' MUHAMMAD FARRUKH MAHMUD, J.---Rashid alias Bakho son of Pathana through Criminal Appeal No,40 of 1999 (instant appeal) and. Zafar Hussain alongwith Muhammad Ajmal alias Kala through Criminal Appeal No,41 of,1999 have challenged the judgment, dated 3-9-1999 rendered by Ch. Asad Raza, Judge, Special Court Noil (Anti-Terrorism), Multan, in case F.I.R. No,2 of 1999 registered at Saddar Multan, on 5-1-1999 for an offence under section 365-A, P.P.C. Read with sections 302/201/34, P.P.C. Subsequently added, whereby he convicted and sentenced the appellants as under:---
(a) Under section 302(b), P.P.C.
' Death to each of the appellants. An amount of Rs,3,00,000 was also imposed upon the appellants in equal as of compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased, in default whereof the appellants were to suffer simple imprisonment for six months each.
(b) Under section 365-A, P.P.C.
' Death to each of the appellants with forfeiture of the properties of each of the appellants.
(c) Under section 201, P.P.C.
' Two years' R.I. To each with a fine of Rs,10,000 to be paid by each of the appellants, in default whereof to further suffer six months' S.I. Each.
' The benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
2. The trial Court also sent Murder Reference No,1 of 1999 for confirmation of death sentence. We propose to dispose of the murder reference and the afore-referred appeals with this single judgment.
3. The formal F.I.R. No,2 of 1999, Exh.PG/1 was registered at Police Statior Saddar Multan on 5-1-1999 by Aftab Ahmac; Head Constable-Muharrar, who appeared as P.W.9, on the basis of a written complaint Exh.PG submitted by Ali Muhammad-complainant P.W.4, brother of the deceased Zahoor Ahmad, to Khizar Hayat, S.I./S.H.O. P.W.11, when at about 6-45 a.m. Latter was present at Pul Sikandari Nala Mouza Suraj Miani, District Multan.
4. The brief facts as given in the complaint Exh.PG are that the complainant was running a shop of property dealer near Tehsil Chowk and was resident of Chah Bairiwala Mouza Nawabpur. Zahoor Ahmad aged 22 years (deceased) younger brother of the complainant worked in Dastgir Shoes Factory situated at Nawab Road near Basti Khair Shah and used to return to his house after working hours. On 31-12-1998 said Zahoor Ahmad did not return to the house. The complainant started search for him and he came to know that Zahoor Ahmad had left the Factory after working hours but as he did not return to the house, the complainant continued search for him. On 3-1-1999 when the complainant opened his shop he received a letter Exh.PF, which was put in the envelope Exh.PE.
It was written in the said letter that the complainant was a rich man and his brother was in the custody of the terrorists, the complainant should reach the Head Suraj Miani in early hours of the morning alongwith Rs,5,00,000 and pay the same to a person who would be present there wearing green clothes and, thereafter, the brother of the complainant 'would reach his house. In response to the letter, the complainant alongwith his brother Muhammad Shafi.(not produced) went to the Head but no one met him. The complainant continued search and on 4-1-1999 Dost Muhammad son of Masri (not produced) informed him that on 31-12-1998, it was Thursday, he had seen Zahoor Ahmad in the company of Zafar Hussain, appellant, and one Muhammad Hanif at Pul Dabewala. It was further stated that Zahoor Ahmad was sitting on a cycle and was being taken towards Mouza Gadewala. The complainant contacted Zafar Hussain-appellant and Muhammad Hanif, who made divergent statements, which led to the suspicions that the letter was written by Zafar Hussain- appellant. Thereafter the complainant appeared before P. W.1 and submitted a written complaint Exh.PG in which it was also stated that the complainant was convinced that Zafar Hussain and Muhmmad Hanif had hidden Zahoor Ahmad at some secret place for ransom.
