2013 PLP 2026 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

Appellant Muhammad Hanif son of Muhammad Hussain through this appeal has challenged the judgment dated 19-5-2006 delivered by Mr. Abid Hussain Qureshi, learned Additional Sessions Judge/Juvenile Court, Gujranwala whereby the appellant was convicted under sections 302(b)/34 of the Pakistan Penal Code and sentenced to life imprisonment. He was also ordered to pay Rs.50,000 as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. or in default thereof to further undergo six months simple imprisonment. The accused was granted benefit of section 382-B of the Code of Criminal Procedure. However, the accused/appellant was acquitted of the charges under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and under section 377, P.P.C. through the impugned judgment.

2. Brief facts of the case arising out of F.I.R No.418 of 2004, dated 26-11-2004 (Exh.PL), registered under sections 302/34, P.P.C. and under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 377, P.P.C. at Police Station, Whando, District Gujranwala, as narrated in the written complaint (Exh.PK) made by Muhammad Aslam P.W.10 are that the victim Abu Bakar son of the complainant aged 12 years who was getting religious education in a local Madrasa in village Nadha, victim went missing since 12-00 noon of 21-11-2004. The complainant searched for his son in the village and on the same night at about 9-00 p.m. P.Ws. 7 and 8 Pervaiz Ahmad and Munir Ahmad disclosed to the complainant that they saw his son Abu Bakar at about 7-00 p.m., while going with the accused Muhammad Hanif appellant and co-accused Avil Masih and Mohsin Ali. The complainant along with said two P.Ws. went to Abdul Ghafoor Whala father of accused Mohsin Ali and asked about his son and he told him that said three accused went to Rohi to fetch Tarpal and they had returned back but son of the complainant did not come back to his house for three days. The accused and said Abdul Ghafoor Whala used to change their versions and finally on 25-11-2004 one Bilal of the same village disclosed to the complainant that a dead body was lying in the heap of Parali in his fields and when they along with said P.Ws. went there they found dead body of Abdu Bakar deceased who had been murdered through strangulation with some rope and it appeared that somebody had also committed sodomy with him prior to his murder and that Abdul Ghafoor Whala father of the accused Mohsin Ali had knowledge about this ugly episode but he did not disclose the same to the complainant.

3. The case was duly investigated; the accused were arrested and statements of the P.Ws. were recorded under section 161, Cr.P.C. After completion of investigation, report was submitted in the trial Court against all the above noted three accused including appellant under section 173 of the Code of Criminal Procedure.

4. Originally the prosecution submitted a combined challan against the three accused/appellants, however, keeping in view the fact that the accused Mohsin Ali and Avil (separately acting trial) were minors at the time of occurrence a supplementary challan was submitted against them for their trial under the Juvenile Justice System Ordinance 2000 whereas a separate charge was framed against the appellant under section 302/34, P.P.C. and under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 377, P.P.C. which the accused/appellant pleaded not guilty and prosecution evidence was summoned.

5. The prosecution in order to prove its case produced 10 witnesses at the trial. The gist of the evidence of the prosecution need not to be reproduced as the same is already mentioned in detail in the impugned judgment. However, the prosecution evidence shall be examined, assessed and discussed in this judgment, wherever required.

6. After completion of prosecution evidence, the statement of the accused under section 342 of the Code of Criminal Procedure was recorded, wherein he denied the allegations levelled against him and claimed to be innocent. In reply to the question "Why this case against you and why the PWs have deposed against you? accused/appellant Muhammad Hanif stated as under:-- "I have been falsely implicated in this case by the complainant who had suspicion of theft of cattles of Muhammad Boota brother of the complainant against Abdul Ghafoor father of co-accused Mohsin Ali and being servant of said Abdul Ghafoor I have been falsely implicated. Moreover complainant is a political rival of said Abdul Ghafoor. The P.Ws. are inter se related to the deceased and the complainant." The accused person neither opt to appear under section 340(2) of the Code of Criminal Procedure nor did he produce any evidence in his defence.

