2010 PLP 939 (SCMR)

TARIQ PERVEZ, J.

Muhammad Asif deceased of this case went missing after he had left his house on 3-2-2006 and did not return home till evening. Allah Ditta father of the deceased along with his brother Muhammad Sultan went in search of his son, when in the process they met Muhammad Ibraheem and Amanat Ali who informed them that they have seen Muhammad Asif deceased in the company of Zafar Abbas accused appellant. According to the F.I.R., search of the deceased son and Zafar Abbas continued on the following date i.e. 4-2-2006 but with no result. However on 5-2-2006 when complainant along with his brother mentioned above and Amanat Ali saw and met Zafar Abbas and when they inquired from him about Muhammad Asif deceased, accused was first reluctant, but later on admitted that on the very day when the deceased went missing, at Isha prayer time he (accused-appellant) has committed sodomy with the deceased and thereafter killed him by strangulation and that he has buried the dead body in a ditch near canal. The above facts were so disclosed by the complainant Allah Ditta (P.W.8) when he made his report recorded as F.I.R. No. 73 dated 5-2-2006 at 9-30 a.m. in Police Station Jauharabad, District Khushab.

2. Consequent upon registration of the case, the Investigating Officer of this case Hadayat Ullah, S.-I. P.W.13 visited place of occurrence and got recovered dead body of the deceased from a ditch and on the same day effected the arrest of Zafar Abbas accused. On same day while in custody accused appellant led the police party in the area of Chak No.46-MD and on his pointation a Shalwar P5 belonging to deceased Muhammad Asif was recovered for which memo. Exh.PE. was prepared.

3. Charge was framed against the appellant by learned Special Judge Anti-Terrorism Court, Sargodha which trial was concluded on 22-6-2006 resulted into conviction of accused appellant under sections 377/302/201, P.P.C. as well as under section 12 Offence of Zina (Enforcement of Hadd) Order, 1979 read with section 4(a) of Anti-Terrorism Act, 1997 and he was awarded sentence of death under section 302(b), P.P.C. along with Rs.100,000 as compensation to the legal heirs of the deceased. He was also convicted and sentenced under section 377, P.P.C. to ten years' R.I. with fine of Rs.10,000, in default six months' R.I. He was convicted under section 201, P.P.C. and sentenced to undergo seven years' R.I. He was further convicted and sentenced under section 12-Offence of Zina (Enforcement of Hadood) Ordinance, 1979 for ten years with fine of Rs.10,000 and in default to six months' R.I. He was convicted under section 7(a) of Anti-Terrorism Act, 1997 and awarded death sentence with fine of Rs.50,000, in default to undergo one year R.I.

4. Aggrieved from the judgment of conviction and sentences appellant filed criminal appeal before Hon'ble Lahore High Court which was decided on 1st April 2009 wherein keeping in view the age of appellant the conviction was maintained for all the offences except that sentence of death under section 302(b), P.P.C. read with section 7(a), ATA was altered to life imprisonment. Murder Reference was answered in negative.

5. As last resort appellant filed Jail Petition No.237 of 2009, hence this appeal under leave of this Court. The prosecution in all examined thirteen witnesses and has relied on the report of chemical examiner Exh.PL and Exh.PM.

6. Learned counsel appearing for the appellant has argued that this is a case of circumstantial evidence where rule of prudence requires that every piece of circumstantial evidence shall be free from doubts. His argument is that it has come in evidence that appellant was servant in the hotel of Allah Ditta complainant and was not paid his wages/salaries despite persistent demands, therefore there were strained relations between the complainant and the appellant for which reason a false charge. He argued that so called extra judicial confession is the result of threat and promise, therefore shall be excluded from consideration being involuntary. Regarding recovery of Shalwar P.5 recovered at the instance of the accused appellant it was argued that no independent witness to such pointation was examined, and the one who has been examined is maternal uncle of the deceased therefore interested in the prosecution of the case against the appellant.

7. Learned Deputy Prosecutor General, Punjab, however argued that no doubt it is case of circumstantial evidence but it comprises of evidence of last seen given by the Amanat Ali (P.W.9), the recovery of semen stains shalwar of the deceased last worn by him before his murder on the pointation of appellant and extra judicial confession made at least to three witnesses i.e. P.Ws. 8, 9 and 10.

8. There is no denial of the fact that Muhammad Asif deceased was a boy of eight years of age who has died unnatural death. According to the postmortem report conducted by Dr. Hafiz Abdul Basit, P.W.11 there was multiple human bites on different parts of body of the deceased. Doctor found fracture of hoide bone which was caused by strangulation, led to asphyxia and ultimate death. Doctor also found abrasion on pari-anal and anal region, anus was wide open and torn. The above medical examination has proved two facts i.e. deceased was subjected to carnal intercourse and was killed by strangulation.

