MUHAMMAD NADEEM Versus THE STATE

JUSTICE NASIM HASAN SHAH, CHAIRMAN. --- This is an appeal under section 13 of the Special Courts for Speedy Trials Ordinance, 1991 against the judgment of Mr. Justice (Retd.) Gulbaz Khan, Judge, Special Court for Speedy Trial No.II, Lahore, dated 20-1-1992. The appeal was preferred, as contemplated by subsection (4) of section 13 of the Ordinance, within seven days of the passing of the judgment, on 27-1-1992. Under subsection (6) of section 13 of the Ordinance, the appeal is to be heard and decided by the Supreme Appellate Court within thirty days. This provision is in conformity with the provisions of sub-Article (7) of Article 212-B of the Constitution which provides for the setting up of these Special Courts.

2. This appeal came up for hearing before us within one month, on 27-2-1992. We observed that the Paper Books of the appeal were incomplete and were not accurately prepared. The corrections made by the learned Judge of the Special Court in the statements of witnesses recorded by him were not carried out in the copies; that neither the statements of the defence witnesses nor that of the accused were included ii) the Paper Books supplied to us; nor were the exhibited documents included therein: However, in order to decide the appeal within 30 days of its presentation before us, we proceeded to hear the matter and did not adjourn it, referring wherever necessary to the original record of the Special Court for overcoming these deficiencies.

3. However, the hearing of the appeal could still not be concluded on 27-2-1992 which has been completed today on 29-2-1992 the 28th February, 1992, a Friday, being a holiday and the case accordingly decided today two days beyond 30 days of the presentation of the appeal in this Court. However, the judgment delivered today is not on that account invalid in any way because Article 254 of the Constitution itself provides that "When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, that doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period". This provision, as explained by the Supreme Court in Reference No.1 of 1988 made by the President of Pakistan P L D 1989 SC 75, "envisages delay in the performance of duty or doing of the mandated act but then makes allowance for the delay without defeating the action or the performance of the duty".

4. Coming now to the facts of the case, Muhammad Nadeem appellant herein was tried by the Special Court for Speedy Trial No.II, Lahore, on the charge of kidnapping Muhammad Tahir, a boy of tender age, and after subjecting him to sodomy of having murdered him. On the conclusion of the trial, the learned Judge, vide his judgment dated 20-1-1992, convicted the appellant:--

(i) under section 365-A, P.P.C. and sentenced him to death and a fine of Rs.50,000 or in default of its payment to further undergo two years' R.I. and

(ii) under section 302, P.P.C. and sentenced him to death subject to its confirmation by the Supreme Appellate Court.

5. He, however, acquitted him of the charge under section 377, P.P.C. The fine, if realised, was directed to be paid as compensation to the father of the deceased.

The prosecution case briefly stated is as under:--

6. Muhammad Nadeem appellant and Muhammad Tahir (deceased) were residents of Samanabad, a locality of Faisalabad Town. On 17-7-1991 Muhammad Tahir (deceased), wearing only a Shalwar, went out of his house and did not return. His father Munir Ahmad not being able to locate him, despite getting announcements made on loudspeakers from different mosques went to Police Post Samanabad on the following day, to report about his missing son. The police entered the report in the daily diary and promised to trace the boy. He went on searching for his son but could not find him for many days.

7. On 24-7-1991 at about 6-30 p.m. Safdar Hussain P.W. was present near Pir Pully in the area. of Chak No.221-R.B, with one Muhammad Idrees waiting for some conveyance when they saw a putrefied dead body of an unkown boy, aged about 10/11 years, wearing a white Shalwar and a piece of cloth around its neck, floating on the water of Rajha Tal. A report to this effect was lodged by Safdar Hussain P.W. to the Police Station Saddar, Faisalabad and S.I. Amjad Waheed took up the investigation of this case. He reached the place where the dead body was floating and, after preparing his injury statement and inquest report, sent it to the mortuary under the escort of F.C. Rahim Dad P.W. for post-mortem examination. He prepared the rough sketch of the place of recovery of the dead body. After conducting the post-mortem examination, the doctor handed over the Kist-worn Shalwar (P.1) and piece of cloth (P.2) to F.C. Rahim Dad P.W. As the dead body was not claimed by anybody, it was sent to the Punjab Medical College, Faisalabad and Rafiq Masih, an employee of this institution buried it as unidentified and unclaimed.

8. In the meanwhile Muhammad Munir P.W., the father of the missing boy had received a letter dropped by some one inside the main door of his house which contained a demand for ransom for his missing son. On 25-7-1991, he received another letter contained in an envelope having similar contents. On 27-7-1991, he received yet another letter to similar' effect. A demand for ransom of Rs.3,00,000 was made in these letters and one of them asked him to place the ransom amount under the plank (Phatta) of Majeed Butcher of his locality if he desired the restoration of his son. These messages also contained threats of dire consequences including the murder of his missing son, in case he disclosed the contents to anyone, including the police.

