' CH. EJAZ YOUSAF, ACTG. C.J.--- This judgment will dispose of four connected appeals i,e, Criminal Appeal No,44/1 of 2001, filed by Shuja-ur-Rehman son of Sakhi-ur-Rehman Criminal Appeal No,45/I of 2001, filed by Muhammad Sadiq son of Muhammad Sabir, Criminal Appeal No,53/I of 2001, filed by Amjad Siddique son of Muhammad Siddique and Jail Criminal Appeal No,132/I of 2001, filed by Muhammad Azhar son of Muhammad Rafiq and Criminal Revision No,7/1 of 2001, filed by Mir Afsar son of Abbas Khan as all these are directed against the judgment, dated 20-1-2001, passed by the learned Additional Sessions Judge, Abbottabad, whereby the afore-named appellants, were convicted under section 302/34, P.P.C. And sentenced to life imprisonment each and to pay a fine of Rs,30,000 each to the legal heirs of the deceased as compensation. The criminal revision has been filed by the complainant for the enchancement of the sentences inflicted on the appellants.
Benefit of section 382-B, Cr.P.C. Was, however, extended to the appellants.
2. Facts of the case, in brief, are that on 27-11-1999 report Exh.P.A./I was lodged by one Mir Afsar son of Abbas Khan with S.H.O. Police Station Cantt. Abbottabad, wherein, it was alleged that his brother Sardar Muhammad Afsar, a Carriage Contractor, was living, in his own house, situated at Mohallah Band Khoo, Abbottabad. Two days prior to 27-11-1999 the complainant tried to contact his said brother on telephone, from Kala Bagh, but failed to do so. On 27-11-1999, in the evening, the complainant visited the house of the deceased and found that a door of the house was open while the rest were closed and the household items were lying scattered on the floor. He also found that deceased having been slaughtered was lying inside a room of the house in a position that his hands and feet were tied with a rope. According to the complainant, though the deceased had no enmity with anybody in the area yet, suspected that since deceased was a contractor and people of his trade used to visit him off and on, therefore, somebody, in order to commit theft might have killed him. On the basis of the report formal F.I.R bearing No,1354, dated 27-11-1999 was registered under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, at the said Police Station, and investigation was carried out in pursuance thereof. It would be pertinent to mention here that since in the course of investigation various cheque books pertaining to cifferent accounts belonging to the deceased were recovered and a few cheques were also found torn therefrom, therefore, the Investigating Officer visited Askari Bank at Abbottabad. On enquiry it transpired that Cheque bearing No,CAB423670, dated 23-11-1999 for Rs,50,000 pertaining to the account of the deceased was got encashed recently by one Amjad Khan and receiver of the amount had left a photocopy of his National Identity Card with the Bank. Photocopy of the cheque in question alongwith a photocopy of NIC belonging to said Amjad Khan therefore, were taken into possession by the police. Amjad Khan was interrogated and on receiving information that the said accused alongwith his companions were involved in the commission of the offence of Harrabah, in course whereof murder of the deceased was committed, all the accused persons were arrested.
Initially, case under section 302, P.P.C. Was registered but subsequently it was substituted by section 17(4) of the Ordinance. On the completion of the investigation the accused persons were challenged to the Court for trial.
3. Charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial.
4. At the trial, the prosecution in- order to prove the charge and substantiate the allegations levelled against the accused persons produced 14 witnesses, in all. P.W.1 Sardar Wali Dad, is a marginal witness of the recovery memo.. Exh.P.C. Vide which rope article P.1, another rope article P.2 alongwith three pieces of cloth i,e, Arts. P.3, blood-stained piece of cloth from the cover of the mattress, Art.P.4, blood-stained pieces of bed sheet, Art. P.5, blood-stained earth, Art. P.6 and rifle belonging to the deceased Art. P.8 were taken into possession by the police through recovery memo., Exh.P.C./1. He is also a marginal witness of the recovery memo., Exh.P.C./2 vide which various cheque books i,e, Arts. P.9 to P.15 alongwith a wooden frame Art.P.16 having two holes therein, were taken into possession P.W.2 Fazalur Rehman is a marginal witness of the recovery memo. Exh.P.C./3 vide which a wrist watch Art. P.17 allegedly belonging to the deceased was recovered from the possession of appellant Muhammad Sadiq. He is also a marginal witness of the pointation memo.