9. Question for determination is that who has caused the unnatural death of the deceased in this case.

10. According to evidence given by Allah Ditta, P.W.8 his deceased son left the house on 3-2-2006 at about evening time and thereafter disappeared which caused anxiety to the father which led him for the search of his son along with Muhammad Sultan his brother. It has also come in his statement that during search he met Amanat Ali, P.W.9 and Muhammad Ibraheem who disclosed that they had seen the deceased in the company of Zafar Abbas accused appellant when they were proceeding towards western side and that despite efforts made by the complainant two of them could not be found except when on 5-2-2006 complainant along with Amanat Ali and Muhammad Sultan saw Zafar Abbas, who after some resistance admitted that he has committed sodomy with the deceased at Isha-wala on 3-2-2006 and then strangulated him and thereafter buried him in a ditch.

11. The above statement made by the complainant in the F.I.R. and repeated in his Court statement as P.W.8 finds complete corroboration from medical evidence. Undoubtedly report was made at 9-30 a.m. on 5-2-2006 whereas postmortem was conducted after making of the report therefore what was stated by the complainant before the postmortem examination was confirmed by the Doctor as cause of death was strangulation preceded by commission of sodomy.

12. We now take the evidence of last seen of the deceased in the company of appellant. Amanat Ali, P.W.9 admitted in his Court Statement that around 5:30 p.m. on 3-2-2006 complainant came to him along with Muhammad Sultan and he disclosed to them that he has seen the deceased in the company of appellant who were going towards canal side. Same is the statement of complainant Allah Ditta, P.W.8 that the last seen information was given to him by Amanat Ali, P.W.9 when he was accompanied by Muhammad Sultan his brother. No doubt Amanat Ali is maternal uncle of the deceased but has no reasons to falsely charge the appellant.

13. Next piece of evidence is extra judicial confession made by the appellant before three persons in one go before Allah Ditta, P.W.8, Amanat Ali, P.W.9 and Muhammad Sultan (not produced). No-doubt that Allah Ditta P.W.8 has admitted that when they met Zafar Abbas on 5-2-2006. and they asked about the missing deceased, he was initially reluctant to disclose but after threat disclosed about the commission of crime as given in detail by the complainant in the F.I.R. and also in his Court Statement. Amanat Ali, P.W. has also stated when they inquired appellant about the deceased he after getting surety that he would not be given to the police disclosed the commission of the crime with all details including given them the place where dead body was buried in a ditch.

14. Allah Ditta, P.W.8 is father and Amanat Ali, P.W.9 is maternal uncle of the deceased has deposed about extra judicial confession but added that the statement made was after the threat was extended to the accused while they later stated that accused disclosed after he was insured that police will not be informed.

15. If for the sake of argument and for safe administration of criminal justice, their statements about extra judicial confession are taken out, we still have before us statement of Muhammad Liaquat P. W.10 who is man of 60 years of age and is not related to the deceased. Muhammad Liaquat has stated that-it was on 4-2-2006 that Zafar Abbas accused came to his baithak and admitted the commission of the crime by disclosing that he has committed sodomy with the deceased and thereafter strangulated him to death and buried him in a ditch. This statement of P. W.10 has not been challenged either on facts or on any technical legal flaw. 15-A. Another important piece of evidence is the discovery of relevant facts made on the pointation of accused appellant when he was in police custody. It has come in the statement of Hadayat Ullah, P.W.13 that on 5-2-2006 (the date of crime was reported) he arrested accused Zafar Abbas who led the police party to in the area of Chak No.47-MD and got recovered shalwar P.S. This recovery was effected through memo. Exh.PE to which Amanat Ali P.W.9 is attesting witness.

16. Mere relationship, in absence of any grudge cannot be sufficient to dislodge the statement of Amanat Ali qua recovery of shalwar of deceased when same is stated and sported by Hadayat Ullah, S.-I, P.W.13 who is the investigation officer. P.5 Shalwar of the deceased was sent for chemical analysis to find out if the same was stained with human semen. Report positive in nature was received and duly exhibited as Exh.PL and similar was report Exh.PM that the anal swab taken from the deceased were having semen.