9. Munir Ahmad P.W. in order to save the life of his son even placed the money demanded under the Phata of Majeed and kept a close vigil at the said place but none came to pick it up. Ultimately on 28-7-1991 he came to know that Saddar police had recovered the dead body of a boy from a minor. On the receipt of this information he went to the police station. In response to his query, the police showed him the Shalwar (P.1) which he identified as that of his missing son. On the asking of the police; he later brought the shirt of his son from his house in order to match it with the Shalwar and actually matched the same with it. The police seized the shirt (P.3) vide recovery memo. (Exh.P.J.). He also produced the aforesaid letters alongwith the envelopes before the police which took them into possession vide memo. (Exh.P.K.) He also produced the copy of the report of daily diary, dated 18-7-1991, entered by Police Post Samanabad. In order to locate the dead body, he, on the information conveyed to him by the police, went to Punjab Medical College, Faisalabad. On his request the dead body, which earlier on 25-7-1991 had been buried by Rafiq Masih P.W., was delivered to him after it had. been exhumed. He brought the dead body to his house and buried it as that of his missing son Muhammad Tahir.

10. On 29-7-1991, Muhammad Shafiq, Nisar Ahmad and Aslam joined investigation and recorded their respective statements to the police, containing extra-judicial confession of Muhammad Nadeem appellant. On the basis of the evidence so far collected, the police arrested him on 29-7-1991. On interrogation he offered to lead the police to the recovery of gunny bag (P.5) on which he had allegedly committed sodomy with Muhammad Tahir before committing his murder. It was seized vide recovery memo. (Exh.P.N.) The rough sketch of the place of occurrence was also prepared. Later the site plan was also got prepared by the police from the draftsman. On 5-9-1991 the appellant offered to get recovered the letter-pad on which he had allegedly written one of the aforesaid letters and leading the police party to his house, got recovered fetter pad (Exh.P.H.16) from the Almirah of his house. It was seized by the police; vide seizure menu. (EXh:P.H.). On the same day he was got medically examined in order to prove his sexual potency. On 6-8-1991, the Investigating Officer produced him before a local Magistrate for obtaining his specimen writings for comparison with the contents of the letters produced by the deceased's father, and the Magistrate took his specimen writings accordingly. The Investigating Officer sent the same alongwith the letters produced by the deceased's father to the office of handwriting expert for comparison. He received the expert's opinion. Thereafter the Investigating Officer submitted the challan to the Special Court and the appellant was put on Trial for the offences punishable under sections 365-A, 377 and 302, P.P.C. and, on his pleading not guilty, the prosecution produced as many as 21 witnesses to prove its case.

11. The first witness Dr. Muhammad Akram, Casualty Medical Officer, D.H.Q. Hospital Faisalabad (P.W.1) deposed that on 25-7-1991 at 9 a.m. he conducted post-mortem examination on the dead .body of an unknown male person aged about 12 years. He found that there was a twisted cloth around its neck with the dark-brown skin underneath, besides a continuous black ligature mark 20 c.m. x 1 c.m. around the neck placed horizontally at the level of thyroid cartilage. The dead body was in an advanced stage of putrefication and was clad only in a Shalwar of white colour. According to him, the skin of different parts of the dead body, excepting that of front chest, neck and face, which was intact, was missing. He also found that the mouth of the deceased was open, and the tongue was protruding out. In his opinion, death in this case occurred within a few mintues due to stangulation, which was ante-mortem and sufficient to cause death in the ordinary course of nature.

12. Dr. Aziz Ahmad, Medical Officer, D.H.Q. Hospital, Faisalabad (P.W.2) deposed about the sexual fitness of Muhammad Nadeem. In reply to a question he stated that he did not mention the age of the accused. However, according to him, he was not 13/14 years old, rather, he was more than 15 years of age.

13. Coming to the evidence of the other important witnesses we note that Rafiq Masih (P.W.9) testified that on 25-7-1991 he was given the dead body of a boy which he buried in. the graveyard and after exhuming it on 28-7-1991 he handed it over to Munir Ahmad P.W., Safdar Hussain complainant (P.W.10) repeated the contents of the F.I.R.

