1. ZAFFAR HUSSAIN MIRZA, J.-- Appellants Mukhtar Hussain and Muhammad Sharif were convicted under section 302/34 of the Pakistan Penal Code by the Additional Sessions Judge, Sargodha, for the murder of one Qalb Abbas, a by of about 13/14 years of age. The former was sentenced to death and fine of Rs.3,000 or in default to undergo a further term of three years' rigorous imprisonment; whereas the latter was awarded the sentence of imprisonment for life and fine of Rs.1,000 or in default to undergo a further period of one year's rigorous imprisonment. Both convicts Were also convicted under section 404 of the Pakistan Penal Code for misappropriation of the property possessed by the deceased and sentenced on this count to rigorous imprisonment for three years and fine of Rs.500 or in default to suffer nine months' rigorous imprisonment. On the third count the convicts were also convicted under section 201/34 of the Pakistan Penal Code for causing disappearance of evidence of the commission of crime and awarded rigorous imprisonment for seven years and fine of Rs.500 or in default to suffer rigorous imprisonment for one year. All the fines if recovered were ordered to be paid to the heirs of the deceased. The sentences of imprisonment awarded to appellant Muhammad Sharif were ordered to run concurrently.
2. Alongwith the appellants Mushtaq Hussain, father of appellant Mukhtar Hussain, was also tried but was acquitted by the trial Court.
3. The complainant Hassan Bakhsh, who is the father of the deceased and the appellants are inter- related. The sister of Mushtaq Hussain, acquitted accused, who is the father of appellant Mukhtar Hussain, is the wife of Talib Hussain, father-in-law of the deceased.
4. The case of the prosecution is that the murder was committed on the night between the 25th and 26th February, 1974, in the Dera of Mushtaq Hussain, the acquitted accused, within the area of village Bonga Baluchan at a distance of fifteen miles from Police Station Shahpur Saddar, district Sargodha. But the F.I.R. Was lodged on 13-3-1974 at 3.00 p.m. By Hassan Bakhsh the father of the deceased.
5. It was alleged that on 25-2-1974 the deceased disappeared from his house alongwith gold ornaments details of which were given in the F.I.R. His father Hassan Bakhsh started looking for the deceased and in the process met Fayaz Hussain and Talib Hussain on the following day, who informed him that the deceased was seen in the company of the appellants at Khuftanwela (sleeping the) on the previous night while proceeding towards their Dera. On receiving this information, Hassan Bakhsh enquired from Mushtaq Hussain, the acquitted accused, about the whereabouts of his missing son. The latter told him that his son appellant Mukhtar Hussain and the deceased left his Dera together on the previous evening and had not returned. Consequently Hassan Bakhsh continued the search for his son in the surrounding areas. On 27-2-1974 he alongwith Fayaz Hussain and Riaz Hussain went to Sargodha in search of the deceased and met Manzoor, who informed him that appellant Mukhtar Hussain came alone to his workshop and took him to his house where he showed him a box of gold ornaments for the purpose of sale, which were however, not purchased by Muhammad Ashiq, goldsmith, because he suspected foul play.
6. Consequently appellant Mukhtar Hussain left alongwith the ornaments. As Hassan Bakhsh could not trace the deceased or appellants after about fifteen sixteen days he went to the police station and lodged the report.
7. After the registration of the case appellant Muhammad Sharif is stated to have made an extra- judicial confession before Khan Muhammad Lambardar in presence of Khaliqdad that he alongwith appellant Mukhtar Hussain murdered Qalb Abbas deceased and buried his dead body in a pit in the Kotha at the Dera of appellant Mukhtar Hussain. Khan Muhammad produced appellant Muhammad Sharif before Muhammad Rashid, S.H.O. (P.W.14) on 13-3-1974 who made an application before the Assistant Commissioner, Shahpur for deputing a doctor and a Magistrate for the exhumation of the dead body of the deceased. After obtaining the permission the Tehsildar Shahpur alongwith DC.Ghui;lm Haider Shah went to the. Dera of Mushtaq Hussain acquitted accused, on 14-3-1979 and in their presence appellant Muhammad Sharif pointed out the place, from where the dead body of the deceased was disinterred. Muhammad Nawaz was also present at the the of exhumation.
8. Dr. Ghulam Haider Shah then conducted the post-mortem examination on the dead body of the deceased and found a 11" circular lacerated fire-arm wound on the left side of back of the deceased with a surrounding blackening mark and also secured five pellets from the body of the deceased. The Investigating Officer also secured a sickle and a crime empty alongwith the dead body. Appellant Muhammad Sharif also led to the recovery of golden ornaments from a room of the Dera of Mushtaq Hussain kept in a tin box. Mushtaq Hussain, the acquitted accused, was then arrested on 24--3-1974 who produced his licensed gun alongwith its licence. Mukhtar Hussain, however, absconded and was arrested by Asghar Ali, S.I. On 23-4-1975. He also led the Investigating Officer to the discovery of some more ornaments from his residential Kotha kept in a tin box.
9. Hassan Bakhsh produced before the Investigating Officer receipts evidencing the ownership of the ornaments.
10. The plea of the appellants in their defence was of simple denial and false involvement in the case due to enmity with prosecution witnesses and suspicion.
