' Dr. FIDA MUHAMMAD KHAN, J.---This appeal jointly preferred by Shabbir Hussain son of Muhammad Rafique and Muhammad Ramzan son of Allah Ditta, both residents of Muhallah Muslim Ganj, Farooqabad is directed against the judgment dated 21-5-1996 passed by learned Additional Sessions Judge, Sheikhupura whereby he has convicted both the appellants under section 302, P.P.C. For having committed Qatl-e-Amd of Abdul Razzaq and sentenced them to death as Ta'zir. He has also convicted them under section 377, P.P.C. For having committed carnal intercourse against the order of nature with Abdul Razzaq, deceased, and sentenced them to undergo ten years. R.I. Each and a fine of Rs, 10,000 each or in default of payment of fine further R.I.
One year each. He has further convicted them under section 12 of the Offence, of Zina (Enforcement of Hudood) Ordinance, 1979 for having abducted Abdul Razzaq, deceased, with an intention to commit sodomy with him from his house and sentenced them to death. The other co-accsued namely Muhammad Yahya and Khalil Ahmad have, however, been acquitted by extending benefit of doubt to them.
2. A murder reference has also been sent by the learned trial Court to Federal Shariat Court for confirmation of death . Sentences awarded to the appellants. We are disposing of both by this single judgment.
3. Briefly stated the case of prosecution as narrated by Muhammad Abdullah P.W.1 in his statement Exh.P.A made by him on 21-6-1994 at 6-45 a.m. Before Muhammad Nawaz, A.S.I. P.W.9 at General Bus Stand in Farooqabad, who, after getting it duty thumb-marked by him, sent the same through Muhammad Afzal, Constable P.W.12 Police Station City Farooqabad where formal F.I.R. Exh.P.A/1 was recorded by Muhammad Yaqoob, Muharrir P.W.7 without any omission or addition on the same day i.e, 21-6-1994 at 7-00 a.m. Is that on 20-6-1994 at about 7/8-00 while he alongwith his father Khadifn Hussain, son Abdul Razzaq and other family members of house were present in the house, somebody called them from outside whereupon he alongwith his father went outside and saw Shabbir son of Muhammad Rafique and Muhammad Ramzan son of Allah Ditta. On his inquiry they told them that they wanted to take Abdul Razzaq deceased with them to Mandi Farooqabad in connection with some work. In the meanwhile his son Abdul Razzaq also came out and accordingly accompanied them. He directed him to return soon. After a few minutes his elder son Ashfaq and brother Liaqat arrived in the house who disclosed that his son Abdul Razzaq, deceased Shabbir, Khalil, Yahya sons of Muhammad Rafique and Muhammad Ramzan son of Allah Dita were seen by them going towards the house of Shabbir. When his son did not return to the house for considerable time, he alongwith his brother went out in his search to the houses of Shabbir and Muhammad Ramzan where they came to know that they as well as Khalil and Yahya were not available in the house. During the search while he and his brother were coming back from Mandi Farooqabad to their house they saw that the dead body of his son was lying on the wooden plank in front of shop of Ghulam Qadir which was covered with a Khais. He and his brother started weeping which attracted Qurban Ali and Abid and they also saw the dead body of his son lying over there with a bleeding anus as well as some marks on his throat. He alleged that Shabbir, Khalil.
