' SALEEM DIL KHAN, J.---The two appellants, namely, Habib-urRehman son of Sher Afzal, aged about 22/23 years (hereinafter named as Habib Khan) and Khurshid son of Ghulam Haider, aged about 23/24 years were convicted by Additional Sessions Judge-I, Haripur under section 302/34, P.P.C., for the murder of Muhammad Fayyaz son of Feroz Muhammad, aged 19/20 years through judgment dated 3-7-1991 and were sentenced to death and 'a fine of Rs,20,000 each. It was directed that the fine, if realized, shall be paid to legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The two appellants were also convicted under section 377, P.P.C. Through the same judgment/order and were further sentenced to 5 years' R.I. And a fine of Rs,5,000 each or further 1 year R.I. Each in default of payment thereof. The two appellants have challenged their conviction and sentence by filing this Criminal Appeal No,23 of 1991. The proceedings regarding confirmation of death sentence bearing No,11/1991 have also been sent to us for confirmation under section 374, Cr.P.C. By the learned trial Court. One Criminal Revision No,26/91 has also been filed by Muhammad Feroz father of the deceased for enhancement of sentence already imposed by the trial Court under section 377/34, P.P.C. And also to obtain an order for payment of compensation under section 544-A, Cr.P.C. Alongwith confiscation of the immovable property belonging to the two appellants. We propose to decide all the three matters by our consolidated judgment.
2. The prosecution story in this case takes start from the F.I.R. Which has been lodged by Maghfoor- ur-Rehman S.H.O., P.S. Kot Najibullah as first informant. According to the F.I.R., Maghfoor-ur-Rehman, S.H.O., Police Station Kotnajibullah was about to leave the police station on his night patrol and it was about 10 p.m. In the night when a Suzuki Pick-up Van bearing No,ADA 5237 came to the police station. Accused Khurshid son of Ghulam Haider, resident of Malkiar, then injured, accompanied by Habib Khan accused and also one Mirza Shaukat, Advocate were boarding the said Suzuki Pick-up.
They informed Maghfoor-ur-Rehman S.H.O., Kotnajibullah that at about 4 p.m. The same evening the two accused Khurshid and Habib Khan had boarded the Suzuki Pick-up Van bearing No, ADA 5237 for journey to Rawalpindi. Besides them some other persons numbering 3 or 4, whom they did not know, also boarded the said Suzuki Pick-up. They further stated that when the Suzuki Pick-up went ahead of Village Mang the driver turned the Suzuki towards the jungle where a scuffle started between the driver on one side and the aforesaid unknown persons on the other side. During this scuffle Khurshid accused received injury in the shape of the fracture of his arm. Maghfoor-ur- Rehman, S.H.O. Prepared the injury sheet of Khurshid accused and sent him to the Civil Hospital for treatment while he took Habib Khan accused along with him to the spot. On reaching the spot, which is jungle 'Kali Tarar' he found the dead body of Muhammad Fayaz deceased in a ditch and on examination found stab injuries on his person which had resulted in his death. The injuries have been mentioned in detail in the F.I.R. And the S.H.O. Opined that these injuries were caused by a sharp-edged weapon. Maghfoor-urRehman, S.H.O. Prepared the injury sheet as well as the inquest report of deceased Muhammad Fayaz, Driver of the said Suzuki Van, and sent the dead body for post-mortem examination under the escort of Ali Asghar F.C. No,1190. The examination of the scene of occurrence on the pointedness of Habib Khan accused led the S.H.O. To the conclusion that the two accused had committed the murder of Muhammad Fayyaz either for snatching away the Suzuki Van and money or for the purpose of committing sodomy on his person and, therefore, he was of the view that a case under section 302/34, P.P.C. Be registered against these two accused.
Consequently, he drafted a "Murasila" which he sent to S.H.O. Police Station Khanpur for registration of a case and sent it through Constable Muhammad Sabir Sultan F.C. No,1160. The present case was registered on the basis of this "Murasila" through F.I.R. No,98 placed on file as Exh.P.A. And both the accused were formally arrested by the police and investigation was started.
3. Khan Afsar, Head Constable was examined as P.W.1. He is witness to the recovery of Suzuki Pick- up bearing No,ADA 5237 alongwith its registrations copy produced by Habib Khan accused. He is also witness to the taking into possession by the I.O. Of Shalwar P.1, having semen stains and blood- stained shirt Exh.P.2 and "Chaddar" Exh.P.3 alongwith a phial containing the swabs taken from Khurshid accused. These items were produced by Qaim Khan F.C. No, 507. In his presence the I.O.
