2007 SCMR 876 (PLP)

JUSTICE JAVED IQBAL (CHAIRMAN).

This petition for leave to appeal is directed against the judgment, dated 28-4-2005 whereby appeal preferred on behalf of petitioner has been dismissed and the judgment dated 21-12-2002 passed. by learned Additional sessions Judge-II, Chunian has been kept intact whereby the petitioner has been convicted under section 302(b), P.P.C. and sentenced to life imprisonment by way of Tazir in view of the provisions as enumerated under section 12(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 under the Juvenile Justice System Ordinance, 2000 with fine of Rs.25,000 as compensation to the legal heirs of the deceased and in case of default to suffer S.I. for six months. The petitioner was also convicted under section 377, P.P.C. and sentenced to five years imprisonment with fine of Rs.5,000 and in case of default to further suffer one month's S.I. with benefit of section 382-B, Cr.P.C. 2. "Relevant facts are on 19-2-2002, a case under section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 302, P.P.C. was registered at Police Station Chhanga Manga at the instance of Abdul Shakoor P.W. in respect of the alleged occurrence. According to the complainant, on 18-2-2002 at Sham Wela, he and his son Muhammad Mursaleen aged 12/13 years were present in his house along with Muhammad Naeem P.W.2 and Shabbir Ahmad (not produced). The appellant came to his house carrying a Toki in his hand and asked the complainant to send Muhammad Mursaleen with him so as to peel off sugarcane. The complainant, firstly resisted his demand as it was evening time but on his insistence sent his son Muhammad Mursaleen with the appellant. When he did not return home till late at night, the complainant started search for him along with Muhammad Naeem P. W., Shabbir Ahmad and Muhammad Ramzan. They met the appellant and inquired from him about him so as to find out the whereabouts of Muhammad Mursaleen. He hesitated to impart any information in this regard. A suspicion arose in their mind that Muhammad Mursaleen had been done to death. Search for the missing son continued to whole night and it was morning time that they found the dead body of Muhammad Mursaleen lying in wheat crop in the field of Ghulam Muhammad". The petitioner was arrested and after completion of necessary investigation sent up for trial and on conclusion whereof he was convicted and sentenced as per details mentioned in the preceding paragraphs. The criminal appeal preferred on behalf of petitioner has been dismissed by the learned Federal Shariat Court, hence this petition.

3. Mr. Rafaqat Hussain Shah, learned Advocate Supreme Court has entered appearance on behalf of petitioner and urged with vehemence that on the basis of last seen evidence which is a weak type of evidence, no conviction and sentence could have ,been awarded without having a strong corroboration which is badly lacking in this case. It is also contended that no reliance could have been placed on the recovery of Toki because no private witness was associated during the process of search. It is next contended that had it been the crime weapon it could have been thrown away easily and there was no justification to keep it in the house for an indefinite period. It is also contended that without having the semen grouping the petitioner could not have been connected with the commission of sodomy for which no evidence is available. It is argued that medical 'evidence elucidates cause of death but could not identify the culprit.

4. We have carefully examined the entire evidence by keeping the defence version in juxtaposition and perused the judgment of learned trial as well as appellate Courts with care and caution. A careful scrutiny of the statement of Abdul Shakoor (P.W.1) father of the deceased would reveal that it is not only worthy of credence but has rightly been relied upon by the Courts below. Abdul Shakoor (P.W.1) has pointed out in an unequivocal manner that deceased Muhammad Mursaleen aged 12/13 years was taken away by the petitioner having a Toki in his hand on the pretext of peeling off sugarcane sticks. It is further mentioned that at the relevant time Rana Muhammad Naeem (P.W.2) was also sitting there. It is worthwhile to mention here at this juncture that the petitioner is neighbour of the complainant and there is no reason whatsoever for the substitution of real culprit with that of petitioner which otherwise is a rare phenomena. Abdul Shakoor (P.W.1) has also stated in an unambiguous manner that sting of the Shalwar of Muhammad Mursaleen was opened. Abdul Shakoor (P.W.I) was subjected to a lengthy cross-examination but nothing beneficial rendering any assistance to the case of petitioner could be extracted. No enmity whatsoever was alleged and in absence whereof the question of concoction of a false case and involvement in a heinous case like murder does not arise. Muhammad Naeem (P.W.2) supported Abdul Shakoor (P.W.1) on all material particulars. He has mentioned in a categoric manner that petitioner had taken Muhammad Mursaleen (deceased) for the peeling off sugarcane sticks having a Toki in his hand which was subsequently got recovered at the pointation of petitioner.

