1. Saeed-ur-Rehman Farrukh, J.--This appeal is directed against the judgment dated 25.6.2002 passed by Additional Sessions Judge Sahiwal, whereby the appellant was convicted under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to death and fine of Rs, 50000/- or in default to further undergo six months R.I. Half of the fine, if recovered, was ordered be paid to the legal heirs of the deceased. He was also convicted, under Section 302(A)
2. PPC and sentenced to death. He was further convicted under Section 377 PPC and sentenced to ten years R.I. and fine of Rs, 10,000/-, or in default to further suffer three months R.I. He was further convicted under Section 201 PPC and sentenced to seven years R.I. with fine of Rs, 20000/- or in default to further undergo three R.I. The fine, if recovered, was directed to be paid to the legal heirs of the deceased. The benefit of Section 382-B Cr.P.C. was extended to him. Murder Reference submitted by the learned trial Judge for confirmation of death sentence is also before us.
2. Relevant facts, giving rise to this appeal, in brief are; on 4.6.2001 Abdul Hameed PW-4 appeared before Muhammad Raees Sub. Inspector Incharge Police Post, By Pass Police Station, Galla Mandi, Sahiwal, and submitted a complaint in writing Ex. PC (later reduced into formal FIR Ex. PC/1) wherein he alleged that on 2.6.2001 at about 8.00 p.m. Langer of Khatam Sharif was being distributed at the house of his brother-in-law Habib and many children from the locality had gone there. His son Amer Hamid aged seven years who was also present there was enticed away by Nadeem appellant. Aamer Hamid did not return home till 10.00 p.m. and search was initiated for him. During this effort he met Muhammad Ali son of Noor Muhammad (not produced) and Muhammad Yasin PW-5 who Informed him that they had seen Aamer Hamid proceeding on the bank of 9/L Canal alongwith Nadeem appellant. Some time afterwards, they saw the appellant coming back alone.
3. On being asked about Aamer Hamid he started trembling and. could not offer any reply. When he was pressurized to disclose the whereabouts of Aamer Hamid the appellant made good his escape. The complainant alleged that he was of the firm belief that the appellant had abducted his son for committing unnatural offence with him. According to him the relations of the appellant was also contacted but with no positive response. He suspected that after commission of sodomy the appellant might have killed his son.
3. After registration of the case the investigation was initiated by the police. Muhammad Raees S.I.
4. PW-9 inspected the place of occurrence and prepared its sketch Ex. PA. The appellant was arrested on the same day who made disclosure about the place of occurrence. He got recovered a pair of footwear (Softi) of Aamer Hamid P. 3/1-2 which were taken into possession vide recovery memo Ex.
5. PE. The appellant got recovered the dead body of Aamer Hamid from Rajbah 9/L vide Ex-PF. Site- plan of the spot Ex-PJ was prepared. The dead body was sent to Civil Hospital for post mortem examination and after completion of investigation, challan was submitted in Court.
4. At the commencement of the trial, the appellant was charge sheeted for kidnapping Aamer Hamid minor so as to subject him to unnatural lust punishable under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was also charged for committing sodomy with Aamer Hamid punishable under Section 377 PPC. The third charge against him was of Qatal-I-Amd of Aamer Hamid punishable under Section 302(a) PPC. He was lastly charged for throwing the dead body of Aamer Hamid minor in Rajbah 9/L so as to cause disappearance of incriminating evidence, regarding his offence punishable under Section 201 PPC.
6. The appellant pleaded innocence and claimed trial.
5. The first witness produced by the prosecution namely Muhammad Saeed Akhtar Draftsman PW- 1 deposed about preparation of site-plans Ex-PA, Ex-PA/1 and Ex-PA/2 on 10.6.2001.
7. Haq Nawaz constable PW-2 had escorted the dead body of Aamer Hamid from the spot to the mortuary at. District Headquarters Hospital Sahiwal. He deposed that on the same day post- mortem examination was conducted by the medical officer whereafter the last worn clothes of the deceased was handed over to him.
8. Muhammad Tariq constable PW-3 deposed that on 10.6.2001 Farzand Ali Moharrir handed over to him two sealed envelopes for onward transmission to the office of chemical examiner Lahore and HistoPathologist office Lahore and he delivered the same, intact, in the respective offices on 11.6.2001.