Also took into possession shirt P.5, Shalwar P.6 blood-stained and having corresponding cut marks together with Chaddar Exh.P.7 blood stained and two phials containing the swabs of Muhammad Fayaz deceased which were produced by Ali Asghar F.C. No,1199.
4. Dr. Noor Wahab Medical Officer, Civil Hospital, Haripur was examined as P.W.2 who stated that he examined Habib Khan accused on 16-5-1988 at 9-15 a.m. And he found that mustaches and beard scanty developed but pubic hairs and sexual organs well developed and physically fit. He found him to be capable to perform sexual intercourse. Secondly, he advised X-ray for the determination of his age. The doctor also took suspected pieces of cloth and also urethral and paraurethral swa bs and sent the same to the chemical examiner for opinion, about the human semen, through police. The doctor also testified that the X-ray report of Habib Khan was in his handwriting and as per the report the age of Habib Khan accused was 18-19 years.
5. Qaim Khan F.C. No,507, Police Station Khanpur was examined as P.W.3 and he testified that in his presence the I.O. Took into possession Shalwar P.8, Qameez P.9, underwear P.10 belonging to Habib- Than accused. In his presence one phial containing semen stains, a piece of cloth and a phial containing semen swa bs were also handed over by the doctor to the I.O. In his presence the I.O.
Packed and sealed all these items in different parcels and prepared a memo. In this behalf. Sher Muhammad Khan S.I. Has been examined as P.W.4 He partly investigated the case as he was posted S.H.O., P.S. Khanpur during the days of occurrence. Subsequently, upon his transfer, he handed over the file to Maghfoor-ur-Rehman, S.I. For onwards investigation. Fateh Muhammad P.W.5 and Abdul Latif P.W.6 had identified the dead body of Muhammad Fayyaz, Banaras Khan son of Hayat Muhammad examined as P.W.7 is the owner of Suzuki Pick-up No, ADA 5237. According to him, this Suzuki had been purchased by him at a price of Rs,38,500. He, for some time himself plied the said Suzuki but later on he made over the job of driving of Suzuki to Muhammad Fayaz deceased and, on regular basis, employed him as Driver. On the day of occurrence before 'Iftar' time Muhammad Fayaz deceased met Banaras Khan and told him that after 'Mar' he should take the Suzuki Pick-up to his house. On the same night at about 1 or 1-30 a.m. One Parvez and Muhammad Ashraf came to his house and informed him that Muhammad Fayaz had been murdered. On receipt of this information he went to Panian Chowk and found his Suzuki Van standing there in Panian Chowk while the dead body of Muhammad Fayaz was in the Civil Hospital, Haripur. After seeing the dead body of the deceased he went after the father of the deceased in order to inform him. Then he along with Feroz came to the Civil Hospital, Haripur and found two persons present there wearing blood-stained clothes. They were Khurshid and Habib accused. On the following morning he alongwith Habib accused accompanied the police party and went towards Khanpur. According to this witness, accused Habib Khan pointed out the various places on the scene of occurrence. Pertinent among these pointations is that in the presence of this witness, accused Habib Khan led the police party to the place where he had concealed the blood-stained Pesh Qabz' in a bush and the same was taken out at his pointedness which was taken into possession by the I.O. In his presence and was also sealed by the I.O. In his presence. The memo.
Prepared in this behalf was signed by this witness to which he testified in the Court statement as well. Blood-stained earth was also recovered in the presence of this witness through memo.
Exh.P.W.7/2 to which the witness has testified in his Court statement. Statement of Muhammad Feroz Khan, father of deceased Muhammad Fayaz was recorded as P.W.S. This witness stated that on the evening preceding the eventful night at about 6-30 p.m. He was told by his son Muhammad Fayaz deceased that he was going on booking. This witness who is the father of the deceased testified that he saw two persons who were sitting with him on the front seat of the Suzuki Pick-up.
