2006 PLP 2709 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment shall dispose of Criminal Appeal No.268/J of 2003 filed by Muhammad Wakeel appellant, who was convicted by the learned Additional Sessions Judge-II, Chunian, District Kasur, vide judgment dated 31-3-2003, and was sentenced to imprisonment for Life under sections 302(b)/34, P.P.C. with the further direction to pay Rs.25,000 as compensation to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. in default whereof to further undergo six months' SI coupled with the benefit of section 382-B, Cr.P.C.

2. Brief facts of the case as disclosed by Muhammad Akram complainant are that on 29-5-2002 at about 11-00 a.m., he was present in his house, when Muhammad Wakeel along with two persons came and called for his son Javed to accompany them to catch the parrots from Chhanga Manga Forest. Hence on their asking his deceased son, namely, Muhammad Javed accompanied to them. However, when his son did not come back till evening time, then he went to the house of Muhammad Wakeel etc. but they tolerated the complainant. On his stress Muhammad Wakeel etc. told that they caught parrots from Chhanga Manga forest. However, on 1-6-2002, he accompanied the complainant party to Ghora Poli of Canal to search out Javed deceased but he did not take them towards the place of occurrence. However, the complainant continued the search of his son at different places. It has also been alleged by the complainant that today i.e. on 2-6-2002 at about 2/3-00 p.m., one Zulfiqar Lumberdar, informed him that the dead-body of his son lying in Field No.73 of Chhanga Manga Forest, near Ghora Poli, whose legs and hands were tied, upon this information the complainant along with his brother and others P.Ws. reached in the Forest of Chhanga Manga and saw there the dead body of his son Javed. It was further that Muhammad Wakeel along with his co-accused with their common intention has murdered his innocent son Javed, hence this case.

3. After registration of the formal F.I.R., investigation of the case was taken over by Muhammad Ilyas, S.-I. P.W.10, who went to the spot, prepared inquest report Exh. PG and injury statement Exh.PJ/1, took into possession blood-stained earth from the spot vide recovery memo. Exh.PH and also prepared rough site-plan Exh.PI. On 21-6-2002 he arrested accused Arif and Muhammad Wakeel and they while in custody led to the recovery of Churri P.1, which was taken into possession vide memo. Exh.PH. After completion of the investigation, the accused were challaned to face the trial.

4. At the trial, prosecution, in order to prove its case produced eleven witnesses in all, thereafter, learned S.S.P. tendered in evidence report of Chemical Examiner regarding Churri Exh. PO, regarding earth Exh.PP and closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence and attributed their involvement to enmity.

5. Learned counsel for the appellant, in support of this appeal, made following submissions:-- (i) That the F.I.R. in this case was registered with an unexplained and inordinate delay of three days which makes the case doubtful; (ii) That the appellant has been involved in this case falsely; (iii) That the co-accused of the appellant, namely, Muhammad Arif has already been acquitted by the Court in Criminal Appeal No.685 of 2003 vide judgment dated 18-12-2003, therefore, appellant is also entitled to acquittal as per rule of consistency; (iv) That actually it is a blind murder and was an unwitnessed occurrence and the judgment of conviction is not supported by the evidence recorded by the learned trial Court. (v) That the recovery of the weapon of offence i.e. knife is joint which is not admissible in evidence; (vi) That the prosecution has failed to prove its case against the appellant beyond any shadow of doubt; (vii) That the report of the swabs was also found to be negative and it is a case of no evidence.

6. On the other hand, learned counsel for the State, while defending the impugned judgment of conviction, submits that although there is no eye-witness of the murder of Javed deceased but there is an evidence of taking away the deceased by the appellant from the house of the complainant in the form of last seen to sustain conviction of the appellant and that the judgment of the learned trial Court is a well-reasoned judgment and does not call for interference.

7. I have heard learned counsel for the parties, have gone through the evidence on record with their able assistance including perusal of the judgment of acquittal of Muhammad Arif co-accused dated 18-12-2003 passed in Criminal Appeal No.685 of 2003 and have also given anxious consideration to their respective submission made at the bar.