14. Muhammad Shafiq (P.W.11) furnished the details of the extra-judicial confession made to him by the appellant. He deposed that on 29-7-1991, at about 2 p.m. when he was present at his cycle workshop alongwith his friends Nisar Ahmad (P.W.12) and Muhammad Aslam (P.W.14), the appellant, who was his Mohalladar residing at a short distance from his house, came there and took him aside for talking in private. He had tears in his eyes and told him that in the afternoon of 17-7-1991 he abducted Muhammad Tahir resident of his Mohallah for ransom and took, him to the ground of Science College, Faisalabad. He first committed sodomy with him on a gunny bag but when Muhammad Tahir started weeping and crying he strangulated him with a Safa, so that he might not disclose the fact that sodomy was committed with him. He then threw his dead: body in the Rajbah. He further deposed that on the following day he joined the father of the boy in searching out his missing son and till the recovery of the dead body from the Rajbah he wrote three letters to him, demanding ransom, but remained unsuccessful. He testified that the appellant beseached him for the help and requested to produce him before the police. According to P.W.11 after hearing story of the appellant he could not make out as what to do and calling Nisar Ahmad (P.W.12) and Muhammad Aslam (P.W.14); who were present at his cycle workshop, repeated to them what the appellant had told him remarking how cruel he had been. They all pondered over the matter for half au hour while the appellant left for his house whereafter he alongwith his two companions went to the police station where they made their respective statements. Nisar Ahmad (P.W.12) and Muhammad Aslam (P.W.14) also deposed in similar terms.

15. Muhammad Yasrab Magistrate (P.W.13) stated that on 6-8-1991 the S.H.O. of Police Station Saddar, Faisalabad, requested him through an application for obtaining the specimen handwriting of the appellant and he acting accordingly obtained his handwriting (Exh.P.H./1) to (Exh.P.H./10) in different speeds.

16. Ali Akbar Postman (P.W.15) stated that House No.1737, Block No.13, Chandni Chowk, Samanabad, Faisalabad (the house of the deceased's father) was within his beat and on 27-7-1991 he ,delivered the envelope (Exh.P.H./14) to Munir Ahmad P.W. According to him, it bore the stamp "24-7-1991" but due to Muharram holidays he delivered it to the addressee on 27-7-1991.

17. Munir Ahmad (P.W.16) deposed that Muhammad Tahir (deceased) was his son, he was 9/10 years old, and the house of Muhammad Nadeem appellant was situated at a distance of 2/3 houses away from his house., He testified that on 17-7-1991 at 6 p.m. he found his minor son, who was wearing a Shalwar missing and he started searching for him. According to him, he got the announcements made on the loudspeakers from the mosques of the Mohallah and a few mosques of other localities but when he could not find him, on 18-7-1991 he made a written report at Police Post Samanabad. He added that he went on conducting search for his missing son and on 20-7-1991 he received a letter (Exh.P.11), on 25-7-1991 he received another letter (Exh.P.12) and on 27-7-1991 he received yet another letter (Exh.P.G.13) in envelope (Exh.P.H./14). In these letters, according to him, the author demanded Rs.3,00,000 as ransom and suggested that the amount should be placed under the plank (Phatta) of Majeed Butcher and if he did so, he would find his son plying in the Chowk of the village. The letters threatened him not to disclose their contents to anyone including the police. He testified that acting on the directions contained in the letter, he collected money and placed it under the plank- of Majeed Butcher, which was close to the house of the appellant, and 'kept on watching but nobody picked it up. According to him, on 28-7-199.1 he received an information that Saddar Police had recovered the dead body of a boy from the Rajbah and when he, accompanied by Ali Muhammad, went to the police station, he was told that the dead body had been sent to Punjab Medical College, and they were in possession of the Shalwar. He stated that he identified the Shalwar which was made of KT cloth and had an elastic string in it, as that of his son Muhammad Tahir. He deposed that on the asking of the police he brought the shirt of the deceased from his house and produced the same before the police. According to him, he also produced the aforesaid three letters, besides the copy of the report of daily diary before the police, which was seized by memo. (Exh.P.K.). He then learnt that the dead body had been sent to Medical College, Faisalabad, where he went hurriedly in a police vehicle and also took with him the shirt of the deceased, he added. He further deposed that the dead body of his son was handed over to him on the same day and bringing it to his house, he buried it. He testified that .he again produced the shirt before the police on 2-8-1991 and it was seized by them.

18. The next witness whose statement is somewhat important is 'Hafiz Shabbir Hussain (P.W.17). He stated that on 5-8-1991 he went to Police Station Saddar, Faisalabad at 1-30 p.m. and in his presence the appellant, on the interrogation of the police, offered to get recovered the letter pad and leading the police party to his house, got recovered from the Almirah the letter-pad (Exh.P.H./16).

