' HAZIQUL KHAIRI, C.J.--- Appellant Muhammad Javed through Criminal Appeal No,102/I of 2005 and appellant Ahmed Nawaz through Criminal Appeal No,88/I of 2003 have impugned the judgments dated 5-7-2002 passed by the learned Additional Sessions Judge, Attock in Session Case No,34 of 2002 whereby they were convicted as under:--- Appellant Muhammad Javed (i) Sentenced under section 377, P.P.C. To undergo 10 years' R.I. With a fine of Rs.20,000. In default of payment of which he will further undergo one year's S.I.
(ii) Sentenced under section 302(b)/34, P.P.C. For committing the Qatl-e-Amd of Ali Khan and sentenced to death penalty. He will pay an amount of Rs.One lac as compensation to the legal heirs of the deceased and in default of payment of which he will further undergo three years' S.I.
(iii) Sentenced under section 302(b)/34, P.P.C. For committing the Qatl-e-Amd of Ubaidur Rehman and sentenced to death penalty. He will pay an amount of Rs.One lac as compensation to the legal heirs of the deceased and in default of payment of which he will further undergo three years' S.I.
' Appellant Muhammad Javed shall be hanged by his neck till his death which shall be executed subject to confirmation by the Honourable High Court.
Appellant Ahmed Nawaz (i) Sentenced under section 308, P.P.C. For committing of the Qatl-e-Amd of Ubaidur Rehman to pay an amount of Rs.3,00,000 (three lac) as Diyat to the legal heirs of the deceased. The Diyat shall be recovered either from his property, if any, or from his father in view of proviso of section 308, P.P.C. Till the payment of Diyat he will remain in jail. He is also sentenced to undergo five years' S.I. As Tazir.
(ii) Sentenced under section 308, P.P.C. For committing of the Qatle-Amd of Ali Khan to pay an amount of Rs.3,00,000 (three lac) as Diyat to the legal heirs of the deceased. The Diyat shall be recovered either from his property, if any, or from his father in view of proviso one of section 308, P.P.C. Till the payment of Diyat he will remain in jail. He is also sentenced to undergo five years' S.I.
As Tazir.
' Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. Besides these two appeals, Criminal Revisions bearing Nos.24/I of 2002 and 25/I of 2002 were filed by Abdul Wadood, complainant, the former for increase in compensation amount against Muhammad Javed and the latter for enhancement of sentence and Diyat against Ahmad Nawaz.
As all the four matters relate to the two judgments of same occurrence, therefore, we propose to dispose of them by this single judgment.
3. Briefly the facts of the case are that on 3-1-2002, P.W.14 Shaukat Hussain Gilani Inspector, received information vide complaint of Abdul Wadood (P.W.10) that he was in the company of one Yousaf Khan (not produced) in his Hujra while his children Mst. Mariam Bibi, Ali Khan age 7 years and Ubaidur Rehman aged 2-1/2 years were playing outside when at about 3-00 p.m. Appellant Ahmad Nawaz aged 9 years came to them and took both of his sons away by inducing them to give small glass stones. Till evening the children did not come back. He searched for them and made inquiries but his efforts proved futile and the children could not be traced out. Next day i.e. 4- 1-2002 he again searched for them and when he reached near the Hujra of Gul Daood along with others, he met Amjad Khan P.W.11 who told him that appellant Ahmad Nawaz met him in Mohallah Aliabad and told him (P.W.11) that he and Javed appellant herein, had thrown Ali Khan into the well of Zamurrad Khan and Abdur Rehman (Ubaidur Rehman) into the well of Mir Afzal Khan. He brought Ahmad Nawaz to the complainant and in the presence of Daood Khan P.W.12 and Mumraiz Khan (not produced). Ahmad Nawaz repeated the same story before them. The dead body of Ali Khan was recovered from the well of Zamurrad Khan and the dead body of Ubaidur Rehman was recovered from the well of Mir Afzal on the pointation of appellant Ahmad Nawaz. Police also arrived there and the same day Shaukat Hussain Gilani P.W.14 Additional S.H.O. Recorded the statement of the complainant and arrested Ahmad Nawaz. He secured the last-worn clothes of both the deceased. Afterwards investigation was transferred to Raja Sajid Mehmood, Inspector/P.W.15. On 13-1-2002 accused Javed was arrested. Ahmad Nawaz who was a minor was tried separately under the Juvenile Justice System Ordinance, 2000, although by the same Court which convicted both of them.
