1. ' BASHIR A. MUJAHID, J.---Shahid alias Shah son of Allah Rakha has challenged judgment dated 13- 3-1997 passed by learned Additional Sessions Judge, Shakargarh whereby he was convicted under section 302, P.P.C. And sentenced to death for causing murder of Faisal.
2. ' He was further directed to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C., in default of payment of the same to undergo six months' S.I. He was also convicted under section 364, P.P.C. And sentenced to seven years' R.I. With a fine of Rs,5,000 in default of payment of fine, he had to undergo three months' S.I. Through the same judgment Mst.
3. Asifa alias Guddo mother of the deceased was also convicted under section 302, P.P.C. And sentenced to imprisonment for life and to pay compensation of Rs,20,000 to the legal heirs of the deceased Faisal under section 544-A, Cr.P.C., in default thereof she had to undergo three months'
4. S.I. However, she was given benefit of section 382-B, Cr.P.C. By the same judgment, Muhammad Saghir, co-accused was acquitted of the charge.
5. ' Briefly the facts of the prosecution case are that F.I.R. No,177 (Exh.PH) was registered with Tassadiq Hussain, S.-I. P.W. 15 at Police Station Shah Gharib, District Narowal on 16-12-1994 at 12-30 a.m. At the instance of Muhammad Riaz P.W.14 under section 364, P.P.C. It was stated by the complainant in the F.I.R. That he was resident of Nadala Sohryan. His brother Nisar Ahmed was confined in District Jail, Sialkot in whose absence Mst. Asifa Bibi alias Guddo wife of Nisar Ahmad developed illicit relations with Shahid alias Shah son of Allah. Rakha (appellant). Faisal son of Nisar Ahmad saw Shahid appellant in his house with Mst. Asifa alias Guddo several times at odd hours during the night and objected. He also informed the complainant. On 26-11-1994, Faisal did not come to the complainant, who started for his search. The complainant enquired from Mst. Asifa alias Guddo about Faisal and she told that he might have gone somewhere on his own and will return. Later on, Abbas son of Muhammad Siddiq and Abbas son of Muhammad Shafi told the complainant that on 26-11-1994 at 8-39 p.m. They had seen Faisal (deceased) in the company of Shahid appellant and Saghir son of Abdul Aziz (co-accused) going near the shops of Daras. The complainant suspected Shahid appellant and Saghir for abduction of Faisal and his murder due to illicit relations of Shahid with Mst. Asifa alias Guddo and lodged the F.I.R.
6. ' Tassaduq Hussain, S.-I. P.W.15 after registration of the F.I.R. Undertook the investigation of the case and interrogated the accused. He recorded the statements of the P.Ws. Under section 161, Cr.P.C.
7. And arrested Shahid appellant on the same day who made disclosure that on the instigation of Asifa Bibi he has murdered Faisal and led the police party to the place where he had murdered him and buried the dead body in wheat crop owned by one Fazal Din. The dead body was taken into possession vide memo. Exh.P.F. He took into possession the pair of shoes of the deceased P.7/1-2.
8. He also prepared the inquest report through memo. Exh.P.K. Of the dead body and despatched the same for post-mortem examination. Shahid accused also led to the recovery of weapon of offence blood-stained Darar P.5 which was taken into possession through memo. Exh.P.G. After post- mortem examination, he took the last-worn clothes of the deceased through memo. Exh.P.H. On 7- 1-1995. He arrested Saghir Ahmad accused who while in policy custody led to the recovery of Kassi P.6 which was taken into possession through memo. Exh.P.C. On 5-1-1995, he got prepared the site plan of the place of occurrence by Muhammad Tahir Patwari P.W.3. He also caused arrest of Mst.
9. Asifa Bibi, recorded the statements of the P.Ws., completed the investigation and submitted the challan.
10. ' The trial Court framed the charge against the accused. They denied the same and claimed trial.
11. ' During the trial, the prosecution examined as many as 15 witnesses to prove the guilt of the accused.