11. The trial Court believed the testimony of Muhammad Nawaz (P.W.7), Hassan Bakhsh (P.W.10), Fayaz Hussain (P.W.11), Khaliqdad (P.W.12) and Muhammad Bakhsh (P.W.13) who were all relatives of the deceased but bore to enmity or grudge towards the appellants. The learned trial Court on the basis of the circumstantial evidence consisting of the deceased having been last seen in the company of the appellants, extra-judicial confession and recoveries found the appellants guilty, and convicted them as stated above.
12. The case was brought before a Division Bench of the Lahore High Court, Lahore, in appeal alongwith the reference for confirmation of death sentence awarded to appellant Mukhtar Hussain.
13. The learned Judges of the Division Bench agreeing with the evaluation of evidence made by the trial Court, dismissed their appeal and confirmed the death sentence vide judgment dated 17-10- 1979.
14. Leave was granted by this Court to examine the contention raised on behalf of the appellants that the extra-judicial confession of appellant Muhammad Sharif was not admissible in evidence as it was made before a person in authority, that the evidence of being last seen together with the deceased was not only open to serious doubts, but could not also form the basis of conviction for murder, that the recovery witnesses were not called from the locality and were, in any case, related to the deceased; and, that the whereabouts of the dead body had probably become known to the Investigating Officer before the alleged confession attributed to appellant Muhammad Sharif.
15. The main contention of the learned counsel for the appellants is that the extra-judicial confession having been made in presence of the Lambardar was inadmissible in evidence and if it is excluded from consideration, the remaining evidence is insufficient to sustain the conviction of the appellants. According to the learned counsel this is so because there are discrepancies in the date and manner of the recovery of the dead body deposed to by the witnesses, which make the recoveries highly doubtful and even Fayaz Hussain (P.W.11), who was a close relation of the complainant, at best saw the deceased in the company of the appellants on 25-2-1975 long before the lodging of the F.I.R. And the discovery of the dead body. In the submission of the learned counsel these circumstances coupled with the fact that no independent witnesses were examined cast a serious doubt on the veracity of the oral testimony to prove the circumstantial evidence.
16. After going through the relevant evidence on record with the assistance of the learned counsel, however, we find no substance in the contentions raised. So far as the extra-judicial confession is concerned, in our opinion, even if it is excluded from consideration as inadmissible, the remaining evidence is sufficient to bring home the offence to the appellants. The argument of 'the learned counsel that an overall reading of the F.I.R. Is highly suggestive of the fact that the dead body was somehow discovered first perhaps accidentally and the F.I.R. Was lodged thereafter to make out a case against the appellants, does not appeal to us. This argument overlooks the fact that the dead body was lying buried in the house of appellant Mukhtar Hussain's father who was co-accused in the case, to which outsiders normally had no access. Additionally the body was pointed out and exhumed from under the ground in presence of not only Muhammad Nawaz (P.W.7) who was a relation of the complainant but also in presence of doctor Ghulam Haider Shah (P.W.1), Abdul Majid Sagu (P.W.9) Tehsildar, and S.H.O. Muhammad Rashid (P.W.14). These witnesses are independent witnesses and there is nothing on the record to doubt their testimony. Even otherwise there being no enmity between the parties and none has been pointed out from the record, the testimony of the attesting witnesses of the incriminating discoveries is not liable to be rejected. The recovery of the dead body and the ornaments clearly connect the appellants with the crime and coupled with the evidence of being last seen in the company of the deceased, furnish a sound basis for their conviction. There is, therefore, no merit in this appeal.
17. However, we find substance in the contention of the learned counsel that in the circumstances of this case, inasmuch as there is no direct evidence of the commission of the crime, it cannot with any amount of certainty be said as to who fired the fatal shot at the deceased. As we have taken the extra-judicial confession out of consideration, the situation relied upon by the learned counsel does appear to be tenable. And the sentence awarded to appellant Mukhtar Hussain, in our opinion, requires to be re-examined. We find that acquitted accused Mushtaq Hussain produced the gun with which the deceased was shot and the empty secured alongwith the dead body was found matching with it. As already stated Mushtaq Hussain is the father of appellant Mukhtar Hussain who was about twenty years of age at the the of the occurrence. Although Mushtaq Hussain has been acquitted, as there was no sufficient evidence to convict him possibility cannot be ruled out that appellant Mukhtar Hussain was acting under the influence of his father. Having regard to these circumstances we think that the extreme penalty of death is not called for in this case and the said appellant is entitled to the benefit of the lesser penalty provided by law.
18. In the result the conviction of appellant Mukhtar Hussain under section 302/34 of the Pakistan Penal Code is maintained but his sentence of death is altered to imprisonment for life also the fine imposed on him is enhanced to Rs.10,000 or in default he is ordered to undergo three years rigorous imprisonment. His convictions and sentences under sections 201/34 and 404 of the Pakistan Penal Code are maintained.
19. The convictions and sentences of appellant Mohammad Sharif are maintained as the appeal is dismissed. The benefit of section 382-B of the Criminal Procedure Code is however, granted to the appellants while computing their sentences of imprisonment, which shall run concurrently. With these modifications the appeal is dismissed.