19. Alhaj Muhammad Ashraf, Superintendent of Police, Technical Services Punjab (P.W.20) appearing as Handwriting Expert deposed that on 8-8-1991 he received questioned letters (Exh.P.H.11), (Exh.P.H.12) and (Exh.P.H.13) alongwith two envelopes (Exh.P.H.14) and (Exh.P.H.15) besides a writing pad (Exh.P.H.16) and specimen writings of Muhammad Nadeem accused (Exh.P.H./1 to P.H./10) and after examining the same he came to the conclusion that the questioned writing (Exh.P.H./13) was identical with the specimen writings (Exh.P.H./1 to Exh.P.H./3). Similarly according to him, a few points of similarity were observed between the contents of questioned documents (Exh.P.H./11) and (Exh.P.H./12) with the specimen writings (Exh.P.H./4 to Exh.P.H./6). Likewise questioned writing (Exh.P.H./16) was compared with specimen writing (Exh.P.H./10) and were found identical, he added. He proved his report (Exh.P.S.). He also brought on the file points of similarity contained in three sheets (Exh.P.S./1), (Exh.PA./2) and (Exh.P.S./3). These were, however, objected to by the learned defence counsel.

20. The appellant, in his statement recorded under section 342, Cr.P.C. denied all the incriminating circumstances made out in the prosecution evidence against him. He stated that the specimen writings (Exh:P.H./1) to (Exh.P.H./10) were obtained from him at the police station under coercion and not before the Magistrate. He did not make any. statement on oath as contemplated under section 340(2), Cr.P.C. in the, disproof of the allegations levelled against him. He, however, examined Muhammad Younis Suleman, Staff' Reporter of daily `Awam' Faisalabad, (D.W.1), Shahbaz Ahmad, Bureau Chief, `Daily Jang' (D.W.2) and Ahmad Kamal Nizami, Bureau Chief of daily `Nawa-i-Waqt', Faisalabad (D.W.3).

21. The first two witnesses deposed that their reports regarding the arrest of the appellant were published in their newspapers on 28-7-1991 while the last defence witness stated that he had picked up the news from `Awam' and his report was published in `Nawa-i-Waqt' on 29-7-1991, regarding the arrest of the appellant.

22. On the conclusion of the trial the appellant was convicted and sentenced in the manner stated already and aggrieved by it, he has come up in appeal to this Court.'

23. It was argued on behalf of the appellant that there was no proof about the death of Muhammad Tahir, the missing son of Munir Ahmad P.W., but even if he was dead, the prosecution had failed to establish that he was murdered by the appellant. With reference to the medical evidence, the learned counsel for the appellant contended that the dead body recovered by the police from Rajbah Tal being at the advanced stage of putrefication, was, as per statement of Dr. Muhammad Akram (P.W.1), who had conducted the post-mortem examination, was unidentifiable and Munir Ahmad P.W. had no occasion to identify it as that of his son. He contended that Munir Ahmad P.W. had identified the dead body with the help of `Shalwar' which it was wearing at the time of its recovery and which was shown to him by the police when he visited Police Station (Saddar), Faisalabad on 28-7-1991 after the dead body had been sent to the Medical College for its burial as unclaimed. In his view, the matching of boy's shirt, which Munir Ahmad P.W. had brought to the police, station on 2-8-1991, with the `Shalwar' worn by the dead body was an after thought and a mere concoction. He argued that Munir Ahmad P.W., being not sure about the age of his missing son, stated his age by approximation as nine years, while according to the doctor, who conducted post-mortem examination, the boy was about 12 years old and this fact clearly indicated that the dead body was of some boy other than Muhammad Tahir. He contended that since Munir Ahmad P.W. has lost his son, it was only his impression that the dead body recovered by the police was that of his son and under that impression he brought it from the Medical College after getting it exhumed through Rafiq Masih. He maintained that excepting the ligature around- the neck of the dead body, which in fact was a portion of the skin having changed its colour on account of the presence of the cloth around the neck, there was no mark of violence on the dead body, as per statement of the doctor conducting post-mortem examination. In the opinion of the learned counsel, the death of the boy could have been caused by drowning and the symptoms of bloated face and protruded tongue noticed by the doctor and forming basis for his opinion about the death of the boy by strangulation, could even be caused by drowning. He urged that the boy in fact had died by drowning while taking bath in the canal of Rajbah, without anybody having killed him and the appellant was blamed merely on account of suspicion.