Yayha and Ramzan who are addict and bear bad character have colluded to murder his son. As mentioned above P.W.9 Muhammad Nawaz, S.I. Recorded his statement and got it in corporated into formal F.I.R. Through Muhammad Afzal, Constable at Police Station, City Farooqabad. Therefore, he went to Muhallah, Muslim Ganj of Farooqabad where the dead body of Abdul Razzaq, deceased was lying on a wooden plank in front of shop of Ghulam Qadir. He inspected the dead body, drafted the injury statement Exh.P.F and in question report Exh.P.E and sent the dead body thereafter for post-mortem examination under the escort of Constables Muhammad Saleem and Muhammad Afzal. On the same day after the post-mortem examination he took into possession last worn clothes of deceased i.e, Khais P.I. Shalwar P.2 Shirt P.3, and Vest P.4, handed over to him by Muhammad Saleem, Constable, vide recovery memo. Exh.P.B which was attested by Liaqat Ali P.W.2 and Ali Ahmad. On 22-6-1994 Muhammad Sharif, S.I. P.W.10 took the investigation from him. On 3-7- 1994 he arrested Khalil and on 11-7-1994 he arrested Shabbir, Yayha and Ramzan, accused in this case. On 20-10-1994 after necessary investigation he submitted challan against the accused to face the trial.
4. At the trial prosecution examined thirteen witnesses in all. P.W.1 is Abdullah. He is father of Abdul Razzaq, deceased. He is the complainant who recorded statement Exh.P.W before P.W.9 Muhammad Nawaz, A.S.I. He reiterated his statement as mentioned hereinabove. P.W.2 is Liaqat Ali.
He is brother of the complainant who on 26-6-1994 at about 7/8 p.m. While he alongwith his nephew Ashfaq was going to the house of complainant from Mandi Farooqabad. Saw Abdul Razzaq, deceased, in the company of Ramzan, Khalil, Shabbir and Yahya, accused at Lahore-- Sargodha Road near Muhallah Muslim Ganj proceeding towards the house of accused Shabbir.
Abdul Razzaq deceased told to him that they were going to Mandi Farooqabad. After reaching the house his brother Abdullah he informed them of the same fact. He also accompanied his brother Abdulllah in search of the deceased and in the early morning found his dead body lying on wooden plank in front of the shop of Ghulam Qadir. He also identified the dead body of Abdul Razzaq, deceased. He also attested the recovery memo. Exh.P.B vide which the last worn clothes of the deceased alongwith one sealed parcel and one sealed packet were taken into possession by P.W.9 Muhammad Nawaz, A.S.I. P.W.3 Muhammad Saleem and P.W.4 Muhammad Afzal, Constables are formal witnesses. P.W.3 also handed over last worn clothes alongwith sealed packet and sealed envelope which were handed over to him by the doctor after post-mortem examination to P.W.9 Muhammad Nawaz, A.S.I. Which were taken into possession by him vide recovery memo.
Exh.P.B which also bears his signature, P.W.5 is Ghulam Farid. He made a deposition in the following words:-- ' "I am a tonga-driver and I ply tonga from village Padianwala. About 1 1/2 year back at about 9/10- 00 p.m., I was asleep in my house. A small boy came to me and asked to go to the Dera of Sardar Wazir and to board some guests from there in order to drop them to a Basti of Farooqabad. I went there with my tonga, Ramzan and Shabbir accused present in the Court boarded an unconscious boy. I drove the tonga alongwith them. In our way Yahya and Khalil accused present in Court met us on a motor-cycle. The boy was Abdul Razzaq. When we reached Basti Ganj Bakhsh, Farooqabad they alighted alongwith the said unconscious boy Abdul Razzaq and paid me the fare. I left them there. On the following day I came to know that the said boy had died."
' P.W.6 is Muhammad Ramzan. He made the following statement on oath:-- ' "About 1-1/2 year back at about 8/9-00 p.m. I was present at Dera Wazir Ali. Allah Ditta and Maqbool Ahmad were with me. Shabbir, Ramzan, Khalil and Yahya accused and Abdul Razzaq deceased came there on two motor-cycles. The said accused are present in the Court. They were in a room of the Dera and bolted the same from inside. After sometime we were attracted to hue and cry coming out of the said room. We went toward that room. After a short while the door was opened. There we found that Abdul Razzaq was weeping and he was besmeared with blood near his buttock. We asked him as to what happened with him and he told us that he was subjected to sodomy by the accused present in the Court namely Shabbir, Khalil Ramzan and Yahya. Abdur Razzaq then lost his senses. The accused ashed as to make some arrangement to carry him.
