1. TANVIR AHMED KHAN, J.--These two appeals with leave of the Court are directed against the judgment dated 31-7-2000 of a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No,32-1 of 1995 filed by the appellants against their convictions and sentences of death recorded by the learned Additional Sessions Judge, Lahore, through his judgment dated 15- 2-1995 was dismissed and Murder Reference No,63 of 1995 was answered in affirmative by confirming their death sentences. Briefly stated facts of the case are that F.I.R. No,56/94 (Exh.PA/1) was recorded by Noor Ahmed, S.-I.
2. Police Station Nishtar Colony, Lahore, on 8-3-1994 at 4-30 p.m. On the basis of a statement received by him from Muhammad Tariq Kamboh (P.W.18), Inspector CIA, Model Town, Lahore, who recorded the statement of Javed Masih, the complainant. It was the case of complainant that he was residing along with his family members in Mohallah Raza Abad in the area of Police Station Ghulam Muhammad Abad, Faisalabad, whereas his brother Saleem Bhatti used to work at Jhelum but his wife Iram Bibi (the appellant), his children, parents along with his two other brothers namely Iqbal Masih deceased and Mubarik Masih (the appellant) used to live in Yuhanna Abad, Lahore.
3. About two years prior to this occurrence his father Danial all of a sudden disappeared from his house. He could not be traced out in spite of best efforts. Thereafter about seven months ago his mother Mst.Sharifan disappeared. She also could not be traced out. After five months ago, his brother Iqbal Masih vanished without leaving any clue of his existence. Ultimately about three months ago his other brother Saleem Bhatti also disappeared which caused them great shock and worry but he was also not traced out. In the meantime, reportedly his brother Mubarik and Iram Bibi widow of Saleem Bhatti started living together as husband and wife. It caused suspicion in their mind and they started inquiry from Iram Bibi. Resultantly, both the accused Mubrik and Iram Bibi in the presence of Mistri Salamat son of Mond Bux Masih, resident of Dawood Nagar, Gali No,4, Faisalabad and Sumail Masih, son of Jalal Masih, resident of Chak No,61 Tarraran, Faisalabad, separately confessed that they have murdered, father, mother and brothers as Mubarik Masih had developed illicit liasion with Iram Bibi and the father, mother and brothers namely Iqbal and Saleem Masih had come to know about the said illicit relations, therefore, being frightened, Mubarik and Iram Bibi having conspired with an intention to remove them from their way, first committed murder of father, then of mother and thereafter Iqbal Masih and Saleem Bhatti were done to death one after the other. After usual investigation challan against the appellants was submitted in the Court. The prosecution examined as many as 19 witnesses to establish its case. The appellants were examined under section 342, Cr.P.C. Mubarik Masih appellant denied having made extra-judicial confession, pointation of graves, recovery of incriminating weapon and stated that the witnesses had deposed against him and his co-accused due to previous enmity and so as to misappropriate the property of his deceased father and brother. He however, admitted the recording of judicial confession before the Magistrate but stated that the same was done after severe torture by the police. Iram Bibi appellant also disputed his involvement in the crime and stated that she had been roped in because of family feud in order to deprive her from the property of her deceased husband and father-in-law. She, however, admitted recording of confessional statement by the Magistrate and took up the same stance as that of his co-appellant Mubarik Masih that it was recorded through severe torture. Both of them had also submitted written statments Exhs.DA and DB respectively before the trial Court wherein they took up the plea that the murders were committed by James Masih, brother of Mubarik Masih appellant, who buried the dead bodies in the courtyard and they had been involved in this case out of sheer enmity so as to deprive them from the property. The learned Additional Sessions Judge, Lahore, after evaluating the entire evidence brought on record by the parties, convicted both the accused under sections 302/34, P.P.C. And sentenced them to death on each count with a fine of Rs,50,000 each or in default to suffer simple imprisonment for three years each. An amount of Rs,40,000 each in case of its realization was ordered to be paid to the legal heirs of the deceased. Both the appellants filed Criminal Appeal No,32-.J of 1995 through Jail in the Lahore High Court, Lahore, against their convictions and sentences recorded- by the learned Additional Sessions Judge, Lahore. The Learned trial Judge also forwarded Murder Reference No,63 of 1995 to the High Court for confirmation or otherwise of the death sentences imposed upon the appellants. A learned Division Bench of the Lahore High Court, Lahore, through its judgment dated 31-7-2000 dismissed the aforesaid appeal preferred by the appellants and answered the murder reference in affirmative. Hence these appeal with leave of the Court. It is argued by the learned counsel for the appellants that the occurrence was an unseen one and the conviction of the appellants is based upon circumstantial evidence coupled with extra-judicial confession, retracted judicial confession, motive, pointation of graves of the deceased and the alleged recovery of incriminating weapons, all of which have not been supported from the evidence brought on record, and the learned Additional Sessions Judge as well as the learned Judges of the Division Bench have not appreciated the same in their true perspective. It is further argued by him that Muhammad Tariq Kamboh, Inspector CIA, Model Town, Lahore, was neither S.H.O. In terms of section 156(1), Cr.P.C. Nor he was authorised by any competent authority to investigate the matter and consequently the whole trial stood vitiated due to this legal infirmity.