Exh.P.C.14, vide which accused Shujaur-Rehman, while in police custody, led the police to the house of the deceased and from underneath the heap of dry grass lying near an apple tree, got recovered crime weapon i,e, Chhuri, Art. P.18. He is also a marginal witness of the pointation memo., Exh.P.C./5, vide which accused Shuja-ur-Rehman had pointed out different places where, according to him, he alongwith other accused persons had committed the offence in the mode and manner mentioned in the pointation memo. He is also a marginal witness of the sketch of the place of occurrence, i,e, Exh.P.C./6. He is also a marginal witness of the recovery memo., Exh.P.C./7 vide which Investigating Officer, on the pointation of accused Azhar, took into possession keys belonging to the deceased. He is also a marginal witness of the pointation memo., Exh.P.C./8 vide which accused Muhammad Sadiq had pointed out the place of occurrence. He is also a marginal witness of the pointation memo.s, Exh.P.C./10 and P.C./11 vide which accused Azhar and Amjad Siddique, while in police custody, had pointed out the place of occurrence. P.W.3 Naeem Khan, Foot Constable, had on 27-11-1999 escorted the dead body of the deceased to the Mortuary. P.W.4 Muhammad ljaz is a marginal witness of the recovery memo., Exh.P.D. Vide which Investigating Officer had taken into possession a Photostat copy of cheque bearing No,CAB-423670 pertaining to the Account No,1-1-190-2, in the sum of Rs,50,000, of Muhammad Afsar deceased alongwith a photo copy of the National Identity Card bearing No,122-19-905633 of appellant Amjad Siddique P.W.5 Raj Muhammad, A.S.-I., had on the receipt of complaint i,e, Exh.P.A./1 incorporated contents thereof into the F.I.R. P.W.6 Mir Afsar, is the complainant. He, at the trial, while reiterating the version contained in the report/F.I.R. Deposed that since some cheques from the cheque books recovered from the house of the deceased were found torn, therefore, he had visited Askari Bank (at Supply), Abbottabad and checked the account of his brother. As a result, he came to know that Amjad Siddiq son of Muhammad Siddiq accused had, on 23-11-1999, drawn Rs,50,000 from the account of the deceased had left with the Bank a copy of his N.I.C. Ile, therefore, made an enquiry of his own, and came to know through various persons belonging to the village of the accused that the accused was the member of a gang of criminals and they all were involved in various cases of dacoity. It further transpired that accused Shuja-urRehman, son of Sakhi-ur-Rehman, Amjad Siddique son of Muhammad Siddique, Sadiq son of Sabir and Azhar son of Rafique were amongst his companions. P.W.7 Muhammad Pervez, A.S.-I. Is a marginal witness of the recovery memo.
