' Appellants Muhammad Riaz, Naseer Ahmad and Rasheed Ahmad were tried in case F.I.R. No,190 of 1998 dated 10-5-1998 under sections 302/392/411, P.P.C. Registered at Police Station City Arifwala by the learned Judge, Special Court (Anti-Terrorism) No,11, Multan who, vide impugned judgment, dated 5-7-2000; acquitted them of the charge under section 392, P.P.C. But convicted under sections 302(b)/34, and 411, P.P.C. And sentenced to life imprisonment each as Ta'zir. Appellants were also convicted under section 411, P.C. And sentenced to one year's R.I. Each however, benefit of section 382-B, Cr.P.C. Was extended to them.
2. Brief facts of the case are that Waseem Akbar Shah P.W.3 lodged F.I.R. (Exh.P.E.) on 10-5-1998 at Police Station City Arif wala at 8-00 p.m., wherein he stated that his uncle Syed Javaid Hussain Shah was residing on the ground floor of House No,42-E and in the upper storey he, his family members, Mst. Hameedan his aunt and sister are living. His maternal-uncle was issueless and was living alone. He served meal to his uncle on 9:5-1998 at 9-00 a.m. He alongwith Abdul Karim, Driver of Syed Javaid Hussain Shah went to serve breakfast and saw Muhammad Riaz, Naseer Ahmad and Rasheed accused sitting with him in his room. Later on at 1-30 p.m. When he went to serve meal to Syed Javaid Hussain Shah still the aforesaid accused were sitting with him. Meanwhile, Ilyas Hussain Shah arrived there to meet Syed Javaid Hussain Shah who was already well- acquainted with the accused persons. Complainant, Ilyas Hussain Shah stayed there for about 45 minutes and in their presence Riaz Ahmad accused demanded Rs,40,000 from deceased saying that it was due to him that a case against him, his brother and father had been registered at Police Station Qaboola and they were facing the trial. They exchanged hot, words. Riaz Ahmad was saying to Syed Javaid Hussain Shah that he had promised to pay him Rs,50,000 for forcible possession of sugar cane crop and he had only paid Rs,10,000 on which hot words were exchanged between them. Meanwhile, complainant and Ilyas Shah went out. Again complainant at about 8/9 p.m. Went to serve dinner to deceased, the door of the inner portion was found locked from inside, the complainant thought that perhaps his maternal-uncle had gone out with someone. On .10-5-1998, till 7-00 p.m. When his maternal-uncle did not return, he suspected that something had gone wrong with Syed Javaid Hussain Shah on which he called his neighbour Rana Abdul Rab, Mian Muhammad Yousaf Sukhera and Muhammad Farooq and informed them about' this suspicion. In the presence of said persons, he broke the lock of the -room, entered in the house, found his maternal-uncle lying dead in the Tub of bathroom with worn clothes and the shower of the bathroom was running. He found bruises around the neck of the deceased. He also observed abrasion on the front of the neck and upper chest of the deceased.' Clotted blood was present in both nostrils... Abrasion was also found on the testes of the deceased. Household articles were scattered in the room. Drsws of the cupboard were found opened. Many people of the' locality, meanwhile, arrived at the spot. Complainant inspected the paraphernalia of his maternal-uncle and found one .12 bore gun (double barrel), 10 cartridges, one small bag, one .32 bore pistol one VCR one purse of brown colour containing Rs,4,000 identity card of the deceased and one brief- case of Ecolac Company missing. He left behind Rana Abdul Rab and Muhammad Yousaf to guard the dead body and lodged the report Exh.P.E. He further alleged that the accused had committed the murder of his uncle Syed Javaid Hussain Shah and looted his articles. The report after having been recorded was read over to him, which he signed as token of its 'correctness. Police during investigation found the accused guilty. The case was sent for trial. The accused denied the charge, and prosecution was called to produce the evidence.