4. Lastly it is argued that the written statements Exh.DA and Exh.DB of the appellants had not been considered.
5. Learned counsel appearing for the State has opposed the above contentions and supported the impugned judgment. We have considered the contentions advanced by the learned counsel for the parties and have perused the entire record carefully with their assistance. It is true that the F.I.R. Was got recorded on a written complaint of Javed Kamboh (P.W.18) Inspector, C.I.A., Model Town, Lahore. The same was sent through Constable Muhammad Riaz (C-10752) and thereupon formal F.I.R. (Exh.PA/1) was registered at Police Station Nishtar Colony, Lahore, at 4-30 p.m. On 8-3-1994 under sections 302/34, P.P.C. By Noor Ahmed, S.-I. (P.W.13). It is also reflected from the record that Muhammad Tariq Kamboh (P.W.18) investigated the case, arrested both the appellants, recovered incriminating weapon, got conducted disinterment of the graves at the pointation of the appellants and got post-mortem examinations conducted on 10-6-1994 through four doctors after securing proper permission for the same from the competent authority. He also arranged recording of confessional statements of the appellants before Muhammad Aitzaz, Magistrate (P.W.19) on 17-3-1994. He got medically examined Iram Bibi appellant through Dr. Aalia Bashir, Registrar. Gynae Unit-1, Sir Ganga Ram Hospital, Lahore, who took three vaginal swabs which were found to be stained with semen as report No,374-S dated 28-31994 of the Chemical Examiner. Similarly, he got declared him fit to perform sexual intercourse. In short, he completed all the investigations and submitted challan against both the appellants before the Court.
6. The argument of the learned counsel for the appellants that Muhammad Tariq Kamboh, Inspector.
7. C.I.A. (P.W.18), was not competent to investigate the case, is devoid of any force as no question in this respect was put to him at the trial regarding his competency in this matter. Furthermore, no prejudice whatsoever had been caused to the appellants as they were given fair opportunity by the trial Court after framing of charge. In this regard it would be appropriate to refer to the case of State through Advocate-General, Sindh versus Bashir and others (PLD 1997 SC 408), wherein this Court observeds as under:-- "As regards the question, as to whether the above illegality/irregularity if already committed by the C.I.A. Personnel vitiate the trial, it may be observed that subsection (2) of section 156, Cr.P.C.
8. Expressly provides that: No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate' . It is an admitted position that the C.I.A. Is part of the Police Force for special purpose. The violation of section 156(1) of the Cr.P.C. May not vitiate trial. If no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C., but it does not mean that the C.I.A. Personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law." Reference is also made to the case of The State v. Muhammad Hussain (PLD 1968 SC 265) wherein it was held that the trial would not be vitiated by the violation of legal provisions specifying by what police officer a case of corruption by a public servant may be investigated is an irregularity falling to be dealt with under section 537, Cr.P.C. Reference is further made to Mehr Khan v. The State (1986 PCr.LJ 363). The appellants in this case have failed to point out any prejudice caused to them which have affected their trial. The extra-judicial confessions of the appellants have been established on record in their material particulars by Javed Masih, complainant (P.W.1), Salamat Masih (P.W.2) and Samual Masih (P.W.3).
