JAVID IQBAL, C.J.--Muhammad Bashir alias Bills, son of Muhammad Ismail, aged 19, Muhammad Arshad alias Achhu, son of Muhammad Shah, aged 22, and Muhammad Hanif son of Imam Din, aged 17, stand convicted under section 302/34, P.P.C. For the murder of Abdul Karim, aged 24, and each of them was sentenced to death plus fine of Rs.2,000 or in default to undergo one year rigorous imprisonment each with the direction that if the fine was realized from them, it should be paid to the legal heirs of the deceased. It was farther ordered by the trial Court that Rs.3,400 recovered in this case shall also be paid to the heirs of the deceased. The judgment of the trial Court i.e. Additional Sessions Judge, dated 16-3-1982. The appeal of the convicts as well as the reference for the confirmation of death sentence awarded to each of them are being taken up and disposed of together by this judgment. The ease of the prosecution is that three appellants are friends.
2. The occurrence took place on the night between 5/6-12-1979 in Pir Mitha graveyard at a distance of one and half miles from police station City Wazirabad F.I.R. (Exh. P.D.) was lodged by Muhammad Boota (P.W. 6) a grave digger of the graveyard at 4-30 on 7-12-1979 and it was recorded by Habibullah M.H.C. (P.W. 5). Initially case was registered under section 302, P.P.C., against unknown accused persons.
3. In the F.I.R. It is stated by Muhammad Boots P.W. That he was a grave-digger in the said graveyard and resided within the area of that graveyard. He was going around the graveyard when he noticed in a pit dead-body of the deceased lying with his throat cut and a stab wound in his belly due to which his intestines were coming rout. He reported the matter to the police.
4. The dead body of the deceased was identified by Abdul Rahim (P.W. 7) his brother, but it may be pointed out at this stage that there is no eye-witness of the occurrence which means that it is art unwitnessed occurrence. Consequently the case of the prosecution is based entirely on circumstantial evidence.
5. The circumstantial evidence- in this case has been produced by the prosecution in the following order:-- (a)The deceased having been last seen in the company of the appellant by Abdul Rahim (P.W. 7) brother of the deceased, and Nawab Din (P.W. 9) Behnoi of the deceased: (b)Extra-judicial confession having been made by Muhammad Hanif appellant to the effect that he alongwith Muhammad Bashir and Muhammad Arshad appellants committed the murder of the deceased in order to rob him of the money which he was stated to be carrying and this extra- judicial confession was made by him, the presence of Muhammad Ramzan (P.W. 10) an unconnected person according to whose statement the said extra-judicial confession was made by Muhammad Hanif appellant on 9-2-1979 but he got his statement recorded under section 161, Cr.P.C. By the police on 11-12-1979.
(c)The appellants were arrested on 9-12-1979 by Muhammad Hafeez I.P. (P.W. 12) and at their instance the following recoveries were made in this case. At the instance of Muhammad Bashir appellant blood-stained Chhuri (Exh. P. 8) was recovered and it was taken into possession, vide memo. Exh. P.H., dated 10-12-1979. The attesting witnesses are Muhammad Iqbal (P. W. 8), Muhammad Yusuf (not produced), Fazal Ilahi (not produced) and Muhammad Hafeez I.P. (P.W. 12).
Again from Muhammad Bashir appellant were recovered his blood-stained clothes, namely, shirt (Exh. P. 9) and Shalwar (Exh. P. 10) and taken into possession, vide R1emo. Exh. P.J., dated 10-12-1979.
This recovery memo is also attested by the same witnesses as above. Then at the instance of Muhammad Hanif appellant who had made extra-judicial confession before Muhammad Ramzan P. W. Were recovered Rs.3,400 tied up in handkerchief (Exh. P. 14) with the name of the deceased printed on it and these were taken into possession, vide memo. Exh. P. K., dated 10-12-1979. The attesting witnesses of this recovery are the same as above. Thereafter, at the instance of Muhammad Arshad' appellant the following items were recovered:-- (i)Blood-stained pocket of a shirt (Exh. P. 6) containing a chit (Exh. P. 6/1) of the deceased in the name of his brother Abdul Rahim P.W.; (ii)a bill in the name of Abdul Rahim P.W. (Exh. P.6/2); (i.e)identity card of the deceased (Exh. P. 7/1) which was lying in pocket (Exh. P.7).
These recoveries were taken into possession, vide memo. Exh. P. G, dated 10-12-1979. The attesting witnesses are Abdul Rahim (P.W. 7). Muhammad Boota (P. W. 6), Fazal Ilahi (not produced) and Muhammad Hafeez I.P. (P.W. 12). The report of the Serologist is Exh. P.N. At page 15 of the printed paper book which is positive in respect of the above items of recovery which have been found to be stained with human blood.
