TASSADIQ HUSSAIN JILLANI, J.---By this judgment we intend to Reference No.26 of 1992/BWP and Criminal Appeal No.82 of 1992/BWP.
2. Through the abovementioned criminal appeal the appellants Muhammad Mohsin and Muhammad Ismail have challenged the judgment dated 6-10-1992 passed by a learned Additional Sessions Judge-1, Bahawalnagar whereby he convicted Muhammad Mohsin appellant under section 302, P.P.C. For the murder of Muzaffar Hussain (aged 6 years) and sentenced him to death.
He was also convicted under section 201, P.P.C. And sentenced to seven years' R.I. And a tine of Rs.20,000 in default of which he was to undergo further R.I. For one year. Muhammad Ismail appellant was convicted under section 201, P.P.C. And sentenced to seven years' R.I. And a fine of Rs.20,000 in default whereof to undergo R.I. For one year.
3. The prosecution story as narrated in the FIR. Lodged by Liaqat A.I complainant (P.W.2) is that on 15-9-1991 at about 3-00 p.m. His son Muzaffar Hussain deceased went out of home to play and did not return till evening. They attempted search but all in vain. After a few days appellants Muhammad Ismail and Muhammad Mohsin suddenly left the Chak and went to Karachi.
Muhammad Ismail appellant, however, came back after a fortnight whereas Muhammad Mohsin appellant did not return. This raised a suspicion in his mind that either Muhammad Mohsin appellant had killed his son (Muzaffar Hussain) or had abducted him. On 29-12-1991, the complainant, accompanied by Abdul Sattar (P.W.8) went to Karachi. They met Muhammad Mohsin appellant who, in his presence and in front of Abdul Sattar P.W. And Haji Rehmat A.I P.W. (given up) confessed that on 15-9-1991 Muzaffar Hussain deceased had come to his house and he was teasing his pigeons which promoted him to give a fist blow at his neck whereupon Muzaffar Hussain fell down and died at the spot. He further disclosed that he and his father Muhammad Ismail appellant jointly dug out a ditch in their courtyard and concealed the dead body there.
Thereafter, they constructed chicken shed on the aforementioned ditch.
4. The F.I.R. Exh.PE was recorded by Muhammad Zaman Inspector/S.H.O. (P.W.9) at the police station. The complainant who had brought Mohsin appellant from Karachi produced him before the police at the time of recording the F.I.R. On the same day dead body of Muzaffar Hussain deceased was recovered from the house of Muhammad Ismail appellant at the pointation of Muhammad Mohsin appellant vide memo. Exh.PB which was attested by Muhammad Rafiq (P.W.1) and Altaf Hussain (P.W.3). The ditch where the dead body was concealed was pointed out by Muhammad Ismail appellant and the same was evidenced through memo. Exh.PA which was attested by Mushtaq Ahmad (not produced) and Muhammad Rafiq (P.W.1). On the same day, the last worn clothes of Muzaffar Hussain deceased were taken into possession vide memo. Exh.PD which was attested by Muhammad Shafiq Constable (P.W.6) and Zaman (P.W.9).
5. During the trial, the prosecution examined ten witnesses including the doctor and the Investigating Officer and thereafter the prosecution evidence was closed.
6. The appellants, when examined under section 342, Cr.P.C. Denied the prosecution case and attributed false implication to "party faction" in the village.
7. The prosecution has produced the following set of evidence:---
(i) The evidence of extra-judicial.
(ii) The Medical evidence; and
(iii) The evidence of recoveries.
8. The evidence of extra-judicial-confession has been furnished by Liaqat A.I complainant (P.W.7), Abdul Sattar (P.W.8) and Muhammad Mansha (P.W.2).
9. In his statement before the learned trial Court, Liaqat A.I (P.W.7) -stated that after 20 days of the disappearance of his son, the appellants left the village and went to Karachi. After 15 days Muhammad Ismail appellant came back but Mohsin appellant did not return. This raised a suspicion and, therefore they went to Karachi and made a search of Mohsin appellant. On 1-1-1992, they met Mohsin appellant who initially did not divulge anything but after sometime he confessed that on 15-9-1991 at about 2-00 p.m. Muzaffar Hussain deceased came to his house and was teasing his pigeons whereupon he gave him a fist blow at his neck in consequence of which he died. He further stated that when his father Muhammad Ismail appellant came to know about it and advised him to conceal the dead body of the deceased whereupon both of them wrapped the dead body in a polythene bag and buried it in the courtyard of their house and raised a chicken shed over that place.
10. The witness further stated that they asked him to lead to the dead body of the deceased whereupon Mohsin appellant accompanied them to Chishtian and on 2-2-1992 at 19-00 a.m. They produced him at the police station.
11. Abdul Sattar (P.W.8) corroborated the statement of Liaqat A.I complainant (P.W.7).
12. The statement of Muhammad Manshah (P.W.2) is with regard to the confession made by Muhammad Ismail appellant. The-witness stated that on 2-1-1992 at 4-00 p.m. Muhammad Ismail appellant came to him and in the presence of Ghulam Mustafa (not produced) he confessed that his son Muhammad Mohsin appellant had murdered Muzaffar Hussain and he and his son (Mohsin appellant) had buried the dead body of Muzaffar Hussain deceased in their house. He requested the witness to get pardon from the complainant.
