' SARDAR MUHAMMAD RAZA KHAN, J.---This is an appeal filed by Abdur Rashid son of Gul Muhammad of village Dagra Police Station Shinkiari who in consequence of a trial conducted under section 302/201, P.P.C., with reference to F.I.R. 173, dated 12-7-1992 of Police Station Shinkiari, was convicted under section 302, P.P.C., and sentenced to imprisonment for life by the learned Additional Sessions Judge Mansehra vide judgment, dated 30-7-1995, on charge of murdering his own father Gul Muhammad.
2. The circumstances leading to the murder of Gul Muhammad started taking shape on 9-7-1992 at 'Peshin' time when one Mst. Reshmi wife of Khan Wali and her son Ghulam Nabi residing in Muhallah 'Barsani' of village Dagra were sitting in-front of their separate houses. They heard some noise from the side of Gul Muhammad's house. Turning towards the side of noise, they saw Gul Muhammad being thrown out from his house followed by his son Abdur Rashid (the appellant) picking Gul Muhammad and taking him inside the house and, thereafter, closing the door.
Considering it to be the domestic affair, Mst. Reshmi and Ghulam Nabi did not go to make further inquiry.
3. Soon after this incident and on the days that followed, there was a hot rumour in the village that Gul Muhammad had been killed by his son Abdur Rashid. A ditch freshly dug was seen about 266 paces South East of the house of Gul Muhammad connected with some traces of dragging. Mst.
Fazeelat-un-Nisa, a daughter of the deceased and real sister of the appellant also reached there.
She was informed by Mst. Reshmi and Ghulam Nabi of what had happened a day earlier. She also made inquiries about and around and also observed mysterious traces aforesaid and ultimately on 12-7-1992 at 2030 hours lodged a report at Police Station Shinkiari, after having become certain of the fact that her brother Abdur Rashid had killed her father.
4. The police in the company of a doctor as well as a Magistrate headed towards the spot and on pointation of the ditches aforesaid by the witnesses who appeared at trial, the dead body of Gul Muhammad was unearthed. After exhumation Dr. Muhammad Niaz Medical Officer D.H.Q. Hospital Mansehra conducted autopsy on the dead body and found a big lacerated wound on the top of vertex 4 inches long and bone-deep with fracture of skull. He also found a horizontally placed lacerated wound on the left leg with fracture on left tibia. Obvious being the result of death, the doctor opined accordingly which indicated that Gul Muhammad, an elderly man of 65 years, had met an unfortunate death which was most certainly unnatural.
5. The appellant, who happened to be an "Imam" in a mosque at Sandasar, soon after his arrest made a detailed statement, dated 18-7-1992 before the Investigating Officer, (Exh .P. W.9/1) wherein he referred to multiple reasons that had led to development of strained relations between the father and son and eventually to the murder of the father at the hands of the son. Such statement witnessed by Elahi Bakhsh and Muhammad Yaqoob and proved by Elahi Bakhsh appearing as P.W.9, is relied upon by the prosecution as extra-judicial confession. We wound brush aside the same and would keep it totally out of consideration for being a statement before the police and for being outright inadmissible. Anyhow the accused Abdur Rashid pleaded not guilty to the charge at the commencement of trial.
6. What evidence is produced and what material is relied upon by the prosecution is the statements of Mst. Fazeelat-un-Nisa (P.W.4) Mst. Resham Jan alias Reshmi (P.W.5), Bakht Bedar Khan (P.W.1) one of the marginal witnesses to the recoveries, Dr. Muhammad Niaz (P.W.2) and Muhammad Tehmas 6..W.3) in whose presence the axe Exh.P-18, a rope Exh.P-19, a spade Exh.P-20 and a pick-axe Exh.P-21 were recovered at the pointation of accused vide three different memos.
The pieces of evidence already narrated above, the recovery of dead body from a ditch, the exhumation as such and the postmortem report, alongwith the traces of dragging leading from the house of the deceased up to the ditch, are further relied upon by the prosecution as irrefutable circumstantial evidence going against one and the only person i,e, the appellant.
7. At the conclusion of trial the accused has come up with one clear answer that he had been involved in the murder case by his apparent as well as hidden enemies in the village. The baffling part of his statement was and the same had been the trend of cross-examination, that his father had been killed by demons (gins). We were amazed not because he had taken such a ridiculous plea in his statement under section 342, Cr.P.C., but were surprised to observe that the cross- examination had also followed on similar lines.
8. Let us see as to how far the appellant is connected with the commission of offence, the craft of demons being apart. It may be recalled by a fleeting glance through the F.I.R., as well as the statement of Mst. Fazeelat-un-Nisa, the complainant and no less than the real sister of the appellant, that the relationship between father and son was strained over the landed property.
