' MAHBUB ALI KHAN, J.---Mir Azam, the appellant-convict, and his wife Mst. Shama (the acquitted accused) jointly faced prosecution on a murder delict before the Additional Sessions Judge, Mardan who on the conclusion of trial found Mir Azam guilty on the charge of the murder of Sahib Shah deceased, convicted him under section 302, P.P.C. And sentenced the accused to death with a fine of Rs,10,000 or one year R.I. In default. He at the same time was asked to make payment of compensation money (under section 544-A, Cr.P.C.) to the legal heirs of the deceased in the sum of Rs,20,000 or go in default to one year R.I. The accused was also found guilty and convicted for the commission of an offence under section 364, P.P.C. And sentenced to 10 years imprisonment with a fine of Rs,5,000 or six months' S.I. In default. The appellant was further convicted under section 201, P.P.C. And sentenced to four years' RI. With fine of Rs,1,00t) or two months' S.I. In default.
The convict has now moved this Court in appeal against his conviction and sentence as aforesaid while there is simultaneously a State Reference under section 374, Cr.P.C. For the confirmation of the sentence of death. Both the appeal and murder reference are being disposed of by this single judgment.
2. On 28-12-1989 P,W, Ghulam Hussain Khan A.S.I. Was on `Gashe in the limits of village Sanga when Mst. Lal Zarina met him and lodged a report to the following effects: "That she had eloped after deceased Sahib Shah from Village Waritae Dargai about four years back and they both thereafter entered into a regular marriage bondage. The couple had been afterwards residing in Village Sanga with Muhammad Yousaf the maternal uncle of her husband.
Sahib Shah who was a blacksmith was addicted to Charas smoking. The deceased used to visit very often the house of appellant Mir Azam a co-villager where they both used to smoke Charas jointly. On the preceding Sunday, i,e, on 24-12-1989 at `Kacha Garma' appellant came to the residence of the deceased and took Sahib Shah to his house for Charas smoking. As the deceased did not afterwards come back home, Mst. Lal Zarina went in search of her husband and learnt that appellant Mir Azam with the help of Saifullah Khan and Musalim her own father and brother had murdered Sahib Shah somewhere and concealed the dead body."
3. A regular case vide F.I.R. Exh.PA was thereafter registered at Police Station Takht Bai on the same day at 2-15 p m. On the receipt of the `Murasila' (Exh.PA/1) sent by Ghulam Hussain Khan A.S.I. The report was initially recorded under section 364, P.P,C which was later on altered into section 302, P.P.C. On finding of the dead body of Sahib Shah at 4-30 p.m. On the same day.
4. P.W. Ghulam Hussain Khan A.S.I. After recording the report of Mst. Lal Zarina at "Mahal Pir Sadi" in Village Sanga went straight to the house of the appellant and arrested him from his house. The accused during interrogation admitted the killing of the deceased and while in custody led P.W.
Ghulam Hussain Khan to a place inside his house where he with the help of the absconding accused had buried the dead body. The dead body was then dug out in the presence of P.Ws. Gul Ahmad Shah, Khanzada and 3-4 other persons of the vicinity from a tobacco barn lying inside the dwelling house of the appellant and immediately under escort sent to mortuary for autopsy. The appellant on 30-12-1989 was produced before the S.D.M., Takht Bai and he made a confessional statement. Ghulam Hussain Khan A.S.I. Also arrested Mst. Shama wife of the appellant. Saifullah and Musalim could not be arrested for having gone into abscondence.
5. Dr. Nut al Islam Khan (P.W.1) on 28-12-1989 at 4-45 p.m. Conducted autopsy on the dead body at Rural Health Centre, Takht Bai. He on external examination found the corpse partially decomposed with a big incised wound on the scalp frontal region, 5" x 1" with fracture of the frontal bone, another incised wound on the scalp at vertex, 5" x 1" with skull bone fractured, an incised wound on the scalp at right temporal region, 5" x 1" with fractured skull bone and a stab wound 2" x 1" on the neck at sternal angle.
' The doctor on internal examination of the dead body found pharynx, oesophagus, larynx, trachea and blood vessels injured. Stomach empty and partially decomposed. Scalp and skull besides brain were also injured. Death, in the opinion of the doctor, was instantaneous due to the injuries caused to the vital organs like brain, trachea and big vessels followed by haemorrhage and shock.
He has mentioned of about five days period between death and post-mortem examination.
