2000 PLP 1406 (YLR)

11. The learned counsel for the complainant has submitted that the reasons given by the learned Additional Sessions Judge for not imposing the death penalty is that the appellants had no enmity prior to the occurrence against the deceased and their purpose was to snatch the car and in pursuance to this, they committed the murder and as such, they deserve a lenient view of the Court. This view is incorrect. This could not be a reason for not awarding the maximum punishment. He further submitted that although‑ the law has provided an alternative punishment, either is not to be passed indefinitely at the discretion of a Judge, where the accused has been found guilty of a deliberate murder, the Court must pass the sentence of death and the lesser penalty is to be awarded only when there are extenuating circumstances and the sentence consequent upon a conviction for murder must be death and that there is no ground available in the presence case for not awarding the maximum punishment. He further submitted that where a murder is committed to facilitate the commission of another offence, it is very cruel and revolting and could never, be a ground for taking a lenient view while passing the sentence. Learned counsel for the complainant further submitted that co‑accused Mst. Maryam Bibi has been acquitted on the ground that she was abducted by Atta Muhammad accused and her case was distinguishable from the other co -accused and the possibility could not be ruled out that she might have not shared common intention. These findings are incorrect and contrary to the record as she herself in her statement under `section 342, Cr.P.C. had stated that she is the wife of said Atta Muhammad accused and that she equally participated in the murder of Zaffar Iqbal deceased. He further submitted that imposition of fine of Rs.5,000 : to each appellant is too less for, an offence of such a nature.

12. I have given due consideration to the valuable arguments of the learned counsel for the appellants, revision petitioner/ complainant and the learned counsel for the State and have gone through the record with their able assistance.

13. The last seen story of the prosecution is based on the evidence of P.W.6 and P.W.7. P.W.6 Haji Taj Muhammad stated: ‑‑ "On 4‑3‑1993 at about 7‑00 a.m. I alongwith Faiz Ahmad P.W. went to Lari Adda, Okara in order to travel to Sahiwal. Zafar Iqbal deceased stopped his Taxi Car No.8645/OKA at the place where we were present. The Taxi Car is present outside the Court premises. All the accused present in the Court namely Khalid, Rafique, Atta Muhammad and Mst. Maryam were also sitting in the Taxi Car. We had Gup Shap with Zafar Iqbal deceased for 10 minutes who told us that he was going to Gujranwala alongwith the passengers/accused. Then in our presence, Zafar Iqbal deceased departed for Gujranwala alongwith the accused. Thereafter, we did not see Zafar Iqbal deceased either dead or alive." In his cross‑examination, this witness deposed: ‑‑ I am also Taxi driver and Zafar Iqbal deceased was my friend. He was also related to me. Zafar Iqbal deceased was my real maternal uncle's son. Mst. Safia P.W. is the widow of said Zafar Iqbal deceased. Faiz Ahmad P.W. is also related to Zafar Iqbal deceased. 3/4 days after when Zafar Iqbal deceased met with us at Lari Adda, Okara, we came to know that whereabouts of Zafar Iqbal deceased were not known ......... I alongwith Faiz Ahmad P.W. had to go to Sahiwal in order to see our friend Muhammad Ismail resident of village Wakeel Wala, Sahiwal at a distance of 4 miles from Sahiwal. We had to request him to provide a job for us at Poswal Factory near Kasowal. I had come to the house of Faiz Ahmad P.W. at Qadir Colony, Okara and stayed with him during the night. The place where we were standing at Bus Stand, Okara was in front of Zamindar Hotel. Hardly, we had reached bus stand when after 10/15 minutes Zafar Iqbal stopped his taxi car at the place where we were standing. We came from Qadir Colony on foot to Adda, Okara. 15/20 minutes after the departure of Zafar Iqbal deceased we boarded a bus and reached Sahiwal ........ When I came to know that whereabouts of Zafar Iqbal were not known I told Ashraf P.W. as well as widow of Zafar Iqbal deceased that I had seen Zafar Iqbal deceased in his Taxi Car alongwith accused Khalid Pervaiz, Atta Muhammad, Muhammad Rafiq and Mst. Maryam Bibi while sitting in his taxi car at Bus Stand, Okara. This fact was told by me to Safia and Ashraf P.Ws. on the 3rd or 4th day of my last meeting with Zafar Iqbal deceased at Bus Stand Okara. " 14 Faiz Ahmed P.W.7 stated; "About 8 months ago, I alongwith Haji Taj Muhammad P.W. went to Bus Stand, Okara at 7‑00 a.m. Zafar Iqbal deceased Taxi Driver stopped his taxi car near to us. The accused present in the Court were also sitting in that taxi car. Khalid accused was sitting in the front seat whereas Att Muhammad, Rafique accused were sitting on the back seat. Mst. Maryam Bibi alongwith three children was also sitting on the back seat. We had a Gup Shap with Zafar Iqbal deceased and the accused for 15/20 minutes and then he told us that he was going to Gujranwala alongwith the passenger‑accused. Thereafter, the accused departed from the said place for Gujranwala. He was not seen after then." In his cross‑exmination, he stated "The names of the accused were not mentioned by me in my statement recorded before the police as the accused were not known to me previously. Names of the accused were not known to Taj P.W. previously........ We shook hands with one accused and paid Salaam to the others ...... I am the paternal uncle of Zafar Iqbal deceased. On the 3rd or 4th day of our last meeting with Zafar Iqbal deceased we came to know that he not yet come back to his house. The woman accused was wearing Chadar. All the accused were not known to us previously ... It is incorrect that the story of Wajtakar had been concocted falsely to operate evidence against the accused." 15 It has been specifically questioned to the accused‑appellants in their statements under section 342, Cr.P.C. in Question No. 2 to which they all have answered that it was incorrect. The deceased Zafar Iqbal and Haji Taj Muhammad P.W.6 being related and in the same profession, the story of their meeting appears to be genuine. Faiz Ahmad P.W. and Haji Taj Muhammad P.W. have both stated that they had to go to Sahiwal in order to see their friend Muhammad Ismail. Both have stated that the purpose was to search some job in Kasowal Cotton Factory. P.W.6 has stated that the said Factory is near Kasowal while P.W.7 has stated that it was near Chichawatni at a distance of 3 miles towards Sahiwal, which in no way is a discrepancy fatal to the prosecution.

