' FALAK SHER, J.--- Learned Additional Sessions Judge, Lahore having tried Abid Ali (30), Tariq (29), Hamid (30) alongwith the latter's wife Mst. Salma Bibi recording her acquittal convicted and sentenced the appellants under section 302/34, P.P.C. To death with a fine of Rs,10,000 in default to serve two years' R.I. 'each, in the event of realisation entire fine to be paid as compensation to legal heirs of Malik Munir deceased (25) vide the impugned judgment, dated 21-7-1990 and has referred Murder Reference No,42 of 1991 for confirmation of the awarded death sentences while the appellants impugning legality of their convictions and sentences have preferred Criminal Appeal No,463 of 1990, emanating out of the following facts.
2. Muhammad Rafiq P.W.3, a labourer of Chhanga Manga Forest on 14-7-1988 around 5-15 p.m.
Apprehending Tariq, Hamid alongwith the acquitted co-accused on the spot within the vicinity of Forest Rest House, Chhanga Manga parting on their custody unto Barkhurdar, S.I. P.W.15, S.H.O.
Police Station Chhanga Manga, got his statement Exh.P.D, recorded with the latter on the basis whereof formal F.I.R. Exh.P.D./1 was registered by Khushi Muhammad, Head Constable P.W.9 at the police station at 5-55 p.m. The same day.
3. To the effect that having furnished the day's job around 5 p.m. On way to Chhanga Manga Town approaching the Rest House witnessed a red colour Suzuki Pick-up parked by the roadside wherefrom a female carrying an infant conjunctively with three male emerged (whose particulars subsequently revealed to be that of the appellants and the acquitted accomplice, residents of Chowk Baba Azam, Ichhra, Lahore) and abandoning a tin box behind a cluster of trees and ridge of the watercourse on western side of the road regaining their seats in the Suzuki Pick-up were about to roll off towards Chhanga Manga at which juncture Muhammad Sadiq P.W.5 and Ijaz Ahmad (given up P.W.) local inhabitants also showed up from the rest House. Viewing it with suspicion they were stopped and enquired about the contents of the abandoned box. Overcoming initial hesitance responding to the complainant's instance that they will not be let off unless they sought for information is divulged, the appellants, with spiriting away of Abid Ali, individually revealed that the box contained dead body of Malik Munir deceased, an employee of the Lahore Cantt.'s Petrol Pump having been strangulated to death after robbing off the petrol pumps' cash during the preceding night administering intoxication and out of scare lest he disseminate the venture upon regaining the conscious his body was being eventually abandoned in the jungle, keys whereto Abid Ali had taken along.
4. The deceased's abduction was reported by Muhammad Latif P.W.6 Manager of the Auto Service Station, Aziz Bhatti Road to Munawar Khan, A.S.I. Police Station North Cantt., Lahore vide Exh.P.E. The same day at 6-15 p.m. Qua which formal FIR. Exh.P.E./1 was registered at the police station having found him missing from the duty in the morning alongwith last nights' sale proceeds Rs,13,582.96 as well as Yamaha motor-cycle registration mark 9581/LHS, on whom as per petrol pump attendants Shafiqur Rehman P.W.10 and Muhammad Ilyas (given up), Abid Ali appellant a shopkeeper of the nearby C.S.D. Canteen had culled around 10 p.m. Spending couple of hours with him with Tariq appellant strolling around who despite the tracing out efforts were found missing from their places of abode.
5. Barkhurdar, S.I. P.W.15 arresting Tariq and Hamid appellants alongwith the acquitted co-accused recovering dead body of the deceased from the box prepared inquest report P.O., injury statement Exh.P.R., secured into possession box P.1, Suzuki van P.2 bearing registration mark 8201/LHC alongwith its registration book, Tariq appellant's driving licence and I.D. Card vide memo. Exh.P.G.
Attested by Muhammad Sadiq P.W.5, Ijaz Ahmad (given up) in addition to Investigating Officer, despatched the dead body to the mortuary for post-mortem examination under Manzur Ahmad, F.C. P.W.8's escort who later on tendered the deceased's last-worn clothes Shalwar P.13, shirt P.14 taken into possession vide memo. Exh.P.M. And on 20-7-1988 apprised the North Cantt. Police Station for the investigation.
6. Dr. Arif Rashid Malik P.W.1 on 15-7-1988 at 3-30 p.m. Conducted autopsy on the deacesed's body brought by Manzur Ahmad, F.C. P.W.B. Identified by his brother Nazir Ahmad P.W.7 and vide post- mortem report Exh.P.A. Observing the following:-- "Ligature mark present. It is depressed on the thyroid cartilage and encircled the neck almost horizontally and completely. There is entravasation of blood in the subcutaneous tissues under the ligature as well as in the adjacent muscles of neck. Hyoid bone is intact.
' Larynx is congested and contains blood. Carotid arteries ruptured. Oesophagus is congested and contains blood. Brain, pleurae, larynx, liver, spleen, kidney and lungs congested, neck vessel ruptured, stomach empty, other organs healthy."
' Deferring the cause of death pending receipt of the Chemical Examiner's report opined it to have occasioned due to asphyxia by strangulation, time lapse between injury and death immediate, post-mortem, whereof was conducted within 36 to 48 hours.
