NAZIR AHMAD BHATTI, J. -- Appellants Javaid Masih, Shamoon Masih and Arif Masih have been convicted by the VII th Additional Sessions Judge, South Karachi under section 302, P.P.C. Read with section 34, P.P.C. And under section 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 by judgment dated 12-8-1991 and sentenced to death and fine of Rs.50,000 in default of payment thereof to further undergo imprisonment for 5 years. Appellant Noor Masih has been convicted by the same judgment under section 301, P.P.C. Read with section 17(4) of the Hudood Ordinance and sentenced to undergo life imprisonment and to pay fine of Rs.50,000 to the heirs of the deceased. By appeal in hand all the 4 convicts challenge the aforesaid conviction and sentence.
2. P.W.5 Muhammad Shafi, Chowkidar of Ibrahim Ali Bhai Trust, Hirani Centre, I.I. Chundrigar Road, Karachi, went to his duty at 8'O clock in the morning on 13-8-1988. He found the door of the building open. He entered inside. There he saw the dead bodies of two persons, Turab Gul and Zahid Noor.
The former was Chowkidar at 4th floor while the latter 'was also Chowkidar in the same Trust.
Muhammad Shafi got frightened and contacted P.W.6 Munsif Khan, a Chowkidar of the adjoining building Al-Manzoor. Both proceeded to the 5th floor and found its door also open and they also saw Chowkidar Ayub Khan lying dead whose right hand was tied with an electric, wire and left was tied with a nylon rope. Muhammad Shafi also saw blood on the 5th floor wall and door. P.W.6 Munsif Khan informed P.W.7 Mirza Muhammad Mehdi, an Executive of Habib Group of Companies situated in the same building on telephone. The latter informed P.W.3 Muhammad Shamim Siddiqui, Manager of Ibrahim Ali Bhati Trust of the occurrence and he reached the spot at 9-30 a.m. And saw 2 dead bodies lying on the floor and a third lying on the 5th floor. The latter made a report in Police Station, Civil Lines Karachi at 10-30 hours which was incorporated in F.I.R. No.139/88 by Inspector S.M. Tariq S.H.O. Of the police station.
3. P.W.6 Munsif Khan also disclosed to the Investigating Officer that he was on duty in Al-Manzoor Building on the night of 12-8-1988 from 5-30 p.m. To next day morning upto 8-00 a.m. And at about 10-00 in the morning he had seen deceased Turab Gul and deceased Ayub Khan alongwith appellant Javaid Masih and that they were coming from Hirani Centre, ground floor where appellant Javaid Masih was serving. He further disclosed that after a short while appellant Javaid went to a Pan shop across the road and returned with another person who happened to be appellant Noor Masih. This witness also stated that deceased Turab Gul had disclosed that appellant Javaid Masih had brought video film and they wanted to see it. The deceased also disclosed to him that deceased Zahid Nbor would also see the film. He confirmed that when the dead bodies were discovered he informed P.W.7 Mirza Muhammad Mehdi. P.W.1 Muhammad Hussain was a Typist of Habib Modaraba Management. He had handed over the list of articles which were missing. From their office to the Investigating Officer. This list was prepared by the Managing Director of the firm and in accordance with it one Seiko wrist watch, one Lassal wrist watch, one more wrist watch, fancy ball pens, one ball pen with calculator were missing from the office. He further stated that some articles were subsequently recovered by the police and restored to them. P.W.12 Ghulam Qadir was a Sanitary Inspector of Railway and he informed the Investigating Officer that appellants Shamoon Masih and Arif Masih were employees of the Railway and they were missing from their duty since 11-8-1988. P.W.4 Akbar Ali Fadoo, Managing Director, Habib Modaraba Management stated that on 13-8-1988 when he went to office he saw the iron safe broken and Khas Deposit Certificates (70 numbers) of the value of Rs.50,00,000 were missing.
He also found -some pens, lighters and watches missing. He prepared a letter. Exh.P.9, about missing articles and on 13-8-1988 handed over the same to the Investigating Officer. In his presence the Investigating Officer had secured the rope and electric wire which were used for shocking the deceased. This 'witness also wrote a letter to the Standard Chartered Bank on, 16-8- 1988 to stop payment of the Khas Deposit Certificates.
4. On 21-8-1988 the S.H.O., Police Station Civil Lines Karachi raided a house in Hijrat Colony near Ganda Nala. The house was locked. The S.H.O.. Broke open the lock and went inside where he found appellants Shamoon Masih, Arif Masih and Noor Masih. In the presence of P.W.17 Taj Muhammad the S.H.O. Recovered a cash of Rs.38,041 from appellant Noor Masih and one wrist watch. The S.H.O.
Also recovered from appellant Arif Masih a cash of Rs.18,500 and one wrist watch (golden colour).
