1. MUHAMMAD NAWAZ ABBASI, J.- The appellant namely Rasab Khan son of Sardar Khan aged 45 years was sent-up to face the trial for the charge under Section 377/302, PPC read with Sections 6 and 7 of Anti-Terrorism Act, 1997 in a case registered against him vide F.I.R. No. 102, dated 4.6.1998 at Police Station Pind Dadan Khan, District Jhelum, before the Special Court established under Anti- Terrorism Act, 1997 for Rawalpindi Division and Islamabad Capital Territory.
2. The learned trial Judge having found the appellant guilty of the charge convicted and sentenced him as under:-
(a) Under Section 337, PPC:- Imprisonment for life on two counts for committing sodomy with minors namely Ghulam Haider and Wazir Ali.
(b) Under Section 302(b), PPC:- Sentence to death on two counts for committing murder of minors namely Ghulam Haider and Wazir Ali.
3. The appellant was however acquitted from the charge under Sections 6 and 7 of Anti-Terrorism Act, 1997.
4. The learned trial Judge has transmitted the original record to this Court as per equipment of Section 25 of Anti-Terrorism Act/ 1997 for confirmation of death sentence, whereas the appellant has filed Criminal Appeal No. 201-T/1999 challenging his conviction and sentence, Aftab Haider complainant of the case has filed Criminal Revision No. 93/1999 for awarding conviction and sentence to the appellant under Section 1 2 of the Offence of Zina (Enforcement of Hudood)
5. Ordinance, 1979 read with Section 363, PPC. The criminal appeal and criminal revision are proposed to dispose of together through this single judgment.
6. The case was registered on the basis of statement Ex.PB of Aftab Haider father of Ghulam Haider vide F.I.R. Ex.PB/1 under Section 302/377, PPC read with Section 1 2 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Sections 6 and 7 of Anti-Terrorism Act, 1997 at Police Station Pind Dadan Khan, District Jhelum. The brief facts of the prosecution case are that on 2.6.1998, the complainant along with Ghulam Haider his minor son of the age of five years while proceedings to Haranpur Bazar when reached near the shop of Hasnat Ahmad, Wazir Ali a minor by of the age of about five years met Ghulam Haider and they both started playing together whereas complainant proceedings towards the Bazar. The complainant while returning from Bazar found that the boys were not present. The complainant on reaching at home inquired from his wife about his son, who replied that Ghulam Haider haying left the house with him did not turn up. The complainant then went to the house of Wazir Ali to inquire about his, son and camp to know that Wazir Ali was also missing from the house. The complainant then again went to the place, where he left the boys playing together to trace out them but remained unsuccessful. On 4.6.1998, the complainant on receipt of information that dead-body of Wazir Ali. Was lying in the field of Raja Riaz, reached there and. Found the dead-body of Wazir Ali lying at a BANNA of the field of Muhammad Riaz. The complainant and his companions started searching for Ghulam Haider and found that dead-body of Ghulam Haider1 was lying at some distance in the east from the dead- body of Wazir Ali. Rasab Khan appellant was suspected to have committed the offence and was arrested. The appellant during the investigation led to the recovery of two pairs of sleepers of Ghulam Haider and Wazir Ali deceased and also pointed out the place where he kept two minors in confinement and committed sodomy with them. The appellant also pointed out the places where he threw the dead-bodies of minor after committing their murder.
7. The Investigating Officer took into possession sleepers vide memo. Ex.PC and also prepared the memo, of pointation of the places of murder and the recovery of dead-bodies. The Investigating Officer having recorded the statement of witnesses submitted the challan.
8. The prosecution in support of the charge has produced the following witnesses: PW.1 Muhammad Aslam Patwari Halqa prepared site plans of the place of occurrence.
9. PW.2 Aftab Haider the first informant has deposed in confirmation of his statement Ex.PB.
10. PW-3 Muhammad Afzal and PW-4 Fayyaz Hussain are the Witnesses of extra-judicial confession.
11. They deposed that the appellant while disclosing his guilt before them on 5.6.1 998 in the house of Muhammad Afzal stated that on 2.6.1998, he having found Ghulam Haider and Wazir All playing near the shop of. Hasnat Ahmad, black-smith enticed both the minors to an abundant house owned by him in the village Haranpur and committed sodomy with them turn by turn. The appellant Further confessed that the minors were kept by him in the house in chains and during their confinement, he committed sodomy with them one after the other and later done them to death through strangulation. The accused sought help of Muhammad Afzal Co- Ordinator of Social Welfare Institution, District Jhelum and Secretary Zakat Committee Haranpur for pardon in presence of Fayyaz Hussain.
12. PW.5 Dr. Fakhar-uz-Zaman, Medical Officer, Tehsil Headquarter Hospital, Pind Dadan Khan medically examined Rasab Khan on 8.6.1998 and found the following injuries on his person:-
(1) An abrasion 1 c.m. x 1.5 c.m. Over anterolateral aspect of right side of chest.