24. On the contrary, it was canvassed on behalf of the prosecution that despite the dead body being at the advanced stage of putrefaction, it was still identifiable, particularly by a father because its skin on the chest, neck and face was still intact and the presence of `Shalwar' on the dead body, which stood matched with the shirt of the boy available in the house of his parents, provided an additional factor for its identification. According to the learned counsel appealing on behalf of the State, the death of the boy by strangulation stood amply proved from the statement of the doctor conducting post-mortem examination on the dead body and it could not be a case of simple drowning without violence because had it been so there could be no reason for the presence of a twisted cloth around the neck of the dead body. It was contended that there was no vast difference between the age of the boy, as stated by Munir Ahmad P.W. and the one estimated by the doctor and this factor alone was not sufficient to cause any doubt in the identity of the dead body.

25. After carefully considering the above contentions, we are of the view that the dead body recovered by the police from Rajbah Tal on 28-7-1991 was that of Muhammad Tahir, the missing son of Munir Ahmad P.W., who as a father could identify it despite its having reached an advanced stage of putrefication because the skin on the front chest, neck and face, as per observations of the doctor conducting post-mortem examination, was still intact. No doubt, before his arrival to the police station the dead body had been sent -to Medical College, Faisalabad, for disposal as unclaimed, yet he identified the Shalwar being worn by the dead body at the time of its recovery which was available with the police and bringing the matching shirt from his house he went to the Medical College and after getting it exhumed through the concerned person, brought it to his house for burial. Thus, he had the occasion to see and identify it after dis-internment, with the help of its features of front chest, neck and particularly the face, where the skin was still intact, coupled with the additional aid of the Shalwar and the matching shirt. In fact the statement of Munir Ahmad P.W. on the factum of identification of the dead body was never seriously challenged by the defence during the course of his examination before the trial Court and it, is only now that this aspect of the case is being stressed with such vehemence.

26. There was, therefore, no doubt about the identification of the dead body and we hold that it was that of Muhammad Tahir, the missing son of Munir Ahmad P.W. There could be no doubt about the boy's having been killed by violence either. The doctor who conducted the post-mortem examination categorically stated that the death had occurred on account of strangulation. He supported his conclusion by referring to the blotted face and protruded tongue, which arc normal consequences of death caused by strangulation though some times these symptoms could also be discernible in the event of death by drowning, as contended by the learned counsel for the appellant. The presence of a twisted cloth (Sofa) around the neck of the dead body and the ligature mark was another proof presumptive of the fact that the boy had been strangulated to death. Had it been a case of simple drowning, the twisted cloth around the neck would have been non-existent. There is also no force in the contention of the learned counsel for the appellant that the dark- coloured skin around the neck giving the impression of ligature mark could be caused by the presence of cloth around the neck. The discrepancy on the question of age of the dead body, as appearing from the statement of Munir Ahmad P.W. and the opinion of the doctor ` conducting post-mortem examination is hardly a serious one and in the, circumstances of the case of no significance,

27. The next contention of the learned counsel for the appellant was that the prosecution had failed to establish that the boy even if dead had been murdered by the appellant. He argued that neither the evidence of extra -judicial confession nor that of letters allegedly written by him to Munir Ahmad P.W., demanding ransom for his missing son, inspired confidence. According to him, there could be no earthly reasom for the appellant to have gone to the cycle repairing shop of Muhammad Shafiq P.W. for confessing his guilt to him and to two other persons, namely, Nisar Ahmad and Muhammad Aslam P.Ws., who were incidentally present there, because none of them had any status in life to provide him any succour or help for winning any concession for him from the police. These witnesses, according to the learned counsel, were in fact set up by the police in order to tailor a story in its crude attempt to establish appellant's link with the commission of murder. In this connection he particularly referred to the demeanour of Nisar Ahmad (P.W.12) which was noticed even by the trial Court for discarding his testimony. Criticising this piece of evidence from another angle, he submitted that, as per news item published in `Daily Awam'. `Daily Jang', and `Daily Nawa-i-Waqt', which were proved by the three defence witnesses, it stood simply established- that the appellant tad been arrested by the police on 27-7-1991. According to him, if this was so, then there could be no occasion for him to make the so-called extra-judicial confession before Muhammad Shafiq, Nisar Ahmad and Muhammad Aslam P.Ws. on 29-7-1991 by going over to the cycle-repairing shop of Muhammad Shafique P.W. This fact, according to the learned counsel, was accepted even by the trial Court but surprisingly enough it still relied upon this piece of evidence for convicting the appellant.

