1. ' BASHIR A. MUJAHID, J.---Muhammad Nadim son of Allah Banda and Riaz Hussain Shah alias Qasim son of Raza Shah have challenged judgment dated 17-9-1998 passed by Special Judge ATC, Sargodha Division whereby they were convicted under section 365, 377, 302, 209/34, P.P.C. For abducting Muhammad Ahsan and committing sodomy with him and committing Qatl-e-Amd and setting the dead body on fire in order to disappear the evidence. They were sentenced to death each and fine of Rs,1 lac each under section 302/34, P.P.C., in default of payment of fine they had to undergo 10 years' R.I. Each. They were further sentenced to seven years' R.I. Each and a fine of Rs,10,000 each under section 365/34, P.P.C. And in default of payment of fine to undergo two years'
2. R.I. Each. They were also sentenced to 10 years' R.I. Each and a fine of Rs,10,000 each under section 377/34, P.P.C., in default of payment of fine to undergo two years' R.I. Each., Both the appellants were further sentenced to seven years' R.I. Each and a fine of Rs,10,000 each under section 201/34, P.P.C.
3. In default of payment of fine to undergo two years' R.I. Each. All the sentences were ordered to run concurrently.
4. ' The brief facts of the prosecution case are that F.I.R. No,160 of 1998 (Exh.P.I/1) was g., recorded at Police Station Bhera with Sher Bahadur Khan, Inspector P.W.14 on 22-6-1997 at 4-30 p.m. On the statement of Mst. Nasira Naheed P.W.3, alleging that at 4.00 p.m. On the same day Muhammad Ahsan her brother as usual went to learn Holy Quran in Masjid Khajoor Wali. The complainant went to call him in order to send him to buy house-hold articles. She was informed by the other children that at about 3-30 p.m. Muhammad Ahsan was taken away by Muhammad Nadeem and Riaz Hussain Shah alias Qasim accused. She went to Government Khalid English Medium School near Darbar Pir Khaki in search of Ahsan where many persons were gathered and the dead body burnt from chest was hanging. Imtiaz ud Din son of Siraj Din, Javed Ahmad son of Sultan Ahmad met the complainant and they informed her that Muhammad Nadeem and Riaz Hussain Shah alias Qasim accused had committed murder of Ahsan, brother of the complainant with their common intention after committing sodomy with him and in order to disappear the evidence they have also burnt the dead body from chest. Imtiaz ud Din and Javed Ahmad when seen the occurrence, the accused fled away after hanging the dead body with a string.
5. ' Sher Bahadur Khan, Inspector/ S.H.O. P.W.14 after recording the F.I.R. Exh.P.I arrived at the spot and took the dead body into possession and prepared the injury statement through memo. Exh.P.B and inquest report Exh.P.0 and despatched the dead body for post-mortem examination through Muhammad Afzal, FC. He also collected the ashes of 'burning and pair of sleepers of deceased P.1 from the spot through memo. Exh.P.J. On 30-6-1998, he arrested Muhammad Nadeem and Riaz Hussain Shah alias Qasim accused and on personal search of Riaz Hussain Shah he recovered a match box P.2 and a packet of cigarettes through memo. Exh.P.L. On 24-6-1998 he got both the accused medically examined regarding their potency through applications Exh.P.P and Exh.P.Q respectively. On 28-6-1998, Muhammad Nadeem accused while in police custody led to the recovery of two pieces of string P.2/1-2 which were taken into possession through memo. Exh.P.K. On 29-6-1998, both the accused were produced before Judicial Magistrate for recording of their statement under section 164, Cr.P.C. Which was recorded on the same day. The accused were sent to judicial lock-up. He completed the investigation and 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 14 witnesses to prove the guilt of the accused.
8. ' The medical evidence was furnished by Dr. Muhammad Aslam P.W.1, who on 22-6-1998 while posted at Rural Health Centre Bhera conducted the post-mortem examination on the dead body of Ahsan and found the left 1/2 of scalp including hair burnt; left ear was mostly burnt; skin from the front left and backside of neck, front and both sides of chest front and both sides of abdomen upto the level of umbilicus were found burnt; skin of both upper limbs, mostly on interior aspect up to the level of wrist joint was burnt; redness of skin was not present in burnt area; other inflammatory sign was not present; there was false vesication and its base was hard, dry and yellow. He. Also found the following injuries on the body- (1)- There was an abrasion 2 x 1 c.m. On right angle of jaw just in front of lower part of right ear.
