1993 P Cr (PLP)

2. Muhammad Ismail complainant and his brother Muhammad Ishaque, are the residents of village Basti Jalil. Adrian Ishaque (deceased) son of Muhammad Ishaque and nephew of Muhammad Ismail was a student of Skyways School of the village. An information was given by the complainant to the police, disclosing that the said minor was missing from his house since 6-3-1992. The information was recorded by the police vide report No.6, dated 7-3-1992. Search for the boy continued. However, they failed to locate him. On 11-3-1992 at about 5-30 p.m, the father of the boy received a letter, disclosing that his missing son was with the sender and that if he tried to disclose the contents of the letter or if he made an attempt to inform the police, then he would be responsible for the dire consequences. The letter further instructed that on 13-3-1992 (Friday), at about 10-00 p.m. the father should send some one with an amount of Rs.3.00.000 (Rupees three lacs) and the money should be kept at Bakkar Khana of Kot Mithan and after doing the needful the carrier should immediately return therefrom. A threat was extended that in case more people are sent or the police force is brought at the spot, the captive Adrian Ishaque would be done to death there and then. It was explained that the Bakkar Khana was situated near the house of Pappu Pehlwan. It was directed that the amount of Rs.3,00,000 should be sent in separate three packets. After placing the money at the spot, as already pointed out above, the person should be sent to Nau Kassi where the boy would be present. It was directed that the money would be kept in a polythene envelope. It was glade clear that too much money was not demanded. Again, the complainant was warned that in case the police people were brought, the child would not be found alive at the pointed place. Another instruction was that he should not show the letter to any other person in the village. It was threatened that in case the complainant showed any cleverness or hanky panky in handling the transaction, the dead body of his son would be thrown at Nau Kassi. On this anonymous letter (Exh.P.Q.), Muhammad Ishaque lodged a complaint (Exh.P.S.), on the basis of which, initially a case under section 365-A, P.P.C. was registered, vide F.I.R. (Exh.P.U.) The complainant suspected that Mahmood, Nasir, Mustaqeem, Sultan and Iqbal being bad characters of the area, might have a hand in the commission of the crime. It was apprehended that the boy might have been confined somewhere with a view to get ransom. It was suggested that in case the aforesaid persons were arrested, the missing child might be recovered from them. The appellant was, consequently, taken into custody by the police on 12-3-1992. On search, his Identity Card (Exh.P.21) and a key (Exh.P.22) were recovered from him and taken into possession on 13-3-1992. He led the police party to the recovery of the dead body of Adrian Ishaque from his Bhana. The dead body teas buried in a heap of manure in the said Bhana. This recovery was witnessed by Malik Muhammad Javaid, Magistrate. The specimen handwritings of Mahmood were obtained and sent to the Handwriting Expert for their comparison with the aforesaid letter. The dead body was found wrapped in two jute bags. A ring, on which the name of Adrian was engraved, was also found from the said bags. The dead body was despatched for its post-mortem examination through Mujahid Abbas F.C. The report (Exh.P.X.) of Alhaj Muhammad Ashraf Malik, S.P./Director Forensic Science Laboratory, Punjab, Lahore, about letter in question was as under:-- "The questioned Urdu writings on the pages marked as Exh.P.A., PA./1 and Exh.P.A./2 of the questioned letter have been examined and compared with the corresponding specimen Urdu writings of Mahmood provided on pages marked as Exh.P.B. to P.B.2, P.C. to P.C.2, P.D. to P.D.2. It was found that the questioned Urdu writings mentioned above bear identical characteristics with the specimens of Mahmood detailed above:"

3. Dr. Abdul Aziz Shah Bukhari (P.W.5) conducted the post-mortem examination upon the dead body and particularly noted the following injury on it:-- "An incised wound 1 c.m. x 1/2 c.m. x skin deep do the middle and outer side of right sole of right foot:" The doctor opined that the cause of death could not be ascertained due to the advanced stage of decomposition of the dead body as there was no neck skin, muscle, hydoid bone except skin of both arms and legs which vas darkish. The visceras' paste (Sotmach with its contents, pieces of large and small intestines, pieces of liver spleen and kidney and preservative (N/saline) were sent to the Chemical Examiner for detection of poison. On examination, it was opined that the poison was not detected. However, the doctor stated that the death could be caused by asphyxia.

