' Qazi Muhammad Amin Ahmed, J.--Criminal Appeal No, 631 of 2009 is clubbed with Murder Reference No, 145 of 2009 that arise out of an incident which occurred on 06.01.2009 within the area of Mauza Johar Hatta situated at a distance of 4 miles from Police Station Sarai Sidhu of District Khanewal. The incident was reported by Nazar Muhammad (PW-1) through FIR (Exh.P.A) recorded by Abdul Hayee S.I (PW-9) at Police Station at 11.30 a.m. According to the complainant, his son Muhammad Ramzan, hereinafter referred to as the deceased, left his house, as usual, on 06.01.2009 on donkey cart and did not return home till late evening, whereupon, he in the company of Shah Nawaz went to Adda Johar to enquire about Muhammad Ramzan. Muhammad Murtaza and Muhammad Hayat PWs informed him that at evening time they had seen Nazar Muhammad appellant and Sultan alias Sallu accompanying the deceased heading towards Sarai Sidhu. Upon this information the complainant visited the house of Sultan who was not present there. On the following day Nazar Muhammad appellant met the complainant and upon enquiry after initial hesitation admitted that he along with Sultan had taken Muhammad Ramzan to river bed in order to fetch reeds and as they could not get the reeds they relieved Muhammad Ramzan. Complainant suspected that Nazar Muhammad appellant and Sultan alias Sallu for their lust might have murdered his son.
2. During spot inspection Investigating Officer collected bloodstained earth vide recovery memo.
Exh.P.C, which according to the report of Chemical Examiner (Ex.PP) and that of Serologist (Ex.PQ) was found stained with human blood. Nazar Muhammad appellant was arrested on 9.01.2009 by Abdul Hayee S.I (PW-9) and during the course of investigation he made a disclosure pursuant thereto he led, the Investigating Officer to Mauza Shakroo Wala near the river bed and got recovered dead body of Muhammad Ramzan from the reeds of river bed. The dead body was taken vide memo. (Exh.P.B). Seizure of dead body at the instance of Nazar Muhammad appellant was preserved through photos P-5/1-11 taken by Waqar Ahmad Ghauri (PW-8). The dead body was dispatched to the mortuary along with injury statement and inquest report.
3. Autopsy was conducted on 09.01.2009 at 2.15 p.m. And Medical Officer Dr. Muhammad Maqbool Ch. (PW-7) observed as under:- "1. After losing the electric wire and string from the neck, there were marks of ligature present around the neck in multiple horizontal circle which compressed the neck, which were in circle above the thyroid cartilages.
2. There was confusion with abrasion on the front of the neck 3 cm x 1.5 cm in size below Injury No, 1.
3. Abrasions 4 cm x .5 cm on the right pinna due to insect bites and margin of the ear.
4. Abrasion 4.5 cm x .5 cm on the left pinna along the outer margin of left ear.
5. Abrasion 1 cm x .5 cm due to the insect bite on right side of the nose.
6. Abrasion on the right side of scrotum due to the insect bite.
7. Abrasion present on the back of right hand and fingers.
8. Froth with stains of blood present in the nostrils.
9. Abrasion on the outer side of left foot and left little toe present.
10 Anal sphincter dilated. 8 anal swabs were taken, four for chemical examiner and four for DNA test.
DISSECTION.
' On dissection, underlying the ligature marks subcutaneous tissue muscles and nerves were found damaged with the bruising present on the muscles. The thyroid cartilage was found damaged. The hyoid bone on right side was fractured.
' The organs in the chest cavities were found congested. Right side of heart contained blood, dark in colour. Left heart chamber was empty.
Abdominal cavity.
' All the organs in abdominal cavity were found congested.
' The stomach contained fluid. The urinary bladder was found empty.
' OPINION.
' After complete internal and external post-mortem examination I was of the opinion that Injuries No, 1,2,7,8,9 and 10 were ante mortem and Injury No, 3,4,5,6 were post-mortem due to insect bites.
The death occurred due to Injury Nos. 1 and 2 which caused strangulation and were sufficient to cause death due to damaging of the hyoid bone which caused suffocation. Injury No, 10 was due to the act of penetration in the anal canal.
' The probable duration between injuries and death was immediately whereas probable duration between death and post-mortem was about three days.
' After post-mortem examination, I handed over the stitched dead body, post-mortem report, police papers, last worn clothes, sealed parcels four in total to Sabir Ali constable.
' Ex.P.G is the correct carbon copy of post-mortem report whereas Ex.P.G/1 /1-2 are the sketches showing the location of the injuries which are in my hand writing and are signed by me. I signed inquest report Ex.P.H, which bears my signatures as Ex.P. HI].. I also endorsed the injury statement Ex.P.J, which bears my signatures as Es.P.J/1."
