1. SHAH NAWAZ KHAN, J -Nazir Ahmad son of Badar Din, caste Jat, resident of Chak No. 41/D. B. Jalal son of Ahmad Din, caste Chuhan of the same chak and Mst. Sardaran widow of Muhammad Ibrahim, deceased, also of the same chak, were tried in the Court of Sessions Judge, Bahawalpur on the charges that they an furtherance of their common intention committed the murder of Muhammad Ibrahim, and then they buried him with the intention of screening themselves from legal punishment.
2. At the conclusion of the trial, the, Sessions Judge of Bahawalpur held theft three persons guilty of offences for which they were charged for, therefore, convicted them and sentenced path one to life imprisonment for offence under section 302/34, P. P. C. All the three accused were also sen-- tenced to undergo R. I. For two years each for offence under section 201/34, P. P. C. Both the sentences were ordered to run concurrently. Jalal and Mst. Sardaran were also fined Rs. 1,000 each or in default to undergo R. I. For two years, and Nazir accused was fined Rs. 5,000 or in default to undergo R. I. For three years. It was also directed that the fine when deposited by the accused should be paid to the heirs of the deceased by way of compensation.
3. The prosecution case in brief is that Mst. Sardaran had developed illicit relations with Nazir, accused. With a view to get rid of Muhammad Ibrahim, husband of Mst. Sardaran, accused, they in furtherance of their common intention colluded with Jalal who was working as a servant of Nazir, accused, and Abdur Rashid, and on some pretext Muhammad Ibrahim was taken out from the village by them and he was subsequently murdered. His dead body was buried in Kila No. 10, Square No. 87 within the area of Chak No. 4.
4. Bashir Ahmad (P. W. 7) who is the brother of the deceased stated that on or about the day of occurrence at about 5-00 p.m. Be was coming from his land to his Chak. He saw Rashid, Nazir, Jalal, accused, and Muhammad Ibrahim, deceased, coming out of the Ihata. He inquired from them as to where they were going and Nazir, accused, told: him that one Nasim had brought some foreign cloth and they were going to purchase it. They then went away. After about 4 days he went to the house of Muhammad Ibrahim, deceased, and inquired from Mst. Sardaran accused, as to where Muhammad Ibrahim was. She told him that Muhammad Ibrahim, deceased, had gone to see Rana Mushtaq, a P. O. W. Who had come back from India. Bashir Ahmad waited for two days more and on the 3rd day he was informed that Muhammad Ibrahim, deceased, had not yet come back.
5. Malkiat and Nazir, P. Ws. Met him and he told them that according to the information given to him by Mst. Sardaran; accused, Muhammad Ibrahim had gone away from his house, but he had not come back. He then started search for Muhammad Ibrahim, deceased. So much so that he came to Lahore. But he did not find him. In fact, he contacted Rana Mushtaq at Lahore who told him that Ibrahim, deceased, had not come to see him. After struggling for several days to trace the deceased out, Bashir Ahmad ultimately arranged for Panchayat, which was attended among others by Ch. Malkiat, Ch. Nazir, Ahmad Din, Sattar and Shah Muhammad. He informed the Panchayat that his brother, i.e., deceased, was not available and narrated to them what Mst.
6. Sardaran accused had told him about the whereabouts of the deceased. He also informed the Panchayat that he last saw Muhammad Ibrahim, deceased, in the company of Nazir, Rashid and Jalal, accused. The Panchayat then summoned all the said three persons and they promised to inform the Panchayat on the next day. On the next day the Panchayat was again convened. All the said three persons attended the Panchayat and Nazir accused informed the Panchayat that they had murdered Muhammad Ibrahim, deceased, and that Panchayat should forgive them and they should not report the matter to the Police. He also told the Panchayat as to where Muhammad Ibrahim, deceased, had been buried. According to Bashir Ahmad, P. W. The other two persons, namely, Rashid and Jalal also confessed their guilt before the Panchayat. The Panchayat also inquired from Mst. Sardaran and she also confessed before the Panchayat. Bashir Ahmad then went to the Police Station and lodged the F. I. R. Exh. D. A.
7. Muhammad Anwar Khan, S. I. Police (P. W. 11) after recording the F.I. R. Of Bashir Ahmad then proceeded to the scene of occurrence. After recording the statement of some of witnesses, he arrested Mst. Sardaran accused at about 1-15 p.m. Mst. Sardaran got recovered the wrist-watch Exh. P-1 and purse Exh. P-2, which belonged to Muhammad Ibrahim, deceased, from underneath the heap of bricks in the courtyard of her house, while she was in Police custody. He then prepared the recovery memo. Exh. P. D. P. W. Bashir Ahmad produced the receipt Exh. P. B. It was taken into possession vide memo. Exh. P. J. He arrested Nazir and Jalal at about 2-15 p.m. On the same day.