4. The investigation of the case was conducted and completed, in parts, by Faiz Muhammad S.I. (P.W.17), Sabir Hussain Inspector (P.W.18) and Habib Ullah Inspector S.H.O. (P.W.19). On 24-3-1992, the appellant led the police party to his house where he opened his almirah with the key P.2. Citizen watch (Exh.P.6), satchel (Exh.P.17), pen (Exh.P.15), the raxine satchel (Exh.P.l7) containing two books (Exhs.P.8 and P.9), note-books (Exh.P.10 to P.14) and the pair of shoes (Exh.P.7/1-2) were recovered. These articles and lock of almirah (Exh.P.23) were taken into possession vide memo. Exh.P.M, On the pen (Exh.P.15), the name of Adrian was found to have been engraved. The plan Exh.P.M./1) of the place of recovery was prepared. On 25-3-1992, Mustaqecm, accused, while in police custody got recovered a locket (Exh.P.l8); on which `A' had been engraved, alongwith his identity card (Exh.P.l9). These articles were found from the brief case (Exh.P.20). The articles were taken into possession vide memo. Exh.P.N. The plan (Exh.P.N./1) of the place of aforesaid recovery was prepared. Nasir, Iqbal and Sultan were arrested by the police on-12-3-1992 at about 7-00 p.m. However, nothing could be. recovered from them.

5. Muhammad Ismail P.W. deposed that he had two daughters. He, therefore, obtained the custody of Adrian Ishaque from his brother in order to bring him up as his own son. On the day of occurrence, as usual, Adrian Ishaque went to the house of his teacher to study tuition. On 6-3-1992 at about 5-20 p.m., the boy was wearing coloured Shalwar, shirt, vest, shoes and a golden locket when he went to the tuition centre. Muhammad Aslam (P.W.9) and Attique Ullah (P.W.10) were able to last see the minor in the company of the accused before his death. The witnesses thereafter went to Lahore for shopping purposes. Muhammad Aslam P.W. is the owner of a soap factory while Attique Ullah P.W. runs a general store. Their evidence is that, after doing necessary shopping, they returned home in the evening on 11-3-1992. They had seen Adrian Ishaque in the company of the accused near the shop of Haji Muhammad Ibraheem. Admittedly, Muhammad Ismail is not related to Muhammad Aslam. Sanaullah P.W. and Muhammad Rafique (not produced) were the witnesses before whom the extra-judicial confession about abduction and murder of Adrian was made by the accused Mustaqeem. Sana Ullah P.W. disclosed that on 11-3-1992 at about 5-30 p.m., he went to the house of Muhammad Rafique, a mason, for hiring him to effect repair in his house. Mustaqeem (acquitted co-accused) also reached there and told Sana Ullah P.W. that he would wish to talk with him in privacy. Mustaqeem confessed before the said P.W. that Mahmood, Nasir, Iqbal and Sultan abducted Adnan Ishaque from near the house of Haji Muhammad lbraheem with an intention to receive ransom from the parents of the boy. The boy was taken to the house of Mahmood where he started crying. The accused apprehended that in case of his release, the boy would tell about the accused to his parents and others. Mustaqeem held the boy from his face and Mehmood pressed his throat till he was dead. Nasir and Iqbal held him from his legs. The dead body was buried in a heap of manure near the Bhana of Mahmood. It was also disclosed that Mahmood wrote a letter to Muhammad Ishaque damanding payment of a sum of Rs.3,00,000 for the release of his son.

6. The appellant denied the allegations levelled against him in his statement under section 342, Cr.P.C. He deposed that he was subjected to torture by the police. He was thus compelled to write Exh.P.Q. and its envelope (Exh.P.L.) by Habib Ullah, Inspector (P.W.19). He also admitted to have given the specimen handwritings. He stated that his father was a leader of Rajput Tribe who was politically opposed by the Arains of the village and that the candidate of Rajput Tribe had often succeeded in the past elections. Due to this political rivalry, the Arains had falsely implicated him in this case. He further stated that the P.Ws. belonged to Arain Tribe.-

7. The learned counsel contends forcefully that there is no trustworthy evidence available on record to convict and sentence Mahmood. He argue that the statement of the appellant was not properly recorded as warranted by law. He submits that letter (Exh.P.Q.) could not be read in evidence because it was not proved as required by law. He also states that the handwriting expert was not produced to prove letter Exh.P.Q. and as such the letter cannot be allowed to be read in evidence. It is, therefore, argued that the trial of Mahmood stood vitiated under the law. Learned counsel, therefore, prays for an order to retry the accused in the interest of justice. According to him, the offence of murder was not proved against the appellant inasmuch as the evidence of extra-judicial confession was discarded by the learned trial Judge. It is maintained that last seen evidence is also. not trustworthy. He argues that no conviction could possibly be recorded on the basis of such a flimsy evidence. Learned counsel contends that the requirements of section 364, Cr.P.C. were not fulfilled. According to the learned counsel, at best an offence under section 201, P.P.C. was found to have been committed by the appellant on the basis of evidence available on record. Learned State counsel opposes the appeal tooth and nail by adopting the reasons given by the learned trial Judge in his judgment.

