KHIZAR HAYAT, J. ---Muhammad Aman aged 25 years resident of Sahiwal has been convicted by Additional Sessions Judge, Sahiwal under sections 302 and 377, P. P. C. And sentenced to suffer death and a fine of Rs..2,C00 in default whereof to undergo rigorous imprisonment for two years on first count and to nine years' rigorous imprisonment and a fine of Rs. 1,000 in default whereof to undergo rigorous imprisonment for one year under the second count. He has appealed against his convictions and sentences and also the record of the proceedings has been sent to this Court under section 374, Cr. P. C. For confirming the death sentence. This judgment shall dispose of the appeal and the murder reference as well.
2. Briefly the prosecution case as disclosed at the trial in the state--ments of Hashmat Ali, the first informant and the other witnesses is as follows
3. Hashmat Ali, the first informant, used to work as cigarette vendor at Khanewal Railway Station in the days of occurrence while his family resided at Sahiwal. He received a message that his son Muhammad Ramzan alias Heera aged 8/9, 9/10 years was missing. He reached home in the early hours of 7th March, 1979. His wife Mst. Hafeezan (P. W. 10) told him that Muhammad Ramzan was playing with his class-fellow Rehan Abbas (P. W. 8) on the previous evening in front of the house who did not return home even after sunset, whereupon, she got worried and went out in his search.
She contacted Rehan Abbas who told her that they were playing together a little before sunset time near their house, where the appellant came and asked him (Rehan Abbas) to by salt for him but he refused saying that he was going home for he was feeling hungry. The appellant then asked Muhammad Ramzan for buying salt of Rupee one for him. At first, Muhammad Ramzan also refused, but had agreed when the appellant offered him two ten-paisa coins (described as in F. I.
R.). Muhammad Ramzan and Muhammad Aman were still stand--ing there when he (Rehan Abbas) left for his house. On this information Mst. Hafeezan went to the appellant's house who was found absent. She told Mst. Guddi, sister of the appellant, that her brother had sent Muhammad Ramzan for purchasing salt whereafter Muhammad Ramzan has not reached home. Mst. Guddi replied that there was enough salt available in the house and there was no need for the appellant to purchase more. After about Isha prayers time Mst. Hafeezan P. W. Was still roaming in search of her son when the appellant met her coming on a bicycle. She stopped him and enquired from him about Muhammad Ramzan. The appellant replied that Muhammad Ramzan did purchase salt for him but after delivering the same to him he had gone away. He showed her a packet and told her that he had got "Dum" performed on that salt from an old lady (later found to be Mst. Safia P. W.
Who was not examined).
4. Having learnt all about this, Hashmat Ali (P. W. 11) went in search of his son to some villages near Renala Khurd and Mst. Hafeezan P. W. Again contacted the appellant and asked him to take her to the house of Mst. Safia, which he did. She learnt from Mst. Safia that the appellant gave her salt on the previous night for `Dum' but had not yet collected it. This aroused suspicion in her mind because the appellant had earlier told her that he had since collected the salt from Mst. Safia.
Hashmat Ali returned from Renala Khurd without any success. Mst. Hafeezan apprised him of her efforts. Ultimately Hashmat Ali P. W. Lodged report Exh. P. C. With S.-I. Muhammad Anwar (P. W. 6) express--ing suspicion against the appellant to have concealed his son. Formal F. I. R. Exh. P. C./L was drawn up by H. C. Abdul Rashid (P. W. 4), at Police Station `B' Division, Sahiwal. S.-I. Hashim Ali (P. W. 13) having learnt about the occurrence reached the spot and took up the investiga--tion. He summoned the appellant there, interrogated him for some time and let him go, however he arrested him on the night of 9th March, 1979.
5. The appellant while under arrest at 9-10 p. m. On 9th March, 1979 offered to get the dead body of Muhammad Ramzan, deceased, recovered.
The Sub-Inspector sent for Hashmat Ali (P. W. 11), Muhammad Ramzan (P. W. 12), Muhammad Umar and Abdul Ghafoor P. Ws. (not produced) and in their presence the appellant having made a statement led to the discovery of dead body from a field under wheat crop (described as Killa No. 17 of square No. 26) in the vicinity of Chak No. 90/9-L at a distance of half or three quarters of a mile from the house of the deceased. The dead body had numerous incised injuries and some portion of its ears, cheek, chin and the nose had been eaten away by rodents.