13. The medical evidence in this case was furnished by Dr. Muhammad Afzal Saqib, Medical Officer THQ Hospital, Chishtian. He conducted the post--mortem examination of Muzaffar Hussain deceased on 2-1-199,2. On the cause of death, he opined:--- "On external and internal examination of the body no soft tissue injury could have been detected at that stage. The process of second (sic) vertabra was fractured which was dangerous and grievous in nature. Cause of death was cardio respiratory failure due to cervicle injury which was sufficient in ordinary course of nature to cause death. Injury was ante-mortem in nature."
14. The most important piece of evidence in the prosecution case is the recovery of dead body from the house of Muhammad Isma il appellant at pointation of Muhammad Mohsin appellant on 2-1-1992. This was witnessed by Altaf Hussain (P.W.3) and Muhammad Rafiq (P.W.1) and the same was taken into possession vide memo. Exh.PB., which is duly attested by the aforementioned witnesses. The ditch where the dead body was buried was pointed out by Muhammad Ismail appellant and the factum of pointation is evidenced through memo. Exh.PA which was attested by Mushtaq Ahmad (not produced) and Muhammad Rafiq (P.W.1).
15. The learned counsel for the appellants, Mr. Muhammad Afzal Wattoo, Advocate, in support of his appeal has urged the following pleas:---
(i) That the prosecution case against Muhammad Ismail appellant is based on no evidence. It does not appeal to common sense that Muhammad Ismail appellant would go to the real uncle of Muzaffar Hussain deceased on 2-1-1992 to make a confession that his son (Muhammad Mohsin appellant) had killed Muzaffar Hussain and that they had buried the dead body in their house.
(ii) The so-called pointation of Ismail appellant of the ditch where the dead body of Muzaffar Hussain deceased was buried is not free from doubt as, according to the prosecution case itself, the dead body had already been recovered the same day on the pointation of Muhammad Mohsin appellant.
(iii) That the extra-judicial confession made by Muhammad Mohsin appellant does not inspire confidence as:---
(a) There is nothing on record to show as to how the complainant Liaqat A.I and Abdul Sattar (P.W.8) located the place where the appellant Muhammad Mohsin was living in Karachi.
(b) There was no occasion for the appellant (Mohsin) to have made a confession in front of those who could have led to his arrest.
(iv) That the prosecution is inconsistent on material particulars and is not credible enough to sustain the charge of capital punishment.
16. The learned counsel for the complainant as also the State have supported the impugned judgment and submitted that the evidence of extra---judicial-confession is not tainted with doubt as the same has been furnished by the witnesses who had no motive to falsely implicate the appellants. The said evidence is corroborated by the evidence of the recovery of the dead body and the medical evidence.
17. We have heard the learned counsel for the parties and have also gone through the evidence on record.
18. The evidence of extra-judicial confession incriminating Muhammad Mohsin appellant has been furnished by Liaqat A.I complainant (P.W.7) and Abdul Sattar (P.W.8). No enmity or partisan interest has been attributed to either of them for false implication of their co-villager Muhammad Mohsin appellant. Their testimony inspires confidence as it is consistent on all the material points of the prosecution story. Despite a lengthy cross-examination to which both of them were subjected, their statements corroborated each other on the following material particulars:---
(i) They are consistent about the manner; (sic) contents of the extra-- judicial-confession made by Mohsin appellant.
(ii) Both stated in cross-examination that Mohsin appellant was apprehended at Sohrab Ghoth in Karachi.
(iii) Both stated that the said appellant (Muhammad Mohsin) was vending in Karachi.
19. The recovery of dead body of Muzaffar Hussain deceased at the pointation of Muhammad Mohsin appellant is yet another circumstantial piece of evidence which has corroborated the evidence of extra-judicial confession. It is in evidence that Mohsin appellant was produced before Muhammad Zaman Inspector/S.H.O. (P.W.9) on 2-1-1992 and he, during the investigation, led to the recovery of the dead body which was taken into possession vide recovery memo. Exh. PB which was attested by Muhammad Rafiq and Altaf Hussain P.Ws. Altaf Hussain P.W. Is a distant relation of P.W.7. Admittedly he had no malevolence towards the accused party to falsely implicate them.
Muhammad Rafiq (P.W.1) is an independent witness and even the testimony of Zaman I/S.H.O.
