2010 PLP 495 (SCMR)

JUSTICE M. JAVED BUTTAR (CHAIRMAN).

This appeal, by leave, is directed against the judgment dated 12-11-2003 passed by learned Federal Shariat Court, whereby Criminal Appeal No.1741-I of 2002 filed by the appellant/complainant Bashir Ahmad against respondents Nos.1 to 3 was dismissed and the respondents' acquittal as recorded by the trial Court was upheld.

2. Respondents Nos.1 to 3 namely Fida Hussain, Muhammad Ismail and Abdul Ghafoor were tried by Hon. Additional Sessions Judge, D.G. Khan in case F.I.R. No.459 of 1997 dated 2640-1997 registered at Police Station Sadar, D.G. Khan at 10-30 a.m. for the offences under sections 302/34, 377, P.P.C. and section 12 of Offence of Zina (Enforcement of Hudood) Ordinance VII 1979 at the instance of complainant Bashir Ahmad (P.W.4) for an occurrence alleged to have taken place in the intervening night of 20/21-5-1997 in which the complainant's son Kaleem Ullah (17/18 years) was murdered after the commission of the offence of sodomy upon him, allegedly by the afore-said respondents. The learned trial Court vide its judgment dated 10-7-2002 acquitted the said respondents.

3. On 21-5-1997 the complainant was informed that the deceased had died in a train accident. Afterwards, he found that the deceased had gone with his friend Muhammad Ismail (respondent No.2) and the witnesses had seen deceased going with him. The complainant further alleged in the F.I.R. that Fida Hussain (respondent No.1) and Muhammad Ismail (respondent No.2) had made extra judicial confession of their guilt about commission of sodomy and murder of the deceased before P.W.5 Nazir Ahmad (uncle of the deceased) and Hafiz Allah Wasaya (not produced). On the basis of the information received, the complainant lodged the report on 26-10-1997 which became basis of the F.I.R.

4. We have heard learned counsel for the appellant, learned counsel for' respondents Nos.1 to 3, learned Deputy. Prosecutor-General, Punjab and have also seen the available record with their able assistance.

5. It is submitted by learned counsel for the 4appellant that the judgment passed by learned Federal Shariat Court which is impugned before us is 'too sketchy and it does not disclose any reasons for dismissing the appellant's appeal, no evidence was discussed and the judgment passed by the learned trial Court was mechanically followed. On merits, it is submitted that the prosecution was able to prove its case beyond any reasonable doubt against the respondents/acquitted accused through the evidence of last seen furnished by P.W.8 Muhammad Bakhsh (first cousin for complainant) and P.W.10 Muhammad Bilal (brother of complainant), the evidence of extra judicial confession made by respondents Nos.1 and 2 furnished by P.W.5 Nazir Ahmad (uncle of the deceased), the recoveries of the articles belonging to the deceased from the spot and the medical evidence and the due weight has not been given by Courts below to the evidence available on record. Learned counsel representing respondents Nos.1 to 3 while supporting judgments passed by the Courts below, has submitted that it was an un-witnessed occurrence and the prosecution based it case against the accused merely on the basis of the suspicion and hearsay. He has also placed his reliance on Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11, in which guidance has been provided by this Court in regard to the interference to be made by the Courts against the judgments of acquittal. Learned Deputy Prosecutor-General, Punjab while opposing the appeal, has submitted that there is no illegality or perversity in the judgment of acquittal impugned before this Court, that it is a case of circumstantial evidence and in such like cases every link in chain from the deceased and place of occurrence to the neck of the accused has to be established whereas in the present case, no such chain has been established and many links are missing.

6. We have given our anxious consideration to the entire facts and circumstances of the case. The prosecution case is based on the evidence of the last seen furnished by P.W.8 Muhammad Bakhsh and P. W.10 Muhammad Bilal, dose relatives of the complainant, the evidence of extra judicial confession furnished by P.W.5 Nazir Ahmad another close relative of the deceased and the complainant, the evidence of recoveries and the medical evidence.

7. The evidence of last-seen furnished by P. W .8 Muhammad Bakhsh and P.W.10 Muhammad Bilal does not inspire confidence. Muhammad Bakhsh is first cousin of the complainant and Muhammad Bilal is brother of complainant. Had they seen the deceased in the accompany of the accused on the night when the deceased was murdered, they would have informed the complainant the next day when the dead body of the deceased was discovered but they did not do so. P.W.8 stated in the cross-examination that he could not mention the exact date when he passed the above information to the complainant. He however, stated that he informed the complainant few days after the occurrence. Similarly, P. W.10 Muhammad Bilal also did not immediately disclose the above information of having last seen the deceased in the accompany of the accused, to the complainant and did not go to the police. Statements of both the witnesses were recorded by the Police under section 161 Cr.P.C. during proceedings under section 174 Cr.P.C. in which they did not State that they had seen the deceased in the accompany of the accused in the night in which he was killed. In our opinion, the evidence of last seen produced by the prosecution was, therefore correctly disbelieved by the trial Court.