28. As regards the evidence of letters allegedly written by the appellant and produced to the police by Munir Ahmad P W., the learned counsel submits that this piece of evidence was concocted by the police with the help of Munir Ahmad P.W. with a view to falsely implicating the appellant. He contended that if Muhammad Tahir had been decoyed by the appellant for ransom he would not have killed him on 17-'7-1991 and then demanded ransom from his father because all the three letters were received by him after This date. With reference to the statement of Ali Akbar Postman (P.W.15), he asserted that the* police set up this witness in order to prove the delivery of the letter contained in the envelope Exh.P.H./14 but he stood exposed by his own statement in the cross-examination wherein he admitted that it bore only one .stamp or seal instead of two, one of receiving post office and the other of disbursing post office. Commenting on the statement of Alhaj Muhammad Ashraf, Superintendent of Police Technical Services (P.W.20); he argued that it was obligatory for him to have stated before the trial Court various characteristics and points of similarity between the contents of the questioned documents and the specimen writings and his opinion, without this supporting material could not be taken into consideration. The expert opinion, even otherwise was the weakest kind of evidence, he, added.

29. The learned counsel representing the State, on the other hand, argued with vehmence that there was no infirmity in the evidence concerning extra judicial confession of the appellant, nor in the letters written by him to the father of the deceased for demanding ransom. According to the learned counsel, the defence counsel despite lengthy cross-examination of Muhammad Shafiq P.W.; who deposed about the extra-judicial confession of the appellant, did not challenge the veracity of his statement on this point and the appellant in his statement recorded under section 342, Cr.P.C. did not deny the writing' of letters to the deceased's father demanding ransom, rather, he indirectly admitted this fact by only stating that the specimen writing had been got written from him by the police at the police station and not before the Magistrate. It was urged that the writing of the aforesaid three letters by the appellant, after killing Muhammad Tahir on 17-7-1991, could well be a device to mislead the deceased's father or he could still recover ransom without abiding by his commitment to release the victim alive. With regard to the defence evidence, the learned counsel was of the opinion that being a hearsay evidence, it was inadmissible and was bound to be discarded for that reason. He contended that the learned trial Judge was not correct in coming to the conclusion that the extra-judicial confession had been made by the appellant on 29-7-1991, when he had already been arrested by the police on 27-7-1991 because this finding was without any basis, especially when the Investigating Officer had emphatically repudiated the suggestion of the defence that he had arrested the appellant on 27-7-1991, and no other evidence en this point was available on the record. In his view, the learned trial Judge unconsciously took a cue in this respect from the inadmissible defence evidence embodied in the news item.

30. We are inclined to agree with the submissions of the learned counsel of the State.

31. So far as the evidence of extra-judicial confession of the appellant is concerned, we have not been able to find any legal infirmity therein, particularly in the testimony of Muhammad Shafiq P.W. He was Mohalladar of the appellant and being so they were intimately known to each other. Therefore, the latter could confide in the former even without any expectation of help from him. The commission of a crime like a murder, especially by a young boy like the appellant who was apparently a first offender, must have burdened his mind to a great extent and he could lighten his psychological burden only by talking to someone who was on intimate terms with him. It was a natural course which every human being would adopt in a tense situation and there was nothing unusual if the appellant went to the witness and apprised him as to how he happened to decoy a Mohalladar and to kill him after committing sodpmy with him. The two other witnesses, namely Nisar Ahmad and Muhammad Aslam P.Ws. could also be present at the shop and there was nothing unusual if Muhammad Shafiq, after listening to the confession of the appellant also asked them to listen to him. We note that the statement of Muhammad Shafiq P.W. on the factum of extra judicial confession of the appellant was not seriously challenged by the learned defence counsel despite his lengthy cross-examination. This is an important piece of evidence falling in the category of evidence which, as held in The State v. Minhun alias Gul p Hassan P L D 1914 SC 813 can be made basis for conviction even without seeking corroboration. However, if any corroboration is needed, keeping in view the rule of prudence, that too is amply available on the record. For instance, the averment of the appellant in the extra-judicial confession that after committing the murder of Muhammad Tahir he threw the dead body into the canal or Rajbah, finds corroboration from the fact that it yeas recovered by the police from the Rajbah. His statement in the extra-judicial confession that he had strangulated the boy to death, rinds corroboration-from the statement of the doctor conducting post-mortem examination besides' the presence of a E twisted cloth around its neck. Similarly, his statement that he had decoyed the boy initially for the purpose of recovering ransom from his father, finds corroboration from the letters written by him to his father. Likewise, his statement that after decoying the boy to the premises of Science College, Faisalabad he committed sodomy with him near the tubewell on a gunny bag, finds corroboration from the recovery of gunny bag at his instance.

