RAJA AFRASIAB KHAN, J: --Iftikhar (18) sun of Muhammad Hussain was tried by the learned Additional Sessions Judge, Gujranwala, for the murder of Zaheer Aslam (2-1/2) son of Muhammad Aslam. By Judgment dated 28-3-1988 the learned trial Judge convicted Iftikhar under section 302, P.P.C. And sentenced him to death plus a fine of Rs. 5,000 or in default to suffer one year's R.I. It was directed that the convict shall pay compensation of Rs.10,000 to legal heirs of the deceased or in default to suffer R.I. For two years. He has appealed against his conviction and sentenced while the learned trial Judge has sent a reference for confirmation of his death sentence. We propose to dispose of the above matters by this Judgment.
2. The prosecution story is that Muhammad Aslam (complainant) resident of Mauza Said Nagar, District Gujranwala, runs power looms in Hafizabad. Earlier, he had the business of power looms in Bara (N.-W.F.P). Muhammad Malik. Muhammad Ashiq, Muhammad Sadiq, Muhammad Sharif, Muhammad Riaz and Muhammad Abbas sons of Khushi Muhammad were running the business of weaving and the complainant also entered in collaboration with them in the said undertaking. The aforesaid reasons subjected the complainant to threats of disco sequences. About six months ago, Muhammad Malik abducted Muhammad Hussain son of Ibraheem, nephew of the complainant and in lieu of the return of Muhammad Hussain, got a sum of Rs.80,000 in cash and also the power looms. Muhammad Hussain was released about 1-1/2 months after the bargain. On account of the above-said background, the complainant left his business at Bara and shifted to Hafizabad where he started his business afresh. The aforesaid persons, however, continued following the complainant with ulterior motives. On 21-4-1986 at about 4-00 a.m. Muhammad Zahoor Aslam aged 2-1/2 years son of the complainant was sleeping on his cot in the house. At about 4-30 a.m., Mst. Sughran Bibi, mother of the child were up only to find the minor missing from the cot. Mst.
Sughran Bibi, mother of the child and Muhammad Abdullah, father of the complainant started searching for the child. The minor, however, was not traceable. Mst. Sughran Bibi found a letter from the cot of the minor wherein its author made a demand of payment of Rs.50,000 for release of the child, A direction was given in the letter that the complainant should come to a bridge over the canal with the money. It was mentioned in the letter that in case the money was paid, the minor would be released forthwith. A threat was also made that in case the ransom was not paid, the child would be done to death. It was apprehended that Muhammad Malik etc., had abducted the son of the complainant with a view to kill him. On statement Exh. P.C. Of Muhammad Aslam complainant (P.W.5) Safdar Ali Shah Moharrar P.W.3 recorded the formal F.I.R. (Exh.P.C./1), initially under section 364, P.P.C.
3. Nazir Ahmad S.I. P.W.10 investigated the case. He visited the place of occurrence. Mst. Sughran Bibi, mother of Zaheer Aslam produced a letter P.3 before the Police Officer, which was taken into possession vide memo Exh. P.E. Iftikhar appellant was arrested by the Sub-Inspector on 26-4-1986 Letter P.4 was recovered from possession of the appellant from the right pocket of his shirt. It was taken into possession vide memo Exh P.F The recovery of the letter was witnessed by Muhammad Aslam complainant and Muhammad Abdullah. During investigation, the accused disclosed that he had murdered Zaheer Aslam and had thrown his dead body in a well of the village. This disclosure,, was made by the appellant in presence of Bashir Hussain and Muhammad Aslam. He also led to the well wherein he threw the dead body and at his instance, the Investigating Officer had the dead body recovered through Muhammad Bashir and Muhammad Nazir. They also recovered two stones P.6 and P.7 wrapped in a cloth, which were taken into possession vide memo Exh. P.G.
Inquest report Exh. P.L. Of the deceased was prepared. Site plans Exh. P.D. And Exh. P.D/1 were got prepared from Bashir Hussain Patwari P.W.4. The dead body was sent to mortuary for its post- mortem examination. Last-worn clothes of the deceased shirt P.1 and dori P.2 were taken into possession vide memo Exh. P.B An application Exh P.H was submitted before the Illaqa Magistrate for obtaining the specimen handwriting of accused. Sh. Saleem Iqbal, Magistrate obtained the specimen writing of the- accused vide P.8 to P.12. On recovery of dead body the `charge under section 302, P.P.C. Was also added. Initially the case was registered against Muhammad Ashiq, Muhammad Malik, Muhammad Sadiq, Muhammad Riaz and Muhammad Abbas. During investigation all these persons were found innocent,, by the Sub-Inspector Appellant was apprehended by the people of the locality and accordingly they produced him before the Sub- Inspector.
Dr. Muhammad Ali Chatha, S.M.O., Tehsil Headquarters Hospital, Wazirabad, examined the dead body of Zaheer Aslam and observed as under.
"There were marks of fingers and thumb on like dark brown bruises. The dead body of stout, and well built wearing phooldar shirt, to the lower ends of both legs. Whole body v at many places with small green leaves stuck sodden and wrinkled. Rigor mortis was present was present at the back of shoulder, and buttocks was prominent. Mouth was open face was swollen were congested, ounils were dilated, lips were. Foam was present in nostrils and mouth. Tongue protruded and bitten between the teeth. There was extravasations neck muscles."