4. Both the appellants were charged under sections 302/34/377, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the said Ordinance") to which they pleaded not guilty. As many as 16 witnesses were, examined by the prosecution in support of its case against the appellants and on 1-7-2002 and 2-7-2002 A.D.A.
Gave up Muhammad Yousaf, Mumraiz Khan, Akhtar, Misal Khan, Sher Afzal, Mst. Sajida, Mst.
Shomaila, Khuda Dad, S.-I, and Ahmad Khan, A.S-I. As unnecessary witnesses.
5. P.W.10 Abdul Wadood complainant reiterated his version contained in F.I.R. And stated that the same day he saw both the appellants Javed and Nawaz going with them while going for Juma prayer. When the children did not turn up he looked for them in the houses of the appellants but neither the children nor the appellants were there. However, next day viz. 4-1-2002 he met P.W.11 .Amjad Khan who told him that appellant Ahmad Nawaz told him that he and appellant Javed took the children to the well of Zamurad Khan where, after committing sodomy with them the dead body of Ali Khan was thrown into the well of Zamurrad Khan and the dead body of Ubaidur Rehman was thrown into the well of Mir Afzal. Afterwards P.W.11 Amjad brought appellant Ali Nawaz to him and all of them went to the Hujra where Mumraiz Khan and P.W.12 Daood Khan were sitting. In their presence P.W.11 asked Ahmad Nawaz about the occurrence and he narrated the same facts as he narrated to P.W.11 earlier. Thereafter, on the pointation of appellant Ali Nawaz the dead body of Ali Khan was recovered from the well of Zamurrad Khan and dead body of Ubaidur Rehman was recovered from the well of Mir Afzal. P.W.11 Amjad Khan, a key witness, deposed that on 4-1-2002 appellant Ahmad Nawaz had met him and told him that he and appellant Javed had taken Ali Khan and Ubaidur Rehman to the well of Zamurrad Khan where after committing sodomy with them, Javed threw away the dead body of Ali Khan into the well of Zamurrad Khan and the body of Ubaidur Rehman into the well of Mir Afzal. When he met complainant Abdul Wadood near the Hujra of Dawood he narrated the story to him. Subsequently, he brought Ali Nawaz appellant to Abdul Wadood and all the three of them went to the Hujra where Mumraiz Khan and Dawood were also present. On the pointation of appellant Ahmad Nawaz the dead bodies of the children were recovered in their presence. According to P.W.12 Dawood Khan appellant Ali Nawaz told him that he had taken away both the children with him and on the way he met appellant Javed. And both of them committed sodomy with them where after the dead bodies of the children were thrown into the wells. He himself searched for the children and inquired from a number of persons including a shopkeeper, a hotel owner and a video film seller. P.W.14 Inspector Shaukat was the first Investigating Officer. He recorded the complaint of P.W.1 Abdul Wadood and also the statements of P.Ws. At the spot under section 161, Cr.P.C. He is also the witness of recoveries and inquest report etc. P.W.15 Raja Sajid Mehmood, Inspector is the second Investigating Officer who arrested Javed Iqbal on 13-1-2002 and got the appellant medically examined. He also produced site plan of the places of occurrence and recovery of the two deceased. P.W.4 Dr, Muhammad Shaukat and P.W.7 Dr. Muhammad Zafar conducted post-mortem examination of deceased. Report of Chemical Examiner established sodomy being committed on deceased Ali Khan.