Exh.P.W.7/1 vide which on personal search of accused Shuja-ur-Rehman a sum of Rs,1,700 was recovered. He is also a marginal witness of recovery memo., Exh.P.W.7/2, vide which a sum of Rs,15,000 was also recovered during personal search of accused Azhar. P.W.8 Mansoor Ahmad, Cashier deposed that he was serving as Cashier in Askari Bank, Abbottabad. Deceased Muhammad Afsar was keeping an account with the Bank in the said branch. In the month of November, 1999 Cheque bearing No,423670, having signature of the deceased, was presented in the Bank for withdrawal of a sum of Rs,50,000 by one Amjad Siddiq son of Muhammad Siddiq, resident of Soha. He being the Cashier paid the amount to said Amjad Siddiq after obtaining Photostat copy of his NIC. The photocopy of the NIC was attached by him with the cheque which, was later on, produced by him before the Investigating Officer P.W.9 Bazamir, S.-I. Had submitted that challan. P.W.10 Abdul Rashid, A.S.I., had also partially investigated the case. P.W.11 Dr. Fiaz Hussain Shah had on 28-11-1999 conducted autopsy on the dead body of the deceased and found as under:-- "External Appearance.--- A middle age man of 58/60 years lying supine on the mortuary table with white beard and gray hair. Blood-stained face, swollen and cyonse. The nose is swollen and has got bleeding apparent. Neck has got a single cut throat measuring 7" sharply. The edges are cleanly cut, there is tailing of phenoma at right side. The internal structure of anterior and lateral triangle of neck are visible. The hyoid bone and larynx is cut charply, carotid external on both side and cut, postmortem lividity fully developed in the area of back and back of gleuteal region. The hands have got marks of violence with nail abrasion on the dorsal, aspect of both hands. Hands are swollen and have cynoses, there are prominent ligature marks on hands 4" above the wrist.
There are also ligature marks on both upper-arms, there are also ligature marks at lower legs 5" above the ankle. These marks are more prominent than the hand marks. Area of peeling of skin in the right lumber region, skin grazed, there is also peeling of skin over the right pattale. An abrasion over the index finger. And middle finger and on left thumb.
' Internal ' Thorax-Larynx and trachea, cut trachea blood-stained contained heamotoma. Blood vessels:--All the structure in the lime of injury is cut. Abdomen---Mouth, pharynx. Stomach and its contents.
Empty, contained blood. Large intestine-contained. Feaces. Muscles, bones and joints---Muscles in the anterior and lateral triangle of neck are sharply cut.
' In his opinion, the cause of death of the deceased was throat cut which leads to hypo-volomic shock. Time between death and injuries, according to him, was spontaneous and between death and post-mortem 118 to 120 hours. He produced the postmortem report as Exh.P.M. P.W.12 Shahab- ud-Din Khattak, Judicial Magistrate, Abbottabad had on 8-12-1999 recorded confessional statements of the accused persons, namely, Muhammad Sadiq and Muhammad Azhar. He produced the same in Court as Exh.P.W.12/1 and P.W.12/4. P.W.13 Sardar Muhammad Akram, S.I. Had also partially investigated the case. P.W.14 Ahmed Jee, S.H.O. Is another Investigating Officer of the case.
5. On the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their above statements all the accused persons denied the charge and pleaded I mocence. However, they failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C. Except Muhammad Azhar accused who produced Saadullah Khan, Superintendent, District Jail, Abbottabad as D.W.1 regarding entry of prisoners in jail.
6. After hearing the arguments of the learned counsel for the parties the learned trial Court convicted the appellants and sentenced them to the punishments as mentioned in the opening para hereof.
7. We have heard Mr. Abdullah Tanoli, Advocate for appellant Shuja-ur-Rehman, in Criminal Appeal No,44/I of 2001, Mr. Ghulam Mujtaba Khan Jadoon, Advocate for appellant Muhammad Sadiq in Criminal Appeal No,45/I of 2001, Mr. Muhammad Yousaf Zia, Advocate for appellant Amjad Siddique in Criminal Appeal No,53/I of 2001, Mr. Shabbir Alam, Advocate, for appellant Muhammad Azhar in Jail Criminal Appeal No,132/I of 2001, Barrister Zahoorul Haq, Advocate for petitioner Mir Afsar in Criminal Revision No,7/1 of 2001, Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State and have also perused the entire record with their assistance.
8. Mr. Ghulam Mujtaba Khan Jadoon, Advocate, for appellant, Muhammad Sadiq in Criminal Appeal No,45/I of 2001, at the very outset has stated that since appellant Muhammad Sadiq has died, therefore, he does not press the appeal on his behalf, as it has, under the law, abated.