3. Dr. Saghir Ahmad Chaudhary, S.M.O. Appeared as P.W.1 and 'deposed that on 11-5-1998, he conducted the post-mortem examination on the dead body of Syed Javaid Hussain Shah and made the following_ observations:-- "It was a dead body of aged man lying on the post-mortem table, wearing blood-stained white Shalwar, shirt and vest. Eyes were open, eyeball protuted, mouth semi closed. Post-mortem staining and rigor mortis present. Following injuries were noted:--
(1) A bruise of 1-1/2 c.m: while 1/4 c.m. Deep all around the upper part of the neck except 4 c.m. On the back of neck.
(2) An abrasion of 8 c.m. x 8 c.m. Skin deep on the front of neck and upper chest.
(3) An abrasion of 5 c.m. x 4 c.m. Skin deep on the right side of the neck.
(4) An abrasion of 3 c.m. x 2 c.m. On the left elbow joint.
(5) An abrasion of 4 c.m. x 4 c.m. On the testes.
(6) Clotted blood in both nostrils.
' In the dissection of neck hyoid bone was fractured, brain congested. Other were normal.
' Thorax, laryns, tracheae, right and left lungs were congested, 'right side of the heart was full of dark blood, and left side was empty. No other abnormality was detected.
' On dissection of abdomen, digested food and juices were found present in the stomach, digested food was present in small intestine. Feacal matter was present in large intestine. Mid quantity of urine was present in bladder. Injury on the organs of generation was already mentioned. Other all were normal. Hyoid bone was fractured, as already mentioned.
' According to P.W.1 he after going through the post-mortem examination was of the opinion that death had occurred due to the blockage of airway leading to asphyxia leading to death. Death occurred due to strangulation (homicidal) injuries were antimortem. Probable time between injuries and death was within 10 minutes while between death and post-mortems was within 2 days. After conducting the autopsy he handed over the dead body, last-worn clothes of the deceased and police papers and post-mortem report to the police. Exh.P.A. Was the correct carbon copy of the post-mortem report which was in his hand, and bore his signature. Exh.P.A./1 and Exh.P.A./2 were the diagram showing the location of the injuries. Exh.P.B. Was the inquest report which bore his signature, and Exh.P.C. Was the injury statement, which also bore his signature.
Exh.P.C./1 was the application for postmortem examination, which also bore his signature.
4. P.W.2 Farooq Ahmad Bhatti under the direction of the police and pointation of the P. Ws. Prepared site plan Exh.P.D. Copies of which are Exh.P.D./1 and Exh.P.D./2.
' Syed Waseem Akbar Shah alias Moon Shah complainant is P.W.3. He reiterated the contents of his complaint Exh.P.E. He further deposed that he joined the investigation of case and produced broken lock P.1 before the Investigating Officer, who took the same into possession vide recovery memo.
Exh.P.F. He produced licence No,1667/Saddar P.2 in the name of Syed Javaid Hussain Shah deceased of .32 bore pistol and another licence No,58 (P.5) of the gun belonging to deceased which were taken into possession vide recovery memo. Exh.P.G. On 22-5-1998. He alongwith Syed Hadi Hassan Shah identified the stolen articles at police station recovered from the accused.
6. P.W.4 Abdul Karim was the driver of deceased. He deposed that on 9-5-1998, at about 9-00 a.m.
He went to the house of Syed Javaid Hussain Shah to inquire about the daily program. In the meanwhile, Syed Waseem Akbar ,met him who had brought breakfast for Syed Javaid Hussain Shah. Both went to the residential room of the deceased, where they found three persons namely Riaz Ahmad, Naseer and Rasheed accused sitting with the deceased. He inquired from the deceased for his program but was told that he had nb program to go anywhere that day.
