' MAZHAR IQBAL SIDHU, J.---Muhammad Irfan and Naveed Ahmad, appellants, in the appeal as mentioned above, have impugned the punishing judgment dated 29.09.2007, handed down by the learned Additional Sessions Judge. Khushah, having been tried in a case registered vide FIR No, 83, dated 14.5.2006 under Sections 302/364/201/202/34. PPC at Police Station, Katha Saghral, District Khushab, punished as follows:--- ' Convicted under section 364, PPC each and sentenced to ten years' rigorous imprisonment each and to pay fine to the tune of Rs, 50,000/- each and in default whereof to farther undergo two years Simple imprisonment each.
' Convicted under section 302(b). PPC and sentenced imprisonment for life each, They were also directed to pay an amount to. The tune of Rs, 2,00,000/.. Each as compensation as required under section 544-A, Cr.P.C. To the legal heirs of the deceased.
' Convicted under section 201, PPC and sentenced to three. Years' rigorous imprisonment each and to pay fine to the tune of Rs, 20,000/- each and in default whereof to further undergo simple imprisonment for six months each.
' Both the appellants were extended the benefit of section 382-B, Cr. P. C.
'Whereas above-referred revision petition has been preferred by Raees Muhammad, complainant seeking enhancement of quantum of sentence inflicted upon the respondents/appellants in the appeal.
2. Complainant, Raja Raees Muhammad (PW.11) on 14.05.2006 got recorded his statement before Javed Ahmad, SI (PW13) at Police Station, Katha Saghral at 06:40 p.m. On the basis of which, formal FIR (Exh.PL) was chalked out.
3. Facts in-curt disclosed by complainant, Raja Races Muhammad (PW.11) in FIR (Exh.PL) are that on 13.5.2006 at about 08:30 p.m., he alongwith his son Khurshid Ahmad (deceased) as well as other family members was present at his house at Jhugian. In the meantime, the door was knocked, he opened the door and found standing Muhammad Wan and Naveed Ahmad (appellants). Both the, appellants inquired about his said son and he replied that his son is at home. The appellants requested him to send his son outside, as they have some urgent business with him. The complainant informed his son, Khurshid Ahmad, who after coming out of the house, accompanied the appellants and proceeded towards west. After half an hour (PW14) Naveed Ahmad, son of the complainant came to the house, who informed the complainant that he alongwith Rabnawaz, was coming back from the fields after attending the call of nature and in the moonlit, they identified Khurshid Ahmad, Muhammad Irfan and Naveed Ahmed while chatting at the Thara of Nazar Hussain, mochi. The complainant went asleep and when woke up at Fajar Wela, his son Khurshid Ahmad did not come back. Thereafter the complainant contacted the appellants, who replied that Khurshid Ahmad had returned to his house. The complainant also made search in the vicinity and lastly he again contacted the appellants but they refused. It was further narrated by the complainant that few days ago, hot words were exchanged between Khurshid Ahmad and Muhammad Irfan owing to compact disc (C.D) of Mst. Kalsoom (sister of Muhammad Irfan, appellant) but the matter was patched up and Muhammad Irfan, appellant nourished grudge. The complainant expressed suspicion that both the appellants had committed the qatal-e-amd of Khurshid Ahmad.