8. Nazir accused, while in Police custody took the Investigating Officer to the place where the occurrence had taken place wherefrom blood-stained earth was recovered and was taken into possession vide memo. Exh. P. R. The place of occurrence, according to the Sub--Inspector, was surrounded by sugarcane crop. Dead body of the deceased was also recovered at the instance of Nazir, accused, and on his pointing, after digging the ground up to 4 feet the dead body was found.
9. The Investigating Officer then prepared the inquest report Exh. P. C. And injury statement Exh. P. O.
10. Of the deceased and then he requested the Doctor to perform the post-mortem examination on the dead-body. Musai and Chillam Exh. P. 3 which the deceased was last seen carrying with him were also recovered from a dip in Killa No. 10 at the instance of Jalal. Toka Exh. P. 10 was also recovered at his instance from the field and these were taken into possession vide memo. Exh. P. G.
11. The Sub-Inspector then arrested Rashid, approver, at 4-30 p.m. On the same day. While in Police custody Rashid got a blood--stained Kassi Exh. P. 11 recovered from Killa No. 10 after digging the earth. It was taken into possession vide memo. Exh. PH. He then prepared the site plans of various places which are Exh. P. N. And Exh. P. N./1 to Exh. P. N./3. The shirt Exh. P-4, Chaddar Exh. P-5 and pair of shoes Exh. P-6/1-2, which belonged to the deceased after post-mortem examination, were also taken in possession vide memo. Exh. P. K.
12. Post-mortem examination on the dead-body of the deceased was con--ducted on 19-3-1974 by Doctor Muhammad Aslam Chughtai (P. W. 10), who found the following injuries on the dead body of the deceased: -
(1) An incised wound 2'x --x -- in front of neck in lower part.
(2) An incised wound 4-- x --' in front of neck in upper part cutting the skin, fascis, platema muscles, trachea, oesophagus and blood vessels (carotid arteries).
(3) Incised wound on the lower jaw left side chopping off the skin mus--cles of lower jaw and on left side about J" from the midlines and 3' x 1' x 1' in dimension, underneath bone not affected.
(4) An incised wound 3' x ----- x scalp deep on back skull in middle (bone not injured).
(5) An incised and punctured wound on right side lower jaw 1/2' x 1/2' X 2' externally with the fracture of right side mandible bone.
13. In view of the Doctor, the deceased was an old man of about 70/80 years.
14. According to the Doctor the hair from the skull, beard and hair from the whole body were peeling off, and so, were the nails and soles of hands and feet. Scrotum and penis were decomposed and abdomen was distended. His tongue was protruding. In the opinion of the Doctor, death of deceased was due to the haemorrhage and shock, as a result of injuries Nos. 1, 2 and 3 caused by sharp weapon and that injury No. 3 was sufficient in the ordinary course of nature to cause death.
15. He gave the time between the death and post-mortem examination to be between 2 and 3 weeks.
16. Abdur Rashid was tendered pardon and he became the approver. His statement was recorded as P. W.
10. He stated that he was the friend of Nazir accused who told him that they should kill Muhammad Ibrahim, reason being, that he wanted to marry Mst. Sardaran wife of Muhammad Ibrahim. According to Rashid, Mst. Sardaran also came to the Baithak and they cons--pired to murder Muhammad Ibrahim. He stated that it was actually at the instance of Mst. Sardaran that he was persuaded to join the deal for causing the murder of Muhammad Ibrahim. Mst. Sardaran, according to him, said that she would pretend that Muhammad Ibrahim was to purchase the foreign cloth and she would send him along with them for the said purpose. Nazir then came out of the Baithak and asked Jalal to bring Toka for cutting the sugar--cane and then they left towards the fields alongwith Muhammad Ibrahim, deceased. They went to the "Muraba" of Ibrahim and therefrom Ibrahim was brought by Nazir. He admitted that Bashir Ahmad P. W. Had come across them. He stated that after about 10 minutes Mst. Sardaran also joined them in the "Muraba" and when she signalled, Nazir attacked Muhammad Ibrahim with a Kasri blow on his head. The approver also gave a Kassi blow to Muhammad Ibrahim. Nazir accused then inflicted another blow on the neck of Muhammad Ibrahim, and at the instance of Nazir, Jalal gave a Toka blow to Muhammad Ibrahim. Muhammad Ibrahim had by then fallen down and by died on the spot. A pit was then dug wherein Muhammad Ibrahim was buried. Muhammad Ibrahim, deceased,' was murdered in his own Killa No. 10 which was being cultivated by Nazir, accused, and he had cultivated sugarcane crop in that field. He further stated that after 13 days of the incident the Panchayat assembled and he was summoned by the Panchayat where besides others Ch. Ahmad Din, Ch. Malkiat, Ch. Bashir and Ch. Nazir were also present. He stated that they told the Panchayat that they had not killed Ibrahim. The Panchayat gave this witness and the other two accused time for the night and they promised to give them concession. Next day after consultation they came out to confess their guilt before the Panchayat because they were afraid that otherwise the Police would torture them. Thereafter the articles of the deceased and the dead body of the deceased were recovered. He admitted that he had also given a Kassi blow to Ibrahim. Moreover, he stated that he had not stated before the Magistrate that Mst. Sardaran, accused, had joined them in the "Muraba" or that Mst. Sardaran had given a signal to Nazir Ahmad, who inflicted Kassi blow on the head of Muhammad Ibrahim, deceased. He further stated that he bad toil the Magistrate that Sardaran, accused, had caught hold of the legs of Muhammad Ibrahim, deceased. Ha also admitted that none of the accused got the dead body of the deceased recovered in his presence nor any other article was recovered in his presence.