12. ' The medical evidence was furnished by Dr. Muhammad laved lqbal, P.W.8 who on 17-12-1994 had conducted the post-mortem examination on the dead body of Faisal and found the following injuries on his person:--
(1) A gap on the left side of skull, which was measuring 7 x 5 c.m. Edges of the skull were cleanly cut.
(2) A fracture of skull from injury No,1 to backward measuring 9 x .2 c.m.
(3) A gap on the left side of skull, .25 c.m. Behind injury No,1 measuring 2.5 x 2 c.m. Edges of the gap were cleanly cut.
(4) A depressed fracture of skull on the frontal bone from right eye-brow up to injury No,1 measuring 19 x 1 c.m.
(5) Outer wall of left orbit was missing in the skull.
(6) A fracture line in the skull from injury No,2 to backward measuring 7 x .25 c.m. Margins of the fracture line were irregular.
(7) On the neck interiorly there was gap of skin and muscles measuring 6 x 2 c.m. Underlying trachea was also cut and edges of the skin and trachea were cleanly cut.
13. ' Samples of skin of neck and trachea were sent to chemical examiner/Bacteriologist to know whether injuries were ante-mortem or post-mortem. Samples of liver spleen, kidney and stomach were sent to Chemical Examiner for detection of poison. Cause of death was declared on 29-3- 1995 through Bacteriologist reference dated 11-3-1995 failed to report due to extensive post- mortem autoice changes. So, cause of death was declared head injuries Nos. 1, 2, 3, 4 and 6.
14. Probable time between injury and death was within a few seconds and between death and postmortem examination was 19 to 23 days.
15. ' The ocular account was furnished by Muhammad Riaz, P.W.14 who was complainant of the case.
16. He supported version of the F.1.R. And narrated the motive for the abduction and murder of Faisal.
17. Muhammad Abbas son of Muhammad Shafi P.W.6 stated that on 26-11-1994 at 8-30 p.m.. He alongwith Muhammad Abbas son of Muhammad Siddiq were present on the shop of Daras when they saw Shahid and Saghir accused taking Faisal deceased alongwith them. Muhammad Amin son of Raj Din was examined as P.W.11, who stated that one year or 13 months ago Shahid appellant had approached him and confessed his guilt for having abducted Faisal who was murdered by him alongwith his co-accused. Mst. Naziran Bibi was examined as P.W.9, who had stated that Mst.
18. Asifa Bibi had admitted before her that she alongwith co-accused Shahid and Saghir had committed the murder of Faisal. Saeed Ahmad Khan, F.C. P.W. I got the post-mortem conducted and produced last-worn clothes of the deceased Faisal before the Investigating Officer and also delivered the sealed parcels at the office of Chemical Examiner and Serologist at Lahore. Shabir Ahmad, H.C. P.W.2 had kept the sealed parcels in Police Maalkhana and handed over to Saeed Ahmad Khan, F.C. For their delivery at the respective destinations. Muhammad Tahir Patwari, P.W.3 had prepared the site plan. Khalid Javed, F.C. P.W.4 had attested the recovery memo. Exh.P.A.
19. Muhammad Saleem, P.W.7 had escorted the dead body for post-mortem examination.
20. Muhammad lkram P.W.12 attested the recovery memo. Exh.P.C. Whereby the dead body of Faisal was got recovered by the appellant. Muhammad Yaqub P.W.13 had attested the recovery memo.
21. Exh.P.G. Whereby appellant got recovered weapon of offence Darat P.S. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.M. And that of Serologist Exh.P.N.
22. ' The statement of the accused/appellant under section 342, Cr.P C. Was recorded towards the end of the trial. He denied the allegations, claimed his innocence and false involvement. To question No,10 as to why the case against him, he replied as under:-- "On account of party faction, P.Ws. Were closely related to Muhammad Riaz P.W.14. Muhammad Riaz P.W. 14 had concocted this false story with the help of P.Ws. Who were related to him and are under his influence. They have deposed against me at the behest of the complainant. In fact Muhammad Riaz P.W.14 had connivance of one Sultan Ali who got a case registered against Nisar husband of co-accused Asifa in which husband of Asifa namely Nisar Ahmad and Mst. Asifa alongwith other co-accused were convicted by the Terrorist Court under sections 346, 383 and 440, P.P.C. In order to save his own skin Riaz Ahmad P.W.14 has done so with the connivance of said Sultan Ali and the complainant of abovementioned case."