6. Statement of Abdul Hameed complainant PW-4 is quite material in the case. He fully supported the version of the prosecution as divulged in the FIR Ex-PC/1. He stated that his minor son Aamer Hamid had gone to the house of Habib after Maghrab time on 2.6.2001 as Langar was being distributed and number of children of the Mohallah had gathered there. Since Aamer Hamid did not return home he inquired about him from other children who expressed their ignorance. He then went to the house of Habib in search of his son. After failing to locate his minor son in the Mohallah he reached at 9/L Canal where he met Muhammad Yasin PW-5 and Muhammad Ali (not produced) who were standing on its bank. On being enquired about Aamer Hamid they told him that hour ago Nadeem was seen by them taking Aamer Hamid towards bridge of 134/9-L. They went towards that side and on their way the appellant met them. He was asked about Aamer Hamid who denied having taken him away with him. On being pressed by the complainant the appellant became nervous and started running away and disappeared into a garden alongside the bank of canal towards south. The witness further deposed that they went to the house of Nadeem appellant and informed his mother that Aamer Hamid (deceased) had been abducted by his son Nadeem and on being confronted he had run away. She held out an assurance that she would make inquiry from the appellant and requested them not to initiate any legal proceedings in the meanwhile. Search for Aamer Harnid continued for the whole night and after Fajar prayer, next morning they again went to the house of the appellant and approached its inmates. They requested for grant of more time to trace out the appellant. Again contact was established with the mother of the appellant in the evening on 3.6.2001 but she expressed helpless was in this regard. He then went to the police station and lodged the report.
7. According to the witness the police visited his house at 12 noon on the same day alongwith Nadeem appellant who took the police towards the Canal. He pointed out a place where, allegedly, sodomy was committed by him with the deceased. He also got recovered pair of shoes (Softi) P- 3/12 of the deceased which was taken into possession vide recovery memo Ex-PE. The dead body of Aamer Hamid was recovered 50/55 feet away from that spot, down-stream. It was sent to the hospital and post mortem examination was conducted.
8. He was cross-examined at great length by the defence. He stated that Habib (in whose house Langar was being distributed) was real brother of his wife. He admitted that Mst. Bashiran Bibi mother of the appellant had moved an application against his father-in-law and other relatives on 31.10.2000 before the Monitoring Cell of Pakistan Army, Sahiwal, levelling allegations that they had trespassed into her house, stopped the water in the drain, and after throwing out house hold effects outraged the modesty of her daughter Nazia. He denied the suggestion that they had tendered apology to the mother of Nadeem appellant. He expressed ignorance that the place over which Mst. Bashiran Bibi, mother of the appellant had raised her house was purchased by her from one Fateh Muhammad for a sum of Rs, 45000/- and that there was some lingering dispute about the transfer of the said land in the name of the lady.
9. He admitted that it was the first occasion that Khatam Sharif was being solemnized in the house of Habib. He did not attend the same as he was sick. Even his wife had not gone there. He denied the suggestion that neither Khatam Sharif took place nor any Langar was distributed. He gave detailed account of the efforts to locate Aamer Hamid. He deposed that none else except Yasin PW5 and Muhammad All had seen the appellant taking away Aamer Hamid (deceased) on the canal bank and he met them on the same night at 10.00 p.m. They were standing on the same place where they had seen the deceased being taken away the appellant. He deposed that 9/L Canal was full of water when the dead body was recovered. It was swollen and the clothes of the deceased were wet. He denied the suggestion that he had concocted a false story to rope in the appellant in this case and that the dead body of Aamer Hamid deceased was found by some unknown person and then consultations were held to foist false case upon the appellant, due to previous animosity.
9. Muhammad Yasin entered the witness-box as PW-5 and deposed that he and Muhammad Ali were standing on the bank of the Canal when Nadeem appellant passed by them alongwith Aamer Hamid deceased. He then narrated the events about being approached by the complainant to enquire about Aamer Hamid from them. He stated that they were standing there for gossips with each other. The complainant was informed by them that they had seen the appellant passing by them alongwith Aamer Hamid. Then all the three started walking towards that direction and on their way they came across Nadeem appellant. Abdul Hamid PW, father of the deceased, pressed the appellant to disclose the whereabouts of Aamer Hamid who expressed his ignorance. It is at that stage that he (witness) and Muhammad Ali confronted him about having seen him in the company of Aamer Hamid on which he became nervous. He started running away.
