2023 PLP 1418 (YLR)

MALIK SHAHZAD AHMAD KHAN, J.

This judgment shall dispose of Criminal Appeal No. 236652 of 2018, filed by Muhammad Yaqoob (appellant) against his conviction and sentence and Murder Reference No. 312 of 2018, sent by the learned trial Court for confirmation or otherwise of the Death sentence awarded to Muhammad Yaqoob (appellant). We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 15.09.2018 passed by the learned Addl. Sessions Judge, Lahore.

2. Muhammad Yaqoob (appellant) was tried in case FIR No. 644 dated 27.09.2015 registered at Police Station Wandat Colony District Lahore offences under Sections 302/363/377 of P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 15.09.2018 has convicted and sentenced Muhammad Yaqoob (appellant) as under:-- Under Section 302(b), P.P.C. to 'Death' as Ta'zir for committing Qatl-i-Amd of minor Ahmad Javed (deceased). He was also ordered to pay Rs.500,000/- (Rupees five hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr.P.C. and in default thereof, to further undergo simple imprisonment for six months.

3. Initially the complaint (Exh.PG) and thereafter, FIR (Exh.PEE) were lodged against unknown accused person by Muhammad Javed Mughal, complainant (PW-5) by alleging that he (complainant) was resident of Street No.1 House No.3 Mohallah Karnalpura Masjid Street near Wahdat Colony, Lahore and on 26.09.2015 at about 08:00 p.m., his (complainant's) son, namely, Ahmad Javed aged about 61/2 years went out of the house while wearing red shirt and brown pent however, did not return home. It was further stated that the complainant party started the search of Ahmad Javed (deceased) on their own but in vain and it was asserted that Ahmad Javed (deceased) was abducted by some unknown accused. Hence, the FIR (Exh.PEE) was lodged under Section 363 of P.P.C. On 02.10.2015, on the information of Muhammad Ilyas, Sub-Inspector of P.S: Hanjarwal District Lahore the dead body of Ahmad Javed (deceased) was recovered from 'Kharak Nala', the complainant identified the dead body to be that of Ahmad Javed (deceased) and the offence under Section 302 of P.P.C. was added by the police. The complainant, thereafter, on 30.03.2016 got recorded his supplementary statement and nominated Muhammad Yaqoob (appellant) with the allegation that Muhammad Yaqoob (appellant) committed sodomy with Ahmad Javed (deceased), committed his murder and then threw his (Ahmad Javed's) dead body in the 'Nala'. Complainant also alleged in his supplementary statement that Muhammad Yaqoob appellant made extra-judicial confession before him in presence of Muhammad Khalid (PW-6) and Muhammad Danish (given up PW) regarding the commission of the occurrence.

4. Muhammad Yagoob (appellant) was arrested in this case on 09.04.2016 by Haji Maqsood, Sub-Inspector/I.O. (PW-12). On 22.04.2016, the appellant made disclosure and led to the recovery of cycle (P-4) and tub (P-5) vide recovery memo (Exh.PL). After completion of investigation, report under Section 173 of Cr.P.C., was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 16.10.2017 to which he pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution produced fourteen witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Exh.PA) to (Exh.PPP).

6. The statement of Muhammad Yaqoob (appellant) under Section 342 of Cr.P.C. was recorded by the learned trial Court. Muhammad Yaqoob (appellant) refuted the allegations levelled against him and professed his innocence. The appellant did not opt to make his statement on oath as envisaged under Section 340(2), Cr.P.C., however produced (Exh.DA to Exh.DJ) in his defence. The learned trial Court vide its judgment dated 15.09.2018 found Muhammad Yaqoob (appellant) guilty, convicted and sentenced him as mentioned and detailed above.

7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that the occurrence was unseen and the prosecution case hinges upon very weak and unreliable circumstantial evidence; that there is no evidence of last seen, or 'wajj-takkar' against the appellant and the appellant has been convicted and sentenced only on the basis of evidence of extra-judicial confession and judicial confession; that the prosecution witnesses of extra-judicial confession were not holding the status of authority in the society therefore, there was no reason with the appellant to make extra-judicial confession before them; that the alleged recoveries of cycle and tub have been planted against the appellant and in fact nothing has been recovered from him; that the prosecution could not prove any motive of the occurrence; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, the appeal filed by the appellant may be accepted and he may be acquitted from the charges.

