This criminal revision is directed against the order dated 17.03.2010 passed by the learned Addl. Sessions Judge Sahiwal whereby he framed the charge against the petitioner and his co-accused u/Ss. 364/302/201/404/408/34 PPC in case FIR No. 619/09 dated 25.11.2009 registered at PS: Farid Town Sahiwal in the murder case pending trial before his Court.
2. Learned counsel for the petitioner contends that the charge framed in this case on 17.03.2010 against the petitioner and his co-accused is not in precise formulation of specific accusation against them. Where case of the prosecution is that the person abducted was in fact murdered, there could be no scope for a charge u/S. 364, PPC.
The abductor should be charged either with murder , pure and simple or at least with abetment of murder . Likewise, since the dead body of the deceased was recovered on the same day by Rawalpindi police who registered case FIR No. 271 dated 22.11.2009 u/S. 302, PPC PS Chauntra District Rawalpindi and the dead body was also handed over to the blood relatives on 25,1 1.2009, framing of-charge u/S. 201 PPC is contrary to law .
In support of his contention, learned counsel for the petitioner relied upon AIR 1940 Calcatta 561 and PLD 1950 Dacca 04.
3. On the other hand, DPG on behalf of the State assisted by the learned counsel for Nadeem-ur-Rehman complainant/respondent No. 2 strongly opposed this revision.
4. Arguments heard. Record perused.
5. The proposition pleaded by the counsel for the petitioner was also argued before the Division Bench of the Lahore High Court Lahore in case Jagdev and 12 others vs. The State 1971 P.Cr.LJ 162 [Lahore] in which they dissented from 'Upendra Nath Ghose vs. Emperor' AIR. 1940 Cal 561 and 'Mazharul Haque vs. Crown' PLD 1950 Dacca 4 , and held as under: "We do not agree with the general proposition canvassed by the learned counsel. It all depends upon the circumstances of each case as to whether or not after the proof of murder , Section 364, PPC, applied. The facts in Ahmad and others vs. Emperor (3), are almost similar as are in the present case. It was held by Coldstream and Abdul Qadir , JJ: that inspite of the finding that the murder had. in fact, been committed, the accused were liable to be convicted under Section 364, Penal Code. The question was considered in detail by their Lordships S.M.
Murshed and A.S Choudhary , JJ; in Noor Muhammad and another vs. The State (4). While distinguishing the case of Sher Ali us. The State (5), their Lordship observed as follows: .............Each case must be tried and decided on its own facts and circumstances. The proximity of time between the abduction and the killing as also the proximity of place where the murder and the abduction have taken place, are important factors in determining the question whether the offence falls within the mischief of-Section 302/109 or of Section 364 of the Code. No fixed yardstick can be forged which might be of universal application."
It has been laid down in " Maqbool Ahmed vs. The State 'NLR 1993 SD 793 (Federal Shariat Court) that.
"Ss. 364, 302. Conviction sentence based on extra judicial confession. Held; (i) This circumstantial evidence left no room for doubt that convict had abducted deceased in order to murder and that he had actually hacked him to death (ii) Prosecution evidence relied upon by Court in support of charge u/ss. 302.362 inspire confidence and justified conclusion of guilt against convict reached by trial Court."
It has been observed in 'Mutahar vs. The State 2002 SCMR 1858 [Supreme Court of Pakistan] that.
"Ss. 302/324/335/336/337 A(iii)/364/382/ 411/201/ 34. Constitution of Pakistan (1973). Art. 185(3)--Cold-blooded murder--Five persons were murdered by the accused on refusal of giving hand of one of the girls of the victim party to the accused--T rial Court awarded death sentence to the accused for each murder and appeal was dismissed by the High Court--Counsel for the accused conceded that there was irrefutable evidence on record to show that accused was responsible for the murders--Only contention of the accused was reduction in sentence--V alidity- Accused had committed cold-blooded murders and had pre-planned for the same, he was not entitled to any leniency-Supreme Court declined to interfere with the sentence passed by the Courts below--Leave to appeal was refused."
It has been held in 'Gulzar Ahmad vs. The State' 2002 SCMR 596 [Supreme Court of Pakistan] that, Ss. 302, 364-A, 377 & 201--Anti-T erroris m Act (XXVII of 1997), Ss.6 & 7 (1)--Appraisal of evidence--Prosecution had collected trustworthy and reliable evidence, and all its witnesses had fully supported the case--Evidence of prosecution witness (taxi driver , whose taxi had been hired by the accused) was of unimpeachable character , who had given all necessary details showing the manner of occurrence and taking of deceased in his taxi--No previous enmity or existed between prosecution witnesses and accused to falsely implicate him in the case-- Accused had subjected male child to sodomy before murder Evidence of prosecution witnesses, recovery of dead bodies at pointation of accused and his extra-judicial confession coupled with medi cal evidence had established his guilt--High Court had dismissed appeal of accused with sound and cogent reasons --Accused had committed brutal and cruel murders of two innocent minor children, he did not deserve any leniency--Capital punishment had rightly been awarded by Trial Court and confirmed by High Court--Convictions and sentences of accused were upheld in circumstances."
It has been laid down in 'Tariq Mehmood vs. The State and 'Ghuhm Mnstafa Khokhar vs. Tariq Mehmood and another 2003 SCJ 507 that, "Ss. 302, 392, 301, 411 and Zina (Hudood) Ordinance, 1979) S. 10(3), Circumstantial evidence would be sufficient to base conviction for rape/murder when accused did not furnish any explanation about his involvement in offence and he did not examine himself on oath under S. 340(2), Cr.P.C. Conviction/sentence recorded by trial Court against accused on basis of circumstantial evidence and affirmed by High Court upheld by Supreme Court as unexceptionable."
It has been held in Mureed Hussain vs. The State 2004 SCMR 204 [Supreme Court of Pakistan] that, "Ss. 302, 364-A & 201--Constitution of Pakistan (1973). Art. 185(3)--Deceased was last seen with the accused before he was found missing--Prosecution witness before whom the accused had made extra-judicial confession had supported the prosecution case in unequivocal terms who had no malice, ill will or animosity against the accused to falsely implicate him in the case--Accused had pointed out the place where he had thrown the deceased in the canal and had led to the recovery of shirt of the deceased which had farther corroborated the prosecution case--Courts below had correctly appreciated the evidence on record--Impugned judgment was based on good reasons and the law laid down by Supreme Court of Pakistan and was not open to any exception--Leave to appeal was declined to accused accordingly ."
6. In view of chain of authorities quoted above, I find that charge u/S. 364/201/34 along with Section 302, PPC has been correctly framed in the light of the facts and circumstances of the present case. The impugned order passed by the learned trial Court is unexceptionable and I also uphold the same.
7. The upshot of above discussion is that criminal revision has no merit which is hereby dismissed