5. After having gone through the statements of Abdul Shakoor (P.W.1) and Muhammad Naeem (P.W.2) we have no hesitation in our mind to hold that Muhammad Mursaleen (deceased) was taken away by the petitioner from his house whose dead body was recovered subsequently. The conduct of petitioner also remained unusual as he could not furnish any plausible justification that where Muhammad Mursaleen (deceased) was left who had been admittedly taken by him from his house. It is to be noted that blood-stained Toki was also recovered at the pointation of petitioner as a result of his disclosure hence the question of applicability of section 103, Cr.P.C. does not arise as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner but in such an eventuality Article 40 of the Qanun-e-Shahadat Order, 1984 would figure in. The Toki (Exh.P.1) was found stained with human blood as per the report of Chemical Examiner. Dr. Muhammad Mushtaq (P.W.3) has conducted the post-mortem examination of dead body of Muhammad Mursaleen on 19-2-2002. According to whom injury No.1 i.e. "an incised wound 7.5 x 3 c.m. on left side of neck, 1 c.m. below lobule of left ear", injury No.5 i.e. "an incised wound 11 x 2 c.m. on right and back of neck at upper part 1 c.m. below injury No.4 second cervical vertebrae on right part was cut in the line of the incised wound" and injury No.6 i.e. "an incised wound 7 x 2 c.m. on back of right side of neck at its junction with the trunk, 4 c.m. below to injury No.5. Intervertebral disc between 6th and 7th cervical vertebrae was cut and spinal card was also cut at the level of injury No.6. Upper border of back part of right first rib was exposed. Cervical plura on the right side was exposed in the depth of the wound but not cut", which resulted in the death of Muhammad Mursaleen due to "acute cardio pulmanary arrest as a result of haemmoragic and nurogenic shock" caused by heavy cutting weapon and no doubt the Toki is a sharp-edged weapon and injury No.1 as mentioned hereinabove could have been caused by it. It is worth while to mention here that act of sodomy was also committed with Muhammad Mursaleen (deceased) as the anal swabs were found stained with semen. The prosecution has succeeded in establishing the accusation by cogent and concrete evidence as discussed hereinabove.

6. We have dilated upon at length the prime contention of learned Advocate Supreme Court on behalf of petitioner that reliance could not have been placed on the last seen evidence. "It is to be noted that the ' above question has been examined time and again in different cases and a few are mentioned hereinbelow for ready reference: 1969 SCMR 558, 1969 PCr.LJ 1108, PLD 1991 SC 718; 1999 ALD 48(i), PLD 1991 SC 434, 1991 SCMR 1601, 1998 PCr.LJ 722, PLD 1959 SC (Pak.) 269, PLD 1978 SC 21, 1991 PCr.LJ 956, PLD 1964 Quetta 6, 1971 PCr.LJ 211, 1980 PCr.LJ 164, 1998 SCMR 2669, PLD 1964 SC 67, PLD 1971 Lah. 781, 1972 SCMR 15, 1974 PCr.LJ 463, PLD 1971 Kar. 299, PLD 1977 SC 515, 1997 SCMR 1416, 1988 PCr. LJ 205, NLR 1988 Cr. 599, 1997 SCMR 1279, PLD 1978 BJ 31 and 1997 SCMR 20.

7. We have perused the dictum laid down in the abovementioned authorities. The consensus seems to be that "last seen evidence itself would not be sufficient to sustain charge of murder and such evidence further required to link accused with the murder of his companion i.e. incriminating recoveries at accused's instance, strong motive or proximity of time when both last seen together and time of murder, accused required to explain demise of his companion only when such requirements fulfilled". PLD 1997 SC 515, AIR 1927 Lah. 541, PLD 1956 FC 123, 1972 SCMR 15, PLD 1964 SC 167 and PLD 1966 SC 644.

8. The further consensus in such-like cases appear to be that "last seen evidence carries weight depending upon varying degree of possibility and facts and circumstances of each .case. Before inferring guilt merely from inculpatory circumstances, such circumstances, held, must be found to be incompatible with innocence of accused and incapable of explanation upon any other reasonable hypothesis than that of guilt". PLD 1977 SC 515, AIR 1922 Lah. 181, AIR 1922 All. 340, PLD 1955 BJ 1, 1974 PCr.LJ 463, AIR 1932 Lah. 243, PLD 1971 Kar. 299, PLD 1953 FC 214 and PLD 1964 SC 167."

9. On the touchstone of the criterion as enunciated in the above mentioned case-law and discussed at length in case of Muhammad Amin v. State 2000 SCMR 1784 authored by one of us (Mr. Justice Javed Iqbal) and judicial consensus, in our considered opinion, the last seen evidence in this case has rightly been considered and relied upon by the Courts below for the simple reason that the statements of Abdul Shakoor (P.W.1) and Muhammad Naeem (P.W.2) cannot be discarded who have pointed out in an unequivocal manner that deceased was lastly seen in the company of petitioner by whom the deceased was taken away from his house on the pretext of peeling off sugarcane sticks. The recovery of Toki which was found stained with human blood and medical evidence lend full corroboration to the prosecution version. It is to be noted that petitioner has failed to furnish a plausible explanation that on which point and where the deceased was separated from him and he could not discharge the onus of burden lies on him in view of the provisions as contemplated in Article 21 of the Qanun-e-Shahadat Order, 1984. In this regard we are fortified by the dictum laid down in case titled Rehmat v. State PLD 1977 SC

515. The defence version appears to be an afterthought and has rightly been rejected by the learned Courts below. In sequel to above mentioned discussion we are of the view that the evidence which has come on record has rightly been appreciated by the learned trial Court determination whereof has been upheld by the learned Federal Shariat Court vide judgment impugned which being unexceptionable and well based does not warrant interference. The petition being devoid of merit is dismissed and leave refused. M.H./M-23/SC Petition dismissed.