' DR. FIDA MUHAMMAD KHAN, J.--- These appeals separately filed by Iqbal Masih and Shoukat Masih, sons of Rehmat Masih, are directed against the judgment, dated 11-12-2001, passed by the learned Additional Sessions Judge, Gujranwala, whereby he has convicted both and sentenced each of them as under:-- Iqbal Masih Under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance).
' Sentenced to suffer 15 years' R.I. With a fine of Rs,20,000, or in default of payment of fine to undergo two years further S.I.
Under section 302, P.P.C. Sentenced to death as Tazir and ordered to be hanged by his neck till death.
Under section 201, P.P.C. Sentenced to seven years' R.I. With fine of Rs,15,000 or in default of payment of fine to suffer one year's S.I.
Shoukat Masih Under section 201, P.P.C. Sentenced to five years' R.I. With fine of Rs,15,000 or in default of payment of fine to further undergo six months' S.I.
' The benefit of section 382-B, Cr.P.C. Has been extended to both the appellants/accused and the sentences of imprisonment of Iqbal appellant are ordered to run concurrently.
' The learned trial Judge has submitted Murder Reference for confirmation of death sentence. Since all the matters arise out of one and same judgment, therefore, we are disposing them of by this single judgment.
2. The facts of the prosecution case as divulged in the F.I.R. (Exh.P.C./1) registered on 22-12-1999 at Police Station Qila Dedar Singh, Gujranwala on the written application (Exh.P.C.) made by the complainant Muhammad Riaz (P.W.4) are to the effect that he is farmer by profession and resident of Mussa Duggal. He stated that on 17-12-1999, his younger brother Abu Bakr, aged about 12/13 years, who had gone to Jamia Masjid to offer Traveeh prayer, did not return to the house till late night. They started his search in the area. On 22-12-1999 at about 11-00 a.m. The complainant, his brother Yahya, his father and Muhammad Arif found the dead body of Abu Bakr, deceased in the paddy straw heap of Ch. Manzoor Ahmad Mallhi. The complainant left behind his father and his brother Yahya with the dead body and himself went to the police station and lodged written report against some unknown accused who had committed murder of his brother. During investigation, Amjad Ali, S.H.O. (P.W.12) arrested the appellants Iqbal Masih and Shoukat Masih on 31-12-1999 and 18-1-2000, respectively. After completion of the investigation, the appellants/accused were arrested and having been found guilty, were subsequently, challaned to face trial. The appellants/accused were formally charged on 6-7-2000, but they did not plead guilty and claimed trial.
3. ' During trial, the prosecution examined twelve witnesses along with one C.W. On 22-12-1999 at 9- 30 p.m. P.W.1, Dr. Muhammad Fiaz, M.O. Conducted the post-mortem examination on the dead body of Abu Bakr and made the following observations:--- "External appearance ' It was the dead body of young male child with swollen face and distended of abdomen and bleeding from nose having average built and height, lying flat on the table. Mouth was semi opened with tongue in between teeth, cyanosed nails, wearing light brown Shalwar Kameez and whiter sweater. All were dust stained and signed by me. Rigor mortis disappeared P.M. Staining on dependent parts with greenish yellow colour was present. Skin on left side face was easily friable due to putrefaction, skin of chest, abdomen, arms, thighs was greenish yellow coloured, veins were prominent due to purification. No stain or faucal matter was seen on Shalwar Kameez.
Injuries
(1) Multiple contusions in area of 3 x 3 c.m. In front of right side of neck upper part 5 c.m. Outer to mid line, dark black ink colour.
(2) Multiple contusions in area of 3 x 3 c.m. In front of left side of neck upper part and was black in colour.
(3) Multiple contusions small size in area of 2 x 1 c.m. On chin dark black in colour.
Internal Dissection ' On internal dissection subcutaneous haemorrhage under injuries Nos.1, 2 and 3 were in dark black in colour. Clotted blood was present in the muscles under injuries Nos.1 and 2, neck veins were mildly injured. Friable skin was removed on left side of face. Hyoid bone was intact and thyroid cartilage was intact. Scalp, skull and vertebrae were healthy. Membraines; and brains were healthy.
Spinal cord was not opened. Ribs and cartilages were healthy and skin was greenish coloured Larynix and trachea was congested and filled with blood-stained fluid. Right lung was congested.
