiming that he was child at the time of alleged recovery of contrabands and, therefore, his trial be conducted under the Ordinance. The learned trial Court, in accordance with the provision of section 7 of the Ordinance, ordered the Medical Examination of the applicant to be conducted. Consequently, a Medical Board was constituted, which, after due proceedings and tests, opined that the applicant Sadam is 20 years of age on 8-9-2012. Thereafter, the trial Court passed the impugned order.
3. Learned counsel for the applicant contended that since the applicant was arrested on 17-3-2011 and even if the medical opinion is taken as certain and correct, the applicant cannot be said to be definitely of more than 19 years of age on the date he was arrested.
4. Learned State counsel opposed the application and submitted that Medical Board has given an opinion that applicant's age was 20 years and, thus, in any case, he was more than eighteen years at the time of alleged recovery.
5. In case of Afsar Zamin reported in PLD 2002 Karachi 18, regarding aims of the Ordinance, the learned Judge observed as under:-- "....The Ordinance is aimed at extending protection to the children involved in criminal litigation and their rehabilitation in society. In a way, it safeguards the human rights of a section of society who deserve reasonable concession because of their tender age, therefore, the Ordinance is to be construed liberally in order to achieve the said object. In view of the figures 17/18 years and in absence of any medical report to the contrary the benefit arising out of the circumstances is to be extended to the applicant."
' And, thereafter, it was observed that the Ordinance, being aimed at safeguarding rights of a segment of society which due to tenderness of age, needs providing, firstly, protection, secondly, speedy justice and, thirdly, separation from mature and hardened criminals, is a piece of welfare legislation, aimed at ameliorating the lot of this weaker segment of the society. Another Division Bench of this Court, in Shamaal Khan Shah v. The State (2012 PCr.LJ 897), referred to Principle of Statutory Interpretation by Justice G.P. Singh (2004 Edition; Page 736) wherein it has been observed by the author as under:- "The ,rule as stated and explained above only means that if a section in a remedial statute is reasonably capable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to those in whose interest the Act may have been passed, and the doubt, if any, should be resolved in their favour. So in case of an exception which curtails the operation of beneficent legislation, the Court, in case of doubt, would construe it narrowly so as not to unduly expand the area or scope of exception."
' And, then, observed that in accordance with the principle, declared above, the law was to be interpreted in favour of accused and since the law was for his protection that could only be afforded to him if he was given the benefit by accepting lower of the age determined by the Medical Board.
' A Division Bench of this Court, in Yousaf v. The State (1975 PCr.LJ 936), observed that albeit the ossification test was a better guide to determination of age of a person, nonetheless, it could not be treated to be an accurate estimate and margin of one year on either side was possible. His Lordship Mr. Justice Tassaduq Hussain Jillani in the capacity of a single Judge of Lahore High Court (as his Lordship then was and now his lordship graces the Supreme Court), in the case of Abaidullah v. Sessions Judge, Jhang and others (2004 PCr.LJ 1881), where the age of the accused, according to the medical report, was between 19/20 years on the date of occurrence, observed that if margin of one year is given, the age comes between 18/19 years and, thus, declared the accused to be entitled to be juvenile.
6. Coming to the facts of the present case, it seems that on 8-9-2012, Medical Board has given opinion that age of the applicant is about 20 years. The alleged incident took place on 17-3-2011 i,e, 1 year, 5 months and 21 days prior to the date of medical examination and, as such, on the date the alleged offence took place, the age of the applicant was about 18 years 6 months and 9 days, therefore, he was aged about 18 to 19 years.
7. In view of the beneficial scope of the Ordinance, as has been observed in various cases, the provisions are to be interpreted liberally and that when two views are possible, one favouring the accused, has to be taken particularly qua the juvenility inasmuch as it can be proved to be helpful for his rehabilitation on account of aid of the Ordinance, the accused is held to be entitled to the benefit of a year's margin and he is declared as juvenile as such with the result that his trial is ordered to be separated from the case of the co-accused and he may be sent to the Juvenile Court.