When late at night he found that his son had not returned he got disturbed. After some time he was informed by Banaras Khan, the owner of the Suzuki, that his son had been murdered and that the accused had been arrested and the dead body had been taken to the hospital. This witness accompanied Banaras Khan P.W. To the hospital at Haripur and there he noticed that the dead body of his son was lying in the mortuary and he also saw two persons whose clothes were smeared with blood. One was present in the emergency ward while the other was present in the Suzuki under the arrest of the police. Banaras Khan P.W. Identified these two persons to be the same persons who had come to his house along with his son deceased Muhammad Fayaz in the Suzuki Pick-up in the evening preceding the eventful night so he testified to the effect that he had last seen the deceased in the company of the. Accused and he also charged both these accused for the murder of his son. Maghfoor-ur-Rehman Inspector was examined as P.W.9. He narrated almost the same story which he has given in the F.I.R. And he also testified that at the pointation of accused Habib he recovered the dead body of deceased Muhammad Fayaz and prepared the injury sheet Exh.P.W.9/1 and also the inquest report Exh.P.W.9/2 and then despatched the dead body in custody of Ali Asghar F.C. No,1190 for post-mortem examination. Khurshid accused who was injured by then was examined by him and he also prepared his injury sheet Exh.P.W.9/3 and sent him in custody of Sabir Sultan F.C. For medical examination. He also took into possession from the spot a trouser string P.12 which was blood-stained and a pair of chappel P.13 belonging to the deceased and took the same into possession and prepared the memo. Exh.P.W.9/4. The recovery memo. With regard to the dead body of Fayaz was prepared as Exh.P.W.9/5. Abdul Aziz Khan S.H.O.
Who has been examined as P.W.10 is witness to the recovery of trouser string Exh.P.12 and a pair of chappel Exh.P.13 which were taken into possession by the I.O. And he is also witness to the recovery of the dead body of Fayaz in half-naked position. Dr. Tariq Qureshi, Medical Officer, Civil Hospital, Haripur P.W.11 was examined and he stated that on 15-8-1988 at 11-30 a.m. He examined Khurshid son of Ghulam Haider, aged about 26 years and found the following:---
(1) A lacerated wound left upper arm on the internal aspect with a bruise of 1" x 1" in size with bleeding.
(2) Complained of generalized body pain.
' According to opinion of the doctor, injury No,1 was caused by blunt means and grievous with 1 to 2 hours duration. Advised X-ray. Injury No,1 simple. Patient was admitted in medical ward. On the police query he replied that the patient was 26 years of age and was capable to perform rape.
According to the witness there were signs of rape on the penis of the accused also. Samples of semen on Shalwar and Qameez were handed over to the police. He testified to the correctness of his report which is on the file as Exh.P.W.11/1. Muhammad Farid Khan S.I. Examined as P.W.12 stated that in the year 1988 he was posted as S.H.O. Police Station Khanpur. He investigated the case partly and he had inspected the spot, had prepared the site plan Exh.P.12/1 with all the footnotes and drawing correctly. He stated that he had prepared the site plan at the pointation of Habib Khan accused while he was in his custody. Accused Habib Khan was got examined through injury sheet Exh.P.W.12/2 by the Medical Officer, Civil Hospital, Haripur and then he was taken to the spot by this witness where on the pointation of Habib Khan accused he prepared the site plan. This witness testified to the fact that he took into possession Shalwar P.1, shirt Exh.P.2, Chadder P.3 and a Phial containing swa b of Khurshid accused produced by Qaim Khan after the medical examination of Khurshid and that he took the Phial into possession through memo Exh.P.W.1/2. Through the same memo. All these items were packed and sealed into different parcels. The Phial was already packed and sealed. He also took into his possession Shalwar Exh.P.8, shirt Exh.P.9, underwear Exh.P.10 belonging to Habib Khan accused alongwith a Phial containing semen stains cloth piece and a Phial containing urethral swa b of Habib Khan accused. These items were packed and sealed into different parcels through memo. Exh.P.W.3/1. He also took into his possession shirt Exh.P.5, Shalwar Exh.P.6, both blood-stained and having corresponding cut marks, Chaddar Exh.P.7 alongwith two Phials Exh.P.8 containing the swa bs of deceased Muhammad Fayaz. He also prepared the memo.
Exh.P.W.1/3 to this effect. All these items were packed and sealed in different parcels. This witness also took into possession a, Suzuki Pick-up bearing No,5237-ADA which was produced by Habib Khan accused and he prepared a memo. To this effect which was Exh.P.W.1/1. Subsequently, while in custody of Police, Habib Khan accused, led this witness to a bush of Thalia' wherefrom, at his pointation, this witness recovered blood-stained Tesh Qabz' Exh.P.W.11, the weapon of offence, which the witness took into his possession and packed and sealed the same into a parcel. A recovery memo. Was prepared in this behalf which is on the file as Exh.P.7/1. The blood-stained earth was also recovered from the spot on the pointation of accused Habib Khan and the same was taken into possession, packed and sealed through memo. Exh.P.W.7/2. This witness also testified that he had drawn an application which is placed on the file as Exh.P.W.12/3 through which he had sent 9 parcels to the Chemical Examiner pertaining to the recoveries made' by him during the investigation for the report The chemical examiner. He also testified that he had seen the report of the chemical examiner on the file which is Exh.P.W.12/4. Dr. Muhammad Ikramullah, Medical Officer, Central Jail, Haripur P.W.13 stated that he examined the dead body and performed the post-mortem examination on the dead body of Muhammad Fayaz on 16-5-1988 at 6-45 a.m. And found the following:--- External appearance: ' Stout.
