1992 PLP 1314 (PCRLJ)

JUSTICE SAJJAD AHMED SIPRA, MEMBER.

The present appeal has been preferred against the judgment dated 5-11-1991, passed by Mr. Justice (Recd.) Gulbaz Khan, Judge, Special Court for Speedy Trial- No.2, Lahore, whereby the appellants were sentenced as follows:-- (i) Unfer section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 34, P.P.C. sentenced to death. (ii) Under section 377/34, P.P.C. sentenced to imprisonment for life and a fine of Rs.10,000 each, or in default to undergo further R.I. for one year. (iii) Under section 302/34, P.P.C. sentenced to death. The sentences of the three accused/appellants under section 377/34, P.P.C. shall operate only if the sentence of death is not confirmed. The fine, if recovered, shall be paid to the father of the deceased. One of the co-accused of the appellants, namely, Abdul Ghafoor had absconded. He was not tried alongwith the appellants.

2. The brief facts of the present case are as follows:

Sharif Khan complainant, his son Abdul Sattar, P.W. Ramdad Khan deceased, brother Amir Basher and relative Zareen Khan worked as labourers at Brick Kiln Shah Din for the last two years. Two months before the present occurrence, Abdul Khaleem and Rahim Khan. accused/appellants started working at the same brick kiln as labourers. Abdul Khamid accused/appellants and Abdul Ghafoor absconder were on visiting terms with Abdul Khalecm and Rahim Khan accused/appellants. Ramdad Khan deceased was a handsome boy of about 18 years of age. The three accused/appellants and the absconder were interested in Rahim Dad Khan deceased and they cracked indecent jokes. On 12-1-1991, at about sun -set the three accused/appellants and the absconder took along Rahim Dad Khan on the pretext of taking him to cinema show. The deceased did not return. His father, brother, uncle and other relatives searched for him but in vain. They were unable to trace him out. They enquired from the accused/appellants and the absconder who did not give any satisfactory reply.

3. Therefore, on 15-1-1991, Sharif Khan complainant met Atif Hayat, Inspector Police/S.H.O. Police Station Batapur, at noon time at Put Khera B.R.B. Canal and made statement, Exh.P.A. This statement was sent at Police. Station, Batapur and formal F.I.R., Exh.P.A.l was recorded the same day at 12-45 p.m., under section 364/34, P.P.C. The S.H.O. reached Brick Kiln Shah Din and started investigation. He arrested the three accused/appellants, and interrogated them. The three accused/appellants, while in custody, made statements that they could lead to the recovery of dead body of Ram Dad Khan. Consequently, they led the police to the field of Muhammad Munir situated in the area of village Mundianwala and pointed the place near Parali from where dead body of Ram Dad Khan was dug out. A Safa was tied around the neck of the deceased. The S.H.O. prepared inquest report, Exh.P.L. and sent the dead body for post-mortem under the escort of Akhtar Ali, H.C. and Muhammad Ashraf, F.C. He sent Ruka, Exh.P.K. to the Doctor alongwith the inquest report. The S.H.O. prepared rough plan, Exh.P.M. from where the dead body was recovered.

4. Doctor Mahfooz Ahmad conducted post-mortem examination on the dead body of Ram Dad Khan. He found six injuries on the person of the deceased. Injury No.1 was light brown ligature mark interrupted on the right side and back of neck 16 c.m. in length and 4 c.m. in breadth on the front of neck starting from the angle of left jaw and going horizontally towards the right side with abrasions in an area of 6 c.m. x 3 c.m. on the front of left side of neck, 3.5 c.m. below chin, 2.5. c.m. on the front of left jaw, and abrasions in an area of 5 c.m. x.2 c.m., 0.3 below chin and 2.5 c.m. below of the angle of right jaw. Injury No.2 was an abrasion 3 c.m. x 2 c.m. on the front of chest. Injury No.3 was an abrasion 5 c.m. x 5 c.m. on the inner side of left forearm; 9 c.m. below the elbow joint and 15 c.m. above the wrist. Injuries Nos.4, 5 and 6 were lacerated wound with nibbled margins on the left ear, left side of the neck and. right car. These three injuries were due to biting of some animal. Muscles and soft tissues of front of neck were bruised. Muscles around both the greater cornea of hyiod bone were bruised. Hyiod bone was not fractured but both the cornea of hyiod bone were dislocated from their joints with the body of the hyiod. Underlying surface of scalp was congested. Injuries 1, 2, 3 were ante mortem and caused by blunt weapon. Death in this case was due to interference at the level of neck by means of ligature leading to physical death. Injuries 4, 5, 6 were host-mortem and were animal bites. Time between injuries and death was within five minutes and between death and post-mortem 3-4 days.

