1992 P Cr (PLP)

JUSTICE SAJJAD AHMED SIPRA, MEMBER.

The present appeal has been preferred by the State against the acquittal of Muhammad Ashraf by the judgment, dated 22-12-1991, passed by Mr. Justice (Retired) Ch. Muhammad Sharif, Judge, Special Court for Speedy Trials, Multan. The respondent had been tried for offences under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under sections. .377, 302 and 201, P.P.C.

2. The brief facts leading to the present appeal are that an F.I.R. No.155/91 dated 24-4-1991 was registered under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under sections 377, 302 and 201, P.P.C., at Police Station Jahanian, District Khanewal, on the basis of the statement Exh.P.G. of the ,complainant, Rahmat Ali, P.W.6. According to the complainant, his son Aamir Ali, deceased, was found missing on the eve of Eid-ul-Fitr, i.e. 16-4-1991, and hectic search had been conducted to trace him for about seven days, but to no avail. However, that on 24-4-1991 Manzoor Ahmad-P.W.7 and Muhammad Aslam (not produced) had informed him that they had seen .his son Aamir Ali sitting on the bicycle of Muhammad Ashraf accused going towards Jalalabad Morh; and that Muhammad Ashraf accused was not found in his house as he had gone to Bahawalpur. The complainant had further stated that Aamir Ali was dressed in light pink shirt and Shalwar and had further expressed his suspicion that the accused had murdered his son after committing sodomy with him. Thereafter the accused was arrested and shirt Exh.P.1, cot Exh.P.2 and bicycle Exh.P.3 were recovered at the instance of the accused from his shop. The accused while in police custody had led the police to the canal where he had thrown the dead body of Aamir Ali and after a hectic search the dead body was found wrapped in the gunny bag contained in a big plastic bag and it was taken into possession vide memo. Exh.P.L. The plastic cover is Exh.P.4 and jute bag is Exh.P.5, whereas the pair of sandles is Exh.P.6 and vest is Exh.P.7. The report of the Chemical Examiner is Exh.P.D. After the conclusion of the investigation, the challan of the case had been submitted to the Court of the learned Sessions Judge, Khanewal, who had entrusted the same to Syed Akhtar Ali Naqvi, Additional Sessions Judge, Khanewal. However, after the prosecution evidence and the statement of the accused under section 342, Cr.P.C. had been recorded, the case was transferred to the learned trial Court i.e. Special Court for Speedy Trials, Multan, and the said learned Court had recorded the defence evidence and heard the arguments of the parties and thereafter decided the case by bringing in a verdict of acquittal, as stated above.

3. The prosecution case was based on last seen evidence, the testimony of Manzoor Ahmad P.W.7, extra-judicial confession, supported by Saeed Ahmad P.W.10 and Nazar Muhammad P.W.11, and on the pointing out of the place where the dead body was thrown in the canal by the accused vide memo. Exh.P.M. and attested by Khalil Ahmad P.W.14, Iqbal Ahmad A.S.I. P.W,15, and the medical evidence proved through the testimony of P.W.L Dr. Abdul Khaliq. .

4. The learned trial Court had held that the medical evidence had only established that the deceased had suffered following two injuries:-- (1) An abrasion 4 c.m. x 1.2 c.m. on the mid front of the neck; (2) A lacerated wound 6.4 c.m. x 2.3 c.m. going deep into the rectum around the anus; and that both the .injuries were sufficient to cause death in the ordinary course of nature; and that sodomy had been committed with the deceased, but had observed that simple medical evidence was of corroboratory nature and not enough to prove the prosecution case by itself. It had further observed that P.W.7 Manzoor Ahmad was not an independent witness, as he had remained the private servant of the complainant for 12 years, and that because of the contradictions in his statement with regard to as to why he had gone away to Faisalabad resulting in the delay in informing the complainant of having seen his deceased son being taken on a bicycle by the accused. In this respect, the learned trial Court pointed out that whereas he had stated that he had gone to Faisalabad to meet his sister who resides in Railway Colony, on the other hand the complainant P.W.6 had stated that his sister is married in Toba Tek Singh and had further observed that as the second witness of the last seen namely, Muhammad Aslam, had not been produced, therefore, it is safe to presume that he would not have supported the version of the prosecution in respect of last seen. Similarly, the learned trial Court did not believe Muhammad Tufail P.W.8 in respect of the recovery of shirt Exh.P.I, or Manzoor Hussain P.W.9 in respect of the recovery of bicycle Exh.P.3 and plastic bag and jute bag Exh.P.4 and P.5 respectively or pair of sandles Exh.P.6. The learned trial Court did not consider the testimony of Saeed Ahmad P.W.10 and Nazar Muhammad P.W.11 of any credence in respect of the extra-judicial confession and opined that both these witnesses had business dealings with the complainant and live at a distance of 14 miles from the residence of the accused and that otherwise too their testimony had been shaken by material confrontations and contradictions during the cross-examination. The learned trial Court had further observed that as there was not a single independent witness of the prosecution in respect of the last seen, recoveries or extra-judicial confession and m this respect referred to the statement of the complainant P.W.6 Rahmat Ali, who had admitted that Khalil P.W.14 was the son of his maternal-aunt, Karam Bibi, whereas Muhammad Tufail P.W.8, was the brother of his brother -in-law Aslam, whereas Liaqat P.W. was son-in-law of Aslam and Manzoor Ahmad P.W.7 was his private servant and Nazar Muhammad P.W.11 and Saeed Ahmad P.W.10 had business connections with him and lived at a considerable distance from the place of occurrence. Therefore, the learned trial Court had come to the conclusion that the accused under the circumstances deserved benefit of doubt and duly extending him, the same had acquitted him of all the charges as stated above.