External injuries:
(1) Stab wound right cheek 1 in number 1" x 1/2" x skin and muscle deep, bled profusely.
(2) Stab wounds right chest back side two in number penetrating the thoracic cavity 1-1/2" x 1" and 1" x 1/2" .
(3) Stab wounds right buttock four in number skin and muscle deep bled profusely of different sizes 1/2-2" and 3/4-1".
(4) Stab wound right thigh back skin and musle deep bled prefusely 1" x 1/T.
(5) Stab wound left buttock skin and muscle deep 2" x 1/2".
(6) Stab wound on epigastrium penetrating the abdominal cavity.
(7) Stab wound right arm one in number 1" x 1/2".
(8) Stab wound left thigh laternal aspect two in number 2" x 1/2".
' On internal examination the doctor found thorax wall, right pleura, right lung, abdominal walls, peritonium, mouth and liver injured. Stomach was intact and full of food material.
6. The doctor opined that the death had occurred due to sharp injuries to the vital organs such as liver, lung, plumunary blood vessels which resulted in shock and haemorrhage. According to the witness, 5 copies of the post-mortem report alongwith blood-stained Shalwar, shirt and two anal swa bs for chemical analysis taken from the deceased were handed over to the police. The Shalwar and shirt had corresponding cut marks. According to his opinion the probable time between injuries and death was 2 to 3 hours and between death and postmortem examination 6 to 8 hours.
The post-mortem examination report comprising 5 sheets Exh.P.W.13/1 were sent by this witness and he testified that they were correct and were correctly bearing his signatures. He further opined that the swa bs of the victim were sent for chemical examination and if they were found positive then he was subjected to carnal intercourse. The two accused, namely, Habib-ur-Rehman and Khurshid were examined under section 342, Cr.P.C. Wherein they professed complete innocence and charged the witnesses that they were interested witnesses and had involved the accused mala fide for their ulterior motives. The accused also produced D.W.1, namely, Saeedur Reitman H.C.
Attached to the Court. He produced the original Roznamcha dated 15-5-1988 of Police Station Kot Najibullah. The entries in the daily diary from 14 to 28 have been copied by this witness from the original which were Exh.D.W.1/1. The original was seen and returned and the copies were found as correct. The counsel for the accused and the accused produced copies of F.I.R. No,155 dated 4-9- 1988 of Police Station Khanpur, F.I.R. No,565 dated 31-7-1989 Police Station, Haripur and F.I.R. No,76 dated 23-6-1989 Police Station Kot Najibullah and closed their defence evidence.
7. The learned counsel for the appellants strenuously argued that there is no ocular evidence worth the name in this case and the entire case of prosecution hinges on circumstantial evidence which has always been considered as very weak evidence particularly in a case of capital punishment.
' He further contended that there is no confessional statement from the mouth of either of the appellants. Learned counsel argued that there is no motive which is very essential in cases like the one in hand. He stated that mere recoveries of dead body, Suzuki Pick-up Van, clothes of the appellants, being smeared with blood, and positive result of the Forensic Science Laboratory and Chemical Examiner are not sound foundations on which a criminal case can solidly stand. Learned counsel vehemently assailed the medical evidence with regard to the act of sodomy and has stressed that the crime of sodomy has not been proved at all. He has further stressed that the statements of the witnesses are discrepant inter se and, therefore, do not inspire confidence thus bound to be ignored.
8. The learned A.A.-G. Very fervently repelled the arguments propounded by the learned counsel for appellants by maintaining that the prosecution had very successfully brought home the charge to the appellants by way of ocular evidence as the appellants themselves had informed the police about the occurrence and they still had not drifted from that stand. He stressed that the circumstantial evidence brought forth on the record of the case was of such a nature and of such a high quality that it was squarely incompatible with the innocence of the .Appellants. The learned AA.-G. Mainly relied on the medical evidence coupled with the reports, of Chemical Examiner and Serologist.
9, We have very patiently heard the learned counsel for the two sides and have also carefully scrutinized the record, down to the lowest strata. The learned trial Court has convicted and sentenced the appellants by placing reliance on the statement of Feroz Khan P.W.8 who has last seen the deceased in the company of accused and immediately identified the accused in hospital on the first sight, medical evidence in support of the prosecution 'story substantiated by the positive report of. Chemical Examiner, the recoveries of incriminating articles particularly the crime weapon in the shape of Pesh Qabz' (dagger).
