2003 PLP 2163 (YLR)

8. He emphasised that the identification of the dead body has not been fairly carried out, therefore, it is in doubt as to whether the dead body so recovered was that of Rehman Shah deceased or someone else. He further contended that per medical evidence it is not proved that the dead body was having any fire-arm injury, therefore, the confession of the appellants on the point of firing a shot at the deceased with a shot-gun is falsified.

9. Next he contended that charge under section 13.A.O. was dropped against the appellants because they were not tried for the same thus this important aspect of the case adversely reflects upon the prosecution version. With equal force he contended that all the three ladies including the wife of Sher Ali who appeared at the trial as P.Ws.1, 2 and 3 have deposed against them out of malice and ill-will and in the facts and circumstances of the case they and their male members seem suspects for the crime. He also attribute dishonesty to the Investigating Officer for fabricating evidence against the appellants.

10. His last contention was that the recovery of crime article was made at the joint pointation of the two accused, therefore, the same is inadmissible in evidence.

11. Khawaja Muhammad Khan, Advocate learned counsel for the complainant and Malik Ahmad Jan A.A.-G. learned State counsel however, defended the impugned judgment on, the same reasons given therein.

12. As the clue to the crime was provided by the evidence of Mst. Bakht-Sewa P.W.1, Mst. Ruqia, P.W.2 sisters-in-law of appellant Sher Ali and Mst. Azeat wife of the said appellant, therefore, their evidence is to be discussed first because the same has provided solid foundation to prove that how the crime's transaction was initiated before the actual commission of murder crime.

13. All the three ladies are the closet relatives of the appellants with no background of any enmity or visible ill-will, or grudge inter se the parties. All the three P. Ws. have deposed in a consistent manner that the deceased Rehman Shah the husband of P.W. Mst. Ruqia had come to the house of appellant Sher Ali one day prior to the occurrence at evening time and after evening meal appellant Sher Ali and accused Syea Rehmat Shah alias Lungi tied him (deceased) with iron chain in the "Baitak" whereafter he was brought into the house and he was chained inside the room where the deceased was kept for the night and the following day in this condition when appellant Sher Bahadur came there on the following morning and at night time the two appellants alongwith accused Syed Rehmat Shah took away the deceased duly chained while accused Sher Alam was posted to guard them (P.Ws.) not to have an access to anyone out of the house It is further stated that at morning prayer call time all the three returned with their blood stained clothes and the chain and also were having a hatchet. Mst. Azeat was asked to wash blood-stained articles but she refused, then the accused themselves, washed these articles and were placed inside the room.

14. All these three witnesses were subjected to taxing and searching cross- examination but nothing favourable to the defence could be brought on record. Nothing like any serious enmity, ill-will or grudge was suggested to them having against the accused.

15. The above evidence of high credibility, makes a direct link/nexus in between the first transaction when the crime was initiated and the second one where the deceased was done to death a part the post event conduct of the accused reflected in bringing back the crime articles with them.

16. The next item connecting the neck of the appellants with the crime is their confessional statements. These were recorded by Muhammad Hussain Khan Magistrate P.W.9 who has supported the same at the trial. He too was subjected to cross -examination but nothing fatal to the prosecution could be brought from him. The perusal of all the confessional statements particularly those of appellants Sher Ali and Sher Bahadur recorded on 17-4-1999 and 28-4-1999 the same are in complete agreement with the testimony given by the three ladies. We do not see any noticeable inconsistency in between these two items of evidence itself or between it and the evidence of the three ladies mentioned above rather both amply corroborate each other in material particulars. In the cross-examination nothing was suggested to its author (P. W.9) for violating or disregarding the provisions or law nor any mala fide has been attributed to him, while recording it.

17. When examined under section 342, Cr.P.C. the appellants, on the question of their making of confession, for the first time claimed to have made it under duress and corecion but such bald statement of the appellants do not get any support from the record.

18. Beside the above two main items of evidence, while in custody of the police appellant Sher Ali led them to his house and at his disclosure and pointation the crime shot-gun and hatchet were recovered. Moreover on the pointation of appellant Sher Ali and accused Syed Rehmat Shah the severed head of the deceased concealed by them was recovered and taken into possession. Site-plan and pointation memo. to that effect were also prepared and were proved at the trial. The motive divulged in their confessions and admitted by P.Ws. was that the deceased an outsider with unidentified cast was given the hand of Mst. Ruqia the sister-in-law of the appellant Sher Ali by her father which caused serious annoyance to the accused because they felt humiliated and disgraced in the area.

19. From the post-mortem report it is clear that the Doctor has found multiple lacerated wounds on the abdomen of the deceased about which no definite opinion is given but such wounds could be the result of fire-arm (pellets) therefore, the plea of the defence in this regard is not sustainable moreso, such opinion of a doctor cannot override the strong evidence discussed above.

20. The prosecution has led consistent, cogent and trustworthy evidence against the appellants which is free from reasonable doubts and reasonably connect the necks of the appellants with the commission of the crime moreso, when the defence has failed to suggest that the deceased was having any other enmity in the area.

21. After holding that the conviction of the appellants is maintainable we are now to deal with the matter of sentence.

22. It is on the record that the deceased on his arrival in the house of the appellant Sher Ali, was cordially received by him and co-accused Syed Rehmat Shah and all dinned together and till then everything was ok therefore, we have strong mid convincing reasons that both the prosecution and the accused because of a family honour have suppressed the immediate cause which made the accused to act so violently and in a cruel manner. Only some strong inducing cause could give such an impulse provoking the appellants to act in this manner. In the confessional statement of Sher Ali we have strong hint before us referring towards a previous incident wherein deceased has been shown to have had amorous advances and had made attempt to outrage the modesty of the wife of Sher Ali appellant and because of such shameful act Sher Ali appellant left his permanent abode and settled alongwith his wife in the present place. There is another meaningful hint in his confession that the deceased on that very night was making indecent gestures while lying on bed therefore, all these events give rise to a strong probable presumption that the deceased might had re-indulged in same dirty practice which infuriated the appellants taking them to a boiling point of no return in killing the deceased in such callous manner, therefore, we would not confirm the death sentence because life imprisonment would serve the ends of justice.

23. Accordingly partly allowing this appeal while maintaining the conviction the appellants their death sentence converted into life imprisonment with benefit of section 382-B, Cr.P.C. They are also directed to pay Rs.1,00,000 (one lac) each to the legal heirs of the deceased or in default to suffer 6 months S.I.

24. The murder reference is, therefore, not confirmed.

25. These are detail reasons for our short order dated 14-5-2003. H.B.T./817/P Appeal partly allowed.