Complainant placed the breakfast there and they both went away. He further deposed that deceased forcibly took the possession of the land belonging to Abdul Rehman Kumhar situated in Chak No,17/KB through Riaz Ahmad, Naseer and Rasheed accused and in lieu of that he had promised to pay them Rs,50,000 and he had only paid them Rs,10,000 and the remaining consideration was unpaid. In his presence Riaz accused demanded from Syed JaVaid Hussain Shah remaining amount of Rs,40,000 but he did not pay, the same on which many times hot words were exchanged between them. Accused murdered Syed Javaid Hussain Shah and looted his articles i,e, .12 bore gun (D.B.) pistol .32 bore VCR suitcase and purse. This witness joined the investigation and on 11-5-1998, identified the dead body before the Medical Officer at the time of autopsy and in his presence Arshad Pervaiz Constable handed over last-worn clothes of deceased comprising of one shirt P.4, vest P.5 and Shalwar P.6, all stained. With blood to the Investigating Officer, who took them into possession vide recovery memo. Exh.P.H. Signed by him, Ilyas Shah and Arshad Parvaiz.
8. Arshad Pervaiz is P.W.5, stated in line P.W.4, with regard to the recoveries of the clothes of deceased through recovery memo. Exh.P.H.
9. P.W.6 Muhammad Yousaf deposed that about 10/11 months ago at 7-00 p.m. He alongwith Rana Abdul Rab and Muhammad Farooq were sitting out of the house of Rana Abdul Rab, Waseem Akbar complainant called them and told that on 9-5-1998, at about 8/9 p.m. When he went to serve meal to his maternal-uncle Syed Javaid Hussain Shah deceased there he found the door of inner portion of the house locked, whereas the door of the Baithak was found locked from outside.
He suspeeted that something had gone wrong with his'. Maternal-uncle. He requested them to join him, as he wanted to break open the lock of the room in their presence. He alongwith Muhammad Farooq and Rana Abdul Rab 'accompanied the complainant in the presence of aforesaid three persons Waseem Akbar broke the lock of the Baithak, entered the room, where they witnessed Syed Javaid Hussain Shah lying dead in the Tub of the Bathroom with his worn clothes. The shower of the Bathroom was also running. They noticed bruise on the upper portion of neck, front and back portion of the neck of the deceased and abrasion was found on the chest of the deceased. Clotted blood was also present within the nostrils. An abrasion was found on the testes of the deceased.
Household articles were found scattered in the room while the drawers of the cupboard were found opened. In the meanwhile many respectables of the, locality arrived there. In their presence complainant inspected the house hold articles of his maternal-uncle and found one .12 bore (DB) _gun, 10 cartridges, small bag, .32 bore pistol, one VCR, one purse of brown Colour said to contain Rs,4,000 and identity card of the deceased one brief case, belonging to the deceased, missing.
Wasim Akbar Shah thereafter lodged the report in police station.
10. Muhammad Farooq P.W.7, who was present alongwith P.W.6 made a similar state-ment. He also deposed that on 21-51998, he joined the investigation of case. Muhammad Riaz while in police custody led to the recovery of .12 bore gun (DB) P.7, from, iron box lying in his house and also got recovered 10 live cartridges P.8/1-10, which were taken into possession vide recovery memo. Exh.P.1.
Naseer Ahmad accused got recovered pistol .30 bore P.9 alongwith 25 live bullets P.10/1-25 from an iron box, which was lying in a room of his house. The Investigating Officer took the same into possession vide recovery memo. Exh.P.J. He also got recovered blood-stained Safa P.11 from a pitcher lying in the store of his residential house, which was taken into possession vide recovery memo. Exh.P.K. Rasheed accused in police custody got recovered VCR P.12, brief case P.13 and one purse P.14 containing Rs,4,000 P.15 and identity card of Syed Javaid Hussain Shah deceased P.16 from his rersidential house, which were taken into possession vide .Recovery memo. Exh.P.L. P.W.7 and Ilyas (not produced) attested the aforesaid recovery memos. "
