'JUSTICE SH. MUHAMMAD ZUBAIR (MEMBER).---Muhammad Yagoob (14) and Imran Shamas (12), were tried by the learned Judge, Special Court for Speedy Trials, Multan, under sections 364-A, 365- A/34, 302/34 and 201/34, P.P.C. The learned Judge vide his judgment, dated 14-3-1993, convicted them under sections 364-A and 302(b)/34, P.P.C. Both the accused were sentenced to imprisonment for life under section 364-A, P.P.C., whereas under section 302(b)/34, P.P.C.
Muhammad Yaqoob was sentenced to death and Imran Shamas to imprisonment for life. Both the sentences of Imran Shamas were ordered to run concurrently. With respect to Muhammad Yaqoob, it was ordered that in case his death sentence is commuted by this Court, then his sentences shall also run concurrently. The convicts have filed the present appeal against their convictions and sentences.
2. Briefly, the facts as disclosed in the F.I.R. (Exh.PD) by Muhammad Akbar (P.W.4) are that he runs a tailoring shop at Bahawalpur. Muhammad Yaqoob appellant worked in the said shop as an apprentice. The complainant received two letters, one on 14-7-1992 and the other on 19 7-1992, to the effect that his children would be kidnapped in case he did not place a sum of Rs,50,000 under the chair lying in the try room of his shop. On Thursday at about 9-30 a.m., Muhammad Yaqoob appellant told the complainant that one Hafeez Tooli was sitting in Mosque Gul Hassan and was demanding money. Accordingly, Muhammad Akbar complainant alongwith Hafiz Muhammad Akram (P.W.7), Shakeel Akhtar (given-up witness), Rafiq-ur-Rehman and 3/4 other persons, went to the said mosque with Muhammad Yaqoob appellant, but Hafeez Tooli was not present there. On the same day at about 1-30/2-00 p.m. Hafeez Tooli approached the complainant and told him that he had not written any letter to him and that he was ready to furnish sureties of his innocence.
Hafeez Tooli was confronted with Muhammad Yaqoob appellant, who said that he had told a lie and that Hafeez Tooli was not the person present in the mosque. On 8-8-1992, at about 12-00 noon, Imran Shamas appellant took Umair Akbar son of the complainant to the Bazar on the pretext of purchasing flags, and returned after a shortwhile. On the same day at about 7-00 p.m. Umair Akbar disappeared from the house. Announcements from different mosques about his disappearance were made. Thereafter, the complainant and his companions went in search of the missing boy. At about 7-30 p.m., Jamshed Hafeez P.W.10 who was driving his wagon, met them near the Vegetable Market and told them that he had seen the appellant's and Umair Akbar at Fawara Chowk on a bicycle. He further told them that Muhammad Yaqoob appellant was paddling the cycle, Umair Akbar was sitting in front of him whereas Imran Sham as was sitting on the rear seat. On the information supplied by Jamshed Hafeez, the complainant alongwith Hafiz Muhammad Akram and Shakeel Akhtar went to Police Station Kotwali, Bahawalpur; where on the statement of Muhammad Akbar F.I.R. Exh.PD was recorded by Mahmood-ul-Hassan, S.H.O. (P.W.12).
3. Mahmood-ul-Hassan, S.H.O. (P.W.12) after recording the F.I.R., inspected the spot and made a search of the appellants. On the night intervening 8/9th August, 1992, Mahmood-ul-Hassan Inspector was on patrol duty at Fawara Chowk, when at about 12-30 a.m., Taj Muhammad Councillor (P.W.11) alongwith his brother Siraj (given-up witness) produced before him both the appellants. The Inspector recorded their statements. The Inspector got removed from their persons their blood-stained clothes and made them into separate sealed parcels. The appellants disclosed that They could lead to the place where they had thrown the dead body of Umair Akbar. The appellants led to the police party to the Zakheera where Muhammad Yaqoob appellant pointed out the place where the dead body was lying concealed. The Inspector took into possession the blood-stained Shalwar of the deceased P.1 and made it into sealed parcel vide memo. Exh.PK.