6. From the shirt pocket of the deceased two blood-stained ten-paisa coins P. 7 and P. 8 were recovered. The dead body as well as the coins were taken into possession through memo. Exh. P. J.
The appellant then pointed out the place of murder about 40/45 Karams away from the place of recovery of the dead body (described as Killa No. 23 of the same square) from here blood-stained earth was collected and taken into possession vide memo. Exh. P. K. Both these memos. Were attested by Hashmat Ali (P. W. 11), Muhammad Ramzan (P. W. 12) and the Investigating Officer.
Having prepared the injury statement Exh. P. C. And inquest report Exh. P. P. The dead body was sent under the escort of F. C Naseer Ahmad (P. W. 7) for post-mortem examination.
7. On the next day i.e. 10th March, 1979, the appellant led to the recovery of blood-stained chhuri P. 4 from near the place of murder which was sealed and secured under memo. Exh. P. E. At the same time F. C. Naseer Ahmad (P. W. 7) picked up blood-stained khesi P. 5 (belonging to the deceased by) lying in the same field which was secured under' memo. Exh. P. F. Thereafter, the appellant got recovered bicycle P. 9 from the verandah of his house and his blood-stained clothes ; shirt P. 10 and dhori P. 11 from the roof of his house which were made into sealed parcel and seized under memo.
Exh. P. M. These memos. Were attested by Muhammad amzan (P. W. 12), Muhammad Umar P. W.
(not pro--duced) and S.-I. Haji Hashim Ali (P. W. 13).
On 13th March, 1979, a pair of "Mokation shoes" of the deceased was recovered at the pointation of the appellant from near the Government Agricultural Farm, Sahiwal, and was seized under memo.
Exh. P. N. Attested by same witnesses.
8. Dr. Muhammad Afzal, Medical Officer, D. H. Q. Hospital, Sahiwal (P. W. 9) conducted post-mortem examination on the dead body of Muhammad Ramzan, deceased, and noted the following injuries :-
(1) Lacerated wound 1" x 1" x cartilage deep on the tip of nose.
(2) Lacerated wound 3" x 1/4" x cartilage deep over the pinna of right ear.
(3) Lacerated wound 5" x 4" x muscle deep on the right temporal region, right cheek, right side of chin and front and right side upper part of neck.
(4) Lacerated wound 1--" x- --" x cartilage deep on the lower half of left pinna of the ear.
(5) Incised wound 1--" x --" x deep going on the front left side of neck.
(6) Incised wound 2" x 1" x deep going on the front lower part of neck and upper part of chest in the centre.
(7) Incised Wound 1" x --" x deep going on the front lower part of left chest in between 6th and 7th ribs, 2" below the left nipple.
(8) Incised wound 1" x --" x deep going on the front upper part of left chest.
(9) Incised wound 1" x --" x deep going on the right hypochon--drium 1/4" from the middle line.
(10) Incised wound 1" x 1/2" x deep going on the front lower part of right chest in between 6th and 7th ribs, 2" below and outer to right nipple.
(11) Incised wound 1/2" x 1/4" x deep going on the front upper part of right abdomen 3--" below and outer to injury No. 9.
(12) Incised wound 1/2" x 1/4" x muscle deep on the back upper part of left scapula.
(13) Incised wound 1/2" x 1/4" x deep going on the back middle part of right chest, 1" froth the spinal column.
(14) Incised wound --" x --" x deep going on the back lower part of right chest, 3" outer to the spinal column.
(15) Incised wound if 1--" x --" x deep going with intestine protruding out on the outer part of left lumber area.
(16) Lacerated wound --" x 1/6" x mucus membrane deep on the 7 o'clock position on the inner side of the anus.
(17) Lacerated wound --" x 1/6" x mucus membrane deep at the 6 o'clock position of the anus.
Injury Nos. 1 to 4 were post-mortem and the remaining were ante-mortem.
On dissection the doctor found that under injury No. 6, second right cartilage of second rib and the right pleura and upper part of right lung were cut, lower lobe of left lung was injured under injury No. 7; under injury No. 9 right side of costal cartilage was cut and liver injured ; under injury No. 10, lower part in front of right lung was injured ; under injury Nos. 13 and 14, back of the right lung was injured and under injury No. 15, large intestine was injured. Stomach contained six ounces of semi-- digested food.