10. They tried to catch him but he disappeared in the bushes.
11. Then they went to the house of the appellant and informed his mother about abduction of Aamer Hamid by him. She undertook that the family would search for the appellant and also required them to continue their own search. She asked them to wait for two day's time to enable her to search the appellant.
12. On 4.6.2001 Abdul Hameed PW approached him with the information that the police wanted to record his statement. Accordingly, he and Muhammad Ali went to the police station and got recorded their statements.
13. According to the witness it was about 12 noon when the police reached the house of Habib alongwith Nadeem appellant. He pointed out the place from where he took away Aamer Hamid deceased and then led to the police to 9/L canal and pointed out the place where sodomy was committed with him. He also pointed out the place where he had thrown his dead body. The pair of Softi was also recovered at his pointation.
10. This witness was also subjected to searching cross- examination. He deposed that he was running a blacksmith shop at Lahore road which was located at a distance of one mile from his house and mother of the appellant resided at "a distance of three houses from his house". He deposed that on 2.6.2001 he came home from his shop at about 6.00 p.m. and Muhammad Ali visited his house at about 8.00 p.m. on the same night. According to him Muhammad Ali used to sell empty tins of ghee to him and he owed Rs, 3000/- to Muhammad Ali. He came to collect this amount which was paid. Thereafter, he alongwith Muhammad Ali went to the canal bank, which was at a distance of about 2 kanals from his house and it is there that Abdul Hameed complainant approached them at about 10.00 p.m. The bank of the canal where they were standing was used as passage by the people going towards Chak No 134/9-L.
14. He stated that Chappal P. 3/1-2 was recovered at a distance of 1/1w killa from the place where he and Muhammad Ali were standing. At the time when Nadeem appellant passed by them, holding the hand of Aamer Hamid, no suspicion arose in their mind as to why he was taking him away. He admitted that the chappal was of common pattern. He denied the suggestion that the appellant neither pointed out any place nor led to any recovery.
15. The only suggestion of partisanship made to him was that he was deposing in the case at the instance of Fateh Muhammad. He refuted it.
16. 11.Pervaiz Noor PW-6 accompanied the police alongwith Nadeem appellant (in custody) to the places which were pointed out by him where allegedly sodomy was committed with Aamer Hamid and his dead body was thrown in the Canal. The Police party found the dead body entangled in bushes growing on the bank of the canal at a distance of 50-60 feet. He alongwith Fateh Muhammad and others brought out the dead body. In cross-examination he admitted that Fateh Muhammad was his Phhupha and Nadeem appellant lived at a distance of about 10/12 houses from his house.
17. 12.Dr. Muneer Ahmad Qadari, Medical Officer, District Headquarters Hospital Sahiwal, PW-7 deposed that on 4.6.2001 at about 2.00 p.m. he conducted the post-mortem examination of the dead body of Aamer Hamid deceased and made the following observations:-- "It was a dead body of young boy aged about 7 to 8 years, lying on the table, arms and legs extended. Tongue protruding out from mouth. Eyes were closed and swollen. Face was also swollen and blackening. Whole of the body was swollen and blackening. Blisters were present on some part of the body. Out of those present on trunk and legs were erupted. Scratches on the neck on front were present. Body was clad in a shalwar and Kamiz brown colour. These clothes were duly signed and handed over to the police. Rectum was protruding from the anus. There was an abrasion present at 11 0' Clock position. Anus and a laceration about 3/4 c.m. x half c.m. on 12 0" Clock position at no Rectal junction. Two rectal swabs were taken.
18. He deposed that in his opinion that the limo between injuries and death was about five minutes and the time between death and post mortem was about 48 hours. After seeing the report of the chemical examiner Ex-PM and report of Bacteriologist (Ex-PN) he was of the opinion that the cause of death was throttling. In cross-examination he deposed that there was no apparent fracture of the hyoid bone and except scratches no other injury was found on the neck.
19. 13.Statement of Manzoor Ahmad ASI, PW-8 is of formal nature and need not be dilated upon.
20. 14.Muhammad Raees S.I. PW-9 who was, at the relevant time, posted as S.I. Incharge Police Post, By-pass Police Station, Ghalla Mandi, deposed about the recording of the statement of the complainant (Ex-PC) which was sent to the police station for registration of the case. He conducted the investigation and arrested the appellant. According to him, on the disclosure of the appellant, pair of softies of Aamer Hamid deceased (P-3/1-2) was recovered which was taken into possession vide memo Ex-PE. He further deposed that the dead body of Aamer Hamid was recovered from the Rajbah of 9/L at the pointation of the appellant. After completing the investigation, he submitted the challan in Court.