10. In the present case a sizeable portion of the prosecution story with regard to narration of fact is admitted by the appellants although they profess their own side of the story. We are, therefore, not required to dilate upon that portion of the evidence because facts admitted need not be proved.
11. The factum of last seen evidence is not denied by the appellants but, instead, they give the story in the following manner in their statement under section 342, Cr.P.C. Following is the statement of Habib Khan appellant:--- 'I am innocent and falsely been involved. On the day of occurrence I along with Khursheed were going on the Suzuki of deceased. Three/four unknown culprits were also seated on that vehicle.
When we reached near the alleged scene of occurrence the unknown culprits forcibly took the vehicle from the driver towards the Forest of. Kali Tarar. During scuffle my co-accused Khursheed also sustained grievous injuries whereas the deceased was taken inside the forest forcibly by the unknown culprits and I brought co-accused Ithursheed at Haripur wherefrom Shaukat Mirza, Advocate and one Nazir s/o Gohar-ur-Rehman, resident of Mohallah Khoo Haripur took us to P.S. Kot Najibullah for lodging the report. As we all had no knowledge regarding the jurisdiction of place of occurrence, we narrated the occurrence to Qazi Maghfoor-ur-Rehman the then S.H.O. Of P.S. Kot Najibullah in detail. He instead of writing our report went to the place of occurrence and came back with the dead body. We reached in the P.S. At about 9-30 or 10 p.m. As some occurrence of Haraba had taken place to the vicinity of P.S. Khanpur, Kot Najibullah by the Afghan refugees and local persons till 11-15 p.m. Qazi Maghfoor-ur-Rehman could not trace the actual culprits and on the next day we came to know that all the case was planted against me and my co-accused. As the Engineer of this case Qazi Maghfoor-ur-Rehman was interested to trace out the culprits and in order to satisfy their Superior Officers he took the present story against us. In the present case there is no eyewitness, no confessional statement nor circumstantial evidence and the Engineer of this case planted some fake recoveries against us in order to prove the untraced case. He also violated the law as he did not register the case after receiving information regarding cognizable offence. In his Murasila and during cross-examination he admitted this fact that we went to the P.S. Kot Najibullah in order to lodge the report against the unknown culprits. But Qazi Maghfoor did not try to trace out the unknown culprits who were mentioned by us in our report."
' The statement of Khurshid appellant is identical with the statement of Habib Khan appellant, therefore, need not be reproduced.
12. The appellants have adopted a peculiar story with regard to happening on the spot at the time of occurrence after admitting their presence on the spot at the relevant time. When we put the two versions in juxtaposition we do not feel any hesitation in rejecting the version of the appellants on the reasons that in the first instance how one can believe that three/four persons boarded the Suzuki with the intention of committing robbery and they were empty-handed and yet they had the courage to rob young men equal in number with them. Secondly, it is interesting to note that no one has been robbed nor have the appellants alleged that money or other valuable was taken away from them by the so-called "unknown culprits", so-much-so that the Suzuki Van too, was not snatched away although it was in perfect working condition as it was driven from the spot to the hospital. The guilty conscience of the appellants is further proved by the fact that instead of informing police or going to the hospital, which should have been the natural conduct in ordinary course of life, they approached a Practising Lawyer which fact leads one to the irresistible conclusion that they had something serious on their mind which they wanted to set right before approaching the law enforcing agency. Furthermore, they have stated that some cases of Haraba had taken place and in order to cover the failure in unearthing the culprits in those cases the I.O.
Dishonestly mounted the present case over the heads of the appellants. This proposition is totally devoid of facts because the appellants have brought nothing concrete on record to support this contention. Above all that, it does not appeal to common sense that the I.O. Would have concocted a false case against the appellants when there has been no enmity between them nor will this case of murder and sodomy give any benefit in a case of Haraba committed earlier.
13. The present case is not of plain murder but there is multiple charges of sodomy followed by murder of the victim as he was resisting the offence of sodomy on his person by the appellants. In this situation one offence i,e, sodomy, has acted as motive for the second offence i,e, murder. In order to arrive at some conclusion in this behalf we shall have to discuss the medical evidence.
Doctor Muhammad Ikram P.W.13 examined the dead body and wrote the post-morteril report Exh.P.W.13/1 which shows that seats of injuries Nos.3 and 5 were on right buttock and left buttock respectively while injury No,4 was on the back of right thigh and injury No,8 on the lateral aspect of left thigh. These four injuries clearly indicate that all along the appellants were giving blows to the deceased when they had forced the victim tb lie prostrate on the ground for committing sodomy on his person. The locations of these injuries and injury No,5 on the back of chest are suggestive of the fact that the victim was resisting the assault and, during the struggle for overpowering the victim/deceased, the appellants had, to inflict dagger blows because for committing sodomy the victim was to be forced to lie prostrate on the ground, therefore, most of the injuries are on the back of chest and on the back of buttocks and thighs.