7. The learned trial Court, after completing requirements of the trial, convicted and sentenced the appellants as mentioned in opening paragraph of this judgment. Hence, this appeal.

8. Learned counsel for the appellant namely Sh. Asghar Ali, Advocate submits that the F.I.R. was lodged with an un-explained delay of more than five days and the complainant remained silent till recovery of dead body. According to the learned counsel it was the duty of the complainant that being father of the deceased he should have immediately reported the matter to the police but in the instant case even no effort was made by the complainant for finding out the whereabouts of the minor. Learned counsel for the appellant further submits that despite holding "it is not clear who played what role in the actual commission of offence as there is no eye-witness of the occurrence and even the prosecution has not assigned any specific role to any of the accused", the learned trial Court convicted the appellant and held him guilty of the charge under section 302(b), P.P.C. read with section 34, P.P.C. by merely placing reliance on the last seen evidence of P.Ws. 7 and 8 who were interested witnesses whereas it has been held time and again by the superior courts that the circumstantial/ last seen evidence being weak type of evidence cannot be believed unless the same is supported by other cogent and convincing evidence. Learned counsel for the appellant further argued that even otherwise there was no justification for convicting the appellant after acquitting him from the charge under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 as well as under section 377, P.P.C. Learned counsel for the appellant further argued that the learned trial Court in the impugned judgment did not discuss the evidence recorded in the case but merely relied upon the evidence and the finding recorded in the case of juvenile co-accused namely Avil Masih and Mohsin Ali whereas it was mandatory for the learned trial Court to have decided the case of the appellant on the basis of evidence recorded in his case separately and independent of finding recorded in the case of juvenile accused and for this reason the judgment of the learned trial Court was not sustainable. Learned counsel for the appellant further argued that the learned trial Court was wrong in attributing the motive of commission of sodomy with the deceased after acquitting the appellants and co-accused from the said charge. Similarly, the learned trial Court erred in convicting the appellant under section 302(b), P.P.C. after exonerating him from the charge of abduction under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 as well as under section 377, P.P.C. Learned counsel for the appellant further argued that the prosecution never investigated Abdul Ghafoor Whala the father of one of the co-accused namely Mohsin Ali to whom complainant had been inquiring about his son for three days and in whose presence according to the complainant all the accused had admitted that Abu Bakar had accompanied them Rohi for purchasing Tarpal. According to the learned counsel for the appellant as the evidence of said Abdul Ghafoor Whala was very material and by not joining him in investigation or producing him in evidence, the prosecution has failed to discharge the onus of proving the charge against the appellant beyond any shadow of doubt. Learned counsel for the appellant further submitted that as the prosecution has not been able to bring the charge against the appellant beyond any shadow of doubt, therefore, the appellant was entitled to be acquitted after acceptance of his appeal.

9. According to the record, Muhammad Aslam complainant did appear before the Court on 13-3-2013 and submitted that being a poor person he was not in a position to engage a counsel therefore, would rely upon the arguments of learned DDPP, even today the complainant is not present despite notice.

10. On the other hand, learned DDPP Punjab for State has opposed this appeal by arguing that the prosecution has successfully established its case against the appellant, who was therefore, rightly convicted and sentenced by the learned trial Court and this appeal having no force be dismissed and the conviction as well as sentence recorded by the learned trial Court be maintained.

11. We have considered the above noted arguments of the learned counsel for the parties and have also examined the record with the assistance of learned counsel.