Left lung was also congested, heart was healthy and right side filled with blood. All other viscera of chest were healthy. In abdomen the walls were greenish yellow in colour with prominent veins due to putrefaction. Mouth and phyrynx were filled with blood-stained fluid and esophagus was filled with semi-digested fluid. Stomach was healthy and filled with semi-digested food. Small intestine was healthy and empty. Large intestine was healthy and containing faucal matter. Liver was healthy and congested. Spleen was also contested. Organs of generation, external and internal, were healthy. No mark of violence was seen in anal area, however, anal swabs were taken for detection of semen to be sent to Chemical Examiner. All other viscera in abdomen were healthy.
Opinion ' After careful internal and external examination of the dead body, I was of the opinion that death occurred due to asphyxia as a result of throattling which was sufficient to cause death in ordinary course of nature. All the injuries Nos.1, 2 and 3 were ante-mortem and caused by blunt means. Vide Chemical Examiner Report No,2753/S dated 5-1-2000, the three anal swabs were stained with semen's, therefore, sodomy was committed with the victim. Time between injury and death was immediate and between death and post-mortem was about within 4 to 5 days."
' P.W.2 is Liaqat Ali, constable. He stated that on 22-12-1999, he along with Zulfiqar Ali, constable, Akbar S.-I., escorted dead body of the deceased to the mortuary for post-mortem examination.
After P.M. Examination, the doctor handed over to him the last-worn blood-stained clothes (P.1 to 4) of the deceased, a sealed phial and an envelope, which he handed over to the Investigating Officer and he took the same into possession vide recovery memo. Exh.P.B. P.W.3 is Iftikhar, constable. On 28-12-1999, he received a sealed phial and an envelope for onward transmission to the office of Chemical Examiner, Lahore, which he accordingly deposited in the said office intact. P.W.4 is Muhammad Riaz, complainant, who reiterated his statement as mentioned hereinabove. However, he added that motive for the occurrence was that about 1.1/2 months prior to the occurrence, Iqbal Masih had taken his another younger brother namely Bilal to his house on the pretext of showing movies on television and VCR, which shows that the appellant/ accused Iqbal Masih was in the habit of enticing different children to his house on this pretext and therefore, committing sodomy with them. He further stated that he suspected that Iqbal Masih must have committed the same act with his brother. Thereafter, he had asked him about the taking of his brother to his house, give him 2/3 slaps on his face, whereupon he had threatened him of dire consequences. It was because of the same grudge that Iqbal Masih, appellant/accused, with connivance of his brother Shoukat Masih and father Rehmat Masih, had taken his brother Abu Bakr deceased along to their house and, after committing sodomy with him, had committed his murder by throattling and thereafter hiding his dead body in the Purrali of Manzoor Ahmad Malhi. P.W.5 is Muhammad Yahya. He is brother of complainant and deceased. He supported the prosecution version. He further added that Iqbal Masih made a disclosure that he had hidden the Chadar and shoes of Abu Bakr deceased in his house and he led to the recovery of the same. Both the Chadar (P.5) and pair of shoes (P.6/1-2) were got recovered by him from an iron chest lying in a room of his house, which were taken into possession by the Investigating Officer, vide recovery memo. (Exh.P.G.). The Investigating Officer also recorded his statement under section 161, Cr.P.C. P.W.6 is Masood Ahmad Bhatti, Draftsman. He visited the place of occurrence on 23-12-1999 and on the direction of the police he prepared scaled site plans (Exh.P.E. And Exh.P.E./1), as per pointation made by the complainant, which he handed over to the police on 25-12-1999. P.W.7 is Ghulam Nabi, Lumbardar of Village Mussa Doggal. He stated that about one year prior, he was sitting at his Dera in the village along with Asmatullah (C.W.1) and Ghulam Rasool when at about 4-00 p.m. Rehmat Masih.
Came to him at his Dera and told him that his son Iqbal Masih, appellant/accused killed the son of Muhammad Bashir by strangulation after committing sodomy with him. He further told him that he along with his two sons Iqbal Masih and Shoukat Masih had thrown the dead body of the son of Bashir in Purali lying in the fields of Manzoor Malhi. He requested him that his son had committed the crime and he could be saved from conviction by having pardon from the complainant and his father. He further added that in the presence of Rehmat Masih, his two sons Iqbal Masih, appellant/accused and Shoukat Masih also came there. Shoukat Masih came first and admitted his guilt before him and made the same request of pardon as was made by his father Rehmat Masih. Lastly Jabal Masih, appellant/accused came to him and he confessed his guilt that he had killed Abu Bakr son of Bashir by strangulation after committing sodomy with him. He also requested that he should be sought pardon from the complainant party. P.W.8 is Ghulam Rasool. He is also witness to the extra-judicial confession. P.W.9 is Muhammad Ashiq and P.W.10 is Muhammad Ashraf. They saw the appellant/accused Iqbal Masih taking deceased Abu Bakr inside his house.