5. The doctor despatched two anal swabs for the detection of semen. Viscera were sent to Chemical Examiner for detection of poison/drug. He also sent stomach with its contents, small intestines with its contents, piece of kidney, liver and spleen, blood and a sample of preservative. No poison was detected in the above articles. However, the anal swabs were found to be stained with semen. Dr. Mahfooz Ahmad stated in Court that Ram Dad Khan was subjected to carnal intercourse against the order of nature.

6. After the recovery of dead body and receipt of post-mortem report, offence under section 302, P.P.C. was added. The report of Chemical Examiner was received in February, 1991 and offence under section 377, P.P.C. was added. The Investigating Officer recovered blood from the place of dead body and sealed it into a parcel. According to report of Chemical Examiner, the earth was stained with blood. Report of Serologist was not placed on the record.

7. Abdul Khaleem and Rahim Khan were sent for medical examination in order to find out if they were capable of performing sexual intercourse. The doctor did not find any infirmity. Both were capable of performing sexual intercourse. Abdul Ghafoor accused had absconded. His warrants of arrest were issued but the same could not be executed. His proclamation was issued but without any result. His name was entered in column No.2 of the chailan with red ink indicating that he had absconded. Challan was submitted against the three accused/appellants named above.

8. Keeping in view the facts and circumstances of the case and the report of Chemical Examiner, the accused/appellants were charged under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 34, P.P.C. Section 377/34, P.P.C. and section 302/34, P.P.C. The accused/appellant did not plead guilty to the charges.

9. Prosecution examined thirteen witnesses in order to prove the case. Muhammad Riaz, A.S.I. recorded F.I.R. on 15-1-1991 at 12-45 p.m. on the basis of statement of PA. of Sharif Khan. Muhammad Ashraf F.C. P.W.2 escorted the dead body to the dead house and delivered it intact to the doctor. After post-mortem, he7 produced clothes and Chappal of the deceased to the S.H.O: and attested memo. P.B. He received one sealed parcel from Rashid Ahmad Moharrir on 17-1-1991 and delivered it intact in the office of Chemical Examiner, the same day. It contained blood-stained earth. Rehmat Ali, Patwari P.W.3 prepared site plan P.C. of the place from where dead body of Ram Dad Khan was recovered. Maqsood Ahmed P.W.4 identified the dead body of Ram Dad Khan at the time of post-mortem. He attested memo. P.B. Dr. Mahfooz Ahmed, P.W.5 conducted post-mortem. The details have already been given. Dr. Muhammad Ashfaque Ali P.W.6 stated that Abdul Khaleem and Rahim Khan were potent and fit to perform sexual intercourse. Zareen Khan P.W.10 deposed that the three accused/appellants, while in police custody offered to lead to the recovery of dead body of Rahim Dad Khan and then led the police party and got recovered the dead body which had Safa around his neck. He further stated that police recovered, blood-stained earth from the place of recovery of dead body and sealed it into a parcel vide memo. P.J and he attested the memo. Muhammad Yaqub H.C. P.W.11 received warrants of arrest of Abdul Ghafoor accused for execution. He stated that said accused had absconded and he made reports about it. Muhammad Rashid H.C. P.W.12 received one sealed parcel of blood-stained earth from S.H.O. on 15-1-1991 and he handed it over to Muhammad Ashraf F.C. on 17-1-1991. He received another sealed parcel from doctor on 16-1-1991 which he sent to the Chemical Examiner on 17-1-1991 through Akhtar Ali H.C.. Prosecution gave up Akhtar Ali, H.C. as he had absented from duty due to involvement in some murder case. Atif Hayat, S.H.O. P.W.13 recorded the statement of Sharif Khan, Exh.P.A. and investigated the case. He submitted challan in Court. Sharif Khan, P.W.7, Amir Basher P.W.8 and Abdul Sattar P.W.9 saw the three accused/appellants and the absconder abducting Ram Dad Khan on 12-1-1991 at about evening time. They made enquiries from the three accused/appellants about the deceased, who showed complete ignorance.

10. The accused/appellants denied the prosecution allegations. They denied to have abducted Ram Dad Khan. They further denied to have committed the murder of Ram Dad Khan after committing a carnal intercourse against the order of nature. According to the accused, Abdul Ghafoor, the absconding co-accused alone was responsible for it. The accused/appellants did not lead any evidence in defence. They did not offer statements on oath in disproof of the charges and the allegations levelled against them by the prosecution.