6. Appellant Muhanunad Javed in his statement under section 342, Cr.P.C. Stated that he was involved 'in the case due to ulterior motive and without any evidence. He declined to appear under section 340(2), Cr.P.C. But opted to produce other evidence in his defence. However, he failed to produce any evidence and his separate statement without oath was recorded that he did not want to produce evidence due to non-availability of defence witnesses. Appellant Ahmad Nawaz declined to produce defence evidence, however, his explanation under section 342, Cr.P.C. As to why this case was filed against him and why P.Ws. Have deposed against him his explanation interestingly was as under:-- "In the area adjoining village Martopa numerous outlaws have their hide ups. Such criminals kidnapped people or young children for ransom.' May, be these two unfortunate children were kidnapped by the unknown criminals. Their father could not comply with their demand. They may have done away with the children and family of the deceased were afraid of the criminals.' They could not suppress tragedy. Therefore, they falsely involved me in this case. I am too tender to commit such a crime."
7. It was urged by the learned counsel for the appellants Mr. Ansar Nawaz Mirza that there was delay of 24 hours in lodging the F.I.R. The victims were 7 yews and 2-1/2 years old children and they disappeared along with the appellant to the full knowledge of the complainant who allowed 24 hours to pass till by chance he met P.W.11 the next day on road who informed him of the fate of his children. No second attempt was made by him for search of his children in the house of appellants.
Delay in the circumstances is most fatal and has not been explained at all by the prosecution.
8. The next contention of the learned counsel was that there was no eye-witness either of sodomy or of murder and the entire conviction revolved around the so-called confession made by appellant Ahmad Nawaz, a minor of 9 years before P.W.11 and repeated before P.W.10 the complainant, P.W.11 and P.W.12 (not nroduced). It was urged by him that P.W.11 is a near relation of complainant (P.W.10) whose sister is the wife of the brother of complainant and (P.W.12) Dawood Khan is the brother-in-law of complainant. Both of them are interested witnesses. The only independent witness was Mumraiz Khan in whose presence appellant Ahmad Nawaz pointed out to the two wells from where the dead bodies of the complainant's children were recovered. Here learned counsel for the appellants specifically referred to the F.I.R. In which there is not a word about either sodomy or murder committed by the appellants which allegations emerged subsequently under a concocted story at the stage of evidence.
9. However, learned counsel for the appellants Sardar Muhammad Ishaq submitted that the entire case of the prosecution revolves around extra-judicial confession of Ali Nawaz appellant and last- seen evidence. In the present case extra-judicial confession has novel attributes of its own inasmuch as it is firstly a retracted confession, secondly made by a minor 9 years of age and thirdly the minor implicating himself and also co-accused Muhammad Javed. Every thing said by him cannot be taken as granted but requires thorough and strict examination and scrutiny on the basis of established legal principles of criminal jurisprudence in the back drop of surrounding circumstances of the case. He first referred to the case of Sajid Mumtaz v. Basharat and others reported in 2006 SCM R 231 in which it was held:-- "This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra-judicial confessions starting from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest.
Extra-judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra- judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that the confession cannot but be true". As, an extra-judicial confession is not direct evidence, it must be corroborated in material particulars before being made the basis of conviction."
10. In a- recent judgment of Sajid Mumtaz and others v. Basharat and others 2006 SCM R 231. The Supreme Court of Pakistan maintained the earlier view that "extra-judicial confession must be received with utmost caution but the Court before relying upon such weak type of evidence, capable of being effortlessly procured, must ask a few questions, like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what above all is the position or authority held by the witnesses".
11. In Muhammad Ashraf alias Naik Muhammad v. The State reported in 2005 PCr.LJ 123 the Court observed that. "It seemed highly improbably that accused would go to a stranger living in another village and make confession regarding alleged crime and that too. Without ascertaining as to whether he was in a position to render him any help in seeking pardon from legal heirs of deceased".
12. Learned counsel also placed reliance on Muhammad Nadeem v. The State 1992 PCr.LJ 1520, Robina Bibi v. The State 2001 SCM R 1914 and Mst. Nasim Akhtar v. The State 2000 MLD 530.
