1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave of this Court is directed against the judgment dated 27-8-1977 of the Lahore High Court; whereby while upholding the conviction of Habibullah appellant for the murder of one Hamid Mahmud, the sentence of death awarded to him was reduced to imprisonment for life. The sentence of fine was, however, maintained. i ' Hamid Mahmud deceased a by of about 13 years was studying in Jamia Rashidia, Sahiwal. .
2. Habibullah appellant and his acquitted co-accused, Asadullah were also then studying. Hafiz Abdul Majeed (P. W.) father of deceased was a teacher in the same institution. Habibullah appellant, aged 17 was also a student of the institution but his name was struck off the same. This happened about two weeks prior to the occurrence which took place on or about 12-7-1974. On that day the deceased went out after Asar prayer time but did not return. On inquiry made by Abdul Majid (P. W.) one Muhammad Din (not examined as a witness) informed him that the deceased was seen with the appellant and accused Aiadullah. The search continued till 16-7-1974.
3. In the meanwhile, one Abdul Ghafoor who also was not examined as P. W. Contacted the appellant on the basis of the earlier information conveyed by Muhammad Din, so as to ascertain the whereabout of the deceased. On the afternoon of 16-7-1974 the dead body of the deceased was found near a canal bridge. Abdul Majid accordingly reported the matter to the police at 5-00 p. m.
4. On that, day. The appellant and his co-accused Asadullah were mentioned in the F. I. R. Two motives were alleged against them, one of unnatural offence and the other of educational rivalry and jealousy. Post-mortem performed on the morning of 17-7-1974 revealed that the dead body was in an advanced stage of putrefaction. All the soft parts in the thorax and abdomen were almost completely eaten. It was clad in a torn shirt. Afore-noted state of the body, traces of two incised wounds, one on the upper part of the front left leg and the other one (skin deep) on the inner side of right thumb, were noted. The cause of death however, could not be clearly ascertained. The appellant who in the meanwhile had been taken into custody, when medically examined had for simple contusions and a swelling. On his pointing out, blood-stained earth was recovered from near the dead body, where, according to the confession of the appellant, the murder took place. Similarly the bloodstained chaddar and handkerchief of the deceased were recovered at the pointing out of the appellant from a nearby ditch. On the same day i,e, 17-7-1974 an application was made by the police for recording of the confessional statement of the appellant which could not be recorded on that day nor the next day, i,e, 18-7-1974, when the appellant was sent to judicial lock-up. On 19-7-1974, however, Mr. Ahmed Raza, Magistrate '1st Class recorded his confession wherein he owned the killing but on another motive; namely, the enmity of his co-accused Assadullah with the deceased. He also bad earlier made an extra judicial confession to Maulvi Maqbool Ahmed (P. W.) and Hafiz Muhammad Ahmad (P. W. 3) who had recovered a knife, the weapon of offence, from him. In this extra judicial confession the motive disclosed was an attempt to commit the unnatural offence.
5. ' All the a fore noted circumstantial and other evidence was led at the trial. The appellant's plea was of denial and false implication by Maulvi Maqbool Ahmed and Hafiz Muhammad Ahmad who as stated were related to the deceased. Regarding judicial confession, his plea was that it was made under coercion. No evidence was led in defence.
6. ' Learned trial Judge did not rely on the recovery but accepted both the confessions, extra-judicial as well as judicial, as true and genuine. Relying on the confessions as also the other attending circumstances the learned Judge held the appellant guilty under section 302, P. P. C. And sentenced him to death. Asadullah the other accused was acquitted on benefit of doubt. On appeal and reference a Division Bench while maintaining the conviction of the appellant under section 302, P. P. C., reduced the sentence to imprisonment for life mainly on ground of age.
7. Leave was granted to re-examine the question whether in the facts and circumstances of this case, after the exclusion of the recoveries of the articles belonging to the deceased, the confessions together with the remaining attending circumstances, were sufficient for maintaining the conviction.
8. ' There are two main attacks on the extra-judicial confession made 'by the appellant to Maulvi Maqbool Ahmad and Hafiz Muhammad Ahmad (P. Ws.) : firstly, that they are interested witnesses because the former is closely related to the deceased and the latter is connected with the educational institution Jamia Rashidia, where the deceased was a student ; and secondly, that the motive disclosed in this extra-judicial confession is at variance with the motive mentioned in the F.
