ASSADULLAH KHAN CHAMKANI, J.--- Appellants (1) Farman Ullah and (2) Fateh Gul, having been found guilty of committing the qatl-i-amd of minor Saqib aged about 4 years by the learned Trial Court/Additional Sessions Judge-IV, Peshawar, vide judgment dated 24.03.2012, convicted and sentenced them under section 302(b), P.P.C. To undergo rigorous imprisonment for life as Ta'azir and to pay Rs.50,000/- each, as compensation to LRs of the deceased or in default thereof to undergo 6 months' S.I. Further. Each of the appellant has been further convicted under section 201, P.P.C. And sentenced to undergo imprisonment for 5 years. The sentences have been/directed to run concurrently. Benefit of section 382-B, Cr.P.C. Has been extended to them.
2. Through the instant appeal, the appellants have questioned their conviction and sentences.
3. Brief account of the prosecution case is that on 19.08.2010 at 1600 hours, minor Saqib went missing from his house, situated in Mohallah Islam Abad, Peshawar. His father Niqab Khan, grand father Gharib Ullah and uncle Gul Rehman, were searching for him when on 21.08.2010 at 01.30 a.m.
(midnight), they noticed, Fateh Gul and Farman Ullah (appellants-convicts herein) on Technical Training Center (TTC) road near Baba Car Wash Gul Bahar, having decomposed dead body of minor Saqib trying to dispose it off, but were-overpowered by the complainant party. On information, Amir Sayab Khan S.I. (PW.2) along with other police officials, rushed to the spot.
Complainant Niqab Khan (PW.6), reported him about missing of his minor son Saqib and recovery of his dead body from the appellants. He added that both the appellants being his close relatives are residing with him in one and the same house and that they having a property dispute with him, committed the murder of his minor son Saqib.
4. Amir Sayab Khan S. I. (PW.2), recorded report of the complainant in the shape of murasila Exh.PA/1, on the basis of which, FIR No. 673 dated 21.08.2010, under sections 302/201/34, P.V.C., was registered in Police Station Gulbahar against the appellants. He prepared injury sheet Exh.PW.2/1 and inquest report Exh.PW.2/2 of minor deceased and shifted his dead body to the mortuary for autopsy, under the escort of Constable Musa Khan. He prepared arrest card of both the appellants Exh. PW .2/3.
5. Lady Dr. Madiha Iqbal, conducted postmortem on the dead body of deceased on 21.08.2010 at 8.30 a.m. And found the following:- External Examination: A small child 4/5 years old, having a ligature mark all around his .Neck. Body and face/swollen as well as face congested. Eye balls and tongue protruding out. Skin peeled off.
Injury: A ligature mark around the neck.
Opinion: According to her opinion, the deceased died due to asphyxia from ligature strangulation.
6. Muhammad Riaz Khan SI (PW.4), conducted investigation in the case. He proceeded to the spot (place of recovery of the dead body of the minor deceased) and prepared site plan Exh.PB at the instance of complainant, recorded statements of the PWs, obtained two days physical remand of the appellants vide application Exh.PW.4/1, took into possession the last worn bloodstained garments of deceased vide recovery memo. Exh.PW.4/24 and recorded statements of marginal witnesses of the recovery memo. Both the appellants pointed out the place of recovery of dead body of minor deceased from their possession and site plan Exh.PB/1 to this effect was prepared on their pointation. Thereafter, each of the appellant took the police party to the crime room (place/where minor Saqib was done to death by them), as such on their pointation, pointation memo. Exh.PW4/3 was prepared. He sent the bloodstained clothes to the FSL report whereof is Exh.PZ. During investigation of the case, Mst. Zubaida, sister-in-law of the appellants was also nominated for the offence. Since, she was avoiding her lawful arrest, therefore, he initiated proceedings under sections 204 and 87, Cr.P.C. Against her. On completion of investigation, he submitted complete challan against the appellants and challan in terms of section 512, Cr.P.C.
Against absconding co-accused Mst. Zubaida.
7. On receipt of challan by the learned Trial Court, both the appellants were charge sheeted, to which they pleaded not guilty and claimed trial. To bring home their guilt, prosecution examined ten witnesses. After closure of the prosecution evidence, statements of the appellants were recorded under section 342, Cr.P.C., wherein they denied the prosecution allegations and professed their innocence. They, however, wished to be examined on oath under section 340(2), Cr.P.C. And to produce evidence in defence.
8. Statements of the appellants under section 340(2), Cr.P.C. Were recorded, wherein they professed innocence. Appellant Fateh Gul deposed that he was arrested from his house situated in Madina Colony Haji Camp and was implicated falsely in the instant case. Appellant Farman Ullah stated that he was arrested by complainant Niqab and his father Gharib Ullah from his house, taken to Police Station and involved in the instant case falsely. Misal Khan and Redi Gul appeared as DW.1 and DW.2, respectively. Former DW is the brother while the latter is father of the appellants.
9. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellants as mentioned above, hence this appeal.
10. Learned counsel for the appellants argued that appellants are squarely innocent and have been implicated falsely in the case on mere suspicions; that nobody has come forward to furnish the ocular account of the incident; that appellants have not confessed their guilt before the competent court of law; that arrest of the appellants as alleged by the prosecution is a cock and bull story; that appellants have proved their arrest from their houses and their false involvement in the case, through cogent and confidence inspiring evidence; that prosecution has miserably failed to bring home the guilt of the appellants through cogent and confidence inspiring ocular or circumstantial evidence; that the impugned judgment of the learned trial Court, being based on surmises and conjectures, is liable to be set at naught.
11. Conversely, learned AAG assisted by learned counsel for the complainant contended that prosecution has led sufficient circumstantial evidence to the extent of murder of minor deceased by the appellants while recovery of dead body from the possession of the appellants, has been proved through straightforward and confidence inspiring ocular evidence furnished by PWs Niqab Khan and Gharib Ullah and corroborated by PWs Amir Sayab Khan and Muhammad Riaz Khan SIs; that appellants are close relatives of the complainant having a dispute with him over the same house; that not an iota of evidence is available on record to show any effort on the part of the appellants qua search of the minor deceased from the first day till recovery of his dead body from their possession; that on 21.08.010 at 1.30 a.m. (midnight), both the appellants have been arrested red handed having the decomposed dead body of minor in their possession which proves the death of the deceased on the very first day of his missing i.e. 19.08.2010; that arrest of the appellants along with the dead body in the odd hours of night has been squarely proved by the prosecution through overwhelming evidence; that question of false implication does not arise because had complainant been interested in false implication of the appellant, he could have charged them 'on the very first day of missing of his son; that no justification, much less plausible, has been furnished by the appellants qua their arrest and recovery of the dead body in odd hours of the night; that both the appellants have pointed out the place of incident to the police; that prosecution has proved the guilt of the appellant through cogent and-confidence inspiring circumstantial evidence, therefore, the learned Trial Court was justified by holding them guilty of the offence, to which no exception can be taken.
12. We have considered the respective submissions advance from both the sides and perused the record with their able assistance.
13. Admittedly, none has come forward to furnish the octilar account of murder of minor Saqib deceased. In the instant case we are confronted with two types of evidence i.e. The ocular evidence, which is in respect of the recovery of decomposed dead body of minor deceased from the possession of the appellants, their arrest on the spot by the PWs and handing over to the police, and the circumstantial evidence qua murder of the minor deceased. Ocular evidence means direct evidence furnished by an eye-witness in respect of a fact while circumstantial evidence is provided not by direct testimony of an eye-witness to a fact to be proved, but the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than the truth of the principal fact. Circumstantial evidence is evidence of fact from which the facts in issue is be inferred as a natural or probable conclusion. The fundamental principle of universal application in cases dependent on circumstantial evidence, is that in order to justify inference of guilt of accused, incriminating fact must be incompatible with innocence of accused or guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Law does not prohibit conviction of accused in a murder case on the basis o circumstantial evidence.
14. In respect of the episode of the arrest of the appellants red handed along with the decomposed dead body of minor Saqib, complainant Niqab Khan (PW.6), Gharib Ullah (PW.7), have furnished the ocular account. Both are consistent qua arrest of the appellants on TTC road near Baba Car Wash along with decomposed dead body of minor Saqib in the odd hours of night. Both have been subjected to lengthy and taxing cross-examination by the defence, but nothing beneficial could be extracted from them. Amir Sayab Khan SI (PW.2), who is quite impartial witness having no enmity or ill will with the appellants, has fully corroborated the version of PWs Niaqb Khan and Gharib Ullah qua arrest of the appellants, their production before him and recovery of decomposed dead body of minor deceased from their possession. Thus, the episode of arrest of the appellants by the PWs and, recovery of decomposed dead body of minor Saqib from their possession, has been squarely proved by the prosecution through ocular account which is straightforward and confidence inspiring supported by medical evidence i.e. Autopsy report of the deceased.
15. Coming to the episode of murder of the deceased, which is based on circumstantial evidence, it appears from the record that appellants are brothers inter se and are the first cousins of complainant's father, namely, Gharib Ullah. Absconding co-accused Mst. Zubaida is the sister-in- law of the appellants i.e. (wife of their brother'Sardar Gul). As evident from the site plan Exh.PB both the parties being close relatives inter se, were residing jointly in upper storey of a common, house.
The room of Sardar Gul, brother of the appellants and husband of absconding co-accused Mst.