Ghulam Farid tonga driver alongwith his tonga was brought and the accsued aforesaid took Abdul Razzaq on the said tonga to city Farooqabad. On the following day, we came.To know that Abdul Razzaq had died."
' P.W.7 is Muhammad Yaqoob, H.C. Who recorded formal F.I.R. Exh.P.A/1 on the basis of statement Exh.P.A made by P.W.1 Abdullah before Muhammad Nawaz, A.S.I. P.W.9 on 21-6-1994, P.W.8 is Dr. Farooq Ahmad Kisana, Medical Officer, D.H.Q. Hospital, Shiekhupura. On 21-6-1994 he conducted the post-mortem examination of Abdur Razzaq, deceased aged 17/18 years. He made the following observations:-- ' "It was a dead body of young man of average built, wearing shalwar Kamiz Biscuit colour. Vest white colour. All were stained with blood, sticky and faicial matter. A piece taken from the above stained part to sent to the office of Chemical Examiner, Lahore. Eyes and mouth were closed. Rigour mortis and post-mortem staining were present."
' INJURIES:
1. Contusion 3 c.m. x 3 c.m. On back of right elbow.
2. Abrasion 0.5 c.m. x 0.5 c.m. On back of left elbow.
3. Contusion 5 c.m. x 3 c.m. On inner back of left elbow.
4. Laceration (skin deep) all around the outer and inner part of anus. Anus was dilated 3.1 c.m. x 3.1 c.m. Blood. Sticky and fakal matter was present outer to the anus,
5. A testicals were contused all around.
6. Abrasion 1 c.m. x 3 c.m. Was present on lower frontal part of left leg.
7. Abrasion 3 c.m. x 1 c.m. On the lower frontal part of left knee.
8. Abrasion 1 c.m. x 1 c.m. On the inner frontal right leg mid part. ON DISSECTION: ' It was found that the trachea was congested. Heart was congested. The lungs were congested.
Liver, spleen and kidneys were congested. 3 c.m. Was given on each testical and were found congested. Stomach contained food material and was congested. Semi digested food was present in the small intestines. Large intestine contained facial matter. The uninary bladder was full to its half.
' The contents of the stomach, small intestine, large intestine, spleen, liver and kidney were taken and despatched to the chemical examiner, Lahore. Two annal swabs and sample of blood and urine were also sent to the office of Chemical Examiner, Lahore. Rest all the visceras were healthy."
' Since it was found that the report of post-mortem examination did not bear the cause of death, the said Medical Officer stated that after the receipt of Report of Chemical Examiner, Lahore he had declared the result while making an endorsement on the copy of post-mortem examination.
Report was available in the post-mortem register. The said original register was subsequently produced on 24-1-1996 and the said P.W.8 made the following deposition and completed his statement:-- ' "I have brought the register of post-mortem examination report. On receipt of the Report of Chemical Examiner No, 1966, 'dated 17-7-1996, I declared that the poison was not detected in the viscras. Swabs were stained with semon. Death in my opinion had occurred due to shock, haemorrhage and cardio respiratory failure. Injuries Nos.4 and 5 were sufficient to cause death of a person in an ordinary course of nature collectively and injury No,5 individually. Post-mortem examination report and that of the Chemical Examiner showed that act of sodomy was done. The probable time that lapsed between the injuries and death was immediate and that lapsed between death and postmortem examination was 13-14 hours. After the post-mortem examination the dead body, post-mortem report, the worn clothes of the deceased and sealed packet of the sample aforesaid were handed over to Muhammad Saleem 334-C. Exh.P.C. Is the copy of the post- mortem examination report including my endorsement as to the cause of death etc., whereas Exh.P.C./1 the diafram showing the seat of the injuries are in my hand and bear my signature. I have also attested both after a comparison with the original register (the original registered seen and returned.) The application for the post-mortem examination also bears my signature which is Exh.P.D. The inquest report Exh.PE also bears my signature."