7. The learned counsel for the appellants have raised the following contentions,--
(i) That the retracted confessional statements of the accused persons having been extracted from them by applying third degree methods, were not admissible.
(ii) That the persons from the locality were not taken to witness the recoveries.
(iii) That non-production of the original cheque was fatal towards the prosecution case. The Cashier who was an important witness too, was not produced at the trial.
(iv) That two of the accused persons namely, Sadiq and Azhar were minors, therefore, omission to conduct trial under the Juvenile Justice System Ordinance, 2000 has rendered the impugned judgment, to their extent, as untenable.
(v) That evidence produced by the prosecution was not sufficient to bring home charge against the appellants.
8. Barrister Zahoorul Haq, appearing on behalf of the complainant while controverting the contentions raised by the learned counsel for the appellants submitted that though froth perusal of the record it appears that some beating was given to appellants namely, Sadiq and Azhar yet, facts and circumstances of the case do not suggest that it was for the purpose of extracting the confessions. On the contrary, record reveals that confessions were made by the accused persons to satisfy their conscience and the Magistrate was satisfied that it were got recorded by the appellants named above, voluntarily. He added that Sadiq accused was arrested on 6th December, 1999 whereas his confession was recorded on 9-12-1999. The other accused was arrested on 5th of December, 1999 whereas, his confession was recorded on 9th December. Thus both the confessions were recorded promptly. He maintained that the complainant had no grudge against any of the accused persons nor had he involved them on suspicion Rather, their guilt establish on the basis of substantial evidence and circumstances led the police to them. He further submitted that in fact, Cheque Exh.P.20 opened a clue of the case when the complainant having found that some cheques were torn from the Cheque books, recovered from the house of the deceased, visited Askari Bank and came to know that a Cheque in the sum of Rs,50,000 was got encashed by appellant Amjad. On enquiry, it revealed that neither any amount was due to said appellant from the deceased on any count nor he was entitled to receive the amount of the cheque. He, therefore, was arrested and during interrogation it came to light that the other accused persons were also involved in the crime. Lie further added that compliance with the provision of section 103, Cr.P.C. Was not necessary because it was not a personal search. He maintained that since original signature of the deceased was found on the cheque and it was established on record that the Cashier himself after having satisfied that the holder of the cheque was a genuine person, had disbursed the amount to Amjad Siddiq appellant after keeping on record photostat copy of his National Identity Card and a part of the amount received by him was also recovered from the possession of the other accused persons, therefore, it was established to the hilt that the accused person were in fact responsible for the offence.
9. Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State, while adopting the arguments of the learned counsel for the complainant supported the impugned judgment and submitted that since guilt of the accused persons were fully established at the trial, by the prosecution through independent and reliable evidence, therefore, the impugned judgment was unexceptionable.
10. In order to supplement his first contention that since the confessional statements of the accused persons were extracted by applying third degree method, therefore, it were inadmissible, the learned counsel for the appellants vehemently urged that from the questionnaires contained in Exhs.P.W.12/2 as well as P.W.12/5 it is clear that police had beaten the accused persons, therefore, the possibility that the confessional statements were extracted from them by applying coercive methods could not have been ruled out and thus the harned trial Judge ought to have excluded the confessional statements in question from consideration being inadmissible.
' Before entering into the proposition, we deem it appropriate to have a glance at Article 37 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as "the Order"), which reads as follows:-- "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
' A bare perusal of the above provision would lead to the inference that a confession made by an accused would be irrelevant, only if, making of the confession appears to the Court to have been caused by any inducement, threat or promise upon the evidence before it.
' It may be pointed out here that under Article 91 of the Qanun-eShahadat Order, 1984, a presumption of truth is attached to the documents produced as record of evidence and statement of an accused person made under section 164, Cr.P.C. Being well within the ambit of the said Article, manifests that it was duly taken in accordance with law. Since section 364, Cr.P.C. Casts a duty upon the Magistrate to certify that the record contains a full and true account of the statement made by the accused, therefore, unless proved to the contrary, the confession must be presumed to have been made voluntarily. Here it would be advantageous to have a glance at Article 91 of "the Order" which reads as follows:-- "Art.