(2) An abrasion V2 c.m. x V2 c.m. Over the posterior aspect of the right elbow.
(3) An abrasion V2 c.m. x V2 c.m. Over the posterior aspect of the left elbow.
(4) Abrasion V2 c.m. x V2 c.m. Over the anterior aspect of right knee joint.
13. The Doctor has opined that there was nothing to suggest that the accused was incapable of doing sexual intercourse.
14. PW-6 Dr. Ikhlaq Hussain Shah, Medical Officer conducted postmortem examination on the dead- body of Ghulam Haider and Wazir Ali on 4.6.1998 and has given the following opinion:- GHULAM HAIDER "In my opinion sodomy act has been carried out with the child and later on was killed by throating.
15. Death took place due to applying pressure on the throat (throating case). Time between the injury and death was within two minutes. The time between the death and postmortem was more than 24 hours. At the end completing the post-mortem examination well stitched dead-body along with post-mortem report and Police documents his last worn clothes, one phial containing rectal swabs completed sealed and signed were handed to Sikandar Hayat Constable on the same date. My above-mentioned post-mortem report is Ex.PF is in my hand and bears my signatures and its pictorial sketch is Ex.PG, which is in my hand and bears my signatures."
16. "In my opinion sodomy act has been carried out with child. Later on he was killed by throttling applying pressure on the throat.
17. Time between the death and injury was within a few minutes between death and post-mortem examination more then 24 hours.
18. After completing the post-mortem examination a well stitched dead-body, post-mortem report, police documents, his last worn clothes, one phial containing ratal swabs completely sealed and signed were handed over to Ghulam Asghar Constable Police Station Pind Dadan Khan, District Jhelum. My post-mortem report, is Ex.PH and its pictorial sketch is Ex.PI both are in my hand writing and bears my signatures."
19. The appellant in presence of Anees Ahmad (PW.7) pointed out the place of abduction of the minors and the house, where he kept them in confinement and after committing sodomy with the boys killed them. The accused also pointed out the places, where he threw the dead-bodies and the memos. Ex.PJ and Ex.P.K, of abovesaid places were accordingly prepared by the Investigating Officer.
20. PW.8 Muhammad Rafiq found the accused perturbed before his arrest and inquired from him about his worry but the, accused kept silent.
21. PW.9 Muhammad Ashraf, Head Constable/Moharrar of Police Station on receipt of complaint Ex.PB recorded the formal F.I.R. Ex.PB/1 at Police Station and kept two, sealed parcels in Mall Khana till 10.6.1998 when he handed over the same to Liaquat Ali, Constable (PW.10) for onward transmission to the Office Chemical Examiner. Liaquat Ali in confirmation of the statement of Muhammad Ashraf has stated that he delivered the parcels on 12.6.1998 in the Office of Chemical Examiner at Rawalpindi.
22. PW-12 Ghulam Asghar and Sikandar Hayat (PW.11) escorted the dead-bodies of the minors to Tehsil Headquarter Hospital for postmortem examination and delivered the last worn cloths of the dead to the Investigating Officer after post mortem examination.
23. PW.13 Muhammad Hussain, Sub-Inspector having recorded the complaint Ex. P.8 of Aftab Haider sent the same for registration of the case to the Police Station, conducted the investigation and submitted the challan.
24. The accused in their statement under Section 342, Cr.P.C, having denied the charge pleaded innocence and false implication in the case due to enmity.
25. Muhammad Bashir, Head Constable/Moharrar of Police Station Pind Dadan Khan was examined as CW.1 under Section 540, Cr.P.C, and while producing the report Ex.PU stated that the same was prepared and signed by him and that according to the said report, the accused was convicted and sentenced for a term of three years Rigorous Imprisonment with a fine of Rs.1000/- under Section 377, PPC in a case registered against him at Police Station Pind Dadan Khan. The learned trial Judge recorded the supplementary statement of the accused -under Section 342, Cr.P.C., in which, the report of Chemical Examiner and that of Serologist and conviction slip was put to the accused.- The conviction and sentence awarded to the appellant under Section 377, PPC was however set aside in appeal. The accused also made statement under Section 340(2), Cr.P.C, on oath and stated that he was falsely implicated in the case due to enmity and political rivalry.