8. Criminal revision application is allowed accordingly.
Revision allowed.
2014 P Cr. L J 545 [Peshawar] Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ.
ZAHIDULLAH---Appellant versus The STATE and another---Respondents Criminal Appeal No,27-B and Murder Reference No,1-B of 2008, decided on 28th November, 2013.
Penal Code (XLV of 1860)--- ----S. 302(6)- Qatl-e-amd--- Appreciation of evidence--- Motive of occurrence, which was family honour, had fully been proved---Guilt of accused had been proved from the confidence inspiring testimony of the eye-witnesses; which got support from accused's arrest from the spot, recoveries and report of experts---Case being of single accused, it was highly improbable to say that accused had been substituted with the real culprit---Charge against accused having been proved beyond any shadow of doubt, he had rightly been convicted---Case was not of grave and sudden provocation, but the offence was committed due to gharit/family honour---Normal penalty of death, would meet the ends of justice, in circumstances---Conviction and sentence of death awarded to accused, stood confirmed and murder reference was answered in affirmative.
[pp. 550, 5511 A, B & C Muhammad Amir v. The State PLD 2006 SC 283 rel. Khawaja Muhammad Khan Gara for Appellant. Saifur Rehman Khattak, A.A.-G. For the State. Ghulam Mohi-ud-Din Malik for Respondent No,2. Date of hearing: 28th November, 2013.
' SYED AFSAR SHAH, J.---This criminal appeal is directed against the judgment dated 11-3-2008, passed by the learned Sessions Judge, Karak, whereby Zahidullah, the appellant was convicted under section 302(b), P.P.C. And sentenced to death with a compensation of Rs,1,00,000 (one lac) payable to the LRs of the deceased or in default thereof to undergo six months' S.I. Further.
' Murder reference has also been put up before us for confirmation.
2. The story of prosecution as disclosed in the F.I.R. Exh.PA may briefly be narrated as follows:-- On 7-4-2007 at 2000 hours Muhammad Khalid (P.W.8), the complainant brought the dead-body of deceased Muhammad Addrees to Police Station Sabirabad, Karak and made a report to Gul Faraz Khan ASI (P.W.7) to the effect that:- [[URDU TEXT ]] 3 After writing report of the complainant, it was read over and explained to him, who after admitting it to be correct signed the same in token of its correctness, where after, Gul Faraz Khan ASI prepared the injury sheet and inquest report in respect of the deceased, and thereafter referred the dead-body for post mortem examination under the escort of Rahm Zaman FC.
4. Investigation was started in the case and on its completion, complete challan was submitted to the Court of learned Sessions Judge, Karak, against the accused Zahidullah. The learned trial Court on conclusion of trial convicted the appellant under section 302(b), P.P.C. And sentenced him to death with a compensation of Rs,1,00,000 (one lac) payable to the LRs of the deceased or in default thereof to undergo six months' S.I. Further, vide judgment dated 11-3-2008 and aggrieved from the same the appellant filed a criminal appeal in this court, which was accepted, resultantly, the conviction and sentence of the appellant was set aside and the case was remitted back to the trial Court with the direction to determine the age of the appellant and thereafter decide the case within four months positively, vide judgment dated 14-6-2011. Aggrieved from the judgment of this Court the complainant filed a petition in the august Supreme Court and on 17-11-2011 the petition was converted into appeal and was allowed, resultantly, the judgment and order of this Court were set aside and conviction and sentence of the appellant awarded by the trial Court was restored and accordingly Criminal A. No,109 of 2008 along with the murder reference were directed to have been pending before this Court for decision on merits.
