1. BASHIR A. MUJAHID, J.---Javed Masih son of Ramzan Masih and Shahbaz alias Saji son of Allah Ditta have challenged judgment dated 5-6-1998 passed by learned Special Judge, A.T.C. Sargodha Division whereby they were convicted under sections 364/302/392/201/34, P. P. C . for commission of murder of Muhammad Liaqat and sentenced to death under section 302/34, P.P.C. and ordered to pay fine of Rs,100,000 each in default of payment of fine they had to further undergo 10 years' R.I. each. They were further sentenced to imprisonment for life each and tine of Rs,10,000 each under section 364/34, P.P.C. Both the appellants were also sentenced to 14 years' R.I. each under section 392, P.P.C. and 5 years' R.I. under section 201/34, P.P.C. and a fine of Rs,5,000 each. All the sentences were ordered to run concurrently.
2. The brief facts of the prosecution case are that F.I.R. No,13 Exh.P.F. was got registered at Police Station City Khushab on 12-10-1997 at 4-30 p.rii. by Muhammad Kabeer P.W.12, wherein it was alleged that the complainant was resident of Badliwala and was Transporter by profession. He had purchased Toyota Corolla Car bearing Registration No,786-SGB Model 1980 for an amount of Rs,4 Lacs and was being plied as Taxi. Muhammad Liaqat son of Hanif was employed as his Driver. On 12-12-1997 at 4-30 p.m. Javed Masih resident of Chak No,356/GB hired Taxi to board ladies. When the car was taken to Sem Nala Jauhar Abad Road, Shahbaz accused also joined him. Both the accused took Muhammad Liaqat alongwith car towards Jauharabad. They were seen by Shaukat Hayat . brother of Muhammad Liaqat P.W.15 and Nazir Ahmad P.W.13 going towards Jauharabad.
3. The complainant had got a report recorded in daily diary recorded on 17-12-1997 at 9-15 p.m., wherein Javed Masih's name entered as Muhammad Azeem son of Muhammad Iqbal resident of Chak No,56/MB on the basis of information provided by the accused at Taxi Stand. The car and Muhammad Liaqat, Driver was not traceable and the complainant alongwith P.Ws.- kept on searching but no clue was found, on which, he got the instant criminal case registered suspecting both the accused for abduction of Muhammad Liaqat in order to snatch the car.
4. Tahir Abbas, S.-I./S.H.O. P.W.16, on 7-1-1998 after registration of the case arrived at Taxi Stand Khushab and prepared the site plan where he received telephonic message from Umar Hayat, FC of Police Station Gunjial who informed that the car of the complainant had been taken into possesion by S.H.O. Gunjial from Raja Chowk under section 550, Cr.P.C. The accused had also been taken into custody. The Investigating Officer arrived at Raja Chowk where Naveed Murtaza, S.H.O.
5. Police Station Gunjial was present alongwith Javed; Masih appellant/accused who was arrested by the Investigating Officer and interrogated. Javed Masih made disclosure that Liaqat Driver has been murdered and his dead body was buried near Chak No,25/36-DB and he while in police custody led to the place where the dead body was buried and on his pointation the same was taken into possession after digging out the place pointed out by the accused in presence of the P.Ws. He prepared the site plan through Exh.P.J. and injury statement Exh.P.K and inquest report Exh.P.L of dead body and, dispatched the same for post-mortem examination. He recorded the statements of the P.Ws. On the following day last-worn clothes of the deceased were produced before him which were taken into possession through memo. Exh.P.B. He obtained the physical remand of Javed Masih accused and produced him before Malik Tallah Muhammad D. S P /S .D.P.O P.W. 11 who 'recorded his confessional statement and a video film was also prepared, through cassette P.5 which was taken into possession through memo. Exh.P.C. He sent Javed Masih in judicial lock-up and got warrants of arrest for Shahbaz accused. After completion of investigation, he submitted the challan.
