' S.A. RABBANI, J.--- Additional Sessions Judge, Faisalabad tried the present appellant on the charges under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 377, P.P.C. And section 302(b), P.P.C. The case was initiated through F.I.R. Lodged by one Mushtaq Ali at Nishatabad Police Station, Faisalabad on 26-4-2002. He reported that he and his wife returned to their home at about 8-30 p.m. On 25-4-2002, when they found their 8 years son Irshad Ali alias Ali Bhai was missing and, on the next day, they found dead body of the child in the field with his throat cut. During investigation, the present appellant was found to be the person who had committed this offence. It was also found that sodomy was committed upon the child whereafter he was killed.
2. After the trial, the learned Additional Sessions Judge found that the charges against the accused/appellant were proved and he convicted him on all the three counts. The trial Court sentenced the appellant to twenty-five years imprisonment under section 12 of the Ordinance, with a fine of Rs,50, 000. Under section 377, P.P.C., he was sentenced to five years rigorous imprisonment with a fine of Rs,50,000 and under section 302(b), P.P.C. He was awarded imprisonment for life as Tazir. Under section 544-A, Cr.P.C. a compensation of Rs,2,00,000 was also ordered. The sentences under section 377, P.P.C. And section 12 of the Ordinance were ordered to run concurrently whereas the sentence under section 302(b), P.P.C. Was to run consecutively after expiry of the sentence under those two sections. Benefit of section 382-B, Cr.P.C. Was however given.
3. Prosecution witnesses Aqeel Ahmad, Zulfiqar Ali, Ghulam Rasool, Altaf Hussain, Muhammad Aslam and Ameer Nawaz are the police officials who remained connected with the investigation of the case. P.W. Dr. Iftikhar Ahmad conducted examination post-mortem on the dead body of the child and Dr. Muhammad Ilyas medically examined the accused/appellant. P.W. Aurangzeb was the draftsman who prepared site plan P.W. Zulfiqar Ali son of Faqir Hussain stated that he saw accused Ijaz Ahmad taking the child Irshad Ali on his bicycle. One Shabbir, according to him, was also with him, who is no more alive. P.W. Muhammad Ishaque acted as Mashir of place of occurrence. P.W. Mushtaq Ahmad is the complainant. P.W. Gul Faraz identified the dead body.
4. The accused/appellant Ijaz Ahmad denied the allegations against him and he said that the Investigating Officer has involved him falsely due to his personal grudge and annoyance with him.
He examined one Rasheed Ahmad in his defence.
5. Mr. Saliheen Mughal, learned counsel representing the appellant in this appeal sent from jail, submitted that there is no direct evidence against the accused/appellant and the prosecution case is based on the evidence of last seen, extra-judicial confession and recovery of bicycle and a razor. He submitted that the evidence relating to extra-judicial confession has not been believed by the trial Court and the evidence of recovery is of no help to the prosecution because the recovery of bicycle has been denied by the defence witness from whom the prosecution claims to have recovered the bicycle and recovery of razor is of no consequence because it was not blood- stained. He submitted that the evidence on record was not sufficient to prove the charges beyond a reasonable doubt.
6. Mr. Fazal-ur-Rehman Rana, learned State Counsel, supported the impugned judgment in view of the gravity of the offence and submitted that the evidence on record in respect of the child being last seen with the accused, coupled with the recovery of bicycle and razor, was sufficient in the circumstances of the case.
7. There is adequate undisputed evidence on record to prove that the child was killed after commission of sodomy upon him. Oral evidence coupled with the medical evidence and the Chemical Examiner's report leaves no doubt about the fact of killing and commission of sodomy upon the child. The question was whether there was sufficient evidence on record to connect the accused/appellant with the commission of the offence.
8. There is no direct evidence against the accused/appellant. The evidence about extra-judicial confession has not been believed by the trial Court for lack of corroboration. The evidence of the child having been last seen with the accused/appellant comprises the version of one witness Zulfiqar Ali. According to him, one Shabbir had also seen the child going on the bicycle with the accused/appellant, but this Shabbir has not been examined and it was reported that he was no more alive. Thus, it is solely. The version of Zulfiqar Ali. He stated that he, along with Shabbir Hussain, had gone to Sheikhupura when in the bazar of Gokhuwal village they saw accused Ijaz Ahmad taking, on is bicycle, the child Irshad Ali alias Ali Bhai. During cross-examination, this witness admitted that he was a relative of the complainant and was working as a driver with him. This is a very weak piece of evidence but, according to prosecution, it was corroborated by recovery of bicycle and razor.
9. S.-I. Ameer Nawaz is the Investigating Officer. He said that, while in custody, the accused led him to Chak No,119 Samana and got recovered one razor from water. He stated that next day, on the disclosure of the accused; he recovered bicycle from the shop of Rasheed Ahmad, mechanic in Tariqabad. The razor alleged to have been recovered was not blood-stained and Rashid Ahmad came forward as a defence witness and said that no bicycle was recovered from his shop. In any case, however, recovery of a bicycle and a razor does not make it certain that they were the articles used in the crime as no specific description was ever mentioned. This again is a weak piece of evidence and these two pieces of evidence do not lead to a definite conclusion that the accused/appellant had committed this offence.
10. The learned Judge of the trial Court was himself not satisfied with the quality of the evidence, which is reflected by his observation that though, in view of the circumstances, charge against accused/ appellant had been proved, however, it would be safe not to award capital punishment as there was no witness of the occurrence. If the quality of the evidence falls short of that required, it does not make a ground for lessor punishment, but it means that it was not sufficient to prove the guilt.
11. In the present case, the evidence brought on record to connect the accused/appellant with the commission of the offence was not adequate for proof of his guilt. He was entitled to benefit of doubt. The benefit has been given to him by this Court when the conviction and sentences were set aside through a short order announced on 13-9-2004 and the appeal was allowed. A direction has already been issued for release of the appellant in the present case.