5. We have heard arguments of learned counsel for the parties and gone through the record of the case.
6. It appears from the F.I.R. (Exh.PA) that in this case the occurrence took place on 7-4-2007 at 1855 hours, whereas the report has been lodged on the same date at 2000 hours. Muhammad Khalid having a stamp of injury on the dorsal surface of his right hand is the complainant of the present case and he has charged the appellant for the murder of deceased Muhammad Idrees and injury on his person, which he sustained at the time of catching hold of the appellant. The occurrence in addition to the complainant is stated to have been witnessed by P.Ws. Muhammad Ayaz, Sahib Zali and Peish Imam of the Masjid, (the venue of wardaat). Motive behind the offence is that the appellant was suspected the deceased of his having illicit relation with his sister.
7. So far as the case of prosecution is concerned, it mainly hinges on the following categories of evidence.
(i) The ocular account furnished by P.Ws. Muhammad Khalid, Sahib Zali and Sardar Ali Khan.
(ii) The investigation conducted by Muhammad Nafal Khan SI.
(iii) Arrest of the appellant at the venue of wardaat, which is a Mosque of the village.
(iv) Recoveries along with the report of the Expert and
(v) Motive.
8. Admittedly and as is evident from the record in the present case the occurrence has taken place in Madni Masjid situated in village Deli Melia at the time when the deceased, eye-witnesses and other residents of the Mohalla were offering their Maghrab Prayers and were in the third Raka'at of the prayer.
9. Appearing as P.W.8, Muhammad Khalid, the complainant has stated in support of his first information report. According to him on the day of occurrence, he along with Muhammad Idrees, Sahib Zali, Muhammad Ayaz and other residents of the Mohalla were offering their Maghrab prayer in the said Masjid and were in third Raka'at when heard the report of fire shot and when he offered his final salam, he noticed that appellant Zahidullah was firing at the deceased; that he along with Muhammad Ayaz and Sahib Zali caught hold of the accused, but he remained busy in firing at him (deceased); that during the process of catching hold of the accused, he was also injured at his right hand; that they handed over the accused appellant to other persons of the mohallah present in the Masjid, from where he was taken out, whereas they remained with the deceased. According to the complainant, when they caught hold of the accused/appellant, P.W. Sahib Zali took the crime weapons. Pistols from him; that after arranging for a cot and pick-up the deceased, who by that time had already succumbed to the injuries was taken to the Police Station, where he lodged the report (Exh.PA), which is correct and correctly bears his signature. Motive behind the offence as stated by the complainant is that the appellant was suspected that the deceased was having illicit relation with his sister.
10. Sahib Zali, who has been examined by the prosecution as P.W.9, has also stated in support of the version of the complainant. According to him when they overpowered the appellant he took the pistols from him, which he handed over to the police on their arrival to the spot of occurrence.
Again he has stated about the handing over of the appellant/accused to the police who was already in their custody. They were subjected to lengthy and taxing cross-examination by the learned counsel for the convict/appellant, but absolutely with no premium to him (defence). The deposition made by the P.Ws. Muhammad Khalid and Sahib Zali is consistent and confidence- inspiring regarding the offering of prayer, hearing the report of fire shot, firing by the appellant at the deceased, catching hold of the appellant and recovery of pistols from his possession.
11. Another important witness of the present case is Sardar Ali Khan, Pesh Imam of the Masjid and appearing as P.W.10, he stated that on the day of occurrence, he was performing the duty of Imam and as such was in Sajda of the third Raka'at, when heard the report of fire shot; that on turning of salam; he noticed that appellant Zahidullah was firing at Muhammad Idrees; that he also noticed that Sahib Zali, Muhammad Khalid and Muhammad Ayaz were trying to catch hold of the appellant; that he also rushed to there, overpowered the appellant and took into possession the pistols which he was having, where after, he (the accused/appellant) was taken to the house of Sahib Zali and confined him in a room. According to this witness on arrival of the police, they handed over the appellant along with the pistols to them and thereafter he was shifted to the Police Station. This witness also faced the test of cross-examination on behalf of the learned counsel for the appellant but could not diminish the probative worth of his testimony. His account is consistent and in line with the testimony furnished by P.Ws. Muhammad Khalid and Sahib Zali.