From the possession of appellant Shamoon Masih the S.H.O. Recovered Rs.17,000, one lighter, one ball pen and one calculator. In the presence of P.W.17 Taj Muhammad appellant Shamoon Masih also pointed to one iron box wherefrom the S.H.O. Recovered bonds in an envelope. This witness attested the Mashirnama about recovery of the aforesaid articles. He also identified the said articles at the time of trial. The Khas Deposit Certificates recovered at the instance of appellant Shamoon Masih were the same which were missing from the office of Habib Modaraba Management. P.W.14 Muniruddin, M.I.C. Held identification parade of the appellants on 27-8-1988 and P.W.6 Munsif Khan identified appellant Javaid Masih. The same Magistrate recorded confessional statement of appellant Noor Masih on 27-8-1988 and he appeared as P.W.15 and confirmed that lie had observed all the legal formalities in recording confessional statement.
5. P.W.21 Gulzar Hussain Sub-Inspector had disconnected electric wire which was tied around the bodies of deceased and prepared inquest reports also. P.W.20 Zohaib Ali stated that appellant Javaid Masih had purchased rope from him before the day of occurrence.
6. P.W.18 Dr. Aftab Azizi performed autopsy on the dead body of Ayub Khan and P.W.25 Dr. Muhammad Iqbal performed autopsy on the dead bodies of Turab Gul and Zahid Noor. According to the post-mortem reports' all the three deceased were electrocuted and died of electric shock.
P.W.27 Inspector/S.H.O. M.S. Tariq arrested appellant Javaid Masih on 15-8-1988 at the pointation of P.W.6 Munsif Khan. He had received message of the incident at 09-05 hours on 13-$-1988 and had proceeded to the spot. He recovered one wrist watch, another Seiko watch, one video cassette of `Bikhray Moti from appellant Javaid Masih.
7. All the appellants denied the commission of the offence. They also contradicted that any articles were recovered from their possession. Appellant Javaid Masih deposed on oath that he had not taken any video film from P.W.20 Zohaib "Ali. He further stated that nothing was recovered by the Investigating Officer from his possession. Appellant Noor Masih also made a, deposition on oath and stated that he was not present in Karachi but was arrested from village Budho Garaya (Punjab) alongwith appellants Shamoon Masih and Arif Masih. He contradicted that the appellants were arrested from Karachi. In cross-examination he further stated that he had refused to participate in the Wardat proposed to be committed by appellant Javaid Masih: He'also admitted that he had no enmity with the P.Ws. Appellant Shamoon Masih also made a deposition on oath wherein he denied the commission of the offence and also contradicted that any articles were recovered from his possession. He denied that he and, other appellants Arif Masih and' Noor Masih had gone to Punjab after committing the offence and voluntarily stated that he had gone alone. He also affirmed that he had no enmity with the prosecution witnesses Taj Muhammad and Syed Anwar Shah and further stated that he did not know them. Appellant Arif Masih also made a deposition on oath and denied the commission of offence. He stated that he is originally' resident of Moza Sadho Garaya, Tehsil Naushero Warqan, District Gujranwala and that he had no acquaintance with the other appellants. He stated that he was arrested from that village in the presence of Muhammad Iqbal Dispenser. He, however, admitted that he had volunteered recovery of Khas,Deposit Certificates lying in a Dibba of breads and the value of those certificates was about Rs.35,00,000. The aforesaid Muhammad Iqbal, Dispenser appeared as D.W.5 and stated that on 16th and 17th August, 1988 police had come 'to his house and had informed that ~ they wanted to arrest appellants Noor Masih, Arif Masih and Sharnoon Masih who were available at his Dera. He helped the police in arresting them. D.W.6 Aurangzeb was asked a question whether appellant Javaid Masih was already under arrest of the Civil Lines Police on 13th and 14th August, 1986 but he did not know anything about it. D.W.7 Mst. Nusrat Marium is sister of appellant Noor Masih. She stated that her brother was residing in Punjab from where he was arrested.
8. Appellant Noor Masih also made a confession on 27-8-1988. It is a very lengthy statement but the main points are that appellant Javaid Masih was ring leader and he had made a plan to kill Turab Gul and Zahid Noor and commit dacoity in Habib Modaraba Management. This appellant also added that since deceased Ayub Khan had also come to know of the murder of the aforesaid two Chowkidars so he had also to be killed in order to silence him. The confessional statement further discloses that appellant Javaid had committed the 3 murders with the active participation of appellants Arif Masih and Shamoon Masih. Appellant Noor Masih further stated in the confession that he was not willing to join in the commission of the offence but he was per force made to participate therein by appellant Javaid. He admitted that he had tied the feet of deceased Ayub Khan at the instance of appellant Javaid Masih. In his statement under section 342, Cr.P.C. He retracted from the said confession and stated that it was obtained under coercion.