What can be spelt out is that the father wanted to disinherit the son. This motive is not at all shattered in the cross-examination and hence, we are afforded with one circumstance that points towards the appellant.
9. There is not an iota of suggestion in the cross-examination nor there is any oral or documentary evidence to the effect that the deceased Gul Muhammad had any enmity whatsoever with any of his relatives or co-villagers; meaning thereby, that his having no enmity with anyone else goes to re-enforce the motive attributed to the appellant. This is another circumstance lending corroboration to the motive.
10. The accused had led the police to the spot where he allegedly killed his father. His version that he killed his father at a particular place is again brushed aside as inadmissible. Still, the recoveries of rope, spade and the pick axes cannot be taken out of consideration because they provide another circumstance leading towards the fact that the death of the deceased was not natural and that whosoever had killed him, had disposed of the dead body in order to eliminate the traces of evidence. Obviously, the demons, if at all, have no interest in killing human beings and, if at all killed, they have no interest in disposing of the dead body and removing the traces of evidence.
Having gone through the record of the present case, we are convinced that Gul Muhammad was never done to death by an outsider because had there been some outsider, there was no occasion for him to dispose of or to conceal the dead body. If at all there had been some outsider, he had not been witnessed by anybody and, thus, there was no reason and logic for such a criminal to have had felt the necessity of disposing of the dead body. This can be done only by some one who is either the inmate of the house or the close relative who owns an explanation to the people around as to how Gul Muhammad met an unnatural death inside the house. This is another circumstance which excludes each and every possibility of the involvement of any third person.
11. Mst. Reshmi lives in a house opposite to the house of the deceased. The distance between the two houses of Mst. Reshmi and Ghulam Nabi on the one hand and that of the deceased on the other, is 265 and 325 paces. This is a hilly area where the measurement in paces might be long but the actual aerial and visual distance is always short. The Investigating Officer while preparing site- plan Exh.P.W.8/1 has clearly removed this doubt by giving a lengthy note at the foot of the site-plan that both the places concerned are clearly visible from each other and there is no obstruction in between. Mst. Reshmi and Ghulam Nabi (the latter not produced) have categorically stated that at 'Peshin' time they had seen Gul Muhammad falling outside his house at point # 2 as having thrown out by some one. She has categorically stated that the fall of Gul Muhammad was followed by the coming out of Abdur Rashid accused who lifted his father and took him inside. Here at this stage one must not ignore the most strong circumstantial evidence to the effect that Mst. Reshmi has no enmity whatsoever at all with the accused and is not going to be benefitted from by his conviction.
Naturally what ever she stated before Mst. Fazeelat-un-Nisa, the real sister of the accused, was reproduced before the police in the shape of F.I.R. It was another most important circumstantial aspect, to be kept in view, that had it been untrue, the real sister would never have had dittoed the version and would never have had lodged the F.I.R. Not an iota of evidence is brought on record wherefrom one could infer any enmity between the brother and the sister. After all she is also the daughter of the deceased who could not tolerate the occurrence no matter even if her brother was involved. The brutality of the occurrence and the manner in which the dead body was disposed of, cannot be expected to have been tolerated by a loving daughter.
12. The evidence so collected and produced at the trial leads us to one unescapable conclusion that father and son had quarrelled during which the father was pushed out of the house and re- taken inside by none else but the accused-appellant. If this thing is established undeniably, there must be some explanation as to how the deceased met his death. The occasion constitutes the circumstance of last seen evidence as well. It must also have been explained as to how the dead body of the deceased was recovered from the ditch and how it reached there. In view of the factum of last seen, the one and the only person who stands strongly connected with the events that occurred subsequent to the quarrel was none else but the accused appellant. We believe that the appellant is strongly connected with the commission of offence where the circumstances irrefutable are more stronger than even the ocular testimony which ends up with the quarrel alone.
13. The only discrepancy is about the date which at some places is mentioned to be 19th of July while in some, statements it is said to be the 10th of July. This in our view, is a negligible discrepancy because the circumstances in which the occurrence took place and duration in which the rumours were to be confirmed, it took the complainant about three days to lodge an F.I.R., and, thus, the difference of date in specific could most possibly be mistaken. In view of the other strong attending circumstances we ignore such discrepancy.
14. Consequently, we have no two opinions about the involvement of the appellant in the murder of his father. The learned trial Judge had arrived at the correct conclusion. This Court had issued suo motu notice to the accused for enhancement of sentence but, after having given considered thought, we are of the view that as the case is mostly based on circumstantial evidence, the imposition of the sentence of death would not be in the interest of justice.
Such are reasons on the basis of which, on 11-2-1999 through a short order, we had upheld the impugned conviction and sentence recorded by the learned Additional Sessions Judge Mansehra on 30-7-1995 and had dismissed the appeal by withdrawing the suo moto notice for enhancement of sentence.