7. Muhammad Akhtar, S.I. P.W.12 of Police Station North Cantt. On 14-7-1988 arrested Abid Ali appellant on 27-8-1988, got prepared site plan Exh.P.C. From Inam Ali Shah, Draftsman P.W.2 on 31- 7-1988, on the same day the acquitted co-accused led to the recovery of Pillow P.4, Patka P.3, deceased's pair of Chappal P.6/1-2, cot P.5 from their house situated near Chowk Baba Azam, Ichhra, Lahore vide memo. Exh.P.H. Witnessed by Muhammad Latif P.W.6, Rehmat Ali (given tip) in addition to the Investigating Officer; Rs,5,000 at the instance of Hamid appellant of various denominations from the same precincts P.7/1-109 vide memo. Exh.P.l., and the like amount P.8/1-113 at the instance of Tariq appellant vide memo. Exh.P.J.; on 1-8-1988 at the pointation of Abid, All appellant recovered motor-cycle P.9 bearing registration mark 9581/LHS vide memo. Exh.P.K.; Rs,3,582.96 P.10/1-179, safe keys P.11 alongwith a bunch of 3 keys of the tin box P.12/1-3 vide memo.
Exh.P.L. Attested by the same witnesses.
8. Muhammad Rafiq complainant P.W.3 reiterating the prosecution story explained that the appellants alongwith the acquitted co-accused were standing by the pick-up 10 paces away from the box with Tariq at the steering of the Pick-up, who disclosed their particulars to the police, saw abandoning of the box in the bushes from distance of 6/7 Karams, no alarm was raised upon escaping of Abid appellant from the spot controverting the suggested abandoning of the box containing dead body by some unknown persons.
9. Muhammad Sadiq P.W.5 corroborating the complainant on all material particulars responding to query stated to have seen the appellants from the Rest House, distanced by 3 furlongs from the parking place of the Suzuki, wherefrom place of the abandoned box was not visible.
10. Muhammad Latif P.W.6 in addition to reporting of the incident deposed to the recoveries.
11. Shafiqur Rehman P.W.1.0 an attendant of the Auto Service Station testifying to the last seen evidence stated that Abid, Hamid and Tariq appellants called on the deceased around 10 p.m. Abid despatched Hamid to bring milk which he fetched from Rahat Bakery meanwhile Tariq went away, the same was consumed by the deceased, Ilyas (given up P.W.) and Abid in addition to him, Hamid and Tariq were strolling near Rahat Bakery, Abid took the deceased to the Fortress Stadium who returned after a while munching Betel leaves whereafter the deceased experienced dizzyness to whom Abid administered massage upon closing down of the petrol pump he went asleep in the open while the deceased, Abid and Ilyas slept in the office who in the morning were found missing alongwith the deceased's motor-cycle.
12. Azam Khan P.W.11 appellants immediate neighbour putting up in the same building deposed to the arrival alongwith the deceased in a wagon at their lodging at 2-00 a.m. Heard shrieks emitting therefrom and treating it to be a tape-recorder's plying went asleep and waking up at 5-30 a.m.
Saw them departing from the venue with a box in the van.
' In cross-examination affirmed to have not informed the police despite reading in the newspaper discovery of a dead body from Chhanga Manga, who instead called on him.
13. Chemical Examiner's negative report qua detection of poison in the stomach, large and small intestine, spleen, liver and kidney pieces Exh.P.T. Positive report as to pillows stained with blood Exh.P.U. And that of the Serologist Exh.P.V. Were tendered in evidence by Deputy District Attorney.
Rest of the evidence was of formal nature.
14. The appellants as well as the acquitted co-accused pleaded false involvement due to misunderstanding both in their statements under section 342 as well as 340(2), Cr.P.C.
Additionally Tariq appellant putting in written statement D.E., averred to have been stopped by a woman accompanied by a child and a male en route to Chunian near the place of occurrence asking for a lift. Meantime, certain persons crowing around apprehended them alongwith him pulling him out of the wagon for the suspected abandonment of the box. Pleading lack of nexus with the co-accused.
15. Canvassing the appellant's acquittal learned counsel contended it to be a case of no evidence.
16. Having gone through the entire evidence we are not persuaded with the contention urged because appellants red-handed arrest with the deceased's dead body, save for Abid Ali, shifted the onus unto them to explain its possession which remained undischarged, and read in conjunction with the last seen evidence furnished by Shafiur Rehman P.W.10, Azam P.W.11 having no motive to falsely implicate the appellants proves the guilt of Tariq and Hamid appellants beyond reasonable doubt even if other pieces of evidence are excluded from consideration.
17. Consequently conviction of Tariq and Hamid appellants is unexceptionable. However, the motive and the attending circumstances under which the deceased has been murdered remains shrouded in mystery, ' therefore, awarding of capital punishment is not warranted. Resultantly partly allowing the appeal maintaining their conviction the awarded death sentence is commuted to imprisonment for life conferring the benefit contemplated by section 382-B, Cr.P.C.
18. Whereas Abid Ali's case is distinguishable for having not been arrested at the spot with the dead body, therefore, giving him the benefit of doubt is acquitted of the charges and if not required in any other case should be released forthwith.
19. The appeal is accordingly disposed of in the above terms.
20. The sentence of death is not confirmed.