11. Ghulam Farooq, P.W.8 deposed that on 14-5-1998, he was sitting at the Dera of Hassan Sarfraz at 9-00 a.m. With him. Riaz accused came there and deposed before them that on 9-5-1998, oh - receipt of a telephonic message of Syed Javaid Hussain Shah deceased he alongwith Rasheed and Naseer reached there. Riaz accused deposed before them that he alongwith Rasheed and Naseer had illegally occupied the sugarcane crop of Abdul Rehman on asking of Syed Javaid Hussain Shah and for that a consideration of Rs,50,000 was settled out of which he paid Rs,10,000 in advance. He further stated that an altercation took place between him and -other accused with Syed Javaid Hussain Shah. In the meanwhile, Abdul Karim and Waseem Akbar arrived there. He further deposed that in the presence of Waseem Akbar and Abdul Karim they demanded Rs,40,000 from deceased. Syed Javaid Hussain Shah asked that there was one Allah Ditta Qasaie and his wheat crop was proposed for illegal occupation because Allah Ditta Qasaie had on previous Eid insulted Javed , Shah. Accused further stated before the P.W. That as Abdul Karim, Driver, and Waseem Akbar had brought lunch meal, in the meanwhile, one Ilyas Shah also arrived there. Javed Shah refused to make payment of Rs,40,000 to the accused, therefore, they decided to put him to death because he was a rich man and alongwith aforesaid amount more money was expected to be recovered from his residence. The program was executed in the manner that Naseer accused wrapped _a Safa around the neck of Javed Shah, whereas Rasheed accused caught hold of, his testes and Riaz accused sat on his chest. Deceased beseeched a lot to spare him but the accused did not pay heed to his request and ultimately he was done to death within 15 minutes. His house was searched, wherefrom they took 'a VCR a pistol, a gun, purse and a brief case alongwith Rs,4,000. He further added that syed Javaid Hussain Shah was thrown in a Tub and shower was made to flow with water so that none could be attracted to the spot. He further deposed that Riaz accused requested him that Hassan Sarfraz being his friend and also neighbour may manage for forgiveness and pardon through Hassan Sarfraz Shah and Waseem Akbar the nephew of the deceased Riaz accused added that Naseer and Rasheed had also to come but for the reason best known to them they had not come, therefore, he himself requested for pardon for himself and on behalf of co-accused, Hassan Sarfraz regretted Riaz accused and informed him that he cannot help him. Riaz went away at about 10-30 a.m. Naseer accused arrived in his presence alongwith Hassan Sarfraz narrated the same story word by word as stated by Riaz accused. After one hour, while P.W.8 was sitting with Has'san Sarfraz Shah at his Dera, Rasheed accused came and narrated the same story as disclosed by Riaz and Naseer and requested that they should manage pardon from the relatives of the deceased. Both these P.Ws. Of extra-judicial confession went to police station and made statement before the Investigating Officer that the accused had approached them and confessed their guilt.
12. Hassan Sarfraz Shah P.W.9 corroborated the statement of P.W.8 Ghulam Farooq. He deposed that all the three accused appeared before them and confessed their guilt turn by turn and sought pardon and requested that they should manage their forgiveness from the legal heirs of the deceased.
13. Muhammad Ghani Khan the Investigating Officer P.W.10 deposed about the recoveries, recording of statements of P.Ws. Under section 161, Cr.P.C.
14. Learred D.D.A. Gave up Rana Abdul Rab, Syed Hadi Hassan, Ilyas Hussain Shah and Muhammad Jahangir, Constable and tendered in evidence report of Chemical Examiner as Exh.P.N.. And of the Serologist Exh.P.O. And closed the case for the prosecution.
15. Accused were examined under section 342, Cr.P.C. They denied the allegations and stated that they had been involved in a false case by the complainant to get the valuable property of the deceased. They further stated that witnesses were under the influence of .The complainant and had deposed against them falsely due to relationship and friendship with , Waseem Akbar complainant. Accused produced in their defence Liaqat Ali Moharrir/H.C., Police Station City Arif gala, who deposed that he had brought Roznamcha Waqiati of the police station pertaining to 14- 5-1998 and 15-5-1998. He submitted a certified copy Rupt No,28 dated 14-5-1998 as Exh.D.A. Rupt No,20 dated 15-5-1998. Exh.D.B. According to which Muhammad Ghani, S.H.O. Left the police station on 14-5-1998 vide Rupt No,28 at 10-30 p.m., thereafter, he returned to the police station on 15-5- 1998 at about 6-10 p.m. Vide Rupt No,20 of said date.