11. The learned trial Court, relying on the evidence of last seen, based on the testimony of P.W.8, Amir Basher and P.W.9, Abdul Sattar, while discarding that of the complainant, P.W.7, Sharif Khan, and on the evidence in respect of the recovery of the dead body on the pointing out of the appellants and further taking into consideration the medical evidence brought on the record, had convicted and sentenced the appellants, as stated above. It was held by the learned trial Court that the accused/appellants in furtherance of their common intention had abducted Ram Dad Khan deceased and had further subjected him to an act of sodomy. Whereafter on the deceased having put up resistance, they had killed him. It was further observed by the learned trial Court that it had been established by the prosecution evidence that the appellants had exclusive knowledge about presence of the dead body and had led to its recovery in presence of the witnesses. It was further observed that the abscondence of the co-accused, Abdul Ghafoor was yet another piece of circumstance against the accused/appellants.

12. We have heard the learned counsel for the appellants and the State at length and minutely perused the record of the case with their assistance.

13. The learned counsel for the appellants assailed the conviction of the appellants and submitted that there was no direct evidence against them. Further submitted that the last seen evidence was of highly doubtful nature. Further submitted that the evidence in respect of the recovery of the dead body was inadmissible as it was based on joint pointing out of the appellants. Further submitted that the medical evidence was of no help to the prosecution as it failed to establish as to how many persons had participated in the offence charged under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and in any case, the appellant, Abdul Khamid had not been medically examined to determine his capability to participate in the said offence. Further submitted that as the complainant; Sharif Khan P.W.7 had been examined with the help of interpreter and as the interpreter had not been administered an Oath; therefore, his evidence was inadmissible. Further argued that the story set up by the prosecution to the effect that the appellants used to cut indecent jokes and had bad intentions about the deceased had not been proved, and further argued, in the alternative, that if that be true, it is not plausible that the deceased could have been allowed to accompany the appellants. Therefore, argued that as there was no corroboration of the testimony of the related and interested witnesses, and as there was no evidence whatsoever to establish offence under section 302, P.P.C., and as the recovery of the dead body was not based on the exclusive knowledge or pointing out of any one of the appellants but was the result of joint statement as stated above, the prosecution had failed to discharge the burden of proving the guilt of the appellants beyond reasonable doubt. In this respect, further argued that as consistently held by the superior Courts, it is always the burden of the prosecution to prove its case beyond doubt and that the said burden never shifts. Therefore reiterated, that in consonance with the established principles of the administration of criminal justice, the appellants deserve to be acquitted of all the offences charged.

14. On the other hand, the learned counsel for the State argued that there was no reason for.thc prosecution witnesses to falsely implicate the appellants as it has not been proved that there exists enmity or ill-will between the parties. Further submitted that P.W.7, Sharif Khan, P.W.8, Amir Basher and P.W.9, Abdul Sattar were natural witnesses of the last seen and further submitted that the recovery of the Safa duly established, that the death of the deceased was due to strangulation, and that the medical evidence had duly established that the deceased had been subjected to sodomy. Therefore, argued that the case against the appellants was duly established as charge for the abduction and murder of the deceased after subjecting him to sodomy.

15. We have given our anxious consideration to the contentions raised on behalf of the appellants. We arc constrained to observe that the story of the prosecution as set up in respect of the deceased having been enticed away on the fateful day does not inspire confidence. In this respect, it may be pointed out that the prosecution witnesses i.e. P.W.7, P.W.8 and P.W.9, respectively, have admitted that the deceased was on friendly terms with the- appellants, and that they often had meals together at the house of the deceased, and that the' deceased going alongwith the appellants was not an unusual phenomena. Furthermore, that there were many other families residing at the brick-kiln in question but that no one was produced to establish the independent corroboration of the allegation that on the fateful day, the deceased had accompanied the appellants. We arc constrained to further point out that if it be assumed that the deceased had accompanied the appellants in the first place, there is no evidence that he remained in their company upto the fateful moment when the offences charged had taken place. Furthermore, the prosecution has failed to prove that the presence of the dead body at the place wherefrom it was recovered, was in the exclusive knowledge of anyone of the appellants or that any of the appellants had exclusively led to its recovery. In fact, as it is the case of the prosecution that the appellants had jointly disclosed the knowledge in respect of the presence of the dead body and had jointly led to its recovery, therefore, the evidence in respect thereof being inadmissible cannot be used against the appellants. The same is the position in respect of the offence of sodomy, for there is no evidence whatsoever to link the appellants with the commission of the said offence. Therefore, we are of the considered view that the prosecution had failed to discharge the onus placed on it to prove the case against the appellants beyond reasonable doubt.

16. In pursuance to the above discussion, we hereby allow the present appeal and set aside the impugned judgment. Resultantly, the appellants stand acquitted of all the offences charged. They shall be released forthwith, if not required to be detained in any other case. N.H.Q./31/S.A.C. Appeal allowed.