12. Admittedly, it was an unseen murder and the prosecution mainly relied on the last seen evidence of P.Ws. 7 and

8. According to both these PWs they saw the deceased in the accompany of accused and also informed Muhammad Aslam father of the deceased on the same night and further both these P.Ws. and complainant went to the house of one co-accused Mohsin Ali and asked whereabouts of the deceased form Abdul Ghafoor Whala father of Mohsin Ali co-accused but the complainant made no report to the police for near about five days after missing of his son and only reported the matter on 26-1-2004 on the recovery of dead body of the deceased, this silence on the part of complainant is beyond one's comprehension. The question, why the matter was not reported to the police immediately is surrounded in mystery. We have also examined the evidence of P.Ws. 7 and 8 who furnished last seen evidence but we are not satisfied that their evidence was either confidence inspiring or so strong so as to connect the appellant with the commission of offence. It has held by the Apex Court in case of Khuda Bukhsh v. The State 2004 SCMR 331 where there is no ocular account of the incidence and the case of the prosecution entirely depends upon the circumstantial evidence, the requirement of proof in such case is "that every link has to be proved by cogent and convincing evidence. In that context, the role of prosecution agency in collecting evidence against the accused is very important and it is to be seen that the same is board and free from an doubt and suspicion. The motive also plays an important role in a case depending entirely on circumstantial evidence. Above all it is to be established on record that every piece of circumstantial evidence fits in with another piece of such evidence in the chain and corroborates each other". Earlier, in the case of Sarfraz Khan v. The State and 2 others 1996 SCMR 188 it was held by the Apex Court "circumstantial evidence should be so inter-connected as to form a continuous chain one end of which touches the dead body and the other touches the neck of the accused thereby excluding all hypothesis of this innocence".

13. In the light of above noted precedent law, when prosecution evidence is examined, the only conclusion one can draw is; the circumstantial evidence as disclosed by P.Ws. 7 and 8 is not of so weightage that the same to be considered as sufficient for convicting the appellant and awarding such a harsh sentence too. Further, after acquitting the appellant from the charges under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and under section 377, P.P.C. and further after holding that it was not clear who among three co-accused played role in the actual commission of offence and further the prosecution has not assigned any specific role to any of the accused one cannot conclude definitely it was the appellant among three accused who was exclusively liable for the commission of offence of Qatl-e-Amd of Abu Bakar deceased. The case of prosecution also becomes doubtful when the complainant remained silent for about five days and did not report the matter to the police despite knowledge, on the very night of the day of occurrence that deceased was seen in the company of appellant and his co-accused. On getting such information, it was the duty of the complainant to have reported the matter to the police. We are, satisfied that the learned trial Court was wrong in convicting the appellant by placing reliance on the last seen evidence of P.Ws. 7 and 8 which is full of discrepancies as well as doubts and the benefit of which must go to the appellant while reaching at such conclusion; we are fortified by the judgment of the Apex Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 wherein it was held that "for riving benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubt. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of trace and concession but as a matter of right".

14. Even otherwise, according to the learned trial Court the motive for abduction and murder was intention to commit sodomy with the deceased but in the last para of the judgment, the learned trial Court acquitted the appellant from the charge of abduction as well as commission of offence of sodomy for want of evidence which also weakens the story of the prosecution that the deceased was abducted for the purpose of commission of sodomy. Finally, the perusal of the judgment indicates that the learned trial Court except writing few lines about the evidence of P.Ws. 7 and 8 said nothing while convicting the appellant by relying upon his finding and judgment recorded in the case of juvenile accused whereas it is a fact that evidence in both the case was recorded separately and there is no law which allows the Court to rely upon either the judgment or evidence of a case in which the person/accused was either a party nor tried, therefore, to this extent also the finding of the learned trial Court holding that the case of the appellant was exactly at par with the co-accused, therefore, was also liable to be convicted under section 302(b), P.P.C.; was not legally warranted.

15. Keeping in view the above noted facts, evidence, circumstances as well as the law declared by the apex Court in the reported judgments; we are satisfied that the prosecution has miserably failed to prove the charge for the commission of murder of Abu Bakar deceased against the appellant beyond any shadow of doubt. Therefore, the impugned judgment is not sustainable which is set aside and the conviction and sentences recorded by the learned trial Court through the impugned judgment are also set aside and the appellant is acquitted of the charge. The appellant Muhammad Hanif son of Muhammad Hussain is behind bars. He be released forthwith if not required in any other case.

16. Above are the reasons for our short order dated 30-5-2013. HBT/M-23/FSC Appeal allowed.