ABDUL HAMEED DOGAR, J.---This appeal with the leave of the Court calls in question the judgment dated 11-4-1993 of the learned Lahore High Court, Lahore passed in Criminal Appeal No,302 of 1988 and Criminal Appeal No,25-Jail of 1989 whereby the same was dismissed.
2. The facts, in brief leading to the filing of this appeal are that appellants Sher Muhammad alias Sheroo, Yar Muhammad alias Yaroo and Sarwar Javaid stood convicted and sentenced by the trial Court as under: Sher Muhammad and Yar Muhammad:
(i) Under sections 302/34, P.P.C. (Death) each and fine of Rs,10,000 or in default thereof two years'
R.I. And also compensation of Rs,1,00,000 each to father of Majid Bashir (deceased).
(ii) Under sections 364-A/34, P.P.C. (Death) each.
Sarwar Javaid:
(i) Under sections 302/34, P.P.C. (life imprisonment) and fine of Rs,1,000 or in default thereof six months' R.I.
(ii) Under sections 364-A/34, P.P.C. 14 years' R.I. His both sentences shall run concurrently.
3. Sher Muhammad alias Sheroo and Yar Muhammad alias Yaroo preferred joint appeal whereas Sarwar Javaid sent appeal from the Jail which failed and their convictions and sentences were maintained by the learned Lahore High Court, Lahore.
4. The case of prosecution in brief is that on 15-11-1985 Majid Bashir, a student of Class III and son of complainant Bashir Ahmad went to play in the street of their village Jamal Kot and did not return till 5-00 p.m. Search was made but the whereabouts of the boy could not be known and the complainant had the apprehension of the boy either having been killed or subjected to carnal intercourse or slavery. Accordingly F.I.R. Under section 364-A, P.P.C. About the incident was lodged on 21-11-1985 at Police Station Basirpur.
5. Muhammad Nawaz, A.S.-I. Took up the investigation on 21-11-1985 and 22-11-1985 and then handed over the same to Noor Muhammad, S.-I. On 25-11-1985, P.W. Mamoora while supervising the picking up of cotton crop of Mian Farooq felt offensive smell from the cotton field - and noticed the dead body of the child. The head had been separated from the trunk. He raised hue and cry which attracted complainant and other several persons. The dead body was identified to be that of Majid Bashir, the son of complainant. Noor Muhammad, S.-I. On receiving such information inspected the site plan and prepared inquest report and despatched the death body for post-mortem examination. He collected bloodstained earth, blood-stained pieces of papers and sealed them in parcels. He also took into possession the blood-stained copy book lying near the dead body. He also took into possession blood-stained shirt, Shalwar, vest, Chappal and wrist-watch of the deceased. Such site plan was got prepared from the Patwari.
6. On 11-12-1985, appellant Sarwar Javaid confessed his guilt before P.W. Aurangzeb that he, appellants Sheroo and Yaroo had committed the murder of Majid Bashir. P.W. Aurangzeb produced him before Noor Muhammad, S.-I. On the same day. At that time appellant was wearing blood- stained Shalwar and shirt which were taken into possession vide memo. He voluntarily confessed his guilt before the Magistrate on 11-12-1985 and his judicial confession was recorded in which he involved himself as well as appellants Sheroo and Yaroo.
7. On 13-12-1985 appellants Sheroo and Yaroo confessed their guilt and made extra-judicial confession admitting before P.Ws. Muhammad Mueen Wattoo and Subah Sadiq, Advocates, who produced them before Noor Muhammad, S.-I. On 17-12-1985. Appellant Sheroo led to the recovery of blood-stained Chhuri and blood-stained clothes which were sealed into parcels. The complainant produced the Birth Certificate of deceased Majid Bashir according to which he was born on 27-10-1977. On completion of investigation they were sent up to face trial before the Judge, Punjab Special Court for Speedy Trials No,II, Lahore.
