' SARDAR MUHAMMAD RAZA KHAN, C.J.---This is an appeal by Abdur Rehman son of Yaqoob Khan of village Panjpir, District Swabi against the judgment, dated 11-5-1998 of the learned Additional Sessions Judge Swabi, whereby the appellant on charge of murder, under section 302, P.P.C. Was convicted and sentenced to imprisonment for life in addition to the payment of Rs,30,000 as compensation under section 544-A, Cr.P.C.
2. Complainant Mustaqeem Khan son of Faqir Gul has also filed Criminal Revision 73 of 2000 for the enhancement of sentence to normal penalty of death and also for the enhancement of compensation. Both, the appeal as well as the cross revision, are heard together,
3. The appellant Abdur Rehman, alongwith his brother Abdullah Khan and another Raj Wali were tried under sections 302/201/34, P.P.C. Regarding the murder of a young boy named Raees Khan aged 17/18, initiated through F.I.R. 45, dated 26-1-1995 of Police Station Zaida, District Swabi. In the impugned judgment Abdullah Khan and Raj Wali, the co-accused were acquitted for lack of evidence against them. The present appellant, found guilty of offence under section 302, P.P.C., was acquitted of the charge under section 201, P. P.0 .
4. Mustaqeem Khan complainant on 26-1-1995 at 10-00 hours lodged a report at Police Station Zaida, that on the preceding day his nephew Raees Khan after taking evening meal had left the house but did not return for the whole night. The complainant family started searching for him and on the next morning his dead body tied up in a jute bag was found in the syphon of Kuddy canal.
The complainant uncle of the deceased could not charge any one for the occurrence because they had no enmity or against any one. He, however, had undertaken to inform the Police as and when any clue was found.
5. For about 22/23 days, the investigation went in vain till the complainant family found certain love letters addressed to the deceased by one Mst. Salma alleged to be the sister of the appellant. On 19-2-1995 Mustaqeem Khan complainant and Gharib Gul the father of the deceased gave statements to the above effect and charged the accused under trial. On 20-2-1995, they produced ten such letters before the Police vide memo. Exh.P.W.13/10. The investigation took a new turn and subsequently on 28-3-1995 appellant Abdur Rehman was arrested at Kamra Cantonment of Pakistan Air Force where he was employed.
6. Haibat Khan and Syed Kaleem Shah were also examined on 13-3-1995 to the effect that they had last seen deceased Raees Khan and appellant Abdur Rehman together on the night of occurrence at 8 p.m. When Abdur Rehman carrying a hen, wanted the same to be slaughtered for his ailing father for whom he was to prepare soup.
7. During investigation, the appellant Abdur Rehman confessed his guilt before the Police and disclosed that as his own clothes had been smeared with the blood of the deceased, he burnt the same and threw the pieces and ashes thereof in the nearby well. On 1-4-1995 and on his pointation some pieces of clothes were recovered from the well vide discovery memo. Exh.P.W.5/1. On 2-4- 1995, he led the police to the discovery of crime shotgun from under a slab of a gutter in the house.
It was through the discovery memo. Exh.P.W.4/1. At the time of the recovery of the dead body, on the day of report i,e, 26-1-1995, a site-plan Exh.P.B. Was prepared but subsequently on account of different pointations by the accused, another site plan of the place of occurrence etc. Was prepared on 1-4-1995 as Exh.P.B.2. The site plan regarding the discovery of shotgun dated 2-4-1995 Exh.P.B/1. After such admission before the police and discoveries on pointations of the accused, he was produced before Syed Qamar Ali Shah, Magistrate 1st Class, Swabi on that very day i,e, 2-4- 1995 where he made a confession. The confession in brief, is to the effect that prior to the occurrence when he came to his village from Kamra, the place of his posting he was informed by one Haris, that his sister, Mst. Salma had love affair with the deceased. The appellant got furious and decided to do away with the deceased. On the night of occurrence at 20-45 hours, the accused met the deceased in front of his house and took him inside the house on the pretext of fixing some furniture. That there he killed the deceased by firing two shots from his DB shotgun and thereafter, putting his dead body in a jute bag, he threw the same in the syphon of nearby canal.