26. The learned counsel for the appellant has contended that the dead-bodies of the minors were found lying in the field which were not recovered at the instance of the appellant and that the recovery of sleepers of the minors from the house of appellant was not an incriminating evidence as there was no specific mark of identification of the sleepers therefore the recovery of the same could easily be planted. The learned counsel next contended that the evidence of pointing out the place of dead-bodies and deserted house where the complainant allegedly while keeping the minors in confinement committed sodomy with them and later killed them .Was of no use to the prosecution as before the arrest of the accused, the dead-bodies were recovered. The learned counsel thus submitted that sole evidence of extra judicial confession would not be sufficient to establish the charge of murder. The learned counsel argued that the witnesses of extra judicial confession were neither related to the complainant and the deceased nor they were in a position to extend any help to the accused, therefore, it would, not be understandable that why the appellant would approach them and confess his guilt. The learned counsel argued that in such circumstances, the manipulation of evidence of extra judicial confession is common practice of Police as such evidence can easily be arranged. The learned counsel lastly argued that appellant was arrested on suspect due to his earlier involvement in a similar case under Section 377, PPC.
27. The learned counsel for the State, on the other hand, has contended that the witnesses were not related to either party and also were not inimical to the appellant and were entirely independent, therefore, there would be no reason to exclude their statement from consideration.
28. We have heard the learned counsel for the parties at length and have gone through the evidence minutely with their assistance, It is an un-seen occurrence and two minor boys of-the aged of 5/6 years were victims of the occurrence. The culprit after committing the act of sodomy with the minor boys done them to death. The occurrence as per report lodged by the complainant had taken place on 2.6.1998, whereas the dead-bodies were recovered on 4.6.1998 from the field of Muhammad Riaz at a shoa distance from the deserted house, where the minors were kept in confinement and Subjected to act of sodomy. The accused confessed his guilt on 5.6.1998 before Muhammad Afzal (PW-3) and Fayyaz Hussain (PW.4) in the house of Muhammad Afzal and disclosed the occurrence in detail. . Muhammad Afzal is Co- Ordinator of Social Welfare Institution, District Jhelum and Secretary Zakat Committee Haranpur. The accused was arrested on 7.6.1998.
29. The Doctor, who conducted the post-mortem examination on dead-bodies of two minors on 4.6.1998 opined that the death occurred shortly after sustaining the injuries, and the duration between death and post-mortem examination was more than 20 hours. According to the medical evidence sodomy was committed with the boys and they met death due to throttling with pressure on the throat. The medical evidence would reveal that the death of the minors was caused somewhere during the night in between 2/3.6.1998 and the post-mortem examination was conducted on the dead-bodies on 4.6.1998. The appellant within two days after the alleged occurrence confessed his guilt before the above-named witness, who immediately brought it to the notice of Investigating Officer and then after two days, the accused was arrested. There is nothing on record to suggest that the accused was arrested before the recording of the statement of the witnesses under Section 161, Cr.P.C, containing the extra judicial confession of the appellant by the Investigating Officer. Muhammad Afzal (PW.3) being a social worker and Member of Zakat Committee would deem to be a respectable person in the area and keeping in view his social status, it was natural for the accused to approach him to seek his help and Muhammad Fayyaz Hussain was present at the house of Muhammad Afzal at the time when the accused confessed his guilt. The witnesses had neither any malice or grudge against the appellant nor they would be interested in his false implication and prosecution in an un-seen occurrence. The witnesses' were also not related to the complainant and, therefore, their evidence relating to extra judicial confession of the appellant would deem to be entirely independent and confidence inspiring. The learned counsel for the appellant has contended that the witnesses being not in a position to extend any help to the appellant, he was hot supposed to make such a confession before them and, therefore, the evidence relating to the extra judicial confession of the appellant was not confidence inspiring, It is not necessary for an accused to confess the gui-It only for the purposes of seeking help rather some times a guilty person with a view to reduce the burden of his guilt is compelled by his conscious to disclose the guilt matter to a person of his confidence and in the attending circumstances, the appellant considered Muhammad Afzal a proper person to be told the occurrence and confess his guilt, thus the contention of the learned counsel that the confession is made only for the consideration of help is not always true. Be that as it may, in the present case, the witnesses were deemed to be in a position to be helpful to the accused and we having made a detailed scrutiny of the evidence of extra judicial confession find that the same was confidence inspiring and could safely be relied upon to sustain the conviction despite being returned. The statement made by Mst. Saira and Ghulam Haider was seeking full corroboration from the medical evidence to establish that sodomy was committed with the minors and they were killed by throttling and thus without any importance to the evidence of recovery of sleepers and the pointation of the place of dead-bodies, the evidence of extra judicial confession being corroborative by the medical evidence would be sufficient to sustain the conviction. We, therefore, being of the view that no exception can be taken to the findings of guilt of the appellant arrived at by the learned trial Judge, maintained the conviction awarded to the appellant under Section 302, PPO read with Section 377, PPC. While taking into consideration the question of sentence, we find that the appellant with a view to fulfill his un-natural lust after committing sodomy with innocent minor boys done them to death brutally. We, therefore, do not find any mitigation in favour of the appellant, while the sentence awarded to the appellant on all charges by the learned trial Judge, dismissed this appeal. The criminal revision stands disposed of accordingly.