5. Zafar Hussain-appellant was arrested on 5-1-1999 and led to the recovery of the dead body of Zahoor Ahmad on the same day, which was buried two feet deep in Square No,63 kllla No,10 in the agricultural land of one Ahmad Bakhsh Mouza Binda Sindela. The same was taken into possession vide memo. Exh. PM by P.W.11 Khizar Hayat S.I./S.H.O. The memo. Was signed by Manzoor Ahmad Khan, Area Magistrate, who appeared as P.W.7 and Ali Muhammad complainant, who appeared as P.W.4 and also by one Muhammad Afzal, who was not produced. On the same date i,e, 5-1-1999 Zafar Hussain, appellant led to the recovery of one cotton mattress P-2 and one cot P-1 from the residential room of his house, which were taken into possession vide memo. Exh.P.H. And attested by Ali Muhammad P.W.4 and one Muhammad Afzal. On 13-1-1999 Zafar Hussain led to the recovery I, of cycle belonging to the deceased, which was, buried in a 15 feet deep sand pit in Square'r No,63 Killa No,9 Mouza Binda Sindela, which was taken into possession vide memo. Exh.P.J. Attested by Ali Muhammad P.W.4 and Muhammad Afzal.
6. Rashid alias Bakho, appellant was arrested on 14-1-1999. On 16-1-1999 he led to the recovery of a woollen shawl P-10 of the deceased and a Kassi P-11, which were taken into possession vide memo.
Exh.PL attested by Ali Muhammad P.W.4 and Muhammad Afzal.
7. Muhammad Ajmal alias Kala appellant was also arrested on 14-1-1999. He led to the recovery of Qmax wrist watch P-7, one ring P-8 and one pair of chappel P-9 belonging to the deceased from his house, which were taken into possession vide memo. Exh.PK attested by Ali Muhammad P.W.4 and Muhammad Afzal.
8. After the completion of the investigation all the appellants were sent up for trial and charge under sections 365-A/ 302/201, P.P.C. Read with section 34, P.P.C. Was framed against them. As they denied the charge, the trial commenced.
9. During trial the prosecution produced 11 witnesses in support of its case. P.W.4 Ali Muhammad appeared as complainant and also as a witness of recoveries. P.W.5 Mushtaq Ahmad and P.W.6 Ranjha furnished the evidence of last seen. P.W.7 Manzoor Ahmad Khan, Magistrate, furnished the evidence of recovery of the dead body at the pointation of the appellant Zafar Hussain. P.W.1 Dr. Muhammad Bakhsh Chawan proved his postmortem report Exh.PA. P.W.11 Khizar Hayat, S.I./S.H.O.
Stated about the registration of the case as well as investigation. The rest of the P.Ws. Were formal in nature.
10. After the completion of the trial, statements of the appellants were recorded Under section 342, Cr.P.C. Zafar Hussain, appellant, stated that he was innocent and in fact there was a dispute between the deceased and Muhammad Hanif, who was named as accused in the F.I.R. But subsequently discharged from the case, over an amount of Rs,1,000 which Muhammad Hanif has won from Zahoor Ahmad deceased during gambling. He further stated that Zahoor Ahmad deceased and he himself gave beating to Muhammad Hanif, who had threatend that he would teach a lesson to Zahoor Ahmad. It was further stated by him that Muhammad Hanif got his release after paying a hand amount to the complainant. He also stated that the deceased has illicit relation with the sister of Muhammad Hanif and it was Muhammad Hanif who had motive against the' deceased. Muhammad Ajmal alias Kala and Rashid alias Bakho simply stated that they were innocent. None of the appellants appeared as a witness in their defence and also did not adduce any defence evidence.