14. The doctor had handed over the stained Shalwar, shirt and two anal swabs for chemical examination.
15. In this context let us also examine the testimony of Dr. Tariq Qureshi P.W.11 who examined the appellant Khurshid. The relevant portion of his statement is that Khurshid appellant was 26 years old, was capable of committing rape and that his penis was carrying the marks of rape at the time of examination. Sample of semen and Shalwar and Qamiz were .Handed over to the police. Doctor Noor Wahad Shah P.W.2 examined Habib-ur-Rehman appellant and opined that he was capable of performing sexual intercourse and suspected piece of cloth and urethral and paraurethral swa bs were taken and sent to the Chemical Examiner through police.
16. The seminal swa bs taken from the victim/deceased and the two appellants and the stains on the cloth, were detected to be semen of human origin by the Forensic Science Laboratory.
17. Similarly the clothes of the deceased and those of the two appellants were found to be stained with human blood of the same group by the Forensic Science Laboratory. This circumstance clearly suggests that both the appellants received blood staining on their clothes due to the blood oozing out of the injuries of the deceased. This fact further substantiates the prosecution story that there was struggle between the deceased on one side and the two appellants on the other side.
Otherwise the blood group of the blood stains on the clothes of the appellants would have been different inter se and from the blood group of the deceased. The presence of semen has been proved by the F.S.L. On the swa bs taken from the anus of the deceased and on the urethral swabs and clothes of the two appellants. These reports of doctors and Forensic Science Laboratory are enough to satisfy our judicial Mind that sodomy had been committed by the two appellants on the person of the deceased and that his death too has been consequent to the dagger blows inflicted on his person by the appellants.
18. The contention of the learned counsel for the appellants, while quoting from Modi Tex Book, that in case of commission of sodomy there should have been internal and external injury on the anus of the deceased or at least there would have been laceration, lubrication and marks of violence on the anus of the deceased, is not of much force because it has never been alleged by the prosecution that the aggressors had practically succeeded in penetrating their respective penises into the anus of the deceased. When we see the whole scheme of happenings it appears. That, through and through, there was a struggle between the deceased and the assailants. This is apparently because the assailants (the appellants) were trying to overpower the deceased for commission of sodomy while the latter was resisting this attempt with the result that the appellants chose to inflict the dagger blows on him. In such a situation it was humanly not possible for the appellants to effect penetration into the anus. So far as the offence of sodomy is concerned it is complete even without penetration into the anus.
19. During the course of arguments it was stressed on the strength of cross-examination of the doctors that the presence of semen on the person can also be caused by natural ejaculation and also by way of nocturnal emission. But this does not ring true in the circumstances of the present case. Had there been semen stains on the organ of one of the appellants one could agree to the proposition but in the present case the semen stains are present on the relevant organs of both the appellants and also on the anus of the victim/deceased which evidence is further supported by the presence of semen stains on the clothes of the assailants as well as those of the victim. We.
Therefore, find this argument nothing more than a fanciful and imaginary hypothesis having no footings.
20. This case was registered at 23-15 hours on 15-5-1988 as per F.I.R. Exh. pA. And the blood/semen stained clothes of the two appellants and those of the deceased were taking into possession by the I.O. On 16-5-1988 and were sealed and sent. To Forenisc Science Laboratory. The report of the F.S.L. Exh.P.W.12/4 was despatched back to the local police on 12-7-1988.
21. Much premium was attempted to be derived from the delay that occurrence in the receipt back of the result of the F.S.L. And it was further contended that, in fact, the sending of these articles to the F.S.L. Was delayed by the local police in order to tamper with the incriminating articles to their benefit. He tried to seek support from the discrepancies in the statements of the formal witnesses and those F.Cs, who accompanied the I.O. During the initial stage of the investigation, but the discrepancies pointed out were all with regard to the timings of the various acts performed by the I.O. During the investigation.
22. We have gone through the statements of P.W.3 ()aim Khan F.C., P.W.1 Khan Afsar H.C., and P.W.7 Banaras Khan owner of the Suzuki Van. We observed that there were some discrepancies with regard to the timings of arrest of appellant Habib-ur-Rehman then going to the spot and their arrival back in the hospital. No doubt discrepancies inter se the statements of P.Ws. On material points are fatal to the prosecution but, simultaneously minor discrepancies are conveniently ignored because it is not possible for a human being in the ordinary course of life to record in his mind all the minute details of the happenings and reproduce each and every moment of what he witnessed at the relevant time like simulated and time-spaced photography. So far as the delay in the report of the F.S.L. Is concerned, the police owe nothing in this behalf and the prosecution has fully discharged its duty Muhammad Farid Khan S.I., examined as P.W.12 has stated categorically that he sent the clothes of the appellants and the deceased along with other articles to the F.S.L.