8. On the other hand, it is contended by the learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant that the prosecution has produced convincing and reliable circumstantial evidence against the appellant therefore, he was rightly convicted and sentenced by the learned trial Court; that the prosecution witnesses of extra-judicial confession and judicial confession were cross-examined at length but their evidence could not be shaken; that evidence of recovery of cycle and tub from the possession of the appellant has further corroborated the prosecution case; that there is no substance in the appeal filed by the appellant therefore, the same may be dismissed and murder reference be answered in the affirmative.

9. Arguments heard. Record perused.

10. The detail of the prosecution case has already been given in para No.3 of this judgment therefore, there is no need to repeat the same.

11. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases, every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as 'Ch. Barkat Ali v. Major Karam Elahi Zia and another' (1992 SCMR 1047), 'Sarfraz Khan v. The State' (1996 SCMR 188) and 'Asadullah and another v. The State' 1999 SCMR 1034. In the case of "Ch. Barkat Ali (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:- "...Law relating to circumstantial evidence that proved circum-stances must be incompatible with any reasonable hypothesis of the innocence of the accused. See 'Siraj v. The Crown' (PLD 1956 PC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused" In the case of "Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192, held as under:- "7 ....It is well settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence." Further reliance in this context is placed on the case of 'Altaf Hussain v. Fakhar Hussain and another' (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court as under:- "7 ....Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain." Keeping in view the parameters, laid down in the above-mentioned judgments, we proceed to decide this case.

12. We have noted that the prosecution case is based on the following pieces of circumstantial evidence. i) Extra Judicial Confession of the appellant before Muhammad Javed complainant (PW-5) and Muhammad Khalid (PW-6). ii) Judicial Confession of the appellant before Mudassar Hassan Khawaja, Judicial Magistrate (PW-9). iii) Medical Evidence and PFSA reports. iv) Recoveries of Tub and Cycle. v) Pointation of the place of occurrence and place of throwing the dead body of the deceased by the appellant. vi) Motive. I. Extra Judicial Confession of the appellant before Muhammad Javed complainant (PW-5) and Muhammad Khalid (PW-6).

13. First of all we discuss the prosecution evidence of extra-judicial confession of Muhammad Yaqoob appellant made before Muhammad Javed complainant (PW-5) and Muhammad Khalid (PW-6). We have noted that the appellant was not nominated in the FIR and he has been implicated in this case through the supplementary statement of the complainant dated 30.03.2016. The occurrence in this case took place on 26.09.2015 and the FIR (Exh.PEE) was lodged on 27.09.2015, whereas, the abovementioned supplementary statement of the complainant was recorded on 30.03.2016 i.e., after about six months from the occurrence and the registration of the FIR. In the abovementioned supplementary statement Muhammad Javed complainant (PW-5) and Muhammad Khalid (PW-6) stated that on 30.03.2016, Muhammad Yaqoob (appellant) appeared before them and Danish Javed (given up PW), when they were present outside the house of the complainant. They further stated that the appellant made extra-judicial confession before them by stating that he had a burden on his mind therefore, he wanted to tell regarding the occurrence to the complainant party. The appellant further stated before the abovementioned PWs that on 26.09.2015 minor Ahmad Javed deceased came to his shop for taking toffees and he took the minor inside the house, where he committed sodomy with him and killed him by strangulating his neck. The appellant further stated that after committing the murder of Ahmad Javed minor, he packed his dead body in a sack and after loading the said body on his bicycle, he threw the same at 'Kharak' drain. We have noted that as per PFSA report, no seminal material was detected on the anal swabs of the deceased to support the prosecution case that after committing sodomy with the minor, the appellant committed his murder. It is also noteworthy that there are contradictions in the statements of the prosecution witnesses of extra-judicial confession, because Muhammad Khalid (PW-6) has stated that the appellant also stated that after pressing the throat of Ahmad Javed minor, he dipped him in a water tub due to which he died but this fact was not stated by Muhammad Javed complainant (PW-5) that the minor was dipped in a water tub by the appellant. We have further noted that the complainant party was comprising of three male adult members, namely, Muhammad Javed complainant (PW-5), Muhammad Khalid (PW-6) and Danish Javed (given up PW) and according to the evidence of abovementioned prosecution witnesses, the appellant made extra-judicial confession regarding the murder of their near kith and kin after about six months of the occurrence but they did not try to apprehend the appellant at the time of making of his extra-judicial confession so that the appellant may be handed over to the police. We have further noted that Muhammad Khalid (PW-6) was not enjoying of any status of authority in the society and he stated during his cross-examination that he was an Assistant in the Accounts Branch of a Government College. Likewise, Muhammad Javed (PW-5) himself is the complainant of this case and there was no reason with the appellant to make extra-judicial confession before the abovementioned witnesses. We have further noted that according to the alleged extra-judicial confession of the appellant before the abovementioned prosecution witnesses, dead body of Ahmad Javed minor deceased was packed in a sack after his murder and thereafter, the same was thrown in the "Kharak" drain but according to the statement of Muhammad Akram Sub-Inspector (PW-2) and Muhammad Imran, 12321/C (PW-4) dead body was not packed in the sack and the same was lying open in the drain. No sack has been recovered in this case. Although according to the evidence of the prosecution, dead body of the deceased was thrown by the appellant in a drain but Dr. Zia ul Haq (PW-10), did not mention in his evidence the presence of any mud or particles of drain on the body of the deceased. We are therefore, of the view that the abovementioned prosecution evidence qua extra-judicial confession of the appellant is not worthy of reliance. II. JUDICIAL CONFESSION.