9. I. R. As also, the judicial confession.
10. It is true that both the witnesses of the extra judicial confession are connected with and also related to the deceased and his father, the complainant in this case ; but, mere relationship unless \there is an interest to falsely implicate the accused, would not affect the witnesses. There is no indication that the complainant bore any grudge against the appellant prior to this occurrence.
11. There was no reason for him to falsely implicate him and there was none whatsoever for his relations. On the other hand the appellant who is mentioned as Hafiz-i-Quran, was connected with these two witnesses so closely in the institutional relationship, that they could not have any motive to falsely implicate such a person. Moulvi Maqbool Ahmad (P. W.) who had performed Haj ten times had impressed the learned trial Judge as a pious person who was otherwise also, not likely to falsely involve the appellant. The comment in that behalf in the trial Court judgment is that this witness was "the Nazam of a very big religious institution named Jamia Rashidia impressed me a lot during the trial. Whereabouts 600 students got religious education and are taught Quran and Fiqah .He has been on Tabligh Mission to the United Kingdom for sufficient time." There is no force in the first contention about reliability of these P. Ws.
12. ' Regarding different motives stated by the appellant in the two confessions, it is pertinent to note that they are not mutually exclusive. Both could be correct. He stated in the judicial confession that Asadullah a by of 15, his co-accused, had some grudge against the deceased, a lad of 13 years ; and, that the appellant acted, as he did, for his friend's sake. This confession is very short one in few lines. The details about the manner in which the deceased was inveigled to the place of occurrence and then was asked to submit first to sodomy, are missing. On the other hand the extra judicial confession made to the two witnesses, which is first in time and was made immediately by the appellant to them (on being apprehended) without any tutoring one way on the other, is very detailed. He then stated that the deceased when taken to a place of vantage for act of sodomy (it was so found during the investigation), resisted the overtures made by the appellant and his companion, verbally and then physically also. According to one witness who gave more details about this part of the occurrence, the young lad also attacked the appellant with his hands in the defence of his honour and it was then that he was counter-attacked by the accused. Thus it appears, for some previous mutual incident amongst the boys, it, was intended that he be taught a lesson which to the ill-luck of all concerned developed into sinister acts-first attempt at sodomy and then, on account of the physical forceful resistence by the by, the act of murder. It was due to all this, therefore, that before the appellant handled the knife, according to one witness, he had asked his companion to do so ; who, did use it but started trembling and then he (the appellant who was the eldest amongst the three) took the knife himself and, as stated by him, gave a couple of blows. The so-called discrepancy in the motive disclosed in the two confessions, thus is not real.
13. Same is the position regarding the suspected motive disclosed in the F. I. R. Which fits in with the above analysis.
14. ' There are two other smaller points also which might be dealt before passing on to the judicial confession. It is said that the doctor was unable to give the cause of the death due to advanced putrefaction of the dead body. The post-mortem examination took place on the morning of the 17th while the appellant made extra judicial confession also on the morning of 17th. The state of the body which no doubt was found on the 16th, was such that it was difficult for laymen to discover as to what was the cause of death. It was found on the bank of the canal half submerged in water.
15. One guess could be about drowning but the doctor was later on able to discover "traces" of use of a sharp-edged weapon. This, however, was known to the appellant even before the discovery by the doctor. He had disclosed it in his extrajudicial confession. These circumstances not only confirm the same but also are positive evidence about the cause of the death.
16. ' The appellant had few contusions on his person. He tried to utilize them in his favour at the trial by pleading that the confession was due to beating. But as noted by the learned trial Judge, he told lies in this behalf. In his two statements, one before the learned Committing Magistrate and the other before the learned trial Judge, he gave two different reasons. One that the police tortured him and the other that the two witnesses of extra-judicial confession and the complainant gave him beating for extracting the confession. These witnesses did manhandle him when according to one of them he tried to escape. But that also would not produce all the contusions found on the body of the appellant. They seem typical marks of fist blows. The explanation given by accused being self-contradictory and false the only other view (highly probable one) is that they are due to the fist blows inflicted by the deceased on the appellant when resisting and attempting to extricate himself from his clutches. The different duration mentioned by the doctor is an obvious mistake in forming an opinion in that behalf, without noticing the state of coloring etc. Of the contusions.