4. The investigation in this case was conducted by Javed Ahmad, SI who while appearing as PW13 deposed that on 14.05.2006, he recorded formal FIR (Exh.PL), read it over to complainant, Raees Muhammad, who signed it in token of its correctness; thereafter he proceeded to the place of occurrence and recorded the statements of the PWs,; inspected the spot and prepared rough sketch of the place (Exh.PO). On 15.05.2006, he arrested Naveed Ahmad and Wan (appellants), interrogated them and took both of them to the police station; summoned Raees Muhammad, complainant and Rab Nawaz PW in the police station and interrogated them; both the appellants led to the place where the alleged murder was committed; prepared Fard Nishan Dehi of the place of occurrence and place where the alleged dead-body was buried by both the appellants (Exh.PQ), Fard Nishandahi was attested by Raees Muhammad and Rab Nawaz; took into possession blood imbrued earth from the place of alleged occurrence on the pointing out of the appellants and made it into a sealed parcel vide recovery memo. (Exh.PN) attested by the PWs and recorded their statements; both the appellants confessed before him that they accompanied Khurshid Ahmad from his house and later on committed his murder and after the murder, they went to their house and told it to Pervaiz, Javaid, Rabnawaz about the murder of deceased and thereafter Pervez accused fired at the deceased with pistol 12 bore whereas Rabnawaz gave him kassi blow on his head. The confession of the appellants was recorded in the police station before him, when they were in police custody and the witnesses were also present at that time; thereafter both the appellants were taken to the place of occurrence and they both pointed out jointly the place of murder; Muhammad Han appellant pointed out the place of burial and then he was sent to the police wagon and thereafter Naveed Ahmad appellant Was taken to the same place, then he was sent to the police wagon. Thereafter the said place was dug out and Races Muhammad and Rab Nawaz identified the dead-body; earlier to that both the appellants were sent to the police station before digging the dead-body; prepared injury statement of the dead-body (Exh.PC), inquest report (Exh.PB) and sent the dead-body through Maqsood Ahmad C/38 to Civil Hospital, Khurshab.
After post-mortem examination; the constable produced before him last worn clothes of deceased, Kamiz P.1, Shalwar P.2 and took the same into possession vide recovery memo. (Exh.PF) attested by the PWs; he got added section 302/102, PPC and arrested Pervez Akhtar, Rab Nawaz and Javed accused on 31.05.2006. On 23.05.2006, Naveed Ahmed appellant while in custody as a result of interrogation and disclosure made by him, got recovered pistol 30 bore P. 7 alongwith 5 bullets P. 8/1-5, took the same into possession vide recovery memo. (Exh.PJ) attested by the PWs.
On the same day. Muhammad Han appellant while in custody led to the recovery of pistol 30-bore P.9 alongwith 7 bullets P. 10/1-7, took the same into possession vide recovery memo. (Exh.PK) attested by the PWs. On 04.06.2006, Pervez Akhtar accused got recovered pistol 12 bore P. 3 alongwith 3 live cartridges P.4/1-3, took the same into possession vide recovery memo. (Exh.PG) attested by the PWs. On the same day, Rabnawaz accused got recovered Kassi P. 5 and gattu
(sack) P. 6, took the same into possession vide recovery memo (Exh.PH) attested by the PWs; prepared rough sketches of place of recoveries of Pervaiz (Exh. PG/1), Rab Nawaz (Exh. PH/ I ), Naveed (Exh. PJ/ 1), Irfan (Exh.PK/1), sent all the accused to judicial lock-up on 05.06.2006 and got prepared challan against them through the SHO.
5. Learned Trial Court after observing all the pre-trial codal formalities, indicted the appellants to which they pleaded non-culpabilis and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case. The prosecution produced 15 prosecution witnesses.
6. The medical evidence was adduced through the statement of Dr. Muhammad Salah-ud-Din.
Medical Officer (PW1) who on 15.05.2006, conducted post-mortem examination on the dead-body of deceased, Khurshid Ahmad and observed infra:--- ' INJURIES
(1) An entry wound of fire-arm projectile measuring 2 x 1 cm over front of right middle of chest near nipple with corresponding hole in the shirt with inverted margins of wound.
(2) An entry wound of fire-arm projectile measuring 1.5 x 1 cm over front of left middle of chest near nipple with inverted margins and corresponding hole in shirt.
(3) An entry wound of fire-arm projectile measuring 1 x 1 cm over front of left lower chest 2 cm below the injury No, 2 with inverted margins and corresponding hole in shirt was present.
(4) Twelve exit wounds of fire-arm projectile each measuring 1 cm x 3/4 cm on middle and right side of chest back in an area of 12 x 10 cm with inverted margins about 2. Cm apart from one and another with corresponding hole in shirt.
(5) A lacerated wound measuring 8 x 4 cm over left side of back of head with liquefied brain matter coming out from wound.
' OPINION ' In his opinion, injury No, 1 was caused by fire-arm projectile. Injury No, 5 on the body of the deceased was caused by blunt weapon. All the injuries were ante-mortem and sufficient enough to cause death in ordinary course of nature.
' Probable time that elapsed between injuries and death was immediate and between death and post-mortem was about two days.