21. In cross-examination he admitted that he did not prepare the site-plan about the presence of witnesses of Wajtakar. He stated that it was not within his knowledge that mother of the appellant had ever filed a complaint in the Army Complaint Cell against Fateh Muhammad about some dispute between them with regard to transfer of house in her name. A suggestion was put to him that the deceased fell in the canal per chance, while playing there and died. He denied it.
14. Farzand Ali Head Constable PW-10 deposed that he was posted as Moharrir at Police Station Ghalla Mandi and he was handed over two sealed tins and two sealed envelops by the I.O. which were sent to the office of chemical examiner and the office of Histo-Pathologist Lahore.
22. 15.After closure of the prosecution evidence, the statement of the appellant was recorded under Section 342 Cr.P.C. He denied the prosecution story in toto. In reply to the question as to why the case has been registered against him he took up the plea that it was a false case and the PWs were interested and partisan: He stated that Fateh Muhammad was an influential person who wanted to get forcible possession of his house and there had been litigation with him earlier (about the house). He stated that he was a poor person and had been made a scope goat in this case.
23. He stated that he would neither appear as his own witness to make statement on oath under Section 340(2) Cr.P.C. in disproof of the allegations levelled against him and would not produce any defence evidence, either.
24. 16.We have heard the learned counsel for the parties and perused the record carefully with their assistance.
25. 17.The case of the prosecution rests on the circumstantial evidence which consists of (i) last seen evidence (ii) conduct of the appellant soon after the alleged occurrence (iii) recovery of the dead body at the pointation of the appellant (iv) recovery of softies of the deceased and (v) medical evidence.
26. 18.The question as to what significance should be attached to the last seen evidence has received attention of the superior Courts in number of reported judgments. The latest judgment on the point is the case of ''Sh. Muhammad Amjad versus The State" [PLD 2003 S.C. 704] wherein the apex Court has laid down that the circumstance of the deceased having been last seen in the company of the accused was not, by itself, sufficient to sustain charge of murder, and further evidence was required to link him with the murder charge i,e, incriminating recoveries at accused's instance etc. At page 721 of the report reference was made to the case of "Mst. Reshman Bibi versus Sheerin Khan" [1997 SCM R 1416] wherein a rule of law was laid down that circumstantial evidence, inter-alia of, last seen for basing conviction of the accused thereon must be incompatible with innocence of the accused. It should be accepted with great caution and must be scrutinized minutely to ensure that no plausible conclusion could be drawn therefrom excepting guilt of the accused.
27. 19.In "Jafar Ali versus The State" [1998 SCM R 2669] another principle was laid down is that the chain of the events should be such that no reasonable inference could be drawn except that accused had committed offence, after victim was last seen in his company.
28. 20.In the case of "Mst. Robina Bibi versus The State" [2001 SCM R 1914] it was held that where the deceased was last seen in the company of the accused shortly before the time he was presumed to have met his death near the place of occurrence, inference could easily be drawn that the accused was responsible for the death of the deceased.
29. 21.Applying the principles of law deduced from the above authorities it is to be determined, in the light of the evidence on record, as to whether the prosecution had succeeded in proving its case against the appellant beyond doubt.
30. 22.It is in evidence that on 2.6.2001 there was Khatam Sharif in the house of Habib in the same Mohallah where the Aameer Hameed deceased aged seven years and other children had gone to collect Langar. After the ceremony of distribution of Langar was over the children returned to their respective homes but Aamer Hamid did not reach his house which naturally caused anxiety in the mind of his parents. It is in the testimony of his father that firstly he made inquiry from children about Aamer Hamid but to no effect. He got panicky and went towards the bank of canal 9/L in the hope that his son might be located there. It is there that he met Yasin (PW-5) and Muhammad Ali having gossips with each other. On inquiry by the complainant they informed him that they had seen the appellant taking Aamer Hamid with him towards the southern side. This information aggravated his worry and concern. While the three were still standing there they saw nadeem coming towards them. He was asked to disclose the whereabouts of Aamer Hamid. Initially, he expressed his ignorance but on being pressed angrily by the complainant he became nervous and started running in the opposite direction and disappeared in the bushes. Admittedly Aamer Hamid was not seen alive thereafter by any one.