(2) A depressed horizontal liagature mark 7 x N c.m. On right side of neck, below the thyroid.
(3) There was a tear 1 x 1/3 c.m. x muscle deep at 10 0' clock position and on anal margin blood mixed discharge was coming out from anus, one swab from perianal area and three swabs from anal canal were taken sealed into bottle and signed and handed over to police. On precto scopy examination, the macosa of anal canal was found inflammed and blood mixed discharge was present in anal canal.
9. ' On the basis of positive report of Chemical Examiner Exh.P.E, he gave opinion that sodomy was committed with the deceased.
10. ' Sardar Muhammad. Jatial, Judicial Magistrate was examined as P.W.2, he stated that on 26-9- 1998 he recorded the confessional statement of both the accused through Exh.P.F/2 and Exh.P.F/3 after observing all the legal formalities. Mst. Nasira Naheed, sister of deceased was examined as P.W.3. She was complainant of the case and supported the version of the F.I.R. Ud Din son of Siraj Din was examined as P.W.4, who stated that on 22-6-1998 at 4.00 p.m. He along with Javed Ahmad saw smoke coming out of the school building. Both of them scaled over the wall of school and saw dead body of Ahsan, deceased lying in varanda while Muhammad Nadeem and Riaz Hussain Shah alias Qasim. Were present near the dead body. Javed' Ahmad, P.W.5 was also an eye-witness of the occurrence. His statement is in line with that of Imtiaz ud Din P.W.4. Anwar ul Haq, P.W.6 had attested the recovery memo. Exh.P.J whereby ash collected from the place of murder was taken into possession by the Investigating Officer. Mazhar Iqbal P.W.B had identified the dead body at the time of post-mortem examination. Muhammad Yasin HC P.W.9 had also attested the recovery memos. Exh.P.L. Muhammad Hafeez Khan, Draftsman P.W.10 had prepared the site plan.
11. Muhammad Afzal FC P.W.11 had escorted the dead body of Ahsan for post-mortem examination.
12. Muhammad Aslam, MHC P.W.12 had kept the seated parcels intact in safe custody at police Maalkhana. Sher Muhammad, FC P.W.13 had delivered the sealed parcels at the office of Chemical Examiner, Rawalpindi on 30-6-1998. Sher Bahadur Khan, Inspector P.W.14 had recorded the F.I.R., investigated the case, effected the recoveries and submitted the challan.
13. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh. P.
14. E.
15. ' The statements of the accused were recorded under section- 342, Cr.P.C. Towards the end of the trial. Both of them in answer to Question No,16 admitted their guilt by stating that the charges against each of them are based on truth and the witnesses have deposed factual position. They also admitted having made confessional statement before - the Judicial Magistrate.
16. ' The trial culminated into conviction of the appellant as mentioned above. They have challenged their conviction and sentence through Criminal- Appeal No, 153-T of 1998 while the trial Court has sent up Murder Reference No,208-T of 1998. Both the matters are being decided by this judgment.
17. ' Learned Defence Counsel appointed at the State expenses has argued that in view of confessional statement of the appellants he is not in a position to challenge the conviction but prays for reduction of the sentence as the appellants confessed their guilt. They are young and first offender and lenient view be take in their favour.
18. ' Conversely, the appeal has been' opposed by the learned counsel for the State, who has supported the impugned judgment.
19. ' Heard. Record perused.
20. The appellants were nominated in the promptly recorded F.I.R. It was a day light occurrence.: Imtiaz P.W.4 and Javed Ahmad P.W.5 are independent and impartial witnesses being residents of the same locality. Mst. Nasira Naheed, complainant (P.W.3) and both the eye-witnesses have no enmity against the appellants for their false implication. Both the appellants had confessed their guilt and their judicial confession was recorded by Sardar Muhammad Jatial, Judicial Magistrate P.W.2. He observed all the legal formalities while recording the statement under section 164, Cr.P.C.
21. The appellants have also confessed their guilt in their statement recorded by the A. Trial Judge under section 342, Cr.P.C. The case against the appellants cannot only been proved by the prosecution but has also been admitted by the appellants. The prosecution case has been established against both the appellants beyond any shadow of doubt and we find no reason to interfere in the conviction recorded or the sentence awarded to them. They have committed a heinous offence and there are no mitigating circumstances for awarding lesser penalty.
22. Resultantly, their appeal is dismissed. Death sentence of Muhammad Nadeem and Riaz Hussain Shell alias Qasim is confirmed.
23. ' Murder Reference is answered in affirmative.