MANZOOR AHMAD MALIK, J.---Appellant Akhtar son of Sadiq was indicted by the learned Additional Sessions Judge, Chiniot to face trial in case FIR No. 516 dated 15.08.2004, offence under sections 302, 201, P.P.C., registered at P.S. Saddar, Chiniot. On conclusibn of trial, the learned trial court, vide its judgment dated 18.01.2010, convicted the appellant under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay compensation of Rs.100,000/- to the legal heirs of deceased Shahid Ali, in default whereof to undergo SI for six months. Aggrieved of his conviction and sentence, the appellant filed a criminal appeal before the Lahore High Court, Lahore. A murder reference was also sent by the trial court for confirmation of sentence of death of appellant or otherwise. Through the impugned judgment, the learned Appellate Court dismissed the criminal appeal of appellant and maintained his conviction and sentence of death. The murder reference was accordingly answered in the affirmative. Thereafter, the appellant filed a criminal petition before this Court, wherein leave was granted on 20.07.2020. Hence, the instant criminal appeal.
2. The FIR in this case was registered on the written application (Ex.PB) of complainant Shaukat Ali (PW4), wherein he stated that his son Shahid Ali aged 12/13 years used to go to the shop of appellant to do homework from their neighbor Nawaz, brother of appellant. On 11.08.2004, Shahid Ali went to the shop of Akhtar appellant but did not return. The complainant and others asked from Akther appellant about Shahid Ali but he did not tell them about him and made lame excuses. On 15.08.2004, the complainant and other PWs went to the appellant again and asked about Shahid Ali but he did not give a straight answer. The complainant threatened him of legal consequences, whereupon he informed them that on 11.08.2004, he (appellant) took Shahid Ali to a vacant house of Aslam, barber with intention to commit sodomy; that on resistance made by Shahid Ali, the appellant could not succeed and with an iron wire throttled Shahid Ali and concealed his dead body in an iron container and locked the house. The complainant further stated in the application that with the help of PWs he apprehended the appellant and proceeded to take him to police station.
3. We have heard learned counsel for the appellant, learned .counsel for the complainant and learned Additional Prosecutor General at length and with their assistance have examined the available record.
4. The occurrence in this case, as per prosecution, took place on 11.08.2004 and the matter was reported to police on 15.08.2004, whereafter formal FIR was registered. Apparently there is delay in reporting the matter to police, but said delay has been explained by the complainant in. the FIR and before the trial court. In the FIR which was registered on me written application (Ex.PB) of complainant, it is mentioned that after missing of his son Shahid Ali, the complainant and others started searching him and in that search, they also went to the appellant and asked from him about the whereabouts of Shahid Ali. In his cross-examination, the complainant Shaukat Ali (PW4) while replying to a suggestion, stated that he orally informed Moharrar of police station that his son was missing on the next day of occurrence and the said Moharrar told him that police would search his missing son. In this case, Shahid Ali was the only son of complainant and was aged 12/13 years. It is quite natural for a father to put his best efforts in searching his missing son before reporting the matter to police particularly when he had no suspicion against anyone. In the circumstances, delay in reporting the matter to police is not fatal to the prosecution.
5. It has been observed by us that there is no direct evidence in this case and the prosecution case hinges upon circumstantial evidence. The first piece of circumstantial evidence is the extra judicial confession of the appellant before complainant Shaukat Ali (PW4) and Muhammad Aslam (PW6). While appearing before the trial court, the complainant Shaukat Ali (PW4) and Muhammad Aslam (PW6) reiterated the contents of FIR with full confidence.
They explained in detail how they on 15.08.2004 along with other witnesses went to the appellant asked him about whereabouts of Shahid Ali (deceased); how the complainant told the appellant regarding initiation of legal proceedings if he did not disclose the whereabouts of Shahid Ali; how the appellant' disclosed before them that he took Shahid Ali to the house of Aslam, barber, with intention to commit sodomy with him and on his failure to do unnatural act with Shahid Ali, he with an iron wire strangulated him and concealed his body in an iron box in that house. They further stated that after the extra judicial confession of appellant, they apprehended him and proceeded towards police station but the police met them near Cool Storage of Wahla Rahi, where the complainant gave application (Ex.PB) to the police officer for registration of case. Despite lengthy cross- examination, the defence was not able to elicit anything from these PWs regarding false implication of appellant in this case.
6. The extra judicial confession of appellant is supported by the medical evidence furnished by Dr. Muhammad Shafee Saleem (PW-5), who conducted autopsy on the body of Shahid Ali and observed a contusion mark all around the neck of deceased; a contusion mark around right wrist except on inner side; a contusion mark into back side and both outer sides of left wrist. These observations of 'the doctor supplement the extra judicial confession of appellant that he with an iron wire strangulated Shahid Ali and before that tied his wrists. The doctor in his cross-examination denied the suggestion that body of deceased was not identifiable. The appellant in his extra judicial confession also stated before the prosecution witnesses that he took Shahid Ali in a vacant house for committing unnatural act with him. Three swabs were taken fioin the anal region of deceased Shahid Ali by the doctor and were sent to the Chemical Examiner. According to report of Chemical Examiner (Ex.PH), the said swabs are stained with semen. The doctor (PW-5) in his court statement also endorsed the report of Chemical Examiner (Ex.PH).
7. It has further been observed by us that on disclosure of appellant before police, dead body of Shahid Ali was recovered from the vacant house of Aslam barber on the poination of appellant. He also got recovered the keys of house of Aslam barber from his shop. Apart from that, the appellant got recovered sky blue shirt (P.12), bag (P.9), books (P.10/1-5), register (P.11) of the deceased Shahid Ali. All, these circumstances outweigh the claim of appellant that he has falsely been implicated in this case and lead us to conclusion that prosecution has been successful in proving its case against the appellant.
8. So far as prayer of learned counsel for the appellant regarding alternate sentence of imprisonment for life instead of death is concerned, it has been observed by us that the prosecution case is based upon circumstantial evidence, as has been discussed in the preceding paragraphs. Although the conviction of appellant under section 302(b), P.P.C. does not call for any interference by this Court, but considering the overall circumstances of the case, we are of the view that instead of death sentence, the alternate sentence of imprisonment for life provided under section 302(b), P.P.C. shall meet the ends of justice.
9. For the foregoing, the instant criminal appeal is partly allowed. The conviction of appellant Akhtar under section 302(b), P.P.C. is maintained but his sentence of death is converted into imprisonment for life. The amount of compensation and sentence in its default as awarded by the learned courts below shall remain intact. Benefit of section 382-B, Code of Criminal Procedure is extended to the appellant.