6. The trial Court framed the charge which was denied by the accused and they claimed trial.
7. During the trial, the prosecution examined as many as 16 witnesses to prove guilt of the accused.
8. The medical evidence was furnished by Dr. Muhammad Sharif P. W.1 who on 8-1-1998 conducted the post-mortem examination on the dead body of Muhammad Liaqat and opined that it was deed body of young man badly decayed eyes and tongue protruded. Face swollen, mouth packed with clothes strongly wrapped around neck and hole of the face was wrapped with cloth. Rope was also wrapped around the neck tightly . All muscles of the dead body were badly decayed and there was fracture of hyoid bone. According to the opinion of the doctor, death was caused by strangulation and probably time between injury and death was immediate and between death and postmortem was 27 days. Muhammad Mushtaq P.W.3 real brother of Muhammad Liaqat identified the dead body at the time of postmortem examination.
9. The ocular account was furnished by Talib Hussain P.W.8 and Jaffar Hussain P.W.9. Both of them stated that on 12-12-1997 they were returning on a car near Chak No,25/36-DB and they saw Javed Masih and Shahbaz accused holding Liaqat deceased and dragging him out of the car. Javed Masih was armed with pistol while Shahbaz had a rope at that time. Liaquat had bandage on his mouth. The accused had put Liaquat deceased on the rear seat of the car and Javed Masih drove the car while Shahbaz sat with Liaquat deceased on the rear seat. The witnesses, however, admitted that they had not disclosed this fact to the police or to any relative of Liaqat when their statement was recorded on 13-8-1998 by the Investigating Officer. Muhammad Kabeer complainant of the case was examined as P.W.12, he supported the version of the F.I.R. and stated that on 7-1-1998 he learned that Taxi/car was taken into possession by the Police of Police Station.
10. Gunjial from the possession of Javed Masih under section 550, Cr.P.C. He accompanied the police party and identified his car and before him Javed Masih appellant made disclosure that he had committed murder of Liaqat Driver and buried his body in Chak No,56-SB and led the police party to the spot. He identified the dead body. Nazir Ahmad P.W.13 stated that on 12-12-1997 he alongwith Shaukat Hayat P. W.14 were present near Sem Nala, Jauharabad Road and they saw that car was driven by deceased while laved Masih was sitting in front seat alongwith Liaqat and on pointation of Javed Masih dead body of Liaqat was recovered by the police. Shaukat Hayat P.W.14 also supported the prosecution story by stating that he alongwith Nazir Ahmad P.W.13 saw Liaqat driving the car alongwith Javed Masih sitting in front seat while Shahbaz was standing on right side of road where the car was stopped and Shahbaz sat in the same car on rear seat. Naveed Muartaza.
11. S.-I, P.W.15 while posted as S.H.O.. Police Station Gunjial on. 7-1-1998 had taken into custody the car belonging to the complainant under section 550, Cr.P.C. and arrested Javed Masih while he was in possession of illicit arms, therefore, he was also booked under section 13 of Arms Ordinance No,XX, 1965 on 11-1-1998. He handed the car to the police of Khushab on 11- I -1998. Malik Tallah Muhammad, D.S.P./S.D.P.O. was examined as P.W.11 who on 13-1-1998 had recorded the statement Exh.P.E of Javed Masih appellant, video cassette was also prepared at the time of recording the said statement. The remaining witnesses are of formal nature and need not to be discussed.
12. The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through. Criminal Appeal No,1614 of 1998, while the trial Court has sent up Murder Reference No,240-T of 1998 for confirmation of death sentence of the appellants under section 374. Cr.P.C.
13. Learned counsel for the appellants has argued that case of the prosecution is based on circumstantial evidence which is a weak type of evidence and the sentence awarded is not legal and proper; that all the prosecution witnesses are closely related to the deceased; they are interested and inimical and the appellants have been falsely implicated; that the statement before the police is inadmissible in evidence; that the prosecution case against the appellants is doubtful and benefit of doubt be extended in favour of the appellants and they be acquitted of the charge by accepting their appeal.