32. So far as the contention regarding the confessional statement of the appellant having been recorded on 29-7-1991 after he had been arrested on 27-7-1991 as established by the defence evidence, suffice it to say that the statements of three defence witnesses themselves indicate that their testimony was a hearsay evidence, and it was inadmissible. The first two defence witnesses could not pinpoint the source from which they had gathered the information published by them in .the newspapers `Daily Awam', Faisalabad and `Daily Jang', Lahore, while the third defence witness had admittedly picked up the news from `Daily Awam'. This evidence could be admissible only if they had specified the persons from whom they had collected the information and those persons had been brought in the witness-box to testify but no such course was adopted. The Investigating Officer, who had arrested the appellant, had specifically denied the suggestion of the defence that he had arrested the appellant on 29-7-1991. No other evidence was available on this point and the, observation in this respect of the learned trial Judge seems to have crept in the impugned judgment unconsciously on account of the inadmissible defence evidence of news items.

33. In our opinion, no fault can be found with the testimony of Alhaj Muhammad Ashraf, the Handwriting Expert (P:W.20) either. His opinion, about similarity of various characteristics and other points between the handwriting of the questioned documents and the specimen handwritings of the appellant, is based on solid data which he brought on the record during the course of his statement. His skill or dexterity in the field of handwriting was not otherwise challenged by the learned defence counsel. To cap it all, the appellant did not specifically deny the writing of three letters' attributed to him nor did he allege that they were obtained from him by the police under coercion. His only objection was that the specimen writings were obtained from him by the police at the police station and not in the presence of the Magistrate. This objection stood amply negatived by the statement of the Magistrate who deposed that the specimen writings in different speeds had been obtained from the appellant in his presence on the request of the police.

34. The learned counsel for the appellant also referred to the provisions of Article 3 of the Oanun-e-Shahadat, 1984 and attempted to argue that this being a case of Qisas, it was incumbent upon the learned trial Judge to have followed the process of Tazkiya-Al-Shuhood (purgation of witnesses) but he did not adopt this course and this being a major procedural irregularity, the trial, conviction and sentence of the appellant all stood vitiated.

35. The learned counsel could not satisfy us as to how it was a case of Qisas and it was obligatory for the learned trial Judge to adopt the process of Tazkiya-Al-Shuhood (purgation of witnesses). Third proviso to Article 3 ibid lays down that the Court shall determine the competence of a witness in accordance with the qualifications .prescribed by the Injunctions of Islam as laid down in Holy Oura'n and Sunnah for a witness and where no such witness is forthcoming, the Court may take the evidence of a witness who may be available. This being so, even if it was necessary to take certain witnesses through the process of Tazkiya-Al-Shuhood (purgation of witnesses) even then the trial Court was competent to take the evidence of those witnesses, who were available and did not satisfy the high degree of piety which was to be ascertained by the process of Tazkiya-Al-Shuhood (purgation of witnesses): Here z reference to the provisions of sections 304 and 306, P.P.C. (as recently substituted) would be pertinent. Section 304, P.P.C. lays down the form of proof in Qatl-i-Amd liable to Qisas. It is either the voluntary and true confession of the accused regarding the commission of offence made to a Court competent to try the offence or by evidence as provided under Article 17 of Qanun-e-Shahadat, 1984. Clause (1) of Article 17 further provides that the competence of a person to testify and the number (if witnesses required in a case are to be determined .in accordance with the Injunctions of Islam as laid down in Holy Qura'n and Sunnah. This provision is not exhaustive because it enjoins a Judge or a Qazi to find out for himself from the Holy Qura'n and Sunnah the competence and number of witnesses in a given case. However; clause (2) of Article 17, excluding the application of Hudood laws and any other special law, lays down that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, one man or two women and the evidence shall be led accordingly, and in all other matters the Court may accept or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may require.

36. It may be mentioned here that Hudood Laws, namely, Prohibition (Enforcement of Hudood) Order, 1979; Offences Against Property (Enforcement of Hudood) Ordinance, 1979; Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, the provisions whereof are in accordance with the requirements of Injunctions of Islam as laid down in Holy Qura'n and the Sunnah, also prescribe the number and special qualifications of witnesses in Hadd cases while there is no such qualification in Tazir cases.

37. Under section 306, P.P.C. (as recently substituted) the Qatl-i-Amd is not liable to Qisas if the offender is minor or insane unless he associates with him a person not liable to Qisas with the intention of saving himself from Qisas, or he causes death of a grandchild how low-so-ever or when any WAR of the victim is his direct descendant howlowsoever.

38. Judged in light of the above-mentioned provisions of law, the case in I hand does not appear to be that of Qisas, particularly when the appellant has not confessed his guilt to the Court trying him and he does not seem to be `adult' being a person having attained the age of 18 years as defined m section 299(a), P.P.C., and seems to be a minor. Therefore, the process of Tazkya-al-Shuhood was not to be adopted by the learned trial Judge and there was no procedural infirmity in this regard.

