2016S863 (PLP)

ASIF SAEED KHAN KHOSA, J.

Muhammad Ashraf appellant was alleged to have murdered one Mst. Farwa, aged about 8 years, after committing Zina-bil-Jabar with her on 23.06.2002 in the area of Police Station Silanwali, District Sargodha and after a full-dressed trial he was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to death and to pay compensation besides convicting and sentencing him for an offence under section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and sections 377 and 201, P.P.C. The appellant had challenged his convictions and sentences before the Federal Shariat Court but his appeal had failed and his convictions and sentences were maintained by the said Court. Hence, the present appeal by leave of this Court granted on 07.12.2007.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. According to the prosecution Mst. Farwa deceased, a young girl aged about eight years, had left the house of the complainant for purchase of some eatables from the shop of the present appellant but she had not returned and after a few days her deadbody had been found in a forest. It is not disputed that the commission of rape and sodomy with Mst. Farwa deceased or her murder or even concealment of her deadbody had not been seen by anybody. The prosecution had produced one Bahadar Ali (PW9) who had allegedly seen Mst. Farwa deceased entering the shop of the appellant on the day of occurrence but in his cross-examination he had conceded that at the relevant time he was proceeding towards a destination and the shop of the appellant did not fall on the route. The prosecution had also produced one Muhammad Javed (PW7) who had claimed to have been the appellant going towards a forest while carrying a bag. It had never been established by the prosecution that the bag allegedly carried by the appellant on that occasion contained a deadbody. The deadbody had not been found in a bag but was found lying in a forest and the medical evidence could not establish as to who had committed the alleged murder. According to the prosecution the appellant had made a judicial confession before a Magistrate (PW13) confessing killing the deceased after committing rape with her but it is not disputed that the judicial confession attributed to the appellant had been retracted by him before the trial court and, thus, the said confession could not be relied upon in the absence of any independent corroboration. Corroboration in that regard had been sought by the prosecution from some recoveries allegedly affected at the instance of the appellant but we have noticed that the memoranda of such recoveries had dates tampered with and identification of the relevant articles allegedly recovered was quite doubtful as the prosecution had failed to convincingly establish that the recovered articles actually belonged to the deceased. It appears that the case of the prosecution against Muhammad Ashraf appellant was primarily based upon suspicion but the law is settled that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case. After assessing and evaluating the evidence available on the record we have arrived at an inescapable conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/M-45/SC Appeal allowed.