Afterward they had heard about sodomy and his murder while his dead body was hidden in the Purrali by his brother and father. P.W.11 is Akbar Ali, S.-I. He stated that he was present at Kamomallhi Road in front of Government High School Qila Dedar Singh, where Muhammad Riaz complainant presented application (Exh.P.C.), which he sent to the police station through Zulfiqar constable. Thereafter Zulfiqar, constable brought a copy of F.I.R. (Exh.P.C./1) from the police station.
He proceeded to the place of occurrence and prepared the injuries statement (Exh.P.F.), inquest report (Exh.P.G.), site plan (Exh.P.H.) and sent the dead body to the D.H.Q. Hospital, GRW, under the escort of Zulfiqar, constable and Liaqat Ali constable. They brought last-worn clothes of the deceased, a sealed parcel and handed over the same to him, which he delivered to the Muharrir of the police station for safe custody. He recorded statements of the P.Ws. Under section 161, Cr.P.C.
And also supplementary statement of the complainant. He got prepared site plan scaled by Masood Ahmad Bhatti, Draftsman (Exh.P.E. And Exh.P.E./1). Thereafter he was transferred. P.W.12 is Amjad Ali, S.H.O. He received case file on 31-12-1999 for investigation. On 31-12-1990 he arrested Iqbal Masih, appellant/accused and on his disclosure, Chadar (P.5) and a pair of shoes (P.6/1-2), were recovered from his house which were taken into possession vide recovery memo. (Exh.P.D.).
He also prepared the site plan of the above mentioned articles (Exh.P.D./1) and recorded statements of the P.Ws. Under section 161, Cr.P.C. On 18-1-2000 he arrested Shoukat and Rehmat co- accused and sent them on judicial remand. On 24-1-2000, after usual investigation he prepared challan and submitted the same before the Court. Asmatullah, Ex-Councillor was examiner as C.W.1.
4. The appellants/accused were examined under section 342, Cr.P.C., wherein they denied the allegations levelled against them and pleaded innocence. They neither wished to be examined on oath as provided under section 340(2), Cr.P.C., nor intended to produce any evidence in their defence. However, in reply to a question why this case against you and why the P.Ws. Deposed against them, they replied as under:-- Iqbal Masih "We were supporting the rival party of P.W. Manzoor Mallhi and Ghulam Nabi, upon this, both the P.Ws. Got angry and implicated falsely in this case. Moreover, both the P.Ws. Got transferred my sister, who is a lady teacher of the said village, due to this revenge and in lieu of said revenge, they falsely involved us in this blind murder case. We are poor persons belonging to Christian community and we cannot dare to commit this brutal act."
Shoukat Masih "I am Christian by faith and belonging to minority, that is why with the connivance of the P.Ws., complainant and the police, the P.Ws. Deposed against me. I am a poor man I have been falsely involved in this case."
5. We have heard learned counsel for the appellant as well as learned counsel for the State and have perused the record with their assistance.
6. It transpires from the record that the case of prosecution mainly rests on the statements of Ghulam Nabi, Lumbardar (P.W.7), Ghulam Rasool (P.W.8), Muhammad Ashiq (P.W.9), Muhammad Ashraf (P.W.10), besides the statements of. Muhammad Riaz, complainant (P.W.4) and Dr. Muhammad Fayaz (P.W.1), who conducted postmortem examination on the dead body of Abu Bakr deceased. So far as this unfortunate incident is concerned, it is not denied. Abu Bakr, deceased, according to the prosecution was 12/13 years old and was brother of the complainant. The complainant lodged report with police on 22-12-1999, wherein inter alia he alleged that his brother who had gone to offer Taraveeh prayers on 17-12-1999, did not return to his house and, therefore, becoming worried, they started his search and after 4/5 days found his dead body beneath the Parali lying in the agricultural land of one Manzoor Ahmad Malhi. Leaving his father Bashir, Yahya and Muhammad Arif near dead body of his deceased brother, he himself went towards Police Station Qila Dedar Singh but on his way he met Akbar Ali, S.-I. (P.W.11), and presented a duly signed written application (Exh.P.C.), to him. He lodged the report against unknown culprits. In his statement before the Court, however, on the ground of previous conduct of the appellant/accused Iqbal Masih when he had taken his another younger brother Bilal to his house on the pretext of showing movies on T.V. And V.C.R., he strongly suspected him, for committing sodomy with and murder of his brother and added that it was his usual practice to take different children to his house on the same pretext and commit sodomy with them. On this basis he suspected him as the accused. On the earlier occasion he had some altercation with him and had given 2/3 slaps on his face, whereupon he had given him threats of dire consequences. He alleged that on account of the same grudge Iqbal Masih with the help of his brother Shoukat Masih and father Rehmat Masih, had taken his brother Abu Bakr along to their house and after subjecting him to sodomy, killed him by throattling and thereafter hid his dead body beneath the Parali of Manzoor Ahmad Malhi. It appears that initially the complainant had no suspicion against anybody but the earlier incident led him to conclude involvement of appellant/accused and his brother in the instant offence. The deposition of complainant has been supported by Ghulam Nabi (P.W.7) and Ghulam Rasool (P.W.8). Both these P.Ws. Have deposed about the extra-judicial confession made separately by Shoukat Masih and Iqbal Masih, in the presence of their father Rehmat Masih, one after the other.