Injury Nos. 5 to 15 were caused by sharp-edged weapon. Injury Nos. 16 and 17 were found to be the result of carnal intercourse commit--ted with the deceased. Three anal swabs were taken and sent to the Chemical Examiner for detection of semen. The Chemical Examiner vide report Exh. P. I.
Reported that they were semen-stained.
Probable time that elapsed between injuries and death in the opinion of the doctor was half to one hour and between death and post-mortem examination was 3 days and 17 hours.
The same doctor examined the appellant on 11th March, 1979 at 12.30 P. m. And reported that his genital organs were well developed and he was capable of performing sexual intercourse.
9. Shirt and chaddar of the appellant and shirt, pajama, khesi and banvan of the deceased were found stained with blood as also with semen vide Chemical Examiner's reports Exh. P. Q. And P. R.
The two ten-paisa coins recovered from the shirt pocket of the deceased; the earth collected from the spot and the weapon of offence chhuri P. 4 were also found stained with blood of human origin vide Serologist's report Exh. P. R.
10. The prosecution relied on the following categories of evidence, namely :-
(a) evidence of "last seen" furnished by Rehan Abbasi (P. W . 8) ;
(b) evidence of recovery of dead body of Muhammad Ramzan, blood--stained chhuri P. 4 and blood-stained clothes of the appellant P. 10 and P. 11 provided by Hashmat Ali and Muhammad Ramzan (P. Ws. 11/12) ;
(c) medical evidence given by Dr. Muhammad Afzal P. W. 9) showing that Muhammad Ramzan met unnatural death after he was subject--ted to sodomy ; and
(d) the reports of the Chemical Examiner Exh. P. I. Showing rectal swabs stained with semen ; Exh. P.
Q. Showing the clothes of the deceased as well as of the appellant as stained with blood and semen and the earth collected from the spot and chhuri P. 4 stained with blood. Serologist report Exh. P. R. Confirming that blood was human origin.
11. Having believed the abovementioned pieces of evidence the learned trial Court held that the appellant after committing carnal intercourse with Muhammad Ramzan deceased had murdered him and inflicted extreme penalty on him as indicated in paragraph 1 of the judgment.
12. The learned counsel appearing on behalf of the appellant has argued that there is no direct evidence connecting the appellant with the crime; that the F. I. R. In this case was delayed for more than 24 hours; that the circumstantial evidence of `last seen' and the "incriminating recoveries" have been sought to be proved through close relatives of the deceased, not corroborated by independent evidence, therefore, it has not been established beyond reasonable doubt that none else but the appel--lant had committed sodomy with Muhammad Ramzan and then murdered him. As against this, learned State counsel has supported the order of conviction.
13. Since the case against the appellant hinges on circumstantial evidence, therefore, it requires to be determined as to whether the material on record is sufficient and satisfactory to sustain the conviction of the appellant on capital charge.
14. The dead body of Muhammad Ramzan alias Heera as stated earlier was post-mortemed by Dr. Muhammad Afzal (P. W. 9) at 1 p. m. On 10th March, 1979: According to the doctor, .The dead body had 10 ante-mortem incised wounds. The skin and the muscles of right cheek, right mandible, front and upper part of the neck were found partly eaten away at the time of the post-mortem examination. There were two lacera--ted wounds at 6 o'clock and 7 o'clock position on the anus.
The rectal swa bs prepared and sent to Chemical Examiner were found as stained with semen, therefore, the doctor had, opined that the deceased was first subjected to "carnal intercourse" and then killed by giving extensive injuries with sharp-edged weapon. The time between the death and post-mortem examination is 3 days and 17 hours. By giving a margin of two hours on either side if the time is calculated backward, it would show that the deceased was killed some time in between 6 p.m. And 10 p. m. On 6th March, 1979 and according to the prosecution, the deceased had disappeared immediately before sunset that means at about 5 p. m. On 6th March, 1979. Rehan Abbas (P. W. 8) a playmate of the deceased, stated that a little before sunset he was playing with the deceased near his house in the street when the appellant came there and first asked him (Rehan Abbas) to purchase salt for him and on his refusal the appellant persuaded Muhammad Ramzan, deceased, by offering him two ten-paisa coins to go and get him salt of rupee one, whereupon the deceased agreed and Rehan Abbas left for his house leaving both the appellant and the deceased together in the street. Thereafter, Muhammad Ramzan was not seen alive. The time of death of Muhammad Ramzan appears to be fairly coinciding with the time when the appellant met him, in the street.