16. Learned counsel for the appellants has very strongly urged that both the eye witnesses were closely related to the deceased and were interested and unnatural witnesses. The argument is not convincing as the relationship of the witnesses with the deceased rather makes the meeting of the witnesses with the deceased as a natural phenomena as otherwise, there was no fun in meeting‑the witnesses with an unknown taxi driver: The conversation that took place between the witnesses and the deceased was also natural.

17. The next point urged by the learned counsel for the appellant is that non- indication in the site plan the exact location of the eye‑witnesses of the last seen alive with precision reflects that they were not present there at the crucial time. This argument is misconceived. There was no question of indication in the site plan the exact location of the eye‑witnesses of the last seen alive with precision as the site‑plan was not of the site where the eye‑witnesses had last seen alive deceased. It. was Lari Adda, Okara while the site plan that has come on the record relates to the place of occurrence which was in Kamonke City and it was the place from where blood‑stained string was recovered at the pointation of the accused Khalid Pervaiz, Atta Muhammad, Muhammad Rafiq and Mst. Maryam Bibi. The next contention is that the only independent and uninterested witness Haji Muhammad Aslam who had been examined during the course of investigation by the police and whose name appears in the list of witnesses, has not been examined by the prosecution and in this manner, adverse inference should have been drawn by the trial Court which it did not and, thus, the prosecution story was not liable to be accepted as true. The recovery of the string from the house owned by Muhammad Aslam has come on record from the mouth of Karam Elahi, S.I. (P.W.9) and the house of recovery was visited by Salimullah Draftsman (P.W.1) alongwith accused. Haji Muhammad Aslam was joined in the investigation as he was owner of the house where occurrence too place. He was made witness of memo of possession of blood‑stained string alongwith Haji Taj Muhammad and Faiz Ahmad. As there were three witnesses of memo of possession of blood‑stained string, out of whom the prosecution has examined Haji Taj Muhammad (P.W.6) and Faiz Ahmad (P.W.7), so it does not create any material dent in the prosecution case as the prosecution has successfully proved that the house was in Kamonke which was owned by Haji Muhammad Aslam and the crime string was also recovered from there at the pointation of the accused. The rule is that the prosecution has to "stand on its own legs and the accused have to create dent in the prosecution case and they are not bound to produce evidence. However, where a suggestion is made and denied that becomes a defence version for which the onus to prove shifts on the accused. In the present case, the accused have failed to create any dent in the prosecution case.

18. The next contention of the learned counsel for the appellants is that the alleged recoveries and circumstances as narrated are not enough without anything more to connect the appellants with the crime and that the crime string was recovered at least 18 days after the occurrence and it took 7 days more for examination and that in such circumstances, the Chemical Examiners Report that it was human blood was suspicious in view of probable disintegration of blood by putrefying during an extraordinary delay of 25 days. In this case, the blood‑stained string has been recovered at the instance of accused Khalid Pervaiz and blood has been found of human origin by the Serologist vide report Exh.P.K. The recovery witnesses have also stated that the crime string was recovered at the pointation of the accused and was blood‑stained.

19. In the case of Sardar Ali and others v. The State PLD 1967 SC 217 where blood stained key of the deceased was recovered and blood at the place where deceased was beaten was also recovered and a trail of blood drops leading to the Ahata of the accused where some more blood was found and clothes of the deceased which were blood‑stained were also recovered, were considered sufficient corroboration and link to connect the accused with the crime. In that case also, dead body was not found and the Hon'ble Supreme Court had maintained the sentence of transportation for life.

20. In the case of Allah Ditto v. The State 1968 SCMR 378 where circumstantial evidence consisted of the deceased last seen with the accused and the accused had exclusive knowledge where dead body lay buried and the articles of the deceased were recovered at the instance of the accused and the clothes secured from the accused were found stained with human blood, it was held that murder charge was established.

21. In the present case, no link is missing as to the seeing of the witnesses the accused with the deceased in the car of the deceased, the recovery of the same car from the same accused at Kohat, the pointing out the place of commission of offence of murder by the accused Khalid Pervaiz and the recovery of the articles belonging to the deceased and also on the pointation of accused Khalid Pervaiz, the recovery of blood‑stained string, are the circumstances which are not explainable on any other hypothesis than the guilt of the accused. The place of disposal of the dead body by throwing into a canal was an additional circumstance of destroying the evidence. In these circumstances, I am convinced that the learned trial Court was justified in passing the impugned conviction and I in the circumstances of the case, the sentence awarded by it is also just and correct.

22. The learned counsel for the revision petitioner has stressed that the sentence should be death but the judicial precedents referred to by me above support that the sentence of life imprisonment was adequate.

23. For the reasons stated above, both the appeals and revision are dismissed and the conviction and sentence passed by learned trial Court are maintained. H.B.T./K‑116/L Appeals and revision dismissed