11. The learned counsel for the appellants has argued that there was a delay of five days in lodging the F.I.R.; that Rashid and Ajmal appellants were not named in the F.I.R.; that according to P.W.7 both Muhammad Hanif and Zafar Hussain had pointed out the place of recovery of dead body; that Dost Muhammad, who had informed the complainant, according to FAA., about the presence of the deceased in the company of Zafar Hussain and Muhammad Hanif, was not produced; that Mushtaq and Ranjah P.W.5 and P.W.6 respectively were not mentioned in the F.I.R.; that the alleged place of recovery i,e, the house of Zafar Hussain-appellant was occupied by other persons as well; that cotton mattress and cot allegedly recovered from the house of Zafar Hussain-appellant, were not stained with blood; that recoveries were not believable as none from the locality was associated during recovery proceedings; that the medical evidence did not support the prosecution case; that in any case the offence under section 365-A, P.P.C. Was not made out and that no incriminating evidence was available against Ajmal and Rashid appellants.
12. Conversely, the learned counsel appearing on behalf of the complainant has candidly conceded that the offence under section 365-A, P.P.C. Could not be proved by the prosecution beyond doubt. He, however, conceded that the case against Ajmal and Rashid appellants could also be not proved beyond doubt and section 201, P.P.C. Was not attracted in the circumstances of the case. He has very forcefully argued that the case against Zafar Hussain appellant is proved to the hilt through the evidence of last seen, recovery of dead body on his pointation, recovery of cot and mattress from his residential house, recovery of cycle of the deceased, which was buried deep in the ground and the medical evidence. He has placed reliance on the case of Abdus Samad v.
The State (PLD 1964 SC 167).
13. The learned counsel appearing on behalf of the State has adopted the line of arguments advanced by the learned counsel for the complainant.
14. We have heard the learned counsel for the parties and very minutely gone through the evidence, perused the relevant record and the impugned judgment. We have noticed that the learned counsel for the complainant has rightly conceded to the extent of Ajmal and Rashid, appellants, as the only evidence available against them was that of the recovery of the articles belonging to the deceased, which being of common nature could easily be procured. Zafar Hussain appellant had already been arrested on 5-1-1999 while Rashid and Ajmal appellants were arrested on 14-1-1999 i,e, nine days after the arrest of Zafar Hussain. It is most unlikely that the appellants kept the articles including Chappal of the deceased in their house to invite the gallon.
The mere recovery is otherwise not sufficient for conviction. They were not named in the F.I.R.
Although it was lodged after five days.
15. In these circumstances, we accept the appeals filed by Rashid and Ajmal, set aside, the impugned judgment to their extent and acquit them of all the charges. They would be released from Jail forthwith if not required in any other case. The murder reference to their extent is answered in negative.
16. As far as Zafar Hussain, appellant, is concerned, he was named in the F.I.R. By Ali Muhammad P.W. Who was subjected to very lengthy cross-examination but nothing could be brought on the file to show that this witness had any private grudge or annoyance against Zafar Hussain, appellant, so as to involve him in the case falsely. 'P.Ws. 5 and 6 Mushtaq Ahmad ar Ranjha respectively had furnished the evidence of last seen. According to them Zahoor Ahmad was seen in the company of Zafar Hussain and he was taken to the house of Zafar Hussain, appellant. These witnesses are related to the complainant party as well as to the appellants. They have come out with a straightforward testimony. No serious rift existed between these P.Ws. And Zafar Hussain, appellant, so as to involve the latter in a false case.
17. The learned counsel for Zafar Iqbal, appellant, has argued that the P.Ws. Had seen the deceased and the appellant at about 7-00 p.m. And it was that last night of December, 1998, therefore, P.Ws.
Were not in a position to identify them.
18. The learned counsel for the appellant has overlooked the fact that the P.W.5 was 'Hamzulf' of Zafar Hussain, appellant, while P.W.6 was 'Khalazad' of Zafar Hussain-appellant. Similarly both the P.Ws. Were also related with the deceased, therefore, in the circumstances the identification was not only possible but very plausible. In any case P.W.6 has stated that at the relevant time the electric bulb was on. He was not confronted with his statement under section 161, Cr.P.C. On this point at all.