15. Learned counsel has argued that Rehan Abbas should not be believed for he told a different story in Court than the one he gave in his police statement Exh. D. A. He submitted that Rehan Abbas P. W. Stated at the trial that when the deceased refused to by salt, the appellant gave him (the deceased) two ten-paisa coins for keeping with him and also gave him Rupee one for buying salt and at this juncture the witness left for his house, while the appellant as well as the deceased remained stand--ing there. But in his police statement (Exh. D. A.), the witness stated that when deceased refused to purchase salt for the appellant he offered to pay him "Do Baray Anay" whereupon the witness and the deceased both, left that place and the deceased went towards the shop and the witness (Rehan Abbas) entered his house.
16. We have examined the aforementioned two statements of Rehan Abbas carefully and find that they are not discrepant to each other rather they are reconcilable. As far the use of different expressions by him regarding the kind of "coin" offered by the appellant to the deceased, it may be stated that both the expressions, namely, "10-paisa coin" and "Anna coin/Barn Anna coin" are synonymous, as no "Anna coin" is in circulation these days in the country and in common parlance the people call `10-paisa coin' as "Anna" or "Bars Anna". About handing over of twp coins by the appellant to the deceased, it may be stated that there is no discrepancy whatsoever, because the witness in his cross-examination explained that in his view the appellant had shown (offered) the coins to the deceased. Mst. Hafeezan P. W. Also stated that Rehan Abbas P. W. Had told her that the appellant "had shown two ten-paisa coins (Baray Annay) to Ramzan deceased". The third discrepancy pointed out by the counsel relates to that part of story, when Rehan Abbas P. W. Left for his house. In Court he stated that he went home leaving the deceased and the appellant both in the street, but in his statement Exh. D. A., he averred that the deceased accompanied him and when he (Rehan Abbas) entered his house, the deceased went towards the shop (obviously for purchasing salt). It is in the evidence that the witness and the deceased lived in the same street and they were playing close to their houses when the appellant had approached them. It appears, therefore, that when Rehan Abbas entered his house, at that time the deceased and the appel-- lant were in the same street and not far away from each other. It is, therefore, reasonable to infer that the appellant joined the deceased after Rehan Abbas had entered his house. The deceased was thus `last seen alive in the company' of the appellant and two to three hours later, as suggested by the medical evidence, the deceased was killed. The span between the time Muhammad Ramzan was seen alive in the company of the appellant and the time when he was killed is so short that it leads to irresistible conclusion that the appellant was directly connected with the murder of the deceased. This inference further finds support from the evidence of Mst.
Hafeezan (P. W. 10), mother of the deceased, who stated that the appellant had admitted before her the same night that he did ask the deceased at evening time to by salt worth Re. 1 for him, and that he gave him two 10-paisa coins for doing the job. It is worth notice that two 10-paisa coins P. 7 and P. 8 were found in the shirt pocket of the deceased;-vide memo. Exh. P. J.
17. Another link in the chain of circumstances connecting the appel--lant with the crime is that the garments of the appellant P. 10 and P. 11 were found stained with semen and the medical evidence established that the deceased Muhammad Ramzan was subjected to sodomy before he was killed. The rectal swa bs prepared by the medical witness and his clothes Exhs. P. 1, P. 2, P. 3 and P. 5 sent to the Chemical Examiner were also found stained with semen. The appellant was found capable of commit--ting the sexual act. He have already held that the deceased, immediately before his death, was seen alive in the company of the appellant, therefore, we feel convinced that the appellant had committed sodomy with the deceased before doing him to death.