17. ' Some doubt was also sought to be created with reference to the identity of the deceased the argument being that the maggots had damaged the dead body to considerable extent so as to make the identification impossible. True it was difficult, (as it appears from the description given by the doctor) to make identification: but, the complainant, a father having himself made the discovery of the dead body identified it. The recoveries of the articles belonging to the deceased, even if doubtful in so far as the question whether the appellant led the police to this recovery, is independently a material to help identify the dead body. The cross-examination of the witnesses in this behalf did not produce any positive result in favour of the appellant. And if the confessions are relied upon they also furnished the direct evidence with regard to the death of the victim in this case. The medical evidence, therefore, contrary to what has been urged as contradicting the prosecution case, to a' considerable extent as has been discussed above, confirms it.
18. ' The criticism by the defence regarding the use of judicial confession against the appellant by the learned Courts below, has also, on scrutiny, been found to be of no avail to the appellant. The contents of the confession and papers connected therewith do not show that the learned Magistrate who recorded the confession disclosed his own identity to the appellant before recording it ; but, in the circumstances of this case the appellant did not suffer any prejudice in this behalf ; because according to his own admissions in his statement made under section 342, Cr. P, C. He was aware when making the confession, that it was being recorded by a Magistrate. In fact the appellant was taken twice before the Magistrate for recording his confession and on the second time i,e, on 18-7-1974, the learned Magistrate made a note, that the confessional statement could not be recorded while the accused was on personal remand with the police. Accordingly it was directed that he be sent to the judicial lock-up and then he should be produced for recording of the statement. Accordingly the appellant was kept in the judicial lock up and produced again on the next day, for recording of his confession which was then duly recorded after the warning that he was not bound to make it. The argument that no such warning was administered to the appellant, is not based on the record. The testimony of the Magistrate in this behalf having been scrutinized no substantial defect has been found with regard to the recording of the confession and formalities connected therewith.
19. ' The criticism based on so-called conflict between the motive mentioned in the judicial confession and the other motives mentioned elsewhere, has already been dealt with and same is the case with regard to the argument that the medical evidence does not support the version contained in the confession.
20. ' The general argument that the evidence regarding last seen which was available not having been produced against the appellant and the recoveries of the articles belonging to the deceased not having been used against the appellant by the learned Courts below, these circumstances should react on the value of the extra-judicial confession, ignores a basic question in this case that there was no element of animosity against the appellant as noted earlier in so far as the complainant's side is concerned. On the other hand the witnesses of extra-judicial confession .Before whom the appellant disclosed the details of the occurrence in the first instance, immediately after he was apprehended by them, are in the position of his own guardians. They, however, deposed against him despite a possibility of a soft corner for him as their ex-student. The appellant at the time of occurrence was also of tender age. None had any grudge whatsoever against him. The circumstance that the two witnesses of last seen together-Abdul Ghafoor and Muhammad Din or for that matter the cycle owners from whom the three boys hired cycles, did not appear and depose against the appellant, are indicative of the fact that in the background of the case, they might have been prevailed upon by the defence not to depose against the boys. But despite that the circumstances in which the dead body was discovered, the appellant and his companion were apprehended and the clue to the murder was found, all of them not only are relevant but also constitute "the matters before the Court" ; which, as is evident from the definition of "proved" in the Evidence Act, could be taken into consideration. However, it is not necessary to discuss this aspect of the case in detail as it appears that the learned Courts below, by way of abundant caution, have kept them out of consideration.
21. ' As a result of the scrutiny made with the help of the learned counsel for the appellant, we are satisfied that the acceptance by the learned Courts below of the two confessions as genuine and true, has neither contravened any law or principle nor it is against the record. The confessions find substantial support from the conduct of the appellant as also medical evidence. The conviction for the offence -of murder in this case is amply justified. The appellant has already been extended the benefit of lesser sentence, is not a fit case for interference. This appeal accordingly is dismissed.