19. As far as the delay in lodging the F.I.R. Is concerned, it was not a case of witnessed crime, as Zahoor Ahmad deceased was missing and the complainant had been searching for him, therefore, the delay in reporting the matter to the police would be of no consequence. It is a common practice that the police is reluctant to register a case until and unless very concrete evidence is available. Ali Muhammad P.W.4 had no background of enmity with the appellant and in the absence of any such background the delay in lodging the F.I.R. Has no importance.
20. The medical evidence fully corroborates the story of the prosecution. P. W.1 stated that the probable time in between death and post-mortem was about 5 to 7 days. He also stated that the dead body could be identified. According to him the cause of death was asphysia, which resulted from compression on the neck leading to irrersible shock and death, which was sufficient in ordinary course of nature to cause death. In cross-examination he explained that it was not necessary that ligature mark is must even in strangulation of throat by hand.
21. The most ' important piece of evidence available against Zafar Hussain-appellant is the recovery of dead body from an isolated place on his pointation. The dead body was buried two feet deep in an agricultural field at the place, which was about 2 or 2-1/2 Acres away from the house of the appellant. Zafar Hussain, appellant, led the police to the recovery of the dead body. No one else could know the place of recovery. It was in the exclusive knowledge of the appellant. At the time of recovery of the dead body, P.W.7 Manzoor Ahmad Khan, Magistrate, who is an independent witness, was present. He also signed the recovery memo. Exh. PM. He was subjected to lengthy cross-examination but nothing could be brought against him. The place of recovery of the dead body has not been challenged by the defence. P.W.11 and P.W.7, who are the other witnesses of the recovery of dead body have also stated that the appellant led to the recovery of the dead body and dug out the same from the field. The statements of P.W.4, P.W.7 and P.W.11 are in line and there is no reason to disbelieve them.
22. Summing up the case of the prosecution against the appellant Zafar Hussain, we feel that the evidence of last seen coupled with the medical evidence, recovery of articles belonging to the deceased and the recovery of dead body at the pointation of the appellant conclusively proved the case of the prosecution against the appellant. There is a famous saying that men may lie but "circumstances do not. In the instant case circumstantial evidence connects the appellant with the offence, excludes the hypothesis of nis innocence. The accused/appellant also could not give any plausible explanation as to why he was involved in this case, therefore, we have come to the conclusion that the prosecution has proved the charge under section 302(b), P.P.C. Against Zafar Hussain-appellant without any doubt. Reference may be made to the cases of Abdus Samad v.
The State (PLD 1964 SC 167) and Allah Ditta v. The Crown (1969 SCM R 558).
23: The learned counsel for the appellant could not point out any mitigating circumstances as to why the normal penalty of death should not be imposed upon the appellant. The appellant has taken life of a 22 years old young person and deserves no sympathy, therefore, we dismiss the appeal filed by Zafar Hussain-appellant vis-a-vis section 302(b), P.P.C. And maintain the sentence of death. The amount of compensation of Rs,1,00,000 to be paid to the legal heirs of the deceased is also maintained. Murder Reference No,1 of 1999 for the sentence under section 302(b), P.P.C. Is answered in affirmative, to the extent of Zafar Hussain, appellant.
24. However, legally, sentence under section 201, P.P.C. Could not be imposed upon the appellant alongwith section 302, P.P.C., therefore, we set aside the conviction and sentence under section. 201, P.P.C. Awarded to the appellant. As far as sentence under section 365-A, P.P.C. Is concerned, P.W.4 stated in the F.I.R. That the letter was most probably written by Zafar Hussain-appellant but during trial he stated that the letter was written by his brother Zahoor Ahmad deceased. The letter Exh.PF was never sent to the Handwriting Expert. Neither any witness was produced to support that P.W.4 had indeed taken the demanded amount to the deserted place nor any explanation was made by P.W.4 as to from where he got the money. So, giving the benefit of doubt to the appellant, we acquit him of the charge under section 365-A, P P.C.