14. As per prosecution case, Muhammad Yaqoob appellant made judicial confession before Mudassar Hassan Khawaja, Judicial Magistrate (PW-9). We have noted that there are material contradictions in the prosecution case between the judicial confession made by the appellant in the Court and the extra-judicial confession made by the appellant before the prosecution witnesses i.e., Muhammad Javed complainant (PW-5) and Muhammad Khalid (PW-6). According to the judicial confession, the appellant stated that he attempted to commit sodomy with Ahmad Javed minor deceased, whereas, as per statements of the witnesses of extra-judicial confession, the appellant stated that he committed sodomy with the minor and thereafter, committed his murder. It is further noteworthy that according to the statement made by the appellant in his judicial confession, the mouth of the deceased was blocked by him (appellant) with his hands due to which he died, whereas, according to the statements of the prosecution witnesses of extra-judicial confession, neck of the deceased was strangulated by the appellant, whereas, according to the statement of Muhammad Khalid (PW-6), the appellant, after strangulating the neck of Ahmad Javed minor deceased, drowned him in a water tub due to which he died but Muhammad Javed complainant (PW-5) did not state so in his statement recorded by the learned trial Court and no such fact was mentioned by the appellant in his judicial confession that after pressing the neck of Ahmad Javed minor deceased, he drowned him in a water tub. It is further noteworthy that at the time of judicial confession, the appellant was not told by the concerned Magistrate that his custody will not be handed back to the police after recording of his confession which is in violation of Volume III Chapter 13 Rule 5 of the High Court Rules and Order on the subject. Although Mudassar Hassan Khawaja, Judicial Magistrate (PW-9) stated that after recording of the confession of the appellant under Section 164 of Cr.P.C., he did not hand over his custody to the police rather the appellant was sent to jail through staff of the Court but he was unable to tell the name of any member of his staff who handed over the custody of the appellant to the jail authorities, whereas, on the other hand, Haji Maqsood, Sub-Inspector/I.O. (PW-12) stated that he took the appellant to Kot Lakhpat Jail. It is further noteworthy that in the judicial confession of the appellant, it has been stated by the appellant that after five days of the occurrence, the dead body of the deceased was recovered on his pointation. Relevant part of his statement, in this respect, reads as under:- On the other hand, according to the prosecution case, the dead body of Ahmad Javed minor deceased was recovered on 02.10.2015, as stated by Muhammad Javed complainant (PW-5), as well as, by Muhammad Akram, Sub-Inspector (PW-2) and they did not state that the dead body was recovered on the pointation of the appellant rather the appellant has been implicated in this case through supplementary statement of the complainant on 30.03.2016, i.e., after more than six months from the occurrence. As per prosecution's own case, the dead body of Ahmad Javed minor was recorded on 02.10.2015, by Muhammad Ilyas, Sub-Inspector of Police Station Hanjarwal District Lahore. None of the prosecution witnesses stated that the dead body of the deceased was recovered on the pointation of the appellant. It is further noteworthy that no specific date or year of the occurrence has been mentioned in the judicial confession of the appellant. It is by now well settled that mere judicial confession of an accused by itself is not sufficient to maintain his conviction and sentence and the said judicial confession needs independent corroboration which is very much lacking in this case. There is no evidence of 'wajj-takkar', last seen etc, against the appellant in this case. As mentioned earlier, according to PFSA report (Exh.PHH), no seminal material was detected on the anal swabs of the deceased. In the circumstances, when there are material contradictions in the prosecution evidence regarding extra-judicial confession and the judicial confession of the appellant and even otherwise judicial confession was not recorded in accordance with the law. Moreover, the retracted judicial confession of the appellant is not supported by any independent evidence hence, the same is not worthy of reliance. Reference in this context may be made to the cases of 'Muhammad Ashraf v. The State' (2016 SCMR 1617), 'Muhammad Ismail and others v. The State' (2017 SCMR 898) and Hashim Qasim and another v. The State' (2017 SCMR 986). III. MEDICAL EVIDENCE AND PFSA REPORTS.