9. There is no ocular evidence of the occurrence. The State had relied upon the circumstantial evidence of the aforesaid witnesses, recoveries of the stolen articles and confessional statement of Noor Masih. The learned counsel for the appellants was of 'the opinion that circumstantial evidence did not link the chains together and that the appellants had been convicted by the learned Additional Sessions Judge without any sufficient evidence. We have very anxiously considered the contention of the learned counsel but we are unable to agree with his contention. It was admitted by the appellants that they had no grudge or animosity with the prosecution witnesses and actually they did not know many of them. As such the evidence which was produced during the trial was neither of any interested nature nor any witness was on inimical terms with A the appellants. As such whatever was deposed by prosecution witnesses was free of any doubt: or of any interest against the appellants or in any favour of the deceased. P.W.6 Munsif Khan had seen appellant Javaid Masih alongwith deceased Turab Gul and Zahid Noor on the night of the occurrence and they were planning to see a film on video. The deceased were last seen alive in the company of appellant Javaid Masih and thereafter their dead bodies were discovered. P.W.6 Munsif Khan had immediately informed the Investigating Officer on 13-8-1988 about the circumstance of seeing the deceased and appellant Javaid Masih together. This was a very prompt information given by this witness to the Investigating Officer and it was free of all doubts and 8 fabrications. Only two days after appellant Javaid Masih was apprehended by .The S.H.O. Of the concerned police station and some stolen articles were recovered from his possession. The other 3 appellants were also arrested 6 days afterwards and on their pointation some stolen articles and particularly the stolen Khas Deposit Certificates were recovered. The recovered certificates were exactly the same which were found missing on 13-8-1988 from the office of Habib Modaraba Management.
10. It cannot, therefore, be said that the links of chain of circumstantial evidence ,were missing.
There was the evidence of the last seen together. There was recovery of stolen property as well.
11. The learned counsel for the appellants took great pains to show that the confessional statement of appellant Noor Masih was not only obtained under duress but was also exculpatory and could not form the basis of conviction of the appellants. He was also of the view that the confession should not have been believed because the appellant had retracted therefrom and it did not find any corroboration evidence having been produced in the case. We have seriously considered this objection of the learned counsel. We find that although confessional statement was recorded 6 days after the arrest of appellant Noor Masih but is a very lengthy statement and it has disclosed all the ingredients of the offence in great detail. Such a confession could not have been made by a person who was not actually a participant in the crime. He has described in detail the manner of committing the murder of each one of the deceased. All, the 3 unfortunate Chowkidars died of electric shock and in one of the murders this appellant took active part. He had tied the hands and feet of deceased Ayub Khan who was electrocuted by the other appellants. Moreover, stolen articles were also recovered from the possession of this appellant when he was arrested. The Investigating Officer had recovered an. Amount of Rs.48,041 from this appellant alongwith one Rado-watch. He had also pointed out the place where Khas, Deposit Certificates were hidden alongwith other appellants and at their instance the Investigating Officer had recovered the Khas Deposit Certificates. It shall thus , be seen that the confessional statement of appellant Noor Masih was not only amply p corroborated by the recovery of stolen articles but being inculpatory in nature it was made voluntarily and it disclosed the circumstances in a genuine manner. Since it was inculpatory it could lawfully and validly be used not only against the maker of it but- also against the other appellants.
12. The learned counsel for the appellants also contended that in making search of the premises the respectables of the locality had not been associated by the Investigating Officer. However, this objection does not cut much ice. There were independent witnesses who were associated by the Investigating Officer at the time of making the recoveries. P.W.17 Taj Muhammad is a taxi driver and he was present when the Investigating Officer arrested the three appellants and recovered the stolen property at their instance in the presence of this witness. Although this witness does not belong to that locality but he was a respectable citizen and there can be no doubt about that fact.
Moreover, the appellants had admitted that they had no enmity with P.W.17. As such the matter of recovery of stolen property cannot be said to be a fictitious affair.
13. The learned counsel for the appellants was also of the opinion that the cash recovered from the appellants was -not claimed by any person or by any prosecution witness but that is a point which should not cause any doubt on the circumstantial evidence produced in the case, especially the recovery of the stolen property about which the Investigating Officer was informed at the first available opportunity would bring home the guilt of the accused beyond any doubt whatsoever.
14: After going through the record of the case carefully we have arrived at the irresistible conclusion that although there was no ocular testimony available on the record to connect the appellants with the commission of the offence, their guilt was proved beyond any doubt whatsoever. All the 4 appellants had committed the murder of Turab Gul. Zahid Noor and Ayub Khan, employees/Chowkidars in the building in furtherance of their common intention and had also stolen the articles mentioned in the beginning of this judgment which were recovered from their possession immediately at the time of their arrest. Appellants Javaid Masih, Arif Masih and Shamoon Masih were appropriately convicted by the learned Additional Sessions Judge under section 302, P.P.C. Read with section 34 thereof. However, proof in regard to the conviction of the appellants under section 17(4) of the Hudood Ordinance was not available, we will, therefore, uphold the conviction of appellants Javaid Masih, Arif Masih and Shamoon Masih under section 302/34, P.P.C. And E would maintain the sentence. In so far as appellant Noor Masih is concerned he was convicted by the learned Additional Sessions Judge under section 301, P.P.C. And sentenced to undergo life imprisonment and fine. However, this appellant was also guilty of murder under section 302/34, P.P.C. Without altering the sentence we alter his conviction from under section 301, P.P.C. To section 302/34, P.P.C. With the, aforesaid observations the appeal is dismissed.
14. These are the reasons for our short order dated 3-2-1992 dismissing the appeal and accepting murder reference.