8. As regards the evidence of extra judicial confession allegedly made by the respondents Muhammad Ismail and Fida Hussain before P.W.5 Nazir Ahmad, the uncle of deceased, the same is also not believable and seems to be a concoction. He stated that both the above mentioned accused made extra-judicial confession before him on 17-10-1997 in his Baithak in presence of P.W. Hafiz Allah Wasaya (not produced). He further stated that after the extra-judicial confession made by the accused, he and P.W. Allah Wasaya went to the complainant on the same day and narrated him the entire story. It is not understandable that thereafter, why the complainant remained silent till 26-10-1997 and lodged the report with the police on 26-10-1997 and why he did not straight away go to the police. Extra judicial confession is a weak type of evidence and it must receive strong corroboration from other evidence produced by the prosecution otherwise it cannot be relied upon. The prosecution has not explained that why P.W. Allah Wasaya who was a witness to the extra judicial confession, was not produced as a witness at the trial stage. The learned trial Court has dealt with the evidence of extra judicial confession as under:-- "(35) The second evidence is of extra judicial confession. Nazir Ahmad is real uncle of the deceased brother of the complainant. According to evidence the accused approached him prior to the registration of case and requested him for pardon. Nazir Ahmad was accompanied by Allah Wasaya P.W. at the time of this extra judicial confession. He was sitting in his Baithak consisting of two rooms. The accused went to adjacent room turn by turn. Nazir Ahmad P.W. summoned Allah Wasaya due to fear and in the presence of Nazir Ahmad and Allah Wasaya they made the extra judicial confession and it is not recorded in the evidence that the accused were armed with any sort of weapons at the said time. This evidence also does not appeal to my mind. Why the accused has gone to Nazir Ahmad P.W.5 before the registration of the case five months after the occurrence in order to confess their guilt. The case was not registered till 26-10-1997. Even application for registration of the case was moved by the complainant to the SSP, D.G. Khan on 18-10-1997. There was no fun to disclose the Commission of offence on the part of Muhammad Ismail and Fida Hussain accused prior to the registration of case when the occurrence took place in May, 1997. Moreover it is quite difficult to go to brother or uncle of the deceased to confess the guilt of the commission of offence and the latter may be furious and some incident can take place. Extra judicial confession is weak type of evidence and it must receive strong corroboration from the other evidence produced by prosecution and it is established law and then it can be relied upon."

9. The evidence of recovery of articles of the deceased is also not believable. The learned trial Court has dealt with the same as under:

"(36) Third type of evidence is recovery of articles of the deceased from the said Choubara. Again this evidence cannot be believed. First of all why the accused have taken away ring and purse of the deceased when they allegedly took the unconscious boy and they were intending to throw it on the railway line. For a while if it is admitted that they did so then why they did not destroy this purse and ring during the period of five months. If it is admitted that they committed the offence and made extra judicial confession on 17-10-1997 before real uncle of the deceased then why they did not destroy the evidence till 26-10-1997 date of registration of case and these articles remained in the said Choubara so that Jamil Ahmad the most incompetent and inefficient Investigating Officer will come and recover these articles and these should be treated as important piece of evidence against the accused. Muhammad Jamil, S.-I. has not completed legal formalities in order to prove before this Court that the said Choubara is owned by the accused or was in their possession on rent during the days of commission of offence. There is no mention of these articles of the deceased even in F.I.R. Exh. P. F. recorded five months after the occurrence." We do not rind any fault in the reasoning given by the trial Court.

10. The medical evidence per se inconsequential. It merely shows that the deceased was subjected to sodomy and was thereafter murdered. It does not connect the said offences with the accused/ respondents.

11. Learned trial Court after having discussed the entire evidence concluded that the prosecution had miserably failed to prove its case against accused/respondents beyond any reasonable doubt. Learned Federal Shariat Court found that the reasons given by the trial Court were neither arbitrary nor perverse. We affirm the findings of the learned Federal Shariat Court. We do not find any misreading/non- reading of evidence or legal infirmity in the judgments of both the Courts below whereby concurrent findings have been recorded in favour of respondents/accused., The conclusions drawn by the Courts below are neither perverse nor shocking. They are based on the material available on record. The findings of acquittal cannot be reversed merely because a different conclusion is also possible whereas in the present case, in our view, no other conclusion was possible. In the case of Ghulam Sikandar and another (supra), this Court provided the guidance as under:

"(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court -acquitting the accused. This approach is lightly different than that in an appeal against conviction when leave is granted only for the re appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquitted will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) .disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligator observances of some higher principle as noted above and for no other reason. (4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in, exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous". In view of the above mentioned, we find no merit in this appeal which is dismissed. NHQ/B-8/SC Appeal dismissed.