15. We have noted that according to the medical evidence, eight swabs were sent to the PFSA for detection of semens and DNA test but according to the report of PFSA (Exh.PHH), no seminal material was detected on the rectal swabs of Ahmad Javed deceased. It is also important to note that I.O. took nail scrapings of Ahmad Javed deceased and the same was sent to PFSA, Lahore and according to the report of PFSA (Exh.PPP), nail scraping of the deceased was mixture of at least two unknown male individuals, whereas, Muhammad Yaqoob appellant and Muhammad Ayub (nephew of the appellant) were eliminated as being contributors to the said DNA profile. We are therefore, of the view that the medical evidence and the abovementioned reports of PFSA have not supported the prosecution case against the appellant. IV. RECOVERIES.

16. Insofar as the recoveries of bicycle and water tub on the pointation of the appellant is concerned, it is noteworthy that no incriminating material like blood stains or froth of the deceased were recovered from the abovementioned articles. Moreover, the aforementioned articles were not sent to the office of PFSA for detection of any incriminating material on the said articles. It is further noteworthy that Muhammad Javed complainant (PW-5) has admitted during his cross-examination that brother of the appellant also lived in the same house wherefrom the abovementioned articles were recovered which shows that the house of the recovery was not exclusively under the possession of the appellant. No ownership proof above the abovementioned bicycle in the name of the appellant has been brought on the record. Under the circumstances, the abovementioned recoveries are of no avail to the prosecution. V. Pointation by the appellant of the place of occurrence and place of throwing dead body of the deceased.

17. It is also noteworthy that the prosecution has alleged that the place of crime and place where the dead body of the deceased was thrown have been pointed out by the appellant but no incriminating material was recovered from the place of occurrence, as well as, from the place where the dead body of the deceased was allegedly thrown. It is further noteworthy that according to the prosecution case, on 22.04.2016, the appellant pointed out the place of throwing of the dead body of Ahmad Javed minor deceased, whereas, the dead body was already recovered in this case on 02.10.2015 and as such, the place of throwing of the dead body was already in the knowledge of the prosecution and no new fact was discovered or any recovery was effected from the abovementioned places. We are therefore, of the view that the abovementioned pieces of evidence are inconsequential for the prosecution case. VI. MOTIVE.

18. As per prosecution case, the motive behind the occurrence was that the appellant committed sodomy with Ahmad Javed deceased and thereafter killed him. We have noted that there are material contradictions in the statements of prosecution witnesses regarding the motive. As mentioned earlier, as per evidence of PWs of extra-judicial confession, the appellant made confession before the witnesses that he committed sodomy with the deceased and then killed him, whereas, in the judicial confession, the appellant stated that he attempted to commit sodomy with the deceased. Moreover, as per medical evidence, no, seminal material was detected on the anal swabs of the deceased. We are therefore, of the view that the prosecution has failed to prove the alleged motive in this case.

19. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In the case of 'Tariq Pervez v. The State' (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:- '5 ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.' The Hon'ble Supreme Court of Pakistan while reiterating, the same principle in the case of 'Muhammad Akram v. The State' (2009 SCMR 230), at page 236, observed as under:- '13...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

20. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No. 236652 of 2018 filed by Muhammad Yaqoob appellant, set aside his conviction and sentence recorded by the learned trial Court and acquit him of the charge by extending him the benefit of doubt. Resultantly, Murder Reference No. 312 of 2018 is answered in the negative. The appellant Muhammad Yaqoob is in custody, he be released from the jail forthwith if not required to be detained in any other case. JK/M-173/L Appeal allowed.