17. The Sessions Judge held that in view of the evidence on record it was established that the accused had committed the murder of Muhammad Ibrahim, and they had also concealed the dead body of Muhammad Ibrahim deceased, at Killa No. 10. He was last seen in the company of the accused, and that the accused made extra judicial confession in the presence of the Panchayat of which P.
18. W's Malkiat and Ahmad Din were members and both these witnesses fully supported P. W. Bashir Ahmad.
19. Nazir Ahmad and Mst. Sardaran, accused (convicts) submitted Criminal Appeal before the Lahore High Court, Bahawalpur Circuit, Bughdad-ul-Jadid wherein they challenged their conviction under section 302/201/34, P. P. C. And their sentence. Jalal does not appear to have filed any appeal. Their appeal was heard and the learned Single Judge of the High Court after examining the case came to the conclusion that the prosecution case rests on the following categories of evidence : --
(1) The evidence of motive.
(2) The evidence of Abdur Rashid, approver.
(3) The evidence that the deceased was last seen in the company of the accused.
(4) The circumstantial evidence; and
(5) The extra judical confession made by the appellants, before the sail two members of the Panchayat.
20. After examining the evidence on record, the learned Judge of the High Court found the statement of Bashir Ahmad, P. W. As absolutely natural and straightforward. AsMuhammad Ibrahim was an old man and Nazir. Ahmed, accused, was a young man, Mst. Sardaran was also a young woman, therefore, the illicit relationship between Mst. Sardaran and Nazir Ahmad was not only natural but that, according to P. W. Bashir Ahmad, they had been suspecting this relationship since some time past. Bashir Ahmad, P. W, had made vigorous search to trace out the deceased particularly at the places pointed out by Mst. Sardaran, and when he did not find him he was obliged to refer the matter to the Panchayat as he was already suspecting Mst. Sardaran for keeping illicit relations with Nazir Abroad, accused. In the opinion of the High Court, the evidence of motive was strong and the evidence of Bashir Ahmad, P. W. That he had last seen the deceased in the company of the accused coupled with the recovery of the various articles and the dead body on the spot and from the house of Mst. Sardaran and the extra judicial confessions made by the appellants before the said P. Ws. And last but not the least the evidence of Abdur Rashid, approver, lent full support to the prose--cution version. The conviction of accused-appellants under section 302/201/34, P. P. C. Was, accordingly, maintained and their appeal was dismissed.
21. Nazir Ahmad and Mst. Sardaran then filed Cr. P. S. L. A. No. 117 of 1976 under Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973, against the judgment of the Single Judge Lahore High Court, dated 19-2-1976. Leave was granted by order dated the 26th of March, 1978, and it was observed that the statement of the approver has neither been relied upon by the trial Court nor the High Court and it has, therefore, to be kept out of consideration; that the statement of Jalal co-accused is of no value as against the petitioner as it is self-exculpatory, and that medical evidence does not prove anything against the accused as it simply shows that the deceased had I five incised wounds. It was held that the statement of Bashir Ahmad, Ch. Malkiat and Ahmad Din did not inspire any confidence and that Basher Ahmad was not expected to wait for a fortnight when he had last seen the deceased in the company of the accused, to report the matter to the Police.
22. We have beard the arguments addressed before' us by the learned counsel for the appellants and the learned State counsel who represented the State.