12. Muhammad Nifal Khan SI, is the I.O. Of the present case and appearing as P. W.11, he has stated in support of the investigation, which he has conducted in the present case. Being an I.O. He has prepared the site plan (Exh.PB), made recoveries of blood through cotton, eight empties of 7.62 bore in scattered position from the spot of occurrence, vide memo Exh.P.W.6/1 and P.W.6/2. He has also stated about the two .30 bore pistols produced to him by brother of the deceased, which were taken into possession vide memo Exh.P.W.6/4. Again he has recorded the statements of the P.Ws.
Under section 161, Cr.P.C., sent the pistols along with empties recovered from the spot for opinion of the Expert, the report whereof as Exh.PK/1, is on record. He was also subjected to a searching cross- examination by the learned counsel for appellant regarding the site plan and confinement of the appellant by one of the P.W. Sahib Zali, but with no premium to the defence as there is no significant discrepancy in his statement.
13. Recovery memo Exh.P.W.6/2 is available on record and it appears from the same that the I0 during the spot inspection have recovered eight empties of .30 bore freshly discharged from the spot of occurrence. He also recovered four spent bullets almost in de-shaped condition from the place of wardaat, vide memo Exh.P.W.6/3. As stated earlier in this case the accused/appellant was arrested at the spot and from his possession two pistols of .30 bore were taken by the P.Ws. Present there, which they handed over to the police on their arrival to the venue of occurrence. The pistols along with empties recovered from the spot were sent for opinion of the Firearm Expert, the report whereof as Exh.PK/2 is on record and is in affirmative, which is reproduced as below:-
(i) Two .30 bore crime empties marked Cl and C2 were fired from .30 bore pistol No,FF 9375 marked A in question, in view of the following major points i,e, striker pin marks, breach face marks, chamber marks, etc. Are similar.
(ii) The six .30 bore crime empties marked C3 to C8 were fired from .30 bore pistol No,1380 marked B in question, in view of the following major points i,e, Striker pin marks, breach face marks, chamber marks, etc. Are similar."
14. As per version of the prosecution motive behind the offence is that the accused was suspected the deceased of his having illicit relation with his sister. Muhammad Khalid, the complainant has categorically stated about the motive behind the offence, not only in his first information report, but also in his court statement. The appellant during his statement recorded under section 342, Cr.P.C.
Has denied the same, but the account furnished by the complainant in this respect is absolutely unshaken as he was not cross-examined on this score even remotely. We are clear in mind that nothing is concealed about the motive, as it is consistently given not only in the F.I.R./but also in the testimony of the complainant. Again there is no suggestion even remotely on behalf of the appellant regarding the motive for his false implication.
15. We are of the view that guilt of the appellant has been proved from the confidence-inspiring testimony of the eye-witnesses, which lends support from his (appellant's) arrest from the spot, recoveries and report of Experts. It is a case of single accused and in the circumstances, it is highly improbable to say that the appellant has been substituted with the real culprit and thus we have no doubt in our mind that the charge against the appellant has been proved beyond any shadow of doubt and that he has rightly been convicted.
16. Now the question arising for the consideration of this court is as to what was the quantum of sentence and whether in view of the motive behind the offence which is the family honour, the normal penalty of death would meet the ends of justice?
17. Admittedly and as discussed earlier, in this case the appellant appears to be adamant to kill the deceased. He has come to the Masjid where the deceased was offering his maghrab prayer and was so much committed that he was having two pistols of .30 bore out of which one was exhausted fully, whereas from the other two fire shots were made and which fact is proved even from the report of Firearm Expert. It is not the case of grave and sudden provocation rather the offence was committed due to gharit/family honour. In a case "Muhammad Amir v. The State" (PLD 2006 Supreme Court 283), it was held by their lordships that:- "Commission of offence due to "Ghairat" or family honour and on grave and sudden provocation-- Distinction---Commission of an offence due to "Ghairat" or family honour must be differentiated from grave and sudden provocation in consequence to which crime is committed in the light of facts and circumstances of each case---Plea of grave and sudden provocation may not be available to an accused who having taken plea of "Ghairat" and family honour committed to crime with premeditation."