For Chemical Examination on 16-5-1988 through his application Exh.P.W.12/3. The defence counsel has cross-examined this witness at a considerable length but no point beneficial to the defence could be extracted on this score. The Chemical examination of the said articles and preparation of report too were not delayed because there is nothing on record suggestive of this fact but, instead, only the transmission of report to the local police was delayed which gives no benefit to the defence because there is no evidence or suggestion in cross-examination making a proposition that the F.S.L. Had any mala fides or they had acted wilfully in a manner prejudicial to the appellants. Preparation of various documents and transmitting them to the quarters concerned are normally delayed in the Offices. Moreover, the consistent stand of the appellants was that these articles were delayed by way .Of keeping them in the P.S. And they never assailed the conduct of the F.S.L. Reference in this behalf may be made to PLD 1989 Pesh.
162. The minor discrepancies inter se the statements of the police constables are of no avail to the defence because the concessions, minor in substance, cannot discredit the confidence inspiring evidence of the other witnesses. This proposition was first thrashed out in case `Baga v. State' reported in PLD 1972 SC 77 in the following observations:--- "Before parting with this case, we cannot help observing that the frequency with which cases are coming up before us wherein formal witnesses, particularly foot constables, are found to be obliging the defence in cross-examination with regard to matters wholly unconnected with the part the witnesses took in, the investigation, is causing us some concern. We entirely agree with the observations of one of the learned Judges of the Peshawar High Court in the case of Sikandar Shah v. The State that the obliging concessions made by such witnesses in cross-examination cannot be considered to be of any value. We also hope that the Provincial Governments will take note of those observations and take steps to check such propensities on the part of their own subordinate Police Constables."
' This view was endorsed by Supreme Court in case 'Muhammad Sharif v. Muhammad Javed and others' reported in PLD 1976 SC 452.
2. The recovery of the blood-stained Pesh Qabz (dagger) Exh.P.W.11 and the other articles belonging to the deceased at pointedness of appellant Habib-ur-Rehman also render substantial support to the case of the prosecution. Appellant Habib-ur-Rehman was arrested by Muhammad Fareed Khan S.I. And during the police custody he led the police to the spot. Before proceeding to the spot the Suzuki Pick-up bearing No, ADA 5237 was produced by Habib-ur-Rehman accused and the same was taken into possession by the I.O. This fact stands proved beyond reasonable doubt because the entire set of witnesses is unanimous on the point that the said Suzuki Van was brought to the police station and the hospital by the two appellants and the defence too has not succeeded in rebutting this fact. Similarly, he pointed out the place where he had concealed the blood-stained Pesh Qabz Exh.P.W.11 in a bush situated at a distance of 55 paces from the' place of occurrence and blood-stained earth was also recovered by the said I.O. From three different places at the pointation of the appellant which was sealed into a parcel vide memo. Exh.P.W.7/2. It is also pertinent to mention here that prior to Fareed Khan S.I. P.W.12, the appellant had also accompanied Maghfoor-ur-Rehman Inspector P.W.9, to whom the matter was reported at the first instance, to the spot where, at the pointation of appellant Fnbib-ur Rehman, the dead body of Fiaz deceased was recovered and he prepared his injury sheet Exh.P.W.9/1, inquest report Exh.P.W.?/2 and the dead body was despatched for post-mortem examination. The said P.W. Also recovered from the spot trouser string P.12 blood-stained, and pair of chappel P.13 of the deceased at the same time, and took these articles in his possession vide memo. Exh.P.W.9/4. The contention of the learned counsel, that the word pointation has not been incorporated in the recovery memo. Is not of much value .Because clerical omissions do not negate concrete facts. Maghfoor-ur-Rehman Inspector P.W.9 was not aware of the present occurrence but as per case of the appellants, he was informed by the two appellants themselves and on their information he recovered the dead body of Fiaz. It is, therefore, not of any avail to the appellants to point out minor technicalities in the evidence because the information with regard to the dead body was supplied by them and they have never retracted from their stand in this behalf. We, therefore, find that the minor discrepancies in this behalf which were very vehemently argued quite at length were of no use because it were the appellants themselves who had furnished the very information with regard to the occurrence and the dead body. It was also stressed that Maghfoor-ur-Rehman P.W.9 had visited the spot on 15-5-1988 but had not recovered the bloodstained Pesh Qabz. It was also argued that the Pesh Qabz' was lying in an open place and the place was accessible to general public. In out view, therefore, these circumstances rather go in favour of the prosecution because if Maghfoor-ur-Rehman Inspector P.W.9 had any intention of concocting a case against the appellants he would have easily planted the recovery of the `Pesh Qabz' during his inspection of the scene of occurrence but he has not done so which shows the bona fides on the part of this witness.