6. The appellants in their statements before the trial Court denied having participated in the occurrence. Muhammad Hanif appellant denied having made the extra-judicial confession. They also denied that they had committed the murder of the deceased for depriving him of the money which he was carrying. They likewise disowned the recoveries and all of them stated that they have been falsely implicated on account of the enmity with the P. Ws. And due to party faction in the village. They did not produce any evidence in defence. There is nothing on the record to show as to what is the nature of the enmity between the P.Ws and the accused party or what is the nature of party faction in the village.
7. As it can be noticed the motive in this case was no other than to deprive the deceased from the money which he was stated to be carrying.
8. Dr. Imtiaz Ali Cheema (P.W. 1) conducted the post-mortem examination on the dead body of the deceased at 11-00 a.m. On 8-12-1979 and found on his person the following injuries:-- (1)As incised wound 12 x 4 c.m. x going deep on the left side of neck. Underlying muscles and blood vessels were cut.
(2)Incised wound 14 x 4 c.m. x going deep in front of upper part of neck, extending to both sides of neck more on right side. Underneath the main blood vessels external and internal, jugular veins and external and internal carotid arteries and oesophagus and trachea and hold (sic.) bone were cut.
(3)Incised wound 5 x 3 c.m. x going on left abdomen upper part outer aspect. Intestines were coming out from the wound.
(4)Incised wound 5 x 3 c. m. x going deep on the left side back of abdomen 2 c.m. Left to injury No.
3. Intestines were coming out from the wound.
(5)Incised wound 5 x 2 c. m. x skin deep on the back of right hand.
(6)Contusion 4 x 2 c. m. On the left cheek.
9. The prosecution examined 12 P. Ws. To prove its case. Muhammad Boota P. W. 9 is a grave- digger. He had reported the matter to the police on seeing the dead body of the deceased lying in a pit. Abdul Rahim P. W. 7 is a brother of the deceased. He had identified the dead bony of his brother. According to him the deceased left his shop for the house on 3-12-1985 where after he never returned. He stated that he and his mother waited for him till 11 p. m. On the said night whereafter Nawab and Bashir P.Ws. Came to their house and informed them that they had seen the deceased going alongwith the appellants towards Pir Mittha graveyard. He then went out in search of the deceased. All the three appellants met him on the way. He asked from Muhammad Bashir appellant about the deceased but he hurried towards the Mohallah without giving any answer. During the night he and Bashir P. W. Continued making inquiries from their relatives but he was not found. Next day he again searched for him. On 7-12-1979 he and his father Islam Uddin were standing out of their house when they saw the police bringing the dead body of the deceased. The deceased was bearing injuries on his person and both the pockets on the sides of shirt worn by him were missing. His brother had in his possession a sum of Rs.4,000 before leaving the shop on 5-12-1979. The said amount and the identity card which the deceased always used to carry with him were missing. Nawab Din P.W.9 stated that he and Muhammad Bashir P.W. (not examined) had gone out of their houses to ease themselves towards Pir Mitha graveyard. They saw the appellants and the deceased together and enquired from them as to where they were going on which they told that they were just roaming about. From there they went to the house of the deceased and at about mid-night he and Muhammad Bashir told the mother of Abdul Karim deceased that they had seen the deceased in the company of the appellants. Thereafter he alongwith Muhammad Bashir P.W. And Abdul Rahim P.W. 7 went to the house towards an open place and saw the appellants coming towards the village. They enquired from him about the deceased but they did not reply. On the third day the police brought the dead body of Abdul Karim on a cot in the village, he stated. Muhammad Ramzan P.W. 10 stated that Muhammad Hanif appellant came at his shop and called him out and told him that he alongwith Muhammad Bashir and Muhammad Arshed appellants had killed Abdul Karim deceased in Pir Mittha graveyard for the money which he was carrying and asked him to get him excused by the father of the deceased.
10. Muhammad Boota P. W. 6 stated that in his presence Muhammad Arshad appellant led to the recovery of two blood-stained pockets of a shirt after digging them out from a field adjacent to Pir Mittha graveyard. From Pocket Exh. P. 6 octroi receipt Exh. P.6/1 was recovered while from the other pocket identity card Exh. P.7/1 of the deceased was recovered. The pocket P. 6 also contained bill P.
6/2, Muhammad Iqbal P.W. 8 stated that in his presence Muhammad Bashir appellant led to the recovery of blood-stained Chhuri Exh. P. 8 from the courtyard of his house after digging it out. He further stated that Muhammad Bashir appellant also led to the recoveries of his blood-stained shirt P. 9 and Shalwar P.