' P.W.9 is Muhammad Nawaz A.S.I. Who recorded the statement of complainant Exh.P.A while he was present at General Bus Stand of Farooqabad. He partly investigated the case as mentioned hereinabove. P.W.10 is Muhammad Sharif, S.1. He took over the investigation of this case from P.W.9.
He arrested the accused as mentioned hereinabove. The investigation was transferred to D.S.P.
Sangla Hill but it was again received back on 20-10-1994 and P.W.10 submitted incomplete challan against the accused. P.W.11 is Dr. Syed Muhammad Zahid. On 12-7-1994 he medically examined Muhammad Rainzan, Muhammad Yahya and Shabbir and found them fit to perform sexual act.
P.W.12 is Muhammad Afzal, Constable. On 26-6-1994 he transmitted a parcel sealed by the doctor and a packet of anal swa bs to the office of Chemical Examiner intact, P.W.13 is Muhammad Sharif, S.I. On 30-4-1995 under the direction of D.S.P. Sangla Hill he recorded the statements of P.Ws.
Ghulam Farid, Allah Ditta, Maqbool and Ramzan under section 161, Cr.P.C. In this case..In cross- examination after seeing the statement of Ghulam Farid Exh.D.B and that of Muhammad Ramzan Exh.DC he confirmed that both were in his hand and that he had recorded both the statements without any omission. He rejected the suggestion that the said statements were recorded to strengthen the prosecution case. Exh.P.M is report of Chemical Examiner and tendered in evidence.
5. The appellants/accused made statements under section 342, Cr.P.C. Wherein they denied the allegation and pleaded innocent. Responding to question No,9 "why this case against you and why the P.Ws. Deposed against you" Muhammad Ramzan appellant/accused made a statement in the following words:--- ' "I have been falsely implicated in this case due to suspicion and party faction."
' He declined to make a statement under the provision of section 340(2), Cr.P.C. In disproof of allegation made against him and closed his defence. The appellant/accused Shabbir Hussain also made similar statement and declined to appear as a witness in his defence. However, he tendered in his defence an attested copy of Nikahnama, dated 6-11-1993 Exh.DD and closed his defence.
6. We have heard the learned counsel for the parties and have perused the record with their assistance. Learned counsel for the appellants submitted that the prosecution case hinges upon the circumstantial evidence which is not believable. He submitted that there is considerable delay in lodging of the F.I.R. Which has not been plausibly explained and, therefore, deliberation and false implication of the appellant cannot be ruled out. The learned counsel further assailed the testimonies of P.W.5 and P.W.6 and submitted that their statements under section 161, Cr.P.C. Have been recorded after about ten months of the occurrence and as such they cannot be considered reliable. He further submitted that their statements, besides having contradictions and improvements, clearly appear to hav been promoted by external consideration. The learned counsel also made submissions in respect of the "incomplete dying declaration" of Abdul Razzaq, deceased and placed reliance on 1971 PCr.LJ 498 and 1973 SCM R,
36. The learned counsel finally prayed for lenient view as the appellants are young and it is not known precisely who inflicted the injury that resulted in murder of the deceased The learned counsel for the complainant submitted that the delay in lodging the F.I.R. Has been plausibly explained. He submitted that the evidence of P.W.1 and P.W.2 as well as P.W.5 and P.W.6 inspire confidence and there is no reason to disbelieve their versions. The learned counsel further submitted that there was no occassion for the complainant to substitute the real culprits/accused with the appellants/accused as there was no enmity between the parties prior to the occurrence. The learned counsel for the state also supported the impugned judgment.