9. They were subjected to lengthy cross-examination but in spite of the same their testimony in that regard could not be shattered. They had stated in categorical terms that both the appellants separately confessed their guilt. The dead bodies were recovered from the courtyard at their pointation. Postmortem examinations were respectively carried out by four doctors namely Dr.Zamir Ahmad (P.W.6) who conducted autopsy of Sharifan Bibi, Dr.Tanveer Hussain (P.W.8) of Saleem Matti, Dr.Azhar Masood Bhatti (P.W.10) of lqbal Masih and Dr.Muhammad Zahid Bashir (P.W.16) of Danial Masih. The exact cause of death could not be ascertained due to purification of the dead bodies. However, fractures of certain parts of the bodies were noticed during the post- mortem examinations of the dead bodies. The extra-judicial confession has been established on record through the testimony of Muhammad Aitzaz, Magistrate (P.W.19) which, according to him, was recorded without any coercion on voluntary basis. In his judicial confession Mubarik Masih appellant has fully admitted his guilt for murdering his four near ones in a ruthless manner. He, however, exonerated Iram Bibi appellant, stating that she was not a party in the offence as she forbade him not to kill her husband Saleem Bhatti. Iram Bibi in her judicial confession (Exh.PQ) had also deposed that it was sole act of Mubarik Masih appellant as all the times' he was killing the victims after administering intoxicants in their tea. Similarly, she had stated that he also administered intoxicants in the tea of her husband Saleem Bhatti whereupon he became unconscious. Thereafter, the appellant Mubarik Masih locked the door and asker her whether Salem Bhatti had gone unconscious and afterwards on my answer in affirmative, he asked me to take the children to other room and after that he killed her husband Saleem Bhatti with his Kulhari and he too was buried in the courtyard.
10. A reading of these judicial confessions amply demonstrates that they were recorded without any duress or coercion in a free atmosphere. The recovery of incriminating weapon and clothes of the deceased were also taken into consideration by the learned trial Court as well as by the learned Judges of the Division Bench of the Lahore High Court. All these links fully implicate the appellants in the commission of this callous and heinous offence wherein Mubarik Masih appellant after developing illicit relations with Iram Bibi appellant had done to death his four near ones to have a clean go in the accomplishment of his nefarious designs. The motive in this case has also been established on record. The other argument of the learned counsel for the appellants that the written statements (Exh.DA and Exh.DB) had not been considered by the trial Court, is also devoid of any force. The learned Additional Sessions Judge had given cogent reasons in disagreeing with the above statements of the appellants in the following terms:-- "14. Before proceeding further I refer to Exh.DB and Exh.DA the detailed written statements which were furnished on record by Mst.Iram Bibi and Mubarik Masih accused at the time of recording of their examination under section 342 of the Criminal Procedure Code. On the plain reading of these written statements as filed by Iram Bibi and Mubarik it is further confirmed that the dead bodies of the accused were disinterned from the very house where she lived with his co-accused Mubarik Masih. However both the accused have not succeeded in clarifying and explaining that how it was possible for any other person including James to have murdered the four persons clandestinely and instead of disposed of the dead bodies at any other deserted places, chose to bury them in the very courtyard of the house where both the accused lived. It is also surprising and baffling that when such burial proceedings were allegedly taken by any other person including James (as mentioned in Exh.DB) then why both the accused kept their eyes shut and did not vouchsafe the said matter publicly or got registered the case against the accused by lodging report against James etc. Hence no weight can be attached to the above-noted written statements...."
11. Keeping all the aforementioned facts and circumstances of the case into consideration, as far as Mubarik Masih appellant is concerned, the case against him has been fully proved and there are no extenuating circumstances in his favour warranting lesser punishment and Criminal Appeal No,368 of 2001 filed by him is dismissed. So far Iram Bibi appellant is concerned, keeping in view the judicial confessions of both the appellants and the attending circumstances of the case, we are of the view that her sentence requires modification. Accordingly, while maintaining her conviction, her sentence of death is altered to imprisonment for life with benefit of section 382-B, Cr.P.C. And consequently Criminal Appeal No,369 of 2001 filed by her is partly allowed. Both the appeals stand disposed in the terms stated above.