39. Lastly, it was urged by the learned counsel for the appellant that for the assumption of the jurisdiction by the Special Court it was necessary that the scheduled offence, as in the instant case sections 302 and 365-A, P.P.C. were, should have been gruesome, brutal, sensational in' character or shocking to public morality or it led to public outrage or created panic or atmosphere of anxiety, but the offence in this case was not of that kind and it could not be transferred or entrusted to the Special Court for trial. In this connection, he referred to a recent judgment of the Supreme Appellate Court reported as Muhammad Yaqub and another v. The State 1992 S C M R 189.

40. We have not been able to rind any jurisdictional defect in this case. Primarily, the discretion as to whether a particular case is to be tried by the Special Court set up under the Special Courts for Speedy Trials Ordinance, 1991, rests with the Federal Government by virtue of the provisions of section 5 thereof but in exercising its discretion it has to keep in view the guidelines I given in Article 212-B(1) of the Constitution of Pakistan, 1973 read with the definition of `offence' given in section 2(c) of the said Ordinance, regarding the seriousness of the offence and its effects on the general public or any section thereof. In the case in hand, a boy of tender age was abducted and his dead body .was later found in a Rajbah after about ten days. Meanwhile his father received letters for ransom. The matter was taken up by the National Press and was widely publicised. The crime of abduction for ransom is on the increase and the Legislature, realising the seriousness of the situation, had to act and to frequently amend section 365-A, P.P.C. ultimately providing for death penalty or imprisonment for life, besides the forfeiture of the offender's property. There is hardly any doubt that the abduction of a person for ransom, particularly of a minor boy, creates various kinds of emotional and psychological effects, as contemplated by Article 212-B(1) and section 2(c) ibid. There is, therefore, no force in this contention as well. The case has been tried by the proper forum.

41. The upshot is that the prosecution has succeeded in proving the guilt of the appellant beyond any reasonable doubt. Accordingly, he was rightly convicted by the trial Court under section 365-A, P.P.C. and under section 302, P.P.C.

42. As regards the question of sentence it was submitted that in case the conviction of the appellant was to be upheld, he should be awarded the lesser sentence of imprisonment for life on the ground of his tender age, which, according to him was about 15 years at the time of the commission of offence (as claimed by him before the trial Court). The learned State counsel, on the other hand submitted that the appellant was a sufficiently grown up man being about 18 years old (as noted by the learned trial Court at the time of recording his statement under section 342, Cr.P.C.) and that he did not deserve any leniency on account of age.

43. Apart from the assertion of the appellant or the abovementioned observation of the trial Court there is no tangible material on the record which can assist in determining his age. However, there is some indication about this question in the statement of Dr. Aziz Ahmad (P.W.2) who had examined the appellant for the determination of his competency to perform sexual intercourse. In the cross-examination, he repudiated the suggestion of the defence that the appellant was 13/14 years old. He opined that he was more than 15 years of age but did not further elaborate as what was his upper age limit. If all these factors be considered together, the age of the appellant at the tune of commission of the offence, when he was allegedly studying in 9th Class, was ranging between 15 to 18 years and he could very well avail of the benefits of section 306(a), P.P.C., which makes the offence of Oatl-i-Amd not liable to Qisas, or makes the offence of Qatl-i-Amd liable to Tazir, if the offender is minor. Section 302, P.P.C. 'has also been re-enacted. These provisions of law, like old section 302, P.P.C. provide for death penalty or imprisonment for life for Qatl-i-Amd liable to Tazir but since minor (a person less than 18 years old) has especially been dealt with therein, the intention of the law-giver seems to be to give some concession to a minor offender in the matter of sentence if a charge for Qatl-i-Amd liable to Tazir stands proved against him, unless the special circumstances of a particular case necessitate the awarding of death penalty to him. The circumstances of this case make the offence serious, thereby ordinarily disentitling the appellant to the concession in the matter of sentence but at the same time we are inclined to think that a boy of his age having no criminal past, may have some abnormality emanating from his juvenile exuberance or it may be an act of psychopathic irresponsibility on his part, as held in almost a similar case reported as Abdus Samad v. The State PLD 1964 SC 167.

44. For these reasons, which apply equally to the commission of the offence under section 365-A, P.P.C. we would maintain the conviction of the appellant both under section 302(b), P.P.C. and that under section 365-A, P.P.C. but would substitute the sentence of death awarded to him on each count with imprisonment for life on each count, both the sentences to run concurrently. However, the sentence of fine imposed for his conviction under section 365-A, P.P.C. and the imprisonment to be undergone in lieu of payment thereof, as awarded by the trial Court, are maintained. The appeal succeeds only to this extent. Order accordingly.

45. The above are our reasons for the short order which was announced at the conclusion of the hearing of the appeal on 29-2-1992.

N.H.Q./33/SAC

Sentence reduced.