He also confessed of having burnt his clothes because' of having been smeared with the blood of the deceased and having thrown the pieces and ashes thereof in the nearby well. He confessed of having led to the discoveries of aforesaid and stated that he had done so in order to save the honour of his sister. At the time of occurrence, he had closeted the inmates of the house in the rooms. It would be relevant to mention at this stage that the doctor during post-mortem examination had also taken the anal swabs of the deceased. The report of Chemical Examiner Exh.P.W.13/8 dated 30-3-1995 was positive to the effect that the swabs were stained with semen.
8. Placing reliance on the recoveries, discoveries, the confessional statement and the prolonged abscondence of the accused, the learned trial Court convicted and sentenced Abdur Rehman and hence this appeal.
9. This is a case of no ocular testimony, purely based on circumstantial evidence. First among the links of chain is the evidence, that the appellant was last seen with the deceased Raees Khan at 8 O'clock on the night of occurrence when he had come to get a hen slaughtered. Witness to that effect is P.W. Haibat Khan whose statement to the above effect was recorded on 13-3-1995. The narration seems to be fairly delayed because once the same witness had been examined on 26-1- 1995 i,e, on the first day after occurrence in connection with the identification of dead body but therein P.W. Haibat Khan uttered nothing about having had last seen the appellant in the company of the deceased Raees Khan. We have scrutinized the statements of Haibat Khan and do believe that this delayed version should not be relied upon for the reason that this was a fact which was natural to be disclosed immediately, which it was not. We propose to discard such evidence.
10. The second strong circumstantial evidence is the relationship, of the deceased with Mst. Salma, the sister of the appellant. Muhammad Haris is a witness to that effect, who was examined on 1-4- 1995 i,e, two months and six days after the occurrence. He was the one who, disclosed such relationship to the appellant whereafter, he became furious and revengeful.
' The defence has the objection that this witness was examined with a damaging delay but the learned State Counsel answered this objection quite satisfactorily to the effect that the first Investigating Agency was not properly investigating the case and hence it was transferred to CIA.
The CIA Staff successfully reached the witness and examined him. The information disclosed by Muhammad Haris is supported even by the confessional statement and hence we tend to believe such version.
11. The defence objection was, that the prosecution had even failed to prove as to whether the appellant had any sister by the name of Mst. Salma. As pointed out earlier, that we, for the determination of such relationship do place reliance on the statement of Muhammad Haris. Even if, for the sake of arguments, the statement of Muhammad Haris is excluded, the matter is proved from the statement under section 342, Cr.P.C. Of the appellant.
12. When the question regarding his relationship with Mst. Salma was put to the appellant, he could have straightaway denied such relationship being a solid matter of fact. He failed to do so and instead trickily came out with the answer that the prosecution had failed to prove such relationship. We are not at all satisfied of the answer because such a close relationship, if non- existent, could have been denied down right. Non-denial of such relationship during his statement under section 342, Cr.P.C., gives a strong indication that Mst. Salma was in fact his sister and, therefore, he had no courage to deny the same outright. To provide such evasive answer about a strong matter of fact and about a close relationship, can conveniently be taken as a circumstance going against the accused.
13. The disclosure of this relationship or that of the motive in the instant case, has been most natural. At the first instance, the motive was never known to any one and it was after about 22/23 days that it came to light through the recovery of love letters produced by the father before the police on 20-2-1995 vide memo. Exh.P.W.13/10. It may be recalled that the parties had no enmity whatsoever and hence there was no occasion at all to forge such letters with particular intent to involve the appellant. The delayed recovery of such letters from the belonging of the deceased was but most natural and hence it is another circumstance that proves the motive. Had there been any enmity between the parties and had this motive been known to the complainant family at the first instance, there was no obstacle in disclosing the same. The delayed discovery of letters and hence motive is a natural circumstance in the instant case with least touch of mala fide which even otherwise never existed between the parties.
14. The prosecution witnesses having appeared in connection with various discoveries are also not inimical towards the accused. The second important circumstance is the discovery of the pieces/ashes of burnt clothes of the appellant which he had thrown in the nearby dry well and which were discovered only and only because of his pointation. It is a dry well in the village where the people used to throw rubbish and hence such pieces got submerged under the rubbish, unearthed subsequently. The disposal of such blood-stained clothes is another natural circumstance, if viewed in the background, that the appellant was an intelligent person who attempted to destroy all available evidence and thereafter joined the place of his job at his convenience.