5. The appellant while making a statement under section 342, Cr.P.C. Denied the allegation levelled against him and took the plea that he had been implicated in the case on account of enmity with the complainant party. He disclosed that he and his parents refused to give the hand of his sister Mst. Razia to Muhammad Aslam, complainant, and for this grudge, he had falsely been implicated in the case. In support of his plea, the appellant produced Muhammad Nawaz as D.W.I and he himself appeared as D.W.2.
6. Learned counsel contends that there is no direct evidence against the appellant connecting him with the commission of the crime. He says that extra-- judicial confession is always a weak type of evidence and as such is not at all sufficient to record conviction against the appellant. Learned counsel maintains that there is unexplained delay in lodging the F.I.R. Learned counsel argues that the appellant was not nominated as an accused person in the F.I.R. He submits that arrest of the appellant by the villagers as claimed by the prosecution is also doubtful and that no such villagers were produced in support of the prosecution case. According to the learned counsel, the offence at worst would fall under section 201, P.P.C. And certainly not under section 302, P.P.C. Reliance in that behalf has been placed by the learned counsel on Mst. Shamim Akhtar v The State 1987 P Cr. L J 2484 and Shaukat Masih v The State 1984 P Cr. L J 2511. Learned-State counsel has defended the conviction and sentence of the appellant. She submits that there is reliable evidence available to prove the charge of murder against the appellant beyond doubt.
7. We have heard the learned counsel for the parties at considerable length and have perused the record. In our view, there is overwhelming evidence available on record to connect the appellant with the murder of Zaheer Aslam. Undoubtedly, there is no direct evidence against the appellant but certainly there is adequate circumstantial evidence against him to our entire satisfaction for us conviction. There is most convincing documentary evidence available on record to implicate the appellant in the commission of the crime. Letter P.3 written,, by the appellant was found on cot of the deceased Zaheer Aslam by Mst. Sughran Bibi. Similarly, another letter P.4 was recovered from his possession, when he was l arrested by villagers on 26-4-1986. In this letter, it was conceded that Zaheer Aslam was in the custody of the author of the letter and that he would be released provided a ransom of Rs. 50,000 was paid to him. Sh. Saleem Iqbal P.W.9 received an application from the police for obtaining the specimens of handwriting of the accused. He was produced before the learned Magistrate who obtained specimen handwriting on papers Exh.P.8/1-11 written by the appellant in presence of Sh. Saleem Iqbal Magistrate P.W.9. These specimens of handwriting were sent to the hand-writing expert who on their examination disclosed that the handwriting on P.3 and P.4 tallied with the hand-writing on papers Exh.P.8/1-11, written by Iftikhar, appellant. Thus, the report of the handwriting expert Exh. PK proves beyond any shadow of doubt that letters P.3 and P.4 were written by Iftikhar, appellant. The appellant did not challenge the genuineness of the letters P.3 and P.4 and the specimen writing taken by the learned Magistrate substantially before the learned trial Court. No suggestion was put to the prosecution witnesses that letters P.3 and P.4 were written under coercion by the police. This being so, the authenticity of letters P.3 and P.4 is established beyond any shadow of doubt. It is also proved that letter P.3 was written by Iftikhar appellant to Mst.
Sughran Bibi P.W.7 for the purpose of obtaining a ransom of Rs.50,000. In our view; the recovery of letters P.3 and P.4 does connect the appellant with commission of the crime beyond any reasonable doubt. Apart from the above, the appellant did make an extra-judicial confession before Nazir Ahmad P.W.6 and Muhammad Aslam P.W.5. The extra-judicial confession is proved by trustworthy and reliable evidence of these P.Ws. These witnesses were subjected to lengthy cross- examination but their evidence could not be shaken and remained consistent throughout. The appellant also led to the recovery of dead body of Zaheer Aslam from a well in presence of Muhammad Aslam P.W.5 and Nazir Ahmad P.W.6. The recovery of the dead body at the instance of the appellant is also a very strong circumstantial piece of evidence against him to connect him with the murder. The contention that the F.I.R. Was lodged after considerable delay is without substance inasmuch as the complainant was not present on the day of occurrence when the minor was abducted. He had gone to Hafizabad,, and on his return, the F.I.R. Was lodged. There appears no substantial delay in lodging the F.I.R. Further, Mst. Sughran Bibi and her father---in-law Abdullah had been searching for the missing child in the meantime. It is a sufficient explanation for the alleged delay in lodging the F.I.R. The contention of the learned counsel is accordingly repelled.
The contention that the evidence regarding extra judicial confession is a weak type of evidence and should not be made basis for conviction of the appellant is again without substance. The appellant led to the recovery of dead body from the well in presence of competent witnesses as observed above. Accordingly, we do not find any flaw in the evidence of these witnesses of extra- judicial confession. We are convinced by the prosecution,, evidence beyond doubt. Defence evidence is certainly afterthought and has been fabricated with ulterior motive. D.W.1 is the cousin brother of the accused. He deposed that hand of Mst. Safia Bibi, a sister of the accused was refused to be given in marriage with complainant Muhammad Aslam. This evidence appears to be wholly hollow and unfounded inasmuch as Muhammad Aslam (complainant) was already a married person. We accordingly reject the defence version being false on the face of it.
8. The conclusion of the above discussion is that the appellant was rightly convicted and sentenced on basis of trustworthy evidence. He has committed a I gruesome murder of an innocent soul of 2-1/2 years old and as such deserves no leniency. His appeal, therefore, fails and is dismissed. The death sentence of Iftikhar appellant is confirmed. The murder reference is answered in the positive.