8. At trial prosecution examined 17 witnesses.
9. On autopsy Dr. Muhammad Iqbal Shamim noticed the following injuries on the person of deceased:
(1) Incised wound 12 c.m. Circular cutting the neck through and through at its lower part.
(2) Incised wound 4 c.m. x bone deep on the back of right hand.
10. Appellant Sarwar Javaid in his statement under section 342, Cr.P.C. Reiterated his earlier statement and while replying to question No,22 he stated: "On account of various incidents which have been put to me above, Sheroo and Yaroo accused had enmity with Bashir Ahmed, complainant. I have been visiting the house of Sheroo and Yaroo accused. Yaroo accused told me that Bashir had insulted his wife who was also my Bhawaja. He told me about this about 2/3 months before present occurrence. Both the accused were telling me that Majid Bashir son of Bashir Ahmed, complainant should be murdered. I visited the house of accused day before the present occurrence and also on the morning of day of murder they told me to bring along Majid Bashir in the evening. Yaroo said that, he would remain present in the cotton field. Sheroo said that he would remain present near the office of the Union Council. Majid Bashir was playing near the mosque at about evening time. I took him along. When we reached near the office of Union Council, Sheroo accused caught hold Majid Bashir by the arm and took him to the cotton field. When he was taken there, Majid Bashir wept and addressed "Chacha where he was being taken". Sheroo told him that he would serve him with sweetmeat. Sheroo took him to the place where Yaroo accused was present. He felled the deceased in the centre of the cotton field.
Sheroo tied down the mouth of the deceased with his Safa. Muhammad Yar accused held the deceased by the legs. I was asked to hold the deceased by the head. I was reluctant. They forced me to hold the head. Sheroo severed the neck of deceased with a Chhuri. Muhammad Yar caught hold the head and Sheroo accused chapped off his face. The accused took copy book from me.
They cleaned their hands with the papers of the book which were taken out of the copy book. They had also cleaned their clothes with the papers of the copy book. They threw copy at the spot. The accused slapped me. They threatened me that I would meet the same fate if I disclosed this to anybody else. We then went to the stream. They kicked me and also slapped me there. They showed me the Chhuri and said that if I disclosed it to anybody would be murdered with the same Chhuri. We then left for our house."
11. He neither examined himself on oath nor led any evidence in his defence. Similarly appellants Sher Muhammad alias Sheroo and Yar Muhammad alias Yaroo too neither examined themselves on oath nor led any evidence in their defence. Both of them in their respective statements under section 342, Cr.P.C. Denied the incident and took different pleas than one taken by them earlier in the case.
12. We have heard Syed Zia Hussain Kazmi, learned A.S.C. On behalf of the appellants as well as Mr. Dil Muhammad Tarar, on behalf of the respondent/State and have gone through the record and proceedings of the matter in minute particulars.
13. The learned counsel for the appellants contended that prosecution has failed to prove motive against the appellants in this case. It was developed after 24-11-1985 and the complainant Bashir Ahmad had suspected on Abbas, husband of Mst. Manzooran and Muhammad Ashraf during the initial stage of investigation and that if at all the appellants had any motive it was against Muhammad Hassan and not complainant. According to him the entire case hinges upon circumstantial evidence and the evidence of extrajudicial and judicial confession made by appellant, Sarwar Javed, which even suffer from legal infirmities. He, however, at the very outset stated that the defence in spite of best endeavours has failed to shatter the case of prosecution.
14. On the other side the learned counsel for the respondent/State supported the impugned judgment. As according to him prosecution has brought on record sufficient and tangible evidence against the appellants beyond any shadow of doubt.
