' This Judgment will dispose of Cr.A. No, 129 of 1994 filed by the ap Ilants Khalid Pervaiz and Muhammad Rafiq, Cr.A. No,223 of 1994 filed by Atta Muham ad and Cr. Rev. No, 150 of 1994 filed y Haji Muhammad Ashraf to enhance the sentence of appellants from life imprisonment to death penalty and sentence of fine from Rs,5,000 to Rs,50,000 and to set aside the acquittal of co- accused Mst.Maryam Bibi and to convict her under section 302. P.P.C.
2. Cr.A. No, 129 of 1994 and 223 of 1994 are against the judgment dated 27-2-1994 passed by the learned Additional Sessions Judge, Okara whereby he convicted the appellants under section 302- B/34, P.P.C. And sentenced them to undergo imprisonment for life and also convicted them under section 201/34, P.P.C. And sentenced them to undergo 2 years' R.I. Alongwith fine of Rs,5,000 and in case of default of payment of fine, to undergo further R.I. For six months.
3. Briefly stated. The prosecution case is that Haji Muhammad Ashraf (P.W.5), the real paternal uncle of Zafar lqbal got entered a Rapat No,13 on 7-3-1993 at the Police Station B-Division, Okara narrating that he was the resident of Sheikh Basti, Okara whereas Zafar lqbal was the resident of Bajwar Colony, Okara who was Taxi Driver of a Car No,8645/OKA Toyota Corolla Model 1984. The said Zafar lqbal had gone to Taxi Stand Okara on 4-3-1993 at 6-00 a.m. But did/not return to his house thereafter. The complainant alongwith the family member of Zafar lqbal made a search of him and it transpired to them from somebody that he had gone to Gujranwala alongwith a passenger who had hired a taxi from the said Zafar Iqbal. Till Thursday night he was to return back to Okara but his whereabouts were not known to the complainant as well as his family members.
The complainant narrated all these facts before the police through his affidavit.
4. On 13-3-1993 Haji Muhammad Ashraf complainant filed an application Exh.P.B before the A.S.P., Okara narrating that C.I.A. Staff, Kohat had apprehended the accused alongwith his companions and the stolen Car No,8645/OKA. After reading this news in the Daily 'Khabrain' on 11-3-1993 the complainant alongwith his relatives went to Kohat where it transpired to him that Khalid Pervaiz accused had been arrested alongwith his companions and Taxi Car No,8645/OKA. The complainant further narrated that Inspector C.I.A. Staff, Kohat told him that the accused was concealing some facts about Zafar lqbal Taxi Driver and was also making contradictory statement.
At this, on the basis of the application Exh.P.B, F.I.R. Exh.P.B/1 was registered under section 365, P.P.C.
Against the accused on 13-3-1993 at 11-30 a.m. Karam Elahi, S.1/P.W. Conducted investigation of this case. He went to Kohat where Khalid Pervaiz accused was already in judicial lock-up. He got him transferred to Okara. Khalid Pervaiz accused was interrogated by the police who in police custody disclosed that he alongwith his companions had abducted Zafar Iqbal taxi driver alongwith the said taxi car and also had committed his murder by strangulation of his neck in Mohallah Faisal Town, Tehsil Kamonke, District Gujranwala. The accused further disclosed that after committing murder of Zafar Iqbal taxi driver he alongwith his companions threw away his dead body into the Upper Chanab Canal. Khalid Pervaiz. Accused pointed out the house situated in Mohallah Faisal Town, Kamonke where Atta Muhammad and Mst. Maryam Bibi accused were residing as tenant.
Khalid Pervaiz accused got recovered a blood-stained string as weapon of offence and also a purse, photo, and currency notes amounting to Rs,135 owned by Zafar lqbal deceased. The accused also pointed out the place where he had thrown the dead body of Zafar lqbal taxi driver.
