1980 PLP 172 (SCMR)

(a) The severed head of the deceased from the roof of a deserted kotha in the area of Chak No: 568/TDA, .the recovery being attested by Muhammad Nawaz (P. W: 8), Ghulam Rasool (P. W: 13), Ahmad Khan (P. W. 14) and A. S. I. Mirza Ahmad Ali ; (b) Blood‑stained clothes worn by the accused at the time of his production at the police station in the presence of aforementioned three witnesses ; (c) Key of the room where Sher Bahadur used to reside ; (d) Blood‑stained chhuri and kassi, on which human blood was found, from the room the lock of which was opened with the key recovered from the accused ; (e) Blood‑stained earth from inside the room as well as immediately outside its door ; (f) Blood‑stained articles of bedding as well as the blood‑stained charpai from inside the room ; and (g) One foot of blood‑stained chappal stated to be belonging to the deceased. , The blood on all these articles was found to be of human origin on examina tion by the chemical examiner and the serologist. Besides these recoveries, there was also evidence of one barber, named Azmafullah (P. W. 11), at whose shop the deceased had gone for a hair‑cut, and the accused had also turn.‑d up there and taken him to his room as the deceased was not feeling well. Another person, named Ghulam Muhammad (P. W. 15), had also seen the deceased in the company of the accused at that time. Lastly, the owner of the room Muhammad Ramzan (P. W. 12), had also noticed blood stains outside the door of the room. He testified that he had rented the room to accused Sher Babadur a few months before this incident. The motive for the crime was given by Muhammad Khan (P. W. 18), who is the father of the deceased. He stated that the accused was annoyed with the deceased for the reason that due to his opposition the hand of the sister of the deceased was refused to the accused ; and the accused also suspected that six months prior to the present occurrence the deceased had developed illicit relation with a paternal cousin of the accused. Although there was no eye‑witness of the occurrence, yet both the Courts blow have recorded concurrent findings to the effect that the incriminating circumstances alleged by the prosecution had been fully proved on the record, and that they were inconsistent with the innocence of the petitioner.' They have, accordingly, found him guilty of the murder of Amir Khan. The learned Judges in the High Court have, however, altered the death sentence to life imprisonment on account of the tender age of the accused and the fact that the deceased was carrying on an illicit affair with a cousin sister of the accused. Leave to appeal is sought on the grounds that the whole story relating to the extra judicial confession and the presence of the blood‑stained clothes on the body of the accused at the time of his appearance before witnesses Jamshed Ali and Ghulam Qasim and. his subsequent production at the police station is most unnatural, and at any rate stands contradicted by the testimony of the two defence witnesses, namely, Subah Sadiq (P. W. 1) and Headmaster Muhammad Sadiq (D. W. Z) ; that the motive also does not make much sense as the accused was much too young, namely, only 15 years of age, to be involved so strongly in killing the deceased simply for the reason that he had opposed his engagement to his own sister ; and: that the recovery witnesses were interested and inimical and could not, therefore, have been r believed. The learned counsel for the convict Sher Bahadur submits that the case being purely of circumstantial evidence, the benefit of every doubt should have been given to the accused. After hearing the learned counsel for the accused and perusing the entire record of the trial, we are satisfied that the accused has been rightly convicted. It is true that there is no ocular evidence in this case, but the incriminating circumstances proved on the record are conclusive against the accused. It is true that the two defence witnesses deposed that the accused was, arrested by the police at 9‑00 a.m. on the 11th of .March, 1974, when he was present in his school, of which Muhammad Sadiq (D. W. 2) was the Headmaster, but no documentary evidence was produced by the Head master in support of the. statement that the accused was a student of his a school on that particular day, and that he was present at the school. The other defence witness frankly admitted that he was a close relation of the accused. It is also significant that in order to prove the young age of the petitioner, the school certificate relied upon by the defence related to a school in Jhelum and concerned his stay in that school in the year 1969. If, indeed, the petitioner was a student of the school in Chowk Munda, there was no reason why a certificate from that school should not have been produced nor was there any reason for not providing documentary evidence of his being a student of that school and his presence there on the date of his arrest. Even if, therefore, the learned Judges in the High Court have not recorded a positive finding that they were not prepared to believer the defence evidence on this point, this finding is implicit in the fact that they have accepted the evidence of Jainshed Ali and Ghulam Qasim as to the extra‑judicial confession alleged to have been made before them by the petitioner. We have perused the cross‑examination of these two witnesses, and have not been able to discover a single reason why they should come forward to depose falsely against this young boy. However, the extra‑judicial confession‑ is of the mainstay of the prosecution Muhammad Ramzan evidence as to the renting out of the room to the petitioner stands un-rebutted on the record, and all the incri minating recoveries like the blood‑stained weapons of offence and the blood‑stained bed clothes, have been recovered from his room. Even one foot of the chappal of the deceased was recovered from `there. The severed head of the deceased was also recovered at his pointing out from the roof of a deserted kotha: Then there was the evidence of Azmatullah barber supported‑ by. Ghulam Muhammad that the deceased had gone to the room of the petitioner from the shop, of Azmatullah, where he had gone to have a hair‑cut ‑and had felt unwell. According to Azmatullah, the petitioner had come to his shop and on finding the deceased having a hair‑cut, he haw addressed the deceased as uncle and offered to take him to his room when the deceased had said that he was feeling unwell. There is no substance in the submission that the recoveries had not been properly proved‑ or that the recovery witnesses were interested and inimical. We have carefully perused the statements of the relevant witnesses, and we have not‑ found any material to doubt their credibility, or to think that they wee motivated,‑by any ill‑will or enmity towards the petitioner. In these circumstances we are satisfied that the Courts below are right in thinking that the incriminating circumstances stood fully proved on the record, and that they were incompatible with the innocence of the petitioner. The submission that the petitioner was only of 15 years of age at the time of the incident, and he could not have reacted so strongly in a matter of sex and marriage, or that he could not have killed a man of 22 years and disposed of the body and the head separately in the manner alleged by the prosecution, loses much of its force in the face of the proved recoveries ‑from the room of the petitioner as well as of the severed head of the body at his instance. No theoretical speculation as to the state of mind of the petitioner at the young age of 15 years can be of any avail, once the evidence as to the incriminating recoveries is accepted by the Court. It may need not be very natural for a murderer to go about for two days wearing the same blood‑stained clothe; but the evidence of the two witnesses Jamshed. Ali and Ghulam Qasim having been accepted by the Courts below, we have‑ no reason to say, that the blood‑stained clothes were not removed from the body of the petitioner when he was produced before the Police Officer. However, even if this particular piece of incriminating recovery is not given its ‑full effect, the other recoveries appeared to be sufficient to, prove the guilt of the petitioner beyond any reasonable doubt. As to the question of, sentence, we are of the view that the learned) Judges in the High Court have rightly given him benefit of the fact that he was of young age at the time of the murder,‑ and that apart from his own annoyance at his failure to obtain the hand of the sister of the deceased owing to the letter's opposition, a question of family honour was also involved, inasmuch as the petitioner suspected that the deceased was carrying on with his cousin sister. The learned counsel, appearing for the complainant, has not been able to persuade us to think that the High Court was in error taking note of these mitigating circumstances, anal giving effect to, them. As a result, both the petitions fail and are hereby dismissed. Petition dismissed.