' NAZIR AHMAD BHATTI, J.--- Deceased Ghulam Dastgir son of Safdar All complainant aged about 12/13 years was employed in the factory of Asghar Shah at Faisalabad. On 16-10-1990 at about 3/4 p.m. Deceased was called by Muhammad Asghar and Saeed Alam appellants and he accompanied them. The deceased did not come back in the night and his father Safdar All complainant got worried. On the next day he went to the houses of both the aforesaid appellants and inquired about his son but they did not give any satisfactory answer. They afterwards disappeared. The complainant continued search for his missing son and on 26-10-1990 he came to know that a dead body of a boy was found in the cellar of unoccupied under-construction bungalow in the Ameen Town. The complainant went to the said bungalow accompanied by his wife Mst. Allah Rakhi and his brother-in-law Dilbar. They saw the dead body and identified it as being of their son Ghulam Dastgir. The dead body had got many injuries on different parts of the body by a sharp-edged weapon. The complainant asked his wife and brother to take care of the dead body and he himself went to Police Station Sargodha Road where he recorded F.I.R. No,529.
2. Autopsy on the dead body was done by P.W.1 Dr. Altaf Pervez Qasim on the same date at 2-00 p.m. The doctor found eight incised wounds and 5 stab wounds on different parts of the dead body of Ghulam Dastgir. All the injuries were caused by sharp-edged weapon. The doctor found multiple cuts present on Kameez of the deceased while his Shalwar was torn and stained with blood and faecal matter. The doctor removed the clothes and noticed that the whole colour of the body was turned into black and a lot of maggots were present on the dead body which was in advanced stage of putrefaction while the skin of neck and back of chest was partially decomposed. The doctor also found contents of orbits partially decomposed, mouth was open and full of maggots.
The doctor also found all other parts of the body in advanced stage of decomposition and putrefaction. In the opinion of the doctor death occurred due to excessive haemorrhage and shock resulting from all the injuries. The doctor took three anal swabs for detection of semen and took visceras to see if it was a case of poison. The report of the Chemical Examiner showed that anal swa bs were stained with semen and blood. But it was not a case of poisoning.
3. Both the appellants were arrested on 941-1990. After investigation they were sent up for trial before the Additional Sessions Judge, Faisalabad. The latter charged them under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 377, P.P.C. And section 302/34, P.P.C. Both the appellants pleaded not guilty and claimed trial. The State produced 13 witnesses in proof of the prosecution case. Both' the appellants made statement under section 342, Cr.P.C. But they neither produced any defence nor made any deposition on oath.
4. After the conclusion of the trial the learned Additional Sessions Judge convicted both the appellants under section 302/34, P.P.C. For causing the murder of Ghulam Dastgir and sentenced each of them to undergo life imprisonment and to pay a fine of Rs,10,000 or in default to further undergo rigorous imprisonment for two years. The learned Additional Sessions Judge acquitted them of the charge under section 377, P.P.C. And section 12 of the Hudood Ordinance. Appellant Muhammad Asghar has challenged his conviction and sentence by Criminal Appeal No,40/L of 1992 in hand whereas appellant Saeed Alam has challenged his conviction and sentence by Criminal Appeal No,223/L of 1992. A Suo Motu Notice No, 20/L of 1992 for enhancement of sentence was issued to both the appellants. Since all the three matters have arisen from the same judgment, judgment in Criminal Appeal No,40/L of 1992 in hand will also dispose of the other criminal appeal and suo motu notice.
5. P.W.10 Safdar Ali, father of the deceased Ghulam Dastgir, reaffirmed the contents of the report which he had made to Police Officer. He stated that he had approached both the appellants to find out the whereabouts of his son but he could not get any satisfactory answer from them and thereafter both the appellants disappeared. He further stated that on coming to know of the discovery of dead body in the bungalow of P.W.12 Adnan Manzoor he went there and identified the dead body as being of his son. P.W.9 Abdul Rashid had seen both the appellants and the deceased Ghulam Dastgir talking to each other near a bungalow which was unoccupied and desolate. This witness was at that time accompanied by another Mistri Rashid and they had set out in search of job in Ameer Town and they came back after an hour. They saw both the appellants jumping out of the bungalow and running towards Mansoor Abad. He stated that he had made a statement to the police 10 days after his meeting the accused. P.W.11 Ashiq Hussain was sitting in the "Baithak" of Rana Iqbal 12 days after discovery of dead body at about 8-00 p.m. Both the appellants came there and both entreated for their forgiveness because they had committed unnatural offence with Ghulam Dastgir at the point of dagger and had then given him dagger blows in abdomen, eyes, arms and palms. They further stated that after the unnatural offence Ghulam Dastgir had started weeping and stated that he will make complaint to his parents whereupon they injured him as a result of which he expired. It was further stated by them that appellant Saeed Alam had caught Ghulam Dastgir by his arm and had injured him. P.W.7 Nawab Din stated that on 14-11-1990 appellant Saeed Alam, who was in police custody, disclosed and led to the recovery of Chappal of deceased Ghulam Dastgir from his house lying under an iron box. This witness attested the recovery memo. Exh.P.J. P.W.8 Gulzar Hussain had stated that he saw a police party in New Abadi Mansoor Abad and both the appellants were in custody and were being interrogated. In the presence of this witness appellant Asghar led the police party to the recovery of Chhuri from Amin Town from a bungalow where there was no other house. This witness further stated that the Chhuri was blood-stained and he attested the recovery memo.