13. It was next urged by Mr. Ansar Nawaz Mirza, learned counsel for the appellant that the alleged confession was made by a child of 9 years, therefore, the Courts of law have shown their utmost caution in this regard. Reference was made by him to the case of Muhammad Feroz v. The State NLR (sic) Criminal 474 in which a Division Bench of High Court of Sindh had held:-- "The testimony of child witness should only be accepted after the greatest caution and circumspection. The rationale for this is' that it is common experience that a child witness is most susceptible to' tutoring. Both on account of fear and inducement, he can be made to depose about a thing which he has not seen and once having been tutored, he goes on repeating in a parrot like manner, what he has been tutored to state. Such witnesses are most dangerous witnesses."
14. Here a passage may be quoted from Dr. Kenny Downing's (Profession of Laws of England, Cambridge University), Book titled "Outlines of Criminal Law" at page 386.
"Children are most untrustworthy class of witnesses for when of a tender age as our common experience teaches us, they often mistake dreams for reality, repeal glibly of the own knowledge what they have heard from others and greatly influence by fear of punishment, by hope of reward and desire of notoriety."
' In Manni v. Emperor AIR 1930 Oudh 406, the Court commented testimony of child witness as follows:-- "There is no more dangerous witness that young children. Any mistake or discrepancies in their statements are ascribed to innocence or failure to understand, and undue weight is often given to what is merely a well taught lesson. Children have good memories and no conscience. They are easily taught stories and live in a world of make-believe so that they often become convinced that they have really seen the imaginary incident which they have been taught to relate. The evidence of a child should therefore, be accepted with great caution."
' In Sultan v. The State PLD 1965 Kar. 615, a Division Bench held that conviction cannot be based on sole testimony of child witness. In Sona Miah v. The State PLD 1960 Dacca 396, the Division Bench of Dacca High Court ruled that witness is a child who is capable of being tutored and it transpires that she has made a lot of improvements on her original story".
15. Appellant Ahmad Nawaz in his retracted confession had also implicated appellant Muhammad Javed on which learned trial Judge erroneously relied upon and convicted him and sentenced to death. In the case of Sajid Mumtaz and others (supra) the Supreme Court of Pakistan had held that a joint confession cannot be used against either of the accused of the accused. In such a case only independent, corroborative and confidence inspiring evidence shall only lead to the conviction of a co-accused.
16. As regards last-seen evidence, learned counsel for the appellant placed reliance on Naqibullah and another v. The State PLD 1978 SC 21 in which no motive at all was alleged in F.I.R. Against accused for murder and motive as alleged at trial was much too farfetched to be real. It was held:- - "In Fazal Elahi alias Sajawal v. The Crown PLD 1953 FC 214 in the final analysis, the Federal Court held that the accused's presence in the deceased's company when he was "last-seen alive", as alleged, cannot by itself lead to an inference, beyond reasonable doubt that he was guilty. In that case the Court significantly observed that while the fact of an accused person being the "only person in the company of the deceased within a very short time of his death" may be almost conclusive, in the absence of explanation from the accused for holding him responsible for the death, should it have been the result of violence, prolongation of interval generally tends to weaken the inference very greatly. In certain circumstance as much as an hour's extension may suffice to avoid, even the duty of furnishing an explanation"
' In another case falling under the same category, in State v. Manzoor Ahmed PLD 1966 SC 664 the deceased was last-seen alive in the company of the accused when they both entered his room. In that context the Supreme Court observed that in a case resting wholly on circumstantial evidence the Court must remember that the "Processes of inference and deduction are essentially involved- -- frequently of a delicate and perplexing character---liable to numerous causes of fallacy". Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to, be incompatible with .The innocence of the accused and "incapable of explanation upon any other reasonable hypothesis than that of his guilt". The circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and muchless a doubt conjured up by pre-conceived notions. But once the circumstances have been found to be so established they may well furnish a better basis for decision than any other kind of evidence". The matter was also examined at some length in a recent unreported judgment of this Court in Rehmat alias Rehman v.
The State (Criminal Appeal No,52 of 1976, decided on 5-4-1977). On the whole the evidence of the deceased having been last-seen alive in the company of the accused was regarded as a weak type of circumstantial evidence to base a conviction on it.