(Exh.PA)was correct carbon copy of the postmortem report ,(Exh. PA/1) was sketch of the injuries, which bore his signatures.
7. Learned SPP renounced PWs namely Muhammad 'Ilyas as being de-trop and by tendering report of Chemical :Examiner (Exh.PO), report of Serologist (Exh.PF) and that of Forensic Science Laboratory (Exh. PQ) closed the prosecution evidence.
8. Afterwards the statements of the appellants under section 342, Cr.P.C. Were recorded, in which they denied and controverted all the allegations levelled against them by the prosecution and professed their innocence. Appellant, Muhammad Irfan, however, opted to adduce evidence in his defence but Naved Ahmad, appellant did not opt to produce the same and they both were not opted to appear as their own witness under section 340(2), Cr.P.C. Appellant Muhammad Irfan adduced certain documents in his defence.
9. Both the appellants in reply to a question "why this case against you and why the PWs have deposed against you" answered unanimously as follows:- "The PWs have made false statement on the instance of Idrees and Ahmad Sher PWs with whom we had enmity."
10. Upon conclusion of the trial, the appellants were convicted and sentenced as mentioned op-cit by the learned Trial Court. Hence, the appeal as well as revision petition.
11. To earn acquittal by accepting the instant appeal, learned counsel for the appellants has submitted that the incident allegedly took place on 13.05.2006 at about 08:30 p.m., whereas the matter was reported to the police on the following day at about 06:40 p.m. With the delay of ten hours for which no reasonable perspicuity has been offered by the prosecution; the motive mentioned in the FIR does not permit complainant, Raja Raees Muhammad to allow his son, Khurshid Ahmad (deceased) to accompany appellants. Muhammad Irfan and Naveed Ahmad, in this way, the stance of the complainant that the deceased went alongwith the appellants within 'his view assuring him to come back soon appears to be not rational and even from the contents of the FIR, offence under section 364, PPC is not constituted. Learned counsel has further argued that the prosecution has absolutely no evidence as to the application of section 302(b), PPC, in this way, the conviction and sentence of the appellants under the said provisions of laws are unwarranted.
Further adds that so far as the recovery of the dead-body on the pointing out of the appellants is concerned that was joint recovery on the pointing out of the appellants and the place from where the recovery was effected, it was an open place, therefore, mere recognition of the dead-body by the PWs as of Khurshid Ahmad does not mean that he was murdered to his burial to recovery of his dead-body on the part 'of the appellants. Lastly it has been submitted that the motive has not been proved by the prosecution and the alleged pistols recovered from the appellants do not have any evidentiary value because at the place wherefrom the dead-body was recovered, no crime empty was either to be found present nor has been recovered and working order of the pistols allegedly recovered from the appellants simpliciter does not prove their use in the alleged murder of the deceased; the recovery of alleged Kassi has too not any legal value because it was not blood imbrued. As ace, it has been submitted that during the investigation three more accused persons namely Pervaiz Akhtar, Javed Iqbal and Rabnwaz were involved by alleging that the appellants and the said co-accused (since been acquitted) were seen in the company of the deceased on the fateful night but the learned Trial Court has not believed the prosecution version qua the said acquitted co-accused, therefore, in absence of any independent corroboration, it would be hazardous to rely upon the prosecution evidence for sustaining the conviction and sentence of the appellants, thus has prayed for acceptance of appeal and acquittal of the appellants. Learned counsel for the appellants has relied upon the cases of Sarfraz Khan v. The State & 2 others (1996 SCM R 188), Muhammad Aslam v. Muhammad Shafique and another (2004 SCM R 197), Mst. Sultana Bibi @), Rubi v. The State (2011 SCM R 951) and Ummer Mushtaq & others v.
The State (2001 YLR 1946 Lahore).