14. Conversely, the appeal has been opposed by learned counsel for the State who has supported the impugned judgment.
15. Heard. Record perused.
16. It is correct that the case of the prosecution is based on circumstantial evidence and according to settled law the conviction can also be recorded on the basis of circumstantial evidence if the same is convincing and no link in the chain is found missing. In the instant case, F.I.R. was got recorded by Muhammad Kabeer P.W.12 on 7-1-1997 about the occurrence which took place on 12-10-1997 but he has explained that he being owner of the car has been searching out for his car and the driver, which was missing since 12-10-1997. The explanation furnished by him or lodging the F.I.R. with delay has been sufficiently explained. ' He made search for his car and driver and his conduct was natural. Javed Masih appellant was arrested by Naveed Murtaza 5.-I. P.W.15 when the accused was in possession of the car bearing Registration No,786-SGB and on his disclosure Talib Abbas S.-I. was intimated about the arrest of the accused. The appellant while in police custody led to the place where body of Muhammad Liaqat was buried. The place of burial of the dead body was in his exclusive knowledge and the dead body was taken into possession after digging out the place in presence of the P.Ws. The statement made by Javed Masih, appeallant before Tallah Muhammad, D.S.P./S.D.P.O. was part of statute at the relevant time. A video cassette P-5 was also prepared at that time which was taken into possession by the Investigating Officer. Although the said provision was deleted subseuently but it was legal at the time it was recorded after observing all the Formalities. Muhammad Kabeer complainant had nominated both the accused in the F.I.R. The deceased was lastly seen in the company of the appellants by Shaukat Hayat P.W.14 and Nazir Ahmad P.W.15. The prosecution story has also been corroborated by Talib Hussain P.W.8 and Jaffar Ali P.W.9. Although they are related to the deceased but have no previous enmity for false implication of the appellants/accused or their false implication. The vehicle was recovered from Javed Masih who also confessed his guilt during the investigation. The prosecution case has been further corroborated by recovery of the rope which was used for strangulation by the accused.
17. Shahbaz accused has also' been fully implicated by the prosecution witnesses and by the statement of Javed Masih, therefore, after deep reappraisal of evidence, we find that prosecution case has been established against both the appellants beyond any shadow of doubt and we do not find any ground to interfere in the conviction recorded against them to be interfered with.
18. As far as sentence is concerned, as the prosecution case is mainly based on circumstantial evidence which is admittedly a weak type of evidence and according to the law laid down by the Honourable Supreme Court in 1992 SCM R 1047 and PLD 1984 SC 445, the circumstantial evidence must be incompatible with the innocence of the accused and should exclude all the hypothesis of his innocence. but in the instant case learned counsel for the appellants has produced copy of judgment passed by this Court in Criminal Appeal No, l0-J of 1999 wherein both the appeallants in a connected. ' matter were acquitted of the charge, which although is distiguishable from the present case as in the said case there was no confessional statement of the accused and the accused were also not put to the identification parade to the witnesses who had 'last seen' the deceased of the said case in the company of the accused. However, for safe administration of justice, we feel that the death penalty on the basis of prosecution evidence produced in this case is harsh and the same is reduced to imprisonment for life each under section 302 (b)/34, P.P.C. and amount of fine is also reduced to Rs,50,000 each as to be paid to legal heirs of deceased under section 544-A, Cr.P.C. and in default of payment thereof they had to under go six months' S.-I. The remaining sentences under sections 392/364, P.P.C. are, however maintained. All the sentences shall run concurrently. ' However benefit of section 382-B, Cr.P.C. will be available to the appellants.
19. Death sentence of Javed Masih son of Ramzan Masih. and Shahbaz alias Saji son of Allah Ditta is not confirmed. The appeal is dismissed with the above modification.
20. Murder Reference is answered in negative.