' In my opinion, in the circumstances of this case, the corroboration supplied by this weak piece of circumstantial evidence, was not sufficient to base the conviction of Wasal accused on his confession. There is no motive at all alleged in the F.I.R. Against the accused for the murder. Even in the evidence the motive attributed to him is much too far-fetched to be real."
17. Learned counsel for the complainant Malik Rab Nawaz Noon and State counsel Mr. Muhammad Sharif Janjua heavily placed reliance on the case of Mst. Robina Bibi v. The State 2001 SCM R 1914 in which it was held that "where the deceased was lastly seen alive in the company of,the accused shortly before the time he was presumed to have met his death near the place of occurrence, inference can reasonably be drawn that the accused is responsible for the death of the deceased".
Other cases relied upon by them were reported in PLD 1996 SC 305, 2002 Cr.LJ 208, 2002 SCJ 626, 1998 SCM R 2669. As regards delay in lodging F.I.R. Their contention was that much time was spent in search for victims and as such explainable.
18. Having examined the legal position as enunciated by the superior Courts, what boils down from the facts of the case is (a) the appellants took away complainant's children at noon in his presence by inducing them to give small glass stones (b) the children did not return till evening and the complainant went in search of his children to the houses of the appellants but neither the children were there nor the appellants. (c) F.I.R. Was lodged the next day according to which the complainant again looked for his children and met P.W.11 on a road, who told him that appellant Ahmad Nawaz told him that he and appellant Muhammad Javed had thrown the complainant's children into two wells but there is no reference to confession made by him for sodomy and murder in F.I.R. (d) P.W.11 deposed that he brought appellant Ahmed Nawaz to the complainant and the two of them went to the wells where the presence of P.W.12 Dawood Khan and Mumraiz Khan (not produced) he repeated his confession (e) On the pointation of Ahmad Nawaz appellant the dead bodies of both the children were taken out from the wells (0 The police arrived soon and recovered the dead bodies and arrest appellant Ahmad Nawaz on the spot (g) Appellant Muhammad Javed was arrested on 13-1-2002'after 10 days (h) As per medical and chemical reports sodomy was committed on the children and they were thrown away into the two wells (i) appellant Javed was capable of committing sodomy but appellant Nawaz was not being 9 years old.
19. The questions which may emerge out of these facts are (a) why the complainant did not revisit the houses of appellants which were nearby to find out if his children or the appellants were there and allowed the whole night and the forenoon, of the next day to pass (b) why the complainant did not report the matter to police of his missing children for about 20 hours when one was a child of 7 years and the other an infant of 2-1/2 years (c) What relationship appellant Nawaz had with P.W.11 and what persuaded him to confide in him and make confession before him and thereafter before others (d) why police arrested appellant Muhammad Javed after a delay of 9 days of confession of appellant Nawaz and from which place (e) Was there any motive of the appellants killing both the children of the complainant after committing sodomy with them (1) was it possible for an illiterate village boy of 9 years old in his statement under section 342, Cr.P.C. Above to have propounded a ransom theory for his defence if not tutored (g) whether in the absence of available independent witnesses the evidence of P.W.11 and P.W.12 close relatives of complainant P.W.10 be relied upon.
20. Some of the above-named questions either have no answers to offer or if replied shall be extraneous to the record based upon surmises and conjectures, whims and fantacies. When such strong doubts creep into the prosecution case which rests on extra-judicial confession of dubious nature and last-seen evidence each piece of which has been designedly made to have nexus with the others, it will lead to irresistible conclusion that the prosecution has miserably failed to establish its case against the appellant herein.
21. Resultantly we set aside the impugned judgments dated 5-7-2002 passed by the learned Additional Sessions Judge, Attock and accept both the appeals of above named appellants with direction to jail authorities to release appellants Muhammad Javed and Ahmad Nawaz forthwith if they are not required in any other criminal case. Reference for confirmation of death penalty of Muhammad Javed is replied in negative.
22. As further consequence both the above criminal revisions are dismissed.