The police made a search of the dead body but it could not succeed. At this, an offence under section 365, P.P.C. Was amended to an offence under section 302/34/ 201, P.P.C. The investigation of this case was then entrusted upon Ahmad Nawaz, Inspector who arrested Atta Muhammad, Muhammad Rafiq and Mst. Maryam Bibi remaining accused from Kohat. The Investigating Officer recorded the statements of all the P.Ws., found Khalid Pervaiz, Muhammad Rafiq, Atta Muhammad and Mst. Maryam Bibi accused guilty under section 302/201/34, P.P.C. And submitted the challan in the trial Court.
5. The accused were formally charge-sheeted and the prosecution examined 12 witnesses, namely, Saleem Ullah (P.W.1), Qasim Ali (P.W.2), Nawab (P.W.3), Muhammad Ismail (P.W.4). Muhammad Ashraf (P.W.5), Haji Taj Muhammad (P.W.6), Faiz Ahmad (P.W.7), Safia Bibi (P.W.8), Karam Elahi (P.W.9), Mir Saeed (P.W.10), Muhammad Zaman (P.W.11) and Ahmad Nawaz (P.W.12) Haji Muhammad Aslam, Noor Muhammad Khan, Khalid Pervaiz, Muhammad Afzal and Nazir Ahmad P.Ws. Who were cited in the challan were given up by the prosecution.
6. Site plan of place of occurrence came on the record as Exh.P.A and its duplicate as Exh.P.A/1, application which was the basis of F.I.R. Exh.P.A/1, application which was the basis of F.I.R. Exh.P.B and the formal F.I.R. Exh.P.B./1, identified purse (P-1), photo of deceased Zafar Iqbal (P-2), Currency notes (P-3, P-4 (1, 2, 3,) and P-5), blood-stained string (P-6), memo. Of possession of the said string Exh.P.C, rough sketch of place where the dead body was thrown (Exh.P.G.), Report of Chemical Examiner (Exh.P.J, Report of the Serologist (Exh.P.K, were brought on the record and duly proved.
7. The accused were examined under section 342, Cr.P.0 who denied all the incriminating circumstances and declined to produce defence evidence or to appear under section 340(2), Cr.P.0 and explained that they were travelling in a wagon. Atta Muhammad, and Mst. Maryam Bibi accused were going to pay homage at the shrine of Ghomghol Sharif. The Police of Kohat checked the wagon and misbehaved Mst. Maryam Bibi and her husband. The remaining accused protested against the misconduct of the police officer. The Police of Kohat arrested the accused being residents of the other Province under suspicion and due to the said grudge a false case was registered and false recovery of Car No, 8645/OKA was planted against the accused whereas, no- such recovery was ever effected. The accused never travelled in the said car. Khalid Pervaiz accused also denied of all the recoveries alleged to be effected on his disclosure and specifically asserted that the same were fake and planted upon him.
8. The learned trial Court believed the last seen story of the prosecution, recovery of taxi car, and disbelieved false implication, recovery of the articles by Khalid Pervaiz accused from the place of recovery and its being stained with human blood connecting the accused with the crime. The defence plea of the accused was declared as not believable and passed the impugned conviction and sentence.
9. The learned counsel for the appellants has submitted that it is a case of Corpus Delicti Missing and conviction in such-like cases could only be awarded when the evidence or ocular testimony was absolutely of unimpeachable character and that the evidence in the case in hand was not of such quality that it could be safely acted upon. He further submitted that much reliance has been placed on the eye-witnesses who had last seen alive Zafar Iqbal deceased with the appellants without taking into consideration that both the eye-witnesses were closely related to the deceased and were not able to give cogent reasoning for their being present at the Bus Stand, Okara and, thus, were interested and unnatural witnesses and that the said witnesses have tried to make a wilful improvement upon their earlier statements just to strengthen the case of the prosecution and that the factum of considerable and unexplained delay in lodging the F.I.R. Has also been ignored and that there was an afterthought version which was prepared after due deliberation and development and as such the F.I.R. Was not an F.I.R. In the eye of law. He also submitted that non- indication in the site plan the exact location of eye-witnesses of the last seen alive with precision reflects that they were not present there at the crucial time and that the only independent and uninterested witness Haji Muhammad Aslam who had been examined in the course of investigation by the police and whose name appeared in the list of witnesses, has not been examined by the prosecution and in this manner, adverse inference should have been drawn by the trial Court which it did not and thus the prosecution story was not liable to be accepted as true.