17. There are three independent pieces of evidence comprising the extra judicial confession for which evidence has been given by Muhammad Liaquat, Ali I.O., the last seen evidence given by Amanat Ali, P.W.9 and the recovery of shalwar belonging to the deceased on the pointation of the accused from the place which was in exclusive knowledge of appellant only and was witnessed by P.W.9 as well as P.W.13. This evidence by itself is sufficient to exclude all possibilities of innocence of accused.

18. We are conscious of the fact that some foundation is laid down in the cross-examination to show that there was some hostility between the complainant and the accused appellant over non-payment of wages/salaries for which no independent evidence was led and otherwise too, for few hundred rupees a father who has lost his son aged eight years would not bring a false charge against an innocent person. Additionally we find that neither Amanat Ali P.W.9 nor Muhammad Liaqat P. W.10 should have any reason to make false statement against the appellant.

19. We are therefore convinced that prosecution has brought on record sufficient and unchallenged evidence which has created strong link to connect the criminal with the crime who is none else but the appellant. For the foregoing reasons, we find no merits in this appeal, conviction and sentences recorded by the trial Court and maintained by the Hon'ble High Court do not suffer from any legal infirmity, therefore this appeal is dismissed. RAHMAT HUSSAIN JAFFERI, J.

I have had the privilege of going through the judgment proposed to be announced and written by my learned brother. Tariq Parvez, J. With profound respect to my learned brother, I am unable to agree with the findings arrived at in the judgment. However, I agree with the observation that extra judicial confession before two witnesses viz. the complainant Allah Ditta (P.W.8) and Amanat Ali (P.W.9) cannot be relied upon. I further add that the said confession was not voluntary because it was obtained after issuing threat and inducement, as admitted by both the witnesses, therefore, it is inadmissible piece of evidence. Nevertheless, my learned brother relied upon the extra judicial confession made before P.W.10 but I am unable to persuade myself to agree with the reasoning of relying upon the said witness.

2. The evidence of P.W.10, reveals that at the time of extra judicial confession before him another witness Muhammad Aslam was also present but he was not examined. In spite of the fact that alleged confession was made before P.W.10 he allowed the appellant to go scot-free. His conduct is unnatural as he did not produce the appellant before police so as to be arrested or inform the said facts to the complainant Allah Ditta, who was his friend. In fact he did not state that he informed such facts to the complainant at any time, which is very alarming and cast serious doubt on his evidence. He also did not inform the police about such facts immediately after the confession was made before him. Had he informed the above said facts to the complainant or to the police, then the appellant could have been arrested. He kept quiet for five days as he did not inform any body till the police recorded his statement on the 5th day. He also did not furnish any explanation as to why he did not report the matter to the complainant or to the police before recording his statement on the 5th day. This by itself creates serious doubt about the veracity of the witness. It has been observed in the case of "Muhammad Rahim v. Bakht Muhammad (2006 SCMR 1217)" in which statements of the witnesses were not recorded promptly but were recorded after a considerable delay and witnesses failed to explain the delay, therefore, the witnesses were not considered trustworthy as it had created doubt about their veracity. Reference is also invited to the cases of "Muhammad Khan v. Maula Bakhsh (1998 SCMR 570); Muhammad Sadiq v. The State (PLD 1960 SC 223) in which it has been held that witness, a friend of deceased not disclosing to any one for 24 hours that he saw the incident such evidence was not relied upon and Saeed Muhammad Shah v. State (1993 SCMR 550)". Thus the statement of P.W.10 is untrustworthy and unreliable; therefore, it is also taken out of consideration.

3. As regards the evidence of deceased last seen alive in the company of the appellant. The prosecution examined P.W.9 (brother-in-law of the complainant), whose statement reveals that he along with Muhammad Ibrahim (not examined) had seen the appellant with the deceased on 3-6-2006 at 5-00 pm. The prosecution did not examine Muhammad Ibrahim by treating him as an unnecessary witness as per statement of Prosecutor dated 9-6-2006. Thus Muhammad Ibrahim was c present and available in the Court on 9-6-2006 and his evidence could have been recorded but he was given up on the above mentioned ground without realizing the fact that he was an important witness as the case hinges upon circumstantial evidence only. In these circumstances, an adverse inference as required under Illustration (g) of Article 129 of the Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the witness been examined his evidence would have been unfavourable to the prosecution. Be that as it may, the prosecution tried to corroborate the statement of this witness by leading evidence of the complainant that on the same day the P.Ws. informed him about the said fact.