18. In this case the most important piece of evidence is the recovery of the dead body of deceased Muhammad Ramzan from the wheat crop at the pointation of the appellant from a distance of half or three quarters of a mile from the residence of the deceased. It is in evidence that the dead body was lying in the wheat field in which according to S.-I. Hashim Ali (P. W. 13), a sitting person was not visible to a passerby. Again in the month of March, wheat plants usually gain their full height say about 2-- feet. So the dead body lay there sufficiently concealed and was not visible to the people passing that way. We are, therefore, of the considered view that it was in special knowledge of the appellant and none C else that Muhammad Ramzan's dead body was lying there. The learned) counsel for the appellant submitted that the dead body might have been found by some villagers who conveyed the information to the police and the police in its own scheme planted its recovery on the appellant by put--ting up false recovery-witnesses, namely Hashmat Ali (P. W. 11) and Muhammad Ramzan (P. W. 12), the father and maternal cousin of the deceased respectively. The argument of the learned counsel looked luring at the first sight but on closer scrutiny we found it to be devoid of any force. Had this information been conveyed to the police by some villager then the police would have not postponed its recovery till late in the night. The very fact that the recovery took place at night time suggests un--mistakably that the information was received by the police late at night, and the police, therefore, had no option but to send for the closer relations of the deceased who were extremely eager to know about their missing by and therefore they readily accompanied to the place of recovery at an odd hour in the winter. Again, the dead body was found partly eaten away by rodents further establishes that it was certainly lying well conceal ed and it did not come to anybody's notice for three and a half days till the appellant led to its recovery. We have, therefore, no doubt in our minds that dead body was in the exclusive knowledge of the appellant all whose information it was discovered. Also he pointed out the place of murder and the earth collected from there was found besmeared with human blood. The only objection raised by the learned counsel for the defence against the recovery witnesses, is that, they are close relations of the deceased. It is by now well-settled that mere relationship of a witness is not enough to discard his evidence. There is not an oblique reference suggesting to the witnesses that some previous animosity existed between them and the appellant. The recovery of the dead body and the collection of blood from the place of murder provides very important link between the crime and the culprit and has strengthened our belief that the appellant F was directly connected with the murder of the deceased. While appreciat--ing the evidence pertaining to recovery of dead body in the instant case, we were guided by the view taken by their Lordships of Supreme Court in the case of Allah Ditta v. The State (PLD 1958 SC (Pak.) 290). In this case Allah Ditta appellant had led the police party and the witnesses to a freshly ploughed field and pointed out that place, wherefrom the dead body of the deceased was disintered. He also got recovered a blood-stained spear blade but by the time it reached the Serologist the blood thereon had disintegrated. On this evidence their Lordships of the Supreme Court came to the conclusion that the case of murder has been fully established against the appellant.
19. Another circumstance weighing against the appellant is the recovery of incriminating articles like chhuri P. 4, his shirt P. 10 and dhori P. 11 made at the instance of the appellant. They were also stained with blood and semen. Chhuri P. 4 was recovered on 10th March, 1979, i. e. The day following the night of recovery of blood-stained earth from the wheat field. It can be said that when the blood-stained earth was reco--vered on the previous evening why the chhuri P. 4 which was allegedly lying at a distance of 4 karams from the place of murder was not picked up at that time.
The answer is, that the chhuri being a small weapon was not visible at night time in torch light in a wheat field, therefore, it was got recovered by the appellant next day in the daylight. There is noth- -ing improbable in it. If this recovery was at all to be concocted it would have been shown to have taken place on the previous night. The chhuri P. 4 is capable of causing injuries found on the person of the deceased. The defence has not disputed it as no question was put to the doctor in this regard. As for the clothes of the appellant, they were recovered from the house of the appellant at his pointation on 10th March, H 1979. This recovery was also witnessed by the same set of witnesses, but as observed earlier, we are satisfied that they are the witnesses of truth. It is noteworthy that the Police Sub-Inspector was not doubted by the defence to have made the recoveries by employing third rate methods.
20. The sum total of the above discussion is that the appellant was the last person seen with the unfortunate victim; he led the witnesses to the place where the dead body was lying ; he got recovered weapon of offence ; his clothes recovered at his instance had seminal and blood-stains thereon ; and similarly the body and garments of the victim were found stained with semen. These facts when put together by themselves are sufficient to establish the guilt of the appellant. We, therefore, fee convinced that the appellant was rightly convicted on both counts on the basis of the evidence obtaining on record and we uphold the conviction.
21. As for quantum of sentence, the learned counsel for the appellant did not argue this aspect, however, we ourselves have considered this point. The act of the appellant being extremely brutal and dastardly in nature, we are of the view that death is the only appropriate sentence in the circumstances of the case. Therefore, we are not hesitant in confirming the death sentence.
23. The result is that the appeal fails and is hereby dismissed. The death sentence is confirmed.