23. ' The trial culminated into conviction of the appellant and Asifa alias Guddo as mentioned above.
24. Shahid alias Shah, appellant has challenged his conviction and sentence through Criminal Appeal No,80 of 1997 while the trial Court has sent up Murder Reference No,115 of 1997 for confirmation of death sentence of Shahid alias Shah. Both the matters are being decided by this judgment.
25. ' Learned counsel for the appellant has argued that the case was registered with an inordinate unexplained delay; that the body of the deceased was not identifiable and the case was registered after the recovery of dead body; that the circumstantial evidence against the appellant is very weak and uncorroborated; there is contradiction in the statements of the prosecution witnesses.
26. The case against the appellant is doubtful, therefore, his appeal be accepted and he be acquitted of the charge.
27. ' Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. They have supported the impugned judgment.
28. ' Heard. Record perused.
29. It is correct that the alleged occurrence took place on 26-11-1994 and the case was registered on 16-12-1994 but the delay had been sufficiently explained by the complainant Muhammad Riaz, P.W.14 by stating that he has been searching for Faisal deceased. He also enquired about Faisal from Mst. Asifa (mother of the deceased). Mst. Asifa, mother of the deceased was also accused alongwith the appellant. She was convicted through the same judgment and her Criminal Appeal No,20-J of 1998 was allowed by this Court vide judgment dated 13-2-2001 on the basis of compromise. Muhammad A Abbas P.W.6 although is relative of the complainant but has no previous enmity with the appellant for his false implication. He had seen the deceased in the company of the appellant on 26-11-1994. The appellant also confessed his guilt before Muhammad Amin P.W.11. The ocular account furnished by the complainant, Muhammad Abbas P.W.6 and Muhammad Amin P.W.11 has been fully corroborated by the medical evidence and recovery of dead body on the pointation of the appellant. It is correct that the dead body was decomposed and was not found fully buried and was naked but the appellant himself led the police party to the place where the dead body was buried by him in wheat crop and place was in his exclusive knowledge. There is no evidence that it was dead body of someone else. The prosecution case has been further corroborated by recovery of weapon of offence Darat' P.5 which was blood-stained. It is correct that circumstantial evidence is a weak type of evidence but if no link in the chain is found missing and circumstances lead to the guilt of the accused then the conviction can be recorded on the basis of circumstantial evidence as held by Hon'ble Supreme Court in 1999 SCM R 955 titled Ali Khan v. State, 1992 SCMR 1947 and 1996 SCMR 378 titled Allah Ditta v. The State.
30. ' After deep reappraisal of evidence we find that the complainant had no motive for false implication of the appellant and real mother of deceased, last seen evidence corroborated by the extra-judicial confession made by the appellant and the recovery of dead body on the pointation of appellant coupled with medical evidence lead us to believe that the prosecution case has been established beyond any shadow of doubt against the appellant and do not find any ground to interfere in the conviction recorded against him.
31. ' As far as the sentence is concerned, there is no direct evidence available against the appellant.
32. The co-accused Muhammad Saghir has been acquitted of the charge by disbelieving the statements of the same witness Muhammad Abbas, Mst. Asifa has already been acquitted on the basis of compromise, therefore, it is not safe to maintain the capital punishment of death on the basis of circumstantial evidence, so the sentence is reduced to imprisonment for life which will meet the ends of justice. The sentence under section 364, P.P.C. Is maintained and that of payment of compensation is maintained. However, both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. Will also be available to him. The appeal is dismissed with the above modification. Death sentence of Shahid alias Shah is not confirmed.
33. ' Murder Reference is answered in the negative.