16. Learned trial. Judge relied upon the prosecution evidence convicted the accused and sentenced them in the terms indicated above.
17. Appellants challenged their conviction through the instant joint appeal.
18. Learned counsel for the appellants contends that the prosecution case is based on circumstantial evidence. It is an unseen occurrence and the accused have been implicated due to suspicion. Evidence of extra-judicial confession of P.W.8 and P.W.9 is of weak type and cannot be relied upon, unless it is corroborated by independent sources. The complainant himself got rid of the deceased to grab his property and falsely involved them in the case. The recoveries have been planted. The motive is far-fetched. Evidence of P.W.3_ and P.W.4 relating to last seen of deceased with the accused is highly unprobable. Medical evidence does not corroborate the evidence of extra-judicial confession. The prosecution case is highly doubtful and as such conviction of the appellants is not maintainable.
19. Learned counsel for the State has supported the impugned judgment.
20. I have heard the learned counsel for the appellants and State at length and gone through the evidence with their able assistance.
21. , Appellants are specifically named in the F.I.R. By the complainant P.W.3, who had seen them with the deceased on 9-5-1998 at 9-00 a.m. Abdul Karim P.W.4 Driver of the deceased was also present at that time. Complainant is residing in the upper storey of the same house and when he came to serve breakfast to his maternal-uncle, all the three accused were sitting with Syed Javaid Hussain Shah in his room. Later on at 1-30 p.m., when he came to serve meal to his maternal-uncle even at that time the accused were sitting with him. In his presence Riaz accused demanded Rs,40,000 from Syed Javaid Hussain Shah, consideration for getting possession of land from Abdul Rehman. The accused Riaz was facing_ a criminal trial in connection with aforesaid dispossession.
He asked hilt to pay the money for forcible possession of sugar cane crop as only Rs,10,000 were paid out of settled amount of Rs,50,000 whereupon an altercation took place between them in presence of Ilyas Shah and the complainant.. Again when P.W.3 came to serve dinner to deceased on the same day, door of inner portion was found locked from inside. He presumed that his uncle has gone with some body but on next day i,e, 10-5-1998 till 7-00 p.m. When deceased did not return, he suspected that something had gone wrong with deceased, he called his neighbour. Rana Abdul Rab, Mian Yousaf Sukhaira and Muhammad Farooq and informed them about his suspicion.
In the presence of aforesaid persons he broke the lock of the drawing room entered the house and found deceased lying in Tub of bathroom with worn clothes. The shower of the bathroom was running. He found injuries on the deceased and luggage scattered in the room while the drawers of the cupboard were found opened. He mentioned the details of the missing articles of the deceased which were subsequently recovered at the instance of the appellants. Evidence of P.W.3 and P.W.4 show that the accused were found sitting with deceased on 9-5-1998 at early hours and even at 1- 30 p.m. When lunch was served by complainant to the deceased. Evidence of P.W:3 is corroborated by P.W.4, .Driver of the deceased. Boili of them are natural witnesses and their presence at the spot and meeting with the deceased in the company of the accused at the specified time is established. Their evidence is corroborated by the recovery of .12 bore gun. (DB) 10 cartridges, one small bag, one .32 bore pistol, one VCR, one purse of brown colour containing Rs,4,000 and identity card of Syed Javaid Hussain Shah deceased, .Brief-case of Ecolac company, effected from the accused which were found missing ;when the complainant entered into the house and checked the belongings of the deceased in report which was immediately lodged to the police and aforesaid accused are nominated.
