1989 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No. 53 of 1988/BWP, arises from the judgment of learned Judge, Punjab Special Court for Speedy Trials No. VI , Bahawalpur, whereby, he, on 31‑8‑1988 acquitted Qasiar Abbas (13/14) respondent of the charges under section MA/377/302, P.P.C.

2. The allegations against the respondent were that he after kidnapping Shakeel Ahmad, aged about 9 years, not only committed sodomy upon him but also caused his death by pushing him into well. He denied the charges and claimed to be tried.

3. The occurrence took place on 6‑4‑1988 at about 11.‑00 a.m. in the area of village Mubarikpur, Tehsil Ahmudpur East. The F.I.R. Exh P.B. was lodged on 8‑4‑1988 at 6‑00 p.m. at Police Station Nawshera Jadeed by Chiragh Din P.W.2, uncle of the deceased,

4. To prove its case, prosecution produced 14 witnesses. Mst. Kalsoom Bibi P.W.3, Muhammad Hussain P.W.4 and Muhammad Latif P.W.9 claimed to have seen the deceased last with the respondent. Mst. Kalsoom Bibi P.W.3 stated that on the fateful day at 10‑00 a.m. Shakeel Ahmad deceased alongwith Qaisar Abbas respondent had left her house for the shop of Mussarat Goldsmith for collecting Rs.5, price of grams sold by the deceased to the respondent. Muhammad Hussain P.W.4 stated that on 6‑4‑1988 at noon time, he had seen the deceased going with the respondent towards the well. Muhammad Latif P.W.9 stated that at about 11‑00 an. he had seen the deceased and Qaisar Abbas accused going together to the land of Malik Shahab‑ud‑Din. Abdul Majeed P.W.7 and Malik Shahab‑ud -Din P.W.8 are the witnesses of recovery of the dead body of Shakeel Ahmad from the well on 8‑4‑1988. Muhammad Ibrahim P.W.5 and Abdul Hameed P.W.6 have deposed about, the extra‑judicial confession made before them by the respondent. According to them, the respondent had confessed to have pushed the deceased into well after committing sodomy upon him. Dr. Mulazim Hussain P.W.11 had performed post‑mortem examination on the dead body of the deceased on 8‑4‑1988 at about 6‑00 p.m. He found following injuries on his person:‑ (1) Three marks of abrasions, (a) 2.5 x 0.5 c.m., (b) 1.5 x 0.25 c.m., (c) 2 x 0.5 c.m. on the left side of the chin. (2) There was complete tear of posterior part of anal orifice. The anal orifice was also dilated. The swabs could not be taken because of presence of stool." In his opinion, the cause of death was asphyxia (due to drowning) by obstruction of air. passage clue to inhatuion of fluid. It caused circulatory shock followed by cardiac standstill. Duration between injury and death was about 8‑12 minutes and between death and post‑mortem about 48 to 55 hours. Supporting the contents of the F.I.R. Chiragh Din P.W.2 added that the respondent had committed sodomy with the deceased under a tree and had then pushed him into the well. The rest of the evidence is more or less of formal nature.

5. When examined under section 342, Cr.P.C. the respondent denied all the incriminating circumstances. He tendered birth entry copy Exh.D.C. in evidence. He did not produce any witness in defence.

6. Disbelieving the evidence of extra‑judicial confession and of last seen as well, the trial Court acquitted the accused.

7. The learned Assistant Advocate‑General contended that the prosecution has successfully brought home the guilt to the respondent through evidence of reliable witnesses; that the order of acquittal of Qaisar Abbas respondent is manifestly against the weight of the evidence and that the trial Court has not given sound and cogent reasons for disbelieving the prosecution witnesses.

8. We have reviewed all circumstances of the case as well as the evidence on record in order to come to our own conclusion as to the truth or falsity of prosecution case and the credibility of the witnesses produced by it. From the aforementioned state of affairs, it is very much obvious that here is no eye‑witness of the occurrence. The evidence of extra‑judicial confession is the main pillar of the structure of the prosecution case and as such its fate mostly depends in believing/disbelieving the statements of Muhammad Ibrahim P.W.5 and Abdul Hameed P.W.6 because the rest of the evidence even believed is not sufficient to sustain conviction of the respondent under section 364/377/302, P.P.C. It is by now well‑settled that extra‑judicial confession has to be viewed with utmost care. It is at best a weak type of evidence. It must create belief that it was really, voluntarily and truly made before it could be made the basis of conviction. So we propose to consider this piece of evidence in the terms of circumstances of the instant case, first. We find that Qaisar Abbas respondent was about 13 years of age at the time of alleged confession. Noone hard seen him committing sodomy upon the deceased or pushing him into the well. There was no compelling reason for exposing himself to the gallows by making confession of his guilt before Muhammad Ibrahim and Abdul Hameed who arc maternal‑cousin of the father of the deceased and maternal‑nephew of the mother of the deceased, respectively. Muhammad Ibrahim and Abdul Hameed P.Ws.6 had not apprehended the respondent after the alleged extra‑judicial confession made by the latter. It is in evidence that the respondent had passed night with them and had also solicited help from them. Muhammad Ibrahim and Abdul Hameed P.Ws. are closely related to the mother of deceased as admitted by her. Strangely enough they have denied and suppressed their relationship with Mst. Kalsoom P.W.3. This shows that they are basically dishonest witnesses and have given evidence with a motive other than that of telling the truth. Dr. Ameer Hussain Laghari P.W.14 has excluded all possibilities of commission of sodomy by the respondent. Dr. Mulazim Hussain P.W.11 while conducting post‑mortem examination had not prepared swabs from the anal canal of the deceased. In fact there is no proof of the commission of sodomy on the deceased. So there are reasons to doubt that the respondent had, in fact, made confession before the witnesses. The prosecution evidence has thus failed to qualify the three‑fold test:‑‑ (i) that the confession was actually made; (ii) it was voluntarily made and (iii) it was truly made. After having excluded the evidence of extra‑judicial confession relied upon by the prosecution from consideration, there remains circumstance of last seen, which per sc is not sufficient to sustain conviction of the respondent under section 364/377/302, P.P.C. So, we need not discuss the same. The trial Court had the privilege of seeing the respondent and observing the demeanour of the witnesses. After appreciating the prosecution evidence in accordance with the guidelines given by the superior Courts, tile trial Court has disbelieved the I evidence of last "cell and of extra‑.judicial confession, The accused is presumed to be innocent until proved guilty and on his acquittal tile presumption of innocence becomes double, so the high Court will interfere with the order of acquittal only when the same is manifestly wrong or has resulted in grave injustice or is perverse or where unsound standard is adopted by the trial Court in assessing the credibility of evidence. We do not find these infirmities in the order under appeal. For what has been said above, there being no merit, the appeal is dismissed in limine. M.Y.H./S‑373/L Acquittal upheld.