8. It is a fact that I have already acquitted Muhammad Arif co-accused of the present appellant vides judgment dated 18-12-2003 passed in Criminal Appeal No.685 of 2003 for the reasons that he was not named in the F.I.R. but was named through supplementary statement. As far as case of the present appellant is concerned, he was named in the F. I. R. by Muhammad Akram complainant (P.W.1) who is father of the deceased Javed. The case of the present appellant being on different footings than that of his acquitted co-accused Muhammad Arif, therefore, rule of consistency does not apply in appellant's case and acquittal of Muhammad Arif is of no avail to him. Case of the present appellant shall be adjudged on its own merits.

9. While appearing as P.W.1, Haji Muhammad Akram complainant stated that on 31-5-2002 at about 10-45 a.m. the present appellant and his co-accused Muhammad Arif (acquitted accused) along with Rafique came to his house and called for his son deceased Javed. At that time the complainant and his said son Javed along with other family members were present in the house. The appellant Wakeel entered the house and stated that he wanted to take away Javed to catch parrots from the forest whereas acquitted accused Arif and Rafique remained outside the house. The said three persons also took away his son for two/ three times earlier for catching the parrots. According to the complainant, his said son Javed accompanied the said accused persons towards Chhanga Manga Forest. He further disclosed that when his son Javed did not return home till evening, he went to the house of appellant Muhammad Wakeel along with Muhammad Aslam, Ashraf, Shafi etc. and inquired about his son Javed whereupon appellant and Arif (acquitted accused) told him that complainant's son had come earlier but now they were not aware about his whereabouts. It is manifest from the statement of the complainant that there is an evidence of last seen of Ashraf and AsIam P.Ws. who told him that they had seen his son in the company of the above said accused persons near Chhanga Manga Forest at about 11-45 a.m. Aslam P.W. inquired from them that what they were doing there. They replied that they had caught parrots from the forest. Muhammad Ashraf appeared as P.W.2 while Muhammad Aslam appeared as P. W.3 to support the prosecution case. Their statements are corroborative of each other so far as the role of the appellant is concerned.

10. As far as recovery is concerned that is joint one and is not admissible in evidence. There is no eye-witness in this case so I am of the considered view that the conviction awarded to the appellant under section 302(b), P.P.C. cannot be maintained. However, there is evidence of taking away the deceased Javed from his house by the appellant and moreover there is an evidence of last seen in the shape of statements of Muhammad Ashraf (P.W.2) and Muhammad Aslam (P.W.3) which fully implicates the present appellant with an offence punishable under section 364, P.P.C. None of these witnesses had any animus against the appellant. At this stage, learned counsel for the appellant submits that both these witnesses are closely related to the deceased. It is settled by now that mere relationship of a witness with the deceased would not discard his testimony because interested witnesses are those who are not only related closely but are also inimical towards the accused. Admittedly, there is no background of enmity between the parties. So conviction of the appellant under section 302(b), P.P.C. is set aside and he is convicted under section 364, P.P.C. although he was not charged under the said section. In this regard I am fortified with a famous judgment of the august Supreme Court of Pakistan reported in Zulfiqar Ali Bhutto v. The State (PLD 1979 Supreme Court 53), wherein the apex Court of the country, in paragraph 826 of the said judgment, observed as under:-- "

826. The survey of the cases shows that the laws as embodied in sections 236 and 237 of the Criminal Procedure Code read together appears to be that if on the facts alleged it was doubtful which of several offences the proved facts will constitute and on the fact eventually proved, of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their Lordships of the Privy Council have indeed put it simply and shortly by saying that a man may be convicted of an offence although there has been no charge in respect of it if the evidence is such as to establish a charge that might have been made".

11. I further note that two type of sentences are given in section 364 P.P.C. i.e. life imprisonment or imprisonment up to ten years. As the appellant is less than eighteen years of age so taking a lenient view and to meet the ends of justice, he is sentenced to fourteen years' R.I. He is also fined Rs.25, 000 or in default six months' R.I. and shall also be given the benefit of section 382-B, Cr.P.C. This appeal is disposed of with the above modification in the quantum of sentence. N.H.Q./M-1297/L?????? ?????????? Order accordingly.