15. The same, he had done to the dead body and the same he had done to the shotgun which is the weapon of offence.
16. The next circumstantial evidence is discovery of shotgun at the pointation of appellant from underneath a slab of gutter. As said earlier, the appellant had almost destroyed all possible pieces of evidence and, therefore, he concealed the gun as well because of his guilty mind, otherwise it could have been left in the house as well. Had it been normally found in the house, it would not have constituted the circumstantial evidence, known as discovery but it was particularly concealed with positive mens rea underneath the slab of gutter which, without pointation, would not have been discovered by the Investigating Agency. This constitutes another strong circumstantial evidence.
17. The argument that it was not sent to the expert, is not well founded because no empty was recovered from the spot. It is strange enough that the spot of occurrence was known only after when the appellant got arrested two months and three days after the occurrence. The remaining intact of any empty and that too in the Baithak of the appellant is practically impossible.
18. Another fact which cannot be lost sight of, is the injury on the person of the deceased. According to post-mortem report, there is one fire-arm injury with a corresponding exit on the head and hence there seems to be no occasion for the appellant to eject the empty of a shotgun. The third injury is a laceration and hence we are sure that no empty could have been even left on the spot.
The very concealment of gun in a place like gutter and the discovery thereof from the gutter at the pointation of the appellant is a sufficient evidence to connect him with the commission of offence.
19. Coming to the most important evidence of confession, it was objected to by the defence that it was not voluntary. It may be stated at the very outset that the defence never objected that it was not true. It was alleged that the appellant was brought under pressure that if he did not confess, the womenfolk of his house would be involved and hence to avoid this dishonour he was compelled to make confession. This allegation is completely unfounded because so far as the womenfolk were concerned, the Investigating Agency had, rather, favoured the accused by not even examining Mst. Salma, under section 161, Cr.P.C. The Agency seems to have even quite considerate, so far as the women-folk were concerned.
20. On the day of confession i,e, 2-4-1995 he was twice produced before the Magistrate. Had there been any such pressure, blackmailing or undue influence, he would have made confession on the first occasion. It seems that because of the discovery of blood-stained clothes, because of the discovery of shotgun, because of the discovery of love letters of Mst. Salma and because of the statement of Muhammad Haris, he had no way out but to confess. In the circumstances, it seems to be quite voluntary and also motivated by some psychological impulses as well because in his mind, by confessing the guilt, he had been redeeming the honour of his sister. It is under this satisfaction of ego that he appears to have made confession.
21. Together with the pieces of circumstantial evidence, the abscondence of two months and three days is another factor that supports the prosecution version. He being an employee at PAF Kamra, could have easily taken the plea of alibi which he has not taken. We believe that had it been taken, he would have failed to substantiate it.
22. Learned counsel for the appellant came out with the argument that in order to prove any relationship leading to motive, the prosecution has failed to examine Mst. Salma. This point has already been answered in our discussion above but still we may say that it is least reasonable because Mst. Salma being the sister of the appellant, could never have been produced in the witness-box and he could never have uttered anything either to malign her honour or to put the life of her brother at stake.
23. The next argument of the learned counsel for the appellant was, that in the instant case, the anal swa bs of the deceased had been taken and the report of Chemical Examiner thereabout had been in positive. That this showed that the deceased might have been done to death in circumstances altogether different. We failed to understand the logic of the argument and cannot conclude, in the wake of the positive report regarding anal swab, that the occurrence might have taken place in a different manner, rather, in view of the circumstances, specially the motive of the case, we believe, that this also is the doing of the appellant.
' In view of the honour involved subjectively, the accused seems to have first avenged the same by dishonoring the deceased. Here, we may once again point out that the Investigating Agency had been lenient to him, otherwise, a case under section 12 of the Ordinance VII of 1979, could also have been registered against the appellant.
24. In view of our detailed discussion of the circumstances, we believe and hold that the appellant is squarely linked with the commission of offence. We uphold the conviction as well as the sentence recorded by learned Additional Sessions Judge Swabi, in his judgment dated 11-5-1998.
25. We have given our considered thought to the sentence and hold that as the case of the prosecution was entirely of circumstantial evidence, the sentence of imprisonment for life would meet the ends of justice.
26. Consequently, the instant appeal as well as the cross revision for enhancement of sentence are both dismissed.