4. I have examined the evidence of the witnesses and find that they had improved their statements in the Court from their earlier statements made under section 161, Cr.P.C. and in the F.I.R. in respect of above fact. In the cross-examination, P.W.10 admitted that he did not mention in his police statement that at about 5:00 pm he and Muhammad Ibrahim were standing near Chowk or that at 5:30 pm they went to the BAITHAK of Muhammad Ibrahim where they were taking meal. He was inquired as to whether the complainant Allah Ditta came to the BAITHAK of Muhammad Ibrahim or that they disclosed him about seeing of his son Muhammad Asif going with the appellant towards canal or that he had gone to the house of the complainant, to which he stated that he disclosed such facts in his police statement but when he was confronted with the same, it was found that he did not state so. The complainant P.W.8 stated that he had mentioned that Muhammad Ibrahim and Amanat Ali met him in the BAITHAK of Muhammad Ibrahim but when he was confronted with the F.I.R., it was found that he did not state such facts in it. Thus P.Ws.8 and 9 had improved their statements during the course of evidence to fit in the circumstances and strengthen the prosecution case. Therefore, they have made their statements highly doubtful. It has been held in the case of "Saeed Muhammad Shah v. State (1993 SCMR 550)" that the improvements in the statement made by a witness in the Court to strengthen the prosecution case are not worthy of reliance.

5. In these circumstances, the statement of P.W.9 requires strong corroboration, particularly, from the statement of Muhammad Ibrahim which is lacking in the present case as discussed above. It has been held in the case of "Ghulam Murtaza v. The State (PLJ 1991 SC 434) at page 439 as under:

"Further, the witness is a first cousin of the complainant and his testimony required corroboration as laid down in Nazo v. State (1977 SCMR 20) which is not there at all. The learned High Court fell in error in proceeding to examine this aspect of the case by holding that since there was no enmity with the appellant, the ipse dixit of the witness of the last seen together P.W.7 Manzoor was sufficient to uphold the conviction of the appellant." Even otherwise, the evidence of last seen without corroboration is a weak piece of circumstantial evidence to base conviction. Reference in this regard is invited to "Naqibullah v. State (PLD 1978 SC 21) and Karamat Hussain v. State (1972 SCMR 15)".

6. As regards the recovery of Shalwar (Exh.P5), it was alleged by P.W.9 and I.O., P.W.13 that the said Shalwar was recovered on the pointation of the appellant Zafar Abbas. The said Shalwar has not been put in identification test through any of the P.Ws. so as to connect with the deceased. Even it was not shown to the complainant P.W.8 to identify it. If the Shalwar of the deceased was recovered after the arrest of the appellant then the dead body of the deceased should have been without it but on the contrary the Medical Officer found that the deceased was wearing Shalwar so also P.W.7. It is not the case of the prosecution that the deceased had two Shalwars or he had changed it. Furthermore, the prosecution also examined P.W.7 Abdul Razzaq, whose evidence reveals that the appellant was holding a cloth like Shalwar of Ferozi colour which was wrapped and similar colour of Shalwar was worn by the deceased when dead body was recovered. From his evidence it is highly improbable that he would recognize the wrapped cloth being Shalwar. Merely, the colour of the Shalwar matched with the wrapped piece of cloth carried by the appellant would not be sufficient to prove that it was the Shalwar of the deceased. Even otherwise, this Shalwar (Exh. P.5) was not sent to the Chemical Analyzer for examination and report so as to ascertain as to whether it had semen stains. On the contrary, the Shalwar worn by the deceased at the time of postmortem examination, after its recovery by the Medical Officer was handed over to the police and they sent it to the Chemical Analyzer who reported that it had semen stains. Therefore, Exh.P.5 has not been connected with the deceased or the crime as such no reliance can be placed on such type of evidence.

7. As regards the medical evidence, Dr. Hafiz Abdul Basit (P.W.11) stated that the body was about two days old as he gave time between death and postmortem as 36 to 48 hours. It is important to note that from the evidence of Doctor the victim was a child of 8 years, but the dead body was not decomposed. There was no discolouration of skin or the body was swollen. All the internal organs were normal. There was no foul smell. All these conditions clearly show that the death did not take place about 2 days back, but they show that the body appeared to be fresh. As per Modi's Medical Jurisprudence the decomposition of body of a child starts much earlier than the adult. Thus it appears that the evidence has been manipulated to fit in the circumstances of the case.

8. After considering the material available on record, I am of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, Therefore, the convictions and sentences awarded to the appellant under the impugned judgment are set aside. He is acquitted of the charges and set at liberty. He is in judicial custody and be released forthwith, if not required in any other custody case.

9. Resutlantly, the impugned judgment is set aside and the appeal is allowed. ORDER OF THE COURT By majority of 2 to 1 this appeal is dismissed. M.H.Z-2/SC Appeal dismissed.