91. Presumption as to documents produced as record of evidence. Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume:-- ' that the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."
' And since Article 37 of "the Order", which determines admissibility of confessions is an exception to the rule embedded in Article 91 of "the Order", therefore, an accused person, who, at the trial, retracts his confession, alleging that it was the outcome of ill-treatment must prove his allegation because Article 117 and 119 of "the Order" require that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. Here it would also be beneficial to go through Articles 117 and 119 of the "the Order" which reads as follows:-- "Article 117. Burden of proof.--- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
' Article 119. Burden of the proof as to particular fadt.--- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
' A bare perusal of Article 37 of "the Order" leads to the inference that determination of the question of admissibility or otherwise of a confession has been left solely with the Court and since the test of admissibility of a confession is its voluntariness, therefore, the question as to whether a confession was voluntary, being purely a question of facts, has to be determined keeping view the facts and circumstances of each case and no hard and fast rule of general application can be laid.
' No doubt, in the instant case, in answer to the question as to whether they were tortured? Both the confession accused i,e, Muhammad Sadiq as well as Muhammad Azhar have stated that some beating was given to them by the police but from the evidence it does not appear that it was for the purpose of extracting the confessions. In order to ascertain as to whether or not coercive methods in extracting the confessions were applied, we deem it appropriate to go through the answer given by both the accused persons, which read as follows:-- ' Muhammad Sadiq accused had replied.-- "Yes, I had told the true story to them, but in spite of it a constable and a doctor hit me with a stick."
' Whereas, Muhammad Azhar had replied that.-- "I was beaten by police in routine. Yes, I am making the statement voluntarily."
' From perusal of the above answers it can safely be inferred that the alleged beating, if any, was definitely not for the purpose of extracting confessions rather it was subsequent to the admission.
Of guilt by the accused persons. The fact that not a single question was put to the Magistrate as well as the Investigating Officer to the effect that the confessions were the result of torture also subscribe to the above conclusion. P.W.12 Shahaduddin Khattak, Judicial Magistrate who had recorded the confessional statements himself was of the opinion that volunteerness of the confessional statements, despite beating allegedly given to accused persons, was not effected and he having been satisfied that the accused persons were making the confessions voluntarily had recorded the same. Relevant portions of his statements read as follows:-- "While answering to question regarding torture by the police, accused Sadiq stated that he told the true story to them but in spite of it, a constable and doctor hit him with a stick. I did not inquire the nature of torture from accused. Keeping in view the above mentioned answer of accused the volunteerness of confessional statement of accused according to my mind was not effected as there was no mark of apparent injury on the body of the accused and he himself was stressing for recording of his confessional statement.
' While answering to the question regarding torture by the police accused Muhammad Azhar replied that he was beaten by the police in routine and added that he was making the statement voluntarily."
' In the circumstances, the confessional statements in question, were rightly taken into consideration by the learned trial Court and we do not see as to why a different view may be taken, particularly, when the appellants have, at the trial, failed to substantiate the defence plea. The contention, therefore, has no force.