31. Very heavy responsibility thus lay on his shoulders to make disclosure regarding the whereabouts of the child. Instead of doing so he made himself scarce and did not go to his house. It was in a state of agitated mind about the welfare of his minor son that Abdul Hameed went to his house and informed his mother about the whole matter. She beseeched him to wait to enable her to trace out the appellant and gain knowledge about the missing child. For almost two days the complainant waited, nervously, for some useful information from the family of the appellant but to no effect. He then got the case registered against the appellant.
32. 23.The appellant was arrested at about 12 noon on 4.6.2001 by the police. Thereafter, there were quick developments in the matter of investigation. He led the police party and the witnesses to the place near the bank of canal from where the pair of softies of the deceased was recovered. At his pointation the dead body of Aamer Hamid, which was found entangled in the bushes growing on the canal bank, was pulled out by the prosecution witnesses.
33. As mentioned above, the post-mortem examination revealed that the child was subjected to sodomy and then throttled to death.
34. 24.The presence of Muhammad Yasin and Muhammad Ali at the relevant time of the canal bank was natural. It is situated at a distance of two kanals from the house of Muhammad Yasin PW-5. It was a hot evening in the month of June and after they had settled the financial matter they went there to spend some time in gossips. As ill-luck would have it for the appellant, while passing nearby alongwith the deceased he was seen by them. No plausible hypothesis could be advanced by the learned counsel for the appellant which could lead to any other conclusion than that the appellant was taking away the child with him with ill intention, at that time, when night had almost set in.
35. 25.The evidence of Muhammad Yasin PW-5 about having last seen the deceased in the company of the appellant duly impressed the learned trial Court as being truthful. He had no motive to falsely implicate the appellant in this case. Only a vague suggestion was made to him that he was deposing against the appellant at the behest of Fateh Muhammad. He stoutly rebutted it. We see no reason to differ with the finding of the learned trial Court to the effect that the veracity of the testimony of Muhammad Yasin PW-5 was not open to any doubt.
36. 26.The implication of the appellant in the case, besides being based on the last seen evidence, finds support from the conduct of the appellant soon thereafter. He came back alone. On being questioned to disclose the whereabouts of the child he became nervous. Instead of giving any reply whatsoever, he started to run away and disappeared in the bushes near the canal bank. His conduct lends great deal of support to the prosecution version about his implication in the crime.
37. That is not all. He did not go back to his house thereafter and remained absent for two days. Why did act thus if he had clear conscience?
38. 27.The recoveries of the last worn shoes of the deceased and the dead.body of the deceased at the pointation of the appellant is yet another weighty circumstance staring him in his face to prove his guilt. Only he knew the places where he had thrown the softies of the deceased and also pushed the dead body in the canal. He led the police directly to those places.
39. 28.The medical evidence fully supports the prosecution version to the effect that the deceased was subjected to sodomy. He was then strangulated to death. According to the doctor the time between injuries and death was about five to 10 minutes which time might have been consumed in the completion of strangulation. The chemical examiner's report shows that the anal swabs were stained with semen.
40. 29.The chain of events, in the case, from the point of time when Aamer Hamid deceased was abducted by the appellant upto the recovery of dead body and shoes of the deceased at his instance, remained unbroken. The above mentioned pieces of circumstantial evidence, put together, provide complete and conclusive proof of his guilt.
41. The poor child innocently held the hand of the appellant and went alongwith him to the canal bank not knowing that this would be the last stroll for him in this mortal world.
42. 30.Needless to mention that the appellant did not lead any defence evidence and also did not enter the witness box to deposed on oath in support of his plea of innocence.
43. There is no possibility whatsoever of false substitution of the actual culprit in the case.
44. It was a shocking case in which the appellant acted like a fiend and subjected a child of seen years to his un-natural lust and then killed him. He threw the dead body in the canal in an attempt to cover up his crime.
45. We tried to find out any mitigating circumstance from the record in favour of the appellant but in vain. He indeed deserved the extreme penalty of death which was awarded to him.
46. 31.The convictions and sentences recorded against the appellant by the learned trial Judge vide impugned judgment, are fully justified, in the facts and circumstances of the case, and the same are upheld.
47. 32.The upshot of the above discussion is that there being no force in the appeal same is dismissed.
48. The murder reference is answered in the affirmative.