6. We have heard at length Mr. Nisar Muhammad Khan, Advocate on behalf of the appellant- convict and Mian Shakirullah Jan the Additional Advocate-General. The report indicates that after having put accused Mir Azam and his wife Mst. Shama (now acquitted) to a formal charge under section 364/302/201/34, P.P.C. The learned Additional Sessions Judge recorded prosecution evidence consisting of the statements of Dr. Nurul Islam, F.C. Ghafoor Khan, F.C. Shah Rasool, Shah Wali Khan S.D.M., Takht Bai, Muhammad Anwar Khan S.H.O., Gul Ahmad Shah son of Nur Ahmad Shah, a resident of Village Sanga, Mst. Lal Zarina (widow of Sahib Shah deceased) the complainant-lady, Sardar Muhammad, Zahirullah Khan and Ghulam Hussain Khan A.S.Is. He thereafter examined the appellant and his wife under section 342, Cr.P.C. And on the conclusion of the trial found Mir Azam guilty on all counts in the charge and convicted him vide his judgment and order impugned, dated 18-2-1992 while acquitting Mst. Shama for deficient evidence.
7. The appellant's counsel began his arguments with an attack on the First Information Report as lodged by Mst. Lal Zarina. According to his assertion Mst. Lal Zarina being in know of the fact that the deceased had been taken by the appellant Mir Aram from his house on 24-12-1989 at `KachaGharma' did not care to go to the police station at Takht Bai lying at a small distance of 6/7 killo meters and lodge a report. She rather kept on waiting in the village for the arrival of the police when an A.S.1 per chance met her on 28-12-1989 at 2-15 p.m. In Village Sanga and recorded the report. He thereby stated that the inordinate delay caused by the lady in informing the police of the matter speaks on the falsehood of the story of having taken Sahib Shah deceased by Mir Azam appellant four days back from his house at `Kacha-Gharma'. The deceased was a Charas-addict and so was the appellant Mir Azam and they both used to smoke Charas together in the house of the accused. It was, therefore, not unusual when on 24-12-1989 at `Kacha-Gharma' the appellant visited the house of Sahib Shah and took the deceased with him for Charas smoking. Mst. Lal Zarina has stated that she afterwards when the deceased did not come back home went in search of her husband and also informed P.Ws. Ain Shah the father and Muhammad Yousaf maternal uncle of the deceased and a report was only lodged when they later on learnt that he might not have been killed by Mir Azam appellant by joining hands with her father and brother who had a cause of annoyance on her elopement after the deceased. It was because of no direct charge of murder against the appellant that an abduction case was initially registered under section 364, P.P.C. And it was only on the recovery of the dead body from the courtyard of the dwelling house of the appellant that sections 302/201, P.P.C. Were added to the report. The fact that Mst. Lal Zarina has clearly charged her own father and brother in the murder case of her husband along with the appellant and his wife speaks of the strong belief which she had developed on having learnt of the happening of the incident in the manner narrated by the lady in the report. She has stated that the appellant had no motive of his own for killing the deceased but he did so at the instance of her father and brother (the absconding accused) as they were annoyed with Sahib Shah on her elopement and marriage with him. In this background of the case in which the report was made by Mst. Lal Zarina with P.W. Ghulam Hussain Khan A.S.I. When the latter met her in the village during `Gashe on the fourth day of missing of the deceased from the house the delay, if any, in lodging the report would not mean much in a case like this leaving aside the question that the same has been well explained by the lady reported both in the report and in her statement recorded during trial.
8. The learned counsel next argued that the dead body was recovered from the tobacco barn of one Amanullah Khan and not from the house where the accused resided. That Amanullah Khan being landlord of the appellant wanted to eject him from his lands and for that matter many ejectment cases against the appellant were pending adjudication in various Courts and Amanullah Khan thus got an opportunity of involving falsely the accused in a murder case with a design to get back possession of the lands under his tenancy. This is true that the accused during those days was residing in a house provided by the said Amanullah Khan on account of his cultivating his agricultural lands, but as we find in evidence, the tobacco barn from where the dead body was dug out on the pointation of the appellant lies within the premises of the house where the appellant resided and is in fact a part of the courtyard of the dwelling house and it was none else but the appellant who led the I.O. To this place immediately after his arrest and P.W. Ghulam Hussain Khan A.S.I. Brought out the dead body therefrom. The I.O. Also took into possession some blood-stained earth from the tobacco barn along with an axe, a pick axe and a spade (Exhs.P1, P2, P3) at the instance of the accused and prepared on the spot the injury sheet and inquest report (Exhs.PE, PD) on examining the dead body. The fact that Mst. Lal Zarina had equally named along with the appellant her father and brother in the case would belie the argument, that the charge might had been laid at the behest of Amanullah Khan who was interested in the eviction of the appellant and his wife from the agricultural lands and the house in his occupation. Amanullah Khan had at least no grudge to involve falsely in the murder case father and brother of the lady- complainant by thc hands of no less than a person who happens to be their own daughter and sister.