The learned counsel further submitted that the finding of guilt against the accused could not and should not have been based on mere high probabilities and that the basis should have been the evidence produced on account of which plain inferences of guilt could be irresistible drawn. He further submitted that the alleged recoveries and circumstances as narrated are not enough without anything more to connect the appellants with the crime. Regarding the recovery of crime string, the learned counsel submitted that it was recovered at least 18 days after the occurrence and it took 7 days more for examination and that in such circumstances, the Chemical Examiner's Report that it was human blood, was suspicious in view of probable disintegration of blood by putrefying during an extraordinary delay of 25 days. Not holding of identification parade and non- sealing of articles of recovery at the spot were also the factors that made the case doubtful. He further submitted nat the observation of the trial Court at page 13 of the judgment is that inter se connection of the accused required elaboration in spite of the fact that the prosecution could not put it in a proper way and that there is misreading and non-reading of evidence by the trial Court.
The learned counsel for the appellants has also urged that the circumstances negatived elements of preparation and the intention to kill and that when the trial Judge had himself come to the above conclusion, he should have changed the charge before convicting the appellants.
10. On the other hand, the learned counsel for the State has fully supported the judgment of the trial Court.
11. The learned counsel for the complainant has submitted that the reasons given by the learned Additional Sessions Judge for not imposing the death penalty is that the appellants had no enmity prior to the occurrence against the deceased and their purpose was to snatch the car and in pursuance to this, they committed the murder and as such, they deserve a lenient view of the Court. This view is incorrect. This could not be a reason for not awarding the maximum punishment.
He further submitted that although the law has provided an alternative punishment, either is not to be passed. Indefinitely at the discretion of a Judge, where the accused has been found guilty of a deliberate murder, the Court must pass the sentence of death and the lesser penalty is to be awarded only when there are extenuating circumstances and the sentence consequent upon a conviction for murder must be death and that there is no ground availabel in the presence case for not awarding the maximum punishment. He further submitted that where a murder is committed to facilitate the commission of another offence, it is very cruel and revolting and could never be a ground for taking a lenient view while passing the sentence. Learned counsel for the complainant further submitted that co-accused Mst. Maryam Bibi has been acquitted on the ground that she was abducted by Atta Muhammad accused and her case was distinguishable from the other co- accused and the possibility could not be ruled out that she might have not shared common intention. These findings are incorrect and contrary to the record as she herself in her statement under section 342, Cr.P.0 had stated that she is the wife of said Atta Muhammad accused and that she equally participated in the murder of Zaffar lqbal deceased. He further submitted that imposition of fine of Rs,.5,000 to each appellant is too less for an offence of such a nature.
12. I have given due consideration to the valuable arguments of the learned counselor the appellants. Revision petitioner/ complainant and the learned counsel for the State and have gone through the record with their able assistance.
13. The last seen story of the prosecution is based on the evidence of P.W.6 and P.W.7. P.W.6 Haji Taj Muhammad stated:-- "On 4-3-1993 at about 7-00 a.m. I alongwith Faiz Ahmad P.W. Went to Lari Adda, Okara in order to travel to Sahiwal. Zafar Iqbal deceased stopped his Taxi Car No,8645/OKA at the place where we were present. The Taxi Car is present outside the Court premises. All the accused present in the Court namely Khalid, Rafique, Atta Muhammad and Mst. Maryam were also sitting in the Taxi Car.
We had Gup Shap with Zafar lqbal deceased for 10 minutes who told us that he was going to Gujranwala alongwith the passengers/accused. Then in our presence, Zafar lqbal deceased departed for Gujranwala alongwith the accused. Thereafter, we did not see Zafar lqbal deceased either dead or alive."