23. The evidence on record so far as the motive is concerned is very clear, Bashir Ahmad, P. W. Has stated that he suspected Mst. Sardaran of having illicit relations with Nazir Ahmad, accused, and that once he had asked Mg. Sardaran about that in the presence of Muhammad Ibrahim, deceased, G but Mst. Sardaran denied such relationship. The watch Exh. K-I and the purse Exh. P-2, containing some cash which belonged to the deceased were recovered from underneath the bricks in the courtyard of the house of Mst. Sardaran at her instance. Why these articles were kept bidder has not been explained. It appears that these articles were with Mst. Sardaran, but when the matter of the murder of Muhammad Ibrahim, deceased, became clear before the Panchayat Members, she apprehended that they would visit her house and then she secretly concealed these two articles under the heap of bricks in the courtyard of her house. This shows that Mst. Sardaran knew about the murder of Ibrahim, but she had concealed this fact and had not disclosed it before any one. The recovery of the dead body of the deceased at the instance and on pointing of Nazir Ahmad, accused, stands proved on record. It was buried in a pit 4 feet deep with the intention of screening themselves from legal punishment and his dead body could not be found except on being pointed out. Muhammad Ibrahim deceased, met an unnatural death as according to the medical evidence he had been killed with some sharp weapon. Recovery of the other articles used in the perpetration of the crime is also a good circumstance. P. W. Bashir Ahmad is the uncle of Nazir Ahmad accused, and it does not stand to reason as to why Bashir Ahmad should level false charge against him, particularly the charge of his having illicit connections with his own brother's wife. Bashir Ahmad is also the father---in-law of Sadiq who is the brother of Nazir Abroad accused.
24. The deceased was last seen in the company of the accused by P. W. Bashir.
25. It was brought on record that the deceased had some enmity with some other persons. If some body had to be made a scapegoat for the sins of the accused, the best person who could be roped in this crime would have been Wajke, who had been disgraced and defamed before the village community at the instance and behest of the deceased for a moral lapse only a month prior to the occurrence. When Jalal, accused, was examined in Court under sec--tion 342, Cr. P. C. He made a clear statement completely implicating, and involving the accused including the approver for the murder of Muhammad Ibrahim, deceased, and for burying him. However, he exculpated himself.
26. Therefore his statement may not have any value to corroborate the prosecution case. Jalal has not submitted any appeal before us, although his appeal is shown to have been dismissed by the High Court. The circumstances that Bashir Ahmad, P. W. Did not meet the deceased for 3 or 4 days after be had last seen him in the company of the accused was not exceptional. Nazir Ahmad was the nephew of the deceased and Bashir Ahmad had been told by the accused that they were going to purchase foreign cloth. Besides that, the best person from whom he could inquire about the whereabouts of the deceased was his sister-in-law, namely, Mst. Sardaran, who told him, that the deceased had gone to meet Rana Mushtaq Ahmad. Again when Bashir Ahmad did not hear anything further about his brother, he went to Lahore and on coming to know from Rana Mushtaq Ahmad that the deceased had not come to meet him, he bad genuine reason to approach the Panchayat.
27. The High Court has placed full reliance on the extra judical confession made by the accused before Bashir Ahmad, Muhammad Malkiat and Ahmad Din, P. Ws. It was held that these witnesses had corroborated each other in substance regarding extra judical confession made by the appellants and the recoveries so, effected at their instance. It was further observed that: "After reading the entire examination-in-chief and the lengthy cross-examination led by the defence on them, I am fully satisfied that the result of their evidence against the appellants is quite satisfactory."
28. As far as Nazir Ahmad, accused-appellant, is concerned both the Court below are consistent in holding that he had committed the murder of Muhammad Ibrahim, deceased, and he had also concealed his dead body after burying it in a 4 feet deep pit. We are, therefore, of the view that no sub--stantial point has been stressed before us to persuade us to disagree. W therefore, endorse the finding of the trial Judge and the High Court and hold that Nazir Ahmad, accused, is guilty of committing the murder of Muhammad Ibrahim deceased and then concealing his dead body in a pit, then later at his instance the dead body was recovered by digging the earth. Nazir Ahmad was properly convicted for offence under section 302/34, P. P. C. And also for offence under section 20l/34, P. P. C. And the sentence awarded to him is appropriate.
29. So far as Mst. Sardaran, appellant, is concerned, the case under sec--tion 201, P. P. C. Has been fully made out against her, but her involvement in the murder of Muhammad Ibrahim deceased, has not been proved beyond any shadow of doubt. We, therefore, accept her appeal so far as charge under section 302/34, P. P. C. Is concerned and she is acquitted of that charge. Her conviction under section 201, P. P. C. Is, however, maintained and the sentence awarded to her on that charge is appropriate. The result is that the appeal of Nazir Ahmad (convict) is dismissed and the appeal of Mst. Sardaran is partially accepted as observed above.