Similarly, if Fareed Khan S.I. P.W.12 had any intention of concoction he could also very easily plant another dagger in order to give support to the prosecution case with regard to Khurshid appellant.
But he has not done so which shows that both these police officers had acted in a bona fide manner otherwise explanation of incriminating articles was not a problem for them. So far as the place of concealment, of the `Pesh Qabz' is concerned it must be noted that the occurrence had taken place in a remote place inside a thick jungle and obviously the general public had no job to go and visit this place. We, therefore, very safely hold that the place where the `Pesh Qabz' was concealed is not accessible to general public. The authorities produced in this behalf were thoroughly perused but they are distinguishable from the circumstances of the present case. In the judgment of the Supreme Court reported in 1968 SCMR page 98 the recovery was disbelieved because one of the witnesses was proved on record to be the enemy of the accused and the witnesses were discrepant on material points and on the mode of recovery itself, whereas none of these circumstances exist in the present case. Similarly, the judgment reported in 1980 SCMR page 225 is also distinguishable because the recovery was made from the hedge accessible to all the villagers coupled by the fact that in spite of the middle of the village no person was associated as 'Mashie from the village but in the present case it was deserted place in the jungle and no witness was available at the mid-night. Similarly, judgment reported in 1974 PCr.LJ page 137 is also distinguishable. In view of these circumstances, we do not find any reason to disbelieve the circumstantial evidence in the shape of recoveries made by the I.O. Either himself or on the pointation of the appellant Habib-ur-Rehman.
24. The upshot of the above discussion is that the liposuction has successfully discharged its duty by bringing home the charge to the two appellants beyond any reasonable doubt by producing reliable evidence of Banaras Khan P.W.7 and Muhammad Feroz Khan P.W.8 duly supported by the medical evidence of Dr. Muhammad Ikramullah P.W.13, Dr. Tariq Qureshi P,W.11 and Dr. Noor Wahab Shah P.W.2 and further materially corroborated by the evidence of the illicit motive of sodomy as well as the recoveries of the dead body, trouser string, chappal belonging to the deceased and the crime weapon in the shape of Tesh Qabz' at the pointedness of appellant Habib-ur-Rehman. We, therefore, have arrived at the conclusion that the appellants have been convicted properly under section 302, P.P.C.
25. The learned trial Court upon conviction has sentenced both the appellants to the capital punishment of death and a fine of Rs,20,000 each, which, if recovered, shall be paid to the legal heirs of the deceased and were also sentenced to 5 years' R.I. Each and a fine of Rs,5,000 each or in default of payment of fine to one year R.I. Each under section., 377/34, P.P.C. The quantum of sentence needs consideration and close scrutiny in view of the evidence placed on record.
26. No doubt, the overall evidence against both the appellants proves the crime beyond any shadow of doubt. However, the evidence to determine the specific role of each appellant at the last stage of stabbing is not very luminous. The number of injuries inflicted by each of the appellant and the portion of body over which each one of them caused the injuries cannot be discerned from the record. It is also not possible to determine as to which of the injuries proved fatal and who out of the two caused those injuries. With sharp-sighted eyes we were endeavouring to find the one, among the appellants, who was more active and vigorous in pursuing the devilish designs up to the tragic end but the evidence on this particular point is a bit hazy and does not appear as fully established. Therefore, we have difficulty in ascertaining as to who among the two really deserved the capital punishment, of death. In view of this situation we are hesitant to confirm the ultimate penalty of death on both the appellants. We are, therefore, of the view that the ends of justice would be fully met if the death penalty of both appellants is converted into life imprisonment.
Accordingly, while maintaining the conviction of the appellants under section 302/34, P.P.C. We convert the sentence of each of them from death to life imprisonment and, therefore, decline to confirm their death sentence. We also maintain the conviction and sentence of both the appellants under section 377/34, P.P.C. We, however, accept the Criminal Revision to the extent that each of the accused-respondents 1 and 2 would pay Rs,20,000 as 'compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. Or in default to suffer six months' R.I. We are not inclined to extend the benefit of section 382-B, Cr.P.C. To the respondents.