4. Sultan alias Sallu was exonerated during the course of investigation. Nazar Muhammad complainant (PW-1) being satisfied about the innocence of Sultan alias Sallu made a concessionary statement in his favour and it was in this backdrop that his arrest was held in abeyance. However, on 15.07.2009 Sultan alias Sallu was summoned to face trial. Formal charge was framed on 26.08.2009. Both the accused denied the charge and claimed trial.
5. Prosecution in order to bring home charge against the appellant produced as many as 10 witnesses besides reports of Chemical Examiner (Exh.PP, PR & PS) and that of Serologist (Exh.PQ); Nazar Muhammad complainant (PW-1), reiterated position taken in FIR (Exh.P.A). Murtaza (PW-2) and Muhammad Hayat (PW3) testified about their having seen Muhammad Ramzan deceased, lastly alive in the company of Nazar Muhammad and Sultan accused heading towards Sarai Sidhu; statements of these two witnesses have not seriously been challenged. The most formidable piece of evidence in this case is disclosure made by Nazar Muhammad appellant before Abdul Hayee S.I (PW-9), pursuant whereto he led the I.O. To the place where Muhammad Ramzan deceased was lying dead. According to the statements of the witnesses and site-plan Exh.PN, the place of recovery of dead body is a deserted one covered and surrounded by reeds obstructing view on all four sides. According to Chemical Examiner's report (Exh,PS), the anal swabs were found stained with semen. DNA report Exh.P.T did not advance prosecution case as no DNA profile foreign to the victim was obtained from anal swabs. Therefore, no comparison could be made with: the DNA profile of Nazar Muhammad appellant. It is a technical failure which is result of incompetent investigation. Yet another piece of evidence militating against appellant is recovery of a cart with a donkey lastly used by the deceased, at the instance of Nazar Muhammad appellant on 18.01.2009 vide memo. (Exh.PF).
6. Position taken by the appellant Nazar Muhammad in his examination under Section 342, Cr.P.C. Is as under:- "The police officials in order to fend off their responsibility and pressure of resolving an unseen occurrence, have made me an escape goat in this case."
7. Appellant opted not to appear as his own witness in terms of Section 340(2), Cr.P.C. Nor led defence evidence.
8. Upon conclusion of trial, the learned trial Judge, Khanewal vide impugned judgment dated 22.10.2009 convicted Nazar Muhammad appellant under Section 364-A, PPC and sentenced him to 14 years R.I with fine of Rs, 10000/-. He was also convicted under Section 377, PPC and sentenced to six years R.I with fine of Rs, 5000/-. He was further convicted under Section 302, PPC and sentenced to death along with payment of Rs, 300,000/- as compensation to the legal heirs of the deceased or to undergo six months S.I. In default thereof. However, Nazar Muhammad appellant was acquitted from the charge of Section 201, PPC. Whereas, Sultan alias Sallu co-accused was also acquitted from the charges leveled in the FIR.
9. The learned counsel for the appellant has not seriously contested conviction of appellant and has rather drawn our attention towards the tender age of the appellant who according to the learned counsel was a juvenile at the time of commission of crime. It is argued that death penalty awarded to the appellant is not sustainable.
10. On the other hand, the learned DPG assisted by the learned counsel for the complainant has strongly opposed the appeal on the ground that the appellant committed a heinous offence of murder of Muhammad Ramzan, (deceased), therefore, he is not entitled to be visited with any degree of leniency.
11. We have heard the learned counsel for the parties as well as learned DPG and perused the record with their assistance.
12. Limited position taken by the learned counsel for the appellant to the question of quantum of sentence alone, notwithstanding, does not absolve us from examining the Murder Reference on its own merits. We have perused the record with the assistance of learned Law Officer and found that the appellant is convicted on the basis of cogent and confidence inspiring evidence. Recovery of dead body on his disclosure is a formidable piece of evidence; the deceased was missing since 06.01.2009 and no one on God's earth had any clue or knowledge regarding his whereabouts. The appellant had the exclusive knowledge and it was upon making his breast clean that Abdul Hayee (PW-9) was able on 9.01.2009 to reach out the dead body. Recovery of cart with donkey is an additional support to the prosecution case which rests on last seen evidence, implicating the appellant with the crime. The pieces of evidence remained unscathed during the trial. For the foregoing reasons we dismiss Cr1. Appeal No, 631 of 2009 and maintain conviction recorded thereunder. On the question of sentence we have noticed that during appellant's examination under Section 342, Cr.P.C. His age is mentioned as 19 years on 14.10.2009. Although neither application is moved on his behalf before the learned trial Court to assert minority nor he applied for ossification test yet what is evident on record is that he is a tender age youth convicted on the strength of circumstantial evidence. Therefore, in our opinion penalty of imprisonment for life would meet the ends of justice in the facts and circumstances of the case. Accordingly we convert death penalty of appellant into imprisonment for life. Keeping compensation am fine intact. Appellant's conviction and sentences on other charges are maintained. Sentences shall run concurrently with benefit of Section 382-B, Cr.P.C. Murder reference is answered in NEGATIVE and death sentence is NOT CONFIRMED,