7. We have thoroughly analysed the entire record in the high of submissions made by the learned counsel for the parties. It transpires from the record that the case of prosecution mainly rests on the statements of P.W.1 Muhammad Abdullah, P.W.2 Liaqat Ali, P.W..5 Ghulam Farid, P.W.6 Muhammad Ramzan and P.W.8 Dr. Farooq P.W.1 is the complainant who on 20-6-1994 at about 7/8.00 p.m. Came out of the house when he heard somebody calling his son Abdul Razzaq and saw the appellants/accused Shabbir and Ramzan in front of his main gate who told him that they wanted to go to Mandi Farooqabad alongwith Abdul Razzaq. In the meanwhile Abdul Razzaq, deceased also came out and they took him with them. After sometime his brother Liaqat and his other son Ashfaq arrived there who informed him that they had seen Abdul Razzaq, deceased in the company of Shabbir, Ramzan, Khalil and Yahya going towards the house of Shabbir accused and also told him that they had stated to them that they were going towards Mandi Farooqabad, They waited for Abdul Razzaq, deceased till late night and when he did not turn up he alongwith his brother Liaqat Ali P.W.2 went to the house of appellant Shabbir but they were not present there, then they started tracing out the deceased during the whole night and finally at about 6.00 a.m.
While they were coming back they found the dead body of Abdul Razzaq, deceased wrapped in a Khais lying on a wooden plank in front of shop of one Ghulam Qadir. He found some swelling on his neck and blood that was oozing out of the anus. While going to report the matter, on his way to the police station, he met Nawaz Bhatti, A.S.I. At General Bus Stand where he made his statement Exh.P.A before him at about 6.45 a.m. On 21-6-1994. P.W.2 is Liaqat Ali. He is brother of the complainant who saw deceased Abdul Razzaq while going in the company of appellants/accused, Ramzan, Shabbir and acquitted co-accused Khalil and Yahya on 20-6-1994 at about 7/8.00 p.m.
While the later were proceeding towards the house of Shabbir accused. He informed his brother Abdullah about the same when he reached his house. Both P.W.1 and P.W.2 started search for the deceased when he did not turn up and in the early morning they found his dead body lying on a wooden plank in front of the shop of Ghulam Qadir. It is apparent from the above that although the deceased Abdul Razzaq had left the house on 20-6-1994 at 7/8.00 p.m., his father Abdullah P.W.1 had no apprehension whatsoever that he won't return to the house. He expected no foul play. He and his family members were waiting for him till late at night. Then they started to trace him out in the hope to find him alive somewhere in the house of accused or in Farooqabad where they had gone. They kept on searching for him till they found his dead body lying on wooden plank at about 6.00 a.m. Thereafter, P.W.1 while going to police station met P.W.9 Muhammad Nawaz, A.S.I.. At General Bus Stand and recorded his statement Exh.P.A before him at about 6.45 a.m. Thus, it is evident that P.W.1 reported that matter to police immediately after he found that his son whom he had seen off in the previous night was lying dead in front of shop in Farooqabad. The delay of 45 minutes in circumstances is absolutely immaterial.
8. Next point raised by the learned counsel for the appellants regarding testimony of P.W.5 and P.W.6 is worth cpnsideration. Their statements have been reproduced above in full. Both these statements are very important in the sense that they provide the missing link in the chain of events and ultimately resulted in the murder of Abdul Razzaq. P.W.6 saw the accused Shabbir, Khalil, Yahya and Ramzan taking the deceased inside a room in the dera of Wazir Ali and bolting that from inside. Sometimes thereafter, he heard hue and cry which attracted him over there. He saw the door being opened after a short while. He also saw the deceased weeping and also besmeared near his buttocks The deceased told him that the accused subjected him to sodomy. Thereafter, he lost senses. On asking of the accused he called for Ghulam Farid, tonga driver to carry Abdul Razzaq (who was then unconscious) to Farooqabad. P.W.5 is Ghulam Farid who was asked on the fateful night to board some guests from the dera of Sardar Wazir and drop them in Farooqabad.