(P.W.9) has to be given weight as there is no reason as to why he should not be believed. The statement of a police officer qua the recovery of an incriminating (sic) evidence is worthy of credit unless it is (sic) said police officer is motivated by malice or the facts and circumstances brought on record otherwise suggest that he conducted the investigation dishonestly. In this connection reliance is placed on PLD 1987 SC 467 and 1974 PCr.LJ 6. Nothing has been brought on record to suggest that the Investigating Officer dishonestly investigated the case or had a malice towards the appellants. An abortive attempt was made by the defence to demolish the evidence on record by suggesting to P.W.9 in cross-examination that the dead body of Muzaffar Hussain deceased was discovered when the dogs of the village took out the same from the outside of the Khata of Muhammad Ismail appellant. By making this suggestion, the defence has in fact admitted the recovery of the dead body but their case is that it was not from the courtyard of Ismail appellant but outside of their courtyard. The site plan (Exh.PG) clearly indicates that the place of recovery is inside the courtyard of the appellants' house and there is a chicken shed over it. Hence the place of recovery was in their exclusive possession and the prosecution case stands fully established qua Muhammad Mohsin appellant.
20. So far as the case of Muhammad Ismail appellant is concerned, the prosecution has attempted to build a case against him under section 201, P.P.C. On the basis of the extra-judicial confession made by him before P.W.2 and the discovery of the ditch from where the dead body of Muzaffar Hussain deceased was recovered on his pointation.
21. It is repellent to common sense that Ismail appellant would go to Muhammad Manshah (P.W.2), a real brother of the complainant, and make a confession of the kind which has been alleged. P.W.2 (Muhammad Manshah) admits in his cross-examination that he was sitting in the house of one Bashir Ahmed when Muhammad Ismail appellant approached him. He made a confession and remained with them for half an hour. He further admits that they did not try to apprehend him (Muhammad Ismail appellant) nor they reported the matter to police or to the complainant. He stated that on the following day, he went to police station at 10-00 a.m. And found Liaqat A.I complainant (P.W.7), Abdul Sattar (P.W.8), Rehmat A.I (given up) and Muhammad Rafiq (P.W.1) there but even then he did not apprise the aforementioned persons about the extra-judicial- confession of Muhammad Ismail appellant. This unnatural conduct of P.W.2 (Muhammad Manshah) of withholding such an important information qua the murder and the dead body of his real nephew (Muzaffar Hussain deceased suggests that the witness is lying and is not worthy of credit.
22. The pointation of the ditch by Ismail appellant from where the dead body of Muzaffar Hussain deceased was recovered is not free from doubt firstly because according to P.W.9 (Muhammad Zaman Inspector/S.H.O.) he having recorded F.I.R. (Exh.PE.) went to the place of recovery in the company of Liaqat A.I complainant, Abdul Sattar P.W., Haji Rehmat A.I (given up), Muhammad Rafiq P.W., Altaf Hussain P.W. And Muhammad Mohsin appellant. He admits in cross-examination that he reached the place of recovery at 1-00/1-15 p.m. It is only after the recovery of the dead body that he went to arrest Muhammad Ismail appellant in the company of Mushtaq (not produced) Rafiq (P.W.1) and Muhammad Mohsin appellant. He further admits that by that time the sun had set in and Ismail appellant was arrested from the Adda of Chak No.50/Fateh.
23. The afore going sequence of events leading to the recovery of the dead body at the pointation of Mohsin appellant; to the subsequent arrest of Ismail appellant and his alleged pointation of the ditch from where the dead body recovered would show that the dead body had already been recovered much earlier than the arrest of Muhammad Ismail appellant. Thus, the so-called pointation of the ditch which was already known to the Investigating Officer and from where the dead body had already been recovered is of no help to the prosecution case in so far as Muhammad Ismail appellant is concerned. The prosecution has failed to prove the case against Muhammad Ismail appellant. He is acquitted of the charge under section 201, P.P.C. He is already on bail and shall be discharged of his bail/surety bonds.
24. In the light of the evidence on record we are of the considered view that the prosecution has successfully brought home the guilt against appellant Muhammad Mohsin and the case stands proved against him beyond a shadow of doubt. Coming to the quantum of sentence we are off the view that Muhammad Mohsin appellant was aged 14/15 years at tile time of the occurrence; that he gave a single blow; that there was no background of previous enmity and that he had no intention to kill the deceased and that the sentence of death would be rather harsh. To meet the ends of justice the sentence of death awarded to Muhammad Mohsin appellant is altered to imprisonment for life. He shall also be allowed benefit under section 382-B, Cr.P.C.
25. The conviction of Mohsin appellant under section 201, P.P.C. Has also engaged our attention.
There is case-law to the effect that when murderer himself tries to screen the offence and removes the evidence of guilt, he cannot be convicted under section 201, P.P.C. In his regard reliance is placed on PLD 1963 Pesh. 189 (Farid Muhammad v. The State). The conviction of Muhammad Mohsin appellant under section 201, P.P.C. Is, therefore, not tenable in law. He is acquitted of the charge under section 201, P.P.C.
26. Muhammad Mohsin appellant shall also pay a compensation of Rs.20,000 in default whereof he shall undergo R.I. For six months. The compensation, so recovered, shall be paid to he legal heirs of Muzaffar Hussain deceased.
27. Criminal Appeal No.82/92-BWP is disposed of in the above terms and the Murder Reference No.26/92-BWP is answered in the negative.
Death sentence not confirmed.