22. Accused Riaz made extra-judicial confession on 14-5-1998 before Ghulam Farooq and Hassan Sarfrat at .9-00 a.m. Hassan Sarfraz was friendof deceased, therefore, accused asked him-to manage his pardon. He had given details of the occurrence in his extra-judicial confession. Both these witnesses have deposed about the details of 'the confession of the accused' including the altercation, which took place between the accused and the deceased. He also admitted that when the altercation was going on Abdul Karim and Waseem Akbar P.Ws. Also reached at the spot. The accused demanded the amount of Rs,40,000 from the deceased in the presence of P.W..3 and P.W-.4. He further stated that at 1-30 p.m. When lunch of deceased was brought by P.W.3 and P.W.4 one Ilyas Shah given up P.W. Was also there. They killed the deceased to recover Rs,40,000 and more money from his residence as he was a rich person. Naseer accused wrapped a Safa around the neck of deceased, Rasheed caught hold of his testes and Riaz sat on his chest. He requested them to spare him but the accused in a cruel manner put him to death, took away his articles mentioned in preceding .Paras. Of the judgment. They made extra-judicial confession on 14_75- 1998 before P.W.8 and P.W.9 seeking pardon through their influence as they had already been nominated in the F.I.R. Exh.P.E. The extra-judicial confession is supported by recoveries effected from the accused, medical evidence and motive. Extrajudicial confession itself is a weak evidence but same having been corroborated by other independent pieces of evidence can safely be _ relied upon. According to- the medical evidence deceased died due to blockage of airway leading to asphyxia and due to strangulation. The time between the injuries and death was 10 minutes while between the death and post-inortem examination two days. Post-mortem of deceased was conducted on 11-5-1998, which corresponds with the time of occurrence. Injuries suffered by deceased qua the part of each appellant specified in extra-judicial confession is corroborated by the injuries on neck, chest and testes of the deceased. Similarly, the recoveries effected from the accused show that Riaz accused led to recovery of .12 bore gun (DB) P.7 and 10, live cartridges P.8/1-10 of .12 bore gun of the deceased from his house and taken into possession vide recovery memo. Exh.P.I. Naseer Ahmad accused while in police custody got recovered .30 bore pistol P.9 alongwith 25 live bullets P.10/1-25 of the deceased from his house, which were taken into possession vide recovery memo. Exh.P.J. He also got recovered blood-stained Safa P.11 lying in store of his house taken into possession vide recovery memo. Exh.P.K. Rasheed Ahmad accused while in police custody got recovered VCR, one purse P.14 containing. Rs,4,000 P.15- and identity card P.16 belonging to deceased from his house, which were taken into possession vide recovery memo.
Exh.P.L. These recoveries are proved by Farooq P,W.7 and Investigating Officer.
23. The contention of the appellants that the S.H.O. Was not at police station as per Rupt No,28, dated 14-5-1998 (Exh.D.A) and Rupt No,20 dated 15-5-1998 (Exh.D.B.) is not a conclusive proof of his absence from the police station as no such question was put to him during cross-examination. The factum of recoveries and recording of, extra-judicial confession cannot be disbelieved on the basis of aforesaid contention. The missing articles of deceased were specifically mentioned in the F.I.R.
Which were subsequently recovered after arrest of the accused on their pointation in presence of P.W.7 Farooq and the Investigating Officer. The aforesaid Rupts were not put to the Investigating Officer during cross-examination to seek his explanation whether he was present in police station at the relevant time or not. The prosecution successfully proved guilt of the accused by last seen evidence of. P.W.3 and P.W.4, medical evidence of P.W.1 Dr. Saghir Ahmad Chaudhary, recovery witness P.W.7 and extra-judicial confession made before P.W.8 and P.W.9 and the evidence of motive by complainant P.W.3 and Abdul Karim P.W.4.
24. The defence of the appellants that they have been falsely implicated by the complainant due to their enmity with him, in the absence of any material on record cannot be believed. Deceased was to pay Rs,40,000 to accused and same having not been paid they had altercation with him and ultimately done to death to recover the aforesaid amount in addition to recover more money from his house. No direct evidence of robbery was available, therefore, learned trial Judge for valid reason, acquitted them from the charge under section 392, P.P.C., however, as far as the offences under sections 302/34/411, P.P.C. Are concerned, prosecution has produced reliable evidence to substantiate charge against the appellants.
25. In the light of above discussion, the appeal has no merit and is dismissed. Benefit of section 382-B, Cr.P.C. Is given to the appellant.