5. The learned counsel for the appellant, Mr. MA. Zafar, Advocate argued that the impugned judgment was based on erroneous reasons and was arbitrary and perverse, and that the acquittal of the respondent had resulted in grave miscarriage of justice. Further submitted that even if the prosecution witnesses were related inter se yet they had no reason to falsely implicate the accused. Further argued that the case as established through the testimonies of P.Ws. in respect of last seen, extra-judicial confession and the recovery of the dead body of the deceased from the canal at the pointing out of the spot by the accused, where he had thrown the dead body of the deceased in the canal was sufficient to bring the guilt home to the accused and as such he deserves to be convicted and sentenced as charged and that, therefore, his acquittal merits to be set aside.

6. We have given our anxious consideration to the submissions made by the learned counsel. However, we are constrained to observe that the contentions raised are untenable. We have gone through the entire evidence with the assistance of the learned counsel and we are of the considered view that nothing had been pointed out to establish that any violation of the established principles of appraisement of evidence had taken place. In fact, the learned trial Court had very elaborately and clearly dealt with every piece of evidence brought on the record by the prosecution to prove its case and discarded the same for very valid and cogent reasons. The learned trial Court has not only disbelieved the testimony of the prosecution witnesses because they were relatives inter se but also because there were inherent infirmities in their testimonies. In this respect, it is pointed out that regarding the testimony of Manzoor Ahmad P.W.7, aside from the contradictions in respect of the reason for the delay of seven days in approaching the complainant P.W.6 Rahmat Ali to inform him about having last seen the deceased in the company of the accused, the learned trial Court had also taken notice of the fact that the reason advanced for going to the complainant at an odd hours of mid-night to impart the said information was ridiculous. Furthermore, although the said P.W.7 had claimed that one Liaqat Ali had informed him about the son of the complainant being missing for some days yet the prosecution had not produced the said Liaqat Ali and that as such vital link was missing from the prosecution version, specially as Aslant had not been produced to corroborate the testimony of Manzoor Ahmad P.W.7, further weakening the case of the prosecution. And as discussed earlier, the learned trial Court did not deem credible the evidence in respect of the extra-judicial confession as the said two P.Ws. i.e. P.W.10 and P.W.11, were neither respectables of the locality nor were their testimonies otherwise confidence inspiring, as in the case of Saeed Ahmad, his statement was replete with material contradictions and that he was involved in theft case under section 379, P.P.C. and was also facing trial under section 324, P.P.C. whereas Nazar Muhammad P.W.11 was time and again forced to concede that he had not stated before the police that the accused had pointed out the place where the plastic bag was lying, in which the dead body was placed, or the cot on which he had committed unnatural offence or that the accused had summoned him or that the accused had taken him to his shop and made the confession of his guilt, whereupon he summoned the other P.W. Saeed Ahmad to listen the confessional statement of the accused. The recoveries have been discarded for equally good reasons as the Investigating Officer P. W.5 had contradicted the witnesses by stating that they had gone in search of the dead body of the deceased on motor-cycle, whereas Manzoor Ahmad P.W.7 had stated that they had done the search while walking for a distance of two squares and thereafter had gore by a car in search of the dead body.

7. The nutshell of the above discussion is that we do not find any merit in the present appeal. We may further point out that an order of acquittal can only be interfered with if the conclusion arrived at is wholly artificial or ridiculous of if such a judgment is wholly perverse and that there shall be no interference therewith even if a different conclusion is possible on the basis of evidence on record as laid down in Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 SC

11. As discussed above, such is not the position in the present case, therefore, no interference is called for with the impugned judgment of acquittal. Hence the present appeal is without any merit.

8. Therefore, in pursuance to the above discussions, the present State appeal against the acquittal of the respondent is hereby dismissed. N.H.Q./35/SAC Appeal dismissed.