Zubaida, is adjacent to the room of the complainant. In the said room the minor deceased had been done to death as pointed out and disclosed by the appellants during interrogation. The first circumstance which goes against the appellants is that minor Saqib went missing on 19.08.2010 at 16.00 hours and was being searched by his father Niqab Khan and grandfather Gharib Ullah, but none of the appellants ever offered any service in respect of his search. Keeping in view the normal human conduct as well as close ties of relations in our society, in such like situation, the kith and kin leave no stone unturned in providing assistance and help to the bereaved family. The appellants being the first cousins of complainant's father, dwelling with him in the same storey of a common house ought to have participated in search process of the minor, but they did not, which proves their guilty conscience. The bona fide of the complainant is very much evident from his conduct on the first day of missing of his minor son. Though, he has alleged a dispute over a house with the appellants, but had he any intention to falsely charge the appellants, he could have charged them on the very first day of missing his son, but he did not, rather he preferred to search his only son like a mad person till the unfortunate night of -21.08.2010, when his decomposed dead body was recovered from the appellants on TTC road near Baba Car Wash and handed over to the police.
Both the appellants have not furnished any explanation as to what they were doing in the odd hours of the night on T.T.C. Road and as to how the dead body of minor deceased came in their lap.
Had their hands been clean, this being an era of information and technology; each and every person male or female, poor or rich, having mobile cell, they could have informed father of minor deceased about recovery of his dead body or if they had no such source, they could at least shifted his dead body to Police Station wherefrom they could inform the parents of the minor deceased, but no such effort on their part, clearly speaks about murder of the deceased by them and their design on that night to dispose of his dead body secretly. Another circumstance which makes a chain with the above circumstances is that the deceased went missing on 19.08.2010 and his dead body was recovered from the appellants on 21.08.2010 in decomposed form, as evident from the statements of the PWs and medical evidence, which proves that the minor had been done to death on the very first day of is missing on 19.08.2010 by the appellants and they kept concealed his dead body till 21.08.2010, that's why on that night to get rid from the dead body, they selected odd hours of the night and an uninhabited place i.e. TTC road for accomplishing their detestable design but were apprehended by the PWs. The recovery of decomposed dead body of minor deceased sufficient proof qua his murder on the very first day of his missing. As stated earlier in absence of any explanation, much less plausible by the appellants in respect of availability of decomposed dead body of minor deceased with them, is sufficient circumstance which indicates qua murder of the deceased by them.
16. A dispute over the house has been alleged as motive behind this untoward incident by complainant in his report. In his statement he deposed that few days prior to the incident an altercation took place between his mother and Mst. Zubaida absconding co-accused. As stated earlier. Mst. Zubaida is the sister-in-law of the appellants. One Redi Gul, who appeared as DW.2 is the paternal grandfather of complainant Niqab Khan and step father of the appellant as after demise of real father of the appellants said Redi Gul entered into Nikah with mother of the appellants. This aspect of the case squarely proves the motive part as alleged by the complainant that the appellants had a dispute over the common house with the complainant being the step- sons of his grandfather Redi Gul.
17. After their arrest both the appellants pointed out the crime room where minor Saqib had been done to death with brutality by them and his dead body was concealed inside the room beneath a, bed. The Investigating Officer in this regard, prepared pointation memo on their pointation.
18. The above discussed circumstances establish a complete chain consistent only with hypothesis of guilt of the appellants, one end of G which touches the dead body of the deceased and the other end, the neck of the appellants.
19. As regard the defence plea of the appellants that they were arrested from their houses, suffice it to say that mere such assertion without any solid proof would not be sufficient to brush aside the straightforward and confidence inspiring ocular account of the PWs, regarding their arrest on the spot along with the dead body and circumstantial evidence making a complete and unbroken chain of circumstances leading to the proof of guilt of the appellants. Misal Khan who appeared as DW.1 is brother of the appellants, while Redi Gul (DW.2), is their father. As stated earlier Redi Gul, is paternal grandfather of complainant and he has entered into Nikah with the mother of the appellants, therefore, on the one hand, both the DWs being close relations of the appellants are interested witnesses while on the other hand, their testimony is suffering from material contradictions and discrepancies. Both have contradicted each other on the point of arrest of the appellants as alleged by them. Both have furnished different versions qua arrest of the appellants, therefore, their versions seem self cooked story just to save the skin of the appellants. Besides, the defence plea of the appellants is after thought, as no application either to the High ups of the Police Department or any court has been submitted by them qua their innocence, therefore, the learned Trial Court has rightly disbelieved the defence plea of the appellants.
20. For what has been discussed above, we are firm in our view that II prosecution has proved the guilt of the appellants through overwhelming ocular as well as circumstantial evidence supported by medical evidence, therefore, the learned Trial Court has rightly held them guilty of the offence to which no exception can be taken. The impugned lodgment being well reasoned and based on proper appreciation of evidence available on record, is not open to any interference by this Court in its appellant jurisdiction.
21. Accordingly, this appeal being without any substance, stands dismissed.