11. As regards the next contention of the learned counsel for the appellants that since respectable persons from the locality were not taken to witness there recoveries, therefore, it could not have been believed, we may point out here that in the instant case a wrist watch allegedly belonging to the deceased was recovered from the possession of appellant Muhammad Sadiq vide recovery memo., Exh P.C./3 whereas, crime weapon i,e, Chhuri Article P.18, having been concealed underneath the heap of dry grass was recovered in consequence of the information conveyed by appellant Shuja-ur-Rehman, from the house of the deceased. Keys of the house belonging to the deceased alongwith a sum of Rs,15,000 were got recovered by appellant Azhar. In addition, a sum of Rs,1,700 was recovered from the personal search of accused Shuja-urRehman. So far as the recovery of wrist watch, allegedly belonging to the deceased is concerned since the watch in question was neither identified by any of the witnesses to be of the deceased nor was it taken into consideration by the learned trial Judge as an incriminating piece of evidence against the appellant, therefore, the defect, in its recovery, if any, do not effect merits of the case as against the appellants. Regarding the recovery of crime weapon i,e, Chhuri, it may be pointed out here that since recovery thereof was effected in consequence of the information conveyed by the appellant and he himself had led the polic? Tc the house of the deceased therefore, in our view, the provisions of section 103, Cr.P.C. Was not attracted. It is well-settled that need to associate two or more respectable witnesses of the locality, to attend the search, arises only if the search is to be made by the police of its own u'. Her Chapter XVII, of the Code of Criminal Procedure. However, if anything, in consequence of the H information conveyed by the accused, is recovered then the requirement can safely be dispensed with because recovery of anything or fact discovered in consequence of the information received from an accused person would otherwise be relevant under Article 40 of the Qanun-cShahadat Order, 1984. In this view we are fortified by the following reported judgments:--
(1) The State v. Shankar 1997 SCM R 1000, (2) Muhammad Akbar v. The State 1995 SCM R 693, (3)
Ballia and another v. The State 1985 SCM R 854, (4) Kashif-urRehman and others v. The State 1996 PCr.LJ 1689, (5) Muhammad Maskin v. Satbar Khan alias Lajbar Khan and another 2001 PCr.LJ 1932,
(6) Yousuf v. The State and another 2000 PCr.LJ 1386.
' It would also be worthwhile to mention here that in addition to the above some other articles were also recovered. Ropes articles P.I and P.2 alongwith cheque books were recovered from the house of the deceased whereas, photostat copy of the cheque alongwith a copy of the National Identity Card of appellant Amjad Siddique were taken into possession by the police from the Bank and since all these articles were neither recovered at the instance of the appellants nor from their possession and recovery thereof was effected at the time, when the appellants were not in picture even, therefore, the possibility that, it were foisted on the appellants has to be ruled out. Even otherwise, recovery of the articles was effected in the presence of P.Ws Sardar Wali Dad and Fazalur Rehman, who are quite independent witnesses and as was held in the case of Ballia 1985 SCM R 854 the stress under section 103, Cr.P.C. Is on the respectability of witnesses and not on the condition ,that they must be inhabitants of the locality. So far as, the factum of taking into possession photocopy of the cheque as well as copy of the National Identity Card of Amjad Siddique is concerned those documents were not recovered but, having been handed over by Cashier Mansoor Ahmad, were simply impounded by the police and were thus immuned from the mischief of section 103, Cr.P.C. This contention too, therefore, is devoid of force.
12. Adverting to the next contention of the learned counsel for the appellants that non-production of original cheque was fatal towards the prosecution case, it may be pointed out here that though original cheque allegedly presented for encashment by appellant Amjad Siddique was not exhibited at the trial yet, non-production thereof, to our mind, was not fatal towards the prosecution case because authenticity of the photostat copy i,e, Article P.20 was never under jeopardy, nor was it called in question by the defence. The fact cannot be lost sight of that as deposed by P.W.14 Ahmed Jee, the Investigating Officer, Article P.20 alongwith photostat copy of N.I.C. Of the appellant i,e, Exh.P.21 were handed over to him by Cashier Mansoor Ahmad of the Askari Bank at the time when the accused persons were not even in picture and since the Cashier while appearing as P.W.8 has deposed that original cheque was presented in the Bank by the appellant and after making a photostat copy from the original he had handed the same over to the Investigating Officer therefore, non-production of the original cheque had not in any manner effected the prosecution case. It may be mentioned that under section 4 of the Banks Evidence Act, 1891, certified copy can be received in legal proceedings as evidence and under Article 76 of the Qanun-e-Shahadat Order, 1984, copies of documents made from the original by means of microfilming or other modern devices may be given of the existence, condition to contents of the document, therefore, non-production of the original cheque in our view, was not fatal towards the prosecution case, particularly when the evidence in question was not the only piece of evidence against the appellants but was simply a link in the chain of the circumstantial evidence.