9. The doctor on autopsy found three large size incised wounds in the head region with a stab injury in the neck area caused by a sharp-edged weapon. The time which had lapsed between death and post-mortem examination is mentioned by about five days by the doctor. P.W. Gul Ahmad has borne evidence that in his presence the appellant led the I.O. To the burial place of the dead body wherefrom it was later on recovered in his view. He had signed as a marginal witness certain memos. (Exh.PC, Exh.PC/1 and Exh.PC/2) relating to the recovery of articles like blood- stained earth, axe, pick-axe and a spade. The mere fact that this person happened to be a distant relation of Sahib Shah deceased would not by itself make his evidence dubious unless it is shown that he had his own axe to grind against the appellant. Similarly, P.W. Ghulam Hussain Khan the Police Officer who had investigated this case and dug out dead body from a tobacco barn inside the residential house of the appellant could not be expected to concoct a case like this being neither inimical towards the accused nor interested in his conviction on a false charge. The appellant on the third day of his arrest was produced before S.D.M., Swabi where he voluntarily made a statement and confessed commission of the crime by taking the deceased to his house under conspiracy with absconding accused Saifullah where they both murdered him with axe blows and thereafter buried the dead body in a tobacco barn. The learned counsel could not make out a case that the confession was obtained through duress by the exercise of third degree methods by the police. He placed much stress on the point, that the questionnaire form (Exh.P.F.) appended to the statement (Exh.P.F./2) being not signed by the Magistrate the statement of confession cannot be thus taken into consideration. This is not the true fact as a perusal of the very statement shows. The learned Magistrate has signed both the confessional statement Exh.PF/2 and the certificate Exh.PF/1 which are also thumb-impressed by the appellant. The questionnaire form Exh.PF is of course thumb-impressed by the appellant alone, but as it looks, it has been inadvertently not signed on the front page but having been duly signed on the back page along with the confessional statement in original by the Magistrate this argument would not have any substance. The confessional statement although retracted was backed with strong corrobor-ation like the recovery of the dead body at the pointation and from the house of the appellant and the medico-legal evidence which by itself were quite sufficient and independently capable of basing conviction of the appellant on a capital charge even if there had not been any confession at all.
P.W. Shah War' Khan was S.D.M., Swabi in those days. He being author of the confessional statement has been examined before the trial Court in evidence of the prosecution. He has stated that after having gone through the necessary legal formalities he recorded confessional statement of the appellant in his Court-room at 1-30 p.m, on 30-12-1989. That he duly disclosed his identity to the 'accused and gave him sufficient time to ponder over the matter. The learned Advocate thus failed to make out a case that the confessional statement is blemish, not voluntary and obtained under compulsion. It rather, in the circumstances, having been totally corroborated on very material particular by the recovery of dead body from the premises where the appellant resides at his own "pointation and the medico-legal evidence confirming the happening of the murder in the manner as described in the statement has been rightly believed, taken into consideration and relied upon as a satisfactory proof of the guilt of the convict notwithstanding the fact that he remained in police custody for 2/3 days before making the statement.
10. In this background of the case,. As we find in, evidence, we feel convinced that the prosecution have been able to bring home guilt of the murder of Sahib Shah deceased against Mir Azam appellant beyond any reasonable doubt and he has been rightly convicted on this count as laid down in the formal charge. Similarly, the accused has been rightly found guilty and convicted on the charge of causing disappearance of the evidence of murder by secretly burying the dead body in a tobacco barn and the sentence recorded against the appellant on this count under section 201, P.P.C. Would be simultaneously maintained along with his sentence of death under section 302, P.P.C. As we find in evidence no use of force against Sahib Shah when the deceased initially on the call of the accused accompanied him from his house at `Kacha Gharma' on 24-12-1989, in our view no case of kidnapping or abduction within the ambit of section 364, P.P.C. Could be, therefore, made out against the appellant and we would as such set aside his conviction and sentence recorded on this charge and with this lone exception dismiss the Criminal Appeal. The State Murder Reference on the confirmation of the sentence of death is answered in the affirmative.