15. The case of prosecution hinges upon the following pieces of strong circumstantial evidence--
(i) extra-judicial confession madrby the appellants Yar Muhammad alias Yaroo and Sher Muhammad alias Sheroo before P.W. Muhammad Mueen Wattoo, Advocate;
(ii) extra-judicial confession made by appellant Sarwar Javed before P.W. Aurangzeb;
(iii) judicial confession made by appellant Sarwar Javaid before P.W. Mr.Muhammad Fazil, Magistrate;
(iv) motive;
(v) recoveries of blood-stained Chhuri, shirt and Chaddar from the appellant Sher Muhammad alias Sheroo;
(vi) blood-stained shirt and Shalwar from appellant Sarwar Javaid;
(vii) blood-stained earth beneath the place of incident;
(viii) medical evidence furnished by Dr. Muhammad Iqbal Shamim, P.W.2;
(ix) positive Chemical Examiner Report;
(x) blood-stained copy book of deceased.
16. The background which led to the incident was that both parties were closely related to each other. Appellant Sarwar Javaid was cousin of appellants Sheroo and Yaroo whereas the deceased Majid Bashir was son of maternal uncle of appellant Sarwar Javaid. Appellants Sheroo and Yaroo were sons of Muhammad Sadiq whose sister was mother of Ghulam Ahmad their father in such a way the grandmother of complainant was sister of father of appellants. One Muhammad Hassan, maternal uncle of complainant Bashir Ahmad was married to Mst. Goma, a close relative of appellants Sheroo and Yaroo. About 9/10 years prior to the incident said Muhammad Hassan enticed Mst. Rabia, first cousin of Mst. Goma upon which Mst. Goma had gone to the house of her parents but again went back to the house of her husband. She was divorced at the instance of complainant. The matter did not end there but the complainant got married Muhammad Hassan with Mst. Kaneez Begum, sister of appellant Sarwar Javaid who was engaged with Muhammad Hanif, the brother of appellants Sheroo and Yaroo which infuriated the matter further. Some days prior to the incident Mst. Husna wife of appellant Sheroo had gone to the house of complainant Bashir Ahmad who did not like her visit being on strained relations expelled her from his house by dashing. Appellants Sheroo and Yaroo protested such insult of Mst. Husna with complainant near the tubewell of Muhammad Afzal where they, grappled each other and exchanged abuses and were separated by P.W. Ghulam Ahmad. Before parting appellants issued threats that they would teach such a lesson to the complainant that he will remember for the entire life. This all developed an in their mind and thus managed the presence of deceased a young boy of 7/8 years at the place of occurrence through appellant Sarwar Javaid in order to avenge from complainant.
17. At the trial abovementioned motive stood corroborated from the statements of complainant Bashir Ahmad, P.W. Ghulam Ahmad, confessional statement of appellant Sarwar Javaid, his extra- judicial confessional statement before P.W. Aurangzeb and the version in his under section 342, Cr.P.C. Statement. It got further support from the extra-judicial confession made by appellants Sheroo and Yaroo before Muhammad Mueen Wattoo and Subah Sadiq, Advocates and their statements at trial. Though sufficiently cross-examined yet defence could not shatter them as such their evidence stood established beyond any doubt.
18. It would be pertinent to refer that the P.Ws. Were not only disinterested but were independent and had no animosity of whatsoever nature against the appellants. P.W. Muhammad Mueen Wattoo, Advocate was not a stranger to the appellants Sheroo and Yaroo but he was engaged by them in a 'theft case' which fact 'too is admitted by them in their statements under section 342, Cr.P.C. According to this witness it was during the hearing of that 'theft case' both appellants confessed their guilt before him and P.W. Subah Sadiq, Advocate and it was on their insistence they were produced before the Police. The different stands taken by the appellants in the trial further strengthen the case of prosecution against them on the plea that they had no particular defence to put forth in their favour. The evidence of recoveries of blood-stained articles and their positive expert reports coupled with recovery of deceased's blood-stained note book and presence of incised wounds on the body of deceased are further corroborative pieces of evidence. Looking to the brutal, callous and cruel act of the appellants in killing a minor innocent boy, they do not deserve any leniency even in the sentences. Accordingly, while maintaining their conviction and sentence, the instant appeal is dismissed.