12. Learned Additional Prosecutor General, Punjab assisted by the learned counsel for the complainant has opposed the submissions on the grounds that both the appellants were nominated in the FIR; the deceased went alongwith them within the view of complainant (his father) and thereafter he was seen alive by Ahmad Sher (PW10) and Naveed Ahmad (PW14) in the vicinity from where his dead-body was got recovered by the appellants but when he had already been seen alive by the above-mentioned PWs and thereafter the deceased was never seen alive in the world, consequently, both the appellants having exclusive knowledge of the place, where they after the commission of his murder buried him and by pointing out the said place got recovered his dead-body on 15.05.2006, therefore, intent of the appellants by deceitfully taking the deceased to murder him has been proved, therefore, conviction under section 364, PPC has rightly been imposed by the learned Trial Court whereas the recovery of the dead-body was also made on the pointing out of the appellants, then absolutely they had the knowledge of his burial place after the commission of his murder, in this way, their conviction under section 302(b), PPC in the circumstances of the case is justified, therefore, by summing up the arguments, it has been solicited to dismiss the appeal being bereft of reasons.
13. Heard. Record perused.
14. Of course, the instant case is of circumstantial evidence but it is difficult to shrug the evidence off simply, on the ground that no eye-witness as to the murder of deceased, Khurshid Ahmad exists, therefore, straightaway, the prosecution evidence may not be thrown out of consideration by extending the benefit of doubt to the appellants but it is incumbentory upon the Court to appraise each and every circumstance and evidence thereupon and thereafter to assess whether the chain of the prosecution case is made out without being broken and if it's one end touches the toe of the deceased and the other goes up to the neck of appellants, then of course without any second thought, the Court can rely upon it especially when the PWs have been tested through a legal engine of cross-examination. The Court is not obsessional and oblivious in appreciating the circumstantial evidence and appears to be disquiet/unquiet over the substandard/ defective investigation carried out by the investigating officer and certain lapses have also been noticed in the collection of evidence to establish concatenation of the circumstances by time-lag but the mental equity impulses to appraise circumstantial evidence notwithstanding methomanic behaviour of the police has been noticed but even then by butting into the facts and circumstances evoked to the conclusion that the prosecution case is not in totality mired to its nihility to accept the appeal in tow, therefore, being not in abstruse the prosecution evidence is being appraised.
' The alleged incident took place on 13.05.2006 at about 08:30 p.m. And since then the hill journey of Raees Muhammad, complainant/(PW11) started. The prosecution story though has been pen down in detail in the earlier paragraph of the judgment but here it appears appropriate to discuss it. As per FIR (Exh.PL), it has been noticed that appellants Muhammad Irfan and Naveed Ahmad both came to the house of complainant on the fateful night, on the knocking of door of complainant by them, the complainant came out of the house, whereupon the appellants asked him to bring the deceased out of the house as they had an urgent assignment with Khurshid Ahmad, deceased, thereafter on the asking of complainant, deceased came out of the house and went in the company of the appellants but he was never returned to house thereafter. The motive mentioned in the FIR is that few days earlier to the instant incident, the deceased and sister of Muhammad Irfan, appellant had ensued a dispute over a compact disc (C.D) but the matter was buried. Now question arises herein that why the complainant permitted his son to accompany the appellants, when for the reason, an incident had already taken place and if it is believed that the matter as to motive had already been hushed up, then the intention of the appellants how could be determined to kill the deceased by taking him in a deceitful way but whenever all the circumstances and the material of the prosecution case is appreciated, then of course no answer comes before the Court except the dead-body of the deceased was got recovered by the appellants themselves, therefore, in these circumstances, it is proved that the deceased was abducted in a deceitful means to kill him. In this respect, the prosecution has adduced evidence of Ahmad Sher (PW10), Raees Muhammad (PW1 1), Naveed Ahmad (PW14) and Muhammad Idrees (PW15). Though this statement of these PWs relate to different incident of having seen the deceased in the company of the appellants and the co-accused (since been acquitted) as (PW10) and (PW14), who seen them in the fields on the fateful night, therefore, departure of the deceased from his house upto his reaching alongwith the appellants has not been demolished despite the fact that searching cross- examination was carried out over the PWs and they all have been found consistent to their statements and persistent to the accusation, therefore, the Court is of the view that the prosecution has proved its case so for as the abduction of the deceased in order to murder him is concerned.
The material available on the file does not provide any iota of evidence of the killing of the deceased by any of the accused persons either by the appellants who had been nominated in the FIR or by the acquitted co-accused who were entangled later but during the investigation, it is a pity of system of criminal administration of justice that the investigating officers remained a person as res-integra so far as the investigation is concerned and if he carried it out honestly then it may cause benefit or damage to either of the {{INCOMPLETE}}