8. We have heard the learned counsel for the parties at considerable length. We have also read the whole record with utmost care. In our considered view, the prosecution has succeeded in proving its case both under sections 302 and 365-A, P.P.C. beyond any shadow of doubt. We do believe that letter (Exh.P.Q.) was written by the appellant in his own hand demanding the payment of a ransom from the complainant for the release of his son. The letter was delivered to the complainant by the Postman Nazar Muhammad (P.W.8). The letter was not stamped and as such a sum of Rs.2 as legal charges was recovered by Nazar Muhammad Postman and deposited in the Government Treasury. It is established that Mahmood, appellant, after writing the letter, sent it to the complainant through the local post office. It was delivered by Nazar Muhammad P.W.8.to Muhammad Ismail P.W. The letter (Exh.P.Q.), therefore, does connect Mahmood appellant with the commission of murder of Adrian Ishaque. It is in the evidence that no ransom was paid by Muhammad Ishaque P.W. for saving the life of Adrian Ishaque. In the letter, it was made clear by the appellant that the boy would be finished in case the price for life of the boy was not paid to him. The dead body of Adrian, as already mentioned above, was recovered at the instance of Mahmood from his own cattle shed from a heap of manure. He was in the exclusive knowledge of the place where the dead body was buried. In these circumstances, the' letter, the recovery of dead body, and the extra-judicial confession having been made in this behalf, recovery of articles and the last seen evidence, definitely link Mahmood appellant with the murder of Adrian Ishaque beyond any reasonable doubt. This evidence was believed by the learned trial Judge, who recorded it and also saw and observed the demeanour of witnesses, to convict and sentence Mahmood. We have also been persuaded to come to the` same conclusion but for some different, reasons. The appellant in his statement stated that he was compelled to write the letter under coercion and threats. The letter is proved to have been written before the murder of unfortunate boy. The statement of appellant in these circumstances is just an afterthought and does not f-it it the defence version. The writing of the letter (Exh.P.Q.) was admitted by him tin face of record, therefore, there was no need to examine the handwriting expert. The minor was abducted on 6-3-1992. Report No.6 was ?lodged with the police on 7-3-1992 which amongst others discloses that right foot of the body wag injured a day earlier to the occurrence. This injury was also noted by the doctor in his evidence. The dead body as recovered was undoubtedly that of missing boy Adrian Ishaque. According to Sana Ullah P.W., Mustaqeem accused had named the appellant as the person who pressed the throat of little Adrian. There appears absolutely no reason for the witnesses to falsely implicate the appellant in the case. These pieces of evidence of unimpeachable character when taken together would prove beyond any shadow of doubt that it was Mahmood appellant who committed the murder of Adrian Ishaque when his demand for ransom was not met.

9. The learned trial Judge has, after convicting the appellant under section 302, P.P.C. for committing 'Qatl-i-Amd', awarded him the sentence of death as Qisas and has also directed him to pay Diyat amounting to Rs.1,70,000 or in default of its payment, to further undergo six months' R.I. In other words, he has convicted him under clause (a) of section 302, P.P.C., which only prescribes the sentence of death as Qisas. Therefore, no other sentence, by way of Diyat or otherwise, could be awarded to him and to that extent the learned trial Judge has acted erroneously.

10. For awarding sentence of death as Qisas under clause (a) of section 302, P.P.C. it was necessary that the requirements of section 304(I), P.P.C. should have been complied with but neither the appellant/accused in this case had made any confession of the commission of the offence of murder nor the provisions of Article 17 of Qanun-e-Shahadat, 1984 were complied with. Therefore, he could neither be convicted under clause (a) of section 302, P.P.C. nor he could be awarded sentence thereunder. It was in fact a case of `Tazeer' punishable under clause (b) of section 302, P.P.C. under which a sentence of death or imprisonment for life could be awarded and in the circumstances of the case the appellant is convicted accordingly and is awarded the sentence of death. '

11. As regards the charge of abduction, the appellant was convicted under section 365-A, P.P.C. and sentenced to imprisonment for life and his property, if any, was also directed to be forfeited. This charge also stood proved against him and he was rightly convicted and sentenced. With the above modification, the appeal of Mahmood appellant is dismissed.

12. The co-accused of the appellant were rightly acquitted because there was no sufficient evidence to connect them with the commission of the murder. Nothing was recovered from them. There was also no circumstantial evidence against them to link them with the commission of the offence. Their acquittal is based on good reasons and, it is certainly not open to challenge in these circumstances. Their acquittal is in line with the principles laid down by the Supreme Court in the cases reported as Bashir Ahmad v. Muhammad Azam and another P L D 1969 SC 469 and Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 SC

11. This being so, the State appeal No.73/SAC/L of 1992 being without substance is also dismissed. N.H.Q./88/SAC Order accordingly.