' In his cross-examination, this witness deposed:-- "I am also. Taxi driver and Zafar lqbal deceased was my friend. He was also related to me. Zafar lqbal deceased was my real maternal uncle's son. Mst.Safia P.W. Is the widow of said Zafar lqbal deceased. Faiz Ahmad P.W. Is also related to Zafar lqbal deceased 3/4 days after when Zafar Iqbal deceased met with us at Lari Adda. Okara, we came to know that whereabouts of Zafar Iqbal deceased were not known I alongwith Faiz Ahmad P.W. Had to go to Sahiwal in order to see our friend Muhammad Ismail resident of village Wakeel Wala, Sahiwal at a distance of 4 miles from Sahiwal. We had to request him to provide a job for us at Poswal Factory near Kasowal. I had come to the house of Faiz Ahmad P.W. At Qadir Colony, Okara and stayed with him during the night. The place where, we were standing at Bus Stand, Okara was in front of Zamindar Hotel. Hardly, we had reached bus stand when after 10/15 minutes Zafar Iqbal stopped his taxi car at the place where we were standing. We came from Qadir Colony on foot to Adda, Okara. 15/20 minutes after the departure of Zafar Iqbal deceased we boarded a bus and reached Sahiwal..
' When I came to know that whereabouts of Zafar Iqbal were not known I told Ashraf P.W. As well as widow of Zafar lqbal deceased that I had seen Zafar Iqbal deceased in his Taxi Car alongwith accused Khalid Pervaiz, Atta Muhammad , Muhammad Rafiq and Mst. Maryam Bibi while sitting in his taxi car at Bus Stand. Okara. This fact was told by me to Safia and Ashraf P.Ws, on the 3rd or 4th day of my last meeting with Zafar Iqbal deceased at Bus Stand Okara."
14. Faiz Ahmed P.W.7 stated:- "About 8 months ago, I alongwith Haji Taj Muhammad P.W. Went to Bus Stand. Okara at 7-00 a.m.
Zafar Iqbal deceased Taxi Driyer stopped his taxi car near to us. The accused present in the Court were also sitting in that taxi car. Khalid accused was sitting in the front seat whereas Atta Muhammad. Rafique accused were sitting on the back seat. Mst.Maryam Bibi alongwith three children was also sitting on the back seat. We had a Gup Shap with Zafar Iqbal deceased and the accused for 15/20 minutes and then he told us that he was going to Gujranwala alongwith the passenger-accused. Thereafter, the accused departed from the said place for Gujranwala. He was not seen after then.
' In his cross-exmination. He stated:-- "The names of the accused were not mentioned by me in my statement recorded uefore the police as the accused were not known to me previously. Names of the accused were not known to Taj P.W previously.
' We shook hands with one accused and paid Salaam to the others ' I am the paternal uncle of Zafar Iqbal deceased. On the 3rd or 4th day of our last meeting with Zafar Iqbal deceased we came to know that he not yet come back to his house. The woman accused was wearing Chadar. All the accused were not known to us previously ' It is incorrect that the story of Wajtakar had been concocted falsely to operate evidence against the accused."
15. It has been specifically questioned to the accused-appellants in their statements under section 342, Cr.P.C. In Question No,2 to which they all have answered that it was incorrect. The deceased Zafar Iqbal and Haji Taj Muhammad P.W.6 being related and in the same profession, the story of their meeting appears to be genuine. Faiz Ahmad P.W. And Haji Taj Muhammad P.W. Have both stated that they had to go to Sahiwal in order to see their friend Muhammad Ismail. Both have stated that the purpose was to search some job in Kasowal Cotton Factory. P.W.6 has stated that the said Factory is near Kasowal while P.W.7 has stated that it was near Chichawatni at a distance of 3 miles towards Sahiwal, which in no way is a discrepancy fatal to the prosecution.
16. Learned counsel for the appellants has very strongly urged that both the eyewitnesses were closely related to the deceased and were interested and unnatural witnesses. The argument is not convincing as the relationship of the witnesses with the deceased rather makes the meeting of the witnesses with the deceased as a natural phenomena as otherwise, the here was no fun in meeting the witnesses with an unknown taxi driver.
The conversation that took place between the witnesses and the deceased was also natural.