10. He further stated that in his presence Muhammad Hanif appellant led to the recovery of blood-stained currency notes amounting to Rs. 3, 40u wrapped in a handkerchief on which the name of Abdul Karim was written.
11. Relying on the testimony of the aforementioned witnesses the learned trial Court convicted and sentenced the appellants as described above.
12. Learned counsel for the appellants contends that the conviction could not be based on the testimony of interested witnesses and the prosecution story is highly improbable. The alleged confessional statement before Muhammad Ramzan P.W. Is not a reliable piece of evidence because he did not come forward soon after the same was made before him. It is further stated that the recoveries from the appellants and the deceased having been last seen in their company are fabricated pieces of evidence.
13. Learned counsel for the appellants has not been able to point out any enmity between the prosecution witnesses and the appellants. No reason has been shown as to why the P.Ws. Would falsely implicate the appellants in a case involving capital punishment. Muhammad Boota who lodged the F.I.R is a grave-digger and had not named any body in the report. He simply reported that the dead body was lying near the graveyard. Nawab Din P.W. 9 who had seen the deceased last in the company of the appellants is not shown to have any grouse or grievance against the appellants. The mere fact that he is brother-in-law of the deceased will not make him an interested witness. He stands corroborated by Abdul Rahim P.W.
7. Nawab Din P.W. 9 had informed Abdul Rahim P.W. Having seen the deceased going in the company of the appellants towards Pir Mittha graveyard. According to Abdul Rahim P.W. He and Nawab had seen the appellants on the way leading to Pir Mittha graveyard and when they enquired from Bashir appellant about the deceased he did not give any answer and hurried towards the Mohallah. Muhammad Boota P.W. 6 who proved the recoveries from Arshad appellant is completely a disinterested person having no connection with the complainant party or animus towards the appellants. Likewise Muhammad Iqbal P.W. 8 who proved the recoveries from Bashir and Muhammad Hanif appellants is also an independent person. He is neither related to the deceased nor inimically disposed towards the appellants. He stands corroborated by the presence of human blood on the currency notes recovered at the instance of Muhammad Hanif appellant. He also proved the recoveries of blood- stained Chhuri P. 8, shirt P. 9 and Shalwar P.10 at the instance of Bashir appellant. According to him, Bashir appellant had dug out the Chhuri from a corner of the courtyard of his house. It was sent for the chemical examination and human blood was found thereon. Muhammad Ramzan P W. 10 who proved the extra-judicial confession by Hanif appellant, is also disinterested person. Muhammad Hanif appellant who was a youth of 15/16 years at the time of occurrence must have been under terrible strain and would have been in search of someone who could help him. Thus, there was nothing unusual in making his breast clean Wore Muhammad Ramzan P.W. According to Muhammad Ramzan P.W. Muhammad Hanif appellant had stated that he alongwith Muhammad Bashir and Muhammad Arshad appellants had killed Audul Karim deceased. Muhammad Ramzan stands, corroborated by the recovery of cash at the instance of Muhammad Hanif appellant. The confession made by Muhammad Hanif appellant could be legally taken into consideration against the other appellants because all of them were being jointly tried for the murder of Abdul Karim deceased.
14. The chain of the aforementioned circumstances lead to a natural conclusion that Abdul Karim deceased was murdered by the appellants. Practically everything which was robbed from the deceased was recovered from the possession of the appellants on the 4th .Day of the discovery of the dead body. This is a very strong circumstance favouring the belief that it were the appellants who had removed these things from the person of the deceased after murdering him and the natural inference would be that they were directly concerned with this murder. The above conclusion is strengthened by the fact that alongwith the belongings of the deceased weapon of the exact type with which the murder was in all probability committed had been recovered at the instance of Muhammad Bashir appellant. The circumstance that the deceased was last seen with the appellants coupled with the recoveries of his clothes and other articles at the instance of the appellants leads to a natural inference that the murder was committed by them.
Considering the fads and circumstances of this case, we are of the view that the chain of evidence and circumstances lead to one and only irresistible conclusion that the appellants had committed the murder of Abdul Karim deceased. The learned Additional Sessions Judge had therefore, rightly convicted the appellants. As regards the sentences, we consider Muhammad Hanif appellant is entitled to leniency because of his age. He was 15/16 years of age at the time of commission of the crime. He might be acting under the influence of his other friends who were elder to him.
Accordingly, we alter his sentence from death to imprisonment for life but maintain the sentence of fine imposed by the learned trial Court. With this modification, the appeal of Muhammad Hanif is dismissed.
The convictions and sentences of Muhammad Bashir and Muhammad Arshad are maintained and their appeal is dismissed. The sentence of death awarded to them by the learned trial Court is confirmed.