When he went there on his tonga, Ramzan and Shabbir accused present in the Court boarded and unconscious boy. He took them along and drove the tonga till they reached Basti Ganj Bakhsh, Farooqabad. There they alighted alongwith the unconscious boy. On the following day he came to know that the said boy had died. Thus, their testimonies unveil drop-scene of the whole episode which otherwise could have remained unknown. However, it is worth mentioning that the statements under section 161, Cr.P.C. Of both these P.Ws. Were recorded after about then months of the occurrence. P.W.6 while explaining the delay stated in cross-examination that he had been going to the police throughout after the occurrence btit his statement was recorded in April, 1995.
In this he is supported by P.W.1, complainant who stated in cross-examination that the investigation was transferred to Abdul Majeed, D.S.P., Sangla Hill at his instance, P.W.10 Muhammad Sharif, S.I.
Sheikhupura has confirmed that investigation of the case was transferred to Mr. Abdul Majeed, D.S.P., Sangla Hill at the instance of complainant P.W.13 Muhammad Sharif, S.I./S.H.O. Police Station, Saddar Sangla Hill has deposed that under the direction of D.S.P. Sangla Hill on 30-4-1995 he recorded the statements of Ghulam Farid. Muhammad Ramzan, Allah Ditta and Maqbool, under section 161, Cr.P.C. In this case. This reveals that complainant was not satisfied with investigation of local police and, as such, he had to make request to D.S.P. Sangla Hill to get the investigation'transferred to him. This explains the factum of delay caused in recording statements of P.W.4 and P.W.6, under the provisions of section 161, Cr.P.C. The reason why the local police opted to occasion such a long delay must be known to them as nothing is available on record in this connection. However, keeping the very fact in view that P.W.5 and P.W.6 had been going to the police throughout after the occurrence for recording their statements, the case of complainant who had no enmity with the accused cannot be allowed to be adversely affected merely for this reasons. We may mention here that we are conscious of the fact that in a criminal case when it comes on record that the witness has appeared before the police of first available opportunity but his statement under section 161, Cr.P.C. Was delayed, his evidence may not be given that sanctity as is generally given to the evidence of a witness whose statement has been recorded no sooner he made appearance before the police. However, where the delay in recording the statements has been explained, the evidence of the witnesses cannot be discarded merely on this ground and especially so when evidence on the file reflects that the investigation was mala fide. It may also be mentioned that section 161, Cr.P.C. Gives the Investigating Officer discretion in the matter of recording the statement of witnesses but that discretion is to be exercised soundly and not arbitrarily and certainly not in such a manner as to either handicap the accused in their defence or deprive the Court of valuable material ascertaining the truth. Any omission of Investigating Officer in this respect, therefore, must be viewed with caution and weighed property so that neither any side is prejudiced nor the purpose of law to arrive at just conclusion is frustrated. Therefore, the evidence of P.W.5 and P.W.6 which provides an important link in the chain of events that culminated in the murder of Abdul Razzaq cannot be discarded merely for the reasons that their statements were not recorded in time as sufficient explanation exists on record for the same and they have subsequently made statements on oath before the trial Court and have been duly subjected to lengthy cross-examination by the defence but to no advantage.
9. It may further be mentioned that the dying declaration made by the deceased before P.W.6, before he became unconscious is not incomplete as the accused were available there on the spot and there was no ambiguity whatsoever to specify them, as P.W.6 who was attracted there on hue and cry of the deceased and when the door was opened he saw him alongwith the accused. There could be no better circumstantial evidence than that to connect the accused with the commission of sodomy with the deceased and causing injuries to him. The case law relied upon by the learned counsel is distinguishable in facts and circumstances.
10. It may also be pertinent to mention that the appellants/accused were known to P.W.1 and P.W.2 as they were residents of same area where P.W.1 resides. Both P.W.1 and P.W.2 identified them.
Similarly P.W.5 and P.W.6 in cross-examination have stated that accused were known to them previously. P.W.6 has also stated that they had been visting the Dera of Wazir Ali off and on previously also. There is nothing on record to show that anyone of the F aforementioned four P.Ws.