Iqbal Masih, specifically confessed that he had killed Abu Bakr by strangulation after committing sodomy with him. They repeatedly request for getting of pardon. It may be mentioned that P.W.7 is Lumbardar/cultivator of the village and enjoys respectable position. P.W.8 is a cultivator by profession. However, it is considerable to note that as per record the extra-judicial confession was made by the appellants/accused before them on 20-12-1999, whereas dead body of Abu Bakr deceased was discovered on 22-12-1999. Statement of Ghulam Nabi under section 161, Cr.P.C. Was recorded on 26-12-1999. Being a highly important matter of extraordinary nature, Ghulam Nabi (P.W.7) should have been smart enough to immediately inform the complainant on 20-12-1999, as he was highly worried on account of that and was anxiously searching his brother in a very desperate condition. In the eventuality, if they have actually made extra-judicial confession, the dead body of deceased would have been recovered on the same day, instead of 22-12-1999.
Similarly it is also worth-mentioning that one other witness namely Asmatullah, who was stated to be present with P.W.7 and P.W.8 when the appellants/accused made extra-judicial confession, did not support their version and while appearing as C.W.1 stated on oath, that the appellants/accused and their father never told anything, in his presence, to Chaudhry Ghulam Nabi (P.W.7). He is ex- Councillor of the Local Government and also executed affidavit (Exh.C.W.1/A) with his free consent and without any pressure or threat by anybody. It may also be worth-mentioning that taking away of another brother of complainant Muhammad Riaz (P.W.4) is not proved on record as no report in that respect was ever made nor any other witness was produced to support that allegation or the subsequent slapping of the appellants/accused, which forms basis of the alleged motive, culminating in extension of their threat of dire consequences to the complainant.
7. The prosecution has examined Muhammad Ashiq (P.W.9) and Muhammad Ashraf (P.W.10) who had last-seen the deceased being taken away Abu Bakr by Iqbal Masih inside his house. Both P.W.9 and P.W.10 are consistent in their statements. However, their statements do not inspire confidence for the reason that they had seen the appellant/ accused Iqbal Masih taking Abu Bakr, deceased, on 17-12-1999 but never informed the complainant for several days inspite of the fact that he was worriedly searching his deceased brother. They belonged to the same village of complainant, as per record, and it may also be pertinent to add that, as stated by the complainant, P.W.10 Muhammad Ashraf is son of his paternal-aunt. In the given circumstances, his silence from 17-12- 1999 till 22-12-1999 is not believable. He was close relative of the complainant and a reference to this fact could have been given by him at least in the F.I.R., which on 22-12-1999 was lodged against unknown culprits.
8. So far as the recovery of Chadar and shoes on pointation by appellant Iqbal Masih from an iron chest lying in his room is concerned, that also does not inspire confidence. It appears unnatural on the part of appellant/accused to have kept Chadar and shoes of the deceased in his house after committing his murder. The occurrence took place on 17-12-1999 and the said recovery was effected on 31-12-1999, after his arrest on the same day. Obviously he had ample time at his disposal to destroy the same in the meanwhile. It does not appeal to any prudent that a person of normal mind could keep these insignificant things in his house after committing such a heinous crime.
9. Consequently, for the reasons stated above, we find that the case of prosecution against the appellant/accused Iqbal Masih is doubtful and he is entitled to get the benefit thereof. The quality of evidence brought by the prosecution is not sufficient to sustain his charge for such a heinous offence and, therefore, by extending benefit of doubt to the appellant/accused, Iqbal Masih, we set aside his conviction and sentences and acquit him of the charges. He shall be released from jail forthwith, if not required in any other case. We allow this appeal.
10. The Murder Reference is answered in negative.
11. It may be mentioned that Criminal Appeal No,26/L of 2002, preferred by Shoukat Masih, has become infructuous for the reason that on completion of the sentences awarded to him, he has already been released. The said appeal is, therefore, disposed of accordingly.