Thereafter, Mahmood-ulHassan Inspector, prepared the inquest report Exh.PB and sent the dead body to the mortuary for post-mortem examination. The Inspector collected bloodstained grass and blood-stained earth from near the dead body vide memo. Exh.PJ. After the autopsy, blood- stained shirt P.2 of the deceased was produced before the Inspector, who took the same into possession vide memo. Exh.PL. Muhammad Akbar complainant also produced before the Inspector two letters Exh.PB and Exh.PC which were taken into possession vide memo. Exh.PE. On 10-8-1992, the Inspector got the physical remand of the appellants. On 14-8-1992, Muhammad Yaqoob appellant got recovered blood-stained Chhuri P.4 from the Zakheera which was taken into possession vide memo. Exh.PM. Bicycle P.3 was also taken into possession at the instance of Muhammad Yaqoob appellant vide memo. Exh.PN. On 18-8-1992, Muhammad Yaqoob appellant was produced before Ghazi Aman Ullah M.I.C. (P.W.6), who attested three specimen writings of Muhammad Yaqoob appellant of each letter. After completing legal formalities, the Inspector submitted the challan in the Court.
4. Dr. Javed Akhtar S.M.O. BVH Hospital, Bahawalpur (P.W.5) conducted post-mortem examination on the dead body of Umair Akbar aged about six years on 9-8-1992 at 9-00 a.m. He noticed nine incised wounds on different parts of his body. He deposed that time between injuries and death was within one hour and between death and post-mortem was between 12 to 24 hours. The doctor opined that all the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature.
5. The appellants when examined under section 342, Cr.P.C. Denied the prosecution allegations in toto and professed innocence. Muhammad Yaqoob appellant stated that he had been implicated being the neighbour of Imran Shamas and also on account of the fact that he was the apprentice at the shop of the complainant. Imran Shamas explained the case against him in the following words:--- "Mst. Rozina was betrothed to my maternal uncle Ajmal and that betrothal was broken and on account of this enmity the complainant has falsely roped me in this case. Rozina is relative of the complainant as well as Jamshed P.W."
' The appellants declined to make statements under section 340(2), Cr.P.C. And produced no evidence in defence.
6. Placing reliance upon the prosecution evidence, the learned trial Judge convicted the appellants and awarded them the sentences, as indicated above.
7. The learned defence counsel vehemently contended that convictions of the appellants hinge upon the circumstantial evidence, as none of the witnesses has furnished the ocular account of the occurrence and the circumstantial evidence by itself is not sufficient to prove the case against the appellants beyond reasonable doubt; that Jamshed Hafeez P.W.10, who had deposed about the fact that both the appellants were last seen with the deceased by him, besides being the relative of the complainant, has direct enmity with Imran Shamas appellant, due to the breakage of betrothal of Mst. Rozina, a relative of the complainant with his maternal uncle Ajmal. The learned defence counsel further urged that even if the whole prosecution evidence is accepted on its face value, still no case is made out against Imran Shamas, as neither he caused any injury to the deceased, nor he wrote any letter to the complainant demanding the ransom amount, hence, the case against him is one of dubious character and his conviction has resulted into miscarriage of justice. In the end, he submitted that due to extreme youth of Muhammad Yaqoob appellant, the sentence of death imposed upon him needs consideration.
8. The learned counsel for the State has supported the impugned judgment.
9. It is true, that there is no direct evidence of murder against the appellants, yet the circumstantial evidence adduced by the prosecution, if believed, is of such a character that conviction of the appellants can be maintained.
' First of all, I would, discuss the evidence of last seen of the deceased alive with the appellants, furnished by Jamshed Hafeez P.W.10. This witness, no doubt, has some relation with the complainant, due to matrimonial tie, yet he has no direct enmity against the appellants. The learned trial Judge rightly observed that this witness has no ostensible reason to falsely implicate Imran Shamas, a minor nephew of Ajmal, in a case which entails capital sentence only for an insignificant incident, as nothing has been brought on the record to show what was the reason due to which the marriage between Mst. Rozina and Ajmal could not be solemnized. This witness has in a confidence inspiring and straightforward manner, furnished the eye-account of the version, how immediately before the murder he saw both the appellants with the deceased in the Vegetable Market of Bahawalpur, when he was driving a wagon. He was subjected to lengthy cross- examination, but nothing useful could be extracted from him by the defence. In addition to this evidence, we have on record, the extra-judicial confessions of the appellants made before Taj Muhammad (P.W.11), a respectable citizen and Ex-Mayor of Bahawalpur, who deposed that both the appellants confessed their guilt before him separately. The confessional statements of the appellants are being further corroborated by the recovery of Chhuri as well as the recovery of dead body at the instance of Muhammad Yaqoob appellant.
10. We have given our anxious consideration to this aspect of the matter, whether sentence of death imposed upon Muhammad Yaqoob appellant needs consideration. We find that he committed diabolic murder of five years innocent boy, Umair Mbar, without any rhyme and reason and he deserves no leniency, and the learned trial Judge rightly awarded death sentence to him, which is the normal penalty under the law.
11. The upshot of the above discussion is that this appeal which is devoid of any force, is dismissed.