17. The next point urged by the learned counsel for the appellant is that non-indication in the site plan the exact location of the eye-witnesses of the last seen alive with precision reflects that they were not present there at the crucial time. This argument is misconceived. There was no question of indication in the site plan the exact location of the eye-witnesses of the last seen alive with Precision as the site-plan was not of the site where the eye-witnesses had last seen alive deceased. It was Lari Adda, Okara while the site plan that has come on the record relates to the place of occurrence which was in Kamonke City and it was the place from where blood-stained string was recovered at the pointation of the accused Khalid Pervaiz, Atta Muhammad, Muhammad Rafiq and Mst. Maryam Bibi. The next contention is that the only independent and uninterested witness Haji Muhammad Aslam who had been examined during the course of investigation by the police and whose name appears in the list of witnesses, has not been examined by the prosecution and in this manner, adverse inference should have been drawn by the trial Court which it did not and, thus, the prosecution story was not liable to be accepted as true. The recovery of the string from the house owned by Muhammad Aslam has come on record from the mouth of Karam Elahi, S.I. (P.W.9) and the house of recovery was visited by Salimullah Draftsman (P. W .1) alongwith accused. Haji Muhammad Aslam was joined in the investigation as he was owner of the house where occurrence tools place. He was made witness of memo. Of possession of blood-stained string alongwith Haji Taj Muhammad and Faiz Ahmad. As there were three witnesses of memo. Of possession of blood-stained string, out of whom the prosecution has examined Haji Taj Muhammad (P.W.6) and Faiz Ahmad (P.W.7), so it does not create any material C dent in the prosecution case as the prosecution has successfully proved that the house was in Kamonke which was owned by Haji Muhammad Aslam and the crime string was also recovered from there at the pointation of the accused. The rule is that the prosecution has to stand on its own legs and the accused have to create dent in the prosecution case and they are not bound to produce evidence. However, where a suggestion is made and denied that becomes a defence version for which the onus to prove shifts on the accused. In the present case, the accused have failed to create any dent in the prosecution case.
18. The next contention of the learned counsel for the appellants is that the alleged recoveries and circumstances as narrated are not enough without anything more to connect the appellants with the crime and that the crime string was recovered at least 18 days after the occurrence and it took 7 days more for examination and that in such circumstances, the Chemical Examiners Report that it was human blood was suspicious in view of probable disintegration of blood by putrefying during an extraordinary delay of 25 days. In this case, the blood-stained string has been recovered at the instance of accused Khalid Pervaiz and blood has been found of human origin by the Serologist vide report Exh.P.K. The recovery witnesses have also stated that the crime string was recovered at the pointation of the accused and was blood-stained.
19. In the case of Sardar Ali and others v. The State PLD 1967 SC 217 where bloodstained key of the deceased was recovered and blood at the place where deceased was beaten was also recovered and a trail of blood drops leading to the Ahata of the accused where some more blood was found and clothes of the deceased which were blood-stained were also recovered, were considered sufficient corroboration and link to connect the accused with the crime. In that case also, dead body was not found and the Hon'ble Supreme Court had maintained the sentence of transportation for life.
20. In the case of Allah Ditto v. The State 1968 SCM R 378 where circumstantial evidence consisted of the deceased last seen with the accused and the accused had exclusive knowledge where dead body lay buried and the articles of the deceased were recovered at the instance of the accused and the clothes secured from the accused were found stained with human blood, it was held that murder charge was established.
21. In the present case, no link is missing as to the seeing of the witnesses the accused with the deceased in the car of the deceased, the recovery of the same car from the same accused at Kohat, the pointing out the place of commission of offence of murder by the accused Khalid Pervaiz and the recovery of the articles belonging to the deceased and also on the pointation of accused Khalid Pervaiz, the recovery of blood-stained string, are the circumstances which are not explainable on any other hypothesis than the guilt of the accused. The place of disposal of the dead body by throwing into a canal was an additional circumstance of destroying the evidence. In these circumstances, I am convinced that the learned trial Court was justified in passing the impugned conviction and in the circumstances of the case, the sentence awarded by it is also just and correct.
22. The learned counsel for the revision petitioner has stressed that the sentence should be death but the judicial precedents referred to by me above support that the sentence of life imprisonment was adequate.
23. For the reasons stated above, both the appeals and revision are dismissed and the conviction and sentence passed by learned trial Court are maintained. Appeals and .