Was in any way inimical to the appellants/accused. Suggestions about the involvement of Maqbool son of Wazir Ali, Abbas son of Khushi Muhammad, Abdal son of Rahmat and Makhdoom son of Muhammad Ramzan in the commission of offence as the real culprits have been put to P.W.5 and P.W.6 but they have rejected the same. Likewise P.W.1 has also denied the suggestion that he had nominated them as accused of the murder of his son. He stated that he did not even suspect them as offenders of this case. Even otherwise substitution in cases of this nature is a very rare phenomena and unless very strong enmity exists between the parties to innocent person could be nominated as accused instead of the actual offender. The available record bears no evidence to show that any enmity whatsoever existed between the P.Ws. And the accused prior to the occurrence. The appellants/accused who according to evidence of P.W.1 and P.W.2 had taken the deceased alongwith them on the pretext of urgent work at Farooqabad, have however, failed to furnish any explanation whatsoever regarding the disappearance of deceased Abdur Razzaq who was last seen alive in their company. This raises reasonable presumption against them as they were justifiably expected to have given an explanation to show what happened to him when they took him to Farooqabad. The questions put to them under section 342, Cr.P.C. Have been just simply denied by them. They have declined to make statements on oath. They have produced no defence. Thus, they have failed to furnish any explanation.
10. P.W.8 Dr. Farooq Ahmed Kisana, Medical Officer conducted the postmortem examination of Abdul Razzak on 21-6-1994 at about 1.30 p.m. His observations have been reproduced in para. No,4 above. His evidence coupled with the Chemical Examiner's Report clearly establishes the fact that sodomy has been committed with the deceased and that his death has occurred due to shcok, heamorrhage and carido respiratory failure. He stated that injuries Nos. 4 and 5 were sufficient to cause death of a person in ordinary course of nature collectively and injury No,5 individually. The probable time shown by him between death and post-mortem fully coincides with the timings of the occurrence as stated by the P.Ws. Thus there remains no doubt about the factum of death of Abdul Razzaq in circumstances stated by P.Ws. Therefore, in view of the confidence-inspiring depositions of P.Ws. Placed on record we have come to the irresistable conclusion that the appellants/accused are responsible for the murder of deceased.
11. We have given anxious thought to the submission made by the learned counsel for the appellants with regard to taking lenient view on the ground that the appellants are young and it is not confirmed who inflicted the fatal injury which resulted in the murder of deceased. The evidence brought on record clearly establishes the fact that the appellants had taken the deceased inside the room of Dera Wazir All and when P.W.6 heard hue and cry and reached there, he saw, after the door having been unbolted, that the accused alongwith the deceased were there and the deceased was weeping and his buttock was besmeared with blood, who also told P.W.6 that he had been subjected to sodomy by the accused. This clearly establishes the fact that the appellants/accused who were there inside the closed room had, in common intention, caused fatal injuries to the deceased who after reamining unconscious for some time, succumbed to the injuries and passed away. It was not an open place where specific role had to be described and assigned to each accused and failing which a benefit of doubt was to be extended. Keeping in view the brutal manner in which the appellants, after betraying the trust of his father have murdered the deceased, as well as agony of the unfortunate family, including the father of deceased who in confidence saw off his young son aged 15/16 years in the company of the appellants/accused only to see him ruthlessly murdered next morning leaving behind an endless mental torture for an indelible stigma on the honour of the whole family, we are not all inclined to take a lenient view in the matter. Therefore, we don't find any mitigating ground to award lessor punishment.
12. Consequently, for the reasons stated above, we maintain the convictions and sentences the accused appellantsas appellantsawarded by the learned Additional Sessions Judge, Sheikhupura on 21-5-1995 and dismiss their appeal.
13. The Murder Reference No,7-L of 1996 is answered in affirmative.