In the instant case, there is no two opinion about the commission of the crime with premeditation by the appellant and therefore, we are of the view that he has rightly been held guilty of murder and has been awarded the punishment which he deserves i,e, the normal penalty of death. The appeal is, therefore, dismissed, conviction and sentence of the appellant stands maintained and the death sentence is confirmed, resultantly, the murder reference is answered in affirmative.
Appeal dismissed.
2014 P Cr. L 551 [Federal Shariat Court] Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ IMRAN ALI and another---Appellants versus The STATE-Respondent Criminal Appeal No,190/L of 2007, decided on 7th October, 2013.
(a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 201, 377 & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-e-amd, causing disappearance of evidence of offence or giving false information, sodomy, kidnapping or abducting in order to subject a person to unnatural lust, common intention---Appreciation of evidence---No evidence was available against co-accused to the effect that he either participated in the commission of murder of the deceased, or committed sodomy with him---Role of co-accused was that he committed the offence of removing and causing disappearance of the dead body of the deceased in order to screen accused from legal punishment within the weaning of 5.201, P.P.C.---Conviction of co-accused under S.302(b), P.P.C.
And under 5.377, P.P.C., read with S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not called for, and same could not be justified by prosecution evidence---Conviction recorded and sentence awarded by the Trial Court to co-accused under Ss.302(b), 377, P.P.C., read with S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were set aside and he was acquitted from the charges---Co-accused was established to have actively participated along with accused in causing disappearance of the dead body of the deceased---Trial Court rightly convicted co- accused under 5.201, P. P.C. And awarded him appropriate punishment of five years' R.I. Along with fine. [p. 557] A
(b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 34, 201 & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-e-amd, common intention, causing disappearance of evidence of offence or giving false information, sodomy, kidnapping or abducting in order to subject a person to unnatural lust-- -Appreciation of evidence---If accused was convicted under 5.377, P.P.C., there was no occasion for the Trial Court to convict and sentence him under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, because accused had not abducted or kidnapped the deceased and evidence on record showed that deceased voluntarily accompanied accused to his "havaili" in order to unfasten his goats---Necessary ingredients for constituting an offence falling within the mischief of S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were not available in the evidence of the prosecution---Conviction of accused under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 being not sustainable, was set aside to that extent- Commission of offence under S.377, P.P.C., had fully been proved against accused by the medico- legal report, coupled with the report of Chemical Examiner, which was positive---Defence had not been able to shake evidence of prosecution witness as well the report of Chemical Examiner, in that respect---Trial Court, in circumstances had rightly convicted and sentenced accused for commission of offence under S.377, P.P.C.---Evidence of prosecution witnesses, with regard to commission of offence under S.302(b), P.P.C., was in line with prosecution story and except some minor inconsistencies in the evidence of said witnesses, defence had not been able to shake their veracity, especially when accused was already known to them, being the resident of the same locality; and there was no doubt about the identification of accused---Defence had also not taken any plea to satisfy the court for the false implication of accused---F. I.R. Was got lodged with promptness, and accused was nominated in the F.I.R.---Dead body was recovered at the pointation of accused---Motorcycle used for transporting the dead body and Danda' allegedly used in the commission of offence was also got recovered at the pointation of accused---Ownership of motorcycle, was not denied by accused---Accused, in circumstances, was rightly convicted and sentenced under S.302(b), P.P.C., which was neither illegal nor against the evidence on record, and was maintained. [pp. 558, 559, 560] B, C & D 1995 SCMR 1345 and 2013 YLR 15 ref. Gulzar Khan v. The State PLD 1963 (W.P.) Pesh. 178 rel.
Muhammad Maqsood Buttar for Appellants.
Khawaja Mehmood Ahmad for the, Complainant.
Muhammad Akhlaq, DPG Punjab for the State.
Date of hearing: 4th October, 2013.
' 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.