6. In their statements under section 342, Cr.P.C. Both the appellants denied that they had either committed unnatural intercourse with Ghulam Dastgir or had murdered him. They also denied that they had approached Rana Iqbal and had made any extra-judicial confession. They further stated that they had been falsely charged and P.Ws. Had deposed against them because of their relationship inter se and on account of local enmity.
7. There is no ocular testimony in the case but circumstantial evidence was produced to show that Ghulam Dastgir was last seen alive in the company of both the appellants and thereafter his dead body was discovered. The prosecution also relied upon the extra-judicial confession alleged to have been made by both the appellants before Rana Iqbal as well as recovery of incriminating material.
8. In so far as circumstantial evidence is concerned, P.W.10 Safdar Ali complainant, father of the deceased, had approached both the appellants on 16-10-1990 to inquire about his son who had not reached home at his usual return time. But he could not get satisfactory answer from them. On the same day P.W.9 Abdul Rashid had seen all the three together in the under-construction and unoccupied bungalow of P.W.12 Adnan Manzoor and about one hour thereafter he had seen both the appellants jumping out from the wall of the said bungalow and running away.
9. In so far as the extra-judicial confession is concerned, P.W.11 Ashiq Hussain had stated that he was sitting in the "Baithak" of Rana Iqbal when both the appellants came there and confessed their guilt. This witness was not related to the deceased. The defence wanted to prove his relationship with the complainant party. Many a question was asked from him but he denied having any relationship with the complainant party.
10. Two articles were recovered by the Investigating Officer at the instance of each of the appellants. In the presence of P.W.8 Gulzar Hussain appellant Muhammad Asghar led to the recovery of blood-stained dagger from the house where the dead body of Ghulam Dastgir was found while in the presence of P.W.7 Nawab Din appellant Saeed Alam, while in police custody on 14-11-1990, led to the recovery of a pair of "Chappal" of the deceased Ghulam Dastgir from his own house.
11. The learned counsel for the appellants contended that although complainant Safdar Ali had become aware of the disappearance of his son but he did not make a report till discovery of dead body and that this conduct showed that he did not suspect the appellants of any foul play against his son. We have considered this aspect of the matter but we are unable to agree with the learned counsel for the appellants for the reason that till discovery of the dead body the complainant did not expect any foul play from the appellants towards his son because they were friends and employees in the same factory. He became convinced only when he discovered the dead body and found that both the appellants had disappeared. The disappearance of both the appellants is a very significant circumstance. If they had not committed the offence of murdering Ghulam Dastgir they would have never disappeared because they would not be afraid of anything. Their own conduct showed that the appellants were guilty.
12. The learned counsel for the appellants also contended that the recoveries did not advance the case of the prosecution in any manner. He was of the opinion that the recovery of blood-stained dagger did not prove that it was the weapon of offence. It is a fact that the dagger was not chemically examined to fmd out that whether the blood on it was that of the deceased but this recovery is very significant. The dagger was recovered from inside the bungalow where the dead body was lying and it was recovered at the instance of appellant Muhammad Asghar. This would certainly prove that the dagger was in the possession of this appellant before it was buried in a place in that bungalow. Otherwise he could not know the place where it was buried. This circumstance would show that the dagger belonged to the appellant and he had buried it in that bungalow. The other circumstance is the recovery of a pair of "Chappal" of the deceased from the house of appellant Saeed Alam. This Chappal was identified by P.W.10 Safdar All father of the deceased as belonging to his son. Both these articles are of very significant importance. They are very strong corroborative piece of circumstantial evidence and their discoveries cannot be discarded easily.
13. The learned counsel for the appellants also challenged the extrajudicial confession allegedly made by the appellants before Rana Iqbal. In this respect his first objection was that the said Rana Iqbal was not produced as a witness and the person who deposed about it (P.W.11 Ashiq Hussain), according to the learned counsel, was only a chance witness. This contention cannot also be accepted for the reason that P.W.11 Ashiq Hussain was not related to the complainant party. This wintess had also no grudge against the appellants. As such there does not appear to be any reason that he might have given that testimony for any motive. Consequently we are unable to discard the testimony of P.W.11 Ashiq Hussain regarding the extra-judicial confession of the appellants.
14. More than sufficient evidence had been brought on the record to prove the guilt of the appellants about causing the murder of Ghulam Dastgir in furtherance of their common intention when the deceased threatened to disclose the circumstance of sodomy. However, there had come no evidence on the record to prove the charge of sodomy or abduction for that purpose against the appellants.
15. A suo motu notice for enhancement of sentence was also given to both the appellants.
However, we have noted from the judgment of the learned Additional Sessions Judge that both the appellants were in their middle teens at the time of the commission of the offence. No doubt the deceased was also a child of 12/13 years of age but the appellants were also young boys at that time and that circumstance prevailed with the learned Additional Sessions Judge for not awarding the sentence of death to them. We are also of the opinion that due to the young age of the appellants the sentence of life imprisonment was quite appropriate.
16. Consequently, we will dismiss both the appeals as also discharge their suo motu notice.