' As regards the second limb of argument in the contention that since Cashier of the Bank was not produced, therefore, an adverse inference had to be drawn against the prosecution on account thereof, we may point out here that objection appears to have been made by the learned counsel for the appellants perhaps under some misconception because Mansoor Ahmad, Cashier of the Askari Bank, Abbottabad was examined by the prosecution as P.W.8. Thus, objection too is without substance.
13. As regards the next contention of the learned counsel for the appellants that since appellants Sadiq and Azhar were minors, at the time of commission of the offence, therefore, they ought to have been tried under the Juvenile Justice System, 2000, (hereinafter referred to as "the Ordinance") it may be pointed out here that the contention on the face appear to be devoid of force because, in the instant case, occurrence took place in the month of November, 1999 whereas, The Juvenile Justice System Ordinance, 2000 was promulgated on 1-7-2000, therefore, the occurrence having taken place prior to promulgation of "the Ordinance", both the afore-named appellants were rightly tried under the Hudood Ordinance. This contention too, therefore, has no force.
14. Regarding last contention of the learned counsel for the appellants that the prosecution evidence was not sufficient to bring home charge against the appellants it may be pointed out here that in the instant case the deceased was found murdered and the occurrence was unseen.
In the instant case, the cheque i,e, Exh.P.20 opened a clue when the complainant, having found that some cheques were torn from the Cheque Books recovered from the house of the deceased, visited Askari Bank and came to know that a cheque in the sum of Rs,50,000 was got enchashed by appellant Amjad. On enquiry, it revealed that neither any money was due to the said appellant from the deceased on any count, nor he was entitled to receive the same. He, therefore, became suspicious and inquired about appellant Amjad. As a result of the inquiry it transpired that the said appellant had a dubious character and had also links with some notorious persons. He, therefore, reported the matter to the police. Appellate Amjad after his arrest was interrogated and resultantly it came to light that the other accused persons were also involved in the crime. Since original signatures of the deceased was found on the cheque and it was established on record that the Cashier himself, after having satisfied that the holder of the cheque was a genuine person, had disbursed the amount to Amjad Siddique appellant after keeping' on record photostat copy of his National Identity Card and a part of the amount received by him was also recovered from the possession of the other accused persons and two of them had also confessed their guilt, therefore, the learned trial Judge concluded that the prosecution version was true. He was further of the opinion that since the confessional statements, at the trial, were proved to have been made voluntarily and circumstantial evidence as well as the recovery of the crime weapon and other articles also rendered strong corrobOration thereto, therefore, the accused person in fact were responsible for the crime. The fact -cannot be lost sight of that the complainant or any other relative of the deceased had neither any enmity against the appellants nor had they any motive to falsely implicate them. The fact that none was nominated in the F.I.R. Too, give rise to the presumption that that complainant had neither any cause to falsely involve any person in the crime nor he wanted to settle the score with the appellants on any count, therefore, the prosecution evidence was rightly believed. Since findings recorded by the learned trial Judge have the support of evidence and are well-reasoned, therefore, the impugned judgment calls for no interference. Consequently, Criminal Appeal Nos.44/1, 53/I of 2001, and Jail Criminal Appeal No,132/I of 2001, are dismissed and the impugned judgment is maintained.
15. So far as Criminal Revision No,7/I of 2001 filed for enhancement of the sentences of the respondents is concerned Barrister Zahoorul Haq, himself has candidly conceded and submitted that since on the basis of evidence on record it could not- have been definitely concluded that any particular accused was responsible for the crime but the murder was the outcome of various acts committed by all the accused persons, therefore, he would not press the petition. The same, therefore, having not been pressed, is dismissed.
' These are the reasons of our short order of the even date.